United States v. Wilbert Cherry, Jr., No. 14-3843 (8th Cir. 2015)
Annotate this CaseCourt Description: Per Curiam - Before Wollman, Murphy and Gruender, Circuit Judges] Criminal case - Criminal law. Claim the district court improperly relied on hearsay evidence in making its finding that defendant was suffering from a mental disease or defect and would pose a substantial risk of injury to others and their property rejected; there was no clear error in the court's dangerousness finding in light of the unanimous expert opinion recommending commitment under 18 U.S.C. Sec. 4246. [ May 04, 2015
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 14-3843 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Wilbert H. Cherry, Jr. lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Western District of Missouri - Springfield ____________ Submitted: April 27, 2015 Filed: May 5, 2015 [Unpublished] ____________ Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges. ____________ PER CURIAM. William Cherry, Jr. appeals the district court’s1 order committing him to the custody of the Attorney General for hospitalization and treatment pursuant to 18 1 The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri, adopting the report and recommendations of the Honorable David P. Rush, United States Magistrate Judge for the Western District of Missouri. U.S.C. § 4246, upon the court’s finding, by clear and convincing evidence, that Cherry is suffering from a mental disease or defect as a result of which his release would pose a substantial risk of bodily injury to another person or serious damage to the property of another. For reversal, Cherry argues that the court improperly relied upon hearsay in committing him. Reviewing for plain error because Cherry did not raise a hearsay objection below, see United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc), we reject the argument, see 18 U.S.C. § 4246(b); United States v. LeClair, 338 F.3d 882, 885 (8th Cir. 2003) (facts and data that form basis for expert opinion need not be admissible in evidence). We also find no clear error in the court’s dangerousness finding, in light of the unanimous expert opinion recommending section 4246 commitment. See id. (standard of review); cf. United States v. Lewis, 929 F.2d 440, 442 (8th Cir. 1991) (per curiam). Accordingly, we affirm the judgment of the district court. We also grant counsel’s motion to withdraw, subject to counsel informing appellant about procedures for seeking rehearing or filing a petition for certiorari. ______________________________ -2-
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