     10-3705
     United States v. Commey


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 13th day of December, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JOSÉ A. CABRANES,
 9                RICHARD C. WESLEY,
10                              Circuit Judges.
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12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               10-3705
17
18       AARON AMARTEI COMMEY,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        Aaron Amartei Commey, pro se,
23                                             FMC Devens, Ayer, MA.
24
25       FOR APPELLEES:                        Susan Corkery and Whitman Knapp,
26                                             Assistant United States
27                                             Attorneys, for Loretta E. Lynch,
28                                             United States Attorney, Eastern
29                                             District of New York, Brooklyn,
30                                             NY.

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 1
 2
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Eastern District of New York (Trager, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11
12        Aaron Amartei Commey, pro se, appeals from the district
13   court’s denial of his motions to: (1) release him from civil
14   commitment; (2) vacate his commitment order on the grounds
15   that his due process rights were violated; (3) exclude
16   expert testimony and evidence; and (4) find the government’s
17   expert witness in contempt. We assume the parties’
18   familiarity with the underlying facts, the procedural
19   history, and the issues presented for review.
20
21   I.   Commitment Determination
22        Whether an individual is mentally ill or dangerous is a
23   question of fact, reviewable for clear error. See United
24   States v. Prescott, 920 F.2d 139, 146 (2d Cir. 1990); see
25   also United States v. Stewart, 452 F.3d 266, 273 (3d Cir.
26   2006) (concluding that all the circuits that have considered
27   the issue have held that orders of commitment are reviewable
28   for clear error).
29
30        When, as here, “a person [has been] found not guilty
31   only by reason of insanity of an offense . . . involving a
32   substantial risk of [bodily] injury or [property] damage,
33   [he] has the burden of proving by clear and convincing
34   evidence that his release would not create a substantial
35   risk of bodily injury to another person or serious damage of
36   property of another due to a present mental disease or
37   defect.” 18 U.S.C. § 4243(d). Upon a review of the record
38   and Commey’s arguments on appeal, we conclude that the
39   district court committed no clear error in holding that
40   Commey has not met this burden.
41
42   II. Alleged Due Process Violation
43        The merits of a due process claim are reviewed de novo.
44   See McKithen v. Brown, 626 F.3d 143, 149 (2d Cir. 2010). In
45   arguing that his hearing was unnecessarily delayed, Commey
46   relies on 18 U.S.C. § 4243(f), which mandates that a court
47   hold a hearing when a facility director files a certificate
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 1   stating that an acquittee “has recovered from his mental
 2   disease or defect to such an extent that his release, or his
 3   conditional release . . . , would no longer create a
 4   substantial risk of bodily injury . . . or serious damage to
 5   property.” However, the facility director never filed such
 6   a certificate. The Risk Assessment Panel’s 2005 report
 7   stated that staff had begun work on a conditional release
 8   plan, but until such a plan was completed and communicated
 9   to the court, “Mr. Commey still me[t] criteria for
10   commitment under Title 18 U.S.C. Section 4243.”
11
12        Alternatively, Commey argues that in 2006 he moved for
13   a release hearing pursuant to 18 U.S.C. § 4247(h), and that
14   the failure to hold such a hearing until 2009 violated due
15   process. Commey relies on the Speedy Trial Clause of the
16   Sixth Amendment, which is, however, inapplicable to this
17   civil proceeding. Commey’s Fifth Amendment due process
18   argument is defeated by his failure to show that his
19   interests were hurt by any delay. See generally Mathews v.
20   Eldridge, 424 U.S. 319, 335 (1976). The Risk Assessment
21   Panel’s report immediately preceding Commey’s 2006 motion
22   recommended his continued confinement, as did the three
23   reports released between his motion and the hearing.
24
25   III.      Evidentiary Issues
26        “The admission of expert testimony is committed to the
27   broad discretion of the District Court and will not be
28   disturbed on review unless found to be ‘manifestly
29   erroneous.’” United States v. Wexler, 522 F.3d 194, 204 (2d
30   Cir. 2008) (internal citation omitted). Commey contends
31   that the admission of the Risk Assessment Panel reports and
32   Dr. Shawn Channell’s testimony was erroneous under Federal
33   Rule of Evidence 702 and Daubert v. Merrell Dow
34   Pharmaceuticals, Inc. 509 U.S. 579 (1993). Assuming,
35   arguendo, that the Federal Rules of Evidence apply to
36   Commey’s release hearing, the district court committed no
37   error. See United States v. Palesky, 855 F.2d 34, 36 (1st
38   Cir. 1988) (holding that the Federal Rules of Evidence do
39   not apply to hearings held under 18 U.S.C. § 4243(d)). Rule
40   702 and Daubert do not apply to the 2004, 2005, 2006, 2007,
41   and 2008 Risk Assessment Reports because they were admitted
42   as historical records, not as expert testimony. As to Dr.
43   Channell’s expert testimony, Commey’s objections bear upon
44   its credibility and weight, rather than its admissibility.
45   Whether Commey’s illness had spontaneously remitted so that
46   he was no longer dangerous was a matter of professional


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 1   disagreement, upon which the district court had wide
 2   latitude in admitting testimony.
 3
 4   IV. Contempt Ruling
 5        Commey challenges the district court’s decision not to
 6   hold Dr. Channell in contempt for his initial failure to
 7   produce Commey’s entire medical record. “A district court’s
 8   decision not to hold a party in contempt is reviewed by an
 9   appellate court for abuse of discretion.” Dunn v. N.Y.S.
10   Dep’t of Labor, 47 F.3d 485, 490 (2d Cir. 1995).
11
12        Assuming, arguendo, that the subpoena clearly required
13   Dr. Channell to produce Commey’s entire medical file and
14   that he did not, Dr. Channell explained that he produced all
15   of the records that were in his immediate possession. In
16   any event, Commey was provided with any remaining records
17   before the second hearing date.
18
19
20   Finding no merit in Commey’s remaining arguments, we hereby
21   AFFIRM the judgment of the district court.
22
23
24                              FOR THE COURT:
25                              Catherine O’Hagan Wolfe, CLERK
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