United States District Court, W.D. Virginia, Big Stone Gap Division
Zachary T. Lee, Assistant United States Attorney, Abingdon,
Virginia, for United States.
C. Dickenson, Assistant Federal Public Defender, Abingdon,
Virginia, for Marc Mark Gagnon.
OPINION AND ORDER
P. Jones, United States District Judge.
Mark Gagnon, who is subject to conditions imposed by this
court following his release from civil commitment, has moved
to remove or modify those conditions. Following a hearing and
for the reasons set forth hereafter, his request will be
now thirty-eight years old, has a long history of mental
illness. He was diagnosed with schizophrenia at the age of
eighteen. In 2005 he became obsessed with a well-known
actress. He wrote a series of letters to the actress and her
husband, threatening to kill them unless they divorced. After
he made these threats, he left his home to drive to New York
City, where the actress was performing. En route, he had a
serious car accident in this district and while hospitalized,
his prior obsession and threats became known to the
authorities, and he was arrested and subsequently charged in
this court with interstate stalking in violation of 18 U.S.C.
§ 2261A. On December 12, 2006, the court found Gagnon
not guilty solely by reason of insanity. He was thereafter
civilly committed pursuant to 18 U.S.C. § 4243(e).
a hearing on June 29, 2010, the court found that Gagnon had
proved by clear and convincing evidence that he had recovered
from his mental disease or defect to such an extent that his
release on conditions would no longer create a substantial
risk of bodily injury to another person or serious damage to
property of another. He was accordingly ordered released
subject to a number of stated conditions pursuant to 18
U.S.C. § 4243(f)(2).
accord with the conditions of release, Gagnon lived with his
mother and stepfather and was required to comply with a
prescribed regimen of psychiatric care, including
antipsychotic medication. However, in 2012 his mental
condition deteriorated. His then-treating psychiatrist
reported that Gagnon's symptoms were getting worse and
that he was at a high risk for decompensating. It was
discovered that he had been viewing inappropriate materials
over the internet and had become infatuated with another
female celebrity. As a result, the probation office filed a
petition alleging violation of his conditions of release.
Gagnon was arrested, and by order entered April 17, 2013, he
was committed for a psychiatric examination and report to the
court. Following that report and a hearing, the court
dismissed the violation petition and released Gagnon, subject
to modified conditions of release. Order, Oct. 3, 2013, ECF
thereafter complied with his conditions of release. As a
result, the court removed the condition requiring location
monitoring, based on the request of his supervising probation
officer. Order, Jan. 19, 2016, ECF No. 205. His only known
problem occurred when his probation officer learned through
computer monitoring that he had established a Facebook
account using a pseudonym. He explained that he did so only
to protect his privacy and not for any untoward purpose. The
probation officer required him to close the account and the
conduct has not been repeated.
is presently subject to the conditions of release established
in 2013, as modified in early 2016 to remove location
monitoring. On July 29, 2016, the court received a letter
from Gagnon, requesting that he be removed from his
conditions of release. Counsel was appointed for him, who
filed an amended motion on his behalf, requesting that the
condition requiring computer monitoring be removed and that
his situation be reviewed in twelve months and, if deemed
appropriate, all further conditions of release be eliminated.
Am. Mot., Oct. 14, 2016, ECF No. 212.
statute, the court has the authority at any time to modify or
eliminate conditions of release of an acquittee, after a
hearing and employing the same criteria used in determining
his release on conditions. 18 U.S.C. § 4243(f). A
hearing was held on the requests on February 28, 2017. Gagnon
testified, as well as his mother, his supervising probation
officer, and his mental health therapist.
initial matter, counsel for Gagnon contends that the court
has no authority to impose any condition other than the
“prescribed regimen” condition expressly
permitted by statute. I disagree.
person found not guilty by reason of insanity may be
conditionally discharged from civil commitment if the
director of the facility determines, and the court agrees,
that the person “has recovered from his mental disease
or defect to such an extent that . . . his conditional
release under a prescribed regimen of medical, psychiatric,
or psychological care or treatment, would no longer create a
substantial risk of bodily injury to another person.”
18 U.S.C. § 4243(f)(2). Under such circumstances, the
court is required by law to “order, as an explicit