United States v. Strong ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-10566
Plaintiff-Appellee, D.C. No.
v.  CR-05-01183-1-
KYULLE JAY STRONG, PGR
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding
Argued and Submitted
February 14, 2007—Berkeley, California
Filed June 11, 2007
Before: Betty B. Fletcher, Richard R. Clifton, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Clifton
7097
UNITED STATES v. STRONG 7099
COUNSEL
Jon M. Sand, Federal Public Defender; Craig Orent (argued),
Assistant Federal Public Defender, District of Arizona, Phoe-
nix, Arizona, for the defendant-appellant.
Paul K. Charlton, United States Attorney; John Boyle, Deputy
Appellate Chief; Roger Dokken (argued), Assistant United
States Attorney, District of Arizona, Phoenix, Arizona, for the
plaintiff-appellee.
7100 UNITED STATES v. STRONG
OPINION
CLIFTON, Circuit Judge:
The district court found Defendant-Appellant Kyulle Jay
Strong incompetent to stand trial and committed him to the
custody of the Attorney General for treatment and restoration
pursuant to 18 U.S.C. § 4241(d). Strong appeals the district
court’s commitment order, arguing that § 4241(d) is unconsti-
tutional because it requires mandatory confinement without
giving the district court an opportunity to assess a defendant’s
individualized circumstances. We conclude that § 4241(d)
comports with the Due Process Clause of the Constitution and
affirm the commitment order of the district court.
I. BACKGROUND
On November 9, 2005, a grand jury in the District of Ari-
zona indicted Strong and two co-defendants for assault with
a dangerous weapon in violation of 18 U.S.C. §§ 1153 and
113(a)(3), and assault resulting in serious bodily injury in vio-
lation of 18 U.S.C. §§ 1153 and 113(a)(6).1 Before trial,
Strong filed a motion with the district court for determination
of his mental competency. After reviewing psychiatric reports
submitted by Strong and the government, the district court
concluded that Strong was incompetent to stand trial and
committed him to the custody of the Attorney General for
treatment and restoration pursuant to 18 U.S.C. § 4241(d).2
1
Federal jurisdiction is appropriate because the charged offenses
occurred within the confines of an Indian Reservation.
2
18 U.S.C. § 4241(d) provides, in pertinent part:
If, after [a competency] hearing, the court finds by a preponder-
ance of the evidence that the defendant is presently suffering
from a mental disease or defect rendering him mentally incompe-
tent to the extent that he is unable to understand the nature and
consequences of the proceedings against him or to assist properly
in his defense, the court shall commit the defendant to the cus-
UNITED STATES v. STRONG 7101
Strong argued before the district court that commitment under
§ 4241(d) violated his due process rights, because the statu-
tory provision required mandatory commitment and did not
give the district court an opportunity to assess Strong’s indi-
vidualized circumstances, such as whether Strong is, in fact,
restorable to competency, and whether inpatient treatment is
the least restrictive means to restore him. The district court
rejected Strong’s argument and held § 4241(d) to be constitu-
tional. Accordingly, it ordered Strong transferred to a federal
medical facility in Butner, North Carolina, under the terms of
that statutory provision. Strong timely appealed the district
court’s commitment order, renewing his argument that
§ 4241(d) is unconstitutional.
While awaiting transfer, the district court permitted Strong
to remain at Recovery Homes, a local inpatient facility where
Strong had been residing while receiving drug and alcohol
treatment. When Strong was initially granted pre-trial release,
the district court warned him and defense counsel that
Strong’s release to Recovery Homes would be contingent
upon Strong’s strict adherence to his pre-trial release condi-
tody of the Attorney General. The Attorney General shall hospi-
talize the defendant for treatment in a suitable facility—
(1) for such a reasonable period of time, not to exceed four
months, as is necessary to determine whether there is a sub-
stantial probability that in the foreseeable future he will
attain the capacity to permit the proceedings to go forward;
and
(2) for an additional reasonable period of time until—
(A) his mental condition is so improved that trial may pro-
ceed, if the court finds that there is a substantial probabil-
ity that within such additional period of time he will attain
the capacity to permit the proceedings to go forward; or
(B) the pending charges against him are disposed of
according to law;
whichever is earlier.
7102 UNITED STATES v. STRONG
tions. Specifically, the district court emphasized to defense
counsel:
Mr. Strong will have to sign the release order, but I
want him to do that only, only after you have
reviewed it thoroughly with him, reviewed the nature
of the charges against him, and made sure in your
own mind . . . that he is fully aware of the conse-
quences of his violation of the slightest degree of
anything in this release order.
Because Strong undisputedly had an alcohol and substance
abuse problem, one of the conditions of his pre-trial release
was that he refrain from the consumption of alcohol.
Before this court heard Strong’s appeal of the § 4241(d)
commitment order, Strong violated a condition of his pre-trial
release by consuming a beer. Consequently, he was termi-
nated from the treatment program at Recovery Homes and
brought before the district court for pre-trial release revoca-
tion proceedings. At the revocation hearing, the district court
concluded that Strong’s violation of the pre-trial release con-
dition “represent[ed] the wors[t] type of conduct that the
Court can imagine taking into consideration the nature of the
charges.” It therefore ordered Strong detained as a danger to
the community pursuant to 18 U.S.C. § 3142.3 Before the dis-
trict court issued the detention order, defense counsel urged
the district court not to consider its prior commitment order
in deciding whether or not to detain Strong. Although it is not
entirely clear from the record, it does not appear that the dis-
trict court heeded defense counsel’s request. As will be dis-
cussed in more detail below, when asked specifically by
defense counsel whether its decision to detain Strong was
influenced by Strong’s impending commitment under
§ 4241(d), the district court answered in the affirmative.
3
18 U.S.C. § 3142 sets forth the criteria for determining whether a crim-
inal defendant should be detained or released pending trial.
UNITED STATES v. STRONG 7103
Strong timely appealed the § 3142 detention order, which
this court affirmed. United States v. Strong, No. 06-10609
(9th Cir. Dec. 11, 2006) (unpublished order) (Goodwin, Mc-
Keown, Fisher, JJ.). In light of the detention order, the gov-
ernment filed a motion to dismiss Strong’s § 4241(d) appeal
on mootness grounds. On December 18, 2006, this court
denied the government’s motion without prejudice “to renew-
ing the arguments in the answering brief.” United States v.
Strong, No. 06-10566 (9th Cir. Dec. 18, 2006) (unpublished
order) (McKeown, Fisher, JJ.). The government renewed its
mootness argument in the present appeal.
The issue before us is the validity of the district court’s
September 13, 2006 commitment order. We have jurisdiction
under the “collateral order” doctrine. See United States v.
Friedman, 366 F.3d 975, 978-80 (9th Cir. 2004). We con-
clude that the matter is not moot and affirm the district court’s
order on the merits.
II. MOOTNESS
Mootness is a jurisdictional issue which we address at the
threshold. See Foster v. Carson, 347 F.3d 742, 745 (9th Cir.
2003). The “inexorable command” of the Constitution con-
fines us to deciding only “actual cases and controversies.”
Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1128-29
(9th Cir. 2005) (citing U.S. CONST. art. III, § 2, cl. 1). For a
case to fall within our limited judicial power, “it is not enough
that there may have been a live case or controversy when the
case was decided by the court whose judgment we are review-
ing.” Burke v. Barnes, 479 U.S. 361, 363 (1987). Rather, a
live case or controversy must be “extant at all stages of
review.” Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974).
Otherwise, the case is moot and must be dismissed. See Paul-
son v. City of San Diego, 475 F.3d 1047, 1048 (9th Cir. 2007).
[1] An appeal is moot “when, by virtue of an intervening
event, a court of appeals cannot grant any effectual relief
7104 UNITED STATES v. STRONG
whatever in favor of the appellant.” Calderon v. Moore, 518
U.S. 149, 150 (1996) (per curiam) (internal quotation marks
omitted). The party asserting mootness bears a “heavy burden
of establishing that there is no effective relief remaining for
a court to provide.” GATX/Airlog Co. v. United States Dist.
Court, 192 F.3d 1304, 1306 (9th Cir. 1999). Here, the govern-
ment argues that Strong’s appeal is moot because the district
court’s subsequent detention order foreclosed Strong’s ability
to seek less restrictive means of treatment or restoration under
18 U.S.C. § 4241(d). According to the government, “even if
there were some merits initially to [Strong’s] argument that
the district court should have considered non-custodial alter-
natives to the temporary hospitalization commitment and
study required by 18 U.S.C. § 4241(d), this is not an effective
remedy or alternative for an in-custody defendant.”
We agree with the government’s argument in principle, but
disagree that the argument should be applied in the specific
context of this case. The government has failed to carry its
“heavy burden” of persuading us that, even in the absence of
the § 4241(d) commitment order, the district court would nev-
ertheless have adjudged Strong to be a danger to the commu-
nity and detained him pursuant to § 3142. See GATX/Airlog
Co., 192 F.3d at 1306. While the record below is somewhat
ambiguous, it indicates that the district court relied on the
terms of the commitment order in deciding to take Strong into
custody, perhaps because it believed that § 4241(d) required
confinement in any event. When asked by defense counsel
whether its decision to detain Strong was influenced by
Strong’s impending commitment under § 4241(d), the district
court responded:
Well, yes, the Court did take into consideration the
commitment. And it, in the Court’s mind, justifies
the precise language of the statute that requires a
mandatory commitment to the custody of the attor-
ney general for the obvious reason that you can’t
UNITED STATES v. STRONG 7105
have people who are found by the court to be incom-
petent and have them loose in the society.
[2] If the district court had answered defense counsel’s
question with a “no,” then we could conclude that the com-
mitment order before us now had been overtaken by subse-
quent events, rendering this appeal moot. But that was not the
answer the district court gave when asked the critical ques-
tion. Instead, the court said that its decision to detain Strong
was based, at least in part, on Strong’s impending commit-
ment under § 4241(d). Accordingly, we cannot say with cer-
tainty that the district court might not issue a different order
if we were to remand the matter after holding the mandatory
confinement provision of § 4241(d) to be unconstitutional.
[3] In prior cases, we have held that where the district court
has the statutory discretion to modify a defendant’s term of
supervised release following a successful sentencing chal-
lenge, the possibility that the district court may exercise such
discretion following this court’s decision is sufficient to pre-
vent an appeal from becoming moot. See Mujahid v. Daniels,
413 F.3d 991, 994-95 (9th Cir. 2005) (“The ‘possibility’ that
the sentencing court would use its discretion to reduce a term
of supervised release . . . was enough to prevent the petition
from being moot.”) (internal citation omitted). Here, the dis-
trict court under § 3142 could reopen the hearing on Strong’s
detention order “at any time before trial” if new information
is discovered that has “a material bearing on the issue whether
there are conditions of release that will reasonably assure the
appearance of such person as required and the safety of any
other person and the community.” See 18 U.S.C. § 3142(f).
The district court’s ability to exercise its discretion to reopen
the detention hearing following our decision in this appeal is
sufficient to defeat the government’s mootness argument.
Accordingly, we conclude that Strong’s appeal of the
§ 4241(d) commitment order is not moot.
7106 UNITED STATES v. STRONG
III. THE COMMITMENT ORDER
Strong argues that 18 U.S.C. § 4241(d) violates his liberty
interest under the Due Process Clause to be free from govern-
ment confinement, because the statutory provision “mandates
institutionalization of all incompetent criminal defendants for
restoration without any consideration of the efficacy of such
a commitment or the availability of less restrictive alterna-
tives.”4 See Reno v. Flores, 507 U.S. 292, 346 (1993) (“[T]he
right to be free from Government confinement . . . is the very
essence of the liberty protected by the Due Process Clause.”);
United States v. Salerno, 481 U.S. 739, 755 (1987) (“In our
society liberty is the norm, and detention prior to trial or with-
out trial is the carefully limited exception.”). We review de
novo challenges to the constitutionality of a statute. United
States v. Harris, 185 F.3d 999, 1003 (9th Cir. 1999).
[4] Whether mandatory commitment under § 4241(d) vio-
lates a defendant’s fundamental liberty interest under the Due
Process Clause is an issue of first impression for this court.
We look, first and foremost, to the Supreme Court’s decision
in Jackson v. Indiana, 406 U.S. 715 (1972), and then to the
decisional law of other courts for guidance. Ultimately, we
conclude that § 4241(d) is consistent with defendants’ due
process rights and affirm the district court’s commitment
order.
[5] In Jackson, the Supreme Court reviewed the constitu-
tionality of an Indiana statutory scheme that provided for the
commitment of criminal defendants adjudged to be incompe-
tent to stand trial. See 406 U.S. at 717-18. In holding the pro-
4
In a footnote to his opening brief, and without citation to the relevant
authority, Strong also argues that § 4241(d) violates the Equal Protection
Clause, as well as 29 U.S.C. § 794. “The summary mention of an issue in
a footnote, without reasoning in support of the appellant’s argument, is
insufficient to raise the issue on appeal.” Hilao v. Estate of Marcos, 103
F.3d 767, 778 n.4 (9th Cir. 1996). Pursuant to Hilao, we deem Strong’s
equal protection and § 794 arguments to be waived.
UNITED STATES v. STRONG 7107
vision unconstitutional on due process grounds, the Supreme
Court focused on two factors. First, the Court strongly sug-
gested that the indefinite term of the commitment authorized
under the statute was a key element driving the Court’s deci-
sion to invalidate the statute: “a person charged by a State
with a criminal offense who is committed solely on account
of his incapacity to proceed to trial cannot be held more than
the reasonable period of time necessary to determine whether
there is a substantial probability that he will attain that capac-
ity in the foreseeable future.” Id. at 738 (emphasis added); see
also id. at 733 (“Without a finding of dangerousness, [a
defendant who is deemed incompetent to stand trial] can be
held only for a ‘reasonable period of time’ necessary to deter-
mine whether there is a substantial chance of his attaining the
capacity to stand trial in the foreseeable future.”); id. at 725
(“Were the State’s factual premise that [defendant’s] commit-
ment is only temporary a valid one, this might well be a dif-
ferent case.”).
[6] Second, the Court concluded that the indefinite term of
the commitment prescribed under the statute did not bear a
“reasonable relation” to the purported purpose for which the
commitment was designed — specifically, the purpose of
determining whether a defendant was restorable to compe-
tency. See id. at 738. The Court noted that the challenged stat-
ute did not require the state to provide the committed
defendant with any “formal commitment proceedings
addressed to [his] ability to function in society, or to society’s
interest in his restraint, or to the State’s ability to aid him in
attaining competency through custodial care or compulsory
treatment.” Id. (alteration in original) (internal citation and
quotation marks omitted). Thus, the Court invalidated the
indefinite commitment procedure under the Indiana statute as
a violation of defendants’ due process rights. See id. at 720,
731-39.
Our examination of § 4241(d) convinces us that the statute
before us is fundamentally different from the statutory scheme
7108 UNITED STATES v. STRONG
invalidated in Jackson. In fact, it is significant to note that
§ 4241(d) was enacted in response to the Jackson decision
and echoed Jackson’s language. See, e.g., United States v.
Donofrio, 896 F.2d 1301, 1302 (11th Cir. 1990) (§ 4241(d)
“was passed in response to the Supreme Court decision in
Jackson.”); United States v. Shawar, 865 F.2d 856, 864 (7th
Cir. 1989) (“Congress clearly was aware of the Court’s deci-
sion in Jackson, and echoed its language in § 4241(d).”);
United States v. Filippi, 211 F.3d 649, 652 (1st Cir. 2000)
(“[§ 4241(d)] is self-evidently built upon Jackson.”). We hold
that § 4241(d) comports with Jackson’s constitutional man-
date. We base this conclusion on our analysis of the two fac-
tors articulated by the Jackson Court: (1) the duration of the
defendant’s commitment, and (2) the closeness of the fit
between the commitment and the purpose for which such
commitment is designed.
[7] Unlike the statute at issue in Jackson, the duration of
the commitment authorized under § 4241(d) is inherently lim-
ited. The relevant portion of the statute provides that, upon a
finding of incompetency:
[T]he Court shall commit the defendant to the cus-
tody of the Attorney General . . . [who] shall hospi-
talize the defendant for treatment in a suitable
facility . . . for such a reasonable period of time, not
to exceed four months, as is necessary to determine
whether there is a substantial probability that in the
foreseeable future he will attain the capacity to per-
mit the proceedings to go forward.
18 U.S.C. § 4241(d) (emphasis added). By its own terms,
§ 4241(d) caps a criminal defendant’s initial commitment for
incompetency to a period of no more than four months. Id.
§ 4241(d)(1). The statute also provides a flexible mechanism
through which the defendant could gain early release —
namely, through regaining competency prior to the conclusion
of the four-month period, or through an appropriate medical
UNITED STATES v. STRONG 7109
determination that there is no “substantial probability” that the
defendant could be restored to competency in the “foreseeable
future.” Id. Strong’s counsel readily acknowledged the flexi-
ble nature of § 4241(d) during district court proceedings, not-
ing at one point: “[O]nce [Strong] gets to Butner . . . the staff
there might say within a week that he’s competent or that he’s
not restorable. That’s unlikely, but in theory, and he would be
returned to us. And we would be on the trial track again.”
(emphasis added).
[8] Also contrary to the statutory scheme invalidated in
Jackson, commitment under § 4241(d) bears a “reasonable
relation” to the purpose for which it is designed: determining
whether a criminal defendant is susceptible to timely restora-
tion. See 18 U.S.C. § 4241(d)(1). Strong disagrees, arguing
that no such reasonable relationship exists because § 4241(d)
provides for the commitment of restorable and non-restorable
defendants alike. We reject Strong’s argument as being
grounded on a faulty premise.
As a number of other circuit courts have noted, the overar-
ching purpose of commitment under § 4241(d) is to enable
medical professionals to accurately determine whether a crim-
inal defendant is restorable to mental competency. Such a
determination requires a more “careful and accurate diagno-
sis” than the “brief interviews” and “review of medical
records” that tend to characterize the initial competency pro-
ceeding. See United States v. Ferro, 321 F.3d 756, 762 (8th
Cir. 2003); Filippi, 211 F.3d at 651. In this respect, we find
the Eighth Circuit’s observation in Ferro and the First Cir-
cuit’s observation in Filippi to be particularly instructive.
According to the Eighth Circuit, “the miracles of science sug-
gest that few conditions are truly without the possibility of
improvement. Therefore, even where the medical reports
presented to the district court showed . . . that [defendant’s]
condition was permanent, [§ 4241(d)] appropriately affords
additional time during which the Attorney General may
explore medical options.” Ferro, 321 F.3d at 762. In the same
7110 UNITED STATES v. STRONG
vein, the First Circuit noted in Filippi that even where the
available evidence indicates that a criminal defendant’s men-
tal condition is irreversible, Congress “could reasonably think
that, in almost all cases, temporary incarceration would permit
a more careful and accurate diagnosis before the court is faced
with the serious decision whether to defer trial indefinitely
and (quite often) to release the defendant back into society.”
Filippi, 211 F.3d at 651. Because Strong’s argument pre-
sumes an answer to the precise question to be determined
through § 4241(d) commitment — namely, the question of
whether a defendant is, in fact, restorable to mental compe-
tency — we are not persuaded by his argument.
Strong also argues that the Supreme Court’s decision in
Demore v. Kim, 538 U.S. 510 (2003), supports his due pro-
cess challenge, arguing that the “clear import” of that decision
is that “a statute mandating detention of an entire category of
citizens,” as opposed to aliens, is unconstitutional. In that
case, the Supreme Court upheld a statute that mandated the
detention of all deportable aliens convicted of aggravated fel-
onies pending their removal proceedings. See id. at 517-18.
The decision actually supports our conclusion that § 4241(d)
is constitutional. In Demore, the Court distinguished the stat-
ute at issue from a statute it had invalidated in a prior case,
noting that the statute in Demore was constitutionally sound
because: (1) it provided for detention of a limited duration,
and (2) the detention “b[ore] a reasonable relation to the pur-
pose for which the individual was committed.” See id. at 527-
29 (distinguishing Zadvydas v. Davis, 533 U.S. 678 (2001)).
Commitment under § 4241(d) is both limited in duration and
reasonably related to the purpose for which the defendant is
confined. It is, therefore, in accord with the constitutional
framework set forth in Demore.
IV. CONCLUSION
[9] Three other circuits have considered the issue of
whether § 4241(d) is consistent with the Due Process Clause
UNITED STATES v. STRONG 7111
and have uniformly answered this question in the affirmative.
See Filippi, 211 F.3d at 651-52; Donofrio, 896 F.2d at 1303;
Shawar, 865 F.2d at 864. We join them and affirm the order
of the district court committing Strong to the custody of the
Attorney General under the terms of that statutory provision.
AFFIRMED.