UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION NO. 5:06-HC-2222 UNITED STATES OF AMERICA v. ANDREW RED STAR ) ) ) ) ) ) ) MOTION FOR JUDICIAL REVIEW OF CIVIL COMMITMENT UNDER 18 U.S.C. ? 4248 and INTEGRATED MEMORANDUM OF LAW The Respondent, Andrew Red Star ("Respondent" or "Red Star"), through undersigned counsel, hereby moves for judicial review of his civil commitment pursuant to 18 U.S.C. ? 4248 to determine (i) whether the Attorney General has reasonably discharged his continuing legal obligation to cause the State of Montana to assume responsibility for Respondent's custody, care and treatment and (ii) whether FCI Butner ("Butner") is providing or even able to provide Respondent with a suitable rehabilitation or treatment program to meet his needs. In support of this Motion, Respondent asserts that: 1. He was committed by this Court as a sexually dangerous person pursuant to 18 U.S.C. ? 4248 on January 1, 2012. He has been incarcerated for the past 16 years after pleading guilty to two counts of aggravated sexual assault by force. 2. He has been in and out of the treatment program at Butner known as the Commitment and Treatment Program ("CTP") on his own accord or because he was expelled by the program's staff. 3. Upon information and belief, he is currently on at least three (3) psychotropic medications as well as one (1) testosterone diminishing drug, all prescribed by the Case 5:06-hc-02222-BR-JG Document 112 Filed 10/09/12 Page 1 of 6 staff psychiatrist at Butner, Dr. Thomas Owens. 4. Respondent's mental condition has not improved but, in fact, he has regressed while under civil commitment at Butner to the point that he has in the recent past been placed on suicide watch (i.e., October 3, 2012). 5. Respondent's family, members of the Crow tribe, reside in Montana and are financially incapable of traveling to Butner to see him thereby exacerbating his depression, loneliness, frustration and anxiety leading or contributing to his erratic and self-destructive behavior. 6. Undersigned counsel has been in contact with the counsel to Senator Max Baucus of Montana on several occasions in an attempt to enlist assistance in locating a suitable facility in the State of Montana (or a neighboring State) capable and willing to assume responsibility for Respondent's custody, care and treatment and to provide a rehabilitation program to meet his needs as prescribed by 18 U.S.C. ? 4248(d) and 18 U.S.C. ? 4247(i)(c). Such efforts have to date been unavailing. Undersigned counsel has also been in communication with the office of the Montana Federal Public Defender. See email attached hereto as Exhibit "A". 7. Undersigned counsel has very limited ability and resources to locate a State facility in Montana to assume responsibility for the Respondent's custody, care and treatment which is, under the law, actually the continuing duty of the Attorney General. 18 U.S.C. ? 4248(d). 8. Respondent has been institutionalized at Butner since early 2006. On the basis of his frequent telephone conversations and visits with Respondent (the most recent -2- Case 5:06-hc-02222-BR-JG Document 112 Filed 10/09/12 Page 2 of 6 being on October 5, 2012), it is the opinion of undersigned counsel that whatever "treatment" is available and/or being provided to Red Star is simply not meeting his needs. 18 U.S.C. ? 4247(i)(c). In short, it is simply not working and undersigned counsel fears that Respondent will eventually "crash and burn" and harm himself further. With that in mind undersigned counsel wrote the email to Assistant United States Attorney Royster on September 10, 2012, attached hereto as Exhibit "B". 9. Undersigned counsel contends that in his lay opinion Red Star's chances at rehabilitation as well as his overall mental health condition would improve, and perhaps dramatically improve, if he were near members of his family in Montana while in a suitable facility. 10. The current state of affairs amounts to no more than "warehousing" of Red Star at Butner which is not a mental health facility. 11. In United States v. Shields, 597 F. Supp. 2d 224, 2009 U.S. Dist. LEXIS 11037 (D. Mass. 2009), Judge Patti B. Saris clearly identifies the specific obligations that the Attorney General of the United States has with regard to the custody, care and treatment of the committed person under the Adam Walsh Child Protection and Safety Act of 2006: First, the Attorney General "shall make all reasonable efforts" to cause the state where the person is domiciled or was tried to assume responsibility for the custody, care and treatment of the committed person. 18 U.S.C. ? 4248(d). "If, notwithstanding such efforts, neither... State will assume such responsibility, the Attorney General shall place the person for treatment in a suitable facility." 18 U.S.C. ? 4248(d). -3- Case 5:06-hc-02222-BR-JG Document 112 Filed 10/09/12 Page 3 of 6 Before placing the person in a particular facility, the Attorney General must "consider the suitability of the facility's rehabilitation programs in meeting the needs of the person." 18 U.S.C. ? 4247(i)(c). The Attorney General must also consult with the Secretary of the Department of Health and Human Services regarding the "establishment of standards for facilities used" for commitments pursuant to the Act, as well as the "general implementation" of the Act's provisions. 18 U.S.C. ? 4247(i)(D). The director of the facility in which a person is committed under the Act also has several responsibilities under the statute. First, the director is required to inform the committed person of "any rehabilitation programs that are available." 18 U.S.C. ? 4247(e)(2). In addition, the director must provide the committing court with "annual reports concerning the mental condition of the person and containing recommendations concerning the need for his continued commitment." 18 U.S.C. ? 4247(e)(1)(B) (stating that the committing court may also order copies of the report to be submitted to other persons). Once committed to a facility by the Attorney General, the person is to remain in that facility until a State assumes responsibility for his custody, care and treatment.... Shields, supra at 239-240. 12. In the case at hand it is certainly questionable whether the Attorney General has made all reasonable efforts to cause the State of Montana to assume responsibility for the custody, care and treatment of Red Star, it is not clear that Butner is a suitable facility with regard to offering rehabilitation programs meeting the Respondent's needs and there is no evidence that the Attorney General has made any efforts to continue his statutory duty to cause Montana to assume responsibility for Respondent. WHEREFORE, Red Star moves the Court to review his civil commitment pursuant to 18 U.S.C. ? 4248 to determine (i) if the Attorney General has made all reasonable efforts to comply with his on-going legal duty to cause the State of Montana to assume responsibility to provide for -4- Case 5:06-hc-02222-BR-JG Document 112 Filed 10/09/12 Page 4 of 6 the custody, care and treatment of Respondent and (ii) whether the "treatment" provided at Butner is even able to meet his needs. Respectfully submitted this 9th day of October, 2012. THE EDM ISTEN W EBB & HAW ES LAW FIRM /s/ William Woodward Webb WILLIAM WOODWARD WEBB N.C. State Bar No. 4624 127 West Hargett Street Suite 104 Post Office Box 1509 Raleigh, North Carolina 27602 Telephone: (919) 831-8700 woodywebb@ew-law.com -5- Case 5:06-hc-02222-BR-JG Document 112 Filed 10/09/12 Page 5 of 6 CERTIFICATE OF SERVICE This is to certify that the undersigned attorney has served a copy of the Motion to Dismiss Commitment Action, or, In The Alternative, Application For Writ of Habeas Corpus upon counsel and parties listed below properly addressed to: G. Norman Acker, III norman.acker@usdoj.gov R.A. Renfer, Jr. rudy.renfer@usdoj.gov Joshua B. Royster joshua.royster@usdoj.gov Seth Morgan Wood seth.wood@usdoj.gov United States Attorneys Office 310 New Bern Avenue Suite 800 Raleigh, NC 27601-1461 Michael D. Bredenberg mbredenberg@bop.gov Federal Medical Center P.O. Box 1600 Butner, NC 27509 This the 9th day of October, 2012. THE EDM ISTEN W EBB & HAW ES LAW FIRM /s/ William Woodward Webb WILLIAM WOODWARD WEBB N.C. State Bar No. 4624 127 West Hargett Street Suite 104 Post Office Box 1509 Raleigh, North Carolina 27602 Telephone: (919) 831-8700 woodywebb@ew-law.com -6- Case 5:06-hc-02222-BR-JG Document 112 Filed 10/09/12 Page 6 of 6 Page 2 of4 Date: 11/09/2010 02:32 PM Subject: Re: Andrew Red Star Hi Ms. Woods: Thanks for your help! Iwill pass the information on to the US Attorney's Office. Best, Woody From: Nereida Woods Sent: Monday, November 08, 2010 3:54 PM To: Woody Webb Cc: Mark Werner Subject: Re: Andrew Red Star Hello, today, I spoke with Mr. Randy Vetter, Admissions Coordinator/Social Work Discipline Chief at Warm Springs, MT 300 Garnet Way, Warm Springs, MT 59756, 406-693-7397. rvetter@mt.gov Mr. Vetter told me that in order for Warm Springs to consider accepting Mr. Red Star into their facility, FCI Butner needs to initiate an Interstate Compact Transfer Request. This request does not guarantee that Mr. Red Star will be admitted in Warm Springs. However, in order to start the process, either the treating or facility administrator in FCI Butner needs to send the Interstate Compact Transfer Request for Mr. Vetter's consideration. Therefore, the next step will be to speak to Mr. Red Star's counselor to find out who his physician is. Let me know if further assistance is required. Thank you. Nereida Woods EXHIBIT Case Document 112-1 Filed 10/09/12 Page Paralegal FEDERAL DEFENDERS OF MONTANA 2702 Montana Avenue, Suite 101 Billings, MT 59101 Phone (406) 259-2459 Fax (406) 259-2569 From: "Woody Webb" To: Date: 11/05/2010 09:36 AM Subject: Andrew Red Star Ms. Woods: Thank you so much for your help. Best, Woody Webb William Woodward Webb Attorney at Law The Edmisten Webb Law Firm 127 West Hargett Street Suite 104 (27601) Post Office Box 1509 Raleigh, North Carolina 27602 Telephone: (919) 831-8700 Facsimile: (919) 831-8749 CONFIDENTIALITY The information contained in this transmission is privileged and confidential. It is intended only for the use of the individual or entity Case Document 112-1 Filed 10/09/12 Page 2 Page 3 of 4 Page 4 o1?4 named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone or by replying to this email and delete all copies of this message and all attachments.[attachment 03111996.pdf" deleted by Nereida [attachment "PreCertification Review Rep 12202006.pdf" deleted by Nereida [attachment "Forensic Report 03302007.pdf" deleted by Nereida [attachment Recs FCI Butner 08262009 -- 08272010.pdf" deleted by Nereida Case Document 112-1 Filed 10/09/12 Page 3 offi/10/2010 Application Help Document - I interstate fol' APPLICATION FOR Adult Offender Supervislen INTERSTATE COMPACT (Revised TRANSFER An application for transfer of supervision of an offender shall contain a copy of the original signed "Offender Application for Interstate Compact Transfer" To: Enter the 2 letter Date: Enter Type of supervision: Is this case; Check either identifier for the state where this date when this l:l Parole l:l Probation ]f_app[[CabIe form will be sent form is being other; Identify the El Registered sex prepared offenders status. If "other," Offender explain l:l Victim sensitive From: Enter the 2 letter Phone Fax ii: Enter 10--digit fax" _number (999-999-9999) of the identifier for the state where this Enter 10~digit Interstate Compact office completing this request form is sent from telephone number (999-999-9999) of the Interstate Compact office completing this request OFFENDER INFORMATION Offender's full name (last, first, MI): 'Offender number: Enter the offender's identifying Enter name as it appears on court documents number(s) Sending state#: Receiving state#: AKA: Enter all of the offender's knevvn (if available) Enter available) Enter Sex: Race: DOB: Enter the social security Federal Bureau of Investigation Enter offenders date of birth (999~99~9999) identifiCa'tie'h ii' or Enter (05/14/2008) . race of offender (White, Black, Asian, American Indian 1, am applying for transfer of my parole/probationfother supervision from (sending state) to (receiving state). I understand that this transfer of supervision will be subject to the rules of the Interstate Commission for Adult I understand that my supervision in another state may be different than the supervision I would be subject to in this state. I agree to accept any differences that may exist because I believe that transferring my supervision to (receiving state) will improve my chances for making a good adjustment in the community. I ask that the authorities to whom this application is made recognize this fact and grant my request for transfer of supervision. In support of my application for transfer, I make the following statements: 1. If I am allowed to transfer my supervision to (receiving state), I plan to live with at (full address/telephone until I am allowed by the supervising authorities to change my residence. 2. I will comply with the terms and conditions of my supervision that have been placed on me, or that will be placed on me by (sending state) and (receivirg state). Case Document 112-1 Filed 10/09/12 Page 4 of 5 Offender's Application for Interstate Compact Transfer 2 3. Offender's signature: Printed name: Witness: Printed name: I understand that if I do not comply with all the terms and conditions that the sending state or the receiving state, or both, placed on me, that it will be considered a violation and I may be returned to the sending state. I agree to the release of any drug or alcohol treatment information from (sending state) to any authorized person in (receiving state) for the purpose of transferring my supervision. This consent remains in effect from this date (today's date) until I revoke this consent. I agree to return to (sending state) at any time I am directed to by the sending state or the receiving state. I know that I may have a constitutional right to insist that the sending state extradite me from the receiving state or any other state where I may be found. This is commonly called the right to extradition. But I also understand and acknowledge that I have agreed to return to the sending state when ordered to do so either by the sending or receiving states Therefore, I agree that I will not resist or fight any effort by any state to return me to the sending state and AGREE TO WAIVE ANY RIGHT I MAY HAVE TO EXTRADITION. I WAIVE THIS RIGHT FREELY, VOLUNTARILY AND INTELLIGENTLY. - Date: Date: Case Document 112-1 Filed 10/09/12 Page 5 of 5 Page I of 1 Woody Webb From: "Woody Webb" Date: Monday, September 10, 2012 1:07 PM To: "Joshua (USANCE) Royster" Subject: Andrew Red Star Hi Josh: Any chance you could make some more inquiries about treatment facilities in or near Billings, Montana for Mr. Red Star? For a variety of reasons (including a lot attributable to him in all honesty) he is really not making any progress at Butner. I truly believe that if he gets back to Montana near his people and is in a suitable mental health facility there, he will improve. Absent such relocation I believe that he isjust being "warehoused"' at Butner. Apparently there is a clinic in Billings which could hopefully help. it was formerly called "'Deaconness", i think. Anyway, any assistance would be appreciated. Best, Woody William Woodward Webb Attorney at Law The Edmisten, Webb 84 Howes Law Firm 127 West Hargett Street Suite 104 (27601) Post Office Box 1509 Raleigh, North Carolina 27602 Telephone: (919) 831-8700 Facsimile.' (919) 831-8749 CONFIDENTIALITY The information contained in this transmission is privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone or by replying to this email and delete all copies of this message and all attachments. EXHIBIT Case Document 112-2 Filed 10/09/12 Page 1 -I 1