United States v. Samuel Conrad, III

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7384
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMUEL ROBERT CONRAD, III,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:06-cr-00040-JPJ-PMS-1)
Argued: October 30, 2014 Decided: January 13, 2015
Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Keenan and Judge Diaz joined.
ARGUED: Brian Jackson Beck, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Abingdon, Virginia, for Appellant. Jean Barrett
Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke,
Virginia, for Appellant. Timothy J. Heaphy, United States
Attorney, Roanoke, Virginia, Zachary T. Lee, Assistant United
States Attorney, Anne H. Lippitt, Third Year Law Student, OFFICE
OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee.
DUNCAN, Circuit Judge:
Defendant-Appellant Samuel Robert Conrad III is currently
serving an eight-year term of imprisonment for a 2013
conviction. He appeals the district court’s denial of his
motion to dismiss commitment proceedings arising from a 2007
insanity acquittal of a separate set of offenses, as well as the
district court’s order to delay those proceedings until he is
released from prison. The district court held that the purposes
of the commitment statute, 18 U.S.C. § 4243--which provides for
commitment or release based on an insanity acquittee’s
dangerousness--would best be served “by delaying Conrad’s
hearing until the end of his term of imprisonment.” J.A. 164.
For the reasons that follow, we affirm.
I.
In 2006, a federal grand jury indicted Appellant for
possessing several firearms as a convicted felon and unlawful
user of a controlled substance, under 18 U.S.C. § 922(g)(1) and
(3), and for possessing an unregistered, sawed-off shotgun,
under 26 U.S.C. §§ 5841, 5861(b), 5861(i), and 5871. Pursuant
to a plea agreement executed in January 2007, the court found
Appellant not guilty only by reason of insanity (“NGI”) and,
under 18 U.S.C. § 4243(a), ordered Appellant committed until
eligible for release. Following a psychological examination,
2
the court held a hearing to determine Appellant’s dangerousness
and ordered him released subject to various conditions. Because
that determination serves as the basis for this dispute’s
procedural posture on appeal, we first provide an overview of
the relevant statutory framework as context before discussing it
further.
A.
The statute at issue in this appeal, 18 U.S.C. § 4243,
provides a procedural framework for the evaluation and
commitment of defendants adjudicated NGI. 1 An NGI verdict
renders a defendant an “acquitted person” under the statute, who
“shall be committed” until “eligible for release pursuant to
subsection (e).” 18 U.S.C. § 4243(a). Following a
psychological examination ordered under subsection (b), a
hearing to determine commitment or release “shall be conducted”
within forty days of the NGI verdict. Id. § 4243(c).
Subsection (d) places the burden of proof at the hearing on the
acquittee. When the underlying offense involves “bodily
injury,” “serious damage” to another’s property, or a
“substantial risk of such injury or damage,” the acquittee must
show by clear and convincing evidence that his release “would
1
The parties’ plea agreement also stipulated that § 4243 et
seq. would govern “all further proceedings” in the case. J.A.
16.
3
not create a substantial risk of bodily injury to another person
or serious damage of property of another due to a present mental
disease or defect.” 2 Id. § 4243(d).
If the court finds that the acquittee failed to prove by
the appropriate standard that his release will not pose a
substantial risk to the public, subsection (e) provides for the
acquittee’s indefinite commitment; if the court finds that the
acquittee met his burden, the subsection allows for only
unconditional release. See id. § 4243(e); United States v.
Baker, 155 F.3d 392, 395 (4th Cir. 1998). If indefinitely
committed, the acquittee may later be released--conditionally or
unconditionally--under subsection (f), but only upon a
recommendation by the director of the commitment facility. 3
Barb.
1.
Against this statutory background, we turn to the hearing
required by subsection (c) and conducted by the district court
2
“With respect to any other offense,” the defendant bears
the burden of proof by a “preponderance of the evidence.” 18
U.S.C. § 4243(d).
3
If the director determines that the acquittee would no
longer pose a substantial risk to the public if released, she
“shall promptly file” her recommendation with the court. The
court “shall [then] order the discharge of the acquitted person
or . . . hold a hearing . . . to determine whether [the
acquittee] should be released.” 18 U.S.C. § 4243(f).
4
following Appellant’s 2007 NGI determination. The court
determined that Appellant would not pose a substantial risk to
the public due to a present mental disease or defect if
released. But instead of unconditionally releasing Appellant as
subsection (e) countenances, see Baker, 155 F.3d at 395, the
court ordered him released subject to various conditions. 4
In August 2008, the Commonwealth of Virginia charged
Appellant with murder for the beating death of his sister-in-
law. For this and other reasons, the district court revoked
Appellant’s conditional release in July 2010 on the
recommendation of the U.S. Probation Officer. In February 2010,
Appellant pleaded guilty to voluntary manslaughter for the 2008
4
These conditions included that defendant receive approval
from his probation officer for any changes in residence or
employment; “maintain active participation in a regiment of
outpatient mental health care”; take prescribed medication and
comply with requirements of his medical providers; submit to
drug testing; refrain from “frequent[ing] places where alcohol
or illegal drugs are sold, possessed, manufactured, or
distributed”; “not have in his possession . . . any actual or
imitation firearm, destructive device, or other dangerous
weapon”; submit to warrantless searches of his “person or
property . . . for the purposes of determining compliance with
his conditions of release”; “not travel outside the local area”
without approval from the probation officer; “not commit a
federal, state, or local crime” and “immediately notify” the
probation officer if he is arrested or questioned by law
enforcement; “not associate with any persons engaged in criminal
activity” or “convicted of a felony” without permission from the
probation officer; and “not operate a motor vehicle or obtain a
driver’s license” without approval from the probation officer.
J.A. 20–22.
5
murder charge and received a sentence of four years and seven
months’ imprisonment with five years of supervised release.
Appellant timely appealed the revocation of his conditional
release to this court. We vacated that revocation as well as
the original grant of conditional release because the district
court lacked authority under the applicable provision to impose
the conditions. United States v. Conrad, No. 10-6962 (4th Cir.
Jan. 5, 2012). While subsection (e) authorizes courts to
determine dangerousness through a hearing, it allows only two
forms of disposition--unconditional release or indefinite
commitment; it does not authorize conditional release. The only
provision of the statute that does, subsection (f), was
inapplicable because it applies only if the acquittee was
previously indefinitely committed, which Appellant was not, and
only upon recommendation by the commitment facility director.
This error only came to our attention in 2010 when Appellant
appealed the revocation of his conditional release.
The effect of the order vacating both the revocation and
the original grant of conditional release was to revert the
status of Appellant’s § 4243 proceedings to the point prior to
his conditional release. Therefore, it required a new hearing
under § 4243(e) to determine Appellant’s dangerousness--and thus
whether he should be unconditionally released or indefinitely
committed. That new hearing is the subject of this appeal. It
6
has yet to take place, however, because of events surrounding
Appellant’s 2013 conviction and present incarceration, to which
we now turn.
2.
In 2012, prior to our ordered remand, the government filed
charges against Appellant for possession of a firearm by a
convicted felon and conspiracy to distribute controlled
substances--charges similar to those brought in 2006, which
resulted in the 2007 NGI adjudication. These 2012 charges would
ultimately result in Appellant’s 2013 conviction and current
imprisonment.
In the 2012-2013 case, the district court initially found
Appellant incompetent to stand trial. It therefore stayed
further action in the case before us--arising from the 2007 NGI
adjudication--until Appellant became competent. The court found
Appellant’s competency restored several months later, in late
2012. At that point, Appellant was taken into custody to await
trial on the 2012 charges. Because Appellant was in custody and
therefore could not be released through a § 4243 hearing, the
district court opted to await the outcome of the 2012-2013 case
before conducting the § 4243 hearing yet to be held in the case
before us. In 2013, Appellant pleaded guilty to possession of a
firearm by a convicted felon and was sentenced to eight years’
7
imprisonment and three years’ supervised release. His release
from prison is scheduled for 2019. See Appellant’s Br. at 2.
Appellant then moved the district court to dismiss the
§ 4243 commitment proceedings in the case below. He argued
that, due to his imprisonment for the 2013 conviction, he could
not create the “substantial risk of harm” to the public that
§ 4243(e) seeks to prevent through commitment. J.A. 139. He
claimed that, therefore, § 4243 was no longer applicable to him.
Alternatively, he argued that the district court did not have
the authority to delay the hearing until after his term of
imprisonment because the statute imposes specific timing
provisions that do not contemplate such a delay.
The government, on the other hand, argued that Appellant’s
§ 4243 hearing should be delayed until his release from
incarceration because the purpose of § 4243 is to “ensure[] that
a federal criminal defendant found not guilty by reason of
insanity will not be released onto the streets.” J.A. 148
(alteration in original) (quoting Frank v. United States, 506
U.S. 932, 932 (1992) (Stevens, J., respecting the denial of the
petition for writ of certiorari)) (internal quotation marks
omitted). Once Appellant becomes eligible for release, the
government argued, “a hearing pursuant to § 4243 would be
appropriate to determine his suitability for further
commitment.” J.A. 148.
8
The district court denied Appellant’s motion to dismiss the
commitment proceedings and ordered a delay of the proceedings
until Appellant completes his current term of imprisonment,
finding that such a delay would best serve the statute’s
purposes. This appeal followed.
II.
Although the statutory blueprint of § 4243 is relatively
straightforward, its applicability to Appellant is complicated
by the fact that he is currently incarcerated for a crime
unrelated to the one for which he was adjudicated NGI--a
circumstance that § 4243 does not expressly contemplate.
Indeed, Appellant first argues on appeal that his incarceration
negates the statute’s applicability to him. He reasons that his
status as an inmate prevents him from qualifying as an
“acquitted” person under subsection (a), posing a danger to the
public under subsections (d) or (e), or being released under
subsections (e) or (f). Therefore, he maintains, the district
court erred by denying his motion to dismiss the commitment
proceedings. Alternatively, Appellant claims that, under the
statute’s specific timing provisions as well as its underlying
9
purposes, the district court lacked the authority to delay the
hearing until he completes his term of incarceration. 5
By contrast, the government contends that, while Appellant
may not pose a current threat to the public, his dangerousness
is irrelevant to whether to hold a § 4243(e) hearing. Rather,
determining his dangerousness is the purpose of the hearing, and
thus Appellant’s incarceration does not bear on the statute’s
applicability to him. Moreover, the government argues, allowing
a defendant to extricate himself from the requirements of § 4243
by committing subsequent offenses would perversely incentivize
crime commission. With respect to the hearing’s delay, the
government argues that reasonable delay is permissible and that
Congress did not intend strict enforcement of the forty-day
hearing deadline imposed by § 4243(c). 6
5
Appellant also argues that holding the hearing while he is
in prison would deprive him of due process. He reasons that
because his incarceration prevents a showing that he poses a
substantial risk to the public, there is no basis upon which he
could be committed, and therefore that commitment could not bear
a “reasonable relation to the purpose for which [he would be]
committed,” as required under Foucha v. Louisiana, 504 U.S. 71,
79 (1992). Appellant’s Br. at 11–12; Reply Br. at 4–5. This
reasoning attempts to couch what is essentially a statutory
argument in due process terms. It merely reiterates the
difficulty that would arise were Appellant’s hearing not
delayed. Because we affirm the district court’s decision to
delay the hearing until Appellant is released on other grounds,
we need not address this argument further.
6
The parties also assert that they disagree on the effect
of their plea agreement. As noted above, see supra note 1, the
(Continued)
10
We address these arguments in turn, determining first
whether § 4243 remains applicable to Appellant, and second,
whether the statute authorizes the district court to delay the
§ 4243 hearing until Appellant is released. As the questions
before us concern statutory interpretation, we consider them de
novo. See United States v. Letterlough, 63 F.3d 332, 334 (4th
Cir. 1995). We conclude that the statute does not permit an NGI
acquittee to nullify the statute’s application by committing
subsequent offenses and that delaying the hearing until
Appellant is released from prison is consistent with the
statutory framework of § 4243.
A.
We turn first to Appellant’s argument that the district
court should have dismissed his § 4243 commitment proceedings
parties stipulated in the plea agreement that § 4243 et seq.
would govern “all further proceedings” in the case. J.A. 16.
The government appears to argue that the parties’ stipulation
answers the question whether § 4243 should apply to Appellant.
See Appellee’s Br. at 8 (stating without analysis that the
parties stipulated to application of § 4243). Appellant
explains that his argument is not that § 4243 should not govern,
but that under the terms of § 4243 itself, his proceedings
should be dismissed because he does not qualify as an acquittee
and cannot pose a substantial risk to the public due to his
incarceration. See Reply Br. at 5. The parties therefore do
not disagree that § 4243 is the statute under which this court
should resolve the dispute. They appear to differ only on the
effect of § 4243 on the disposition of this case. Therefore,
the stipulation does not alter our analysis.
11
because his incarceration renders the statute inapplicable to
him. In addition to arguing that he does not qualify as an
“acquitted person” under § 4243(a), cannot pose a “substantial
risk” to the public under § 4243(d) or (e), and is not subject
to “release” under § 4243(e) or (f), he offers for support
United States v. Kenney, 152 F. Supp. 2d 631 (M.D. Pa. 2001).
In that case, a district court held that a defendant serving a
federal sentence for another crime at the time of the offense
leading to his NGI adjudication was not an “acquitted person”
for purposes of § 4243.
The government responds that § 4243 imposes an “unambiguous
statutory mandate,” Appellee’s Br. at 20, that “[a] hearing
shall be conducted” after an NGI adjudication, 18 U.S.C.
§ 4243(c). The government also seeks to distinguish Kenney on
the ground that the defendant in that case was already
incarcerated when he committed the offense for which he was
found NGI.
While Appellant is correct that § 4243 does not speak
specifically to his particular circumstances, the statute
nonetheless continues to apply. Appellant points to no
statutory provision, in § 4243 or elsewhere, that identifies any
circumstance that would render § 4243 inapplicable. And he has
certainly identified no provision permitting nullification of
the statute’s applicability through subsequent commission of
12
crime and incarceration. Section 4243 applies on its face to
NGI acquittees, and as the government observes, unambiguously
requires a hearing to determine commitment or release.
Kenney does not suggest a contrary conclusion in this case.
The district court’s decision in Kenney does not bind us and, in
any event, is analytically distinguishable. Unlike Appellant,
the defendant in that case was already incarcerated when he
committed the crime--assaulting a correctional officer--for
which he was adjudicated NGI. Appellant was not incarcerated
when he was charged in 2006 or when he was adjudicated NGI in
2007; he is incarcerated now because he committed additional
offenses subsequent to his NGI acquittal. Kenney does not bear
on the effect of crime commission subsequent to an NGI
determination, and thus provides no support for allowing
Appellant to terminate his status as subject to § 4243. We
conclude that the district court did not err by denying
Appellant’s motion to dismiss the commitment proceedings on that
ground.
B.
We next consider whether § 4243 authorizes the delay
imposed by the district court and conclude that it does. We
consider first the statute’s specific timing provisions, and
second the statute’s general purposes.
13
1.
Appellant asserts that the delay imposed by the district
court is impermissible because the text of § 4243(c) requires a
hearing within 40 days of the NGI verdict, which, under a
separate provision, may be extended only by 30 days, and only by
the director of the facility to which the acquittee has been
committed. See 18 U.S.C. § 4247(b).
The government counters that Congress did not mandate
strict enforcement of the 40-day deadline. Rather, the statute
provides for exceptions, such as the 30-day extension identified
by Appellant, when it is reasonable to delay. Section 4243(b)
contemplates the extension by requiring that a psychological
examination and report be ordered by the court “[p]rior to the
date of the hearing,” and “pursuant to the provisions of section
4247(b).” Under § 4247(b), the “director of the [evaluating]
facility may apply for a reasonable extension [for the
evaluation] . . . not to exceed thirty days[7] . . . upon a
7
Section 4247(b) lays out the parameters for conducting
psychological evaluations pursuant to § 4243 as well as to other
sections governing defendants with mental disorders or
competency challenges. Because it connects to several other
provisions that call for hearings to determine various mental
conditions, and those provisions, unlike § 4243, do not all
impose hearing deadlines, this section does not operate solely
within § 4243’s 40-day timeframe. Instead, it provides for an
evaluation timeline of 45 days, and allows the 30-day extension
discussed here in addition to those 45 days.
14
showing of good cause that the additional time is necessary to
observe and evaluate the defendant.” The government argues that
because the court may grant an extension for the examination, it
may similarly grant one for the hearing. Otherwise, the court
would not have the benefit of relying on the examination report
at the hearing.
Significantly, both parties agree that the statute includes
an implicit exception to the 40-day deadline by requiring the
court to order a psychological evaluation, which, under
§ 4247(b), may take place after those 40 days have passed,
because of the 30-day extension. Inherent in their agreement is
the recognition that circumstances outside of the acquittee’s
control--such as a commitment facility’s inadequate resources to
promptly conduct the evaluation--can justify delay beyond the 40
days. And, indeed, courts have so held.
For example, in United States v. Bohe, No. 04-cr-66, 2005
WL 1026701 (D.N.D. Apr. 28, 2005), the 40-day deadline under
§ 4243(c) had passed due to a “backlog of
psychiatric/psychological examinations at federal medical
facilities,” id. at *2. The defendant argued that the statute
therefore required his release, but the court disagreed. The
court reasoned that the evaluation would be crucial to the
hearing, and moreover, that releasing the defendant before the
court determined his dangerousness “would compromise the intent
15
of the statute.” Id. Therefore, because the backlog made it
“virtually impossible to comply with the forty-day time
constraint set forth in 18 U.S.C. § 4243(c),” the court delayed
the hearing “until such time as the appropriate . . .
examination is completed.” Id.
It would seem even more fitting to recognize that strict
enforcement is not always possible in the context of
circumstances within an acquittee’s control. In United States
v. Tucker, 153 F. App’x 173, 175 (4th Cir. 2005) (per curiam)
(unpublished), we affirmed delay of the acquittee’s § 4243(c)
hearing while he served a state sentence. Such a result is the
only reasonable one here, given the statute’s twin goals,
discussed in detail below, of both protecting the acquittee
against prolonged unnecessary detention, and the public against
premature release.
Appellant’s contention that circumstances beyond the
court’s control, but within an acquittee’s control--such as
subsequent commission of additional crimes, a guilty plea, and
incarceration--could prevent the court from holding the required
hearing once the 40 days have elapsed is untenable. Even though
the hearing, if delayed until Appellant completes his sentence,
16
will occur approximately 12 years after the NGI adjudication, 8
the delay is attributable to Appellant’s commission of crimes
subsequent to his NGI adjudication. Because Appellant has been
the principal architect of the delay he faces, and such delay is
reasonable under the statute when the acquittee is serving a
term of incarceration, we conclude that the district court did
not err in delaying the proceeding here.
2.
We conclude that the statute’s purposes support the
district court’s decision to delay the § 4243 hearing until
Appellant’s release from prison as well. Appellant contends
that the timing provisions of § 4243 ensure prompt access to
mental health care following an NGI verdict and immediate
release upon recovery. Appellant characterizes the failure to
provide him with prompt rather than delayed access to such care
as a deprivation of liberty without due process. 9
8
As discussed above, Appellant was adjudicated NGI in 2007,
and his release from his current incarceration is scheduled for
2019.
9
The Supreme Court has said that the purposes of commitment
following an insanity acquittal include treatment of the
acquittee’s mental disorder. See Jones v. United States, 463
U.S. 354, 368 (1983). As we discuss below, the purposes of a
§ 4243 hearing, by contrast, are to protect (1) an acquittee’s
right to release once he has recovered or become no longer
dangerous, and (2) the public’s right to protection from the
acquittee’s potential dangerousness in the meantime. Because
this appeal concerns whether and when to hold Appellant’s § 4243
(Continued)
17
The government responds that the timing provisions limit
the court’s power to confine an acquittee before the hearing and
ensure that the hearing will be held close in time to when the
acquittee would otherwise be released from confinement. The
government argues that the former purpose is not implicated when
the acquittee is incarcerated for another offense, and that the
latter purpose counsels in favor of delaying the hearing until
it can be held closer in time to when Appellant would actually
be released.
The purpose of a hearing to determine commitment or release
following an insanity acquittal is to determine whether the
acquittee is eligible for release because he has “recovered his
sanity or is no longer dangerous” to the public. Jones v.
United States, 463 U.S. 354, 368 (1983). Section 4243, in
providing for that hearing, therefore guarantees two concomitant
rights: on the one hand, the right of the acquittee to release
once his mental disorder no longer makes him a danger to the
public; and on the other, the right of the public at large to
protection from the acquittee’s potential dangerousness. We
find that delaying Appellant’s hearing until he completes his
term of incarceration serves both purposes.
hearing, a threshold step to determining whether he should be
committed, this argument is premature.
18
First, delay serves the purpose of ensuring Appellant’s
right to release once he is found recovered or not dangerous.
Appellant is not eligible for release while he remains
incarcerated for the 2013 conviction. His current incarceration
admits of no flexibility; it would not yield to allow release if
Appellant were now deemed not to pose a danger to the public.
Therefore, the statutory entitlement to release cannot flow to
Appellant until he is no longer in prison. By contrast,
delaying his hearing until he has served his term of
incarceration would allow Appellant’s right to release--again,
if the court determines that he has recovered his sanity or does
not pose a substantial risk to the public--to come to fruition.
Second, delay serves the purpose of protecting the public
from Appellant’s potential dangerousness. Appellant cannot pose
a danger to the public at large while he remains incarcerated.
The public’s statutory right to protection, therefore, does not
arise until Appellant would otherwise be released from prison.
Moreover, whether Appellant would currently pose a danger to the
public does not relate to the purpose of protecting the public
when it will matter: in 2019, when Appellant completes his
current term of incarceration. Delaying the hearing until then,
therefore, ensures the public’s right to protection.
For these reasons, we find that the district court’s
decision to delay the hearing until after Appellant completes
19
his prison term does not run counter to the statute’s purposes,
but rather furthers them.
III.
For the foregoing reasons, the district court’s denial of
Appellant’s motion to dismiss his commitment proceedings under
18 U.S.C. § 4243 and its order that the proceedings be delayed
while Appellant completes his current term of imprisonment are
AFFIRMED.
20