UNITED STATES of America, Plaintiff-Appellee, v. David John MURDOCH, Defendant-Appellant. (Two Cases) , 98 F.3d 472 ( 1996 )

Opinion by Judge THOMPSON; Concurrence by Judge WILSON.

DAVID R. THOMPSON, Circuit Judge:

OVERVIEW

David John Murdoch was indicted on two counts of attempted murder, in violation of 18 U.S.C. § 1113, and two counts of use of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(e)(1). Murdoch was found not guilty by reason of insanity and was committed to a medical detention facility for an assessment.

After considering two risk assessment reports, the district court determined that Murdoch is presently suffering from a mental disease or defect and, as a result of this mental disease or defect, Murdoch poses a substantial risk of injury to others. Accordingly, the district court ordered Murdoch committed to the custody of the Attorney General.

Murdoch appeals that decision, arguing the district court erred by determining that he is suffering from a present mental disease or defect. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

FACTS

Murdoch, a citizen of Great Britain, traveled to the United States to commit suicide. He was overwhelmed by life “stressors” involving his relationships, work, and money, and felt he was a failure at everything. He obtained a gun and went to Lake Mead National Recreation Area to kill himself.

Murdoch found an isolated cove and began preparing to kill himself. During this time, a couple arrived at the cove to camp and fish. Murdoch left the cove, but returned later and began shooting at the couple, wounding both of them.

Four days later, Murdoch turned himself in to the police department. A federal grand jury returned an indictment charging Murdoch with two counts of attempted 'murder and two counts of use of a firearm in relation to a crime of violence. Murdoch raised a defense of insanity. He underwent psychological testing and was diagnosed as having: (1) an adjustment disorder with depressed mood arising from psychological stress he had experienced in the last year, and (2) a dissociative disorder with decreased conscious awareness. Experts for the defense and the prosecution agreed that, at the time of the shooting incident, Murdoch was legally insane because he was unable to distinguish right from wrong.

The prosecution stipulated to Murdoch’s insanity at the time of the shooting. The district court entered a verdict of not guilty by reason of insanity and ordered Murdoch committed to a medical facility for assessment. Pursuant to 18 U.S.C. § 4243(b), a risk assessment panel was convened to prepare a report addressing whether Murdoch’s release from custody would present a substantial risk of injury to others as a result of a present mental disease or defect. The panel consisted of two psychologists and a psychiatrist.

The panel prepared a risk assessment report and, in this report, opined that Murdoch suffers from a “Personality Disorder, Not Otherwise Specified with Narcissistic and Passive-Aggressive traits.” The panel stated that this personality disorder “could affect his propensity to commit future acts of violence given the right circumstances” and Murdoch “could perceive future situations in a manner that would lead to similar dissociative episodes with possible violent acting out.”

The panel commented that, at the time of the shooting incident, Murdoch was under severe stress and, due to his personality disorder, lacked the ability to cope with the stress. The panel further noted that, if released, Murdoch would face not only the same stressful problems that existed at the time of the shooting incident, but he would face the additional stress of “no job, no permanent home, and the possible stigma of having been arrested and found insane to Attempted Murder charges.”

The panel stated that, if the district court found a personality disorder could legally constitute a mental disease or defect, the panel would suggest that Murdoch presents a risk to others due to a mental disease or defect. Conversely, if the district court determined that a personality disorder could not legally constitute a mental disease or defect, then Murdoch would not present a risk to others based on a mental disease or defect.

Pursuant to 18 U.S.C. § 4243(c), the district court held a status hearing to determine whether Murdoch should be committed to the custody of the Attorney General. The district court determined that Murdoch had “failed to prove by clear and convincing evi-denee that Ms release will not pose a substantial risk of injury to ... another person due to a present mental disease or defect.” The district court reasoned that, although Murdoch was not currently displaying symptoms of a mental illness, if released from custody, Murdoch would be under the same stress that led him to commit the violent acts. The district court found that Murdoch’s “disassociative state,” when combined with stress, results in an inability to appreciate right from wrong. Therefore, the district court determined that Murdoch’s personality disorder constitutes a mental disease or defect wMch presents a substantial risk of danger to others and ordered Murdoch committed. Murdoch appealed that ruling to tMs court.

While that appeal was pending, the panel prepared a second risk assessment report. In an unpublished order, we remanded the ease to the district court so that the court could consider the second report.

The panel’s findings in the second report were substantially the same as in the first report. In the second report, the panel opined that Murdoch “is not regarded as having a major mental disease or defect at this time, but is viewed as having a personality disorder with narcissistic and passive-aggressive traits.” The panel reiterated its belief that if the district court found a personality disorder could legally constitute a mental disease and if Murdoch was released without assurances that he would comply with stringent conditions, Murdoch could present a danger to others.

The district court held a second hearing to address the latest report. At the hearing, members of the risk assessment panel testified that although personality disorders are not generally considered to be mental diseases or defects, the district court could consider Murdoch’s personality disorder to be a mental disease or defect. Based on the second report and the testimony at the hearing, the district court determined that Murdoch had failed to present evidence warranting a revision of the court’s prior order. The court reaffirmed its decision that Murdoch presently suffers from a mental disease or defect which poses a risk of danger to others. Murdoch appeals that ruling.’

DISCUSSION

The issue on appeal is narrow. Murdoch does not dispute the panel’s and the district court’s findings regarding his dangerous propensity. Murdoch argues only that he is not presently suffering from a mental disease or defect.

A. Standard of Review

The parties dispute the applicable standard we apply in reviewing the district court’s determination under 18 U.S.C. § 4248 that a person suffers from a “mental disease or defect.”

In other contexts, we have concluded that whether a person is suffering from a mental disease is a question of fact. United, States v. Smeaton, 762 F.2d 796, 798 (9th Cir.1985) (concluding jury determines whether defendant is sane). Other circuits also have concluded that the determination of whether a person is suffering from a mental disease is a factual issue, subject to the clearly erroneous standard of review. United States v. Jackson, 19 F.3d 1008, 1006 (5th Cir.) (interpreting section 18 U.S.C. § 4243), cert. denied, - U.S. -, 115 S.Ct. 237, 130 L.Ed.2d 160 (1994); United States v. Prescott, 920 F.2d 139, 146 (2nd Cir.1990) (interpreting 18 U.S.C. § 4244(d)); United States v. Steil, 916 F.2d 485, 487-88 (8th Cir.1990) (interpreting 18 U.S.C. § 4246).

Whether a person is suffering from a mental disease or defect is primarily a factual determination. The district court is in the best position to judge the credibility of the witnesses and to assess the evidence in a hearing under 18 U.S.C. § 4243. Therefore, we conclude that whether a person is suffering from a mental disease or defect under section 4243 presents a question of fact, subject to the clearly erroneous standard of review.

“[R]eview under the ‘clearly erroneous’ standard is significantly deferential, requiring a ‘definite and firm conviction that a mistake has been committed.’” Concrete Pipe & Prods, v. Const. Laborers Pension Trust, 508 U.S. 602, 623, 113 S.Ct. 2264, 2280, 124 L.Ed.2d 539 (1993). If the district court's finding is "plausible in light of the record viewed in its entirely," we may not reverse the district court's finding simply because we "would have weighed the evidence differently." Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).

B. Mental Disease or Defect

Murdoch argues there is no factual basis for a finding that he is suffering from a present mental disease or defect. He argues the evidence shows only that, in the future, he may suffer from a mental disease or defect which could result in violent activity. We reject this argument.

Section 4243 provides:

a person found not guilty only by reason of insanity of an offense involving bodily injury to ... another person ... has the burden of proving by clear and convincing evidence that his release would not create a substantial risk of bodily injury to another person ... due to a present mental disease or defect.

18 U.S.C. § 4243(d). If the district court finds the person has not met this burden, the district court "shall commit the person to the custody of the Attorney General." 18 U.S.C. § 4243(e). The person's mental status is reviewed on an annual basis to determine whether continued confinement is justified.

If the person has dangerous propensities, but these propensities are not the result of a mental disease or defect, continued confinement is not justified under section 4243. See Foucha v. Louisiana, 504 U.S. 71, 77, 112 S.Ct. 1780, 1784, 118 L.Ed.2d 437 (1992); Overholser v. O'Beirne, 302 F.2d 852, 854-55 (D.C.Cir.1962). A person found not guilty by reason of insanity "may be held as long as he is both mentally ifi and dangerous, but no longer." Foucha, 504 U.S. at 77, 112 S.Ct. at 1784. Therefore, even though Murdoch concedes he has dangerous propensities, his continued confinement under section 4243 is not permitted unless these propensities are the result of a present mental disease or defect.

At oral argument, Murdoch conceded that a personality disorder can constitute a mental disease or defect under certain circumstances. Murdoch, however, argues he is not suffering from a present mental disease or defect because he is not currently behaving in a violent manner. We conclude that Murdoch has not met his burden to prove by clear and convincing evidence that his release would not pose "a substantial risk of bodily injury to another person ... due to a present mental disease or defect." 18 U.S.C. 4243(d). Murdoch's argument erroneously focuses on the symptoms or side-effects of his mental disease rather than on the existence of the disease itself.

Because Murdoch is in confinement, he is in a controlled environment. He also is receiving treatment. Simply because Murdoch is not in a situation in which he will react dangerously does not mean that he no longer suffers from a mental disease which causes his dangerous propensities.

While in the mental health facility, Murdoch is insulated from the stress which triggered his acts of violence. The evidence established that if he were released he would confront the same or similar stress which led to his previous violent behavior. It is clear that Murdoch's personality disorder impairs his ability to cope with stress. Thus, until Murdoch can prove by clear and convincing evidence that he no longer suffers from a mental disease or defect or that, although he suffers from a mental disease or defect he can be released under conditions which would eliminate his dangerous propensities, Murdoch is not entitled to be released from custody.

The risk assessment panel opined that, if Murdoch were released under conditions that he participate in an outpatient psychiatric treatment program and that he not have access to weapons, his dangerous propensities could be successfully managed. If, however, there were no assurances that Murdoch would comply with these conditions, the panel opined he would pose a risk of danger to others.

While this appeal was pending, the warden of the Medical Center for Federal Prisoners at Springfield, Missouri, submitted to the district court, and that court referred to us, a third report from the risk assessment panel dated August 21, 1996. In this report, the panel opines that Murdoch’s condition has improved, that the financial stress he previously encountered has been ameliorated by his mother paying off his “remaining debt” and being willing to have Murdoch live "with her, and that Murdoch’s former employer is willing to reemploy him. The panel also opined that Murdoch’s mother is supportive and willing to assist in Murdoch’s regular contact with the Mental Health Treatment Center in Scotland, and that the panel believes Murdoch would “cooperate with outpatient treatment regardless of whether it is mandated.”

The district court has not had the benefit of considering this latest report from the risk assessment panel. Nor has it had the opportunity to consider whether there are conditions of release which could be imposed and which would provide assurance that, if released, Murdoch would not pose a risk of danger to others.

We restrict our review to the record which was before the district court. Based on that record, we conclude the district court did not clearly err by finding that Murdoch suffers from a mental disease or defect which presents a substantial risk of danger to others.¹ Because Murdoch did not satisfy his burden under section 4243, he is not entitled to be released from confinement at this time. We do not reach the question whether release would be appropriate, in light of the latest report from the risk assessment panel, if conditions of release could be imposed which would provide assurance that, if released, Murdoch would not pose a risk of danger to others. That is something the district court should determine.

AFFIRMED.

1 . The risk assessment panel members' failure to conclusively state that Murdoch’s personality disorder constitutes a mental disease does not affect our conclusion. Both risk assessment reports left to the district court the determination whether a personality disorder could legally be a mental disease. The panel members had the responsibility to present their observations to the court. It was then the court's responsibility to determine whether Murdoch’s personality disorder fell within the meaning of section 4243.