United States of America v. Gorglione

Filing 113

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: In accordance with the foregoing, on or before May 7, 2021, the Warden of the Federal Medical Center, Devens in Ayer, Massachusetts shall submit to this Court a proposed program for the conditional release of the respondent, Robert Gorglione, to an appropriate facility in the greater New York City area, the conditions of which release shall be intended to regulate Mr. Gorglione's conduct to the extent necessary to ensure that he will not become a substantial risk to the community. So ordered. (Vieira, Leonardo)

United States District Court
District of Massachusetts
United States of America,
Petitioner,
v.
Robert Gorglione,
Respondent.

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Civil Action No.
19-12406-NMG

MEMORANDUM & ORDER
GORTON, J.
This civil commitment case arises out of the 1998
conviction of Robert Gorglione (“respondent” or “Gorglione”) for
conspiracy to distribute cocaine.

In July, 2012, Gorglione was

civilly committed to the custody of the Attorney General of the
United States pursuant to 18 U.S.C. § 4246.

Since then, he has

remained in federal custody at the Federal Medical Center,
Devens in Ayer, Massachusetts (“FMC-Devens”).
In August, 2020, eight years after he was civilly
committed, the Risk Assessment Panel (“the RAP”) at FMC-Devens
issued a report recommending Gorglione for conditional release.
More than seven months later, Gorglione remains committed
despite the best efforts of personnel at FMC-Devens, counsel for
both parties and this Court.

To avoid further unnecessary
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detention, this Court will order Gorglione’s release with all
deliberate speed.
I.

Background
In May, 1998, Gorglione was sentenced to 60 months in

prison after being convicted of conspiracy to distribute
cocaine.

His term of incarceration was followed by supervised

release commencing in March, 2006.

He eventually violated his

terms of release on several occasions, including by assaulting
his father.

As a result, Gorglione was committed to the custody

of FMC-Devens pursuant to 18 U.S.C. § 4244 to serve a five-year
term.
In December, 2011, while Gorglione was serving his sentence
for violating the terms of his release, the government filed a
petition for civil commitment pursuant to 18 U.S.C. § 4246.
After an evidentiary hearing in July, 2012, this Court held that
Gorglione’s mental state was such that his release from custody
would create a risk of harm to the public.

The Court found that

the evidence demonstrated that Gorglione 1) has a
Schizoaffective Disorder, presenting with symptoms of psychosis
and violent outbursts, 2) refused to accept that diagnosis and
3) as a result, refused to take his prescribed medication absent
a court order.
Accordingly, Gorglione was committed to the custody of the
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United States Attorney General and placed at FMC-Devens.

In

addition to ordering FMC-Devens to submit annual updates on his
mental condition, this Court also reminded the government of its
obligation to “exert all reasonable efforts” to cause state
custody of Gorglione pursuant to § 4246(d).

The Court further

required the government to submit periodic reports on measures
taken to achieve that goal.
From 2012 to 2017, FMC-Devens consistently recommended that
Gorglione remain in custody.

During that time, the government

annually submitted renewed requests in a continued effort to
transfer Gorglione to state custody in either Massachusetts or
New York.

All requests were denied.

In December, 2017, the Risk Assessment Panel at FMC-Devens
(“the RAP”) issued a report that concluded Gorglione had
recovered such that his conditional release under prescribed
treatment would no longer create a risk to the public.

The

government subsequently focused on finding suitable housing to
accommodate Gorglione upon his release.

Before such housing was

secured, the RAP conducted another evaluation of Gorglione in
May, 2019 and reverted to its previous recommendation that he
should remain committed because he continued to meet the
diagnostic criteria for Schizoaffective Disorder and his release
posed a risk of harm to the public.
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Following the RAP report in May, 2019, this Court entered
an order directing the RAP at FMC-Devens to provide an updated
report as to Gorglione’s mental status on or before August 31,
2020 to address the inconsistency of previous reports.
On August 27, 2020, this Court received a sealed RAP report
(“the August Report”) recommending Gorglione for conditional
release.

The August Report notes that, despite his continued

lack of insight into his illness and history of drug use and
violence, Gorglione acknowledges the necessity of taking his
medication upon release and understands that his failure to do
so may result in his being remanded to federal custody.
In sum, the August Report concludes that Gorglione
has recovered from his mental illness to such an extent
that his conditional release under a prescribed regimen of
treatment would no longer create a substantial risk of
bodily injury to another person or serious damage to the
property of another.
Since then, this Court has convened four status conferences
during the past seven months to receive periodic updates from
the government and FMC-Devens regarding the effort to transfer
or release Gorglione.

Despite the diligent effort of the

parties and the Court, no definitive plan has been formulated or
accomplished.

The Court concludes, nevertheless, that the time

for Gorglione’s release has arrived.

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II.

Conditional Release Under Section 4246(e)
The August Report requires FMC-Devens authorities to create

a plan for Gorglione’s release.

The Report also significantly

alters the authority of this Court to enforce such a release.
Gorglione’s prior continued hospitalization was analyzed
pursuant to 18 U.S.C. § 4246(d), which authorizes the indefinite
hospitalization of a person
who is due for release but who, as the result of a mental
illness, poses a significant danger to the general public
until either a state assumes responsibility or the person’s
mental condition is restored. United States v. S.A., 129 F.3d
995, 998 (8th Cir. 1997).
In contrast, when a director of the facility in which a
person remains hospitalized pursuant to 18 U.S.C § 4246(d)
determines that
the person has recovered from his mental disease or
defect to such an extent that his release would no
longer create a substantial risk of bodily injury to
another person or serious damage to property of
another
continued hospitalization is analyzed pursuant to § 4246(e).
Pursuant to § 4246(e), the Court “shall” upon receiving
certification of recommendation for conditional release,
order the discharge of the 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
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should be released. If, after the hearing, the court
finds by a preponderance of the evidence 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 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.
§ 4246(e).
As a result of the August Report recommending Gorglione for
conditional release, Gorglione’s continued hospitalization is
analyzed pursuant to § 4246(e)(2). See Ecker v. United States,
538 F. Supp. 2d 331, 337 (D. Mass. 2008) (ordering the
conditional release of a civilly committed individual under
similar circumstances pursuant to § 4246(e)(2)); Ecker v. United
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States, 575 F.3d 70, 79-82 (1st Cir. 2009) (affirming the
conditional release pursuant to § 4246(e)(2)).
The Court concludes, based on all the information at hand,
that any further delay in releasing Gorglione may result in
unnecessary, continued federal custody and that he should be
released forthwith subject to specific conditions as determined
by the Warden of FMC-Devens.
ORDER
In accordance with the foregoing, on or before May 7, 2021,
the Warden of the Federal Medical Center, Devens in Ayer,
Massachusetts shall submit to this Court a proposed program for
the conditional release of the respondent, Robert Gorglione, to
an appropriate facility in the greater New York City area, the
conditions of which release shall be intended to regulate Mr.
Gorglione’s conduct to the extent necessary to ensure that he
will not become a substantial risk to the community.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated April 6, 2021

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