Argued: September 15, 2017
from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:10-hc-02151-BO)
Benjamin M. Shultz, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant.
Carroll Graves, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellee.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Mark B. Stern, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; John Stuart Bruce,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellant.
P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee.
MOTZ, TRAXLER, and KEENAN, Circuit Judges.
TRAXLER, CIRCUIT JUDGE
Adam Walsh Child Protection and Safety Act of 2006 (the
"Act"), Pub. L. No. 109-248, 120 Stat. 587
(codified as amended in scattered sections of 18 and 42
U.S.C.), authorizes the government to civilly commit
"sexually dangerous" federal inmates after the
expiration of their sentences. 18 U.S.C. § 4248(a). A
defendant is a "sexually dangerous person" if he
has a prior act or attempted act of child molestation or
sexually violent conduct and is "sexually dangerous to
others." Id. § 4247(a)(5). A defendant 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." Id. § 4247(a)(6).
2010, Walter Wooden was serving a sentence at a federal
correctional facility when the government began proceedings
against him under the Act; he was civilly committed as a
sexually violent predator in 2014. In 2016, Wooden requested
a hearing to address whether he should be released.
See 18 U.S.C. § 4247(h). After a hearing, the
district court concluded that Wooden no longer qualified as a
sexually dangerous person and ordered Wooden's release.
The government appeals. As we will explain, the highly
deferential standard of review applicable to this case
compels us to affirm.
who was born in 1956, has a limited intellectual capacity.
See United States v. Wooden, 693 F.3d 440, 443 (4th
Cir. 2012) ("Wooden I"). In 1972, when
Wooden was 16, he was twice adjudicated delinquent for
committing rectal sodomy on a minor. The next year, he was
again was adjudicated delinquent after sexually molesting a
minor. In 1974, Wooden was charged as an adult and pleaded
guilty to taking indecent liberties with a four-year-old
child. Wooden received a 10-year sentence but was paroled
into the community in 1980. In 1984, Wooden was convicted and
sentenced to 25 years' imprisonment after separate
incidents involving an eight-year-old boy and a
twelve-year-old boy. Wooden was paroled in 2000, returned to
prison in 2001 after violating the terms of parole, and
paroled again in 2002.
being paroled in 2002, Wooden began sex-offender treatment
with Dr. Ronald Weiner. By 2005, Weiner believed Wooden was
responding well enough to treatment that he was thinking
about discharging him. Before that happened, Wooden resisted
taking a routine polygraph, and he ultimately told Dr. Weiner
that he had had sexual contact in the basement laundry room
of his building with a seven-year-old boy he had been alone
with on previous occasions. Wooden later changed his story
and claimed that he only dreamed about touching the boy. When
interviewed by the police, the boy denied that Wooden had
touched him, but he did say that "he was afraid to be
around Wooden, even though Wooden sometimes gave him
money." Wooden I, 693 F.3d at 444-45.
a June 2005 polygraph, Wooden gave "non-deceptive"
answers that admitted to having "deviant sexual
thoughts" about children in the past year, being
sexually aroused in the presence of children in the past
year, engaging in sexual activity with a child in the past
year, and attempting to engage in sexual activity with a
different child. See id. at 444. The District of
Columbia parole board determined that Wooden's story
about the boy in the laundry room was true and revoked
Wooden's parole. Wooden served the revocation sentence at
the Federal Correctional Institute in Butner, North Carolina.
2010, shortly before Wooden was scheduled to be released from
Butner, the government filed a petition seeking to civilly
commit him under the Act. At the hearing on the
government's petition, Drs. Hy Malinek and Heather Ross
testified as expert witnesses for the government. Both
experts agreed that Wooden suffered from pedophilia, which
qualifies as a "serious mental illness" under the
Act; that his illness would make it difficult for Wooden to
refrain from reoffending if released; and that commitment
under the Act was therefore warranted. Wooden presented the
expert testimony of Dr. Terence Campbell. Campbell testified
that Wooden no longer qualified as a pedophile and that he
did not have a volitional impairment, such that commitment
was not appropriate.
district court denied the commitment petition, largely
adopting Campbell's analysis. The court agreed that
Wooden had suffered from pedophilia in the past, but
concluded that the government had not proven that Wooden
still suffered from pedophilia at the time of the hearing. As
to the Act's volitional-impairment requirement, the
district court held that it was not sufficient for the
government to prove that the mental illness caused the
defendant to have "serious difficulty in refraining from
sexually violent conduct or child molestation if released,
" as required by the Act. 18 U.S.C. § 4247(a)(6).
Instead, the court concluded that the Constitution required
the government to also prove that the defendant was
dangerous, which the court believed required evidence showing
a five-year recidivism rate of at least 50%. Because the
government's evidence fell short of that threshold, the
district court dismissed the government's petition.
See Wooden I, 693 F.3d at 450.
government appealed to this court. Although we recognized
that review of the district court's factual conclusions
was governed by the highly deferential clearly-erroneous
standard, we found the district court's analysis wanting
in several respects. Most significantly, we explained that
the district court (1) failed to account for evidence showing
Wooden's then-current sexual interest in children when
concluding that Wooden was not a pedophile, see id.
at 452; (2) failed to address certain internal
inconsistencies and deficiencies in Dr. Campbell's report
and testimony, see id. at 454-55; (3) erred by
equating volitional impairment with impulsiveness and then
ignoring strong evidence of impulsiveness, see id.
at 457-58; (4) failed to consider other evidence relevant to
the question of volitional impairment, see id. at
459; and (5) erred by requiring proof of a greater-than-50%
risk that Wooden would re-offend within five years, see
id. at 461. We therefore reversed the district
court's decision and remanded for further proceedings.
remand, the district court concluded that our opinion in
Wooden I required it to find that Wooden was a
sexually violent predator, and the court therefore ordered
Wooden committed. We reversed and remanded again, explaining
that "our mandate contemplated the possibility that a
proper distillation of all the evidence, including a full
accounting of all contradictory and conflicting evidence,
could perhaps support the district court's original
findings." United States v. Wooden, 546 F.Appx.
229, 231 (4th Cir. 2013) (per curiam) (unpublished). After
the second remand, the district court again certified Wooden
as sexually dangerous. Limiting the record to the evidence
developed for the original 2011 hearing, the court concluded
that Wooden suffered from pedophilia at the time of the
hearing and that he would have serious difficulty refraining
from reoffending if released.
2014, counsel for Wooden hired Dr. Joseph Plaud to evaluate
Wooden's then-current condition. After his first
interview with Wooden, Plaud became concerned about
Wooden's neurocognitive development, and he strongly
recommended that Wooden undergo medical and
neuropsychological evaluations. Counsel then brought in Dr.
Frederick Winsmann to evaluate Wooden. Dr. Winsmann, a
psychologist, is a leading expert on the issue of volitional
control in sex offenders. He is the founder of the Boston
Symposium on Psychology and the Law, "an annual event .
. . [that] bring[s] together experts in the field of
psychology and psychiatry, as well as the law . . . . to
discuss difficult topics and advance the field." J.A.
interviewed Wooden multiple times and conducted a battery of
tests measuring Wooden's memory, intellectual ability,
and adaptive functioning. Winsmann also interviewed some of
Wooden's family members. Winsmann concluded that Wooden
suffers from Intellectual Development Disorder
("IDD"), a condition previously referred to by
mental-health professionals as mental retardation. Although
evidence of Wooden's intellectual limitations was part of
the original hearing record, see Wooden, 693 F.3d at
443, his intellectual capacity was not then a focus of the
experts' reports. In Winsmann's view, the earlier
failure to diagnose IDD or recognize its significance led to
an incorrect diagnosis of pedophilia.
March 22, 2016, Wooden filed a motion requesting a hearing to
determine whether he should be discharged. See 18
U.S.C. § 4247(h).
hearing, Dr. Winsmann testified that Wooden met the
diagnostic criteria for IDD. According to Winsmann, Wooden
has a full-scale IQ of 75 but presents and communicates at an
even lower level. Winsmann testified that Wooden's
"adaptive functioning is very much impaired"; that
his communication skills are "very low"; and that
his cognitive functioning compares to that of a 3rd- to
5th-grader. J.A. 470, 471.
viewing Wooden's past actions and statements through the
IDD lens, Winsmann testified that he saw no evidence of
pedophilia. According to Winsmann, Wooden's "past
offenses in the ʼ70s and ʼ80s were more
opportunistic and borne out of his intellectual deficit
rather than this deviant preferential urge or arousal to
children." J.A. 483. Winsmann explained,
I don't see the focused interest on children. I see a
global interest in many different ages in his sexual
interest. And I also see these real adaptive difficulties
that drive someone like this to really feel more comfortable
around persons who are so much younger than him
chronologically, but he is . . . really close to their age in
terms of emotional and cognitive development.
So when you look at these factors and the way he's
functioned in the world, it's more compelling to me,
it's more compelling. I considered Pedophilic Disorder. I
would not be doing my job if I didn't. But [IDD is the]
more compelling explanation for his behavior.
Winsmann's view, the scope of Wooden's intellectual
and communicative deficits had long been overlooked, which
ultimately led to an incorrect diagnosis. For example,
Wooden's earlier statements that his very young victims
came to him asking for sex were treated as "cognitive
distortions or 'thinking errors' common to sex
offenders, " Wooden I, 693 F.3d at 452-53, when
Winsmann believed they should have instead been understood as
"the musings of someone, all due respect to Mr. Wooden,
mentally retarded." J.A. 507.
also testified that, at the time of the hearing, Wooden did
not have a serious difficulty controlling his behavior.
Winsmann explained that people with IDD do develop, but they
do so very slowly. And in his view, Wooden's time in
prison had given him the ability to "weigh consequences,
make choices, and think things through, " and that
Wooden therefore would not have "serious difficulty in
controlling [his] behavior." J.A. 484. As proof of
Wooden's growth, Winsmann pointed to the "clear
downward trend" in the frequency of Wooden's
disciplinary infractions. J.A. 487. According to Winsmann,
the decreasing frequency showed that Wooden was increasingly
able to restrain himself and control his anger and
Plaud testified that while he diagnosed Wooden with
pedophilic disorder based on historical data,
"there's really no evidence . . . in the last ten
years that Mr. Wooden, as he sits at Butner, has recurrent or
intense sexually arousing fantasies, urges, or behavior
involving sexual activity with prepubescent males.
There's nothing." J.A. 552-53. Plaud testified that
he agreed with Winsmann that Wooden had IDD. See
J.A. 553 ("I would fully and completely agree that Mr.
Wooden has what we used to call mental retardation, now
IDD."). Plaud also agreed with Winsmann that Wooden now
had sufficient volitional control:
[W]e have more understanding now historically about why he
may have done what he did when he was younger. Because if you
look at . . . when he was active, engaged in pedophilic
behavior, he, himself, was a teenager and in his 20s. I think
he was delayed.
You know, the question earlier was well, would a four
year-old do something to another four year-old? Well, no,
because both of them don't really have much hormones
going on there. But if you're 14 or 15 and you have
physically the hormone development, the development of
secondary sexual characteristics but your mind is 10 years
behind, that's a problem. And so you might see some
sexualized behavior given the physiology going on. But the
brain is delayed. It can't process it like he was a 14
That's what you got in my judgment. That's . . . one
of the significances of this disorder that has gone up until
this hearing now ...