United States of America v. Carmen Gricco

1The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri, adopting the Report and Recommendation of the Honorable
James C. England, Chief Magistrate Judge of the United States District Court for the
Western District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2889
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United States of America,
Appellee,
v.
Carmen Gricco,
Appellant.
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Appeal from the United States
District Court for the
Western District of Missouri.
[UNPUBLISHED]
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Submitted: November 15, 2010
Filed: November 29, 2010
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Before WOLLMAN, HANSEN, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Carmen Gricco appeals the district court's1 order committing him to the custody
of the Attorney General for care or treatment of a mental disease or defect pursuant
to 18 U.S.C. § 4245, arguing that the Government presented only equivocal evidence
of his need for commitment. We affirm.

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Gricco is serving a life sentence following his 2002 conviction for conspiracy
to manufacture and attempted manufacture of methamphetamine, money laundering,
aiding and abetting, and possession of a firearm and a machine gun. While housed at
the United States Penitentiary in Pollock, Louisiana (USP Pollock), Gricco went on
a hunger strike in January 2008, driven by delusions about the FBI arriving to release
him from prison because of a murder cover up. He was transferred to the United
States Medical Center for Federal Prisoners (USMCFP) in Springfield, Missouri,
where he resumed eating and was cooperative. Mental health personnel evaluated and
interviewed Gricco, and they determined he was not definitively delusional and should
be returned to USP Pollock. Gricco was screened at the Federal Transfer Center
(FTC) in Oklahoma City, Oklahoma en route back to USP Pollock on March 27, 2008,
where he was again perceived to be delusional about a murder cover-up.
Upon return to USP Pollock, Gricco refused orders, accused mail room staff of
conspiring to tamper with his legal mail, was increasingly hostile, and spoke
constantly about his illegal incarceration and the conspiracies against him. Gricco
started another hunger strike, and he was returned to USMCFP on August 27, 2008,
for evaluation for inpatient treatment. Gricco was assessed by Dr. John Randall
Brandt, Chief Psychologist at USMCFP. Dr. Brandt concluded that Gricco suffered
from delusional disorder, persecutory type, and recommended that he be committed
under § 4245. The United States filed a petition under § 4245(a) to determine Gricco's
mental condition, and, at Gricco's request, the district court ordered a separate mental
examination by Dr. Kenneth J. Burstin, a private clinical psychologist. After
interviewing Gricco and reviewing his file, Dr. Burstin diagnosed Gricco with adult
antisocial disorder and paranoid personality disorder but ruled out delusional disorder,
persecutory type, because he found the data to be equivocal. The magistrate judge
conducted an evidentiary hearing on February 19, 2009, during which Dr. Brandt, Dr.
Burstin, and Gricco testified. The magistrate judge issued a Report and
Recommendation on May 8, 2009, concluding that Gricco suffered a mental disease

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or defect and needed commitment. The district court adopted the Report and
Recommendation on June 15, 2009, and ordered Gricco committed. Gricco appeals.
Section 4245 allows the United States to file a petition to have a federal inmate
"transferred to a suitable facility for care or treatment" if the inmate objects to the
suggested transfer. § 4245(a). Following a hearing, the court "shall commit the
person to the custody of the Attorney General" for hospitalization if "the court finds
by a preponderance of the evidence that the person is presently suffering from a
mental disease or defect for the treatment of which he is in need of custody for care
or treatment in a suitable facility." § 4245(d). A district court's conclusion that an
inmate suffers from a mental disease or defect needing commitment is a question of
fact we review for clear error. See United States v. Bean, 373 F.3d 877, 879 (8th Cir.
2004).
Gricco argues that the Government failed to meet its burden of establishing by
a preponderance of the evidence that he suffers from a mental disease or defect,
pointing to Dr. Burstin's conclusion that the data about his mental state was equivocal.
Dr. Burstin noted that Gricco had exhibited similar behavior for nearly three years and
that he was not seen as needing commitment the prior spring, and, in Dr. Burstin's
view, the data base had not changed sufficiently to support the change in diagnosis.
As Gricco recognizes, the Government can meet its burden by presenting an
expert witness diagnosing the inmate with a delusional disorder, and the district court
does not commit clear error even if the defendant produces another expert with a
differing opinion. See id. at 879-80 (affirming district court's finding that inmate
suffered from mental disease or defect based on Government expert's opinion and
defendant's own testimony, even though defense expert opined defendant's condition
was adequately controlled with medication). Although Dr. Burstin believed that
Gricco's behavior had not changed significantly, Dr. Brandt opined that Gricco was
indeed experiencing his delusional beliefs differently than previously presented and

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that his delusions had grown to include the USMCFP staff. The district court was
within its discretion to credit Dr. Brandt's opinion over Dr. Burstin's, and it did not
clearly err in finding that Gricco suffers from a mental disease or defect needing
commitment.
The district court's judgment is affirmed.
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