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Criminal Practice – Mentally incompetent, dangerous individual may be civilly committed

By: S.C. Lawyers Weekly staff//October 27, 2021

Criminal Practice – Mentally incompetent, dangerous individual may be civilly committed

By: S.C. Lawyers Weekly staff//October 27, 2021

Where the defendant was deemed mentally incompetent to stand trial, was unlikely to be restored to competency in the foreseeable future and was a dangerous person, he was civilly committed.


Gary Curbow was charged in the Northern District of Mississippi with committing a federal criminal offense. The Mississippi district court deemed Curbow to be mentally incompetent to stand trial and temporarily placed him in the custody of the attorney general for further evaluation.

Staff members at FMC Butner eventually concluded that Curbow was unlikely to be restored to competency in the foreseeable future and that his mental condition rendered him dangerous to others. The government then filed a certificate in the Eastern District of North Carolina, where FMC Butner is located, attesting that Curbow was a dangerous person who should be civilly committed. Following an evidentiary hearing, the North Carolina district court agreed and ordered Curbow’s civil commitment.


Curbow principally argues that he was ineligible for civil commitment under this court’s recent decision in United States v. Wayda, 966 F.3d 294 (4th Cir. 2020), because the attorney general no longer had legal custody of him at the time of his dangerousness certification.

The record reflects that the FMC Butner evaluators understood that, pursuant to the June 6, 2019, order, they were to assess both Curbow’s restorability and dangerousness. In addition to recognizing that the FMC Butner evaluators complied with the Mississippi court’s 30-day deadline by completing their report within 30 days of the June 6, 2019, order, the North Carolina court found that it was not unreasonable that it took another 20 days for FMC Butner’s warden and the united states attorney to review the report and prepare and file the § 4246 certificate.

Curbow contends that the North Carolina court erred in focusing on the 49-day period. Curbow argues that the court should have instead considered the entire period of his custody—not just his continuous confinement at FMC Butner since Aug. 22, 2018, but his custody reaching back to March 2018 when he was first evaluated for mental competency to stand trial.

Curbow’s entire-period-of-custody contention is based on a misinterpretation of one sentence of Wayda. Under Curbow’s reading of that sentence, this court held that the proper subject of the reasonableness inquiry was Wayda’s entire period of custody. But the court did not so hold. Therefore, the North Carolina court correctly focused on the 49-day period. That is the period comparable to the crucial six-month period in Wayda, between Wayda’s unrestorability determination and his § 4248 certification.

Relatedly, Curbow argues that the North Carolina court should have ruled that the government was obliged to conduct his dangerousness evaluation well before his unrestorability determination. The problem for Curbow is that the North Carolina court did not say that a dangerousness evaluation must be conducted prior to an unrestorability determination whenever possible. Nor is there other precedent or statutory authority for that proposition.

Finally, Curbow asserts that the North Carolina court’s “determination that the time period was reasonable does not bear scrutiny.” Curbow seeks to replace the reasonableness standard with a quickest-possible-manner test. Again, this court rejects Curbow’s effort and recognizes that the North Carolina court correctly evaluated the Government’s conduct for reasonableness.

Turning to whether the North Carolina court erred by rejecting Curbow’s theory that his legal custody expired before the third period of § 4241(d) custody even began, as a result of unreasonable delays in the first two periods of § 4241(d) custody, § 4246(a) eligibility provisions are not subject matter jurisdictional and may be waived. Here, the court concludes that the theory has been waived and thus does not decide its merits as a matter of either evidence or law.



(Thacker, J.): I concur with the majority opinion that Curbow has waived the opportunity to challenge the delays in his first two periods of 18 U.S.C. § 4241(d) custody. I write separately solely to address my colleague’s concurring opinion regarding Wayda.


(Traxler, J.): I recognize, of course, that Wayda is binding precedent and that we are obliged to apply its holding. Wayda, however, did not resolve the question about the effect of internal delays during the § 4241 evaluation process, and I believe, at a minimum, that we should exercise caution before extending it beyond its actual, relatively limited holding.

United States v. Curbow (Lawyers Weekly No. 001-177-21, 67 pp.) (Robert Bruce King, J.) (Stephanie Thacker, J., concurring) (William Byrd Traxler Jr., S.J., concurring) Case No. 20-7797. Oct. 19, 2021. From E.D.N.C. at Raleigh (W. Earl Britt, S.J.) Jennifer Claire Leisten for Appellant. Genna Danelle Petre for Appellee.

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