United States v. Randle Cooke

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6792

UNITED STATES OF AMERICA,

Petitioner – Appellee,

v.

RANDLE PORTER COOKE,

Respondent – Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:09-hc-02034-FL-JG)

Argued: March 18, 2014 Decided: April 7, 2014

Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS,
Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. Senior Judge Davis
wrote a separate opinion concurring in the judgment.

ARGUED: James B. Craven, III, Durham, North Carolina, for
Appellant. Matthew Fesak, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas G.
Walker, United States Attorney, R.A. Renfer, Jr., Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

On this appeal, Randle Porter Cooke challenges his

designation as a sexually dangerous person and consequent civil

commitment under the Adam Walsh Child Protection and Safety Act

of 2006, 18 U.S.C. § 4248. For the reasons that follow, we

affirm.

I.

Cooke has been convicted and imprisoned three times as a

result of sexual contact with minors. In 1981, Cooke was

charged with aggravated sexual assault for fondling a boy under

the age of 13. He pleaded guilty to an attempted felony, for

which he received a suspended two-year sentence.

In 1991, Cooke was convicted in Texas state court of sexual

assault of a child and indecency with a child. The first of

these charges related to his performing oral sex on and touching

the genitals of a fourteen-year-old boy. The second related to

his touching the genitals of another boy under the age of 17.

He was sentenced to 10 years’ imprisonment and was released in

November of 2000.

The events leading to Cooke’s most recent incarceration

began seven months later. In May of 2001, he met a twelve-year-

old boy in a bookstore. Cooke told the boy and the boy’s mother

that he was a “big brother” who mentored young people. Cooke

2
began communicating with the boy by email and was allowed to

take him on an outing. He drove the boy to a cemetery and, en

route, Cooke attempted to hypnotize the boy and placed his hand

on the boy’s penis. At the cemetery, Cooke gave the boy

marijuana and asked him to engage in oral sex. The boy

declined.

Cooke took the boy home, but continued to try to contact

him until October of 2001. To avoid detection by the boy’s

parents, Cooke asked the boy to refer to him as though he were a

15-year-old boy named “Josh,” and wrote the boy letters under

that name. Cooke also contacted one of the boy’s schoolmates

online, again posing as a boy named “Josh,” in an attempt to set

up a meeting.

In October of 2001, Federal Bureau of Investigation agents

interviewed Cooke. He told the officers that he was initially

sexually attracted to the boy and had hoped to have a sexual

relationship. He claimed, however, to have since regained

control over his sexual urges. Cooke permitted the FBI to

search his computer where investigators found more than 100

photographs of teenaged males between the ages of 11 and 20

engaged in sexual conduct and one photograph of a 9-year-old boy

posed provocatively with his underwear exposed.

As a result, Cooke was charged with and pleaded guilty to

one count of possession of child pornography in violation of 18

3
U.S.C. § 2252(a)(4)(B) and two counts of receipt of child

pornography in violation of 18 U.S.C. § 2252(a)(2). He was

sentenced to 87 months’ imprisonment and three years’ supervised

release.

Prior to Cooke’s 2010 release date, the Attorney General

filed a certification in the Eastern District of North Carolina

that Cooke is a sexually dangerous person. 1 This filing

automatically stayed Cooke’s release from prison and initiated

commitment proceedings.

During those proceedings, an evidentiary hearing was held

before a magistrate judge to determine Cooke’s status as a

sexually dangerous person. Cooke and two experts testified on

his behalf and three experts testified for the government.

The government also introduced instances of Cooke’s

misconduct in prison. For example, Cooke sought to have himself

placed in protective custody by presenting prison officials with

what purported to be a threatening note. It was later

discovered that Cooke had written the note himself. On another

occasion, Cooke developed a relationship with a 22-year-old

1
Though Cooke was convicted of the underlying offenses in
the Western District of Tennessee, he was in custody within the
Eastern District of North Carolina at the time the certification
was filed. The Adam Walsh Act provides that the certification
is to be filed, and commitment proceedings conducted, in the
district within which the respondent is incarcerated, not the
district in which he was convicted. 18 U.S.C. § 4248(a).

4
fellow inmate, with whom he tried to secure private time in the

prison chapel. This inmate was a mental health patient with his

own history of sexual offenses. Discussing his fondness for

this inmate, Cooke confided in a prison official that he liked

“young, troubled boys.”

Cooke was transferred to FCI Butner where he sought to

participate in the the Sex Offender Treatment Program, but was

initially denied access because his release date was too

distant. When he became eligible for the program, however,

Cooke declined to participate because statements made in the

program could be used against him in proceedings such as this.

Cooke testified that he would gladly participate in

treatment, but his plans for doing so were vague. Cooke’s only

specific post-release plan to avoid relapse was to live at the

same assisted living facility as his mother. His plan indicated

his desire to live peacefully, have long-postponed surgery, seek

therapy, and generally avoid returning to his former habits. It

did not indicate the development of any special knowledge or

skills to help him avoid situations or stimuli that might lead

him to reoffend. To the contrary, the government introduced

correspondence between Cooke and another convicted sex offender

exchanged in late 2011 and early 2012.

Two forensic psychologists, Dr. Gary Zinik and Dr. Lela

Demby, testified as expert witnesses for the government on

5
direct. Dr. Zinik diagnosed Cooke with “Paraphilia NOS,

Hebephilia, attracted to Adolescent Males, Nonexclusive Type,” 2

“Cannabis Dependence by history, in remission in a controlled

environment,” “Narcotics Dependence (pain medication), in

remission in a controlled environment,” and “Personality

Disorder NOS, with Antisocial and Narcissistic Features.” J.A.

725. Dr. Zinik concluded that there was a “high level” of risk

that Cooke would reoffend, despite the fact that Cooke is

paralyzed from the waist down and is often catheterized. Dr.

Zinik noted that Cooke was similarly impaired at the time of

most of his previous offenses.

Dr. Zinik observed that Cooke’s “predatory” advances

towards a vulnerable fellow inmate belies Cooke’s claims that he

has changed his behavior. J.A. 724. Cooke’s “vague, evasive”

responses to questions about his past offenses suggest that

Cooke does not really “get” his condition and that he “thinks

and talks like an untreated sex offender.” Id. Dr. Zinik

concluded that “Mr. Cooke is still at least a medium-high to

high risk for sexual reoffense” and that he remains “physically

capable of molesting young boys in the same fashion as he has in

the past if he were motivated to do so.” J.A. 728.

2
“NOS” is an abbreviation for “not otherwise specified.”

6
 Dr. Demby similarly concluded that “it is highly likely

that Mr. Cooke will continue to sexually reoffend.” J.A. 759.

She diagnosed Cooke with “Paraphilia Not Otherwise Specified,”

“Narcotic Dependence in a Controlled Environment (by history),”

and “Personality Disorder Not Otherwise Specified with

borderline Traits.” J.A. 752. She further opined that Cooke’s

physical condition would not impede him from reoffending, noting

as Dr. Zinik did, that Cooke has offended repeatedly in his

current condition. In fact, Dr. Demby observed that “[Cooke’s]

disability appears to serve as part of his ability to get

parents and victims to trust him.” Id. Also like Dr. Zinik,

Dr. Demby concluded that Cooke “demonstrates extreme

minimization and denial of his offenses, as well as attitudes

that support his sex offenses. Both of these factors exacerbate

his risk of reoffense.” J.A. 758.

Dr. Joseph Plaud, a psychiatric expert, testified on

Cooke’s behalf. Dr. Plaud testified that Cooke’s evident

attraction to young pubescent boys did not constitute a

diagnosable mental illness. He also criticized the predictive

models used by Dr. Zinik and Dr. Demby, contending that there is

no model that could reliably determine Cooke’s risk of

reoffending given his physical condition.

Dr. Moira Artigues also testified on Cooke’s behalf,

recounting his painful and debilitating conditions and opining

7
that these conditions had worsened while he was in custody.

Although these impairments reduced the risk that Cooke would

reoffend, Dr. Artigues did not testify that Cooke presented a

“low risk” of reoffense. She did not physically examine Cooke

and did not have the opportunity to review all of Cooke’s most

recent medical records. Her testimony was largely based on

Cooke’s own statements and the other expert reports.

Finally, Dr. Roscoe Ramsey, Cooke’s treating physician at

FCI Butner, testified for the government on rebuttal. Dr.

Ramsey testified that Cooke’s physical condition had not

deteriorated during his last three years of detention.

The magistrate judge recommended that “the court enter an

order finding by clear and convincing evidence that respondent

is a sexually dangerous person within the meaning of 18 U.S.C. §

4247(a)(5) and committing him to the custody and care of the

Attorney General pursuant to 18 U.S.C. § 4248(d).” J.A. 598.

On de novo review, the district court agreed. J.A. 653-73.

II.

18 U.S.C. § 4248 provides for the civil commitment of

individuals in the custody of the Federal Bureau of Prisons

following the expiration of their prison sentences if the

government can prove, by clear and convincing evidence, that

they are “sexually dangerous.” To establish this, the

8
government must show that an individual “has engaged or

attempted to engage in sexually violent conduct or child

molestation,” 18 U.S.C. § 4247(a)(5); that he “suffers from a

serious mental illness, abnormality, or disorder,” 18 U.S.C.

§ 4247(a)(6); and that, as a result, he “would have serious

difficulty in refraining from sexually violent conduct or child

molestation if released.” Id. See also United States v. Hall,

664 F.3d 456, 458 (4th Cir. 2012). Cooke concedes the first

prong. He maintains, however, that the government failed to

prove, and the district court erred in finding, that he

satisfies the latter two. 3

The district court’s determinations that Cooke presently

suffers from a serious mental illness and that he “would have

serious difficulty in refraining from sexually violent conduct

or child molestation if released” are factual determinations,

which we review for clear error. See United States v. Wooden,

693 F.3d 440, 451 (4th Cir. 2012); Hall, 664 F.3d at 462. We

therefore may not disturb the district court’s conclusions on

these points “simply because we would have decided the case

3
Cooke also argues that the Adam Walsh Act violates his right
to equal protection under the Fifth Amendment because it treats
Bureau of Prisons detainees differently from all other federal
detainees. He acknowledges, however, that we have already
considered and rejected this argument, see United States v.
Timms, 664 F.3d 436, 449 (4th Cir. 2012), and we do not consider
it further.

9
differently.” Easley v. Cromartie, 532 U.S. 234, 242 (2001).

Rather, we may do so only when, “’on the entire evidence’ the

Court is ‘left with the definite and firm conviction that a

mistake has been committed.’” Id. (quoting United States v.

United States Gypsum Co., 333 U.S. 364, 395 (1948)). “If the

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

of the record viewed in its entirety, the court of appeals may

not reverse it even though convinced that had it been sitting as

the trier of fact, it would have weighed the evidence

differently.” Anderson v. Bessemer City, 470 U.S. 564, 573–74

(1985). Applying this standard, we are unable to conclude that

the district court clearly erred in either of its challenged

findings.

A.

We turn first to the district court’s finding that Cooke

presently “suffers from a serious mental illness, abnormality,

or disorder.” 18 U.S.C. § 4247(a)(6). We find the district

court’s conclusion amply supported by the record developed at

the evidentiary hearing.

Of the three experts who testified about whether Cooke

suffers from a serious mental disorder, two concluded that he

did: Dr. Zinik and Dr. Demby diagnosed him with both Personality

disorder and Paraphilia NOS, which they characterized as

serious, relating to his inability to refrain from sexual

10
contact with pubescent boys. Dr. Plaud disagreed with these

diagnoses, but primarily on the basis that the paraphilia with

which Dr. Zinik and Dr. Demby diagnosed Cooke--hebephilia--was

not a diagnosable mental disorder and was not included in the

current version of the Diagnostic and Statistical Manual of

Mental Disorders (“DSM”).

As most, however, this indicates a conflict in the experts’

testimony, the district court’s resolution of which we are

“especially reluctant to set aside.” Hall, 664 F.3d at 462

(quoting Hendricks v. Central Reserve Life Ins. Co., 39 F.3d

507, 513 (4th Cir. 1994)). In the absence of any other

indication that Dr. Plaud’s testimony should have been credited

over Dr. Zinik’s and Dr. Demby’s, we decline to do so.

In a similar context, we have also cautioned against

overreliance on the availability of a formal label:

[O]ne will search § 4247(a)(6) in vain for any
language purporting to confine the universe of
qualifying mental impairments within clinical or
pedagogical parameters. The statute could have been
drafted to comport with clinical norms, but inasmuch
as Congress chose not to do so, it has been left to
the courts to develop the meaning of “serious mental
illness, abnormality, or disorder” as a legal term of
art.

United States v. Caporale, 701 F.3d 128, 136 (4th Cir. 2012).

Our discussion of Dr. Plaud’s views in Caporale is equally

applicable here: while “Dr. Plaud's testimony cast some doubt

that hebephilia may [qualify as Paraphilia NOS as listed in the

11
DSM]. . . the scope of ‘illness, abnormality, or disorder’ in §

4247(a)(6) is certainly broad enough to include hebephilia, by

its own or any other name.” Id. at 137. Here, the district

court properly focused not on labels, but on whether Cooke’s

condition--whatever it may be called, and whether or not it

could form the basis of a formal psychiatric diagnosis--

substantially impairs his ability to function normally in

society. It concluded that Cooke’s impairment was clear, as

manifested in his “long periods of incarceration, feelings of

shame and humiliation, and distressed familial relationships.”

J.A. 664. Nothing in the record persuades us that this

conclusion was erroneous.

Cooke contends that, whatever serious mental illness he may

have suffered from in the past, he does not presently suffer

from one as required by 18 U.S.C. § 4247(a)(6). But there was

ample evidence to suggest that Cooke’s condition persists.

While Cooke testified that he no longer experiences the urge to

have sexual contact with pubescent males, there was substantial

evidence in the record to suggest otherwise. Both Dr. Zinik and

Dr. Demby both spoke directly to this point, testifying that

Cooke remains in the grip of his illness. The district court

noted that hebephilia is a persistent condition as evidenced

both by expert testimony and Cooke’s own history of repeated

reoffense. Cooke’s failure to undergo treatment, and his

12
continued communication with another sex offender, similarly

undermine Cooke’s contention that he has taken control of his

own behavior through self help.

B.

Cooke also objects to the district court’s conclusion that

he “would have serious difficulty in refraining from sexually

violent conduct or child molestation if released.” 18 U.S.C.

§ 4247(a)(6). This inquiry focuses on “the extent to which the

inmate is controlled by the illness.” Wooden, 693 F.3d at 460.

On this prong as well, the district court’s conclusion is

adequately supported by the evidence.

The district court properly observed that Cooke has a long

history of child molestation that, in itself, demonstrates

occasions on which Cooke was controlled by his illness, and with

tragic results. “When the question is whether an inmate . . .

will have serious difficulty refraining from re-offending if

released, consideration of the nature of his prior crimes

provides a critical part of the answer.” Wooden, 693 F.3d at

458. While Cooke was evidently able to control his behavior

during his most recent time in prison, the same could be said of

his prior incarceration in Texas state prison after which Cooke

reoffended within months. Moreover, as the district court

observed, Cooke had no access to pubescent males while he was

incarcerated. It is therefore difficult to say with certainty

13
whether Cooke was able to control his own behavior, or whether

the prison environment controlled it for him. In this context,

we cannot conclude that the district court erred in considering

Cooke’s interactions with a “young, troubled” fellow inmate,

even if there was nothing inherently inappropriate about their

relationship.

Cooke’s own testimony also indicated to the district court

that he was not prepared to accept responsibility for his past

actions. The district court observed that Cooke’s responses to

questions typically minimized his own responsibility, suggesting

that he “fails to appreciate the seriousness of his hebephilia

and the extent to which it controls his offending.” J.A. 669.

Such a judgment about a witness’s demeanor on the stand is

another textbook example of a determination to which we owe

particular deference. See United States v. McGee, 736 F.3d 263,

270 (4th Cir. 2013). Dr. Zinik and Dr. Demby corroborated this

observation.

The district court discussed Cooke’s relapse-prevention

plan as well. The district court noted Dr. Zinik’s testimony

that such a plan could be valuable in “identifying triggers of

sexual offending and effective prevention measures to serve as a

resource for both respondent and his support group.” J.A. 661.

Measured against this standard, Cooke’s plan--which consists of

nothing more than his intended living arrangements and the

14
generalized aspiration to seek treatment and avoid reoffense--

falls well short. This suggested to the district court, not

unreasonably, that “respondent does not appear to comprehend the

risk of reoffense he faces in the community upon release, as

opposed to in BOP custody where he has no access to pubescent

males.” Id.

The district court drew a similar inference from the fact

that Cooke has not participated in the sex offender treatment

program available at FCI Butner since it became available to

him. Cooke maintains that he had good grounds for not doing so,

and that may be. An Adam Walsh Act detainee is not obliged to

participate in such a program to secure his release. But

treatment programs teach skills to help an individual avoid

reoffending, and the failure to obtain or develop such a skill

set is a relevant consideration in determining the likelihood of

a relapse. 4

Finally, in view of the fact that every one of Cooke’s

offenses were committed while he was paralyzed from the waist

down and confined to a wheelchair, the district court reasonably

concluded that Cooke’s many physical impairments did not

4
Cooke maintains that he has managed to teach these skills to
himself. As we discuss above, however, the district court had
ample grounds to disbelieve this testimony, given the contrary
testimony of the government’s expert witnesses and its own
assessment of Cooke’s credibility on the stand.

15
substantially reduce his risk of reoffense. Even Dr. Artigues

testified that Cooke’s physical impairments merely reduce that

risk; she did not say to what extent.

III.

For the foregoing reasons, the district court’s order

committing Cooke to the custody of the Attorney General is

AFFIRMED.

16
DAVIS, Senior Circuit Judge, concurring in the judgment:

This is a close case. Ultimately, I vote to affirm because

evidence of Cooke’s recent history and his own testimony

meaningfully contribute to the satisfaction of the Government’s

burden to establish by clear and convincing evidence that he

still suffers from a volitional impairment that makes his

likelihood of reoffending higher than that of the typical

recidivist. His case is therefore distinguishable from United

States v. Antone, 742 F.3d 151 (4th Cir. 2014), in which we held

that the district court’s finding regarding volitional

impairment was not supported by clear and convincing evidence

because, among other reasons, it ignored the offender’s recent

history while assigning determinative weight to the existence of

his prior offenses.

This case, and these cases generally, are evaluated through

three prisms. First, the Adam Walsh Act is designed to target

individuals who are different from the rest of the offender

population. The policy choices Congress has made is rooted in

the perception that there are unique mental health issues

associated with these sexual offenders that create a much higher

likelihood of recidivism. Antone, 742 F.3d at 159; United

States v. Timms, 664 F.3d 436, 449 (4th Cir. 2012) (holding that

Congress’ rational interest was to protect the public from

“reasonably foreseeable harm” by ex-convicts). Cf. Kansas v.

17
Crane, 534 U.S. 407, 413 (2002). Second, the evidentiary

standard in these cases is “exacting”: there must be clear and

convincing evidence that an individual is so impaired that he is

likely to commit a future sexual offense. Antone, 742 F.3d at

159. And third, this standard is a tough one to meet - and the

burden is on the Government to meet it.

It is important that an appellate court’s reasoning take

care not to shift the burden to an offender to show that he will

not offend again; over-reliance on an offender’s pre-

incarceration history poses that risk. For example, the

majority concedes that it is “difficult to say with certainty

whether Cooke was able to control his own behavior, or whether

the prison environment controlled it for him.” Maj. op. at 14.

But the point of the Walsh Act inquiry is to put in place a

standard that the Government must meet with a relatively precise

degree of certainty, i.e., a certainty tested by the exacting

clear and convincing evidentiary standard. Similarly, the

majority approvingly cites the district court’s observation

“that Cooke has a long history of child molestation that, in

itself, demonstrates occasions on which Cooke was controlled by

his illness, and with tragic results.” Maj. op. at 13. But our

case law forsakes this myopic focus on the past, instead

highlighting that recent behavior is also a particularly

probative data point in these cases. Antone, 742 F.3d at 166.

18
 Despite my concerns about the majority’s approach, I agree

with its ultimate conclusion because, unlike in Antone, Cooke’s

recent history strongly suggests that he suffers from a current

volitional impairment. Most importantly, the district court’s

assessment of Cooke’s testimony revealed that he was simply not

a credible witness: (1) his plans for obtaining treatment were

not credible; (2) his claimed willingness to take responsibility

for his prior conduct was not credible; and (3) his purported

understanding of the nature of his illness was not credible. At

least one expert testified that his behavior was demonstrative

of an untreated sex offender. These credibility determinations,

combined with the lack of a concrete post-release treatment plan

and the record evidence that his interest in young and troubled

boys had endured, were - in the light of the totality of the

factual record - sufficient for the district court find that

Cooke currently suffers from a volitional impairment and would

likely reoffend if not committed for treatment. The district

court was amply justified in rejecting Cooke’s assertion (only

implied, to be sure) that if he were to reoffend upon release,

it would be because he chose to reoffend and not because he

lacked the volitional control needed to avoid doing so.

I concur in the judgment.

19