Opinion
No. 18-50158
05-21-2019
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHRISTOPHER MCGRATH, AKA David Powers, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. No. 2:13-cr-00285-R-1 MEMORANDUM 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.
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. --------
Christopher McGrath appeals from the district court's order revoking his 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.