United States v. Patrick Randell McIntosh , 900 F.3d 1301 ( 2018 )

Case: 16-16442 Date Filed: 08/20/2018 Page: 1 of 19
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16442
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cr-00018-TWT-JKL-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PATRICK RANDELL MCINTOSH,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 20, 2018)
Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 16-16442 Date Filed: 08/20/2018 Page: 2 of 19
After Patrick McIntosh was found not guilty by reason of insanity of
unlawfully possessing firearms while under felony indictment, threatening the
President of the United States, threatening law enforcement, and making threats by
interstate communication, the district court ordered him civilly committed under
18 U.S.C. § 4243(f). McIntosh seeks review of the district court’s decision to deny
him unconditional release from civil commitment. McIntosh does not contest the
district court’s findings that his underlying crimes involved a substantial risk of
bodily injury to another and that there was a substantial risk that McIntosh would
harm others in the future. He argues instead that the district court erred in finding
that the government could continue to hold him under the civil commitment statute
because his risk of danger to others was due to a “mental disease or defect.”
18 U.S.C. § 4243(d). After careful review, we conclude that the district court did
not clearly err in finding that McIntosh’s risk of danger to others was due to a
mental disease or defect given the evidence that he suffered from a particularly
severe personality disorder. We affirm.
I. BACKGROUND
A federal grand jury charged McIntosh with unlawful possession of firearms
while under felony indictment, threatening the life of the President of the United
States, threatening federal law enforcement officers, and making threats by
interstate communications. In a bench trial, the district court found McIntosh not
2
Case: 16-16442 Date Filed: 08/20/2018 Page: 3 of 19
guilty by reason of insanity on all four counts and ordered him civilly committed.
The district court committed McIntosh to a mental health facility within the Bureau
of Prisons. After McIntosh had been committed for nine months, the district court
held a hearing in which the court determined that McIntosh failed to meet his
burden to show that his release would not constitute a danger to the community
due to his present mental illness. The district court committed McIntosh to the
Attorney General’s custody until he no longer posed a danger to the community
due to his mental disease or defect. See 18 U.S.C. § 4243(e).
A. Underlying Offense Conduct
In August 2012, McIntosh posted on his Facebook page, “I wanna kill the
President.” Doc. 167 at 3.1 Shortly after, he purchased a 12-gauge shotgun and a
.22 caliber pistol. Law enforcement officers later discovered the firearms and
ammunition in McIntosh’s hotel room. At the time that law enforcement found the
firearms and ammunition, McIntosh had pending charges in South Carolina after
being indicted for the felony offense of stalking. A federal grand jury indicted
McIntosh on charges of unlawful possession of firearms while under felony
indictment, in violation of 18 U.S.C. § 922(n) (Count One), and making a threat to
take the life of the President of the United States, in violation of 18 U.S.C. § 871(Count Two).
1
“Doc. #” refers to the numbered entry on the district court’s docket.
3
Case: 16-16442 Date Filed: 08/20/2018 Page: 4 of 19
While incarcerated pending trial, McIntosh threatened, via phone calls and
emails to his mother, the law enforcement officials who investigated and were
prosecuting his case. During one phone call, he said, “I’m going to end up
committing murder. ‘Cause I’m that—I’m that angry. I’m that angry to kill an
FBI agent. I’m that angry to kill a prosecutor. I’m that angry.” Doc. 167 at 3. In
an email with “hit list” as the subject, he listed the names of the Assistant United
States Attorney who was prosecuting his case, the federal air marshal working with
the FBI who investigated the case, an ex-girlfriend, and his father. Id. While
incarcerated in Georgia, McIntosh sent these communications to his mother in
South Carolina.
Based on these further threats, McIntosh was indicted on additional charges
of making threats to law enforcement, in violation of 18 U.S.C. § 115(a)(1)(B)
(Count Three), and making threats by interstate communication, in violation of
18 U.S.C. § 875(c) (Count Four).
B. McIntosh’s Notice of His Insanity Defense
After pleading not guilty, McIntosh notified the government that he
intended to raise an insanity defense and to introduce expert evidence relating to a
mental disease or defect bearing on the issue of guilt. See Fed. R. Crim. Pro. 12.2.2
2
Federal Rule of Criminal Procedure 12.2 requires a defendant who intends to assert a
defense that he was insane at the time of the alleged offense or who intends to introduce expert
evidence relating to a mental disease or defect bearing on an issue of guilt to notify an attorney
4
Case: 16-16442 Date Filed: 08/20/2018 Page: 5 of 19
McIntosh was examined by Dr. Michael Hilton, an expert for the government, and
Dr. Julie Dorney, an expert for the defendant, who offered opinions about, among
other things, whether McIntosh was able to appreciate the nature and quality or
wrongfulness of his acts.3
Dr. Hilton concluded that McIntosh did not suffer from a mental disease or
defect making him unable to appreciate the nature and quality or wrongfulness of
his acts. Dr. Hilton noted, however, McIntosh’s problems with loss of temper,
annoyance, anger, suspiciousness, and resentfulness, as well as his tendencies
towards argumentativeness with authority figures, defiance of authority, and
vindictiveness. Dr. Hilton indicated that McIntosh saw himself as someone who
could become a serial killer and had thought about how he would commit such
crimes by choking or starving his victims. Dr. Hilton also noted that McIntosh
created a list of individuals whom he has considered killing.
Dr. Dorney diagnosed McIntosh with Bipolar Disorder, a mental disease that
made McIntosh unable to fully appreciate the wrongfulness of his acts at the time
of the offenses. Dr. Dorney determined that McIntosh’s Bipolar Disorder
for the government in writing within the time provided for filing a pretrial motion and file a copy
of the notice with the clerk of court.
3
To be found not guilty by reason of insanity, a defendant must prove that at the time of
the commission of the acts constituting the offense, he, “as a result of severe mental disease or
defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.”
18 U.S.C. § 17(a). The defendant bears the burden of proving this affirmative defense by clear
and convincing evidence. Id. § 17(b).
5
Case: 16-16442 Date Filed: 08/20/2018 Page: 6 of 19
manifested in his mood, agitation and threatening behavior; paranoid delusional
thinking; impulsivity; grandiosity; high levels of energy; and disinhibition. Dr.
Dorney found that McIntosh suffered from paranoid delusional thinking that the
FBI, a local sheriff’s department, his previous mental health providers, and his
father were conspiring together to kill him. Dr. Dorney further diagnosed
McIntosh with features of Narcissistic, Borderline, and Antisocial Personality
Disorder expressed in his impulsivity, unlawful behavior, recurrent thoughts of
self-harm, lack of empathy, and poor judgment. Although Dr. Hilton and Dr.
Dorney disagreed on the availability of the insanity defense for McIntosh, both
experts determined that he was competent to stand trial. After these evaluations
were completed, the case proceeded to a bench trial.
C. The Evidence at Trial
The bench trial focused on two issues: whether McIntosh was guilty of
committing the offenses charged in the indictment and, if he was, whether he
should be found not guilty by reason of insanity. Because insanity is an
affirmative defense, the government first had to prove that McIntosh committed
the offenses in question before he could be acquitted due to a mental disease or
defect.
At trial, McIntosh argued that the government’s evidence was insufficient to
prove beyond a reasonable doubt that he committed the offenses. But the
6
Case: 16-16442 Date Filed: 08/20/2018 Page: 7 of 19
government introduced evidence showing that he had possessed a firearm while
under felony indictment and made statements threatening the President,
government officials, and others. As to Count One, McIntosh stipulated that he
had purchased and received a shotgun and pistol while under a pending felony
indictment in South Carolina for stalking.
As to Count Two, McIntosh stipulated that he wrote he wanted to kill the
President. McIntosh also wrote in letters that “[he] meant every word of it” and
that “he wanted to hurt the President of the United States as ‘a conveyance of a
desire.’” Doc. 167 at 3. On Count Three, the government played recordings of
phone calls in which McIntosh told his mother that he would kill the government
officials who were prosecuting his case or investigating him. McIntosh also
stipulated that he sent his mother an email with the subject line “hit list” that
contained the same officials’ names. As to Count Four, the government played
recordings of phone calls in which McIntosh threatened to beat and stab his father
and an ex-girlfriend. As stipulated, McIntosh made these phone calls while
incarcerated in Georgia to his mother, who lived in South Carolina.
McIntosh argued at trial in the alternative that even if he committed the
offenses, he should be found not guilty by reason of insanity. In support, he
introduced medical evidence, including the opinion of Dr. Dorney. McIntosh also
called his mother, Mary Celeste Conlon, to testify. Conlon described McIntosh’s
7
Case: 16-16442 Date Filed: 08/20/2018 Page: 8 of 19
history of treatment for mental illness, which included involuntary commitments,
and his behavioral difficulties. Conlon stated that in previous mental health
assessments McIntosh had been diagnosed as bipolar. Conlon also explained that
she had many interactions with law enforcement regarding McIntosh’s mental
health condition. At the end of her testimony, Conlon requested that McIntosh
receive long term mental health assistance. Other evidence at trial showed that
Conlon was afraid of McIntosh and had added reinforced doors and windows to
her home to protect herself from his erratic behavior.
Although the government’s expert, Dr. Hilton, concluded that McIntosh was
suffering from no mental disease or defect making him unable to appreciate the
nature and quality or wrongfulness of his acts, at trial the government did not
contest that McIntosh was not guilty by reason of insanity. At the conclusion of
the bench trial, the district found that the government had proven beyond a
reasonable doubt that McIntosh had committed the four charged offenses. The
district court then determined that McIntosh committed the offenses while
suffering from a mental disease or disability and judged him not guilty by reason
of insanity.
D. Risk Assessment Panel Report
After finding McIntosh not guilty by reason of insanity, the district court
ordered him committed to a mental health facility to undergo a psychiatric
8
Case: 16-16442 Date Filed: 08/20/2018 Page: 9 of 19
evaluation. McIntosh was then evaluated over a period of four months by a risk
assessment panel, consisting of a psychologist, a psychiatrist, and a licensed social
worker. After a psychologist evaluated McIntosh, the panel prepared a Risk
Assessment Report (the “Report”) addressing whether McIntosh’s release from
custody would present a substantial risk of injury to others as a result of a present
mental disease or defect.
In the Report, the panel diagnosed McIntosh with Narcissistic Personality
Disorder with Borderline, Histrionic, and Antisocial traits and opined that he
suffered from a severe case of this personality disorder. The panel noted that
McIntosh exhibited patterns of behavior that were characterized by grandiosity,
lack of empathy, significant entitlement, arrogance, impulsivity, anger, irritability,
and attention seeking. The panel concluded that due to his severe personality
disorder McIntosh had difficulty behaving in accordance with societal expectations
regarding lawful behavior and also engaged in a pattern of reckless and impulsive
behavior indicative of a disregard for the safety of others.
The panel further found that McIntosh was at a high risk for engaging in
future violent behavior. He had experienced behavioral difficulties since age 12,
including engaging in aggressive behaviors such as fighting, domestic violence,
and making racist comments. In addition, McIntosh had continued to make
specific and lethal threats toward others throughout the period when he was being
9
Case: 16-16442 Date Filed: 08/20/2018 Page: 10 of 19
evaluated. The Report noted that the risk of McIntosh engaging in violence in the
future was enhanced by his lack of insight and lack of amenability to treatment, as
well as his refusal to accept responsibility, lack of social support, and unrealistic
future plans.
The Report concluded that if the district court found that a personality
disorder could legally constitute a mental disease or defect, then McIntosh
presented a risk to others due to a mental disease or defect. Conversely, the Report
concluded that if the district court determined that a personality disorder could not
legally constitute a mental disease or defect, then McIntosh would not present a
risk to others based on a mental disease or defect.
E. The 18 U.S.C. § 4243 Hearing
After the panel issued the Report, the district court held a hearing to
determine whether McIntosh should be released. At the hearing, the district court
reviewed the Report and heard testimony from the psychologist who had evaluated
McIntosh.
The psychologist testified that during the assessment period McIntosh
repeatedly stated that he wanted to kill his father, his ex-girlfriend, state and
federal prosecutors, FBI investigators, and anyone else who had “screwed him
over” and provided detailed descriptions of how he would do so. Doc. 215 at 25.
McIntosh made these statements between five and ten times and explained that
10
Case: 16-16442 Date Filed: 08/20/2018 Page: 11 of 19
using a firearm to kill his victims “would not be personal enough.” Id. When
asked how certain he was that he would harm others, McIntosh stated that he was
“ten out of ten” certain that he would harm people. Id. at 36. The psychologist
further testified that while being evaluated McIntosh had assaulted another inmate
who had called him a “know-it-all.” Id. at 26. The psychologist also testified that
McIntosh exhibited the same behaviors during the assessment period that he had
exhibited when he committed the criminal offenses.
At the conclusion of the hearing, the district court found the evidence
overwhelmingly proved that McIntosh posed a substantial risk of bodily injury to
others. The district court adopted as findings of fact the contents of the Report and
the psychologist’s testimony in their entirety, meaning the court found that
McIntosh suffered from Narcissistic Personality Disorder with Borderline,
Histrionic, and Antisocial traits. The district court further noted that McIntosh had
a history of demonstrating antisocial behavior, which was characterized by a
pervasive pattern of disregard for and violation of others’ rights. The court also
relied on the fact that McIntosh repeatedly made assertions that he wanted to kill
his father, an ex-girlfriend, FBI agents, and state and federal prosecutors, as well as
that he intended to own firearms and harm multiple people.
As to whether McIntosh was suffering from a mental disease or defect, the
district court found that McIntosh had failed to meet his burden to show that his
11
Case: 16-16442 Date Filed: 08/20/2018 Page: 12 of 19
risk of danger to others was not due to a present mental disease or defect. The
court accepted the diagnosis that McIntosh suffered from a severe personality
disorder resulting in “significant difficulty in functioning within society’s
expectations and impair[ing] his functioning in many areas.” Doc. 206 at 3. The
court found that McIntosh’s personality disorder manifested itself with affective
problems, including inappropriately intense anger, impulsivity, and a pervasive
pattern of disregard for and violation of the rights of others. The court also found
that McIntosh’s personality disorder was severe enough to constitute a mental
disease or defect. In making this finding, the court relied upon a definition of a
mental disease or defect as “any abnormal condition of the mind which
substantially affects mental or emotional processes and substantially impairs
behavior controls.” See McDonald v. United States, 312 F.2d 847, 851 (D.C. Cir.
1962). 4 The district court ordered McIntosh committed pursuant to 18 U.S.C.
§ 4243(e).
II. STANDARD OF REVIEW
Whether a person is suffering from a mental disease or defect under § 4243
presents a question of fact, subject to a clearly erroneous standard of review. See
United States v. Wattleton, 296 F.3d 1184, 1201 n.34 (11th Cir. 2002). “[R]eview
4
The district court noted that “case law consistently indicates that labels applied by
clinicians are not necessarily controlling to determine whether the defendant is suffering from a
mental disease or defect, but rather the determination is a question of fact.” Doc. 206 at 2-3.
12
Case: 16-16442 Date Filed: 08/20/2018 Page: 13 of 19
under the ‘clearly erroneous’ standard is significantly deferential, requiring a
‘definite and firm conviction that a mistake has been committed.’” Concrete Pipe
& Prods. of Cal. v. Const. Laborers Pension Tr., 508 U.S. 602, 623 (1993). If the
district court’s findings are “plausible in light of the record viewed in its entirely,”
we may not reverse the findings simply because we “would have weighed the
evidence differently.” Anderson v. City of Bessemer City, 470 U.S. 564, 574
(1985).
III. THE CIVIL COMMITMENT STATUTORY SCHEME
Before examining the merits of McIntosh’s claim, we pause to provide an
overview of the civil commitment statutory scheme. Under 18 U.S.C. § 4243, a
defendant found not guilty by reason of insanity of a federal crime is committed to
a suitable facility pending a hearing to determine whether he is eligible for release.
Before this “dangerousness” hearing, a court-ordered psychiatric or psychological
examination of the insanity acquittee is performed, and a report based on that
examination is filed with the court. See 18 U.S.C §§ 4243(b), 4247(b)-(c). The
court must hold a hearing within 40 days of the insanity verdict to ensure that the
insanity acquittee’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
13
Case: 16-16442 Date Filed: 08/20/2018 Page: 14 of 19
disease or defect.” 5 Id. § 4243(c), (d). Although the dangerousness hearing is a
civil proceeding, the insanity acquittee has a right to counsel at the hearing. Id.
§ 4247(d). The insanity acquittee must be “afforded an opportunity to testify, to
present evidence, to subpoena witnesses on his behalf, and to confront and cross-
examine witnesses who appear at the hearing.” Id.
The insanity acquittee’s burden of proof at the hearing depends on the nature
of the underlying offense. If he was found not guilty by reason of insanity of an
offense involving bodily injury, serious damage to another’s property, or
substantial risk of such injury or damage, he must prove 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.” Id. § 4243(d). With respect to any other offense, his burden of
proof is a preponderance of the evidence. Id. Here, because at least some of his
underlying offenses involved a substantial risk of bodily injury, McIntosh could be
released only if he proved by clear and convincing evidence that his release would
not create a substantial risk.
If an insanity acquittee fails to meet his burden of proof, the court must
commit him to the custody of the Attorney General of the United States, who
arranges for his care and treatment. See 18 U.S.C. §§ 4243(e), 4247(i). The
5
Although the statute requires the hearing to be held within 40 days of the verdict,
McIntosh consented to extend the assessment period.
14
Case: 16-16442 Date Filed: 08/20/2018 Page: 15 of 19
Attorney General will release the insanity acquittee when he has recovered from
his mental disease to such an extent that his release, or his conditional release
under prescribed care, would no longer create a substantial risk of bodily injury to
another person. See id. at § 4243(f).
IV. DISCUSSION
McIntosh argues that the district court erred in committing him because
there was no evidence that he suffered from a present mental disease or defect. He
contends that his diagnosis of severe Narcissistic Personality Disorder with
Borderline, Histrionic, and Antisocial traits does not qualify as a mental disease or
defect for purpose of § 4243. He supports his argument with statements from the
Report and the psychologist’s testimony that personality disorders are not
“typically” considered mental diseases or defects. McIntosh contends that the
phrase mental disease or defect in the statute must be limited to those diagnoses
that clinicians would classify as mental diseases or defects. We disagree.
Section 4243 does not define the phrase “mental disease or defect.” See
18 U.S.C. § 4243(d). But we are persuaded to adopt the definition established by
the D.C. Circuit in McDonald v. United States, 312 F.2d 847 (D.C. Cir. 1962). In
McDonald, the court defined mental disease or defect as “any abnormal condition
of the mind which substantially affects mental or emotional processes and
substantially impairs behavior controls.” Id. at 851. The court explained that
15
Case: 16-16442 Date Filed: 08/20/2018 Page: 16 of 19
“[w]hat psychiatrists may consider a ‘mental disease or defect’ for clinical
purposes, where their concern is treatment, may or may not be the same as mental
disease or defect for the [court’s] purpose in determining criminal responsibility.”
Id. We agree that the phrase mental disease or defect is a legal term that must be
construed and applied by the district court to the specific facts of each case, rather
than a clinical term to be decided by medical professionals. See also United States
v. Weed, 389 F.3d 1060, 1072-73 (10th Cir. 2004) (holding that the insanity
acquittee qualified under the law as having a mental disease or defect, despite not
meeting clinical criteria for mental illness); United States v. Murdoch, 98 F.3d 472,
478 (9th Cir. 1996) (Wilson, J., concurring) (explaining that a personality defect in
certain circumstances may be “so encompassing and impairing that it rises to the
level of a disease or defect”); United States v. Lyons, 731 F.2d 243, 246 (5th Cir.
1984) (“[W]hat definition of ‘mental disease or defect’ is to be employed by courts
enforcing the criminal law is, in the final analysis, a question of legal, moral and
policy—not of medical—judgment.”).
Consistent with the decisions of our sister circuits, we conclude that a
personality disorder may qualify as a mental disease or defect under § 4243. The
Eighth Circuit has held that a personality disorder can constitute a mental disease
or defect even if medical professionals disagree. In United States v. Bilyk,
949 F.2d 259, 261 (8th Cir. 1991), two of three medical experts determined that the
16
Case: 16-16442 Date Filed: 08/20/2018 Page: 17 of 19
insanity acquittee did not suffer from a mental disease or defect, but all three
agreed that the defendant suffered from a personality disorder. Id. at 260-261. The
Eighth Circuit concluded that from this evidence the district court could find the
defendant suffered from a “mental defect” for purposes of § 4243. Id. at 261. We
agree with Bilyk and other courts that a personality disorder may constitute a
mental disease or defect depending on the severity, symptoms, and resulting
impairment—all of which are factual determinations for the district court. See
United States v. Beatty, 642 F.3d 514, 516 (6th Cir. 2011) (recognizing that
antisocial personality disorder could potentially “form part of the basis for civil
commitment”); United States v. Williams, 299 F.3d 673, 678 (8th Cir. 2002)
(affirming finding that prisoner suffering from a personality disorder was
dangerous due to a mental disease or defect); Murdoch, 98 F.3d at 476 (accepting
that individual with a personality disorder suffered from a mental disease or
defect).
Given the record evidence about the severity and symptoms of McIntosh’s
personality disorder, as well as his resulting impairments, the district court did not
clearly err in finding that he suffered from a mental disease or defect under § 4243.
The risk assessment panel concluded that McIntosh suffered from a severe form of
Narcissistic Personality Disorder with Borderline, Histrionic, and Antisocial traits.
McIntosh also exhibited significant symptoms from his personality disorder that
17
Case: 16-16442 Date Filed: 08/20/2018 Page: 18 of 19
resulted in maladaptive behaviors. The psychologist testified about the serious
symptoms that McIntosh displayed during the four months while he was being
evaluated, including increased impulsivity and inappropriately intense anger that
led to a pervasive pattern of violating the rights of others. The evidence further
showed that McIntosh suffered severe impairments that manifested in his
perceptions of the world, emotional responses, interpersonal functioning, and
impulse control.
The district court also did not clearly err in finding that McIntosh’s
dangerousness was due to his mental disease or defect. The evidence showed that
McIntosh’s personality disorder increased the risk that he would pose a danger to
others. The Report explained that McIntosh’s personality disorder contributed to
his intense anger and instability. And the evidence reflected that McIntosh
continued to pose a threat of harming others as he continued to make repeated
threats throughout the evaluation period, exhibiting the same behavior as when he
committed the criminal offenses. Indeed, McIntosh stated that he was “ten out of
ten” certain that he would harm people. Doc. 215 at 36. And the psychologist
opined that if McIntosh obtained access to those persons, he likely would act on his
homicidal ideations. We thus conclude that the evidence supported that McIntosh
posed a high risk of engaging in future violence due to his severe and pervasive
personality disorder.
18
Case: 16-16442 Date Filed: 08/20/2018 Page: 19 of 19
V. CONCLUSION
McIntosh has failed to demonstrate that the district court clearly erred in
finding he suffered from a mental disease or defect and that his dangerousness was
due to his mental disease or defect. We therefore affirm the district court’s order
of commitment. 6
AFFIRMED.
6
Also pending before the Court is McIntosh’s motion for appointment of new counsel.
That motion is DENIED.
19