United States Court of Appeals

For the Eighth Circuit

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No. 15-3954

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Larry Rick Mikawa

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: November 15, 2016

 Filed: February 22, 2017

[Published]

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Before RILEY, Chief Judge, WOLLMAN and KELLY, Circuit Judges.

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KELLY, Circuit Judge.

After being found not guilty by reason of insanity of false personation of a

federal officer in November 2012, Larry Mikawa was civilly committed pursuant to

18 U.S.C. § 4243. Two years later, the mental health facility treating Mikawa

determined he had recovered from his mental illness sufficiently to be eligible for

discharge from the psychiatric hospital. The government opposed release, and the
district court held an evidentiary hearing. In its order, the district court denied 1

release, finding that Mikawa posed a substantial risk of danger to other persons or

property. Mikawa appealed, and we now affirm finding no clear error.

I. Background

On April 6, 2010, Larry Mikawa wasindicted for false personation of a federal

officer in violation of 18 U.S.C. § 912. Based on a stipulated psychiatric report, the

district court found Mikawa incompetent to proceed and ordered him committed to

determine if competency could be restored. Mikawa was transferred to the Federal

Medical Center (FMC) in Butner, North Carolina for treatment. On September 11,

2012, the district court found Mikawa competent to proceed based on an updated

psychiatric evaluation. Mikawa was transferred to the U.S. Penitentiary in

Leavenworth, Kansas for further proceedings in his criminal case. While there,

Mikawa stopped taking his psychiatric medications, and his psychotic symptoms

returned.

Shortly thereafter, the parties filed a stipulation of facts in support of an

insanity plea based on a doctor’s conclusion that Mikawa was unable to appreciate

the nature and quality or wrongfulness of his acts at the time of the offense. On

November 27, 2012, the district court found Mikawa not guilty by reason of insanity

and, per the stipulation, committed him pursuant to 18 U.S.C. § 4243. Mikawa was

subsequently transferred to the FMC in Rochester, Minnesota in March 2013.

On January 7, 2015, the warden of FMC Rochester filed a “Certificate of

Recovery and Request to Discharge from Psychiatric Hospital,” which stated that

clinicians believe that Mikawa “has recovered from his mental disease or defect to

The Honorable Dean Whipple, United States District Court for the Western 1

District of Missouri.

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such an extent that his release would no longer create a substantial risk of bodily

injury to another person or serious damage to the property of another.” Attached

were the reports of two Risk Assessment Panels (RAP)—composed of at least two

non-treating psychiatric professionals and chaired by the facility’s chief of

psychology—dated April 8, 2014, and November 12, 2014. Both panels concluded

that Mikawa had suffered from a severe mental illness, diagnosed as “schizoaffective

disorder, bipolar type,” for at least three decades. After reviewing multiple

psychiatric evaluations and treatment notes and conducting interviews of Mikawa and

his ex-wife, the April 2014 panel recommended unconditional release because there

was no record of Mikawa causing injuries or serious property damage, and his age

and lack of substance abuse suggested future violence was unlikely. The panel did

acknowledge that it was unlikely Mikawa—who did not believe he had a mental

illness or neededmedications—would independently continue treatment, and thus his

mental status would likely deteriorate upon release. Because Mikawa’s treating

psychologist was on extended medical leave in April 2014, another RAP was

convened in November 2014. The second RAP found no reason to alter its prior

recommendation of unconditional release. The second panel found little risk ofinjury

or property damage as Mikawa had no intent or history of causing harm, although it

predicted he “likely” would engage in “nuisance or bizarre behavior that may bring

him to the attention of law enforcement.”

On January 13, 2015, the government objected to the release recommendation

and requested a discharge hearing. In support of its request, the government attached

a declaration from Mikawa’s treating psychiatrist, Dr. Dionne Hart, who opined that

Mikawa should not be unconditionally released. The government also had Mikawa

evaluated by Dr. Dawn Peuschold, who concluded that he should not be released.

Because the government opposed unconditional release, another RAP

convened on March 17, 2015, to offer an opinion on a proposed conditional release

plan. The conditional release plan placed Mikawa, who was primarily a resident of

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Alaska prior to his arrest, at Marenah’s Assisted Living Home in Anchorage. The

home had surveillance cameras and an onsite care worker who assisted with

administering medications, hygiene, and programming. Mikawa would be required

to receive mental health treatment provided by Anchorage Community Mental Health

and to take all prescribed medications. Further, Mikawa would be supervised by Tim

Astle of the U.S. Probation Office in Anchorage, who would have access to all of

Mikawa’s treatment records and to the home. Mikawa also would be required to

submit to drug testing. His failure to comply with the conditions of release could

result in his return to custody. The March 2015 panel unanimously agreed that the

proposed conditional release would “adequately control and minimize any risk related

to Mr. Mikawa’s release from custody.”

The district court held a discharge hearing on October 5 and 6, 2015, and heard

testimony from ten witnesses. Three of the witnesses, doctors Jason Gabel, Daniel

Carlson, and Andrew Simcox, participated as members of one or more of Mikawa’s

three RAPs. Each of them opined that either conditional or unconditional release

would be appropriate as Mikawa was one ofthe “least dangerous” committed patients

they had seen, and he had no history of substance abuse, weapon ownership, or

infliction of serious injury on others. Two of Mikawa’s mental health

professionals—his psychologist at FMC Rochester, Dr. Emily Wakeman, and the

mental health coordinator at Leavenworth, Jeff Cowan—testified that Mikawa was

not a “threat to anyone” and had not had any physical altercations while committed. 

Astle and Elizabeth Meyer, a social worker at FMC Rochester, testified about the

proposed conditional release plan and Astle’s inspection of the facilities and services

Mikawa would rely on in Anchorage if conditionally released. 

Dr. Dionne Hart, Mikawa’s treating psychiatrist at FMC Rochester, disagreed

with her fellow clinicians, opining that Mikawa should not be released. In her

declaration, she cited three observations that led her to conclude that Mikawa “has

not reached the maximumbenefit fromhospitalization:” first, he repeatedly insists he

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does not have a mental illness and will not take his medications; second, he continues

to have delusions about Sarah Palin, the officers who arrested him, and being a law

enforcement officer; and third, he has a preoccupation with his ex-wife, who does not

want to have any contact with him. At the hearing, Dr. Hart expressed concern that

Mikawa would contact his ex-wife, citing two letters and a package he had recently

addressed to homes on the street where she lived. Dr. Hart recommended that

Mikawa remain at FMC Rochester for further treatment, as she did not believe he

would be able to comply with the conditions of release.

Dr. Dawn Peuschold, the government’s independent psychologist, testified

consistently with her report that Mikawa had not recovered to such an extent that his

unconditional or conditional release would no longer create a substantial risk of

bodily injury to another person or serious damage to the property of another. Her

conclusions were based on a review of Mikawa’s records as well as a four-hour and

forty-minute interview with him. Dr. Peuschold agreed that Mikawa suffers from

schizoaffective disorder, bipolar type and that he experiences symptoms, which are

sometimessevere, both during and absent treatment. Mikawa’s symptoms cause him

to misperceive external reality, giving him the mistaken belief that he does not have

a mental illness and does not need treatment. Dr. Peuschold found that Mikawa’s

mental illness causes him to “display[] a multidimensional pattern of disturbing,

aggressive, or intimidating behaviors,” which he intends to continue and often lacks

the ability to control. She found his behaviors “concerning” and subjectively

“threatening.” In addition, Dr. Peuschold testified that she does not believe Mikawa

will continue to take medications outside of a hospital setting and “is not stable

enough” to comply with the other conditions of release.

The final witness was Mikawa’s second ex-wife, Cynthia Mikawa. She was

married to Mikawa from1999 to 2008 and the couple has one child, who wasthirteen

at the time of Ms. Mikawa’s testimony. During their marriage, Mikawa was primarily

medication compliant and held a steady job in Alaska, but in 2007 he abruptly

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disappeared, stopped taking medication, and traveled to Missouri. After his

disappearance, Mikawa called and wrote emails that Ms. Mikawa found threatening:

calling her a “demon,” stating she needed “to be killed” and was going to “go to hell,”

and threatening to take their daughter to the wilderness. She obtained a protective

order against Mikawa in 2008, which he was found guilty of violating when he

showed up at her house late at night yelling. According to Ms. Mikawa, after her exhusband’s arrest in 2010 and as recently as August 2015, he wrote letters to her and

her daughter from prison, most of which she returned to sender. On the outside of the

envelopes, Mikawa wrote notes saying, among other things, that he was going to

arrange for Ms. Mikawa to be killed. At the hearing, Ms. Mikawa testified that

Mikawa’s release makes her afraid for her and her daughter’s safety because he will

not stay on his medications or be able to abide by the conditions of release.

In an order dated December 1, 2015, the district court denied Mikawa

discharge fromcommitment, adopting the conclusions ofthe government’s expert and

finding that Mikawa failed to carry his burden to prove that his release would not

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

property of another. Mikawa appeals this order. 

II. Discussion

A person found not guilty by reason of insanity of an offense that did not

involve a substantial risk of bodily injury or property damage is eligible for release, 2

or conditional release, if he can prove by a preponderance of the 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.” 18

The parties agree that Mikawa’s offense, false personation of a federal officer 2

in violation of 18 U.S.C. § 912, did not involve a substantial risk of bodily injury or

property damage.

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U.S.C. § 4243(d). If the standard is met, the district court shall order the commitment

be completely discharged, or order “that he be conditionally discharged under a

prescribed regimen of medical, psychiatric, or psychological care or treatment that

has been prepared for him, that has been certified to the court as appropriate by the

director of the facility in which he is committed, and that has been found by the court

to be appropriate.” 18 U.S.C. § 4243(f)(2)(A). We review an appeal of a district

court’s order continuing commitment under 18 U.S.C. § 4243 and its dangerousness

finding for clear error. See United States v. Bilyk, 949 F.2d 259, 261 (8th Cir. 1991)

(citing United States v. Steil, 916 F.2d 485, 488 (8th Cir. 1990) (holding that the

“clearly erroneous standard governs our review of a district court’s . . . finding of

dangerousness” under 18 U.S.C. § 4246)).3

Although the warden recommended both Mikawa’s unconditional and then

conditional release, on appeal Mikawa challenges only the district court’s refusal to

order conditional release. Mikawa also does not challenge the finding that he

presently suffers from a severe mental disease, namely schizoaffective disorder,

bipolar type, which causes him to experience delusions, hallucinations, periods of

disorganization, and mood symptoms. Thus, the central question in this appeal is

whether the district court clearly erred in concluding that because of his mental

illness, Mikawa’s conditional release would create a substantial risk of bodily injury

to another person or serious damage to the property of another.

The district court found the government’s expert, Dr. Peuschold, to be credible

and found her conclusions “persuasive and consistent with the record as a whole.” 

Whereas 18 U.S.C. § 4243 concerns the commitment of a person found not

3

guilty by reason of insanity, 18 U.S.C. § 4246 addresses the commitment of a

hospitalized person following expiration of his or her sentence. The standard used

to discharge commitment under §§ 4243 and 4246 is the same; however, depending

on the procedural posture, the burdens of proof may differ. Compare 18 U.S.C. §§

4243(d), (f) with 18 U.S.C. §§ 4246(d), (e).

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Mikawa argues that Dr. Peuschold’s conclusions should not be credited because she

documents only one instance of physical injury to another person—Mikawa punching

his first wife twenty-five years ago—and fails to connect Mikawa’s rude, annoying,

and disturbing behaviors to any substantial risk of bodily injury or property damage. 

Instead, Mikawa argues the preponderance of the evidence supports the conclusion

of the three RAPs that the absence of violence, substance abuse, and weapon use in

Mikawa’s history makes it unlikely that he poses a physical danger to others. 

The district court rejected Mikawa’s argument and refused to credit the

opinions of the doctors who served on the RAPs, finding they were “not supported

by the record.” Although the district court highlighted several facts to support its

dangerousness finding, the RAP doctors’ conclusions deserve due consideration

given their cumulative experience serving on thousands of risk panels for committed

patients and their consideration of a plethora of Mikawa’s forensic, health, and legal

records and a multi-year course of observation, interviews, and testing of Mikawa. 

Nevertheless, the district court substantiated its dangerousness finding, citing to

fourteen acts by Mikawa which “were violent or pose a risk of bodily injury to

another person or serious damage to property of another,” including that he: (1) used

a Samurai sword to destroy property at his apartment in 1988; (2) hit his first wife

several times during a single incident in the late 1980s; (3) had protective orders

issued against him by his second ex-wife, a gay rights organization, and workers at

a sports arena in Anchorage, Alaska; (4) left threatening letters at a Kansas City,

Missouri federal courthouse in 2010; (5) was placed in leg irons and transported by

stretcher at FMC Butner in August 2011 after verbally assaulting and pulling away

from an escorting officer; (6) sent letters to his second ex-wife from FMC Butner

indicating that she needed to be killed; (7) threw water on an electric fan outside his

cell in an effort to shock his cellmate; (8) threw a milk carton with feces and urine at

a correctional officer in July 2011; (9) spit at employees while temporarily housed at

the Federal Correctional Institution in Oxford, Wisconsin in 2013; (10) called his

treating psychiatrist, Dr. Hart, a “chemical terrorist”; (11) pretended to “shoot” at

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correctional officers by pointing his fingers at them in the shape of a gun; (12)

pounded and kicked his cell door at FMC Rochester; (13) made near-daily reports to

FMC Rochester doctors and employees about other patients’ behavior, considering

himself a law enforcement officer; and (14) sent letters to his daughter (directly and

through a friend of hers) in August 2015 with a notation to not show the letter to her

mother. Given these detailed findings and our deference to them, we cannot conclude

it was clear error for the district court to reject the opinions ofsome experts and adopt

the opinion of another. See Bilyk, 949 F.2d at 261 (“Given ‘the trial judge’s

awesome responsibility to the public to ensure that a clinical patient’s release issafe,’

the district court may reject experts’ conclusions when their reasoning supports

different results.” (quoting United States v. Clark, 893 F.2d 1277, 1282 (11th Cir.

1990))).

We recognize that perhaps as compared to other committed patients, Mikawa

has few documented incidents of physical injury to another person. The absence of

prior violent acts certainly can be a key factor in analyzing whether discharge of

commitment is appropriate, but “overt acts of violence are not required to prove

dangerousness.” United States v. LeClair, 338 F.3d 882, 885 (8th Cir. 2003)

(dangerousness proven by clear and convincing evidence where defendant had only

one aggressive act, an assault, and had not shown any aggressive behavior while in

treatment); United States v.Williams, 299 F.3d 673, 677 (8thCir. 2002) (commitment

appropriate even though defendant had “minimal history of actual violence” and a

“relatively problem-free incarceration”); Steil, 916 F.2d at 487–88 (threatening letters

and belief that delusions are real enough to prove dangerousness even though

defendant had no history of violent behavior). Here, the district court pointed to one

act of overt violence—Mikawa’s admitted attack of his first wife—as well as several

threats of violence, harassing and assaultive behaviors, and aggressive and menacing

acts. It was not clear error to rely on these alarming behaviors in finding Mikawa’s

release created a substantial risk of harm. See Williams, 299 F.3d at 677 (considering

“significant episodes of bizarre, defiant, and explosive behavior” during

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incarceration). It is true that Mikawa’s assault of his first wife is entitled to less

weight because it occurred over twenty-five years ago, but it need not be entirely

discounted. See United States v. Evanoff, 10 F.3d 559, 563 (8th Cir. 1993) (“[T]he

recency or remoteness of any particular activity simply affects the weight the court

will give to that particular evidence.”). While none of the actions cited by the district

court independently may have been enough to support a finding of dangerousness,

together they provided sufficient evidence from which the district court could

conclude that Mikawa posed a substantial risk of bodily injury to another person or

serious damage to the property of another. See United States v. Dixon, 963 F.2d 377,

at *3 (8th Cir. 1992) (unpublished table decision) (per curiam) (holding there was

clear and convincing evidence of a substantial risk of future harm to another under

§ 4246 where defendant “verbally threatened his former wife with bodily harm,

exhibited antisocial behavior, and could not control his temper and emotions”).

Mikawa also challenges the district court’s conclusion that the conditional

release plan developed for him was insufficient to ameliorate the substantial risk of

injury he posed to others. Among other things, the district court was concerned that

if conditionally released, Mikawa could fail to take his medication and decompensate

psychiatrically, exhibit disturbing, aggressive, or intimidating behaviors in the

community, walk away from the group home, harm his ex-wife or daughter, or stalk

Sarah Palin. Mikawa argues that by requiring that he continue to take psychiatric

medications, consent to drug testing, and risk recommitment for noncompliance, the

conditional release plan adequately addressed any risk of injury from the possibility

that he would stop taking his medications. 

The conditional release plan included terms and conditions that would result

in close monitoring of Mikawa’s compliance with treatment for his mental illness,

which in some circumstances would be sufficient to alleviate the district court’s

concerns. Given Mikawa’s long-term and frequent insistence that he does not suffer

from a mental illness and does not want to be on and has a repeated history of

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refusing psychiatric medications, however, the district court did not clearly err in

concluding that the proposed conditions did not sufficiently address the substantial

risk that Mikawa would stop taking his medications, decompensate, and cause bodily

harm or property damage. See LeClair, 338 F.3d at 885 (upholding continued

commitment where patient had “little insight into his mental illness and need for

treatment” and there was “no assurance of compliance with treatment outside a

structured setting”); see also United States v. Jackson, 19 F.3d 1003, 1008 (5th Cir.

1994) (“Section 4243 does not require that Jackson be [conditionally] released simply

because there are mechanisms whereby he could be closely monitored on an

outpatient basis.”). Although the district court could have imposed additional

conditionsto allay its concerns, see United States v. Franklin, 435 F.3d 885, 889 (8th

Cir. 2006), we cannot fault the district court for failing to consider hypothetical

conditions not presented to it. In this case, it was not reversible error for the district

court to deny conditional discharge based on the plan presented in the reports and at

the hearing. See United States v. Phelps, 283 F.3d 1176, 1184 (9th Cir. 2002) (“If

adequate conditions cannot be or are not developed to the satisfaction of the court to

ensure public safety, then the court has the responsibility to deny the release.”).

While we do not find that the court clearly erred in denying the discharge of

Mikawa’s commitment on the record presented here, we are mindful that the statutory

maximum sentence for Mikawa’s offense isthree yearsimprisonment. See 18 U.S.C.

§ 912. Mikawa has been in federal custody for nearly seven years, and his burden is

to prove his eligibility for release only by a preponderance of the evidence. 18 U.S.C.

§ 4243(d). “‘It has to be recalled that the government’s role here is not that of

punitive custodian of a fully competent inmate, but benign custodian of one legally

committed to it for medical care and treatment—specifically for psychiatric

treatment.” Steil, 916 F.2d at 488 (quoting United States v. Charters, 863 F.2d 302,

312 (4th Cir. 1988)). A person committed pursuant to 18 U.S.C. § 4243 is entitled

to an annual evaluation of his mental condition and the need for continued

commitment. 18 U.S.C. § 4247(e)(1)(B). At oral argument, it was disclosed that

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Mikawa has not received such an evaluation since his prior RAP in March 2015. “In

its custodial role, the government of course must fulfill its statutory duties,” Steil, 916

F.2d at 488, and we are confident that the government will ensure Mikawa is

reevaluated in due course to determine whether there is a need for his continued

hospitalization. See also 18 U.S.C. § 4247(h) (stating that Mikawa’s counsel may file

a motion for a hearing to determine Mikawa’s eligibility for discharge “at any time”).

III. Conclusion

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

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