UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Petitioner-Appellee,

v. No. 95-7775

ALEX ANDERSON,

Respondent-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

W. Earl Britt, District Judge.

(CA-93-552-HC-BR)

Argued: October 30, 1996

Decided: December 23, 1996

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: George Alan DuBois, Assistant Federal Public Defender,

Raleigh, North Carolina, for Appellant. Fenita Talore Morris,

OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North

Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole, United

States Attorney, Barbara D. Kocher, Assistant United States Attorney,

Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant, Alex Anderson, was convicted of mailing threatening

communications to a female television newscaster, and was sentenced

to three years in prison. Shortly before Anderson's scheduled release

date, the government moved to commit Anderson to the custody of

the Attorney General, pursuant to 18 U.S.C. § 4246 (1985) on the

ground that Anderson was suffering from a mental illness, and his

release would pose a danger to others. The district court granted the

government's motion and committed Anderson pursuant to § 4246.

About a year and a half later, Anderson filed a motion, pursuant to

18 U.S.C. § 4247(h) to determine whether Anderson still met the

criteria for commitment under § 4246. Again, the district court concluded that Anderson should still be confined pursuant to § 4246.

Anderson now appeals.

I.

FACTS AND PROCEDURAL HISTORY

While serving his sentence on an assault conviction, 1 Anderson

began mailing threatening letters to a female television newscaster,

Cora-Ann Mihalik. On August 18, 1992, Anderson pled guilty to

mailing threatening communications to Ms. Mihalik, and was sentenced to three years in federal custody.2 After his guilty plea, and

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1 The assault conviction stems from Anderson's striking of a man in the

head and face with a steel pipe, breaking the victim's front teeth.

2 By way of background, after being charged with mailing threatening

communications, Anderson underwent a competency and criminal

responsibility evaluation at USMCFP-Springfield, Missouri, where he

was diagnosed with paranoid schizophrenia. After treatment with antip-

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sentencing, Anderson was admitted to the Mental Health Division of

the Federal Correctional Institution for service of his sentence, which

would expire on September 2, 1993. On August 25, 1993, Anderson's

prospective probation officer contacted the doctors at FCI-Butner and

informed them that Anderson had sent Ms. Mihalik two greeting

cards in May, 1993.

Although Dr. Thomas Owens, Anderson's primary physician, initially concluded that Anderson's release would not pose a danger to

others or the property of others, after being informed that Anderson

had contacted Ms. Mihalik, in direct contravention of the court's

order prohibiting any contact, Dr. Owens reconsidered his opinion,

and ultimately concluded that Anderson should not be released.

Thereafter, the authorities at FCI-Butner initiated proceedings, pursuant to 18 U.S.C. § 4246 to have Anderson committed to the custody

of the Attorney General.

On October 4, 1993, the district court held a hearing, pursuant to

18 U.S.C. § 4247(d) to determine whether Anderson was suffering

presently 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 the property of another. Based on the evidence presented at the hearing, the district court found by clear and

convincing evidence that Anderson's release would create a substantial risk of danger to others. Accordingly, the district court committed

Anderson to the custody of the Attorney General, pursuant to § 4246.3

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sychotic medications he was found competent and first entered a guilty

plea on January 31, 1991. Thereafter, while Anderson awaited sentencing, he stopped taking his medication and experienced a decompensation

in his chronic illness. As a result, on July 22, 1991, he was admitted to

the Mental Health Division of FCI-Butner, North Carolina for competency restoration, assessment of competence to enter a plea and competence to be sentenced. Following a period of hospitalization, treatment,

and stabilization he was determined competent and entered a guilty plea

on August 18, 1992, and was subsequently sentenced.

3 Anderson appealed the district court's order, and on January 4, 1995,

the Fourth Circuit affirmed the district court. United States v. Anderson,

No. 93-7218 (4th Cir. Jan. 4, 1995).

 3
About two years later, Anderson's doctors concluded that Anderson's condition had improved to the point that Anderson could be

conditionally released from FCI-Butner. A conditional release plan

was formulated and finalized for the district court's approval. The

conditional release plan provided that Anderson was to undergo continuous psychiatric treatment, continue to take his medication, live

with his mother in Indiana, maintain active participation in a regimen

of outpatient mental health care, report to his probation officer, and

additional standard provisions contained in conditional releases. At

the same time, Anderson filed a motion, pursuant to 18 U.S.C.

§ 4247(h), for a hearing to determine whether Anderson still met the

criteria for commitment under § 4246.4

Anderson's release plans were foiled, however, when a security

representative from the Cable News Network (CNN) contacted the

authorities at FCI-Butner and told them that Anderson had written

two letters to one of its female newscasters, whom Anderson had

never met.5 As a result, the doctors at FCI-Butner withdrew the condi-

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4 If Anderson persuaded the district court that confinement under

§ 4246 was no longer appropriate, Anderson would be unconditionally

discharged from his § 4246 confinement, and would begin serving his

supervised release term for the underlying offense, as opposed to a conditional release.

5 One of these letters provides:

Dear Debra. I hope this letter compels you to act in a responsible way. I have not -- I did not get out of prison on my scheduled release date and as you are already aware, September 2,

1993, cannot return to New York when I have a place-- when

I have no place to stay. Because I have served all of my time, 46

months, I can be released any time after the Court reviews my

conditional release plan. The woman counsellor here is responsible for clarifying your address and this is done normally by a

telephone connection. She will have a few questions to interpose,

such as do you have any prior convictions. I will be in the office

when the -- I'll be there when the matter's called. This will be

in the evening but that I can -- but I am confident you can handle this. Understand there are no alternatives, this is it. I can only

come back to New York providing that the District Court

approves my residential plan. Don't be [expletive] afraid to write

me that I can answer any questions or any additional questions.

Alex. P.S. The plan is that I will be living with you.

 4
tional release plan. Moreover, the Probation Office of Indiana rejected

FCI-Butner's request that Anderson be placed with his mother.6 Thus,

conditional release to the State of Indiana was not possible.

On June 26, 1995, a hearing was held before United States Magistrate Judge Alexander B. Denson. At the hearing, Dr. Jim Mann, a

psychologist at FCI-Butner testified that in his opinion Anderson:

remains dangerous due to a mental disease or defect to others or property in that he needs around the clock supervision

to prevent his potential acting out his delusions about having

a special relationship with TV personalities. He's shown the

tendency to act on bad judgment in the past and we're concerned he may act on those delusions and bad judgment in

the future.

On cross-examination, Dr. Mann acknowledged that a conditional

release plan had been formulated for Anderson, and that the release

plan was withdrawn after CNN contacted the authorities at FCI-Butner.7

Anderson testified on his own behalf. Anderson denied the presence

of any mental illness; stated that he would continue to take his medication after release; and that he intended to live with his mother and

work as an electrician. Anderson also relayed to the court his belief

in mental telepathy.

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6 The Probation Officer reasoned that:

Considering all the information that has been provided to our

office concerning [Anderson's] prior criminal history and mental

health condition, it is felt that supervision can not be provided to

insure the safety of this community and [Anderson]. His mother

informed this officer that she has not seen her son in over ten

years and the last time he lived with her was in 1983 for approximately one week after his release from a state correctional institution. She further indicated that she has never been responsible,

nor provided care for any one with [Anderson's] mental condition. However, she felt that her religious beliefs would provide

her the necessary guidance in providing for him.

7 Anderson also claims that Dr. Mann admitted that Anderson's primary physician, Dr. Owens, was aware prior to the decision to conditionally release Anderson, that Anderson had been in contact with a CNN

newscaster.

 5
On June 28, 1995, the magistrate judge found that Anderson was

mentally ill and dangerous, and recommended continued placement

pursuant to 18 U.S.C. § 4246. Anderson filed timely objections to the

magistrate's report. On October 16, 1995, the district court held

another hearing to consider Anderson's motion. Again, Dr. Mann testified for the government. Dr. Mann testified that Anderson's condition had deteriorated since the June, 1995 hearing; and Anderson had

discontinued taking anti-psychotic medication. Dr. Mann reiterated

his belief that Anderson suffered from a mental illness, and that his

release would pose a danger to others.

During cross-examination, Anderson sought to challenge Dr.

Mann's conclusion that Anderson was mentally ill by demonstrating

that he [Anderson] could act in a rational manner. Anderson also

questioned Dr. Mann about his conclusion that Anderson's belief in

telepathy was delusional.8 On cross-examination by Anderson's

appointed counsel, Dr. Mann admitted that Anderson had not been

involved in any physical altercations during his stay at FCI-Butner,

and also that Anderson's physicians had yet to find a suitable medication or dosage to treat Anderson's condition.

At the conclusion of the hearing, the district court found by clear

and convincing evidence that Anderson did suffer 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 the

property of another. District Court Order, October 17, 1995, at 1

("Order"). Accordingly, the district court ordered that Anderson

remain in the custody of the Attorney General pursuant to the provisions of 18 U.S.C. § 4246. The instant appeal followed.

II.

DISCUSSION

The instant appeal focuses on 18 U.S.C. § 4246. That statute provides, in relevant part:

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8 Anderson suffers from a firmly entrenched delusional system which

includes the belief that he possesses telepathic powers which allow him

to have relationships with certain individuals who appear on television.

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If the director of a facility in which a person is hospitalized

certifies that a person whose sentence is about to expire, or

who has been committed to the custody of the Attorney

General pursuant to section 4241(d), or against whom criminal charges have been dismissed solely for reasons related

to the mental condition of the person, 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,

and that suitable arrangements for state custody and care of

the person are not available, he shall transmit the certificate

to the clerk of the court for the district in which the person

is confined . . . . The court shall order a hearing to determine

whether the person 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.

18 U.S.C. § 4246(a).

If, after the hearing, the court finds by clear and convincing

evidence that the person 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 the property of another, the court shall

commit the person to the custody of the Attorney General.

18 U.S.C. § 4246(d).

Initially, Anderson was committed under § 4246(d) in October,

1993. Thereafter, Anderson filed a motion to determine his present

mental condition, pursuant to 18 U.S.C. § 4247(h).9 Pursuant to 18

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9 Section 4247(h) provides:

Regardless of whether the director of the facility in which a person is hospitalized has filed a certificate . . . counsel for the person may, at any time during such person's hospitalization, file

with the court that ordered the commitment a motion for a hearing to determine whether the person should be discharged from

such facility . . . .

 7
U.S.C. § 4246(e), which provides for a hearing upon motion for discharge, if the court finds by a preponderance of the evidence that the

person has recovered from his mental disease or defect to such extent

that his release would no longer create a substantial risk, he must be

discharged.10

A. Standard of Review

The district court's determination that Anderson continues to suffer

from a mental illness or defect and his release would create a substantial risk will not be overturned on appeal unless that finding is clearly

erroneous. See United States v. Steil, 916 F.2d 485 (8th Cir. 1990)

(district court's finding of dangerousness under§ 4246 is reviewed

under the clearly erroneous standard).

B. Parties' Arguments

The parties agree that Anderson suffers from a mental illness. The

parties' positions diverge, however, with respect to the second prong

of the § 4246 test, namely whether Anderson has recovered from his

mental illness to such an extent that Anderson's release would not

create a substantial risk of harm to others or the property of others.

See 18 U.S.C. § 4246(e).

Anderson argues that the evidence does not support the district

court's finding that Anderson's release would pose a substantial risk

of harm to others. Specifically, Anderson contends that no evidence

has been offered that Anderson engaged in any serious violent or

assaultive behavior while committed at FCI-Butner. In fact, while at

FCI-Butner, Anderson has compiled a stellar work record as an electrician, and has furthered his education. Anderson maintains that he

has also been generally compliant with his regimen of psychiatric

treatment prescribed for him.

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10 The court may also order that the person be conditionally discharged

under a prescribed regimen of medical, psychiatric, or psychological care

or treatment that has been prepared for him, and order as an explicit condition of release that the person must comply with the prescribed regimen. See 18 U.S.C. § 4246(e)(2)(A) and (B).

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Moreover, Anderson maintains that he will be placed on supervised

release for three years, and can be required to undergo any mental

health treatment as a condition of his supervised release. Anderson

also notes that in May, 1995, Anderson's doctors concluded that his

condition had improved to the point where he could be released, and

as such, a formal plan for his conditional release was completed.

While conceding that the conditional plan was revoked after Anderson's improper contacts with a CNN newscaster were revealed,

Anderson claims that the revocation of the conditional release plan

was unfair and ill-considered.

Specifically, Anderson claims that, according to progress notes,

Anderson's primary physician, Dr. Owens, was aware at the time that

Dr. Owens concluded that Anderson could be conditionally released,

that Anderson had contacted a CNN newscaster. Since the decision

to withdraw the conditional release plan was made only after CNN

contacted the authorities at FCI-Butner, Anderson suggests that the

decision to withdraw the plan may have been due to the "added pressure brought to bear on the doctors as a result of the official contact

by the CNN representative."

Furthermore, while conceding that the two letters sent by Anderson

to the CNN newscaster were "inappropriate and would undoubtedly

be unnerving to the recipient," Anderson maintains that the letters

were in no way threatening or violent. As such, the two letters do not

demonstrate that Anderson is dangerous. In addition, Anderson contends that while the delusional component of Anderson's mental illness will likely never be eradicated, Anderson's continuing delusions

does not mean that Anderson's mental illness can not be managed,

and that Anderson is a danger to others. Thus, Anderson maintains

that given his improved mental status, the lack of any violence associated with his mental illness, and the close supervision Anderson will

undergo during his three years of supervised release, under these circumstances, the district court's finding that Anderson's release would

pose a substantial risk of harm is clearly erroneous.

In contrast, the government maintains that no evidence has been

presented by Anderson to demonstrate that Anderson has recovered

to any extent from his mental illness which generated his commitment

under § 4246. As a corollary to that matter, nor has any evidence been

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offered to show that Anderson's release would not pose a substantial

risk of harm to others. The government notes that Anderson continues

to have obsessive relationships with television personnel he has never

met, corresponding with them and expressing bizarre beliefs about his

relationships with them. In addition, the government argues that

Anderson has been engaged in verbally threatening and intimidating

behavior toward staff and inmates at FCI-Butner. According to the

government, prior the June, 1995 meeting held before the magistrate

judge, Anderson had been placed in seclusion four times, three of

which were for hostility, belligerence, or verbal altercation.11

Furthermore, the government argues that the district court required

the government to show, by clear and convincing evidence, rather

than by a preponderance of the evidence, that Anderson had not

recovered from his mental illness and continued confinement was

required.12 Here, the government maintains that evidence was intro-

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11 Dr. Mann testified at the June, 1995 hearing that:

[Anderson] has shown a marked disregard for others. His anger

has escalated in several occasions in which he was verbally abusive to other staff and inmates . . . He has also been observed

with his psychotic symptoms coming back into play. He was

diagnosed as a paranoid schizophrenic with ideals of rage

regarding a delusion of telepathic powers. In other words, he

believes that he can communicate to newscasters, female newscasters, on the t.v., that he can hold a communication with them,

receive messages from them directly on the t.v., and then he will

write them letters and correspond with them. And in the past that

has led to at least one or two romantic relationships in his mind

between the female newscasters. He has been observed talking

to the t.v., holding a conversation with the t.v., by unit officers

and other staff. And we're concerned that he's going back into

that mode again . . . his delusions continue to be very fixed and

rigid, and unchanged.

12 The government's argument is persuasive. The statute places the burden on the petitioner to demonstrate by a "preponderance of the evidence

that [he/she] has recovered from his[/her] mental disease or defect to

such an extent . . . ," not on the government to demonstrate the recovery

by clear and convincing evidence. Initially, to commit a person, pursuant

to § 4246(d), the government must show by clear and convincing evi-

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duced before the district court which demonstrated that Anderson

continues to have a fixation with female newscasters, including his

correspondence with them despite the maximum control of the prison

setting and direct admonitions not to do so, as well as the verbal and

abusive behavior of Anderson toward staff and other inmates.

Moreover, the government argues that the fact that Anderson has

not acted upon any of his delusions is not persuasive because he has

been incarcerated, and has not had an opportunity to act upon his

delusions. In support of its position, the government notes that Anderson physically threatened and stalked the last known victim prior to

his incarceration. The government contends that"the evidence indicates [Anderson] would pick up, albeit with a different victim perhaps, right where he left off."

Since the standard of review if anything favored Anderson too

much, the district court's decision is more than adequately supported

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dence that the person is presently suffering from a mental disease or

defect of which his release would create a substantial risk of injury to

others or property. In October, 1993, the government satisfied the burden, and Anderson was committed.

Section 4246(e) provides the mechanism by which a person who has

been committed previously, pursuant to § 4246(d), may regain his/her

liberty. As such, under § 4246(e), the petitioner's standard to show

recovery is the lesser standard, preponderance of the evidence. Here, the

district court found by clear and convincing evidence that Anderson continues to suffer from a mental disease or defect and that his release would

pose a substantial risk to others. Order, at 1.

Apparently, the district court treated the § 4246(e) hearing, as a

§ 4246(d) hearing, and again, required the government to show by clear

and convincing evidence that Anderson is presently suffering from a

mental disease or defect, as provided in § 4246(d). Since the district

court was acting not on the original commitment, but upon Anderson's

motion for discharge, under § 4246(e), the district court's inquiry should

have been whether the district court could find by a preponderance of the

evidence that Anderson has recovered from his mental disease or defect

to such extent that his release would no longer pose a substantial risk to

others. In any event, the error, if any such error exists is harmless.

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by the record. Section 4246(e) requires the district court to: (1) find

by a preponderance of the evidence that Anderson has recovered from

his mental disease or defect to the such an extent that, and (2) that

Anderson's release or conditional release would no longer create a

substantial risk of bodily injury to another person or serious damage

to property.

As for the first prong, Anderson's "evidence" is unpersuasive.

Anderson's argument is that while he still suffers from a mental illness, he does not pose a danger. Anderson contends that his doctors

have not been able to find the right medication or dosage to address

his condition, and in essence, he is not to blame for his continued

mental illness.

While that may be true, the fact remains that the mental illness persists and Anderson was convicted for mailing threatening communications to female newscasters. Anderson was instructed not to have

any contact with female newscasters. Despite the prohibition on contact with female newscasters, Anderson has on two separate occasions, once in May, 1993, and again, sometime in 1995 prior to the

hearing held by the magistrate judge, contacted female newscasters.

Moreover, Anderson continues to believe he has telepathic powers

permitting communication with female newscasters, and his letter to

Debra at CNN conclusively demonstrates the nature of his delusions.

None of the evidence offered by Anderson demonstrates that

Anderson has recovered to such an extent that Anderson's release

would no longer create a substantial risk of bodily injury to others or

property. In fact, the evidence weighs heavily in favor of the opposite

conclusion. Anderson's conduct with respect to a female newscaster

in New York landed him in jail, and the district court found correctly

that Anderson's continued engagement in the very conduct that

resulted in his arrest and conviction would pose a danger to others if

Anderson were released.

As for Anderson's evidence on the second prong, again, the evidence is unpersuasive. In fact, Anderson's own doctors do not support

his release, nor was the Probation Office of Indiana willing to support

Anderson's release.

Accordingly, the judgment should be

AFFIRMED.

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