UNITED STATES v. KELSO (2019)

[Unpublished]

John Donald Kelso appeals the district court's ¹ order committing him to the custody of the Attorney General for hospitalization under 18 U.S.C. § 4246. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

After a hearing, the district court found by clear and convincing evidence that Kelso was suffering from a mental disease or defect such that his release would create a substantial risk of bodily injury to another person or serious damage to the property of another. See 18 U.S.C. § 4246. This court concludes the decision was not clearly erroneous. See United States v. Williams, 299 F.3d 673, 676-78 (8th Cir. 2002) (standard of review).

The commitment order is supported by medical opinions set forth in reports prepared by mental health professionals where Kelso is presently confined for treatment, and by defense counsel's independent psychological examiner. The reports noted that Kelso lacked insight into his medical condition, had a history of irregular medication compliance as well as psychotic and aggressive behaviors, and engaged in antisocial acts when released. These reports conclude there is a clear nexus between Kelso's mental illness and his aggressive behaviors, and that he suffers from a serious mental illness such that he meets the criteria for section 4246 commitment. See United States v. Ecker, 30 F.3d 966, 970 (8th Cir. 1994) (factors in determining potential dangerousness).

This court notes that the Attorney General is under a continuing obligation to exert reasonable efforts to place Kelso in a suitable state facility, and that Kelso's custodians must prepare annual reports concerning his mental condition and the need for continued commitment. See 18 U.S.C. §§ 4246(d) and 4247(e)(1)(B).

The judgment is affirmed. Counsel's motion to withdraw is granted.

FOOTNOTES

1.   The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri, adopting the report and recommendations of the Honorable David P. Rush, United States Magistrate Judge for the Western District of Missouri.

PER CURIAM.