United States v. Wood

• Decision Date: 20 December 2013
• Docket Number: No. 12–7653.,12–7653.
• Citation: 741 F.3d 417
• Parties: UNITED STATES of America, Petitioner–Appellee, v. Vernon Dale WOOD, Respondent–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

741 F.3d 417

UNITED STATES of America, Petitioner–Appellee,

v.Vernon Dale WOOD, Respondent–Appellant.

No. 12–7653.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 30, 2013.

Decided: Dec. 20, 2013.

ARGUED:James Edward Todd, Jr., Office of the Federal Public defender, Greenville, North Carolina, for Appellant. Michael Gordon James, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Rudy A. Renfer, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before SHEDD and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge HAMILTON wrote the opinion in which Judge SHEDD and Judge THACKER joined.

HAMILTON, Senior Circuit Judge:

Below, following a hearing, the district court found that Vernon Dale Wood (Wood) was a “sexually dangerous person” under the Adam Walsh Act, 18 U.S.C. § 4248 (the Act). As a result, the district court committed Wood to the custody of the Attorney General of the United States. Wood appeals, and we affirm.

I

A

The Act provides for the civil commitment of a “sexually dangerous person” following the expiration of their federal prison sentences. Id. § 4248(a). A sexually dangerous person is one “who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others.” Id. § 4247(a)(5). A person is considered “sexually dangerous to others” if “the person 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.” Id. § 4247(a)(6).

The Attorney General, his designee, or the Director of the Federal Bureau of Prisons (BOP) may initiate a § 4248 civil commitment proceeding in the district court for the district in which the person is confined by filing a certification that the person is sexually dangerous within the meaning of the Act. Id. § 4248(a). The filing automatically stays the release of the person from custody pending a hearing before the district court. Id.

Prior to the civil commitment hearing, the district court “may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court.” Id. § 4248(b). If the district court finds more than one examiner “appropriate,” the district court may order additional examinations. Id. § 4247(b). Each examiner is designated by the districtcourt, “except ... upon the request of the defendant[,] an additional examiner may be selected by the defendant.” Id.

To obtain a civil commitment order against a defendant, the government is required to establish three elements by clear and convincing evidence. Cf. id. § 4248(d) (“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.”). First, the government is required to establish that the defendant has “engaged or attempted to engage in ... child molestation” in the past, Id. § 4247(a)(5). Next, the government is required to prove that the defendant currently “suffers from a serious mental illness, abnormality, or disorder,” id. § 4247(a)(6). Finally, the government is required to show that the defendant, as a result of the illness, abnormality, or disorder, “would have serious difficulty in refraining from ... child molestation if released.” Id.

B

Wood was born in July 1953. In 1976, he was arrested for promoting prostitution in the first and second degree, and simple assault, in Yakima County Superior Court in Yakima, Washington. The prostitution charges were subsequently dismissed, but Wood was convicted of the simple assault charge and received a suspended sentence of fifteen days.

In April 1977, Wood was arrested for promoting prostitution and compelling prostitution in Malheur County Circuit Court in Malheur, Oregon. He was found guilty of both counts and sentenced to eighteen months' imprisonment for the promoting prostitution count and sentenced to a consecutive term of three years' imprisonment for the compelling prostitution count. One of the women involved in these prostitution offenses was a sixteen-year old female.

In August 1987, Wood was charged with sexual abuse in the second degree in Polk County District Court in Polk, Iowa. In May 1989, he was found guilty of this offense, which involved intercourse with a ten-year old girl, and sentenced to twenty-five years' imprisonment. He was released from prison in January 2001.

On April 16, 2001, Wood was arrested and charged with failure to comply with sex offender registry requirements in Polk County District Court. He received a suspended sentence of two years' imprisonment and placed on probation.

Wood's probation was revoked, and the two-year sentence was reinstated, following his arrest in March 2002 in Wayne County, Iowa on five counts of supplying alcohol to minors. He pleaded guilty to one such count and was sentenced to time served (twenty-four hours) plus a $250 fine.

On May 3, 2004, Wood was arrested and charged in Decatur County, Iowa with lascivious acts with a child and being a felon in possession of a firearm. These charges were not pursued because the State of Iowa deferred to the United States Attorney's Office for prosecution. Following the dismissal of the state charges, Wood was indicted on October 13, 2004 by a federal grand jury sitting in the Southern District of Iowa and charged with two counts of being a felon in possession of a firearm and ammunition under 18 U.S.C. § 922(g)(1).

In February 2005, Wood was charged with seven counts of sexual abuse in the second degree in Decatur County District Court. These counts arose after Wood allegedly molested a female under the age of twelve over a period of three years. These charges were ultimately dismissed in lieu of the federal prosecution.

On May 9, 2006, Wood was convicted of the federal charges of being a felon in possession of a firearm under § 922(g)(1). In preparation for sentencing, a presentence report (the 2006 PSR) was prepared. The 2006 PSR describes in detail Wood's criminal history, including the circumstances surrounding his conviction for sexual abuse in the second degree in May 1989 and his conviction for supplying alcohol to a minor in March 2002. The 2006 PSR also describes the circumstances surrounding the February 2005 Iowa state charges for sexual abuse in the second degree. Following a sentencing hearing, Wood received concurrent 100–month sentences on the two § 922(g)(1) counts.¹

Wood's projected release date from prison (with good-time credits factored) was August 13, 2012. On January 9, 2012, the BOP certified that Wood was a “sexually dangerous person” pursuant to § 4248(a), automatically staying his release pending an evidentiary hearing. According to the certification, based on Wood's prior criminal history and psychological assessments of him, he would have serious difficulty refraining from sexually violent conduct or child molestation if released.

On January 23, 2012, the district court appointed Dr. Harry Hoberman (Dr. Hoberman), a licensed psychologist, as the district court's designated examiner, pursuant to § 4247(b) and Standing Order of the Court No. 11–SO–4 (the Standing Order). The Standing Order, which governed all cases arising under the Act, was issued by the Chief Judge of the United States District Court for the Eastern District of North Carolina on November 14, 2011. ² Paragraph 5(h) of the Standing Order addresses the appointment of the two types of examiners identified in § 4247(b), a “court-selected examiner” (under Paragraph 5(b) of the Standing Order) and an “additional examiner” selected by the defendant (under Paragraph 5(c) of the Standing Order). (J.A. 17, 18). Paragraph 5(h) of the Standing Order bars counsel from either party from communicating

in writing, orally, or in any other manner with the examiner about the substance of the examiner's examination of the respondent, the report on the examination, or other matters relating to the merits of the proceeding against the respondent except during questioning at a deposition or hearing without leave of court. (J.A. 20).³

Additionally, Paragraph 5(d) of the Standing Order establishes the procedures governing how a defendant may obtain a “non-testifying examiner” pursuant to Rule 26(b)(4)(D) of the Federal Rules of Civil Procedure. (J.A. 18). In particular, the Standing Order states:

Non-testifying Examiner Retained by the Respondent. The respondent may without undue delay move, ex parte and under seal, if he chooses, for approval for an expert he has retained pursuant to Fed.R.Civ.P. 26(b)(4)(D) to conduct an examination of him. Any such motion shall include a certification that the expert has agreed to perform the examination and the proposed date for it, and the expert's curriculum vitae or comparable documentation demonstrating the expert's qualifications and providing contact information for the expert. The motion shall be supported by a memorandum showing that the examination is needed in light of any examinations of the respondent already ordered or completed and that the additional examination would not unduly delay the commitment hearing. Examiners retained pursuant to Fed.R.Civ.P. 26(b)(4)(D) and examinations and reports by them are not subject to the provisions of subparagraphs (b), (c), (e), (f), (g), or (h), which apply to examiners appointed pursuant to 18 U.S.C. § 4247(b) and examinations and reports by them.

(J.A. 18–19).⁴

On February 8, 2012, Wood filed a motion seeking...