United States v. John Kelso

United States Court of Appeals
For the Eighth Circuit
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No. 18-1137
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
John Donald Kelso
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: January 7, 2019
Filed: January 10, 2019
[Unpublished]
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Before BENTON, BOWMAN, and STRAS, Circuit Judges.
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PER CURIAM.
John Donald Kelso appeals the district court’s1 order committing him to the
custody of the Attorney General for hospitalization under 18 U.S.C. § 4246. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
After a hearing, the district court found by clear and convincing evidence that
Kelso was suffering from a mental disease or defect such that his release would create
a substantial risk of bodily injury to another person or serious damage to the property
of another. See 18 U.S.C. § 4246. This court concludes the decision was not clearly
erroneous. See United States v. Williams, 299 F.3d 673, 676-78 (8th Cir. 2002)
(standard of review).
The commitment order is supported by medical opinions set forth in reports
prepared by mental health professionals where Kelso is presently confined for
treatment, and by defense counsel’s independent psychological examiner. The reports
noted that Kelso lacked insight into his medical condition, had a history of irregular
medication compliance as well as psychotic and aggressive behaviors, and engaged
in antisocial acts when released. These reports conclude there is a clear nexus
between Kelso’s mental illness and his aggressive behaviors, and that he suffers from
a serious mental illness such that he meets the criteria for section 4246 commitment.
See United States v. Ecker, 30 F.3d 966, 970 (8th Cir. 1994) (factors in determining
potential dangerousness).
This court notes that the Attorney General is under a continuing obligation to
exert reasonable efforts to place Kelso in a suitable state facility, and that Kelso’s
custodians must prepare annual reports concerning his mental condition and the need
for continued commitment. See 18 U.S.C. §§ 4246(d) and 4247(e)(1)(B).
1
The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri, adopting the report and recommendations of the
Honorable David P. Rush, United States Magistrate Judge for the Western District of
Missouri.
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The judgment is affirmed. Counsel’s motion to withdraw is granted.
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