1

The Honorable Ralph R. Erickson, United States District Judge for the District

of North Dakota, sitting by designation.

2

The Honorable Richard E. Dorr, United States District Judge for the Western

District of Missouri, adopting the report and recommendation of the Honorable James

C. England, United States Magistrate Judge for the Western District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-2702

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * Western District of Missouri. 

*

Michael J. Bean, Jr., * [Published]

*

Appellant. *

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Submitted: March 10, 2004

Filed: July 2, 2004 (Corrected 7/14/04)

___________

Before RILEY and MELLOY, Circuit Judges, and ERICKSON,1

 District Judge.

___________

ERICKSON, District Judge.

Michael Bean, currently incarcerated for bank robbery, appeals from the district

court’s order2

 and judgment, directing that he be committed to the custody of the

Attorney General for mental illness treatment under 18 U.S.C. § 4245. For reversal,

Bean argues his involuntary commitment was based upon insufficient evidence and
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neither the magistrate judge nor the district court made findings of fact or conclusions

of law in ordering Bean’s commitment. Bean also contends not all the procedural

safeguards were complied with prior to ordering his commitment. We affirm.

I. BACKGROUND

Michael Bean was convicted on November 27, 1989, of bank robbery. Bean

was sentenced to 210 months in prison. Bean’s projected release date is September

8, 2005. In September 2002, Bean was referred to the United States Medical Center

for Federal Prisoners (MCFP) for an assessment and consideration of inpatient

psychiatric treatment because he refused to take his prescription antipsychotic

medication.

At the MCFP, Bean was observed and interviewed by psychologist Christina

Pietz from October 9, 2002, to November 4, 2002. Dr. Pietz diagnosed Bean with

having a delusional disorder, exhibiting antisocial behavior, and suffering from

obesity with a history of hypertension. Dr. Pietz noted Bean displays bizarre behavior

and delusions, including his insistence that he worked as a screenwriter and had

written several famous plays and songs. 

Following Dr. Pietz’s recommendation, the United States filed a motion for a

hearing under 18 U.S.C. § 4245(a) to determine Bean’s present mental condition.

The magistrate judge authorized, at Bean’s request, an independent psychological

examination. Dr. Kenneth Burstin conducted the independent examination. During

the interview with Dr. Burstin, Bean confirmed he was a playwright, songwriter,

lyricist, and instrumentalist, but refuted beliefs that he was famous and that he

thought there was a conspiracy against him. Dr. Burstin opined that a diagnosis of

narcissistic personality disorder is well-supported but a diagnosis of a delusional

disorder may not be correct. Dr. Burstin concluded that if Bean does suffer from a

delusional disorder it is being adequately controlled with prescription medication.
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A hearing was held on May 9, 2003. During the hearing, Bean was called to

testify but refused to respond to his appointed attorney’s questions. Instead, Bean

wanted a sidebar without his attorney and asserted having “a jurisdictional problem

with the State of California” that was “absolutely mandate.” Bean accused his

attorney of committing “fraud against the United States of America” and also

declared his attorney has “committed felonies before the United States Court.” In

response to Bean’s assertions, the magistrate judge questioned Bean. When Bean was

asked where he currently resides, he testified: “I’m a citizen resident, permanent

resident of the State of California by birth. By oath and jurisdiction, I’ve lawfully

served on the United States capacity specified and unspecified felonies,

misdemeanors and superior - -.” 

The magistrate judge found Bean suffers from a mental disease or defect for

which he is in need of custody in a suitable facility, and recommended that Bean be

committed under § 4245. The district court approved the magistrate judge’s report

and recommendation and ordered that Bean be committed to the custody of the

Attorney General for treatment until he is no longer in need of treatment or until his

sentence of imprisonment expires, whichever occurs earlier.

II. DISCUSSION

Under 18 U.S.C. § 4245(a), an attorney for the Government, at the request of

the director of the facility in which a person is imprisoned, may file a motion with the

court for a hearing on the present mental condition of an inmate. The motion shall

be granted “if there is reasonable cause to believe that the person may presently be

suffering from a mental disease or defect for the treatment of which he is in need of

custody for care or treatment in a suitable facility.” 18 U.S.C. § 4245(a). Subsection

(d) of § 4245 further provides that if, after the hearing, the court finds by a

preponderance of the evidence that the person is presently suffering from a mental

disease or defect for which he is in need of care or treatment, the person shall be
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committed to the custody of the Attorney General. A finding that a prisoner inmate

suffers from a mental disease or defect for which he is in need of treatment under §

4245 is subject to the clearly erroneous standard of review. United States v. Steil,

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

As evidence that Bean suffers from a mental illness, the magistrate judge had

the reports prepared by Dr. Pietz and Dr. Burstin to consider along with Bean’s

testimony at the hearing. The magistrate judge stated in his report and

recommendation that the expert opinion establishes by a preponderance of the

evidence that Bean suffers from a mental defect or disease for which he is in need of

treatment in a suitable facility. It is apparent that the magistrate judge found Dr.

Pietz’s opinion more credible and gave greater weight to it than to Dr. Burstin’s

opinion. Further, during the hearing Bean digressed with claims of having “a

jurisdictional problem with the State of California” that was “absolutely mandate.”

The magistrate judge then heard arguments from Bean that his attorney should be

removed from the case because he was “accused of fraud against the United States of

America” and “committed felonies before the United States Court.” These assertions

appear to have no basis in reality. Also, when asked during the hearing where Bean

currently resides, he responded that he is a permanent resident of California and “[b]y

oath and jurisdiction, [he’s] lawfully served on the United States capacity specified

and unspecified felonies, misdemeanors and superior - -.” Although it would have

been better if the magistrate judge had explicitly stated his findings in his report and

recommendation, Dr. Pietz’s opinion coupled with Bean’s conduct at the hearing

constitutes ample evidence to support a finding that Bean suffers from a mental

disease or defect for which he in need of care or treatment. 

After reviewing the record, we conclude there is adequate and competent

testimony to sustain a finding to a preponderance of the evidence that Bean suffers

from a mental disease or defect for which he is in need of care or treatment in a

suitable facility.
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Bean also contends not all the procedural requirements were complied with

prior to ordering his commitment. Because an adverse outcome in a commitment

hearing results in a curtailment of a person’s liberty, procedural due process

guarantees certain procedural protections. United States v. Baker, 45 F.3d 837, 843

(4th Cir. 1995). In Vitek v. Jones, 445 U.S. 480, 491-96 (1980), the Supreme Court

identified the following as minimum safeguards to which due process entitles a

respondent in a commitment proceeding: A hearing at which evidence is presented

and the respondent is provided a chance to be heard and to present documentary

evidence as well as witnesses; the right to confront and to cross-examine government

witnesses at the hearing, except upon a showing of good cause; an independent

decision maker; a written, reasoned decision; the availability of an independent

advisor, although maybe not necessarily an attorney; and effective and timely notice

of the pendency of the hearing and of all these rights. In addition, Congress, by

statute, has expressly provided for certain protections. See 18 U.S.C. § 4247(d).

Under § 4247(d), a person whose mental condition is at issue shall be represented by

counsel, shall be afforded an opportunity to testify, to present evidence, to subpoena

witnesses on his behalf, and to confront and cross-examine witnesses who appear at

the hearing. 

In this case, Bean was represented by counsel. He was afforded a hearing in

which he was allowed to testify but no other witnesses were called to testify. Bean

requested and received an independent medical examination, which produced an

opinion somewhat in conflict with Dr. Pietz’s earlier opinion. The decision to not call

additional witnesses, including the medical witnesses, was most likely a tactical

decision by Bean’s attorney. We have expressly refused to second-guess by hindsight

tactical decisions made by an attorney. See Payne v. United States, 78 F.3d 343, 345

(8th Cir. 1996). In light of all the evidence, we conclude Bean was afforded a

reasonable opportunity for a hearing consistent with due process and §§ 4245 and

4247(d) prior to being committed to the custody of the Attorney General for hospital

care and treatment for his mental illness.
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III. CONCLUSION

 There is ample record evidence to sustain a finding under 18 U.S.C. § 4245

that Bean suffers from a mental disease or defect for which he is in need of care or

treatment in a suitable facility. Further, Bean was afforded a reasonable opportunity

for a hearing consistent with due process and 18 U.S.C. §§ 4245 and 4247(d). We

affirm the judgment of the district court.

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