United States v. Timms

• Decision Date: 01 July 2011
• Docket Number: No. 5:08–HC–02156–BO.,5:08–HC–02156–BO.
• Parties: UNITED STATES of America, Petitioner, v. Gerald Wayne TIMMS, Respondent.
• Court: U.S. District Court — Eastern District of North Carolina

799 F.Supp.2d 582

UNITED STATES of America, Petitioner,

v.Gerald Wayne TIMMS, Respondent.

No. 5:08–HC–02156–BO.

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

July 1, 2011.

Unconstitutional as Applied

18 U.S.C.A. § 4248

Edward D. Gray, G. Norman Acker, III, R.A. Renfer, Jr., U.S. Attorney's Office, Michael James, Joshua B. Royster, U.S. Department of Justice, Raleigh, NC, Michael D. Bredenberg, Butner, NC, for Petitioner.

Raymond C. Tarlton, Tarlton McEnery LLP, Raleigh, NC, for Respondent.

ORDER

TERRENCE W. BOYLE, District Judge.

Before the Court is Respondent's Motion to Dismiss [DE 65]. The Motion is GRANTED IN PART and DENIED IN PART. As set forth below, the Court holds that the Adam Walsh Act, as applied to Respondent, is unconstitutional. This action is DISMISSED.

I. BACKGROUND

A. The Adam Walsh Child Protection and Safety Act of 2006

Pursuant to The Adam Walsh Child Protection and Safety Act of 2006 ¹ (the “Act,” “the Adam Walsh Act,” or “ § 4248”), the Government is currently detaining allegedly sexually dangerous individuals in this district. These individuals have no pending criminal charges and have not had a hearing to test the legality of their confinement. The Respondent, Gerald Wayne Timms, is one of these detained individuals.

The Adam Walsh Act allows the Government to detain certain individuals after certifying them as “sexually dangerous.” 18 U.S.C. § 4248.² Three types of individuals are covered by the act: (1) those who are in the custody of the Bureau of Prisons, (2) those who are committed to the Attorney General pursuant to 18 U.S.C. § 4241(d) because issues of mental capacity render the person incapable of standing trial, and (3) those against whom all criminal charges have been dismissed solely because of a mental condition. § 4248(a). Like the vast majority of individuals certified in this district, Respondent falls within the first category: he was serving a federal term of imprisonment in the Bureau of Prisons immediately prior to his certification and detention under the Adam Walsh Act.

Under the terms of the Act, a certified individual remains in custody until a district court holds a commitment hearing; the purpose of the hearing is to determine whether the certified individual is in fact sexually dangerous. See 18 U.S.C. § 4248. If so, the individual is civilly committed. The Government must carry its burden at the commitment hearing with clear and convincing evidence.³

The Government started detaining individuals under the Adam Walsh Act in the Fall of 2006. In United States v. Comstock, the Supreme Court reversed the Fourth Circuit to find that Congress had the power to enact § 4248 under the Constitution's Necessary and Proper Clause. ( Comstock I ), ––– U.S. ––––, 130 S.Ct. 1949, 176 L.Ed.2d 878 (2010). The Comstock I Court, however, “d [id] not reach or decide any claim that the statute or its application denies equal protection of the laws, procedural or substantive due process, or any other rights guaranteed by the Constitution.” Id. at 1965. Instead, the Court remanded the case to the Fourth Circuit on those issues.

On December 6, 2010, the Fourth Circuit found that the use of the clear and convincing burden of proof as to the “prior bad act” prong of the Act did not violate substantive or procedural due process. United States v. Comstock, 627 F.3d 513 (4th Cir.2010) ( Comstock II ), rev'g 507 F.Supp.2d 522 (E.D.N.C.2007), cert. denied ––– U.S. ––––, 131 S.Ct. 3026, 180 L.Ed.2d 865, 2011 WL 844967 (2011). The Fourth Circuit did not, however, address any other constitutional challenges to the Act.

B. Gerald Wayne Timms

Respondent Gerald Timms served a 100 month federal sentence ending at the North Carolina Federal Correctional Institute at Butner, North Carolina (“FCI Butner”), following his conviction for receipt of material by mail involving the sexual exploitation of a minor. Less than two weeks before his scheduled November 11, 2008 release date, the Government filed a certificate under § 4248 to civilly commit Respondent as a sexually dangerous person [DE 1]. As is customary with § 4248 detainees, the Chairperson of the Bureau of Prison Certification Review Panel issued Respondent's Certification. Under the Act, the Chairperson is not required to be a medical professional. Respondent's certification is barely 3 pages. Although relatively more detailed than many other certifications, Respondent's certification did not reference any medical expert [DE 1].

Since he was certified under the Act, Respondent was not released from federal custody at the end of his criminal sentence. Respondent's § 4248 proceeding was stayed ab initio, however, and remained that way for almost two years while the appellate courts analyzed § 4248's constitutionality [DE 2].⁴ Respondent's case was eventually assigned to this Court on August 6, 2010.

On May 2, 2011, Respondent filed a Motion to Dismiss based on several constitutional challenges to the Adam Walsh Act [DE 65]. The Court held a commitment hearing regarding Respondent's § 4248 certification from May 25th until May 27th, 2011. The Respondent's Motion to Dismiss is ripe for adjudication.

II. DISCUSSION

Respondent's Motion to Dismiss can broadly be divided into two strands of argument. Under the first strand, Respondent argues that § 4248 is criminal in nature. He argues that when properly viewed as a criminal statute, the Adam Walsh Act amounts to an unconstitutional prosecution. Under his second strand of argument, Respondent contends that even viewing § 4248 as civil in nature, it remains unconstitutional.

A. Section 4248 Creates Civil Proceedings

The Court begins with Respondent's first broad strand of argument: that § 4248, notwithstanding its civil label, creates a criminal proceeding. Respondent contends that the criminal proceeding created by § 4248 amounts to an unconstitutional prosecution because it fails to give Respondent “the entire panoply of protections required by the Constitution in a criminal prosecution embodied in the Ex Post Facto Clause, the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, and the Eighth Amendment.” (Resp.'s Mot. to Dismiss at 3.)

But the Fourth Circuit has determined that § 4248 creates civil, as opposed to criminal, proceedings. United States v. Broncheau, 645 F.3d 676, n. * (4th Cir.2011) (Wynn, J., concurring) (noting that “[t]his line of argument was foreclosed when, in Comstock II, we reiterated that § 4248 is in fact a civil commitment statute.”) (citing Comstock II, 627 F.3d at 520.) ⁵ Moreover, other federal courts that have examined the issue have concluded that the Adam Walsh Act is civil in nature. United States v. Abregana, 574 F.Supp.2d 1123, 1134–35 (D.Haw.2008); United States v. Shields, 522 F.Supp.2d 317, 337–38 (D.Mass.2007); United States v. Dowell, 2007 WL 5361304, *2 (W.D.Ok.2007); United States v. Carta, 503 F.Supp.2d 405, 409 (D.Mass.2007); United States v. Comstock, 507 F.Supp.2d 522, 529–530 (E.D.N.C.2007), overruled on other grounds, Comstock I, 130 S.Ct. 1949.

Contrary to Respondent's arguments, the Court finds that the Adam Walsh Act creates civil-not criminal-proceedings. As a result, Respondent's claims premised on the argument that § 4248 creates criminal proceedings must all fail. Respondent's first broad strand of argument, therefore, is rejected in its entirety.

B. The Constitutionality of Section 4248 As A Civil Proceeding

Arguing in the alternative, Respondent asserts that even viewing § 4248 as civil in nature, the statute does not survive constitutional scrutiny. Respondent advances at least four theories of the Adam Walsh Act's constitutional deficiencies as a civil commitment scheme, including that:

(1) the Act fails to require proof of a detainee's “prior bad act” beyond a reasonable doubt, in violation of the Fifth Amendment;

(2) the Act defines qualifying conduct in a manner that is both unconstitutionally vague and that infringes on the fundamental right to be free from unwanted medical treatment, in violation of the Fifth Amendment;

(3) the Act deprives certified detainees of the equal protection of law, in violation of the Fifth and Fourteenth Amendments; and

(4) the Act fails to require a speedy factual determination, in violation of the Fifth Amendment.

(Resp.'s Mot. to Dismiss at 15–25.) The Court now addresses each of these constitutional challenges.

1. The Burden Of Proof Does Not Render Section 4248 Unconstitutional

First, Respondent attacks the burden of proof that the Adam Walsh Act demands with respect to the statute's “prior bad act” prong. To commit a person under the Act, the Government must prove by “clear and convincing evidence” that the person sought to be civilly committed “has engaged or attempted to engage in sexually violent conduct or child molestation.” See 18 U.S.C. § 4247(a)(5); Comstock II, 627 F.3d at 519. Respondent contends, however, that the Constitution requires that the Government make a greater showing to justify a potentially indefinite civil commitment. He argues that “[b]ecause society so fervently hopes to avoid the risk of wrongful confinement, especially indefinite commitment, the Fifth Amendment requires that the fact of antecedent conduct supporting confinement be found beyond a reasonable doubt.” (Resp.'s Mot. to Dismiss at 16.) Because the “prior bad act” prong requires less than proof beyond a reasonable doubt, Respondent argues, the Act is unconstitutional.

But the Comstock II opinion forecloses Respondent's argument. In rejecting a similar due process challenge to the Adam Walsh Act, the Comstock II Court held that the Government must only establish a prior bad act by clear and convincing proof in order to satisfy the Constitution's due process guarantee. Comstock II, 627 F.3d at 524–25. For the reasons stated in Comstock II, the Court finds that application of the clear and convincing burden of proof to the prior bad act prong of the Adam Walsh Act is not...