United States Court of Appeals

For the Eighth Circuit 

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No. 21-2839

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Eric Malmstrom

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the District of Minnesota

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Submitted: June 15, 2022

Filed: August 16, 2022 

[Unpublished]

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Before GRUENDER, BENTON, and GRASZ, Circuit Judges. 

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PER CURIAM. 

Eric Malmstrom appeals the civil commitment order committing him to 

federal custody and involuntary hospitalization under 18 U.S.C. § 4246. Malmstrom 
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contends the district court1 erred in finding that he was dangerous and that no 

suitable arrangements for state custody were available. We affirm. 

I. Analysis

The civil commitment statute, 18 U.S.C. § 4246, allows for “the indefinite 

hospitalization of a person due for release but who, as the result of a mental illness, 

poses a significant danger to the general public.” United States v. Thomas, 949 F.3d 

1120, 1123 (8th Cir. 2020) (quoting United States v. S.A., 129 F.3d 995, 998 (8th 

Cir. 1997)). Under § 4246, when the director of a facility housing a person “whose 

sentence is about to expire” certifies “that the person suffers from a mental disease 

or defect” such that release would create a substantial risk of bodily injury to other 

people or serious property damage, and that no “suitable arrangements for State 

custody and care” are available, “the district court must hold a hearing to determine 

if the individual is mentally ill and dangerous.” S.A., 129 F.3d at 998 (internal 

quotations omitted). 

At the civil commitment hearing, the government must establish by clear and 

convincing evidence the following: (1) the person suffers from a mental disease or 

defect; (2) the person will be dangerous if released; and (3) a direct causal nexus 

exists between the mental disease or defect and dangerousness. Thomas, 949 F.3d 

at 1123. The government must also prove that no suitable state placement exists. 

Id. If the government carries its burden of proving these elements, “the court shall 

commit the person to the custody of the Attorney General.” 18 U.S.C. § 4246(d). 

Here, the district court found the government met its burden of proof and thus 

committed Malmstrom to the custody of the United States Attorney General.

Malmstrom appeals this decision. “We review the factual determinations 

underlying the district court’s § 4246 decision for clear error.” Thomas, 949 F.3d at 

1

The Honorable Susan Richard Nelson, United States District Judge for the 

District of Minnesota, adopting the report and recommendation of the Honorable 

Hildy Bowbeer, United States Magistrate Judge for the District of Minnesota.
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1123 (quoting United States v. Williams, 299 F.3d 673, 676 (8th Cir. 2002)). We 

will reverse these determinations only if we are left with a “definite and firm 

conviction that a mistake has been committed.” Id. (quoting same). Malmstrom 

argues the district court erred in two primary ways. We are not persuaded. 

A. Dangerousness

Malmstrom first argues the district court’s finding that he would be dangerous 

upon release was not supported by clear and convincing evidence.2

 He asserts the 

district court was required to find that a majority of the seven non-exhaustive factors

set out in United States v. Chairse, 18 F. Supp. 2d 1021, 1029 (D. Minn. 1998), 

weighed in favor of his dangerousness, but the district court here only found a 

minority (three) of the factors did so.3

 We disagree. In determining dangerousness, 

Malmstrom correctly concedes the district court was not confined to the factors set 

out in Chairse. Indeed, the district court could consider “any activity that evinces a 

genuine possibility of future harm to persons or property” in determining whether 

Malmstrom was dangerous. United States v. Dalasta, 3 F.4th 1121, 1125 (8th Cir. 

2021) (quoting Williams, 299 F.3d at 677).

The district court’s finding that the government proved by clear and 

convincing evidence that Malmstrom was dangerous had ample support in the 

2

Malmstrom’s characterization of the district court’s alleged error as a 

misinterpretation of the burden of proof (i.e., an error of law) is unavailing. Both 

the magistrate judge’s report and recommendation and the district court’s order 

repeatedly and correctly stated the government bore the burden to prove 

dangerousness by clear and convincing evidence.

3

These factors are: (1) “a history of dangerousness”; (2) “a history of drug or 

alcohol use”; (3) “identified potential targets”; (4) “previous use of weapons”;

(5) “any recent incident manifesting dangerousness”; (6) “a history of problems 

taking prescribed medicines”, Chairse, 18 F. Supp. 2d at 1029 (quoting United States 

v. Ecker, 30 F.3d 966, 970 (8th Cir. 1994)); and (7) the effect of supervised release. 

Id. at 1031. We have never held that these seven factors alone control our analysis 

of dangerousness.
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record. The district court considered Malmstrom’s extensive criminal history, which 

dates from 1999 to his latest conviction in 2019 for threatening a Swedish Embassy 

employee and involves repeated instances of assaultive and threatening behavior. 

The district court also considered Malmstrom’s history of mental illness (specifically 

schizophrenia), his repeated denials that he is mentally ill, his history of 

noncompliance with his medication regimen, and his tendencies toward violent 

behavior when off his medication. Although Malmstrom claims he has complied in 

taking his medication since early 2020, the district court noted Malmstrom has 

consistently refused medication for much of his past. And the district court did not 

clearly err in determining the temporal remoteness of some of Malmstrom’s violent 

criminal convictions does not render them irrelevant in assessing whether he is 

dangerous, especially considering his recent threats toward the Swedish Embassy 

employee and prison staff. Given this extensive evidence, we are not left with a 

definite and firm conviction that the district court erroneously found Malmstrom was 

dangerous. 

B. Arrangements for State Custody

Malmstrom next argues the district court erred in finding the government met 

its burden to prove no suitable arrangements for state custody were available. We 

disagree. In United States v. Wigren, we held a director’s facially sufficient 

certification that no such arrangements exist satisfies the government’s burden of 

proof on unavailability of state custody. 641 F.3d 944, 946–47 (8th Cir. 2011). 

Here, the director made such a certification, and Malmstrom does not challenge the 

facial sufficiency of the certification. Instead, Malmstrom argues our holding in 

Wigren should not control because it allegedly conflicts with an earlier panel’s

implication that the unavailability of state custody must be proven by clear and 

convincing evidence. See Ecker, 30 F.3d at 970. But we are not persuaded. As the 

district court correctly explained, Wigren accounted for the implication of Ecker, 

holding that although Ecker and other cases had “assumed in dicta” that the court 

must find unavailability of State custody by clear and convincing evidence, the 

statute does not impose such a high burden. Wigren, 641 F.3d at 947. The district 
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court correctly determined the government’s burden of proof on unavailability of 

state custody under our holding in Wigren. Therefore, we see no error in the district 

court’s finding that the director’s certification satisfied the government’s burden of 

proof. 

II. Conclusion 

For the foregoing reasons, we affirm the judgment of the district court.

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