FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 22 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-30081

Plaintiff-Appellee, D.C. Nos. 3:21-cr-00232-SI-1 3:21-cr-00232-SI v.

OPINION

CRAIG THOMAS DONNELLY,

Defendant-Appellant.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Argued and Submitted July 5, 2022 Portland, Oregon

Before: Paul J. Watford, Ryan D. Nelson, and Kenneth K. Lee, Circuit Judges.

Per Curiam Opinion; Concurrence by Judge Watford

PER CURIAM:

Craig Donnelly is charged with three counts of stalking, cyberstalking, and

interstate violation of a protective order. The district court ordered him detained

without bail under 18 U.S.C. § 3142 as both a danger to the community and a flight

risk. He has been held since his initial appearance in August 2021 at the federal

detention center in Sheridan, Oregon. Page 2 of 12

On November 18, 2021, after ordering a psychological evaluation and

conducting a hearing to evaluate Donnelly’s competency to stand trial, the district

court found that Donnelly “is suffering from a mental disease or defect rendering

him mentally incompetent to the extent that he is presently unable to assist

properly in his defense of this criminal matter.” As required under the Insanity

Defense Reform Act (IDRA), the district court committed Donnelly to the custody

of the Attorney General. See 18 U.S.C. § 4241.

The IDRA directs the Attorney General to “hospitalize the defendant for

treatment in a suitable facility . . . 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.” Id. § 4241(d)(1). The Attorney General has delegated

responsibility for complying with this requirement to the Bureau of Prisons (BOP).

The BOP, however, is currently experiencing a significant backlog in placing

defendants in suitable facilities for treatment, as § 4241(d) requires. The lack of

available bed space has led to long delays between the time a district court finds a

defendant not competent to stand trial and the defendant’s hospitalization for

treatment and evaluation.

Four months after the district court issued its order remanding him to the

Attorney General’s custody, Donnelly remained detained in Oregon awaiting Page 3 of 12

hospitalization. He was informed that he would likely have to wait another four

months—until July 2022—before a bed would become available.

In March 2022, Donnelly filed the motion giving rise to this appeal, which

asked the district court to dismiss the indictment. Donnelly argued that the four-

month-plus delay in placing him in a suitable hospital facility violated his rights

under 18 U.S.C. § 4241(d) and the Fifth Amendment’s Due Process Clause. As

the basis for his statutory argument, Donnelly contended that the four-month time

limit imposed by § 4241(d)(1) begins to run when the district court orders a

defendant committed to the custody of the Attorney General for placement in a

suitable hospital facility. Under that reading, Donnelly’s rights have been violated

because he has already been in the Attorney General’s custody for more than four

months, and he still has not been hospitalized for treatment.

On May 11, 2022, the district court denied Donnelly’s motion to dismiss the

indictment. It rejected Donnelly’s statutory argument on the ground that

§ 4241(d)’s four-month time limit begins to run only upon the defendant’s

hospitalization, not upon his commitment to the Attorney General’s custody. The

district court reasoned that the four-month time limit had not yet begun to run,

much less been violated, because Donnelly had not yet been hospitalized. The

court rejected Donnelly’s due process argument on the ground that he had not

shown the kind of “grossly shocking and outrageous” government misconduct Page 4 of 12

necessary to warrant dismissal of the indictment. United States v. Kearns, 5 F.3d

1251, 1253 (9th Cir. 1993).

Donnelly filed an interlocutory appeal challenging the denial of his motion

to dismiss the indictment. We have jurisdiction to hear his appeal under the

collateral order doctrine, as the district court’s order conclusively resolves issues

separate from the underlying merits of the criminal charges against Donnelly (i.e.,

Donnelly’s continued detention) and would be effectively unreviewable on appeal

from a final judgment. See Sell v. United States, 539 U.S. 166, 176–77 (2003).

We agree with the district court’s decision to deny Donnelly’s motion,

although our reasoning differs in certain respects and ultimately requires that we

vacate the order below. The IDRA establishes a three-step process when a criminal

defendant’s competency to stand trial is questioned. First, it provides that, “[a]t any

time after the commencement of a prosecution for an offense and prior to the

sentencing of the defendant,” either party may move for a hearing to determine the

defendant’s competency. 18 U.S.C. § 4241(a). The court holds a hearing on the

motion and makes a competency finding. Id. § 4241(c), (d). If the court finds that

the defendant is incompetent to stand trial, “the court shall commit the defendant to

the custody of the Attorney General.” Id. § 4241(d). Second, “[t]he Attorney

General shall hospitalize the defendant for treatment in a suitable facility . . . for such

a reasonable period of time, not to exceed four months, as is necessary to determine Page 5 of 12

whether there is a substantial probability” that the defendant will be restored to

competency in the foreseeable future. Id. § 4241(d)(1). Finally, after the initial

evaluation, continued hospitalization is permitted “for an additional reasonable

period of time” until the defendant’s mental condition has improved or the pending

charges are “disposed of according to law.” Id. § 4241(d)(2).

The IDRA thus imposes two mandatory duties following an incompetency

finding. First, the district court “shall commit the defendant to the custody of the

Attorney General.” Id. § 4241(d). Second, “[t]he Attorney General shall hospitalize

the defendant for treatment in a suitable facility . . . for such a reasonable period of

time, not to exceed four months.” Id. § 4241(d)(1). We think the text of the statute

makes clear that the four-month time limit applies only to the period of

hospitalization, and thus begins to run when the defendant has been hospitalized.

Even so, that does not establish whether the statute permits a delay between

commitment and hospitalization. If hospitalization must occur immediately upon

commitment, the four-month clock starts when the defendant is committed. But if

the statute allows some amount of time between commitment and hospitalization,

the clock doesn’t start until later. 1

1 Language in two of our prior cases upholding § 4241(d) against due process challenges suggested that the four-month deadline includes the entire period of commitment. See United States v. Quintero, 995 F.3d 1044, 1052 (9th Cir. 2021); United States v. Strong, 489 F.3d 1055, 1061–62 (9th Cir. 2007). But neither case Page 6 of 12

We need not decide whether the statute allows some amount of pre-

hospitalization confinement because the delay here falls outside any constitutional

reading of the statute. Congress enacted § 4241 as part of a broad overhaul of the

provisions governing pre-trial competency determinations following the Supreme

Court’s decision in Jackson v. Indiana, 406 U.S. 715 (1972). See United States v.

Strong, 489 F.3d 1055, 1061 (9th Cir. 2007). In Jackson, the Supreme Court held

that the Fourteenth Amendment’s Due Process Clause prohibits a State from

confining a defendant for an indefinite period simply because he is not competent

to stand trial. 406 U.S. at 720. That case involved an Indiana defendant who was

committed to the State’s Department of Mental Health “until such time as that

Department should certify . . . that the defendant is sane,” despite his attorney’s

representation that restoration was highly unlikely. Id. at 719 (internal quotation

marks omitted). By the time his case reached the Supreme Court, Jackson had

been confined for three-and-a-half years without any indication that he could be

restored to competency. Id. at 738–39. The Court held that such indefinite

confinement violated the defendant’s due process rights. “At the least, due process

requires that the nature and duration of commitment bear some reasonable relation

to the purpose for which the individual is committed.” Id. at 738. Thus, a person

squarely presented the question of when the statute’s four-month period begins, so neither is binding on us here. Page 7 of 12

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.”

Id.

The Constitution does not permit any portion of a defendant’s commitment

under 18 U.S.C. § 4241(d) to last indefinitely. Although Congress did not provide

a specific time limit for a pre-hospitalization commitment period, Jackson requires

the duration of any such commitment to “bear some reasonable relation” to its

purpose. Id. To determine the permitted length of the pre-hospitalization

commitment period, then, we must ask what purpose that period serves.

We find our answer in the text of the statute. Upon a defendant’s

commitment, the Attorney General must identify a “suitable facility” in which to

hospitalize a defendant based on the particular rehabilitative needs of that

individual. See 18 U.S.C. §§ 4241(d), 4247. As we recently recognized, § 4247

endows the Attorney General with considerable discretion in making that

determination. See United States v. Quintero, 995 F.3d 1044, 1050–51 (9th Cir.

2021). Assuming that decision requires some amount of time, the two-step

structure of § 4241(d)—commitment to the custody of the Attorney General,

followed by a period of hospitalization—might require a pre-hospitalization

commitment period to allow the Attorney General time to identify a suitable Page 8 of 12

facility and arrange for the defendant’s transportation to that facility. But to abide

by Jackson, the duration of the pre-hospitalization commitment period must be

limited to the time reasonably required to accomplish those tasks.

At the time the district court ruled on Donnelly’s motion, he had already

been held in the custody of the Attorney General for nearly six months. We do not

think Jackson’s “reasonable relation” requirement permits a pre-hospitalization

commitment period, whose purpose is simply to identify an appropriate treatment

facility and arrange for the defendant’s transportation to that facility, to last longer

than the maximum time Congress permitted for the period of hospitalization itself.

Thus, we have little difficulty concluding that whatever the outer limit of

§ 4241(d), the length of Donnelly’s confinement exceeds it. That fact is even more

evident today, as Donnelly has now been held in the pre-hospitalization custody of

the Attorney General for more than eight months—twice as long as the maximum

period Congress authorized for the entire length of a defendant’s hospitalization.

Having found a violation of the statute, we must next decide whether the

appropriate remedy for that violation is dismissal of the indictment, as Donnelly

has requested. In our view, dismissal is not the appropriate remedy. Congress did

not prescribe dismissal of the indictment as a remedy for violation of the time

limits imposed by § 4241(d), as it has, for example, in the context of violations of

time limits imposed by the Speedy Trial Act. See 18 U.S.C. § 3162(a). That fact Page 9 of 12

alone may not be dispositive, but it does provide reason to doubt that Congress

intended the extreme sanction of dismissal to follow anytime the Attorney General

unreasonably delays hospitalizing a defendant whom the district court has found

not competent to stand trial.2

To craft an appropriate remedy, we look to the interests of the parties and the

relevant statutory scheme. See Oregon Advocacy Center v. Mink, 322 F.3d 1101,

1121–22 (9th Cir. 2003). In Mink, we addressed an analogous violation of

defendants’ rights under Oregon law. Like 18 U.S.C. § 4241(d), Oregon law

requires trial courts to send defendants found not competent to stand trial to a state

hospital for a restoration determination. Organizations representing such

defendants sought class-wide relief from delays that kept their clients waiting for

hospital beds for as long as five months. Id. at 1105–06. Because such extensive

detention without hospitalization violated defendants’ due process rights, we

2 We reject the government’s contention that Donnelly’s lengthy period of pre- hospitalization commitment is essentially harmless and therefore requires no remedy. That argument assumes that a defendant who is already detained under the Bail Reform Act suffers no harm from time spent awaiting hospitalization because he would have remained in detention anyway. But the harm here arises not from the fact of detention, but rather by its extended length. However long it takes for Donnelly to be hospitalized, treated, and (if possible) restored to competency, all of that time will be in addition to the time he can be detained while awaiting trial. See United States v. Romero, 833 F.3d 1151, 1154 (9th Cir. 2016) (holding that the Speedy Trial Act permits exclusion of all time resulting from a district court’s finding that a defendant is incompetent to stand trial). When the excluded time is unlawfully extended by an unreasonably long pre-hospitalization commitment period, that excess detention constitutes a real injury. Page 10 of 12

affirmed the district court’s entry of a state-wide injunction requiring

hospitalization within seven days. Id. at 1122–23.

Although Donnelly has not sought injunctive relief, the district court

possesses supervisory authority to order the government to rectify violations of law

with remedies shaped to redress the corresponding injury. See United States v.

Bundy, 968 F.3d 1019, 1031 (9th Cir. 2020) (discussing the breadth of the court’s

supervisory powers). Ultimately, both Donnelly’s liberty interest and Congress’s

directive to restore incompetent defendants where possible will be best served by

requiring the government to hospitalize Donnelly without further delay. See Mink,

322 F.3d at 1121–22. Doing so will allow Donnelly to receive the treatment

necessary to make a restoration determination—the critical step down the path

toward either restoration and trial or dismissal of the indictment and initiation of

civil commitment proceedings. See 18 U.S.C. § 4241(d), (e). We therefore vacate

the district court’s order and remand with instructions to order the Attorney

General to hospitalize Donnelly in a suitable facility within seven days.3

3 We agree with the district court’s determination that, even if Donnelly had established a violation of his rights under the Due Process Clause (a matter we need not resolve), dismissal of the indictment would not be warranted. Donnelly has not shown the kind of “grossly shocking and outrageous” government misconduct necessary to justify dismissal of the charges against him. See Bundy, 968 F.3d at 1031; Kearns, 5 F.3d at 1253. Indeed, the Court in Jackson did not order dismissal, notwithstanding that the defendant had been committed for more than three years. Jackson, 406 U.S. at 738. Page 11 of 12

We note in closing that nothing in our decision today forecloses the

possibility that dismissal may become appropriate at a future date, either in this

case or in others like it. Other defendants may be able to show that the

government’s unreasonable delay amounts to the kind of flagrant misconduct

warranting dismissal. As to Donnelly, should the Attorney General fail to comply

with the district court’s order on remand, that court may consider whether such a

failure—layered on top of the existing statutory violation—leaves available “no

lesser remedial action” than dismissal. Bundy, 968 F.3d at 1031 (citation omitted).

* * *

In sum, Congress requires the Attorney General to hospitalize a defendant

after he is found incompetent. Whether he must do so immediately or is allowed a

brief period of pre-hospitalization commitment reasonably limited to allow the

Attorney General to identify a suitable facility and arrange for the defendant’s

transportation to that facility, the government’s delay cannot exceed four months.

We make no ruling as to the maximum allowable length of a pre-hospitalization

commitment period, but hold that the eight months Donnelly has waited to be

hospitalized in a suitable facility plainly exceeds whatever period the statute

conceivably allows. In order to further Congress’s directive to determine whether

restoration is substantially probable while at the same time respecting Donnelly’s Page 12 of 12

due process interests, we remand to the district court with instructions to order the

Attorney General to hospitalize Donnelly within seven days.

VACATED and REMANDED.

The mandate shall issue forthwith.

FILED

United States v. Donnelly, No. 22-30081

JUL 22 2022

WATFORD, Circuit Judge, concurring in the judgment: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I agree with my colleagues that Donnelly’s prolonged wait for a hospital bed

violates 18 U.S.C. § 4241(d)(1) and that an order directing his hospitalization

forthwith is the appropriate remedy here. But I think Congress plainly imposed

four months as the outside limit on the entire period a defendant is committed to

the custody of the Attorney General for treatment and evaluation, inclusive of any

pre-hospitalization delay.

Nothing in the text of § 4241(d) suggests that Congress envisioned the

creation of two separate time periods, the first a period of pre-hospitalization

commitment subject to no statutory time constraints whatsoever, to be followed by

a period of hospitalization subject to a strict four-month time constraint. The

statute simply provides that upon finding the defendant not competent to stand

trial, a district court “shall commit” the defendant to the custody of the Attorney

General. In the same breath, the statute states that the Attorney General “shall

hospitalize” the defendant for treatment and evaluation for a reasonable period of

time not to exceed four months. The provision is most sensibly read as imposing

an outside time limit on the entire period of commitment, from issuance of the

court’s commitment order to completion of the defendant’s period of

hospitalization. See United States v. Carter, 2022 WL 483636, at *5 (D.D.C. Jan. Page 2 of 3

27, 2022). That is the view reflected in the statute’s legislative history, which

makes no mention of two separate time periods, but instead describes a single

period of “commitment under section 4241” that “may not exceed four months.”

S. Rep. No. 98-225, at 236 (1983); see also United States v. Strong, 489 F.3d 1055,

1062 (9th Cir. 2007) (reading the statute the same way). It seems plain to me from

the text and legislative history that Congress assumed a defendant would be

hospitalized in short order following his commitment to the custody of the

Attorney General, such that four months would afford adequate time for the entire

evaluation process to be completed.

At the time it enacted § 4241(d), Congress had no reason to assume

otherwise, and certainly no reason to anticipate the lengthy pre-hospitalization

delays that have now become routine. True, the Attorney General must make an

individualized assessment when designating a “suitable facility” for the

defendant’s hospitalization. 18 U.S.C. §§ 4241(d), 4247(i)(C). But that is a

process that can reasonably be expected to take days, not months. Indeed, the

length of time it takes the Attorney General to designate a suitable facility is not

the cause of the extensive pre-hospitalization delays we are seeing today. Those

delays, which now extend to an astounding eight months, are attributable to the

lack of available bed space at the handful of facilities the Bureau of Prisons (BOP)

has equipped to conduct competency evaluations under § 4241(d). Page 3 of 3

The BOP’s bureaucratic failure to allocate adequate agency resources to

meet the demand for competency evaluations is not, of course, a legitimate excuse

for failing to comply with the four-month time limit Congress imposed in

§ 4241(d)(1). In fact, Congress anticipated this very problem when it enacted

§ 4241 as part of the Insanity Defense Reform Act, 18 U.S.C. §§ 4241–4247.

Congress specifically authorized the Attorney General to “contract with a State, a

political subdivision, a locality, or a private agency for the confinement,

hospitalization, care, or treatment of, or the provision of services to, a person

committed to his custody pursuant to this chapter.” § 4247(i)(A). This provision

provides further confirmation, if any were needed, that Congress envisioned only a

short gap between issuance of a commitment order under § 4241(d)(1) and a

defendant’s hospitalization. Even when the BOP itself lacks available bed space, it

can contract with another entity to hospitalize defendants committed to the

Attorney General’s custody.

In short, I would hold that Congress intended § 4241(d)(1)’s four-month

time limit to apply to the entire period of confinement, not just the period of

hospitalization. Under that reading of the statute, Donnelly’s rights were violated

as of March 2022, four months after the district court issued its commitment order.