FILED

United States Court of Appeals

Tenth Circuit

March 16, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

COBY LIVESAY,

Defendant-Appellant.

No. 09-5080

Appeal from the United States District Court

for the Northern District of Oklahoma

(D.C. No. 4:08-CR-00097-JHP-1)

Winston H. Connor, II, Stockwell & Connor (Gloyd L. McCoy, Noble, Oklahoma,

with him on the briefs), Miami, Oklahoma, for Defendant-Appellant.

Stephen L. Sewell, Assistant United States Attorney (Thomas Scott Woodward,

Acting United States Attorney, with him on the brief), Tulsa, Oklahoma, for

Plaintiff-Appellee.

Before HARTZ, SEYMOUR, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

At his trial on gun charges, a jury found Coby Livesay not guilty by reason

of insanity. The district court responded to the verdict by ordering a psychiatric

evaluation of Mr. Livesay and holding a series of hearings, after which the court

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held that Mr. Livesay could not be unconditionally released without posing a

substantial risk to others. In light of this conclusion, the district court committed

Mr. Livesay to the custody of the Attorney General while expressly leaving open

the possibility of Mr. Livesay’s release, either conditionally or unconditionally, at

a later date. Mr. Livesay now appeals the district court’s ruling to us. But, as we

will explain, the district court’s ruling represented the only possible course of

action available to it under the processes Congress has mandated for the care and

disposition of insanity acquittees. So it is that we must affirm.

* * *

In 2005, Mr. Livesay attacked his father. When law enforcement arrived at

the scene, Mr. Livesay was wielding a shotgun. He fired the gun into the ground

and several pellets ricocheted and struck two officers. Oklahoma authorities

replied by charging Mr. Livesay with state crimes. After Mr. Livesay posted bail,

and while he was awaiting trial, he voluntarily entered a residential mental health

treatment facility called Sugar Mountain Retreat. 

Though the district attorney eventually dropped the state charges, a federal

grand jury decided to bring its own. In light of Mr. Livesay’s prior felony

conviction, the grand jury charged him with being a felon in possession of a

firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). At

trial, however, Mr. Livesay argued and succeeded in showing that he was not

guilty by reason of insanity. 

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In response to the jury’s verdict, the district court ordered an evaluation of

Mr. Livesay’s mental condition. After receiving that evaluation, the court held a

hearing at which it heard testimony from the evaluating psychiatrist, Kwanna

Williamson. She testified that Mr. Livesay was suffering from bipolar disorder. 

While he was not currently exhibiting “active signs of mania or psychosis or

depression” because he was receiving treatment for his mental illness, Dr.

Williamson testified that, if this treatment were to end, “there is a high likelihood

that [Mr. Livesay’s] symptoms could resurface and he would potentially be

violent.” App. at 132-133. For this reason, Dr. Williamson did “not feel

comfortable” recommending unconditional release; she believed that, if Mr.

Livesay were “left to his own volition, there is a high likelihood that he might

become noncompliant” with his treatment. App. at 133-34. Indeed, Dr.

Williamson testified that Mr. Livesay needed a supervised environment.

Following this hearing, the district court held two more hearings aimed at

exploring the possibility of conditionally releasing Mr. Livesay to the Sugar

Mountain Retreat, where he had resided prior to trial. Ultimately, however, the

court seemed to reject that possibility for two reasons. First, it expressed “serious

concerns” that the Sugar Mountain facility was not capable of doing enough to

“ensure the safety of . . . the public” from Mr. Livesay’s dangerous tendencies. 

App. at 31. Second, the court suggested that, even if it wanted to conditionally

release Mr. Livesay to Sugar Mountain, it lacked statutory authority to do so

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 In fact, the district court held a number of hearings before it committed

Mr. Livesay to the custody of the Attorney General, and Mr. Livesay does not

challenge the timeliness of any of these.

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because “the defendant ha[d] failed to meet 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 of property of another due to a present

mental disease or defect,’” as required by 18 U.S.C. § 4243(d). App. at 31-32. In

the end, and apparently for both these reasons, the district court ordered Mr.

Livesay committed to the custody of the Attorney General. App. at 32. It is this

disposition that Mr. Livesay seeks to undo before us.

* * *

 We begin with what isn’t in dispute, which in this appeal turns out to be

quite a lot. Mr. Livesay does not dispute that, after his acquittal, the district court

was statutorily obliged under 18 U.S.C. § 4243(b) to order a psychiatric evaluation

of his mental condition. He does not dispute that the district court then had to hold

a hearing within 40 days of his acquittal to assess that evaluation and consider the

suitability of his release. 18 U.S.C. § 4343(c).1

 Mr. Livesay agrees that, at such a

hearing, 18 U.S.C. § 4243(d) placed upon him the 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 of property of another due to a present

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 This burden applies to those acquitted of offenses “involving bodily

injury to, or serious damage to the property of, another person, or involving a

substantial risk of such injury or damage,” while a lighter (preponderance of the

evidence) burden pertains to those acquitted of “any other offense.” 18 U.S.C. 

§ 4243(d).

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mental disease or defect.”2 Mr. Livesay concedes that he failed to carry this

burden. And Mr. Livesay raises no constitutional challenge to any aspect of

Congress’s statutory regime.

So, what exactly remains for us to decide? Mr. Livesay argues that, though

he wasn’t a suitable candidate for unconditional release, the district court should

have ordered his release subject to the condition that he return to the residential

treatment program at Sugar Mountain, or to some similar program. We cannot

agree. As we read the law, the district court was correct when it concluded that it

was not statutorily authorized to afford Mr. Livesay a conditional release, even if it

wished to do so.

That this is so is suggested, in the first instance, by the plain language of 18

U.S.C. § 4243(e). Subsection (e) provides that if the court “fails to find” that the

insanity acquittee met the burden of proving that his release would not pose a

substantial risk to others, the “court shall commit the person to the custody of the

Attorney General.” (emphasis added). This language appears mandatory, not

permissive, in its direction to the district court. See Lexecon Inc. v. Milberg Weiss

Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998) (“[T]he mandatory ‘shall’ . . .

normally creates an obligation impervious to judicial discretion.”). So it seems the

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court had but two statutorily authorized options to choose from: either

unconditionally release Mr. Livesay or commit him to the Attorney General’s care. 

See United States v. Baker, 155 F.3d 392, 395 (4th Cir. 1998) (holding that

§ 4243(e) “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

[under § 4243(d)]”); United States v. Stewart, 452 F.3d 266, 270 n.5 (3d Cir. 2006)

(same). Conditional release, to Sugar Mountain or otherwise, wasn’t an option.

Confirming this reading of the statute is the fact that elsewhere in the statute

Congress demonstrated its awareness, and concern with the possibility, of

conditional release. In the very next subsection, subsection (f), Congress provided

that “[w]hen the director of the facility in which an acquitted person is hospitalized

pursuant to [§ 4243(e)] determines that the . . . [person’s] conditional release . . .

would no longer create a substantial risk of bodily injury to another person or

serious damage to property of another,” the director must alert the district court

that ordered the commitment. 18 U.S.C. § 4243(f). A hearing may then be held

and conditions for release may be embodied in a judicial order. Id. Subsection

(e)(2) likewise discusses the possibility of a “conditional release under a prescribed

regimen” after the insanity acquittee has been committed to the Attorney General’s

custody. 18 U.S.C. § 4243(e)(2); see also Baker, 155 F.3d at 395 n.*. The fact

that Congress expressly contemplated the possibility of post-commitment

conditional release in subsections (e)(2) and (f) is strong evidence that its failure to

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provide a mechanism for pre-commitment conditional release in an adjacent

subsection wasn’t accidental, but deliberate. As the Supreme Court has explained,

“where 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.” Keene Corp. v. United States,

508 U.S. 200, 208 (1993) (internal quotations omitted).

Neither is the existence of a post-commitment conditional release mechanism

and the absence of a corresponding pre-commitment conditional release mechanism

insensible or absurd. It is understandable why Congress might have wished to

allow for conditional release only after an insanity acquittee has been committed to

custody under § 4243(e). When a district court holds its § 4243(c) hearing to

consider whether to release or commit an insanity acquittee, it must do so within 40

days after acquittal and thus the court has relatively limited information about the

acquittee’s mental state. By contrast, once an acquittee has been committed to the

custody of the Attorney General pursuant to § 4243(e), the director of the treatment

facility will have “the benefit of far more extensive observation and evaluation of

the [acquittee’s] mental state,” and, accordingly, should be in a significantly better

position to assess whether and what conditions might permit the acquittee’s safe

release. Baker, 155 F.3d at 396. 

It is notable, too, that as part of its comprehensive statutory regime,

Congress has provided mechanisms to ensure judicial review of the treatment

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facility director’s evaluations and to provide insanity acquittees with regular

opportunities to challenge their continued commitment. Not only may a treatment

facility director recommend the insanity acquittee’s release at any time to the

district court, he must also provide periodic reports to the court regarding the

acquittee’s mental condition and in those reports provide recommendations on

whether or not commitment remains necessary. See 18 U.S.C. § 4247(e)(1)(B). 

Meanwhile, regardless whether the treatment facility director recommends release,

counsel for the acquittee or his legal guardian may petition the court for his

discharge at routine intervals. Id § 4247(h). If the court holds a hearing on the

petition, Congress has indicated that the insanity acquittee has a right to counsel

and must be given the opportunity to testify, to present evidence, and to confront

and cross-examine witnesses at the hearing. Id § 4247(d). In addition to all this,

Congress has stressed that nothing in § 4243 precludes a committed insanity

acquittee from establishing the illegality of his detention by writ of habeas corpus. 

18 U.S.C. § 4247(g).

Simply put, the district court did not err in declining to order a precommitment conditional release following Mr. Livesay’s § 4243(c) hearing. Under

the comprehensive statutory regime Congress has prescribed for the treatment of

insanity acquittees, that wasn’t an option. At that time, the district court could only

release Mr. Livesay unconditionally or commit him. Because Mr. Livesay

concedes that he failed to qualify for unconditional release, it follows that the

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district court’s commitment order was not only lawful but unavoidable. Of course,

none of this is to say Mr. Livesay can never receive a conditional release. Far from

it. It is to say only that conditional release is a post-commitment, not precommitment, possibility under the statute Congress has drawn.

Mr. Livesay raises a separate but related argument that he was excluded from

hearings conducted by the district court on April 3 and 4 and May 13 and 14, 2009,

in contravention of his constitutional due process rights. But even a criminal

defendant’s right to be present doesn’t extend as far as situations where his

“presence would be useless, or the benefit but a shadow,” Kentucky v. Stincer, 482

U.S. 730, 745 (1987) (quotation marks omitted), and that is precisely what Mr.

Livesay’s presence at these hearings would have been. Mr. Livesay acknowledges

that the April hearings concerned only logistical (e.g., scheduling) issues, and he

does not indicate any purpose his presence could have served. Mr. Livesay further

acknowledges that the district court’s May hearings were focused only on the

possibility of ordering his pre-commitment conditional release to Sugar Mountain

Retreat or elsewhere. Yet, as the district court itself ultimately seemed to

conclude, and we now affirm, the district court at no point possessed the statutory

authority to afford Mr. Livesay a pre-commitment conditional release. Nothing in

Mr. Livesay’s presence at the May hearings could have changed this implacable

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 Because we affirm the district court’s judgment, Mr. Livesay’s separate

request that any proceedings we might order on remand take place before a

different district judge is moot. 

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statutory fact. As a matter of law, then, his attendance could have benefitted him

no more than “but a shadow.”3

* * *

The district court’s judgment is 

Affirmed.

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