United States v. Curbow

16 F.4th 92

UNITED STATES of America, Petitioner – Appellee,

v.Gary CURBOW, Respondent – Appellant.

No. 20-7797

United States Court of Appeals, Fourth Circuit.

Argued: May 6, 2021

Decided: October 19, 2021

ARGUED: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Genna Danelle Petre, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. G. Norman Acker, III, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before KING and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by published opinion. Judge King wrote the opinion, in which Judge Thacker and Senior Judge Traxler joined. Judge Thacker wrote a concurring opinion. Senior Judge Traxler wrote a concurring opinion.

KING, Circuit Judge:

After shooting at military helicopters flying over his Mississippi farm, respondent Gary Curbow was charged in the Northern District of Mississippi with committing a federal criminal offense. The Mississippi district court deemed Curbow to be mentally incompetent to stand trial and temporarily placed him in the custody of the Attorney General for further evaluation of his mental condition. Staff members at the Federal Medical Center at Butner, North Carolina ("FMC Butner"), eventually concluded that Curbow was unlikely to be restored to competency in the foreseeable future and that his mental condition rendered him dangerous to others. The Government then filed a certificate in the Eastern District of North Carolina — as the district where FMC Butner is located — attesting that Curbow was a dangerous person who should be civilly committed. Following an evidentiary hearing, the North Carolina district court agreed and ordered Curbow's civil commitment.

In this appeal from the judgment of the North Carolina court, Curbow does not dispute that there was ample evidence before the court of his dangerousness. Rather, Curbow principally argues that he was ineligible for civil commitment under this Court's recent decision in United States v. Wayda , 966 F.3d 294 (4th Cir. 2020), because the Attorney General no longer had legal custody of him at the time of his dangerousness certification. As explained herein, we reject that argument for being without merit in part and waived in other part. We also reject Curbow's additional grounds for challenging his civil commitment. Consequently, we affirm the North Carolina court's judgment.

I.

A.

As we did in our Wayda decision, we begin with a discussion of the governing statutory framework, which encompasses §§ 4241, 4246, and 4248 of Title 18 of the United States Code. Here, the more relevant statutes are §§ 4241 and 4246. In Wayda , they were §§ 4241 and 4248.

1.

Section 4241 spells out the process for determining whether a federal criminal defendant is competent to stand trial. In pertinent part, after criminal charges are brought, "the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant." See 18 U.S.C. § 4241(a). The court must award such a hearing "if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." Id. Prior to the competency hearing, "the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court." Id. § 4241(b).

Following the hearing, if "the court finds by a preponderance of the evidence that the defendant is [mentally incompetent to stand trial], the court shall commit the defendant to the custody of the Attorney General." See 18 U.S.C. § 4241(d). Thereafter, "[t]he Attorney General shall hospitalize the defendant for treatment in a suitable facility." Id. Such hospitalization and treatment are to be:

(1) 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 [the defendant] will attain the capacity to permit the proceedings to go forward; and

(2) for an additional reasonable period of time until —

(A) his mental condition is so improved that trial may proceed, if the court finds that there is a substantial probability that within such additional period of time he will attain the capacity to permit the proceedings to go forward; or

(B) the pending charges against him are disposed of according to law;

whichever is earlier.

Id.

Finally, "[i]f, at the end of the time period specified, it is determined that the defendant's mental condition has not so improved as to permit the proceedings to go forward, the defendant is subject to the provisions of sections 4246 and 4248." See 18 U.S.C. § 4241(d). " Sections 4246 and 4248," as we explained in Wayda , "govern the federal process for civil commitment of particular persons in the government's custody whose mental condition renders them a potential threat." See 966 F.3d at 297.

2.

a.

Section 4246 (a statute more relevant here) provides for the civil commitment of a hospitalized person who "is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another." See 18 U.S.C. § 4246(a). Pursuant to the statutory framework, an evaluation under § 4246 for dangerousness is materially different from an evaluation under § 4241 for competency to stand trial. Whereas the § 4241 evaluation concerns a criminal defendant's ability to comprehend and participate in his own court proceedings, the § 4246 evaluation relates to a person's dangerousness to others.

To civilly commit a person pursuant to § 4246, the director of the facility in which the person is hospitalized must certify that the person is dangerous "and that suitable arrangements for State custody and care of the person are not available." See 18 U.S.C. § 4246(a). Significantly, a hospitalized person is subject to § 4246(a) dangerousness certification in only three circumstances. That is, the person must be one of the following: (1) "a person in the custody of the Bureau of Prisons whose sentence is about to expire"; (2) a criminal defendant "who has been committed to the custody of the Attorney General pursuant to section 4241(d)"; or (3) a person "against whom all criminal charges have been dismissed solely for reasons related to the mental condition of the person." Id.

Once the facility director has certified that a hospitalized person is dangerous, the certificate must be transmitted "to the clerk of the court for the district in which the person is confined." See 18 U.S.C. § 4246(a). At that point, the person's release is stayed pending completion of the § 4246 proceedings. Id. As part of those proceedings, the district court must order a hearing to determine whether the person satisfies § 4246 ’s standards for dangerousness. Id. § 4246(a), (c). The court also may order a psychiatric or psychological examination. Id. § 4246(b). Following the hearing, if "the court finds by clear and convincing evidence that the person is [dangerous], the court shall commit the person to the custody of the Attorney General." Id. § 4246(d). Section 4246 delineates the Attorney General's responsibilities with regard to the custody of a civilly committed person, as well as the requirements for the person's release, including possible conditional release. Id. § 4246(d) - (g).

b.

Meanwhile, § 4248 (a statute more relevant in Wayda ) provides for the civil commitment of "a sexually dangerous person." See 18 U.S.C. § 4248(a). Such a person is one "who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others." Id. § 4247(a)(5). A person is "sexually dangerous to others" if he "suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released." Id. § 4247(a)(6).

Somewhat different from § 4246 ’s certification procedures, § 4248 empowers "the Attorney General or any individual authorized by the Attorney General or the Director of the Bureau of Prisons" to "certify that the person is a sexually dangerous person." See 18 U.S.C. § 4248(a). There are just three circumstances in which a person may be certified as sexually dangerous under § 4248(a), and they are nearly identical to the three circumstances in which a person may be certified as dangerous under § 4246(a). Specifically, § 4248(a) authorizes certification of: (1) "a person who is in the custody of the Bureau of Prisons"; (2) a criminal defendant "who has been committed to the custody of the Attorney General pursuant to section 4241(d)"; and (3) a person "against whom all criminal charges have been dismissed solely for reasons relating to the mental condition of the person." The circumstance at issue both here and in Wayda — authorizing the civil commitment of a criminal defendant "who has been committed to the custody of the Attorney General pursuant to section 4241(d)" — is set forth in exactly the same language in §§ 4246(a) and 4248(a).

Similar to § 4246, § 4248 requires transmission of "the certificate to the clerk of the court for the district in which the person is confined," prompting a stay of the person's release pending proceedings that include a mandatory hearing, an optional psychiatric or psychological examination, and a disposition by the district court. See 18 U.S.C. § 4248(a) - (d). Following the hearing, if "the court finds by clear and...