United States v. Christopher McGrath

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 21, 2019
• Docket: 18-50158
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50158

Plaintiff-Appellee, D.C. No. 2:13-cr-00285-R-1

v. MEMORANDUM* CHRISTOPHER MCGRATH, AKA David Powers,

Defendant-Appellant.

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. 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.