[ PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

______ __________________ No. 16

- 16442 Non

- Argument Calendar

________________________ D.C

. Docket No. 1:13

- cr - 000 18

- TWT

- JKL

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus PATRICK RANDELL MCINTOSH , Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Northern District of Georgia

________________________ (August 20, 2018)

Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges. PER CURIAM:

Case: 16-16442 Date Filed: 08/20/2018 Page: 1 of 192 After Patrick McIntosh was found not guilty by reason of insanity of unlawfully possessing firearms while under felony indictment, threatening the President of the United States, threatening law enforcement, and making threats by interstate communication, the district court ordered him civilly committed under
18 U.S.C. § 4243(f). McIntosh seeks review of the district court’s decision to deny him uncondition al release from civil commitment. McIntosh does not contest the district court’s findings that his u nderlying crimes involved a substantial ris k of bodily injury to another and that there was a substantial risk that McIntosh would harm others in the future. He argues instead that the district court erred in finding that the government could continue to hold him under the civil commitment statute because his risk of danger to others was due to a “mental disease or defec t

. ” 18 U.S.C. § 4243(d). After careful review, we conclude that the district court did not clearly err in finding that McIntosh’s risk o f danger to others was due to a mental disease or defect given the evidence that he suffered from a particularly severe personality disorder

. We affirm.
I. BACKGROUND A federal grand jury charged McIntosh with unlawful possession of firearms while under felony indictment, threat ening the life of the President of the United States, threatening federal law enforcement officers, and making threats by interstate communications. In a bench trial, the district court found McIntosh not

Case: 16-16442 Date Filed: 08/20/2018 Page: 2 of 193 guilty by reason of insan ity on all four counts and ordered him civilly committed

. The district court committed McIntosh to a mental health facili ty within the Bureau of Prisons

. After McIntosh had been committed for nine months , the district court held a hearin g in which the co urt determined that McIntosh failed to meet his burden to show that his release would not constitute a danger to the community due to his present mental illness. The district court committed McIntosh to the Attorney General’s custody until he no longer po sed a danger to the community due to his mental disease or defect. See 18 U.S.C. § 4243(e). A. Underlying Offense Conduct In August 2012, McIntosh posted on his Facebook page, “I wanna kill the President.” Doc. 167 at 3. 1 Shortly after, he purchased a 12

- gauge shotgun and a .22 caliber pistol. Law enforcement officers later discovered the firearms and ammunition in McIntosh’s hotel room. At the time that law enforcement found the firearms and ammunition, McIntosh had pending charges in South Carolina after being indicted for the felony offense of stalking. A federal grand jury indicted McIntosh on charges of unlawful possession of firearms while under felony indictment , in violation of 18 U.S.C. § 922(n) (Count One), and making a threat to take the life of the President of the United States , in violation of 18 U.S.C. § 871 (Count Two)

.

1 “Doc. # ” refers to the numbered entry on the district court ’s docket

. Case: 16-16442 Date Filed: 08/20/2018 Page: 3 of 194 While incarcerated pending trial, McIntosh threatened , via phone calls and emails to his mother , the law enforcement officials who in vestigated and were prosecuting his case. During one phone call, he said, “I’m going to end up committing murder. ‘Cause I’m that

— I’m that angry. I’m that angry to kill an FBI agent. I’m that angry to kill a prosecutor. I’m that angry.” Doc. 167 at 3

. In an email with “hit list” as the subject , he listed the names of the Assistant United States Attorney who was prosecuting his case , the federal air marshal working with the FBI who investigated the case , an ex - girlfriend, and his father. Id. While incarcerated in Georgia, McIntosh sent these communications to his mother in South Carolina. Based on these further threats, McIntosh was indicted on additional charges of making threats to law enforcement , in violation of 18 U.S.C. § 115(a) (1)(B) (Count Three) , and making threats by interstate communication , in violation of
18 U.S.C. § 875(c) (Count Four)

. B. McIntosh’s Notice of His Insanity Defense After pleading not guilty, McIntosh notified the government that he intended to raise an insanit y defense and to introduce expert evidence relating to a mental disease or defect bearing on the issue of guilt

. See Fed. R. Crim. Pro. 12.2. 2

2 Federal Rule of Criminal Procedure 12.2 requires a defendant who intends to assert a defense that he was insane at the time of the alleged offense or who intends to introduce expert evidence relating to a mental disease or defect bearing on an issue of guilt to notify an attorney

Case: 16-16442 Date Filed: 08/20/2018 Page: 4 of 195 McIntosh was examined by Dr. Michael Hilton, an expert for the government, and Dr. Julie Dorney, an expert for the defendant, who offered opinions about , among other things, whether McIntosh was able to appreciate the nature and quality or wrongfulness of his acts. 3
Dr. Hilton concluded that McIntosh did not suffer from a mental disease or defect making him unabl e to appreciate the nature and quality or wrongfulness of his acts. Dr. Hilton noted , however, McIntosh’s problems with loss of temper, annoyance, anger, suspiciousness, and resentfulness , as well as his tendencies towards argumentativeness with authority figures, defiance of authority , and vindictiveness. Dr. Hilton indicated that McIntosh saw himself as someone who could become a serial killer and had thought about how he would commit such crimes by choking or starving his victim s . Dr. Hilton also note d that McIntosh created a list of individuals whom he has considered killing. Dr. Dorney diagnosed McIntosh with Bip olar Disorder, a mental disease that made McIntosh unable to fully appreciate the wrongfulness of his acts at the time of the offenses. Dr. Dorney determined that McIntosh’s Bipolar Disorder

for the government in wri ting within the time provide d for filing a pretrial motion and file a copy of the notice with the clerk of court

. 3 To be found not guilty by reason of insanity, a defendant must prove that at the time of the commission of the acts constituting the offe nse, he , “ as a result of severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. ” 18 U.S.C. § 17(a). The defendant bears the burden of proving this affirmative defense by clear and convincing evidence. Id. § 17(b)

.

Case: 16-16442 Date Filed: 08/20/2018 Page: 5 of 196 manifested in his mood, agi tation and threatening behavior; paranoid delusional thinking ; impul sivity ; grandiosity ; high levels of energy ; and disinhibition. Dr. Dorney found that McIntosh suffered from paranoid delusional thinking that the FBI, a local sheriff’s department, his previous mental health providers, and his father were conspiring toget her to kill him. Dr. Dorney further diagnosed McIntosh with features of Narcissistic, Borderline, and Antis ocial Personality Disorder expressed in his impulsivity, unlawful behavior, recurrent thoughts of self

- harm, lack of empathy, and poor judgment. Al though Dr. Hilton and Dr. Dorney disagreed on the availability of the insanity defense for McIntosh , both experts determined that he was competent to stand trial. After these evaluations were completed, the ca se proceeded to a bench trial. C. The Evidence at Trial The bench trial focused on two issues: whether McIntosh was guilty of committing the offenses charged in the indictment and , if he was, whether he should be found not guilty by reason of insanity. Because insanity is an affirmative defense, th e government first had to prove that McIntosh committed the offenses in question before he cou ld be acquitted due to a mental disease or defect. At trial, McIntosh argued that the government ’s evidence was insufficient to prove beyond a reasonable doubt that he committed the offenses

. But the

Case: 16-16442 Date Filed: 08/20/2018 Page: 6 of 197 government introduced evidence showing that he had possessed a firearm while under felony indictment and made statements threatening the President, government officials, and others. As to Count One, McIntosh stipul ated that he had purchased and received a shotgun and pistol while under a pending felony indictment in South Carolina for stalking

. As to Count Two, McIntosh stipulated that he wrote he wanted to kill the President. McIntosh also wrote in letters that “ [he] mea nt every word of it” and that “he wanted to hurt the President of the United States as ‘ a conveyance of a desire. ’ ” Doc. 167 at 3. On Count Three, the government played recordings of phone calls in which McIntosh told his mother that he would kil l the government officials who were prosecuting his case or investigating him. McIntosh also stipulated that he sent his mother an email with the subject line “hit list” that contained the same officials’ names. As to Count Four, the government played

re cordings of phone calls in which McIntosh threatened to beat and stab his father and a n ex - girlfriend . As stipulated, McIntosh made these phone calls while incarcerated in Georgia to his mother, who lived in South Carolina. McIntosh argued at trial in th e alternative that even if he committed the offenses, he should be found not g uilty by reason of insanity. In support, he introduced medical evidence, including the opinion of Dr. Dorney . McIntosh also called his mother, Mary Celeste Conlon, to testify. Conlon described McIntosh’s

Case: 16-16442 Date Filed: 08/20/2018 Page: 7 of 198 history of treatment for mental illness, which included involuntary commitments, and his behavioral difficulties. Conlon stated that in previous mental healt h

assessments McIntosh had been diagnosed as bipolar. Conlon also explained that she had many interactions with law enforcement regarding McIntosh’s mental health condition. At the end of her testimony , Conlon requested that McIntosh receive long term me ntal health assistance. O ther evidence at trial showed that Conlon was afraid of McI ntosh and had added reinforced doors and windows to her home to protect her self from his erratic behavior. Although the government’s expert, Dr. Hilton, concluded that M c Intosh was suffering from no mental disease or defect making him unable to appreciate the nature and quality or wrongfulness of his acts, at trial the government did not contest that McIntosh was not guilty by reason of insanity. At the conclusion of the bench trial, the district found that the government had proven beyond a reasonable doubt that McIntosh had committed the four charged offenses . The district court then determined that McIntosh committed the offenses while suffering from a mental disease o r disability and judged him not guilty by reason of insanity.
D. Risk Assessment Panel Report After finding McIntosh not guilty by reason of insanity, the district court ordered him committed to a mental health facility to unde rgo a psychiatric

Case: 16-16442 Date Filed: 08/20/2018 Page: 8 of 199 evaluation. McIntosh was then evaluated over a period of four months by a risk assessment panel , consist ing of a psychologist, a psychiatrist, and a licensed social worker

. After a psychologist evaluated McIntosh, the panel prepared a Risk Assessment Rep ort (the “Report”) addressing whether McIntosh’s release from custody would present a substantial risk of injury to others as a result of a present mental disease or defect

. In the R eport, t he panel diagnosed McIntosh with N arcissistic Personality Disorde r with Borderline, Histrionic, and A ntisocial traits and opined that he suffered from a severe case of this personality disorder. The panel noted that McIntosh exhibited patterns of behavior that were characterized by grandiosity, lack of empathy, signifi cant entitlement, arrogance, impulsivity, anger, irritability, and attention seeking. T he panel concluded that d ue to his severe personality disorder McIntosh had difficult y behaving in accordance with societal expectations regarding lawful behavior and also engaged in a pattern of reckless and impulsive behavior indicative of a disre gard for the safety of others. The panel further found that McIntosh was at a high risk for engaging in future violent behavior. He had exper ienced behavioral difficulties since age 12, including engaging in aggressive behaviors such as fighting, domestic violence, and making racist comments. In addition, McIntosh had continued to make specific and lethal threats toward others throughout the p eriod when he was being

Case: 16-16442 Date Filed: 08/20/2018 Page: 9 of 1910 evaluat ed . The R eport noted that the risk of McIntosh engaging in violence in the future was enhanced by his lack of insight and lack of amenability to treatment, as well as his refusal to accept responsibility, lack of social support, and unrealistic future plans. The R eport concluded that if the district court found that a personality disorder could legally constitute a mental disease or defect, the n McIntosh presented a risk to others due to a mental disease or defect. Conversely, the R eport concluded that if the district court determined that a personality disorder could not legally constitute a mental disease or defect, then McIntosh would not present a risk to others based on a mental disease or defect.
E. The 18 U.S.C. § 4243 Hearing After the panel issued the Report, the district court held a hearing to determine whether McIntosh should be released. At t he hearing, the district court reviewed the Report and heard testimony from the psychologi st who had evaluated McIntosh. The psychologist testified that during the assessment period McIntosh repeatedly stated that he wanted to kill his father, his ex - girlfriend , state and federal prosecutors, FBI investigators, and anyone else who had “screwed him

over ” and provided detailed descriptions of how he would do so. Doc. 215 at 25. McIntosh made these statements between five and ten times and explained that

Case: 16-16442 Date Filed: 08/20/2018 Page: 10 of 1911 using a firearm to kill his victims “would not be personal enough.” Id

. When asked how certain he wa s that he would harm others, McIntosh stated that he was “ten out of ten” certain that he would harm people. Id . at 36. The psychologist further testified that while being evaluated McIntosh had assaulted another inmate who had called him a “know

- it

- all. ” Id . at 26. The psychologist also testified that McIntosh exhibited the same behaviors during the assessment period that he had exhibited when he co mmitted the criminal offenses. At the conclusion of the hearing, the district court found the evidence

o verwhelmingly proved that McIntosh posed a substantial risk of bodily injury to others. The district court adopted as findings of fact t he contents of the R eport and the psychologist’s testimony in their entirety , meaning the court found that McIntosh suffered from Narcissistic Personality Disorder with Borderline, Histrionic, and Antisocial traits . The district court further noted that McIntosh had a history of demonstrating antisocial behavior, which was characterized by a
pervas ive p attern of disregard for and violation of other s’ rights. The court also relied on the fact that McIntosh repeated ly made assertions that he wanted to kill his father, an ex - girlfriend , FBI agents, and state and federal prosecutors , as well as that h e intended to own fir earms and harm multiple people. As to whether McIntosh was suffering from a mental disease or defect, the district court found that McIntosh had failed to meet his burden to show that his

Case: 16-16442 Date Filed: 08/20/2018 Page: 11 of 1912 risk of danger to others was not due to a pres ent mental disease or defect. The court accepted the diagnosis that McIntosh suffered from a severe personality disorder resulting in “significant difficulty in functioning within society’s expectations and impair[ing] his functioning in many areas.” Doc. 206 at 3. The court found that McIntosh’ s personality disorder manifested itself with affective problems, including inappropriately intense anger, impulsivity , and a pervasive pattern of disregard for and violation of the rights of others . The court also found that McIntosh’s personality disorder was severe enough to constitute a mental disease or defect. In making this finding, the court relied upon a definition of a mental disease or defect as “any abnormal condition of the mind which substantiall y affects mental or emotional processes and substantially impairs behavior controls.” See McDonald v. United States , 312 F.2d 847, 85 1 (D.C. Cir

. 1962)

. 4 The district court ordered McIntosh committed pu rsuant to 18 U.S.C. § 4243(e).
II. STANDARD OF REVI EW Whether a person is suffering from a mental disease or defect under § 4243 presents a question of fact, subject to a clearly erroneous standard of review. See United States v. Wattleton , 296 F.3d 1184, 1201 n.34 (11th Cir. 2002). “ [ R ] eview

4 The district court noted that “case law consistently indicates that labels applied by clinicians are not necessarily controlling to dete rmine whether the defendant is suffering from a mental disease or defect, but rather the determination is a question of fact.” Doc. 206 at 2

- 3.

Case: 16-16442 Date Filed: 08/20/2018 Page: 12 of 1913 under the ‘clearly erroneous’ standard is significantly deferential, requiring a ‘definite and firm conviction that a mistake has been committed.’” Concrete Pipe & Prods. of Cal. v. Const. Laborers Pension Tr. , 508 U.S. 602, 62 3 (1993). If the district c ourt ’ s finding s are “plausible in light of the record viewed in its entirely,” we may not reverse the finding s simply because we “would have weighed the evidence differently.” Anderson v. City of Bessemer City , 470 U.S. 564, 574 (1985).
III. THE CIVIL CO MMITMENT STATUTORY SCHEME Before examining the merits of McIntosh’s claim, we pause to provide an overview of the civil commitment statutory scheme. Under 18 U.S.C. § 4243, a defendant found not guilty by reason of insanity of a federal crime is committed to a suitable facility pending a hearing to determine whether he is eligible for release. Before this “dangerousness” hearing, a court

- ordered psychiatric or psychological examination of the insanity acquittee is performed, and a report base d on that examination is filed with the court. See 18 U.S.C § § 4243(b) , 4247(b)

- (c). The court must hold a hearing within 40 days of the insanity verdict to ensure that the insanity acquittee’s release “would not create a substantial risk of bodily injur y to another person or serious damage of property of another due to a present mental

Case: 16-16442 Date Filed: 08/20/2018 Page: 13 of 1914 disease or defect.” 5 Id. § 4243(c) , (d). Although the dangerousness hearing is a civil proceeding , the insanity acquittee has a right to counsel at the hearing

. Id. § 4247(d). The insanity acquittee must 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.” Id. The insanity acquittee’s burden of proof at the hearing depends on the nature of the underlying offense. If he was found not guilty by reason of insanity of an offense involving bodily injury, serious damage to another’s property, or substantial risk of such injury or damage , he must prove by “c lear 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.” Id. § 4243(d). With respect to any other offense, hi s burden of proof is a preponderance of the evidence. Id. Here, because at least some of his underlying offenses involved a substantial risk of bodily injury, McIntosh could be released only if he proved by clear and convincing evidence that his release would not create a substantial risk.
If an insanity acqui t tee fails to meet his burden of proof, the court must commit him to the custody of the Attorney General of the United States, who arranges for his care and treatment. See 18 U.S.C. § § 4243(e), 4247(i). The

5 Although the statute requires the hearing to be held within 40 days of the verdict, McIntosh consented to extend the assessment period.

Case: 16-16442 Date Filed: 08/20/2018 Page: 14 of 1915 Attorney General will release the insanity acquittee when he has recovered from his mental disease to such an extent that his release, or his conditional rel ea se under prescribed care , would no longer create a substantial risk of bodily inju ry to another person

. See id. at § 4243(f).
IV. DISCUSSION McIntosh argues that the district court erred in committing him because there was no evidence that he suffered from a present mental disease or defect

. He contends that his diagnos i s of severe N arcissistic P ersonality D isorder with
B orderline, H istrionic, and A ntisocial traits do es not qualify as a mental diseas e or defect for purpose of § 4243. He supports his argument with statements from the
R eport and the psychologist’s testimony that person ality disorders are not “typically” considered mental disease s or defect s. McIntosh contends that the phrase mental disease or defect in the statute must be limited to those diagnoses that clinicians would classify as mental diseases or defects. We disagree. Section 4243 does not define the phrase “mental disease or defect.” See 18 U.S.C. § 4243 (d) . But we are persuaded to adopt the definition established by the D.C. Circuit in McDonald v. United States , 312 F.2d 847 (D.C. Cir. 1962). In McDonald , the court defined mental disease or defect as “any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls.” Id . at 851. The court explained that

Case: 16-16442 Date Filed: 08/20/2018 Page: 15 of 1916 “ [ w ] hat psychiatrists may con sider a ‘mental disease or defect’ for clinical purposes, where their concern is treatment, may or may not be the same as mental disease or defect for the [court’s] purpose in determining criminal responsibility.” Id

. We agree that the phrase mental dise ase or defect is a legal term that must be construed and applied by the district court to the specific facts of each c ase, rather than a clinical term to be decided by medical professionals. See also United States v. Weed , 389 F.3d 1060, 107 2

- 7 3 (10th Cir. 2004) ( holding that the insanity acqui t tee quali fied under the law as having a mental disease or defect, despite not meeting clinical criteria for mental illness ); United States v. Murdoch , 98 F.3d 472, 478 (9th Cir. 1996) (Wilson, J., concurring) ( ex plaining that a personality defect in certain circumstances may be “so encompassing and impairing that it rises to the level of a disease or defect”); United States v. Lyons , 731 F.2d 243, 246 (5th Cir. 1984) ( “[W] hat definition of ‘ mental disease or defec t ’ is to be employed by courts enforcing the criminal law is, in the final analysis, a question of legal, moral and policy

— not of medical

— judgment

. ” ). Consistent with the decisions of our sister circuits, we conclude that a personality disorder may qual ify as a mental disease or defect under § 4243

. The Eight h Circuit has held that a personality disorder can consti tute a mental disease or defect even if medical professionals disagree. In United States v. Bilyk , 949 F.2d 259, 261 (8th Cir. 1991), two of three medical experts determined that the

Case: 16-16442 Date Filed: 08/20/2018 Page: 16 of 1917 insanity acquittee did not suffer fr om a mental disease or defect, but all three agreed that the defendant suffered from a personality disorder. Id . at 260

- 261. The Eight h Ci rcuit concluded that from this evidence the distri ct court could find the defendant suffered from a “mental defect ” for purposes of § 4243. Id. at 261. We
agree with Bilyk and other courts that a personality disorder may constit ute a mental disease or defect depending on the severity, symptoms, and resulting impairment

— all of which are factual determinations for the district court. See United States v. Beatty , 642 F.3d 514, 516 (6th Cir. 2011) ( recognizing that

a ntisocial personality disorder could pot entially “form part of the basis for civil commitment ” ); United States v. Williams , 299 F.3d 673, 678 (8th Cir. 2002) ( affirming finding that prisoner suffering from a personality disorder was dangerous due to a mental disease or defect); Murdoch , 98 F.3d at 476 ( accepting that individual with a personality disorder suffered from a mental disease or defect). Given the record evidence about the severity and symptoms of McIntosh’s personality disorder, as well as his resulting impairments, the district court did not clearly err in finding that he suffered from a mental disease or defect under § 4243.
T he risk assessment panel concluded that McIntosh suffered from a severe form of
N arcissistic P ersonality D isorder wit h B orderline, H istrionic, and A ntisocial traits. McIntosh also exhibit ed significant symptoms from his personality disorder that

Case: 16-16442 Date Filed: 08/20/2018 Page: 17 of 1918 result ed in maladaptive behaviors. The psychologist testified about the serious symptoms that McIntosh displayed during the four months while he was being evaluated , including increas ed impulsiv ity and inappropriately intense anger that led to a pervasive pattern of violating the rights of others. The evidence further showed that McIntosh suffered severe impairments that manif est ed in his perceptions of the world, emotional responses, interpersonal functioning, and impulse control. The district court also did not clearly err in finding that McIntosh’s dangerousness was due to his mental disease or defect. The evidence showed that McIntosh’s personality disorder increase d the risk that he would pose a danger to others. The Report explained that McIntosh’s personality disorder contributed to his intense anger and instability. And the evidence reflected that McIntosh continued to pose a threat of harming others as he continued to make repeated threats throughout the evaluation period, exhibiting the same behavior as when he committed the criminal offenses. Indeed, McIntosh stated that he was “ten out of ten” certain that he wou ld harm people. Doc. 215 at 36. And t he psychologist opined that if McIntosh obtained access to those persons , he likely would act on his homicidal ideations. We thus conclude that the evidence supported that McIntosh posed a high risk of engaging in fu ture violence due to his severe and pervasive personality disorder.

Case: 16-16442 Date Filed: 08/20/2018 Page: 18 of 1919 V. CONCLUSION McIntosh has failed to demonstrate that the district court clearly erred in finding he suffered f rom a mental disease or defec t and that hi s dangerousness was due to his mental disease or defect

. We therefore affirm the district court’s order of commitment. 6
AFFIRMED.

6 Also pending before the Court is McIntosh’s motion for appointment of new counsel. That motion is DENIED.

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