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332 the time of M. de Marignac as I felt I could do at this hour. October 4. Went with Swainson to the Jardin du Roi to interpret for him, and afterwards spent some time with Geoffrey de St. Hilaire, hearing from him some curious facts respecting the habits and conformation of the Mole. He gave me a ticket to the distribution of the Grand Prix at the Institut. I then ascended four of the longest staircases I know, to reach the cabinet of M. Pascale, the director of the expenses of S. A. R. the Duc d'Orléans. What order was here! Different bookcases contained the papers belonging to the forests—horses—furniture—fine arts—libraries—fisheries—personal expenses, and so on. M. Pascale took out M. Redouté's letter, and I perceived the day of subscription, number of plates per annum, all, was noted on the margin. M. Pascale sent me to the private apartments of the Duchesse. Judge of my astonishment when I found this house connected with the Palais-Royal. I went through a long train of corridors, and reached the cabinet of M. Goutard. He took my name and heard my request and promised to make an appointment for me through M. Redouté, who is the drawing-master of the daughters of the Duchesse. With Parker I went to see the distribution of prizes at L'Institut Français. The entrance was crowded, and, as in France pushing and scrambling to get forward is out of the question, and very properly so, I think, we reached the amphitheatre when it was already well filled with a brilliant assemblage, but secured places where all could be seen. The members dress in black trimmed with rich green laces. The youths aspiring to rewards were seated round a table, facing the audience. The reports read, the prizes were given, those thus favored receiving a crown of laurel with either a gold or silver medal. We remained here from two till five. Sunday, October 5. After a wonderful service at Notre Dame I wandered through Les Jardins des Plantes, and

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Rh on to Cuvier's, who had promised me a letter to some one who would, he thought, subscribe to my book; but with his usual procrastination it was not ready, and he said he would write it to-morrow. Oh, cursed to-morrow! Do men forget, or do they not know how swiftly time moves on?

October 6. Scarce anything to write. No letter yet from the Minister of the Interior, and I fear he too is a "To-morrow man." I went to Cuvier for his letter; when he saw me he laughed, and told me to sit down and see his specimens for a little while; he was surrounded by reptiles of all sorts, arranging and labelling them. In half an hour he rose and wrote the letter for me to the Duke of Levis, but it was too late to deliver it to-day.

October 7. While with M. Lesson to-day, he spoke of a Monsieur d'Orbigny of La Rochelle; and on my making some inquiries I discovered he was the friend of my early days, my intimate companion during my last voyage from France to America; that he was still fond of natural history, and had the management of the Musée at La Rochelle. His son Charles, now twenty-one, I had held in my arms many times, and as M. Lesson said he was in Paris, I went at once to find him; he was out, but shortly after I had a note from him saying he would call to-morrow morning.

October 8. This morning I had the great pleasure of receiving my god-son Charles d'Orbigny. Oh! what past times were brought to my mind. He told me he had often heard of me from his father, and appeared delighted to meet me. He, too, like the rest of his family, is a naturalist, and I showed him my work with unusual pleasure. His father was the most intimate friend I have ever had, except thee, my Lucy, and my father. I think I must have asked a dozen times to-day if no letter had come for me. Oh, Ministers! what patience you do teach artists!

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

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 October 11. This afternoon, as I was despairing about the ministers, I received a note from Vicomte Siméon, desiring I should call on Monday. I may then finish with these high dignitaries. I saw the King and royal family get out of their carriages at the Tuileries; bless us! what a show! Carriages fairly glittering—eight horses in each, and two hundred hussars and outriders. A fine band of music announced their arrival. Dined at Baron Cuvier's, who subscribed to my work; he being the father of all naturalists, I felt great pleasure at this. I left at eleven, the streets dark and greasy, and made for the shortest way to my hotel, which, as Paris is a small town compared to London, I found no difficulty in doing. I am astonished to see how early all the shops close here.

October 13. At twelve o'clock I was seated in the antechamber of the Vicomte Siméon; when the sergeant perceived me he came to me and said that M. Siméon desired me to have the first interview. I followed him and saw a man of ordinary stature, about forty, fresh-looking, and so used to the courtesy of the great world that before I had opened my lips he had paid me a very handsome compliment, which I have forgot. The size of my work astonished him, as it does every one who sees it for the first time. He told me that the work had been under discussion, and that he advised me to see Baron de la Brouillerie and Baron Vacher, the secretary of the Dauphin. I told him I wished to return to England to superintend my work there, and he promised I should have the decision to-morrow (hated word!) or the next day. I thought him kind and complaisant. He gave the signal for my departure by bowing, and I lifted my book, as if made of feathers, and passed out with swiftness and alacrity. I ordered the cab at once to the Tuileries, and after some trouble found the Cabinet of the Baron de Vacher; there, Lucy, I really waited like a Blue Heron

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Rh on the edge of a deep lake, the bottom of which the bird cannot find, nor even know whether it may turn out to be good fishing. Many had their turns before me, but I had my interview. The Baron, a fine young man about twenty-eight, promised me to do all he could, but that his master was allowed so much (how much I do not know), and his expenses swallowed all. October 14. Accompanied Parker while he was painting Redouté's portrait, and during the outlining of that fine head I was looking over the original drawings of the great man; never have I seen drawings more beautifully wrought up, and so true to nature. The washy, slack, imperfect messes of the British artists are nothing in comparison. I remained here three hours, which I enjoyed much. October 15. Not a word from the minister, and the time goes faster than I like, I assure thee. Could the minister know how painful it is for an individual like me to wait nearly a month for a decision that might just as well have been concluded in one minute, I am sure things would be different. October 18. I have seen two ministers this day, but from both had only promises. But this day has considerably altered my ideas of ministers. I have had a fair opportunity of seeing how much trouble they have, and how necessary it is to be patient with them. I arrived at Baron de la Brouillerie's at half-past eleven. A soldier took my portfolio, that weighs nearly a hundred pounds, and showed me the entrance to a magnificent antechamber. Four gentlemen and a lady were there, and after they had been admitted and dismissed, my name was called. The Baron is about sixty years old; tall, thin, not handsome, red in the face, and stiff in his manners. I opened my book, of which he said he had read much in the papers, and asked me why I had not applied to him before. I told him I had written some weeks ago. This

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Rh King, all his men in white liveries, came driving at full speed, and followed by other grandees. The King and these gentry descended from their carriages and mounted fine horses, which were in readiness for them; they were immediately surrounded by a brilliant staff, and the review began, the Duchesses d' Orléans and de Berry having now arrived in open carriages; from my perch I saw all. The Swiss troops began, and the manœuvres were finely gone through; three times I was within twenty-five yards of the King and his staff, and, as a Kentuckian would say, "could have closed his eye with a rifle bullet." He is a man of small stature, pale, not at all handsome, and rode so bent over his horse that his appearance was neither kingly nor prepossessing. He wore a three-cornered hat, trimmed with white feathers, and had a broad blue sash from the left shoulder under his right arm. The Duc d' Orléans looked uncommonly well in a hussar uniform, and is a fine rider; he sat his horse like a Turk. The staff was too gaudy; I like not so much gold and silver. None of the ladies were connections of Venus, except most distantly; few Frenchwomen are handsome. The review over, the King and his train rode off. I saw a lady in a carriage point at me on the wall; she doubtless took me for a large black Crow. The music was uncommonly fine, especially that by the band belonging to the Cuirassiers, which was largely composed of trumpets of various kinds, and aroused my warlike feelings. The King and staff being now posted at some little distance, a new movement began, the cannon roared, the horses galloped madly, the men were enveloped in clouds of dust and smoke; this was a sham battle. No place of retreat was here, no cover of dark woods, no deep swamp; there would have been no escape here. This was no battle of New Orleans, nor Tippecanoe. I came down from my perch, leaving behind me about thirty thousand idlers like myself, and the soldiers, who must have been hot and dusty enough. —22

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338 October 20. Nothing to do, and tired of sight-seeing. Four subscriptions in seven weeks. Slow work indeed. I took a long walk, and watched the Stock Pigeons or Cushats in the trees of Le Jardin des Tuileries, where they roost in considerable numbers, arriving about sunset. They settle at first on the highest trees, and driest, naked branches, then gradually lower themselves, approach the trunks of the trees, and thickest parts, remain for the night, leave at day-break, and fly northerly. Blackbirds do the same, and are always extremely noisy before dark; a few Rooks are seen, and two or three Magpies. In the Jardin, and in the walks of the Palais-Royal, the common Sparrow is prodigiously plenty, very tame, fed by ladies and children, killed or missed with blow-guns by mischievous boys. The Mountain Finch passes in scattered numbers over Paris at this season, going northerly, and is caught in nets. Now, my love, wouldst thou not believe me once more in the woods, hard at it? Alas! I wish I was; what precious time I am wasting in Europe.

October 21. Redouté told me the young Duchesse d'Orléans had subscribed, and I would receive a letter to that effect. Cuvier sent me one hundred printed copies of his Procès verbal. October 22. The second day of promise is over, and not a word from either of the ministers. Now, do those good gentlemen expect me to remain in Paris all my life? They are mistaken. Saturday I pack; on Tuesday morning farewell to Paris. Redouté sent me three volumes of his beautiful roses, which thou wilt so enjoy, and a compliment which is beyond all truth, so I will not repeat it. October 26. I received a letter from Baron de la Brouillerie announcing that the King had subscribed to my work for his private library. I was visited by the secretary of the Duc d'Orléans, who sat with me some time, a clever and entertaining man with whom I felt quite at ease. He told me that I might now expect the

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Rh of most of the royal family, because none of them liked to be outdone or surpassed by any of the others. Good God! what a spirit is this; what a world we live in! I also received a M. Pitois, who came to look at my book, with a view to becoming my agent here; Baron Cuvier recommended him strongly, and I have concluded a bargain with him. He thinks he can procure a good number of names. His manners are plain, and I hope he will prove an honest man. He had hardly gone, when I received a letter from M. Siméon, telling me the Minister of the Interior would take six copies for various French towns and universities, and he regretted it was not twelve. So did I, but I am well contented. I have now thirteen subscribers in Paris; I have been here two months, and have expended forty pounds. My adieux will now be made, and I shall be en route for London before long.

London, November 4. I travelled from Paris to Boulogne with two nuns, that might as well be struck off the calendar of animated beings. They stirred not, they spoke not, they saw not; they replied neither by word nor gesture to the few remarks I made. In the woods of America I have never been in such silence; for in the most retired places I have had the gentle murmuring streamlet, or the sound of the Woodpecker tapping, or the sweet melodious strains of that lovely recluse, my greatest favorite, the Wood Thrush. The great poverty of the country struck me everywhere; the peasantry are beggarly and ignorant, few know the name of the Département in which they live; their hovels are dirty and uncomfortable, and appear wretched indeed after Paris. In Paris alone can the refinements of society, education, and the fine arts be found. To Paris, or to the large cities, the country gentleman must go, or have nothing; how unlike the beautiful country homes of the English. I doubt not

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 the "New Monthly" would cry out: "Here is Audubon again, in all his extravagance." This may be true, but I write as I think I see, and that is enough to render me contented with my words. The passage from Calais was short, and I was free from my usual seasickness, and London was soon reached, where I have been busy with many letters, many friends, and my work. I have presented a copy of my birds to the Linnæan Society, and sold a little picture for ten guineas. And now I must to work on the pictures that have been ordered in France.

November 7. To-day is of some account, as Mr. Havell has taken the drawings that are to form the eleventh number of my work. It will be the first number for the year 1829. I have as yet had no answer from the Linnæan Society, but thou knowest how impatient my poor nature always is.

November 10. I have been painting as much as the short days will allow, but it is very hard for me to do so, as my Southern constitution suffers so keenly from the cold that I am freezing on the side farthest from the fire at this very instant. I have finished the two pictures for the Duc d'Orléans; that of the Grouse I regret much to part with, without a copy; however, I may at some future time group another still more naturally.

November 15. We have had such dismal fog in this London that I could scarcely see to write at twelve o'clock; however, I did write nearly all day. It has been extremely cold besides, and in the streets in the middle of the day I saw men carrying torches, so dark it was.

November 17. I anticipated this day sending all my copies for Paris, but am sadly disappointed. One of the colorers employed brought a number so shamefully done that I would not think of forwarding it. It has gone to be washed, hot pressed, and done over again. Depend upon it, my work will not fail for the want of my own very particular attention.

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Rh December 23. After so long neglecting thee, my dear book, it would be difficult to enter a connected account of my time, but I will trace the prominent parts of the lapse. Painting every day, and I may well add constantly, has been the main occupation. I have (what I call) finished my two large pictures of the Eagle and the Lamb, and the Dog and the Pheasants, and now, as usual, can scarce bear to look at either. My friends the Swainsons have often been to see me, and good Bentley came and lived with me for a month as a brother would. I parted from him yesterday with pain and regret. Several artists have called upon me, and have given me false praises, as I have heard afterwards, and I hope they will keep aloof. It is charity to speak the truth to a man who knows the poverty of his talents and wishes to improve; it is villanous to mislead him, by praising him to his face, and laughing at his work as they go down the stairs of his house. I have, however, applied to one whom I know to be candid, and who has promised to see them, and to give his opinion with truth and simplicity; this is no other, my Lucy, than the president of the Royal Academy, Sir Thomas Lawrence. The steady work and want of exercise has reduced me almost to a skeleton; I have not allowed myself the time even to go to the Zoölogical Gardens. December 26. I dined yesterday (another Christmas day away from my dear country) at a Mr. Goddard's; our company was formed of Americans, principally sea-captains. During my absence Sir Thomas Lawrence came to see my paintings, which were shown to him by Mr. Havell, who reported as follows. On seeing the Eagle and Lamb he said, "That is a fine picture." He examined it closely, and was shown that of the Pheasants, which I call "Sauve qui peut." He approached it, looked at it sideways, up and down, and put his face close to the canvas, had it moved from one situation to two others in

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342 different lights, but gave no opinion. The Otter came next, and he said that the "animal" was very fine, and told Havell he would come again to see them in a few days. I paid him my respects the next morning, and thought him kinder than usual. He said he would certainly come to make a choice for me of one to be exhihited at Somerset House, and would speak to the Council about it.

The remaining three months before Audubon sailed for America, April 1, 1829, were passed in preparations for his absence from his book, and many pages of his fine, close writing are filled with memoranda for Mr. Havell, Mr. J. G. Children, and Mr. Pitois. Audubon writes: "I have made up my mind to go to America, and with much labor and some trouble have made ready. My business is as well arranged for as possible; I have given the agency of my work to my excellent friend Children, of the British Museum, who kindly offered to see to it during my absence. I have collected some money, paid all my debts, and taken my passage in the packet-ship 'Columbia,' Captain Delano. I chose the ship on account of her name, and paid thirty pounds for my passage. I am about to leave this smoky city for Portsmouth, and shall sail on April 1." The voyage was uneventful, and America was reached on May 1. Almost immediately began the search for new birds, and those not delineated already, for the continuation and completion of the "Birds of America."

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Eastport, Maine, June 4. Our vessel is being prepared for our reception and departure, and we have concluded to hire two extra sailors and a lad; the latter to be a kind of major-domo, to clean our guns, etc., search for nests, and assist in skinning birds. Whilst rambling in the woods this morning, I found a Crow's nest, with five young, yet small. As I ascended the tree, the parents came to their offspring crying loudly, and with such perseverance that in less than fifteen minutes upwards of fifty pairs of these birds had joined in their vociferations; yet when first the parents began to cry I would have supposed them the only pair in the neighborhood. Wednesday, June 5. This afternoon, when I had concluded that everything relating to the charter of the "Ripley" was arranged, some difficulty arose between myself and Mr. Buck, which nearly put a stop to our having his vessel. Pressed, however, as I was, by the lateness of the season, I gave way and suffered myself to be imposed upon as usual, with a full knowledge that I was so. The charter was signed, and we hoped to have sailed, but to-morrow is now the day appointed. Our promised Hampton boat is not come. Thursday, June 6. We left the wharf of Eastport about one o'clock Everyone of the male population came to see the show, just as if no schooner the size of the

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350 "Ripley" had ever gone from this mighty port to Labrador. Our numerous friends came with the throng, and we all shook hands as if never to meet again. The batteries of the garrison, and the cannon of the revenue cutter, saluted us, each firing four loud, oft-echoing reports. Captain Coolidge accompanied us, and indeed was our pilot, until we had passed Lubec. The wind was light and ahead, and yet with the assistance of the tide we drifted twenty-five miles, down to Little River, during the night, and on rising on the morning of June 7 we were at anchor near some ugly rocks, the sight of which was not pleasing to our good captain. June 7. The whole morning was spent trying to enter Little River, but in vain; the men were unable to tow us in. We landed for a few minutes, and shot a Hermit Thrush, but the appearance of a breeze brought us back, and we attempted to put to sea. Our position now became rather dangerous, as we were drawn by the current nearly upon the rocks; but the wind rose at last, and we cleared for sea. At three o'clock it became suddenly so foggy that we could not see the bowsprit. The night was spent in direful apprehensions of ill luck; at midnight a smart squall decided in our favor, and when day broke on the morning of June 8 the wind was from the northeast, blowing fresh, and we were dancing on the waters, all shockingly sea-sick, crossing that worst of all dreadful bays, the Bay of Fundy. We passed between the Seal Islands and the Mud Islands; in the latter Procellaria wilsonii, the Stormy Petrel, breeds abundantly; their nests are dug out of the sand in an oblique direction to the depth of two, or two and a half feet. At the bottom of these holes, and on the sand, the birds deposit their pure white eggs. The holes are perforated, not in the banks like the Bank Swallow, but are like rat holes over the whole of the islands. On Seal Islands Larus argentatus, the Herring Gull, breeds as abundantly as on Grand Menan, but

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Rh altogether on trees. As we passed Cape Sable, so called on account of its being truly a sand-point of some caved-in elevation, we saw a wrecked ship with many small crafts about it. I saw there Uria troile, the Foolish Guillemot, and some Gannets. The sea was dreadful, and scarcely one of us was able to eat or drink this day. We came up with the schooner "Caledonia," from Boston for Labrador; her captain wished to keep in our company, and we were pretty much together all night and also on Sunday. June 9. We now had a splendid breeze, but a horrid sea, and were scarce able to keep our feet, or sleep. The "Caledonia" was very near to us for some time, but when the breeze increased to a gale, and both vessels had to reef, we showed ourselves superior in point of sailing. So good was our run that on the next morning, June 10, we found ourselves not more than thirty miles from Cape Canseau, ordinarily called Cape Cancer. The wind was so fair for proceeding directly to Labrador that our captain spoke of doing so, provided it suited my views; but, anxious as I am not to suffer any opportunity to escape of doing all I can to fulfil my engagements, I desired that we should pass through what is called "The Gut of Canseau," and we came into the harbor of that name at three of the afternoon. Here we found twenty vessels, all bound to Labrador, and, of course, all fishermen. We had been in view of the southeastern coast of Nova Scotia all day, a dreary, poor, and inhospitable-looking country. As we dropped our anchor we had a snowfall, and the sky had an appearance such as I never before recollect having seen. Going on shore we found not a tree in blossom, though the low plants near the ground were all in bloom; I saw azaleas, white and blue violets, etc., and in some situations the grass really looked well. The Robins were in full song; one nest of that bird was found; the

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The New International Encyclopædia/Fessenden, Thomas Green

FESSENDEN, (1771-1837). An American writer. He was born at Walpole, N. H., and graduated at Dartmouth in 1796. He was for some time in London engaged in an enterprise which ruined him financially, and while there advertised the metallic tractors of Benjamin D. Perkins (q.v.) in a grotesque poem entitled Terrible Tractoration (1803), a satire upon the medical profession which opposed the use of the instruments. In 1822 he started in Boston the New England Farmer, with which he was connected until his death. For two years he was editor of the Weekly Inspector in New York City. Among his further works are: Pills, Poetical, Political, and Philosophical, Prescribed for the Purpose of Purging the Public of Piddling Philosophers, Penny Poetasters, of Paltry Politicians, and Petty Partisans, by Peter Pepperbox, Poet and Physician (1809); Democracy Unveiled (1806); American Clerk's Companion (1815); The Ladies' Monitor (1818); and Laws of Patents for New Inventions (1822). Consult Hawthorne, Fanshawe, and Other Pieces (Boston, 1876).


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United States v. Weed (389 F.3d 1060)/Opinion of the Court

TYMKOVICH, Circuit Judge.

On December 12, 2001, twenty-seven year old Jason Weed walked outside his Tulsa, Oklahoma, apartment complex and fired two handgun rounds at a postal worker. The second shot struck and killed the victim. Weed, who had no history of mental illness, was peaceably apprehended and charged with the murder of a federal employee. Prior to the nonjury trial, Weed and the government stipulated that Weed was insane at the time of the shooting. Following the trial, the district court judge found Weed not guilty by reason of insanity and committed him to a mental health institution. In May 2003, seventeen months after the shooting, the district court held a commitment hearing as required by statute to determine whether Weed was entitled to release under 18 U.S.C. 4243 (2000), the federal statute governing commitment of persons found not guilty by reason of insanity. Mental health experts from both sides testified that Weed suffered from a psychotic episode at the time of the shooting, but that his symptoms had since disappeared. Both sides' experts also agreed that Weed may still have a latent mental illness or disorder that had not been triggered since the time of the crime. Based on the evidence presented at the commitment hearing, the district court found that Weed had failed to prove by clear and convincing evidence that his release into the community would not create a substantial risk of danger to others, and committed him to the custody of the Attorney General of the United States. On appeal, we must decide (1) whether Congress violates the due process rights of insanity acquittees by requiring them to prove their entitlement to release by a clear and convincing burden of proof; (2) whether Congress violates equal protection by placing a higher burden of proof for release on the class of insanity acquittees who have committed serious crimes; and (3) whether the district court clearly erred in finding Weed had not met the statutory standard for release.

We hold that the clear and convincing burden of proof under 18 U.S.C. 4243(d) does not violate the Constitution, and that the district court did not commit reversible error in ordering Weed's continued confinement. Therefore, we affirm.

I. Background A. The Shooting and the Charges

On the morning of December 12, 2001, Jason Weed calmly walked from his apartment building and, with no apparent provocation, shot and killed United States Postal Service employee Robert Jenkins as the letter carrier made his daily rounds. Tulsa police responded and quickly arrested Weed, who was found in a disoriented state several blocks from the shooting. Witnesses said Weed was acting very strangely at the time of his arrest, refusing to respond to officers' questions and singing "Jingle Bells." The videotape officers took of Weed's post-arrest interrogation captured his strange behavior.(1) In the video, Weed alternates between extreme laughter and anger and makes numerous unresponsive and irrational statements. At times he appears calm and coherent, and at others his behavior is erratic and his speech incomprehensible. Weed became so incoherent and agitated that officers eventually stopped their questioning. Weed was subsequently charged with the murder of a federal employee and use of a firearm in connection with a crime of violence, in violation of 18 U.S.C. 1111 and 1114, and 18 U.S.C.   924(c). He was detained in a federal medical center pending trial and evaluated for competency at the request of both his attorney and the prosecution.

The district court held a nonjury trial in August 2002. Based on the psychological evaluations previously conducted, the parties stipulated that Weed had committed the crimes charged and that Weed had suffered from a mental disorder at the time of the offense that rendered him unable to appreciate the nature of his actions. After a hearing, the district court entered a special verdict finding Weed not guilty by reason of insanity and ordered him committed to a mental hospital for further psychological examination as required by 18 U.S.C.

(1)     Weed's motion to supplement the record on appeal with the videotape, Plaintiff's Exhibit A in the district court, is granted pursuant to Tenth Circuit Rule 10.3(D)(4). We have reviewed the videotape as part of the record. 4243(a)Ä(b).(2)

In May 2003, nine months after Weed's acquittal by reason of insanity, the district court held an evidentiary hearing as required by 18 U.S.C.  4243(c).(3)  The purpose of the hearing was to determine whether Weed could prove by clear and convincing evidence that his release into the community would not create a "substantial risk of bodily injury to another person." 18 U.S.C.  4243(d) and (e). Before the hearing, the district court denied Weed's motion to strike as unconstitutional the clear and convincing evidence standard contained in 4243(d). The court received both testimonial and written evidence at the hearing on whether Weed met the statutory standard for release. We summarize that evidence in detail here.

1. Testimony of Dr. Curtis Grundy (for Weed)

Dr. Curtis Grundy is a licensed Oklahoma psychologist who first evaluated Weed to determine whether he was competent to stand trial. (IV R.O.A. at 11Ä12) Beginning five days after the offense, Dr. Grundy administered numerous psychological tests, reviewed the videotape of Weed after his arrest, interviewed Weed's friends and relatives about his behavior prior to the shooting, and reviewed Weed's records from the federal medical center where he was detained. (Id. at 15Ä19) Dr. Grundy testified that Weed displayed symptoms of psychosis at the time of the shooting, including visual and auditory hallucinations, paranoia, delusions, and severe agitation. (Id. at 19Ä20) He explained that although Weed demonstrated significant mental status impairment during the initial evaluative session, "over the course of December 2001[] his symptoms were abating or resolving." (Id. at 19) He therefore diagnosed Weed as having suffered from a brief psychotic disorder and noted that Weed showed no signs of "malingering," or feigning symptoms of mental illness for secondary gain. (Id. at 17, 29) In December 2002, approximately one year after the crime, Dr. Grundy performed additional psychological tests in preparation for Weed's commitment (2)     Section 4243 provides, as pertinent here: (a) Determination of present mental condition of acquitted person. If a person is found not guilty only by reason of insanity at the time of the offense charged, he shall be committed to a suitable facility until such time as he is eligible for release pursuant to subsection       (e). (b) Psychiatric or psychological examination and report. Prior to the date of the hearing, pursuant to subsection (c), the court shall order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provisions of section 4247(b) and (c). (3)     Section 4243(c) states:  "A hearing shall be conducted . . . and shall take place not later than forty days following the special verdict." In this case, the hearing did not occur within forty days due to several motions to continue at Weed's request.

hearing. These tests included a clinical interview and mental status evaluation to rate Weed for psychopathy and violence. (Id. at 20) At the hearing, Dr. Grundy testified that Weed's psychotic symptoms had not recurred since December 2001, and that he currently met no Diagnostic and Statistical Manual of Mental Disorders-IV (DSM-IV)(4) criteria for mental disease. (Id. at 19, 21) In Dr. Grundy's opinion, Weed's brief psychotic disorder was caused by a mental defect. The exact nature of the defect, however, is unknown. (Id. at 29, 32) Dr. Grundy testified that none of the tests he relied upon could predict whether Weed will experience another onset of symptoms. (Id. at 35) He also testified that, according to the DSM-IV, recurrence of a brief psychotic disorder is rare. (Id. at 33) On cross-examination, Dr. Grundy agreed that a person who has suffered an onset of psychosis is more likely to suffer another occurrence and presents a greater risk to the public than someone who has never had such a condition. (Id. at 43) Finally, Dr. Grundy stated the potential exists that Weed may still have the mental defect, but that it has not been triggered since December 2001. (Id. at 33Ä34)

(4)     The Diagnostic and Statistical Manual of Mental Disorder IV is the definitive source for the classification of mental illnesses. See American Psychiatric Association, The Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). 2. Testimony of Dr. Harrison Pope (for the Government) The district court certified Dr. Harrison Pope, a Harvard Medical School psychiatrist, as an expert in psychotic disorders. (Id. at 74) As a professor of psychiatry, Dr. Pope helped draft the diagnostic criteria for psychotic disorders used in the DSM-III and DSM-IV, and has written and lectured on the psychiatric effects of steroid use. (Id. at 77, 96) In preparation for his testimony, Dr. Pope interviewed Weed by phone, read reports on his condition, watched the videotape taken after Weed's arrest, and reviewed testimony of people who had been with Weed just prior to his psychotic episode. (Id. at 81, 93) In addition, he listened to conversations Weed had with his mother while he was in jail. (Id. at 81, 92) At the hearing, Dr. Pope testified that Weed had a brief psychotic disorder with "prominent manic features." (Id. at 95, 106) In Dr. Pope's opinion, Weed's previous steroid use and participation in an exhaustive self-awareness program the week prior to the shooting could be ruled out as causes of the psychotic break, leaving only "very rare possibilities" as the triggering factors. (Id. at 97, 98) According to Dr. Pope's hypothesis, Weed's psychotic episode may have developed from a seizure deep in the brain called a "complex partial seizure." (Id. at 99) However, he could not with reasonable medical certainty say that this was the cause. (Id. at 111Ä12) If seizure was in fact the cause, Dr. Pope testified that Weed is more vulnerable than the average person to having another seizure, but he also stated that the odds of recurrence lessen as time passes. (Id. at 102Ä03) Finally, although Dr. Pope testified that Weed does not currently exhibit any symptoms of psychosis, he clarified, "that [statement] should not be interpreted that I'm guaranteeing that he will never again have symptoms because I cannot say that with confidence." (Id. at 121Ä22) 3. Certificate of Mental Disease or Defect and Dangerousness In addition to the testimony, the government introduced into evidence a psychiatric report, titled "Certificate of Mental Disease or Defect and Dangerousness," as required by 18 U.S.C. 4243(b). The report was produced by the Bureau of Prisons (BOP) and signed by the warden of the federal facility housing Weed. (Appellant's Addendum of Exhibits, Exh. F). The report informed the court that the mental health workers responsible for Weed's care believed that Weed is currently suffering from a mental disease or defect that would cause him to present a substantial risk of danger to others if released. The attached forensic evaluation submitted by staff psychiatrist Bryon Herbel, M.D., and staff psychologist Robert E. Cochrane, Psy. D., diagnosed Weed as having "Brief Psychotic Disorder, In Remission." (Id. at 8)  The report noted that Weed demonstrated the sudden onset of manic psychotic symptoms shortly before the December 12, 2001 shooting, but found that these symptoms "remitted a few days after his arrest, following treatment with a single dose of Haldol and Ativan." (Id. at 9) Regarding the link between risk of dangerousness and mental disease or defect, the report stated: Mr. Weed is not viewed as presenting an increased risk of dangerous behavior in his current mental status. However, he is viewed as presenting a high risk of                   dangerousness if he relapsed into another psychotic episode, which resulted in him committing homicide by                   shooting and killing a postal worker. The risk of any such future recurrence of a psychotic episode is                   unknown. Mr. Weed may not have any further such episodes in his life or he may have these episodes at                   some unpredictable intervals in the future. (Id. at 10) Based on the "gravity of Weed's offense, the lack of data to estimate the risk of recurrence of another psychotic episode, and the lack of any clear strategies to lower this risk," the report thus concluded that Weed's current condition met the standard for commitment and recommended that he be confined for further observation. (Id.)

Following the hearing, the district court issued an oral ruling that was memorialized in a written order. The district court found as follows: The most compelling thing to me. . . [is that w]e're only some 17 months out [from the time of the shooting]. That's not a long period. That's certainly not a long enough period in which I would feel comfortable, even under certain conditions, releasing the defendant into this community.

And the second factor that the Court relies upon is the fact that the people who have been around Mr. Weed the most, who have had the most contact with him, have spent the most hours with him, have seen him day in and day out at the Federal Medical Center conclude that Mr.                   Weed's condition does not meet the criteria for release under [Section] 4243; that they believe that Mr. Weed does currently present a substantial risk of bodily injury to another person or serious damage to the property of                   another due to mental disease or defect. And that is the opinion submitted by the warden and by Dr. Herbel. And the recommendation is that Mr. Weed be confined in a                   Federal Medical Center for a further period of                    observation. (IV R.O.A. at 133Ä34) The court concluded that Weed had not met his burden of proving eligibility for release under the statute, and ordered him committed to the custody of the Attorney General of the United States, where he remains to this day.

We turn first to Weed's argument that 18 U.S.C. 4243 violates his rights to due process and equal protection. We review the relevant statutory framework and then address each claim in turn. In 18 U.S.C. 4243, titled "Hospitalization of a person found not guilty only by reason of insanity," Congress established a comprehensive civil commitment procedure for insanity acquittees. See Shannon v. United States, 512 U.S. 573, 577 (1994). Under that procedure, a defendant found not guilty by reason of insanity is held in custody pending a court hearing that must occur within forty days of the verdict. 18 U.S.C.  4243(a) and (c). The evidentiary hearing is commonly referred to as either a "release" or "commitment" hearing, and is civil, not criminal, in nature. Shannon, 512 U.S. at 577. At that hearing, the insanity acquittee must prove (a) "by clear and convincing evidence" that (b) his release would not create a "substantial risk" to people or property due to "a present mental disease or defect."

The provision reads more fully: a person found not guilty only by reason of insanity of an                   offense involving bodily injury to, or serious damage to                    the property of, another person, or involving a substantial risk of such injury or damage, has the burden of proving by clear and convincing 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. With respect to any other offense, the person has the burden of such proof by                   a preponderance of the evidence. 18 U.S.C. 4243(d) (emphasis added). If an acquittee fails to meet the specified burden of proof, the court commits him to the custody of the Attorney General, who in turn releases him to the appropriate state or federal officials for custody and treatment. (5) A committed person is entitled to petition the court for discharge on his own motion, so long as he waits at least 180 days after the most recent court determination that he should continue to be hospitalized. 18 U.S.C. 4247(h).

(5)     "If, after the hearing, the court fails to find by the standard specified in subsection (d) of this section that the person's 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 court shall commit the person to the custody of the Attorney General." 18 U.S.C. 4243(e). On appeal Weed challenges the constitutionality of the elevated burden of proof set forth in 4243(d), arguing that the burden of proving eligibility for release by clear and convincing evidence is too high and therefore violates his right to due process under the Fifth Amendment. Weed also contends that Congress's placing a higher burden of proof on insanity acquittees who have committed more serious crimes violates equal protection.(6) Neither issue has been addressed by this circuit, nor by any published federal court decision of which we are aware. For the following reasons, we conclude that 4243(d) does not run afoul of the Constitution.

Due process is "flexible and calls for such procedural protections as the particular situation demands." Jones v. United States, 463 U.S. 354, 367Ä68 (1983) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). The function of a burden of proof, "as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to `instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.'" Addington v. Texas, 441 U.S. (6)      "We review challenges to the constitutionality of a statute de novo." United States v. Dorris, 236 F.3d 582, 584 (10th Cir. 2000). "Statutes are         presumed constitutional." Id. (citing United States v. Morrison, 529 U.S. 598,         607 (2000)). 418, 423 (1979) (quoting In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring)). The burden of proof serves to "allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision." Id. Although the determination of insanity at the time of the crime arises in a criminal proceeding, the subsequent determination of the insanity acquittee's continuing commitment arises in a civil proceeding.

In evaluating an insanity acquittee's due process rights in civil commitment proceedings, the Due Process Clause "requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed." Jones, 463 U.S. at 368 (quoting Jackson v. Indiana, 406 U.S. 715, 738 (1972)). "The purpose of commitment following an insanity acquittal . . . is to treat the individual's mental illness and protect him and society from his potential dangerousness. The committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous." Id. (citing O'Connor v. Donaldson, 422 U.S. 563, 575Ä76 (1975)). With these standards in mind, we note first that Weed does not contest the statute's preliminary allocation of the burden of proof on him. While we have yet to address the specific question of allocating the burden of proof under 4243(d), this court has found that a similar provision under Colorado law that places the burden of proof on insanity acquittees comports with due process. See Glatz v. Kort, 807 F.2d 1514, 1519Ä21 (10th Cir. 1986). In addition, the three circuits that have examined  4243(d) have found that placing the burden of proving eligibility for release on the acquittee does not violate due process. See United States v. Wattleton, 296 F.3d 1184, 1198 (11th Cir. 2002); United States v. Phelps, 955 F.2d 1258, 1267Ä68 (9th Cir. 1992); United States v. Wallace, 845 F.2d 1471, 1474Ä75 (8th Cir. 1988). Instead, Weed challenges the clear and convincing burden of proof itself. In determining whether procedures comport with due process in the civil context, this court weighs the three factors set forth in Mathews v. Eldridge, 424 U.S. 319 (1976). Under the Mathews test, we balance (1) the private liberty interest affected, (2) the risk of an erroneous deprivation of that interest and the probable value of additional procedural safeguards, and (3) the government's interest, including the function involved and the burdens that additional procedural requirements would place on the state. Id. at 335. (1) The Private Liberty Interest Affected Regarding the first Matthews element of whether there is a private liberty interest affected, it is well settled that "commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." Jones, 463 U.S. at 361 (quoting Addington, 441 U.S. at 425). In addition, insanity acquittees have an interest in avoiding the stigma associated with involuntary commitment to a mental institution after a finding of dangerousness. See Addington, 441 U.S. at 425Ä26. Several considerations, however, counterbalance these negative effects on Weed's private liberty interest. First, Weed himself advanced his mental condition as a defense to the crime he committed with the knowledge that a loss of liberty would result. See Jones, 463 U.S. at 367 n.16 (finding the significance of the deprivation of liberty is diminished, as compared to involuntary civil confinement, where defendant himself raises the insanity defense). Second, just as "[a] criminal defendant who successfully raises the insanity defense necessarily is stigmatized by the verdict itself," Weed is stigmatized by the special verdict entered by the court after the parties stipulated to insanity at trial. Id. "[T]hus the commitment causes little additional harm in this respect." Id. Third, while hospitalized in a suitable mental health facility, Weed will receive psychiatric treatment based on the nature of his mental condition and the severity of his offense. See Wattleton, 296 F.3d at 1198Ä99 (citing 18 U.S.C.  4247(a)(2)). Such medical treatment decreases the negative effect of confinement on Weed's liberty interest because it increases Weed's opportunity to overcome his present mental condition, thereby increasing the probability that the confinement will be ended. (2) The Risk of Erroneous Deprivation of Liberty Interest

Addressing the second Mathews factor, Weed argues that a heightened burden of proof directly increases the likelihood of an erroneous deprivation of his liberty interest. Aplt. Op. Br. at 17. It is undoubtedly true that the "more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision." Cooper v. Oklahoma, 517 U.S. 348, 362Ä63 (1996) (quoting Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 283 (1990)). Yet this fact is counterbalanced by the obvious point that the very nature of an insanity acquittal lessens the likelihood of an erroneous commitment since the defendant himself advances insanity as a defense, as compared to the involuntary civil confinement process. For example, in Jones v. United States, 463 U.S. 354 (1983), the Supreme Court assessed the constitutionality of a congressional statute that set forth the civil commitment process for insanity acquittees in the District of Columbia. The Supreme Court stated that "Congress has determined that [an insanity acquittal] constitute[s] an adequate basis for hospitalizing the acquittee as a dangerous and mentally ill person." Id. at 364. Such an acquittal "supports an inference of continuing mental illness," id. at 366, and "there is good reason for diminished concern as to the risk of [erroneous confinement]." Id. at 367. Indeed, "[i]t comports with common sense to conclude that someone whose mental illness was sufficient to lead him to commit a criminal act is likely to remain ill and in need of treatment." Id. at 366; see also Foucha v. Louisiana, 504 U.S. 71, 76 (1992) ("[I]t could be properly inferred that at the time of the verdict, the defendant was still mentally ill and dangerous and hence could be committed."). Relying on these authorities, the Eleventh Circuit recently rejected an acquittee's claim that the risk of erroneous confinement is increased by 4243's placement of the burden of proof on the insanity acquittee instead of the government. See Wattleton, 296 F.3d at 1199. The court noted that any risk of an erroneous decision is reduced because "a 4243 hearing arises only after a jury finds a defendant not guilty by reason of insanity and only after all the procedural protections have been afforded the defendant in a criminal trial." Id. Thus, the court concluded that "the insanity verdict in and of itself supports the conclusion that the insanity acquittee continues to be mentally ill and dangerous." Id. at 1200. In our case, the risk of an erroneous decision is reduced because Weed himself stipulated that he was not guilty of the murder of Robert Jenkins by reason of insanity. Thus, although a heightened burden of proof increases Weed's challenge of proving the absence of a present mental illness, we find that this fear is counterbalanced by his stipulation and the district court's finding of insanity, which supports the inference that Weed continues to be mentally ill and dangerous. The statute further mitigates the risk of error by allowing periodic evaluative hearings. 18 U.S.C.  4247(h). Finally, habeas corpus review is unimpaired by the statute. 18 U.S.C.  4247(g). (3) The Government's Interest We now turn to the final Mathews factor, the government's interest. The government clearly has a strong interest in protecting society from persons who pose a danger to others because of a mental disease. See Wattleton, 296 F.3d at 1200. Nonetheless, Weed maintains that this "admittedly weighty interest" does not justify imposition of a clear and convincing burden of proof on insanity acquittees because it effectively prevents release even when an acquittee more likely than not meets the statute's release criteria. Weed argues that the higher burden of proof requires him to prove "to a high degree, something that is inherently elusive of such provability." Aplt. Op. Br. at 19. In other words, "future dangerousness is not a fact capable of proof with a high degree of accuracy." Id. In support of this proposition, Weed points to Cooper v. Oklahoma, where the Supreme Court stated in the context of pretrial competency hearings that "the difficulty of ascertaining where the truth lies . . . does not justify the additional onus of an especially high standard of proof." 517 U.S. 348, 366 (1996). Weighing the Mathews factors in this case, we conclude that the government's interest in safeguarding society justifies an elevated burden of proof for insanity acquittees seeking release from hospitalization and treatment. It is precisely because future dangerousness is hard to predict that Congress could reasonably conclude that insanity acquittees should not be released absent a heightened showing. Furthermore, the reasonableness of Congress's policy determination that the heightened standard reflects the degree of certainty society believes a judge should reach before releasing a criminally violent person who has been adjudicated insane is not seriously open to doubt. The Supreme Court's Cooper decision is not to the contrary. In Cooper, the Supreme Court considered the constitutionality of an Oklahoma statute that presumed a criminal defendant was competent to stand trial unless the defendant could prove his or her incompetence by clear and convincing evidence. 517 U.S. at 350. Although it found that the Oklahoma statute violated due process, the Supreme Court specifically warned that civil commitment (and, by analogy, release hearings) and competency proceedings "address entirely different substantive issues." Id. at 368. The one, civil commitment proceedings, goes to the merits of whether a person is mentally ill and a danger to others; the other, competency proceedings, goes to whether the defendant has the present ability to understand the charges against him. Additionally, the Supreme Court found in Cooper that Oklahoma had only a "modest" interest in the outcome of competency proceedings, id. at 365, whereas here, as noted above, the government has a significant interest in protecting the public from persons who have already shown they are a danger to others because of a mental disease. The Supreme Court found the state interest to be modest because, in the context of a competency proceeding, an erroneous determination that a defendant is incompetent "is subject to correction in a subsequent proceeding and the State may detain the incompetent defendant for `the reasonable period of time necessary to determine whether there is a substantial probability that he will attain [competence] in the foreseeable future.'" Id. (quoting Jackson v. Indiana, 406 U.S. 715, 738 (1972) (alternation in original). Here, the potential consequences of an erroneous decision releasing an individual found not guilty of a serious crime by reason of insanity are potentially far more injurious to the state. Therefore, although Weed will remain in custody even if he could hypothetically prove lack of dangerousness by a preponderance of the evidence, we do not believe Congress violated the Constitution by allocating the risk of error to the acquittee given the importance of the ultimate decision.  See Addington, 441 U.S. at 423.  For the foregoing reasons, we conclude that 4243(d) does not violate Weed's due process rights.

Nor does 4243 violate equal protection because it places a higher burden of proof on insanity acquittees who commit crimes of a more serious nature. As noted above, 4243(d) requires an acquittee who commits an offense "involving bodily injury to, or serious damage to the property of, another person, or involving a substantial risk of such injury or damage," to prove his release is warranted by clear and convincing evidence; whereas an acquittee who commits "any other offense" must prove eligibility for release by a preponderance of the evidence. 18 U.S.C.  4243(d). We can dispose of this issue with relative dispatch as Weed's brief offers little analysis other than a conclusory assertion that the dangerousness of the criminal act does not justify a conclusion that the acquittee is more likely to be mentally ill in the future. See Aplt. Op. Br. at 20. The Fourteenth Amendment mandates that "[n]o State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S.C.onst. amend. XIV  1. "[T]he Fifth Amendment imposes on the Federal Government the same standard required of state legislation by the Equal Protection Clause of the Fourteenth Amendment." Schweiker v. Wilson, 450 U.S. 221, 226 n.6 (1981). With respect to distinctions between classes of individuals not deemed suspect or quasi-suspect or involving a fundamental right, equal protection "provides that a statute shall not treat similarly situated persons differently unless the dissimilar treatment is rationally related to a legitimate legislative objective." Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1152 (10th Cir. 1999) (citing Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 457 (1988)). Insanity acquittees are not members of a suspect or quasi-suspect class, nor is a fundamental right at stake. See Jones v. United States, 463 U.S. 354, 363 n.10 (1983) (applying rational basis test to equal protection challenge to legal distinction between involuntary civil commitment and commitment of insanity acquittees). We therefore apply rational basis review and will uphold the statutory classification if it is rationally related to a legitimate government interest. See White v. Colorado, 157 F.3d 1226, 1234 (10th Cir. 1998). Construing Weed's allegation to assert that the distinction between classes of insanity acquittees fails this test, we find that 4243(d) is in fact rationally related to a legitimate government interest. More particularly, we find 4243(d) furthers the government's legitimate interest in protecting society from individuals who commit crimes involving bodily injury to another or serious property damage by requiring them to meet a higher standard of proof before being released than those who commit less serious crimes. Therefore, we conclude that 4243(d) does not violate equal protection.

--             Finally, Weed contends that the district court's finding that he is dangerous due to a mental disease or defect is clearly erroneous. He argues that although he had a brief psychotic episode in December 2001, evidence presented at the commitment hearing establishes that he was not currently suffering from a mental disease or defect. According to Weed, the district court's ruling was improperly based on the possibility of future mental illness, not a finding of "present mental disease or defect" as required by 4243. We disagree with Weed's assertion. The district court's commitment determination under 4243 is a question of fact we review for clear error. United States v. Gilgert, 314 F.3d 506, 512Ä13 (10th Cir. 2002). A finding is clearly erroneous when, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. De la Cruz-Tapia, 162 F.3d 1275, 1277 (10th Cir. 1998) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). Our role on clear error review is "not to re-weigh the evidence; rather, our review of the district court's finding is `significantly deferential.'" Gilgert, 314 F.3d at 515Ä16 (quoting Concrete Pipe & Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 623 (1993)). Section 4243(d) provides that an insanity acquittee "has the burden of proving by clear and convincing evidence that his release would not create a substantial risk of bodily injury to another person . . . due to a present mental disease or defect." 18 U.S.C. 4243(d) (emphasis added). The Supreme Court observed that a verdict of not guilty by reason of insanity establishes two facts: "(i) the defendant committed an act that constitutes a criminal offense, and (ii) he committed the act because of mental illness." Jones v. United States, 463 U.S. 354, 363 (1983). From these two facts, Congress reasonably could make "an inference of continuing mental illness" and dangerousness of insanity acquittees, justifying their commitment for treatment. See id. at 366. However, such an inference does not last indefinitely. As the Supreme Court stated in Foucha v. Louisiana, an insanity acquittee "may be held as long as he is both mentally ill and dangerous, but no longer." 504 U.S. 71, 77 (1992). As the parties here recognize, courts have provided little guidance as to when a psychiatric condition constitutes a "present mental disease or defect" under 4243(d). See United States v. Murdoch, 98 F.3d 472, 478 (9th Cir. 1996) (Wilson, J., concurring) ("There is little guidance as to when a psychiatric condition falls within the scope of  4243's mental disease or defect."). Rather, courts have generally expressed reluctance in applying medical criteria to legal concepts. Id. For example, in Parrish v. Colorado, we observed that "illnesses recognized by physicians to have a psychiatric basis sometimes do not equate with legal concepts defining mental states." 78 F.3d 1473, 1477 (10th Cir. 1996). Because the Colorado commitment statute challenged in that case "define[d], as a legal concept, the mental state an acquittee must have before he may be released from confinement," we concluded that "the test is not whether the medical state is medically definable, but whether the acquittee has a mental condition that fits the legal definition." Id. Similarly, other circuits have cautioned against conflating medical or diagnostic criteria with legal concepts when making determinations about an insanity acquittee's mental condition or a defendant's sanity. See Murdoch, 98 F.3d at 478 (Wilson, J., concurring) (observing that courts have expressed reluctance in relying on medical categories in determining limits of legal insanity, and finding one witness's testimony that personality disorders are not considered a mental disease or defect insignificant in making  4243(d) determination); United States v. Lyons, 731 F.2d 243, 246 (5th Cir. 1984) ("[W]hat definition of `mental disease or defect' is to be employed by courts enforcing the criminal law is, in the final analysis, a question of legal, moral and policy-not of medical-judgment."). We agree that the proper approach in insanity cases is to focus on the legislative pronouncement embodied in 4243. We conclude that on the basis of the record below, the district court did not err in applying the statutory criteria. First, at the commitment hearing, Dr. Grundy testified that although Weed did not currently meet any DSM-IV criteria for mental disease, Weed had suffered a mental defect which caused his psychotic disorder. None of the tests Dr. Grundy administered explained the cause of Weed's psychosis, nor could the tests predict whether Weed will have another onset of symptoms. Dr. Grundy testified that the recurrence of a brief psychotic disorder is rare; however, he conceded that the public is at greater risk from someone with a history of such episodes. Additionally, Dr. Grundy stated that Weed may still have the mental defect, but that it has not been triggered since the time of the offense. Second, Dr. Harrison Pope also testified that Weed is not currently psychotic. In his opinion, Weed's psychotic episode may have developed from a rare brain seizure, but he could not say with reasonable medical certainty that a seizure was the cause. Assuming a seizure caused the episode, Dr. Pope said that Weed is more vulnerable than the average person to having another recurrence of the seizure, but stated that the longer a person goes without having another seizure, the more the odds of recurrence are reduced. Dr. Pope agreed with the other consultants that Weed was dangerous when the psychotic condition was triggered. Finally, the Bureau of Prisons (BOP) forensic evaluation offered a similar conclusion about Weed's current mental state. However, psychologists monitoring Weed's daily behavior viewed him as presenting a high risk of dangerousness if he relapsed into another psychotic episode, and stressed the risk of future recurrence is unknown. Thus, BOP recommended Weed be confined for a further period of observation, specifically concluding that "Mr. Weed is currently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damages to the property of another." (Appellant's Addendum of Exhibits, Exh. F). Based on this evidence, we conclude that the district court did not err in finding that Weed's mental state fits the legal definition in 4243(d). Although Weed no longer shows symptoms of psychosis and meets no DSM-IV criteria for mental illness, the testifying doctors agree that Weed may still suffer from a condition not triggered since the time of the crime. The experts also agree that, if triggered, the condition may cause Weed to present a substantial danger to others. On this record, the district court did not err in concluding that such a condition constitutes a present mental defect within the meaning of the statute.(7) We recognize the difficulty that continuing confinement presents for a person that no longer exhibits overt symptoms of mental illness. However, we may not re-weigh evidence presented at the commitment hearing and we must give significant deference to the district court's findings. See United States v. Gilgert, 314 F.3d 506, 515Ä16 (10th Cir. 2002). Given that two of the experts agreed that Weed would benefit from further observation and treatment, and considering the relatively short time period since the crime and his initial commitment, we are not left with the definite and firm conviction that the district court has committed a mistake. Thus, the record compels us to hold that the district court did not clearly err in finding that Weed failed to demonstrate by clear and convincing evidence that his release would not create a substantial risk of danger to others due to a present mental disease or defect.

We hold that the clear and convincing burden of proof under 18 U.S.C. 4243(d) does not violate the Due Process or Equal Protection Clauses of the Constitution, and that the district court did not clearly err in ordering Weed's continued confinement pursuant to 18 U.S.C. 4243 (d) and (e). Therefore, we AFFIRM.

(7)     Other circuits have addressed the issue of what constitutes a present mental defect. Compare Murdoch, 98 F.3d at 476 (rejecting argument that acquittee was not suffering from a present mental disease or defect because the evidence showed only that his condition might lead to violent activity in the future: "[the] argument erroneously focuses on the symptoms or sideeffects of his mental disease rather than on the existence of the disease itself"), with United States v. Bilyk, 29 F.3d 459, 461 (8th Cir. 1994) (concluding district court clearly erred in finding acquittee suffered from mental disease or defect in light of "present diagnosis that the individual is not suffering from a mental illness, i.e., that the dangerousness risk factor is not due to mental disease or defect").


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352 Sparrow and Savannah Finch were also in full song. The Fringilla nivalis was seen, and we were told that Tetrao canadensis was very abundant, but saw none. About a dozen houses form this settlement; there was no Custom House officer, and not an individual who could give an answer of any value to our many questions. We returned on board and supped on a fine codfish. The remainder of our day was spent in catching lobsters, of which we procured forty. They were secured simply by striking them in shallow water with a gaff-hook. It snowed and rained at intervals, and to my surprise we did not observe a single seabird. June 11. Larus marinus (the Great Black-backed Gull) is so superior both in strength and courage to Fulmars, Lestris, or even Gannets, to say nothing of Gulls of all sorts, that at its approach they all give way, and until it has quite satiated itself, none venture to approach the precious morsel on which it is feeding. In this respect, it is as the Eagle to the Vultures or Carrion Crows. I omitted saying that last night, before we retired to rest, after much cold, snow, rain, and hail, the frogs were piping in all the pools on the shore, and we all could hear them clearly, from the deck of the "Ripley." The weather to-day is beautiful, the wind fair, and when I reached the deck at four A. M. we were under way in the wake of the whole of the fleet which last evening graced the Harbor of Canseau, but which now gave life to the grand bay across which all were gliding under easy pressure of sail. The land locked us in, the water was smooth, the sky pure, and the thermometer was only 46°, quite cold; indeed, it was more grateful to see the sunshine whilst on deck this morning, and to feel its warmth, than I can recollect before at this season. After sailing for twenty-one miles, and passing one after another every vessel of the fleet, we entered the

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378 not sell it. The chief of the party proves to be well informed, and speaks French so as to be understood. He is a fine-looking fellow of about forty; has a good-looking wife and fine babe. His brother is also married, and has several sons from fourteen to twenty years old. When we landed the men came to us, and after the first salutations, to my astonishment offered us some excellent rum. The women were all seated apart outside of the camp, engaged in closing up sundry packages of provisions and accoutrements. We entered a tent, and seated ourselves round a cheerful fire, the smoke of which escaped through the summit of the apartment, and over the fire two kettles boiled. I put many questions to the chief and his brother, and gained this information. The country from here to the first settlement of the Hudson's Bay Co. is as barren and rocky as that about us. Very large lakes of great depth are met with about two hundred miles from this seashore; these lakes abound in very large trout, carp, and white fish, and many mussels, unfit to eat, which they describe as black outside and purple within, and are no doubt unios. Not a bush is to be met with, and the Indians who now and then go across are obliged to carry their tent poles with them, as well as their canoes; they burn moss for fuel. So tedious is the travelling said to be that not more than ten miles on an average per day can be made, and when the journey is made in two months it is considered a good one. Wolves and Black Bear are frequent, no Deer, and not many Caribous; not a bird of any kind except Wild Geese and Brent about the lakes, where they breed in perfect peace. When the journey is undertaken in the winter, which is very seldom the case, it is performed on snow-shoes, and no canoes are taken. Fur animals are scarce, yet some few Beavers and Otters are caught, a few Martens and Sables, and some Foxes and Lynx, but every year diminishes their numbers. The Fur Company may be called the

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Rh medium of these wild and almost uninhabitable climes, where cupidity and the love of gold can alone induce man to reside for a while. Where can I go now, and visit nature undisturbed? The Turdus migratorius must be the hardiest of the whole genus. I hear it at this moment, eight o'clock at night, singing most joyously its "Good-night!" and "All's well!" to the equally hardy Labradorians. The common Crow and the Raven are also here, but the Magdalene Islands appear to be the last outpost of the Warblers, for here the Black-poll Warbler, the only one we see, is scarce. The White-throated and the White-crowned Sparrows are the only tolerably abundant land birds. The Indians brought in no Grouse. A fine adult specimen of the Larus marinus killed this day has already changed full half of its primary feathers next the body; this bird had two young ones, and was shot as it dove through the air towards John, who was near the nest; this is the first instance we have seen of so much attachment being shown to the progeny with danger at hand. Two male Eider Ducks were shot and found very much advanced in the moult. No doubt exists in my mind that male birds are much in advance of female in their moults; this is very slow, and indeed is not completed until late in winter, after which the brilliancy of the bills and the richness of the coloring of the legs and feet only improve as they depart from the south for the north. June 24. Drawing most of this day, no birds procured, but some few plants. I dined on board the "Gulnare" at five o'clock, and was obliged to shave and dress—quite a bore on the coast of Labrador, believe me. I found the captain, surgeon, and three officers formed our party; the conversation ranged from botany to politics, from the Established Church of England to the hatching of eggs by steam. I saw the maps being made of this coast, and

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The New International Encyclopædia/Fessenden, William Pitt

FESSENDEN, (1806-69). An American statesman. He was born in Boscawen, N. H., graduated at Bowdoin College in 1823, and began the practice of law in 1827. He settled

in Portland, Maine, was elected to the State Legislature in 1832, and became known as an able debater. In 1840 he was elected to Congress as a Whig, but served only one term. He won national repute as a lawyer, and as an Anti-Slavery Whig orator and campaign speaker, and in 1848 he was a strong supporter of Webster for the presidency. In 1854, while a member of the Maine Legislature, he was elected United States Senator, by the combined votes of the Whig and Anti-Slavery Democratic members. A fortnight after taking his seat in the Senate, he delivered a stirring speech in opposition to the Kansas-Nebraska Bill, thereby leaping at once into prominence as one of the ablest speakers on the Anti-Slavery side. In 1859 he was reëlected to the Senate for a second term as a Republican, and was at once made chairman of the important Committee on Finance, in which position, during the next five years he ably seconded President Lincoln and Secretary Chase in their attempts to solve the puzzling financial questions arising from the war. Upon the resignation of Secretary Chase in 1864, President Lincoln and his counselors naturally turned to Senator Fessenden as the man best fitted to take the vacant portfolio of the Treasury. Fessenden hesitated at first, but after it became evident that there was need of his services and that both President and nation looked to him in the emergency, he accepted. The period was one of the blackest in the financial history of the country. Gold was at 280, the currency of the nation was inflated, the paper dollar was worth only 34 cents, and the government had just found it necessary to withdraw from the market a loan which it had been unable to float. The first act of the new Secretary in this crisis was the issuance of the famous “seven-thirty” bonds, — bonds bearing interest at the rate of 7.30 per cent., and issued in denominations as small as $50. His idea was that if appeals were made to the patriotism of the people, and the loan offered in such sums that people of moderate means could invest, it would succeed, and his judgment proved correct. He also withheld the further issue of greenbacks for the time being, thus inducing the State banks to adopt the national system. Gold having fallen to 199 and the necessities of the occasion having been met. Secretary Fessenden resigned his portfolio in March, 1865, in order to take his seat. in the Senate, to which he had been chosen for a third term. In the years immediately following the war he took a leading part in the debates and was chairman of the joint committee on reconstruction. His action in voting for the acquittal of President Johnson on his impeachment trial brought upon him the harshest criticism of his political career. He bravely faced the storm of reproach which it called forth, and although for the moment his political associates looked upon him as almost a traitor, his sincerity and honesty of purpose were so apparent, and his continued devotion to the principles of the Republican Party so absolute that he very soon won again his old position as a party leader.