U.S. v. Broncheau

• Decision Date: 29 October 2010
• Docket Number: No. 5:07–HC–2063–BO,No. 5:07–HC–2206–BO,No. 5:07–HC–2166–BO,No. 5:07–HC–2025–BO,No. 5:08–HC–2037–BO,No. 5:07–HC–2185–BO,No. 5:07–HC–2148–BO,No. 5:07–HC–2101–BO,No. 5:06–HC–2219–BO,5:06–HC–2219–BO,5:07–HC–2148–BO,5:07–HC–2166–BO,5:07–HC–2101–BO,5:07–HC–2025–BO,5:07–HC–2185–BO,5:07–HC–2206–BO,5:08–HC–2037–BO,5:07–HC–2063–BO
• Citation: 759 F.Supp.2d 682
• Parties: UNITED STATES of America, Petitioner,v.Donald BRONCHEAU, Respondent.United States of America, Petitioner,v.Jeffrey Neuhauser, RespondentUnited States of America, Petitioner,v.Jerry T. Rogers, RespondentUnited States of America, Petitioner,v.David H. Tobey, RespondentUnited States of America, Petitioner,v.Scott Kevin Combe, RespondentUnited States of America, Petitioner,v.Mathias Thomas Kopp, RespondentUnited States of America, Petitioner,v.Edward David Erwin, RespondentUnited States of America, Petitioner,v.Patrick Caporale, RespondentUnited States of America, Petitioner,v.Scott Kevin McGreevy, Respondent.
• Court: U.S. District Court — Eastern District of North Carolina

759 F.Supp.2d 682

UNITED STATES of America, Petitioner,

v.Donald BRONCHEAU, Respondent.United States of America, Petitioner,

v.Jeffrey Neuhauser, RespondentUnited States of America, Petitioner,

v.Jerry T. Rogers, RespondentUnited States of America, Petitioner,

v.David H. Tobey, RespondentUnited States of America, Petitioner,

v.Scott Kevin Combe, RespondentUnited States of America, Petitioner,

v.Mathias Thomas Kopp, RespondentUnited States of America, Petitioner,

v.Edward David Erwin, RespondentUnited States of America, Petitioner,

v.Patrick Caporale, RespondentUnited States of America, Petitioner,

v.Scott Kevin McGreevy, Respondent.

Nos. 5:06–HC–2219–BO, 5:07–HC–2101–BO, 5:07–HC–2148–BO, 5:07–HC–2166–BO, 5:07–HC–2025–BO, 5:07–HC–2185–BO, 5:07–HC–2206–BO, 5:08–HC–2037–BO, 5:07–HC–2063–BO.

United States District Court, E.D. North Carolina,Western Division.

Oct. 29, 2010.

Michael D. Bredenberg, Butner, NC, R. A. Renfer, Jr., U.S. Attorney's Office, Raleigh, NC, for Petitioner.Jane E. Pearce, Suzanne Little, Federal Public Defender, Raleigh, NC, for Respondent.TERRENCE WILLIAM BOYLE, District Judge.

Respondents are former federal prisoners who have had Certifications of a Sexually Dangerous Person pursuant to 18 U.S.C. § 4248 filed against them by the federal government under the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109–248, 120 Stat. 587 (2006) (“Adam Walsh Act”). Section 4248 permits the court to indefinitely commit an individual if, after a hearing, the court finds by clear and convincing evidence the person is a “sexually dangerous person[.]” 18 U.S.C. § 4248(d). To date, none of these respondents has been committed; they await hearings on the government's petitions for their commitment while being held at Federal Correctional Institution in Butner, North Carolina (hereinafter “FCI–Butner”).

Respondents have moved to dismiss the actions filed against them on the basis that section 4248 violates their right to procedural and substantive due process and denies equal protection of the laws. Before the court are various motions to dismiss filed by all respondents, the government's responses, respondents' supplemental memoranda in support of the motions to dismiss, and the government's responses thereto. In addition, respondents Combe and Kopp have filed motions for hearing on the government's petitions for their commitment. The parties also appeared before the court for a status hearing on either August 30, 2010, or September 28, 2010. In all of the cases the issues presented by respondents and the government are substantially the same and the court will resolve the matters jointly.

As background, each respondent was incarcerated in the custody of the Bureau of Prisons (hereinafter “BOP”) serving an active term of incarceration as set out in his criminal federal judgment at the time the government filed the certifications of sexual dangerousness. The criminal judgment for each respondent includes a term of supervised release. The government filed section 4248 certifications against each respondent, staying their release from incarceration, shortly prior to the expiration of their prison terms. At the time the certifications were filed, all of the respondents were incarcerated at FCI—Butner, which is in this district; however, none of the criminal judgments originated from this district. The certifications all provide an assertion of the Chairperson (or in some cases, the Interim Chairperson) of the BOP Certification Review Panel that “[b]ased on a review of ... Bureau records, ... [respondent at issue] is a sexually dangerous person as defined by 18 U.S.C. § 4247(a)(5), and sexually dangerous to others as defined by 18 U.S.C. § 4247(a)(6).”

A. Procedural and Criminal History of Respondents1. Donald Broncheau

In 2003, Donald Broncheau was convicted and sentenced in the District of Idaho for making false statements to a government agency (FBI) in violation of 18 U.S.C. § 1001. Broncheau received a term of imprisonment of forty-eight months and a three-year term of supervised release. His projected release date was January 4, 2007. On December 20, 2006, the government filed a certification of a sexually dangerous person pursuant to 18 U.S.C. § 4248 against Broncheau. United States v. Broncheau, No. 5:06–HC–2219–BO (E.D.N.C.) (D.E. # 1). The certification provides only the general assertion of the Interim Chairperson of the BOP Certification Review Panel that Broncheau is a sexually dangerous person as defined by 18 U.S.C. § 4247(a)(5)-(6). No additional explanation or notice of the criminal activity or mental diagnosis upon which this certification is based is contained within the certification. See id.

2. Scott Kevin Combe

In 2004, Scott Combe was convicted in the District of Utah of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and received a thirty-month term of imprisonment and a three-year term of supervised release. His projected release date was January 29, 2007. On January 26, 2007, the government filed a certification of a sexually dangerous person pursuant to 18 U.S.C. § 4248 against Combe. United States v. Combe, No. 5:07–HC–2025–BO (E.D.N.C.) (D.E. # 1). The certification is based on an Idaho state conviction, dating back at least eighteen years, “involv[ing] sexual contact with two male children ages 11 and 12, over a period of several months.” Id.

3. Jeffrey Neuhauser

In 1999, Jeffrey Neuhauser was convicted in the District of Maryland of interstate travel with the intent to engage in sex with a minor in violation of 18 U.S.C. § 2423(b) and distribution of a visual depiction of a minor engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252, and received a 109–month term of imprisonment and a five-year term of supervised release. While serving this sentence, he also completed an eighteen-month term of imprisonment for Travel with the Intent to Engage in Sex with a Minor, in violation of 18 U.S.C. § 2423(b), imposed by the Eastern District of Virginia. His projected release date was June 6, 2007. On May 22, 2007, the government filed a certification of a sexually dangerous person pursuant to 18 U.S.C. § 4248 against Neuhauser. United States v. Neuhauser, No. 5:07–HC–2102–BO (E.D.N.C.) (D.E. # 1). The certification is based on respondent's two federal convictions, described in the certification as “his current offense conduct[,]” as well as a Maryland state conviction of Assault and Battery, which the certification states involved Neuhauser's attempt to sodomize a 14–year–old boy, and a 1985 Illinois state conviction of Contributing to the Sexual Delinquency of a Child. Id.

4. Jerry T. Rogers

In 1992, Jerry T. Rogers was convicted in the District of Hawaii of Bank Robbery and Use and Carry of a Firearm During and in Relation to a Crime of Violence. He received a 156–month term of imprisonment, a consecutive 60–month term of imprisonment, and a five-year term of supervised release. His projected release date was August 9, 2007. On August 7, 2007, the government filed a certification of a sexually dangerous person pursuant to 18 U.S.C. § 4248 against Rogers. United States v. Rogers, No. 5:07–HC–2148–BO (E.D.N.C.) (D.E. # 1). The certification is based on a 1992 Hawaii state conviction of three counts of Sexual Assault in the First Degree and two counts of Sexual Assault in the Third Degree and a 1973 ¹ conviction by United States Army court martial of two counts of Rape and one count of Carnal Knowledge.

5. David Henry Tobey

In 2003, David Henry Tobey was convicted in the District of Maryland of Unlicensed Dealing in Firearms, in violation of 18 U.S.C. § 922(a)(1)(A), and received a 60–month term of imprisonment and a three-year term of supervised release. Tobey's projected release date was September 8, 2007. On September 6, 2007, the government filed a certification of a sexually dangerous person pursuant to 18 U.S.C. § 4248 against Tobey. United States v. Tobey, No. 5:07–HC–2166–BO (D.E. # 1). The certification is based on a Maryland state conviction of three counts of Child Abuse, in a series of incidents that involved him engaging in numerous sexual acts with the daughter of a female friend when she was between the ages of seven and fourteen years old, and a Florida state conviction of Attempted Sexual Battery Upon a Child and Lewd, Lascivious, or Indecent Assault or Act Upon or in the Presence of a Child, in an incident that involved a seven year old boy.

6. Mathias Thomas Kopp

In 2001, Mathias Thomas Kopp was convicted in Hungary of the rape of a minor not older than twelve years of age. Kopp is an American citizen and was transferred to BOP custody pursuant to 18 U.S.C. §§ 4100 et seq. He received a 92–month term of imprisonment and a term of supervised release. ² Kopp's projected release date was April 2, 2008. On October 5, 2007, the government filed a certification of a sexually dangerous person pursuant to 18 U.S.C. § 4248 against Kopp. USA v. Mathias Thomas Kopp, 5:07–HC–2185–BO (E.D.N.C.) (D.E. # 1). The certification is based on his “current offense conduct” and a 1981 Louisiana state conviction for Forcible Rape, “for conduct that included breaking into a residence and forcing a female resident into her bedroom at gunpoint, where he raped and forced her to perform oral sex[.]” Id.

7. Edward David Erwin

In 2001, Edward David Erwin was convicted in the Western District of Kentucky of Knowingly Receiving by Computer Visual Depictions of Minors Engaging in Sexually Explicit Conduct Which Had Been Transported in Interstate Commerce in violation of 18 U.S.C. § 2252(a)(2) and Knowingly Possessing Computer Disks and Other Visual Depictions of Minors Engaged in Sexually Explicit Conduct Which Had Been Transported in Interstate Commerce in violation of 18 U.S.C. § 2252(a)(4)(B). He received a 90–month term of imprisonment and a five-year term of supervised release. Erwin's projected release date was December...