                        Revised February 17, 1999

                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT
                           _____________________

                               No. 98-10960
                          _____________________

                        UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,
                                  versus

                              RUTH MUHAMMAD,

                                             Defendant-Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas

_________________________________________________________________
                         January 15, 1999
Before GARWOOD, BARKSDALE, and STEWART, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

     For this expedited appeal from an order committing federal

prisoner Ruth Muhammad to hospitalization for treatment, pursuant

to 18 U.S.C. § 4245, disposition having been by a magistrate judge,

acting by written consent of the parties pursuant to 28 U.S.C. §

636(c)(1), at issue are:         whether the magistrate judge lacked

jurisdiction; the constitutionality of the preponderance of the

evidence standard in      § 4245(d); the sufficiency of the evidence;

and whether the commitment violates Muhammad’s right to free

exercise   of   her   religion   under   the   First   Amendment   and   the

Religious Freedom Restoration Act, 42 U.S.C. § 2000bb.          We AFFIRM.
                                       I.

     Muhammad is serving a 63-month sentence in federal prison for

robbing a bank in California in March 1997.          (She had been released

from a California state prison only a few days earlier.)                     On 3

March 1998, following her conviction on the bank robbery charge,

Muhammad was examined by a Bureau of Prisons psychiatrist, who was

of the opinion that Muhammad was then suffering from a mental

disease or defect requiring custodial care and treatment in a

suitable psychiatric hospital.          Accordingly, on 4 March 1998, she

was transferred to the Federal Medical Center, Carswell, in Fort

Worth, Texas.

     But, on 9 April, Muhammad refused admission to the Psychiatric

Unit.    Therefore, on 17 April, the Government filed a “Petition to

Determine Present Mental Condition of an Imprisoned Person, ... and

for Appointment of Counsel and Qualified Examiner Pursuant to 18

U.S.C.   §§    4245   and   4247”,    seeking   Muhammad’s      commitment     for

psychiatric care and treatment.             On 22 April, the district court

entered an agreed order referring the appointment of counsel

request to a magistrate judge.

     A consent to the transfer of that request had been signed by

both the      Assistant     United   States   Attorney   and,    on   behalf    of

Muhammad, by an Assistant Federal Public Defender.                On 23 April,

the magistrate judge appointed the Federal Public Defender to

represent Muhammad, and ordered him to file a report stating



                                      - 2 -
whether Muhammad continued to object both to treatment and to being

transferred to a suitable facility for that purpose.

     On 11 June, a “Consent to Referral to Magistrate Judge ...”,

signed by the Assistant United States Attorney and by an Assistant

Federal Public Defender (who also represents Muhammad on appeal)

was filed. That Assistant Federal Public Defender, whose office is

in California, had represented Muhammad there on the 1997 bank

robbery charge, which resulted in her current imprisonment.

     The consent stated that the Government, by and through the

Assistant United States Attorney, and Muhammad, “by and through her

attorney”, stipulated and agreed that

          they consent to a hearing and determination to
          be had by United States Magistrate Judge ...,
          on the petition to determine present mental
          condition of an imprisoned person as requested
          by the petition filed by [the Government].
          [The Government] and [Muhammad] consent that
          this case be transferred for all purposes to
          the United States Magistrate Judge ... for any
          determinations to be made in this case as
          requested by the petition of [the Government].

Pursuant to that consent, the district court ordered that the case

be “reassigned and transferred to” the magistrate judge “for the

conduct of all further proceedings and the entry of judgment”.

     On 12 August, the magistrate judge conducted a hearing on the

Government’s petition.   The magistrate judge granted the petition

and “committed [Muhammad] to the custody of the United States

Attorney General for hospitalization for treatment in a suitable

facility until [she] is no longer in need of such custody for care

                               - 3 -
or   treatment   or   until    the     expiration       of   her    sentence     of

imprisonment, whichever occurs earlier”.

     The next day, the magistrate judge denied Muhammad’s motion

for a stay of the commitment order pending appeal.                      Our court

denied   Muhammad’s   similar       motion,    but    granted     her   motion   to

expedite her appeal.

                                      II.

     Muhammad    contends     (1)    that     the    magistrate    judge   lacked

jurisdiction; (2) that the preponderance of the evidence standard

in § 4245(d) is unconstitutional because due process instead

requires clear and convincing evidence; (3) that the Government

failed to establish that Muhammad posed a present danger to herself

or others; and (4) that Muhammad’s commitment violates her right to

free exercise of her religion under the First Amendment and the

Religious Freedom Restoration Act.*

                                       A.

     Muhammad presents three bases in support of her claim that the

magistrate judge lacked jurisdiction (authority) to enter the

commitment order:     (1) that Muhammad did not personally consent to

the disposition of the petition by the magistrate judge; (2) that

§ 4245 commitment proceedings are not “civil” matters; and (3) that


     *
          In September 1998, before Muhammad filed her appellate
brief, the Government moved to dismiss this appeal on the ground
that it is frivolous. The motion was carried with the case. As
discussed infra, although the issues raised by Muhammad are without
merit, they are not frivolous. The motion is DENIED.

                                     - 4 -
Article   III    forbids   even   consensual   reference   of    a   §   4245

proceeding to a magistrate judge.

     The statutory authority for disposition of this matter by the

magistrate      judge,   rather   than   his   preparing   a    report    and

recommendation for disposition by the district judge, is found in

28 U.S.C. § 636(c), which provides in pertinent part:

                (1) Upon the consent of the parties, a
           ... magistrate [judge] ... may conduct any or
           all proceedings in a jury or nonjury civil
           matter and order the entry of judgment in the
           case, when specially designated to exercise
           such jurisdiction by the district court or
           courts he serves....

                (2) If     a    magistrate   [judge]   is
           designated to exercise civil jurisdiction
           under paragraph (1) of this subsection, the
           clerk of court shall, at the time the action
           is   filed,   notify    the  parties   of  the
           availability of a magistrate [judge] to
           exercise such jurisdiction. The decision of
           the parties shall be communicated to the clerk
           of court.    Thereafter, either the district
           court judge or the magistrate [judge] may
           again advise the parties of the availability
           of the magistrate [judge], but in so doing,
           shall also advise the parties that they are
           free to withhold consent without adverse
           substantive consequences. Rules of court for
           the reference of civil matters to magistrate[]
           [judges] shall include procedures to protect
           the voluntariness of the parties’ consent.

28 U.S.C. § 636(c)(1) and (2) (emphasis added).

     Needless to say, “when the magistrate [judge] enters judgment

pursuant to 28 U.S.C. § 636(c)(1), absence of the appropriate

consent and reference (or special designation) order results in a

lack of jurisdiction (or at least fundamental error that may be

                                   - 5 -
complained of for the first time on appeal)”.           Mendes Junior Int’l

Co. v. M/V Sokai Maru, 978 F.2d 920, 924 (5th Cir. 1992) (citations

omitted; emphasis added).         Earlier, in Archie v. Christian, 808

F.2d 1132 (5th Cir. 1987) (en banc), our court had exercised its

supervisory powers to require that, “before commencing the actual

trial of any civil case in which a magistrate [judge] is to preside

pursuant to the authority of 28 U.S.C. § 636(c), jury or nonjury,

[the magistrate judge] shall inquire on the record of each party

whether he has filed consent to the magistrate [judge]’s presiding

and shall receive an affirmative answer from each on the record

before proceeding further”.        Id. at 1137 (footnote omitted).

      As noted, Muhammad, by and through her attorney, consented to

disposition of this matter by the magistrate judge.              Now, by and

through that same attorney, she challenges the jurisdiction of the

magistrate judge to act in the very manner to which she had

consented.     No authority need be cited for the long-established

rules that personal, but not subject matter, jurisdiction can be

waived; that we examine subject matter jurisdiction throughout a

proceeding, concomitantly raising the issue sua sponte if need be;

and that we freely review jurisdictional questions.

      That said, we note that the Government does not contest

Muhammad’s, in essence, framing this issue as one of subject matter

jurisdiction.      Along that line, the Government does not urge that,

in   the   light   of   the   consent   in   district   court,   Muhammad   is


                                    - 6 -
precluded from raising this issue here.           This is in line with the

above-quoted passages from Mendes Junior Int’l Co. and Archie.

     We proceed in the same fashion.          See, e.g., Archie, 808 F.2d

at 1134.    This notwithstanding, we are troubled greatly by counsel

filing the consent, for and on behalf of his client, in district

court, then participating in the commitment proceeding without any

objection    or   other    notice   that    the   magistrate    judge    lacked

jurisdiction,     and     then   making    that    claim,     albeit    one   of

jurisdiction, for the first time on appeal.

     In short, this issue should have been presented in district

court for a host of obvious reasons; these include ensuring that

Muhammad received the most expeditious treatment (should she be

found in need of same), and judicial efficiency and economy.              While

we do not question counsel’s good faith in presenting the issue at

this late date, we caution/note the obvious:                this is no way to

proceed.    This issue should have been raised when this proceeding

began approximately nine months ago.              Cf.   Carter v. Sea Land

Servs., Inc., 816 F.2d 1018 (5th Cir. 1987), concerning a pre-trial

attempt to withdraw consent to trial before a magistrate judge.

Our court stated:

            We are not persuaded that a litigant has such
            a right. We find nothing in the statute or
            the   legislative   history    that   requires
            continuing expressions of consent before a
            magistrate [judge] can exercise authority
            under a valid reference. Nor will we accept
            the slippery-slope invitation to read into the
            statute a rule that would allow a party to

                                    - 7 -
          express conditional consent to a reference,
          thereby obtaining what amounts to a free shot
          at a favorable outcome or a veto of an
          unfavorable outcome.     Any such rule would
          allow the party to hold the power of consent
          over the magistrate [judge] like a sword of
          Damocles, ready to strike the reference should
          the magistrate [judge] issue a ruling not
          quite to the party’s liking.      We will not
          countenance such fast and loose toying with
          the judicial system.

Id. at 1020-21.

                                1.

     Again, even though Muhammad’s counsel signed the consent form

agreeing to the transfer of this matter to the magistrate judge

“for all purposes”, Muhammad, represented on appeal by the same

counsel, now contends that the consent was invalid because it was

given by her lawyer, rather than by her personally.    In support,

she relies on Archie; EEOC v. West Louisiana Health Services, Inc.,

959 F.2d 1277, 1281 (5th Cir. 1992), in which our court stated that

“[c]onsent to trial by a magistrate [judge] under [§] 636(c) cannot

be implied”; Glover v. Alabama Bd. of Corrections, 660 F.2d 120,

124 (5th Cir. 1981) (citations omitted), in which our court stated

that Congress intended to require “a clear expression of consent by

the parties before allowing a magistrate [judge] authority under [§

636](c)”; and Form 34 (“Consent to Exercise of Jurisdiction by a

United States Magistrate Judge”) of the Forms Following the Federal

Rules of Civil Procedure, which provides for the signature of the

party or parties.


                              - 8 -
                                       a.

       Although the cited statute and authorities refer to the

consent of the parties, they do not state that an attorney’s

consent on behalf of his client is invalid for purposes of §

636(c). As the Supreme Court recognized in Link v. Wabash Railroad

Co.,   370   U.S.   626    (1962),    our   judicial   system    is   based    on

“representative litigation, in which each party is deemed bound by

the acts of his lawyer-agent”.         Id. at 634; see also National Ass’n

of Gov’t Employees v. City Public Serv. Bd. of San Antonio, 40 F.3d

698, 709 (5th Cir. 1994) (same); Frank v. County of Hudson, 962 F.

Supp. 41, 43 (D.N.J. 1997) (attorney’s consent to proceed before

magistrate judge is sufficient).            One can only imagine the havoc

that would ensue should we allow otherwise.

                                       b.

       In any event, Muhammad maintains that the magistrate judge

violated Archie by failing at the hearing to ask her on the record

whether she had consented to proceed before a magistrate judge, or

whether she was aware of the alternatives to such consent, or

whether she was aware that her counsel had consented on her behalf.

The requirement in Archie that the magistrate judge inquire of the

parties on the record as to their consent was created to ensure

that the record reflected that the parties had consented.                      In

Archie, our court considered the consent issue sua sponte.                    808

F.2d   at    1133-34;     id.   at   1137     (Higginbotham,    J.,   specially

                                      - 9 -
concurring).     The court noted that the Federal Rules of Civil

Procedure      contain   “explicit        provisions   safeguarding   the

voluntariness” of the consent required under § 636(c), and that the

official forms contain a consent form for that purpose.         808 F.2d

at 1135-36 & n.3; see FED. R. CIV. P. 73.        However, the parties in

Archie apparently did not complete such a form.          See id. at 1137

(Higginbotham, J., specially concurring).         Accordingly, the record

in Archie, unlike the record in the proceeding before us, contained

no explicit evidence of the parties’ consent.

     Muhammad’s counsel’s signature on the consent form, which was

filed in the record, satisfies Archie’s requirement that consent be

on the record.

                                     c.

     Muhammad’s contention that her right to a civil commitment

hearing presided over by an Article III judge is an inherently

personal right that can be waived only by her personal consent is

likewise unavailing.     In Winters v. Cook, 489 F.2d 174, 179 (5th

Cir. 1973) (en banc), our court held that the right of a criminal

defendant, indicted for murder, to a constitutionally composed

grand jury could be waived by the defendant’s attorney. Obviously,

such a right is no more personal or important than Muhammad’s

claimed right to have an Article III judge preside over her

commitment hearing. See also Carter, 816 F.2d at 1021 (fundamental

right can be waived).


                                - 10 -
                                       2.

      Next, Muhammad contends that, even assuming the validity of

her   counsel’s    consent    on   her      behalf,   the   magistrate   judge

nevertheless lacked jurisdiction, based on her claim that 18 U.S.C.

§ 4245 commitment proceedings are not “civil” matters, and thus not

covered by 28 U.S.C. § 636(c)(1).           Muhammad points out that Title

18 is entitled “Crimes and Criminal Procedure”, which she claims is

significant because “the title of a statute and the heading of a

section are tools available for the resolution of a doubt about the

meaning of a statute”.        Almendarez-Torres v. United States, 523

U.S. 224, ___, 118 S. Ct. 1219, 1226 (1998) (internal quotation

marks and citations omitted).

      Muhammad    asserts    further   that    commitment    proceedings   are

similar to habeas corpus proceedings, which are not civil actions

for purposes of the Prison Litigation Reform Act, Pub. L. No. 104-

134, 110 Stat. 1321, codified at 18 U.S.C. § 3626.              See Davis v.

Fechtel, 150 F.3d 486, 487 (5th Cir. 1998) (habeas proceeding under

28 U.S.C. § 2241); Carson v. Johnson, 112 F.3d 818, 820 (5th Cir.

1997) (habeas proceeding under 28 U.S.C. § 2254); United States v.

Cole, 101 F.3d 1076, 1077 (5th Cir. 1996) (28 U.S.C. § 2255

proceeding).      Muhammad contends that the same reasoning applies

with even greater force in the context of § 4245 proceedings, in

which a defendant is accorded constitutional and statutory rights

unavailable to typical civil litigants.           See 18 U.S.C. §§ 4245(c),


                                   - 11 -
4247(d).    Citing United States v. Williams, 919 F.2d 266, 268-71

(5th Cir. 1990), in which our court held that magistrate judges are

not authorized to adjudicate proceedings for the revocation of

supervised release, Muhammad analogizes the constitutional and

statutory protections applicable in § 4245 commitment proceedings

to those applicable to proceedings for the revocation of supervised

release.

     In Addington v. Texas, 441 U.S. 418 (1979), the Supreme Court

stated that “a civil commitment proceeding can in no sense be

equated to a criminal prosecution”.         Id. at 428.   Addington

involved a Texas court’s indefinite commitment of an ordinary

citizen (not a prisoner, such as Muhammad) to a state mental

hospital.   More to the point, the Fourth Circuit, addressing the

due process requirements for commitment proceedings under § 4245,

held that such proceedings are civil matters.   See United States v.

Baker, 45 F.3d 837, 842 (4th Cir.) (citing Addington), cert.

denied, 516 U.S. 872 (1995).     We agree with the Fourth Circuit

that, in a § 4245 commitment proceeding, the Government’s power is

not wielded in a punitive manner.   See Baker, 45 F.3d at 844 (“The

government’s efforts to civilly commit a person are not punitive in

nature”); cf. Addington, 441 U.S. at 428.    Likewise, we agree that

a § 4245 commitment proceeding is “civil” in nature and can

therefore be disposed of by a magistrate judge under § 636(c).



                               - 12 -
                                   3.

     Muhammad’s final basis for her lack-of-authority claim is

grounded in the premise that such proceedings present compelling

liberty interests and thus cannot be delegated to non-Article III

judges.   That Article provides, in pertinent part:

           The judicial Power of the United States, shall
           be vested in one supreme Court, and in such
           inferior Courts as the Congress may from time
           to time ordain and establish.     The Judges,
           both of the supreme and inferior Courts, shall
           hold their Offices during good Behaviour, and
           shall, at stated Times, receive for their
           Services, a Compensation, which shall not be
           diminished during their Continuance in Office.

U.S. CONST. art. III, § 1.

     “Article III, § 1, serves both to protect the role of the

independent   judiciary   within    the     constitutional   scheme   of

tripartite government, and to safeguard litigants’ right to have

claims decided before judges who are free from potential domination

by other branches of government.” Commodity Futures Trading Comm’n

v. Schor, 478 U.S. 833, 848 (1986) (internal quotation marks and

citations omitted). Citing Schor, Muhammad contends that, although

a litigant may, by consent, waive the “personal” right to an

Article III judge, id. at 848-49, a litigant may not, by consent,

waive the “structural” interest.        Id. at 850-51.

     In this regard, Muhammad maintains that, even though a § 4245

commitment proceeding is not a full-blown criminal proceeding, it

nevertheless involves a similarly compelling liberty interest, the


                              - 13 -
deprivation of which cannot be delegated to a non-Article III

adjudicator.    And, she asserts that another factor indicating that

the disposition of § 4245 petitions by magistrate judges violates

Article III is that their decisions are not subject to supervision,

or de novo review, by Article III judges, but only to appellate

review by the court of appeals, see 28 U.S.C. § 636(c)(3).

     These contentions are totally without merit.          As stated, this

is a civil proceeding.    Our court has already decided that parties

in a civil action can consent to waive their constitutional right

to trial before an Article III judge, and to the entry of judgment

by a non-Article III judge.        See Carter, 816 F.2d at 1020-21;

Archie, 808 F.2d at 1134 (“Certainly Congress must have believed

that [§ 636(c)] was constitutional and that a magistrate [judge]

exercising   such   powers—with   the    consent   of    the   parties,   one

component of which was necessarily a waiver of their rights to an

Article   III   presiding   judicial       officer—was     doing   so     with

jurisdiction, or it would not have enacted such a law”); id. at

1137 (citing Puryear v. Ede’s, Ltd., 731 F.2d 1153 (5th Cir. 1984))

(“we have upheld Section 636(c) against attack on constitutional

grounds”).

                                    B.

     Section 4245 provides, in pertinent part:

               (d) Determination and disposition.—If,
          after the hearing, the court finds by a
          preponderance of the evidence that the person
          is presently suffering from a mental disease

                                  - 14 -
           or defect for the treatment of which he is in
           need of custody for care or treatment in a
           suitable facility, the court shall commit the
           person to the custody of the Attorney
           General....

18 U.S.C. § 4245(d) (emphasis added).

     For the first time on appeal, Muhammad contends that the §

4245(d) preponderance of the evidence standard is unconstitutional;

that due process requires that commitment determinations be instead

supported by clear and convincing evidence.              Muhammad relies on

Addington, 441 U.S. at 433, in which the Supreme Court held that

the involuntary civil commitment of an ordinary citizen for an

indefinite period to a state mental hospital must be supported by

clear and convincing evidence.

     Muhammad concedes that, because she did not assert this claim

before the magistrate judge, we review it only for plain error.

E.g., United States v. Milton, 147 F.3d 414, 420 (5th Cir. 1998);

Highlands Ins. Co. v. National Union Fire Ins. Co., 27 F.3d 1027,

1031-32 (5th Cir. 1994) (applying plain error standard in civil

case), cert. denied, 513 U.S. 1112 (1995).          For plain error, there

must be a clear or obvious error that affects substantial rights.

Milton, 147 F.3d at 420.      “And, even then, we have discretion to

correct   such   errors;   generally,   we   will   do    so   only   if   they

‘seriously affect the fairness, integrity, or public reputation of

judicial proceedings’”.      Id. (quoting United States v. Atkinson,

297 U.S. 157, 160 (1936)).


                                 - 15 -
       Maintaining that the asserted error was clear or obvious,

Muhammad urges us to use our discretion to reverse because of the

serious consequences of civil commitment.              But, we do not agree

that    there    was   a   clear   or   obvious     error.       Addington    is

distinguishable; it dealt with the civil commitment of an ordinary

citizen, not a prisoner such as Muhammad.

       In Jones v. United States, 463 U.S. 354 (1983), the Supreme

Court upheld the indefinite commitment of a criminal defendant who

had been found not guilty by reason of insanity; that commitment

was based on a preponderance of the evidence.            Id. at 366-67.      The

Court   distinguished      Addington    on   the   ground    that   there    were

“important      differences   between   the   class    of    potential   civil-

commitment candidates and the class of insanity acquittees that

justify differing standards of proof”.             Id. at 367.

       Closer to home, in Vitek v. Jones, 445 U.S. 480 (1980), the

Supreme Court suggested that involuntary commitment of convicted

felons, who are already confined in prison, is less a curtailment

of liberty than the involuntary commitment of ordinary citizens.

Id. at 491-93.

       Congress apparently recognized such a distinction; 18 U.S.C.

§ 4246(d) requires clear and convincing evidence for the commitment

of inmates whose sentences have expired and who are otherwise

eligible for release from confinement.              Obviously, there is far




                                    - 16 -
less    infringement     of    liberty      involved      in    the    commitment     of

prisoners who do not fall within § 4246(d).

       For these reasons, and for the purposes of our narrow plain

error   review,    it    is,   at    the    very    least,      arguable       that   the

preponderance of the evidence standard specified in § 4245(d)

satisfies due process requirements.                     Therefore, there was no

“clear” or “obvious” error.              That ends our review; there was no

plain error.

                                           C.

       Contending that the Government failed to meet its burden of

proving that she is a present danger to herself or others, Muhammad

asserts   that    the    Government        did    not    establish      that    she   is

assaultive, violent, or disruptive; that the only danger is the

risk that medical problems will go undetected because she refuses

to undergo medical examinations.               Muhammad maintains that the risk

that she might suffer some illness which would go undiagnosed and

untreated   is    not    enough     to    override      her    substantial      liberty

interests in avoiding unwanted treatment.                 The Government concedes

that Muhammad has a liberty interest in avoiding the unwanted

treatment, but asserts that her interest is outweighed by the

Government’s important interest in preventing Muhammad from harming

herself or others.

       Section    4245   of    Title      18     provides      the    procedures      for

hospitalization of an imprisoned person suffering from a mental

disease or defect.       Subsection (a) provides that, if the prisoner

                                         - 17 -
or her attorney objects (as did Muhammad) to being transferred to

a suitable facility for care or treatment, “an attorney for the

Government, at the request of the director of the facility in which

the person is imprisoned, may file a motion with the court for the

district in which the facility is located for a hearing on the

present mental condition of the person”.       18 U.S.C. § 4245(a).

“The court shall grant the motion if there is reasonable cause to

believe that the person may presently be suffering from a mental

disease or defect for the treatment of which he is in need of

custody for care or treatment in a suitable facility.”      Id.

     Subsection (c) requires the court to conduct a hearing on the

motion.   Prior thereto, “the court may order that a psychiatric or

psychological examination of the person may be conducted, and that

a psychiatric or psychological report be filed with the court”.   18

U.S.C. § 4245(b).   Subsection (d) provides:

           If, after the hearing, the court finds by a
           preponderance of the evidence that the person
           is presently suffering from a mental disease
           or defect for the treatment of which he is in
           need of custody for care or treatment in a
           suitable facility, the court shall commit the
           person to the custody of the Attorney General.
           The Attorney General shall hospitalize the
           person for treatment in a suitable facility
           until he is no longer in need of such custody
           for care or treatment or until the expiration
           of the sentence of imprisonment, whichever
           occurs earlier.

18 U.S.C. § 4245(d).




                              - 18 -
     The district court granted Muhammad’s pre-hearing motion for

a psychiatric examination. However, at the 12 August 1998 hearing,

Muhammad’s counsel informed the magistrate judge that Muhammad

would not cooperate or be examined by the psychiatrist chosen by

Muhammad’s counsel.

     At the hearing, the Government introduced into evidence the

report of its expert, Bureau of Prisons Chief Psychiatrist Dr.

Shelley R. Stanton, dated only nine days before the hearing.                 Dr.

Stanton reported that Muhammad was housed in a Special Housing Unit

and refused to be housed in a less restrictive setting because of

her belief that other inmates would attempt to kill her because she

is Muslim; that Muhammad did not interact with staff or other

inmates except when she needed something; that she spent virtually

all of her waking hours engaged in ritualistic behavior surrounding

her “religious delusions”; that she kept her back to the cell door

and would not look at people when they talked to her; that she read

and prayed all day and frequently tore pages out of religious books

and glued them to the wall or window with toothpaste; that she

refused to leave her cell to bathe, preferring to instead use the

small sink in her cell; that she twice refused her own attorney’s

request that she be interviewed by a psychiatrist of his choosing;

and that she had refused medical evaluation despite the existence

of records indicating a diagnosis of severe anemia.

     Dr.   Stanton    concluded     that     Muhammad’s    deterioration      in

functioning   and    her   severe   isolation    were     due   to   a   “severe

                                    - 19 -
psychotic   process   in   which   she   suffers   from   persecutory   and

religious delusions”.      He diagnosed Muhammad as suffering from

paranoid schizophrenia and anemia.          Concerning the former, Dr.

Stanton concluded:

            Typically, the individual suffering from this
            illness    becomes    severely    paranoid    and
            suspicious of those around her.         She often
            believes she is the target of conspiracies
            and/or persecutions of others and can believe
            her life is in danger.       These beliefs may
            cause the individual to engage in behaviors
            which are detrimental to her physical and
            emotional health and well being.            These
            individuals typically avoid seeking any kind
            of psychiatric care because of the belief that
            such help is simply part of the ongoing
            conspiracy against them.      These individuals
            often   go   to   great   lengths    to   protect
            themselves,    sometimes   even    resorting   to
            suicide or violence towards others because of
            the fear and distress they experience.        The
            very nature of their illness precludes them
            from having insight into the need for
            treatment and prevents them from engaging in
            rehabilitative,     recreational     or    social
            activities available within the institution.

     Dr. Stanton concluded that

            [t]he prognosis for Ms. Muhammad is entirely
            dependent upon her receiving psychiatric
            medication and treatment. It is highly likely
            that medication will significantly reduce the
            intensity and scope of her paranoid thoughts
            and should result in significant improvement
            in her mental and physical functioning, such
            that   she   is   able   to  take    part  in
            rehabilitative opportunities.    Without such
            treatment, it is likely she will continue to
            remain in total isolation from even minimal
            social interactions and will continue to be
            housed in a single cell in a Special Housing
            Unit.   In addition, any physical or medical
            problems that may be contributing to her
            current state will continue to go undiagnosed

                                   - 20 -
            and untreated because of her refusal of any
            and all such treatment.

       Muhammad’s   counsel   introduced     into   evidence    a   competency

evaluation that had been performed approximately 16 months earlier,

in April 1997.      That evaluation had served to determine whether

Muhammad was competent to stand trial for the March 1997 bank

robbery.    The evaluation reflects that Muhammad’s trial counsel

(the same lawyer who represents her on this appeal) had requested

the competency evaluation because of his knowledge that Muhammad

had a prior placement at a California mental hospital.                      The

evaluator had then (April 1997) diagnosed Muhammad as suffering

from    a   personality     disorder   not      otherwise   specified      with

schizotypal and compulsive features and severe anemia.              The report

concluded, however, that Muhammad was competent to stand trial

because she did not seem to suffer from a severe mental illness or

defect that would render her incompetent to appreciate the nature

or consequences of the charges against her or to assist with her

defense.     The    April   1997   evaluation    notes   that   Muhammad    was

diagnosed with severe anemia in March 1997, and had suffered from

it for 16 years; and that she was not interested in being treated

for it.

       Muhammad’s counsel also introduced into evidence a competency

report dated 31 August 1995, approximately three years prior to the

commitment hearing, which concluded that Muhammad’s competency had

been restored.       That evaluation notes that Muhammad had been


                                    - 21 -
hospitalized in June 1995 with a diagnosis of psychosis, and was at

that time receiving an antipsychotic psychotropic medication.

     No other evidence was presented at the hearing.                  Muhammad

twice   declined    the   magistrate     judge’s    invitation   to    make    a

statement to the court.

     Muhammad’s     counsel   argued     at   the   hearing   that,   although

Muhammad’s religion, as she interpreted it, required her to take

actions   that     most   would   view    as    bizarre   and    perhaps      as

counterproductive to her own health, she was not a danger to

herself or others.        The Government responded that it was often

faced with lawsuits by prisoners claiming lack of proper medical

attention, and that it had a duty to protect Muhammad’s well-being.

     The magistrate judge found that Muhammad suffered from a

mental disease or defect and was in need of custodial care or

treatment.   He also found that Muhammad “is very much a danger to

herself by her refusal to have medical treatment”, as pointed out

by Dr. Stanton, because whatever physical or medical problems she

had or might have in the future would go undetected or undiagnosed.

     We conclude that the Government met its burden of proving, by

a preponderance of the evidence, that Muhammad was “presently

suffering from a mental disease or defect for the treatment of

which [s]he is in need of custody for care or treatment in a

suitable facility”.       18 U.S.C. § 4245(d).        The only evidence of

Muhammad’s mental condition as of the date of the hearing was the

report of the Government’s expert psychiatrist, who opined that

                                  - 22 -
Muhammad was suffering from a severe mental illness and was in need

of psychiatric medication and treatment.             That report constitutes

sufficient evidence to satisfy the Government’s burden of proof,

especially in the light of the fact that Muhammad presented no

evidence to contradict it.

                                        D.

     Finally, Muhammad contends that her commitment was ordered

because she refused, in the light of her devout Islamic beliefs, to

submit to medical examinations and take medication; and that the

Government did not demonstrate a compelling interest to justify

overriding her right to the free exercise of her religion under the

First Amendment and the Religious Freedom Restoration Act, 42

U.S.C. § 2000bb (RFRA).

     Although Muhammad’s counsel stated in a report ordered by the

magistrate judge that Muhammad believed that the administration of

medication would interfere with her religious faith, and, as noted,

stated at the hearing that Muhammad’s religion, as she interpreted

it, required her to take actions that many would view as bizarre or

counterproductive      to   her   own    health,    he    did   not    oppose   the

Government’s    petition    on    the    ground    that   ordering     Muhammad’s

commitment     would   violate    the     First    Amendment      or   the   RFRA.

Accordingly, because this issue is being raised for the first time

on appeal, we review it only for plain error.

     Muhammad    contends     that      the   Government    was    obligated    to

establish a compelling governmental interest to justify infringing

                                     - 23 -
her rights under the First Amendment and RFRA, and to use the least

restrictive means of furthering that interest.             The Government

counters that, in a prison setting, it need demonstrate only a

“legitimate penological objective”, and that the court should defer

to   the   judgment   of   prison   administrators.     The   parties    also

disagree as to the constitutionality of the RFRA as applied to

federal governmental action.         See City of Boerne v. Flores, 521

U.S. 507 (1997) (RFRA is unconstitutional as applied to the States

because Congress exceeded its enforcement powers under § 5 of the

Fourteenth Amendment); United States v. Grant, 117 F.3d 788, 792

n.6 (5th Cir. 1997) (noting doubt as to continued viability of RFRA

in federal context); cf. Christians v. Crystal Evangelical Free

Church (In re Young), 141 F.3d 854, 856, 863 (8th Cir.) (RFRA is

constitutional as applied to federal law), cert. denied, ___ U.S.

___, 119 S. Ct. 43 (1998).

      We need not resolve these disputes because, even assuming

arguendo the existence of error that is “clear” or “obvious” and

affects Muhammad’s substantial rights, we will not exercise our

discretion to correct it in this instance.            In the light of this

record, we will not undermine one of the most important purposes of

the plain error rule, which is to require parties to present issues

to   the   district   court   for   resolution,   and   potentially     avoid

unnecessary, wasteful appeals as to issues that the district court

might have decided in the appellant’s favor, had the court simply


                                    - 24 -
been given an opportunity to do so.       This rule carries extra force

when, as here, the issues are in whole or in part fact-driven.

     Because Muhammad did not challenge her commitment on First

Amendment or RFRA grounds, the Government had no opportunity to

present factual evidence of either its compelling governmental

interests or the legitimate penological, or other, objectives to be

served by Muhammad’s commitment, or to argue the legal issues of

which standard applies or the constitutionality of RFRA as applied

to federal governmental action. Likewise, the magistrate judge had

no opportunity to consider, or rule on, those issues.       Under these

circumstances, the fairness, integrity, and public reputation of

judicial   proceedings     are   not     seriously   affected   by    our

discretionary   decision    to   enforce    our   long-standing,     well-

established, salutary requirement that issues be first considered

by the district court.

                                  III.

     For the foregoing reasons, the judgment is

                                                           AFFIRMED.




                                 - 25 -
