United States v. Joseph Jason Ambers ( 2010 )


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                  IN THE UNITED STATES COURT OF APPEALS
                                                                         FILED
                           FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                             ________________________ ELEVENTH CIRCUIT
                                                                  JANUARY 6, 2010
                                   No. 09-12413                     JOHN P. LEY
                               Non-Argument Calendar               ACTING CLERK
                             ________________________
    
                         D. C. Docket No. 07-20226-CR-JEM
    
    UNITED STATES OF AMERICA,
    
    
                                                                     Plaintiff-Appellee,
    
                                         versus
    
    JOSEPH JASON AMBERS,
    
                                                                Defendant-Appellant.
    
    
                             ________________________
    
                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________
    
                                  (January 6, 2010)
    
    Before CARNES, MARCUS and ANDERSON, Circuit Judges.
    
    PER CURIAM:
    
         Joseph Jason Ambers appeals the district court’s order revoking his
    conditional release and committing him to a suitable facility for an indeterminate
    
    period pursuant to 18 U.S.C. § 4243(g). Ambers contends that the district court
    
    failed to apply the proper legal standard under § 4243(g) and violated his Fifth
    
    Amendment right to due process when it revoked his conditional release and
    
    committed him indefinitely.
    
                                                I.
    
           A federal grand jury indicted Ambers for possession of a firearm by a felon,
    
    in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), and placing a loaded firearm
    
    on an aircraft, in violation of 49 U.S.C. § 46505(b)(2). After determining that
    
    Ambers was competent to stand trial and accepting his waiver of his right to a jury
    
    trial, the district court conducted a bench trial based on facts stipulated to by the
    
    parties.
    
           Ambers stipulated and agreed to the admission into evidence of a report
    
    written by Dr. David Shapiro, a psychologist, following his examination and
    
    evaluation of Ambers. In that report, Dr. Shapiro stated that Ambers was
    
    “suffering from a severe Affective Disorder.” Dr. Shapiro further stated that
    
    Ambers, “similar to many patients who have severe Affective Disorders, began to
    
    feel better once he was taking his medication and decided, therefore, to go off of
    
    his medication” and that “[w]hen his symptoms started returning, rather than going
    
    
    
                                                2
    back on the medication, he attempted to ‘self-medicate’ [with psychoactive
    
    substances] which, in turn, made him more paranoid and resulted in his [perceived]
    
    need for a weapon to protect himself.” Ambers also stipulated and agreed to the
    
    admission into evidence of a report by Dr. Rodolfo Buigas, another psychologist
    
    who evaluated Ambers. Dr. Buigas stated that Ambers’ mental disorder is
    
    “significantly exacerbated by substance abuse.”
    
          Based on the parties’ stipulations, the district court found Ambers not guilty
    
    only by reason of insanity and ordered him committed pursuant to § 4243(a). In its
    
    December 2007 order committing Ambers, the district court also ordered that a
    
    psychological or psychiatric examination of Ambers be conducted to determine
    
    whether his “release would create a substantial risk of bodily injury to another
    
    person or serious damage of property of another” and that a report based on that
    
    examination be filed with the court pursuant to § 4243(b).
    
           In April 2008, the Federal Medical Center in Butner, North Carolina,
    
    prepared and filed with the district court a Forensic Evaluation Report pursuant to
    
    the district court’s December 2007 order. The Forensic Report concluded that
    
    Ambers’ release “would not create a substantial risk of bodily injury to another
    
    person or [] serious damage to the property of another person.” However, as the
    
    district court noted, the Forensic Report also acknowledged that Ambers suffers
    
    
    
                                              3
    from Bipolar Disorder, that he “has a history of engaging in violent behavior when
    
    he is off his psychotropic medication and self-medicating himself with illegal
    
    substances,” and “that [Ambers] has a ‘pattern of medication non-compliance’ and
    
    of behaving impulsively when untreated.”
    
          The district court then conducted a hearing on Ambers’ possible release
    
    pursuant to § 4243(f). At that hearing, the district court reviewed the Forensic
    
    Report. Ambers did not object to the Report. Following that hearing, the district
    
    court issued an order finding that Ambers’ “release would not pose a substantial
    
    risk of bodily injury to another person or serious damage to the property of another
    
    person, provided that [he] continues to take the psychotropic medications that have
    
    been prescribed for him.” Due to Ambers’ history of medication non-compliance,
    
    the district court also ordered that Ambers’ “release must be conditioned upon a
    
    prescribed regimen of medical, psychiatric or psychological care or treatment.”
    
    The district court then ordered the Federal Medical Center to prepare an
    
    appropriate treatment regimen for Ambers before his conditional release.
    
          The Federal Medical Center created a regimen of conditions to govern
    
    Ambers’ release. Ambers’ regimen included requirements that he “maintain active
    
    participation in a regimen of outpatient mental care as . . . administered by
    
    Compass Health Systems,” that he “abstain from the use of alcohol, illegal narcotic
    
    
    
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    substance[s] or drugs,” and a provision stating that Ambers “may be required to
    
    submit for testing for use of drugs and alcohol at the direction of the United States
    
    Probation Officer.” On June 6, 2008, the district court found “that [Ambers’]
    
    release would not pose a substantial risk of bodily injury to another person or
    
    serious damage to the property of another person under the conditions described in
    
    the FMC’s regimen” and ordered Ambers released subject to those conditions
    
    pursuant to § 4243(f)(2).
    
          In February 2009, the United States Probation Office petitioned the district
    
    court for the issuance of a warrant for Ambers’ arrest. The petition alleged that
    
    Ambers violated the conditions of his release by “failing to participate in an
    
    approved mental health/substance abuse treatment program” and “by failing to
    
    submit to drug testing.” The district court issued the warrant, which was executed
    
    on February 25, 2009.
    
          On April 21, 2009, the district court held a hearing to determine whether
    
    Ambers’ conditional release should be revoked under § 4243(g). At that hearing,
    
    Ambers stipulated that he violated the conditions of his release by failing to attend
    
    two scheduled appointments at Compass Health Services and by failing to submit
    
    to drug testing on two occasions. Ambers’ counsel also admitted that Ambers had
    
    tested positive for cocaine use during his conditional release. No witnesses
    
    
    
                                               5
    testified at the hearing.
    
           Following the hearing, the district court issued an order stating that it “found
    
    [that Ambers] failed to comply with his prescribed regimen of medical, psychiatric,
    
    and psychological care or treatment and that his continued release would create a
    
    substantial risk of bodily injury to another person or serious damage to the
    
    property of another.” Consistent with those findings, the district court revoked
    
    Ambers’ conditional release and ordered him committed to a suitable facility
    
    pursuant to § 4243(g) “until such time as he is eligible for release pursuant to 18
    
    U.S.C. § 4243(e).” Ambers then filed this appeal.
    
                                               II.
    
           Ambers argues that the district court’s revocation of his conditional release
    
    was an erroneous application of the legal standard required by § 4243(g) and a
    
    violation of his rights under the Due Process Clause of the Fifth Amendment.
    
    Although Ambers frames his arguments as based on the application of legal
    
    standards, both of his arguments hinge on his contention that there was insufficient
    
    evidence to support a finding that his continued release would pose a substantial
    
    risk of bodily injury to another person or serious damage to another’s property. He
    
    asserts that at his revocation hearing there was no evidence that he had failed to
    
    take his medication or that his continued release would pose a substantial danger.
    
    
    
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          Whether the district court properly applied the legal standard of § 4243(g)
    
    and the requirements of due process under the Fifth Amendment are legal
    
    questions that we review de novo. See Agan v. Vaughn, 
    119 F.3d 1538
    , 1541
    
    (11th Cir. 1997) (“We review . . . purely legal questions de novo.”). We review a
    
    district court’s finding of dangerousness under § 4243 for clear error. United
    
    States v. Wattleton, 
    296 F.3d 1184
    , 1201 n. 34 (11th Cir. 2002). Under either
    
    standard, the result of this appeal would be the same.
    
          18 U.S.C. § 4243(g) provides in pertinent part that when deciding whether to
    
    revoke an insanity acquittee’s conditional release, a district 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.
    
    The plain language of § 4243(g) requires that a district court make two findings
    
    before revoking an insanity acquittee’s conditional release: (1) the acquittee failed
    
    to comply with his prescribed regimen of care or treatment and (2) his continued
    
    release would create a substantial risk of bodily injury to another person or serious
    
    damage to another’s property.
    
          Ambers stipulated that he did not comply with the conditions of his
    
    prescribed regimen of treatment because he failed to attend two scheduled
    
                                               7
    meetings with his mental health counselors and failed to submit to drug testing on
    
    two occasions. Also, at the revocation hearing, Ambers, through his attorney,
    
    admitted testing positive for cocaine in violation of the conditions of his regimen.
    
    See Laird v. Air Carrier Serv. Inc., 
    263 F.2d 948
    , 953 (5th Cir. 1959) (“When [an
    
    attorney] speaks in Court, whether it be [i]n a formal trial or in an informal pretrial,
    
    he speaks for and as the client.”).1 Because Ambers admits that he failed to
    
    comply with the conditions of his treatment regimen, the only remaining issue is
    
    whether the district court erred in finding that his continued release would create a
    
    substantial risk under § 4243(g).
    
           Unlike subsections (d) and (f) of § 4243, which explicitly place the burden
    
    on the insanity acquittee to prove that his release would not create a substantial
    
    risk, § 4243(g) does not specify whether the government or the acquittee bears the
    
    burden of proof in a hearing on the revocation of an acquittee’s conditional
    
    discharge. We need not decide that issue today because our decision would be the
    
    same whether the burden falls on Ambers or on the government.
    
           Ambers did not present any evidence of his lack of dangerousness at the
    
    revocation hearing. Therefore, if § 4243(g) places the burden on Ambers to
    
    
    
           1
            In Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981) (en banc), we
    adopted as binding precedent all decisions of the former Fifth Circuit handed down before
    October 1, 1981.
    
                                                   8
    demonstrate that “his continued release would [not] create a substantial risk of
    
    bodily injury to another person or serious damage to property of another,” his
    
    arguments fail.
    
           Even if the government bears the burden under § 4243(g) of demonstrating
    
    that Ambers’ continued release would pose a substantial risk, Ambers’ argument
    
    that the district court erred in revoking his conditional release still fails. Before
    
    revoking his conditional release, the district court specifically found that Ambers’
    
    continued release would create a substantial risk of bodily injury to another person
    
    or serious damage to the property of another.2 It did not make that finding in an
    
    evidentiary vacuum.
    
           Ambers stipulated to and does not now challenge the fact that he suffers
    
    from a mental disorder. Ambers stipulated and agreed to the admission into
    
    evidence of Dr. Shapiro’s report, which detailed the way in which Ambers’ failure
    
    to take his medication and his attempts to self-medicate led to his paranoia and
    
    caused him to believe that he needed a firearm to protect himself. Ambers’ also
    
    
    
           2
             Ambers’ reliance on Friend v. United States, 
    388 F.2d 579
     (D.C. Cir. 1967), is
    misplaced. In that case, the D.C. Circuit reversed the district court’s revocation of the
    acquittee’s conditional release because the district court “made no findings as to the appellant’s
    mental condition and dangerousness.” Id. at 325. Ambers admits that he has a mental disorder,
    and the district court explicitly found in its revocation order that his continued release would
    pose a substantial risk. Furthermore, Friend does not bind us in our interpretation of 18 U.S.C. §
    4243, as it was decided by the D.C. Circuit and involved that court’s interpretation of 24 D.C.
    Code § 301(d).
    
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    stipulated to Dr. Buigas’ report, which noted that substance abuse worsens
    
    Ambers’ condition. Also, Ambers did not object to the Forensic Report, which
    
    noted Ambers’ history of medication non-compliance and his propensity for
    
    violence when he is unmedicated and using illegal drugs.
    
          The record shows that Ambers’ mental condition renders him substantially
    
    dangerous when he fails to comply with his mental health treatment regimen and
    
    uses illegal drugs. The district court was aware of that record; the same judge
    
    presided over Ambers’ bench trial, his conditional release hearing, and the hearing
    
    revoking his conditional release. At his revocation hearing, Ambers admitted that
    
    he failed to attend scheduled meetings with his mental health counselors, failed to
    
    submit to drug testing, and tested positive for cocaine during his conditional
    
    release. The conduct comprising those violations makes Ambers’ condition worse
    
    and renders him substantially dangerous. The record therefore contains enough
    
    evidence to support a finding that Ambers’ continued release created a substantial
    
    risk of bodily injury to another or serious damage to another’s property. Because
    
    both Ambers’ § 4243(g) argument and his due process argument rely on his
    
    contention that the record lacked sufficient evidence to support that finding, those
    
    arguments must fail. Accordingly, the judgment of the district court is
    
          AFFIRMED.
    
    
    
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