                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-2593
                                    ___________

United States of America,               *
                                        *
            Petitioner - Appellee,      *
                                        * Appeal from the United States
       v.                               * District Court for the
                                        * District of Minnesota.
Phillip LeClair,                        *
                                        *
            Respondent - Appellant. *
                                   ___________

                              Submitted: May 14, 2003
                                 Filed: August 5, 2003
                                  ___________

Before LOKEN, Chief Judge, BRIGHT, Circuit Judge, and SMITH CAMP1, District
      Judge.
                              ___________

BRIGHT, Circuit Judge.

      Phillip LeClair appeals the district court's2 order committing him to the custody
of the Attorney General because he was found to suffer from a mental disease or


      1
       The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska, sitting by designation.
      2
       The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota, adopting the recommendation of the Honorable Arthur J.
Boylan, United States Magistrate Judge for the District of Minnesota.
defect posing a substantial risk of either bodily injury to another person or serious
damage to the property of another. 18 U.S.C. § 4246. We affirm.

I.    BACKGROUND

       On July 12, 2000, police arrested LeClair and charged him with assault and
battery with a dangerous weapon. While visiting his parents, LeClair reportedly hit
an appliance repairman over the head with either an axe or a log splitter without
apparent provocation. LeClair exhibited signs of hallucinations. He was referred to
the Federal Medical Center in Springfield, Missouri for a competency and insanity
evaluation. LeClair's evaluation team believed he presented a danger due to his
mental illness and that he probably was insane at the time of the assault.

       On September 25, 2000, the United States District Court for the Western
District of Oklahoma found LeClair incompetent to stand trial and ordered him
committed for treatment and evaluation for 120 days. LeClair was then sent to the
Federal Medical Center in Rochester, Minnesota (FMC-Rochester) for restoration of
competency. LeClair was involuntarily medicated. After 120 days, the district court
determined LeClair remained incompetent and ordered him to remain in treatment for
an additional 120 days.

       In July 2001, LeClair began to take his medications voluntarily. In mid-July
2001, Dr. Daniel Carlson, a clinical psychologist at FMC-Rochester, concluded
LeClair may be competent to stand trial. On August 29, 2001, the United States
District Court for the Western District of Oklahoma found that LeClair remained
incompetent to stand trial and ordered him committed for a determination of whether
he is mentally ill and would present a substantial risk on release. 18 U.S.C. § 4246.
LeClair returned to FMC-Rochester. In October 2001, a risk assessment panel at
FMC-Rochester found LeClair still exhibited a significant amount of delusional
thinking.

                                         -2-
       In the United States District Court for the District of Minnesota, the
government filed a petition to determine the condition of an imprisoned person due
for release on December 17, 2001. On March 5, 2002, a magistrate judge held a
hearing at FMC-Rochester. Dr. Carlson testified that LeClair suffers from mental
illness, specifically undifferentiated schizophrenia, alcohol and inhalant dependence,
and borderline intellectual functioning. Dr. Carlson testified that LeClair
demonstrated the following symptoms: paranoid, somatic, and grandiose delusions;
thought disorders; auditory hallucinations; and extreme social isolation. Dr. Carlson
evaluated LeClair's prognosis for recovery as very poor. Dr. Carlson opined that
LeClair would pose a substantial risk of harm if released based on certain historical
risk factors for predicting future dangerousness.

       Pam Young, a social worker, testified that she had unsuccessfully attempted to
find suitable state inpatient placement for LeClair in Oklahoma. LeClair testified
briefly on his own behalf. LeClair did not call any expert witnesses to contradict Dr.
Carlson's opinion.

       The magistrate judge concluded that the government had established, by clear
and convincing evidence, LeClair was mentally ill and dangerous and no suitable
state placement was available at the time. The magistrate judge recommended
LeClair be committed under § 4246(d). After hearing objections, the district court
adopted the magistrate judge's recommendation.

II.   DISCUSSION

      Under § 4246(d), a person may be committed to the custody of the Attorney
General, if the district court determines: (1) the person presently suffers from a
mental disease or defect; (2) the person's release would create a substantial risk of
bodily injury to another person or serious damage to the property of another; and (3)



                                         -3-
no available, suitable state placement exists. 18 U.S.C. § 4246(d).3 LeClair argues
that the government failed to meet its burden of establishing dangerousness by clear
and convincing evidence. We review the district court's finding of dangerousness for
clear error. United States v. Ecker, 30 F.3d 966, 970 (8th Cir. 1994).

      Our review of the hearing testimony and of the written record, leads us to
conclude that the government presented adequate proof to support, by clear and
convincing evidence, that LeClair was mentally ill and dangerous. LeClair argues


      3
          Section 4246(d) states:

          (d) Determination and disposition.--If, after the hearing, the court
      finds by clear and convincing evidence that the person is presently
      suffering from a mental disease or defect as a result of which his release
      would create a substantial risk of bodily injury to another person or
      serious damage to property of another, the court shall commit the person
      to the custody of the Attorney General. The Attorney General shall
      release the person to the appropriate official of the State in which the
      person is domiciled or was tried if such State will assume responsibility
      for his custody, care, and treatment. The Attorney General shall make all
      reasonable efforts to cause such a State to assume such responsibility.
      If, notwithstanding such efforts, neither such State will assume such
      responsibility, the Attorney General shall hospitalize the person for
      treatment in a suitable facility, until--
             (1) such a State will assume such responsibility; or
             (2) the person's mental condition is such that his release, or his
          conditional release under a prescribed regimen of medical,
          psychiatric, or psychological care or treatment would not create
          a substantial risk of bodily injury to another person or serious
          damage to property of another;
      whichever is earlier. The Attorney General shall continue periodically
      to exert all reasonable efforts to cause such a State to assume such
      responsibility for the person's custody, care, and treatment.

18 U.S.C. § 4246.

                                         -4-
that only an uncorroborated criminal report supports the dangerousness finding and
that the report contains double and triple hearsay. Andrew Willey, a Bureau of Indian
Affairs Criminal Investigator,4 filed a report describing the assault in detail, and the
court received the report without objection. Willey based part of his report on
statements LeClair's parents provided to other investigating officers.

       LeClair argues that the statements are unreliable because the statements are
inconsistent regarding whether LeClair used an axe or a log splitter. While the report
does contain matters that are hearsay, it does not preclude Dr. Carlson from relying
on it in reaching his conclusion. The facts or data that form the basis for an expert
opinion "need not be admissible in evidence" in order for the expert's opinion to be
admitted so long as the evidence is a type reasonably relied on by the experts in the
field. Fed. R. Evid. 703. In addition to the report, the victim, in a handwritten letter,
explained the assault occurred without provocation.

        LeClair next argues that the government did not provide enough evidence to
show that he would be dangerous if released, because the other factors Dr. Carlson
relied on to make his dangerousness finding are insufficient and he has had only one
aggressive act, the assault. While Dr. Carlson admitted on cross-examination that
LeClair has not shown any aggressive behavior while in treatment, Dr. Carlson
testified that a variety of factors weighed into his dangerousness finding, including
the underlying assault. Overt acts of violence are not required to prove
dangerousness. United States v. Steil, 916 F.2d 485, 487-88 (8th Cir. 1990);
see also Ecker, 30 F.3d at 970 (holding where last assault occurred ten years ago and
no assault in three years of confinement did not require a conclusion of not
dangerous).




      4
          The assault occurred on Ponca Indian Tribe of Oklahoma land.

                                          -5-
        Dr. Carlson in forming his opinion relied on more than just LeClair's assault
of the repairman. As stated previously, Dr. Carlson noted other clinical factors which
suggest LeClair may be dangerous on release including: undisputed, long history of
alcohol and inhalant abuse; extreme paranoia and grandiose delusions; LeClair
demonstrated little insight into his mental illness and need for treatment; no assurance
of compliance with treatment outside a structured setting; potential access to
weapons; and lack of external environmental controls on release. Dr. Carlson based
his expert opinion on more than the assault and sufficiently established evidence of
LeClair's future dangerousness. LeClair did not present any contradictory evidence
to show Dr. Carlson erred in forming his opinion on LeClair's dangerousness.

       Under these circumstances, we cannot say that the district court clearly erred
in determining the government failed to present clear and convincing evidence of
LeClair's dangerousness due to his mental illness. We note, however, that the
Attorney General must continue efforts to place LeClair in a state facility in
Oklahoma and that while confined LeClair shall receive treatment which may lead to
his release or conditional release. 18 U.S.C. § 4246(d)-(e).

III.   CONCLUSION

       Accordingly, we affirm the judgment of the district court.

       A true copy.

             Attest:

                      CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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