United States v. Earl Webster Cox

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-8107

UNITED STATES OF AMERICA,

Petitioner – Appellee,

EARL WEBSTER COX,

Respondent - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:11-hc-02137-H-JG)

Submitted: November 20, 2013 Decided: December 19, 2013

Before DAVIS, KEENAN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Bradley L. Henry, BREEDING, LODATO, & LENIHAN, LLC, Knoxville,
Tennessee, for Appellant. Thomas G. Walker, United States
Attorney, Rudy A. Renfer, Michael G. James, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

This appeal arises under the Adam Walsh Child

Protection and Safety Act, 18 U.S.C.A. §§ 4247-4248 (West 2000 &

Supp. 2013) (the Walsh Act). The Walsh Act “provides that

individuals in the custody of the Bureau of Prisons (BOP) who

are sexually dangerous may be committed civilly after the

expiration of their federal prison sentences.” United States v.

Francis, 686 F.3d 265, 268 (4th Cir. 2012). Here, Earl W. Cox

appeals the district court’s order, following a hearing,

committing him to the custody and care of the Attorney General

pursuant to § 4248. We affirm.

Cox first claims that the district court erred in

admitting into evidence a copy of his presentence investigation

report (PSR) without affording Cox the opportunity to

cross-examine witnesses about the factual accuracy of the

report. Cox effectively contends that the PSR constituted

inadmissible hearsay and its admission violated Crawford v.

Washington, 541 U.S. 36 (2004). Because Cox did not raise this

claim below, our review is for plain error. See United States

v. Baptiste, 596 F.3d 214, 220 (4th Cir. 2010).

We recently rejected a similar argument in a case

involving a commitment proceeding under the Walsh Act. In

United States v. Pardee, __ F. App’x ___, 2013 WL 3316313 (4th

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Cir. 2013), we found that the PSR was properly admitted under

Fed. R. Evid. 803(8). We further rejected Pardee’s claim that

admission of the PSR violated Crawford because Crawford applies

only to criminal cases, and a commitment proceeding under the

Walsh Act is civil in nature. Id. at *4. Under this authority,

we find no error in the admission of Cox’s PSR.

Civil commitment under the Walsh Act is authorized

only if the Government satisfies a three-pronged test. Under

this test, the Government must establish by clear and convincing

evidence that the individual:

(1) previously engaged or attempted to engage in
sexually violent conduct or child molestation (the
prior conduct prong); (2) currently suffers from a
serious mental illness, abnormality, or disorder (the
serious mental illness prong); and (3) as a result of
that mental condition, . . . would have serious
difficulty in refraining from sexually violent conduct
or child molestation if released (the volitional
control prong).

United States v. Springer, 715 F.3d 535, 538 (4th Cir. 2013)

(internal quotation marks omitted); see 18 U.S.C.

§ 4247(a)(5)-(6). “If the [G]overnment fails to meet its burden

on any of the three prongs, an individual may not be committed.”

Springer, 715 F.3d at 538.

Cox concedes that the Government established the prior

conduct and serious mental illness prongs but challenges the

district court’s finding that the Government met its burden with

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respect to the volitional control prong. In particular, Cox

complains that the district court did not meaningfully address

evidence concerning his medical condition and his refraining

from deviant behavior while incarcerated. In Cox’s view, his

medical issues and prison record constitute significant

“protective factors” — factors which decrease the risk of future

sexual offending — and should have been discussed in depth when

the court analyzed the volitional control prong. We review the

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

conclusions de novo. Springer, 715 F.3d at 545.

In deciding that the Government had met its burden

with respect to the volitional control prong, the district court

credited the opinions of the three experts, who agreed that Cox

would have serious difficulty refraining from child molestation.

The district court discussed in detail each expert’s reasons for

reaching this conclusion. While it is true that the court

devoted little or no discussion to Cox’s medical impairments and

record while incarcerated, a district court is not required to

address every bit of evidence presented at a commitment hearing.

United States v. Caporale, 701 F.3d 128, 141 (4th Cir. 2012).

This is particularly so here, where there was no evidence

contradicting expert testimony that neither Cox’s limited

mobility and other medical conditions nor his spotless prison

record overcame overwhelming evidence that Cox met the

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volitional control prong. For instance, Dr. Plaud and Dr. Ross

testified that Cox’s medical issues would have no impact on the

likelihood of his re-offending because his prior “hands-on”

molestations did not involve chasing or “snatching” children and

did not require much physical strength or stamina. As for Cox’s

having refrained from deviant behavior while in prison, Dr. Ross

stated that this had no impact on her conclusion as to the

volitional control prong because, while incarcerated, Cox did

not have access to his preferred victim pool (prepubescent

females) or to child pornography. We discern no error in the

district court’s finding that the Government established the

volitional control prong by clear and convincing evidence.

III

We accordingly affirm. We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.

AFFIRMED