Court filing
Report and Recommendation Declining § 4246 Proceedings — United States v. Evan Edwards (a/k/a Ian Heringa) and Joshua Edwards
Summary
A magistrate judge's report and recommendation, filed January 7, 2025 as Document 243 in United States v. Evan Edwards, Case No. 6:22-cr-201-WWB-LHP, in the U.S. District Court for the Middle District of Florida. It recommends that the court decline to refer the defendant for any assessments under 18 U.S.C. § 4246 and that it set a hearing on the disposition of the case. The background recounts an indictment returned December 7, 2022 charging conspiracy to commit bank fraud, bank fraud and two counts of visa fraud under 18 U.S.C. § 1349, § 1344 and § 1546(a), followed by competency proceedings under 18 U.S.C. §§ 4241 and 4247. It states that on November 1, 2024 the court found the defendant not competent to proceed and ordered his release on pretrial conditions. The report reasons that without a Bureau of Prisons certificate the court lacks jurisdiction to order further assessments.
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No. 6:22-cr-00201-AGM-LHP · Doc. 243 · Docket on CourtListener
Full text
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
UNITED STATES OF AMERICA
VS. CASE NO: 6:22-cr-201-WWB-LHP
EVAN EDWARDS
REPORT AND RECOMMENDATION
TO THE UNITED STATES DISTRICT COURT:
This case comes before the Court following extensive competency
proceedings under 18 U.S.C. §§ 4241 and 4247. On November 1, 2024, the
undersigned found Defendant Evan Edwards to be suffering from a mental disease
or defect rendering him mentally incompetent to the extent that he is unable to
understand the nature and consequences of the proceedings against him or to assist
properly in his defense, that his mental condition has not so improved as to permit
proceedings in this case to go forward, and that the chances his competency will be
restored in the foreseeable future are low. Doc. Nos. 235, 238. See also 18 U.S.C.
§ 4241(d). The question of whether the assessment and commitment proceedings
under 18 U.S.C. § 4246 apply to Evan Edwards remains outstanding, and the
undersigned directed the parties to file legal memoranda on the issue. Doc. No.
239.
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The parties have timely submitted their legal memoranda (Doc. Nos. 240-41),
and upon review of same as well as the record and specific facts of this case and
applicable persuasive legal authority, the undersigned will RESPECTFULLY
RECOMMEND that the Court decline to order any further proceedings under 18
U.S.C. § 4246.
I. BACKGROUND
The lengthy procedural history of this case is set forth in prior Court orders,
see Doc. Nos. 117, 136, 145, 190, 226, 238, and is incorporated herein. On December
7, 2022, a grand jury returned an indictment charging Evan Edwards with one count
of conspiracy to commit bank fraud, one count of bank fraud, and two counts of
visa fraud, in violation of 18 U.S.C. § 1349, 18 U.S.C. § 1344, and 18 U.S.C. § 1546(a),
respectively. Doc. No. 1. Evan Edwards was arrested on December 14, 2022 and
since that time, issues regarding his competency to proceed have dominated this
case. See, e.g., Doc. Nos. 9, 14, 21, 50, 84-85, 117, 136, 145, 152, 154, 190, 226, 238.
Initially, two experts - Dr. Ryan C.W. Hall, M.D., DFAPA, and Dr. Miriam
Kissin, Psy. D. – opined that Evan Edwards was incompetent to proceed. See Doc.
Nos. 58, 98 (both sealed). Accordingly, after following the procedures set forth in
18 U.S.C. § 4142(a), the Court found Evan Edwards incompetent to stand trial as
defined by 18 U.S.C. § 4241(d) and committed him to the custody of the Attorney
General for restoration evaluation and treatment. Doc. No. 136; see also Doc. No.
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117. At the conclusion of the restoration process, Dr. Chad Brinkley, Ph.D., ABPP,
a board-certified forensic psychologist employed by the Bureau of Prisons (“BOP”)
opined that Evan Edwards was incompetent to proceed, and that he was unlikely
to become competent in the foreseeable future. Doc. No. 228 (sealed). An
additional expert retained by the United States – forensic neurologist Dr. Ryan
Darby, M.D. – reviewed all available records and reports and concurred that Evan
Edwards was incompetent, and that his chances of restoration in the foreseeable
future were low. Doc. No. 237 (sealed). No party objected to any of the opinions
from these experts.
The undersigned thereafter held a hearing with counsel for the parties on
November 1, 2024. Doc. No. 238. The undersigned engaged in a discussion with
the parties concerning the next steps in this case, and also reviewed a status report
filed by the United States on October 29, 2024. Doc. Nos. 234-35. Both parties
agreed that Evan Edwards was incompetent to stand trial, and that his competency
was unlikely to be restored in the foreseeable future. Id. Both parties also agreed
that Evan Edwards was now eligible for pretrial release, and agreed to the
undersigned ordering his immediate release pursuant to certain pretrial conditions.
Id. And the parties agreed that the provisions of 18 U.S.C. § 4248, which address
civil commitment of a sexually dangerous person, do not apply in this case. The
only point of contention was whether the assessment and commitment provisions
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of 18 U.S.C. § 4246, which address civil commitment proceedings to determine
dangerousness, were mandatory and if so, how they would apply in this case. Id.
At the conclusion of the November 1, 2024 hearing, the undersigned found
Defendant Evan Edwards to be presently suffering from a mental disease or defect
rendering him mentally incompetent to the extent that he is unable to understand
the nature and consequences of the proceedings against him or to assist properly in
his defense, that his mental condition has not so improved as to permit proceedings
in this case to go forward, and that the chances his competency will be restored in
the foreseeable future are low. Doc. No. 238. The undersigned further ordered
Evan Edwards’ release on the same conditions previously established (Doc. No.
114) and appointed Mary Jane Edwards and Joy Edwards as joint third-party
custodians. Doc. No. 238, at 5-6. Evan Edwards remains on pretrial release
without any reported issues as of the date of this report and recommendation.
With respect to the applicability of 18 U.S.C. § 4246, the undersigned directed the
parties to submit briefing on whether the provisions of 18 U.S.C. § 4246 – in
particular the dangerousness assessment by the Bureau of Prisons and issuance of
a certification on same – are mandatory or may be waived given the specific facts
and circumstances of this case. Doc. No. 238, at 4; Doc. No. 239.
The parties have timely-filed their legal memoranda. Doc. Nos. 240-41.
Neither side is requesting that the Court remand Evan Edwards to the Bureau of
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Prisons for any further assessments or proceedings under 18 U.S.C. § 4246, however
both sides agree that the applicable legal authority and statutory text is less than
clear. Id. For the reasons discussed below, the undersigned will recommend that
further proceedings under 18 U.S.C. § 4246 are not appropriate in this case for two
alternative reasons: (1) the Court does not have jurisdiction to order any further
proceedings; and (2) if jurisdiction does exist, that the Court exercise its discretion
not to order any further proceedings given the specific facts and procedural history
of this case.
II. ANALYSIS
Section 4241(d) of the Insanity Defense Reform Act (“IDRA”) provides as
follows:
(d) Determination and disposition.--If, after the hearing, the
court finds by a preponderance of the evidence that the defendant is
presently suffering from a mental disease or defect rendering him
mentally incompetent to the extent that he is unable to understand the
nature and consequences of the proceedings against him or to assist
properly in his defense, the court shall commit the defendant to the
custody of the Attorney General. The Attorney General shall
hospitalize the defendant for treatment in a suitable facility—
(1) 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; and
(2) for an additional reasonable period of time until—
(A) his mental condition is so improved that trial may proceed,
if the court finds that there is a substantial probability that within such
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additional period of time he will attain the capacity to permit the
proceedings to go forward; or
(B) the pending charges against him are disposed of according
to law;
whichever is earlier.
If, at the end of the time period specified, it is determined that
the defendant’s mental condition has not so improved as to permit the
proceedings to go forward, the defendant is subject to the provisions of
sections 4246 and 4248.
18 U.S.C. § 4241(d) (emphasis added).
Section 4248 concerns the civil commitment of a “sexually dangerous
person,” and all parties agree that § 4248 does not apply in this case. 18 U.S.C. §
4248(a). Section 4246 also concerns civil commitment, and provides, in relevant
part, as follows:
If the director of a facility in which a person is hospitalized certifies that
a person . . . who has been committed to the custody of the Attorney
General pursuant to section 4241(d) . . . 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, and that suitable arrangements for State
custody and care of the person are not available, he shall transmit the
certificate to the clerk of the court for the district in which the person is
confined . . . [and t]he court shall order a hearing to determine whether
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.
18 U.S.C. § 4246(a) (emphasis added).
The United States recognizes that the statutory interplay between 18 U.S.C.
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§§ 4241 and 4246 “is less than clear,” and that “some question of jurisdiction” exists
as to whether and when a court can initiate proceedings under § 4246. See Doc.
No. 234, at 10-11; Doc. No. 240, at 9-12. The United States also states that it is
unaware of any legal authority mandating either the Court or the Bureau of Prisons
to issue a § 4246(a) certification or conduct a dangerousness hearing. Doc. No. 240,
at 12. Despite this lack of clarity, the United States argues that the Court should
determine if the facts and circumstances of this case warrant a dangerousness
assessment, and if so, refer Evan Edwards to the Bureau of Prisons for such an
assessment. Doc. No. 234, at 12; see also Doc. No. 240, at 11 (stating the Court had
jurisdiction or authority to make such a determination at the November 1, 2024
hearing). The United States further states that it will not object to any
determination the Court makes. Doc. No. 234, at 2.
Evan Edwards does not address in his post-hearing briefing the jurisdictional
issues or the lack of clarity in the applicable statutory scheme. Doc. No. 241.
Instead, Evan Edwards argues that “given the patent severity of [his] physical and
cognitive limitations,” it is clear that Evan Edwards is not a danger to another
person or to the property of another, and therefore any further proceedings under
§ 4246 “would lead to an absurdity,” and “only result in delaying . . . an inevitable
and unavoidable result.” Id., at 6-7. But before the undersigned can address Evan
Edwards’ concerns, the undersigned must first consider the jurisdictional
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implications noted by the United States.
A. The Court’s Jurisdiction
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994). Thus, the court only possesses the
jurisdictional authority “authorized by [the] Constitution and statute.” Id. (citation
omitted). Upon consideration of the plain text of both §§ 4241 and 4246, the
undersigned finds that the Court is without jurisdiction to order any further
dangerousness assessments in this case.
The undersigned first notes that there is nothing in § 4241(d) that mandates a
referral for a dangerousness assessment. Instead, the statute merely provides that
an incompetent defendant is “subject to” § 4246, without defining the phrase
“subject to.”
The language of § 4246 also does not make referral for a dangerousness
assessment mandatory in all cases where a defendant is found incompetent to stand
trial. Rather, § 4246(a) provides that a dangerousness hearing cannot be held
absent first receiving a certificate from the BOP that the defendant is dangerous.
See 18 U.S.C. § 4246(a) (“If the director of a facility in which a person is hospitalized
certifies that a person in the custody of the Bureau of Prisons . . . 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
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property of another . . . . The court shall order a hearing. . . .”). Stated differently,
there is nothing in the text of § 4246 that authorizes federal courts to hold a
dangerousness hearing without a certificate from the BOP. See United States v.
Chappell, No. 8:18-cr-344-VMC-AAS, Doc. No. 184, at 6 (M.D. Fla. Jan. 11, 2023),
report and recommendation adopted, Doc. No. 188 (M.D. Fla. Jan. 27, 2023) (“No
provision of Section 4246 unambiguously grants federal courts the authority to hold
a dangerousness hearing without a dangerousness certificate.”). And for purposes
of the present issue, there is also nothing in § 4246 that expressly authorizes a court
to order the director of a medical facility to issue such a certificate. Rather,
§4246(a), which is titled “Institution of proceeding” starts with the requirement that
the director at the appropriate BOP facility must first issue a certificate. Thus,
absent a certificate from the BOP, nothing in § 4246 permits a court to sua sponte
detain and/or order a dangerousness evaluation.
The absence of such mandatory language is even more notable when
compared to other sections of the IDRA. For example, when a defendant is found
incompetent, § 4241(d) mandates that “the court shall commit the defendant to the
custody of the Attorney General,” for restoration and “[t]he Attorney General shall
hospitalize the defendant for treatment in a suitable facility.” See also Doc. No. 136;
United States v. Lee, No. 1:21-CR-20034, 2022 WL 18275882, at *3 (S.D. Fla. Dec. 27,
2022), report and recommendation adopted, 2023 WL 168755 (S.D. Fla. Jan. 12, 2023)
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(“Upon a finding of incompetence to continue in proceedings against a criminal
defendant, a court must commit the defendant to the custody of the Attorney
General for a period not to exceed four months to evaluate whether the defendant
may be restored to competency. Such commitment is mandatory.” (first citing 18
U.S.C. § 4241(d)(1), then citing United States v. Donofrio, 896 F.2d 1301, 1303 (11th
Cir. 1990))); United States v. Calhoun, No. 2:22-cr-167-ECM, 2023 WL 2316186, at *1
(M.D. Ala. Mar. 1, 2023), appeal dismissed, No. 23-10773, 2023 WL 3863505 (11th Cir.
June 7, 2023) (“Upon the finding of incompetency, commitment to the custody of
the Attorney General for a period of restoration is mandatory.” (citing 18 U.S.C. §
4241(d)(1); Donofrio, 896 F.2d at 1303)). When a defendant intends to rely on an
insanity defense and the United States files a motion, 18 U.S.C. § 4242(a) mandates
that the court “shall order that a psychiatrist or psychological examination of the
defendant” take place. And when a defendant is found not guilty by reason of
insanity, 18 U.S.C. § 4243(a) mandates that a defendant “shall be committed to a
suitable facility,” until the defendant’s condition improves such that he is eligible
for release.
The undersigned further notes that, unlike § 4246, other provisions of the
IDRA expressly provide a court the discretion to hold hearings on its own motion.
See 18 U.S.C. § 4241(a) (where there is reasonable cause to believe a defendant is not
competent to stand trial, “[t]he court shall grant the motion or shall order such a
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hearing on its own motion . . .”); 18 U.S.C. § 4244(a) (authorizing a court to hold a
hearing on whether to hospitalize a convicted defendant “at any time prior to the
sentencing of the defendant . . . on its own motion”).
But no such mandatory or discretionary language exists with respect to civil
commitment proceedings under § 4246. A court is not required to refer a
defendant for § 4246 proceedings, nor is a court authorized to sua sponte initiate such
proceedings. Rather, the statutory language makes clear that a court may only
engage in § 4246 proceedings once the BOP issues an appropriate certificate. Thus,
when § 4246 is read both alone and in context with the IDRA statutory scheme, the
undersigned finds that the Court is without jurisdiction to make the referral to
initiate civil commitment proceedings absent a certificate from the BOP. See
Chappell, No. 8:18-cr-344-VMC-AAS, Doc. No. 184, report and recommendation
adopted, Doc. No. 188 (M.D. Fla. Jan. 27, 2023); see also W. Virginia v. Env’t Prot.
Agency, 597 U.S. 697, 721 (2022) (“It is a fundamental canon of statutory construction
that the words of a statute must be read in their context and with a view to their
place in the overall statutory scheme.” (citing Davis v. Michigan Dept. of Treasury,
489 U.S. 803, 809 (1989))).
The Eleventh Circuit Court of Appeals does not appear to have addressed
this issue, but another Court in this District has. See United States v. Chappell, No.
8:18-cr-344-VMC-AAS, Doc. No. 188 (M.D. Fla. Jan. 27, 2023). In Chappell, the
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defendant – after undergoing seven competency evaluations by five different
medical examiners – was found incompetent to proceed, with the possibility of
restoration in the foreseeable future low. Id., Doc. No. 184. The BOP did not issue
any certificates under § 4246, however the United States asked United States District
Judge Virginia M. Hernandez Covington to remand the defendant for a
dangerousness evaluation under § 4246. Id., Doc. Nos. 176, 183. Magistrate Judge
Amanda A. Sansone issued a report recommending that the plain meaning of § 4246
did not authorize a court to conduct a dangerousness evaluation unless and until
the director of the BOP facility issued a certificate of dangerousness to person or
property, and because no certificate had issued, no proceedings under § 4246 could
commence. Id., Doc. No. 184. Judge Covington adopted the report and
recommendation in full, and denied the United States’ request to engage in any
further § 4246 proceedings. Id., Doc. No. 188.
The undersigned finds the reasoning and conclusion of Chappell persuasive
and applicable here. It is undisputed that the BOP has not issued a certificate
under § 4246(a) in this case. Dr. Brinkley noted in his forensic evaluation report
the potential application of § 4246, but stated that an evaluation under § 4246 could
be conducted “only if the court issues a ruling finding Mr. Edwards incompetent
and not restorable in conjunction with a new order for a forensic evaluation
pursuant to Title 18, USC 4246.” Doc. No. 228, at 37. However, nothing further
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has issued from the BOP, the United States has not filed any motions requesting
referral for a § 4246 assessment, and the United States did not object to Evan
Edwards’ pretrial release at the November 1, 2024 hearing absent any BOP
certification.
Because no BOP facility director has forwarded to the Court a certificate on
Evan Edwards’ dangerousness, the undersigned will recommend that the Court
find it is without jurisdiction to conduct any further proceedings under § 4246. See,
e.g., United States v. Lapi, 458 F.3d 555, 563 (7th Cir. 2006) (“[Section] 4246 is triggered
only by the filing of a Certificate of Mental Disease or Defect and Dangerousness by
the ‘director of [the] facility in which [the defendant] is hospitalized.’”); United
States v. Bonin, 541 F.3d 399, 401 (5th Cir. 2008) (“Section 4246(a) establishes the
director’s certification as a necessary prerequisite to a dangerousness hearing;
without the certification, a court ordinarily lacks statutory authority to conduct the
hearing.” (footnote omitted)); United States v. Wigren, 641 F.3d 944, 946 (8th Cir.
2011) (“The [IDRA] sets forth procedures for involuntary civil commitment of
federal detainees. The warden is responsible for commencing proceedings under
§ 4246”); United States v. Cruz-Ruiz, 585 F. Supp. 3d 167, 170 (D. Puerto Rico 2022)
(“[T]his Court is unpersuaded that it has the authority to continue to detain
Defendant and order a dangerousness assessment pursuant to Section 4246.”); see
also United States v. Baker, 807 F.2d 1315, 1323-24 (6th Cir. 1986) (stating that, in the
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absence of a certification and by failing to strictly adhere to the procedures outlined
in Section 4246(a), the district court “lacked statutory authority” to commit the
defendant); United States v. Sahhar, 917 F.2d 1197, 1204 (9th Cir. 1990) (“Section 4246
permits civil commitment only if the court finds by clear and convincing evidence
that the person suffers from a mental disease or defect and thus poses a substantial
risk of bodily injury to another or serious property damage. And, of course, a
defendant is not subject to section 4246’s provisions at all unless the government
has sufficient grounds to prosecute for a criminal act and the director of the facility
at which the defendant is being treated certifies that the defendant poses a
substantial risk to society as a result of his condition” (citations omitted)). 1
1
In its post-hearing briefing, the United States cites to United States v. Ferguson, No.
04-CR-14041, 2020 WL 5100099 (S.D. Fla. Aug. 5, 2020), report and recommendation adopted,
2020 WL 4922360 (S.D. Fla. Aug. 21, 2020) for the proposition that upon a finding of
incompetency, a court must initiate § 4246 proceedings, even without first receiving a BOP
certificate. Doc. No. 240, at 10. The undersigned is not persuaded by the reasoning of
Ferguson, and also notes that unlike the present case, the United States in Ferguson was
affirmatively requesting a dangerousness assessment under § 4246. For these same
reasons, the undersigned also does not find persuasive the United States’ reliance on
United States v. Rivera-Morales, 365 F. Supp. 2d 1139 (S.D. Cal. 2005) or Sealed v. Sealed, 802
F. App’x 138 (5th Cir. 2020).
The United States cites two other decisions in its pre-hearing status update. Doc.
No. 234, at 11. Upon review, the undersigned finds neither decision to be persuasive.
United States v. Wayda, 966 F.3d 294 (4th Cir. 2020), stands for the proposition that a
certificate of sexual dangerousness under 18 U.S.C. § 4248 must issue before a defendant’s
period of commitment to the Attorney General’s custody for treatment has ended in order
for § 4248’s civil commitment proceedings to go forward. And United States v. Curbow, 16
F.4th 92 (4th Cir. 2021), addressed whether a 49-day delay in initiating § 4246 proceedings
was unreasonable, and found most of the defendant’s arguments waived.
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B. Referral Under § 4246
In the event the Court disagrees with the undersigned and finds that
jurisdiction exists to sua sponte refer Evan Edwards for § 4246 proceedings, the
undersigned alternatively recommends that the Court decline to exercise its
discretion to make such referral. Under the facts of this case, the undersigned does
not believe Evan Edwards poses a substantial risk of bodily injury to another person
or serious damage to property of another. See 18 U.S.C. § 4246(a).
It is undisputed that Evan Edwards suffers from a myriad of physical and
mental conditions, and that he is dependent on others for his basic activities of daily
living. See, e.g., Doc. No. 241, at 5. He has suffered injuries to his heart, kidneys,
and lungs, brain swelling and brain hemorrhages, as well as a stroke, has been
hospitalized on several occasions, and is largely bedridden. See, e.g., Doc. No. 237,
at 3. Each expert has opined that Evan Edwards suffers from moderate to severe
dementia and significant and permanent cognitive deficits; his condition is not
predicted to improve. See, e.g., Doc. No. 228, at 37; Doc. No. 237, at 3-4. No
medical expert has suggested or opined that he poses any danger to himself, to
others, or to property. In addition, the United States contacted the staff at BOP
Federal Medical Center Devens (“FMC Devens”), where Evan Edwards’ restoration
evaluation and treatment took place, to discuss potential § 4246 proceedings. Doc.
No. 234, at 10; Doc. No. 240, at 8. According to the United States, staff at FMC
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Devens “candidly acknowledge[d] that given the defendant’s current charges, his
lack of criminal record, his adjustment at FMC Devens, as well as his diagnosis and
prognosis, it is unlikely that the defendant meets the criteria under 4246 that ‘his
release would create a substantial risk of bodily injury to another person or serious
damage to property of another.’” Doc. No. 234, at 10; Doc. No. 240, at 8.
Moreover, and perhaps most importantly, the United States has made no argument
or request that Evan Edwards be referred for any further proceedings under § 4246.
See Doc. No. 240, at 1-2 (“The government does not waive [a § 4246] assessment, but
also does not ask the Court to consider the assessment beyond that which was
raised and considered at the November 1, 2024 hearing. Put another way, the
government is not requesting either the issuance of a dangerousness certificate or a
referral to FMC Devens for a dangerousness evaluation under 18 U.S.C. § 4246(b).”)
At this point, Evan Edwards has been under federal custody and/or
supervision since December 14, 2022. He has been evaluated directly by three
medical experts, and a fourth has reviewed all available records. There is a
complete absence of any evidence in the record to suggest Evan Edwards poses any
danger, and he was released on relatively lenient pretrial conditions without
objection by the United States. See Doc. Nos. 114, 238. He was indicted on non-
violent charges, (Doc. No. 1) and there is no evidence of a history of violence or any
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incidents of non-compliance while at any BOP facility or while on pretrial release. 2
See, e.g., Doc. Nos. 98, 228. Thus, in the absence of any evidence suggesting
dangerousness, as well as the United States’ representation that it is not requesting
any dangerousness assessment under § 4246, the undersigned will respectfully
recommend in the alternative that the Court not refer Evan Edwards for any § 4246
proceedings. See, e.g., United States v. Martin, No. CR 08-1012 JB, 2011 WL 5220310,
at *11 (D.N.M. Sept. 27, 2011) (“Given that the court has discretion to order a
psychological or psychiatric report at all under § § 4246 and 4248, the court can
consider a variety of relevant information in the civil commitment context.”). But
cf. United States v. Ecker, 424 F. Supp. 2d 267, 268 (D. Mass. 2006) (ordering referral
of defendant under 18 U.S.C. § 4246 in part based on conclusion in BOP forensic
report issued at the restoration stage that the defendant’s release would present a
substantial risk of bodily injury to another person or serious damage to the property
of another, because “[t]hat finding rendered the defendant potentially subject to
indefinite confinement under 18 U.S.C. § 4246”); United States v. Ferguson, No. 04-
CR-14041, 2020 WL 5100099, at *1, 6-7 (S.D. Fla. Aug. 5, 2020), report and
recommendation adopted, 2020 WL 4922360 (S.D. Fla. Aug. 21, 2020) (ordering referral
2
The issues concerning Evan Edwards’ prior pretrial release related to the
cooperation and compliance of his third-party custodian, Mary Jane Edwards. See Doc.
No. 190. There is no evidence that Evan Edwards himself failed to comply with any Court
directives.
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of defendant to the BOP for assessment under § 4246 to determine if a certificate
should be issued based in part on the defendant’s lengthy and serious criminal
history, the serious offenses of conviction, and the United States’ request for a
referral).
III. RECOMMENDATION
For the reasons set forth above, the undersigned RESPECTFULLY
RECOMMENDS that the Court decline to refer Defendant Evan Edwards for any
proceedings, hearings, or assessments under 18 U.S.C. § 4246. The undersigned
further recommends that the Court set this case for a hearing, at a date to the
established by the Court, to discuss with the parties the ultimate disposition of this
case. 3
NOTICE TO PARTIES
A party has fourteen days from the date the Report and Recommendation is
served to serve and file written objections to the Report and Recommendation’s
factual findings and legal conclusions. Failure to serve written objections waives
that party’s right to challenge on appeal any unobjected-to factual finding or legal
3
In the event the Court disagrees in toto with this report and recommendation and
finds that 18 U.S.C. § 4246 is mandatory, the undersigned alternatively recommends that
the Court set a hearing with the parties and the United States Marshals Service to discuss
the logistics for remanding Evan Edwards to the custody of the Attorney General to
conduct the initial § 4246(a) assessment.
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Case 6:22-cr-00201-AGM-LHP Document 243 Filed 01/07/25 Page 19 of 19 PageID
1560
conclusion the district judge adopts from the Report and Recommendation. 11th
Cir. R. 3-1.
Recommended in Orlando, Florida on January 7, 2025.
Copies furnished to:
Presiding District Judge
Counsel of Record
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