                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 16, 2013
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 12-6299
 v.                                             (D.C. No. 5:99-CR-00066-M-1)
                                                        (W. D. Okla.)
 STACEY D. BENFORD,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, KELLY, and GORSUCH, Circuit Judges.


      Stacey D. Benford, a patient at the Federal Medical Center in Rochester,

Minnesota (“FMC”), appeals from the district court’s order denying him

unconditional discharge. According to the district court, Mr. Benford failed to

show by clear and convincing evidence that his release would not pose a

substantial risk of bodily injury or serious damage to property of another. Our

jurisdiction arises under 28 U.S.C. § 1291 and finding no clear error, we affirm.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                    Background

      Mr. Benford suffers from paranoid type schizophrenia and has been in and

out of federal mental facilities for the past fifteen years. In 1998, Mr. Benford

was arrested and charged with bank robbery. He was found not guilty by reason

of insanity and was committed to the custody of the Attorney General pursuant to

18 U.S.C. § 4243. Since then, he has been conditionally released into the

community three times, each time violating the terms of his release. He has been

in continuous incarceration at FMC since 2005. As part of that commitment, Mr.

Benford is interviewed annually by a risk assessment panel, composed of two or

three independent clinicians, to determine if he continues to meet the criteria for

commitment or is eligible for release.

      As a schizophrenic, Mr. Benford has experienced auditory hallucinations,

delusions of grandeur, agitation, paranoia, disorganized thoughts, and pressured,

nonsensical speech. At times, he has shown a propensity for aggressive and

violent behavior. In addition to his 1998 bank robbery, Mr. Benford has on

multiple occasions assaulted staff members and fellow residents in his treatment

facilities. During his three periods of conditional release, he failed to take his

medication, abused drugs and alcohol, and engaged in threatening behavior.

      Despite these incidents, Mr. Benford has refrained from aggression for the

past six years, and a risk assessment panel recommended his release in 2012. The

panel stated that while there was some risk associated with Mr. Benford’s release,

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he was on long-acting antipsychotic medication and could be transferred to a state

hospital in Oklahoma upon his release. Thus, it was unlikely that Mr. Benford

would engage in aggression during the time it took to transfer him to an

Oklahoma facility. During his interview with the panel, Mr. Benford

acknowledged his mental illness and denied any intent to harm other people,

possess a weapon, or abuse illegal or unprescribed drugs in the future.

      The warden of FMC filed a Certificate of Recovery and Request to

Discharge from Psychiatric Hospitalization in the district court, requesting Mr.

Benford be discharged pursuant to 18 U.S.C. § 4243(f). Dr. Simcox, chief

psychologist at FMC and a member of the panel, testified before the district court.

He stated that Mr. Benford did not pose a subsantial risk of injury to others or

damage to property because: (1) not all of Mr. Benford’s aggressive behaviors

were a direct result of his mental illness, (2) the misbehavior he engaged in did

not result in serious injury or damage, and thus, Dr. Simcox speculated, any

future misbehavior would be minor in nature, and (3) Mr. Benford is less

aggressive due to age and maturity. After hearing testimony from Dr. Simcox and

Mr. Benford’s brother, the district court was not persuaded. Mr. Benford was

returned to FMC, and this appeal followed.



                                     Discussion

      When a defendant is found not guilty by reason of insanity, he is committed

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to a treatment facility until eligible for release. 18 U.S.C. § 4243(a). A

defendant will be discharged if “his release would no longer create a substantial

risk of bodily injury to another person or serious damage to property of another.”

18 U.S.C. § 4243(f)(1). If the charged crime involved bodily injury, serious

property damage, or the risk thereof, the defendant must prove the absence of

substantial risk by clear and convincing evidence. 18 U.S.C. § 4243(d). The

parties agree that bank robbery is such an offense.

      We review a district court’s commitment determination under § 4243 for

clear error. United States v. Gilgert, 314 F.3d 506, 512-13 (10th Cir. 2002).

Clear error involves a definite and firm conviction that a mistake has been made

after reviewing the whole record. United States v. Weed, 389 F.3d 1060, 1071

(10th Cir. 2004). Our review is necessarily deferential, and we do not assess

credibility or reweigh the evidence. Gilgert, 314 F.3d at 515-16.

      Though the district court did not offer much explanation, the record

contains ample support for its finding that Mr. Benford posed a safety risk if

released from the FMC. This includes the view of the risk assessment panel. The

panel’s discharge recommendation was premised on the assumption that Mr.

Benford would be transferred to an Oklahoma state mental facility, but Dr.

Simcox testified that such a transfer could not be guaranteed. Once released from

federal custody, Mr. Benford would be assessed by state officials to determine if

he met their criteria for commitment. While the FMC panel believed he would be

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admitted, Dr. Simcox could not state with certainty what would happen to Mr.

Benford upon unconditional discharge. 1 The panel believed that “Mr. Benford’s

psychotic illness remains so active that he appears to need the structure of a

hospital setting”; since the court could not guarantee Mr. Benford such a setting

upon his release, it was not clear error to deny his unconditional discharge. See

United States v. Stewart, 452 F.3d 266, 274 (3rd Cir. 2006).

      While Mr. Benford argues that no countervailing evidence was presented as

to the risk posed by his release, he bears the ultimate burden of proof. See 18

U.S.C. § 4243(d). Regardless, the record contains countervailing evidence: Mr.

Benford’s considerable history of aggression coupled with the panel’s statement

that “past aggression is the single best predictor of future aggression.”

Considering Mr. Benford’s three previous transgressions following conditional

release, in which he failed to take his medication, abused drugs and alcohol, and

acted aggressively, the district court’s decision is not clearly erroneous.

      AFFIRMED.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge

      1
         Conditional discharge under a prescribed regimen of care was not
available to Mr. Benford due to his repeated failures under those programs in the
past, and the panel’s determination that Mr. Benford required a structured hospital
setting.

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