                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 21 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50158

                Plaintiff-Appellee,             D.C. No. 2:13-cr-00285-R-1

 v.
                                                MEMORANDUM*
CHRISTOPHER MCGRATH, AKA David
Powers,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                    Manuel L. Real, District Judge, Presiding

                             Submitted May 17, 2019**
                               Pasadena, California

Before: NGUYEN and OWENS, Circuit Judges, and BAYLSON,*** District
Judge.

      Christopher McGrath appeals from the district court’s order revoking his



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Michael M. Baylson, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
conditional release from commitment. This appeal arises from a 2013 trespassing

offense at Los Angeles International Airport, to which McGrath pled not guilty by

reason of insanity. As the parties are familiar with the facts, we do not recount

them here. We remand.

      The parties agree that, under 18 U.S.C. § 4243(d), McGrath bore the burden

to 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.” The district court erred by

applying a heightened burden of proof, requiring that McGrath “guarantee to the

Court that he’s not a danger.” Accordingly, we remand for the district court to

apply the correct preponderance standard in the first instance. See 18 U.S.C.

§ 4243(d).

      In addition, we instruct the Chief Judge of the Central District of California

to reassign this case to a different district judge on remand because “reassignment

is advisable to preserve the appearance of justice.” United States v. Wells, 879

F.3d 900, 938 (9th Cir. 2018) (citation omitted).

      REMANDED with instructions to reassign to a different district court judge.




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