PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4610

CHARLES MICHAEL BAKER,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Asheville.

Lacy H. Thornburg, District Judge.

(CR-96-11)

Argued: June 5, 1998

Decided: August 27, 1998

Before NIEMEYER and LUTTIG, Circuit Judges, and SMITH,

United States District Judge for the Eastern District of Virginia,

sitting by designation.

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Vacated and remanded by published opinion. Judge Luttig wrote the

opinion, in which Judge Niemeyer and Judge Smith joined.

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COUNSEL

ARGUED: Stephen Paul Lindsay, LINDSAY & HENSLEY, Asheville, North Carolina, for Appellant. Thomas Richard Ascik, OFFICE

OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,

for Appellee. ON BRIEF: Mark T. Calloway, United States Attorney, Asheville, North Carolina, for Appellee.

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OPINION

LUTTIG, Circuit Judge:

Appellant Charles Michael Baker was found not guilty only by reason of insanity of mailing a threatening communication in violation

of 18 U.S.C. § 876. After further psychiatric evaluation and a statutorily required commitment hearing, the district court granted Baker

a conditional release pursuant to 18 U.S.C. § 4243(f). Baker appeals

from the district court's order, claiming that the district court lacked

statutory authority to place conditions upon his release. For the reasons that follow, we vacate the district court's order of conditional

release and remand to the district court for further consideration in

light of this opinion.

I.

On February 15, 1996, a federal grand jury indicted Baker for mailing a threatening letter in violation of 18 U.S.C.§ 876. Baker waived

his right to a jury trial and consented to a psychiatric evaluation.

Upon receiving the psychiatrist's report, which concluded that Baker

had a serious psychotic disorder involving prominent delusions of

persecution at the time he committed the offense, the district court

found Baker not guilty only by reason of insanity, pursuant to 18

U.S.C. § 4242. The court then committed Baker to the custody of the

Attorney General of the United States for assignment to a suitable

facility, in accordance with 18 U.S.C. § 4243(a), pending the psychiatric evaluation of Baker's current mental condition as required by

section 4243(b). This second psychiatric evaluation essentially

accorded with the first, but concluded that Baker's condition had

"substantially resolved" since the time of the offense.

On June 5, 1997, at the close of a hearing at which the results of

the second psychiatric report were presented, the district court found

that Baker satisfied his burden of proving by clear and convincing

evidence that "at the present time" his release would not create a substantial risk of bodily injury to another person or serious damage to

property of another due to a present mental disease or defect. See 18

U.S.C. § 4243(d). Nevertheless, in light of the two psychological

reports, the testimony of Baker's brother, and Baker's history of

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decompensation during times of stress, the district court concluded

that Baker's condition was "subject to rapid change." Citing as

authority 18 U.S.C. § 4243(f)(2)(B), the district court ordered Baker's

release into the custody of his mother and brother, with the condition

that he reside with one of those two and continue receiving regular

mental health treatment. From this order of conditional release, Baker

appeals.

II.

Baker contends that the district court, upon finding that he satisfied

his burden of proving by clear and convincing evidence that his

release would not create a substantial risk of bodily injury to another

person or serious damage to property of another due to a present mental disease or defect, was required by section 4243 to grant him

unconditional release. He argues that the district court, by imposing

conditions upon his release, exceeded its statutory authority. We

agree.

Section 4243, entitled "[h]ospitalization of a person found not

guilty only by reason of insanity," establishes the procedures for both

the commitment and ultimate discharge of insanity acquittees. After

a special verdict of not guilty only by reason of insanity pursuant to

18 U.S.C. § 4242, the district court is required to commit the defendant to a "suitable facility" pending a hearing to be held no more than

forty days after the date of the verdict. 18 U.S.C.§ 4243(a), (c). Prior

to the date of the hearing, the court must order a psychiatric or psychological examination of the defendant and the preparation of a

report on the results of that evaluation. 18 U.S.C.§ 4243(b). The

object of the ensuing hearing is to determine whether the defendant

can satisfy his burden of proving, either by clear and convincing evidence or by a preponderance thereof (depending on the character of

the offense charged) that his release would not create a substantial

risk of bodily injury to another person or serious damage to property

of another due to a present mental disease or defect. 18 U.S.C.

§ 4243(d), (e). Section 4243(e) provides that if the court "fails to find"

that the defendant has met this burden, it shall commit the defendant

to the custody of the Attorney General, who shall then assume ultimate responsibility for the custody, care, and treatment of the defendant until he can cause either the state in which the defendant is

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domiciled or was tried to assume such responsibility. 18 U.S.C.

§ 4243(e).

Section 4243 governs more than this initial commitment determination, however. Subsection (f) establishes the procedure by which an

insanity acquittee who has previously been committed pursuant to

section 4243(e) may subsequently be discharged, with or without conditions. And, in the final provision relevant to this appeal and to our

analysis, section 4243(g) governs the standards for revoking a conditional discharge authorized under subsection (f).

In granting appellant Baker a conditional release on the authority

of section 4243(f), the district court plainly erred. The district court

improperly relied on subsection (f), which governs discharge from

confinement previously authorized under subsection (e), rather than

on subsection (e), which governs the disposition of commitment following an insanity acquittal. And subsection (e) simply does not

authorize the district court to order a conditional release.

The express terms of the statute confirm that the hearing after

which the challenged order was entered was governed by subsection

(e) rather than subsection (f). Subsection (f), which is entitled "Discharge," is implicated only "[w]hen the director of the facility in

which an acquitted person is hospitalized pursuant to subsection (e)

determines that the person has recovered from his mental disease or

defect to the extent that his release, or his conditional release . . .

would no longer create" the substantial risk of injury with which the

section is concerned. 18 U.S.C. § 4243(f) (emphasis added). This language makes explicit what common-sense would suggest, namely,

that discharge from commitment cannot precede the commitment

itself. Thus, a subsection (f) discharge hearing simply cannot, as a

matter of the statute's construction, take place until after a subsection

(e) disposition of commitment has occurred. Because, as the parties

agreed at argument, there is no basis for concluding that any previous

proceeding could plausibly be considered a subsection (e) hearing,

and because the hearing in question was conducted for the explicit

purpose of determining "whether the Defendant's release would not

create a substantial risk of bodily injury to another person or serious

damage to property of another due to a present mental disease or

defect," the only possible conclusion is that the June 5, 1997, pro-

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ceeding was a subsection (e) determination and disposition hearing.

As a consequence, the district court had at the time of its order only

the authority that section 4243(e) confers upon it.

Turning to the question whether subsection (e) authorizes a conditional release order of the type entered by the district court, we can

only conclude that it does not. Although subsection (e) is rather awkwardly framed in the negative, obliging the court to commit the

defendant should it "fail to find" that his release would "not create"

a substantial risk of bodily injury or property damage, the unmistakable negative inference of the section is that the court must unconditionally release the defendant if it finds that he does not pose such a

risk.

Subsection (e) is not in any way an implicit grant of discretionary

authority to the district court to order a conditional release even after

a finding that the defendant does not pose the risks identified by the

statute. Rather, the subsection directs the court to commit the insanity

acquittee to the custody of the Attorney General should he fail to meet

the burden required to justify release. In contrast, subsection (f),

which by its terms applies only to insanity acquittees who have been

hospitalized pursuant to an earlier subsection (e) hearing and finding,

does explicitly provide for the third alternative to full release and continued commitment -- conditional release.* The contrast between the

express language of subsections (e) and (f) clearly demonstrates that

Congress knew how to authorize conditional release of an insanity

acquittee when it so desired. The absence of such language from subsection (e), therefore, is compelling evidence of an absence of corre-

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*Section 4243(e)(2) does mention the possibility of the defendant's

"conditional release under a prescribed regimen." However, that provision simply addresses the circumstances under which a defendant whom

the Attorney General has not been able to transfer into the custody of a

State may be released. The procedure by which such a release may be

obtained is nonetheless governed by subsection (f), which governs the

discharge of acquitted persons "hospitalized pursuant to subsection (e),"

of which subsection (e)(2) is indisputably a part. In any event, subsection

(e)(2), like subsection (f), only applies after the district court has committed a defendant to the custody of the Attorney General pursuant to the

primary clause of subsection (e).

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sponding authority. See Keene Co. v. United States, 508 U.S. 200,

208 (1983) ("[W]here Congress includes particular language in one

section of a statute but omits it in another . . ., it is generally presumed

that Congress acts intentionally and purposely in the disparate inclusion or exclusion." (internal quotations omitted)). If further evidence

of Congress' intent in this section were needed, it is provided by the

plain text of subsection (g), which sets forth the procedures for the

revocation of conditional discharges, and expressly references conditional release under subsection (f) but makes no reference at all to

such a qualified release under subsection (e).

The existence of a post-commitment conditional release option

under subsection (f) is not inconsistent with the absence of an exactly

analogous pre-commitment authority under subsection (e). Section

4243 requires a defendant who is less than forty days removed from

an insanity acquittal to prove that his unconditional release will not

create a substantial risk of bodily injury or property damage. That is,

the statute ensures that a recent insanity acquittee's present mental

state is such that his immediate release, without continued monitoring, would not pose such a risk. If there is sufficient doubt, he is to

be committed. But commitment is not necessarily permanent. Under

subsection (f), the director of the treatment facility, who presumably

will have the benefit of far more extensive observation and evaluation

of the defendant's mental state than did the district court at its subsection (e) hearing, may recommend the defendant's release conditioned

upon continued compliance with a treatment program that will eliminate the substantial risk to society with which the statute is concerned.

Accordingly, at the subsection (e) hearing conducted by the district

court, the court could have either released unconditionally or committed Baker. Because the court instead granted a conditional release for

which it lacked proper statutory authority, we are compelled to conclude that the district court plainly erred.

Although the district court explicitly found that Baker had shown

that "his release does not create . . . [a] substantial risk" of injury to

person or property due to a present mental disease or defect, we

remand for further consideration rather than reverse outright the judgment of the district court. The district court's conclusion that,

although his "condition is subject to change," Baker does not at this

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point present a danger to society may well have been predicated upon

the court's belief that the conditions it imposed eliminated danger otherwise posed by Baker. In the absence of these conditions, the district

court might well conclude that in fact Baker has failed to satisfy his

burden under subsection (e) of establishing that his release would not

pose a substantial risk to society.

CONCLUSION

The order of the district court is vacated and the case is remanded.

VACATED AND REMANDED

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