United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-1872

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Western District of Missouri.

Gary Johnson, * 

* [UNPUBLISHED]

Appellant. *

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Submitted: January 9, 2012

Filed: January 18, 2012

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Before MELLOY, ARNOLD, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Gary Johnson appeals the district court’s order involuntarily committing him

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under 18 U.S.C. §§ 4241 and 4246 to a mental health treatment unit within the United

States Medical Center for Prisoners (USMCFP). We affirm.

The Honorable Richard E. Dorr, United States District Judge for the Western 1

District of Missouri, adopting the report and recommendations of the Honorable 

James C. England, United States Magistrate Judge for the Western District of

Missouri. 
After being found incompetent and unable to be made competent to stand trial

for burglary charges, Johnson was temporarily committed under 18 U.S.C. 4241(d)

to the custody of the Attorney General and placed in the USMCFP for a risk

assessment to determine whether Johnson should be released. Under 18 U.S.C. §

4246, a person in the custody of the Bureau of Prisons who has been temporarily

committed under section 4241(d) will not be released if the court determines: 1) the

person presently suffers from a mental disease or defect; 2) the person’s release

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

to the property of another; and 3) no available suitable state placement exists. 18

U.S.C. § 4246; United States v. LeClair, 338 F.3d 882, 884 (8th Cir. 2003). 

A risk assessment panel comprised of three members—one psychologist, one

psychiatrist, and one social worker—determined thatJohnson suffered froma serious

mental illness and that his release would create a substantial risk of bodily injury to

others orserious damage to the property of another. Specifically, the panel found that

Johnson suffers from delusions, is not aware that he is delusional, and is paranoid.

The psychiatrist member of the risk assessment panel testified at a hearing before the

court that because Johnson’s delusions were paranoid, they created a risk of bodily

injury to others, specifically because Johnson’s delusions make him believe other

individuals are trying to harmhim, which causes himgreat agitation. The psychiatrist

also testified Johnson’s risk of causing bodily injury to others was increased because

he had a history of significant drug and alcohol abuse. 

At the request of Johnson’s public defender, Johnson was evaluated by an

independent psychologist apart fromthe risk assessment panel, Dr. Kenneth Burstin. 

Dr. Burstin also determined that Johnson was suffering from a mental disease. Dr.

Burstin could not rule out that Johnson’s release would present a risk of bodily harm

to others but concluded the risk presented by Johnson was not a substantial one, in

part because Johnson’s delusional beliefs did not present until after his arrest. 

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Johnson argues the court erred in finding there was clear and convincing

evidence that his release would present a substantial risk of bodily injury to himself

or others. Specifically, he relies on Dr. Burstin’s finding that the risk of his release

would not be substantial, that his delusions did not present until after his arrest, and

that he had behaved well and non-violently while committed. We review a district

court’s finding that a substantial risk of bodily injury exists for clear error. United

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

Johnson has done well while in treatment and has not been violent. However,

“[o]vert acts of violence are not required to prove” a substantial risk of bodily injury

to others. United States v. Williams, 299 F.3d 673, 677 (8th Cir. 2002). “[A] finding

of ‘substantial risk’ under § 4246 may be based on any activity that evinces a genuine

possibility of future harm to persons or property.” Jones v. United States, 463 U.S.

354, 364-65 (1983). In Williams, we noted that the defendant’s minimal history of

actual violence and “relatively problem-free incarceration” were insufficient to

establish that the defendant’s release would not pose a substantial risk of bodily

injury. 299 F.3d at 677. 

None of the professionals who evaluated Johnson believed his release would

not present a risk of bodily injury to others. Only one, Dr. Burstin, characterized this

risk as less than substantial. In addition to these professional reports, Johnson has a

lengthy criminal history including a conviction for aggravated assault and an

additional charge of assault. Additionally, he has a significant history of drug and

alcohol abuse. We have noted that the major factors in determining whether an

individual’s release presents a substantial risk of harm of bodily injury to others

include a history of inflicting bodily injury and a history of drug and alcohol use,

among others. United States v. Ecker, 30 F.3d 966, 970 (8th Cir. 1994). Thus, we

cannot say under these circumstances that the court clearly erred in determining that

Johnson’s release would pose a substantial risk of bodily injury to another person.

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Under section 4246, in addition to finding that an individual to be committed

suffers from a mental disease and his release would present a substantial risk of

bodily injury to others, the court may not commit the individual unless no state

placement for the individual is available. 18 U.S.C. § 4246(d). Johnson argues that

the Government failed to prove that no state placement was available for him. 

Johnson was unwilling to release his medical records to the State of Tennessee,

where Johnson could potentially have been placed. The MCFP warden contacted the

State of Tennessee and learned it would not accept Johnson into placement without

his medical records. The Government submitted a certificate of the warden

conveying this information to the court. However, Johnson argues the MCFP had a

duty to pursue other alternatives for his state placement and that the Government

bears the burden of showing a state will not assume responsibility for him. We

determined in United States v. Wigren, 641 F.3d 944, 947 (8th Cir. 2011), that the

Government is not required to put on proof on the matter of state custody aside from

the initial certification by the warden because section 4146 “does not endow the

committed person with a judicially-enforceable ‘right’ to state custody that must be

adjudicated at the hearing.” 641 F.3d at 947. Johnson acknowledges in his brief that

Wigren forecloses his argument, however, he asserts his argument to preserve it

pending a possible positive outcome in the Wigren case. After Johnson filed his

brief, the Supreme Court denied certiorari. See United States v. Wigren, 132 S. Ct.

561 (2011). Under Wigren, the warden’s certification was all that was necessary for

the court’s determination that state placement was unavailable for Johnson. 

For these reasons, we affirm the district court’s order committing Johnson to

custody.

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