The opinion of the court was delivered by: Surrick, J.
After a hearing in open court and upon consideration of reports submitted by the psychologists and psychiatrist who have evaluated Defendant Raymond Jackson, we find that Raymond Jackson is not competent to stand trial. We further find by clear and convincing evidence that Raymond Jackson presently suffers from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to himself or another person. Accordingly, we will commit Raymond Jackson to the custody of the Attorney General pursuant to 18 U.S.C. § 4246(d).
This case has had a long and unusual procedural history. On March 19, 2003, Defendant was indicted on charges of conspiracy to distribute cocaine base ("crack") in violation of 21 U.S.C. § 846 (Count One); possession of cocaine base ("crack") with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Count Seven); and possession of cocaine base ("crack") with intent to distribute within 1000 feet of a school, in violation of 21 U.S.C. § 860(a) (Count Eight). (Doc. No. 1.) Shortly after the Indictment, concerns were raised about Defendant's mental health and Defense counsel was authorized to employ Dr. Elliot Atkins to perform a forensic psychological evaluation of Defendant. (Doc. No. 87.) As a result of the examination of Defendant at the Federal Detention Center in Philadelphia ("FDC"), Dr. Atkins concluded that Defendant was suffering from a psychotic disorder and was not competent to stand trial. (Doc. No. 243, Ex. A (Atkins Letter of Jan. 12, 2004).) On February 19, 2004, we entered an Order directing that Defendant be committed to the custody of the Attorney General to be hospitalized for evaluation and treatment pursuant to 18 U.S.C. § 4241(d). (Doc. No. 118.) Defendant was evaluated and treated at the United States Medical Center for Federal Prisoners in Springfield, Missouri, from April 8, 2004, until July 14, 2004. On July 14, 2004, Mark Carter, Ph.D., a staff psychologist at that facility, submitted a report in which he concluded that Defendant met the diagnostic criterion for adjustment disorder with mixed disturbance of emotions and conduct, and antisocial personality disorder, but that he was competent to stand trial. (Carter Report at 10.)
On August 23, 2004, an Order was entered declaring Defendant competent to proceed to trial. (Doc. No. 196.) The following day, Defense counsel filed a Motion to Reconsider the August 23, 2004 Order (Doc. No. 197), asserting that Dr. Atkins remained convinced that Defendant was not competent. (Id.,Ex. A.)
A hearing was held on the Motion to Reconsider on September 17, 2004. (Doc. No. 205.) We subsequently vacated the Order of August 23, 2004, and directed that Defendant undergo an independent psychiatric evaluation by Dr. Pogos H. Voskanian (General and Forensic Psychiatry) to assist in the competency determination. (Doc. No. 222.) Dr. Voskanian examined Defendant on February 2, 2005, and found him to be competent. (Doc. No. 238.) Dr. Atkins reexamined Defendant and concluded that he was not competent. (Id.) A hearing was held on July 14, 2005, for the purpose of taking the testimony of Dr. Voskanian, Dr. Carter, Dr. Atkins, and Dr. Ira Kedson, a forensic psychologist at the FDC. (Id.) On October 7, 2005, we again found Defendant competent to stand trial, concluding that Defendant's conduct was volitional. (Doc. No. 250.)
Trial was scheduled for November 14, 2005. (See Doc. No. 249.) On October 27, 2005, we held a hearing, with Defendant and counsel present, on Defendant's request to proceed pro se at trial. (See Doc. No. 252.) Defendant repeatedly interrupted the proceedings. (See Hr'g Tr. Oct. 27, 2005.) The hearing was ultimately concluded when Defendant reached into his pants with his hand, pulled his hand out of his pants, and began to eat his own feces. (Id.)*fn1 Based upon this bizarre behavior, Dr. Voskanian was again asked to conduct a psychiatric assessment of Defendant. (Doc. No. 253.) Dr. Voskanian submitted a Competency to Stand Trial Evaluation on November 6, 2005 ("Voskanian Evaluation"). Dr. Voskanian found:
Mr. Jackson did not cooperate with either the formal mental status examination or the competency to stand trial evaluation. The defendant had displayed non-hygienic and disruptive behaviors. He had been noncompliant with his medications. The defendant has been assessed as a malingerer in the past. While some of his behaviors could be conscious and manipulative, the defendant has regressed and has difficulty tolerating the stress of his trial. . . . (Voskanian Evaluation at 2.) Dr. Voskanian recommended transferring Defendant to a psychiatric facility for behavioral management and observation. (Id. at 11.)
Counsel for Defendant filed a Motion for Continuance of the trial (Doc. No. 258) and on November 10, 2005, we entered an Order continuing the trial pursuant to 18 U.S.C. § 3161(h)(8)(A) [now § 3161(h)(7)(A)]. (Doc. No. 259.) The Government was directed to provide Defense counsel with all available medical records related to Defendant and a competency hearing was scheduled for January 25, 2006. (Doc. Nos. 262, 266.) At the competency hearing, we determined that Defendant was not competent to stand trial and ordered that he be committed to the custody of the Attorney General to be hospitalized for treatment pursuant to 18 U.S.C. §§ 4241(d)(1) and (2). (Doc. No. 173.) Counsel for the Government and counsel for Defendant agreed with this determination. (Doc. No. 272.) Defendant was transferred to the United States Medical Center at Springfield, Missouri. Defendant arrived at that facility on February 16, 2006, and remained there until July 18, 2007, at which time he was returned to the FDC in Philadelphia. He arrived in Philadelphia on July 23, 2007.
After Defendant's return from Springfield, Missouri, we received the following reports and letters regarding Defendant's mental health: (1) Forensic Report dated January 16, 2008, from Dr. James K. Wolfson, staff psychiatrist at the United States Medical Center for Federal Prisoners in Springfield, Missouri ("Wolfson Report"); (2) Certificate of Competency accompanying the Wolfson Report; (3) Letter from Defense counsel, Arthur Donato, Jr., Esq., dated February 1, 2008 ("Donato Letter of Feb. 1, 2008"); (4) Letter dated March 5, 2008, from Dr. Atkins ("Atkins Letter of Mar. 5, 2008") submitted in response to the Wolfson Report; (5) Letter dated September 26, 2008 from Dr. Andrea Boardman, chief psychologist at the FDC ("Boardman Letter"); (6) Letter from Donato dated October 7, 2008 ("Donato Letter of Oct. 7, 2008"); (7) Letter from Dr. Atkins dated October 6, 2008 ("Atkins Letter of Oct. 6, 2008") submitted in response to the Boardman Letter; (9) Letter from Dr. Atkins dated November 7, 2008 ("Atkins Letter of Nov. 7, 2008").
Based upon these reports and letters and after hearing on November 26, 2008, we determined that Defendant should be committed to the custody of the Attorney General pursuant to 18 U.S.C. § 4246(d).*fn2
The civil commitment process is governed by 18 U.S.C. § 4246. Section 4246(c) provides that the Court shall conduct a hearing on the matter. Id. § 4246(c). Section 4246(d) provides that [i]f, after the hearing, the court finds by clear and convincing evidence that the person 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 property of another, the court shall commit the person to the custody of the Attorney General. The Attorney General shall release the person to the appropriate official of the State in which the person is domiciled or was tried if such State will assume responsibility for his custody, care, and treatment. The Attorney General shall make all reasonable efforts to cause such a State to assume such responsibility. . . .
Id. § 4246(d). However, several courts have recognized that § 4246 contains "troubling gaps in the statutory scheme." United States v. Bonin, No. 07-0023, 2007 U.S. Dist. LEXIS 39127, at *19 n.6 (W.D. La. May 30, 2007) (citing United States v. Shawar, 865 F.2d 856, 863 (7th Cir. 1989), vacated and remanded, 541 F.3d 399 (2008); United States v. Wheeler, 744 F. Supp. 633, 636 (E.D. Pa. 1990)). In Bonin, the court recognized that the statutory scheme does not expressly set forth a procedure to follow when an incompetent defendant, who lacks a 'substantial probability' of attaining competence through additional hospitalization, is no longer in the custody of a federal medical facility, and hence no certificate addressing the defendant's dangerousness as contemplated by § 4246(a) may be filed by that facility.
2007 U.S. Dist. LEXIS 39127, at *26-27.When faced with a similar situation, the court in Wheeler concluded "that this court has an obligation to make a determination as to whether defendant's release is likely to create a substantial risk of danger to society." Wheeler, 744 F. Supp. at 639. The court went on to determine that, "[b]ecause of the black hole of legislation in which I find this court," the most prudent course would be to determine whether the defendant is competent to proceed to trial under § 4241(d) and, if not, to determine whether the defendant's release would create a substantial risk of bodily injury to another person or damage to property pursuant to § 4246(d). Wheeler, 744 F. Supp. at 639.
A. Conclusions of Mental Health Professionals
Dr. Voskanian examined Defendant at the FDC on November 1, 2005, after his feces-eating episode in open court. (See Voskanian Evaluation at 1-3.) Dr. Voskanian described how Defendant defended his consumption of his feces and urine with the explanation that it was healthy and protected him against disease. (Id. at 3-4.) Defendant also espoused various conspiracy theories: Defendant's arrest and imprisonment represent a kidnapping because "these people" want to cash in on his birth certificate; people are putting AIDS into vending machines to kill African-Americans; people steal his urine to clone him; people steal melanin from African-Americans so that they can stay out in the sun longer. (Id.) Upon questioning, Defendant reported hearing voices but did not wish to discuss the issue. ...