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               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 04a0004n.06
                          Filed: October 1, 2004

CCase ase No. 03-6015

IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT



UNITED STATES OF AMERICA,                )        ON APPEAL FROM THE UNITED
                                         )        STATES DISTRICT COURT FOR
             Plaintiff-Appellee          )         THE EASTERN DISTRICT OF
                                         )                TENNESSEE
v.                                       )
                                         )
CHARLES MICHAEL BEATTY,                  )
                                         )
             Defendant-Appellant.        )



Before: BATCHELDER and GIBBONS, Circuit Judges; STAFFORD, District Judge*

      STAFFORD, District Judge. Appellant, Charles Michael Beatty (“Beatty”), a

criminal defendant found not guilty by reason of insanity, appeals an order committing

him to the custody of the Attorney General pursuant to 18 U.S.C. § 4243(e). We affirm.

                                             I.

      On February 5, 2002, Beatty stole a new Ford pick-up truck from a car

dealership in Harriman, Tennessee. Later that same day, Beatty robbed the Branch

Banking and Trust Company in Knoxville, Tennessee. Beatty approached a teller,

brandished a knife, and demanded two (2) one hundred dollar ($100.00) bills. After the

teller complied with his demand, Beatty left the bank and drove the stolen truck to
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        * The Honorable William Stafford, United States District Judge for the Northern
District of Florida, sitting by designation.
Florida. He was later taken into custody.

       On March 19, 2002, Beatty was charged by indictment with one count of bank

robbery and one count of transporting a stolen vehicle across state lines, all in violation

of 18 U.S.C. §§ 2113 and 2312. Beatty thereafter filed a notice of insanity defense and

a motion to determine mental competency under 18 U.S.C. § 4241(a), (b)1 and § 4242.2

Advising the court that it had no objections to Beatty’s motion, the government itself

moved for an evaluation of Beatty under 18 U.S.C. § 4242. The district court granted

the parties’ motions to determine mental competency/insanity, sending Beatty to FCI

Butner for examination under 18 U.S.C. §§ 4241 and 4242.

       Psychologists at FCI Butner diagnosed Beatty with “Psychotic Disorder Not

Otherwise Specified,” “Post-traumatic Stress Disorder,” and “Bipolar I Disorder, Mixed,

in Partial Remission.” J.A. at 116. In their forensic report dated May 30, 2002, the

psychologists stated that Beatty was “suffering from a severe mental disease or defect,

which rendered him unable to appreciate the nature, quality, or wrongfulness of his



       1
        Section 4241 authorizes the district court to order that a psychiatric or
psychological examination of the defendant be conducted for the purposes of
determining whether the defendant may be “suffering from a mental disease or defect
rendering him mentally incompetent to the extent that he is unable to understand the
nature and consequences of the proceedings against him or to assist properly in his
defense.” 18 U.S.C. § 4241(a).
       2
         Section 4242 requires the court to order a psychiatric or psychological
examination, for the purpose of determining the defendant's sanity at the time of the
alleged offense, if the defendant has provided notice of his intention to rely on the
insanity defense and the government has moved for such an examination.
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actions during the alleged offense.” J.A. at 118. The psychologists also indicated in

their report that Beatty’s then current functioning was such that he could understand the

nature and consequences of the proceedings against him and could aid in his defense.

       At a competency hearing held on August 16, 2002, counsel for the government

as well as Beatty stipulated that Beatty was currently competent, and a trial date was

set. Beatty later filed an unopposed motion to waive jury trial, and a bench trial was

begun. After Beatty entered an unopposed plea of not guilty only by reason of insanity,

the court entered an order finding Beatty not guilty by reason of insanity. Beatty was

remanded to the custody of the Attorney General pursuant to 18 U.S.C. § 4243.3 He

was sent to FMC Butner for a determination as to whether 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 U.S.C. § 4243(e). On January

7, 2003, the medical staff at FMC Butner issued a forensic report in which they noted

the following:

                 Identifying Mr. Beatty’s true diagnoses has been difficult.
                 Over the past seven years he has received numerous
                 psychiatric diagnoses...including Obsessive-Compulsive
                 Disorder; Impulse Control Disorder, Bipolar Disorder; Manic
                 with Rapid Cycling; Dysthymia, Borderline Personality Traits
                 with Narcissistic Features; Antisocial Personality Disorder;
                 and Schizoaffective Disorder.

J.A. at 133. Based upon their own evaluation, FMC Butner doctors concluded that

Beatty’s diagnoses were as follows: (1) “Cocaine and Hallucinogen Induced Psychotic



       3
         Section 4243(a) provides that “[i]f a person is found not guilty only by reason of
insanity at the time of the offense charged, he shall be committed to a suitable facility
until such time as he is eligible for release pursuant to subsection (e).”
                                                                                 Page 4 of 11

Disorder, In Remission,” (2) “Posttraumatic Stress Disorder,” (3) “Polysubstance

Dependence, In Remission, In a Controlled Environment,” (4) “Obsessive-compulsive

Disorder, In Remission,” (5) “Antisocial Personality Disorder,” and (6) “Borderline

Personality Disorder.” J.A. at 133. Unlike the doctors at FCI Butner, staff at FMC

Butner concluded that “the results of Mr. Beatty’s psychological testing are not

consistent with someone suffering from a psychotic or Bipolar Disorder.” J.A. at 134.

They did acknowledge, however, that Beatty’s “manipulative, aggressive behavior [was]

consistent with Borderline Personality Disorder, which increases his risk for violent

behavior.” J.A. at 139. In conclusion, the FMC Butner evaluators opined as follows:

                [I]n his present state, Mr. Beatty’s condition does not place
               him at substantial risk of danger to another person or the
               property of another person. His current mental state is
               stable. He exhibited no hallmark psychotic symptoms during
               this evaluation and has not shown acute signs of PTSD
               [posttraumatic stress disorder] or OCD [obsessive-
               compulsive disorder] that would place him at risk. While he
               poses a chronic risk of criminal activity in general due to his
               maladaptive personality traits and substance abuse, there is
               no strong link between a mental illness and dangerous
               behavior. In the absence of symptoms over the last several
               months and no known violence or serious property damage
               in the community, it would be difficult to justify an opinion
               that his conditions contribute to a substantial risk toward
               others.

J.A. at 139.

       On February 4, 2003, the district court conducted a competency hearing

pursuant to 18 U.S.C. § 4243 to determine Beatty’s eligibility for release. Disturbed by

the inconsistencies between the FCI Butner and the FMC Butner reports, the judge

found that Beatty failed to show “by clear and convincing evidence that his

unconditional release would not create a substantial risk of bodily injury to another
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person or serious damage to property of another due to a present mental disease or

defect.” J.A. at 54. The district court also rejected FMC Butner’s conclusion that

release was appropriate, finding such a conclusion “not supported by the facts set forth

in the evaluation.” J.A. at 54. Concluding that further evaluation was necessary, the

judge sent Beatty to FMC Rochester, Minnesota, where he remained until April 29,

2003.

        On April 18, 2003, the medical staff at FMC Rochester issued a forensic report

recommending Beatty’s release under conditions, concluding that he may have a major

mental illness (Bipolar I Disorder) but that he was not currently symptomatic. The

doctors nonetheless opined that “due to his history of aggression, severe personality

pathology, substance dependance, and possible Bipolar I Disorder, Mr. Beatty’s

unconditional release could present a substantial risk of bodily injury to another person,

or serious damage to the property of another.” J.A. at 157. The staff also stated:

               It is clear that this individual has a high propensity for
               aggressive and violent behavior. Despite his current
               asymptomatic presentation, the panel agrees that Mr. Beatty
               is at high risk for future violence. Collateral information, his
               presentation at FMC Rochester, as well as psychological
               testing suggest he may have a major mental illness (i.e.,
               Bipolar I Disorder), but he is not currently symptomatic.
               However, as previously noted, Mr. Beatty has been on
               medication throughout most of his evaluation, so it is difficult
               to ascertain whether his asymptomatic presentation is due to
               treatment with medication or a lack of access to substances.
               We strongly feel the latter is more likely the case. The only
               way to clearly identify if there is a presence of mental illness
               is to closely monitor him for several months without
               medication and with no access to any illegal substances.

J.A. at 157.

        On July 23, 2003, the district court conducted a second competency hearing
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pursuant to 18 U.S.C. § 4243. At this second hearing, Beatty presented the staff

reports from both FMC Butner and FMC Rochester, noting all portions of those records

which indicated that Beatty no longer suffered from the symptoms of bipolar disease.

The single witness offered by either side was a guard at the local jail where Beatty was

held for several months prior to the hearing. This witness testified that Beatty had been

stable, had caused no problems for the authorities, and had not exhibited any violence

or unusual behaviors during that time, despite the fact that he ceased taking lithium in

April of 2003.

       The district court again concluded that Beatty failed to carry his burden of

proving by clear and convincing evidence that his release would not create a substantial

risk of bodily injury to another person or serious damage to the property of another due

to his present mental disease or defect. The district judge explained that he relied on

the FMC Rochester report only, having found the reports from Butner internally

inconsistent. The district judge found it significant that the Rochester panel concluded

that Beatty “has a high propensity for aggressive and violent behavior” and that

“[d]espite his current asymptomatic presentation...Mr. Beatty is at high risk for future

violence.” J.A. at 157. In his order again committing Beatty to the custody of the

Attorney General, the district judge wrote:

                 At best, [Beatty] has been “somewhat monitored” and that
                 intermittent monitoring indicates that he is presently
                 asymptomatic. However, this court, under these
                 circumstances, cannot merely focus on the fact that the
                 defendant presently has no symptoms and concomitantly
                 ignore the possibility or likelihood of an underlying
                 disease....It is still unclear from this latest report whether Mr.
                 Beatty’s history of substance abuse contributes to a possible
                 Bipolar I Disorder or whether the possible Bipolar I Disorder
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              contributes to the defendant’s use (and misuse) of illegal
              and legal drugs. Either way, violent criminal conduct
              ensues. The court will therefore order what the team of
              experts has recommended – that the defendant be “closely
              monitored” for several months without medication with no
              access to any illegal substances.

J.A. at 61.

       Consistent with the district court’s order entered July 31, 2003, Beatty was

committed to the custody of the Attorney General for treatment/evaluation under 18

U.S.C. § 4243(e). On August 4, 2003, Beatty filed his notice of appeal of the court’s

order committing him to the custody of the Attorney General.4

                                              II.

       This court reviews for clear error the district court’s finding of fact that Beatty’s

“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 U.S.C. §

4243(e). See, e.g., United States v. Gilgert, 314 F.3d 506, 512-513 (10th Cir. 2002).

"[R]eview under the 'clearly erroneous' standard is significantly deferential, requiring a

'definite and firm conviction that a mistake has been committed.' " Concrete Pipe &

Prods. of California, Inc. v. Constr. Laborers Pension Trust for Southern California, 508

U.S. 602, 623 (1993). If the district court's finding is "plausible in light of the record

viewed in its entirety," we may not reverse the district court's finding simply because we

"would have weighed the evidence differently." Anderson v. City of Bessemer City, 470



       4
         We learned at oral argument that Beatty has been released from custody since
this appeal was filed. Because Beatty was released on conditions, the violation of
which may cause him to be returned to custody, we do not find his appeal of the district
court’s order committing him to custody moot.
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U.S. 564, 574 (1985).

                                            III.

       An insanity acquittee, like Beatty, may be confined only as long as he is both

mentally ill and dangerous; however, an insanity acquittee is not entitled to be released

from custody until he can prove by clear and convincing evidence that he is no longer

suffering from a mental disease or defect, or that, although he suffers from a mental

disease or defect, he can be released under conditions that would eliminate his

dangerous propensities. Foucha v. Louisiana, 504 U.S. 71, 77 (1992); United States v.

Murdoch, 98 F.3d 472, 476 (9th Cir. 1996), cert. denied, 521 U.S. 1122 (1997). If an

insanity acquittee has dangerous propensities, but such propensities are not the result

of a mental disease or defect, continued confinement is not justified under section

4243. Foucha, 71 U.S. at 77.

       Beatty first argues that the district judge erred when he failed to release him after

the first section 4243 hearing held on February 4, 2003. According to Beatty, the

district court was required to release him based on the forensic report prepared by FMC

Butner psychologists, a report that was purportedly “devoid of any findings that Mr.

Beatty suffered from a mental disease or defect.” Appellant’s Br. at 8. Beatty suggests

(1) that the district judge should not have considered the earlier FCI Butner report,

which included a diagnosis of Bipolar I Disorder; (2) that he could not consider the

personality disorders diagnosed by the doctors at FMC Butner to be the equivalent of

mental diseases or defects; and (3) that, in effect, he was required to follow the FMC

Butner psychologists’ recommendation for conditional release. We reject all such

suggestions.
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       Given the “awesome responsibility to the public to ensure that a clinical patient’s

release is safe,” United States v. Clark, 893 F.2d 1277, 1282 (11th Cir.), cert. denied,

494 U.S. 1090 (1990), a trial judge is “entitled to consider the risk of dangerousness in

light of [the patient’s] entire behavioral and psychological profile, not just its most recent

manifestation.” United States v. Williams, 299 F.3d 673, 677 (8th Cir. 2002); see also

United States v. Evanoff, 10 F.3d 559, 563 (8th Cir.1993) (stating that "the recency or

remoteness of any particular activity simply affects the weight the court will give to that

particular evidence"). The judge, moreover, need not blindly follow the

recommendations of the medical experts but must assess the credibility of the medical

evidence and must assign it only such weight as it deserves. See, e.g., United States

v. Bilyk, 949 F.2d 259, 261 (8th Cir.1991) (stating that “the district court may reject

experts' conclusions when their reasoning supports different results").

       In this case, on February 4, 2003, the district court had before him a man who,

on October 24, 2002, pleaded not guilty only by reason of insanity. By so pleading,

Beatty admitted that at the time of the offense, February 5, 2002, he was unable to

appreciate the nature and quality or the wrongfulness of his acts “as a result of a severe

mental disease or defect.” 18 U.S.C. § 17(a) (emphasis added). Also before the

district court on February 4, 2003, were the forensic reports from FCI Butner, dated May

30, 2002, and FMC Butner, dated January 7, 2003, both of which reports the trial court

was permitted to consider. Doctors at FCI Butner diagnosed Beatty with Post-traumatic

Stress Disorder, Psychotic Disorder Not otherwise Specified, and Bipolar I Disorder,

Mixed, In Partial Remission. FCI Butner doctors concluded that Beatty’s “history of

PTSD, Bipolar I Disorder, and psychotic symptoms have [sic] been a longstanding
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problem, irregardless of substance abuse.” J.A. at 118. In contrast to FCI Butner

doctors, FMC Butner doctors concluded that “Mr. Beatty’s psychological testing [was]

not consistent with someone suffering from a psychotic or Bipolar Disorder.” J.A. at

134. The FMC doctors acknowledged, however, that “[identifying] Mr. Beatty’s true

diagnoses ha[d] been difficult,” and they noted that Beatty had been diagnosed at

various times with a number of different disorders, including Bipolar Disorder.

Furthermore, while ruling out Bipolar I Disorder, the FMC doctors diagnosed Beatty with

Posttraumatic Stress Disorder, Antisocial Personality Disorder, Borderline Personality

Disorder, and a number of other disorders that, in the controlled environment of FMC

Butner, the doctors found to be in remission. While FMC doctors opined that Beatty

was then medically stable, they stated that Beatty “has demonstrated a pattern of

manipulative, aggressive behavior consistent with Borderline Personality Disorder,

which increases his risk for violent behavior.” J.A. at 139. Given all of the evidence

before the district court on February 4, 2003, we find no error in the trial court's

determination that the evidence presented at that first hearing failed to prove clearly

and convincingly that Beatty was entitled to release under section 4243.

       Beatty next argues that, once the psychologists at FMC Rochester submitted

their forensic report, the district court still had insufficient evidence to further confine

Beatty. Beatty maintains that the Rochester doctors failed to find that he suffered from

a mental disease or defect or that he posed anything more than a moderate risk of

dangerousness. To be sure, the Rochester doctors reported their disagreement with

the FCI Butner clinical formulation that resulted in Beatty’s insanity plea. They

concluded that Beatty’s bank robbery was less likely the result of a genuine bipolar or
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psychotic disorder and more likely the result of volitional drug use. While they could not

rule out a bipolar or psychotic disorder, the Rochester staff concluded that the disorders

most accurately capturing Beatty’s presentation were “Antisocial Personality Disorder

(severe, with psychopathic features)” and “Narcissistic Personality Disorder.” J.A. at

154. Importantly, the Rochester doctors reported that “Mr. Beatty is at high risk for

future violence.” J.A. at 157. In concluding their report, the Rochester panel stated:

              The panel is clearly convinced that a combination of severe
              personality pathology and substance use contributes to Mr.
              Beatty’s history of aggressive and maladaptive behavior.
              Bipolar I Disorder, which we consider a severe mental
              illness, could not be ruled out. Mr. Beatty has demonstrated
              sufficient psychiatric stability over the course of several
              months, but appears to require close monitoring to ensure
              continued cooperation with any treatment recommendations.
              In our opinion, due to his history of aggression, severe
              personality pathology, substance dependance, and possible
              Bipolar I Disorder, Mr. Beatty’s unconditional release could
              present a substantial risk of bodily injury to another person,
              or serious damage to the property of another.

Id.

       With the Rochester forensic report before it, the district court again found that

Beatty failed to satisfy his burden of proving by clear and convincing evidence that he

was entitled to be released. We find no clear error in the district court’s finding.

Certainly, the district court’s finding was “plausible in light of the [entire] record."

Anderson, 470 U.S. at 574. Lacking “a definite and firm conviction that a mistake has

been committed,” id., we AFFIRM.
