
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 95-1898                                    UNITED STATES,                                      Appellee,                                          v.                     JOHN LEONARD ECKER, A/K/A LEONARD HOFFECKER,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Robert D. Richman, Assistant Federal Public Defender  (Minnesota),            _________________        with  whom   Scott  F.  Tilsen,  Assistant   Federal  Public  Defender                     _________________        (Minnesota),   and   Owen   S.   Walker,   Federal   Public   Defender                             __________________        (Massachusetts), were on brief for appellant.            Mary Elizabeth  Carmody,  Assistant United  States Attorney,  with            _______________________        whom  Donald  K.  Stern, United  States  Attorney,  was  on brief  for              _________________        appellee.                                 ____________________                                    March 8, 1996                                 ____________________                      STAHL, Circuit Judge.  Appellant John L. Ecker asks                      STAHL, Circuit Judge.                             _____________            us  to rule that the  federal indictment against  him must be            dismissed  because he  has  been found  incompetent to  stand            trial and, having been found dangerous, has been indefinitely            committed  to federal  custody.   The  district court  denied            Ecker's  motion to  dismiss the  indictment.   Ecker appeals.            Because neither the relevant statutes nor caselaw require the            dismissal of the indictment, we affirm.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      In   November  1989,  Ecker  was  indicted  in  the            District of  Massachusetts for possession  of a firearm  by a            felon in violation  of 18 U.S.C.   922(g).   Ecker has  prior            convictions for  assault with  a weapon, arson,  breaking and            entering, and burglary, and is therefore subject to the Armed            Career  Criminal Act,  18 U.S.C.    924(e); if  convicted, he            faces  a  mandatory minimum  prison  term  of fifteen  years.            After federal authorities  found that Ecker's  mental illness            rendered him incompetent to stand trial  and dangerous to the            public, he  was  committed to  the  custody of  the  Attorney            General  for hospitalization  under 18  U.S.C.    4246.   Now            Ecker seeks to dismiss the indictment charging him as a felon            in possession.            A.  Ecker's History in Federal Psychiatric Facilities            _____________________________________________________                                         -2-                                          2                      Ecker's history in  federal psychiatric  facilities            is  long and twisted;  full detail is  unnecessary to resolve            the  issue before  us, so  we summarize.   From  January 1990            through March  1993,  federal  authorities,  pursuant  to  18            U.S.C.   4241(d), conducted  seven competency evaluations  of            Ecker.  After five of these, Ecker was found incompetent, and            on  two occasions he was found competent.  Authorities at one            point reported that  Ecker "displayed excellent knowledge  of            the federal mental health statutes," and concerns were raised            that  his  mental  health  problems were  of  a  questionable            nature.     In  March  1993,  federal  authorities  concluded            "finally"  that Ecker was not competent for trial and that it            was unlikely  that he  would  regain competency  in the  near            future.                      The United States  District Court for the  District            of Massachusetts, where the  indictment was (and is) pending,            determined that there was no likelihood of  trial and ordered            the Federal  Medical Center  in  Rochester, Minnesota  ("FMC-            Rochester"),  to  determine  if   Ecker  was  dangerous   and            therefore subject to indefinite  commitment under 18 U.S.C.              4246.     The  director  of  FMC-Rochester   did  find  Ecker            dangerous, and the United States Attorney for the District of            Minnesota  accordingly  instituted commitment  proceedings in            the  United  States  District   Court  for  the  District  of            Minnesota.   In  October 1993,  the Minnesota  district court                                         -3-                                          3            ordered  Ecker  committed  to  the custody  of  the  Attorney            General  under section 4246, and the Court of Appeals for the            Eighth Circuit  affirmed.   United States  v. Ecker,  30 F.3d                                        _____________     _____            966, 971 (8th Cir.), cert. denied, 115 S. Ct. 679 (1994).                                 _____ ______                      In October  1994, the staff at  the Federal Medical            Center  in  Springfield, Missouri  ("FMC-Springfield"), where            Ecker  is currently  in custody,  filed an  annual  report of            Ecker's mental condition as required by 18  U.S.C.   4247(e).            The report  stated that Ecker  was "generally able  to answer            the  panel's  questions in  a  logical,  coherent, and  goal-            directed manner."  It went on, however, to conclude that "Mr.            Ecker  is  currently a  substantial  risk  to others  or  the            property  of  others  due  to  mental  illness."    The civil            commitment  statute,  18  U.S.C.     4246,  requires  Federal            authorities   to   place  Ecker   in  an   appropriate  state            institution  in his home  state, Massachusetts,  if possible.            Officials  at  FMC-Springfield,   however,  determined   that            Massachusetts would  not accept Ecker in  a state institution            because of the  pendency of  the federal  indictment.   Thus,            Ecker remains hospitalized at FMC-Springfield.            B.  The District Court Order on Ecker's Motion to Dismiss            _________________________________________________________                      In the district  court, Ecker advanced two  grounds            for dismissal  of the indictment.   First, he  contended that            the statute under which  he was committed, 18 U.S.C.    4246,            requires,  upon commitment, dismissal of pending charges upon                                         -4-                                          4            commitment.  Second,  he asserted  that the  pendency of  the            indictment interfered  with his purported right  to be placed            in a state institution, depriving Ecker of his constitutional            right to due process.                        The district court denied Ecker's motion to dismiss            the indictment,  holding that the commitment  statute did not            require dismissal  of the indictment, finding  no support for            Ecker's  statutory  argument in  the statute's  language, its            legislative history,  or in caselaw.  The court also rejected            Ecker's due  process argument, concluding  that "the  statute            cannot be fairly read to confer a liberty interest, protected            by  the  Due Process  Clause of  the  Fifth Amendment  of the            United  States Constitution,  in being  committed to  a state            institution rather  than a `suitable facility'  chosen by the            Attorney General."            C.  Ecker's Appeal            __________________                      Ecker  appeals the  district court's  order denying            his  motion to  dismiss  the indictment,  advancing only  the            statutory argument that  18 U.S.C.     4241 and 4246  require            dismissal.   Ecker has  abandoned the argument  he made below            that the pendency of the  indictment violates his due process            rights.   See United States v.  Zannino, 895 F.2d 1,  17 (1st                      ___ _____________     _______            Cir.)  (arguments  not  raised  squarely  are waived),  cert.                                                                    _____            denied, 494 U.S. 1082 (1990).            ______                                         -5-                                          5                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      A  district court's  resolution  of a  question  of            statutory  interpretation  engenders de  novo  review in  the                                                 __  ____            court  of appeals.  Riva v. Massachusetts, 61 F.3d 1003, 1007                                ____    _____________            (1st Cir. 1995).                      Ecker, at  the outset, concedes that  "[n]either 18            U.S.C.   42411 nor  18 U.S.C.   42462 addresses  what happens                                            ____________________            1.  Section  4241  provides  procedures for  evaluation  of a            defendant's competency  to stand trial.   If the  court finds            the  defendant incompetent  after an  psychiatric examination            and a hearing, the court commits the defendant to the custody            of  the   Attorney  General.    The   Attorney  General  then            hospitalizes  the  defendant  for   up  to  four  months  "to            determine whether there is  a substantial probability that in            the foreseeable future he will attain the  capacity to permit            the  trial  to  proceed."    The  Attorney  General  may also            hospitalize the defendant for an "additional reasonable time"            beyond  four   months  if  the  court   finds  a  substantial            probability  that  competency  will  be  regained.    If  the            defendant  remains  incompetent  at  the end  of  those  time            periods,  the  defendant   is  subject   to  commitment   for            dangerousness  under  18 U.S.C.     4246.   If  not committed            thereunder, the defendant is released.                        Section 4241 makes no  reference to the pendency or            dismissal of the indictment.            2.  Section   4246   provides   for   the    commitment   and            hospitalization  of  a dangerous  person  "whose  sentence is            about to expire,  or who has been committed to the custody of            the Attorney  General pursuant to section  4241(d) [i.e., due            to incompetency to stand trial], or against whom all criminal            charges have been dismissed solely for reasons related to the            mental  condition  of the  person."    Upon certification  of            dangerousness by  the director of the  hospital facility, the            court  conducts a hearing, and shall commit to the custody of            the Attorney General a  person "suffering from 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."  Such  commitment is            of indefinite  duration, but  the Attorney General  must make                                         -6-                                          6            to a pending indictment when a  defendant is determined under            section  4241 to be incompetent to stand trial and is subject            to indefinite  civil commitment  under section 4246."3   That            concession  is  virtually dispositive  of  Ecker's appeal  --            there  is nothing  in  the statute's  language that  requires            dismissal of a pending indictment.  The statutory  silence is            not surprising.   Congress, we have little doubt, intended to            leave the  decision about the disposition  of pending charges            to the case-by-case discretion of the prosecutors.            A.  Ecker's Arguments            _____________________                      Although  conceding  that  the  statute  is silent,            Ecker  argues that  the structure  of the  relevant statutes,            their  legislative  history,  and   the  caselaw  compel  the            conclusion that  Congress intended to require  dismissal of a            pending indictment upon commitment.  We disagree, and address            each of  Ecker's arguments  in turn,  explaining why we  find            them unpersuasive.                                            ____________________            reasonable  efforts place the person in  the custody and care            of the state in which the person is domiciled.                      Although  section  4246  recognizes  that  criminal            charges  may  be  dismissed  because  of  a  person's  mental            illness, there  is  nothing in  the language  of the  statute            requiring such dismissal.            3.  Nor do the statutes address the  pendency or dismissal of            an  indictment of  a  defendant  found long-term  incompetent            under  section 4241,  but not  found dangerous  under section            4246.                                         -7-                                          7                      First, Ecker asserts that section 4246 applies only                                  to individuals "who no longer realistically can be considered            to be awaiting  trial because there is  little possibility of            their  regaining  competency,"   quoting  United  States   v.                                                      ______________            Charters, 829 F.2d  479, 485 (4th Cir.  1987) (not addressing            ________            dismissal  of  indictment), reh'g,  863  F.2d  302 (4th  Cir.                                        _____            1988),  cert.  denied, 494  U.S.  1016  (1990).    From  that                    _____  ______            premise, Ecker concludes that "Congress plainly intended that            the liberty of such a person would be  restricted only by the            requirements  of  section  4246,  not  as  a  result  of  the            continued pendency of an indictment."                      That argument  is unconvincing.  Ecker's liberty is            not restricted by the pendency of the indictment, but  rather            by section 4246 (which  authorizes his hospitalization).  The            only  effect  that  the  pending indictment  has  on  Ecker's            "liberty"  results  from  a  Massachusetts  state policy4  of            refusing  to accept  mentally ill  federal detainees  who are            subject to a pending federal indictment.  We fail to see  how            that  state policy, or its effect on Ecker, can indicate that            Congress intended  section 4246  to require dismissal  of any            pending indictment.                                            ____________________            4.  The  record  and  the  parties' briefs  do  not  indicate            whether this "policy" is based on statute, regulation, or the            discretion  of state  officials.   The  district judge  below            assumed, without so finding,  that state officials refused to            accept Ecker, but the court based that assumption "on hearsay            and not on competent evidence."                                         -8-                                          8                      Ecker's  second  argument  is  that   there  is  no            statutory mechanism to revisit the issue of competency once a            defendant  is  committed  as  dangerous  under  section 4246.            While recognizing that  section 4247 requires  annual reports            on the "mental condition" of a person committed under section            4246, he asserts that  such reports address dangerousness and                                                        _____________            not  competency to  stand trial.   That  argument  finds some                 __________            support  in the October  1994 annual  report on  Ecker, which            concluded that he was  still dangerous without addressing his            competency for trial on the pending indictment.  Ecker argues            that nothing in this  statutory scheme suggests that Congress            envisioned further competency determinations once a defendant            is indefinitely  committed as  dangerous under  section 4246.            This "unexplained gap," he  contends, indicates that Congress            must  have  intended  that  a  pending  indictment  would  be            dismissed  once   a   defendant  has   been   committed   for            dangerousness.                      We  agree  that  the  statute  does  not  expressly            address the  reevaluation of trial competency  of a defendant            committed as dangerous under section 4246.  The statute does,            however, provide for annual  reports by the facility director            "concerning the mental condition of the person and containing            recommendations    for   the    need   for    his   continued            hospitalization."   18  U.S.C.    4247(e)(1)(B).   This broad            requirement of a report on "mental condition" would seemingly                                         -9-                                          9            allow the facility  director to  report to the  court that  a            defendant has regained competency.   Moreover, a defendant or            his  counsel may bring any relevant change in condition, or a            request  for  release, to  the  court's  attention through  a            motion for a hearing under section 4247(h).                      In  any  event,  it is  far  too  great  a leap  to            conclude  from this  asserted  shortcoming  in the  statutory            scheme that Congress intended to  require the dismissal of  a            pending indictment  once a  defendant has been  committed for            dangerousness.  Congress could plausibly have expected that a            prosecutor bent  on trying  a committed person  would file  a            motion   under  section   4241  for   a  new   evaluation  of            competency.5   On the other hand, the asserted "gap" might be            the result of simple oversight  or poor draftsmanship, due in            part,  perhaps,  to  an  expectation  that  prosecutors  will            usually  exercise their  discretion  to  dismiss  indictments            against persons committed under section 4246.  An appropriate            judicial response  to this statutory shortcoming  would be to            order further competency reevaluations if requested by either            the  government  or  a  defendant,  rather  than  a  judicial            rewriting  of   the  statute  to  require   dismissal  of  an            indictment that the prosecutor seeks to preserve.                                            ____________________            5.  Section  4241 provides  in  relevant part:  "At any  time            after the commencement  of a prosecution  for an offense  and            prior to  the sentencing of  the defendant, the  defendant or            the  attorney  for the  Government may  file  a motion  for a            hearing to determine the mental competency of the defendant."                                         -10-                                          10                      The  third  argument  advanced  by  Ecker  is  more            difficult to  decipher than  the preceding two.   He  asserts            that section  4246 was "clearly  designed" to deal  only with            persons  about  to  be  released from  the  federal  criminal            justice  system, and  therefore Congress  must  have intended            that  charges be dropped when a  defendant is committed under            section  4246.   Ecker  demonstrates this  "clear design"  by            pointing out  that  two of  the three  categories of  persons            covered  by section  4246 (those  whose sentence is  about to            expire and those against whom all charges have been dismissed            because  of   mental  illness)  are  no   longer  subject  to            punishment and  would be released  but for the  provisions of            section 4246.  Then  Ecker states that "it would  be strange,            indeed, to  include in the same  statute, without explanation            or separate  procedures, a group  of people still  subject to            indictment and trial."  It is more plausible, he argues, that            those defendants  subject to  section 4246 after  being found            incompetent  under section  4241  "would also  be subject  to            release due to the dismissal of the charges."                        While  it is  perhaps  odd that  the statute  lacks            express  procedures  for  reevaluating the  competency  of  a            person  committed under  section 4246, it  would be  far more            "strange"   for  Congress  to   have  intended   a  statutory            requirement that an indictment be dismissed automatically  on            commitment,   yet  never  mention  that  requirement  in  the                                         -11-                                          11            statute.   Again, all that  Ecker has done  is point  to some            ambiguities  in certain procedural  aspects of  section 4246,            and  then  attempt to  bootstrap  those  ambiguities into  an            implied   requirement  that  a  pending  indictment  must  be            dismissedwhenever thatstatute isinvoked. We arenot persuaded.                      As further support for  his third argument (that it            would  be  "strange" if  the  statute  did  not  require  the            dismissal  of  an  indictment),   Ecker  directs  us  to  the            statute's legislative history.  We are reluctant to take that            direction,  because a  court  "should resort  to  legislative            history . . . [only] when the words of a statute give rise to            ambiguity   or    when   they   lead   to   an   unreasonable            interpretation."   United States v. O'Neil, 11  F.3d 292, 297                               _____________    ______            (1st Cir.  1993).  The words of the statutes at issue here do            neither.   In  an  abundance  of caution,  however,  we  have            reviewed  the legislative history cited  by Ecker and find it            to  contain  nothing  that  would lead  us  to  conclude that            Congress intended  the statute to require,  sub silentio, the                                                        ___ ________            dismissal of pending charges.   See S. Rep. 225,  98th Cong.,                                            ___            2d Sess.  (1984), reprinted in 1984  U.S.C.C.A.N. 3182, 3404-                              _________ __            36.   As the Supreme Court remarked in construing the federal            civil commitment statute  that preceded  the current  section            4246,  "this is a case for applying the canon of construction            of  the  wag  who  said,  when  the  legislative  history  is                                         -12-                                          12            doubtful, go to  the statute."   Greenwood v. United  States,                                             _________    ______________            350 U.S. 366, 374 (1956).                      As a fourth argument, and  as support for the first            three,  Ecker  quotes the  Eighth  Circuit's  opinion in  his            earlier  appeal  of his  commitment.    In rejecting  Ecker's            argument that it was unreasonable to hold him for nearly four            years before  committing him  under section 4246,  the Eighth            Circuit stated that: "At all times, Ecker remained subject to            criminal process calling for  a mandatory minimum sentence of            fifteen years imprisonment.   He remained subject to possible                                          _______________________________            trial  until the final judicial determination of incompetency            _____________________________________________________________            on April 16, 1993."  Ecker, 30 F.3d at  969 (emphasis added).                                 _____            The  Eighth  Circuit, however,  was  not  concerned with  the            dismissal or validity of the indictment after Ecker's section            4246  commitment; the  issue  it faced  was  the duration  of            Ecker's  detention  for  determination  of  competency  under            section 4241, and whether that lengthy confinement  was a due            process  violation.   The  Eighth Circuit  had  no reason  to            consider whether  the indictment  remained valid after  Ecker            was  committed under  section 4246;  if the  quoted statement            addresses that question at all, it is mere dictum.                      Finally Ecker points out that  the executive branch            of the federal government is in a "peculiar position" because            section  4246  requires the  Attorney  General  to "make  all            reasonable efforts"  to place  Ecker in a  state institution,                                         -13-                                          13            but the United States Attorney in Massachusetts is preventing            that  placement by not  dropping the indictment.   Ecker adds            that  "the continued  validity  of the  indictment interferes            with defendant's  statutory right to state  placement."  This            argument invites a number of  obvious rejoinders.  First, the            government  has  the  discretion  to  solve  the  dilemma  by            dismissing the charges.  Second, the Attorney General is only            required to make "reasonable efforts" to place Ecker in state            care.  The Massachusetts  policy denying placement of persons            under federal  indictment prevents Ecker's  placement, and we            would  not  conclude  (nor  does  Ecker  argue)  that  it  is            "unreasonable" not to drop the charges in order to facilitate            placement.   Third, while the  statute imposes a  duty on the            Attorney General to attempt to place Ecker with the state, we            do not conclude that it endows Ecker with a "right"  to state            placement.                      None of  Ecker's  statutory arguments  persuade  us            that Congress  intended sections 4241 and 4246 to require sub                                                                      ___            silentio the dismissal of a pending indictment.            ________            B.  Caselaw            ___________                      Our conclusion  is not  altered by our  analysis of            the few  relevant cases.  The district  court's order denying            Ecker's motion  to dismiss the indictment  is consistent with            the Supreme  Court's decision in Greenwood  v. United States,                                             _________     _____________            350 U.S. 366 (1956).  The Court in Greenwood stated that "the                                               _________                                         -14-                                          14            pending  indictment  persists" even  after the  defendant has            been  found  unlikely  to  recover competency  and  has  been            committed as dangerous.  Id. at 375.                                     ___                      Although   Greenwood  was  not  decided  under  the                                 _________            current  statutory scheme,  we  believe that  the holding  is            equally  valid under the new scheme.  The prior statutes were            strikingly  similar  to  the   current  ones.    The  primary            difference  relevant to this  appeal is  that the  old scheme            authorized detention  of an incompetent  indefinitely, "until            the accused shall be mentally competent to stand trial."  Law            of  Sept. 7,  1949,  ch. 535,    4246,  63  Stat. 686  (1949)            (current version at 18  U.S.C.   4246).  The  present statute            authorizes  detention of  an incompetent  defendant only  for            four months,  and then for  an additional reasonable  time if            there  is  a  substantial  possibility that  he  will  regain            competency.  This limitation  on the detention of incompetent            defendants was dictated by Jackson v. Indiana,  406 U.S. 715,                                       _______    _______            738 (1972), which  struck down Indiana's  statute authorizing            indefinite commitment  of incompetent defendants who were not            dangerous as violative of due process.  See S. Rep. 225, 98th                                                    ___            Cong., 2d Sess. (1984),  reprinted in 1984 U.S.C.C.A.N. 3182,                                     _________ __            3418.   Thus, under the new scheme,  an incompetent defendant            must be released  after four months if  recovery is unlikely,            18 U.S.C.   4241(d), or else committed indefinitely  if found            dangerous,  18 U.S.C.     4246.   We  see nothing  about  the                                         -15-                                          15            statutory changes  required by Jackson v.  Indiana,6 406 U.S.                                           _______     _______            at  738, nor any other  change in the  statutory scheme, that            casts  doubt  on  Greenwood's  holding  that  the  indictment                              _________            survives  commitment, 350 U.S. at 375.  Nor does the pendency            of the  indictment beyond Ecker's commitment offend Jackson's                                                                _______            mandate  that a  permanently  incompetent  defendant must  be            released or else civilly committed.  See Jackson, 406 U.S. at                                                 ___ _______            738.                      Ecker attempts to advance his cause by misleadingly            quoting  a  recent  Ninth Circuit  case:  "The  fact that  an            indictment is  no  longer  in  place  is  irrelevant  to  the            governmental interests at stake:  `the control and  treatment            of  dangerous persons  within  the  federal criminal  justice            system who are  incompetent to stand trial.'"   United States                                                            _____________            v. Sahhar, 56 F.3d  1026, 1029 (9th Cir.), cert.  denied, 116               ______                                  _____  ______            S. Ct.  400  (1995).   Ecker  argues  that  the  governmental            interests  in his case, as in Sahhar, are fully vindicated by                                          ______                                            ____________________            6.  The Court stated in  Jackson v. Indiana that "[d]ismissal                                     _______    _______            of charges  against an  incompetent accused has  usually been            thought  to be  justified on  grounds not  squarely presented            here: particularly, the Sixth-Fourteenth Amendment right to a            speedy  trial,  or the  denial  of  due  process inherent  in            holding pending  criminal charges indefinitely over  the head            of one who will never have a chance to  prove his innocence."            406  U.S. at 740 (citing  as support only  one state decision            and two federal district court decisions).  The Jackson Court                                                            _______            did  not reach  the issue  of dismissal of  charges, however.            Id.    Ecker has  not advanced  either  of these  grounds for            ___            dismissal of his  indictment.  Moreover,  we will not,  based            solely on the quoted dictum in Jackson, attribute to Congress                                           _______            an  unspoken intent to  require that a  pending indictment be            dismissed.                                         -16-                                          16            section 4246,  rendering the  indictment irrelevant.   But in            Sahhar, the indictment was dismissed before the appellant was            ______                               ______            committed; the  issue was whether it  was unconstitutional to            commit a person  under section 4246  after detaining him  for            longer than  the maximum term  of imprisonment for  the crime            charged.  Id.  at 1028.   The  Ninth Circuit  held that  such                      ___            commitment was  constitutional given the federal  interest in            "control  and  treatment  of  dangerous  persons  within  the            federal criminal justice system"; the fact that an indictment            was no longer  in place  was "irrelevant"  to that  interest.            Id. at  1029.   The district  court had  erred in  "tying the            ___            continuing validity of  appellant's non-punitive section 4246            commitment  to  the  punitive   objectives  of  the  original            criminal charge."  Id.   In other words, once  the indictment                               ___            was  dismissed,  the only  remaining government  interest was            public safety, not the punishment of the offender.  In no way            did Sahhar involve the question whether an indictment must be                ______            dismissed when a person is committed under section 4246.                        Because  the  prosecutor  wishes  to  keep  Ecker's            indictment pending, the government  has a continuing punitive                                                                 ________            interest in Ecker.  That interest is not addressed by section            4246   commitment,  which  terminates  if  Ecker's  condition            improves.   Ecker's  out-of-context quotation  of  Sahhar  is                                                               ______            disingenuous and does not enlighten.                                         III.                                         III.                                         ____                                         -17-                                          17                                      CONCLUSION                                      CONCLUSION                                      __________                      The relevant statutes are silent as to dismissal of            a pending indictment upon commitment for dangerousness.  None            of Ecker's arguments persuade  us that Congress intended that            upon  commitment under  section 4246  any  pending indictment            must  be  dismissed.    The district  court's  order  denying            Ecker's motion to dismiss the indictment is affirmed.                                                        ________                                         -18-                                          18
