United States v. Craig Donnelly

FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-30081
Plaintiff-Appellee, D.C. Nos. 3:21-cr-00232-SI-1
3:21-cr-00232-SI
v.
OPINION
CRAIG THOMAS DONNELLY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted July 5, 2022
Portland, Oregon
Before: Paul J. Watford, Ryan D. Nelson, and Kenneth K. Lee, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Watford
PER CURIAM:
Craig Donnelly is charged with three counts of stalking, cyberstalking, and
interstate violation of a protective order. The district court ordered him detained
without bail under 18 U.S.C. § 3142 as both a danger to the community and a flight
risk. He has been held since his initial appearance in August 2021 at the federal
detention center in Sheridan, Oregon.
Page 2 of 12
On November 18, 2021, after ordering a psychological evaluation and
conducting a hearing to evaluate Donnelly’s competency to stand trial, the district
court found that Donnelly “is suffering from a mental disease or defect rendering
him mentally incompetent to the extent that he is presently unable to assist
properly in his defense of this criminal matter.” As required under the Insanity
Defense Reform Act (IDRA), the district court committed Donnelly to the custody
of the Attorney General. See 18 U.S.C. § 4241.
The IDRA directs the Attorney General to “hospitalize the defendant for
treatment in a suitable facility . . . for such a reasonable period of time, not to
exceed four months, as is necessary to determine whether there is a substantial
probability that in the foreseeable future he will attain the capacity to permit the
proceedings to go forward.” Id. § 4241(d)(1). The Attorney General has delegated
responsibility for complying with this requirement to the Bureau of Prisons (BOP).
The BOP, however, is currently experiencing a significant backlog in placing
defendants in suitable facilities for treatment, as § 4241(d) requires. The lack of
available bed space has led to long delays between the time a district court finds a
defendant not competent to stand trial and the defendant’s hospitalization for
treatment and evaluation.
Four months after the district court issued its order remanding him to the
Attorney General’s custody, Donnelly remained detained in Oregon awaiting
Page 3 of 12
hospitalization. He was informed that he would likely have to wait another four
months—until July 2022—before a bed would become available.
In March 2022, Donnelly filed the motion giving rise to this appeal, which
asked the district court to dismiss the indictment. Donnelly argued that the four-
month-plus delay in placing him in a suitable hospital facility violated his rights
under 18 U.S.C. § 4241(d) and the Fifth Amendment’s Due Process Clause. As
the basis for his statutory argument, Donnelly contended that the four-month time
limit imposed by § 4241(d)(1) begins to run when the district court orders a
defendant committed to the custody of the Attorney General for placement in a
suitable hospital facility. Under that reading, Donnelly’s rights have been violated
because he has already been in the Attorney General’s custody for more than four
months, and he still has not been hospitalized for treatment.
On May 11, 2022, the district court denied Donnelly’s motion to dismiss the
indictment. It rejected Donnelly’s statutory argument on the ground that
§ 4241(d)’s four-month time limit begins to run only upon the defendant’s
hospitalization, not upon his commitment to the Attorney General’s custody. The
district court reasoned that the four-month time limit had not yet begun to run,
much less been violated, because Donnelly had not yet been hospitalized. The
court rejected Donnelly’s due process argument on the ground that he had not
shown the kind of “grossly shocking and outrageous” government misconduct
Page 4 of 12
necessary to warrant dismissal of the indictment. United States v. Kearns, 5 F.3d
1251, 1253 (9th Cir. 1993).
Donnelly filed an interlocutory appeal challenging the denial of his motion
to dismiss the indictment. We have jurisdiction to hear his appeal under the
collateral order doctrine, as the district court’s order conclusively resolves issues
separate from the underlying merits of the criminal charges against Donnelly (i.e.,
Donnelly’s continued detention) and would be effectively unreviewable on appeal
from a final judgment. See Sell v. United States, 539 U.S. 166, 176–77 (2003).
We agree with the district court’s decision to deny Donnelly’s motion,
although our reasoning differs in certain respects and ultimately requires that we
vacate the order below. The IDRA establishes a three-step process when a criminal
defendant’s competency to stand trial is questioned. First, it provides that, “[a]t any
time after the commencement of a prosecution for an offense and prior to the
sentencing of the defendant,” either party may move for a hearing to determine the
defendant’s competency. 18 U.S.C. § 4241(a). The court holds a hearing on the
motion and makes a competency finding. Id. § 4241(c), (d). If the court finds that
the defendant is incompetent to stand trial, “the court shall commit the defendant to
the custody of the Attorney General.” Id. § 4241(d). Second, “[t]he Attorney
General shall hospitalize the defendant for treatment in a suitable facility . . . for such
a reasonable period of time, not to exceed four months, as is necessary to determine
Page 5 of 12
whether there is a substantial probability” that the defendant will be restored to
competency in the foreseeable future. Id. § 4241(d)(1). Finally, after the initial
evaluation, continued hospitalization is permitted “for an additional reasonable
period of time” until the defendant’s mental condition has improved or the pending
charges are “disposed of according to law.” Id. § 4241(d)(2).
The IDRA thus imposes two mandatory duties following an incompetency
finding. First, the district court “shall commit the defendant to the custody of the
Attorney General.” Id. § 4241(d). Second, “[t]he Attorney General shall hospitalize
the defendant for treatment in a suitable facility . . . for such a reasonable period of
time, not to exceed four months.” Id. § 4241(d)(1). We think the text of the statute
makes clear that the four-month time limit applies only to the period of
hospitalization, and thus begins to run when the defendant has been hospitalized.
Even so, that does not establish whether the statute permits a delay between
commitment and hospitalization. If hospitalization must occur immediately upon
commitment, the four-month clock starts when the defendant is committed. But if
the statute allows some amount of time between commitment and hospitalization,
the clock doesn’t start until later. 1
1
Language in two of our prior cases upholding § 4241(d) against due process
challenges suggested that the four-month deadline includes the entire period of
commitment. See United States v. Quintero, 995 F.3d 1044, 1052 (9th Cir. 2021);
United States v. Strong, 489 F.3d 1055, 1061–62 (9th Cir. 2007). But neither case
Page 6 of 12
We need not decide whether the statute allows some amount of pre-
hospitalization confinement because the delay here falls outside any constitutional
reading of the statute. Congress enacted § 4241 as part of a broad overhaul of the
provisions governing pre-trial competency determinations following the Supreme
Court’s decision in Jackson v. Indiana, 406 U.S. 715 (1972). See United States v.
Strong, 489 F.3d 1055, 1061 (9th Cir. 2007). In Jackson, the Supreme Court held
that the Fourteenth Amendment’s Due Process Clause prohibits a State from
confining a defendant for an indefinite period simply because he is not competent
to stand trial. 406 U.S. at 720. That case involved an Indiana defendant who was
committed to the State’s Department of Mental Health “until such time as that
Department should certify . . . that the defendant is sane,” despite his attorney’s
representation that restoration was highly unlikely. Id. at 719 (internal quotation
marks omitted). By the time his case reached the Supreme Court, Jackson had
been confined for three-and-a-half years without any indication that he could be
restored to competency. Id. at 738–39. The Court held that such indefinite
confinement violated the defendant’s due process rights. “At the least, due process
requires that the nature and duration of commitment bear some reasonable relation
to the purpose for which the individual is committed.” Id. at 738. Thus, a person
squarely presented the question of when the statute’s four-month period begins, so
neither is binding on us here.
Page 7 of 12
committed “solely on account of his incapacity to proceed to trial cannot be held
more than the reasonable period of time necessary to determine whether there is a
substantial probability that he will attain that capacity in the foreseeable future.”
Id.The Constitution does not permit any portion of a defendant’s commitment
under 18 U.S.C. § 4241(d) to last indefinitely. Although Congress did not provide
a specific time limit for a pre-hospitalization commitment period, Jackson requires
the duration of any such commitment to “bear some reasonable relation” to its
purpose. Id. To determine the permitted length of the pre-hospitalization
commitment period, then, we must ask what purpose that period serves.
We find our answer in the text of the statute. Upon a defendant’s
commitment, the Attorney General must identify a “suitable facility” in which to
hospitalize a defendant based on the particular rehabilitative needs of that
individual. See 18 U.S.C. §§ 4241(d), 4247. As we recently recognized, § 4247
endows the Attorney General with considerable discretion in making that
determination. See United States v. Quintero, 995 F.3d 1044, 1050–51 (9th Cir.
2021). Assuming that decision requires some amount of time, the two-step
structure of § 4241(d)—commitment to the custody of the Attorney General,
followed by a period of hospitalization—might require a pre-hospitalization
commitment period to allow the Attorney General time to identify a suitable
Page 8 of 12
facility and arrange for the defendant’s transportation to that facility. But to abide
by Jackson, the duration of the pre-hospitalization commitment period must be
limited to the time reasonably required to accomplish those tasks.
At the time the district court ruled on Donnelly’s motion, he had already
been held in the custody of the Attorney General for nearly six months. We do not
think Jackson’s “reasonable relation” requirement permits a pre-hospitalization
commitment period, whose purpose is simply to identify an appropriate treatment
facility and arrange for the defendant’s transportation to that facility, to last longer
than the maximum time Congress permitted for the period of hospitalization itself.
Thus, we have little difficulty concluding that whatever the outer limit of
§ 4241(d), the length of Donnelly’s confinement exceeds it. That fact is even more
evident today, as Donnelly has now been held in the pre-hospitalization custody of
the Attorney General for more than eight months—twice as long as the maximum
period Congress authorized for the entire length of a defendant’s hospitalization.
Having found a violation of the statute, we must next decide whether the
appropriate remedy for that violation is dismissal of the indictment, as Donnelly
has requested. In our view, dismissal is not the appropriate remedy. Congress did
not prescribe dismissal of the indictment as a remedy for violation of the time
limits imposed by § 4241(d), as it has, for example, in the context of violations of
time limits imposed by the Speedy Trial Act. See 18 U.S.C. § 3162(a). That fact
Page 9 of 12
alone may not be dispositive, but it does provide reason to doubt that Congress
intended the extreme sanction of dismissal to follow anytime the Attorney General
unreasonably delays hospitalizing a defendant whom the district court has found
not competent to stand trial.2
To craft an appropriate remedy, we look to the interests of the parties and the
relevant statutory scheme. See Oregon Advocacy Center v. Mink, 322 F.3d 1101,
1121–22 (9th Cir. 2003). In Mink, we addressed an analogous violation of
defendants’ rights under Oregon law. Like 18 U.S.C. § 4241(d), Oregon law
requires trial courts to send defendants found not competent to stand trial to a state
hospital for a restoration determination. Organizations representing such
defendants sought class-wide relief from delays that kept their clients waiting for
hospital beds for as long as five months. Id. at 1105–06. Because such extensive
detention without hospitalization violated defendants’ due process rights, we
2
We reject the government’s contention that Donnelly’s lengthy period of pre-
hospitalization commitment is essentially harmless and therefore requires no
remedy. That argument assumes that a defendant who is already detained under
the Bail Reform Act suffers no harm from time spent awaiting hospitalization
because he would have remained in detention anyway. But the harm here arises
not from the fact of detention, but rather by its extended length. However long it
takes for Donnelly to be hospitalized, treated, and (if possible) restored to
competency, all of that time will be in addition to the time he can be detained while
awaiting trial. See United States v. Romero, 833 F.3d 1151, 1154 (9th Cir. 2016)
(holding that the Speedy Trial Act permits exclusion of all time resulting from a
district court’s finding that a defendant is incompetent to stand trial). When the
excluded time is unlawfully extended by an unreasonably long pre-hospitalization
commitment period, that excess detention constitutes a real injury.
Page 10 of 12
affirmed the district court’s entry of a state-wide injunction requiring
hospitalization within seven days. Id. at 1122–23.
Although Donnelly has not sought injunctive relief, the district court
possesses supervisory authority to order the government to rectify violations of law
with remedies shaped to redress the corresponding injury. See United States v.
Bundy, 968 F.3d 1019, 1031 (9th Cir. 2020) (discussing the breadth of the court’s
supervisory powers). Ultimately, both Donnelly’s liberty interest and Congress’s
directive to restore incompetent defendants where possible will be best served by
requiring the government to hospitalize Donnelly without further delay. See Mink,
322 F.3d at 1121–22. Doing so will allow Donnelly to receive the treatment
necessary to make a restoration determination—the critical step down the path
toward either restoration and trial or dismissal of the indictment and initiation of
civil commitment proceedings. See 18 U.S.C. § 4241(d), (e). We therefore vacate
the district court’s order and remand with instructions to order the Attorney
General to hospitalize Donnelly in a suitable facility within seven days.3
3
We agree with the district court’s determination that, even if Donnelly had
established a violation of his rights under the Due Process Clause (a matter we
need not resolve), dismissal of the indictment would not be warranted. Donnelly
has not shown the kind of “grossly shocking and outrageous” government
misconduct necessary to justify dismissal of the charges against him. See Bundy,
968 F.3d at 1031; Kearns, 5 F.3d at 1253. Indeed, the Court in Jackson did not
order dismissal, notwithstanding that the defendant had been committed for more
than three years. Jackson, 406 U.S. at 738.
Page 11 of 12
We note in closing that nothing in our decision today forecloses the
possibility that dismissal may become appropriate at a future date, either in this
case or in others like it. Other defendants may be able to show that the
government’s unreasonable delay amounts to the kind of flagrant misconduct
warranting dismissal. As to Donnelly, should the Attorney General fail to comply
with the district court’s order on remand, that court may consider whether such a
failure—layered on top of the existing statutory violation—leaves available “no
lesser remedial action” than dismissal. Bundy, 968 F.3d at 1031 (citation omitted).
* * *
In sum, Congress requires the Attorney General to hospitalize a defendant
after he is found incompetent. Whether he must do so immediately or is allowed a
brief period of pre-hospitalization commitment reasonably limited to allow the
Attorney General to identify a suitable facility and arrange for the defendant’s
transportation to that facility, the government’s delay cannot exceed four months.
We make no ruling as to the maximum allowable length of a pre-hospitalization
commitment period, but hold that the eight months Donnelly has waited to be
hospitalized in a suitable facility plainly exceeds whatever period the statute
conceivably allows. In order to further Congress’s directive to determine whether
restoration is substantially probable while at the same time respecting Donnelly’s
Page 12 of 12
due process interests, we remand to the district court with instructions to order the
Attorney General to hospitalize Donnelly within seven days.
VACATED and REMANDED.
The mandate shall issue forthwith.
FILED
United States v. Donnelly, No. 22-30081
JUL 22 2022
WATFORD, Circuit Judge, concurring in the judgment: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with my colleagues that Donnelly’s prolonged wait for a hospital bed
violates 18 U.S.C. § 4241(d)(1) and that an order directing his hospitalization
forthwith is the appropriate remedy here. But I think Congress plainly imposed
four months as the outside limit on the entire period a defendant is committed to
the custody of the Attorney General for treatment and evaluation, inclusive of any
pre-hospitalization delay.
Nothing in the text of § 4241(d) suggests that Congress envisioned the
creation of two separate time periods, the first a period of pre-hospitalization
commitment subject to no statutory time constraints whatsoever, to be followed by
a period of hospitalization subject to a strict four-month time constraint. The
statute simply provides that upon finding the defendant not competent to stand
trial, a district court “shall commit” the defendant to the custody of the Attorney
General. In the same breath, the statute states that the Attorney General “shall
hospitalize” the defendant for treatment and evaluation for a reasonable period of
time not to exceed four months. The provision is most sensibly read as imposing
an outside time limit on the entire period of commitment, from issuance of the
court’s commitment order to completion of the defendant’s period of
hospitalization. See United States v. Carter, 2022 WL 483636, at *5 (D.D.C. Jan.
Page 2 of 3
27, 2022). That is the view reflected in the statute’s legislative history, which
makes no mention of two separate time periods, but instead describes a single
period of “commitment under section 4241” that “may not exceed four months.”
S. Rep. No. 98-225, at 236 (1983); see also United States v. Strong, 489 F.3d 1055,
1062 (9th Cir. 2007) (reading the statute the same way). It seems plain to me from
the text and legislative history that Congress assumed a defendant would be
hospitalized in short order following his commitment to the custody of the
Attorney General, such that four months would afford adequate time for the entire
evaluation process to be completed.
At the time it enacted § 4241(d), Congress had no reason to assume
otherwise, and certainly no reason to anticipate the lengthy pre-hospitalization
delays that have now become routine. True, the Attorney General must make an
individualized assessment when designating a “suitable facility” for the
defendant’s hospitalization. 18 U.S.C. §§ 4241(d), 4247(i)(C). But that is a
process that can reasonably be expected to take days, not months. Indeed, the
length of time it takes the Attorney General to designate a suitable facility is not
the cause of the extensive pre-hospitalization delays we are seeing today. Those
delays, which now extend to an astounding eight months, are attributable to the
lack of available bed space at the handful of facilities the Bureau of Prisons (BOP)
has equipped to conduct competency evaluations under § 4241(d).
Page 3 of 3
The BOP’s bureaucratic failure to allocate adequate agency resources to
meet the demand for competency evaluations is not, of course, a legitimate excuse
for failing to comply with the four-month time limit Congress imposed in
§ 4241(d)(1). In fact, Congress anticipated this very problem when it enacted
§ 4241 as part of the Insanity Defense Reform Act, 18 U.S.C. §§ 4241–4247.
Congress specifically authorized the Attorney General to “contract with a State, a
political subdivision, a locality, or a private agency for the confinement,
hospitalization, care, or treatment of, or the provision of services to, a person
committed to his custody pursuant to this chapter.” § 4247(i)(A). This provision
provides further confirmation, if any were needed, that Congress envisioned only a
short gap between issuance of a commitment order under § 4241(d)(1) and a
defendant’s hospitalization. Even when the BOP itself lacks available bed space, it
can contract with another entity to hospitalize defendants committed to the
Attorney General’s custody.
In short, I would hold that Congress intended § 4241(d)(1)’s four-month
time limit to apply to the entire period of confinement, not just the period of
hospitalization. Under that reading of the statute, Donnelly’s rights were violated
as of March 2022, four months after the district court issued its commitment order.