USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 95-1898
UNITED STATES,
Appellee,
v.
JOHN LEONARD ECKER, A/K/A LEONARD HOFFECKER,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Robert D. Richman, Assistant Federal Public Defender (Minnesota),
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with whom Scott F. Tilsen, Assistant Federal Public Defender
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(Minnesota), and Owen S. Walker, Federal Public Defender
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(Massachusetts), were on brief for appellant.
Mary Elizabeth Carmody, Assistant United States Attorney, with
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whom Donald K. Stern, United States Attorney, was on brief for
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appellee.
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March 8, 1996
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STAHL, Circuit Judge. Appellant John L. Ecker asks
STAHL, Circuit Judge.
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us to rule that the federal indictment against him must be
dismissed because he has been found incompetent to stand
trial and, having been found dangerous, has been indefinitely
committed to federal custody. The district court denied
Ecker's motion to dismiss the indictment. Ecker appeals.
Because neither the relevant statutes nor caselaw require the
dismissal of the indictment, we affirm.
I.
I.
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BACKGROUND
BACKGROUND
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In November 1989, Ecker was indicted in the
District of Massachusetts for possession of a firearm by a
felon in violation of 18 U.S.C. 922(g). Ecker has prior
convictions for assault with a weapon, arson, breaking and
entering, and burglary, and is therefore subject to the Armed
Career Criminal Act, 18 U.S.C. 924(e); if convicted, he
faces a mandatory minimum prison term of fifteen years.
After federal authorities found that Ecker's mental illness
rendered him incompetent to stand trial and dangerous to the
public, he was committed to the custody of the Attorney
General for hospitalization under 18 U.S.C. 4246. Now
Ecker seeks to dismiss the indictment charging him as a felon
in possession.
A. Ecker's History in Federal Psychiatric Facilities
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Ecker's history in federal psychiatric facilities
is long and twisted; full detail is unnecessary to resolve
the issue before us, so we summarize. From January 1990
through March 1993, federal authorities, pursuant to 18
U.S.C. 4241(d), conducted seven competency evaluations of
Ecker. After five of these, Ecker was found incompetent, and
on two occasions he was found competent. Authorities at one
point reported that Ecker "displayed excellent knowledge of
the federal mental health statutes," and concerns were raised
that his mental health problems were of a questionable
nature. In March 1993, federal authorities concluded
"finally" that Ecker was not competent for trial and that it
was unlikely that he would regain competency in the near
future.
The United States District Court for the District
of Massachusetts, where the indictment was (and is) pending,
determined that there was no likelihood of trial and ordered
the Federal Medical Center in Rochester, Minnesota ("FMC-
Rochester"), to determine if Ecker was dangerous and
therefore subject to indefinite commitment under 18 U.S.C.
4246. The director of FMC-Rochester did find Ecker
dangerous, and the United States Attorney for the District of
Minnesota accordingly instituted commitment proceedings in
the United States District Court for the District of
Minnesota. In October 1993, the Minnesota district court
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ordered Ecker committed to the custody of the Attorney
General under section 4246, and the Court of Appeals for the
Eighth Circuit affirmed. United States v. Ecker, 30 F.3d
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966, 971 (8th Cir.), cert. denied, 115 S. Ct. 679 (1994).
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In October 1994, the staff at the Federal Medical
Center in Springfield, Missouri ("FMC-Springfield"), where
Ecker is currently in custody, filed an annual report of
Ecker's mental condition as required by 18 U.S.C. 4247(e).
The report stated that Ecker was "generally able to answer
the panel's questions in a logical, coherent, and goal-
directed manner." It went on, however, to conclude that "Mr.
Ecker is currently a substantial risk to others or the
property of others due to mental illness." The civil
commitment statute, 18 U.S.C. 4246, requires Federal
authorities to place Ecker in an appropriate state
institution in his home state, Massachusetts, if possible.
Officials at FMC-Springfield, however, determined that
Massachusetts would not accept Ecker in a state institution
because of the pendency of the federal indictment. Thus,
Ecker remains hospitalized at FMC-Springfield.
B. The District Court Order on Ecker's Motion to Dismiss
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In the district court, Ecker advanced two grounds
for dismissal of the indictment. First, he contended that
the statute under which he was committed, 18 U.S.C. 4246,
requires, upon commitment, dismissal of pending charges upon
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commitment. Second, he asserted that the pendency of the
indictment interfered with his purported right to be placed
in a state institution, depriving Ecker of his constitutional
right to due process.
The district court denied Ecker's motion to dismiss
the indictment, holding that the commitment statute did not
require dismissal of the indictment, finding no support for
Ecker's statutory argument in the statute's language, its
legislative history, or in caselaw. The court also rejected
Ecker's due process argument, concluding that "the statute
cannot be fairly read to confer a liberty interest, protected
by the Due Process Clause of the Fifth Amendment of the
United States Constitution, in being committed to a state
institution rather than a `suitable facility' chosen by the
Attorney General."
C. Ecker's Appeal
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Ecker appeals the district court's order denying
his motion to dismiss the indictment, advancing only the
statutory argument that 18 U.S.C. 4241 and 4246 require
dismissal. Ecker has abandoned the argument he made below
that the pendency of the indictment violates his due process
rights. See United States v. Zannino, 895 F.2d 1, 17 (1st
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Cir.) (arguments not raised squarely are waived), cert.
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denied, 494 U.S. 1082 (1990).
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II.
II.
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DISCUSSION
DISCUSSION
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A district court's resolution of a question of
statutory interpretation engenders de novo review in the
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court of appeals. Riva v. Massachusetts, 61 F.3d 1003, 1007
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(1st Cir. 1995).
Ecker, at the outset, concedes that "[n]either 18
U.S.C. 42411 nor 18 U.S.C. 42462 addresses what happens
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1. Section 4241 provides procedures for evaluation of a
defendant's competency to stand trial. If the court finds
the defendant incompetent after an psychiatric examination
and a hearing, the court commits the defendant to the custody
of the Attorney General. The Attorney General then
hospitalizes the defendant for up to four months "to
determine whether there is a substantial probability that in
the foreseeable future he will attain the capacity to permit
the trial to proceed." The Attorney General may also
hospitalize the defendant for an "additional reasonable time"
beyond four months if the court finds a substantial
probability that competency will be regained. If the
defendant remains incompetent at the end of those time
periods, the defendant is subject to commitment for
dangerousness under 18 U.S.C. 4246. If not committed
thereunder, the defendant is released.
Section 4241 makes no reference to the pendency or
dismissal of the indictment.
2. Section 4246 provides for the commitment and
hospitalization of a dangerous person "whose sentence is
about to expire, or who has been committed to the custody of
the Attorney General pursuant to section 4241(d) [i.e., due
to incompetency to stand trial], or against whom all criminal
charges have been dismissed solely for reasons related to the
mental condition of the person." Upon certification of
dangerousness by the director of the hospital facility, the
court conducts a hearing, and shall commit to the custody of
the Attorney General a person "suffering from 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." Such commitment is
of indefinite duration, but the Attorney General must make
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to a pending indictment when a defendant is determined under
section 4241 to be incompetent to stand trial and is subject
to indefinite civil commitment under section 4246."3 That
concession is virtually dispositive of Ecker's appeal --
there is nothing in the statute's language that requires
dismissal of a pending indictment. The statutory silence is
not surprising. Congress, we have little doubt, intended to
leave the decision about the disposition of pending charges
to the case-by-case discretion of the prosecutors.
A. Ecker's Arguments
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Although conceding that the statute is silent,
Ecker argues that the structure of the relevant statutes,
their legislative history, and the caselaw compel the
conclusion that Congress intended to require dismissal of a
pending indictment upon commitment. We disagree, and address
each of Ecker's arguments in turn, explaining why we find
them unpersuasive.
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reasonable efforts place the person in the custody and care
of the state in which the person is domiciled.
Although section 4246 recognizes that criminal
charges may be dismissed because of a person's mental
illness, there is nothing in the language of the statute
requiring such dismissal.
3. Nor do the statutes address the pendency or dismissal of
an indictment of a defendant found long-term incompetent
under section 4241, but not found dangerous under section
4246.
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First, Ecker asserts that section 4246 applies only
to individuals "who no longer realistically can be considered
to be awaiting trial because there is little possibility of
their regaining competency," quoting United States v.
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Charters, 829 F.2d 479, 485 (4th Cir. 1987) (not addressing
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dismissal of indictment), reh'g, 863 F.2d 302 (4th Cir.
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1988), cert. denied, 494 U.S. 1016 (1990). From that
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premise, Ecker concludes that "Congress plainly intended that
the liberty of such a person would be restricted only by the
requirements of section 4246, not as a result of the
continued pendency of an indictment."
That argument is unconvincing. Ecker's liberty is
not restricted by the pendency of the indictment, but rather
by section 4246 (which authorizes his hospitalization). The
only effect that the pending indictment has on Ecker's
"liberty" results from a Massachusetts state policy4 of
refusing to accept mentally ill federal detainees who are
subject to a pending federal indictment. We fail to see how
that state policy, or its effect on Ecker, can indicate that
Congress intended section 4246 to require dismissal of any
pending indictment.
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4. The record and the parties' briefs do not indicate
whether this "policy" is based on statute, regulation, or the
discretion of state officials. The district judge below
assumed, without so finding, that state officials refused to
accept Ecker, but the court based that assumption "on hearsay
and not on competent evidence."
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Ecker's second argument is that there is no
statutory mechanism to revisit the issue of competency once a
defendant is committed as dangerous under section 4246.
While recognizing that section 4247 requires annual reports
on the "mental condition" of a person committed under section
4246, he asserts that such reports address dangerousness and
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not competency to stand trial. That argument finds some
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support in the October 1994 annual report on Ecker, which
concluded that he was still dangerous without addressing his
competency for trial on the pending indictment. Ecker argues
that nothing in this statutory scheme suggests that Congress
envisioned further competency determinations once a defendant
is indefinitely committed as dangerous under section 4246.
This "unexplained gap," he contends, indicates that Congress
must have intended that a pending indictment would be
dismissed once a defendant has been committed for
dangerousness.
We agree that the statute does not expressly
address the reevaluation of trial competency of a defendant
committed as dangerous under section 4246. The statute does,
however, provide for annual reports by the facility director
"concerning the mental condition of the person and containing
recommendations for the need for his continued
hospitalization." 18 U.S.C. 4247(e)(1)(B). This broad
requirement of a report on "mental condition" would seemingly
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allow the facility director to report to the court that a
defendant has regained competency. Moreover, a defendant or
his counsel may bring any relevant change in condition, or a
request for release, to the court's attention through a
motion for a hearing under section 4247(h).
In any event, it is far too great a leap to
conclude from this asserted shortcoming in the statutory
scheme that Congress intended to require the dismissal of a
pending indictment once a defendant has been committed for
dangerousness. Congress could plausibly have expected that a
prosecutor bent on trying a committed person would file a
motion under section 4241 for a new evaluation of
competency.5 On the other hand, the asserted "gap" might be
the result of simple oversight or poor draftsmanship, due in
part, perhaps, to an expectation that prosecutors will
usually exercise their discretion to dismiss indictments
against persons committed under section 4246. An appropriate
judicial response to this statutory shortcoming would be to
order further competency reevaluations if requested by either
the government or a defendant, rather than a judicial
rewriting of the statute to require dismissal of an
indictment that the prosecutor seeks to preserve.
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5. Section 4241 provides in relevant part: "At any time
after the commencement of a prosecution for an offense and
prior to the sentencing of the defendant, the defendant or
the attorney for the Government may file a motion for a
hearing to determine the mental competency of the defendant."
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The third argument advanced by Ecker is more
difficult to decipher than the preceding two. He asserts
that section 4246 was "clearly designed" to deal only with
persons about to be released from the federal criminal
justice system, and therefore Congress must have intended
that charges be dropped when a defendant is committed under
section 4246. Ecker demonstrates this "clear design" by
pointing out that two of the three categories of persons
covered by section 4246 (those whose sentence is about to
expire and those against whom all charges have been dismissed
because of mental illness) are no longer subject to
punishment and would be released but for the provisions of
section 4246. Then Ecker states that "it would be strange,
indeed, to include in the same statute, without explanation
or separate procedures, a group of people still subject to
indictment and trial." It is more plausible, he argues, that
those defendants subject to section 4246 after being found
incompetent under section 4241 "would also be subject to
release due to the dismissal of the charges."
While it is perhaps odd that the statute lacks
express procedures for reevaluating the competency of a
person committed under section 4246, it would be far more
"strange" for Congress to have intended a statutory
requirement that an indictment be dismissed automatically on
commitment, yet never mention that requirement in the
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statute. Again, all that Ecker has done is point to some
ambiguities in certain procedural aspects of section 4246,
and then attempt to bootstrap those ambiguities into an
implied requirement that a pending indictment must be
dismissedwhenever thatstatute isinvoked. We arenot persuaded.
As further support for his third argument (that it
would be "strange" if the statute did not require the
dismissal of an indictment), Ecker directs us to the
statute's legislative history. We are reluctant to take that
direction, because a court "should resort to legislative
history . . . [only] when the words of a statute give rise to
ambiguity or when they lead to an unreasonable
interpretation." United States v. O'Neil, 11 F.3d 292, 297
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(1st Cir. 1993). The words of the statutes at issue here do
neither. In an abundance of caution, however, we have
reviewed the legislative history cited by Ecker and find it
to contain nothing that would lead us to conclude that
Congress intended the statute to require, sub silentio, the
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dismissal of pending charges. See S. Rep. 225, 98th Cong.,
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2d Sess. (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3404-
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36. As the Supreme Court remarked in construing the federal
civil commitment statute that preceded the current section
4246, "this is a case for applying the canon of construction
of the wag who said, when the legislative history is
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doubtful, go to the statute." Greenwood v. United States,
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350 U.S. 366, 374 (1956).
As a fourth argument, and as support for the first
three, Ecker quotes the Eighth Circuit's opinion in his
earlier appeal of his commitment. In rejecting Ecker's
argument that it was unreasonable to hold him for nearly four
years before committing him under section 4246, the Eighth
Circuit stated that: "At all times, Ecker remained subject to
criminal process calling for a mandatory minimum sentence of
fifteen years imprisonment. He remained subject to possible
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trial until the final judicial determination of incompetency
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on April 16, 1993." Ecker, 30 F.3d at 969 (emphasis added).
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The Eighth Circuit, however, was not concerned with the
dismissal or validity of the indictment after Ecker's section
4246 commitment; the issue it faced was the duration of
Ecker's detention for determination of competency under
section 4241, and whether that lengthy confinement was a due
process violation. The Eighth Circuit had no reason to
consider whether the indictment remained valid after Ecker
was committed under section 4246; if the quoted statement
addresses that question at all, it is mere dictum.
Finally Ecker points out that the executive branch
of the federal government is in a "peculiar position" because
section 4246 requires the Attorney General to "make all
reasonable efforts" to place Ecker in a state institution,
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but the United States Attorney in Massachusetts is preventing
that placement by not dropping the indictment. Ecker adds
that "the continued validity of the indictment interferes
with defendant's statutory right to state placement." This
argument invites a number of obvious rejoinders. First, the
government has the discretion to solve the dilemma by
dismissing the charges. Second, the Attorney General is only
required to make "reasonable efforts" to place Ecker in state
care. The Massachusetts policy denying placement of persons
under federal indictment prevents Ecker's placement, and we
would not conclude (nor does Ecker argue) that it is
"unreasonable" not to drop the charges in order to facilitate
placement. Third, while the statute imposes a duty on the
Attorney General to attempt to place Ecker with the state, we
do not conclude that it endows Ecker with a "right" to state
placement.
None of Ecker's statutory arguments persuade us
that Congress intended sections 4241 and 4246 to require sub
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silentio the dismissal of a pending indictment.
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B. Caselaw
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Our conclusion is not altered by our analysis of
the few relevant cases. The district court's order denying
Ecker's motion to dismiss the indictment is consistent with
the Supreme Court's decision in Greenwood v. United States,
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350 U.S. 366 (1956). The Court in Greenwood stated that "the
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pending indictment persists" even after the defendant has
been found unlikely to recover competency and has been
committed as dangerous. Id. at 375.
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Although Greenwood was not decided under the
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current statutory scheme, we believe that the holding is
equally valid under the new scheme. The prior statutes were
strikingly similar to the current ones. The primary
difference relevant to this appeal is that the old scheme
authorized detention of an incompetent indefinitely, "until
the accused shall be mentally competent to stand trial." Law
of Sept. 7, 1949, ch. 535, 4246, 63 Stat. 686 (1949)
(current version at 18 U.S.C. 4246). The present statute
authorizes detention of an incompetent defendant only for
four months, and then for an additional reasonable time if
there is a substantial possibility that he will regain
competency. This limitation on the detention of incompetent
defendants was dictated by Jackson v. Indiana, 406 U.S. 715,
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738 (1972), which struck down Indiana's statute authorizing
indefinite commitment of incompetent defendants who were not
dangerous as violative of due process. See S. Rep. 225, 98th
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Cong., 2d Sess. (1984), reprinted in 1984 U.S.C.C.A.N. 3182,
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3418. Thus, under the new scheme, an incompetent defendant
must be released after four months if recovery is unlikely,
18 U.S.C. 4241(d), or else committed indefinitely if found
dangerous, 18 U.S.C. 4246. We see nothing about the
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statutory changes required by Jackson v. Indiana,6 406 U.S.
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at 738, nor any other change in the statutory scheme, that
casts doubt on Greenwood's holding that the indictment
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survives commitment, 350 U.S. at 375. Nor does the pendency
of the indictment beyond Ecker's commitment offend Jackson's
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mandate that a permanently incompetent defendant must be
released or else civilly committed. See Jackson, 406 U.S. at
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738.
Ecker attempts to advance his cause by misleadingly
quoting a recent Ninth Circuit case: "The fact that an
indictment is no longer in place is irrelevant to the
governmental interests at stake: `the control and treatment
of dangerous persons within the federal criminal justice
system who are incompetent to stand trial.'" United States
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v. Sahhar, 56 F.3d 1026, 1029 (9th Cir.), cert. denied, 116
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S. Ct. 400 (1995). Ecker argues that the governmental
interests in his case, as in Sahhar, are fully vindicated by
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6. The Court stated in Jackson v. Indiana that "[d]ismissal
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of charges against an incompetent accused has usually been
thought to be justified on grounds not squarely presented
here: particularly, the Sixth-Fourteenth Amendment right to a
speedy trial, or the denial of due process inherent in
holding pending criminal charges indefinitely over the head
of one who will never have a chance to prove his innocence."
406 U.S. at 740 (citing as support only one state decision
and two federal district court decisions). The Jackson Court
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did not reach the issue of dismissal of charges, however.
Id. Ecker has not advanced either of these grounds for
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dismissal of his indictment. Moreover, we will not, based
solely on the quoted dictum in Jackson, attribute to Congress
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an unspoken intent to require that a pending indictment be
dismissed.
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section 4246, rendering the indictment irrelevant. But in
Sahhar, the indictment was dismissed before the appellant was
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committed; the issue was whether it was unconstitutional to
commit a person under section 4246 after detaining him for
longer than the maximum term of imprisonment for the crime
charged. Id. at 1028. The Ninth Circuit held that such
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commitment was constitutional given the federal interest in
"control and treatment of dangerous persons within the
federal criminal justice system"; the fact that an indictment
was no longer in place was "irrelevant" to that interest.
Id. at 1029. The district court had erred in "tying the
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continuing validity of appellant's non-punitive section 4246
commitment to the punitive objectives of the original
criminal charge." Id. In other words, once the indictment
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was dismissed, the only remaining government interest was
public safety, not the punishment of the offender. In no way
did Sahhar involve the question whether an indictment must be
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dismissed when a person is committed under section 4246.
Because the prosecutor wishes to keep Ecker's
indictment pending, the government has a continuing punitive
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interest in Ecker. That interest is not addressed by section
4246 commitment, which terminates if Ecker's condition
improves. Ecker's out-of-context quotation of Sahhar is
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disingenuous and does not enlighten.
III.
III.
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CONCLUSION
CONCLUSION
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The relevant statutes are silent as to dismissal of
a pending indictment upon commitment for dangerousness. None
of Ecker's arguments persuade us that Congress intended that
upon commitment under section 4246 any pending indictment
must be dismissed. The district court's order denying
Ecker's motion to dismiss the indictment is affirmed.
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