                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-3-2006

USA v. Stewart
Precedential or Non-Precedential: Precedential

Docket No. 05-2732




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                                           PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT



                        No. 05-2732



             UNITED STATES OF AMERICA

                              v.

                  ANTHONY STEWART,
                              Appellant



       On Appeal from the United States District Court
              for the District of New Jersey
               D.C. Criminal No. 04-cr-772
              (Honorable William H. Walls)



               Argued April 26, 2006
          Before: SCIRICA, Chief Judge,
   NYGAARD, Circuit Judge, and YOHN * , District Judge


   *
    Hon. William H. Yohn Jr., United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
                    (Filed: July 3, 2006 )

ANDREA D. BERGMAN, ESQUIRE (ARGUED)
Office of the Federal Public Defendant
22 South Clinton Avenue
Station Plaza #4, 4th Floor
Trenton, New Jersey 08609
       Counsel for Appellant

CAROLINE A. SADLOWSKI, ESQUIRE (ARGUED)
GEORGE S. LEONE, ESQUIRE
Office of United States Attorney
970 Broad Street, Room 700
Newark, New Jersey 07102
       Counsel for Appellee



                OPINION OF THE COURT



YOHN, District Judge.

       In 2004, Anthony Stewart was found not guilty by reason
of insanity for randomly stabbing a post-office customer in
Harrison, New Jersey. At a subsequent hearing, the District
Court committed Stewart to the custody of the United States
Attorney General because Stewart failed to prove by clear and
convincing evidence that his release into the community “would

                              2
not create a substantial risk of bodily injury to another person or
serious damage to the property of another” under 18 U.S.C. §
4342(e). Stewart appeals, contending that the District Court
erred in denying his release. For the reasons stated below, we
will affirm.

                                I.

        Born in 1961, Stewart’s adult life has been punctuated by
a history of psychiatric illness and criminal behavior. Although
Stewart obtained a General Education Degree after leaving high
school in the eleventh grade, Stewart began to have problems
with the law at the age of twenty when he was convicted in state
court of possession of stolen property. The record reflects that
Stewart’s mental health also began to deteriorate in his twenties,
resulting in several psychiatric hospitalizations for
schizophrenia. These problems corresponded with a gradual
escalation in Stewart’s criminal behavior, from shoplifting and
resisting arrest to larceny and burglary. Although Stewart
received antipsychotic medication while hospitalized or
incarcerated, Stewart typically did not comply with his
medication regimen postrelease.

       A.     The Underlying Offense & Criminal Trial

       On April 29, 1999, Stewart was in a Harrison, New
Jersey post office when he randomly approached customer
Elizabeth Higgins from behind and stabbed her in the back of
the head with a Leatherman blade. Stewart then calmly turned
around and walked out. Higgins suffered a 10-centimeter

                                3
laceration to the lower back of her head. Stewart was
apprehended that same day a short distance from the post office.

        Stewart was initially charged in Hudson County Superior
Court and detained at various facilities for over a year. He was
transferred to federal custody on June 12, 2000, and charged
with knowingly committing an assault resulting in serious bodily
injury within the territorial jurisdiction of the United States, in
violation of 18 U.S.C. § 113(a)(6) and 2. Stewart was
temporarily committed for a mental health evaluation pursuant
to 18 U.S.C. § 4241(b).1 Evaluations by mental health
professionals concluded that Stewart was not competent to stand
trial pursuant to 18 U.S.C. § 4241(d). As a result, Stewart was
committed to the Attorney General's custody on January 17,
2001 pursuant to 18 U.S.C. § 4241(d)(1).2



   1
    Under 18 U.S.C. § 4241(b), prior to a hearing to determine
competency before trial, “the court may order that a psychiatric
or psychological examination of the defendant be conducted,
and that a psychiatric or psychological report be filed with the
court.”
   2
       18 U.S.C. § 4241(d) provides that:
          If, after the hearing, the court finds by a
          preponderance of the evidence that the defendant
          is presently suffering from a mental disease or
          defect rendering him mentally incompetent to the
          extent that he is unable to understand the nature

                                 4
       After approximately six months of treatment at Federal
Medical Center (“FMC”) Devens in Massachusetts, Stewart was
evaluated by Thomas Patenaude, Ph.D., a forensic psychologist
at FMC Devens. In accordance with that evaluation, on
September 4, 2001, Stewart was found competent to stand trial.
However, Stewart was released to Passaic County Jail, where his
mental state again deteriorated. In February 2002, Stewart was
determined to be incompetent to stand trial and recommitted to
FMC Devens.

        On July 29, 2002, the Court ordered a psychiatric
examination to determine whether Stewart suffered from mental
illness at the time of the April 1999 offense pursuant to 18
U.S.C. § 4242.3 Dr. Patenaude and Dr. Catherine M. Barber,



       and consequences of the proceedings against him
       or to assist properly in his defense, the court shall
       commit the defendant to the custody of the
       Attorney General. The Attorney General shall
       hospitalize the defendant for treatment in a
       suitable facility . . . 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 trial to proceed.
   3
    18 U.S.C. § 4242(a) states that if the defendant intends to
rely on the defense of insanity, the court must order “a

                                5
Stewart's retained psychologist, both concluded with a
reasonable degree of psychological certainty that at the time of
the offense Stewart was suffering from severe mental disease
and, as a result, was unable to appreciate the nature, quality, and
wrongfulness of his actions. On October 24, 2004, a stipulated
fact trial was conducted by the District Court and Stewart was
found not guilty by reason of insanity pursuant to 18 U.S.C. §
4242(b)(3).

       B.     Risk Assessment Panel Report

      The Court subsequently ordered a psychiatric evaluation
of Stewart by a panel of medical personnel at FMC Devens,
pursuant to 18 U.S.C. §§ 4243(a), (b), and 4247(b).4 The Risk


psychiatric or psychological examination of the defendant be
conducted, and that a psychiatric or psychological report be filed
with the court, pursuant to the provisions of section 4247(b) and
(c).” Sections 4247(b) and (c) provide the required standards
for psychological examinations. As is the case here, if an
examination is conducted pursuant to § 4242, the examiner must
determine “whether the person was insane at the time of the
offense charged.” 18 U.S.C. § 4247(c)(4)(B).
        4
         18 U.S.C. § 4243 sets out the requirements for
hospitalization of a person found not guilty by reason of insanity
at the time of the offense charged. If a person is found not
guilty by reason of insanity, the court must hold a hearing to
determine whether the individual must be committed to a

                                6
Assessment Panel Report, filed on December 30, 2004,
examined Stewart’s psychiatric and criminal history, his
treatment at FMC Devens, and his future risk of violent
recidivism. According to the panel, Stewart suffers from
disorganized personality paranoid schizophrenia, and can exhibit
“grandiosity [and] hyper-religiosity, possibly of delusional
proportions.” Appellant’s App. vol. II, at 27 (Risk Assessment
Panel Report, Nov, 30, 2004). During one examination, for
example, Stewart stated “he is ‘Allah’ and that he is the most
gracious, most compassionate, and most worthy.” Id.
Furthermore, the panel found that if improperly medicated,
Stewart’s mental illness can impact and impair his judgment, as
demonstrated by his past criminal history and acts of violence.
For example, while at FMC Devens, Stewart assaulted a
Correctional Officer and attempted to assault the Chief
Psychiatrist on November 14, 2002.           However, Stewart
“responded well to treatment,” and after an increase in his
medication, the panel reported he committed no further
violence. Id. Stewart advanced through the mental health unit
system and was eventually able to live in the least restrictive
setting. The panel found that in while in the highly structured
prison environment, Stewart was compliant with his medication,



suitable facility until he is eligible for release pursuant to 18
U.S.C. § 4243(e). 18 U.S.C. § 4243(a). Prior to the hearing, the
court must order a psychiatric or psychological examination of
the defendant. 18 U.S.C. § 4243(b).

                               7
attended all of his psychiatric appointments, and appeared “to be
at his baseline.” Id. at 29.

        The panel also conducted a series of psychological
evaluations to determine Stewart’s risk for future violent
behavior. The results indicated Stewart was at a “moderate risk
for violent behavior,” with a 17% chance he will engage in
future acts of violence within the next seven years, and a 31%
chance he will engage in future acts of violence within the next
ten years. Id. at 30-31. According to the report, Stewart’s
history of violence, his serious mental illness, and his limited
insight into his mental illness increased his risk for future
violence, “especially if he becomes noncompliant in taking his
prescribed psychotropic medication.” Id. However, the panel
concluded that if Stewart remained “properly medicated and in
a structured and supervised environment, he is not a dangerous
individual.” Id. at 32-33.

       C.     The 18 U.S.C. § 4243 Hearing

       On Stewart’s motion, a hearing pursuant to 18 U.S.C. §
4243(c) was conducted on May 3, 2005 to determine whether he
should be released from custody. In accordance with 18 U.S.C.
§ 4243(d), Stewart had “the 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 a present mental




                               8
disease or defect.” 5 If Stewart was successful, both parties
agreed that Stewart’s release was subject to no court-imposed
conditions whatsoever, because the statute does not permit the
district court to order a conditional release at a § 4243(c)

   5
     At a § 4243(c) hearing, a person, found not guilty only by
reason of insanity of an offense involving bodily injury to
another person, “has the 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 a present mental
disease or defect.” 28 U.S.C. § 4243(d). If the court finds such
a showing has not been made, the court must commit the
individual to the custody of the Attorney General for
hospitalization in an appropriate federal–or, where available,
state–facility until the individual’s medical condition is such that
his release, with or without conditions, would not create a
substantial risk of bodily injury to another. 18 U.S.C. § 4243(e).
The director of the facility at which the individual is
hospitalized is responsible for annual reviews of the individual’s
need for hospitalization, and a certification from the director that
release is appropriate may trigger release at any time after
commitment. 18 U.S.C. § 4243(f). The court must then order
the person discharged or, on motion of the government, hold a
hearing and determine whether the standard for release is met.
18 U.S.C. § 4243(f). Likewise, after 180 days, counsel for the
hospitalized individual may request a hearing regarding the
individual’s eligibility for release. 18 U.S.C. § 4247(h).

                                 9
hearing. Under § 4243(e), which governs the disposition of a §
4243(c) hearing, a district court is only granted authority to
either commit the defendant or release him unconditionally.6

   6
    While § 4243(f) does authorize the district court to order a
conditional release, that subsection is implicated only after an
individual has been committed and hospitalized pursuant to §
4243(e). In United States v. Baker, the Fourth Circuit aptly
summarized the difference between the two sections:
       Subsection (e) is not in any way an implicit grant
       of discretionary authority to the district court to
       order a conditional release even after a finding
       that the defendant does not pose the risk identified
       by the statute. Rather, the subsection directs the
       court to commit the insanity acquittee to the
       custody of the Attorney General should he fail to
       meet the burden required to justify release. In
       contrast, subsection (f), which by its terms applies
       only to insanity acquittees who have been
       hospitalized pursuant to an earlier subsection (e)
       hearing and finding, does explicitly provide for
       the third alternative to full release and continued
       commitment -- conditional release. The contrast
       between the express language of subsections (e)
       and (f) clearly demonstrates that Congress knew
       how to authorize conditional release of an insanity
       acquittee when it so desired. The absence of such
       language from subsection (e), therefore, is

                              10
United States v. Baker, 155 F.3d 392, 394-95 (4th Cir. 1998).

        Stewart presented testimony from three witnesses: Dr.
Dennis Becotte, Chief Forensic Psychologist at FMC Devens,
Cheryl Tolentino, a clinical team leader for the Union County
Integrated Case Management Services (“ICMS”),7 and Wanda
McNeil, Stewart’s cousin. Becotte testified that while Stewart
had improved at FMC Devens, Stewart’s risk of future violent
behavior was critically dependent on Stewart’s medication
regimen and living environment. Becotte stated that Stewart’s
stability had improved over the past two and a half years and
that Stewart had “recently” acknowledged his mental illness and



      compelling evidence of an absence of
      corresponding authority. If further evidence of
      Congress’ intent in this section were needed, it is
      provided by the plain text of subsection (g), which
      sets forth the procedures for the revocation of
      conditional discharges, and expressly references
      conditional release under subsection (f) but makes
      no reference at all to such a qualified release
      under subsection (e).
155 F.3d at 395 (citation omitted).
    7
     According to Tolentino’s testimony, ICMS is a referral
program that assists individuals with mental illness in finding
social, recreational, psychiatric, and medical services in Union
County, New Jersey.

                              11
his need to stay on medication. Becotte also testified that
Stewart’s prognosis was good, his moderate risk of violent
recidivism was relatively positive, and he currently did not pose
a substantial risk of danger to the public. However, Becotte
clearly expressed that Stewart’s medication regimen was crucial
to his stability. Without taking his required medication, Becotte
testified that Stewart’s risk of engaging in violent behavior
substantially increased. Furthermore, Stewart’s history of
postrelease medication noncompliance indicated that Stewart
needed a structured and supervised environment to give him
“the best chance of success.” Appellant’s App. vol. II, at 76 (§
4243(c) Hearing Tr., May 3, 2005). According to Becotte, this
environment would ensure that Stewart received his medication
biweekly, attended weekly meetings with mental health
professionals who would monitor his illness, and participated in
ongoing counseling therapy. This type of oversight was
available through a community outpatient program, Becotte
concluded, but not possible if Stewart was living on his own.

       Because Stewart’s release under § 4243(e) would be
subject to no court-imposed conditions whatsoever, Stewart’s
attorney presented evidence that there would be “safeguards” in
place to provide Stewart with a structured and supervised
environment. Id. at 119. However, the witnesses’ testimony
raised doubts as to the level of structure and support these
resources would truly provide. While Tolentino testified that
ICMS could provide weekly mental health visits for Stewart,
arrange for his biweekly medications, and would make referrals


                               12
to other agencies as appropriate, Tolentino agreed that ICMS is
a completely voluntary program and Stewart could terminate its
services at any time. In addition, Tolentino admitted that ICMS
had not assessed Stewart, coordinated any plans for his release,
or discussed his release with personnel at FMC Devens.
Furthermore, while McNeil testified that she consented to letting
Stewart live in her home, that she is comfortable with his illness,
and that she would take the necessary steps to ensure Stewart
received adequate care, she admitted that she worked every day
from 8:30 a.m. to 5:00 p.m., during which time Stewart would
be entirely unsupervised. McNeil also agreed that she must
devote substantial attention to her four children, all of whom are
seventeen years of age or younger. Finally, although Becotte
stated that ICMS “looks like a very good service, assuming that
they will do it,” he admitted that he only learned about the ICMS
program from reading a brochure that morning. Id. at 74.
Neither he nor anyone on the panel ever talked with
representatives at ICMS or interviewed McNeil. Although he
was satisfied with Stewart’s plan because it “sounds like a
conditional release plan that we have engineered for many other
cases that have been successful,” Becotte admitted that
Stewart’s plan was “obviously not a typical condition of release
plan which we work on and present to the court. There is going
to be no oversight or supervision of Mr. Stewart if he is released
into the community and our involvement with the case would be
terminated.” Id. at 80-81, 61.




                                13
        At the conclusion of this hearing, the District Court
denied Stewart’s release pursuant to 18 U.S.C. § 4243(e). While
observing that Stewart was doing about as well as could be
expected given his mental illness, the Court found that Stewart’s
mental health evaluations indicated that he is still at a moderate
risk for violent behavior and that this risk increases if he is not
properly medicated. The Court determined that these factors,
coupled with Stewart’s only recent acknowledgment of his
illness, posed formidable obstacles to release. Stewart’s
proposed “safeguards,” according to the Court, did not eliminate
the danger he otherwise posed. The Court noted that McNeil’s
testimony revealed she could not provide any daytime
supervision and it was unknown what Stewart would do during
those hours. Nor did the Court have any information regarding
ICMS’s history, its track record, or the specific programs in
which Stewart would be enrolled upon his release. Rather, the
Court found that Stewart would undergo a drastic change from
the controlled conditions at FMC Devens to an environment
with little or no supervision and, consequently, he could
potentially decompensate and pose a great danger to other
people and property. Without demonstrating an adequate
release program, the Court found that Stewart had failed to
show, 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 and therefore denied
his release. Stewart now appeals.




                                14
                                II.

       As this is a case of first impression in this Circuit, we
begin by determining whether we have jurisdiction to hear this
appeal. Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 587 (3d Cir.
1999) (“We have an inherent obligation to ensure that we only
decide those cases for which there is a proper ground for
appellate jurisdiction.”). Pursuant to 28 U.S.C. § 1291, we have
jurisdiction over final orders of the district courts. A final order
“terminates the litigation between the parties on the merits of the
case and leaves nothing to be done but to enforce by execution
what has been determined.” Dotzel v. Ashbridge, 438 F.3d 320,
323 (3d Cir. 2006) (citing St. Louis, Iron Mountain & S. Ry. Co.
v. S. Express Co., 108 U.S. 24, 28-29 (1883)).

        During a § 4243(c) hearing, a district court determines
whether an individual, found not guilty solely by reason of
insanity, has proven his release does not create a substantial risk
of danger to society. Based on this fact-finding, the District
Court conclusively determines an individual’s present right to
liberty. 18 U.S.C. § 4243(e). We join the Fifth, Eighth, and
Eleventh Circuits and hold that a district court’s § 4243(e) order
committing an individual to the Attorney General’s custody after
his acquittal by reason of insanity is an appealable final order
under § 1291. United States v. Jackson, 19 F.3d 1003, 1004 n.1
(5th Cir. 1994); United States v. Clark, 893 F.2d 1277, 1280 n.3
(11th Cir. 1990); United States v. Wallace, 845 F.2d 1471, 1472
(8th Cir. 1988); see also 15B Charles Alan Wright, Arthur B.
Miller, Edward H. Cooper, Federal Practice and Procedure §

                                15
3918.7 (2d ed. 1992) (“An order committing the defendant to
the custody of the Attorney General following acquittal solely
by reason of insanity is an appealable final order.”).8

       We find this conclusion warranted because “most post
judgment orders are final decisions within the ambit of 28
U.S.C. § 1291 as long as the district court has completely
disposed of the matter.” Ohntrup v. Firearms Ctr., Inc., 802
F.2d 676, 678 (3d Cir. 1986) (quoting Sportmart, Inc. v.
Wolverine World Wide, Inc., 601 F.2d 313, 316 (7th Cir. 1979)).
Here, the judgment of acquittal solely by reason of insanity has
conclusively resolved the underlying criminal proceedings. See
Sattazahn v. Pennsylvania, 537 U.S. 101, 120 (2003) (a
judgment of acquittal conclusively resolves the trial proceedings
and constitutes a final judgment). Furthermore, the District
Court has completely disposed of the § 4243(e) commitment
matter. The fact that the District Court may subsequently hold
another hearing under §§ 4243(f) or 4247(h), and either
discharge or continue to hospitalize the individual, does not
render the initial § 4243(e) commitment order nonfinal. See
generally Reuters, Ltd. v. FCC, 781 F.2d 946, 947 (D.C. Cir.
1986) (stating that “final orders are not limited to the last order
issued in a proceeding,” but must “impose an obligation, deny
a right or fix some legal relationship”) (quotation omitted).


   8
    The Tenth Circuit has also assumed jurisdiction over such
appeals without explicitly addressing the issue. See United
States v. Gilgert, 314 F.3d 506, 508 (10th Cir. 2002).

                                16
Here, the outcome of these subsequent hearings is entirely
independent of and apart from the § 4243(e) commitment.
Rather, the commitment order -- specifically, the determination
that an individual’s release at the time of the commitment
hearing poses a substantial risk of danger -- immediately affects
the individual’s rights and is never reevaluated. “Nothing
further remains to be done in the district court and the
consequences of commitment require that appeal be available.”
Wright et al., supra § 3918.7; see generally Shoreham-Wading
River Cent. Sch. Dist. v. U.S. Nuclear Regulatory Comm’n, 931
F.2d 102, 105 (D.C. Cir. 1991) (finding an order that was
immediately enforceable and affected the rights of the parties
required a finding of finality, even if made in the course of
continuing proceedings). Therefore, this Court has jurisdiction
over this final order of commitment according to 28 U.S.C. §
1291.9

   9
     Appellee argues that the commitment order is not a final
order and is therefore only appealable under the collateral order
doctrine. The collateral order doctrine applies to “that small
class [of non-final orders] which finally determine claims of
right separable from, and collateral to, rights asserted in the
action, too important to be denied review and too independent
of the cause itself to require that appellate consideration be
deferred until the whole case is adjudicated.” Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949);
Dotzel, 438 F.3d at 323. As we have determined that the
commitment order is a final order subject to appeal, there is no

                               17
                                III.

          We are next confronted with the appropriate standard of
review to apply to the District Court’s order. Both parties agree
that the District Court’s order of commitment is reviewed for
clear error, and all the circuit courts that have considered the
issue -- including the Fifth, Eighth, Tenth, and Eleventh Circuits
-- have held that the clearly erroneous standard governs.
Gilgert, 314 F.3d at 512; United States v. Wattleton, 296 F.3d
1184, 1201 n.34 (11th Cir. 2002); United States v. Jackson, 19
F.3d 1003, 1006 (5th Cir. 1994); United States v. Steil, 916 F.2d
485, 488 (8th Cir. 1990). Under the clearly erroneous standard,
an appellate court can reverse only if, after reviewing the record,
it is left “with the definite and firm conviction that a mistake has
been committed.” United States v. Kikumura, 918 F.2d 1084,
1090 (3d Cir. 1990). “If the district court’s finding is ‘plausible
in light of the record viewed in its entirety,’ we must accept it,
even if the court would have evaluated the evidence differently
in the first instance.” Id. (quoting Anderson v. City of Bessemer
City, 470 U.S. 564, 573-74 (1985)).

        We agree with our sister circuits that a district court’s
commitment order under § 4243(e) is a finding of fact that can
be reversed only if clearly erroneous. In the situation most
apposite – determinations of a defendant’s competency to stand
trial – clear error is the governing standard. United States v.


need to determine whether the collateral order doctrine would be
applicable, if it were not a final order.

                                18
Jones, 336 F.3d 245, 256 (3d Cir. 2003) (citing United States v.
Leggett, 162 F.3d 237, 241 (3d Cir. 1998) (citation omitted));
see also Maggio v. Fulford, 462 U.S. 111, 117 (1983) (a
determination of competency is a factual conclusion entitled to
deference). Moreover, the principles of clear error review are
in accord with the deference due to a trial judge’s assessment of
whether the public needs protection from the danger posed by a
defendant’s mental illness. “Given that ‘it is impossible to
predict how long it will take for any given individual to recover
– or indeed whether he will ever recover,’ district courts
generally are accorded great latitude when determining whether
a mentally ill defendant is ready to be released.” United States
v. Jain, 174 F.3d 892, 898 (7th Cir. 1999) (quoting United States
v. Jones, 463 U.S. 354, 369 (1983)).

                                IV.

        On appeal, Stewart argues that the District Court
committed clear error because the evidence he presented at the
hearing clearly and convincingly established that his release
would not create a substantial risk of bodily injury to another
person or serious damage to property. However, our review of
the record in its entirety leads us to conclude that the trial judge
did not commit clear error (or even error) in ruling Stewart
failed to establish his entitlement to release.

      Stewart argues that the expert testimony incontrovertibly
supports his release. However, while the Risk Assessment Panel
and Dr. Becotte opined that Stewart did not pose a substantial


                                19
risk of danger to society and recommended release, all the
experts qualified this opinion with the caveat that Stewart
needed to be released into a structured and supervised
environment and remain medication compliant. But under §
4243(e), the District Court could only commit Stewart or release
him unconditionally, and could not impose these conditions, or
any other requirements, on his release. Baker, 155 F.3d at 394-
95. Moreover, Stewart failed to provide clear and convincing
evidence that his proposed plan would otherwise provide a
structured and supervised environment and an environment that
would help ensure his medication compliance. Stewart’s plan
provided no daytime supervision, his participation with ICMS
was entirely voluntary, it involved only weekly mental health
meetings, biweekly medication and referrals to other agencies,
and little evidence was presented on the success rate of ICMS or
its history. At the time of the hearing, ICMS had not even
reviewed his history with anyone at FMC Devens or proposed
a specific plan for his care.

       These factors, coupled with Stewart’s mental health and
criminal history and the difficult nature of his transition to
independent living, support the District Court’s finding. Stewart
has a long-standing mental health problem of fifteen years,
coupled with a postrelease history of medication noncompliance
and the commission of a violent crime and several property
crimes. Due to episodes of decompensation, Stewart was unable
to stand trial for more than three years. While Stewart had made
progress at FMC Devens, evidence suggested he had only


                               20
recently recognized the seriousness of his illness and become
compliant with the drug regimen. The District Court found that
given these circumstances, Stewart’s proposed safeguards were
inadequate to ensure his medication compliance, and
consequently, the safety of the public. If released under his
plan, Stewart would experience a drastic transition from a highly
controlled and supervised environment to almost complete
independence with all its attendant uncertainty and stress, a
transition that had proved problematic for him in the past.
While Stewart did not need to provide a “fail-proof release plan
including 24-hour supervision and a guarantee against
recidivism, ” Appellant Br. 31, there were just no assurances in
the record that Stewart would continue to take his medication
once released or that he would remain in a structured and
supervised environment. We therefore find no clear error in the
District Court’s determination that Stewart failed to prove, by
clear and convincing evidence, that his release did not pose a
substantial risk of bodily injury to another person or serious
damage to property.10

  10
     At oral argument, Stewart's counsel stated that Stewart has
recently requested a hearing before the district court for release
under §§ 4243(f) and 4247(h). Unlike § 4243(e), which only
grants the district court the authority to commit an individual or
release him unconditionally, § 4243(f) also provides the court
with the statutory authority to release an individual from his
commitment with conditions. In the case of a conditional
release, the court can release the defendant, “under a prescribed

                               21
                               V.

       For the reasons stated above, we will AFFIRM the
District Court’s Judgment and Commitment Order.




regime of medical, psychiatric, psychological care or treatment,”
can order his compliance with that regime “as an explicit
condition of release,” and, if he fails to comply, can revoke his
release and remand him to a suitable facility. 18 U.S.C. §§
4243(f), (g).

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