United States v. Walter Wooden , 693 F.3d 440 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Petitioner-Appellant,
v.  No. 11-7226
WALTER WOODEN,
Respondent-Appellee.

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: May 17, 2012
Decided: September 6, 2012
Before TRAXLER, Chief Judge, and MOTZ and KEENAN,
Circuit Judges.
Reversed and remanded by published opinion. Chief Judge
Traxler wrote the opinion, in which Judge Motz and Judge
Keenan joined.
COUNSEL
ARGUED: Ian James Samuel, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellant. Eric
Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
2 UNITED STATES v. WOODEN
DEFENDER, Raleigh, North Carolina, for Appellee. ON
BRIEF: Tony West, Assistant Attorney General, Mark B.
Stern, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Thomas G. Walker, United States Attor-
ney, Raleigh, North Carolina, for Appellant. Thomas P.
McNamara, Federal Public Defender, G. Alan DuBois, Assis-
tant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee.
OPINION
TRAXLER, Chief Judge:
Approximately three months before Walter Wooden was to
be released from federal prison, the government sought to
commit him as a "sexually dangerous person," 18 U.S.C.A.
§ 4248(a) (West Supp. 2012), under the civil-commitment
provisions of 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.A.). After an evidentiary hearing, the district court held
that the government failed to prove Wooden suffered from
pedophilia and failed to prove he would have serious diffi-
culty refraining from re-offending. The court therefore dis-
missed the government’s petition and ordered Wooden
released. The government appeals. For the reasons set forth
below, we reverse the district court’s order and remand for
reconsideration of the government’s petition on the existing
record.
I.
The Act authorizes the government to civilly commit "sex-
ually dangerous" federal inmates after the expiration of their
sentences. 18 U.S.C.A. § 4248(a). An inmate is a "sexually
dangerous person" if he has a prior act or attempted act of
UNITED STATES v. WOODEN 3
child molestation or sexually violent conduct and is "sexually
dangerous to others." Id. § 4247(a)(5). An inmate is sexually
dangerous to others if he "suffers from a serious mental ill-
ness, abnormality, or disorder as a result of which he would
have serious difficulty refraining from sexually violent con-
duct or child molestation if released." Id. § 4247(a)(6).
The Act’s mental illness and serious-difficulty-refraining
requirements ensure that commitment is limited to inmates
with a volitional impairment — inmates "whose mental ill-
ness renders them dangerous beyond their control." United
States v. Francis, ___ F.3d ___, ____, 2012 WL 2877668, at
*8 (4th Cir. July 16, 2012); see also United States v. Hall, 664
F.3d 456, 463 (4th Cir. 2012) ("[T]he serious difficulty prong
of § 4248’s certification proceeding refers to the degree of the
person’s volitional impairment, which impacts the person’s
ability to refrain from acting upon his deviant sexual inter-
ests." (internal quotation marks omitted)). As the Supreme
Court has explained, the requirement that the inmate suffer
from a volitional impairment is of "constitutional importance"
because it works to "distinguish[ ] a dangerous sexual
offender subject to civil commitment from other dangerous
persons who are perhaps more properly dealt with exclusively
through criminal proceedings. That distinction is necessary
lest civil commitment become a mechanism for retribution or
general deterrence — functions properly those of criminal
law, not civil commitment." Kansas v. Crane, 534 U.S. 407,
412 (2002) (citation & internal quotation marks omitted).
II.
A.
Wooden was born in March 1956 in Washington, D.C.
Wooden’s intellectual capacity is somewhat limited. He
repeated the third grade and was expelled from school in the
eighth grade. See J.A. 112. A 1978 evaluation classified
Wooden’s intellectual functioning as within the "dull normal
4 UNITED STATES v. WOODEN
range," J.A. 75, and his I.Q. has been measured at 70, which
qualifies as "borderline retarded," J.A. 502.
When Wooden was eight or nine years old, he was sexually
assaulted by a man in his neighborhood. Wooden did not
report the abuse.
In January 1972 and again in April 1972, Wooden was
adjudicated delinquent for committing rectal sodomy on a
minor. In October 1973, Wooden again was adjudicated delin-
quent after sexually molesting a minor. A sentencing report
prepared in connection with this offense indicated that
Wooden had been arrested for sexual offenses against chil-
dren at least six times since January 1972. In 1974, Wooden
was charged as an adult and pleaded guilty to taking indecent
liberties with a four-year-old child. Wooden was sentenced to
ten years’ imprisonment, but he was paroled into the commu-
nity in 1980. In 1984, after separate incidents involving an
eight-year-old boy and a twelve-year-old boy, Wooden was
convicted of various charges, including sodomy, and was sen-
tenced to 25 years’ imprisonment. Wooden was paroled in
2000, but his parole was revoked in 2001 for failure to coop-
erate with the supervising officers. On July 25, 2002, Wooden
was again paroled, and he was ordered to undergo long-term
sex-offender treatment and testing.
Dr. Ronald Weiner supervised Wooden’s court-ordered sex
offender treatment. Wooden responded well enough to treat-
ment that after about six months, Dr. Weiner recommended
reducing the frequency of their sessions from once a week to
once every other week. After about a year of treatment, Dr.
Weiner recommended monthly sessions.
In May 2005, probation officer John Taberski was assigned
to Wooden’s case. Taberski called and introduced himself to
Wooden and told Wooden that he had a "maintenance" poly-
graph examination coming up. J.A. 452. Wooden repeatedly
told Taberski that he would refuse to take the polygraph.
UNITED STATES v. WOODEN 5
Wooden would not explain his concerns about the polygraph,
and Taberski encouraged Wooden to discuss his apprehen-
sions with Dr. Weiner. Taberski reported Wooden’s reluc-
tance to Paul Brennan, Taberski’s supervisor. In
conversations with the probation agents, Wooden admitted
that he had had contact with children in the community and
that children visited Wooden’s apartment while he was alone
there. See J.A. 452-54. When Taberski pressed Wooden about
whether he was following the plans and using the relapse-
avoidance skills developed in his treatment sessions, Wooden
became angry, saying, "‘What do you expect me to do; there’s
nowhere for me to go.’" J.A. 455. Taberski called Dr. Weiner
immediately after the home visit to report that Wooden had
admitted to being around children not only in the community,
but also in his apartment.
Dr. Weiner met with Wooden on June 3, 2005, for a coun-
seling session. Wooden told Dr. Weiner that he had been
"placing himself in high risk situations" by hiring himself out
as a babysitter and that he had been having "deviant sexual
thoughts about children." J.A. 67. Wooden eventually told Dr.
Weiner that, months earlier, he had had sexual contact with a
seven-year-old boy he knew from the neighborhood. Wooden
told Dr. Weiner that the boy had followed him to the laundry
room in the basement of his apartment building. After
Wooden pulled down his pants and showed the boy his penis,
the boy also took off his pants, and Wooden placed his penis
against the boy’s buttocks without making any attempt to pen-
etrate. Wooden reported that he then became upset with him-
self and changed his mind about engaging in sexual activity
with the boy, who left after Wooden gave him five dollars.
On June 7, 2005, Wooden, Dr. Weiner, and probation offi-
cers Brennan and Taberski met for an emergency meeting
convened by Dr. Weiner. At the meeting, Dr. Weiner
explained to the others that Wooden had admitted to molest-
ing the seven-year-old boy, and Wooden agreed. Wooden
6 UNITED STATES v. WOODEN
refused to provide the boy’s full name, but he did provide the
boy’s address.
At a June 9 counseling session with Lesley Stamm, an
associate of Dr. Weiner’s, Wooden said that he had met the
boy about a year earlier and that "the boy initiated their
encounters because the boy wanted to have sex with him."
J.A. 152. Wooden told Stamm that he fought an "internal bat-
tle" over whether he should touch the boy and that he "en-
tertain[ed] fantasies" about sodomizing the boy. J.A. 152.
When discussing his interactions with the boy, however,
Wooden vacillated between admitting to actual sexual contact
with the boy and claiming that he had only dreamed about
having sexual contact with the boy. See J.A. 152. In the ear-
lier conversations with Dr. Weiner and the probation officers,
Wooden never claimed that he had dreamed the encounter.
During a polygraph examination administered on June 20,
2005, Wooden admitted to having "deviant sexual thoughts
about children in the past year" and to being sexually aroused
in the presence of children in the past year. J.A. 68. Wooden
acknowledged that he had engaged in sexual activity with a
child in the past year and that he had attempted to engage in
sexual activity with a different child. See J.A. 68, 153.
According to the officer administering the polygraph, Wood-
en’s answers to those questions were "non-deceptive." J.A.
153. In a session with Dr. Weiner the next day, Wooden
acknowledged that he was not being completely truthful about
his sexual contacts with children. He told Dr. Weiner that, a
couple of years earlier, he had lured a boy into the basement
for sexual purposes but changed his mind and did not go
through with the offense. See J.A. 152, 529-30.
Police officers investigating the incident interviewed
Wooden, who told them the same story he had first told Dr.
Weiner — that he placed his penis against the boy’s buttocks
but did not attempt penetration. The officers also interviewed
the seven-year-old boy identified by Wooden. The presence
UNITED STATES v. WOODEN 7
of the police scared the boy, who worried that Wooden was
"real mad because he told on him." J.A. 373. The boy would
not explain why Wooden might be mad at him, and he denied
that Wooden touched or molested him. The boy told the offi-
cers, however, that he was afraid to be around Wooden, even
though Wooden sometimes gave him money. The boy told the
officers that one of his friends thought Wooden was "gay and
told [the boy] not to go around him." J.A. 373.
In July 2005, Wooden was charged with violating the terms
of his parole by having contact with minors and by having
sexual contact with the seven-year-old boy. At his parole
revocation hearing, Wooden testified that he had not actually
molested the seven-year-old boy, but had only dreamed about
the molestation. The hearing officer revoked Wooden’s
parole, concluding (under a preponderance-of-the-evidence
standard) that Wooden did in fact have sexual contact with the
boy.
Wooden served the parole-revocation sentence at the Fed-
eral Correctional Institute in Butner, North Carolina.1 While
at Butner, Wooden sent a Christmas card to the seven-year-
old boy. Wooden’s message on the card read, "Merry Christ-
1
The Act authorizes the government to seek commitment of inmates "in
the custody of the Bureau of Prisons." 18 U.S.C.A. § 4248(a). Although
Wooden’s crimes all involved violations of the laws of the District of
Columbia, defendants convicted in the District are committed to the cus-
tody of and serve their sentences at the place designated by the Attorney
General of the United States, see D.C. Code § 24-201.26, and are "subject
to any law or regulation applicable to persons committed for violations of
laws of the United States consistent with the sentence imposed," id. § 24-
101(a). The district court concluded that, by virtue of these statutes,
Wooden was in the legal custody of the Bureau of Prisons and thus subject
to commitment under the Act. See United States v. Joshua, 607 F.3d 379,
388 (4th Cir. 2010) ("[U]nder § 4248 the word ‘custody’ refers not to
physical custody or some qualified derivative but rather to legal custody.
The statutory language ‘in the custody of the Bureau of Prisons’ therefore
requires the BOP to have ultimate legal authority over the person’s deten-
tion."). Wooden does not challenge that ruling on appeal.
8 UNITED STATES v. WOODEN
mas to you [name redacted], and if I was out there I would do
a whole lot for you. Because it is Christmas and you are my
friend. So have a very, very happy Christmas, and a happy
New Year too." J.A. 68. The card was signed, "Your Friend
Walter." J.A. 68.
B.
Approximately three months before Wooden’s scheduled
release date, the government initiated commitment proceed-
ings by filing a certification that Wooden was a sexually dan-
gerous person within the meaning of the Act. The certification
automatically stayed Wooden’s release pending the district
court’s final determination, after an evidentiary hearing, of
whether commitment was warranted. See 18 U.S.C.A.
§ 4248(a); Hall, 664 F.3d at 459.
The hearing took place over two days in July 2011. Testify-
ing at the hearing were Wooden himself, Wooden’s parole
officer, and three expert witnesses — government experts Dr.
Hy Malinek and Dr. Heather Ross, clinical psychologists spe-
cializing in forensic psychology and risk assessment for sex-
ual offenders, and defense expert Dr. Terence Campbell, a
psychologist specializing in forensic psychology.
Wooden was one of the first witnesses called by the gov-
ernment; his direct examination began on the first day of the
hearing and continued into the second day. On the first day,
Wooden was a difficult and recalcitrant witness. There were
often long pauses before Wooden answered a question, see
J.A. 20, and Wooden frequently claimed he could not remem-
ber details of the crimes or tried to invoke his right to remain
silent, see J.A. 386 ("I plead the Fifth. I ain’t tryin’ to go back
to that."). Nonetheless, the government was able to elicit
some testimony from Wooden about his prior crimes, and that
testimony also shed light on Wooden’s thought processes.
Wooden testified that the victims of his crimes, who were as
young as four, wanted to have sex with him and that they
UNITED STATES v. WOODEN 9
came to him asking for sex. See J.A. 393-95, 406, 426-27. He
testified that his victims asked him for money and that these
young children "understood" that they would have to have sex
with Wooden before he would give them any money. J.A.
397. When Wooden was asked if, after reflecting on his early
crimes, he had any thoughts about how he should have
reacted, his response was, "I should have told all of them no."
J.A. 407.
The testimony Wooden gave on the first day of the hearing
was similar to the testimony he had given two weeks earlier,
when he was deposed by the government. For example,
Wooden testified at the deposition that "[a] whole lot of boys
came up to me and wanted me to have sex with them back
then. That’s the God honest truth, and my brothers and sis-
ters—my brothers will tell you that, too." J.A. 347. Wooden
also testified that, at the time he committed his prior offenses,
he believed the young boys wanted to have sex with him, and
he testified that he still believed that to be true at the time of
the deposition. See J.A. 345. And when asked in the deposi-
tion about a prior conviction involving a four-year-old boy,
Wooden testified that the boy laid down on his stomach on his
own, without Wooden touching or guiding him, because "he
knew. I guess he knew that’s what I wanted." J.A. 422.
When Wooden retook the stand on the second day of the
hearing, his demeanor was markedly improved. He did not
claim memory lapses or assert a right to remain silent as he
did on the first day, and he was much more responsive to the
government’s questions. When the government asked
Wooden about the disputed 2005 incident with the seven-
year-old boy, Wooden responded:
I told him it was a dream. I told Dr. Weiner that I
had this dream. I had this dream about [name
redacted], and I told Dr. Weiner, I said, I want him
to find out was it a dream or not, because sometimes
I have blackout spells. I wanted him to find out was
10 UNITED STATES v. WOODEN
it a dream or not because I didn’t want to hurt the
boy. So the next thing I know he had me to go see—
had me to go see the police investigator, had me to
go see the investigator. I talked to the investigator,
and the investigator asked me the same questions. I
told the investigator the same thing. I said, I didn’t
want to hurt the boy. I wanted them to find out was
it a dream or not, because I didn’t know.
J.A. 437 (emphasis added). Wooden testified that he sent the
Christmas card to the boy because the boy was his friend. J.A.
442.
The government asked Wooden if he felt he had changed
as a person. Wooden responded that he had changed because
he no longer thinks about boys and because he realized that
he was at fault. See J.A. 446 ("Once before I was thinking that
they wanted it, but it was something that I really wanted
myself. I wanted that. I wanted to have sex with them kids.").
The government pointed out Wooden’s testimony from the
day before that all of his victims wanted to have sex with him
and asked Wooden why his testimony had changed. Wooden
answered,
I had nightmares all night. I couldn’t sleep. I
couldn’t sleep. I couldn’t sleep. I kept tossing and
turning and tossing and turning and tossing and turn-
ing. I couldn’t sleep. It kept on coming up to me. In
my mind it kept coming up to me that it was my
fault. I couldn’t sleep. I didn’t get no sleep. I
couldn’t sleep.
J.A. 446. The district court interjected, asking Wooden if he
was saying that "because you want to get out" or "because
you actually have a conscience now that you didn’t have
before?" J.A. 446-47. Wooden explained:
I didn’t want to really answer them questions,
because every time — every time when I hear about
UNITED STATES v. WOODEN 11
these boys my heart get to pounding. I get scared and
it hurts. My heart pounds all the time when I hear
about them boys. I was trying not to hear about them
no more. I’m trying to do something positive. That’s
why I didn’t want to answer his questions because I
didn’t want to be up here on the stand crying,
because it hurts.
J.A. 447-48. After prompting by the district court, Wooden
specifically acknowledged that it was wrong for him to have
"molested them boys." J.A. 448.
Counsel for Wooden asked him three questions on cross-
examination — whether Wooden had "any desire to have sex
with young boys now"; whether Wooden believed that a
young boy who asked him for money wanted to have sex with
him; and whether Wooden believed "grown men should have
sex with young boys." Wooden answered, "No, ma’am," to
each question. J.A. 449-50.
The government’s experts, Dr. Malinek and Dr. Ross, both
testified that Wooden met the criteria for commitment under
the Act. Prior to the hearing, the experts had submitted reports
setting out their conclusions and recommendations in detail.
Although Wooden refused to be interviewed by the govern-
ment’s experts, they had access to extensive information
about Wooden, including a transcript of the government’s
deposition of Wooden taken two weeks before the hearing;
court records and other information about his crimes; his
prison disciplinary file; and his mental health records, includ-
ing the treatment records and notes from Dr. Weiner’s sex-
offender treatment program.
Dr. Malinek testified that Wooden met the diagnostic
criteria for pedophilia, which qualifies as a serious mental ill-
ness under the Act. When determining whether Wooden
would have serious difficulty refraining from further sexual
offenses, Malinek scored Wooden under several actuarial
12 UNITED STATES v. WOODEN
risk-assessment models and considered various "dynamic"
risk factors that focus on the individual circumstances of the
defendant under evaluation.2 Wooden’s scores on the actuarial
models all indicated either a high risk or very high risk of
recidivism. And of the dynamic factors considered by
Malinek, all but one (Wooden’s age) suggested that Wooden
would have difficulty refraining from re-offense. Malinek
therefore concluded that Wooden’s mental illnesses would
cause him to have serious difficulty refraining from re-
offending if released and that Wooden met the criteria for
commitment under the Act. Dr. Malinek’s conclusions and
recommendations were premised in large part on Malinek’s
determination that Wooden had, in fact, molested the seven-
year-old boy in 2005. See, e.g., J.A. 103 ("[F]actoring heavily
into my decision making in this case is the fact that Mr.
Wooden molested a young boy . . . while participating in sex
offender treatment, and after he has been incarcerated for
years due to similar crimes in the past. He admitted to sexual
fantasies and arousal around children during 2005. This fail-
ure to stop himself speaks to a powerful volitional impair-
ment.").
2
The actuarial models consider risk factors that have been shown to be
predictive of recidivism. Sex offenders are scored under the model based
on the presence or absence of the risk factors in that offender’s crimes, and
the offender’s risk of recidivism is determined by reference to the known
recidivism rates of released sex-offenders who received the same score
under the model. See United States v. Hunt, 643 F. Supp. 2d 161, 170-71
(D. Mass. 2009). The actuarial models, however, "only gauge a risk of
recidivism based upon the statistics of the particular group of sex offend-
ers selected for comparison." United States v. Hall, 664 F.3d 456, 464 (4th
Cir. 2012). "[K]nowing the recidivism rate of a particular group does not
mean that the individual under consideration poses the same chance of
recidivism in the same time frame; his risk could be higher or lower than
that of the group based upon the unique circumstances of his case." Id.Accordingly, experts using these risk-assessment models also consider
dynamic factors such as "the age of the particular offender, his participa-
tion in treatment, his compliance with such treatment, his history of reof-
fending after treatment, and his commitment to controlling his deviant
behavior." Id.UNITED STATES v. WOODEN 13
Dr. Ross’s conclusions were consistent with those of Dr.
Malinek. Dr. Ross concluded that Wooden suffered from
pedophilia, and her assessment of Wooden under two risk
assessment models also showed that he was at high risk of
reoffending. Dr. Ross testified that the mental illnesses would
make it difficult for Wooden to refrain from reoffending if
released and that Wooden therefore qualified as a sexually
dangerous person within the meaning of the Act. Like those
of Dr. Malinek, Dr. Ross’s recommendations were premised
on her view that the 2005 incident actually occurred. See J.A.
119-20, 123.
Wooden’s expert, Dr. Terence Campbell, testified that
Wooden did not meet the criteria for commitment under the
Act. Although Campbell agreed that the pedophilia diagnosis
may have been proper in the past, he testified that Wooden no
longer satisfied the diagnostic criteria for pedophilia. Dr.
Campbell also testified that Wooden was not impulsive,
which Campbell viewed as foreclosing any possibility that
Wooden had a volitional impairment. See J.A. 500
("[I]mpulsiveness is a necessary condition for volitional
impairment. . . . If there’s no impulsiveness, there’s no voli-
tional impairment."). Because Wooden was not impulsive and
thus was not volitionally impaired, Dr. Campbell testified that
Wooden would not have serious difficulty refraining from fur-
ther offenses if released.
Dr. Campbell’s determination that Wooden could no longer
be considered a pedophile was premised in large part on
Wooden’s age, which was 55 at the time of the hearing. As
Dr. Campbell testified, research has shown that "the preva-
lence and incidence of criminal behavior by adults decreases
steadily with increasing age." Robert A. Prentky et al., Sexu-
ally Violent Predators in the Courtroom: Science on Trial, 12
Psychol. Pub. Pol’y & L. 357, 375 (2006); see Testimony of
Dr. Malinek, J.A. 573 ("[Q]uite a few age related studies
[have] documented an inverse relationship between age and
recidivism."). Dr. Campbell testified that only Wooden’s
14 UNITED STATES v. WOODEN
behavior, not his thoughts or feelings, was relevant to whether
Wooden still suffered from pedophilia. See J.A. 498 ("Are we
going to focus on what someone thinks? Are we going to
focus on what someone feels? Or are we going to focus on
what someone does. And in a legal proceeding, such as this
one, diagnostic considerations dictate that we focus on what
the Respondent does. What is his overt behavior."). Campbell
noted that there was no evidence of sexual misconduct by
Wooden in prison since 2005, that Wooden had not been col-
lecting child pornography or non-explicit pictures of children
while in prison, and that, with the "one exception" of the
Christmas card, J.A. 498, Wooden had not attempted to corre-
spond with children. In Dr. Campbell’s view, the absence of
these problematic and symptomatic behaviors
is consistent with the relevant diagnostic data . . .
that the vast majority of previously convicted sexual
offenders do not reoffend. Therefore, whatever psy-
chopathology drove the original offending behavior
resolves itself with the passage of time. . . . [S]ooner
or later practically all offenders stop offending. So
age becomes a very important consideration, and Mr.
Wooden’s age of 55 indicates that he’s at the point
where he is beyond his pedophilia and he is not at a
risk to reoffend.
J.A. 498-99.
Under questioning from the district court, Campbell
acknowledged that there was no evidence that Wooden had
ever collected or shown any interest in child pornography, but
he still found the absence of a pornography cache significant,
because "child molesters serving time who have no history of
pornography possession out in the street [frequently] acquire
their own collection while they’re behind bars because it
affords them some kind of gratification for their sexual devi-
ancy." J.A. 558. After the district court observed that "the
empirical evidence is that that’s not him[, b]ecause there are
UNITED STATES v. WOODEN 15
no incidents of him ever viewing or collecting child pornogra-
phy," J.A. 559, Campbell responded, "Correct. And he’s not
doing it now. If he were doing it now then I would revise my
opinion about pedophilia applying to him as a diagnosis
now." J.A. 559.
Dr. Campbell testified that he had drawn no conclusion
about whether Wooden actually molested the seven-year-old
boy in 2005. Noting that there was evidence supporting either
conclusion, Dr. Campbell explained that he was "not a trier of
fact" and that it would be "inappropriate for [him] to assume
that position." J.A. 517. Dr. Campbell’s opinion and recom-
mendation to the court nonetheless were premised on the
assumption that the incident did not happen; Campbell agreed
that civil commitment would be warranted if Wooden had
molested the boy in 2005. See J.A. 522.
C.
The district court in a written opinion rejected the govern-
ment’s petition. The district court first held that application of
the Act to Wooden violated the Due Process and Equal Pro-
tection Clauses of the Constitution. And on the merits of the
certification question, the court concluded that the govern-
ment had not proven by clear and convincing evidence that
Wooden suffered from a serious mental illness or that he
would have serious difficulty refraining from further acts of
child molestation if he were released. The court thus ordered
Wooden released.
The district court agreed that Wooden had suffered from
pedophilia "at some point in the past," J.A. 39, but the court
found that the government had not proven that Wooden still
suffered from pedophilia at the time of the hearing. Relying
on Dr. Campbell’s testimony, the district court explained that
"under the proper circumstances," pedophilia can "abate with
time," J.A. 39, and the district court ultimately concluded that
16 UNITED STATES v. WOODEN
pedophilia was "no longer a controlling and debilitating part
of Mr. Wooden’s psychological makeup." J.A. 39.
Critical to this conclusion was the court’s determination
that Wooden did not molest the seven-year-old boy in 2005.
The court acknowledged that Wooden had initially admitted
that he molested the boy, but the court gave "little weight" to
that admission given Wooden’s "obvious and undisputed
intellectual deficits." J.A. 40. The court noted that the alleged
victim of the 2005 incident, after being specifically and
directly asked about the incident, denied that Wooden had
touched him, which the court found significant in light of Dr.
Campbell’s testimony that "studies of children’s response pat-
terns to investigatory questions indicate that if they are
directly asked, they do not deny, but tell." J.A. 40 (internal
quotation marks and alteration omitted). In the district court’s
view, the government simply failed to present "sufficient
credible evidence to sustain a finding that the 2005 alleged
assault occurred." J.A. 41.
After concluding that the 2005 incident did not happen, the
district court found the evidence of current or ongoing
pedophilia wanting. The court observed that Wooden had
been free in the community for three years without re-
offending, that Wooden had been making good progress in his
treatment with Dr. Weiner before he reported the 2005 inci-
dent, and that Wooden cooperated with the investigation of
the 2005 incident, and the court believed that these facts sup-
ported a finding that Wooden’s pedophilia had "subsided with
time." J.A. 42. The court took note of Dr. Campbell’s testi-
mony that Wooden’s failure to collect child pornography in
prison indicated that Wooden’s pedophilia had abated and of
Dr. Malinek’s testimony "that some molesters are simply not
interested in child pornography." J.A. 42. Although the court
found Malinek’s point to be "well taken," the court explained
that after
considering that [Wooden’s] last act of child moles-
tation occurred in 1983, that he was free in the com-
UNITED STATES v. WOODEN 17
munity for three years without re-offending, that
during the last six years while incarcerated there
have not been any infractions involving any type of
sexual deviancy, this Court finds that the Govern-
ment has not shown by clear and convincing evi-
dence that Mr. Wooden continues to suffer from
pedophilia.
J.A. 42.
Although the district court could have rested its rejection of
the government’s petition solely on its determination that
Wooden was not a pedophile, see Francis, 2012 WL 2877668at *9, the court also addressed the Act’s other requirements.
In the district court’s view, proof of a volitional impairment
that would make it seriously difficult for the inmate to refrain
from reoffending, as required by § 4247(a)(6), is not enough
for commitment under the Act. Instead, the court concluded
that "[a] finding of dangerousness is also constitutionally
required," which the court viewed as requiring proof that
Wooden "poses a risk of re-offense that is significant enough
to justify a finding that [Wooden] is sexually dangerous and
therefore can be preventively detained." J.A. 18.
Noting the conflicting expert testimony and choosing to
credit Dr. Campbell’s testimony that Wooden had no voli-
tional impairment because he was not impulsive, the district
court held that the government had not proven that Wooden
"currently manifests a serious mental illness, abnormality or
disorder that impairs his volitional control such that he would
have serious difficulty refraining from sexually violent con-
duct or child molestation if released." J.A. 50. As to "danger-
ousness," the district court stated that because none of the
actuarial risk-assessments models showed a five-year recidi-
vism rate of 50% or more, "the actuarial instrument scores
alone cannot possibly satisfy the statutory threshold of clear
and convincing evidence that Mr. Wooden would have seri-
ous difficulty refraining from engaging in sexually violent
18 UNITED STATES v. WOODEN
conduct or child molestation." J.A. 52. The district court
therefore concluded that Wooden was not a sexually danger-
ous person as defined by the Act, and the court dismissed the
government’s petition and ordered Wooden released. This
appeal followed.
III.
The government first challenges the district court’s consti-
tutional rulings, arguing that application of the Act to Wooden
is consistent with the Equal Protection and Due Process
Clauses of the Constitution.
These constitutional issues need not detain us long. The
district court’s ruling on the constitutional issues rested
entirely on its analysis of those issues in an earlier civil-
commitment case, United States v. Timms, 799 F. Supp. 2d
582 (E.D.N.C. 2011). This court, however, has since rejected
the district court’s constitutional analysis and reversed its
decision in Timms. See United States v. Timms, 664 F.3d 436,
456 (4th Cir. 2012), petition for cert. filed (U.S. June 4, 2012)
(No. 11-10654). Because the district court’s constitutional
analysis is foreclosed by our opinion in Timms, we reverse the
district court’s determination that application of the Act to
Wooden violated the Due Process and Equal Protection
Clauses of the United States Constitution.
IV.
We turn now to the government’s challenges to the district
court’s determination that Wooden did not qualify as a "sexu-
ally dangerous person" under the Act. The government first
contends that the district court erred by concluding that
Wooden no longer suffered from pedophilia.3 The government
3
The government’s experts concluded that Wooden also suffered from
antisocial personality disorder. The district court held that the government
had not proven that Wooden still suffered from the disorder or that the dis-
order was a "serious" mental illness as required by the Act. The govern-
ment does not challenge those rulings on appeal.
UNITED STATES v. WOODEN 19
also contends that the district court improperly interpreted the
Act’s serious-difficulty element as requiring proof that
Wooden was more likely than not to reoffend in the future if
released.
"[W]e review the district court’s factual findings for clear
error and its legal conclusions de novo." Hall, 664 F.3d at
462. A court reviewing for clear error may not "reverse a
lower court’s finding of fact simply because [it] would have
decided the case differently. Rather, a reviewing court must
ask whether, on the entire evidence, it is left with the definite
and firm conviction that a mistake has been committed." Eas-
ley v. Cromartie, 532 U.S. 234, 242 (2001) (citation and inter-
nal quotation marks omitted). "If the district court’s account
of the evidence is plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently." Anderson v. Besse-
mer City, 470 U.S. 564, 573-74 (1985).
A.
Persuaded by the testimony of Dr. Campbell, the district
court held that although Wooden may have suffered from
pedophilia in the past, the government had not proven by
clear and convincing evidence that Wooden, at the time of the
hearing, continued to suffer from pedophilia. The government
contends that the record is replete with evidence showing that
Wooden still suffered from pedophilia, and the government
argues that the district court committed clear error by ignoring
the substantial amount of contradictory evidence. See, e.g.,
Francis, 2012 WL 2877668 at *6 ("A court commits clear
error when it makes findings without properly taking into
account substantial evidence to the contrary." (internal quota-
tion marks omitted)).
Wooden, however, notes that expert opinion is critical
when a court is called upon to determine whether an individ-
20 UNITED STATES v. WOODEN
ual suffers from a mental illness. See Addington v. Texas, 441
U.S. 418, 429 (1979) ("Whether the individual is mentally ill
and dangerous to either himself or others . . . turns on the
meaning of the facts which must be interpreted by expert psy-
chiatrists and psychologists."). Because there was conflicting
expert testimony about whether Wooden continued to suffer
from pedophilia, Wooden argues that the district court’s deci-
sion to credit Dr. Campbell’s testimony over that of the gov-
ernment’s experts cannot be clearly erroneous. See, e.g.,
Anderson, 470 U.S. at 575 ("[W]hen a trial judge’s finding is
based on his decision to credit the testimony of one of two or
more witnesses, each of whom has told a coherent and
facially plausible story that is not contradicted by extrinsic
evidence, that finding, if not internally inconsistent, can virtu-
ally never be clear error.").
As Wooden notes, a court reviewing for clear error "should
be especially reluctant to set aside a finding based on the trial
court’s evaluation of conflicting expert testimony." Hall, 664
F.3d at 463 (internal quotation marks omitted). Nonetheless,
while clear-error review is "deferential, it is not toothless." In
re Agnew, 144 F.3d 1013, 1014 (7th Cir. 1998) (per curiam);
accord Jiminez v. Mary Washington Coll., 57 F.3d 369, 379
(4th Cir. 1995) (district court’s factual findings are not "so
sacrosanct as to evade review"). And as we will explain, our
careful review of the evidence has left us "with the definite
and firm conviction that a mistake has been committed."
United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948).
(1)
Pedophilia is a serious disorder characterized by "recurrent,
intense sexually arousing fantasies, sexual urges, or behaviors
involving sexual activity with a prepubescent child or chil-
dren." American Psychiatric Association, Diagnostic & Sta-
tistical Manual of Mental Disorders § 302.2, at 572 (4th ed.,
Text Revision 2000) ("DSM"). This definition, which "reflec-
UNITED STATES v. WOODEN 21
t[s] a consensus of current formulations of evolving knowl-
edge in [the] field," id. at xxxvii, makes it clear that
pedophilia is characterized not only by child-centered sexual
behavior, but also by child-centered sexual fantasies and urges.4
As the government argues, the record contains substantial
evidence showing that Wooden was still having intense and
recurrent sexually arousing fantasies and sexual urges about
prepubescent children, including Wooden’s admission to Dr.
Weiner that he was having sexual thoughts about being
around children, his admissions in the 2005 polygraph exami-
nation that he had been having deviant sexual thoughts about
children and had been sexually aroused while in the presence
of children, and his acknowledgement during his deposition
that he had been having sexual thoughts about children.
Moreover, Wooden’s testimony at his deposition and at the
hearing was full of cognitive distortions5 or "thinking errors"
common to sex offenders. For example, Wooden testified that
the victims of his crimes wanted to have sex with him and that
children who ask adults for money are really asking to have
sex and will retaliate if rejected. See J.A. 406-07 ("It’s just
4
The DSM is widely recognized as "the authoritative reference used in
diagnosing mental disorders." Young v. Murphy, 615 F.3d 59, 61 n.1 (1st
Cir. 2010); see also J.A. 321 (testimony of Dr. Malinek describing the
DSM as "[t]he universally accepted manual for diagnosing mental disor-
ders" and the "Bible of diagnosis"). Although the DSM’s description of
pedophilia is not controlling, it is persuasive. See Kansas v. Crane, 534
U.S. 407, 413 (2002) ("[T]he science of psychiatry . . . informs but does
not control ultimate legal determinations. . . ."); see id. at 411, 414 (citing
the DSM authoritatively); McGee v. Bartow, 593 F.3d 556, 575 (7th Cir.
2010) ("Despite its limitations in a non-medical setting, the DSM is a
highly influential and useful tool.").
5
Cognitive distortions allow "sex offenders [to] explain their actions in
a way to manage the impressions of others and in a way to make them-
selves more socially palatable." United States v. Mitchell, 706 F. Supp. 2d
1148, 1217 (D. Utah 2010) (internal quotation marks omitted). Such dis-
tortions "are an established, well understood phenomenon among sex
offenders." Id. (internal quotation marks omitted).
22 UNITED STATES v. WOODEN
like this. If a little kid tryin’ to get some money out of you
and want to have sex with and you don’t have sex with him,
[he] can go to anybody and say you did something . . . .").
Wooden’s testimony about the 2005 incident likewise pro-
vides compelling evidence of the existence and power of his
sexual fantasies and urges. Wooden testified that the incident
was only a dream, but he also testified that he told Dr. Weiner
about it because he was not completely certain it really was
a dream: "[S]ometimes I have blackout spells. I wanted him
to find out was it a dream or not because I didn’t want to hurt
the boy. . . . I wanted them to find out was it a dream or not,
because I didn’t know." J.A. 437 (emphasis added). Assuming
that Wooden was being truthful when he claimed that the inci-
dent was only a dream,6 this testimony reveals that Wooden’s
fantasies about sexually assaulting a seven-year-old boy were
so strong that he was unable to distinguish his dreams from
6
The district court’s conclusion that the 2005 incident did not happen
was based not on a determination that Wooden was telling the truth, but
on the court’s view that the government had not carried its burden of prov-
ing that the incident happened. The district court did not make any explicit
factual findings about the truth of Wooden’s statements, but the court’s
dismissive reference to Wooden’s "shadowy admission" about the incident
perhaps suggests the court found Wooden’s denial more credible than his
admission.
From our review of the record, it seems likely that Wooden was not
being truthful and that he came up with the dream story in a futile attempt
to get himself out of trouble—Dr. Weiner’s contemporaneous treatment
notes present Wooden’s story as a factual admission of actual sexual con-
tact with the boy and do not indicate that Wooden claimed he dreamed the
incident, see J.A. 67-68; Wooden’s probation agent testified that during
the emergency meeting on June 7, Wooden did not claim to have dreamed
the incident, see J.A. 459; and the treatment notes of the session with
Weiner’s associate show that even after he first claimed it was a dream,
Wooden still vacillated between admitting the incident occurred and
claiming it was only a dream, see J.A. 152. Nonetheless, our determination
that the district court committed clear error is not dependent on whether
Wooden was being truthful or whether the 2005 incident in fact occurred,
and we therefore accept, for purposes of resolving this appeal, the district
court’s factual conclusion that the 2005 incident did not occur.
UNITED STATES v. WOODEN 23
his actions. The possibility that he might have hurt the boy
was so real and so troubling to Wooden that he voluntarily
told Dr. Weiner about the dream, despite the consequences he
might face.
The district court, however, did not account for this evi-
dence when considering whether Wooden was a pedophile. In
fact, very little of this evidence is even mentioned in the dis-
trict court’s order. The court did not mention Wooden’s
admission that he was having sexually deviant thoughts about
children or his admission of an attempted assault on another
child. Moreover, while the district court when recounting
Wooden’s testimony generally described the difficult and
often non-responsive nature of Wooden’s testimony on the
first day of the hearing, the court did not mention the sub-
stance of Wooden’s testimony that day. The court described
Wooden’s second-day testimony that he was no longer inter-
ested in having sex with young boys and no longer believed
that boys asking for money are really asking for sex. See J.A.
21-22. The court, however, did not acknowledge in any way
that Wooden’s second-day testimony was completely contrary
to his first-day testimony and his deposition testimony,
despite the court’s observations on the first day of the hearing
that Wooden was "trying to reconcile profound guilt and
sense of confrontation about his own behavior with doing
something that detracts from his position," J.A. 431, and that
Wooden was "not telling the truth and . . . not being candid"
because he was "trying to assess the danger and the risk
involved in being forthcoming," J.A. 432.
Although the district court might not have been required to
accept that the evidence recounted above proved Wooden’s
ongoing pedophilia, the court was required to at least consider
the evidence, and account for it, when concluding otherwise.
See Miller v. Mercy Hosp., Inc., 720 F.2d 356, 361 (4th Cir.
1983) ("[T]he conviction of mistake may properly be based
upon a conclusion that, without regard to what the ‘actual’
facts may be, the findings under review . . . were made with-
24 UNITED STATES v. WOODEN
out properly taking into account substantial evidence to the
contrary."); accord Doe v. Menefee, 391 F.3d 147, 164 (2d
Cir. 2004) (Sotomayor, J.) ("We have found a district court’s
factual findings to be clearly erroneous where the court has
failed to synthesize the evidence in a manner that accounts for
conflicting evidence or the gaps in a party’s evidentiary pre-
sentation."). The need to acknowledge and account for this
contradictory evidence is particularly acute given the district
court’s observation (during a break from the government’s
questioning of Wooden) that "[i]t is well established, prong
one, that he is a pedophile." J.A. 428. We do not suggest that
the district court was somehow bound by this statement, but
the statement does indicate that the court at least initially
viewed the evidence as pointing toward a finding of
pedophilia. Under these circumstances, the district court’s
failure to acknowledge its initial views or explain why it dis-
regarded the extensive evidence of Wooden’s continuing
pedophilic fantasies and urges casts real doubt on the propri-
ety of the district court’s determination Wooden no longer
suffered from pedophilia. See Taylor v. Maddox, 366 F.3d
992, 1007-08 (9th Cir. 2004) ("The process of explaining and
reconciling seemingly inconsistent parts of the record lays
bare the judicial thinking process, enabling a reviewing court
to judge the rationality of the fact-finder’s reasoning. . . .
[F]ailure to take into account and reconcile key parts of the
record casts doubt on the process by which the finding was
reached, and hence on the correctness of the finding.").
(2)
As Wooden notes, the district court repeatedly explained in
its opinion that it found Dr. Campbell’s testimony more credi-
ble than that of the government’s experts, and the court
explicitly relied on Dr. Campbell’s opinion when concluding
that Wooden was not a pedophile. Contrary to Wooden’s
argument, however, that does not make the district court’s
factual findings unreviewable. As the Supreme Court has
explained,
UNITED STATES v. WOODEN 25
the trial judge may [not] insulate his findings from
review by denominating them credibility determina-
tions, for factors other than demeanor and inflection
go into the decision whether or not to believe a wit-
ness. Documents or objective evidence may contra-
dict the witness’ story; or the story itself may be so
internally inconsistent or implausible on its face that
a reasonable factfinder would not credit it. Where
such factors are present, the court of appeals may
well find clear error even in a finding purportedly
based on a credibility determination.
Anderson, 470 U.S. at 575 (emphasis added). In our view, Dr.
Campbell’s testimony was internally inconsistent and was
otherwise deficient or problematic in so many respects that
his opinion provides no safe harbor for the district court’s fac-
tual findings.
Dr. Campbell testified that the proper way to determine
whether Wooden "at this point in time, here and now," quali-
fied for a pedophilia diagnosis was to "focus on what
[Wooden] does. What is his overt behavior." J.A. 498.
Attempting to correspond with children was one of the overt
behaviors that Campbell believed would evidence ongoing
pedophilia, but Campbell attached no significance to the
Christmas card Wooden sent to the boy involved in the 2005
incident and did not explain why this evidence of relevant
overt behavior was not relevant after all.
Dr. Campbell also ignored the evidence that Wooden, while
on parole, was engaging in high-risk behavior by babysitting
children. An important part of Wooden’s treatment under Dr.
Weiner was learning "avoidance and escape techniques
designed to help [Wooden] get away from problematic situa-
tions and high risk situations." J.A. 317. The fact that
Wooden, while in treatment, not only was spending unsuper-
vised time around children but also was hiring himself out as
a babysitter is highly relevant to the question of whether
26 UNITED STATES v. WOODEN
Wooden was a pedophile. Yet Dr. Campbell, who believed
that behavior was all that mattered, ignored this evidence of
highly relevant behavior.
Dr. Campbell likewise failed to address the significance of
another powerful piece of evidence of ongoing pedophilia —
Wooden’s admission that, in addition to molesting the seven-
year-old boy in 2005, he had previously attempted to engage
in sexual activity with a different child. Given Campbell’s
acknowledgement that commitment would be warranted if
Wooden had molested the seven-year-old boy, the evidence of
an additional attempted assault would seem to be highly rele-
vant to Campbell’s opinion. Dr. Campbell, however, never
explained why he disregarded it.
Moreover, Dr. Campbell placed great weight on the fact
that Wooden was not collecting child pornography, even
though there was no evidence that Wooden had ever been
interested in child pornography and even after acknowledging
that some "hands-on" sex offenders "never look at pornogra-
phy because they get no gratification from [it]." J.A. 558. Dr.
Campbell thus concluded that Wooden was no longer a
pedophile by ignoring evidence of very troubling affirmative
behavior by Wooden while at the same time emphasizing
Wooden’s failure to engage in behavior he had never engaged
in.
Because Campbell insisted that behavior is all that matters,
but then ignored, without explanation, all evidence of prob-
lematic behavior, his opinion was internally inconsistent, if
not entirely implausible. Under these circumstances, the dis-
trict court’s explicit crediting of Campbell’s testimony does
not shield the court’s factual findings from our review. See
Anderson, 470 U.S. at 575.
(3)
The district court determined that Wooden was not a
pedophile by relying exclusively on the opinion of Dr. Camp-
UNITED STATES v. WOODEN 27
bell. As discussed above, however, Dr. Campbell largely
ignored all contradictory evidence, and his analysis was inter-
nally inconsistent, and the district court’s analysis of the issue
suffers from the same deficiencies.
The record in this case contains substantial evidence show-
ing that Wooden’s pedophilia had not abated with age and
that Wooden at the time of the hearing was still afflicted with
and engaging in the child-focused sexually arousing fantasies,
sexual urges, and behaviors that are characteristic of
pedophilia. The district court did not account for or otherwise
explain why it disregarded all evidence of Wooden’s thoughts
and thought-processes, nor did the court account for or other-
wise explain why it disregarded the evidence of Wooden’s
problematic conduct. Dr. Campbell, the expert whose opinion
the district court found credible, testified that the evidence of
Wooden’s continuing thoughts about offending against chil-
dren and his abandoned attempt to carry out those thoughts
would qualify Wooden as a pedophile under the DSM. See
J.A. 556. The district court did not acknowledge this portion
of Campbell’s testimony, nor did it explain why it rejected the
consensus view of pedophilia reflected in the DSM.
We fully understand that, as a reviewing court, we may not
reverse the district court’s factual findings "even though con-
vinced that had [we] been sitting as the trier of fact, [we]
would have weighed the evidence differently," as long as the
court’s "account of the evidence is plausible in light of the
record viewed in its entirety." Anderson, 470 U.S. at 574.
Nonetheless, we have painstakingly reviewed the entire
record, and the district court’s account of the evidence in this
regard simply is not plausible. We are "definite[ly] and firm-
[ly]" convinced that the district court made a mistake by con-
cluding that Wooden was not a pedophile. United States
Gypsum Co., 333 U.S. at 395; see Mercy Hosp., 720 F.2d at361 n.5 (explaining that a factual finding is clearly erroneous
if it is "against the great preponderance of the evidence"
(internal quotation marks omitted)). Accordingly, we reverse
28 UNITED STATES v. WOODEN
as clearly erroneous the district court’s determination that
Wooden did not suffer from pedophilia and thus did not have
a serious mental illness as required for commitment under the
Act.
B.
In an alternate holding, the district court explained that
even if it could conclude that Wooden still suffered from
pedophilia, the government nonetheless had not proven that
Wooden would have serious difficulty refraining from re-
offense if released.
In reaching this conclusion, the district court discounted the
testimony of the government’s experts because their opinions
were based in part on their conclusions that the 2005 incident
in fact occurred, a factual premise the district court had
already rejected. The district court instead credited Dr. Camp-
bell’s testimony on the issue, finding his analysis more per-
suasive because
Dr. Campbell analyzed Mr. Wooden’s volitional
capacity in an individualized and tailored manner,
addressing the statutory issue head-on with the Bar-
ratt Impulsiveness scale. But Dr. Malinek, on the
other hand, applied a more wooden historical analy-
sis of Mr. Wooden’s volition, an analysis based
largely on decades-old criminal convictions and an
alleged 2005 sexual offense that the Court finds as
a matter of fact did not occur.
J.A. 49-50. The district court thus accepted Campbell’s view
that Wooden was not volitionally impaired because he was
not impulsive, and the court concluded that the government
had not proven that Wooden "currently manifests a serious
mental illness, abnormality or disorder that impairs his voli-
tional control such that he would have serious difficulty
refraining from sexually violent conduct or child molestation
UNITED STATES v. WOODEN 29
if released." J.A. 50. The district court also held that the gov-
ernment failed to prove Wooden’s dangerousness, which the
court defined as requiring proof that Wooden "poses a risk of
re-offense that is significant enough to justify a finding that
[Wooden] is sexually dangerous and therefore can be preven-
tively detained." J.A. 18. The district court concluded that the
government could not make the required showing of danger-
ousness because none of the risk-assessment models showed
a five-year recidivism rate of more than 50%.
On appeal, the government argues that the district court’s
error in concluding that Wooden does not suffer from
pedophilia prevented the court from properly assessing the
serious-difficulty question. Moreover, the government con-
tends that the district court’s analysis, like its analysis of the
pedophilia question, failed to acknowledge or account for the
substantial body of evidence showing that Wooden would
have serious difficulty refraining from re-offense if released.
The government argues that the court compounded those
errors with its demand for proof of dangerousness that could
only be satisfied by proof that Wooden was more likely than
not to reoffend. The government therefore argues that the dis-
trict court’s conclusion that Wooden would not have serious
difficulty refraining from re-offending if released must be set
aside as clearly erroneous.
We agree. Although the district court based its conclusions
on Dr. Campbell’s testimony, which the court again found to
be more credible than that of the government’s experts, the
deference generally due such decisions is not appropriate in
this case. For reasons mirroring those discussed above, the
many deficiencies in Dr. Campbell’s testimony and the dis-
trict court’s analysis of the issue again leave us firmly and
definitely convinced that the district court’s factual findings
were mistaken.
(1)
Dr. Campbell concluded that Wooden was not impulsive
based solely on Wooden’s score on the "Barratt Impulsive-
30 UNITED STATES v. WOODEN
ness Scale," a "self-report measure" that used Wooden’s
answers to various questions to assess his level of impulsive-
ness. J.A. 541. And because Campbell found that Wooden
was not impulsive, Campbell concluded that Wooden did not
have a volitional impairment:
So at this point in time if we ask does Mr. Wooden
exhibit volitional control or volitional impairment,
the answer would be no. Because impulsiveness is a
necessary condition for volitional impairment.
Remembering the old distinction of oxygen is neces-
sary for human life but in and of itself it’s not suffi-
cient. Impulsiveness is necessary for volitional
impairment. If there’s no impulsiveness, there’s no
volitional impairment.
J.A. 500.
As the district court recognized during the hearing, not all
child molesters are impulsive or opportunistic; many are care-
ful and deliberate, "grooming" their victims to gain their trust
and affection before attempting to make sexual contact. See,
e.g., United States v. Brand, 467 F.3d 179, 203 (2d Cir. 2006)
(explaining that "[c]hild sexual abuse is often effectuated fol-
lowing a period of grooming and the sexualization of the rela-
tionship" and that the defendant’s "sharing pictures, flirting,
and attempting to gain affection . . . constituted classic
grooming behavior in preparation for a future sexual encoun-
ter" (internal quotation marks omitted)); J.A. 567 (district
court asking Dr. Malinek if grooming behavior was
"[p]lanned or anticipated behavior, rather than impulsive
behavior"). Under Campbell’s view, sex offenders who groom
their victims would be categorically excluded from the Act
because they are not impulsive and therefore could not possi-
bly have any level of volitional impairment. Dr. Malinek
flatly disagreed with this proposition, see J.A. 568-69, and the
district court’s questions during the hearing suggested that it
was likewise troubled by the premise of Campbell’s opinion,
UNITED STATES v. WOODEN 31
see J.A. 567-68. The district court, however, ultimately
accepted Campbell’s view that volitional impairment was
dependent on impulsiveness, without explaining how it had
resolved its earlier questions or even acknowledging the exis-
tence of those earlier questions.
After accepting Campbell’s view that impulsiveness was
the determinative question, the district court concluded that
Wooden was not impulsive by relying on Campbell’s testi-
mony that Wooden’s Barratt score of 48 was "far below the
cutoff score of 74 for impulsiveness." J.A. 499-500. In con-
cluding that Wooden was not impulsive, however, the district
court failed to account for the substantial evidence in the
record showing Wooden’s impulsiveness. Wooden’s impul-
siveness is apparent from the nature of his prior crimes, which
were crimes of opportunity where Wooden took his victims to
"the first place that he could find," J.A. 337, without concern
for whether he could be identified by his victims, who were
all from his neighborhood. Wooden’s "abominabl[e]" adjust-
ment to institutionalization, J.A. 81, likewise provides com-
pelling evidence of his impulsiveness. Wooden committed a
"record high number of institutional rule violations," J.A. 337,
and was sanctioned for conduct including insolence towards
staff members, work refusal, possession of gambling para-
phernalia, destroying government property, stealing, threaten-
ing bodily harm, assault, and threatening to kill staff
members, to list a very few. See J.A. 81-82. Wooden’s con-
duct led to serious sanctions, including administrative deten-
tion and multiple disciplinary transfers, but the conduct
continued throughout his institutional career, including his
time at FCI Butner serving the parole-revocation sentence.
And as Dr. Malinek and Dr. Ross testified, Wooden’s disci-
plinary history was strong evidence of his impulsiveness.
To the extent that the district court addressed this evidence
at all, it was in the course of its rejection of the diagnosis of
antisocial personality disorder made by the government’s
experts. In that portion of the opinion, the district court sug-
32 UNITED STATES v. WOODEN
gested that Wooden’s criminal history was a "stale historical
factor[ ]" entitled to little weight, J.A. 43, and the court men-
tioned Wooden’s prison disciplinary history only to note that
the frequency of the infractions declined as Wooden aged, see
J.A. 44. The nature of Wooden’s prior crimes may well be a
historical factor, but it is by no means a stale or irrelevant one.
When the question is whether an inmate suffering from
pedophilia will have serious difficulty refraining from re-
offending if released, consideration of the nature of his prior
crimes provides a critical part of the answer. And while the
decreasing frequency of Wooden’s prison infractions is also
relevant, so too is the nature of those infractions. The district
court’s failure to take this evidence into account substantially
undermines the court’s factual determination that Wooden
was not impulsive.
(2)
There is, moreover, an even more fundamental problem
with the district court’s analysis. The district court ignored
extensive evidence that, while perhaps not directly relevant to
the question of impulsiveness, was directly relevant to the
question actually posed by the statute: whether Wooden
would have serious difficulty refraining from re-offense if
released.
Much of the previously discussed evidence ignored by the
district court when concluding that Wooden was not a
pedophile was also relevant to the serious-difficulty inquiry.
And just as it did when answering the pedophilia question, the
district court ignored this evidence when answering the
serious-difficulty question. For example, the district court
interrupted Wooden’s cross-examination of Dr. Ross to say,
"[t]he fact that he’s sending a Christmas card to somebody
that he has molested is a pretty strong indication of reoffend-
ing; don’t you think?" J.A. 490. The district court in its writ-
ten opinion, however, did not mention the Christmas card in
its serious-difficulty analysis, did not acknowledge its previ-
UNITED STATES v. WOODEN 33
ous view of the significance of the evidence, and did not
explain why it no longer believed the evidence was relevant
to the question of whether Wooden would have serious diffi-
culty refraining from re-offense. The district court also failed
to account for Wooden’s admissions that he was having devi-
ant sexual thoughts about children, was sexually aroused in
the presence of children, was placing himself in high-risk situ-
ations by hiring himself out as a babysitter, and had attempted
to assault a child other than the seven-year-old involved in the
2005 incident. Whether or not this evidence speaks to impul-
siveness, it speaks directly to the serious-difficulty prong, and
it should have been considered and accounted for by the dis-
trict court.
The district court likewise failed to acknowledge or con-
sider the significance of Wooden’s dream about the 2005 inci-
dent. As previously discussed, Wooden testified that he told
Dr. Weiner about the dream because he "want[ed] him to find
out was it a dream or not, because sometimes I have blackout
spells. I wanted him to find out was it a dream or not because
I didn’t want to hurt the boy." J.A. 437. The facts revealed by
this explanation—that Wooden has blackout spells and has
dreams about sexually assaulting a seven-year-old boy that
are so vivid he cannot distinguish them from reality—are
quite obviously relevant to the question of whether Wooden
would have serious difficulty refraining from re-offense. The
district court, however, simply ignored this evidence.
The district court also failed to consider Wooden’s own tes-
timony when determining whether Wooden would have seri-
ous difficulty refraining from re-offense. In our view,
Wooden’s deposition testimony and his testimony on the first
day of the hearing, and the cognitive distortions that testi-
mony revealed, were highly relevant to the serious-difficulty
inquiry. Those portions of Wooden’s testimony indicated that
when Wooden committed his prior crimes, he believed that
very young children were appropriate sexual partners, and
that he continued to believe that at least through the first day
34 UNITED STATES v. WOODEN
of the hearing. As Dr. Malinek testified, "[t]he way people
think often mediates their conduct. If he thinks that this is
appropriate sexual activity or [that a young child is an appro-
priate] intimacy partner, then that certainly affects his behav-
ior." J.A. 323 (emphasis added).
When considering the serious-difficulty prong, however,
the district court declined to consider Wooden’s testimony.
Wooden’s performance on the witness stand had led the dis-
trict court and Dr. Malinek to believe that Wooden’s cognitive
limitations were more significant than indicated in Wooden’s
record.7 Dr. Malinek testified that Wooden’s limited intellec-
tual functioning increased his risk of recidivism, given Wood-
en’s inability to learn from his experiences and his persistent
belief that children are appropriate sex partners. The district
court disagreed:
Mr. Wooden’s cognitive limitations merely com-
pel this Court to discount Mr. Wooden’s testimony.
Having thoroughly observed Mr. Wooden on the
witness stand, the Court finds that Mr. Wooden is a
poor historian, that his cognition is markedly
impaired, and that he has difficulty in understanding
and adequately responding to complex questioning.
Mr. Wooden’s testimony, as a whole, is not entitled
to significant weight.
7
Although previous testing pegged Wooden’s I.Q. at 70, the district
court, drawing from its experience with Social Security cases involving
claims of intellectual deficits, J.A. 543, believed Wooden’s I.Q. was more
likely to be in the 60s and that Wooden "manifests signs of mild retarda-
tion." J.A. 571. In the government’s rebuttal case, Malinek testified that
after observing Wooden’s testimony on the first day of the hearing, he
thought Wooden "was clearly retarded based on how he presented . . . .
Today he was much more relevant and focused. He obviously is
impaired." J.A. 574. Malinek thought Wooden’s I.Q. was likely to be in
the 70s, J.A. 574, but he agreed that it was likely below the "dull normal"
range "identified in the 1978 evaluation." J.A. 570.
UNITED STATES v. WOODEN 35
J.A. 48.
Although Wooden is clearly cognitively impaired, that
impairment cannot justify the district court’s decision to sim-
ply disregard Wooden’s testimony. Determining whether an
inmate will have serious difficulty refraining from re-
offending requires the court to "evaluate[ ] the individual’s
present mental condition and the likely prospective effect of
that mental condition on his volitional control." Francis, 2012
WL 2877668 at *8. This forward-looking inquiry, which
attempts to predict the inmate’s "ability to refrain from acting
in accord with his deviant sexual interests," id., requires con-
sideration of the grip strength of the mental illness on the
inmate—the extent to which the inmate is controlled by the
illness. Whether or not Wooden was a poor historian or was
confused by complex questions, his testimony provided pow-
erful evidence of his then-current thought processes, which
provided critical insight into the degree to which Wooden
would be able to control his deviant sexual interests should he
be released.
Determining the credibility of witnesses and the weight to
be accorded their testimony, of course, is a matter for the dis-
trict court as factfinder. And while Wooden’s cognitive limi-
tations would provide a rational basis for the court to discount
certain portions of Wooden’s testimony — for example, his
claims that he enrolled in Howard University when he was 15
and went to business school when he was released from
prison, J.A. 379, or his testimony that he learned about anal
sex at a very young age by watching his brothers and sisters,
J.A. 398, the district court went much farther here. The dis-
trict court refused to consider Wooden’s testimony, which
provided important evidence about the extent of Wooden’s
cognitive impairments, and also refused to consider how
Wooden’s cognitive impairments would affect Wooden’s
ability to refrain from re-offending if released. The district
court thus did not simply assign little weight to Wooden’s tes-
timony, it assigned little weight to the fact of Wooden’s cog-
36 UNITED STATES v. WOODEN
nitive impairment. Because the district court did not consider
this critical evidence or the other evidence showing the inten-
sity and persistence of Wooden’s child-focused sexual fanta-
sies, thoughts, and urges, the court’s account of the evidence
is not "plausible in light of the record viewed in its entirety,"
Anderson, 470 U.S. at 574, and the court’s factual findings are
not entitled to the deference typically required under clear-
error review, see Menefee, 391 F.3d at 164 (explaining that a
factual finding is clearly erroneous "where the court failed to
weigh all of the relevant evidence before making its factual
findings"); Taylor, 366 F.3d at 1007 ("Fact-finding is . . . a
dynamic, holistic process that presupposes for its legitimacy
that the trier of fact will take into account the entire record
before it.").
(3)
In addition to these clear errors of omission, the district
court erred by insisting that the government prove Wooden’s
"dangerousness,"8 which the court believed required proof of
8
As support for its view that "dangerousness" was a separate and neces-
sary element of the government’s case, the district court relied on the
Supreme Court’s observation in Kansas v. Crane that involuntary commit-
ment statutes generally have been upheld when, among other things,
"there is a finding of dangerousness either to one’s self or to others, and
. . . proof of dangerousness is coupled with the proof of some additional
factor, such as a mental illness or mental abnormality." Crane, 534 U.S.
at 409-10 (emphasis added; internal alteration and quotation marks omit-
ted); see Kansas v. Hendricks, 521 U.S. 346, 257-58 (1997). "Dangerous-
ness" in this context is simply shorthand for the danger posed "to the
public health and safety" by "people who are unable to control their
behavior." Id. at 409 (internal quotation marks omitted). The Kansas stat-
ute at issue in Crane satisfied the dangerousness requirement by limiting
commitment to persons suffering from a mental illness that makes the per-
son "likely to engage in the predatory acts of sexual violence." Id. at 352(internal quotation marks omitted). The Adam Walsh Act’s requirement of
proof that the inmate "would have serious difficulty in refraining from
sexually violent conduct or child molestation if released," 18 U.S.C.A.
§ 4247(a)(6), likewise satisfies the dangerousness requirement referred to
in Crane. The district court therefore erred by requiring the government
to separately prove Wooden’s "dangerousness."
UNITED STATES v. WOODEN 37
a greater-than-50% risk that Wooden would re-offend within
five years. See J.A. 52 (rejecting government’s evidence of
Wooden’s actuarial risk of recidivism because "[n]one of the
recidivism rates within the five-year window reaches or
exceeds 50%."). The district court’s insistence on proof of a
greater than 50% risk of recidivism finds no support in the
language of the Act. The Act requires the government to
prove that the inmate will have serious difficulty refraining
from re-offense, see 18 U.S.C.A. § 4247(a)(6), but it "does
not ask the finder of fact to determine exactly how likely [the
inmate] is to reoffend." United States v. Hunt, 643 F. Supp.
2d 161, 180 (D. Mass. 2009).
Recidivism rates are circumstantially relevant to the
serious difficulty inquiry because offenders who
continually expose themselves to punishment may be
presumed to have the most difficulty refraining from
sexual reoffending. But the ultimate question called
for by the Act concerns the self-control of an indi-
vidual, not the statistical rearrest patterns of a given
population.
Id. The court’s greater-than-50% requirement is likewise
inconsistent with the Supreme Court’s refusal to give "lack of
control a particularly narrow or technical meaning," Crane,
534 U.S. at 413 (internal quotation marks omitted), and with
the Court’s recognition that "in cases where lack of control is
at issue, ‘inability to control behavior’ will not be demonstra-
ble with mathematical precision," id.(4)
After a careful review of the entire record, we again are
"left with the definite and firm conviction that a mistake has
been committed." Easley, 532 U.S. at 242 (internal quotation
marks omitted). The district court reached its conclusion that
Wooden would not have serious difficulty refraining from re-
offense by relying on a flawed expert opinion, by ignoring or
38 UNITED STATES v. WOODEN
otherwise failing to account for the substantial body of contra-
dictory evidence,9 and by disregarding perhaps the most rele-
vant evidence on this issue—Wooden’s own testimony. See
Mercy Hosp., 720 F.2d at 361 ("[T]he conviction of mistake
may properly be based upon a conclusion that . . . the findings
under review . . . were made without properly taking into
account substantial evidence to the contrary.").
Moreover, it appears to us that the weight of the evidence
in the record indicates that Wooden’s pedophilia would cause
him to have serious difficulty refraining from re-offense if
released. See United States v. Martinez-Melgar, 591 F.3d 733,
738 (4th Cir. 2010) ("[C]lear error occurs when a district
court’s factual findings are against the clear weight of the evi-
dence considered as a whole." (internal quotation marks omit-
ted)); Mercy Hosp., 720 F.2d at n.5 (explaining that a district
court’s factual finding is clearly erroneous if "the finding is
against the great preponderance of the evidence" (internal
quotation marks omitted)). The evidence established Wood-
en’s long history of acting on his pedophilic urges. He has
9
In the instances where the district court did explain why it declined to
credit contrary evidence, the reasons given by the court cannot withstand
scrutiny. For example, when considering whether Wooden suffered from
antisocial personality disorder, the district court indicated that the govern-
ment’s experts failed to consider the relevance of Wooden’s age to the
recidivism question. The government’s experts, however, acknowledged
the relevance of age and considered Wooden’s age in their reports, see
J.A. 92-93, 120-22, and Dr. Malinek in his testimony specifically identi-
fied Wooden’s age as a "protective" risk factor—one that mitigates the
risk of recidivism. See J.A. 340, 573-74. The court also rejected the views
of the government experts because their opinions were erroneously based
on their views that Wooden actually molested the seven-year-old boy in
2005. Neither Dr. Ross nor Dr. Malinek, however, based their opinions
solely on their belief that the 2005 incident occurred; both experts gave
multiple reasons to support their conclusion that Wooden still suffered
from pedophilia and would have serious difficulty refraining from re-
offense if released. Under these circumstances, the district court’s dis-
agreement with one of their factual conclusions cannot justify the court’s
refusal to consider the balance of their testimony.
UNITED STATES v. WOODEN 39
been convicted (or adjudicated delinquent) five times, and by
his own admission he offended many more times than he was
caught. Each re-offense occurred within a relatively short
time after Wooden returned to the community, which demon-
strates that the threat of detection and incarceration have lim-
ited deterrent effect on Wooden. The evidence likewise
establishes Wooden’s resistance to treatment. While he was
undergoing intensive sex-offender treatment with Dr. Weiner,
Wooden engaged in high-risk behavior by being alone with
children, giving children money, and even hiring himself out
as a babysitter. He continued to have deviant sexual thoughts
about children, including the seven-year-boy at the center of
the 2005 incident, and he admitted to Dr. Weiner that he came
close to acting on these thoughts but changed his mind after
luring a different boy into the basement. Wooden’s cognitive
distortions and thinking errors about the appropriateness of
children as sexual partners continued through the time of the
hearing, as evidenced by his testimony that all of his victims
initiated the contact and wanted to have sex with him. More-
over, the actuarial risk-assessment models all indicate that
Wooden is at high risk of re-offending. Of the relevant
dynamic factors, only one—Wooden’s age—indicates that
Wooden’s risk might be lower. In this case, however, the gen-
erally observed inverse relationship between age and recidi-
vism does little to overcome the evidence of Wooden’s
continuing struggle with the child-focused fantasies, urges,
and behaviors characteristic of pedophilia.
Accordingly, after careful consideration of the record as a
whole, we are constrained to reverse as clearly erroneous the
district court’s determination that Wooden would not have
serious difficulty refraining from re-offense if released.
SeeMartinez-Melgar, 591 F.3d at 738; Mercy Hosp., 720 F.2d
at n.5.
V.
To summarize, we hold that the district court erred in its
conclusion that the application of the Act to Wooden violated
40 UNITED STATES v. WOODEN
the Due Process and Equal Protection Clauses of the United
States Constitution. We also conclude that the record does not
support the district court’s determination that Wooden does
not "suffer[ ] from a serious mental illness, abnormality, or
disorder" because he no longer suffers from pedophilia, 18
U.S.C.A. § 4247(a)(6), nor does the record support the district
court’s determination that Wooden would not have "serious
difficulty refraining from sexually violent conduct or child
molestation if released," id., and we hereby reverse those fac-
tual findings as clearly erroneous.
Accordingly, we reverse the district court’s judgment dis-
missing the government’s petition seeking to commit
Wooden, and we remand the matter to the district court for
reconsideration. On remand, the district court shall reconsider,
on the basis of the existing record and in light of the questions
about the district court’s original analysis and the concerns
about the existing evidence raised in this opinion, whether
Wooden is a sexually dangerous person within the meaning of
the Act.
REVERSED AND REMANDED