FINDINGS OF FACT, CONCLUSIONS OF LAW, OPINION AND ORDER GRANTING AMENDED PEITITION TO REVOKE CONDITIONAL RELEASE AND DENYING § 4246(d) DETENTION
ROBERTO A. LANGE, District Judge.
This Court has conducted a number of hearings in this case, including an evidentiary hearing on April 8, 2013, and a hearing on April 30, 2013, on the Government's request that Defendant Thomas M. White a/k/a Tommy White ("White") be detained under 18 U.S.C. § 4246. Section 4246 provides:
If, after the hearing, the court finds by clear and convincing evidence that 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, the court shall commit the person to the custody of the Attorney General.
18 U.S.C. § 4246(d). This Court has pending before it as well a Motion for Revocation of Conditional Discharge under 18 U.S.C. § 4246(f), Doc. 54, and an Amended Petition to Revoke Conditional Release, Doc. 56.
White's case is a difficult one for application of § 4246. White's "mental disease or defect" puts him at increased risk of behaving unlawfully. For the reasons explained below, the Government has not met its burden "by clear and convincing evidence" to show that White's release under conditions previously recommended by a health panel "would create a substantial risk of bodily injury to another person or serious damage to property of another, " and thus will not detain White under § 4246(d). However, the Government has met its burden to prove that conditional release under the terms this Court previously set should be revoked. In anticipation of further proceedings in this case and to provide a full explanation of this decision, this Court sets forth its decision through Findings of Fact, Conclusions of Law, Opinion and Order.
II. Findings of Fact
White was indicted on January 12, 2010, on a charge of robbery. Doc. 1. The indictment charged White as follows:
On or about the 15th day of December, 2009, in Todd County, in Indian country, in the District of South Dakota, Thomas M. White, a/k/a Tommy White, an Indian, did by force, violence and by intimidation, take and attempt to take from the person and presence of Joshua First, a thing of value, that is, cash money, in violation of 18 U.S.C. §§ 1153 and 2111.
At the evidentiary hearing recently conducted, the Government put on evidence concerning White's behavior on December 15, 2009. At around 12:45 p.m., on December 15, 2009, Sergeant Edwin Young of the Rosebud Sioux Tribe Police Department was on patrol in St. Francis, Todd County, South Dakota. Sergeant Young saw a young man dressed in blue with a dark blue bandana around his neck. Sergeant Young later determined this individual to be White. Sergeant Young saw White throw up his arms at a van and then toward Sergeant Young's patrol car. White then kneeled down behind some bushes, after which he approached the patrol car and asked Sergeant Young if he had a problem. White then began yelling about the police being corrupt and needing to be shut down. White's rant included profanities and concluded with a statement as White was walking away that the police needed to die. Sergeant Young lost sight of White and did not seek to arrest White for any of that behavior.
About half an hour later, at 1:19 p.m., on December 15, 2009, Sergeant Young was dispatched to the St. Francis Mission on a report of a male having pulled a gun at the Mission. The description of the male suspect matched that of White. Sergeant Young began looking for White, found White in an alley within walking distance of the St. Francis Mission, encountered White, told White to stop, drew his service revolver as White refused to stop, and instructed White to get down. White instead took off running through yards, and then north on the street where Sergeant Young had previously encountered White. White then fled into the canyon area outside of St. Francis. Sergeant Young pursued White and eventually saw White at a distance coming out of the canyon area. Sergeant Young and another officer who had been called as backup ultimately located White at a home, and the other officer arrested White.
The incident on December 15, 2009, at the St. Francis Mission was captured on videotape. On that day, Joshua First was working as a janitor at the St. Francis Mission. First saw White peek into the building and then knock on the door. First opened the door and came partially out of the doorway to talk to White. White was somewhat agitated, walking back and forth as he talked with First. White initially asked First for money, and First responded that he did not have any money. White then asked for First's cell phone, and First responded that White could use the cell phone at the administration building. White then raised his right hand with a handgun in his hand and pointed the gun at First's head. The videotape shows White doing this on two quick occasions and leaving. First recalls the gun clicking once when White initially raised it to First's head. First recalls White pulling the trigger twice and the gun clicking twice when White raised the gun to First's head a second time. White then walked away, and First observed White knocking on a door and trying to get into a couple of trailer homes nearby. First called his supervisor and then 911 to report the incident. First did not find White to be threatening until White, without warning, put the apparently unloaded gun up to First's head and pulled the trigger.
After White was indicted in January of 2010, White's attorney filed a Motion for Competency Hearing, Doc. 30, representing that White had been evaluated by Dr. Stephen Manlove of Manlove Psychiatric Group and that Dr. Manlove found White to be suffering from a mental disease or defect rendering him incompetent to the extent that White was unable to understand the nature and consequences of the proceeding against him and unable to assist properly in the defense. The Government then filed a Motion for Court Ordered Psychiatric Exam. Doc. 31. This Court granted the Government's motion and directed that White be committed to the custody of the Attorney General for placement in a suitable facility for a period not to exceed 45 days for the purpose of conducting psychiatric or psychological examinations to determine whether White presently suffered from a mental disease or defect rendering him mentally incompetent to the extent that he was unable to understand the nature and consequences of the proceeding against him or properly assist in the defense and further to evaluate whether White was insane at the time of the offense charged. Doc. 32.
After granting several requested extensions, this Court received a competency evaluation done at the behest of the Attorney General. On August 30, 2010, this Court conducted a hearing on White's Motion for Competency Hearing after which this Court ruled:
The Court has considered two separate competency evaluations, one at Defendant's behest and one done by the Government. Pursuant to 18 U.S.C. § 4241(d), the Court finds by a preponderance of the evidence that Defendant is presently suffering from a mental defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. Both competency evaluations reached this same conclusion due to Defendant's schizophrenia. Therefore, it is
ORDERED that Defendant is committed to the custody of the Attorney General, who shall hospitalize Defendant for treatment in a suitable facility for up to four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward. It is further
ORDERED that the parties notify the Court whether Defendant becomes competent to stand trial within those four months or, if not, another hearing be set regarding Defendant's competence within those four months. It is further
ORDERED that Defendant's Motion For Competency Hearing (Doc. 30) is granted to the extent set forth in this order and that Defendant may file a second Motion for Competency Hearing when he next wants the court to consider the issue. It is finally
ORDERED that Defendant's trial set for September 7, 2010, is continued until further order of this Court.
White ultimately underwent treatment and study at the United States Medical Center for Federal Prisoners in Springfield, Missouri, as a part of an effort to determine if White's competency could be restored and if he could become competent to stand trial. Psychologist Christina A. Pietz issued a report finding that White was not presently competent to stand trial and that the conditions from which White suffered-a cognitive disorder and borderline intellectual functioning-were unlikely to improve in the future. Doc. 48. The Government had filed a Motion for Determination of Mental Competency to Stand Trial, Doc. 45, and this Court held a hearing on that motion on April 5, 2011. At the hearing, the Government's counsel and White's counsel agreed with the findings of Ms. Pietz. This Court thus determined that White suffered from a mental disease or defect rendering him mentally incompetent to the extent that he was unable to understand the nature and consequences of the proceedings against him and incapable of assisting properly in his defense. Doc. 48. This Court also determined that White's mental condition had not so improved as to permit the trial to proceed and further that there was no probability that White would regain competence to stand trial in the foreseeable future. Doc. 48. This Court then committed White for a period not to exceed 45 days to the United States Medical Center for Federal Prisoners in Springfield, Missouri, for further study regarding his dangerousness. Specifically, this Court
ORDERED that if the director of the facility where Defendant is hospitalized certifies that Defendant suffers from a mental disease or defect as a result of which his release would create substantial risk of bodily injury to another person or serious damage to property of another and that suitable arrangements for state custody and care are not available, that certificate shall be filed both in the district where Defendant is hospitalized and in the District of South Dakota. It is finally
ORDERED that upon completion of this period, unless otherwise ordered by the Court, Defendant is to be returned to this Court, either for disposition of the charges pending herein or for the determination, pursuant to 18 U.S.C. § 4246(d), of whether Defendant ...