United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
matter came before the court on April 24, 2017, for a hearing
on the Government's Motion for Psychiatric Examination.
Dkt. 57. The court orally denied the motion at the hearing.
This written memorandum will supplement the court's oral
August of 2015, defendant Justin Jacks was charged in a
three-count Indictment with unlawful possession and
distribution of child pornography. Dkt. 11. On January 25,
2016, based upon a stipulated defense report, the court found
that defendant was not competent to stand trial and ordered
that he be committed to the custody of the Attorney General
for treatment pursuant to 18 U.S.C. § 4241(d). Dkt. 44.
On December 19, 2016, the court granted a request to extend
receipt of an additional psychological report (Dkt. 53) in
February, 2017, the court held a hearing and determined that
defendant was not competent to stand trial and would not
likely regain competence in the foreseeable future. The court
indicated it would grant the defendant's motion to
dismiss the indictment on that basis, but it stayed the
dismissal to permit the Government to file a motion for a
psychiatric evaluation to determine whether defendant's
release would pose a danger.
Motion for Examination.
Government moves pursuant to 18 U.S.C. § 4248 for an
order directing the defendant to submit to a psychiatric or
psychological evaluation to determine if he is a sexually
dangerous person. Dkt. 57 at 1. The Government argues that
the instant offenses are considered crimes of violence and
stated that they involved images of pre-pubescent children
being made to perform sex acts. It argues that such conduct
warrants further examination to determine if defendant poses
a risk as a sexually dangerous person.
4248 deals with civil commitment of sexually dangerous
persons. In the case of a defendant due for release by reason
of dismissal of criminal charges on grounds of mental
incompetence, this provision states in part that the Attorney
General or Director of the Bureau of Prisons may certify that
the person is a sexually dangerous person. If such a
certificate is transmitted to the court,  the court must
order a hearing to determine whether the person is a sexually
dangerous person. § 4248(a). Prior to the hearing, the
court may order an examination of the defendant. §
4248(b). If, after the hearing, the court finds by clear and
convincing evidence that the defendant is a sexually
dangerous person, the court must commit the person to the
custody of the Attorney General. § 4248(d).
4247 specifically defines the term “sexually dangerous
person” to mean “a person who has engaged or
attempted to engage in sexually violent conduct or child
molestation and who is sexually dangerous to
others….” § 4247(a)(5). “Sexually
dangerous to others” means that the person
“suffers from a serious mental illness, abnormality, or
disorder as a result of which he would have serious
difficulty in refraining from sexually violent conduct or
child molestation if released.” § 4247(a)(6).
§ 4247 indicates, one essential element of being a
sexually dangerous person is a finding that the person
“has engaged or attempted to engage in sexually violent
conduct or child molestation.” The Government has not
addressed or disputed defendant's assertion that he has
never attempted to engage in any sexually violent conduct or
child molestation. The closest it comes to doing so is to
argue that the Chapter 110 offenses with which defendant is
charged are considered “crimes of violence” under
18 U.S.C. § 3156(a)(4)(C). Dkt. 57 at 2. But that
definition of “crime of violence” applies only
“in sections 3141-3150 of” Chapter 207, and thus
has no application to § 4247 or § 4248.
See 18 U.S.C. § 3156(a).
any suggestion or showing that defendant has engaged in
sexually violent conduct or child molestation, there is no
possibility that he could be found to be a sexually dangerous
person. The court accordingly denies the Government's
motion for an examination pursuant to §
THEREFORE ORDERED this 25th day of April, 2017, that the
Government's Motion for Psychiatric Examination (Dkt. 57)
FURTHER ORDERED that defendant's Motion to Dismiss the
Indictment (Dkt. 52) is GRANTED, and that all other pending