United States v. Carlos Ofarrit-Figueroa

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6831

UNITED STATES OF AMERICA,

Petitioner - Appellee,

v.

CARLOS OFARRIT-FIGUEROA,

Respondent - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:10-hc-02022-BO)

Argued: May 17, 2013 Decided: July 17, 2013

Before KEENAN and FLOYD, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Michael
Gordon James, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara,
Federal Public Defender, G. Alan DuBois, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Carlos Ofarrit-Figueroa (“Ofarrit-Figueroa”) appeals his

civil commitment as a sexually dangerous person under the Adam

Walsh Child Protection and Safety Act of 2006 (“the Act”). 18

U.S.C. § 4248. Following an evidentiary hearing, the district

court found that Ofarrit-Figueroa had previously engaged, or

attempted to engage, in sexually violent conduct; that he

suffered from paraphilia not otherwise specified with

exhibitionist features, a serious mental illness, abnormality or

disorder; and that Ofarrit-Figueroa would have serious

difficulty in refraining from engaging in sexually violent

conduct as a result of a serious mental illness, abnormality or

disorder. The district court committed Ofarrit-Figueroa to the

custody of the Attorney General under 18 U.S.C. § 4248.

On appeal, Ofarrit-Figueroa challenges his commitment

contending that the district court clearly erred in two of the

requisite findings under the Act. He contends that the district

court diagnosed him with a mental disorder unsupported by the

expert opinions offered at the hearing. He also maintains that

the district court failed to connect its finding of substantial

3
difficulty in refraining from sexually violent conduct to its

finding of a serious mental disorder. 1

The Adam Walsh Child Protection and Safety Act of 2006, 18

U.S.C. § 4247–48 provides for the civil commitment of a sexually

dangerous person following the expiration of their federal

prison sentence. 18 U.S.C. § 4248(a). A person is deemed to be

sexually dangerous under the Act if he or she 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). A person is considered “sexually dangerous to

others” if “the person suffers from a serious mental illness,

abnormality, or disorder as a result of which he would have

serious difficulty in refraining from sexually violent conduct

or child molestation if released.” 18 U.S.C. § 4247(a)(6).

Commitment under the Act requires these findings by clear and

convincing evidence. 18 U.S.C. § 4248(d).

Ofarrit-Figueroa is presently 55 years old. He was born in

Havana, Cuba in 1957 and migrated to the United States as part

of the Mariel boat flotilla. (J.A. 260–61.) Prior to his

1
Ofarrit-Figueroa also argues that 18 U.S.C. § 4248
violates the Equal Protection Clause of the United States
Constitution. As Ofarrit-Figueroa acknowledges in his brief,
this Court previously rejected this challenge in United States
v. Timms, 664 F.3d 436, 456 (4th Cir. 2012). Ofarrit-Figueroa
offers no authority or argument which would compel this Court to
revisit that decision.

4
arrival in the United States, Ofarrit-Figueroa was serving a ten

year sentence for robbery in Cuba. (J.A. 74–75.) Ofarrit-

Figueroa denied sexually deviant behavior, i.e., masturbating

openly, during his confinement in Cuba, because he had two

girlfriends and was allowed conjugal visits every 30 days.

(J.A. 91–92.)

Soon after his arrival in Florida, Ofarrit-Figueroa was

taken into custody by the Immigration and Naturalization Service

and confined in various facilities, including the United States

Penitentiary (“USP”) in Atlanta, Georgia. In 1981, he was

released on parole and relocated to New Jersey.

In 1982, while residing in New Jersey, Ofarrit-Figueroa

sexually assaulted a woman at knifepoint and stole her purse. As

a result of this incident, he was later charged with and

convicted of robbery in the first degree, aggravated sexual

assault in the first degree, possession of a weapon and

possession of a weapon for unlawful purpose. (J.A. 79–80, 330,

359–60, 365–66, 407.)

However, prior to his conviction for rape and robbery in

New Jersey, Ofarrit-Figueroa was found guilty in the State of

Texas of armed robbery and was sentenced to five years

imprisonment. (J.A. 80–82, 330.) Upon completion of this

sentence, he was returned to the State of New Jersey to stand

trial for the 1982 robbery, aggravated sexual assault and

5
weapons charges. Ofarrit-Figueroa was convicted on all four

counts and sentenced to a total of 18 years imprisonment. While

housed in the New Jersey correctional system, Ofarrit-Figueroa

routinely masturbated in front of female correctional officers.

At the evidentiary hearing in the immediate civil commitment

proceeding, Ofarrit-Figueroa testified that he did this because

he wanted the female officers to fall in love with him. (J.A.

81–82.)

In 1994, he was paroled into the custody of the Immigration

and Naturalization Service. After being housed in a number of

local facilities, he was transferred to the Federal Correctional

Center (“FCC”) in Terre Haute, Indiana, where he was assigned to

work in the food service area. On March 22, 2000, Ofarrit-

Figueroa struck, bit, kissed and sexually assaulted his female

supervisor at that institution. When she attempted to summon

help, Ofarrit-Figueroa knocked her radio from her hand. (J.A.

82–86, 330–31.)

As a result of the incident at FCC Terre Haute, Ofarrit-

Figueroa was convicted of sexually assaulting and inflicting

bodily injury on an employee of the Federal Bureau of Prisons

(“BOP”). He was sentenced to ten years imprisonment and

designated to the USP in Marion, Illinois. (J.A. 330-31, 358.)

At USP Marion, he continued to expose himself and openly

masturbate in the presence of female staff, often as an

6
expression of his anger. (J.A. 87, 89, 100.) In 2005, at his

request, he was placed in the Sex Offender Management Program.

However, because of his continuous sexual misbehavior, he was

placed in a more secure special housing unit. (J.A. 343.) This

was largely a result of his continued aggressive masturbation in

the presence of female correctional officers he found

attractive.

In the opinion of a staff psychologist at USP Marion,

Ofarrit-Figueroa was deemed inappropriate for participation in a

more intensive hypersexuality management program. The

psychologist concluded that Ofarrit-Figueroa failed to accept

responsibility for his actions, lacked motivation to change and

had a defiant attitude toward disciplinary sanctions. 2 (J.A.

106.)

Ofarrit-Figueroa was eventually transferred to the BOP’s

most secure facility, the FCC in Florence, Colorado. He

remained at that institution from 2006 to February 2010. 3 After

a precertification evaluation for commitment as a seriously

dangerous person under 18 U.S.C. § 4248, he was placed in a

2
Ofarrit-Figueroa admitted refusing to obey orders and
throwing feces at correctional officers. (J.A. 99–100.)
3
Ofarrit-Figueroa was placed in secure and isolated status
from 2000 through 2010, following his conviction for sexually
assaulting a female officer. During that period, he had limited
contact with BOP personnel or other inmates.

7
secure section of the Federal Correctional Institute (“FCI”) in

Butner, North Carolina (J.A. 337, 345.) At FCI Butner, Ofarrit-

Figueroa was evaluated by a certification review board, composed

of a number of mental health professionals.

During intake processing at FCI Butner, Ofarrit-Figueroa

was initially evaluated by Dr. Andres Hernandez, the clinical

coordinator of the commitment and treatment program at that

facility. Ofarrit-Figueroa told Dr. Hernandez that women

enjoyed having sexual intercourse with him and that he could not

resist exposing himself while in prison. He further revealed to

the psychologist that he believed that women who worked in

prisons enjoyed observing inmates openly masturbating in their

presence. (J.A. 109–11.)

The next mental health professional to come into contact

with Ofarrit-Figueroa was Dr. Melanie Malterer, a sex offender

program psychologist at FCI Butner. On May 28, 2010, Dr.

Malterer observed Ofarrit-Figueroa exercising outside her window

in a prohibited area. He was staring directly at her,

shirtless, and appeared to have an erection. (J.A. 118.)

Approximately one week later, an inmate reported to Dr. Malterer

that Ofarrit-Figueroa was masturbating as she walked down the

hallway. (J.A. 121–23.)

As a result, Ofarrit-Figueroa was placed in inmate

segregation. This restricted confinement was extended after Dr.

8
Malterer learned from several inmates that Ofarrit-Figueroa

referred to her as his girl and that she enjoyed watching him

exercise outside her office. During his confinement in this

annex area, Dr. Malterer, while conducting an evaluation of

another inmate, observed Ofarrit-Figueroa place his penis

through the cell door food tray and masturbate as he stared at

her through a mirror he held in his hand. When Dr. Malterer

directed him to stop masturbating, Ofarrit-Figueroa refused and

exhorted that “now you have a reason to lock me up, bitch.”

(J.A. 123.)

As part of the certification evaluation process, Ofarrit-

Figueroa was also evaluated by Dr. Dawn Graney, a sex offender

forensic psychologist employed by the BOP. Dr. Graney testified

that she diagnosed Ofarrit-Figueroa with exhibitionism, a

paraphilia whereby individuals have recurrent and strong urges

to expose themselves to nonconsenting strangers. Dr. Graney’s

clinical impressions also included a diagnosis of personality

disorder/antisocial personality disorder. She elaborated that

antisocial personality disorder is a pattern of serious rule

violations or disregard for the rights or welfare of others.

She added that both are mental disorders identified in the

American Psychiatric Association’s Diagnostic and Statistical

Manual of Mental Disorders, Fourth Edition, Text Revision (the

“DSM”). (J.A. 55–56, 347, 349.)

9
 Dr. Graney concluded that Ofarrit-Figueroa masturbated in

front of nonconsenting individuals as a means of initiating

sexual activity with women and that he also used this behavior

to retaliate against or exhibit anger toward women. (J.A. 56–

57.) In her view, unlike the typical exhibitionist, Ofarrit-

Figueroa could be very intimidating and threatening. (J.A. 57.)

As an example, she described him as “engaging in stalking

behaviors or leering at female staff.” (J.A. 61.) It was also

her opinion that if faced with a woman who rejected his

advances, he would engage in aggressive and threatening

activity. (J.A. 60–61.) Based on psychological testing, Dr.

Graney also testified that Ofarrit-Figueroa lacked volitional

control, posed a high risk of sexually reoffending and would

have serious difficulty in refraining from sexually violent

conduct if he were to be released. (J.A. 63–64.)

The United States also called Dr. Hy Malinek, a clinical

and forensic psychologist with offices in Beverly Hills,

California. Dr. Malinek initially diagnosed Ofarrit-Figueroa

with exhibitionism and antisocial personality disorder. Dr.

Malinek, however, on further evaluation, revised his findings in

a second supplementary report, to paraphilia not otherwise

specified (“NOS”) and antisocial personality disorder. (J.A.

131.) Dr. Malinek explained that the later diagnosis was more

appropriate because Ofarrit-Figueroa possessed elements of

10
several serious disorders. He described Ofarrit-Figueroa as an

atypical exhibitionist that did not fit squarely within this DSM

diagnostic category because he desired to have sex with his

victims. (J.A. 131–33.) Dr. Malinek noted that “[h]e fixates

on people. He has committed two sexual -– two hands on sexual

assaults. One is on a woman at the BOP at Terre Haute in

Indiana.” (J.A. 132.) Dr. Malinek also observed that Ofarrit-

Figueroa possessed a distorted perception that women wanted to

have sex with him and that his role is to “bring joy to the

world [with his penis] and that this is appropriate behavior,

there’s nothing wrong with this . . . .” (J.A. 139.) Dr.

Malinek added that this distorted perception “clearly amplifies

his dangerousness.” (J.A. 139.)

Based upon his evaluation, Dr. Malinek concluded that

Ofarrit-Figueroa met the criteria for civil commitment under 18

U.S.C. § 4248. (J.A. 130.) In Dr. Malinek’s view, Ofarrit-

Figueroa’s distorted thinking about his role with women and

feelings of entitlement when combined with his antisocial

personality disorder, make him sexually dangerous if rejected by

a woman. (J.A. 149–53.)

The final expert witness was Dr. Luis Benjamin Rosell,

called by Ofarrit-Figueroa. Dr. Rosell is a clinical and

forensic psychologist with offices in Mount Pleasant, Iowa. Dr.

Rosell testified that his evaluation did not reveal that

11
Ofarrit-Figueroa met the criteria for civil commitment under the

Adam Walsh Act. In Dr. Rosell’s opinion, Ofarrit-Figueroa would

not have serious difficulty in refraining from sexually violent

conduct. (J.A. 181-82.) Dr. Rosell rejected the notion that

Ofarrit-Figueroa suffered from any paraphilia, particularly

exhibitionism. Dr. Rosell identified several distinguishing

features about Ofarrit-Figueroa’s conduct. Most prominently, he

exposed himself to individuals with whom he would have recurring

contact. Atypically, he did not engage in exposure solely for

shock value. Instead, Ofarrit-Figueroa was motivated by a

desire to engage in sexual intercourse with the individuals to

whom he exposed himself. (J.A. 183-85.)

Dr. Rosell diagnosed Ofarrit-Figueroa with antisocial

personality but cautioned that he did not believe that it

existed to a degree that would inhibit him in refraining from

engaging in sexually violent conduct. (J.A. 182.) Dr. Rosell

also disagreed that Ofarrit-Figueroa posed a high risk of

sexually reoffending because, in Dr. Rosell’s view, he had other

opportunities to sexually offend while incarcerated but chose

not to act on them. (J.A. 185.) Dr. Rosell also discounted Dr.

Malinek’s assessment that Ofarrit-Figueroa’s sexual aggression

was the product of anger. Instead, he believed that Ofarrit-

Figueroa exposed himself in an effort to gain consensual

intercourse. (J.A. 192-94.) Dr. Rosell did acknowledge,

12
however, that a number of his diagnostic tools revealed factors

that increased Ofarrit-Figueroa’s risk of sexual recidivism.

(J.A. 202-04.)

In its findings of fact and conclusions of law, the

district court found that the United States had demonstrated by

clear and convincing evidence that Ofarrit-Figueroa met the

criteria for commitment under 18 U.S.C. § 4248. The court

initially noted that Ofarrit-Figueroa stipulated that he had

engaged in sexually violent conduct in the past, as reflected by

his criminal history.

In its analysis of the expert testimony, the court

acknowledged disagreement as to the appropriate diagnosis of

Ofarrit-Figueroa’s mental illness. The court also observed that

all three of the forensic psychologists agreed that Ofarrit-

Figueroa’s case was unique. The court attributed more weight to

the testimony and findings of Drs. Malinek and Graney than that

of Dr. Rosell. Both Drs. Malinek and Graney concluded that

Ofarrit-Figueroa suffered from a serious mental illness,

abnormality or disorder. However, neither found that his

aggressive tendency to expose himself indecently, particularly

when coupled with his desire to initiate sexual encounters,

placed him squarely within any diagnostic label found in the

DSM. The court therefore concluded that the evidence supported

a finding of paraphilia NOS, which met the criteria for a mental

13
disorder under the Act. Specifically, the court credited Dr.

Malinek’s opinion, stating that:

Mr. Ofarrit-Figueroa suffers from paraphilia NOS on
the basis that he demonstrates paraphilic tendencies
but does not “cleanly” meet the diagnostic criteria
for exhibitionism. On that basis alone, the Court
finds that Petitioner has met its burden to
demonstrate by clear and convincing evidence that Mr.
Ofarrit-Figueroa suffers from a serious mental
illness, abnormality, or disorder.

(J.A. 303–04.)

Lastly, the court concluded that as a result of the

illness, abnormality or disorder, Ofarrit-Figueroa would have

serious difficulty in refraining from sexually violent conduct

or child molestation if released. In drawing its conclusions on

this element, the court relied on the teachings of United States

v. Hall, 664 F.3d 456 (4th Cir. 2012). In Hall, the Fourth

Circuit noted that

the “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 interests. Kansas v. Hendricks, 521
U.S. 346, 358 (1997) . . . (noting that statutory
requirements that couple proof of dangerousness with
proof of a mental illness or abnormality “serve to
limit involuntary civil confinement to those who
suffer from a volitional impairment rendering them
dangerous beyond their control”).

664 F.3d at 463.

After recounting in detail the sexually aggressive conduct

exhibited by Ofarrit-Figueroa during his confinement within the

14
BOP, his prior criminal history, and the findings of Dr. Malinek

and Dr. Graney, the court concluded that “Ofarrit-Figueroa has

demonstrated, even while incarcerated, a serious inability to

refrain from acting upon his deviant sexual interests. It

appears that he has found it particularly difficult to control

his behavior.” 4 (J.A. 304.)

The two central issues raised on this appeal are whether

the district court properly anchored its finding of substantial

difficulty in refraining from sexually violent conduct to its

finding of a serious mental disorder. In addition, Ofarrit-

Figueroa contends that the district court erred in adopting a

mental diagnosis of Ofarrit-Figueroa unsupported by the expert

testimony.

In cases in which the government seeks civil commitment of

a convicted sex offender under the Walsh Act, this Court reviews

the district court’s findings for clear error and its legal

conclusions de novo. United States v. Wooden, 693 F.3d 440, 451

(4th Cir. 2012). Under the clear error standard, “[i]f the

district court’s account of the evidence is plausible in light

of the record viewed in its entirety, [we] may not reverse it

even though convinced that had [we] been sitting as the trier of

4
During his confinement, Ofarrit-Figueroa was cited for
fifty disciplinary infractions for sexually related conduct.
(J.A. 99.)

15
fact, [we] would have weighed the evidence differently.” Id.

(quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.

Ct. 1504, 1511 (1985)) (internal quotation marks omitted). When

the district court’s findings “are based on determinations

regarding the credibility of witnesses, we give even greater

deference to the trial court’s findings.” Hall, 664 F.3d at 462

(quoting Anderson, 470 U.S. at 575, 105 S. Ct. at 1512).

Nevertheless, “while clear-error review is deferential, it

is not toothless,” and, therefore, we may set aside a district

court’s factual findings if the court failed to “properly tak[e]

into account substantial evidence to the contrary” or its

“factual findings are against the clear weight of the evidence

considered as a whole.” Wooden, 693 F.3d at 452, 454, 462

(citations and internal quotation marks omitted). Even so, we

may find a district court’s factual findings were clearly

erroneous only if we are “left with the definite and firm

conviction that a mistake has been committed.” Id. at 451

(citation and internal quotation marks omitted).

Focusing first on the diagnosis by the district court,

Ofarrit-Figueroa contends that it is unsupported by the expert

testimony. He argues that the district court “fundamentally

misunderstood Dr. Malinek’s report and based its conclusion on

that fundamental misunderstanding.” (Appellant’s Reply Br. 1.)

According to Ofarrit-Figueroa, the district court erroneously

16
concluded that Dr. Malinek’s diagnosis was paraphilia NOS, based

on his exhibition-like tendencies. This Court disagrees with

Ofarrit-Figueroa’s characterization.

While Dr. Malinek discussed exhibitionism in explaining his

diagnosis, Ofarrit-Figueroa points out that Dr. Malinek rejected

this diagnostic label and concluded that he fit more squarely in

the category of paraphilia NOS nonconsent. This was predicated

on Ofarrit-Figueroa’s interest in nonconsenting partners and his

belief that indecent exposure was a vehicle intended to lure

sexual partners. Dr. Malinek characterized his behavior as a

“fundamental courtship disturbance.” (J.A. 302.)

The district court prefaced its impression of the evidence

by emphasizing that all three of the forensic psychologists who

testified described Ofarrit-Figueroa’s case as unique. The

court further noted an apparent consensus among the experts that

Ofarrit-Figueroa suffered from a serious mental illness,

abnormality or disorder. The principle disagreement distilled

to differences in diagnostic labeling. The behavior pattern

demonstrated by Ofarrit-Figueroa was complex with manifestations

that defied placement within the established diagnostic criteria

contained in the DSM. In the final analysis, after thoroughly

considering the contrary viewpoint of Dr. Rosell, the court

17
found Dr. Malinek’s diagnosis and reasoning to be the most

persuasive. 5

In articulating its findings and conclusions, the district

court found the evidence to best support the opinion of Dr.

Malinek, namely that Ofarrit-Figueroa’s “incidents of indecent

exposure, boundary violations, stalking, leering, and following

a particular staff member supported this diagnosis of paraphilia

NOS.” (J.A. 302.) The court explained that the nomenclature

NOS was employed as a residual diagnostic category throughout

the DSM as a classification of individuals whose behavior does

not cleanly fit into specified diagnostic categories. (J.A.

302.) The court further explained that the nonconsent specifier

used to describe Ofarrit-Figueroa’s paraphilia NOS was driven by

two independent bases. First, he met some but not all of the

criteria for an exhibitionism diagnosis. Second, and perhaps

more importantly, Dr. Malinek utilized the diagnosis specifier

nonconsent to reflect Ofarrit-Figueroa’s “anger and . . . need

to denigrate women and empower himself.” (J.A. 303.) Although

the court expressed some reservation in embracing the nonconsent

specifier, it found the explanation sufficient to support a

5
Dr. Graney’s conclusions paralleled those of Dr. Malinek
in most respects, although she preferred a slightly different
diagnostic label.

18
paraphilia NOS diagnosis and to meet the criteria for mental

disorder under the Act.

The district court further concluded that Ofarrit-Figueroa

demonstrated paraphilic tendencies but “does not ‘cleanly’ meet

the diagnostic criteria for exhibitionism. On that basis alone,

the Court finds that Petitioner has met its burden to

demonstrate by clear and convincing evidence that Mr. Ofarrit-

Figueroa suffers from a serious mental illness, abnormality, or

disorder.” (J.A. 303–04.) This Court finds no error in the

district court’s conclusions.

In reviewing petitions for civil commitment under the Adam

Walsh Act, the science of psychiatry informs but does not

control the court’s ultimate legal determinations. Kansas v.

Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 871 (2002) (citations

omitted). Moreover, the Act contains no “language purporting

to confine the universe of qualifying mental impairments within

clinical or pedagogical parameters.” United States v. Caporale,

701 F.3d 128, 136 (4th Cir. 2012). Qualifying mental

abnormalities can encompass conditions falling outside the DSM

or other well-defined clinical standards. This is such a case.

Irrespective of diagnostic labeling, the evidence was clear

and convincing that Ofarrit-Figueroa suffered from a serious

mental illness, abnormality or disorder. The diagnosis of

paraphilia not otherwise specified standing alone is sufficient

19
to satisfy the requirements of the Act. See United States v.

Carta, 592 F.3d 34, 40 (1st Cir. 2010). It appears from the

district court’s findings of fact and conclusions of law that

the addition of the phrase “with exhibitionist tendencies” are

words of explanation rather than qualification. Although each

of the psychologists testifying in this case concluded that

Ofarrit-Figueroa’s behavior was inconsistent with typical

exhibitionism, each acknowledged that his indecent exposure was

a critical diagnostic element. Given this behavioral

characteristic, common to the findings of all experts, it was

certainly understandable that the court added this descriptive

language to its findings.

The district court was clearly guided by the content of the

expert testimony, particularly that of Dr. Malinek and Dr.

Graney, but was not obligated to accept their diagnostic labels.

As the Supreme Court stressed in Kansas v. Hendricks, “[n]ot

only do psychiatrists disagree widely and frequently on what

constitutes mental illness, . . . but the Court itself has used

a variety of expressions to describe the mental condition of

those properly subject to civil confinement.” 521 U.S. at 359,

117 S. Ct. at 2080 (citations and internal quotation marks

omitted). At that stage of the analysis, the district court’s

task was to determine whether the evidence supported clearly and

convincingly that Ofarrit-Figueroa suffered from a serious

20
mental illness, abnormality or disorder. The trial court’s

legal conclusions and factual findings were not clearly

erroneous.

The final, and perhaps closer issue, is whether the

district court adequately connected its finding of substantial

difficulty in refraining from sexually violent conduct to its

diagnosis of a serious mental disorder. This “prong of the §

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

interests.” Hall, 664 F.3d at 463 (citations and internal

quotation marks omitted). It is a forward-looking inquiry which

attempts to predict future behavior and the extent to which an

inmate is controlled by his illness. United States v. Francis,

686 F.3d 265, 275 (4th Cir. 2012). As courts have recognized,

this is the most challenging strand of the Act criteria for

civil commitment.

The question of whether a person is “sexually dangerous” is

“by no means an easy one,” and “there is no crystal ball that an

examining expert or court might consult to predict conclusively

whether a past offender will recidivate.” United States v.

Shields, 649 F.3d 78, 89 (1st Cir. 2011). “Whether the

individual is mentally ill and dangerous either to himself or

others . . . turns on the meaning of the facts which must be

21
interpreted by expert psychiatrists and psychologists.”

Addington v. Texas, 441 U.S. 418, 429, 99 S. Ct. 1804, 1811

(1979) (emphasis in original). “In the end, however, it is for

the factfinder to decide among reasonable interpretations of the

evidence and determine the weight accorded to expert witnesses.”

Shields, 649 F.3d at 89 (citations and internal quotation marks

omitted).

In reviewing the district court’s findings on the

volitional impairment prong, it is important to be mindful that

“[e]valuating the credibility of experts and the value of their

opinions is a function best committed to the district courts . .

. . An appellate court should be especially reluctant to set

aside a finding based on the trial court’s evaluation of

conflicting expert testimony.” Hendricks v. Central Reserve

Life Ins. Co., 39 F.3d 507, 513 (4th Cir. 1994).

The district court discounted the opinion advanced by Dr.

Rosell as inconsistent with Ofarrit-Figueroa’s demonstrated

pattern of behavior. Dr. Rosell placed considerable weight on

the fact that Ofarrit-Figueroa had not engaged in any sexually

assaultive behavior in the years immediately preceding his

evaluation. However, during almost that entire time period,

Ofarrit-Figueroa was in segregated lockdown at a supermax

facility isolated from other people.

22
 In concluding that Ofarrit-Figueroa would have serious

difficulty in refraining from engaging in sexually violent

conduct as a result of serious mental illness, abnormality or

disorder, the district court clearly considered and weighed the

testimony of all three psychologists, reviewed the actuarial and

psychological tests performed, and attached considerable weight

to his troubling history of sexual deviance. In the district

court’s findings of fact and conclusions of law, as a predicate

to its conclusions under this prong, the court detailed Ofarrit-

Figueroa’s sexually violent conduct, including committing a rape

at knife point, sexually assaulting a correctional officer, and

over forty incident reports since 1999 for behavior, including

making sexual proposals or threats, engaging in sexual acts and

indecent exposure. 6 (J.A. 304-05.)

In concluding that Ofarrit-Figueroa would have serious

difficulty in refraining from sexually violent conduct if

released, the district court carefully analyzed the actuarial

instruments relied upon by the expert witnesses. Collectively

viewed in light of Ofarrit-Figueroa’s individual circumstances,

the court found these actuarial assessment results to be

6
As the United States Supreme Court recognized in
Hendricks, “ʽprevious instances of violent behavior are an
important indicator of future violent tendencies.’” 521 U.S. at
358, 117 S. Ct. at 2080 (quoting Heller v. Doe, 509 U.S. 312,
323, 113 S. Ct. 2637 (1993)).

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consistent with its conclusion that Ofarrit-Figueroa posed a

high risk of recidivism. The precision with which the court

linked the volitional component to a well-defined mental

disorder, however, was necessarily governed by the inability of

the experts to diagnostically capture Ofarrit-Figueroa’s

aberrant behavior.

As this Court has previously noted, the task of assessing

the likelihood of future sexually violent conduct if Ofarrit-

Figueroa is released, does not lend itself to scientific

precision. The district court’s findings represent a logical

and reasonable interpretation of the evidence, and we cannot say

that the district court clearly erred in finding that Ofarrit-

Figueroa is sexually dangerous within the meaning of the Adam

Walsh Act.

AFFIRMED

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