104 F.

3d 359

NOTICE: Fourth Circuit Local Rule 36(c) states that citation

of unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Petitioner-Appellee,
v.
Alex ANDERSON, Respondent-Appellant.
No. 95-7775.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 30, 1996.
Decided Dec. 23, 1996.

ARGUED: George Alan DuBois, Assistant Federal Public Defender,

Raleigh, North Carolina, for Appellant. Fenita Talore Morris, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: Janice McKenzie Cole, United States Attorney,
Barbara D. Kocher, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
OPINION
PER CURIAM:

Appellant, Alex Anderson, was convicted of mailing threatening

communications to a female television newscaster, and was sentenced to three
years in prison. Shortly before Anderson's scheduled release date, the
government moved to commit Anderson to the custody of the Attorney
General, pursuant to 18 U.S.C. 4246 (1985) on the ground that Anderson was
suffering from a mental illness, and his release would pose a danger to others.
The district court granted the government's motion and committed Anderson
pursuant to 4246.

About a year and a half later, Anderson filed a motion, pursuant to 18 U.S.C.
4247(h) to determine whether Anderson still met the criteria for commitment
under 4246. Again, the district court concluded that Anderson should still be
confined pursuant to 4246. Anderson now appeals.

I.
FACTS AND PROCEDURAL HISTORY
3

While serving his sentence on an assault conviction, 1 Anderson began mailing

threatening letters to a female television newscaster, Cora-Ann Mihalik. On
August 18, 1992, Anderson pled guilty to mailing threatening communications
to Ms. Mihalik, and was sentenced to three years in federal custody.2 After his
guilty plea, and sentencing, Anderson was admitted to the Mental Health
Division of the Federal Correctional Institution for service of his sentence,
which would expire on September 2, 1993. On August 25, 1993, Anderson's
prospective probation officer contacted the doctors at FCI-Butner and informed
them that Anderson had sent Ms. Mihalik two greeting cards in May, 1993.

Although Dr. Thomas Owens, Anderson's primary physician, initially

concluded that Anderson's release would not pose a danger to others or the
property of others, after being informed that Anderson had contacted Ms.
Mihalik, in direct contravention of the court's order prohibiting any contact, Dr.
Owens reconsidered his opinion, and ultimately concluded that Anderson
should not be released. Thereafter, the authorities at FCI-Butner initiated
proceedings, pursuant to 18 U.S.C. 4246 to have Anderson committed to the
custody of the Attorney General.

On October 4, 1993, the district court held a hearing, pursuant to 18 U.S.C.

4247(d) to determine whether Anderson was suffering presently from a mental
disease or defect as a result of which his release would create a substantial risk
of bodily injury to another person or serious damage to the property of another.
Based on the evidence presented at the hearing, the district court found by clear
and convincing evidence that Anderson's release would create a substantial risk
of danger to others. Accordingly, the district court committed Anderson to the
custody of the Attorney General, pursuant to 4246.3 About two years later,
Anderson's doctors concluded that Anderson's condition had improved to the
point that Anderson could be conditionally released from FCI-Butner. A
conditional release plan was formulated and finalized for the district court's
approval. The conditional release plan provided that Anderson was to undergo
continuous psychiatric treatment, continue to take his medication, live with his
mother in Indiana, maintain active participation in a regimen of outpatient

mental health care, report to his probation officer, and additional standard
provisions contained in conditional releases. At the same time, Anderson filed a
motion, pursuant to 18 U.S.C. 4247(h), for a hearing to determine whether
Anderson still met the criteria for commitment under 4246.4
6

Anderson's release plans were foiled, however, when a security representative

from the Cable News Network (CNN) contacted the authorities at FCI-Butner
and told them that Anderson had written two letters to one of its female
newscasters, whom Anderson had never met.5 As a result, the doctors at FCIButner withdrew the condi tional release plan. Moreover, the Probation Office
of Indiana rejected FCI-Butner's request that Anderson be placed with his
mother.6 Thus, conditional release to the State of Indiana was not possible.

On June 26, 1995, a hearing was held before United States Magistrate Judge
Alexander B. Denson. At the hearing, Dr. Jim Mann, a psychologist at FCIButner testified that in his opinion Anderson:

8
remains
dangerous due to a mental disease or defect to others or property in that he
needs around the clock supervision to prevent his potential acting out his delusions
about having a special relationship with TV personalities. He's shown the tendency
to act on bad judgment in the past and we're concerned he may act on those
delusions and bad judgment in the future.
9

On cross-examination, Dr. Mann acknowledged that a conditional release plan

had been formulated for Anderson, and that the release plan was withdrawn
after CNN contacted the authorities at FCI-Butner.7 Anderson testified on his
own behalf. Anderson denied the presence of any mental illness; stated that he
would continue to take his medication after release; and that he intended to live
with his mother and work as an electrician. Anderson also relayed to the court
his belief in mental telepathy.

10

On June 28, 1995, the magistrate judge found that Anderson was mentally ill
and dangerous, and recommended continued placement pursuant to 18 U.S.C.
4246. Anderson filed timely objections to the magistrate's report. On October
16, 1995, the district court held another hearing to consider Anderson's motion.
Again, Dr. Mann testified for the government. Dr. Mann testified that
Anderson's condition had deteriorated since the June, 1995 hearing; and
Anderson had discontinued taking anti-psychotic medication. Dr. Mann
reiterated his belief that Anderson suffered from a mental illness, and that his
release would pose a danger to others.

11

During cross-examination, Anderson sought to challenge Dr. Mann's conclusion

11

During cross-examination, Anderson sought to challenge Dr. Mann's conclusion

that Anderson was mentally ill by demonstrating that he [Anderson] could act
in a rational manner. Anderson also questioned Dr. Mann about his conclusion
that Anderson's belief in telepathy was delusional.8 On cross-examination by
Anderson's appointed counsel, Dr. Mann admitted that Anderson had not been
involved in any physical altercations during his stay at FCI-Butner, and also
that Anderson's physicians had yet to find a suitable medication or dosage to
treat Anderson's condition.

12

At the conclusion of the hearing, the district court found by clear and
convincing evidence that Anderson did suffer from a mental disease or defect,
as a result of which his release would create a substantial risk of bodily injury to
another person or serious damage to the property of another. District Court
Order, October 17, 1995, at 1 ("Order"). Accordingly, the district court ordered
that Anderson remain in the custody of the Attorney General pursuant to the
provisions of 18 U.S.C. 4246. The instant appeal followed.

II.
DISCUSSION
13

The instant appeal focuses on 18 U.S.C. 4246. That statute provides, in

relevant part:

14the director of a facility in which a person is hospitalized certifies that a person

If
whose sentence is about to expire, or who has been committed to the custody of the
Attorney General pursuant to section 4241(d), or against whom criminal charges
have been dismissed solely for reasons related to the mental condition of the person,
is presently suffering from a mental disease or defect as a result of which his release
would create a substantial risk of bodily injury to another person or serious damage
to property of another, and that suitable arrangements for state custody and care of
the person are not available, he shall transmit the certificate to the clerk of the court
for the district in which the person is confined.... The court shall order a hearing to
determine whether the person is presently suffering from a mental disease or defect
as a result of which his release would create a substantial risk of bodily injury to
another person or serious damage to property of another.
15

18 U.S.C. 4246(a).

16 after the hearing, the court finds by clear and convincing evidence that the person
If,
is presently suffering from a mental disease or defect as a result of which his release
would create a substantial risk of bodily injury to another person or serious damage
to the property of another, the court shall commit the person to the custody of the

Attorney General.
17

18 U.S.C. 4246(d).

18

Initially, Anderson was committed under 4246(d) in October, 1993.

Thereafter, Anderson filed a motion to determine his present mental condition,
pursuant to 18 U.S.C. 4247(h).9 Pursuant to 18 U.S.C. 4246(e), which
provides for a hearing upon motion for discharge, if the court finds by a
preponderance of the evidence that the person has recovered from his mental
disease or defect to such extent that his release would no longer create a
substantial risk, he must be discharged.10
A. Standard of Review

19

The district court's determination that Anderson continues to suffer from a

mental illness or defect and his release would create a substantial risk will not
be overturned on appeal unless that finding is clearly erroneous. See United
States v. Steil, 916 F.2d 485 (8th Cir.1990) (district court's finding of
dangerousness under 4246 is reviewed under the clearly erroneous standard).
B. Parties' Arguments

20

The parties agree that Anderson suffers from a mental illness. The parties'
positions diverge, however, with respect to the second prong of the 4246 test,
namely whether Anderson has recovered from his mental illness to such an
extent that Anderson's release would not create a substantial risk of harm to
others or the property of others. See 18 U.S.C. 4246(e).

21

Anderson argues that the evidence does not support the district court's finding
that Anderson's release would pose a substantial risk of harm to others.
Specifically, Anderson contends that no evidence has been offered that
Anderson engaged in any serious violent or assaultive behavior while
committed at FCI-Butner. In fact, while at FCI-Butner, Anderson has compiled
a stellar work record as an electrician, and has furthered his education.
Anderson maintains that he has also been generally compliant with his regimen
of psychiatric treatment prescribed for him.

22

Moreover, Anderson maintains that he will be placed on supervised release for

three years, and can be required to undergo any mental health treatment as a
condition of his supervised release. Anderson also notes that in May, 1995,

Anderson's doctors concluded that his condition had improved to the point
where he could be released, and as such, a formal plan for his conditional
release was completed. While conceding that the conditional plan was revoked
after Anderson's improper contacts with a CNN newscaster were revealed,
Anderson claims that the revocation of the conditional release plan was unfair
and ill-considered.
23

Specifically, Anderson claims that, according to progress notes, Anderson's

primary physician, Dr. Owens, was aware at the time that Dr. Owens concluded
that Anderson could be conditionally released, that Anderson had contacted a
CNN newscaster. Since the decision to withdraw the conditional release plan
was made only after CNN contacted the authorities at FCI-Butner, Anderson
suggests that the decision to withdraw the plan may have been due to the
"added pressure brought to bear on the doctors as a result of the official contact
by the CNN representative."

24

Furthermore, while conceding that the two letters sent by Anderson to the CNN
newscaster were "inappropriate and would undoubtedly be unnerving to the
recipient," Anderson maintains that the letters were in no way threatening or
violent. As such, the two letters do not demonstrate that Anderson is dangerous.
In addition, Anderson contends that while the delusional component of
Anderson's mental illness will likely never be eradicated, Anderson's
continuing delusions does not mean that Anderson's mental illness can not be
managed, and that Anderson is a danger to others. Thus, Anderson maintains
that given his improved mental status, the lack of any violence associated with
his mental illness, and the close supervision Anderson will undergo during his
three years of supervised release, under these circumstances, the district court's
finding that Anderson's release would pose a substantial risk of harm is clearly
erroneous.

25

In contrast, the government maintains that no evidence has been presented by

Anderson to demonstrate that Anderson has recovered to any extent from his
mental illness which generated his commitment under 4246. As a corollary to
that matter, nor has any evidence been offered to show that Anderson's release
would not pose a substantial risk of harm to others. The government notes that
Anderson continues to have obsessive relationships with television personnel he
has never met, corresponding with them and expressing bizarre beliefs about
his relationships with them. In addition, the government argues that Anderson
has been engaged in verbally threatening and intimidating behavior toward staff
and inmates at FCI-Butner. According to the government, prior the June, 1995
meeting held before the magistrate judge, Anderson had been placed in
seclusion four times, three of which were for hostility, belligerence, or verbal

altercation.11
26

Furthermore, the government argues that the district court required the
government to show, by clear and convincing evidence, rather than by a
preponderance of the evidence, that Anderson had not recovered from his
mental illness and continued confinement was required.12 Here, the government
maintains that evidence was intro duced before the district court which
demonstrated that Anderson continues to have a fixation with female
newscasters, including his correspondence with them despite the maximum
control of the prison setting and direct admonitions not to do so, as well as the
verbal and abusive behavior of Anderson toward staff and other inmates.

27

Moreover, the government argues that the fact that Anderson has not acted
upon any of his delusions is not persuasive because he has been incarcerated,
and has not had an opportunity to act upon his delusions. In support of its
position, the government notes that Anderson physically threatened and stalked
the last known victim prior to his incarceration. The government contends that
"the evidence indicates [Anderson] would pick up, albeit with a different victim
perhaps, right where he left off."

28

Since the standard of review if anything favored Anderson too much, the
district court's decision is more than adequately supported by the record.
Section 4246(e) requires the district court to: (1) find by a preponderance of the
evidence that Anderson has recovered from his mental disease or defect to the
such an extent that, and (2) that Anderson's release or conditional release would
no longer create a substantial risk of bodily injury to another person or serious
damage to property.

29

As for the first prong, Anderson's "evidence" is unpersuasive. Anderson's

argument is that while he still suffers from a mental illness, he does not pose a
danger. Anderson contends that his doctors have not been able to find the right
medication or dosage to address his condition, and in essence, he is not to blame
for his continued mental illness.

30

While that may be true, the fact remains that the mental illness persists and
Anderson was convicted for mailing threatening communications to female
newscasters. Anderson was instructed not to have any contact with female
newscasters. Despite the prohibition on contact with female newscasters,
Anderson has on two separate occasions, once in May, 1993, and again,
sometime in 1995 prior to the hearing held by the magistrate judge, contacted
female newscasters. Moreover, Anderson continues to believe he has telepathic

powers permitting communication with female newscasters, and his letter to

Debra at CNN conclusively demonstrates the nature of his delusions.
31

None of the evidence offered by Anderson demonstrates that Anderson has

recovered to such an extent that Anderson's release would no longer create a
substantial risk of bodily injury to others or property. In fact, the evidence
weighs heavily in favor of the opposite conclusion. Anderson's conduct with
respect to a female newscaster in New York landed him in jail, and the district
court found correctly that Anderson's continued engagement in the very
conduct that resulted in his arrest and conviction would pose a danger to others
if Anderson were released.

32

As for Anderson's evidence on the second prong, again, the evidence is

unpersuasive. In fact, Anderson's own doctors do not support his release, nor
was the Probation Office of Indiana willing to support Anderson's release.
Accordingly, the judgment should be

33

AFFIRMED.

The assault conviction stems from Anderson's striking of a man in the head and
face with a steel pipe, breaking the victim's front teeth

By way of background, after being charged with mailing threatening

communications, Anderson underwent a competency and criminal
responsibility evaluation at USMCFP-Springfield, Missouri, where he was
diagnosed with paranoid schizophrenia. After treatment with antipsychotic
medications he was found competent and first entered a guilty plea on January
31, 1991. Thereafter, while Anderson awaited sentencing, he stopped taking his
medication and experienced a decompensation in his chronic illness. As a
result, on July 22, 1991, he was admitted to the Mental Health Division of FCIButner, North Carolina for competency restoration, assessment of competence
to enter a plea and competence to be sentenced. Following a period of
hospitalization, treatment, and stabilization he was determined competent and
entered a guilty plea on August 18, 1992, and was subsequently sentenced

Anderson appealed the district court's order, and on January 4, 1995, the Fourth
Circuit affirmed the district court. United States v. Anderson, No. 93-7218 (4th
Cir. Jan. 4, 1995)

If Anderson persuaded the district court that confinement under 4246 was no
longer appropriate, Anderson would be unconditionally discharged from his
4246 confinement, and would begin serving his supervised release term for the
underlying offense, as opposed to a conditional release

One of these letters provides:

Dear Debra. I hope this letter compels you to act in a responsible way. I have
not--I did not get out of prison on my scheduled release date and as you are
already aware, September 2, 1993, cannot return to New York when I have a
place--when I have no place to stay. Because I have served all of my time, 46
months, I can be released any time after the Court reviews my conditional
release plan. The woman counsellor here is responsible for clarifying your
address and this is done normally by a telephone connection. She will have a
few questions to interpose, such as do you have any prior convictions. I will be
in the office when the--I'll be there when the matter's called. This will be in the
evening but that I can--but I am confident you can handle this. Understand there
are no alternatives, this is it. I can only come back to New York providing that
the District Court approves my residential plan. Don't be [expletive] afraid to
write me that I can answer any questions or any additional questions. Alex. P.S.
The plan is that I will be living with you.

The Probation Officer reasoned that:

Considering all the information that has been provided to our office concerning
[Anderson's] prior criminal history and mental health condition, it is felt that
supervision can not be provided to insure the safety of this community and
[Anderson]. His mother informed this officer that she has not seen her son in
over ten years and the last time he lived with her was in 1983 for approximately
one week after his release from a state correctional institution. She further
indicated that she has never been responsible, nor provided care for any one
with [Anderson's] mental condition. However, she felt that her religious beliefs
would provide her the necessary guidance in providing for him.

Anderson also claims that Dr. Mann admitted that Anderson's primary
physician, Dr. Owens, was aware prior to the decision to conditionally release
Anderson, that Anderson had been in contact with a CNN newscaster

Anderson suffers from a firmly entrenched delusional system which includes

the belief that he possesses telepathic powers which allow him to have
relationships with certain individuals who appear on television

Section 4247(h) provides:

Regardless of whether the director of the facility in which a person is

hospitalized has filed a certificate ... counsel for the person may, at any time
during such person's hospitalization, file with the court that ordered the
commitment a motion for a hearing to determine whether the person should be
discharged from such facility....
10

The court may also order that the person be conditionally discharged under a
prescribed regimen of medical, psychiatric, or psychological care or treatment
that has been prepared for him, and order as an explicit condition of release that
the person must comply with the prescribed regimen. See 18 U.S.C. 4246(e)
(2)(A) and (B)

11

Dr. Mann testified at the June, 1995 hearing that:

[Anderson] has shown a marked disregard for others. His anger has escalated in
several occasions in which he was verbally abusive to other staff and inmates ...
He has also been observed with his psychotic symptoms coming back into play.
He was diagnosed as a paranoid schizophrenic with ideals of rage regarding a
delusion of telepathic powers. In other words, he believes that he can
communicate to newscasters, female newscasters, on the t.v., that he can hold a
communication with them, receive messages from them directly on the t.v., and
then he will write them letters and correspond with them. And in the past that
has led to at least one or two romantic relationships in his mind between the
female newscasters. He has been observed talking to the t.v., holding a
conversation with the t.v., by unit officers and other staff. And we're concerned
that he's going back into that mode again ... his delusions continue to be very
fixed and rigid, and unchanged.

12

The government's argument is persuasive. The statute places the burden on the
petitioner to demonstrate by a "preponderance of the evidence that [he/she] has
recovered from his[/her] mental disease or defect to such an extent ...," not on
the government to demonstrate the recovery by clear and convincing evidence.
Initially, to commit a person, pursuant to 4246(d), the government must show
by clear and convincing evidence that the person is presently suffering from a
mental disease or defect of which his release would create a substantial risk of
injury to others or property. In October, 1993, the government satisfied the
burden, and Anderson was committed
Section 4246(e) provides the mechanism by which a person who has been
committed previously, pursuant to 4246(d), may regain his/her liberty. As
such, under 4246(e), the petitioner's standard to show recovery is the lesser
standard, preponderance of the evidence. Here, the district court found by clear
and convincing evidence that Anderson continues to suffer from a mental

disease or defect and that his release would pose a substantial risk to others.
Order, at 1.
Apparently, the district court treated the 4246(e) hearing, as a 4246(d)
hearing, and again, required the government to show by clear and convincing
evidence that Anderson is presently suffering from a mental disease or defect,
as provided in 4246(d). Since the district court was acting not on the original
commitment, but upon Anderson's motion for discharge, under 4246(e), the
district court's inquiry should have been whether the district court could find by
a preponderance of the evidence that Anderson has recovered from his mental
disease or defect to such extent that his release would no longer pose a
substantial risk to others. In any event, the error, if any such error exists is
harmless.