United States v. Commey , 452 F. App'x 21 ( 2011 )

10-3705
United States v. Commey
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 13th day of December, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 JOSÉ A. CABRANES,
9 RICHARD C. WESLEY,
10 Circuit Judges.
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13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 10-3705
17
18 AARON AMARTEI COMMEY,
19 Defendant-Appellant.
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22 FOR APPELLANT: Aaron Amartei Commey, pro se,
23 FMC Devens, Ayer, MA.
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25 FOR APPELLEES: Susan Corkery and Whitman Knapp,
26 Assistant United States
27 Attorneys, for Loretta E. Lynch,
28 United States Attorney, Eastern
29 District of New York, Brooklyn,
30 NY.
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4 Appeal from a judgment of the United States District
5 Court for the Eastern District of New York (Trager, J.).
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7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
8 AND DECREED that the judgment of the district court be
9 AFFIRMED.
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12 Aaron Amartei Commey, pro se, appeals from the district
13 court’s denial of his motions to: (1) release him from civil
14 commitment; (2) vacate his commitment order on the grounds
15 that his due process rights were violated; (3) exclude
16 expert testimony and evidence; and (4) find the government’s
17 expert witness in contempt. We assume the parties’
18 familiarity with the underlying facts, the procedural
19 history, and the issues presented for review.
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21 I. Commitment Determination
22 Whether an individual is mentally ill or dangerous is a
23 question of fact, reviewable for clear error. See United
24 States v. Prescott, 920 F.2d 139, 146 (2d Cir. 1990); see
25 also United States v. Stewart, 452 F.3d 266, 273 (3d Cir.
26 2006) (concluding that all the circuits that have considered
27 the issue have held that orders of commitment are reviewable
28 for clear error).
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30 When, as here, “a person [has been] found not guilty
31 only by reason of insanity of an offense . . . involving a
32 substantial risk of [bodily] injury or [property] damage,
33 [he] has the burden of proving by clear and convincing
34 evidence that his release would not create a substantial
35 risk of bodily injury to another person or serious damage of
36 property of another due to a present mental disease or
37 defect.” 18 U.S.C. § 4243(d). Upon a review of the record
38 and Commey’s arguments on appeal, we conclude that the
39 district court committed no clear error in holding that
40 Commey has not met this burden.
41
42 II. Alleged Due Process Violation
43 The merits of a due process claim are reviewed de novo.
44 See McKithen v. Brown, 626 F.3d 143, 149 (2d Cir. 2010). In
45 arguing that his hearing was unnecessarily delayed, Commey
46 relies on 18 U.S.C. § 4243(f), which mandates that a court
47 hold a hearing when a facility director files a certificate
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1 stating that an acquittee “has recovered from his mental
2 disease or defect to such an extent that his release, or his
3 conditional release . . . , would no longer create a
4 substantial risk of bodily injury . . . or serious damage to
5 property.” However, the facility director never filed such
6 a certificate. The Risk Assessment Panel’s 2005 report
7 stated that staff had begun work on a conditional release
8 plan, but until such a plan was completed and communicated
9 to the court, “Mr. Commey still me[t] criteria for
10 commitment under Title 18 U.S.C. Section 4243.”
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12 Alternatively, Commey argues that in 2006 he moved for
13 a release hearing pursuant to 18 U.S.C. § 4247(h), and that
14 the failure to hold such a hearing until 2009 violated due
15 process. Commey relies on the Speedy Trial Clause of the
16 Sixth Amendment, which is, however, inapplicable to this
17 civil proceeding. Commey’s Fifth Amendment due process
18 argument is defeated by his failure to show that his
19 interests were hurt by any delay. See generally Mathews v.
20 Eldridge, 424 U.S. 319, 335 (1976). The Risk Assessment
21 Panel’s report immediately preceding Commey’s 2006 motion
22 recommended his continued confinement, as did the three
23 reports released between his motion and the hearing.
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25 III. Evidentiary Issues
26 “The admission of expert testimony is committed to the
27 broad discretion of the District Court and will not be
28 disturbed on review unless found to be ‘manifestly
29 erroneous.’” United States v. Wexler, 522 F.3d 194, 204 (2d
30 Cir. 2008) (internal citation omitted). Commey contends
31 that the admission of the Risk Assessment Panel reports and
32 Dr. Shawn Channell’s testimony was erroneous under Federal
33 Rule of Evidence 702 and Daubert v. Merrell Dow
34 Pharmaceuticals, Inc. 509 U.S. 579 (1993). Assuming,
35 arguendo, that the Federal Rules of Evidence apply to
36 Commey’s release hearing, the district court committed no
37 error. See United States v. Palesky, 855 F.2d 34, 36 (1st
38 Cir. 1988) (holding that the Federal Rules of Evidence do
39 not apply to hearings held under 18 U.S.C. § 4243(d)). Rule
40 702 and Daubert do not apply to the 2004, 2005, 2006, 2007,
41 and 2008 Risk Assessment Reports because they were admitted
42 as historical records, not as expert testimony. As to Dr.
43 Channell’s expert testimony, Commey’s objections bear upon
44 its credibility and weight, rather than its admissibility.
45 Whether Commey’s illness had spontaneously remitted so that
46 he was no longer dangerous was a matter of professional
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1 disagreement, upon which the district court had wide
2 latitude in admitting testimony.
3
4 IV. Contempt Ruling
5 Commey challenges the district court’s decision not to
6 hold Dr. Channell in contempt for his initial failure to
7 produce Commey’s entire medical record. “A district court’s
8 decision not to hold a party in contempt is reviewed by an
9 appellate court for abuse of discretion.” Dunn v. N.Y.S.
10 Dep’t of Labor, 47 F.3d 485, 490 (2d Cir. 1995).
11
12 Assuming, arguendo, that the subpoena clearly required
13 Dr. Channell to produce Commey’s entire medical file and
14 that he did not, Dr. Channell explained that he produced all
15 of the records that were in his immediate possession. In
16 any event, Commey was provided with any remaining records
17 before the second hearing date.
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20 Finding no merit in Commey’s remaining arguments, we hereby
21 AFFIRM the judgment of the district court.
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24 FOR THE COURT:
25 Catherine O’Hagan Wolfe, CLERK
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