United States v. Irizarri ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Petitioner-Appellee,
v. No. 95-7399
JOHN ISRAEL IRIZARRI,
Respondent-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CA-95-340-5-F)
Submitted: July 31, 1996
Decided: August 29, 1996
Before HALL and ERVIN, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
G. Alan DuBois, Assistant Federal Public Defender, Raleigh, North
Carolina, for Appellant. Janice McKenzie Cole, United States Attor-
ney, Barbara D. Kocher, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
John Israel Irizarri was committed to the custody of the Attorney
General pursuant to 18 U.S.C. § 4246 (1988). A person may be com-
mitted under § 4246 only if the district court finds by clear and con-
vincing evidence that he suffers 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 the property of others.
We review the district court's determination for clear error. United
States v. Cox, 964 F.2d 1431, 1433 (4th Cir. 1992).
On appeal, Irizarri argues that the government failed to prove by
clear and convincing evidence that his release would pose a substan-
tial danger to others or that any danger presented by him is a direct
result of his mental illness. A hearing was held on May 11, 1995,
before a magistrate judge, at which time Irizarri's treating physician
testified and Irizarri presented, on his own behalf, an evaluation from
Dr. Billy W. Royal, a court-appointed psychiatrist. The medical evi-
dence was unanimous in opining that Irizarri suffers from a mental
disease or defect. As to dangerousness, Irizarri's treating physician
opined that Irizarri would pose a substantial risk of harm to another
person or property if released. Such reasoning was based on the pres-
ence of psychiatric delusions, Irizarri's belief that many people want
to harm him, thus creating many potential victims, Irizarri's history
of aggression and substance abuse, the fact that no one is willing to
take care of Irizarri after his release which would leave him without
supervision, and Irizarri's statements that he will not be treated once
he is released. These factors combined present a substantial risk of
serious injury to others.
Irizarri also argues that the district court's failure to consider his
request for new counsel is grounds for relief. Review of the record
shows that Irizarri filed a motion to reopen the§ 4246 hearing to give
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him the opportunity to present additional evidence with a different
attorney. The district court denied the motion. (J.A. 70). Thus, this
claim is without merit.
Irizarri also filed a pro se supplemental brief beyond the deadline
set by this Court. In his supplemental brief Irizarri argues that he was
denied legal representation at the § 4246 hearing because the court
did not appoint him new counsel so that he could present his evidence
at a later date. Furthermore, Irizarri has not offered any new and rele-
vant evidence not already considered at the hearing to justify a
reopening of the hearing. We find no reversible error in the district
court's decision not to reopen the hearing. Accordingly, we conclude
that the district court's decision to commit Irizarri was not clearly
erroneous and affirm the order of commitment.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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