United States v. Caporale

• Decision Date: 06 December 2012
• Docket Number: No. 12–6832.,12–6832.
• Citation: 701 F.3d 128
• Parties: UNITED STATES of America, Petitioner–Appellant, v. Patrick CAPORALE, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

701 F.3d 128

UNITED STATES of America, Petitioner–Appellant,

v.Patrick CAPORALE, Respondent–Appellee.

No. 12–6832.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 20, 2012.

Decided: Dec. 6, 2012.

ARGUED:Dana Lydia Kaersvang, United States Department of Justice, Washington, D.C., for Appellant. Lewis A. Thompson, III, Banzet, Thompson & Styers PLLC, Warrenton, North Carolina, for Appellee. ON BRIEF:Stuart F. Delery, Acting Assistant Attorney General, Mark B. Stern, United States Department of Justice, Washington, D.C.; Thomas G. Walker, United States Attorney, Raleigh, North Carolina, for Appellant.

Before KING, GREGORY, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge GREGORY and Judge WYNN joined.

OPINION

KING, Circuit Judge:

The government appeals the judgment of the district court directing that Patrick Caporale be freed from the custody of the Bureau of Prisons and granted supervised release. Caporale finished serving his prison sentence for child molestation in 2008, but he has remained incarcerated while the government seeks to have him declared a “sexually dangerous person” pursuant to the civil-commitment provisions of the Adam Walsh Child Protection and Safety Act of 2006 (the “Walsh Act”), Pub.L. No. 109–248, 120 Stat. 587, as specifically set forth in 18 U.S.C. § 4248.

A sexually dangerous person under the Walsh Act means one “who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others.” 18 U.S.C. § 4247(a)(5). A person is sexually dangerous to others insofar as he or she “suffers from a serious mental illness, abnormality, or disorder,” and, as a result, “would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” Id. § 4247(a)(6). The parties have never disputed that, as evidenced by his several convictions, discussed infra, Caporale satisfies the first, prior-conduct element of § 4247(a)(5) by having engaged in child molestation.

Following an evidentiary hearing whose scope was thereby limited to the second element of § 4247(a)(5), the district court ruled that, as a matter of law, the government had not proved that Caporale suffers from a serious mental illness, abnormality, or disorder. The court perceived in the alternative that even if Caporale were so afflicted, his commitment was not required because the government had also failed to sufficiently show that Caporale will experience serious difficulty in refraining from sexually violent conduct or child molestation if released.

We conclude that, contrary to the district court's legal determination and as established by the evidence, Caporale indeed suffers from a qualifying mental impairment. We nevertheless affirm the judgment below, discerning no clear error in the court's alternative rationale that the government fell short of carrying its burden to demonstrate a relative likelihood that Caporale will reoffend.

I.

A.

Caporale, fifty-nine, has a history of sexual offenses involving minors. In 1980, he pleaded guilty in New York to fourth-degree criminal facilitation for recruiting about twenty boys, aged thirteen to sixteen, to have sex with an adult female acquaintance. Then, in 1984, Caporale pleaded guilty to state charges of second-degree sexual abuse for subjecting a thirteen-year-old boy to sexual contact and for masturbating another boy, twelve years old. In 1986, Caporale again pleaded guilty in state court to acting in a manner injurious to a child, after having persuaded three boys (age fifteen to sixteen) and a girl (age sixteen) to have sex in his apartment while he watched.

Similar conduct in Maine involving a seventeen-year-old boy and the boy's underage female acquaintances—this time evidenced by photographs and videotapes—resulted in Caporale's 1992 federal indictment for child molestation and for possession of child pornography. Caporale pleaded guilty to six counts of using a minor to engage in sexually explicit conduct, for which he was sentenced to eighty-four months in prison; he served most of that sentence before being granted supervised release in August 1998. On December 14, 1999, Caporale was arrested and charged with endangering the welfare of a minor following the discovery by local authorities that he had discussed masturbation with a fourteen-year-old male neighbor. The charge was a parole violation, for which Caporale was returned to prison in September 2000.

Caporale was again released to supervision in June 2001, and, two years later, was once more found to have violated his conditions of release by associating with a felon, a man who Caporale described as a pedophile. On September 12, 2003, federal probation officers arrived unannounced at Caporale's residence and arrested him upon finding numerous videotapes and photographic depictions of underage boys engaged in sexual activity. Caporale subsequently pleaded guilty in New York to a single count of possessing photographs of an obscene performance of a child.

Caporale's myriad violations ultimately resulted in the revocation of his supervised release. Consequently, Caporale returned to federal prison in 2003 to serve out the sentence imposed on his 1992 conviction. Caporale completed his sentence on March 21, 2008, and he would have been released but for the government's filing that day of a certification pursuant to the Walsh Act, which provides, in pertinent part:

In relation to a person who is in the custody of the Bureau of Prisons, ... the Attorney General ... may certify that the person is a sexually dangerous person, and transmit the certificate to the clerk of the court for the district in which the person is confined.... The court shall order a hearing to determine whether the person is a sexually dangerous person. A certificate filed under this subsection shall stay the release of the person pending completion of procedures contained in this section.

18 U.S.C. § 4248(a).

The district court was thus required to convene a hearing to afford the government the opportunity to prove the ultimate truth of its certification, i.e., that Caporale is sexually dangerous. An inmate so declared must be kept in federal custody until the danger has passed, or until a state agrees to assume responsibility for the inmate's custody, care, and treatment. See18 U.S.C. § 4248(d). As it was uncontested that Caporale's criminal history satisfied the first element toward a determination of sexual dangerousness, it was the government's burden at hearing to establish, by clear and convincing evidence, both prongs of the second element: (1) that Caporale is impaired by a serious mental illness, abnormality, or disorder, such that (2) he would, if released, have serious difficulty refraining from sexually violent conduct or child molestation. See id. § 4247(a)(6).

B.

All proceedings having been stayed during the pendency of constitutional challengesto the commitment proceedings wrought by the Walsh Act, see United States v. Hall, 664 F.3d 456, 461 n. 2 (4th Cir.2012) (reciting litigation history beginning with Supreme Court's ruling in United States v. Comstock, ––– U.S. ––––, 130 S.Ct. 1949, 176 L.Ed.2d 878 (2010), and progressing through our decision on remand, United States v. Comstock, 627 F.3d 513 (4th Cir.2010), and its companion case, Timms v. Johns, 627 F.3d 525 (4th Cir.2010)); see also United States v. Timms, 664 F.3d 436 (4th Cir.2012), Caporale's hearing at last took place on March 5, 2012. The key witnesses were Dr. Gary Zinik and Dr. Lela Demby for the government, and Dr. Joseph Plaud for the defense, all of whom are licensed psychologists and acknowledged experts. All three reviewed the available records, and Dr. Plaud personally interviewed Caporale on November 28, 2011.

1.

According to Dr. Plaud, Caporale is sexually interested in pubescent to post-pubescent males, “12, 13 up to 16, 17 years old.” J.A. 253.¹ Dr. Plaud explained that, inasmuch as the rate of physical maturity may differ depending on the person, stages of development defy rigid definition by age, and that it was more accurate to say that Caporale's sexual interests correspond approximately to Stages III–V on the five-stage Tanner scale of physical development. See id. at 253–54. Dr. Zinik essentially concurred with Dr. Plaud, noting that Caporale is attracted to “[p]ubescent boys, ages approximately 11 to 14.” Id. at 157.

In contrast to her two colleagues, Dr. Demby opined that Caporale prefers “pre-pubescent boys ... who ha[ve] not yet developed the majority of their secondary sexual characteristics ... as young as 11 and 12.” J.A. 207. Asked to elaborate, Dr. Demby noted that, as set forth in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (“DSM”), age thirteen is the presumed ceiling for a diagnosis of pedophilia, a condition in which the afflicted individual is attracted to pre-pubescent children. See id. at 209.

Though not confronted directly with Dr. Demby's testimony, Dr. Plaud flatly rejected her diagnosis:

[Caporale's] not a pedophile.... [T]he DSM in the diagnostic criteria for pedophilia does in parenthesis say in terms of an age range, generally age 13 years and younger. That's worthless information. That doesn't inform a professional about anything.... We have to look at what the data are because the critical feature is whether or not the person has attained evidence of secondary sexual characteristics.

J.A. 253. Dr. Zinik agreed with the defense on this point, as confirmed by the district court's questioning:

JUDGE BOYLE:

This patient or subject is not a pedophile. You don't describe him—you don't define him a pedophilic with children who are below 11, say?

[DR. ZINIK]: That's correct. I—

JUDGE BOYLE:

You think his target group is the pubescent group?

THE WITNESS: Definitely those who have—boys who have reached puberty.

JUDGE BOYLE: Yeah. Ye...