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United States v. Wooden

United States Court of Appeals, Fourth Circuit

April 10, 2018

UNITED STATES OF AMERICA, Petitioner - Appellant,
v.
WALTER WOODEN, Respondent - Appellee.

          Argued: September 15, 2017

          Appeal 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)

         ARGUED:

          Benjamin M. Shultz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant.

          Debra Carroll Graves, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee.

         ON BRIEF:

          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.

          Thomas P. McNamara, Federal Public Defender, Eric J. Brignac, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee.

          Before MOTZ, TRAXLER, and KEENAN, Circuit Judges.

          TRAXLER, CIRCUIT JUDGE

         The 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).

         In 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.

         I. A.

         Wooden, 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.

         After 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.

         During 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.

         B.

         In 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.

         The 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.

         The 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.

         On 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.

         C.

         In 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. 462.

         Winsmann 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.

         (1)

         On March 22, 2016, Wooden filed a motion requesting a hearing to determine whether he should be discharged. See 18 U.S.C. § 4247(h).

         At the 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.

         When 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.

         J.A. 482.

         In Dr. 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.

         Winsmann 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 impulsivity.

         Dr. 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 year-old.
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 ...

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