1 The Honorable Richard E. Dorr, United St ates District Judge for the Western District of Missouri, adopting the Report and Recommendation of the Honorable James C. England, Chief Magi strate Judge of the United States District Court for the Western District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

________________ No. 09-2889

________________ United States of America, Appellee,

v. Carmen Gricco, Appellant. * * * * * * * * * Appeal from the United States District Court for the Western District of Missouri. [UNPUBLISHED]

________________ Submitted: November 15, 2010 Filed: November 29, 2010

________________ Before WOLLMAN, HANSEN, and SHEPHERD, Circuit Judges.

________________ PER CURIAM. Carmen Gricco appeals the district court's 1 order committing him to the custody of the Attorney General for care or treatment of a mental disease or defect pursuant to 18 U.S.C. § 4245, arguing that the Govern ment presented only equivocal evidence of his need for commitment. We affirm.-2- Gricco is serving a life sentence fo llowing his 2002 conviction for conspiracy to manufacture and attempted manufactur e of methamphetamine, money laundering, aiding and abetting, and possession of a fi rearm and a machine gun. While housed at the United States Penitentiary in Pollock , Louisiana (USP Pollock), Gricco went on a hunger strike in January 2008, driven by delusions about the FBI arriving to release him from prison because of a murder cover up. He was transferred to the United States Medical Center for Federal Pris oners (USMCFP) in Springfield, Missouri, where he resumed eating and was cooperative. Mental h ealth personnel evaluated and interviewed Gricco, and they determined he was not definitively delusional and should be returned to USP Pollock. Gricco was screened at the Federal Transfer Center (FTC) in Oklahoma City, Oklahoma en rout e back to USP Pollock on March 27, 2008, where he was again perceived to be delusional about a murder cover-up. Upon return to USP Pollock, Gricco re fused orders, accused mail room staff of conspiring to tamper with his legal mail, was increasingly hostile, and spoke constantly about his illegal incarceration a nd the conspiracies against him. Gricco started another hunger strike , and he was returned to USMCFP on August 27, 2008, for evaluation for inpatient treatment. Gricco was assessed by Dr. John Randall Brandt, Chief Psychologist at USMCFP. Dr . Brandt concluded that Gricco suffered from delusional disorder, persecutory type , and recommended that he be committed under § 4245. The United States filed a pe tition under § 4245(a) to determine Gricco's mental condition, and, at Gricco's request, the district court ordered a separate mental examination by Dr. Kenneth J. Burstin, a private clinical psychologist. After interviewing Gricco and reviewing his file, Dr. Burstin diagnosed Gricco with adult antisocial disorder and paranoid personality di sorder but ruled out delusional disorder, persecutory type, because he found the datato be equivocal. The magistrate judge conducted an evidentiary hearing on Februa ry 19, 2009, during which Dr. Brandt, Dr. Burstin, and Gricco testified. The magistrate judge issued a Report and Recommendation on May 8, 2009, concluding that Gricco suffered a mental disease-3- or defect and needed commitment. Th e district court adopted the Report and Recommendation on June 15, 2009, and ordered Gricco committed. Gricco appeals.
Section 4245 allows the United States to file a petition to ha ve a federal inmate "transferred to a suitable facility for care ortreatment" if the inmate objects to the suggested transfer. § 4245(a). Followi ng a hearing, the court "shall commit the person to the custody of the Attorney Genera l" for hospitalization if "the court finds by a preponderance of the evidence that the person is presently 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." § 4245( d). A district court's conclusion that an inmate suffers from a mental disease or defect needi ng commitment is a question of fact we review for clear error. SeeUnited States v. Bean , 373 F.3d 877, 879 (8th Cir. 2004). Gricco argues that the Government faile d to meet its burden of establishing by a preponderance of the evidence that he su ffers from a mental disease or defect, pointing to Dr. Burstin's conclusion that the data about his mental state was equivocal. Dr. Burstin noted that Gricco had exhibited similar behavior for n early three years and that he was not seen as needing commitmen t the prior spring, and, in Dr. Burstin's view, the data base had not changed sufficiently to support the change in diagnosis. As Gricco recognizes, the Government can meet its burden by presenting an expert witness diagnosing the inmate with a delusional diso rder, and the district court does not commit clear error even if the de fendant produces another expert with a differing opinion. See id. at 879-80 (affirming district court's finding that inmate suffered from mental disease or defect based on Government expert's opinion and defendant's own testimony, even though defense expert opined defendant's condition was adequately controlled with medication). Although Dr. Burstin believed that Gricco's behavior had not changed significantly, Dr. Brandt opined that Gricco was indeed experiencing his delusional beliefs di fferently than previously presented and-4- that his delusions had grown to include the USMCFP staff. The district court was within its discretion to credit Dr. Brandt's opinion over Dr. Burstin's, and it did not clearly err in finding that Gr icco suffers from a mental disease or defect needing commitment. The district court's judgment is affirmed.

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