United States v. Gary Debenedetto , 618 F. App'x 751 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7665
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
GARY DEBENEDETTO,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:14-hc-02172-BR)
Submitted: July 24, 2015 Decided: August 18, 2015
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Robert E. Waters,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Jennifer D. Dannels, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Debenedetto appeals the district court’s order
committing him to the custody of the Attorney General in
accordance with 18 U.S.C. § 4246(d) (2012). We affirm.
A person may be committed under § 4246 if, after a hearing,
the district court “finds by clear and convincing evidence that
the person is presently suffering from a mental disease or
defect as a result of which his release would create a
substantial risk of bodily injury to another person or serious
damage to property of another.” 18 U.S.C. § 4246(d). The
district court’s finding that the Government has established
dangerousness under § 4246 by clear and convincing evidence will
not be overturned on appeal unless it is clearly erroneous.
United States v. LeClair, 338 F.3d 882, 885 (8th Cir. 2003);
United States v. Cox, 964 F.2d 1431, 1433 (4th Cir. 1992).
Dr. Robert Lucking—a staff psychiatrist at the Federal
Medical Center in Butner, North Carolina (“FMC Butner”)—issued a
report concluding that Debenedetto suffers from schizoaffective
disorder and antisocial personality disorder and that his mental
illness is such that his release would pose a substantial risk
of bodily injury to another person or serious damage to the
property of another. This opinion was based on the following:
Debenedetto’s past history of violence—which encompassed his
“substantial history and well established pattern” of both
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verbal and physical aggression directed against other
individuals; his mental illness and the combination of that
illness and his alcohol use, factors the report described as
resulting in a “substantial increased risk for
dangerous/aggressive behavior”; his lack of insight into his
mental illness and refusal of treatment; his history of offenses
involving firearms and other weapons; his lack of “significant
social support” and “meaningful social relationships with
others”; his “poor adjustment” to the institutions to which he
had been committed; and his scores on violence assessment
instruments.
Independent evaluator Dr. Katayoun Tabrizi issued a report
concluding that Debenedetto suffers from schizoaffective
disorder and adult antisocial behavior and had several risk
factors associated with an increased risk of future violence,
namely: the nature of his untreated mental illness; his history
of aggressive and violent behavior; his lack of social support
and financial stability, and his unemployment; his lack of
insight into his mental illness and the need for treatment; and
evidence of “excessive” alcohol use. In view of these factors,
Dr. Tabrizi opined that Debenedetto was suffering from a mental
disease as a result of which his release into the community
would create a substantial risk of bodily injury to another
person or serious damage to the property of another.
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At a hearing, Dr. Lucking testified as an expert in
forensic psychiatry. Consistent with his report, Dr. Lucking
testified that Debenedetto was then not receiving treatment for
his disorders based on his refusal of treatment, did not believe
he had a mental disorder, had an extensive criminal history, and
had been disruptive, verbally threatening, and physically
assaultive while housed in institutions within the Federal
Bureau of Prisons. Dr. Lucking testified further that both he
and a risk assessment panel who evaluated Debenedetto concurred
in the opinion that Debenedetto’s release into the community
would pose a substantial risk of bodily injury to another and
destruction to the property of another, and he summarized the
factors considered in reaching that opinion. Based on this
testimony and the forensic reports generated by Dr. Lucking and
Dr. Tabrizi, the district court found by clear and convincing
evidence that Debenedetto satisfied the criteria for commitment
under § 4246(d).
Debenedetto argues on appeal that his substantial
dangerousness was not established by clear and convincing
evidence because he had never physically assaulted officers
while at FMC Butner and because his underlying federal charges
did not involve “any physical assaults or violent behavior.” We
reject this argument. As Debenedetto acknowledges, overt acts
of violence are not required to prove substantial dangerousness
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in a § 4246(d) case. United States v. Williams, 299 F.3d 673,
677 (8th Cir. 2002). Further, Debenedetto ignores information
in both Dr. Lucking’s and Dr. Tabrizi’s reports and Dr.
Lucking’s hearing testimony that Debenedetto made violent
threats and engaged in physically aggressive behavior connected
to his mental illness.
We also reject Debenedetto’s remaining arguments. Even if
Debenedetto had not experienced auditory hallucinations and was
not experiencing paranoia or persecutory or delusional beliefs
at the time of the hearing, the district court was entitled to
consider his risk of dangerousness in light of his entire
symptom profile, not just its most recent manifestation at the
time of the commitment hearing. See id. Additionally, even if
Debenedetto is intelligent and has a valid fear about allergies
to antipsychotic medications, it is plain from the record that
he suffers from psychotic mental illness with symptoms directly
connected to aggressive behavior and a substantial risk of
bodily injury or serious damage to the property of another.
Further, even if Dr. Lucking’s report is not a “crystal ball” of
future behavior as Debenedetto claims, a finding of substantial
risk under § 4246 “may be based on any activity that evinces a
genuine possibility of future harm to persons or property.”
United States v. Sahhar, 917 F.2d 1197, 1207 (9th Cir. 1990).
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Based on the entirety of Debenedetto’s behavioral,
psychiatric, and symptom profile, the district court did not
clearly err in its determination that Debenedetto suffers from a
mental disease as a result of which his release would create a
substantial risk of bodily injury to another or serious damage
to the property of another.
Accordingly, we affirm the district court’s order.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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