United States of America v. CHRISTOPHER MCGRATH, AKA David Powers

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER MCGRATH, AKA David
Powers,
Defendant-Appellant.
No. 18-50158
D.C. No. 2:13-cr-00285-R-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted May 17, 2019**
Pasadena, California
Before: NGUYEN and OWENS, Circuit Judges, and BAYLSON,*** District
Judge.
Christopher McGrath appeals from the district court’s order revoking his
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Michael M. Baylson, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
FILED
MAY 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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conditional release from commitment. This appeal arises from a 2013 trespassing
offense at Los Angeles International Airport, to which McGrath pled not guilty by
reason of insanity. As the parties are familiar with the facts, we do not recount
them here. We remand.
The parties agree that, under 18 U.S.C. § 4243(d), McGrath bore the burden
to prove “by a preponderance of the evidence” that “his release would not create a
substantial risk of bodily injury to another person or serious damage of property of
another due to a present mental disease or defect.” The district court erred by
applying a heightened burden of proof, requiring that McGrath “guarantee to the
Court that he’s not a danger.” Accordingly, we remand for the district court to
apply the correct preponderance standard in the first instance. See 18 U.S.C.
§ 4243(d).
In addition, we instruct the Chief Judge of the Central District of California
to reassign this case to a different district judge on remand because “reassignment
is advisable to preserve the appearance of justice.” United States v. Wells, 879
F.3d 900, 938 (9th Cir. 2018) (citation omitted).
REMANDED with instructions to reassign to a different district court judge.

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