Missouri Cases February 26, 2019: United States v. Garcia

Case Description

ORDER

Before the Court is Defendant's Motion for Discharge or Conditional Release. (Doc. 37). In 1992, Defendant Lorenzo Garcia was convicted of aggravated sexual abuse of a child in the United States District Court for the District of Arizona. He was sentenced to eight years of imprisonment followed by five years of supervised release. His conviction was affirmed by the Ninth Circuit Court of Appeals. See United States v . Garcia , 7 F.3d 885 (9th Cir. 1993). In 1998, while on supervised release, he violated the conditions of his release and was sentenced to an additional 60 months of imprisonment. In 2003, while imprisoned, Defendant was committed to the custody of the Attorney General under 18 U.S.C. § 4246. Since then, Plaintiff has filed annual risk assessment reports documenting Defendant's diagnoses of schizophrenia, pedophilia, alcohol use disorder, cannabis use disorder, and borderline intellectual functioning, along with a lack of insight into his mental illness and his refusal to participate in mental health treatment, including sex offender treatment. Since 2004, Defendant has been hospitalized at FMC Devens in Devens, Massachusetts. FMC Devens is a fully-accredited behavioral health care center.

Defendant petitioned the Court for an unconditional discharge or, in the alternative, for conditional release, under 18 U.S.C. § 4247(h). Under that law, Defendant must prove by a

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preponderance of the evidence that release is proper. United States v . McAllister , 225 F.3d 982, 985 (8th Cir. 2000). Defendant argues that discharge was warranted because of the chronic lack of effort by the Attorney General to seek the kind of suitable state placement envisioned under the statutory scheme. Alternatively, the Defendant argues that conditional release is appropriate because he has recovered from his mental disease to such an extent that he would no longer create a substantial risk of bodily injury to another person or serious damage to property of another. The matter was referred to the Magistrate Judge under 28 U.S.C. § 636(b). The Magistrate Judge, in his report and recommendation, recommended that Defendant's Motion be denied. (Doc. 50).

1. Unconditional Discharge

Under 18 U.S.C. § 4246, a person may be committed to the custody of the Attorney General if a Court finds by clear and convincing evidence that the person is 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. This Court made such a finding as to Defendant in 2003. (Doc. 11). The Attorney General has affirmed its basis for Defendant's civil commitment in annual reports ever since. (Docs. 17-23, 25-30, 36, 44). Once committed under § 4246, the Attorney General must release a defendant to the state of his domicile or the state where he was tried but only if that state will assume responsibility for their custody, care, and treatment. Id . Arizona is Defendant's domicile and the state where he was tried. (Doc. 1-1). To date, the Attorney General has not secured a state placement for Defendant. After all reasonable efforts to locate a state placement have failed, the Attorney General may hospitalize the person for treatment in a suitable facility until a state will assume responsibility or the person's mental condition is such that his release or conditional release would not create a substantial bodily injury to another person

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or serious damage of property to another. 18 U.S.C. § 4246(d). The Attorney General must continue to exert all reasonable efforts to secure a state placement. Id .

Defendant claimed that the Attorney General has made "little or no effort" to locate a state placement. Defendant argued that the Attorney General's refusal to fulfill its statutory obligation has been arbitrary and capricious, and that he is entitled to be released on constitutional grounds.

The Magistrate Judge rejected Defendant's arguments on this point. In his Report, he found that every year since Defendant's commitment, the Attorney General has asked Arizona to assume responsibility for Defendant. Arizona has repeatedly refused. The Magistrate Judge concluded that:

"Upon review, the above evidence shows that the BOP has met the statutory requirements regarding Defendant's placement, making his request for an unconditional discharge unwarranted and unsupported under the law.

After its own review of the entire record, the relevant law, and Defendant's exceptions, the Court agrees with and will adopt the recommendation of the Magistrate Judge. The Attorney General has continued to make all reasonable efforts to secure a state placement for Defendant, but cannot compel the state of Arizona to assume responsibility for Defendant's care. The Attorney General has met the statutory requirements for the civil commitment of Defendant under 18 U.S.C. § 4246, and Defendant's request for unconditional discharge is legally unsupported. Furthermore, Defendant has not shown by a preponderance of the evidence that release is proper.

Defendant in his Petition makes a second argument that the Attorney General is obligated to "apply for civil commitment, pursuant to State law" pursuant to 18 U.S.C. § 4247(i). However, the Magistrate Judge found that § 4247(i) contained precatory, not mandatory, language—"the Attorney General . . . may apply for the civil commitment, pursuant to State law, of a person committed to his custody pursuant to section . . . 4246 . . . " 18 U.S.C. § 4247(i)(B) (emphasis

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added). Therefore, the Attorney General's decision to not seek a civil commitment with the State of Arizona for Defendant under 18 U.S.C. § 4247 is within his discretion. After careful review, the Court agrees with and adopts the Magistrate Judge's conclusion in this matter.

II. Conditional Release

Defendant alternatively argued that he should be conditionally released. If a court, after holding a hearing, finds by a preponderance of the evidence that a person has recovered from his mental diseases or defect to such an extent that his conditional release would no longer create a substantial risk of bodily injury to another person or serious damage to the property of another, the Court shall conditionally discharge the person. 18 U.S.C. § 4246(e)(2)(A). The Magistrate Judge held such a hearing on August 27, 2018, at the behest of Defendant's counsel, (Doc. 46) and afterward concluded in his report and recommendation that

". . . because of his mental condition, Defendant continues to pose a substantial risk of bodily injury to another person or serious damage to property of another if he were to be released, and conditional release is not appropriate at this time."

He specifically pointed to Defendant's schizophrenia diagnosis, previous supervised release violations, alcohol use disorder, cannabis use disorder, borderline intellectual functioning, lack of insight into his mental illness, and refusal of treatment for his mental health disorders, particularly his pedophilia, as reasons why conditional release was not appropriate. (Doc. 50, at 2). Defendant's Risk Assessment Panels have never recommended Defendant as a candidate for conditional release. The chair of those panels since 2006, Dr. Shawn Channell, testified at the hearing that Defendant was not a suitable candidate for conditional release because of the multiple risk factors he still presents. (Doc. 49, at 49-51).

Defendant relied on the report of Dr. Robert Tittmann, M.D., to argue for Defendant's conditional release. Dr. Tittmann stated in his report that that Defendant would not create a

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substantial risk of bodily injury to another or serious damage to the property of another if he was placed in a group home with twenty-four hour supervision. (Doc. 37-1, at 12). He stated that Defendant should not be required to participate in sex offender treatment as a condition of release because it would not be "reasonable" in light of his refusal to participate in such a program for the last twenty-six years. Id . at 14. Dr. Tittmann diagnosed Defendant with schizophrenia (chronic) and borderline intellection functioning, but stated he did not believe there was sufficient evidence to diagnose Defendant with pedophilia. Id . at 10. He did, however, state that if Defendant was in fact a pedophile, he would pose a risk to children if conditionally released. Id . at 13.

The Magistrate Judge rejected the opinion of Dr. Tittmann concerning Defendant's suitability for conditional release. The Magistrate Judge concluded that Defendant's conviction of four counts of aggravated sexual abuse of a child that was affirmed on appeal by the Ninth Circuit Court of Appeals, along with the numerous reports composed by experts on the Risk Assessment Panels, was sufficient to establish Defendant as a pedophile as a matter of fact. Furthermore, the Magistrate Judge found it absurd that Dr. Tittmann would not recommend sex offender treatment as a condition of release merely because Defendant would not comply with that treatment. The Magistrate Judge concluded that based on all of Defendant's risk factors, but particularly his refusal to acknowledge and receive treatment for his pedophilia, he was not an appropriate candidate for conditional release. Defendant, in his exceptions, repeats the conclusion of Dr. Tittmann and states "the overwhelming weight of the evidence is against the conclusions of the Report and Recommendation." (Doc. 52, at 4).

After its own review of the entire record, the law, and Defendant's exceptions the Court agrees with and will adopt the recommendation of the Magistrate Judge. There is not a preponderance of evidence to support a finding that Defendant has recovered from his mental

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diseases to such an extent that, if conditionally released, he would not create a substantial of bodily injury to another person or serious damage to the property of another.

For the reasons stated above, the Court hereby ADOPTS the Report and Recommendation of the Magistrate Judge and REJECTS Defendant's Exceptions. Defendant's Motion for Discharge or Conditional Release is DENIED.

IT IS SO ORDERED.

DATED: February 26, 2019

/s/ Douglas Harpool
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE