US v. Gary Debenedetto
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:14-hc-02172-BR Copies to all parties and the district court/agency. [999642212].. [14-7665]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7665
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
GARY DEBENEDETTO,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
W. Earl Britt, Senior
District Judge. (5:14-hc-02172-BR)
Submitted:
July 24, 2015
Decided:
August 18, 2015
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Robert E. Waters,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.
Thomas
G.
Walker,
United
States
Attorney,
Jennifer P. May-Parker, Jennifer D. Dannels, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Gary
Debenedetto
committing
him
to
appeals
the
the
custody
district
of
the
court’s
Attorney
accordance with 18 U.S.C. § 4246(d) (2012).
order
General
in
We affirm.
A person may be committed under § 4246 if, after a hearing,
the district court “finds by clear and convincing evidence that
the
person
defect
is
as
a
presently
result
of
suffering
which
from
his
a
mental
release
disease
would
create
or
a
substantial risk of bodily injury to another person or serious
damage
to
district
property
court’s
of
another.”
finding
that
18
the
U.S.C.
§ 4246(d).
Government
has
The
established
dangerousness under § 4246 by clear and convincing evidence will
not
be
overturned
on
appeal
unless
it
is
clearly
erroneous.
United States v. LeClair, 338 F.3d 882, 885 (8th Cir. 2003);
United States v. Cox, 964 F.2d 1431, 1433 (4th Cir. 1992).
Dr.
Robert
Lucking—a
staff
psychiatrist
at
the
Federal
Medical Center in Butner, North Carolina (“FMC Butner”)—issued a
report concluding that Debenedetto suffers from schizoaffective
disorder and antisocial personality disorder and that his mental
illness is such that his release would pose a substantial risk
of bodily injury to another person or serious damage to the
property of another.
Debenedetto’s
“substantial
past
This opinion was based on the following:
history
history
and
of
violence—which
well
established
2
encompassed
pattern”
of
his
both
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verbal
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and
individuals;
physical
his
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aggression
mental
illness
directed
and
the
against
combination
other
of
that
illness and his alcohol use, factors the report described as
resulting
in
a
“substantial
dangerous/aggressive
behavior”;
his
increased
lack
of
risk
insight
for
into
his
mental illness and refusal of treatment; his history of offenses
involving firearms and other weapons; his lack of “significant
social
support”
and
“meaningful
social
relationships
with
others”; his “poor adjustment” to the institutions to which he
had
been
committed;
and
his
scores
on
violence
assessment
instruments.
Independent evaluator Dr. Katayoun Tabrizi issued a report
concluding
disorder
that
and
Debenedetto
adult
antisocial
suffers
from
behavior
and
schizoaffective
had
several
risk
factors associated with an increased risk of future violence,
namely: the nature of his untreated mental illness; his history
of aggressive and violent behavior; his lack of social support
and
financial
stability,
and
his
unemployment;
his
lack
of
insight into his mental illness and the need for treatment; and
evidence of “excessive” alcohol use.
In view of these factors,
Dr. Tabrizi opined that Debenedetto was suffering from a mental
disease as a result of which his release into the community
would
create
a
substantial
risk
of
bodily
injury
person or serious damage to the property of another.
3
to
another
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At
a
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hearing,
Dr.
forensic psychiatry.
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Lucking
testified
as
an
expert
in
Consistent with his report, Dr. Lucking
testified that Debenedetto was then not receiving treatment for
his disorders based on his refusal of treatment, did not believe
he had a mental disorder, had an extensive criminal history, and
had
been
disruptive,
assaultive
while
verbally
housed
Bureau of Prisons.
in
threatening,
institutions
and
within
physically
the
Federal
Dr. Lucking testified further that both he
and a risk assessment panel who evaluated Debenedetto concurred
in the opinion that Debenedetto’s release into the community
would pose a substantial risk of bodily injury to another and
destruction to the property of another, and he summarized the
factors
considered
in
reaching
that
opinion.
Based
on
this
testimony and the forensic reports generated by Dr. Lucking and
Dr. Tabrizi, the district court found by clear and convincing
evidence that Debenedetto satisfied the criteria for commitment
under § 4246(d).
Debenedetto
dangerousness
evidence
was
because
argues
not
he
on
appeal
established
had
never
that
by
his
clear
physically
and
substantial
convincing
assaulted
officers
while at FMC Butner and because his underlying federal charges
did not involve “any physical assaults or violent behavior.”
reject this argument.
We
As Debenedetto acknowledges, overt acts
of violence are not required to prove substantial dangerousness
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in a § 4246(d) case.
United States v. Williams, 299 F.3d 673,
677 (8th Cir. 2002).
Further, Debenedetto ignores information
in
both
Dr.
Lucking’s
Lucking’s
hearing
and
Dr.
testimony
Tabrizi’s
that
reports
Debenedetto
and
made
Dr.
violent
threats and engaged in physically aggressive behavior connected
to his mental illness.
We also reject Debenedetto’s remaining arguments.
Even if
Debenedetto had not experienced auditory hallucinations and was
not experiencing paranoia or persecutory or delusional beliefs
at the time of the hearing, the district court was entitled to
consider
his
risk
of
dangerousness
in
light
of
his
entire
symptom profile, not just its most recent manifestation at the
time of the commitment hearing.
See id.
Additionally, even if
Debenedetto is intelligent and has a valid fear about allergies
to antipsychotic medications, it is plain from the record that
he suffers from psychotic mental illness with symptoms directly
connected
bodily
to
injury
aggressive
or
behavior
serious
damage
and
to
a
the
substantial
property
of
risk
of
another.
Further, even if Dr. Lucking’s report is not a “crystal ball” of
future behavior as Debenedetto claims, a finding of substantial
risk under § 4246 “may be based on any activity that evinces a
genuine
possibility
of
future
harm
to
persons
or
property.”
United States v. Sahhar, 917 F.2d 1197, 1207 (9th Cir. 1990).
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Based
on
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the
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entirety
of
Debenedetto’s
behavioral,
psychiatric, and symptom profile, the district court did not
clearly err in its determination that Debenedetto suffers from a
mental disease as a result of which his release would create a
substantial risk of bodily injury to another or serious damage
to the property of another.
Accordingly,
We dispense
with
contentions
are
we
oral
affirm
the
argument
adequately
district
because
presented
in
court’s
order.
the
facts
and
the
materials
legal
before
this court and argument would not aid the decisional process.
AFFIRMED
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