U.S. v. Abregana

Decision Date22 August 2008
Docket NumberCivil No. 07-00385 HG-BMK.
Citation574 F.Supp.2d 1123
PartiesUNITED STATES of America, Petitioner, v. Jay ABREGANA, Respondent.
CourtU.S. District Court — District of Hawaii

Helen H. Hong, U.S. Department of Justice, Washington, DC, Lawrence L. Tong, Office of the United States Attorney, Honolulu, HI, for Petitioner.

Pamela J. Byrne, Office of the Federal Public Defender, Honolulu, HI, for Respondent.


I. Respondent's Motion to Dismiss No. 1 (On the Ground that Congress Exceeded Its Constitutional Authority in Enacting 18 U.S.C. Section 4248) is DENIED;

II. Respondent's Motion to Dismiss No. 2 (On the Ground That Section 4248 Violates the Constitution's Ex Post Facto, Double Jeopardy, and Cruel and Unusual Punishment Clauses) is DENIED;

III. Respondent's Motion For An Order Requiring the Government to Establish the Criteria for Commitment Beyond a Reasonable Doubt is DENIED;

IV. Respondent's Motion for an Order Regarding the Applicability of the Fifth and Sixth Amendments in a Section 4248 Proceeding is DENIED;

V. Respondent's Motion to Dismiss No. 3 (On the Ground That Sections 4247(a)(5), 4247(a)(6), and 4248 Are Void for Vagueness) is DENIED.

Adam Walsh Child Protection and Safety Act of 2006

The Adam Walsh Child Protection and Safety Act of 2006, P.L. 109-248, contains numerous provisions aimed at protecting children from sexual exploitation, violent crime, child abuse, and child pornography. The Act, among other things, establishes a sex offender registry program, enhances federal criminal penalties for crimes against children, provides for civil commitment of dangerous sex offenders, and contains measures aimed at prevention of child pornography.

At issue in this case is the section of the Act providing for the civil commitment of "sexually dangerous persons." A "sexually dangerous person" is defined in 18 U.S.C. § 4247(a)(5) as "a person who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others." Pursuant to 18 U.S.C. § 4247(a)(6) a person is considered "sexually dangerous to others" if he "suffers from a serious mental abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released."

18 U.S.C. § 4248 sets forth procedures for "civil commitment of sexually dangerous person." The civil commitment provisions apply to three categories of individuals: (1) those persons in the custody of the Bureau of Prisons; (2) those persons who have been held by the Attorney General pursuant to 18 U.S.C. § 4241; and (3) those persons in federal custody against whom all charges have been dropped owing to mental incapacity.

Section 4248(a) provides that the Bureau of Prisons may institute proceedings by certifying that a person is sexually dangerous. When a person is certified as "sexually dangerous" under Section 4248, the court must conduct a hearing pursuant to the provisions of Section 4247(d).1 Under Section 4248(a), the filing of the certificate stays the person's release pending completion of the hearing and commitment procedures. 18 U.S.C. § 4248(a) ("A certificate filed under this subsection shall stay the release of the person pending completion of procedures contained in this section.")

With regard to the hearing, Section 4248(d) provides:

Determination and disposition.—If, after the hearing, the court finds by clear and convincing evidence that the person is a sexually dangerous person, the court shall commit the person to the custody of the Attorney General. The Attorney General shall release the person to the appropriate official of the State in which the person is domiciled or was tried if such State will assume responsibility for his custody, care, and treatment. The Attorney General shall make all reasonable efforts to cause such a State to assume such responsibility. If, notwithstanding such efforts, neither such State will assume such responsibility, the Attorney General shall place the person for treatment in a suitable facility, until—

(1) such a State will assume such responsibility; or (2) the person's condition is such that he is no longer sexually dangerous to others, or will not be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment; whichever is earlier.

Discharge of the civilly committed person may be requested by the Director of the facility in which the person is being held, counsel for the person, or his legal guardian. See 18 U.S.C. § 4247(h); 18 U.S.C. § 4248(e). A civilly committed person may also challenge his confinement by writ of habeas corpus. See 18 U.S.C. § 4247(g).

The Director of the facility in which a person is committed is required to "prepare annual reports concerning the mental condition of the person and containing recommendations concerning the need for his continued commitment" and submit them to the court. 18 U.S.C. § 4247(e).


Respondent Jay Abregana ("Abregana" or "Respondent"), the Defendant in United States v. Abregana, Cr. No. 01-00385, is a 38 year old male who is presently an inmate at the Federal Detention Center in Honolulu, Hawaii. Abregana served his sentence for his underlying criminal conviction, but was detained on the day of his projected release pursuant to a certification made in accordance with the Adam Walsh Child Protection and Safety Act, Pub.L. No. 109-248, Title III, § 302(4), 102 Stat. 620 (July 27, 2006), codified at 18 U.S.C. § 4248(a).

On July 20, 2007, the Government filed a "Notice of Certification that Respondent is a Sexually Dangerous Person, and Request for Hearing Pursuant to 18 U.S.C. § 4248(A)". The Notice informs the Court that Respondent has been certified to be a "sexually dangerous person" pursuant to Section 4248(a), and attaches the certification testified to by Anthony A. Jimenez, chairperson of the Federal Bureau of Prisons (BOP) Certification Review Panel in Washington D.C.

On July 20, 2007, Chairperson Jimenez certified that Respondent is a sexually dangerous person within the meaning of Section 4248. In certifying Respondent as sexually dangerous, Chairperson Jimenez listed Respondent's offense conduct as:

(1) Using the internet and U.S. mail to transmit images of child pornography, and possessing 13 images of himself and a 15 year old boy engaging in oral sex2;

(2) Respondent violated his supervised release in June 2005 by having sexual contact with a 17 year old male, failing to report for sex offender treatment, using drugs, and failing to comply with drug testing; and

(3) Respondent violated his supervised release in March 2007 by refusing to comply with drug testing, and by using a computer to access pornography, and to contact 3 boys, ages 10, 12, and 14.

The certification was based on review of Abregana's Bureau of Prison records which include, but are not limited to, the offense conduct listed above; and

(4) A limited psychological review which indicated: Axis I diagnosis of Pedophilia, Sexually Attracted to Both Males and Females, Nonexclusive Type; and Axis II diagnosis of Histrionic Personality Disorder; and

(5) An initial assessment using two actuarial risk assessment instruments (Static-99 and Rapid Risk Assessment for Sexual Offense Recidivism (RRASOR)). The assessment results "in addition to his current and prior offense conduct, failure in sex offender treatment, and repeated violations of supervised release, indicate he will have serious difficulty refraining from sexually violent conduct or child molestation if released." (Doc. 1, Exhibit A, Page 2).

In accordance with Section 4248, the United States has moved for a hearing to determine whether Respondent is a "sexually dangerous person" subject to civil commitment for treatment in an appropriate facility.

On August 14, 2007, Respondent filed five motions challenging the constitutionality of Section 4248's civil commitment scheme:

(I) Motion to Dismiss No. 1 (On the Ground that Congress Exceeded its Constitutional Authority);

(II) Motion to Dismiss No. 2 (On the Ground that Section 4248 Violates the Constitution's Ex Post Facto, Double Jeopardy, and Cruel and Unusual Punishment Clauses);

(III) Motion for an Order Requiring the Government to Establish the Criteria of Commitment Beyond a Reasonable Doubt;

(IV) Motion for an Order Regarding the Applicability of the Fifth and Sixth Amendments in § 4248 Proceedings; and,

(V) Motion to Dismiss No. 3 (On the Ground that Sections 4247(a)(5), 4247(a)(6), and 4248 are Void for Vagueness).

On September 5, 2007, the Government filed memorandums in opposition to Respondent's motions.

On September 13, 2007, Respondent filed his reply memorandum.

On September 24, 2007, the Court held a hearing on Respondent's motions and on the United States' request for a hearing pursuant to Section 4248(a). The Court took Respondent's motions under advisement, but to continue moving the matter forward, entered an "Order Directing Examination Pursuant to 18 U.S.C. § 4247 and 4248." ("Examination Order"). Respondent's counsel consented to the Examination Order insofar as it permitted the examination to move forward, but preserved Respondent's constitutional challenges as set forth in Respondent's various motions.

The Examination Order permitted a psychiatric or psychological examination of Respondent and ordered that the resulting report be filed with the Court and counsel. The Court further ordered that the examination be conducted within a reasonable period of time, not to exceed forty-five days, and permitted the United States to seek a reasonable extension of time, not to exceed thirty days, for the examination to be completed. The Court directed Respondent to advise it if Respondent sought an examination by a separate examiner under 18 U.S.C. § 4247(b).

The Court then scheduled an evidentiary hearing for...

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