United States v. Broncheau

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.

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 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.”).

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 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