The opinion of the court was delivered by: Trager, J
Defendant Aaron Commey was charged with, inter alia, attempting to hijack a National Airlines passenger jet in 2000. After a September 23, 2003, bench trial, Commey was found not guilty by reason of insanity of all charges and committed to the custody of the Attorney General. The Attorney General assigned Commey to a medical center run by the Bureau of Prisons ("BOP") for treatment. Moving pro se, Commey makes three related motions. Commey principally seeks his release from civil commitment under 18 U.S.C. § 4243(f). In addition, Commey moves to vacate the order of commitment, to exclude expert testimony and evidence and to find the expert witness in contempt. For the reasons set forth below, Commey's motions are denied.
Commey was charged in an indictment with attempted aircraft piracy, carrying concealed dangerous weapons on board an aircraft, violence at international airports, using a firearm while committing aircraft piracy and violating airport and aircraft security requirements.
The charges stemmed from an attempted hijacking at John F. Kennedy International Airport ("JFK") in 2000. On the night of July 27, 2000, Commey entered Terminal Four at JFK with a concealed handgun. Compl. ¶ 3. As he approached the security checkpoint, Commey brandished the gun, ordered airport security personnel aside and bypassed the metal detectors. Id. Commey then boarded a National Airlines flight headed for Los Angeles and entered the cockpit, taking the pilot and co-pilot hostage. Id. ¶¶ 2, 5. While the passengers and crew escaped, Commey told the pilot to fly south. Id. ¶ 5.
The airplane never left. The Port Authority Police and the FBI were able to establish contact with Commey in the cockpit. Id. ¶ 6. During negotiations, Commey demanded to be flown, variously, to Miami, Buenos Aires and Antarctica, but, shortly after midnight, he released the pilot and co-pilot. Id. ¶¶ 6-7.
At approximately 3:38 a.m., Commey surrendered to the authorities. Id. ¶ 8.
Several forensic evaluations were conducted regarding Commey's competency to stand trial and his sanity at the time of the hijacking. E.g., Gov't's Ex. 2 at 3. During these evaluations, Commey reported that he planned to hijack the airplane and parachute into Antarctica in order to destroy the secret base of an organization called the "Cabal." E.g., id. According to Commey, the Cabal was a secret group with designs to "'take over the world through mass destruction.'" E.g., id. Commey had made an earlier attempt to destroy what he thought was the Cabal's secret base. In 1998, he traveled to Buenos Aires with two firearms intending to continue from there to Antarctica, but was detained at the airport in Buenos Aires on suspicion of weapons smuggling. E.g., id. at 3. Commey was held in custody in Argentina for one month, where he underwent a psychiatric evaluation that resulted in the opinion that he exhibited symptoms of "delirious syndrome."*fn1 E.g., id. Upon his return to the United States, Commey resumed his job at a chemical packaging plant in Wisconsin and abandoned his plan to destroy the Cabal's base. E.g., id. at 2-3. But, sometime after, Commey found a note with coded names, which he took as a sign that he should again try to reach Antarctica. E.g., id. at 3. He then formed the plan which culminated in the attempted hijacking at JFK. E.g., id. As a result of the evaluations, Commey was diagnosed, at different times in 2000, with delusional disorder, persecutory type, and with schizophrenia, paranoid type, and the opinion was formed that Commey was not criminally responsible for his crimes. E.g., id. Commey was found not guilty by reason of insanity and, based on psychological and psychiatric evaluations, was committed to the custody of the Attorney General pursuant to 18 U.S.C. § 4243(e).
(2) Confinement and Treatment in BOP Custody
Commey was assigned to Federal Medical Center ("FMC") Butner in Butner, North Carolina. In August 2004, he was transferred to FMC Devens ("Devens") in Ayer, Massachusetts, a medical treatment facility run by the BOP where he is currently committed.
Commey's day-to-day contact at Devens is with a treatment team consisting of psychiatrists, psychologists and social workers who provide direct care to Commey. In addition, he attends group and individual therapy sessions.
Once a year, a Risk Assessment Panel ("Panel"), consisting of psychologists and/or psychiatrists who are not part of the treatment team, convenes to evaluate the risk of releasing Commey. See Hr'g Tr. 17:16-20. Panel members review the record and discuss the data contained in it with each other and with the treatment team. Id. at 16:11-18, 17:14-15. The Panel then interviews the patient and "votes on the issue of continued commitment or a recommendation for conditional release." Id. at 16-17. The Panel reduces its findings and recommendations to a Risk Assessment Panel Report ("Panel Report" or "Report"). The initial report (the "2004 Report"), completed on December 14, 2004, reflected the Panel's recommendation that Commey continue his confinement at Devens to give Devens staff more time to evaluate him. Gov't's Ex. 7. The Panel Report issued on September 6, 2005, (the "2005 Report") reflected the Panel's conclusion that Commey was suitable for conditional release. Gov't's Ex. 6. The 2005 Report was prepared by Dr. Dennis Becotte, who was also the Chief Psychologist at Devens and the chairperson of the 2005 Panel. The 2006 Panel reversed the previous Panel's decision, as reflected in the Panel Report issued on July 19, 2006 (the "2006 Report"). Gov't's Ex. 5. The Panel Reports issued on January 17, 2007, January 11, 2008, and January 23, 2009, (the "2007 Report," "2008 Report" and "2009 Report," respectively) were in agreement with the recommendation reflected in the 2006 Report. Gov't's Exs. 2-4. The 2007 through 2009 Panels were chaired by Dr. Shawn Channell. The conclusions of the various Panel Reports are set forth in more detail below.
On August 25, 2006, Commey, through counsel, moved for a hearing for discharge from custody pursuant to 18 U.S.C. § 4247(h). Commey based this motion on the 2005 Report, the cover letter to which stated:
It is the opinion of clinical staff that Mr. Commey has recovered from his mental illness to the point that with proper follow-up treatment and supervision, he would no longer be a danger to the person or property of others. Social work staff have begun work on a Conditional Release plan to the community. When these plans are in place, the Court will be contacted to consider the proposal. Until such time, Mr. Commey still meets criteria for commitment under Title 18 U.S.C. Section 4243.
Gov't's Ex. 6 at 1. Commey filed this motion a little over a month after the issuance of the 2006 Report, which reversed the 2005 Report's recommendation for release.
A status conference on the motion scheduled for November 16, 2007, was moved to December 14, but, on that date, the parties did not attend and the government failed to produce Commey. A status conference was held on March 7, 2008, at which the government was directed to prepare an updated report on Commey's mental health, and, on March 20, the government filed its response to Commey's August 26, 2006, motion opposing his release.
At a July 8, 2008, status conference, Commey was authorized to employ a psychiatrist to evaluate his fitness for conditional release. Commey hired Dr. Barry Rosenfeld, Ph.D., who visited him at Devens. Dr. Rosenfeld never submitted a report.
On December 22, 2008, Commey again requested a hearing on his motion for discharge. The government, relying on the 2009 Report, opposed the hearing. Nevertheless, a hearing was scheduled for September 14, 2009. In preparation for the hearing, Commey sought the appointment of Dr. Becotte, the author of the 2005 Report recommending Commey's release, who, likewise, never submitted a report in his capacity as Commey's expert although he testified on Commey's behalf at the hearing.
b. Hearing and Post-Hearing Submissions
The hearing on Commey's motion was held over two days: September 14, and November 9, 2009. Commey represented himself, with standby counsel present, and questioned Dr. Channell, who testified for the government, and Dr. Becotte, who testified on his behalf. Their testimony is laid out in more detail below, but, in brief, Dr. Channell gave his opinion that Commey is unfit for release because he still presents a danger, and Dr. Becotte argued that Commey's delusional disorder has remitted and that he is no longer dangerous.
At the conclusion of the hearing the parties were asked to address, in their briefs, "what kind of condition could be imposed" that would mitigate any risk Commey might present. Hr'g Tr. 271:23-25. In particular, Commey was asked to discuss the possibility of conditional release subject to electronic monitoring. In a letter filed after his briefs, Commey, through counsel, requested, in descending order of preference, (1) unconditional release, (2) release with conditions consisting "solely of 'a prescribed regimen of medical, psychiatric or psychological care or treatment,'" Letter from Richard Levitt to the Court at 1 (May 21, 2010), ECF No. 175 (quoting 18 U.S.C. § 4243(f)(2)(B)), or (3) release with "ancillary" conditions, including electronic monitoring and living with his mother in Milwaukee, Wisconsin.
Commey moves for release from civil commitment, arguing that he has recovered from his delusional disorder and is no longer dangerous. Under 18 U.S.C. 4243(f), if the court that ordered ...