IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-11163

SEALED APPELLEE,

Petitioner - Appellee

v.

SEALED APPELLANT,

Respondent - Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before CLEMENT, OWEN, and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

The issue before this court is whether sufficient, accurate facts warranted

revocation of the conditional discharge for medical treatment of a person

(“C.K.”). We hold that the revocation was proper, because the provisions of Title

18, United States Code § 4246(f) were adhered to. Specifically, the district court

held a hearing, at which time two expertforensic psychologists testified. Having

acquainted itself with the danger of her state, the district court made a present

determination that in light of C.K.’s failure to comply with her treatment

regimen, her continued release would create a substantial risk of harm to others.

Section 4246 (“Hospitalization of a person due for release but suffering

from mental disease or defect”), in Chapter 313 (“Offenders with Mental Disease

United States Court of Appeals

Fifth Circuit

F I L E D

December 19, 2011

Lyle W. Cayce

Clerk
No. 10-11163

2

or Defect”), contemplates a continuum of events protective of the public and also

of persons who are involuntarily hospitalized under commitmentto the Attorney

General. C.K. has progressed through this continuum, subject to periodic review

in district court and this court. After pleading guilty to bank fraud, C.K. was

sentenced to time served and a five year supervised release period. C.K.’s

supervised release was revoked, however, and on May 12, 2005, pursuant to

Section 4246(a)-(d), she was committed to the custody of the Attorney General,

based on clear and convincing evidence that she was “suffering from a mental

disease or defect as a result of which [her] release would create a substantial

risk of bodily injury to another person . . . .” 18 U.S.C. § 4246(d)(2). We affirmed

this commitment order. Sealed Appellee v. Sealed Appellant, 185 F. App’x 345

(5th Cir. 2006).

On June 14, 2006, pursuant to Section 4246(e), the district court

conditionally discharged C.K. based on a preponderance of the evidence that her

conditional release under a prescribed treatment regimen “would no longer

create a substantial risk of bodily injury to another person . . . .” 18 U.S.C. §

4246(e)(2).

On November 5, 2010, after hearings on September 15, 2010, and

November 1, 2010, and pursuant to Section 4246(f), the district court revoked

the conditional release of C.K. and entered the order on review. 

Subsection (f), which pertains to “[r]evocation of conditional discharge,”

states that a court:

shall, after a hearing, determine whether the person should be

remanded to a suitable facility on the ground that, in light of [her]

failure to comply with the prescribed regimen of medical,

psychiatric, or psychological care or treatment, [her] continued

release would create a substantial risk of bodily injury to another

person . . . .
No. 10-11163

1 Subsection (d) governs involuntary hospitalizations, based on clear and convincing

evidence of a mental infirmity as a result of which a release would create a substantial risk of

harm. 18 U.S.C. § 4246(d).

2 Subsection (e) governs discharges from involuntary hospitalization, based on a

preponderance of the evidence that the person has recovered to such an extent that release

would no longer create a substantial risk of harm. 18 U.S.C. § 4246(e).

3

18 U.S.C. § 4246(f). C.K. observed in district court and now again on appeal that

this language—unlike the antecedent subsections (d)1 and (e)(2)2—does not

specify the level of convincing force that the evidence must show about a

substantial risk of harm to warrant revocation.

C.K. contended in district court that such proof of a substantial risk of

harm must rise to a clear and convincing level. The district court correctly

observed, however,that applying this level of proofto the revocation process has

neither legal nor logical basis. The plain language of subsection (f) does not

require the higher clear and convincing evidence standard, and the internally

coherent structure of Section 4246 would be undermined. A contumacious

person could violate release conditions yet continually relitigate against

commitment under subsection (d)’s clear and convincing proof standard.

Moreover, lifting the heightened burden from subsection (d) into subsection (f)

would impede the operation of subsection (e), which prescribes that release is

proper when a preponderance of the evidence demonstrates a recovery to such

an extentthat a substantial risk of harm no longer exists. Indeed, subsection (e)

explains further that courts “at any time may, after a hearing employing the

same criteria, modify or eliminate” a conditional release regimen. 18 U.S.C. §

4246(e). This subsection (e) evidentiary showing necessary to modify or

eliminate conditional release should not be circumvented by persons who violate

terms of release yet then oppose revocation and commitment on the ground that

the district court must re-find clear and convincing proof of a substantial risk of

harm.
No. 10-11163

3 See also Addington v. Texas, 441 U.S. 418, 432-33 (1979) (holding that the burden of

proofmust be “greater thanthe preponderance-of-the-evidence standard” in a civil commitment

proceeding).

4 For further clarification, these statutory provisions in contested proceedings

presuppose burdens of persuasion as follows: subsection (d)’s commitment mechanism, on the

government; subsection (e)’s discharge mechanism, on the person seeking release, or

modification or elimination of terms of conditional release; and subsection (f)’s revocation and

re-commitment mechanism, on the government.

4

Instead, we hold that the proceedings that have occurred in this case

adhered to the requirements and protective logic of Section 4246. To justify

C.K.’s original involuntary hospitalization order, the district court found that the

evidence metthe heightened burden of proof standard that Congress imposed for

commitment, namely, a substantial risk of harm shown to a clear and convincing

level. 18 U.S.C. § 4246(d).3 Thereafter, to grant C.K. her conditional discharge,

the district court found that the evidence met the ordinary civil burden of proof

that Congress imposed to obtain release, namely, a preponderance of the

evidence of a recovery to such an extent that release according to a medical

treatment regimen would no longer create a substantial risk of harm. 18 U.S.C.

§ 4246(e). Then, once conditionally released, but upon proof of a violation of a

release term, the district court ordered revocation and remand “to a suitable

facility” on the ground that “continued release would create a substantial risk

of bodily injury . . . .” 18 U.S.C. § 4246(f).4

This appeal, and C.K.’s two points of alleged error, relate to the third of

these determinations, the district court’s November 5, 2010 revocation order

pursuant to subsection (f). First, we reiterate the twin findings necessary for a

Section 4246(f) revocation order, i.e., a failure to comply with a conditional

release treatment regimen and also a contemporaneous finding that, “in light of

[her] failure to comply . . . [her] continued release would create a substantial risk

of bodily injury to another person . . . .” Id.; see United States v. Sealed

Appellant 1, 169 F. App’x 415, 416-17 (5th Cir. 2006). Second, we hold that the
No. 10-11163

5 Compare 18 U.S.C. § 3583(e)(3) (revocation of supervised release to require a

defendant to serve “in prison all or part of the term of supervised release” if the court “finds by

a preponderance of the evidence that the defendant violated a condition of supervised release

. . . .”).

6 Throughout the two-hundred page transcript of the November 1 hearing devoted to

whether C.K.’s failure to comply with her treatment regimen meant that her re-release would

5

fair preponderance of evidence standard, not challenged as the standard

appropriate to decide whether the violative conduct occurred,5 also applies to the

twin finding of a substantial risk of harm. In that regard, we do not perceive in

the plain language of subsection (f) (or caselaw pertaining to it or similar

revocation provisions, such as 18 U.S.C. §§ 4243(g) and 4248(f)), a rebuttable

presumption for or against release carrying over from subsections (d) or (e),

favoring or disfavoring discharge. Instead, given the flux and purpose to

encourage treatment recovery, balanced with the imperative of public safety, we

emphasize that each substantial risk finding in Section 4246’s three

aforementioned provisions must be contemporaneous. 

Applying these two interpretations of the statute to the case before us, we

recognize that the district court received expert hearing testimony devoted to the

substantial risk question. The district court recessed its first hearing to permit

observation of C.K. by a government and a private psychologist, whereafter the

district court reconvened its hearing and probingly asked both experts about

their substantial risk assessments. At the conclusion of this second hearing, the

district court, speaking in the present tense, made clear that “I have not been

persuaded by any evidence that the finding previously made on that subject

[whether release would create a substantial risk of bodily injury] should be

changed or that that’s not in fact the case.” This finding, in turn, explicitly was

incorporated in the district court’s subsequent written order of November 5, 2010

(“The court adopts all findings and conclusions expressed on the record by the

court at such hearing.”).6
No. 10-11163

present a substantial risk of harm, the district court invited the parties to cooperate to present

a subsection (e) modified conditional release “solution” which would enable C.K. to continue

in a conditional discharge status based on a preponderance of evidence showing that the terms

of any revised conditional release could protect against a substantial risk of harm to others.

Also, the district court rejected C.K.’s suggestion that it must ignore or even redo its 2005 clear

andconvincing finding of a substantial riskwhichcommencedC.K.’shospitalization. However,

that original finding is almost seven years old, and has been conceded to have been close at

that time, hence we clarify that the 2005 finding created no “rebuttable presumption” that

negated the district court’s present obligation to re-assess whether, in light of her proven

failure in 2010 to comply with release conditions, C.K.’s continued release would create a

substantial risk of bodily injury to another person.

6

We hold that the hearings, and especially the extensive expert testimony

taken in this case on November 1, 2010, coupled with the district court’s present

tense finding of fact at the conclusion of these hearings, were sufficient to

support revocation of C.K.’s conditional discharge and belie the argument that

C.K. was confined based on no risk of harm, contravening Section 4246 and

O’Connor v. Donaldson, 422 U.S. 563 (1975).

C.K.’s second contention of error pertains to seven letters admitted at the

September 15, 2010 hearing. Subsection (f), again unlike its antecedent

provisions in Section 4246, does not explicitly require that revocation hearings

conform to the hearing provision of Section 4247(d) which, in turn, not only

guarantees representation by counsel, but also that:

[t]he person shall be afforded an opportunity to testify, to present

evidence,to subpoena witnesses on [her] behalf, and to confront and

cross-examine witnesses who appear at the hearing.

18 U.S.C. § 4247(d). However, these rights conferred by Section 4247(d) are

said, in that subsection itself, to apply to “a hearing ordered pursuant to this

chapter . . . .” Id. Consequently, we hold that the hearing rights elaborated in

Section 4247(d) apply also to revocation hearings pursuant to Section 4246(d).

We hold also that the district court in the instant revocation proceedings

complied with, and provided to C.K., each protection listed, and specifically

what she terms her “statutory right to confrontation.” 
No. 10-11163

7

C.K.’s evidentiary objections occurred during the first hearing on

September 15, 2010, when the district court received documentary items which

pertained to whether she had failed to comply with her treatment regimen. Five

were letters the district court sufficiently authenticated as written by C.K.,

hence admissible as not hearsay. Fed. R. Evid. 801(d)(2)(A); see also Fed. R.

Evid. 104; Fed. R. Evid. 1101(d)(1). Another, government exhibit 2, was a foursentence letter authored by the program director of C.K.’s treatment regimen to

the district court and C.K.’s probation officer stating that C.K. had failed to

appear for treatment on a specific date. The district court, in the hearing,

ascertained that the Missouri treatment center works under contract with the

supervising United States probation office. See United States v. Lykes Bros. S.S.

Co., 432 F.2d 1076, 1079-1080 (5th Cir. 1970). And the final letter, government

exhibit 3, was authored by C.K.’s probation officer to the United States

Attorney’s Office, describing that officer’s supervision of C.K. and investigation

of her failure to comply with release conditions. Both of these last two letters

were found to be admissible under Fed. R. Evid. 803(8)’s hearsay exception for

public records and factual findings in civil proceedings, although the former

would also, in its neutral statement of medical treatment not administered,

appear to be admissible under Fed. R. Evid. 803(4). Both contain matters

observed and consistent with firsthand knowledge, though government exhibit

3 does attribute several statements to C.K.’s sister. See Moss v. Ole South Real

Estate, Inc., 933 F.2d 1300, 1309-1310 (5th Cir. 1991). C.K. made no showing to

the district court that “the source[s] of information [or] other circumstances

indicate lack of trustworthiness.” Fed. R. Evid. 803(8)(C); see generally Beech

Aircraft Corp. v. Rainey, 488 U.S. 153 (1988). In fact, Cheryl Smallwood, C.K.’s

probation officer, the author of government exhibit 3, and a recipient of

government exhibit 2, testified at the September 15 hearing, and counsel for

C.K. declined to cross-examine her at all. C.K. has acknowledged on appeal that
No. 10-11163

7 C.K.’s extended complaint on appeal that the district court admitted these letters “by

analogy to” or “in reliance on” United States v. Grandlund, 71 F.3d 507 (5th Cir. 1995), is

misplaced. The district court adverted to the evidence reliability analysis we approved for

supervised release revocations in Grandlund, but made its evidentiary rulings in the instant

matter with reference to and consistent with the Federal Rules of Evidence.

8

it is “uncontested . . . that she did not meet with her supervising officer,” as

required by her conditional release terms. Consequently, we hold that the

district court did not abuse its discretion in admitting these seven items over

C.K.’s hearsay contentions.7

AFFIRMED.