                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-1912
                                   ___________

United States of America                *
                                        *
                   Appellee,            *
                                        *
      v.                                * Appeal from the United States
                                        * District Court for the Western
Craig Belknap,                          * District of Missouri.
                                        *
                   Appellant.           * [UNPUBLISHED]
                                        *
                                   ___________

                           Submitted: January 15, 2002
                               Filed: January 24, 2002
                                  ___________

Before BOWMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                          ___________

PER CURIAM.

       As the expiration of Craig Belknap’s prison sentence approached, the warden
filed a certificate of mental disease and dangerousness and a petition to commit
Belknap involuntarily under 18 U.S.C. § 4246. After a hearing, the district court*
committed Belknap to the Attorney General’s custody, finding clear and convincing
evidence that due to a mental disease or defect, Belknap’s release from prison would



      *
       The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
pose a substantial risk of bodily injury to another or serious damage to another’s
property, and no suitable state placement was available. 18 U.S.C. § 4246(d).

      Section 4246(a) provides:
       If the director of a facility in which a person is hospitalized certifies that
      a person in the custody of the Bureau of Prisons whose sentence is about
      to expire . . . 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, and
      that suitable arrangements for State custody and care of the person are
      not available, he shall transmit the certificate to the clerk of the court for
      the district in which the person is confined. . . . A certificate filed under
      this subsection shall stay the release of the person pending completion
      of procedures contained in this section.

 The district court then holds a hearing to determine whether clear and convincing
evidence shows : (1) the prisoner has a mental disease or defect, (2) the prisoner
would be dangerous if released, and (3) there is no suitable state placement available.
 Id. § 4246(d); United States v. S.A., 129 F.3d 995, 1000 (8th Cir. 1997). If the
Government establishes these elements of proof, the prisoner is involuntarily
committed to the Attorney General’s custody. 18 U.S.C. § 4246(d).

       On appeal, Belknap first contends the district court lacked subject matter
jurisdiction because, although the warden alleged in the certificate that no state
placement was available, the warden did not learn that state placement was
unavailable until after the petition’s filing. Belknap cites no cases holding a court
lacks jurisdiction if the absence of state placement is not factually determined before
the § 4246 petition is filed, however. It is clear the warden’s certificate does not
constitute proof of the certificate’s allegations of mental disease or defect,
dangerousness, and lack of suitable state placement because those elements of proof
must be established later by clear and convincing evidence at the hearing. See id.
The filing of the certificate with the appropriate allegations vested the district court

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with jurisdiction to hear the case and stayed Belknap’s release pending completion
of the hearing. At the hearing, the Government presented undisputed evidence
establishing all three elements of proof. In short, the question of available state
placement is one of proof, and the district court had jurisdiction to hear Belknap’s
case.

       Belknap also argues there is not clear and convincing evidence to support the
district court’s findings of mental disease or defect and dangerousness. Although
Belknap did not exhibit any violent behavior during his incarceration, the district
court’s findings are not clearly erroneous given the unanimous opinion of both the
Government and defense experts. See S.A., 129 F.3d at 1000 (standard of review);
United States v. Lewis, 929 F.2d 440, 442 (8th Cir. 1991) (per curiam) (upholding
findings of mental disease and dangerousness when supported by unanimous expert
opinion); United States v. Steil, 916 F.2d 485, 488 (8th Cir. 1990) (same). Overt acts
of violence are not necessary to show dangerousness, and the experts recognized
Belknap’s behavior improves in a controlled setting like prison and Belknap would
likely quit taking his medication if released. S.A., 129 F.3d at 1001. Indeed, Belknap
does not believe that he has a mental illness or that medication is beneficial, and has
a history of stalking and carrying firearms. We thus affirm the district court. See 8th
Cir. R. 47B.

      A true copy.

             Attest:

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




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