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United States v. McKown

United States Court of Appeals, Fifth Circuit

July 22, 2019

GREGORY ALAN MCKOWN, Defendant-Appellant.

          Appeal from the United States District Court for the Southern District of Texas

          Before SMITH, WIENER, and ELROD, Circuit Judges.

          JERRY E. SMITH, Circuit Judge:

         Gregory McKown was charged with threatening to assault and murder two federal employees. Under 18 U.S.C. § 4241(d), the district court found that he lacked capacity to stand trial and ordered his temporary hospitalization to determine whether he might regain competency in the foreseeable future. We join the unanimous chorus of circuit courts in holding that such mandatory, limited confinement accords with due process.


         McKown has suffered from grandiose and persecutory delusional disorder for over thirty-eight years. In 2017, he sought to collect retroactive Supplemental Security Income benefits. When the request was denied, he sent two emails and left fourteen voicemails for certain Social Security Administration employees, threatening in graphic terms to harm them and their families. McKown was arrested and indicted on two counts of threatening to assault and murder United States officials with the intent to retaliate against them on account of the performance of their official duties. See id. § 115(a)(1)(B), (b)(4). After promising to obtain psychiatric treatment, McKown was released on an unsecured bond.

         McKown retained forensic psychiatrist Victor Scarano to conduct a mental health examination. The evaluation included a three-hour interview with McKown; a telephone conversation with his older sister; and a record review of his statements in this case, as well as in a YouTube video and various online publications. At the government's request, the district court appointed psychologist Gerald Harris to perform an independent evaluation. Harris similarly examined McKown for three hours, interviewed one of his close friends, and consulted the relevant records.

         The court scheduled a competency hearing to review the expert witness reports. Both doctors testified that McKown lacked competency to stand trial because "he [wa]s unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." See id. § 4241(a). They also agreed that it was unnecessary to hospitalize McKown to reach an accurate prognosis. They disagreed, however, as to the recommended course of treatment and the likelihood that McKown might regain competency in the foreseeable future. Although his condition was "very severe" and "extreme," Harris found a substantial probability that McKown might soon recover if placed on medication coupled with psychotherapy. Because McKown opposed taking medication, Harris suggested hospitalizing him to ensure his compliance with the treatment regimen.

         Conversely, Scarano maintained that McKown could not be restored to competency in the foreseeable future, regardless of the prescribed treatment. Though acknowledging that McKown had faithfully adhered to the conditions of his pretrial release, Scarano remarked that the court-ordered therapy was "really not treatment" but was merely "a conversation." Scarano feared that McKown would refuse to take medication voluntarily and that hospitalization would exacerbate his delusions. Accordingly, Scarano proposed that only long-term therapy had the potential to work. He predicted it could take up to five years for McKown to develop the necessary trusting relationship with a therapist to permit meaningful change.

         Federal law provides that a district court shall commit an incompetent defendant to the custody of the Attorney General to be hospitalized for "a reasonable period of time, not to exceed 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." Id. § 4241(d). McKown asserted that the statute violates due process by requiring commitment without proof that it is necessary to evaluate an individual defendant's mental health and without adequate procedural protections. He also submitted an affidavit claiming that he would voluntarily participate in outpatient treatment and take any lawfully prescribed medication.

         The district court found that McKown lacked competency to stand trial but that, with proper treatment, he likely could attain sufficient capacity in the near future. Noting that several circuit courts had already rejected constitutional challenges to § 4241(d), the court was "persuaded that this [c]ir-cuit would be of a like mind." The court thus committed McKown to the custody of the Attorney General for a maximum of four months to determine his chance of recovery. On McKown's motion, the court stayed the commitment order pending this appeal.


         As a general rule, we may resolve appeals only of "final decisions of the district courts." 28 U.S.C § 1291. In the criminal context, that "rule prohibits appellate review until conviction and imposition of sentence." Flanagan v. United States, 465 U.S. 259, 263 (1984). Under the "collateral order" doctrine, however, "a preliminary or interim decision is appealable . . . when it (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively un-reviewable on appeal from a final judgment." Sell v. United States, 539 U.S. 166, 176 (2003) (cleaned up and citation omitted).

         As other circuits have uniformly concluded, a district court's ruling under § 4241(d) is reviewable as a collateral order.[1] After all, a commitment order conclusively determines a defendant's "present right to be at liberty prior to trial." Gold, 790 F.2d at 239. Moreover, whether a defendant was denied due process is an important question that is "completely separate from . . . whether [he] is guilty or innocent of the crimes charged." Sell, 539 U.S. at 176 (citation omitted). Lastly, such an order is "effectively unreviewable on appeal from a final judgment because if [the] defendant were never tried or were tried and acquitted, there would be no appellate review." United States v. Magas-souba, 544 F.3d 387, 400 (2d Cir. 2008). Similarly, "if he were tried and convicted, no meaningful relief would be available." Id. We therefore have jurisdiction over the present appeal.


         We review de novo a challenge to a statute's constitutionality. See United States v. Petras, 879 F.3d 155, 166 (5th Cir.), cert. denied, 139 S.Ct. 373 (2018). McKown contends that the district court violated his substantive due process rights by ordering his commitment despite the doctors' testimony that it was unnecessary to determine the likelihood of recovery. He further maintains that he received no meaningful predeprivation process related to the nature, duration, and necessity of confinement.


         The government's "power to bring an accused to trial is fundamental to a scheme of ordered liberty and prerequisite to social justice and peace." Mag-assouba, 544 U.S. at 402-03 (collecting authority); see also Sell, 539 U.S. at 180. Congress may authorize the custody of persons awaiting trial, provided such commitment proceedings comport with due process. See Greenwood v. United States, 350 U.S. 366, 375 (1956). The Due Process Clause of the Fifth Amendment circumscribes federal prosecutorial power in two relevant respects. First, it proscribes "the criminal trial of an incompetent defendant." Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (citations omitted). Second, it recognizes "a substantial liberty interest in avoiding confinement in a mental hospital."[2] Because "commitment for any purpose constitutes a ...

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