United States v. McNair ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6161
UNITED STATES OF AMERICA; AUSA USA, Civil Mail Box,
Petitioners – Appellees,
v.
CORIE MCNAIR
Respondent – Appellant.
No. 09-6207
UNITED STATES OF AMERICA; AUSA USA, Civil Mail Box,
Petitioners – Appellees,
v.
CORIE MCNAIR
Respondent – Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina at Raleigh. W. Earl Britt, Senior
District Judge. (5:05-hc-00502-BR)
Submitted: July 10, 2009 Decided: August 13, 2009
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
No. 08-6161, dismissed and No. 09-6207, affirmed by unpublished
per curiam opinion.
Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina,
for Appellant. George E. B. Holding, United States Attorney,
Anne M. Hayes, Assistant United States Attorney, David T.
Huband, Special Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Corie McNair appeals
the district court’s January 7, 2008, order that he remain in
custody of the Attorney General pursuant to 18 U.S.C. § 4246(2006) (Appeal No. 08-6161(L)). Following an evidentiary
hearing, the district court found by clear and convincing
evidence that McNair, who was originally committed to the
Attorney General’s custody in 2005, continued “to suffer 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.” 18 U.S.C. § 4246(d).
During the pendency of his appeal, on McNair’s motion for
hearing to determine whether he still met the criteria for
commitment under § 4246, the district court conducted a second
hearing, following which the district court found that McNair
continued to meet criteria for commitment pursuant to § 4246,
but ordered that McNair be conditionally released from
psychiatric hospitalization. McNair’s appeal from this February
2, 2009, order is the companion case on appeal (Appeal No. 09-
6207).
As a preliminary matter, McNair’s pending appeal
relative to the January 7, 2008, order did not divest the
district court’s jurisdiction to order his conditional release,
filed on McNair’s own motion filed July 30, 2008, and entered
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following a second, separate evidentiary hearing, to review his
continued commitment pursuant to § 4246. A committed person has
the statutory right to challenge, and the district court has the
accompanying authority to review, such challenge to commitment
every 180 days. See 18 U.S.C. § 4247(h) (2006). While some of
the evidence rendered relative to the first hearing was
necessarily revisited in the second hearing, the district
court’s 2009 determination focused on McNair’s condition and
risk as of the time McNair filed his new motion for
determination as to whether he still met the § 4246 criteria,
and the focus, evidence, and determinations were distinct, such
that the purposes of the divestiture rule * were not frustrated.
See, e.g., United States v. Phelps, 283 F.3d 1176, 1181 n.5 (9th
Cir. 2002).
Secondly, we find that McNair’s conditional release
renders moot the issue raised in his first appeal as to whether
the district court erred in failing to order his conditional
release at the January 7, 2008, hearing. As to McNair’s claim
that part of his first appeal was a challenge to the conditions
under which he has now been released and the reasonableness of
the Government’s efforts to effect his release to a state
*
See Griggs v. Provident Consumer Disc. Co., 459 U.S. 56,
58 (1982).
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facility, his second appeal affords him the mechanism to raise
such challenge.
With regard to whether the district court properly
found on February 2, 2009, that McNair’s mental condition is
such that unconditional release would create a substantial risk
of bodily injury to another or serious damage to the property of
another, that McNair continued to meet criteria for commitment
pursuant to 18 U.S.C. § 4246, and as to whether the district
court erred in finding that McNair continued to meet the
standard for conditional release to an available state facility,
we review such determinations of the district court for clear
error. United States v. Cox, 964 F.2d 1431, 1433 (4th Cir.
1992). A factual finding is clearly erroneous when the
reviewing court is “left with the definite and firm conviction
that a mistake has been committed.” Anderson v. City of
Bessemer City, 470 U.S. 564, 573 (1985) (internal quotation
marks and citation omitted).
We have reviewed the records of both cases, the
district court’s conclusions, and the briefs and arguments of
the parties, and find that the district court’s determinations
are supported by the record and are not clearly erroneous.
Accordingly, we dismiss, as moot, McNair’s appeal in Appeal No.
08-6161(L), and affirm the February 2, 2009, order of the
district court which is the subject of Appeal No. 09-6207. We
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dispense with oral argument because the facts and legal
conclusions are adequately presented in the materials before the
court and argument would not aid the decisional process.
No. 08-6161 - DISMISSED
No. 09-6207 - AFFIRMED
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