USA v. Little

Filing 65

ORDER adopting the report and recommendation of the Magistrate Judge; granting plaintiff's motion for revocation of conditional release. The defendant is COMMITTED to the custody of the attorney general for hospitalization and treatment in a suitable facility under 18 U.S.C § 4246(f). Signed on 3/28/2019 by District Judge M. Douglas Harpool. (Levin, Benjamin)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
UNITED STATES OF AMERICA

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Plaintiff,
v.
GAVIN LITTLE
Defendant.

Case No. 6:15-CV-03141-MDH

ORDER
Before the Court is the Report and Recommendation of the Magistrate Judge. (Doc. 61).
The Magistrate Judge recommended that Defendant’s conditional release be revoked and that
Defendant remain committed under 18 U.S.C. § 4246. Defendant has filed exceptions, and the
matter is ripe for review.
Defendant was originally committed under § 4246 on August 31, 2015. (Doc. 12). He was
conditionally released on January 20, 2017. (Doc. 19). On August 24, 2017, the Court revoked his
first conditional release for violating the terms of his release. (Doc. 35). On that same date, Plaintiff
moved the Court to again conditionally release Defendant. (Doc. 36). On September 12, 2017, the
Court ordered his second conditional release. (Doc. 42).
On March 29, 2018, Plaintiff arrested and returned Defendant to the USMCFP after he
violated the conditions of his release by consuming alcohol and absconding from his treatment
facility. On May 25, 2018, Plaintiff filed a motion to revoke the Defendant’s conditional release.
(Doc. 46). Plaintiff stated that Defendant had violated the conditions of his release and that his
continued release would create a substantial risk of bodily injury to another person or serious
damage to the property of another. Id. at 2.

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A forensic psychological report assembled be a panel of four medical professionals and
dated May 7, 2018, diagnosed Defendant with schizophrenia, in full remission, antisocial
personality disorder, and alcohol and cannabis use disorders. (Doc. 46-1 at 15). The panel stated
that Defendant had a history of violence, mental illness, and substance abuse, and was at an
elevated risk for committing further violence. Id. at 16. The panel noted Defendant’s excessive
and compulsive substance abuse as a risk factor for re-offending. Id. at 17. The panel concluded
that Defendant currently suffers from a mental disease, as a result of which his release would create
a substantial risk of bodily injury to another person or serious damage to the property of another
and recommended he be committed under 18 U.S.C. § 4246. Id.
On Defendant’s request, Dr. Shawna Baron, Psy.D., evaluated Defendant and submitted a
report dated August 24, 2018. (Doc. 54). She diagnosed him with schizophrenia in remission,
antisocial personality disorder, and alcohol and cannabis use disorders. (Doc. 54 at 7). Dr. Baron
opined that despite the possibility that Defendant’s substance abuse might increase his risk for
future violence, the risk could be effectively mitigated by placing him in a residential substance
abuse treatment program. (Doc. 54 at 8). Dr. Baron stated that, for this reason, Defendant did not
meet the criteria for commitment under § 4246.
The Magistrate Judge held a hearing on October 4, 2018. (Doc. 58). Both the panel and Dr.
Baron submitted testimony that was duplicative of their respective reports. The Court also heard
testimony from Angie Conover, a social worker at USMFP, and the Defendant himself. Ms.
Conover testified that Defendant’s first release was to a halfway house that did not provide mental
health treatment. (Doc. 60 at 44). His second release was to a residential substance abuse treatment
center, although that center refused to accept him because of his sex offender status. Id. at 45. He
was eventually placed in an outpatient treatment center that provides the “top level” of supervision

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and structure available. Id. at 46-48. After being returned to the USMCFP, the Plaintiff could not
find an inpatient treatment center that would accept him. Id. at 49. Ms. Conover stated that
“residential substance abuse treatment is hard to find” and that for sex offenders like Defendant it
is even harder to find. Id. at 57.
The Defendant testified that he knows he suffers from mental diseases and that he would
comply with any treatment. Id. at 76-77. He stated he would not be a danger to other people or
their property if released. Id. at 77-78.
The Magistrate Judge in his report found that Defendant violated the conditions of his
release by not complying with the prescribed regimen of care. (Doc. 61 at 10). Specifically, he
found that on March 3, 2018, Defendant left his treatment facility without authorization and that
his blood alcohol content was measured at 0.17 percent, and that his conditions of his release
include not using alcohol and complying with his treatment regimen. Id. The Magistrate Judge
further found that remanding Defendant to custody was appropriate in light of his violation. Id. at
11. The Magistrate Judge found that his actions indicate that he is unable to control his substance
abuse disorder and that his continued release would thus be a danger to the community. Id.
The Magistrate Judge considered the report of the panel more credible than the report of
Dr. Baron. Id. at 12. The Magistrate Judge noted that it was inconsistent for Dr. Baron to
recommend Defendant’s unconditional release in light of her finding that his substance abuse
increased his risk for future violence, given his long history of non-compliance with treatment and
his extensive history of substance abuse. Id. The Magistrate Judge concluded that in light of
Defendant’s failure to comply with treatment, his continued release would create a substantial risk
of bodily injury to another person or serious damage to property of another and that he thus met
the criteria for commitment under § 4246(f). Id. at 12-13.

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Defendants excepts to the portion of the report finding that Defendant failed to comply
with his prescribed regimen of care, and the portion finding that in light of that failure, Defendant’s
continued release would create a substantial risk of bodily injury to another person or serious
damage to the property of another. (Doc. 64 at 3). Defendant claims that the Magistrate Judge’s
findings are not supported by the documentary or testimonial evidence in the record and that his
finding is contrary to his own testimony. Id.
The Court has carefully reviewed the record and all of the evidence in this case. The Court
first notes that Defendant’s testimony is at odds with the overwhelming weight of the other
evidence in the record, including Defendant’s own past behavior. Second, the Court notes that Dr.
Baron’s opinion that the Defendant does not meet the criteria for commitment under § 4246(f)
because his dangerousness might be mitigated if he was in an intensive residential treatment
program is of no moment. Plaintiff has been unable to place Defendant in a residential program,
and Defendant has demonstrated time and time again his inability to receive treatment in an
outpatient or halfway house-type setting.
The Court finds that a preponderance of evidence supports the Magistrate Judge’s
conclusion that the Defendant violated the terms of his release. The Court further finds by a
preponderance of the evidence that, in light of Defendant’s failure to comply with the prescribed
regiment of treatment, his unconditional release would create a substantial risk of bodily injury to
another person or serious damage to the property of another. The Court hereby ADOPTS the
Report and Recommendation of the Magistrate Judge and REJECTS Defendant’s Exceptions.
The Court GRANTS Plaintiff’s Motion for Revocation of Conditional Release (Doc. 46) and
orders that the Defendant be committed to the custody of the attorney general for hospitalization

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and treatment in a suitable facility under 18 U.S.C § 4246(f). The Conditional Release Order
entered by this Court on September 12, 2017 (Doc. 42), is REVOKED.
IT IS SO ORDERED.

DATED: March 28, 2019
/s/ Douglas Harpool
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE

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