from the United States District Court for the Southern
District of Texas
SMITH, WIENER, and ELROD, Circuit Judges.
E. SMITH, Circuit Judge:
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
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
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.
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.
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.
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.
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.
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
other circuits have uniformly concluded, a district
court's ruling under § 4241(d) is reviewable as a
collateral order. 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.
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.
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." Because "commitment for any purpose
constitutes a ...