U.S. v. Tom

Decision Date13 May 2009
Docket NumberNo. 08-2345.,08-2345.
Citation565 F.3d 497
PartiesUNITED STATES of America, Petitioner-Appellant, v. Roger Dean TOM, Respondent-Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Mark B. Stern, argued, Mark B. Stern and Samantha Lee Chaifetz, on the brief, Washington, DC, for appellant.

Caroline Durham, AFPD, argued, Caroline Durham, AFPD and Katherine M. Menendez, AFPD, on the brief, Minneapolis, MN, for appellee.

Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.

MURPHY, Circuit Judge.

Roger Dean Tom pled guilty to one count of aggravated sexual abuse of a minor and was sentenced by the district court to 120 months imprisonment and 60 months supervised release. Two days before the end of his prison term the United States filed a petition under 18 U.S.C. § 4248 to have him civilly committed as a "sexually dangerous person." The district court granted Tom's motion to dismiss the petition after concluding that the authorizing legislation was unconstitutional. The United States appeals, and we reverse.


In 1997 Tom pled guilty in the United States District Court for the District of Utah to one count of aggravated sexual abuse of a minor in violation of 18 U.S.C. § 2241(c), a statute making it illegal to cross state lines with intent to engage in a sexual act with a minor. Tom was sentenced to 120 months in prison and 60 months supervised release and assigned by the Bureau of Prisons (BOP) to the Federal Medical Center (FMC) in Rochester, Minnesota. His scheduled release date was October 4, 2006, but his release was stayed on October 2 after the United States filed a petition in the federal district court in Minnesota under 18 U.S.C. § 4248. That provision, a part of the Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act), Pub.L. No. 109-248, § 302, 120 Stat. 587, 620-22, requires a district court to stay pending a hearing the release of an inmate certified by the BOP as a "sexually dangerous person." The petition alleges that the FMC Rochester mental health staff had examined Tom and determined that he is such a sexually dangerous person.

The district court appointed a federal defender to represent Tom and scheduled a hearing to determine whether there was clear and convincing evidence that Tom is a sexually dangerous person. Tom moved to dismiss the proceeding, arguing that § 4248 was unconstitutional because neither the Commerce Clause nor the Necessary and Proper Clause of the United States Constitution authorized its enactment, it violates the Due Process and Equal Protection Clauses, and it is a criminal sanction requiring the government to establish sexual dangerousness beyond a reasonable doubt.

Relying primarily on United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the district court concluded that Congress exceeded its Commerce Clause authority by enacting § 4248 because the statute "is unrelated to economics but rather aims to regulate and prevent noneconomic criminal conduct that traditionally has been the province of the States" and lacks a "jurisdictional element to ensure its application only to situations involving interstate commerce...." The district court was also unpersuaded by the argument that "§ 4248 is necessary and proper for effectuating a constitutionally vested power." Tom's motion to dismiss was granted, and his release stayed by this court pending resolution of the appeal filed by the United States.


Congress enacted the Adam Walsh Act in order to "[t]o protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, [and] to promote Internet safety...." 120 Stat. at 587. Its legislative history makes clear that the Act was designed to be a "comprehensive bill to address the growing epidemic of sexual violence against children" and to "address loopholes and deficiencies in existing laws." H.R.Rep. No. 109-218, pt. 1 (2005). A Senate sponsor described the Act as "the most comprehensive child crimes and protection bill in our Nation's history." 152 Cong. Rec. S8012-02 (daily ed. July 20, 2006) (statement of Sen. Hatch). Among other measures, the Act strengthens federal criminal penalties for sexually exploitive and violent crimes against children, see, e.g., § 206, 120 Stat. at 613 (codified as amended at 18 U.S.C. § 2241 (2006)), establishes a National Sex Offender Registry, see § 119, 120 Stat. at 596 (codified at 42 U.S.C. § 16919 (2006)), and creates the civil commitment procedures at issue here, see § 302, 120 Stat. at 620-22 (codified at 18 U.S.C. § 4248 (2006)).

Title III of the Adam Walsh Act amends and supplements already existing civil commitment provisions, see, e.g., 18 U.S.C. §§ 4241, 4243-4246, to authorize the federal government to seek a court order that a person in its custody is "sexually dangerous" and if so, a civil commitment order, see § 4248. The Act defines a sexually dangerous person as "a person who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others." § 4247(a)(5). A person is sexually dangerous to others if he "suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released." § 4247(a)(6). The terms "sexually violent conduct" and "child molestation" are not defined by the statute.

The civil commitment process begins when the Attorney General, an individual authorized by the Attorney General, or the Director of the BOP certifies a person as sexually dangerous. § 4248(a). The government is authorized to initiate civil commitment proceedings against three categories of individuals: (1) a person committed to its custody because he is "suffering from a mental disease or defect rendering him ... unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense;" (2) a person "against whom all criminal charges have been dismissed solely for reasons relating to the mental condition of the person;" or (3) a person who is in the custody of the BOP. § 4248(a). Tom falls within the third category.

Upon such a certification the release of the person in custody is stayed, and a district court must initiate a hearing in order to determine whether the individual is in fact sexually dangerous. § 4248(a). Prior to the hearing the district court is authorized to order a psychiatric examination of the individual, the result of which may be filed with the court. § 4248(b). The subject of the hearing shall be provided counsel if he cannot afford "adequate representation" and may testify, present evidence, subpoena witnesses, and confront and cross examine witnesses. § 4247(d).

If the district court finds by clear and convincing evidence that the individual was accurately certified as a sexually dangerous person, it must commit the person to the custody of the Attorney General. § 4248(d). Upon obtaining custody of the individual, the Attorney General must release him to the state where he was tried or the state of his domicile if either state will "assume responsibility for his custody, care, and treatment." Id. If despite "all reasonable efforts" neither state will "assume such responsibility," the Attorney General must retain custody of the sexually dangerous person in a "suitable facility" until either state agrees to take him, § 4248(d)(1), he is no longer sexually dangerous, § 4248(d)(2), or he will not be sexually dangerous if released under a prescribed course of treatment, id.

Once a person has been committed under § 4248, the director of the facility where he has been placed must submit an annual report to the district court with a recommendation about whether there is a need for his continued confinement. § 4247(e)(B). If the director determines that a committed person is no longer sexually dangerous to others, or will not be sexually dangerous to others if released under a prescribed regimen of care, she must certify that to the district court, which must then order the person's discharge or hold a hearing to determine whether the person should be released. § 4248(e). Counsel for the civilly committed or his legal guardian may also move the committing district court for a hearing to determine whether the person should be released. § 4247(h). If after such a hearing the district court determines by a preponderance of the evidence that the person is no longer sexually dangerous, it may order his unconditional release. § 4248(e)(1). The district court may also order a conditional release after a finding that the person will not be sexually dangerous to others if released under a prescribed regimen of care, § 4248(e)(2), in which case the release is subject to revocation, § 4248(f).


The only appellate court to have yet addressed the constitutionality of § 4248 in a published opinion is the Fourth Circuit. In United States v. Comstock, 551 F.3d 274, 279-80 (4th Cir.2009), the court concluded that the provision was unconstitutional after determining that § 4248 regulated neither economic activity nor activities substantially affecting interstate commerce and was therefore beyond the reach of the Commerce Clause. The Fourth Circuit also rejected the government's argument that the Necessary and Proper Clause "standing alone," untethered to "powers specifically enumerated in the Constitution" could authorize the legislation. Id. at 280.

The district courts which have addressed the constitutionality of § 4248 have divided on the question. In addition to the Minnesota district court order currently under review, district courts in Massachusetts and North Carolina have concluded that § 4248 is unconstitutional. See United States v. Volungus, 599 F.Supp.2d 68, 77-78 (D.Mass.2009) (Section 4248...

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  • U.S. v. Volungus, 09-1596.
    • United States
    • U.S. Court of Appeals — First Circuit
    • January 8, 2010
    ...that thus far have examined the constitutionality of section 4248 have reached divergent conclusions. Compare United States v. Tom, 565 F.3d 497, 504-05 (8th Cir.2009) (upholding the provision), with United States v. Comstock, 551 F.3d 274, 284 (4th Cir.2009) (contra). The Supreme Court has......
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    ... ... at , 130 S.Ct. at 1958 (18 U.S.C. 4248 constitutes a modest addition to a set of federal prison-related mental-health statutes that have existed for many decades); United States v. Williams, 916 F.2d 711, 1990 WL 160188, *3 (4th Cir.1990) (table) (The appellant would have us read and apply the provisions of 4241 and 4246 in isolation. However, they are parts of the process due persons with mental diseases or defects and who have been charged with violation of federal criminal statutes. These sections must be considered together so as to understand the overall plan.); ... ...
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