PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6043
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
JOSE DE LA LUZ PEREZ,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:11-hc-02015-BR-JG)
Argued: January 28, 2014 Decided: May 15, 2014
Before TRAXLER, Chief Judge, and MOTZ and THACKER, Circuit
Judges.
Affirmed by published opinion. Chief Judge Traxler wrote the
opinion, in which Judge Motz and Judge Thacker joined.
ARGUED: Jenna Turner Blue, BLUE, STEPHENS & FELLERS, LLP,
Raleigh, 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., Edward D. Gray, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
TRAXLER, Chief Judge:
Jose De La Luz Perez appeals from an order of the district
court concluding after an evidentiary hearing that Perez is a
“sexually dangerous person,” 18 U.S.C. § 4248(a), under the Adam
Walsh Child Protection and Safety Act of 2006 (the “Act”), Pub.
L. No. 109–248, 120 Stat. 587, and committing him to the custody
of the United States Attorney General. Perez asks us to vacate
the civil commitment order, contending that the district court
lacked personal jurisdiction because the government failed to
serve him with a summons pursuant to Rule 4 of the Federal Rules
of Civil Procedure. Alternatively, Perez argues that the
district court’s finding that he is a “sexually dangerous
person” under the Act was clearly erroneous. As explained
below, we affirm.
I.
Under the Act, the government has the authority to civilly
commit “sexually dangerous” federal inmates following the
expiration of their federal prison sentences. 18 U.S.C. §
4248(a); see United States v. Wooden, 693 F.3d 440, 442 (4th
Cir. 2012). The statute defines a “sexually dangerous person” as
one “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). A person is considered
“sexually dangerous to others” if “the person suffers from a
2
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.” Id.
§ 4247(a)(6) (emphasis added).
The Attorney General or the Director of the Bureau of
Prisons (“BOP”) may commence a § 4248 commitment proceeding by
filing with the clerk of court for the district in which the
respondent is confined a certification that the person is
sexually dangerous as defined by the Act. See id. § 4248(a).
The “filing automatically stays the release of the person from
custody pending a hearing before the district court.” United
States v. Heyer, 740 F.3d 284, 286 (4th Cir. 2014); see 18
U.S.C. § 4248(a). The district court is then “required to
convene a hearing to afford the government the opportunity to
prove the ultimate truth of its certification.” United States
v. Caporale, 701 F.3d 128, 131 (4th Cir. 2012); 18 U.S.C. §
4248(a) (“The court shall order a hearing to determine whether
the person is a sexually dangerous person.” (emphasis added)).
“If, after the hearing, the court finds by clear and convincing
evidence that the person is a sexually dangerous person, the
court shall commit the person to the custody of the Attorney
General.” 18 U.S.C. § 4248(d) (emphasis added).
3
II.
In December 2011, Perez was incarcerated at the BOP
facility in Butner, North Carolina, where he was serving the
final few months of a 20-year federal sentence for (1)
transportation of a minor in foreign commerce with intent to
engage in criminal sexual activity, see 18 U.S.C. § 2423(a), and
(2) importation of an alien for immoral purposes, see 8 U.S.C. §
1328. On January 6, 2011, the BOP Certification Review Panel
filed in the Eastern District of North Carolina a certification
seeking to have Perez civilly committed as a “sexually dangerous
person.” 18 U.S.C. § 4248(a). Perez subsequently moved to
dismiss the commitment proceedings on the basis that the
government failed to comply with Rule 4(c)(1) of the Federal
Rules of Civil Procedure by failing to serve a summons. The
United States filed a response in opposition to Mr. Perez’s
motion, arguing that § 4248 only requires the filing of a
certification to initiate commitment proceedings, not a standard
civil summons. The United States argued, in the alternative,
that Perez’s service of process argument was barred by Rule
12(h)(1) because he failed to raise it in a prior motion that
addressed other procedural issues. The district court denied
the motion to dismiss on slightly different grounds, concluding
that even if service of the summons was required here, dismissal
was not mandatory where, as here, Perez received actual notice
4
of the § 4248 proceeding and suffered no prejudice from the
government’s failure to serve him with a summons.
As mandated by the Act, the district court conducted an
evidentiary hearing “to determine whether [Perez was] a sexually
dangerous person.” 18 U.S.C. § 4248(a). Any person subject to
a hearing pursuant to the Act “shall be represented by counsel”
and “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); see id. § 4248(c) (“The hearing shall be
conducted pursuant to the provisions of section 4247(d).”).
Perez moved to proceed pro se, and the court found that Perez
knowingly and voluntarily elected to appear without legal
counsel. Believing that the proceedings against him were
unlawful, however, Perez refused to be present or otherwise
participate in the hearing. Accordingly, the hearing was
conducted in Perez’s absence.
The government presented the expert testimony of three
forensic psychologists who each performed a pre-hearing
evaluation of Perez for the purpose of determining whether he
was a “sexually dangerous person” under the Act: Dr. Hy
Malinek, a forensic psychologist who has evaluated hundreds of
individuals in § 4248 commitment proceedings; Dr. Heather Ross,
also a forensic psychologist specializing in the assessment of
5
sex offenders; and Dr. Joseph Plaud, a forensic psychologist who
was appointed on behalf of Perez. See 18 U.S.C. § 4247(b). All
three experts prepared written reports stating their opinions
and summarizing the bases for their opinions.
In making their assessments, all three experts reviewed
Perez’s criminal history records which established the
following. In September 1970, Perez was arrested for abducting
a seven-year-old boy at a laundromat in San Antonio, Texas.
Perez drove the boy to a motel where he held the boy overnight
and forced him to engage in oral sodomy numerous times. The
next morning, Perez dropped the boy off in the street fifteen
blocks away from his home. Perez was convicted in Texas state
court of kidnapping a minor from his parents and sentenced to 25
years imprisonment. See Perez v. State, 478 S.W.2d 551 (Tex.
Crim. App. 1972). He was released on parole in May 1979.
In May 1982, Perez made sexual contact with a nine-year-old
boy in a dressing room at a mall. The boy’s mother reported the
incident to a security officer who then returned with the boy to
the dressing room and found Perez victimizing a twelve-year-old
boy. The nine-year-old victim identified Perez as the molester.
In each case, Perez approached the boy and offered him money to
try on jeans, suggesting that they were the same size as Perez’s
nephew, for whom Perez was shopping. Each victim fell for
Perez’s ruse, and Perez entered the dressing room with them and
6
asked how the jeans fit. Eventually, Perez put his hands down
the boys’ pants and felt their genitals, patted their buttocks,
and asked them to bend over and touch their toes.
Perez was arrested at the time of the offense in May 1982.
After being placed on bond, Perez fled and evaded detection for
several years. He was eventually apprehended in March 1987.
The charge involving the mall dressing room molestation was
dismissed because the nine-year old victim could not be located,
but Perez was convicted under Texas law in November 1987 of
indecency with a child in relation to the twelve-year-old
victim. The charge also alleged that Perez had one prior felony
conviction for enhancement purposes. Perez was sentenced to
five years’ imprisonment in Texas. He was paroled in February
1989 and was discharged from parole in August 1992.
During the time that he was a fugitive from charges
relating to the mall incident in 1982, Perez was convicted of
indecency with a child and sentenced to five years of probation
in March 1983 in Texas. This offense, which occurred
approximately six months after the offense in the mall, took
place as Perez was selling subscriptions door-to-door and
noticed a young boy in a woman’s apartment. After making a sale
to her, Perez left but returned a short time later, asking to
use the telephone. While he was on the telephone, the woman
told her ten-year-old son to take the trash out to the dumpster
7
in the parking lot. Perez followed the boy into the parking
lot, where he pinched and rubbed the child’s buttocks, touched
him on the front of his pants, and told him to unzip his pants.
The victim was instructed not to tell anyone about what
happened. Finally, in September 1993, Perez was arrested after
agents from the Immigration and Naturalization Service executed
a search warrant at his house in Texas. The agents found two
boys, ages twelve and thirteen, who were living with Perez and
Perez’s father. The boys were Mexican citizens and were living
in the United States illegally.
Interviews with the boys revealed that they had been living
with respondent and his father for approximately two years,
after respondent picked them up on the street in El Paso, Texas.
The twelve-year-old boy reported that respondent began sexually
abusing them the very next day. The reported sexual abuse
involved anal intercourse and occurred in several locations
besides the home, including locations in the state of New
Mexico. Perez also transported the boys to and from Mexico on
several occasions. At least three other children were
interviewed during the investigation and reported that
respondent had sexually molested them. Medical evaluations of
the two reported victims revealed signs consistent with chronic
perianal trauma.
8
In 1993, Perez pled guilty to Transportation of a Minor in
Foreign Commerce with Intent to Engage in Aggravated Sexual
Assault and to Importation of an Illegal Alien for the Immoral
Purpose of Sexual Assault. He was sentenced to 120 months’
imprisonment on each charge, to be served consecutively, as well
as three years of supervised release.
In addition to reviewing this criminal offense history, all
three experts sought to interview Perez. Drs. Malinek and Ross
were rebuffed by Perez, who refused to cooperate. Dr. Plaud was
more successful, eliciting a few limited statements from Perez
relating to his personal sexual history. All three experts,
however, found Perez’s statements to Dr. Plaud to be significant
and considered them in assessing Perez’s sexual dangerousness.
The experts unanimously diagnosed Perez with pedophilia, marked
by an exclusive sexual attraction to young males, a condition
all agreed qualified as “a serious mental illness, abnormality,
or disorder.” 18 U.S.C. § 4247(a)(6). And, finally, all three
experts agreed that Perez would have serious difficulty
refraining from child molestation upon release from custody.
The district court found that the government established by
clear and convincing evidence that Perez was a “sexually
dangerous person” as defined by § 4247(a)(5), and that civil
commitment was therefore required under § 4248(d). First, based
on Perez’s criminal records, the court found that Perez “has
9
engaged or attempted to engage in sexually violent conduct or
child molestation” in the past. Id. § 4247(a)(5). Second,
based on the unanimous opinions of the expert witnesses, the
district court concluded that Perez “suffers from a serious
mental illness, abnormality, or disorder.” Id. § 4247(a)(6).
And third, relying on the detailed testimony of the experts as
well as Perez’s criminal history, the district court held that
the government had proven that Perez’s pedophilia “presently
impairs respondent’s volitional ability to refrain from deviant
behavior and that, absent abatement by effective treatment,
would in the future give him serious difficulty in refraining
from child molestation or sexually violent conduct.” J.A. 181-
82.
III.
In an appeal from an order granting or denying a civil
commitment under the Act, “we review the district court's
factual findings for clear error and its legal conclusions de
novo.” United States v. Hall, 664 F.3d 456, 462 (4th Cir.
2012). Perez’s first challenge to the district court’s
commitment order is a purely legal one—that the district court
could not exercise personal jurisdiction over him because he was
never served with a summons pursuant to Rule 4. We reject this
argument.
10
A civil action in federal court commences with the filing
of a complaint, see Fed. R. Civ. P. 3, and personal service of a
summons and a copy of the complaint upon the defendant, see Fed.
R. Civ. P. 4(c)(1). Rule 4 dictates that the summons must,
among other things, identify the court and the parties; apprise
the defendant when he or she must appear to defend against the
allegations; and warn the defendant that failure to appear will
result in a default judgment in favor of the plaintiff. See
Fed. R. Civ. P. 4(a)(1). If the summons is not served on the
defendant within 120 days after the complaint is filed,
dismissal is required unless the district court extends the time
for good cause shown. See Fed. R. Civ. P. 4(m). It is
undisputed that the government never served Perez with a summons
and that no extension of time was sought or granted. The
government contends, however, that service of a standard civil
summons under Rule 4 is not required to commence civil
commitment proceedings under § 4248 against an allegedly
“sexually dangerous person” in the custody of the BOP.
As Perez points out, a commitment proceeding under § 4248
is civil and not criminal in nature, see United States v. Timms,
664 F.3d 436, 455-56 (4th Cir. 2012), and thus, broadly
speaking, the Federal Rules of Civil Procedure would apply to a
§ 4248 commitment proceeding. Rule 1 provides that “[t]hese
rules govern the procedure in all civil actions and proceedings
11
in the United States district courts, except as stated in Rule
81.” Fed. R. Civ. P. 1. Although Rule 81 enumerates several
types of civil actions or proceedings to which the Rules of
Civil Procedure, to one extent or another, do not apply, a civil
commitment proceeding pursuant to 18 U.S.C. § 4248 is not among
them. See Fed. R. Civ. P. 81.
That the Rules of Civil Procedure generally apply to civil
commitment proceedings under the Act, however, does not mean
that they cannot be displaced by specific procedural provisions
included in the Act. Congress “has ultimate authority over the
Federal Rules of Civil Procedure; it can create exceptions to an
individual rule as it sees fit—either by directly amending the
rule or by enacting a separate statute overriding it in certain
instances.” Shady Grove Orthopedic Assocs., P.A. v. Allstate
Ins. Co., 559 U.S. 393, 400 (2010). The question is whether the
Act requires the government to serve a summons pursuant to Rule
4 upon a respondent in federal custody despite the obvious
differences between the initiation of civil commitment
proceedings under § 4248 and a typical civil action. We think
not.
The Act does not expressly indicate whether service of a
summons is required; “service of process” under Rule 4 is simply
not mentioned. However, the Act is not silent as to how to
12
initiate and to notify the respondent of a § 4248 commitment
proceeding:
Institution of proceedings. In relation to a person
who is in the custody of the Bureau of Prisons, . . .
the Attorney General or any individual authorized by
the Attorney General or the Director of the Bureau of
Prisons may certify that the 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 clerk shall send a copy of
the certificate to the person, and to the attorney for
the Government . . . .
18 U.S.C. § 4248(a) (emphasis added). The Act provides a
streamlined procedure for initiating commitment proceedings
against individuals in BOP custody who have been certified as
“sexually dangerous” under § 4248. Under the Act, “[t]he
Attorney General, his designee, or the Director of the [BOP] may
initiate a § 4248 commitment proceeding in the district court
for the district in which the person is confined by filing a
certification that the person is sexually dangerous within the
meaning of the Act.” Heyer, 740 F.3d at 286 (emphasis added).
And, rather than require the government to effect formal service
of the certificate and a standard summons upon the respondent,
the Act directs the clerk of court simply to “send a copy of the
certificate to the person” in BOP custody who was certified as
“sexually dangerous.” 18 U.S.C. § 4248(a).
We conclude that the procedure set forth in 18 U.S.C. §
4248(a) for initiating proceedings for the civil commitment of a
13
sexually dangerous person supplants the summons requirement set
forth in Rule 4. Service of process pursuant to Rule 4 serves
two primary functions in a typical civil action in federal
court: it provides formal notice to the defendant to appear and
defend against an action that has been commenced in federal
court, and it is the means by which the court asserts its
personal jurisdiction over the defendant. See Henry H. Perritt,
Jr., Jurisdiction in Cyberspace, 41 Vill. L. Rev. 1, 31 (1996)
(“Service of process performs two functions in Anglo-American
civil procedure: it represents assertion of judicial power of
the forum state over the person of the defendant, and it is the
formal means of providing notice to the defendant so that he or
she may defend the lawsuit.”). In the unique context of a §
4248 proceeding, however, service of a standard summons under
Rule 4 is not necessary to perform either function.
First, the paramount function of serving a summons is to
provide formal notice to the defendant that action is required
to avoid liability and preserve his or her rights. Service of
the summons apprises a defendant “of the pendency of the action”
and “afford[s] [the defendant] an opportunity to present [his]
objections.” Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80,
84 (1988) (quoting Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950)). Establishing notification to a civil
defendant through proper service of the summons is critical
14
since, among other things, service of the summons triggers
defendant’s duty to file a responsive pleading to the complaint,
see Fed. R. Civ. P. 12(a)(1)(A)(i) (“A defendant must serve an
answer . . . within 21 days after being served with the summons
and complaint.”), and the failure to respond in a timely fashion
can result in liability being imposed by default, see Fed. R.
Civ. P. 55(a).
The respondent in a § 4248 civil commitment proceeding, by
contrast, is not required to file any responsive pleading and
faces no risk of a contrary merits determination being entered
by default or without his knowledge. In fact, Congress afforded
§ 4248 respondents a number of procedural safeguards, including
a mandatory evidentiary hearing, see 18 U.S.C. § 4248(a) (“The
court shall order a hearing to determine whether the person is a
sexually dangerous person.”); id. § 4248(d) (granting district
courts the power to “commit the [respondent] to the custody of
the Attorney General” after the mandatory hearing); and the
right to be represented by an attorney at the mandatory
evidentiary hearing, see id. §§ 4248(c), 4247(d) (providing that
“[a]t a hearing ordered pursuant to this chapter the
[respondent] . . . shall be represented by counsel and, if he is
financially unable to obtain adequate representation, counsel
shall be appointed for him”). Moreover, at the mandatory
hearing, the respondent “shall be afforded an opportunity to
15
testify, to present evidence, to subpoena witnesses on his
behalf, and to confront and cross-examine witnesses who appear
at the hearing.” Id. § 4247(d). In light of these procedural
safeguards inherent in § 4248 proceedings, receipt of a copy of
the certificate initiating commitment proceedings suffices to
provide notice to the respondent—and it is undisputed that Perez
was provided a copy of the certificate seeking to have him
committed as a “sexually dangerous person.” Service of a
summons is unnecessary in this context in view of the fact that
Congress provided another means of notifying the respondent of
the proceedings as well as several procedural safeguards. 1 See
Meadows v. Krischer, 763 So. 2d 1087, 1091 (Fla. Dist. Ct. App.
1999) (concluding that “a standard civil summons would be
unnecessary” to initiate proceedings under Florida law providing
for the civil commitment of “sexually violent predators” where
the law did not require service of a regular civil summons).
A second function performed by service of a civil summons
under Rule 4 is to assert the district court’s jurisdiction over
a person. “Before a federal court may exercise personal
jurisdiction over a defendant, the procedural requirement of
service of summons must be satisfied. Service of summons is the
procedure by which a court having venue and jurisdiction of the
1
Perez does not challenge the constitutional sufficiency of
the notice prescribed by 18 U.S.C. § 4248(a).
16
subject matter of the suit asserts jurisdiction over the person
of the party served.” Omni Capital Int’l, Ltd. v. Rudolf Wolff
& Co., 484 U.S. 97, 104 (1987) (emphasis added) (internal
quotation marks and alteration omitted). Historically, however,
personal jurisdiction in both the civil and criminal contexts
flowed from physical custody or control over the defendant. See
ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707,
710-11 (4th Cir. 2002) (“[T]he limits on personal jurisdiction
were grounded in a court’s power over the actual person of the
defendant. Thus, a person’s ‘presence within the territorial
jurisdiction of a court was prerequisite to its rendition of a
judgment personally binding him.’” (quoting Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)). Over time in the civil
context, “[t]he idea of ‘minimum contacts’ developed as a
surrogate for actual presence in a State but did not alter the
essentially territorial nature of jurisdiction.” Yahoo! Inc. v.
La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199,
1228 (9th Cir. 2006) (en banc) (O’Scannlain, J., concurring in
judgment). Personal jurisdiction in a criminal case is still
based on physical presence, which is usually acquired by taking
the defendant into custody via arrest. See United States v.
Wilson, 721 F.2d 967, 972 (4th Cir. 1983) (“It has long been the
general rule that a court’s power to try a criminal defendant is
not impaired by the government’s use of even forcible abduction
17
to bring the defendant within the court’s jurisdiction.”);
United States v. Rendon, 354 F.3d 1320, 1326 (11th Cir. 2003)
(“A federal district court has personal jurisdiction to try any
defendant brought before it on a federal indictment charging a
violation of federal law.”). Even if physical custody is no
longer necessary to endow a civil court with personal
jurisdiction over a defendant, it is clearly sufficient to do
so. Thus, that the government has physical custody over the
respondent in § 4248 civil commitment proceedings obviates the
need for a summons.
IV.
Next, Perez contends that the district court committed
clear error in finding him to be a “sexually dangerous person.”
18 U.S.C. § 4248(d). “A finding is ‘clearly erroneous’ when
although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Hall, 664 F.3d
at 462 (internal quotation marks omitted).
To obtain a civil commitment order under the Act, the
government must prove three elements by clear and convincing
evidence. See United States v. Wood, 741 F.3d 417, 419 (4th
Cir. 2013). The government first must demonstrate that the
person has previously “engaged or attempted to engage in . . .
child molestation.” 18 U.S.C. § 4247(a)(5); see Wood, 741 F.3d
18
at 419. Second, the government must establish that the person
currently “suffers from a serious mental illness, abnormality,
or disorder.” 18 U.S.C. § 4247(a)(6); Wood, 741 F.3d at 419.
And third, “the government is required to show that the
defendant, as a result of the illness, abnormality, or disorder,
‘would have serious difficulty in refraining from . . . child
molestation if released.’” Wood, 741 F.3d at 419 (quoting 18
U.S.C. § 4247(a)(6)). “Clear and convincing” evidence is
“evidence of such weight that it produces in the mind of the
trier of fact a firm belief or conviction, without hesitancy, as
to the truth of the allegations sought to be established, and,
as well, as evidence that proves the facts at issue to be highly
probable.” Jimenez v. DaimlerChrysler Corp., 269 F.3d 439, 450
(4th Cir. 2001) (internal quotation marks, citations, and
alterations omitted). “[T]he ‘clear and convincing’ standard of
proof is an ‘intermediate standard’ that falls between a ‘mere
preponderance of the evidence’ and ‘beyond a reasonable doubt.’”
Hall, 664 F.3d at 461 (quoting Addington, 441 U.S. at 423-24).
Perez does not dispute that the government established the
first two elements by clear and convincing evidence – (1) that
he previously engaged or attempted to engage in child
molestation and (2) that he suffers from a serious mental
illness, abnormality, or disorder, i.e., pedophilia. Perez
challenges only the district court’s finding that as a result of
19
his pedophilia, “he would have serious difficulty in refraining
from . . . child molestation if released.” 18 U.S.C. §
4247(a)(6). “[T]he 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.” Hall,
664 F.3d at 463 (internal quotation marks omitted). The “‘lack
of control or inability to control behavior will not be
demonstrable with mathematical precision. It is enough to say
that there must be proof of serious difficulty in controlling
behavior.’” Id. (quoting Kansas v. Crane, 534 U.S. 407, 413
(2002)) (alteration omitted).
Perez contends that the government’s evidence rested almost
entirely on his criminal offense history and failed to
adequately account for Perez’s current level of volitional
impairment. Perez claims, moreover, that any expert opinion
about his present mental state and capacity for volitional
control rests on speculation, especially, he points out, because
none of the experts who testified at the commitment hearing
interviewed him.
First, we reject Perez’s suggestion that the district
court’s substantial consideration of his criminal offense
history was erroneous or improper. Although “[t]he nature of
[Perez’s] prior crimes may well be a historical factor, . . . it
20
is by no means a stale or irrelevant one. When the question is
whether an inmate suffering from pedophilia 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.
Moreover, it is not entirely accurate to suggest that each
expert evaluation was completed without Perez being interviewed.
Although Perez refused to submit to pre-hearing interviews with
the government’s psychologists, he ultimately participated to
some extent in Dr. Plaud’s interview. 2 Perez refused to discuss
his offense history with Dr. Plaud, but he did comment generally
on his sexual history, denying pedophilic sexual arousal and
“presenting himself as a . . . non-violent, moral heterosexual
male.” J.A. 109. Despite this self-characterization, Perez
admitted to Dr. Plaud that he had never experienced sexual
relations with an adult woman. Because these comments were so
completely at odds with Perez’s offense history, his statements
during the interview raised concerns for Dr. Plaud that Perez
possibly suffered “cognitive distortions, bordering on
2
Dr. Plaud explained that “[a]t the outset, Mr. Perez did
not indicate . . . that he even wanted to participate in the
interview” but that Perez “reconsidered as [Dr. Plaud] began to
leave.” J.A. 108.
21
delusion[s]” regarding his sexuality. J.A. 110. 3 Perez also
told Dr. Plaud that he does not need sexual offender treatment,
supporting Dr. Plaud’s belief that Perez is “an untreated
pedophile who is actively denying his sexual arousal patterns.”
J.A. 111. Dr. Plaud indicated that he learned nothing from the
clinical interview that suggested Perez ever acquired the
ability to regulate and control his sexual impulses or that he
“has the present-day ability to monitor and control his sexual
impulses.” J.A. 230. Significantly, Drs. Malinek and Ross both
considered Perez’s statements to Dr. Plaud and incorporated them
into their own analyses. Accordingly, the lack of a formal
interview with either Dr. Malinek or Dr. Ross—which was of
Perez’s own making—did not render either report unreasonable or
speculative.
We conclude that the government easily presented sufficient
evidence to support the conclusion that, by clear and convincing
evidence, Perez, as a result of his pedophilia, “would have
serious difficulty in refraining from . . . child molestation if
released.” 18 U.S.C. 4247(a)(6). First, the government
submitted written evaluations conducted by its expert
3
Dr. Plaud also observed, however, that it was difficult to
determine “how serious . . . he took the entire interview
process” and that Perez may have been merely trying to “elicit a
reaction” from Dr. Plaud by claiming to be a heterosexual male.
J.A. 110.
22
psychologists, Drs. Malinek and Ross. Both experts considered
(1) actuarial scales incorporating static risk factors for sex
offenders to determine a statistical likelihood that Perez would
engage in child molestation again, and (2) dynamic risk factors
from the STABLE-2007 scale. “[U]nlike static factors, which
typically are historical and do not change, a dynamic risk
factor refers to something that has the capacity to change over
time, for example with treatment.” United States v. Bolander,
722 F.3d 199, 209 (4th Cir. 2013).
Dr. Malinek “considered the most recent published studies
and risk assessment formulas” to determine whether Perez would
at the time of the evaluation have serious difficulty refraining
from child molestation if released from BOP custody. Dr.
Malinek applied three different actuarial scales “that assess
baseline recidivism risk in sexual offenders.” J.A. 214.
First, Perez’s risk of reoffending was assessed using the
Static-99R scale, which incorporates numerous static factors
such as prior sex offenses, age at release, and whether the
person had any “unrelated victims,” “stranger victims,” or “male
victims.” J.A. 215. Dr. Malinek scored Perez a 4 on the
Static-99R, which placed him in the moderate-high risk category
and suggested “recidivism rates of 15.4% in five years and 22.6%
in ten years.” J.A. 218. Second, Dr. Malinek used the Static
2002-99R scale. This risk assessment formula takes into account
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five static categories, including age, persistence of sexual
offending, deviant sexual interests, relationship to the
victims, and general criminality. Dr. Malinek scored Perez a 7
on the Static-2002R, placing him in the moderate-high risk
category. Offenders assessed with a similar score and grouping
as Perez “have been found to sexually reoffend at a rate of 25.2
percent in five years and 35.8 percent in ten years.” J.A. 220.
Finally, Perez was assessed using the Minnesota Sex Offender
Screening Tool-Revised (MnSOST-R). Dr. Malinek gave Perez a
score of 12 on the MnSOST-R, placing him in the high risk
category with an “expected recidivism rate within six years of
release [of] 30 percent.” J.A. 221.
Dr. Malinek then considered a number of dynamic risk
factors taken from the STABLE-2007 scale “that have been
statistically liked with both increased recidivism and decreased
recidivism.” J.A. 221. “Significant Negative Social Influence”
for example, is a well-established predictor of general
recidivism that, in Dr. Malinek’s view, suggests an increased
risk of re-offending for Perez, who had “family, friends, and
acquaintances who are criminally involved, have past sexual
offenses, . . . or who minimize or deny [Perez’s] sex crimes.”
J.A. 223. Specifically, Perez’s father lived with him during
the time that he kept two Mexican boys in his home and sexually
abused them. Dr. Malinek highlighted the impulsive nature of
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Perez’s sexually deviant conduct, exemplified by his having
begun molesting his most recent victims immediately after
meeting them. Dr. Malinek also noted that Perez’s pedophilia is
a chronic condition and that it is unlikely that “his decades-
long deviant interest in boys has abated simply as a function
[of the] passage of time,” J.A. 225; and that Perez has molested
new victims while on supervised release or on bond for similar
offenses, and that there was no information to suggest that
Perez had ever maintained a stable intimate relationship.
Based on his assessment using the foregoing static and
dynamic risk factors, Dr. Malinek concluded in his report that
Perez met the statutory criteria for civil commitment as a
sexually dangerous person. Dr. Malinek reiterated this opinion
during his testimony at the hearing, emphasizing the chronic
nature of his long-term pedophilic fixation, and the impulsive
and brazen nature of his sexual offense against children:
[Perez’s pedophilia] has spanned for decades, has led
him to engage in sexual molestation of multiple boys
over a period of 25 years. . . .
. . . His pedophilic urges have repeatedly led him to
act out, have been evident in volitional impairments
time and again, have been evident in [the] predatory
search for victims, have been evident in both
opportunistic and predatory crimes, have been evident
in recidivism on three occasions . . . and while on
conditional release on three separate occasions.
. . .
. . . These are mostly stranger children that he’s
never met before. . . .
25
. . .
[T]here is no evidence that he had developed any
emotional attachment or relationship with these kids.
It looks like this was a predatory search for the
primary purpose of sexual victimization to me.
J.A. 127-130. Dr. Malinek viewed the impulsive and public
nature of Perez’s offenses as particularly illustrative of the
danger he poses to his preferred victims:
The crimes here are both impulsive and predatory . . .
in the sense that he takes advantage of an opportunity
when it presents itself, there’s always a significant
level of impulsivity evident in it.
The reference to crimes occurring in a public place,
in the changing room of a Dillard department store in
1982 or in the street as happened in November of 1982,
clearly speaks to . . . brazen, high-risk behavior,
[in view of] the fact that he could be detected, or
that the mother of the boy he molested who he was
trying to sell newspapers to, she could identify him.
. . . [T]he urge develops very quickly, he acts out on
it right away in a public place.
J.A. 131. Finally, Dr. Malinek testified that Perez’s
statements to Dr. Plaud within six months of the hearing
reaffirmed his opinion that Perez would have difficulty
refraining from child molestation. Specifically, Perez’s
admission that he never had sexual relations with an adult
female “means that he is probably an exclusive, fixated
pedophile” and that “kids are his only way to meet his sexual
needs.” J.A. 140. Moreover, Dr. Malinek observed that his
“presentation of himself” to Dr. Plaud as interested in adult
heterosexual relationships suggested he was in denial of his
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disorder and therefore unlikely to change simply with the
passage of time.
Dr. Ross also provided a written evaluation addressing
Perez’s sexual dangerousness under § 4248. Like Dr. Malinek,
Dr. Ross assessed Perez’s statistical risk of recidivism using
static risk factors under the Static-99R scale and then further
evaluated the statistical results in light of various dynamic
risk factors taken from the STABLE-2007 scale. Dr. Ross scored
Perez a 3 on the Static-99R, which put him in the low-moderate
risk category “with about a 9.3% likelihood for being arrested
or convicted of a new sexual offense within 5 years post-
incarceration and about a 14.5% likelihood . . . in 10 years.”
J.A. 197. Dr. Ross, however, noted that her score
underestimated his actual risk due to the scoring of his age
under the Static-99R, which reflects the general tendency for an
offender’s risk of reoffending to decrease significantly after
age 60. Dr. Ross concluded that “[t]his does not seem likely in
Mr. Perez’s case, however, due to his long history of sexual
offending, as well as the fact that his most recent offenses
(which occurred when he was between 45 and 47 years old) were
also his most egregious.” J.A. 196. Ultimately, Dr. Ross
opined that Perez would have serious difficulty refraining from
child molestation upon release from prison.
27
At the hearing, Dr. Ross strengthened her opinion based on
Perez’s statements as recounted by Dr. Plaud. Dr. Ross
testified that she would now score Perez a 4 on the Static-99R,
as did Dr. Malinek, in view of Perez’s admission—of which Dr.
Ross was previously unaware—that he has never had a sexually
intimate relationship with an adult. Dr. Ross also emphasized
many of the same factors that Dr. Malinek found suggestive that
Perez would experience serious difficulty refraining from child
molestation, including the impulsive, brazen and public nature
of his pedophilic offenses; the chronic nature of Perez’s
disorder; and his refusal to participate in sexual offender
treatment.
Dr. Plaud, who was initially engaged on behalf of Perez,
was also called by the government to testify. In a written
evaluation prepared pre-trial, Dr. Plaud reported that although
“from a statistical perspective Mr. Perez is at this time [a]
low risk to re-offend sexually . . . , there is evidence that he
may have ongoing and serious difficulty in refraining from
further acts of child molestation if he were released.” J.A.
230. Dr. Plaud concluded finally that “[a]t best the data in
this case are equivocal; however, I cannot opine that Mr. Perez
is not a sexually dangerous person at this time.” J.A. 231.
At the evidentiary hearing, however, Dr. Plaud unequivocally
stated that he considered Perez “sexually dangerous” under the
28
Act: “I am unpersuaded that [Perez] has developed the skills to
control his sexual behavior as a function of increased age,
because I think he is so actively denying the very basis of his
sexual arousal towards pre-pubescent-aged males . . . . That’s
why I think he’s sexually dangerous.” J.A. 112-13.
Although the district court recognized and considered the
statistical rates of recidivism based on the various actuarial
scales, the court explained that it “affords them less weight
than respondent’s past and current conduct, and the testimony of
the experts as a whole.” J.A. 179. The district court noted
that each of the testifying experts identified several factors
as indicative of Perez’s lack of volitional control, including
Perez’s impulsivity, failure to cooperate while on supervised
release, and his brazen and risky behavior despite previous
legal sanctions. The district court also gave significant
weight to Perez’s lack of sex offender treatment and his
apparent denial of pedophilic sexual interest. And, the
district court concluded, based on testimony from all three
experts, that Perez’s age did not mitigate his risk of
recidivism in light of all of the other risk factors.
In sum, the district court carefully considered the
evidence before it, and its factual findings represent a
permissible and reasonable interpretation of the evidence
presented at the hearing. Because we are not “left with the
29
definite and firm conviction that a mistake has been committed”
by the district court, Hall, 664 F.3d at 462 (internal quotation
marks omitted), we cannot say that the district court clearly
erred in finding, by clear and convincing evidence, that Perez
is sexually dangerous within the meaning of the Act.
V.
Finally, Perez contends that (1) the Act deprives him of
equal protection under the Fifth and Fourteenth Amendments, and
(2) the Act imposes an unconstitutional criminal punishment.
Both of these arguments are foreclosed by our decision in Timms.
See 664 F.3d at 449, 455. Accordingly, we reject these
arguments.
VI.
For the foregoing reasons, the order of the district court
is
AFFIRMED.
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