Sunday, May 03, 2009

Case o' The Week: Jx, but Nixed: Godinez-Ortiz and "Dangerousness" Evaluations under 18 USC Section 4246

Judge Steven Trott (left) has the defense singing the blues in a case delivering the battle to the hard-fighting San Diego Defenders, but ceding the war to the government in a Section 4246 "dangerousness" case. United States v. Godinez-Ortiz,__ F.3d __, No. 08-50337, 2009 WL 1140278 (9th Cir. April 29, 2009), decision available here.

Challenging case fought by veteran San Diego AFPDs Shereen Charlick and Vincent Brunkow.

Facts: Godinez-Ortiz finished an eight-year prison sentence for manslaughter in California, was deported to Mexico, and reentered fifteen days later. Id. at *1. He was charged with illegal reentry, found to be incompetent, and the BOP found he was not restorable to competency and thus could not be involuntarily medicated. Id. at *1.

The government then moved to dismiss the § 1326 charge and to return Godinez-Ortiz to the BOP at F.M.C. Butner, South Carolina, for a reevaluation and to obtain a certificate of “dangerousness” under 18 USC § 4246. Id. The court granted the government’s motions, the defense filed a notice of appeal. Id.

Issue(s): 1. Jurisdiction: “Godinez-Ortiz argues that this Court has jurisdiction to hear his appeal pursuant to the collateral order doctrine.” Id. at *2.

2. Authority to Commit and Institute § 4246 Proceedings: “Godinez-Ortiz asserts that the district court lacked authority to commit him to the custody of the Attorney General [the BOP at Butner] under § 4246 and to commence proceedings under § 4246.” Id. at *5.

Held: 1. Jurisdiction: “Because each requirement of the collateral order doctrine is satisfied, we have jurisdiction over this appeal.” Id. at *5.

2. Authority to Commit and Institute § 4246 Proceedings: “In authorizing the director to file a dangerousness certification, § 4246 necessarily contemplates the temporary commitment of that person so that the director can conduct the evaluation necessary to make the certification decision. Section 4241 and § 4246 do place limits on the district court’s authority to commit a person, but those limits were not exceeded in this case . . . . [W]e conclude the district court acted within its authority in temporarily returning Godinez-Ortiz to FMC-Butner to provide the director with an opportunity to consider whether the issue a dangerousness certificate pursuant to § 4246.” Id. at *8.

Of Note: There are two new Ninth rules in this decision by Judge Trott (joined by Judges Kleinfeld and Fisher). First, much to the government’s chagrin, there is a direct appeal from a district court order referring a client to BOP for a dangerousness evaluation under § 4246. Id. at *4-*5. (This, incidentally, effectively moots jurisdiction arising from a writ of mandamus. See id. at *8-*9). This is an important rule, and gives a “dangerous” defendant a shot at an appeal in the Ninth before being shuffled off to F.M.C. Butner and the warm embrace of the progressive Fourth Circuit.

The second new rule is less welcome: a district court has the authority to order a § 4246 evaluation and refer a defendant to the BOP even when the defendant is not hospitalized in F.C. custody and no certificate of dangerousness has been filed by the F.C. director. Id. at *7. The San Diego crew persuasively argued that the evaluation order in this case did not comply with the requirements of § 4246, but those arguments gained little traction in this opinion. Id. at *7-*8.

How to Use: Wading through the federal competency and dangerousness statutes and procedures can leave defense counsel feeling as loony as their clients. Here’s some basics as a starting point: 18 USC § 4241 is determination of mental competency to face trial, § 4246 is “dangerousness” commitment.

There are two key Supreme Court decisions on involuntary medication: Sell v. United States is involuntary medication to restore competency; Sell is a higher standard than Washington v. Harper – involuntary medication because an inmate presents a danger to himself or others while in custody. Each of these cases and statutes are discussed in Godinez-Ortiz.

For Further Reading: The Defender Services Training Branch website has a series of incredibly useful outlines on federal mental health and competency issues: they are all available here.

For an interesting, non-legal bio of the Honorable Steven Trott, visit The Original Highwaymen's site here.

Image of the Hon. Steven Trott from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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