                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-3954
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                 Larry Rick Mikawa

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                          Submitted: November 15, 2016
                             Filed: February 22, 2017
                                    [Published]
                                  ____________

Before RILEY, Chief Judge, WOLLMAN and KELLY, Circuit Judges.
                             ____________

KELLY, Circuit Judge.

      After being found not guilty by reason of insanity of false personation of a
federal officer in November 2012, Larry Mikawa was civilly committed pursuant to
18 U.S.C. § 4243. Two years later, the mental health facility treating Mikawa
determined he had recovered from his mental illness sufficiently to be eligible for
discharge from the psychiatric hospital. The government opposed release, and the
district court1 held an evidentiary hearing. In its order, the district court denied
release, finding that Mikawa posed a substantial risk of danger to other persons or
property. Mikawa appealed, and we now affirm finding no clear error.

                                   I. Background

       On April 6, 2010, Larry Mikawa was indicted for false personation of a federal
officer in violation of 18 U.S.C. § 912. Based on a stipulated psychiatric report, the
district court found Mikawa incompetent to proceed and ordered him committed to
determine if competency could be restored. Mikawa was transferred to the Federal
Medical Center (FMC) in Butner, North Carolina for treatment. On September 11,
2012, the district court found Mikawa competent to proceed based on an updated
psychiatric evaluation. Mikawa was transferred to the U.S. Penitentiary in
Leavenworth, Kansas for further proceedings in his criminal case. While there,
Mikawa stopped taking his psychiatric medications, and his psychotic symptoms
returned.

       Shortly thereafter, the parties filed a stipulation of facts in support of an
insanity plea based on a doctor’s conclusion that Mikawa was unable to appreciate
the nature and quality or wrongfulness of his acts at the time of the offense. On
November 27, 2012, the district court found Mikawa not guilty by reason of insanity
and, per the stipulation, committed him pursuant to 18 U.S.C. § 4243. Mikawa was
subsequently transferred to the FMC in Rochester, Minnesota in March 2013.

       On January 7, 2015, the warden of FMC Rochester filed a “Certificate of
Recovery and Request to Discharge from Psychiatric Hospital,” which stated that
clinicians believe that Mikawa “has recovered from his mental disease or defect to


      1
       The Honorable Dean Whipple, United States District Court for the Western
District of Missouri.

                                         -2-
such an extent that his release would no longer create a substantial risk of bodily
injury to another person or serious damage to the property of another.” Attached
were the reports of two Risk Assessment Panels (RAP)—composed of at least two
non-treating psychiatric professionals and chaired by the facility’s chief of
psychology—dated April 8, 2014, and November 12, 2014. Both panels concluded
that Mikawa had suffered from a severe mental illness, diagnosed as “schizoaffective
disorder, bipolar type,” for at least three decades. After reviewing multiple
psychiatric evaluations and treatment notes and conducting interviews of Mikawa and
his ex-wife, the April 2014 panel recommended unconditional release because there
was no record of Mikawa causing injuries or serious property damage, and his age
and lack of substance abuse suggested future violence was unlikely. The panel did
acknowledge that it was unlikely Mikawa—who did not believe he had a mental
illness or needed medications—would independently continue treatment, and thus his
mental status would likely deteriorate upon release. Because Mikawa’s treating
psychologist was on extended medical leave in April 2014, another RAP was
convened in November 2014. The second RAP found no reason to alter its prior
recommendation of unconditional release. The second panel found little risk of injury
or property damage as Mikawa had no intent or history of causing harm, although it
predicted he “likely” would engage in “nuisance or bizarre behavior that may bring
him to the attention of law enforcement.”

       On January 13, 2015, the government objected to the release recommendation
and requested a discharge hearing. In support of its request, the government attached
a declaration from Mikawa’s treating psychiatrist, Dr. Dionne Hart, who opined that
Mikawa should not be unconditionally released. The government also had Mikawa
evaluated by Dr. Dawn Peuschold, who concluded that he should not be released.

      Because the government opposed unconditional release, another RAP
convened on March 17, 2015, to offer an opinion on a proposed conditional release
plan. The conditional release plan placed Mikawa, who was primarily a resident of

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Alaska prior to his arrest, at Marenah’s Assisted Living Home in Anchorage. The
home had surveillance cameras and an onsite care worker who assisted with
administering medications, hygiene, and programming. Mikawa would be required
to receive mental health treatment provided by Anchorage Community Mental Health
and to take all prescribed medications. Further, Mikawa would be supervised by Tim
Astle of the U.S. Probation Office in Anchorage, who would have access to all of
Mikawa’s treatment records and to the home. Mikawa also would be required to
submit to drug testing. His failure to comply with the conditions of release could
result in his return to custody. The March 2015 panel unanimously agreed that the
proposed conditional release would “adequately control and minimize any risk related
to Mr. Mikawa’s release from custody.”

        The district court held a discharge hearing on October 5 and 6, 2015, and heard
testimony from ten witnesses. Three of the witnesses, doctors Jason Gabel, Daniel
Carlson, and Andrew Simcox, participated as members of one or more of Mikawa’s
three RAPs. Each of them opined that either conditional or unconditional release
would be appropriate as Mikawa was one of the “least dangerous” committed patients
they had seen, and he had no history of substance abuse, weapon ownership, or
infliction of serious injury on others. Two of Mikawa’s mental health
professionals—his psychologist at FMC Rochester, Dr. Emily Wakeman, and the
mental health coordinator at Leavenworth, Jeff Cowan—testified that Mikawa was
not a “threat to anyone” and had not had any physical altercations while committed.
Astle and Elizabeth Meyer, a social worker at FMC Rochester, testified about the
proposed conditional release plan and Astle’s inspection of the facilities and services
Mikawa would rely on in Anchorage if conditionally released.

       Dr. Dionne Hart, Mikawa’s treating psychiatrist at FMC Rochester, disagreed
with her fellow clinicians, opining that Mikawa should not be released. In her
declaration, she cited three observations that led her to conclude that Mikawa “has
not reached the maximum benefit from hospitalization:” first, he repeatedly insists he

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does not have a mental illness and will not take his medications; second, he continues
to have delusions about Sarah Palin, the officers who arrested him, and being a law
enforcement officer; and third, he has a preoccupation with his ex-wife, who does not
want to have any contact with him. At the hearing, Dr. Hart expressed concern that
Mikawa would contact his ex-wife, citing two letters and a package he had recently
addressed to homes on the street where she lived. Dr. Hart recommended that
Mikawa remain at FMC Rochester for further treatment, as she did not believe he
would be able to comply with the conditions of release.

      Dr. Dawn Peuschold, the government’s independent psychologist, testified
consistently with her report that Mikawa had not recovered to such an extent that his
unconditional or conditional release would no longer create a substantial risk of
bodily injury to another person or serious damage to the property of another. Her
conclusions were based on a review of Mikawa’s records as well as a four-hour and
forty-minute interview with him. Dr. Peuschold agreed that Mikawa suffers from
schizoaffective disorder, bipolar type and that he experiences symptoms, which are
sometimes severe, both during and absent treatment. Mikawa’s symptoms cause him
to misperceive external reality, giving him the mistaken belief that he does not have
a mental illness and does not need treatment. Dr. Peuschold found that Mikawa’s
mental illness causes him to “display[] a multidimensional pattern of disturbing,
aggressive, or intimidating behaviors,” which he intends to continue and often lacks
the ability to control. She found his behaviors “concerning” and subjectively
“threatening.” In addition, Dr. Peuschold testified that she does not believe Mikawa
will continue to take medications outside of a hospital setting and “is not stable
enough” to comply with the other conditions of release.

        The final witness was Mikawa’s second ex-wife, Cynthia Mikawa. She was
married to Mikawa from 1999 to 2008 and the couple has one child, who was thirteen
at the time of Ms. Mikawa’s testimony. During their marriage, Mikawa was primarily
medication compliant and held a steady job in Alaska, but in 2007 he abruptly

                                         -5-
disappeared, stopped taking medication, and traveled to Missouri. After his
disappearance, Mikawa called and wrote emails that Ms. Mikawa found threatening:
calling her a “demon,” stating she needed “to be killed” and was going to “go to hell,”
and threatening to take their daughter to the wilderness. She obtained a protective
order against Mikawa in 2008, which he was found guilty of violating when he
showed up at her house late at night yelling. According to Ms. Mikawa, after her ex-
husband’s arrest in 2010 and as recently as August 2015, he wrote letters to her and
her daughter from prison, most of which she returned to sender. On the outside of the
envelopes, Mikawa wrote notes saying, among other things, that he was going to
arrange for Ms. Mikawa to be killed. At the hearing, Ms. Mikawa testified that
Mikawa’s release makes her afraid for her and her daughter’s safety because he will
not stay on his medications or be able to abide by the conditions of release.

      In an order dated December 1, 2015, the district court denied Mikawa
discharge from commitment, adopting the conclusions of the government’s expert and
finding that Mikawa failed to carry his burden to prove that his release would not
create a substantial risk of bodily injury to another person or serious damage to
property of another. Mikawa appeals this order.

                                    II. Discussion

       A person found not guilty by reason of insanity of an offense that did not
involve a substantial risk of bodily injury or property damage2 is eligible for release,
or conditional release, if he can prove by a preponderance of the evidence that “his
release would not create a substantial risk of bodily injury to another person or
serious damage of property of another due to a present mental disease or defect.” 18


      2
        The parties agree that Mikawa’s offense, false personation of a federal officer
in violation of 18 U.S.C. § 912, did not involve a substantial risk of bodily injury or
property damage.

                                          -6-
U.S.C. § 4243(d). If the standard is met, the district court shall order the commitment
be completely discharged, or order “that he be conditionally discharged under a
prescribed regimen of medical, psychiatric, or psychological care or treatment that
has been prepared for him, that has been certified to the court as appropriate by the
director of the facility in which he is committed, and that has been found by the court
to be appropriate.” 18 U.S.C. § 4243(f)(2)(A). We review an appeal of a district
court’s order continuing commitment under 18 U.S.C. § 4243 and its dangerousness
finding for clear error. See United States v. Bilyk, 949 F.2d 259, 261 (8th Cir. 1991)
(citing United States v. Steil, 916 F.2d 485, 488 (8th Cir. 1990) (holding that the
“clearly erroneous standard governs our review of a district court’s . . . finding of
dangerousness” under 18 U.S.C. § 4246)).3

       Although the warden recommended both Mikawa’s unconditional and then
conditional release, on appeal Mikawa challenges only the district court’s refusal to
order conditional release. Mikawa also does not challenge the finding that he
presently suffers from a severe mental disease, namely schizoaffective disorder,
bipolar type, which causes him to experience delusions, hallucinations, periods of
disorganization, and mood symptoms. Thus, the central question in this appeal is
whether the district court clearly erred in concluding that because of his mental
illness, Mikawa’s conditional release would create a substantial risk of bodily injury
to another person or serious damage to the property of another.

      The district court found the government’s expert, Dr. Peuschold, to be credible
and found her conclusions “persuasive and consistent with the record as a whole.”


      3
       Whereas 18 U.S.C. § 4243 concerns the commitment of a person found not
guilty by reason of insanity, 18 U.S.C. § 4246 addresses the commitment of a
hospitalized person following expiration of his or her sentence. The standard used
to discharge commitment under §§ 4243 and 4246 is the same; however, depending
on the procedural posture, the burdens of proof may differ. Compare 18 U.S.C. §§
4243(d), (f) with 18 U.S.C. §§ 4246(d), (e).

                                         -7-
Mikawa argues that Dr. Peuschold’s conclusions should not be credited because she
documents only one instance of physical injury to another person—Mikawa punching
his first wife twenty-five years ago—and fails to connect Mikawa’s rude, annoying,
and disturbing behaviors to any substantial risk of bodily injury or property damage.
Instead, Mikawa argues the preponderance of the evidence supports the conclusion
of the three RAPs that the absence of violence, substance abuse, and weapon use in
Mikawa’s history makes it unlikely that he poses a physical danger to others.

        The district court rejected Mikawa’s argument and refused to credit the
opinions of the doctors who served on the RAPs, finding they were “not supported
by the record.” Although the district court highlighted several facts to support its
dangerousness finding, the RAP doctors’ conclusions deserve due consideration
given their cumulative experience serving on thousands of risk panels for committed
patients and their consideration of a plethora of Mikawa’s forensic, health, and legal
records and a multi-year course of observation, interviews, and testing of Mikawa.
Nevertheless, the district court substantiated its dangerousness finding, citing to
fourteen acts by Mikawa which “were violent or pose a risk of bodily injury to
another person or serious damage to property of another,” including that he: (1) used
a Samurai sword to destroy property at his apartment in 1988; (2) hit his first wife
several times during a single incident in the late 1980s; (3) had protective orders
issued against him by his second ex-wife, a gay rights organization, and workers at
a sports arena in Anchorage, Alaska; (4) left threatening letters at a Kansas City,
Missouri federal courthouse in 2010; (5) was placed in leg irons and transported by
stretcher at FMC Butner in August 2011 after verbally assaulting and pulling away
from an escorting officer; (6) sent letters to his second ex-wife from FMC Butner
indicating that she needed to be killed; (7) threw water on an electric fan outside his
cell in an effort to shock his cellmate; (8) threw a milk carton with feces and urine at
a correctional officer in July 2011; (9) spit at employees while temporarily housed at
the Federal Correctional Institution in Oxford, Wisconsin in 2013; (10) called his
treating psychiatrist, Dr. Hart, a “chemical terrorist”; (11) pretended to “shoot” at

                                          -8-
correctional officers by pointing his fingers at them in the shape of a gun; (12)
pounded and kicked his cell door at FMC Rochester; (13) made near-daily reports to
FMC Rochester doctors and employees about other patients’ behavior, considering
himself a law enforcement officer; and (14) sent letters to his daughter (directly and
through a friend of hers) in August 2015 with a notation to not show the letter to her
mother. Given these detailed findings and our deference to them, we cannot conclude
it was clear error for the district court to reject the opinions of some experts and adopt
the opinion of another. See Bilyk, 949 F.2d at 261 (“Given ‘the trial judge’s
awesome responsibility to the public to ensure that a clinical patient’s release is safe,’
the district court may reject experts’ conclusions when their reasoning supports
different results.” (quoting United States v. Clark, 893 F.2d 1277, 1282 (11th Cir.
1990))).

       We recognize that perhaps as compared to other committed patients, Mikawa
has few documented incidents of physical injury to another person. The absence of
prior violent acts certainly can be a key factor in analyzing whether discharge of
commitment is appropriate, but “overt acts of violence are not required to prove
dangerousness.” United States v. LeClair, 338 F.3d 882, 885 (8th Cir. 2003)
(dangerousness proven by clear and convincing evidence where defendant had only
one aggressive act, an assault, and had not shown any aggressive behavior while in
treatment); United States v. Williams, 299 F.3d 673, 677 (8th Cir. 2002) (commitment
appropriate even though defendant had “minimal history of actual violence” and a
“relatively problem-free incarceration”); Steil, 916 F.2d at 487–88 (threatening letters
and belief that delusions are real enough to prove dangerousness even though
defendant had no history of violent behavior). Here, the district court pointed to one
act of overt violence—Mikawa’s admitted attack of his first wife—as well as several
threats of violence, harassing and assaultive behaviors, and aggressive and menacing
acts. It was not clear error to rely on these alarming behaviors in finding Mikawa’s
release created a substantial risk of harm. See Williams, 299 F.3d at 677 (considering
“significant episodes of bizarre, defiant, and explosive behavior” during

                                           -9-
incarceration). It is true that Mikawa’s assault of his first wife is entitled to less
weight because it occurred over twenty-five years ago, but it need not be entirely
discounted. See United States v. Evanoff, 10 F.3d 559, 563 (8th Cir. 1993) (“[T]he
recency or remoteness of any particular activity simply affects the weight the court
will give to that particular evidence.”). While none of the actions cited by the district
court independently may have been enough to support a finding of dangerousness,
together they provided sufficient evidence from which the district court could
conclude that Mikawa posed a substantial risk of bodily injury to another person or
serious damage to the property of another. See United States v. Dixon, 963 F.2d 377,
at *3 (8th Cir. 1992) (unpublished table decision) (per curiam) (holding there was
clear and convincing evidence of a substantial risk of future harm to another under
§ 4246 where defendant “verbally threatened his former wife with bodily harm,
exhibited antisocial behavior, and could not control his temper and emotions”).

       Mikawa also challenges the district court’s conclusion that the conditional
release plan developed for him was insufficient to ameliorate the substantial risk of
injury he posed to others. Among other things, the district court was concerned that
if conditionally released, Mikawa could fail to take his medication and decompensate
psychiatrically, exhibit disturbing, aggressive, or intimidating behaviors in the
community, walk away from the group home, harm his ex-wife or daughter, or stalk
Sarah Palin. Mikawa argues that by requiring that he continue to take psychiatric
medications, consent to drug testing, and risk recommitment for noncompliance, the
conditional release plan adequately addressed any risk of injury from the possibility
that he would stop taking his medications.

       The conditional release plan included terms and conditions that would result
in close monitoring of Mikawa’s compliance with treatment for his mental illness,
which in some circumstances would be sufficient to alleviate the district court’s
concerns. Given Mikawa’s long-term and frequent insistence that he does not suffer
from a mental illness and does not want to be on and has a repeated history of

                                          -10-
refusing psychiatric medications, however, the district court did not clearly err in
concluding that the proposed conditions did not sufficiently address the substantial
risk that Mikawa would stop taking his medications, decompensate, and cause bodily
harm or property damage. See LeClair, 338 F.3d at 885 (upholding continued
commitment where patient had “little insight into his mental illness and need for
treatment” and there was “no assurance of compliance with treatment outside a
structured setting”); see also United States v. Jackson, 19 F.3d 1003, 1008 (5th Cir.
1994) (“Section 4243 does not require that Jackson be [conditionally] released simply
because there are mechanisms whereby he could be closely monitored on an
outpatient basis.”). Although the district court could have imposed additional
conditions to allay its concerns, see United States v. Franklin, 435 F.3d 885, 889 (8th
Cir. 2006), we cannot fault the district court for failing to consider hypothetical
conditions not presented to it. In this case, it was not reversible error for the district
court to deny conditional discharge based on the plan presented in the reports and at
the hearing. See United States v. Phelps, 283 F.3d 1176, 1184 (9th Cir. 2002) (“If
adequate conditions cannot be or are not developed to the satisfaction of the court to
ensure public safety, then the court has the responsibility to deny the release.”).

       While we do not find that the court clearly erred in denying the discharge of
Mikawa’s commitment on the record presented here, we are mindful that the statutory
maximum sentence for Mikawa’s offense is three years imprisonment. See 18 U.S.C.
§ 912. Mikawa has been in federal custody for nearly seven years, and his burden is
to prove his eligibility for release only by a preponderance of the evidence. 18 U.S.C.
§ 4243(d). “‘It has to be recalled that the government’s role here is not that of
punitive custodian of a fully competent inmate, but benign custodian of one legally
committed to it for medical care and treatment—specifically for psychiatric
treatment.” Steil, 916 F.2d at 488 (quoting United States v. Charters, 863 F.2d 302,
312 (4th Cir. 1988)). A person committed pursuant to 18 U.S.C. § 4243 is entitled
to an annual evaluation of his mental condition and the need for continued
commitment. 18 U.S.C. § 4247(e)(1)(B). At oral argument, it was disclosed that

                                          -11-
Mikawa has not received such an evaluation since his prior RAP in March 2015. “In
its custodial role, the government of course must fulfill its statutory duties,” Steil, 916
F.2d at 488, and we are confident that the government will ensure Mikawa is
reevaluated in due course to determine whether there is a need for his continued
hospitalization. See also 18 U.S.C. § 4247(h) (stating that Mikawa’s counsel may file
a motion for a hearing to determine Mikawa’s eligibility for discharge “at any time”).

                                    III. Conclusion

       For the foregoing reasons, we affirm the order of the district court.
                       ______________________________




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