United States v. Vernon Wood , 741 F.3d 417 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7653
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
VERNON DALE WOOD,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:12-hc-02008-BR-JG)
Argued: October 30, 2013 Decided: December 20, 2013
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.
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.
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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
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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 district court, “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
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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-
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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.
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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
1
Wood has been convicted in a variety of state courts of
numerous non-sexual offenses, including larceny/shoplifting,
interference with a police officer, malicious mischief, simple
assault, second degree assault with a deadly weapon, driving
while under the influence, driving without a valid license,
second degree escape, resisting arrest, and harassment.
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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.
2
The Standing Order replaced an earlier standing order
issued on August 4, 2010. Recently, the Standing Order was
replaced by a standing order issued on October 21, 2013.
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(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
3
Paragraph 5(h) of the Standing Order does permit non-
substantive ex parte communications, such as communications
involving scheduling, the service of documents, and the payment
of fees.
4
Of note, Wood never sought the appointment of an
additional examiner under Rule 26(b)(4)(D).
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On February 8, 2012, Wood filed a motion seeking the
appointment of Dr. Fabian Saleh (Dr. Saleh) as an additional
examiner as provided in § 4247(b) and § 4248(b). On February
14, 2012, the district court granted Wood’s motion.
On July 6, 2012, Wood filed a motion seeking clarification
of Paragraph 5(h) of the Standing Order or, in the alternative,
seeking leave to substantively communicate ex parte with Dr.
Saleh. A United States Magistrate denied Wood’s request to
substantively communicate ex parte on the basis that Paragraph
5(h) prohibited such communications without leave of court and
Wood failed to show “circumstances justifying overriding” the
dictates of Paragraph 5(h). Consequently, although the
magistrate judge permitted Wood to discuss substantive matters
concerning the commitment hearing with Dr. Saleh, such
discussions were required to be in the presence of counsel for
the government.
Wood appealed this ruling to the district court, contending
that the magistrate judge’s ruling deprived him of his due
process rights. In particular, Wood contended that he had a
right to have an expert examine him, testify on his behalf, and
consult with his attorney. The district court affirmed the
magistrate judge’s ruling, concluding that the magistrate judge
correctly interpreted the Standing Order and that the Standing
Order was consistent with the Act.
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On July 30, 2012, the district court held a civil
commitment hearing. Wood conceded the first prong under the
Act, which called for the government to prove by clear and
convincing evidence that Wood had previously engaged in or
attempted to engage in sexually violent acts or child
molestation. At the hearing, Dr. Tanya Cunic (Dr. Cunic), Dr.
Hoberman, Dr. Saleh, and Eva Toney, Wood’s sister, testified. 5
Dr. Cunic testified that she was a forensic psychologist at
FCC Butner in Butner, North Carolina. Dr. Cunic performed a
forensic evaluation of Wood. Dr. Cunic performed her evaluation
pursuant to a referral from the Sex Offender Certification
Review Branch. Dr. Cunic testified that Wood did not submit to
a clinical interview and she performed a record review.
Dr. Cunic testified that she diagnosed Wood with two
serious mental disorders: (1) Pedophilia, Sexually Attracted to
Females, Non-Exclusive Type, based on Wood’s history and pattern
of offending; and (2) Personality Disorder, Not Otherwise
Specified with Antisocial Traits, based on Wood’s history of
volatile interpersonal relationships, assaults, unstable
employment, and frequent contacts with law enforcement. Dr.
Cunic further testified that, based on Wood’s serious mental
5
Of note, Wood did not testify.
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disorders and dynamic risk factors, he would have serious
difficulty in refraining from child molestation.
Dr. Hoberman testified that he diagnosed Wood with two
serious mental disorders: (1) Pedophilia, Sexually Attracted to
Females; and (2) Antisocial Personality Disorder. Dr. Hoberman
also testified that he believed that Wood would have serious
difficulty in refraining from future acts of child molestation
if released, based on Wood’s serious mental disorders,
admissions during psychological testing, and a risk assessment
Dr. Hoberman performed.
Dr. Saleh testified that there was no evidence that Wood
suffered from Pedophilia. Likewise, Dr. Saleh testified that
Wood did not suffer from Antisocial Personality Disorder. Dr.
Saleh testified that he did diagnose Wood with Personality
Disorder Not Otherwise Specified but that there was no link in
Wood’s case between the disorder and sexual reoffending. Dr.
Saleh further testified that, if the district court found Wood
suffered from a serious mental disorder, he believed Wood would
not have serious difficulty in refraining from engaging in child
molestation.
On September 6, 2012, the district court issued its civil
commitment order. The district court first summarized Wood’s
offense history. The district court then turned to the three
elements required for civil commitment under the Act. With
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regard to the first element, the district court found that the
government had proved that Wood had previously engaged in child
molestation based on Wood’s 1989 conviction for sexual abuse in
the second degree.
With regard to the second element, the district court found
that Wood suffered from Pedophilia, a serious mental disorder.
The district court credited the opinions of Drs. Cunic and
Hoberman over the opinion of Dr. Saleh. The district court held
that it did not ascribe much weight to the uncharged sexual
misconduct. The district court found, however, that when
combined with the 2004 charge, the uncharged sexual misconduct
was entitled to significant weight. The district court arrived
at this conclusion after it credited Drs. Hoberman’s and Cunic’s
explanation of its relevance.
The district court also found that Wood suffered from
another serious mental disorder, that is, Personality Disorder,
Not Otherwise Specified with Antisocial Traits. According to
the district court, this finding was supported by the
psychological testing performed by Dr. Hoberman. The district
court further noted that Wood
has failed to conform to social norms with respect to
lawful behaviors as evidenced by his extensive non-
sexual criminal history. [Wood] has acted impulsively
in the past and has also demonstrated aggressiveness,
as indicated by his multiple convictions for assault.
. . . [Wood] has continued his irresponsible behavior
while in federal custody, incurring various
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disciplinary infractions for conduct such a fighting
with another person in 2008, and making, possessing,
or using intoxicants on more than one occasion in
2009.
(J.A. 350-51) (footnote omitted).
With regard to the third element, the district court found
that Wood would have serious difficulty in refraining from child
molestation if released. In so finding, the district court
credited the opinions of Drs. Cunic and Hoberman over the
opinion of Dr. Saleh.
II
Wood argues that the Standing Order violates his due
process rights. “We review the district court’s ruling on a
constitutional challenge to a federal statute de novo.” United
States v. Timms, 664 F.3d 436, 444 (4th Cir. 2012).
The gist of Wood’s argument is that the Standing Order is
fundamentally unfair because it prohibits him from having
substantive ex parte communications with his selected
(“additional”) examiner, Dr. Saleh. In Wood’s view, such a
prohibition is inherently unfair because the government is not
prevented from having substantive ex parte communications with
its BOP experts. To ensure fundamental fairness, Wood insists
that he is entitled to have substantive ex parte communications
with his selected examiner.
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In response, the government contends that Wood received a
fair hearing and, therefore, his due process rights were not
infringed. The government points out that the Standing Order
permits representation by counsel, and allows a defendant to
testify at the hearing, present evidence, subpoena witnesses,
and confront and cross-examine witnesses. The government
further points out that the Standing Order permits the defendant
to move, pursuant to Rule 26(b)(4)(D), for a non-testifying
examiner, who can examine the defendant and discuss ex parte the
strengths and weaknesses of the defendant’s case with counsel,
thereby assisting the defendant in developing his defense.
Finally, the government points out the Standing Order “ensure[s]
that the district court as the fact-finder receives only
unvarnished and neutral information” from the testifying
experts. Appellee’s Br. at 20.
Although a civil commitment hearing is civil in nature,
Addington v. Texas, 441 U.S. 418, 428 (1979), a negative outcome
in such a proceeding results in a “massive curtailment of
liberty,” Vitek v. Jones, 445 U.S. 480, 491 (1980) (citation and
internal quotation marks omitted), such that procedural due
process does guarantee certain protections to defendants in
civil commitment proceedings. Id. at 491-94. As we noted in
United States v. Baker,
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the constitutional rights to which a defendant in a
criminal trial is entitled do not adhere to a
respondent in a commitment hearing. Nonetheless,
because an adverse result in a commitment hearing
results in a substantial curtailing of the
respondent’s liberty (whether the respondent is
already a prisoner or not), . . . the Supreme Court
has held that procedural due process does guarantee
certain protections to civil commitment respondents.
45 F.3d 837, 842-43 (4th Cir. 1995). 6
We also noted in Baker that the Supreme Court in Vitek
outlined the following minimum safeguards to which due process
guarantees a defendant in a civil commitment proceeding:
[A] hearing at which evidence is presented and the
respondent is provided a chance to be heard and to
present documentary evidence as well as witnesses; the
right to confront and to cross-examine government
witnesses at the hearing, except upon a showing of
good cause; an independent decisionmaker; a written,
reasoned decision; the availability of an independent
advisor, not necessarily an attorney; and effective
and timely notice of the pendency of the hearing and
of all these rights.
Id. at 843.
In our case, the Standing Order unquestionably complies
with the minimum safeguards required by due process. Under the
Standing Order, Wood was provided a hearing at which the
government was required to produce clear and convincing evidence
to support the civil commitment. Wood was provided counsel and
6
In addition, Congress, by statute, has expressly provided
for certain protections. See 18 U.S.C. § 4247(d) (providing the
defendant with representation by counsel, and an opportunity to
testify, to present evidence, to subpoena witnesses, and to
confront and cross-examine witnesses who appear at the hearing).
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adequate notice, and he was given an opportunity to present
evidence in support of his case and to present witnesses. Wood
also was provided an opportunity to confront and cross-examine
the government’s witnesses. The district court was an
independent decisionmaker and provided a written, reasoned
decision.
Wood’s major complaint is that he lacks the blocks to build
an adequate defense. See Appellant’s Br. at 39 (citing Ake v.
Oklahoma, 470 U.S. 68, 77 (1985) (noting that “a criminal trial
is fundamentally unfair if the State proceeds against an
indigent defendant without making certain that he has access to
the raw materials integral to the building of an effective
defense”)). In particular, he claims that the Standing Order
neither provides pretrial access to an expert, nor allows such
an expert to testify at the hearing.
Wood’s claims ring hollow for several reasons. First, the
Standing Order does allow pretrial access to an expert. Under
the Standing Order, a defendant, pursuant to Rule 26(b)(4)(D),
can move the district court to retain a non-testifying expert,
who can examine the defendant and consult with counsel. 7 For
7
The standing order issued on October 21, 2013, which now
governs in the Eastern District of North Carolina, allows a
defendant to designate as a testifying expert witness an
examiner initially retained as a non-testifying examiner
(Continued)
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reasons unclear from the record, Wood declined to seek such
assistance. Second, Wood was permitted to select Dr. Saleh, who
testified at the hearing. Dr. Saleh’s expert opinions supported
Wood’s claim that he was not a sexually dangerous person.
Third, due process does not require that the defendant’s
pretrial expert be the same person as the defendant’s testifying
expert, as Wood suggests. Such a requirement certainly is not
necessary to ensure that the civil commitment hearing is
fundamentally fair. Cf. Mathews v. Eldridge, 424 U.S. 319, 333
(1976) (“The fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful
manner.”) (citation and internal quotation marks omitted);
Vitek, 445 U.S. at 500 (Powell, J., concurring in part) (“The
essence of procedural due process is a fair hearing.”). To be
sure, although a process of having two experts designated by the
defendant may appear unnecessarily complicated and burdensome
where the duties easily could be filled by one expert, allowing
the defendant to designate at least two experts to examine him
instead of one does have the advantage of providing the
defendant the views of another expert who may further assist the
defendant in developing his defense. Put differently, simple
pursuant to Rule 26(b)(4)(D) and allows the defendant to engage
in substantive ex parte communications with such expert.
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logic suggests that an extra set of examination eyes helps,
rather than hurts, the defendant’s case. In sum, we conclude
there was no due process violation in this case. 8
III
Wood argues that the district court abused its discretion
by admitting unreliable hearsay into evidence. “We review the
district court’s evidentiary rulings for abuse of discretion.”
United States v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007).
Below, the district court admitted state police reports
concerning Wood’s March 2002 arrest for supplying alcohol to a
minor and his May 2004 arrest for lascivious acts with a child
and being a felon in possession of a firearm. The district
court also admitted a 2005 Iowa Department of Human Services
Child Protective Assessment Report. This report formed the
basis of the February 2005 Iowa state charges for sexual abuse
in the second degree. Wood objected to the admission of these
reports, but did not object to the admission of the 2006 PSR,
which sets forth the vast majority of the relevant evidence
contained in the reports to which Wood objected.
8
Wood also argues that the language of § 4247 provides for
substantive ex parte consultation with his selected
(“additional”) examiner. We have reviewed this argument and
find it to be without merit.
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Wood argues that the district court erred when it admitted
the reports referenced above because such reports contained
inadmissible hearsay, and further erred when it permitted the
government’s experts to testify about the contents of these
reports. Wood posits that this allowed the government’s experts
to exceed their prescribed role as those who interpret the
“‘meaning of the facts.’” Appellant’s Br. at 45 (quoting
Addington, 441 U.S. at 429).
We find no abuse of discretion. The challenged reports
were admissible under Rule 703 of the Federal Rules of Evidence,
which permits an expert to testify to opinions based on
inadmissible evidence, including hearsay, if experts in the
field reasonably rely on such evidence in forming their
opinions. All of the experts in this case relied in part on
some of the challenged reports in rendering their respective
opinions. The reliability of the challenged reports was
supported by the fact that these reports were used in the
preparation of the 2006 PSR, which was admissible as an official
document under Rule 803(8) of the Federal Rules of Evidence.
See United States v. Pardee, No. 12-6839, 2013 WL 3316313, at *4
(4th Cir. July 2, 2013) (per curiam) (unpublished) (holding
that, in a civil commitment proceeding, PSR is admissible as an
official document under Rule 803(8)). Finally, because the
district court was also the trier of facts, the district court’s
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evidentiary gatekeeping function was relaxed, and the district
court was in the best position to decide the proper weight to
give the expert opinions. See In re Salem, 465 F.3d 767, 777
(7th Cir. 2006) (“[W]here the factfinder and the gatekeeper are
the same, the court does not err in admitting the evidence
subject to the ability later to exclude it or disregard it if it
turns out not to meet the standard of reliability established by
Rule 702.”); United States v. Brown, 415 F.3d 1257, 1269 (11th
Cir. 2005) (“There is less need for the gatekeeper to keep the
gate when the gatekeeper is keeping the gate only for
himself.”). The case below was a classic case of a battle of
the experts, and the district court clearly was at liberty to
choose the opinions of Drs. Cunic and Hoberman over the opinion
of Dr. Saleh. See Connorton v. Harbor Towing Corp., 352 F.2d
517, 518 (4th Cir. 1965) (“An appellate court is not the proper
forum to refight a battle of expert witnesses.”).
In any event, any error in the admission of the challenged
reports is harmless. See United States v. Clarke, 2 F.3d 81, 85
(4th Cir. 1993) (holding that the admission of cumulative
testimony was harmless); Smith v. Firestone Tire & Rubber Co.,
755 F.2d 129, 132 (8th Cir. 1985) (“Improper admission of
evidence which is cumulative of matters shown by admissible
evidence is harmless error.”). As noted above, the 2006 PSR was
admissible as an official document before the district court
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under Rule 803(8), and Wood understandably does not challenge
the admissibility of the 2006 PSR before this court. Yet, the
2006 PSR sets forth the vast majority of the relevant evidence
contained in the challenged reports. As such, the information
contained in these reports merely is cumulative to other
admissible evidence.
IV
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED
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