USA v. Marvin Washington

Filing

PUBLISHED OPINION FILED. [13-50870 Affirmed ] Judge: CES , Judge: JLW , Judge: GJC. Mandate pull date is 09/12/2014 for Appellant Marvin Goodlow Washington [13-50870]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-50870

United States Court of Appeals
Fifth Circuit

FILED

UNITED STATES OF AMERICA,

August 22, 2014

Plaintiff-Appellee

v.

Lyle W. Cayce
Clerk

MARVIN GOODLOW WASHINGTON,
Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
Before STEWART, Chief Judge, and WIENER and COSTA, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant Marvin Goodlow Washington refused to abide by
the rules of his group home and received an eviction notice. The government
sought his arrest because continued residence in that group home was a
condition of Washington’s continued release under 18 U.S.C. § 4243 (“Section
4243”), which creates a system of conditional release for individuals who, like
Washington, were found not guilty of crimes only by reason of insanity. The
district court heard testimony from Washington’s probation officer and revoked
Washington’s conditional release after finding that (1) Washington’s eviction
constituted a violation of his treatment regimen, and (2) his continued release
posed a substantial risk to society. Because the doctors who crafted
Washington’s release plan included residence in a group home as an express

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element, and because the district court’s substantial-risk finding was not
clearly erroneous, we affirm that court’s judgment.
I. FACTS AND PROCEEDINGS
In January 2008, Washington entered a Bank of America branch in
Waco, Texas, walked behind the teller counter, and began to stuff cash into a
garbage bag. When a teller approached, Washington said “Don’t make me stab
you.” He then left the bank with $2,711 in cash. When officers responded, they
observed Washington standing near an intersection approximately one block
away, holding the garbage bag. He had transferred $11 to his pocket; the rest
of the money was still in the bag. Officers did not report finding a weapon.
Doctors who later examined Washington reported that the reason he did
not flee from the bank was that he suffered from paranoid delusions at the time
of the robbery (including his false belief that he was married to, and had
fathered a child with, a female officer of the Texas Department of Corrections);
neither did he appreciate the wrongfulness of his conduct. In a post-arrest
interview with an FBI agent, Washington indicated that he robbed the bank to
attract media attention to the fact that his wife was missing—in reality,
Washington was unmarried—and that he intended to return the money but
was arrested before he could do so.
The government charged Washington with bank robbery by force and
violence. On defense counsel’s motion, the court ordered a competency
evaluation, after which Washington’s doctors concluded that he was
incompetent to stand trial. Staff at the Federal Medical Center in Butner,
North Carolina (“FMC-Butner”), charged with continuing to evaluate
Washington over several months, eventually sought and obtained the court’s
permission to administer psychotropic medication, involuntarily if need be, in
an effort to restore Washington’s mental health and achieve competency.
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Approximately six months later, in June 2009, the FMC-Butner staff concluded
that Washington was competent.
At a bench trial in October 2009, the district court found Washington not
guilty by reason of insanity and committed him to a mental health facility for
evaluation and treatment. In 2012, the Bureau of Prisons certified that
Washington had recovered from his mental disease or defect to the extent that
his conditional release should be considered. The district court held a hearing
and, in April 2012, conditionally released Washington based on its finding, by
clear and convincing evidence, that his release under a regimen of care and
treatment would not pose a substantial risk of bodily injury to another person
or serious damage to the property of another. The court set several conditions,
including requirements that Washington (1) remain under the supervision of
the probation office, (2) participate in a regimen of mental health care, (3)
continue to take prescribed medications, and, most importantly for purposes of
this appeal, (4) reside at Guidance House, a group home in Burlington, North
Carolina—he was not to change his residence without the court’s permission.
About fifteen months later, in early July 2013, the probation office filed
a petition for a warrant for Washington’s arrest. The warrant petition’s sole
allegation was that Washington “violated Condition Number 5; that requires
he will reside at the Guidance House. . . . Mr. Washington may not change
residences without permission of the Court; in that, he has been served an
eviction notice effective July 10, 2013.” The district court issued the warrant
and Washington was arrested that day.
The district court held a hearing the next month to address the
revocation of Washington’s conditional release. At the hearing, Washington’s
probation officer, Karen Tremblay, was the only witness; Washington did not
testify or present any witnesses. The court, hearing no objection, received into
evidence two letters dated June 11, 2013 and written by Jean Majors, the
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Program Director of Guidance House, one addressed to Washington and the
other addressed to Tremblay.
The letter to Washington indicates that he met with Majors to discuss
“problems that are being experienced in this facility and [Washington’s]
concerns about being in the wrong facility.” The “problems” included
“[Washington’s] verbal combativeness” with staff and other residents and
curfew violations including failure to sign out during the day and sneaking in
and out of windows at night. The letter includes Majors’s observation that
Guidance House is a more restrictive environment than Washington had been
led to believe when he was given options for placement on his conditional
release, and that his resulting anger and frustration “spills over to create a
hostile environment for everyone—yourself, the Director, other clients, staff[,]
and others involved.” According to the letter, Washington clearly indicated at
the meeting that he wanted to leave Guidance House and would accept any
resulting consequences—in fact, he refused to sign a commitment to follow the
Guidance House rules, knowing that his refusal would result in his receipt of
a 30-day eviction notice. Majors’s letter to Washington also indicates that
Guidance House supported Washington’s exploration of less-restrictive
housing options.
The second letter, addressed to Tremblay, includes Majors’ observations
that Washington “seems to feel that the rules of the group home apply to
everyone but him” and that he
is becoming more aggressive towards the other clients . . . , telling
them that they “better not say anything to anyone about what he
does or doesn’t do.” This was said because he felt that the clients
were “telling on him” when he knocked on their window to get
access into the group home after leaving during a time when he
should have been in bed asleep.

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At the hearing, Tremblay testified that Washington “was in compliance
with his medications” throughout his time at Guidance House. She testified to
some contact between the probation office and Washington’s FMC-Butner
doctor, but stated her belief that the doctor had not been consulted about the
attempt to re-commit Washington. The hearing transcript does not indicate
any attempt by counsel for either party to introduce a report from any medical
professional, nor did the district court discuss this omission or the possibility
of ordering an examination or report from a medical professional.
Turning to non-medical evidence, the record on appeal includes
Tremblay’s testimony that Washington had sought and obtained employment
during his time at Guidance House, including an initial cash job at a car wash
and then a job at McDonald’s that continued for several months, up to the time
of his eviction and arrest. Tremblay also indicated that, having completed his
GED while at FMC-Butner, Washington enrolled in community college while
living at Guidance House. Tremblay confirmed that to her knowledge
Washington had not been involved in any physical assaults or subject to any
criminal charges while on conditional release.
Tremblay stated that her office had “exhausted its efforts to work with
Mr. Washington and hav[e] him come back into compliance,” but also stated
that she could recommend to the court that Washington be placed in a
transitional home rather than be re-committed if an appropriate facility could
be found. 1 Tremblay also testified that she believed that Washington “tried to
physically intimidate” her by following her to her vehicle and “getting in [her]
personal space” after she refused to allow him unsupervised time with his

In another response, Tremblay explained that her “opinion is that at this time Mr.
Washington cannot be safely maintained in the community because he’s not in an agreement
with following the conditions of the Court or any particular facility that has rules and
regulations.”
1

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girlfriend. When asked whether, based on her experience, she believed
Washington was mentally stable, Tremblay responded “I do not.” Tremblay
stated that she based her belief that Washington should be reevaluated by
medical professionals “on a number of things, his escalating behaviors, his
limited insight into his mental illness, his compulsive behaviors, his inability
to think that the rules apply to him. He has an extreme sense of entitlement
and what I would call grandiose.”
The court heard arguments from counsel. When pressed by the court to
cite evidence that Washington was dangerous, counsel for the government
pointed to: (1) Majors’s observation, found in her letter to Tremblay, that
Washington was “becoming more aggressive,” and (2) “the fact that he was
aggressive to his U.S. probation officer,” a reference to Tremblay’s testimony
that Washington “[got] in [her] personal space.” Counsel for the government
continued: “We don’t have any evidence, Judge, that he went out and was
beating up people on the street. We presented to you what I believe is
circumstantial evidence and direct evidence that shows that he is becoming
increasingly aggressive and wanting to do his own thing and not be held
accountable.” The hearing concluded with the following colloquy and oral
ruling:
Government counsel: . . . I’m also concerned [that] when someone
with Mr. Washington’s background starts going—escalating like
this and then they get into money trouble and then they owe all
this money . . . to people. I’m concerned that there’s a possibility
he could go out and commit other crimes to try and get the money
that he’s—that he needs and live the way he wants to live. I think
taken all that—it’s not one little thing, Judge.
The court: I wish you wouldn’t use the word “possibility.”
Government counsel: Well, I think it’s probable. I think it’s going
to happen. I mean, people can disagree and I’m sure everybody’ll
disagree, but I think when you start looking at his behavior and
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what he’s doing and the fact that he doesn’t care about the rules
and he’s doing whatever he wants to do with people, with money,
that he is going to commit another crime. Whether it’s a bank
robbery, I don’t know. Whether it’s holding up somebody, I don’t
know, and that’s my concern. It’s a totality of everything that we’ve
presented. And, Judge, I’m not sure whether or not we even had
the burden in this case or not but I took the burden because, you
know, it’s what we should do.
The court: I’m not sure it really matters so much who has the
burden. The facts are what the facts are.
Government counsel: The facts are what they are, Judge. That’s
all I have.
The court: All right. The Court would find that Mr. Washington
has violated the conditions of his conditional discharge and could
be a danger, would be a danger to at least the property of others
and his conditional release will be revoked. And I suppose Mr.
Washington has the right to appeal this matter. [. . .]
The court later supplemented its oral ruling with brief written reasons.
The district court’s written order stated, in relevant part, as follows:
Having considered the evidence presented at the hearing . . .
the Court is persuaded that the Government has proven by clear
and convincing evidence that the Defendant has violated his
conditional release by failing to comply with the prescribed
regimen of medical, psychiatric, or psychological care or treatment
in that the Defendant was evicted from the Guidance House in
Burlington, North Carolina and failed to inform the U.S. Probation
Office of his eviction. The Government further established by clear
and convincing evidence that Defendant had increasingly hostile
confrontations with staff.
The Court, therefore, finds that Defendant has failed to
comply with the prescribed regimen of medical, psychiatric, or
psychological care or treatment, and that his continued release will
create a substantial risk of bodily injury to another person or
serious damage to property of another.
Washington timely filed a notice of appeal.
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II. STANDARD OF REVIEW
We review questions of statutory interpretation de novo. 2

Factual

findings, such as the district court’s finding of dangerousness under Section
4243, are reviewed for clear error. 3 “Clear-error review only requires a factual
finding to be plausible in light of the record as a whole.” 4
III. ANALYSIS
Section 4243 establishes civil commitment procedures for individuals
found not guilty only by reason of insanity. Such individuals may obtain
conditional release on demonstrating, by clear and convincing evidence, that
their release will not pose a substantial risk to the public. Conditional release,
once achieved, “is not necessarily permanent;” Subsection (g) allows for the
revocation of a conditional release when a district court makes each of two
findings: (1) The individual failed to comply with his treatment regimen, and
(2) his continued release would create a substantial risk to society. 5
Washington challenges both findings.
2

United States v. Mitchell, 709 F.3d 436, 442 (5th Cir. 2013).

3

Id. at 443.

4

Id. (internal quotation marks and citation omitted).

Mitchell, 709 F.3d at 438 (citing Shannon v. United States, 512 U.S. 573, 577 (1994)).
Section 4243 provides, in relevant part, as follows:
5

§ 4243. Hospitalization of a person found not guilty only by reason of
insanity
(a) Determination of present mental condition of acquitted
person.—If a person is found not guilty only by reason of insanity at the time
of the offense charged, he shall be committed to a suitable facility until such
time as he is eligible for release pursuant to subsection (e) [sic, should read
“subsection (f)”].
(b) Psychiatric or psychological examination and report.—prior
to the date of the hearing, pursuant to subsection (c), the court shall order that
a psychiatric or psychological examination of the defendant be conducted, and
that a psychiatric or psychological report be filed with the court. . . .

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(c) Hearing.—a hearing shall be conducted pursuant to the provisions
of section 4247(d) and shall take place not later than forty days following the
special verdict.
(d) Burden of proof.—In a hearing pursuant to subsection (c) of this
section, a person found not guilty only by reason of insanity of an offense
involving bodily injury to, or serious damage to the property of, another person,
or involving a substantial risk of such injury or damage, has the burden of
proving by clear and convincing evidence that his release would not create a
substantial risk of bodily injury to another person or serious damage of
property of another due to a present mental disease or defect. With respect to
any other offense, the person has the burden of such proof by a preponderance
of the evidence.
(e) Determination and disposition.—If, after the hearing, the court
fails to find by the standard specified in subsection (d) of this section that the
person's release would not create a substantial risk of bodily injury to another
person or serious damage of property of another due to a present mental
disease or defect, the court shall commit the person to the custody of the
Attorney General. [. . .]
(f) Discharge.—When the director of the facility in which an acquitted
person is hospitalized pursuant to subsection (e) determines that the person
has recovered from his mental disease or defect to such an extent that his
release, or his conditional release under a prescribed regimen of medical,
psychiatric, or psychological care or treatment, would no longer create a
substantial risk of bodily injury to another person or serious damage to
property of another, he shall promptly file a certificate to that effect with the
clerk of the court that ordered the commitment. The clerk shall send a copy of
the certificate to the person’s counsel and to the attorney for the Government.
The court shall order the discharge of the acquitted person or, on the motion of
the attorney for the Government or on its own motion, shall hold a hearing,
conducted pursuant to the provisions of section 4247(d), to determine whether
he should be released. If, after the hearing, the court finds by the standard
specified in subsection (d) that the person has recovered from his mental
disease or defect to such an extent that—
(1) his release would no longer create a substantial risk of bodily
injury to another person or serious damage to property of another, the
court shall order that he be immediately discharged; or
(2) his conditional release under a prescribed regimen of
medical, psychiatric, or psychological care or treatment would no longer
create a substantial risk of bodily injury to another person or serious
damage to property of another, the court shall—
(A) order that he be conditionally discharged under a
prescribed regimen of medical, psychiatric, or psychological care
or treatment that has been prepared for him, that has been
certified to the court as appropriate by the director of the facility

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A. The district court’s finding that Washington violated his
treatment regimen
By insisting that the district court overstepped its authority in adding
an ancillary requirement of residence at Guidance House, Washington
implicitly assumes that the residence condition was in fact ancillary, and thus
not part of his prescribed regimen. The government responds that the district
court made the finding in question, namely that the eviction constituted a
violation of the treatment regimen. The government’s response appears to
misapprehend the thrust of Washington’s argument: He insists that the
district court erred in finding that his eviction constituted a violation of his
prescribed regimen, not, as the government implies, that the district court

in which he is committed, and that has been found by the court
to be appropriate; and
(B) Order, as an explicit condition of release, that he
comply with the prescribed regimen of medical, psychiatric, or
psychological care or treatment.
The court at any time may, after a hearing employing the same criteria,
modify or eliminate the regimen of medical, psychiatric, or psychological care
or treatment.
(g) Revocation of conditional discharge.—The director of a medical
facility responsible for administering a regimen imposed on an acquitted
person conditionally discharged under subsection (f) shall notify the Attorney
General and the court having jurisdiction over the person of any failure of the
person to comply with the regimen. Upon such notice, or upon other probable
cause to believe that the person has failed to comply with the prescribed
regimen of medical, psychiatric, or psychological care or treatment, the person
may be arrested, and, upon arrest, shall be taken without unnecessary delay
before the court having jurisdiction over him. The court shall, after a hearing,
determine whether the person should be remanded to a suitable facility on the
ground that, in light of his failure to comply with the prescribed regimen of
medical, psychiatric, or psychological care or treatment, his continued release
would create a substantial risk of bodily injury to another person or serious
damage to property of another.
18 U.S.C. § 4243.

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erred by failing to make a finding one way or the other. Although the parties
thus focus on whether the district court had the authority to set conditions
beyond the prescribed treatment regimen, we need not address that issue
because Washington’s residence condition was an express component of his
physician-prescribed treatment regimen.
Washington relies primarily on a 2010 decision from the Eleventh
Circuit, United States v. Crape. 6 In that case, the court vacated the district
court’s judgment recommitting Michael Crape, who had been found not guilty
only by reason of insanity after mailing threatening letters to President George
W. Bush and Vice-President Cheney. 7 Crape’s mental condition improved
during his subsequent commitment to the extent that the court ordered his
“release on the condition that he continue to obey his doctors and take his
medication. But the court also imposed another condition: ‘Mr. Crape shall not
mail, distribute, or otherwise transmit any threatening communications.
Revocation of conditional release is mandatory for mailing, distributing, or
otherwise transmitting any threatening communications.’” 8 Crape’s mental
health deteriorated for unknown reasons during his release, and he was
arrested after sending another threatening letter. 9 At his revocation hearing,
Crape’s counsel argued that the court could not re-commit Crape without
finding that he had failed to comply with his treatment regimen. 10 “The court,
after admitting uncertainty as to ‘whether [Crape had] failed to comply with
what [his doctors] told him to do,’ rejected that argument.” 11 The district court
6

603 F.3d 1237, 1243-44 (11th Cir. 2010).

7

603 F.3d at 1239-40.

8

Id. at 1240 (emphasis added).

9

Id.

10

Id.

11

Id.

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ordered Crape’s re-commitment after making a substantial-risk finding but
without making any finding as to Crape’s failure to comply with his prescribed
regimen. 12 The Eleventh Circuit reversed after holding that Section 4243 does
not empower district courts to add conditions beyond the prescribed regimen. 13
Washington’s reliance on Crape is misplaced because, unlike the
ancillary requirement imposed by the court in Crape, the residence
requirement here was a component of Washington’s physician-prescribed
regimen. Washington’s FMC-Butner doctors certified their release plan to the
court pursuant to subsection (f)(2) of Section 4243. 14 That plan does not appear
to include all of the conditions ultimately ordered by the district court—many
of which were suggested by the probation office as if in the context of
supervised release 15—but the plan does include the following specific reference
to the group home placement, under the heading “Social Support/Community
Resources”:
Social support may play a role in decreasing the risk of
future violence, while negative social influences and
environmental stresses could increase the potential for problems.
Mr. Washington has no social support, but has shown he is adept
at making friends. He has duly impressed both his future
probation officer, and the group home owner, who has chosen to
hold his place [in] her home. Our plan consists of placing him [in]
a group home, outpatient mental health services, and social

12

Id.

13

See id. At 1240-47.

18 U.S.C. § 4243(f) (2) (“. . . the court shall . . . order that he be conditionally
discharged under a prescribed regimen of medical, psychiatric, or psychological care or
treatment that has been prepared for him, that has been certified to the court as appropriate
by the director of the facility in which he is committed, and that has been found by the court
to be appropriate. . . .” (emphasis added)).
14

Washington does not argue on appeal that the district court overstepped its
authority by ordering conditions beyond those “certified to the court as appropriate by the
director” of FMC-Butner pursuant to subsection (f)(2).
15

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security disability in order to maximize his success in the
community.
The ancillary condition in Crape originated with the district court; by contrast,
Washington’s required residence in the group home was a stated element of
his doctors’ plan for maximizing his success. Accordingly, we hold that the
residence condition was a component of the prescribed regimen, and affirm as
not clearly erroneous the district court’s finding that Washington violated his
regimen.
B. The district court’s finding that Washington’s continued release
posed a substantial risk to the public
Assessing the dangerousness of a person who has previously been found
not guilty only by reason of insanity, but who has subsequently received
treatment, is a necessarily fact-intensive inquiry. Courts typically consider
any indications of a propensity for violence or destructiveness, paying careful
attention to recent violent episodes, threats, or actions. Courts also examine
the individual’s mental health—particularly the extent of any compliance or
non-compliance with a treatment regimen.
In Mitchell, we affirmed as not clearly erroneous the district court’s
finding that Mitchell’s continued release posed a substantial risk. 16 The
evidence demonstrated that Mitchell was not taking all of his medications, and
that he resisted doing so at least in part because of unwanted side effects. 17
Mitchell also told his therapist that he no longer wished to participate in his
treatment. 18 Mitchell’s probation officer reported increased agitation and
aggressiveness, and Mitchell’s therapist concluded that he was a danger to the
16

709 F.3d at 444.

17

Id. at 443.

18

Id.

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community, especially to women, in light of his history of violence during
unmedicated periods. 19
Our only other opinion addressing re-commitment under Section 4243 is
United States v. Boggs, a 1995 unpublished per curiam. 20 Noting that it was “a
close case,” we affirmed the district court’s decision to revoke Boggs’s
conditional release. 21 Boggs had also gone off his medication. 22 Two of his
mental health care providers testified that he “posed only a small if
unpredictable risk of injury to others in the near future,” but, because he failed
to take his medication, “he posed a substantial risk of harm in the long term.” 23
They expressed concern that his paranoia would cause him to violently “defend
himself” even in the absence of actual provocation. 24 There was no evidence
that he had ever harmed anyone in the past. 25

19

Id.

20

United States v. Boggs, 1995 WL 581569, *1 (5th Cir. Aug. 25, 1995).

21

Id.

22

Id.

23

Id.

24

Id.

Id. A review of decisions from other circuits reveals that, like the individuals in
Mitchell and Boggs, individuals who are re-committed typically have stopped taking
prescribed medication. See, e.g., United States v. Sellers, 549 F. App’x 139, 140-41 (4th Cir.
Dec. 10, 2013) (unpublished) (per curiam) (affirming re-commitment of individual with
history of violence and alcoholism who experienced precipitous decline in mental state,
refused additional medication, began drinking again, ceased contacting probation officer, and
experienced delusions of persecution that made him aggressive), United States v. Ambers,
360 F. App’x 39, 40-41 (11th Cir. Jan. 6, 2010) (unpublished) (per curiam) (affirming recommitment when individual went off his medication and began self-medicating with
psychoactive substances, which increased his paranoia, which caused him to purchase a
weapon to protect himself); but cf. United States v. Logsdon, 450 F. App’x 704, 705-07 (10th
Cir. Nov. 1, 2011) (unpublished) (affirming re-commitment, but making no mention of any
prescribed medication, when—on the first day of release conditioned on residing at a
particular facility, abstaining from alcohol, and refraining from committing any crime—the
individual allegedly bought alcohol for a minor and consumed some himself, resulting in his
arrest and eviction from the facility).
25

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The parties’ positions on appeal reflect the fact-intensive nature of this
inquiry. Washington insists that there was “no evidence” that he posed a risk
of bodily injury to anyone or of property damage. Washington points to the
many parts of Tremblay’s testimony indicating that he was employed,
pursuing his education, and simply chafing under the yoke of a restrictive
environment that was no longer appropriate in light of his improved mental
health. For its part, the government points to Tremblay’s testimony about
Washington’s increased verbal aggression in his interactions with her, and to
Majors’s similar observation about his interactions with the staff and residents
at Guidance House.
The record reflects that Washington was not getting along well with the
people around him, and the district court inferred that his increasing verbal
aggressiveness was a sign of dangerousness, or even potential illness, rather
than a sign of recovery and attendant resurgence of his desire for autonomy.
We cannot say that the district court’s ultimate substantial-risk finding is
implausible in light of the record as a whole. It therefore is free of clear error.
We are aware that our affirmance of the district court’s finding would
appear to lower the bar for re-commitment proceedings insofar as our earlier
precedents generally have addressed individuals who refused to follow their
doctors’ advice. We also note that this close question was made even more
difficult by the parties’ choices not to present any evidence of professional
medical opinion as to any risk posed by Washington’s release. And we are
keenly aware that, under Section 4243, District judges have an awesome
responsibility to protect the public and to strike the difficult balance with
individual liberty. We therefore emphasize that every substantial-risk
assessment must turn on the unique factual circumstances of each case rather
than on an attempt to compare one individual to another.
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IV. CONCLUSION
The district court’s judgment revoking Washington’s conditional release
under Section 4243 is AFFIRMED.

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