United States v. Kevin Dalasta

United States Court of Appeals
For the Eighth Circuit
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No. 20-2191
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Kevin Allen Dalasta
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: February 16, 2021
Filed: July 12, 2021
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Before SMITH, Chief Judge, ARNOLD and STRAS, Circuit Judges.
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SMITH, Chief Judge.
Kevin Allen Dalasta was charged with being a prohibited person in possession
of a firearm. The district court1 ordered that Dalasta be committed to the custody of
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The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri, adopting the report and recommendations of the
the Attorney General for mental health care pursuant to 18 U.S.C. § 4246. Dalasta
argues that the district court clearly erred by concluding that he would be dangerous
if released. We disagree and affirm.
I. Background
In 2015, Dalasta’s parents confronted Dalasta about the money he spent on
cellphone games. The confrontation quickly escalated when Dalasta responded by
packing his things (including firearms); threatening to leave; and holding a gun to his
own chin. Ultimately, law enforcement responded, and no one was injured. But while
investigating the situation, law enforcement discovered that Dalasta possessed
firearms illegally.
The government charged Dalasta in the United States District Court for the
Southern District of Iowa (“Iowa district court”) with being a prohibited person in
possession of a firearm. He was never tried, however, because the Iowa district court
found Dalasta incompetent to proceed to trial. The Iowa district court then committed
Dalasta to the custody of the Attorney General and ordered that he report to the
United States Medical Center for Federal Prisoners (USMCFP) located in Springfield,
Missouri, for a competency evaluation. After the evaluation was performed, the Iowa
district court determined that Dalasta was unlikely to be restored to competency and
ordered that he remain in the USMCFP for an evaluation of dangerousness under 18
U.S.C. § 4246(b).
The government then petitioned the United States District Court for the
Western District of Missouri for a hearing on Dalasta’s present mental condition
under § 4246, requesting that he be committed. The magistrate judge held a hearing
in August 2018. There, the government presented a report from a Risk Assessment
Honorable David P. Rush, United States Magistrate Judge for the Western District of
Missouri.
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Panel (“panel”) comprised of USMCFP physicians. The panel report evaluated
Dalasta’s dangerousness. Panel member Dr. Robert Sarrazin, Chief of Psychiatry at
USMCFP, and psychologist Dr. Ashley Christiansen, another USMCFP provider,
testified at the hearing. Psychologist Dr. Richart DeMier, who Dalasta requested to
independently evaluate him, testified as well.
Drs. Christiansen and Sarrazin, along with the panel, opined that Dalasta would
be dangerous. Dr. DeMier, in contrast, opined that insufficient evidence existed to
conclude that Dalasta was dangerous under § 4246. The magistrate judge issued a
report and recommendation (R&R) recommending Dalasta’s commitment. But the
district court declined to make a ruling because over a year had passed since the
panel’s submission of its report.
Therefore, the government filed an updated risk assessment report, in which
the panel again concluded that Dalasta presented a risk of dangerousness per § 4246.
Dr. DeMier reevaluated Dalasta and submitted a new report, again opining that there
was insufficient evidence for a finding of dangerousness. And the magistrate judge
held another hearing at which Dr. Christiansen, Dr. DeMier, and Dan Dalasta
(Dalasta’s father) testified.
All of the experts agreed that Dalasta suffered from a permanent mental defect
of a major neurocognitive disorder. While agreeing as to the presence of the defect,
Dr. DeMier disagreed with Dr. Christiansen and the panel that Dalasta’s defect
presented a risk of harm to persons or property. The magistrate judge, however,
concluded that Dr. Christiansen’s and the panel’s opinions were more persuasive. The
magistrate judge noted that, “[f]irst, though not dispositive, the [g]overnment’s
medical experts . . . spent significantly more time evaluating [Dalasta] and . . . had
more contact with [him] than Dr. DeMier.” Appellant’s Add. at 28. “Second, some
of Dr. DeMier’s findings convey[ed] uncertainty or change[d] over time, calling into
question the basis for his conclusions.” Id. Last, “and most compelling,” the
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magistrate judge found that, even though Dr. DeMier’s ultimate opinion diverged
from the other experts’, Dr. DeMier’s findings were generally “consistent with the
[p]anel’s, including that [Dalasta] suffers from a mental disorder that impairs his
judgment, that the stressors of his environment can cause him to react
disproportionately, that his increased false beliefs are concerning, that access to guns
increases his risk, and that he will need life long care and supervision.” Id. at 29.
The panel was specifically concerned about Dalasta’s intent to possess firearms
because Dalasta (1) could be emotionally reactive; (2) failed to understand that he
was legally barred from possessing weapons; (3) had a “limited ability to accurately
perceive situations,” id. at 18; (4) repeated that it is was his right and intent to obtain
firearms and use deadly force if threatened; and (5) confabulated “that he has a
relationship with the U.S. military with high level security clearances and has
extensive weapons training[] [and] that he was shot in the head during a covert CIA
mission while engaged in combat in Panama,” id. at 22.
Though Dr. DeMier ultimately opined that Dalasta would not be dangerous if
released, he stated, “if [Dalasta] had ready access to weapons, that would have led me
to a different conclusion.” J.A. at 289. Dr. DeMier qualified his opinion with the
assumption that Dalasta would live with his parents and not have access to guns.
Thus, as the magistrate judge found, Dr. DeMier’s “opinion relie[d] on assumptions
about the conditions of [Dalasta’s] environment upon release,” which “Dr. DeMier
c[ould not] guarantee or predict.” Appellant’s Add. at 31. Neither could the court
guarantee Dalasta’s environment, stating that upon release Dalasta “would effectively
be free to live unsupervised, without any of the measures Dr. DeMier himself admits
are necessary to decrease [Dalasta’s] risk of future dangerousness.” Id. at 32.
Moreover, Dalasta “had adamantly expressed a desire to live on his own,” which even
Dr. DeMier “recognized.” Id. at 26.
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Based on the updated report, the magistrate judge once again recommended
Dalasta’s commitment in a second R&R. The magistrate judge based its
recommendation upon Dalasta’s
lack of insight as to his mental defect and need to comply with
treatment, his repeated intent to possess weapons and defend himself,
his destructive behavior in flooding his cell, his lack of insight about
possessing weapons, as well as the absence of a strong plan for release
and supervision . . . .
Id. at 32. This time, the district court adopted the R&R and ordered that Dalasta be
committed per § 4246.
II. Discussion
Dalasta appeals the commitment order, challenging only the district court’s
finding of dangerousness. He argues that the district court clearly erred because it
improperly (A) rejected Dr. DeMier’s views on the basis that they lacked certainty;
(B) shifted the burden of proof; and (C) discredited Dr. DeMier’s opinion based on
the government’s experts’ having spent more time evaluating Dalasta.2
Section 4246 allows for the “indefinite hospitalization” of Dalasta if he, “as the
result of a mental illness, poses a significant danger to the general public.” United
States v. Thomas, 949 F.3d 1120, 1123 (8th Cir. 2020) (quoting United States v. S.A.,
129 F.3d 995, 998 (8th Cir. 1997)). Commitment under the statute requires the
2
Dalasta also broadly argues that “[a] review of the record as a whole shows the
lack of clear and convincing evidence as does the excerpts of this record.”
Appellant’s Br. at 33 (citing pages 4–26 of his brief, which is the statement of facts).
But it is not our job to make the appellant’s arguments for him. Cf. Rodgers v. City
of Des Moines, 435 F.3d 904, 908 (8th Cir. 2006). Dalasta has failed to develop this
challenge. We therefore review only the specific arguments that he raised as set forth
in Parts II(A)–(C) of this opinion.
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government to prove that the person (1) has a mental disease or defect and (2) will be
dangerous (“would create a substantial risk of bodily injury or serious property
damage”) if released. Id. In addition, the government must prove that there is “a direct
causal nexus between the mental disease or defect and dangerousness” and that there
is not a “suitable state placement.” Id. (quoting United States v. Williams, 299 F.3d
673, 676 (8th Cir. 2002)).
The government has the burden “to prove dangerousness by clear and
convincing evidence.” S.A., 129 F.3d at 1000. We then “review the district court’s
determination of dangerousness for clear error,” id., which is a “significantly
deferential” standard, Thomas, 949 F.3d at 1123 (quoting Williams, 299 F.3d at 676).
We will only reverse if we are left with “a ‘definite and firm conviction that a mistake
has been committed.’” Id. (quoting Williams, 299 F.3d at 676). Our ability to reach
a different conclusion is insufficient grounds unless we are convinced the district
court erred in reaching its decision. Id.“Overt acts of violence are not required to demonstrate dangerousness.” S.A.,
129 F.3d at 1001. “[D]elusions and threats [are] enough to prove dangerousness even
though [the] defendant never had the opportunity to act on them.” Williams, 299 F.3d
at 677 (second alteration in original) (quoting United States v. Ecker, 30 F.3d 966,
970 (8th Cir. 1994)). The fact that a person’s “recent behavior has been vastly
improved,” on its own, “does not require a finding that [the detainee] is not
dangerous.” S.A., 129 F.3d at 1001 (citing United States v. Evanoff, 10 F.3d 559, 563
(8th Cir. 1993) (“[T]he recency or remoteness of any particular activity simply affects
the weight the court will give to that particular evidence.”)). Nor does that fact,
coupled with a detainee’s “minimal history of actual violence,” require a finding that
the detainee is not dangerous. Williams, 299 F.3d at 677. “A finding of substantial
risk under § 4246 may be based on any activity that evinces a genuine possibility of
future harm to persons or property.” Id. (cleaned up).
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A. Dr. DeMier’s Opinion
First, Dalasta argues that the district court improperly discounted Dr. DeMier
by finding that Dr. DeMier’s opinion “convey[ed] uncertainty or change over time.”
Appellant’s Add. at 28. After careful review of the record, we disagree that the
district court clearly erred in this finding. The district court supported its
characterization of Dr. DeMier’s opinion with examples in the record. Dalasta has not
refuted the ability of those examples to provide a sound basis for the court’s finding.
When assessing a person’s dangerousness, the district court “may reject
experts’ conclusions when their reasoning supports different results.” Thomas, 949
F.3d at 1124 (quoting United States v. Bilyk, 949 F.2d 259, 261 (8th Cir. 1991)). The
district court has discretion to weigh the credibility and cogency of expert opinions.
See id. Something more than disagreement with the court’s credibility determination
is needed to show that the court committed clear error. See id. Here, as in Thomas,
“[t]he district court was unpersuaded by Dr. DeMier, and after careful review of the
record, we are not left with a definite and firm conviction that a mistake has been
committed.” Id. (quotation omitted).
B. Dalasta’s Access to Firearms
Dalasta next contends that the district court required Dr. DeMier “to be clear,
certain, and clairvoyant about [Dalasta’s] lack of future dangerousness.” Appellant’s
Br. at 33. He contends this elevated standard improperly shifted the burden of proof.
We disagree with Dalasta’s view of the court’s ruling. The district court did not
require Dalasta to prove, through Dr. DeMier, that Dalasta would not be dangerous.
All of the experts—including Dr. DeMier3—concluded that if Dalasta had
access to firearms, he presented a risk to persons or property. Because Dalasta
3
J.A. at 289 (Dr. DeMier reported, “if he had ready access to weapons, that
would have led me to a different conclusion”).
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intended to possess firearms when released and live independently, the court
concluded that there was sufficient proof of dangerousness. By stating that “Dr.
DeMier cannot guarantee or predict that [Dalasta] would not have access to firearms,”
Appellant’s Add. at 31, the district court correctly identified that Dr. DeMier’s
opinion rested on two assumptions unrelated to Dalasta’s medical condition.
Dr. DeMier assumed that Dalasta would live with his parents and not have access to
firearms. These assumed conditions reduced the cogency of his opinion that Dalasta
would not be dangerous because of the uncertainty of their eventuality. Again, the
court was entitled to weigh Dr. DeMier’s testimony with the other experts’ opinions.
See Thomas, 949 F.3d at 1124. It explained,
the undersigned finds compelling Dr. Christiansen’s and the [p]anel’s
opinion that [Dalasta’s] continued belief about his need to possess
weapons and use them if threatened elevates his risk. Dr. DeMier’s
opinion that [Dalasta’s] assumed lack of access to firearms reduces his
risk is less persuasive. Here, the charges leading to the present
proceedings involved [Dalasta] being in possession of firearms he was
not lawfully authorized to possess. Given that all the experts agree
[Dalasta’s] access to firearms increases his risk, the undersigned cannot
ignore [Dalasta’s] ability to access firearms would be entirely within his
discretion if released.
Appellant’s Add. at 32. Thus, by pointing out the weakness in an expert’s opinion
when contrasted against the opinions of other experts, the district court did not shift
the burden of proof onto Dalasta.
C. Time Disparity
Lastly, Dalasta argues that the district court erred by “discrediting Dr.
DeMier’s opinions by invoking the inherent time[]disparity between the [g]overnment
experts and Dr. DeMier.” Appellant’s Br. at 36. However, Dalasta’s argument is
foreclosed by our decision in Thomas, 949 F.3d 1120.
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In Thomas, the defendant argued that the district “court improperly gave more
weight to the government experts simply because they spent more time with [the
defendant].” 949 F.3d at 1123. There, we acknowledged that “if district courts can
give government experts more weight simply because they have more time with the
defendant, then the defendant will be disadvantaged.” Id. at 1124. Even so, we
explained that “the government’s home-field advantage, by itself, is not grounds for
clear-error reversal. Rather, a factfinder has authority to ‘give properly admitted
expert testimony such weight as he or she thinks the circumstances dictate that it
deserves.’” Id. (quoting Skar v. City of Lincoln, 599 F.2d 253, 259 (8th Cir. 1979)).
Thus, the inherent time disparity does not warrant reversal.
Moreover, the district court stated that the time disparity was “not dispositive”
and, instead, found “most compelling” that Dr. DeMier’s findings were largely
consistent with the findings of the government’s evaluators. Appellant’s Add. at 28,
29; cf. Thomas, 949 F.3d at 1124 (“Moreover, the district court explained that the
primary reason for ordering commitment was the weakness of Dr. DeMier’s opinion,
not the government’s lengthy exposure to Thomas.”).
III. Conclusion
For the foregoing reasons, we affirm.
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