          United States Court of Appeals
                      For the First Circuit
                       ____________________

No. 00-1186


                    UNITED STATES OF AMERICA,

                      Petitioner, Appellee,

                                 v.

                         MICHAEL FRIERSON,

                      Respondent, Appellant.

                       ____________________


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Robert E. Keeton, U.S. District Judge]

                       ____________________

                               Before

           Boudin, Stahl, and Lynch, Circuit Judges.

                       ____________________


          Amy Baron-Evans, Federal Defender Office, with whom Owen S.
Walker, Federal Defender Office, was on brief, for appellant.
          Peter K. Levitt, Assistant U.S. Attorney, with whom Donald
K. Stern, United States Attorney, was on brief, for appellee.


                       ____________________

                          March 31, 2000
                       ____________________
          LYNCH, Circuit Judge. This case concerns the procedures for

involuntarily committing a federal prisoner, Michael Frierson, to a

medical center for in-patient care for a mental disease. Because of

the resulting infringement on the liberty interests that even an

imprisoned person retains, such commitments are girded by statutory

procedural requirements set forth in 18 U.S.C. § 4245. Those statutory

procedures were Congress's response to Vitek v. Jones, 445 U.S. 480,

491-94 (1980), which held that the involuntary transfer of a prisoner

to a mental hospital implicated liberty interests protected by

constitutional due process.1 While other circuits, which have within

their geographic territory federal penal institutions, have reviewed

proceedings under § 4245 before, this circuit has not.       With the

opening of the new Federal Medical Center-Devens in Massachusetts (FMC-

Devens) on the site of the former Ft. Devens, cases under the statute

may now arise in this circuit, as this one has. Because the district

court departed from statutory procedures by holding the commitment

hearing in the absence of the inmate, we vacate the order of

commitment.

                                  I.

          We describe what is at stake and thus the reasons for the

procedural protections required.



     1    See S. Rep. No. 98-225, at 247-49 (1983), reprinted in 1984
U.S.C.C.A.N. 3182, 3429-31.

                                 -2-
          Involuntary commitment to a federal medical center removes

a prisoner from the general prison population and attaches to him or

her a certain stigma. See Vitek, 445 U.S. at 492. Once hospitalized,

the prisoner can be involuntarily medicated (following other due

process procedures). See 28 C.F.R. § 549.43; cf. Vitek, 445 U.S. at

492. And once there, the inmate's commitment lasts until one of three

things happens. Commitment lasts until the director of the facility

determines that the prisoner is no longer in need of care. See 28

U.S.C. § 4245(e). But during a prisoner's commitment, the director of

the medical facility need only make an annual report on the person's

mental condition and his or her continued need for hospitalization.

See 28 U.S.C. § 4247(e)(1)(B). Or commitment lasts until counsel for

the person files a motion for a hearing and a judge determines, by a

preponderance of the evidence, that the person should be discharged.

See 28 U.S.C. § 4245(d). But such a motion cannot be filed within 180

days of "a court determination that the person should continue to be

hospitalized." 28 U.S.C. § 4247(h). Or commitment can last until the

person's sentence of imprisonment has expired.2       See 28 U.S.C.

§ 4245(d). But under a separate section a person due for release can

continue to be hospitalized if a judge determines, by clear and

convincing evidence, that "the person is presently suffering from a



     2    Frierson's sentence expires on October 9, 2000. He could be
released as early as June 20, 2000, because of good conduct.

                                -3-
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." 28 U.S.C. § 4246(d); see also 28 U.S.C. §

4246(a), (c).

          Given these consequences, it is no surprise that the statute

that authorizes involuntary commitment is sensitive to constitutional

due process concerns. The provisions at issue in this case, 28 U.S.C.

§§ 4245 and 4247(d), are illustrative. A person whose mental condition

is at issue may not be committed until there is a hearing at which the

prisoner "shall be represented by counsel [or counsel shall be

appointed for him if he or she is financially unable to obtain adequate

counsel and] shall be afforded an opportunity to testify, to present

evidence, to subpoena witnesses on his behalf, and to confront and

cross-examine witnesses who appear at the hearing." 28 U.S.C.

§ 4247(d); see also 28 U.S.C. § 4245(c).

                                 II.

          Michael Frierson is serving a 48-month federal sentence for

importation of methamphetamine.3 Until 1999, Frierson was imprisoned

at the Federal Correctional Institution in Petersburg, Virginia, and

the Federal Medical Center in Lexington, Kentucky (FMC-Lexington),



     3    Frierson was originally found incompetent to stand trial
pursuant to 18 U.S.C. § 4241 and was committed for treatment to the
United States Medical Center for Federal Prisoners in Springfield,
Missouri. He was tried after being restored to competency.

                                 -4-
where he had been committed, but then discharged, under an earlier

petition pursuant to 18 U.S.C. § 4245.4      Since his stay at FMC-

Lexington, Frierson had been taking lithium voluntarily as treatment

for Bipolar I Disorder, Severe with Psychotic Features. Frierson was

transferred from FMC-Lexington to FMC-Devens on May 11, 1999.5 On

September 3, 1999, Frierson stopped taking the lithium, and his

condition deteriorated. As a result, he was placed in the Diagnosis

and Observation area of FMC-Devens's Mental Health Unit.

          On November 10, 1999, the government filed a motion6 with the

district court to commit Frierson pursuant to 28 U.S.C. § 4245. The

purpose of obtaining the commitment order, it appears, was to allow

doctors to treat him involuntarily. Involuntary treatment is permitted

only after commitment and, then, only after an opportunity for an

administrative hearing and appeal.      See 28 C.F.R. § 549.43; cf.

Washington v. Harper, 494 U.S. 210, 214-17 (1990). Compare United

States v. Morgan, 193 F.3d 252, 262-64 (4th Cir. 1999), with United

States v. Brandon, 158 F.3d 947, 952-55 (6th Cir. 1998). Because



     4    Frierson had refused his medication while at FCI-Petersburg
and, subsequently, decompensated.
     5     The parties have not told us, nor does the record reveal,
why, and under what authority, Frierson continued to be incarcerated at
federal medical centers subsequent to his discharge from the earlier
commitment order.
     6    In technical terms, the statute refers to a motion, which is
what the government filed, rather than a petition.

                                 -5-
Frierson was indigent, counsel was appointed. Counsel visited Frierson

and found that, while Frierson was disturbed, he appeared to understand

what courts and lawyers were and that a motion had been filed for

commitment.

          On December 14, 1999, the district court held a conference

with the government and Frierson's appointed counsel, but without

Frierson. Both sides seemed to agree that Frierson met the criteria

for commitment, and they disagreed only on whether Frierson's presence

at a commitment hearing was required or whether he should be asked

first if he wanted to attend. Frierson's counsel stated that Frierson

should be brought to the courthouse in Boston or the judge should hold

a hearing at FMC-Devens because the court should not commit Frierson

without actually seeing him. The government was willing to bring

Frierson to the courthouse, but suggested that first he should be asked

if he wanted to attend the hearing. The district court decided to hold

a hearing the following week to determine if it was "feasible and

appropriate" to have Frierson present at his § 4245 hearing.

          On December 17th, at the request of appointed counsel, Devens

Clinical Psychologist Dr. Paul Anderson (whose case study of Frierson

had been filed by the government in support of its motion) asked

Frierson if he wanted to attend the hearing. Frierson indicated that

he did. The government then notified the court that it was willing to

bring Frierson to court. For unstated reasons, the court did not


                                 -6-
request the government to do so.

          Even though the statute plainly contemplates that ordinarily

a prisoner will attend his or her own commitment hearing, and even

though Frierson had said that he wanted to attend, and even though the

government said it would bring him to the hearing, the district court

nonetheless conducted a hearing on December 20th without Frierson

being there. The ostensible subject was to determine if Frierson

should attend his commitment hearing, but the hearing ended in a

commitment order. The only witness at this hearing was Dr. Anderson.

Anderson testified that Frierson indicated that he wanted to attend the

hearing, though not in his orange jumpsuit. Anderson also testified

that Frierson had filled out a form that requested a telephone call to

counsel, though a Devens staff member, Carlos Quiles, wrote in an e-

mail to a staff attorney at Devens that he, Quiles, had attempted to

make the call but was unable to get Frierson's attention. Finally,

Anderson testified that he believed that Frierson knew the purpose of

the hearing; Anderson testified, as well, that Frierson thought the

hearing would also address his status as Michael the Archangel.

          After Anderson's testimony, the government stated that, since

Frierson indicated he wished to attend the hearing, he had a right to

do so under the statute and had a right to testify.       Counsel for

Frierson repeated that Frierson should be brought to the hearing

because he had a statutory and constitutional right to be there and


                                 -7-
said that in many other circuits the hearings are held at the medical

center. He also pointed out that after Frierson had been committed

earlier pursuant to § 4245 (at FMC-Lexington), Frierson decided to take

his medication voluntarily (thus avoiding forcible medication).

Counsel believed that, if Frierson were brought before a judge again,

he would voluntarily take his medication. Rather than adjourning the

hearing until Frierson could be present, the court directed counsel to

contact Frierson at Devens during a recess and discuss with him the

facts surrounding the e-mail. Counsel attempted to contact Frierson,

but Frierson refused to come to the phone when asked to do so by

Quiles. Upon the resumption of the hearing, the government informed

the court that it changed its position because it felt that, as a

result of the phone call, Frierson had been offered the opportunity to

participate in the hearing and had refused.       Frierson's counsel

contested this assertion.

          The district court then entered the order of commitment. The

order read, in part:

          (3) Because of his present mental condition, it is not
          possible, without undue risk to his own safety and security,
          to have him brought into court for proceedings in his
          presence.

          (4) In these circumstances, applying the standard of due
          process, the court finds it appropriate to afford counsel
          appointed on his behalf to speak to the court on
          respondent's behalf, to present evidence on his behalf, to
          subpoena witnesses on his behalf, and to cross-examine
          witnesses on his behalf at this hearing. Counsel appointed


                                 -8-
          by the court to represent respondent did participate in the
          hearings of December 14 and 20, 1999, reserving rights to
          object to the proceedings.        After considering the
          objections, the court overruled them.

          (5) For reasons stated more fully on the record, the court
          finds that respondent at this time is not competent to be a
          witness and is not competent to make an informed decision.
          He has been offered an opportunity to assist his appointed
          attorney but has not responded to that opportunity.
          Moreover, I find that in his present condition it would be
          a futile gesture to purport to give him an opportunity to
          participate in a hearing at the Federal Medical Center in
          Devens, or elsewhere. He cannot become competent without
          resuming medication, and only then after weeks, at minimum.
          If he does resume medication and a material change bearing
          on his competence occurs, a request for further hearing in
          this court will be allowed.

Frierson appeals from this order.

                                 III.

          The question presented is whether Frierson was provided with

the requisite "opportunity" to be present at his § 4245 hearing.

          First, we clear away a justification for the order which is

clearly erroneous. There is no support for the district court's first

"finding" that Frierson could not have been brought into court "without

undue risk to his own safety and security." The government never took

that position and indeed had offered to bring Frierson to the

courthouse. Further, even were this so, it does not answer Frierson's

argument that the court could have conducted the hearing at FMC-Devens.




                                 -9-
We are told that this is routinely done in other circuits and could be

done at Devens as well.7

          Although the government had said that Frierson should be

present for the commitment hearing, the government now attempts to

defend the order on three grounds: first, that the case is moot;

second, that Frierson rejected the opportunity to be at the hearing

when, on December 20th, he was non-responsive to the guard's efforts to

have him come to the phone to talk to counsel; and third, that there

was no right to be physically present under the statute, only the

opportunity to participate in the hearing in certain other ways.

          The matter is not moot.       Although Frierson has now been

forcibly medicated, is taking his mediation, and is more lucid, the

commitment order, with its attendant consequences described earlier, is

still in place. Vitek forecloses the government's mootness argument,

as does Washington v. Harper, 494 U.S. 210 (1990). Vitek rejected a

mootness argument, even though the inmate was no longer at the mental

hospital, because there was a very real threat he would be transferred


     7     While no commitment hearing has yet taken place at Devens,
we are told that if a judge decided to conduct a hearing there a
suitable space, such as a conference room, could be provided. Some
federal medical centers have courtrooms, which can be used for
hearings, while others use conference rooms.
      We are also told that there will be videoconferencing facilities
operational between Devens and the U.S. Courthouse in Boston by the end
of this year. The Fourth Circuit, in an uncontested § 4245 hearing,
has approved the use of videoconferencing. See United States v. Baker,
45 F.3d 837, 848 (4th Cir. 1995). Whether such videoconferences
suffice for all or some § 4245 hearings we leave to another day.

                                 -10-
again. See Vitek, 445 U.S. at 486. Here, the inmate is still confined

in the mental hospital.8 In any event, as Harper holds, so long as the

commitment order is in place, the matter is not moot. See Harper, 494

U.S. at 218-19.

          Nor is the issue resolved by the phone call to the prison on

December 20th and Frierson's non-responsiveness to the guard's efforts

to get him to the phone. First, the hearing was largely concluded by

the time the call was made, Anderson having testified.         Second,

Frierson was not told that this call was his opportunity to participate

in the hearing (indeed, it was not); rather, Frierson had earlier said

he wanted to attend any hearing. The district court properly rejected

the government's request that it make a finding that the phone call

constituted an opportunity for Frierson to participate in the hearing.

          Finally, the government, on appeal, argues that the inmate's

physical presence is not required by the statute at all in a commitment

hearing.9 All that the statute requires, according to the government,


     8    That confinement means, inter alia, that his access to
activities available to the general penal population is quite
restricted.
     9     On appeal, the government says that it was within the
district court's "supervisory authority" to conduct the commitment
hearing in Frierson's absence. But here there was no evidence on which
to conclude that unusual protective measures were needed. Indeed,
usually such measures are taken only after the patient is observed by
the court. See Suzuki v. Quisenberry, 411 F. Supp. 1113, 1130 (D. Haw.
1976). Some states, such as Minnesota, allow the court to "exclude or
excuse a proposed patient who is seriously disruptive or who is
incapable of comprehending and participating in the proceedings," but,

                                 -11-
is the opportunity to participate.       For this proposition, the

government relies on United States v. Baker, in which the Fourth

Circuit found that videoconferencing commitment hearings satisfied

constitutional due process. See United States v. Baker, 45 F.3d 837,

848 (4th Cir. 1995). But Frierson was not offered the opportunity to

be present through videoconferencing.      Rather, the government's

position before the trial court is more apposite: that Frierson had a

statutory right to attend.

          The statute reads: the person subject to the commitment

motion "shall be afforded an opportunity to testify, to present

evidence, to subpoena witnesses on his behalf, and to confront and

cross-examine witnesses who appear at the hearing." 28 U.S.C.


as the language of the Minnesota statute makes clear, this can only be
done when a person "is" disruptive or incapable, as observed by a judge
during a hearing. Minn. Stat. § 253B.08(5)(b); cf. Matter of Lawaetz,
728 F.2d 225, 227-28 (3d Cir. 1984) (finding constitutional a patient's
exclusion when he had been "extremely disruptive" at a prior proceeding
before the same judge during which he had been medicated, medical
experts testified that the patient would be even more disruptive
without his medication, and the district court preconditioned the
patient's appearance on the taking of his medication). Some courts
have also allowed the temporary exclusion of a person from that portion
of a hearing when testimony is given that may lead to emotional harm.
See Coll v. Hyland, 411 F. Supp. 905, 913 (D.N.J. 1976); Schmidt v.
Goddin, 297 S.E.2d 701, 705-06 (Va. 1982). But see Matter of K.F., 582
A.2d 1294, 1294-95 (N.J. Super. Ct. App. Div. 1990). A judge, of
course, may resort to needed measures when a defendant disrupts the
courtroom proceedings. See generally Illinois v. Allen, 397 U.S. 337,
342-44 (1970). There may well be extreme cases where alternative
measures are needed to protect the safety of the participants to the
hearing and that can be established without having the inmate before
the judge. But that is not this case and we leave any legal issues
emerging from that fact pattern to future cases.

                                 -12-
§ 4247(d). The language makes clear that Congress contemplated that a

person would be given the opportunity to be present. Cf. Specht v.

Patterson, 386 U.S. 605, 610 (1967) ("Due process . . . requires that

[the person] be present with counsel, have an opportunity to be heard,

be confronted with witnesses against him, have the right to cross-

examine, and to offer evidence of his own.").10 Even Baker, which the

government relies on, assumed that the prisoner had a right to be

present.   See Baker, 45 F.3d at 843-44.

           Although Frierson's due process rights may be of a different

magnitude than the process due a criminal defendant, see Heller v. Doe,

509 U.S. 312, 325 (1993), the language Congress used in § 4247(d) that

a prisoner has the right to testify and to confront witnesses rebuts

the government's broad argument.        Cf. Harper, 494 U.S. at 235

(approving state policy that provided for "notice, the right to be

present at an adversary hearing, and the right to present and cross-

     10    Analogous state statutes are also instructive. See, e.g.,
Conn. Gen. Stat. § 17a-498(a) ("right to be present at the hearing");
Fla. Stat. ch. 945.43(3) (assuming the presence of the inmate); 405
Ill. Comp. Stat. 5/3-806(a) ("respondent shall be present"); Ind. Code
§ 11-10-4-3(a)(3)(C) ("[t]he offender is entitled to appear in
person"); Ky. Rev. Stat. Ann. § 202A.201(3)(b) ("the prisoner . . .
[has] an opportunity to be heard in person"); Minn. Stat. § 253B.08(3)
("right to attend"); La. Rev. Stat. Ann. § 28:54(C) ("right to be
present"); Me. Rev. Stat. Ann. tit. 34-B, § 3864(5)(C)(1) ("an
opportunity to appear"); Mont. Code Ann. § 53-21-116 ("right to be
present"); N.Y. Correct. Law § 402(5) (the judge "shall examine the
alleged mentally ill person"); Ohio Rev. Code Ann. § 5120.17(B)(2)
("the inmate may be present"); Okla. Stat. tit. 43A, § 5-411(A)(5)
("right to be present"); S.C. Code Ann. § 44-17-570 ("right to be
present").

                                 -13-
examine witnesses"); Vitek, 445 U.S. at 494 (approving order that

inmate must be given the opportunity "to be heard in person" and "to

confront . . . witnesses"). Congress chose to give these rights to

persons who, by definition, are thought to suffer from mental disorder

or disease. There was no room to say that because Frierson was thought

to suffer from a mental disorder or disease he did not have such

rights. An inmate's presence at a commitment hearing will assist the

judge in reaching the correct decision, may serve as a deterrent to

false testimony, and, more generally, reaffirms the dignity of the

individual. In this case, Frierson's presence before the court might

have had the additional advantage of convincing him to take his

medication voluntarily, as had occurred following his prior § 4245

hearing.

                                 IV.

           Frierson either should have been brought to court, or, as is

common elsewhere when judges feel that it is unsafe for the prisoner to

be brought to the courthouse, the court should have traveled to the

federal medical center.    The order of commitment is reversed and

vacated.   If the government feels that Frierson should still be

committed, it must file a new motion under § 4245.

           So ordered.




                                 -14-
