UNITED STATES OF AMERICA v. GARY CURBOW
No. 20-7797
United States Court of Appeals, Fourth Circuit
October 19, 2021
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:19-hc-02218-BR)
Argued: May 6, 2021
Decided: October 19, 2021
Before KING and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by published opinion. Judge King wrote the opinion, in which Judge Thacker and Senior Judge Traxler joined. Judge Thacker wrote a concurring opinion. Senior Judge Traxler wrote a concurring opinion.
ARGUED: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Genna Danelle Petre, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. G. Norman Acker, III, Acting United States
After shooting at military helicopters flying over his Mississippi farm, respondent Gary Curbow was charged in the Northern District of Mississippi with committing a federal criminal offense. The Mississippi district court deemed Curbow to be mentally incompetent to stand trial and temporarily placed him in the custody of the Attorney General for further evaluation of his mental condition. Staff members at the Federal Medical Center at Butner, North Carolina (“FMC Butner“), eventually concluded that Curbow was unlikely to be restored to competency in the foreseeable future and that his mental condition rendered him dangerous to others. The Government then filed a certificate in the Eastern District of North Carolina — as the district where FMC Butner is located — attesting that Curbow was a dangerous person who should be civilly committed. Following an evidentiary hearing, the North Carolina district court agreed and ordered Curbow‘s civil commitment.
In this appeal from the judgment of the North Carolina court, Curbow does not dispute that there was ample evidence before the court of his dangerousness. Rather, Curbow principally argues that he was ineligible for civil commitment under this Court‘s recent decision in United States v. Wayda, 966 F.3d 294 (4th Cir. 2020), because the Attorney General no longer had legal custody of him at the time of his dangerousness certification. As explained herein, we reject that argument for being without merit in part and waived in other part. We also reject Curbow‘s additional grounds for challenging his civil commitment. Consequently, we affirm the North Carolina court‘s judgment.
A.
As we did in our Wayda decision, we begin with a discussion of the governing statutory framework, which encompasses
1.
Following the hearing, if “the court finds by a preponderance of the evidence that the defendant is [mentally incompetent to stand trial], the court shall commit the defendant to the custody of the Attorney General.” See
- 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 [the defendant] will attain the capacity to permit the proceedings to go forward; and
- for an additional reasonable period of time until
- his mental condition is so improved that trial may proceed, if the court finds that there is a substantial probability that within such additional period of time he will attain the capacity to permit the proceedings to go forward; or
- the pending charges against him are disposed of according to law;
Finally, “[i]f, at the end of the time period specified, it is determined that the defendant‘s mental condition has not so improved as to permit the proceedings to go forward, the defendant is subject to the provisions of sections 4246 and 4248.” See
2.
a.
To civilly commit a person pursuant to
Once the facility director has certified that a hospitalized person is dangerous, the certificate must be transmitted “to the clerk of the court for the district in which the person is confined.” See
b.
Meanwhile,
Somewhat different from
Similar to
B.
We next provide an overview of our Wayda decision, wherein respondent Sean Michael Wayda was a criminal defendant in the District of Maryland who was charged with multiple federal sex offenses. See Wayda, 966 F.3d at 298-99. On the Government‘s motion, the Maryland district court ordered an evaluation under
Six months passed with no report on Wayda‘s restorability, prompting the Maryland court to prod the parties and eventually conduct a second competency hearing, now at Wayda‘s request. See Wayda, 966 F.3d at 299. Following the second hearing, the court determined that Wayda remained incompetent but that there was a substantial probability he would be restored to competency in the foreseeable future. Id. Consequently, the court ordered Wayda‘s continued hospitalization for another “reasonable period of time, not to exceed four months.” Id. The court apparently intended the additional period of hospitalization to be in accordance with
Ten more months passed, and Wayda was then afforded a third set of competency hearings. See Wayda, 966 F.3d at 299. Five months later, the Maryland court entered a written order memorializing the court‘s rulings that Wayda remained mentally incompetent to stand trial and that there was not a substantial probability that he could be restored to competency in the foreseeable future. Id. at 299-300. Within the next week, the court ordered that Wayda be committed to the custody of the Attorney General to ascertain whether he should be civilly committed as a dangerous person under
The North Carolina district court focused on the only circumstance in which Wayda was arguably eligible under
Having calculated that more than two years passed between the expiration of the first period and the filing of the
In the Government‘s appeal, we agreed with the North Carolina court that — where, as in Wayda‘s case,
Nevertheless, we identified a different, third period that was “the crucial window of time for our analysis” of whether Wayda‘s
Our review of the record led us to conclude that Wayda‘s “ongoing hospitalization went beyond ‘an additional reasonable period of time‘” and therefore “the § 4248 certificate was not properly submitted for a person committed to the custody of the Attorney General pursuant to section 4241(d).” See Wayda, 966 F.3d at 306 (quoting
[w]hen the government has in its custody an individual whose incapacity renders him unable to stand trial and therefore eventually subject either to possible release or civil commitment, we expect the government to “strive to certify” individuals in a time frame that eliminates or at least minimizes the time spent as an incompetent, unrestorable person waiting for [a § 4246 or] a § 4248 determination.
Id. at 308 (quoting United States v. Timms, 664 F.3d 436, 453 n.14 (4th Cir. 2012)). We further explained that the time period “should not be so short as to not accord the government reasonable time to seek and file certification of a person pursuant to §§ 4246 or 4248, but it should only be so long as to allow for reasonable explainable administrative delays in that certification process.” Id.
In those circumstances, we affirmed the judgment of the North Carolina court, dismissing the
C.
We turn to a fuller recitation of the factual and procedural history of the proceedings involving Curbow, starting with those in Mississippi.
In February 2018, a criminal complaint was lodged against Curbow in the Northern District of Mississippi for attempting to damage or destroy an aircraft operating in the special aircraft jurisdiction of the United States, in contravention of
According to the supporting affidavit of an FBI agent who interviewed Curbow, military helicopters had recently been flying low over Curbow‘s farm and Curbow had “shot at the helicopters on at least five occasions, using a 12-gauge automatic Remington shotgun.” See United States v. Curbow, No. 3:18-mj-00014, at 2 (N.D. Miss. Feb. 27, 2018), ECF No. 1-1. Curbow claimed that the helicopters had killed some of his “livestock by shooting them with lasers which [had] also temporarily blinded [Curbow].” Id. Additionally, Curbow asserted that the Army had “used a satellite hookup to send signals to choke [him] while he was eating and ... dropped methamphetamine on his property.” Id. Curbow told the FBI agent that he “shot at the helicopters because he has the right to ‘protect his property and wildlife.‘” Id. Curbow previously told a sheriff‘s deputy responding to a report of Curbow shooting at helicopters that “if y‘all do not want me shooting, you should make the helicopters quit dropping drugs at my house.” Id. at 1 (also relaying Curbow‘s allegation to the deputy that “one helicopter had tried to fly into the window of his pick-up truck“). One of Curbow‘s neighbors advised the same deputy that “every time a helicopter flies over their properties, [Curbow] shoots at it at least three
2.
After the criminal complaint was lodged against Curbow, the Mississippi court appointed the Federal Public Defender for the Northern District of Mississippi to represent him. The court also entered four orders under which Curbow was placed in the Attorney General‘s custody for evaluations of his mental competency, restorability, and dangerousness. Those orders were sealed in the Mississippi proceedings, and none of the orders were provided to the North Carolina court and made part of the North Carolina record. As such, we have gleaned the orders’ contents from the public portions of the Mississippi court‘s docket, the North Carolina court‘s description of the orders based on counsel‘s representations to that court, other materials in the North Carolina record, and counsel‘s representations to us. Significantly, there is no indication that Curbow raised any objection in the Mississippi court to any of the orders, including any challenge to the court‘s continuing authority to enter the orders or the duration of his custodial hospitalization.
a.
On March 1, 2018, on the joint motion of Curbow and the Government, the Mississippi court ordered an evaluation of Curbow‘s mental competency to stand trial,
b.
Following the July 26, 2018 hearing, by an order entered that same day, the Mississippi court ruled that Curbow was mentally incompetent to stand trial. Pursuant to
On August 22, 2018, Curbow was readmitted to FMC Butner for the court-ordered evaluation. FMC Butner‘s warden wrote to the Mississippi court on August 28, 2018, advising that Curbow was in custody at FMC Butner and that the facility‘s staff members “calculated the [§ 4241(d)(1)] evaluation period to end December 19, 2018,” i.e., 120 days after Curbow‘s admission. See J.A. 66.2 The warden stated that his staff would “attempt
The FMC Butner evaluators issued their report on December 19, 2018. The report reflects that the evaluators diagnosed Curbow with schizophrenia and opined that he required further treatment to be restored to competency. The report did not discuss Curbow‘s dangerousness. The report was filed with the Mississippi court on January 11, 2019.
c.
By order of January 24, 2019, the Mississippi court found that Curbow remained mentally incompetent to stand trial but that there was a substantial probability he would be restored to competency in the foreseeable future. Invoking
About four months and two weeks later, on June 6, 2019, the FMC Butner evaluators reported to the Mississippi court that Curbow was yet mentally incompetent to stand trial and that it now appeared he was not likely to be restored to competency in the foreseeable future. The evaluators requested 30 more days to assess Curbow and sought clarification as to the focus of their evaluation.
d.
That same day, June 6, 2019, the Mississippi court entered an order, apparently under
The resulting report is dated July 5, 2019, and was signed on July 12, 2019. Therein, the report‘s signatory — a forensic psychologist who served as one of the evaluators — reiterated the view that Curbow remained mentally incompetent to stand trial and that there was not a substantial likelihood he would be restored to competency in the foreseeable future. With respect to Curbow‘s dangerousness, the signatory opined that Curbow satisfied the definition of a dangerous person in
FMC Butner‘s warden adopted that recommendation and on July 17, 2019, completed the
We now discuss Curbow‘s civil commitment proceedings in North Carolina, from which this appeal was taken.
1.
The Government‘s filing of the
On February 5, 2020, Curbow filed a motion to dismiss the
Five days after Curbow filed his motion to dismiss, on February 10, 2020, the Government requested the North Carolina court to place Curbow‘s proceedings in abeyance until resolution of the appeal in Wayda. The court granted the Government‘s motion over Curbow‘s objection. We rendered our Wayda decision on July 27, 2020, and
2.
By its order of September 28, 2020, the North Carolina court denied Curbow‘s motion to dismiss the
a.
Consistent with the governing statutory framework, the North Carolina court recognized in its Denial Order that there are three circumstances in which a person is subject to
The North Carolina court accepted that there were three periods in which Curbow was in custody under
b.
With guidance from our Wayda decision, the North Carolina court examined whether the third period of Curbow‘s
Regarding the reasonableness of the 49-day gap between Curbow‘s June 6, 2019 unrestorability determination and the July 25, 2019 filing of his
The Government proffered that the July 5, 2019 report was provided to FMC Butner‘s warden following its completion and that the warden then “reviewed the documentation and confirmed with FMC Butner Social Work staff that no suitable state placement was available for [Curbow].” See J.A. 45. The Government emphasized that the warden was obliged to “thoughtfully consider all the factors at hand to determine whether [Curbow] should be [civilly] committed” — a decision that in all cases “requires thorough and attentive review of the record at hand.” Id. at 57. The Government elaborated that the warden must be particularly concerned with public safety and accorded sufficient time to “take into account the threat potentially posed to the community.” Id. (quoting Wayda, 966 F.3d at 307, wherein we recognized that because a “central motivating factor[] behind”
As the Government explained, after reviewing the record and concluding that Curbow was a dangerous person who should be civilly committed, FMC Butner‘s warden proceeded to sign Curbow‘s
(2)
In reply to the Government, Curbow argued, inter alia, that it was unreasonable for the Government to request “an additional 30 days to consider dangerousness” upon his June 6, 2019 unrestorability determination. See J.A. 72. Curbow further contended that “[t]he continued delay from the time of [the July 5, 2019] report to the July 25, 2019 filing of [the §] 4246 certificate [was] unreasonable, particularly in light of the previous sixteen plus months [he] spent in government custody.” Id. at 73.
On the evidence before it, however, the North Carolina court concluded in its Denial Order that the 49-day duration of that period of custody — from the unrestorability determination to the
According to the North Carolina court, the evidence reflected that “the government did strive to certify [Curbow] in a manner that minimized the delay between [the June 6, 2019 unrestorability determination and the July 25, 2019] certificate filing.” See Denial Order 10. The court specified that “[t]he time period elapsed in this case allowed for administrative delays and was reasonable under these facts.” Id. In rendering that ruling, the court relied on Wayda for the proposition that “[t]he reasonable period of time allowed ‘should not be so short as to not accord the government reasonable time to seek and file certification of a person.‘” Id. at 9 (quoting Wayda, 966 F.3d at 308). The court also invoked Wayda‘s guidance that the “time period may include ‘reasonable explainable administrative delays in [the] certification process,’ but the government must ‘strive to certify individuals in a time frame that eliminates or at least minimizes the time spent as an incompetent, unrestorable person waiting for a [
Notably, the North Carolina court recognized that if the dangerousness component of the evaluation had approached unreasonable lengths, the Government could have been obliged to proceed with the
c.
The North Carolina court separately assessed in its Denial Order whether Curbow was ineligible for
Although Curbow acknowledged that Wayda “simply did not need to reach [the effect of the delays in the first two periods of Wayda‘s
Curbow specified that his first period of custody exceeded the four-month window explicitly allowed by the statute and that the second violated the Mississippi court‘s chosen four-month deadline. According to Curbow, the first period began on July 26, 2018, when the Mississippi court ruled him mentally incompetent to stand trial and ordered a restorability evaluation; his
As an initial matter, the North Carolina court expressed skepticism that Curbow had correctly calculated the duration of the first period under
In any event, the North Carolina court determined that — if the first and second periods of
* * *
In sum, the North Carolina court concluded that — because none of Curbow‘s three periods of
3.
Having denied Curbow‘s efforts to secure a dismissal of the
At the hearing‘s conclusion, the North Carolina court found “by clear and convincing evidence[] that [Curbow] suffers 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 the property of another.” See J.A. 152 (tracking language of
The North Carolina court entered its written order of Curbow‘s civil commitment that very day. See United States v. Curbow, No. 5:19-hc-02218 (E.D.N.C. Nov. 23, 2020), ECF No. 30 (the “Commitment Order“). The Commitment Order stated in full:
Id. at 1.
On 23 November 2020, this court held a hearing to determine if the respondent should be committed to the custody and care of the Attorney General pursuant to
18 U.S.C. § 4246 . For the reasons stated in open court, the court finds, by clear and convincing evidence, that the respondent 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 the property of another and that suitable arrangements for State custody and care of the person are not available. It is hereby ORDERED that the respondent be committed to the custody and care of the Attorney General pursuant to18 U.S.C. § 4246 .
Following entry of the Commitment Order, Curbow noted this appeal. We possess jurisdiction pursuant to
II.
On appeal, Curbow does not contest the sufficiency of the evidence of his dangerousness. Rather, Curbow‘s main appellate argument is that he was ineligible for dangerousness certification and the resultant civil commitment under our Wayda decision. See 966 F.3d 294 (4th Cir. 2020). Curbow raises multiple theories as to why he was not in the legal custody of the Attorney General under
Relevant to our analysis, Curbow specifically contends that the North Carolina court erred in focusing on the third period of purported
In response to those contentions, the Government defends the North Carolina court‘s assessment of the third period of custody, as well as the court‘s rejection of Curbow‘s theory regarding delays in the first two periods of custody. The Government also suggests that, in any event, Curbow waived the theory regarding the first two periods by failing to object in the Mississippi court to the alleged delays. As for whether
Our analysis proceeds as follows. First, we conclude that the North Carolina court did not err in its assessment of Curbow‘s third period of
A.
We first address whether the North Carolina court erred in its Denial Order by focusing on Curbow‘s third period of
1.
As heretofore explained, the 49-day period at issue began with the FMC Butner evaluators’ unrestorability determination and the Mississippi district court‘s contemporaneous order of June 6, 2019, granting 30 days to further evaluate Curbow. At that point, Curbow had been continuously confined at FMC Butner since August 22, 2018. Under the evidence before the North Carolina court, the Mississippi court had previously called for an assessment of Curbow‘s dangerousness under
The record reflects that the FMC Butner evaluators understood that, pursuant to the June 6, 2019 order, they were to assess both Curbow‘s restorability and dangerousness. The evaluators notified the Mississippi court of their intent to submit their report “within 14 business days of the study end date to allow for internal review and routing procedures.”
In addition to recognizing that the FMC Butner evaluators complied with the Mississippi court‘s 30-day deadline by completing their report within 30 days of the June 6, 2019 order, the North Carolina court found that it was not unreasonable that it took another 20 days for FMC Butner‘s warden and the United States Attorney to review the report and prepare and file the
2.
Curbow asserts in this appeal that the North Carolina court‘s reasonableness determination was clearly erroneous and that the court‘s related analysis was legally unsound in several ways.
a.
For one, Curbow contends that the North Carolina court erred in focusing on the 49-day period between his June 6, 2019 unrestorability determination and the July 25, 2019 filing of his
Curbow‘s entire-period-of-custody contention is based on a misinterpretation of one sentence of Wayda. There, we recognized that the crucial period of custody was the six-month period between Wayda‘s unrestorability determination and the filing of his
Under Curbow‘s reading of that sentence, we held that the proper subject of the reasonableness inquiry was Wayda‘s entire period of custody. But we did not so hold. Rather, we kept our focus on the six-month period that we identified as crucial, and we simply observed that the fact that Wayda had already been in the Government‘s custody for two years when the six-month period began raised further unanswered questions about why it took six more months to evaluate Wayda for sexual dangerousness and file his
Therefore, the North Carolina court correctly focused on the 49-day period between his June 6, 2019 unrestorability determination and the July 25, 2019 filing of his
b.
Relatedly, Curbow argues that the North Carolina court should have ruled that the Government — because it could have done so — was obliged to conduct his dangerousness evaluation well before his unrestorability determination. According to Curbow, the Government possessed all the information needed to satisfy the minimal requirements for filing a
The problem for Curbow is that the North Carolina court did not say that a dangerousness evaluation must be conducted prior to an unrestorability determination whenever possible. Nor is there other precedent or statutory authority for that proposition. The North Carolina court simply recognized that, because it may not be feasible to timely complete a dangerousness evaluation following an unrestorability determination, it may be prudent for the Government to conduct the dangerousness evaluation sooner. Moreover, precedent and the governing statutory framework require the Government to act with reasonable speed, and not in the quickest possible manner. See Wayda, 966 F.3d at 308 (explaining that “reasonable explainable administrative delays in [the] certification process” are allowed). The North Carolina court‘s reasonableness determination is properly premised on that standard.7
Finally, Curbow asserts that the North Carolina court‘s “determination that the time period was reasonable does not bear scrutiny.” See Br. of Appellant 31. Curbow specifically complains that the court accepted the Government‘s evidence of the administrative steps it took from the unrestorability determination to the filing of the
We also confirm that we detect no clear error in the North Carolina court‘s reasonableness determination. Unlike the situation in Wayda, the Government has detailed its activities between Curbow‘s unrestorability determination and the filing of his
Furthermore, the North Carolina court was entitled to accept that the Government took a reasonable amount of time to be deliberate and ensure that it was evaluating Curbow‘s dangerousness accurately — particularly considering his alleged criminal conduct and use of firearms. See Wayda, 966 F.3d at 307 (recognizing that the “‘reasonable’ amount of time a person may be further hospitalized after incompetency and unrestorability findings must . . . take into account the threat potentially posed to the community“). In these circumstances, we are satisfied to uphold the court‘s reasonableness determination.
B.
We next address whether the North Carolina court erred in its Denial Order by rejecting Curbow‘s theory that his legal custody expired before the third period of
1.
Curbow suggests, as he did in the North Carolina court, that our Wayda decision established a test under which an unreasonable delay in any period of
Curbow continues to insist that his first period of
As Curbow expounds on appeal concerning the alleged first-period lapse, “[t]o maintain legal custody beyond November 26, 2018, the government had to either initiate civil commitment proceedings or obtain a timely finding by the court under
Curbow further contends that, even if there was no first-period lapse, there was a lapse in the second period of
In response, the Government disputes the merits of Curbow‘s theory regarding unreasonable delays in the first two periods of
2.
a.
At the outset, we emphasize that we do not interpret our Wayda decision to establish the unreasonable-delay standard advocated by Curbow, i.e., a standard that would
To now accept Curbow‘s theory that an unreasonable delay in his first period of
b.
As an example of how Curbow could have sought to preserve objections to the alleged unreasonable delays, he could have requested release in the Mississippi court from his first- or second-period confinement, or he could have raised a challenge in that court to the court‘s authority to order the second period based on the first-period lapse or the third period based on the second-period lapse. If unsuccessful, he could have invoked the collateral order doctrine and filed an appeal in the appropriate court of appeals, the Fifth Circuit. See United States v. Magassouba, 544 F.3d 387, 391-92 (2d Cir. 2008) (entertaining appeal under collateral order doctrine from
Rather than taking any such actions, the Mississippi counsel refrained from objecting in the Mississippi court and has been successful in having Curbow ruled mentally incompetent and unrestorable, thereby stalling the Mississippi proceedings at a point where there is just a criminal complaint against Curbow and no indictment, trial, conviction, or sentencing. Meanwhile, the North Carolina counsel clarified at oral argument in this appeal that Curbow seeks to preserve his achievements in the Mississippi proceedings—particularly the unrestorability determination that was rendered after his first and second periods of
Although Curbow‘s goal is understandable, he cannot properly ask the North Carolina court and our Court to belatedly adjudicate in these civil commitment proceedings issues that he should have pursued in the Mississippi court and the Fifth Circuit. Curbow
c.
In concluding that Curbow has waived his theory regarding unreasonable delays in his first two periods of
The subject matter jurisdiction of a court refers to its “statutory or constitutional power to adjudicate the case.” See Steel Co. v. Citizens for Better Env‘t, 523 U.S. 83, 89 (1998)). As the Supreme Court has observed, “the distinction between jurisdictional conditions and claim-processing rules can be confusing in practice.” See Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010). Thus, the Court has developed a “general approach” for differentiating jurisdictional conditions from claim-processing rules and mere elements of a claim. Id. Under that approach,
[i]f the Legislature clearly states that a threshold limitation on a statute‘s scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.
See Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16 (2006) (footnote and citation omitted). Absent “clear jurisdictional language,” a statutory limitation on coverage can be deemed subject matter jurisdictional in limited circumstances, e.g., by inferring Congress’ intent “from the existence of a ‘long line’ of Supreme Court decisions ‘left undisturbed by Congress’ that ‘treated a similar requirement as jurisdictional.‘” See United States v. Wilson, 699 F.3d 789, 795-96 (4th Cir. 2012) (quoting Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 436 (2011)).
Adhering to this authority, we are convinced that
d.
Finally, we note that we are cognizant that Curbow has been deemed mentally incompetent and unable to understand and assist in the proceedings against him. This is not a situation, however, where a determination of waiver would be unjust, such as where a mentally incompetent defendant is found to have waived his right to counsel. See United States v. Ziegler, 1 F.4th 219, 226 (4th Cir. 2021) (explaining that “[t]o waive counsel, a defendant must . . . be mentally competent” (citing Godinez v. Moran, 509 U.S. 389, 396 (1993))). Rather, Curbow is and has continuously been represented by counsel responsible for choosing his legal strategy and protecting his interests. See Magassouba, 544 F.3d at 411 n.16 (“To be sure, an incompetent defendant cannot be expected to pursue these remedies himself, but that is precisely why he has an attorney whose responsibility is to safeguard the defendant‘s legal interests.“). All indications are that Curbow‘s Mississippi counsel and his North Carolina counsel have performed admirably on his behalf.
* * *
To summarize, Curbow‘s argument that he was ineligible for
III.
Along with his argument that he was ineligible for
We are not convinced that Curbow‘s contention is actually supported by our Copley decision or other controlling precedent. In any event, Curbow has waived his contention by failing to raise it in the North Carolina court. Cf. United States ex rel. Bunk v. Gosselin World Wide Moving, N.V., 741 F.3d 390, 405 (4th Cir. 2013) (“[W]hen a party to a civil action fails to raise a point at trial, that party waives review of the issue unless there are exceptional or extraordinary circumstances justifying review.” (internal quotation marks omitted)).
Next, Curbow contends — again for the first time on appeal — that the North Carolina court did not adequately explain its finding of dangerousness, either during the commitment hearing or in its subsequent Commitment Order incorporating “the reasons stated in open court.” See Commitment Order 1. According to Curbow, he has a due process “right to know why his arguments against commitment were rejected and why he
To the extent that it is appropriate to review Curbow‘s contention on the premise that he did not have the opportunity to raise it in the North Carolina court, we nevertheless must reject it as a result of the absence of any prejudice. For even if there is merit to the proposition that the North Carolina court erred by inadequately explaining its dangerousness finding, such an error was of no apparent consequence to Curbow. He does not contest the adequacy of the evidence of his dangerousness, and even his own expert witness agreed that he met the
IV.
Pursuant to the foregoing, we affirm the judgment of the North Carolina district court ordering Curbow‘s civil commitment under
AFFIRMED
I concur with the majority opinion that Gary Curbow (“Appellant“) has waived the opportunity to challenge the delays in his first two periods of
We all agree that Wayda does not specifically address what impact, if any, lapses in the initial commitment periods authorized by
In a purely academic discussion, then, my good colleague opines, “[W]e should exercise caution before extending [Wayda] beyond its actual, relatively limited holding.” Post at 54–55. But we are not extending Wayda in any manner in the present case. Just as in Wayda, the initial periods of commitment are not dispositive. Therefore, in this case,
In short, we do not -- and need not -- reach the complex issue of Wayda‘s effect on earlier periods of
I fully concur in Judge King‘s excellent opinion affirming the judgment of the district court ordering Curbow civilly committed as a danger to others under
Applying the holding of United States v. Wayda, 966 F.3d 294 (4th Cir. 2020), Judge King concludes that the government initiated commitment proceedings within a reasonable time after the final determination that Curbow‘s competence to stand trial could not be restored. Curbow, however, also argued that we should extend Wayda‘s approach and hold that the government lost “legitimate” custody when the periods of competency evaluation exceeded the statutory time limits of
I write separately because I believe there is a better analysis to use in these cases than was set forth in Wayda. I recognize, of course, that Wayda is binding precedent and that we are obliged to apply its holding. Wayda, however, did not resolve the question about the effect of internal delays during the
I.
In Jackson v. Indiana, 406 U.S. 715 (1972), the Supreme Court held that the Due Process Clause prohibits the government from indefinitely detaining a defendant simply because he is not competent to stand trial:
[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 capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant.
In response to Jackson, Congress enacted
(d) Determination and disposition.--If, after [a preliminary competency] hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent 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 custody of the Attorney General. The Attorney General shall hospitalize 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 substantial 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 proceed, if the court finds that there is a substantial probability 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.
If, at the end of the time period specified, it is determined that the defendant‘s mental condition has not so improved as to permit the proceedings to go forward, the defendant is subject to the [civil commitment] provisions of sections 4246 and 4248.
In Wayda, this court held that when a district court places a defendant in the custody of the Attorney General for a competency evaluation under
Wayda did not decide whether delays within the competency-evaluation process also cause the expiration of the Attorney General‘s legitimate custody of the defendant. Instead, the court simply assumed that any internal delays under
II.
Wayda‘s holding was grounded in the concept of legitimate and illegitimate custody over a criminal defendant.2 I find no support for that concept in the language or structure of the relevant statutes, and I disagree with Wayda‘s determination that
A.
With regard to Wayda‘s actual holding, I see no language in
Perhaps Wayda intended “legitimate custody” to be synonymous with “legal custody.”3 Nevertheless, there is no language in
Similarly,
Accordingly, I see no statutory support for concluding that the Attorney General loses the authority to civilly commit an incompetent, dangerous person in the government‘s lawful custody simply because the government waited too long after the final competency determination.
B.
There is likewise no language in
Moreover, although
Montalvo-Murillo involved a similar issue arising under the
The Supreme Court rejected that analysis. Noting that “[n]othing in
a failure to comply with the first appearance requirement does not defeat the Government‘s authority to seek detention of the person charged. . . . In our view, construction of the Act must conform to the great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided.
Montalvo-Murillo, 495 U.S. at 717–18 (internal quotation marks omitted). The Court acknowledged that the government had a mandatory obligation to follow the statutory time limits, but nonetheless concluded that “the sanction for breach is not loss of all later powers to act.” Id. at 718. As the Court explained,
Automatic release contravenes the object of the statute, to provide fair bail procedures while protecting the safety of the public and assuring the appearance at trial of defendants found likely to flee. The end of exacting compliance with the letter of
§ 3142(f) cannot justify the means of exposing the public to an increased likelihood of violent crime by persons on bail, an evil the statute aims to prevent. The Government‘s interest in preventing these harms remains real and substantial even when the time limits have been ignored.
Id. at 720 (citation omitted).
I believe the same approach should be taken in cases involving the competency-evaluation process of
C.
As with the
Curbow‘s attempt to extend Wayda‘s legitimate-custody concept to breaches of
As the Supreme Court explained in Montalvo-Murillo, “[t]he safety of society does not become forfeit to the accident of noncompliance with statutory time limits where the Government is ready and able to come forward with the requisite showing to meet the burden of proof required by the statute.” 495 U.S. at 720. That is precisely the case here. The government presented evidence that the district court found sufficient to establish that Curbow was a danger to others and met the requirements for civil commitment under
III.
If the district court makes a preliminary finding under
If the defendant is found to be competent to stand trial at the end of that additional reasonable period, the Attorney General‘s authority to hospitalize the defendant under
This statutory scheme, with the relationship between
As noted, Jackson held that the Due Process Clause prohibits the indefinite detention of a defendant simply because is he incompetent to stand trial. The relevant question under Jackson, however, is the reasonableness of the overall period of detention, not how long it took the government to complete discrete steps in the process. See Montalvo-Murillo, 495 U.S. at 717 (noting “the great principle of public policy . . . which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided“).
IV.
To summarize, I believe Judge King has faithfully applied Wayda, and I fully concur in his opinion affirming the judgment of the district court. Nevertheless, I believe that once a district court orders legal custody of the defendant transferred to the Attorney General pursuant to