    Case: 18-20467    Document: 00515043228     Page: 1   Date Filed: 07/22/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                No. 18-20467                     FILED
                                                             July 22, 2019
                                                            Lyle W. Cayce
                                                                 Clerk

UNITED STATES OF AMERICA,

                                          Plaintiff–Appellee,

versus

GREGORY ALAN MCKOWN,

                                          Defendant–Appellant.




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




Before SMITH, WIENER, and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Gregory McKown was charged with threatening to assault and murder
two federal employees. Under 18 U.S.C. § 4241(d), the district court found that
he lacked capacity to stand trial and ordered his temporary hospitalization to
determine whether he might regain competency in the foreseeable future. We
join the unanimous chorus of circuit courts in holding that such mandatory,
limited confinement accords with due process.
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                                   No. 18-20467
                                         I.
         McKown has suffered from grandiose and persecutory delusional dis-
order for over thirty-eight years. In 2017, he sought to collect retroactive Sup-
plemental Security Income benefits. When the request was denied, he sent
two emails and left fourteen voicemails for certain Social Security Adminis-
tration employees, threatening in graphic terms to harm them and their fami-
lies.    McKown was arrested and indicted on two counts of threatening to
assault and murder United States officials with the intent to retaliate against
them on account of the performance of their official duties.              See id.
§ 115(a)(1)(B), (b)(4).     After promising to obtain psychiatric treatment,
McKown was released on an unsecured bond.

         McKown retained forensic psychiatrist Victor Scarano to conduct a men-
tal health examination. The evaluation included a three-hour interview with
McKown; a telephone conversation with his older sister; and a record review of
his statements in this case, as well as in a YouTube video and various online
publications. At the government’s request, the district court appointed psy-
chologist Gerald Harris to perform an independent evaluation. Harris simi-
larly examined McKown for three hours, interviewed one of his close friends,
and consulted the relevant records.

         The court scheduled a competency hearing to review the expert witness
reports. Both doctors testified that McKown lacked competency to stand trial
because “he [wa]s unable to understand the nature and consequences of the
proceedings against him or to assist properly in his defense.” See id. § 4241(a).
They also agreed that it was unnecessary to hospitalize McKown to reach an
accurate prognosis. They disagreed, however, as to the recommended course
of treatment and the likelihood that McKown might regain competency in the
foreseeable future. Although his condition was “very severe” and “extreme,”

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                                 No. 18-20467
Harris found a substantial probability that McKown might soon recover if
placed on medication coupled with psychotherapy. Because McKown opposed
taking medication, Harris suggested hospitalizing him to ensure his compli-
ance with the treatment regimen.

      Conversely, Scarano maintained that McKown could not be restored to
competency in the foreseeable future, regardless of the prescribed treatment.
Though acknowledging that McKown had faithfully adhered to the conditions
of his pretrial release, Scarano remarked that the court-ordered therapy was
“really not treatment” but was merely “a conversation.” Scarano feared that
McKown would refuse to take medication voluntarily and that hospitalization
would exacerbate his delusions. Accordingly, Scarano proposed that only long-
term therapy had the potential to work. He predicted it could take up to five
years for McKown to develop the necessary trusting relationship with a thera-
pist to permit meaningful change.

      Federal law provides that a district court shall commit an incompetent
defendant to the custody of the Attorney General to be hospitalized for “a
reasonable period of time, not to exceed four months, as is necessary to deter-
mine whether there is a substantial probability that in the foreseeable future
he will attain the capacity to permit the proceedings to go forward.”         Id.
§ 4241(d). McKown asserted that the statute violates due process by requiring
commitment without proof that it is necessary to evaluate an individual defen-
dant’s mental health and without adequate procedural protections. He also
submitted an affidavit claiming that he would voluntarily participate in out-
patient treatment and take any lawfully prescribed medication.

      The district court found that McKown lacked competency to stand trial
but that, with proper treatment, he likely could attain sufficient capacity in
the near future.     Noting that several circuit courts had already rejected

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                                       No. 18-20467
constitutional challenges to § 4241(d), the court was “persuaded that this [c]ir-
cuit would be of a like mind.” The court thus committed McKown to the custody
of the Attorney General for a maximum of four months to determine his chance
of recovery. On McKown’s motion, the court stayed the commitment order
pending this appeal.

                                              II.
       As a general rule, we may resolve appeals only of “final decisions of the
district courts.” 28 U.S.C § 1291. In the criminal context, that “rule prohibits
appellate review until conviction and imposition of sentence.” Flanagan v.
United States, 465 U.S. 259, 263 (1984). Under the “collateral order” doctrine,
however, “a preliminary or interim decision is appealable . . . when it (1) con-
clusively determines the disputed question, (2) resolves an important issue
completely separate from the merits of the action, and (3) is effectively un-
reviewable on appeal from a final judgment.” Sell v. United States, 539 U.S.
166, 176 (2003) (cleaned up and citation omitted).

       As other circuits have uniformly concluded, a district court’s ruling
under § 4241(d) is reviewable as a collateral order. 1 After all, a commitment
order conclusively determines a defendant’s “present right to be at liberty prior
to trial.” Gold, 790 F.2d at 239. Moreover, whether a defendant was denied
due process is an important question that is “completely separate from . . .
whether [he] is guilty or innocent of the crimes charged.” Sell, 539 U.S. at 176
(citation omitted). Lastly, such an order is “effectively unreviewable on appeal


       1 See United States v. McCall, No. 12-3684, 2012 WL 10939207, at *2 (6th Cir. Nov. 28,
2012) (unpublished); United States v. Friedman, 366 F.3d 975, 979–80 (9th Cir. 2004); United
States v. Ferro, 321 F.3d 756, 760 (8th Cir. 2003); United States v. Filippi, 211 F.3d 649, 650–
51 (1st Cir. 2000); United States v. Boigegrain, 122 F.3d 1345, 1349 (10th Cir. 1997) (en banc)
(per curiam); United States v. Weissberger, 951 F.2d 392, 396–97 (D.C. Cir. 1991); United
States v. Donofrio, 896 F.2d 1301, 1303 (11th Cir. 1990); United States v. Gold, 790 F.2d 235,
238–39 (2d Cir. 1986).
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                                     No. 18-20467
from a final judgment because if [the] defendant were never tried or were tried
and acquitted, there would be no appellate review.” United States v. Magas-
souba, 544 F.3d 387, 400 (2d Cir. 2008). Similarly, “if he were tried and con-
victed, no meaningful relief would be available.” Id. We therefore have juris-
diction over the present appeal.

                                           III.
      We review de novo a challenge to a statute’s constitutionality.                See
United States v. Petras, 879 F.3d 155, 166 (5th Cir.), cert. denied, 139 S. Ct.
373 (2018). McKown contends that the district court violated his substantive
due process rights by ordering his commitment despite the doctors’ testimony
that it was unnecessary to determine the likelihood of recovery. He further
maintains that he received no meaningful predeprivation process related to the
nature, duration, and necessity of confinement.

                                            A.
      The government’s “power to bring an accused to trial is fundamental to
a scheme of ordered liberty and prerequisite to social justice and peace.” Mag-
assouba, 544 U.S. at 402−03 (collecting authority); see also Sell, 539 U.S. at
180. Congress may authorize the custody of persons awaiting trial, provided
such commitment proceedings comport with due process. See Greenwood v.
United States, 350 U.S. 366, 375 (1956). The Due Process Clause of the Fifth
Amendment circumscribes federal prosecutorial power in two relevant re-
spects. First, it proscribes “the criminal trial of an incompetent defendant.”
Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (citations omitted). Second, it
recognizes “a substantial liberty interest in avoiding confinement in a mental
hospital.” 2 Because “commitment for any purpose constitutes a significant


      2   Zinermon v. Burch, 494 U.S. 113, 131 (1990); see also United States v. Salerno,
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                                       No. 18-20467
deprivation of liberty,” Zinermon, 494 U.S. at 131 (citation omitted), the gov-
ernment must advance a “sufficiently compelling” interest to justify pretrial
detention. 3

                                              1.
       Consistent with those principles, federal law has long permitted the con-
finement of an incompetent defendant to render him capable of standing trial.
See 18 U.S.C. §§ 4244–4246 (Supp. 1949).                 Although the original federal
scheme placed no time limit on such custody, circuit courts consistently upheld
the statutes’ constitutionality by applying a “rule of reasonableness.” See Jack-
son v. Indiana, 406 U.S. 715, 731–33 (1972); Magassouba, 544 F.3d at 403.
Absent a finding of dangerousness, an incompetent defendant could be com-
mitted only for a reasonable time necessary to assess the likelihood of recovery.
See Jackson, 406 U.S. at 733.

       In Jackson, the Court constitutionalized that requirement in holding
that “the nature and duration of commitment [must] bear some reasonable
relation to the purpose for which the individual is committed.” Id. at 738. That
case involved an Indiana statute that—unlike the federal scheme—authorized
the indefinite confinement of an incompetent defendant without an evaluation
of his dangerousness or ability to “attain[] competency through custodial care
or compulsory treatment.” Id. The Court pronounced that a person “who is
committed solely on account of his incapacity to proceed to trial cannot be held
more than the reasonable period of time necessary to determine whether there



481 U.S. 739, 755 (1987) (“In our society liberty is the norm, and detention prior to trial or
without trial is the carefully limited exception.”).
       3 Salerno, 481 U.S. at 748; see also In re Newchurch, 807 F.2d 404, 408–09 (5th Cir.
1986) (“A person accused of a crime should not . . . be deprived of personal liberty unless his
confinement is reasonably necessary to assure his presence at trial or to protect some other
important governmental interest.” (footnote omitted)).
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                                      No. 18-20467
is a substantial probability that he will attain that capacity in the foreseeable
future.” Id. And even where a court concludes that the defendant will soon
regain competency, “his continued commitment must be justified by progress
toward that goal.” Id.

       Responding to Jackson, Congress enacted a three-step process that ex-
pressly incorporates the rule of reasonableness. 4 A district court must first
evaluate, by a preponderance of the evidence, whether “the defendant is pres-
ently suffering from a mental disease or defect rendering him mentally in-
competent to the extent that he is unable to understand the nature and conse-
quences of the proceedings against him or to assist properly in his defense.”
18 U.S.C. § 4241(d). In making that determination, the “court may commit the
defendant for a mental health examination.”                 United States v. Dalasta,
856 F.3d 549, 554 (8th Cir. 2017); accord 18 U.S.C. §§ 4241(b), 4247(b).

       If, after a hearing, the defendant is found to be incompetent, “the court
shall commit the defendant to the custody of the Attorney General,” who, in
turn, “shall hospitalize the defendant for treatment in a suitable facility.”
18 U.S.C. § 4241(d) (emphasis added). Thus, unlike the court’s discretion to
confine a defendant before an initial competency hearing, see id. § 4241(b),
commitment is mandatory upon a finding of incapacity. 5 That is so irrespective



       4See S. Rep. No. 98-225, at 236 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3418 (“In
accord with [Jackson], commitment under section 4241 may only be for a reasonable period
of time necessary to determine if there exists a substantial probability that the person will
attain the capacity to permit the trial to go forward in the foreseeable future.” (footnote
omitted)); id. at 237 (noting that “[t]his commitment procedure is very similar to current
Federal law which has been held constitutional by several courts” (footnote omitted)); Magas-
souba, 544 F.3d at 403 (collecting cases recognizing “that § 4241(d) was enacted in response
to the Jackson decision and echoed [its] language” (internal quotation marks and citation
omitted)).
       5  See, e.g., United States v. Anderson, 679 F. App’x 711, 713 (10th Cir. 2017) (“All
circuits that have confronted this issue have so held.”).
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                                       No. 18-20467
of the defendant’s initial prognosis. 6 Such confinement, however, may last only
“for such a reasonable period of time, not to exceed four months, as is necessary
to determine whether there is a substantial probability that in the foreseeable
future he will attain the capacity to permit the proceedings to go forward.” Id.
§ 4241(d)(1).

       Finally, if, at the end of the specified time, the defendant’s mental con-
dition has not sufficiently improved to permit the trial to proceed, the district
court must schedule a “dangerousness hearing.” See Ferro, 321 F.3d at 761.
Unless the defendant is found by clear and convincing evidence to be “a sexu-
ally dangerous person,” 18 U.S.C. § 4248(d), or to pose “a substantial risk of
bodily injury to another person or serious damage to property of another,” id.
§ 4246(d), the court must thereupon release him, see id. § 4241(d).

                                              2.
       We agree with every court of appeals to have addressed the constitution-
ality of § 4241(d) in holding that the statute complies with due process. 7 In
contrast to the statute at issue in Jackson, the duration of commitment under
§ 4241(d) “is inherently limited.” Strong, 489 F.3d at 1061. Aside from the
statutory cap of four months, the length of custody is restricted to “such a rea-
sonable period of time . . . as is necessary” to determine whether the defendant
will attain sufficient capacity in the foreseeable future. 18 U.S.C. § 4241(d).



       6 See United States v. Shawar, 865 F.2d 856, 861 (7th Cir. 1989) (noting that the “like-
lihood of recovery is not something to be considered by the district court in deciding whether
to commit the defendant for the evaluation period”).
       7 See United States v. Brennan, No. 19-262, 2019 WL 2749932, at *5–6 (2d Cir. July 2,
2019); Dalasta, 856 F.3d at 553–54; Anderson, 679 F. App’x at 713; United States v. Strong,
489 F.3d 1055, 1061–63 (9th Cir. 2007); Filippi, 211 F.3d at 651–52; Donofrio, 896 F.2d
at 1303; Shawar, 865 F.2d at 863–64; see also United States v. Houk, No. 93-2883, 1995 U.S.
App. LEXIS 42982 (5th Cir. Apr. 6, 1995) (per curiam) (mem.) (unpublished) (affirming the
defendant’s confinement under § 4241(d) despite his claim that such custody was futile).
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                                  No. 18-20467
The statute thus allows the defendant to gain early release through a medical
determination, before the conclusion of the four-month period, that he has re-
gained competency or that he is unlikely to do so. See Strong, 489 F.3d at 1062.
Given the statute’s “flexible and case-oriented” approach to determining the
length of confinement, § 4241(d) comports with the rule of reasonableness
announced in Jackson. See Filippi, 211 F.3d at 652.

      Equally important, the nature of confinement under § 4241(d) is reason-
ably related to important governmental purposes justifying such detention.
The government has not only “a substantial interest in timely prosecution,”
but also “a concomitant, constitutionally essential interest in assuring that the
defendant’s trial is a fair one.” Sell, 539 U.S. at 180. It follows that “the gov-
ernment has a compelling interest in pursuing” a correct diagnosis. Filippi,
211 F.3d at 651. Indeed, McKown “has been indicted . . . for serious crimes but
now claims that he cannot be tried and punished” because of his mental condi-
tion. Id.

      Nevertheless, “the brief interviews and review of medical records that
tend to characterize the initial competency proceeding” are generally insuffici-
ent to provide a “careful and accurate diagnosis.” Strong, 489 F.3d at 1062
(internal quotation marks and citations omitted). On account of “the limita-
tions on the federal courts in the field of mental health,” Shawar, 865 F.2d
at 860–61, the statute reasonably permits a more thorough evaluation before
the district court must decide “whether to defer trial indefinitely and (quite
often) to release the defendant back into society,” Filippi, 211 F.3d at 651. “To
be sure, the miracles of science suggest that few conditions are truly without
the possibility of improvement.” Ferro, 321 F.3d at 762. Hence, even where
the medical evidence indicates that the defendant’s condition is permanent,
temporary hospitalization bears some reasonable relation to the purpose for

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                                        No. 18-20467
that confinement. 8 The order committing McKown for a maximum of four
months therefore accords with due process.

       McKown nonetheless reads Jackson to allow pretrial confinement only
where necessary to an individual defendant’s diagnosis. He claims that the
court violated due process by committing him despite the doctors’ agreement
that it was unnecessary to obtain an accurate diagnosis. Yet McKown over-
looks that the statute at issue in Jackson, see 406 U.S. at 717 n.1, also provided
for automatic commitment based solely on a defendant’s incompetency. Rather
than condemn the mandatory nature of Indiana’s commitment scheme,
however, the Court highlighted that its indefinite duration was problematic
absent a finding of dangerousness. 9 Accordingly, Jackson allows the automatic
imposition of confinement so long as the custody is not indefinite.

       Invoking Sell, McKown rejoins that the government must overcome sig-
nificant substantive hurdles when it seeks to deprive a defendant of liberty
before trial. 10 But Sell, 539 U.S. at 169, addressed whether the government
may forcibly medicate a defendant to render him competent to stand trial. It
did not concern whether a defendant could be temporarily detained upon a
finding of incompetency. Consequently, the substantive restrictions that the
Court articulated in Sell are inapplicable here.



       8 See, e.g., Dalasta, 856 F.3d at 554; Anderson, 679 F. App’x at 712; Ferro, 321 F.3d
at 762; Donofrio, 896 F.2d at 1302; Shawar, 865 F.2d at 861.
       9See Jackson, 406 U.S. at 725 (“Were the State’s factual premise that [the defendant’s]
commitment is only temporary a valid one, this might well be a different case.”); see also
Strong, 489 F.3d at 1061 (“[T]he Court strongly suggested that the indefinite term of the
commitment authorized under the statute was a key element driving [its] decision to invali-
date the statute . . . .”).
       10  See Sell, 539 U.S. at 179 (allowing involuntary medication “only if [it] is medically
appropriate, is substantially unlikely to have side effects that may undermine the fairness of
the trial, and, taking account of less intrusive alternatives, is necessary significantly to fur-
ther important governmental trial-related interests”).
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                                      No. 18-20467
       McKown’s reliance on Newchurch is similarly misplaced. In Newchurch,
807 F.2d at 406, we considered whether a defendant who intended to raise an
insanity defense may be committed for a mental evaluation under 18 U.S.C.
§ 4247(b) without a finding that such confinement was necessary. We deter-
mined that commitment under § 4247(b) was appropriate only where the dis-
trict court decided, after an evidentiary hearing, “that the government cannot
adequately prepare for trial on the insanity issue by having the defendant
examined as an outpatient.” Id. at 411.

       Importantly, however, we did not purport to identify a due process viola-
tion but instead rested our decision on statutory grounds. 11 Unlike the statute
here, § 4247(b) permitted—but did not require—a court to commit a defendant
for a mental examination. See id. at 410. Moreover, the legislative history
indicated that a court should not commit a defendant if his “examination
c[ould] be conducted on an outpatient basis.” Id. (citation omitted). As a result,
we held that, “read against the background of the constitutional protection for
individual liberty,” id. at 409, the statute did not allow commitment “unless it
[wa]s demonstrably necessary,” id. at 411. Such is not the case here, given
that § 4241(d) explicitly mandates the commitment of an incompetent defen-
dant. See Shawar, 865 F.2d at 863–64.

       Lastly, McKown points to Carr v. State, 815 S.E.2d 903 (Ga. 2018).
Contrary to every federal circuit court to consider the issue, the Supreme Court
of Georgia decided that “automatic detention without an individualized
determination of whether the confinement reasonably advances the



       11 See Newchurch, 807 F.2d at 409 (noting that “the issues before us turn on interpre-
tation of the Insanity Defense Reform Act of 1984” and related statutes); id. at 411 (“The
statute does not require a defendant to undergo such a confinement as the price of entering
a plea of insanity, so we express no opinion concerning whether Congress might constitu-
tionally do so.”).
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                                     No. 18-20467
government’s purpose violates a defendant’s right to due process.” Id. at 906.
McKown posits that § 4241(d) is likewise unconstitutional because it categori-
cally mandates commitment without an individualized showing of necessity.

      Not only is Carr an outlier, but it also involved a distinguishable state
law. Whereas § 4241(d) requires the hospitalization of all incompetent defen-
dants, the state statute mandated confinement only for those “who [we]re
charged with violent offenses.” Id. at 912. “[B]ecause the statute allow[ed] a
large group of accused offenders—those charged with nonviolent crimes—to
avoid” custody, the court rejected the argument that “constant surveillance and
close control . . . is important in all cases to ensure an accurate” prognosis. Id.
at 915. Hence, in contrast to § 4241(d), the state statute did not “reflect[] a
legislative judgment that inpatient evaluation is . . . always necessary.” Id.
at 913.

      Congress, however, has chosen differently. And McKown has failed to
prove why that scheme offends due process. See Anderson, 679 F. App’x at 713.

      Congress’s choice to mandate temporary confinement is especially rea-
sonable where, as here, the defendant’s initial evaluations were uncertain and
conflicting. 12 In diagnosing McKown, Scarano and Harris conducted a brief
record review and spent only three hours or less examining him. Both doctors
at once recognized the severity of McKown’s condition and his unwillingness
to take medication. Although they thought it was unnecessary to commit
McKown to reach an accurate prognosis, they disagreed as to the recommended
course of treatment and the likelihood that he would regain competency in the


      12  See Brennan, 2019 WL 2749932, at *6 (affirming the commitment of “a defendant
whose medical prognosis was not definitive and whose future competency was legally unset-
tled”); Carr, 815 S.E.2d at 916 (acknowledging that hospitalization “may reasonably promote
the government’s purpose of accurate evaluation” in cases “where the defendant’s diagnosis
is truly uncertain”).
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                                   No. 18-20467
foreseeable future.    Whereas Harris found a substantial probability that
McKown might soon recover if placed on medication accompanied by psycho-
therapy, Scarano predicted it could take up to five years for McKown to heal.

      In light of the seriousness of McKown’s condition and the doctors’ diver-
gent prognoses, commitment was reasonably necessary to provide a more in-
depth evaluation in a safe and controlled setting. “[T]he nature and duration
of [McKown’s] commitment—treatment for four months or less—bear some
reasonable relation to the purpose for which” he was committed—“to determine
restorability.” United States v. Henriques, 698 F.3d 673, 674 (8th Cir. 2012)
(internal quotation marks and citations omitted). McKown’s confinement thus
comports with due process. See Jackson, 406 U.S. at 738.

                                         B.
      The Constitution prohibits the deprivation of life, liberty, or property
without due process of law. U.S. CONST. amend. V. In evaluating a procedural
due process claim, we first consider whether governmental action has deprived
an individual of a constitutionally protected interest.          Augustine v. Doe,
740 F.2d 322, 327 (5th Cir. 1984). If so, we then determine whether the proce-
dures afforded the defendant were adequate. Id.

      “[D]ue process is a flexible concept whose contours are shaped by the
nature of the individual’s and the state interests in a particular deprivation.”
Caine v. Hardy, 943 F.2d 1406, 1411–12 (5th Cir. 1991) (en banc). Generally,
before effecting a deprivation, the government must provide notice and an
opportunity to be heard. See id. at 1412; Burns v. Harris Cty. Bail Bond Bd.,
139 F.3d 513, 521 (5th Cir. 1998). To decide what procedures should apply in
an individual case, we weigh the following factors:
      First, the private interest that will be affected by the official action;
      second, the risk of an erroneous deprivation of such interest

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                                      No. 18-20467
       through the procedures used, and the probable value, if any, of ad-
       ditional or substitute procedural safeguards; and finally, the Gov-
       ernment’s interest, including the function involved and the fiscal
       and administrative burdens that the additional or substitute pro-
       cedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976). The government does not dis-
pute that the commitment order threatened to deprive McKown of his liberty.
Hence, the only question is how much process is due.

       McKown contends that he received no meaningful process concerning the
nature, duration, and necessity of confinement because the district court was
statutorily bound to commit him upon determining that he was incompetent.
He demands that the government—consistent with due process—provide an
additional hearing to address those concerns. McKown’s claim, however, rests
on the false predicate that he cannot be automatically committed upon a mere
finding of incapacity. But as discussed above, mandatory confinement under
§ 4241(d) is consistent with Jackson and due process. The government already
affords hearings to assess competency, 18 U.S.C. § 4241(a); to administer
forced medication, Sell, 539 U.S. at 180–81; and to evaluate a defendant’s dan-
gerousness, 18 U.S.C. § 4246(a). There is thus no need for additional process
at this stage of the proceedings.

       The Mathews balancing test does not suggest otherwise.                     McKown
asserts he has a strong interest in remaining free from confinement, especially
because it could result in the loss of the disability payments on which he des-
perately relies. 13 He cites Vitek v. Jones, 445 U.S. 480, 487–88 (1980), in which
the Court held that “the involuntary transfer of a Nebraska state prisoner to a



       13  See Program Operations Manual Sys., GN 02607.330, SOC. SEC. ADMIN.,
https://secure.ssa.gov/poms.nsf/lnx/0202607330 (last visited July 16, 2019) (suspending bene-
fits when “a beneficiary begins confinement after a court declares a beneficiary [incompetent
to stand trial]”).
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                                 No. 18-20467
mental hospital implicate[d] a liberty interest that [wa]s protected by the Due
Process Clause.” The Court concluded that, before such a transfer could occur,
the State was required to provide a hearing to determine whether the prisoner
suffered from a mental disease that could not be properly treated in prison. Id.
at 489–90. If the Court required procedural protections even for those already
incarcerated, McKown reasons, then surely such process is warranted here.

      The decision in Vitek, however, flowed from a confluence of circum-
stances not present in this case. Indeed, the defendant there maintained that
he was not mentally ill and that he was stigmatized by being so labeled. Id. at
486. Moreover, the proposed transfer would have subjected him to mandatory
behavior modification treatment—a consequence “qualitatively different from
the punishment characteristically suffered by a person convicted of crime.” Id.
at 488, 493. Once hospitalized, the defendant would not be returned to prison
unless treatment was deemed no longer necessary. Id. at 483 & n.1. Such a
transfer thus could have lasted for the entire duration of the sentence. As a
result, “the stigmatizing consequences of a transfer to a mental hospital for
involuntary psychiatric treatment, coupled with the subjection of the prisoner
to mandatory behavior modification . . . , constitute[d] the kind of deprivations
of liberty that require[d] procedural protections.” Id. at 494.

      Conversely, McKown does not face the same stigmatizing consequences
because he has conceded his incompetence to stand trial. Furthermore, the
commitment order does not subject him to mandatory behavior modification
treatment. Rather, “the initial purpose” of confinement under § 4241(d) “is
evaluative”—not restorative. Magassouba, 544 F.3d at 405. Additionally,
unlike the indefinite hospitalization at issue in Vitek, 445 U.S. at 493, limited
pretrial commitment under § 4241(d) is “within the range of conditions” to
which an incompetent defendant might reasonably be subject. Consequently,

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   Case: 18-20467     Document: 00515043228      Page: 16   Date Filed: 07/22/2019



                                  No. 18-20467
this case does not merit the same procedural protections as in Vitek.

      As for the second due process factor, the risk of an erroneous deprivation
of liberty is low. See Mathews, 424 U.S. at 335. McKown insists that automatic
commitment under § 4241(d) can easily deprive a defendant of liberty even
where it is wholly unnecessary to a proper diagnosis. But courts have found
just the opposite, given that “in almost all cases, temporary incarceration
would permit a more careful and accurate diagnosis.” Filippi, 211 F.3d at 651;
accord Ferro, 321 F.3d at 762. That is especially so where, as here, the prelim-
inary examinations yielded conflicting results. Moreover, because the length
of commitment under § 4241(d) “is inherently limited,” Strong, 489 F.3d
at 1061, and “case-oriented,” Filippi, 211 F.3d at 652, McKown faces a minimal
risk that he will be detained longer than necessary to reach a correct prognosis.

      Finally, the government’s interests militate against granting another
hearing. McKown attempts to minimize those interests by urging that it is
less expensive to provide additional process than it is to hospitalize a defendant
unnecessarily. But he ignores that the government has a substantial interest
in pursuing a correct diagnosis and in prosecuting trials in a fair and timely
manner. See Sell, 539 U.S. at 180; Filippi, 211 F.3d at 651. In sum, “automatic
commitment with substantial safeguards as to duration is a reasonable, and
sufficiently narrowly tailored, accommodation of the competing interests” of
the individual and the government. Filippi, 211 F.3d at 651 (internal quota-
tion marks and citation omitted). McKown’s custody under § 4241(d) therefore
conforms to due process.

      The order of confinement is AFFIRMED.




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