IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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NO. 93-1106

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT ALLEN JACKSON,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Texas

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(April 19, 1994)

Before HENDERSON,* SMITH, AND EMILIO M. GARZA, Circuit Judges.

HENDERSON, Circuit Judge:

_______________________________________ * Circuit Judge of the Eleventh Circuit, sitting by designation.

Robert Allen Jackson appeals from an order of t he United

States District Cou rt for the Northern District of Texas denying1 The district court's order is a final appealable order within

the meaning of 28 U.S.C. § 1291. See United States v. Clark , 893

F.2d 1277, 1280 n.3 (11th Cir.), cert. denied , 494 U.S. 1090, 110

S.Ct. 1833, 108 L.Ed.2d 962 (1990).

2 Section 4243(a) directs that "[i]f a person is found not

guilty only by reason o f insanity at the time of the offense

charged, he shall be committed to a suitable facility until such

time as he is eligible for release pursuant to subsection (e)." 18

U.S.C. § 4243(a). Subsection (e) requires commitment to the

custody of the Attorney General if, after a hearing, the court

fails to find that his "release would not create a substantial risk

of bodily injury to another person or serious damage of property of

another due to a present mental d isease or defect." 18 U.S.C.

§ 4243(e).

2 his request for conditional release from his commitment pursuant to

the provisions of 18 U.S.C. § 4243(a) to a "suitable facility," and

directing that he be entrusted to the custody of the Attorney

General under 18 U.S.C. § 4243(e). 1 We affirm.

I. BACKGROUND

After robbing a bank teller at gunpoint, Jackson was charged

with violating 18 U.S.C. § 2113 (a) and (d) (bank robbe ry), 18

U.S.C. § 924(c)(1) (using or carrying a firearm during and in

relation to a crime of violence) and 18 U.S.C. § 922(g)(1)

(possession of a firearm by a convicted felon). He was

subsequently diagnosed as suffering from paranoid schizophrenia and

was acquitted of the charges by reason of insanity. In compliance

with 18 U.S.C. § 4243(a), 2 the district court then ordered that he

be hospitaliz ed for a determination of whether his release would

create a substantial risk of bodily injury to the person or

property of another due to his mental condition.

This assessment took place at the United States Medical Center

for Federal Prisoners in Springfield, Missouri ("Medical Center").3

According to a report prepared for the court by a review panel

consisting of staff psychologists David L. Reuterfors, David F.

Mrad and Christina A. Pietz, Jackson began hearing the voice of

someone he referred to as "Buddy" during a 1989 state incarceration

in Texas for a convenience store robbery. He became suspicious of

others, whom he perceived were trying to threaten or poison him,

and was prone to outbursts of int ense anger, which sometimes

resulted in physical altercations. After his release, he continued

to suffer from auditory h allucinations. He claimed that "Buddy"

commanded him to purchase the gun he used in the bank robbery and

to rob the bank.

Jackson has been hospi talized three times for mental health

eval uations. His initial examination at the Medical Center

occurred between De cember 12, 1991 and January 24, 1992 to

determine his competency to stand trial. During this period, the

staff observed him actively responding to auditory hallucinations

on numerous occasions. When confronted about his behavior, he

became increasingly hostile and at one point, broke out a window

pane in his cell. He was placed in locked status after throwing an

inmate, who had resisted his sexual advances, against a wall. He

indicated to the staff that the voice directed his actions. This

behav ior led to a diagnosis of chronic schizophrenia, paranoid

type. The Medical Center staff concluded at that time that Jackson

was unable to understand the nature of the charges against him or

to assist properly in his own defense.4

He was readmitted to the Medical Center on April 9, 1992, in

an effort to determine if his competency had been restored and was

again placed in locked status for observation. His auditory

hal lucinations were reduced and eventually eliminated after he

began taking Mellaril, a psychotropic medication. He was

cooperative with the staff and moved to a less restrictive

environment. By the end of this period of hospitalization on July

15, 1992, he had stopped exhibiting a thought disorder and his

schizophrenia was considered to be in remission. It was after this

admission for observation that he was found not guilty by reason of

insanity on August 6, 1992, of the criminal charges alleged in the

indictment. He was then returned to the Medical Center for another

examination.

This third admission, during which time Jackson continued to

take Mellaril, was for the purpose of assessing his dangerousness

as mandated by § 4243. The review panel reported to the court that

it was "highly likely" that Jackson's violent behavior stemmed from

paranoid delusions. (R1-111). It also opined that he presented a

risk of danger to others due to his mental illness, which could be

viewed as "substantial" if he were not properly monitored upon

release to outpatient psychiatric tre atment. ( I d. at 113).

Nevertheless, the panel recommend ed that he be released from

confinement, conditioned upon such outpatient treatment, because

"when medicated, his condition improves such that he can function

appropriately without incident." ( I d. ). The panel also observed,

however, that:5 Jackson was unable to understand the

relationship of the lessening of his psychotic

symptoms to his taking medication. Mr.

Jackson never provided an adequate response to

what actions he would take if his psychotic

symptoms reappeared. Again, this suggested

Mr. Jackson was not quite willing to accept he

indeed had a mental illness.

During questions designed to understand his

history of potentially dangerous behavior, Mr.

Jackson candidly explained incidents where he

acted violently. However, Mr. Jackson was not

q uite willing to admit that his behavior wa s

connected to his mental illness. He was

willing, however, to admit that he had

experienced some difficulties with "Buddy,"

and he referenced the recent bank robbery.

In summary, Mr. Jackson presented himself as

an individual who demonstrated limited insight

into his mental illness and was not willing to

admit a need for continued psychiatric care which would include psychotropic medication.

( Id. at 112). The panel stressed that, if he were released, it

would be necessary to continually monitor Jackson's compliance with

recommended treatment because those who suffer from schizophrenia

sometimes discontinue their medication due to its episodic nature.

( Id. at 113).

After the foregoing report was prepared, Jackson was accused

of another attempt to sexually assault a fellow inmate. The

government then moved for a supplemental psychiatric examination.

Jackson opposed the motion, stating that the Medical Center staff

was aware of the allegations, but continued to recommend that he be

released with proper su pervision. The court denied the

government's request and scheduled a hearing as required by 18

U.S.C. § 4243(c).6

At the hearing, Dr. Pietz testified on Jackson's behalf. She

explained that schizophrenia is a lifelong illness, which can be

controlled only with the proper dosage of psychotropic medication.

She added though that, even after a patient has been stabilized,

the medication can become ineffective

- that it can work on one day

and not another. She acknowledged that Jackson's violent episodes

were triggered at times by paranoid delusions and that he continued

to be dangerous, as evidenced by the alleged post-evaluation attack

on the other inmate. In her opinion, however, Jackson's ongoing

dangerousness was not due to his mental illness, which was in

remission , but was the result of an untreatable antisocial

perso nality. She indicated that, although another dangerousness

evaluation was not conducted after this last violent episode, she

and the Medical Cen ter staff continued to follow Jackson's

condition and maintained their belief that his schizophrenia was in

remission. Dr. Pietz also testified that Jackson had a good

history with respect to taki ng psychotropic medication, but she

indicated that his medical record revealed he had refused at some

point to take Motrin, a medication which had been prescribed to him

for pain.

After considering the foregoing information, the district

court d etermined that Jackson failed to prove by clear and

convincing evidence that he was eligible for release. In reaching

this conclusion, the court took into account the fact that he had

not been reevaluated for dangerousness after the second alleged

s exual assault. The court noted that the diagnosis of7

schizophrenia was based in part on a similar violent episode and

found, contrary to Dr. Pietz' s opinion, that this behavior could

indicate an erroneous evaluation of remission or a reemergence of

mental illness. The court also observed that the panel's statement

that Jackson could function without incid ent when medicated no

longer held true. Without another evaluation, the court was

unwilling to release Jackson as bein g no longer a danger to the

community due to a mental illness. In addition, the court found

that even if Jackson's illness were in remission, he failed to show

by clear and convincing evidence that such remission would be

maintained through compliance with his medication regimen. Having

found that Jackson failed to carry his burden of proof, the court

ordered that he be committed to the custody of the Attorney General

pursuant to 18 U.S.C. § 4243(e).

II. DISCUSSION

We are first confronted with the appropriate standard of

review to apply to the district court's order. The government

maintains that this appeal turns on factual findings which must be

affirmed unless clearly erroneous. Jackson argued in his brief

that we are faced with a mixed question of law and fact subject to

de novo review. At oral argument, however, he retreated from this

position and stated that he agreed with the government. Only one

other circuit has definitively answered this question before us.

See United States v. Steil

, 916 F.2d 485, 487-88 (8th Cir. 1990)

(holding that the clearly erroneous standard applies to review a

district court's determination of dangerousness under § 4243). We3 The "clear and convincing evidence" standard is invoked when

the underlying offense of a per son found not guilty by reason of

insanity is "an offense involving bodily injury to, or serious

damage to the property of, anothe r person, or involving a

substantial risk of such injury or damage." 18 U.S.C. § 4243(d).

In all other instances, an acquittee must prove his lack of

dangerousness by a preponderance of the evidence. Id. Jackson's

criminal be havior, which included armed bank robbery, involved a

substantial risk of injury or damage to the person or property of

another.

8 now join the Eighth Circuit Court of Appeals and hold that the

district court's conclusion that Jackson failed to prove he was

entitled to release is a finding of fact which can be reversed only

if clearly erroneous.

Under § 4243(d), it was Jackson's burden to prove "by clear

and convincing evidence that his release would 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." 3 18 U.S.C. § 4243(d).

Clear and convincing evidence is "that weight

of proof which 'produces in the mi nd of the

trier of fact a firm belief or conviction as

to the truth of the allegations sought to be

established, evidence so clear, direct and

weighty and con vincing as to enable the fact

finder to come to a clear conviction, without

hesitancy, of the truth of the precise facts'

of the case."

U nited States v. Barton

, 992 F.2d 66, 69 n.6 (5th Cir . 1993)

(quoting I n re Medrano

, 956 F.2d 101, 102 (5th Cir. 1992) a n d

Cruzan v. Director, Mo. Dept. of Health , 497 U.S. 261, 285 n.11,

110 S.Ct. 2841, 2855 n.11, 111 L.Ed.2d 224, 246 n.11 (1990)). We

have no trouble finding that the district court was not clearly9

erroneous in concluding that Jackson failed to carry his burden of

proof.

Jackson concedes that his release would pose a threat to the

safety of others. He claims he is entitled to be discharged,

however, because the evidence shows that his current dangerousness

stems from an antisocial personality rather than schizophrenia and

that he can be held legally only if his violent behavior is "due to

a present mental disease or defect." The district court was

justified, however, in rejecting the panel's opinion that Jackson's

mental illness was in remission.

"Fact finders are entitled to make credibility determinations

about witnesses, even expert witnesses. '[T]he questions of the

credibility and weight of expert opinion testimony are for the

trier of facts, . . . such testimony is ordinarily not conclusive

even where it is uncontradicted.'" I d. at 69 (qu oting M ims v.

United States

, 375 F.2d 135, 140 (5th Cir. 1967)). As the district

court noted, Jackson's post-evaluation behavior included a violent

encounter similar in kind to the assault he perpetrated during his

first hospitalization. The court correctly attached no weight,

therefore, to the panel's determination that he can "function

without in cident" when medicated. Dr. Pietz testified at the

hearing that she believed the latter assault was the result of

Jackson's ant isocial personality rather than a recurrence of

auditory hallucinations because he failed to display other symptoms

of schizophrenia, such as disorganized thinking, mistrust of others

and inadequate hygiene. Even so, Dr. Pietz also acknowledged that10

the psychotropic medication, upon which Jackson's alleged remission

is entirely dependent, can work one day and not another. We cannot

say, on the record before us, that the district court clearly erred

in concluding that the diagnosis of remission was faulty, or that

the second assault could have been caused by a reemergence of

mental illness.

We find no merit in Jac kson's contention that the court

improperly ignored Dr. Pietz's testimony that another dangerousness

evaluation was unnecessary because she and the Medical Center staff

continued to monitor his conditio n after the second assault.

Instead, the court discounted her medical opinion that the assault

was unconnected to his psychosis. Moreover, his argument that

there was no evidence that his schizophrenia was not in remission

misses the ma rk. The burden of proof was on him to show that he

was no longer dangerous due to a mental illness. For the court to

reject Dr. Pietz's opinion, the government was not req uired "to

offer rebuttal evidence in the form of its own expert witnesses or

otherwise." Id. at 70.

In addition, the panel agreed that Jackson lacke d the

necessary insight into his illness to connect the lessening of his

symptoms to complying with his medical regimen. Although Jackson's

mother stated that she would oversee his treatment at home, there

is no assurance i n the record that he would continue to take his

medic ation once released. Section 4243 does not require that

Jackson be released simply because there are mechanisms whereby he

could be closely monitored on an outpatient basis.11

Finally, Jackson's reliance upon Foucha v. Louisiana

, 504 U.S.

, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992), is misplaced. In

Foucha

, the Supreme Court found unconstitutional a Lo uisiana

sta tute that permitted the indefinite detention of an insanity

acquittee who was no longer mentally ill, unless he could prove he

was no longer dangerous. In so doing, the Court reiterated its

prior holding that "'[t]he committed acquittee is entitled to

release when he has recovered his sanity or is no longer

dangerous[.]'" See Foucha at , 112 S.Ct. at 1784, 118 L.Ed.2d

at 446 (quoting Jones v. United States

, 463 U .S. 354, 368, 103

S.Ct. 3043, 3052, 77 L.Ed.2d 694, 708 (1983)) (emphasis added). In

Foucha

, the acquittee was not mentally ill at the time of his

dangerousness assessment. S ee id. at , 112 S.Ct. at 1785, 1788-

89, 118 L.Ed. 2d at 447, 452. By contrast, Jackson failed to prove

that his violent tendencies were unrelated to his psychosis.

III. CONCLUSION

The district court did not clearly err in finding that Jackson

failed to carry his burden of proof under § 4243. We, therefore,

AFFIRM the judgment of the district court denying his conditional

release and committing him to the custody of the Attorney General.