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United States v. Mikawa

United States Court of Appeals, Eighth Circuit

February 22, 2017

United States of America Plaintiff- Appellee
v.
Larry Rick Mikawa Defendant-Appellant

          Submitted: November 15, 2016

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before RILEY, Chief Judge, WOLLMAN and KELLY, Circuit Judges.

          KELLY, Circuit Judge.

         After being found not guilty by reason of insanity of false personation of a federal officer in November 2012, Larry Mikawa was civilly committed pursuant to 18 U.S.C. § 4243. Two years later, the mental health facility treating Mikawa determined he had recovered from his mental illness sufficiently to be eligible for discharge from the psychiatric hospital. The government opposed release, and the district court[1] held an evidentiary hearing. In its order, the district court denied release, finding that Mikawa posed a substantial risk of danger to other persons or property. Mikawa appealed, and we now affirm finding no clear error.

         I. Background

         On April 6, 2010, Larry Mikawa was indicted for false personation of a federal officer in violation of 18 U.S.C. § 912. Based on a stipulated psychiatric report, the district court found Mikawa incompetent to proceed and ordered him committed to determine if competency could be restored. Mikawa was transferred to the Federal Medical Center (FMC) in Butner, North Carolina for treatment. On September 11, 2012, the district court found Mikawa competent to proceed based on an updated psychiatric evaluation. Mikawa was transferred to the U.S. Penitentiary in Leavenworth, Kansas for further proceedings in his criminal case. While there, Mikawa stopped taking his psychiatric medications, and his psychotic symptoms returned.

         Shortly thereafter, the parties filed a stipulation of facts in support of an insanity plea based on a doctor's conclusion that Mikawa was unable to appreciate the nature and quality or wrongfulness of his acts at the time of the offense. On November 27, 2012, the district court found Mikawa not guilty by reason of insanity and, per the stipulation, committed him pursuant to 18 U.S.C. § 4243. Mikawa was subsequently transferred to the FMC in Rochester, Minnesota in March 2013.

         On January 7, 2015, the warden of FMC Rochester filed a "Certificate of Recovery and Request to Discharge from Psychiatric Hospital, " which stated that clinicians believe that Mikawa "has recovered from his mental disease or defect to such an extent that his release would no longer create a substantial risk of bodily injury to another person or serious damage to the property of another." Attached were the reports of two Risk Assessment Panels (RAP)-composed of at least two non-treating psychiatric professionals and chaired by the facility's chief of psychology-dated April 8, 2014, and November 12, 2014. Both panels concluded that Mikawa had suffered from a severe mental illness, diagnosed as "schizoaffective disorder, bipolar type, " for at least three decades. After reviewing multiple psychiatric evaluations and treatment notes and conducting interviews of Mikawa and his ex-wife, the April 2014 panel recommended unconditional release because there was no record of Mikawa causing injuries or serious property damage, and his age and lack of substance abuse suggested future violence was unlikely. The panel did acknowledge that it was unlikely Mikawa-who did not believe he had a mental illness or needed medications-would independently continue treatment, and thus his mental status would likely deteriorate upon release. Because Mikawa's treating psychologist was on extended medical leave in April 2014, another RAP was convened in November 2014. The second RAP found no reason to alter its prior recommendation of unconditional release. The second panel found little risk of injury or property damage as Mikawa had no intent or history of causing harm, although it predicted he "likely" would engage in "nuisance or bizarre behavior that may bring him to the attention of law enforcement."

         On January 13, 2015, the government objected to the release recommendation and requested a discharge hearing. In support of its request, the government attached a declaration from Mikawa's treating psychiatrist, Dr. Dionne Hart, who opined that Mikawa should not be unconditionally released. The government also had Mikawa evaluated by Dr. Dawn Peuschold, who concluded that he should not be released.

         Because the government opposed unconditional release, another RAP convened on March 17, 2015, to offer an opinion on a proposed conditional release plan. The conditional release plan placed Mikawa, who was primarily a resident of Alaska prior to his arrest, at Marenah's Assisted Living Home in Anchorage. The home had surveillance cameras and an onsite care worker who assisted with administering medications, hygiene, and programming. Mikawa would be required to receive mental health treatment provided by Anchorage Community Mental Health and to take all prescribed medications. Further, Mikawa would be supervised by Tim Astle of the U.S. Probation Office in Anchorage, who would have access to all of Mikawa's treatment records and to the home. Mikawa also would be required to submit to drug testing. His failure to comply with the conditions of release could result in his return to custody. The March 2015 panel unanimously agreed that the proposed conditional release would "adequately control and minimize any risk related to Mr. Mikawa's release from custody."

         The district court held a discharge hearing on October 5 and 6, 2015, and heard testimony from ten witnesses. Three of the witnesses, doctors Jason Gabel, Daniel Carlson, and Andrew Simcox, participated as members of one or more of Mikawa's three RAPs. Each of them opined that either conditional or unconditional release would be appropriate as Mikawa was one of the "least dangerous" committed patients they had seen, and he had no history of substance abuse, weapon ownership, or infliction of serious injury on others. Two of Mikawa's mental health professionals-his psychologist at FMC Rochester, Dr. Emily Wakeman, and the mental health coordinator at Leavenworth, Jeff Cowan-testified that Mikawa was not a "threat to anyone" and had not had any physical altercations while committed. Astle and Elizabeth Meyer, a social worker at FMC Rochester, testified about the proposed conditional release plan and Astle's inspection of the facilities and services Mikawa would rely on in Anchorage if conditionally released.

         Dr. Dionne Hart, Mikawa's treating psychiatrist at FMC Rochester, disagreed with her fellow clinicians, opining that Mikawa should not be released. In her declaration, she cited three observations that led her to conclude that Mikawa "has not reached the maximum benefit from hospitalization:" first, he repeatedly insists he does not have a mental illness and will not take his medications; second, he continues to have delusions about Sarah Palin, the officers who arrested him, and being a law enforcement officer; and third, he has a preoccupation with his ex-wife, who does not want to have any contact with him. At the hearing, Dr. Hart expressed concern that Mikawa would contact his ex-wife, citing two letters and a package he had recently addressed to homes on the street where she lived. Dr. Hart recommended that Mikawa remain at FMC Rochester for further treatment, as she did not believe he would be able to comply with the conditions of release.

         Dr. Dawn Peuschold, the government's independent psychologist, testified consistently with her report that Mikawa had not recovered to such an extent that his unconditional or conditional release would no longer create a substantial risk of bodily injury to another person or serious damage to the property of another. Her conclusions were based on a review of Mikawa's records as well as a four-hour and forty-minute interview with him. Dr. Peuschold agreed that Mikawa suffers from schizoaffective disorder, bipolar type and that he experiences symptoms, which are sometimes severe, both during and absent treatment. Mikawa's symptoms cause him to misperceive external reality, giving him the mistaken belief that he does not have a mental illness and does not need treatment. Dr. Peuschold found that Mikawa's mental illness causes him to "display[] a multidimensional pattern of disturbing, aggressive, or intimidating behaviors, " which he intends to continue and often lacks the ability to control. She found his behaviors "concerning" and ...


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