United States v. Broncheau , 645 F.3d 676 ( 2011 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7611
UNITED STATES OF AMERICA,
Petitioner – Appellant,
v.
DONALD BRONCHEAU,
Respondent – Appellee.
No. 10-7616
UNITED STATES OF AMERICA,
Petitioner – Appellant,
v.
JEFFREY NEUHAUSER,
Respondent – Appellee.
No. 10-7617
UNITED STATES OF AMERICA,
Petitioner – Appellant,
v.
JERRY T. ROGERS,
Respondent – Appellee.
No. 10-7618
UNITED STATES OF AMERICA,
Petitioner – Appellant,
v.
DAVID HENRY TOBEY,
Respondent – Appellee.
No. 10-7619
UNITED STATES OF AMERICA,
Petitioner – Appellant,
v.
SCOTT KEVIN COMBE,
Respondent – Appellee.
No. 10-7620
UNITED STATES OF AMERICA,
Petitioner – Appellant,
v.
2
MATHIAS THOMAS KOPP,
Respondent – Appellee.
No. 10-7621
UNITED STATES OF AMERICA,
Petitioner – Appellant,
v.
EDWARD DAVID ERWIN,
Respondent – Appellee.
No. 10-7622
UNITED STATES OF AMERICA,
Petitioner – Appellant,
v.
PATRICK CAPORALE,
Respondent – Appellee.
No. 10-7623
UNITED STATES OF AMERICA,
Petitioner – Appellant,
v.
3
KEVIN MCGREEVY,
Respondent – Appellee.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:06-hc-02219-BO; 5:07-hc-02101-BO; 5:07-hc-
02148-BO; 5:07-hc-02166-BO; 5:07-hc-02025-BO; 5:07-hc-02185-BO;
5:07-hc-02206-BO; 5:08-hc-02037-BO; 5:07-hc-02063-BO)
Argued: March 22, 2011 Decided: May 26, 2011
Before KING, GREGORY, and WYNN, Circuit Judges.
Vacated and remanded by published opinion. Judge King wrote the
opinion, in which Judge Gregory and Judge Wynn joined. Judge
Wynn wrote a separate concurring opinion.
ARGUED: Samantha Lee Chaifetz, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellant. G. Alan DuBois,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellees. ON BRIEF: Tony West, Assistant Attorney General,
Mark B. Stern, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C.; George E. B. Holding, United States Attorney, R. A.
Renfer, Jr., Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant.
Samuel A. Forehand, SAMUEL A. FOREHAND, P.A., Raleigh, North
Carolina, for Appellee Rogers; Thomas P. McNamara, Federal
Public Defender, Raleigh, North Carolina, for all other
Appellees.
4
KING, Circuit Judge:
In these consolidated appeals, we are called upon to
resolve issues concerning the Adam Walsh Child Protection and
Safety Act of 2006, specifically the civil commitment provisions
codified at 18 U.S.C. § 4248. Invoking those provisions, the
government initiated proceedings in the Eastern District of
North Carolina seeking the civil commitment of the Respondents-
Appellees — all prisoners in the custody of the Bureau of
Prisons (the “BOP”) — because the government has certified them
as “sexually dangerous person[s].” After delays precipitated by
related litigation challenging the constitutionality of § 4248,
the district court collectively dismissed all nine proceedings.
See United States v. Broncheau, No. 06-HC-2219 (L), (E.D.N.C.
Oct. 29, 2010) (the “Dismissal Order”). 1 The Dismissal Order
reasoned that the proceedings had not been properly instituted
because, with respect to prisoners whose sentences include a
term of supervised release, § 4241 of Title 18, rather than
§ 4248, is “the proper way to initiate [civil commitment]
proceedings under the Adam Walsh Act.” Id. at 15. The
1
The Dismissal Order has been designated for publication,
but has not yet appeared in the Federal Supplement. We cite to
the slip opinion of the district court, which may be found at
2010 WL 4484635.
5
government has appealed, and, as explained below, we vacate the
Dismissal Order and remand.
I.
We begin by identifying the applicable statutory provisions
and briefly explaining the constitutional challenges to 18
U.S.C. § 4248 that have been heretofore resolved. We then set
forth the relevant background of these proceedings.
A.
By the enactment of § 4248, Congress addressed the dangers
associated with the release from custody of persons who, because
of mental illness, are likely to have difficulty refraining from
violent or dangerous sexual conduct. Section 4248 established a
statutory mechanism whereby the United States may seek the civil
commitment of a “sexually dangerous person” who is in federal
custody, even when doing so detains the prisoner beyond the
expiration of his sentence of imprisonment. See United States
v. Comstock, 130 S. Ct. 1949, 1961 (2010). A “sexually
dangerous person” is defined as “a person who has engaged or
attempted to engage in sexually violent conduct or child
molestation and who is sexually dangerous to others.” 18 U.S.C.
§ 4247(a)(5). In turn, a person is “sexually dangerous to
others” if he “suffers from a serious mental illness,
abnormality, or disorder as a result of which he would have
6
serious difficulty in refraining from sexually violent conduct
or child molestation if released.” § 4247(a)(6).
In order to institute a § 4248 civil commitment proceeding,
an authorized official must first certify that the prospective
respondent is a “sexually dangerous person.” 18 U.S.C.
§ 4248(a). 2 On the basis thereof, the government initiates a
§ 4248 commitment proceeding by filing the certification in the
district court where the respondent is confined. See id. Three
categories of sexually dangerous persons are eligible to be so
certified: (1) persons “in the custody of the Bureau of
Prisons”; (2) persons “committed to the custody of the Attorney
General pursuant to section 4241(d)” on the basis of mental
incompetency; and (3) persons “against whom all criminal charges
have been dismissed solely for reasons relating to the mental
2
Section 4248(a) specifies the procedures by which the
government may institute a civil commitment proceeding on the
basis of sexual dangerousness. It provides, in pertinent part,
that
the Attorney General or any [authorized official] may
certify that [an eligible] person is a sexually
dangerous person, and transmit the certificate to the
clerk of the court for the district in which the
person is confined. . . . The court shall order a
hearing to determine whether the person is a sexually
dangerous person. A certificate filed under this
subsection shall stay the release of the person
pending completion of procedures contained in this
section.
18 U.S.C. § 4248(a).
7
condition of the person.” Id. These nine Respondents were each
eligible for certification under the first of these three
categories, that is, they were (and remain) in the custody of
the BOP.
When a § 4248 certification is filed in the district court,
the respondent’s release from custody is immediately stayed
pending completion of the prescribed procedures. See § 4248(a).
These procedures include, inter alia, a psychiatric or
psychological examination of the respondent (if ordered by the
district court pursuant to § 4248(b)), and a hearing conducted
in accordance with 18 U.S.C. § 4247(d). 3 If, after the hearing,
the court finds by clear and convincing evidence that the
respondent is a “sexually dangerous person,” it must “commit the
person to the custody of the Attorney General.” § 4248(d).
3
The provisions of § 4247(d) of Title 18 apply to § 4248
proceedings. See § 4248(c). Section 4247(d) details the
procedural requirements of a § 4248 hearing, specifying, in
pertinent part, that
[a]t a hearing ordered pursuant to this chapter the
person whose mental condition is the subject of the
hearing shall be represented by counsel and, if he is
financially unable to obtain adequate representation,
counsel shall be appointed for him . . . . The person
shall be afforded an opportunity to testify, to
present evidence, to subpoena witnesses on his behalf,
and to confront and cross-examine witnesses who appear
at the hearing.
18 U.S.C. § 4247(d).
8
Such a respondent remains so committed until he is “no longer
sexually dangerous to others.” § 4248(d). 4
B.
The § 4248 civil commitment process has faced several
constitutional challenges since its enactment. See, e.g.,
United States v. Volungus, 595 F.3d 1 (1st Cir. 2010); United
States v. Comstock, 551 F.3d 274 (4th Cir. 2009) (“Comstock I”).
In 2007, a district court in this Circuit struck down the
commitment scheme of § 4248 on two constitutional grounds: that
(1) Congress lacked the authority to enact § 4248; and (2)
§ 4248’s clear and convincing burden of proof contravened the
Due Process Clause of the Fifth Amendment. See United States v.
Comstock, 507 F. Supp. 2d 522 (E.D.N.C. 2007). On appeal, we
agreed with the district court that enactment of § 4248 exceeded
congressional authority, without reaching the due process issue.
See Comstock I, 551 F.3d at 276.
In May 2010, the Supreme Court reversed our Comstock I
decision, holding that Article I of the Constitution conferred
sufficient authority for Congress to enact § 4248. See
4
A respondent committed pursuant to § 4248 is entitled to
seek from the court that ordered his commitment a “hearing to
determine whether [he] should be discharged from the facility.”
See § 4247(h). Such relief cannot be first sought, however,
until 180 days after the respondent was civilly committed. See
id.
9
Comstock, 130 S. Ct. at 1954 (recognizing that Constitution
grants authority for Congress “to enact § 4248 as necessary and
proper for carrying into Execution the powers vested by the
Constitution” (internal quotation marks omitted)). The Court
remanded for an assessment of the unresolved issue of whether
§ 4248’s clear and convincing burden of proof abridged a
certified respondent’s Fifth Amendment due process rights. See
id. at 1965. On December 6, 2010, we concluded that the burden
of proof under § 4248 did not, on its face, offend the Fifth
Amendment, and thus reversed the district court. See United
States v. Comstock, 627 F.3d 513, 524-25 (4th Cir. 2010)
(“Comstock II”).
C.
The relevant facts underlying these consolidated appeals
are substantially similar. The nine Respondents are
incarcerated at the Federal Correctional Institute at Butner,
North Carolina (“FCI-Butner”), and they were — when their
respective certifications were made — about to be released from
BOP custody and begin serving previously imposed terms of
supervised release. 5 Shortly before each Respondent was to be
released, however, the government instituted a § 4248 civil
5
The Respondents’ various terms of supervised release were
scheduled to begin between January 4, 2007, and March 21, 2008,
at the conclusion of their individual terms of imprisonment.
10
commitment proceeding, filing a certification that the
particular Respondent was in the custody of the BOP, a “sexually
dangerous person,” and “sexually dangerous to others.” Pursuant
to § 4248(a), the filing of these certifications stayed release
of the Respondents.
Although the government has consistently acknowledged that
the Respondents are entitled to hearings and rulings on the
merits of their respective § 4248 certifications, no such
hearings have been conducted and the § 4248 procedures have not
been completed. By way of explanation, the § 4248 proceedings
were initially stayed by the district court pending resolution
of the constitutional issues presented in the Comstock
litigation. After the Supreme Court reversed Comstock I,
however, the Chief Judge of the district court entered a
standing order establishing, inter alia, procedures by which
§ 4248 respondents could request merits hearings on their
certifications, rather than await judicial determination of
pending constitutional issues in other litigation. See Standing
Order, 10-SO-01 (E.D.N.C. Aug. 4, 2010).
By September 2010, each of the Respondents had filed a
motion to dismiss his § 4248 commitment proceeding. These
dismissal motions were predicated primarily on the
constitutional contentions being pursued in the Comstock
11
litigation. 6 On October 29, 2010, before Comstock II resolved
the Fifth Amendment burden-of-proof issue in favor of the
government, the district court entered its Dismissal Order.
It is undisputed that the Respondents were each in the
custody of the BOP when they were certified, pursuant to
§ 4248(a)’s first category of eligible persons, as sexually
dangerous, as well as when these commitment proceedings were
instituted. Nonetheless, the district court dismissed the nine
commitment proceedings, expressing its concern that continuing
to hold the Respondents at FCI-Butner, rather than allowing
their terms of supervised release to commence, implicated
“various due process concerns.” See Dismissal Order 15. 7
6
The Respondents’ motions to dismiss in these cases made
several arguments in addition to the constitutional contentions
relied upon by the Comstock respondents. More specifically, the
Respondents alleged that their terms of supervised release
provided adequate safeguards to the public, that these § 4248
certifications were premature and unnecessary, and that the
stigma of being labeled “a sexually dangerous person” is a
lifelong burden.
7
The Dismissal Order observed that at least one district
court had concluded that § 4248 “fails to provide procedural and
evidentiary protections sufficient to satisfy procedural due
process, on its face and as applied.” Dismissal Order 11
(citing Timms v. Johns, 700 F. Supp. 2d 764, 770-74 (E.D.N.C.
2010), vacated, 627 F.3d 525 (4th Cir. 2010)). The district
court also stated its view that, by “staying the commencement of
respondents’ court-ordered terms of supervised release, the
section 4248 certifications filed by the government have
circumvented court-ordered criminal judgments across the
country, judgments which only the courts of imposition have the
power to modify.” Id. at 16.
12
Although the Dismissal Order identified several potential
constitutional deficiencies in the § 4248 commitment procedures,
the court did not rule that § 4248 was unconstitutional, either
facially or as applied. Instead, the court — relying on the
principle that constitutional questions should be avoided when
possible, plus the rule that statutes relating to the same
subject matter should be read together, that is, in pari materia
— decided that these proceedings had not been properly
instituted. In particular, the court ruled that the government
should have proceeded first under § 4241, rather than pursuant
to § 4248, explaining that “when a respondent has not completed
his sentence because he has a remaining term of supervised
release, the use of section 4241 is the proper way to initiate
[civil commitment] proceedings under the Adam Walsh Act.”
Dismissal Order 15. 8
Under the approach espoused by the Dismissal Order, if the
government believes that a soon-to-be-released federal prisoner
is a sexually dangerous person and that a civil commitment under
8
Section 4241 of Title 18 was first enacted in 1948 and
authorizes the commitment of a criminal defendant who, as a
result of a mental disease or defect, lacks the mental
competency to stand trial or undergo post-release proceedings.
See § 4241(a). Section 4241 thus provides a mechanism to secure
a judicial determination of a criminal defendant’s competency,
thereby protecting the defendant’s fair trial rights and the
integrity of judicial proceedings.
13
§ 4248 is appropriate, it must first await the release of the
prisoner from BOP custody and thereafter obtain a commitment
order under § 4241. The government may then pursue a § 4248
commitment under the second category of the persons eligible for
certification — that is, those “committed to the custody of the
Attorney General pursuant to section 4241(d).” § 4248(a). The
district court explained that requiring such commitment
proceedings to be initiated under § 4241 alleviates the
constitutional concerns presented by § 4248. Because the
government did not institute these proceedings by first seeking
a commitment order under § 4241, the court dismissed them and
ordered the Respondents released from custody within thirty
days, by November 28, 2010.
The government promptly appealed the Dismissal Order, and,
in connection therewith, sought from the district court a stay
of the Respondents’ releases from BOP custody pending appeal.
The district court denied the government’s stay request on
November 22, 2010, after which the government moved this Court
for issuance of an emergency stay. On November 26, 2010, we
granted the government’s stay request and expedited the briefing
and oral argument schedule. The Respondents therefore remain in
the custody of the BOP, and we possess jurisdiction pursuant to
28 U.S.C. § 1291.
14
II.
This appeal presents issues of statutory construction,
quintessential questions of law that we review de novo. See
United States v. Abuagla, 336 F.3d 277, 278 (4th Cir. 2003).
III.
As explained herein, 18 U.S.C. § 4248 was enacted to
protect the public from the dangers posed by releasing sexually
dangerous persons from federal custody. See United States v.
Comstock, 130 S. Ct. 1949, 1961 (2010). Although § 4248(a)
spells out procedures for the government to follow in seeking
the civil commitment of such a sexually dangerous person, the
district court declined to give effect to those provisions.
Instead, the court devised an alternative approach that requires
the government to stand aside as a federal prisoner with an
upcoming term of supervised release — whom the government
believes to be sexually dangerous — is released from BOP
custody. After the prisoner’s release, the government may then
seek his commitment on a ground unrelated to sexual
dangerousness: that the former prisoner is “unable to
understand the nature and consequences of the proceedings
against him or to assist properly in his defense.” 18 U.S.C.
§ 4241(a). Only then, after obtaining the former prisoner’s
commitment under § 4241, is the government entitled to file its
15
§ 4248 certification, seeking his civil commitment — under
§ 4248(a)’s second category of eligible persons — on the basis
that he is also sexually dangerous.
When it crafted the foregoing procedure, the district court
was unable to take account of the merits of the then-pending
Fifth Amendment burden-of-proof challenge to § 4248 that was
resolved by our decision in Comstock II. See 627 F.3d 513 (4th
Cir. 2010). Comstock II was decided in early December 2010,
scarcely more than a month after the Dismissal Order was
entered. Contemporaneously with Comstock II, we decided its
companion case of Timms v. Johns, 627 F.3d 525 (4th Cir. 2010).
In Timms, we vacated another of the primary authorities on which
the Dismissal Order relied in concluding that § 4248 presented
serious due process concerns.
Our usual course whenever a fundamental change in the law
negates the underpinnings of a district court’s decision is to
remand the matter for the court to reassess whether it may
reinstate its judgment consistent with the evolving legal
landscape. See Adams v. Sch. Dist. No. 5, 444 F.2d. 99, 100-01
(4th Cir. 1971) (en banc). Although we could simply vacate the
Dismissal Order on the basis of Comstock II and Timms without
further discussion, compelling interests of judicial economy
warrant a more in-depth assessment of the procedures fashioned
by the district court concerning the initiation of § 4248 civil
16
commitment proceedings against sexually dangerous prisoners
whose sentences include terms of supervised release. As
explained below, the Dismissal Order’s approach to § 4248 —
requiring the government first to release the prisoner from BOP
custody, then obtain a commitment order under § 4241, and then
finally seek a separate civil commitment order under the second
category of persons eligible for certification under § 4248(a)
(those “committed to the custody of the Attorney General
pursuant to § 4241(d)”) — is flawed for at least three other
reasons: first, it departs from the plain meaning of § 4248(a);
second, it erroneously reads § 4248 in pari materia with § 4241;
and, third, it erroneously invokes the canon of constitutional
avoidance. For those reasons, and because the district court
did not have the timely benefit of the Comstock II and Timms
decisions, vacating the Dismissal Order is necessarily the
prudent course.
A.
We first observe that § 4248 is unambiguous with respect to
the initiation of civil commitment proceedings against sexually
dangerous federal prisoners in BOP custody. And, where “the
terms of a statute are unambiguous, judicial inquiry is
complete, except in rare and exceptional circumstances.” Rubin
v. United States, 449 U.S. 424, 430 (1981) (internal quotation
marks omitted). As the Supreme Court has explained, if a
17
reviewing court determines that the “legislative purpose is
expressed in plain and unambiguous language,” the duty of the
court is to “give [the statute] effect according to its terms.”
United States v. Rutherford, 442 U.S. 544, 552 (1979) (internal
quotation marks omitted). We should also strive, of course,
when interpreting a statute, to give effect to each word and
provision thereof. See Broughman v. Carver, 624 F.3d 670, 677
(4th Cir. 2010).
Applying the foregoing principles, there is little or no
room for competing views on how Congress intended § 4248 civil
commitment proceedings to be initiated. As we have emphasized,
§ 4248 is explicit — an authorized official “may certify that
[an eligible individual] is a sexually dangerous person, and
transmit the certificate to the clerk for the court for the
district in which the person is confined.” § 4248(a). Section
4248 is also unambiguous with respect to those eligible for
certification, and it identifies three categories of persons who
may be certified as sexually dangerous — the first being
prisoners “in the custody of the Bureau of Prisons.” § 4248(a).
Notably, there is no exception for prisoners (such as the
Respondents) whose sentences include terms of supervised
release. For at least two reasons, we are convinced that a
prisoner whose sentence includes a term of supervised release
18
falls within the class of persons “in the custody of the [BOP]”
and is thus subject to a § 4248 certification.
First, as a factual matter, a prisoner in BOP custody whose
unexpired sentence includes a term of supervised release is no
less in the custody of the BOP than another prisoner who does
not face a term of supervised release. Second, in enacting
§ 4248, Congress did not neglect to assess how commitment
proceedings are to be initiated against prisoners whose
sentences include terms of supervised release. Manifestly, we
are unable to presume that Congress was unaware of those
offenses for which a term of supervised release is required.
See 18 U.S.C. § 3583(a), (k); Goodyear Atomic Corp. v. Miller,
486 U.S. 174, 185 (1988) (explaining that courts generally
presume that “Congress is knowledgeable about existing law
pertinent to the legislation it enacts”). Nor can we conclude
that Congress failed to take account of the fact that the
Sentencing Guidelines contemplate that a term of supervised
release “shall . . . follow imprisonment when a sentence of
imprisonment of more than one year is imposed.” USSG
§ 5D1.1(a). Indeed, the overwhelming majority of federal
criminal judgments include terms of supervised release. See
United States Sentencing Commission, Federal Offenders Sentenced
to Supervised Release 49-50 (2010). As the Sentencing
Commission recently explained, for those convicted of federal
19
felony or serious misdemeanor offenses between 2005 and 2009,
ninety-five percent faced sentences that included terms of
supervised release. See id.
By treating a prisoner whose sentence includes a term of
supervised release differently than one with no such sentence,
the Dismissal Order creates a judicial exception to § 4248 for
the bulk of the BOP’s prisoners who are otherwise eligible for
certification. A cardinal principle of statutory
interpretation, however, is that “[e]xceptions to clearly
delineated statutes will be implied only where essential to
prevent absurd results or consequences obviously at variance
with the policy of the enactment as a whole.” Rutherford, 442
U.S. at 552 (internal quotation marks omitted). The Dismissal
Order’s construction of § 4248 — excepting a sexually dangerous
prisoner whose sentence includes a term of supervised release
from certification so long as he remains in the BOP’s custody —
is not at all essential to avoid an absurd result. Importantly,
such a construction of § 4248 would create a collateral problem
by undermining the statute’s stay-of-release provision. See
§ 4248(a).
B.
The Dismissal Order is also flawed by its invocation of the
in pari materia principle of statutory construction, which the
20
district court used to justify its reliance on § 4241. 9 We have
interpreted the principle to mean that “adjacent statutory
subsections that refer to the same subject matter” should be
read harmoniously. Va. Int’l Terminals, Inc. v. Edwards, 398
F.3d 313, 317 (4th Cir. 2005). The principle of in pari materia
is applicable, however, only “where the meaning of a statute is
ambiguous or doubtful.” N. Pac. Ry. Co. v. United States, 156
F.2d 346, 350 (7th Cir. 1946); see also Greenport Basin & Const.
Co. v. United States, 260 U.S. 512, 516 (1923) (rejecting
argument that two revenue statutes should be read in pari
materia where “the language of the act is clear,” and there is
thus “no room for argument . . . drawn from other revenue
measures”). The Dismissal Order, however, failed to identify
any ambiguity in the methodology employed by § 4248 to initiate
the civil commitment of sexually dangerous persons who are in
BOP custody. Importantly, we are unable to discern any such
ambiguity.
Moreover, the Dismissal Order did not recognize or
acknowledge the fundamentally different purposes of the
commitment provisions embodied in § 4241 and § 4248. These
different purposes undermine the district court’s analysis in
9
In pari materia is generally accepted as being the Latin
term for “in like material or substance.” John Gray, Lawyers’
Latin: A Vade-Mecum 72 (2002).
21
this case, because the principle of in pari materia has no force
where two statutes “superficially relat[e] to similar subjects,”
but “a finer examination reveal[s] that the purposes underlying
the laws var[y].” Firstar Bank, N.A. v. Faul, 253 F.3d 982, 990
(7th Cir. 2001). This limitation on applicability is
instructive, because § 4241 and § 4248 target different groups
and have different goals. Section 4248 sets forth the
commitment procedures for “sexually dangerous person[s]” who are
in federal custody, and is designed to protect the public from
such persons. § 4248(a) (emphasis added); see also Comstock,
130 S. Ct. at 1961 (“As federal custodian, [the federal
government] has the constitutional power to act in order to
protect nearby (and other) communities from the dangers
[sexually dangerous] federal prisoners may pose.”).
Section 4241, in contrast to § 4248, constitutes the
proverbial “horse of a different color.” Section 4241 addresses
the circumstances under which the mental competency of a
criminal defendant is to be assessed. See § 4241(a). It was
designed to ensure the integrity of the judicial system, i.e.,
protecting a defendant from criminal proceedings that he cannot
understand, and barring prosecutors from pursuing such
proceedings against mentally defective defendants. See id. As
the Supreme Court has explained, “a person whose mental
condition is such that he lacks the capacity to understand the
22
nature and object of the proceedings against him, to consult
with counsel, and to assist in preparing his defense may not be
subject to a trial.” See Drope v. Missouri, 420 U.S. 162, 171-
72 (1975). Section 4241 is thus a codification of this well-
settled proposition.
The divergent purposes of § 4241 and § 4248 also illustrate
that the Dismissal Order’s approach to the civil commitment
process would prove unworkable. Section 4241 does not provide
for a commitment on the basis of the criteria of § 4248 — that
is, based on a prisoner’s sexual dangerousness. Rather, § 4241
authorizes a trial court to order a “hearing to determine the
mental competency of the defendant,” where there is reasonable
cause to believe that he is unable to understand and participate
in criminal proceedings pending against him. § 4241(a). If the
court, after conducting a § 4241 competency hearing, finds by a
preponderance of the evidence that the defendant lacks the
requisite mental competency, he is committed to custody pending
improvement of his mental condition or further proceedings. See
§ 4241(d).
Nevertheless, this record offers no basis for concluding
that any of these Respondents are also defendants in a federal
court, or that any are suffering from a mental disease or defect
rendering him or them mentally incompetent within the meaning of
§ 4241. More specifically, there have been no allegations or
23
showings that any of the Respondents are “unable to understand
the nature and consequences of the proceedings against [them] or
to assist properly in [their] defense.” § 4241(a). Rather, the
Respondents are simply certified as sexually dangerous persons —
under the first category of eligible individuals (prisoners in
the custody of the BOP) — within the meaning of § 4248. As a
result, it is not at all apparent that any of the Respondents,
if released, would be subject to commitment under § 4241, as
there would then be no “proceedings” pending against any of them
— at least until some effort to modify or revoke a term of
supervised release has been initiated. As such, a civil
commitment under § 4241 is not a proper first step in § 4248
commitment proceedings against prisoners such as the
Respondents.
C.
Finally, the district court erred by invoking the canon of
constitutional avoidance to justify creation of its alternative
commitment scheme. This canon has no application to the
construction of a statute in a manner that is incompatible with
its plain terms. See Boumediene v. Bush, 553 U.S. 723, 787
(2008) (“The canon of constitutional avoidance does not supplant
traditional modes of statutory interpretation.”). As the
Supreme Court has recognized,
24
[s]tatutes should be construed to avoid constitutional
questions, but this interpretive canon is not a
license for the judiciary to rewrite language enacted
by the legislature. Any other conclusion, while
purporting to be an exercise in judicial restraint,
would trench upon the legislative powers vested in
Congress by Art. I, § 1 of the Constitution.
Salinas v. United States, 522 U.S. 52, 60-61 (1997) (internal
quotation marks and citations omitted). As we have explained,
§ 4248 is not ambiguous with respect to how civil commitment
proceedings are to be initiated against federal prisoners whom
the government believes to be sexually dangerous. Thus, the
canon of constitutional avoidance does not countenance the
Dismissal Order’s alternative commitment scheme. 10
10
Although the Respondents vigorously defend the Dismissal
Order’s alternative commitment scheme, they present another
rationale for an affirmance thereof. The Respondents contend,
in the alternative, that we should affirm the district court
because of readily apparent due process violations that have
resulted from the Respondents’ prolonged detentions without
being accorded merits hearings on their § 4248 certifications.
This contention, of course, is being presented for the first
time on appeal. Because the district court did not address and
rule on this due process argument, we decline to resolve it.
Nevertheless, it bears repeating that the Respondents
remain in prison absent any judicial determination that they yet
belong there. Indeed, if not for the legal uncertainties
attendant to the civil commitment provisions of the Adam Walsh
Act and the continuing detention of the Respondents thereby
occasioned, some of them might well by now have completed their
terms of supervised release and satisfied their obligations to
society. We trust that the proceedings on remand will move
forward with dispatch and not further exacerbate the grim delay
in achieving resolution of these matters.
25
IV.
Pursuant to the foregoing, we vacate the Dismissal Order
and remand for such other and further proceedings as may be
appropriate.
VACATED AND REMANDED
26
WYNN, Circuit Judge, concurring:
I concur in the majority’s opinion, which applies
unambiguous statutory language to conclude that proceeding under
18 U.S.C. § 4248 is the proper way for the government to pursue
the civil commitment of an allegedly sexually dangerous person
who is the custody of the Bureau of Prisons, even when that
person is serving a prison sentence that includes a period of
supervised release. I write separately to emphasize what is
touched upon in footnote 10 of the majority opinion - that the
application of 18 U.S.C. § 4248 in these cases raises serious
constitutional questions related to the due process rights of
Respondents. Specifically, it is troubling that Respondents
have been detained, in some cases for years, without
governmental justification for their detention at a merits
hearing on their § 4248 certifications.
To be sure, our courts have yet to address the
constitutionality of prolonged detention pursuant to the Adam
Walsh Act prior to a hearing on the merits. However, many
courts have held that the due process rights guaranteed by the
Constitution entitle one to a final determination as to the
validity of his confinement within a reasonable period of time.
For instance, in In re Barnard, 455 F.2d 1370 (D.C. Cir.
1971), the court, in reviewing a District of Columbia statute
providing for emergency involuntary commitment, stated “where a
27
person, said to be mentally ill and dangerous, is involuntarily
detained, he must be given a hearing within a reasonable time to
test whether the confinement is based upon probable cause.” Id.
at 1374. Indeed, even where emergency detention can be
justified on the basis of a potential danger resulting from the
detainee’s mental condition, the need remains to justify the
detention without substantial delay.
In Logan v. Arafeh, 346 F. Supp. 1265 (D. Conn. 1972),
aff'd sum. sub nom. Briggs v. Arafeh, 411 U.S. 911 (1973), the
court considered the constitutionality of a Connecticut statute
under which a patient could be involuntarily committed for no
longer than forty-five days without a judicial determination of
the validity of his confinement. Id. at 1267-68. The court
stated “[t]he emergency commitment to a hospital for mental
illness on a temporary basis of a person on the finding of a
physician that he is a danger to himself or others without prior
notice and hearing does not offend the due process clause
provided there is available to him an adequate means of testing
the validity of his confinement within a reasonable period of
time.” Id. at 1268; see also Coll v. Hyland, 411 F. Supp. 905,
910 (D. N.J. 1976)(concluding that in the context of civil
commitment, “a hearing held within a reasonable time after
confinement begins is an acceptable means of supplying requisite
due process.”).
28
Similarly, in Lynch v. Baxley, 386 F.Supp. 378, 387-88
(M.D. Ala. 1974), the court struck down Alabama’s emergency
involuntary commitment statute and stated:
Since the interests of these emergency detainees in
retaining their liberty and avoiding unwarranted civil
commitment are comparable to the interests of persons
accused of criminal offenses in retaining their
liberty and avoiding wrongful incarceration, the
burden on the state to justify the emergency detention
must be similarly heavy. As one means of assuring
that persons accused of crimes are not held in custody
and involuntarily deprived of their liberty without a
showing of probable cause to believe that they have
committed punishable offenses, it is generally
required that such persons be brought before a
judicial office without unnecessary delay after arrest
to determine whether they are being detained on
probable cause. Likewise, in the situation here, where
a person said to be mentally ill and dangerous is
involuntarily detained, he must be given a hearing
within a reasonable time to test whether the detention
is based upon probable cause to believe that
confinement is necessary under constitutionally proper
standards for commitment.
Id. at 387-88 (citations omitted).
Most assuredly, the lengthy detention of Respondents
without a reasonably prompt adjudication of the government’s
petitions for their commitment was one of the “due process
concerns” that motivated the district court’s statutory
interpretation. See United States v. Broncheau, No. 06-HC-
2219(L), 2010 WL 4484635 at * 9 (E.D.N.C. Oct. 29, 2010)
(“[S]ection 4248 simply does not afford any respondent a
reasonable time in which to adjudicate the government’s petition
for his commitment.”). But, as the majority recognizes, the
29
district court stopped short of making a constitutional ruling.
Instead, without finding any ambiguity in the language of the
statute, the district court sought to remedy a constitutional
problem through an unsupportable reading of the statutory
scheme. That error compels us to vacate the district court’s
order and remand.
Additionally, as pointed out by the majority, while the
constitutional due process concerns may persist, they were not
identified by Respondents, who failed to raise an as-applied due
process challenge to the statute. * This itself counsels us to
avoid passing on the issue in the first instance. See Singleton
v. Wulff, 428 U.S. 106, 120-21 (1976) (recognizing the general
rule that a court of appeals will not consider an issue raised
for the first time on appeal). I recognize that “there are
circumstances in which a federal appellate court is justified in
resolving an issue not passed on below, as where the proper
resolution is beyond any doubt or where injustice might
otherwise result.” Id. at 121. Yet, I cannot conclude that
*
The only procedural due process concerns raised by
Respondents, such as the contentions that the right to a speedy
trial was violated or that notice was inadequate, were
explicitly tied to the argument that § 4248 proceedings,
although nominally civil, were actually criminal. This line of
argument was foreclosed when, in Comstock II, we reiterated that
§ 4248 is in fact a civil commitment statute. See 627 F.3d at
520 (“[T]he purpose and structure of the commitment process
render it unlike any criminal prosecution.”).
30
such circumstances are present in this case as would warrant
departure from well-established principles of judicial review.
31