United States of America v. Craig Thomas Donnelly

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CRAIG THOMAS DONNELLY ,
Defendant-Appellant.
No. 22-30081
D.C. Nos.
3:21-cr-00232-SI-1
3:21-cr-00232-SI
OPINION
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
Filed July 22, 2022
Before: Paul J. Watford, Ryan D. Nelson, and
Kenneth K. Lee, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Watford

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2 UNITED STATES V. DONNELLY
SUMMARY*
Criminal Law
The panel vacated the district court’s order denying
Craig Donnelly’s motion to dismiss an indictment, and
remanded to the district court with instructions to order the
Attorney General to hospitalize Donnelly within seven days,
in a case in which the district court, in November 2021,
(1) found that Donnelly is suffering from a mental disease or
defect rendering him mentally incompetent to the extent he
is presently unable to assist properly in his defense, and
(2) committed Donnelly to the custody of the Attorney
General, as required under the Insanity Defense Reform Act
(IDRA), 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.”
The panel held that the four-month time limit set forth in
18 U.S.C. § 4241(d)(1) begins to run when the defendant has
been hospitalized, not when the district court orders a
defendant committed to the custody of the Attorney General
for placement in a suitable hospital facility.
The panel did not need to reach whether the statute
allows some amount of pre-hospitalization confinement
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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UNITED STATES V. DONNELLY 3
because the delay here falls outside any constitutional
reading of the statute. The panel wrote that although
Congress did not provide a specific time limit for a pre-
hospitalization commitment period, Jackson v. Indiana, 406
U.S. 715 (1972), in which 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, requires
the duration of any pre-hospitalization commitment to “bear
some relation” to its purpose. The panel wrote that
Jackson’s “reasonable relation” requirement does not permit
a pre-hospitalization commitment period, whose purpose is
simply to identify an appropriate treatment facility and
arrange for the transportation to that facility, to last longer
than the maximum time Congress permitted for the period of
hospitalization itself. The panel thus concluded that
whatever the outer limit of § 4241(d), the length of
Donnelly’s confinement exceeds it, as Donnelly has now
been held in the pre-hospitalization custody of the Attorney
General for more than twice as long as the maximum period
Congress authorized for the entire length of a defendant’s
hospitalization.
The panel wrote that dismissal of the indictment, as
Donnelly has requested, is not the appropriate remedy.
Looking to the interests of the parties and the relevant
statutory scheme to craft an appropriate remedy, the panel
wrote that the district court possesses supervisory authority
to order the government to rectify violations of law with
remedies shaped to redress the corresponding injury. The
panel concluded that both Donnelly’s liberty interest and
Congress’s directive to restore incompetent defendants
where possible will be served by requiring the government
to hospitalize Donnelly without further delay. The panel
therefore vacated the district court’s order and remanded

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4 UNITED STATES V. DONNELLY
with instructions to order the Attorney General to hospitalize
Donnelly in a suitable facility within seven days. The panel
noted that nothing in this decision forecloses the possibility
that dismissal may become appropriate at a future date,
either in this case or in others like it, if a defendant is able to
show that the government’s unreasonable delay amounts to
the kind of flagrant misconduct warranting dismissal.
Concurring in the judgment, Judge Watford 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.
COUNSEL
Robert Hamilton (argued), Assistant Federal Public
Defender, Portland, Oregon, for Defendant-Appellant.
Amy E. Potter (argued), Appellate Chief; Scott Erik
Asphaug, United States Attorney; United States Attorney’s
Office, Eugene, Oregon; for Plaintiff-Appellee.

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UNITED STATES V. DONNELLY 5
OPINION
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.
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

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6 UNITED STATES V. DONNELLY
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 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 necessary to

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UNITED STATES V. DONNELLY 7
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 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

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8 UNITED STATES V. DONNELLY
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
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,
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 squarely presented the
question of when the statute’s four-month period begins, so neither is
binding on us here.

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UNITED STATES V. DONNELLY 9
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 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

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10 UNITED STATES V. DONNELLY
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 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.

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UNITED STATES V. DONNELLY 11
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 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
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.

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12 UNITED STATES V. DONNELLY
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 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

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UNITED STATES V. DONNELLY 13
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 due process
interests, we remand to the district court with instructions to
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.

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14 UNITED STATES V. DONNELLY
order the Attorney General to hospitalize Donnelly within
seven days.
VACATED and REMANDED.
The mandate shall issue forthwith.
WATFORD, Circuit Judge, concurring in the judgment:
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.

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UNITED STATES V. DONNELLY 15
Jan. 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).
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

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16 UNITED STATES V. DONNELLY
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.

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