PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-6181
UNITED STATES OF AMERICA,
Petitioner - Appellant,
v.
OLIVER LEE WHITE,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:17-hc-02162-D)
Argued: May 8, 2019 Decided: June 18, 2019
Before NIEMEYER, DIAZ, and RICHARDSON, Circuit Judges.
Reversed and remanded with instructions by published opinion. Judge Niemeyer wrote
the opinion, in which Judge Diaz and Judge Richardson joined.
ARGUED: Benjamin M. Shultz, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant. Jaclyn Lee DiLauro, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee. ON BRIEF: Joseph H.
Hunt, Assistant Attorney General, Mark B. Stern, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Robert J. Higdon, Jr., United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellant. G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee.
NIEMEYER, Circuit Judge:
With its filing of a certificate in the district court that Oliver White is a “sexually
dangerous person,” the government commenced this civil proceeding under 18 U.S.C.
§ 4248 to commit White to the custody of the Attorney General. After ordering and
receiving a mental examination of White, the district court found that White was
“mentally incompetent to understand the nature and consequences of the section 4248
proceeding against him and to assist properly in his defense in the section 4248
proceeding” and therefore dismissed the proceeding. A proceeding under § 4248 would
have required the government to prove that White (1) “engaged or attempted to engage in
sexually violent conduct or child molestation,” (2) “suffers from a serious mental illness,
abnormality, or disorder,” and (3) “would have serious difficulty in refraining from
sexually violent conduct or child molestation if released.” Id. § 4247(a)(5), (6). The
district court held that § 4248 “permits a court to dismiss a section 4248 proceeding
against an incompetent person who contests all three elements” and alternatively that
“permitting such a [§ 4248 proceeding] and ensuing commitment would violate
procedural due process as applied to that person.”
On appeal, the government contends that the district court erred in both rulings,
and we agree. We therefore reverse the district court’s judgment and remand with
instructions to conduct a hearing on the § 4248 proceeding initiated against White.
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I
White, now 31, is an intellectually disabled Native American man who was born
in Crow Agency, Montana. His biological mother could not care for him because she
abused alcohol and drugs, and he suffered from fetal alcohol syndrome. With an IQ of 55
or 56 and elementary math and reading skills, he struggled in school and in gaining
employment. As one doctor summarized, White’s “thought process was clearly
impoverished, his mood was confused, [and] his affect was shallow.”
In 2009, when White was 21, a federal grand jury in the District of Montana
indicted him for the sexual abuse of four female minors under the age of 12. The
government, however, dismissed the charges as part of a deferred prosecution agreement
in which White agreed to reside with his mother and have no further contact with minors.
In 2012, a federal grand jury in the District of Montana indicted White for a
second time, charging him with abusive sexual assaults of female minors under the age of
12. After White was found incompetent to stand trial, the court dismissed the charges
and released White to his family.
On July 22, 2016, for a third time, a federal grand jury in the District of Montana
indicted White, charging him with aggravated sexual abuse of female minors under the
age of 12. Again, after White was found incompetent to stand trial, the court dismissed
the charges.
While White was in custody at the Federal Medical Center in Butner, North
Carolina, for a mental examination in connection with the 2016 charges, the government
filed a certificate in the district court under 18 U.S.C. § 4248(a), certifying that White
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was a “sexually dangerous person” and petitioned the court to commit White to the
custody of the Attorney General. In its certificate, the government pointed to the past
charged conduct and to psychological assessments of White to claim that White was a
“sexually dangerous person” under § 4248.
After receiving the certificate, the district court directed the Federal Public
Defender to represent White and appointed a licensed psychiatrist as a mental health
examiner of White. White’s counsel then filed motions for the appointment of a guardian
ad litem, to dismiss the § 4248 certificate filed against him, and, in the alternative, for a
competency hearing, contending that White’s mental incompetence would preclude
subjecting him to a § 4248 hearing.
The district court granted the motion to appoint a guardian ad litem and, before
conducting a § 4248 hearing, ordered a competency hearing “to determine whether White
is presently suffering from a mental disease or defect rendering him mentally
incompetent to the extent that he is unable to understand the nature and consequences of
the proceeding under 18 U.S.C. § 4248 against him or to assist properly in his defense.”
In ordering the competency hearing, the court overruled the magistrate judge, who
recommended that White’s motion for a competency hearing be denied because §§ 4241
and 4248 contemplate commitment for individuals in White’s “exact situation.”
After conducting the competency hearing, the court determined that “White [was]
currently suffering from a mental disease or defect, . . . which render[ed] White unable to
understand the nature and consequences of the § 4248 proceeding against him and to
assist properly in his defense in the § 4248 proceeding.” Given that White contested all
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three elements of § 4248 — (1) that he had previously “engaged or attempted to engage
in sexually violent conduct or child molestation”; (2) that he “suffers from a serious
mental illness, abnormality, or disorder”; and (3) that as a result, he “would have serious
difficulty in refraining from sexually violent conduct or child molestation if released,” 18
U.S.C. § 4247(a)(5), (6) — the court expressed concern, particularly because White
contested the element requiring proof of prior conduct, that “the respondent face[d] the
prospect of indefinite commitment arising from a trial focused on both his past conduct
and present mental condition even though he lack[ed] the capacity to understand the
section 4248 trial or to participate rationally in his defense.” Concluding that § 4248
allowed it to dismiss the § 4248 proceeding “against an incompetent person who contests
all three elements” and alternatively that conducting a § 4248 proceeding would violate
White’s constitutional right to procedural due process, the court granted White’s motion
to dismiss the proceeding.
From the district court’s judgment dated December 6, 2018, the government filed
this appeal.
II
We address first whether § 4248 or any other related provision in Chapter 313 of
Title 18 permits a district court to dismiss a § 4248 proceeding against a person because
he is mentally incompetent.
Section 4248 was enacted in 2006 as part of the Adam Walsh Child Protection and
Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, to “protect children from sexual
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exploitation and violent crime,” id., in the context of a “growing epidemic of sexual
violence against children,” H.R. Rep. No. 109-218, pt. 1, at 20 (2005). The provision
was included as an addition to Chapter 313 of Title 18 (18 U.S.C. §§ 4241–4248), which
addresses “Offenders with Mental Disease or Defect.” Section 4248 itself was included
as “a modest addition to a set of federal prison-related mental-health statutes that have
existed for many decades,” and it “focuses directly upon persons who, due to a mental
illness, are sexually dangerous.” United States v. Comstock, 560 U.S. 126, 137, 141
(2010).
Section 4248 provides that after the government files a certificate with a district
court that a person “is a sexually dangerous person,” the court “shall order a hearing” to
determine whether the person is indeed a sexually dangerous person. 18 U.S.C.
§ 4248(a). For a person to be found “sexually dangerous,” the government must
demonstrate that the person (1) has “engaged or attempted to engage in sexually violent
conduct or child molestation”; (2) “suffers from a serious mental illness, abnormality, or
disorder”; and (3) “would have serious difficulty in refraining from sexually violent
conduct or child molestation if released.” 18 U.S.C. § 4247(a)(5), (6); see also
Comstock, 560 U.S. at 129; United States v. Antone, 742 F.3d 151, 158 (4th Cir. 2014).
If the court finds, “by clear and convincing evidence,” that the person is a sexually
dangerous person, then it must commit the person to the custody of the Attorney General,
id. § 4248(d), who is charged to treat the person and release him if and when a court
finds, by a preponderance of the evidence, that the person is no longer dangerous or no
longer dangerous under prescribed conditions of release, id. § 4248(a), (d), (e).
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Section 4248 makes no provision for the release of a person subject to a
government certificate because the person is “mentally incompetent.” Indeed, § 4241(d)
indicates otherwise. Under that section, which addresses hearings for mental
incompetency in the context of criminal proceedings, if the person is found mentally
incompetent “to the extent that he is unable to understand the nature and consequences of
the proceeding[s] . . . against him or to assist properly in his defense,” the court must
commit him to the Attorney General for hospitalization. 18 U.S.C. § 4241(d). And if
hospitalization does not sufficiently alleviate the condition — i.e., if the person is
unlikely to regain competency — “the defendant is subject to the provisions of . . .
§ 4248.” Id. And § 4248 accordingly provides for civil commitment following a hearing
if the court finds that the person is sexually dangerous. Id. Indeed, § 4248 explicitly
recognizes its role following a hearing under § 4241 for mental incompetency. See id.
§ 4248(a) (addressing persons committed to the custody of the Attorney General
“pursuant to § 4241(d)”). There is little doubt that § 4248 applies to persons found
mentally incompetent under § 4241.
Of course, to read into these provisions a defense that a mentally incompetent
person who is sexually dangerous cannot be committed to the custody of the Attorney
General under § 4248 would defeat the core purpose of the statute — to protect the public
from sexually dangerous persons. Under such a reading, a mentally incompetent person,
who had raped women on three separate occasions, but never stood trial for the rapes
because he was mentally incompetent, could not be removed from society under § 4248,
thus leaving the public with the very risk that § 4248 was designed to eliminate. See
7
Comstock, 560 U.S. at 141 (noting that § 4248 is designed to protect the public from
mentally ill individuals who are sexually dangerous); United States v. Comstock, 627
F.3d 513, 520 n.2 (4th Cir. 2010) (recognizing that criminal defendants found mentally
incompetent to stand trial are appropriately subject to § 4248 proceedings because they
“may have committed the criminal offense due to their mental illness or incompetence”).
Chapter 313 of Title 18 explicitly recognizes the problem of mentally incompetent
persons who are dangerous to society, providing expressly for their commitment, whether
they are simply dangerous persons (addressed by § 4246) or sexually dangerous persons
(addressed by § 4248). In both circumstances, commitment is subject to the procedures
and safeguards expressly provided in each of those sections.
In this case, the district court, after receiving the government’s § 4248 certificate,
determined to conduct an initial hearing to determine whether White was mentally
competent. The government objected to such a hearing because the need to determine
mental incompetency related legally only to criminal proceedings and a finding under
§ 4241 that one was mentally incompetent would not address any requirement for
commitment under § 4248. The court overruled the objection and conducted a
competency hearing, after which it concluded that White was indeed mentally
incompetent. The court thereupon dismissed the § 4248 proceeding without a § 4248
hearing because, as it explained, White was unable to understand the nature and
consequences of the proceeding and to assist properly in his defense. But in conducting a
mental competency hearing and not a § 4248 hearing, the court failed to recognize that
8
Chapter 313 authorizes a § 4248 hearing for persons found mentally incompetent under
§ 4241.
While all hearings under Chapter 313 are governed by § 4247(d) — see, e.g., 18
U.S.C. § 4241(c); § 4246(c); § 4248(c) — a hearing to determine incompetency is
authorized by § 4241, which the district court did not explicitly recognize, although that
was noted by the magistrate judge. And the court’s conclusion that White’s mental
incompetence precludes his being subject to a § 4248 hearing is in tension with both
§ 4241(d) and § 4248(a). Section 4241(d) explicitly authorizes a § 4248 hearing for a
person found mentally incompetent and whose condition has not improved with
hospitalization. And § 4248(a) provides that § 4248 is applicable to persons found
incompetent under § 4241(d). In short, if a person is found mentally incompetent under
§ 4241 and is not likely to get better, he still remains subject to confinement under § 4248
if he is found “sexually dangerous.” Id. § 4248(a). With this interaction of § 4241 and
§ 4248, we cannot conclude that somehow § 4248 authorizes a court to dismiss a § 4248
proceeding because the person is mentally incompetent. There is simply nothing to
suggest that a mentally incompetent person who is certified to be sexually dangerous
must be released because “he is unable to understand the nature and consequences of the
proceedings against [him] or assist properly in [his] defense.” Id. § 4241(a). Indeed, to
so conclude would eviscerate the core purpose of § 4248.
We therefore hold that Chapter 313 of Title 18, and § 4248 in particular, did not
authorize the district court to dismiss the § 4248 proceeding against White on the ground
that he was found to be mentally incompetent.
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III
The district court separately worried whether the § 4248 proceeding against White
would violate the Due Process Clause in that White “face[d] the prospect of indefinite
commitment” based on “both his past conduct and present mental condition even though
he lacks the capacity to understand the [§ 4248 proceeding] or to participate rationally in
his defense.” In particular, the court focused on White’s ability to defend against proof of
his prior conduct under the statute’s requirement that the government show that he had
“engaged or attempted to engage in sexually violent conduct or child molestation.” 18
U.S.C. § 4247(a)(5). It stated:
The central focus of the first element under the Adam Walsh Act looks
back in time and requires the United States to prove by clear and
convincing evidence at least one instance of actual or attempted sexually
violent conduct or child molestation. In nearly every Adam Walsh Act
case, the respondent does not contest the first element, and the United
States simply presents a judgment of conviction from a criminal case where
the respondent was convicted of actual or attempted sexually violent
conduct or child molestation. In this case, however, White has never been
convicted of any crime, much less actual or attempted sexually violent
conduct or child molestation. Thus, . . . in this section 4248 proceeding, the
United States will have to present witnesses and evidence concerning the
first element. The United States also will present arguments to the court
seeking to persuade the court that the United States has proven that White
has engaged in at least one instance of actual or attempted sexually violent
conduct or child molestation. Likewise, . . . White will have the
opportunity to challenge the government’s evidence and witnesses
concerning the first element, present his own evidence and witnesses, and
present arguments to the court seeking to persuade the court that the
government has failed to prove that White has engaged in at least one
instance of actual or attempted sexually violent conduct or child
molestation.
10
(Footnote omitted). The court thus reasoned that an incompetent person contesting the
prior-conduct element “effectively loses [his] statutory rights because he lacks the ability
to rationally understand the proceeding against him or communicate with his counsel
about the factual allegations at the heart of the first element’s factual inquiry,” concluding
therefore that such a § 4248 proceeding “would not comport with procedural due
process” and citing Mathews v. Eldridge, 424 U.S. 319 (1976). Mathews requires the
application of a test weighing (1) White’s liberty interest; (2) the risk of an erroneous
deprivation of that interest under current procedures; and (3) the government’s interest
and burden of providing any additional procedure that would be required. See id. at 335.
White, of course, agrees with the district court, contending that committing him as
an incompetent person who contests the prior conduct element violates his right to
procedural due process. Applying the Mathews test, he describes his liberty interest as
profound. He describes the risk of erroneous deprivation as “enormous” because, “in
support of a meaningful adversarial process, the statute provides that a respondent is
entitled to counsel, and that he will have the ‘opportunity to testify, to present evidence,
to subpoena witnesses on his behalf, and to confront and cross-examine witnesses who
appear at the hearing.’ But Mr. White cannot do any of those things.” (Quoting 18
U.S.C. § 4247(d)). And addressing the government’s interests, he argues that they are
“not significant in this case” because the government “may not serve those interests by
assuming that a person in Mr. White’s position is sexually dangerous.”
Thus, we are presented with the novel question of whether § 4248 violates the Due
Process Clause insofar as it requires White, a mentally incompetent person, to defend
11
against allegations of past bad sexual acts while he does not understand the proceedings
and cannot assist in his defense.
It is, of course, well established that the Constitution does not permit a mentally
incompetent person to be subject to a criminal trial, see Indiana v. Edwards, 554 U.S.
164, 170 (2008), or a mentally incompetent person to be indefinitely civilly committed
solely on account of his incompetency, Jackson v. Indiana, 406 U.S. 715, 720, 738
(1972). But the Constitution does permit the indefinite civil commitment of a mentally
incompetent person who is also dangerous. See Greenwood v. United States, 350 U.S.
366, 373–75 (1956). Nonetheless, particular aspects of civil commitment statutes have
been subject to constitutional challenges over the years.
In Addington v. Texas, 441 U.S. 418 (1979), the Supreme Court held that the
clear-and-convincing standard of proof, rather than the preponderance-of-the-evidence
standard, must be applied in a civil commitment proceeding. Id. at 427–33. Also, in
Comstock, the Court held that Congress’s enactment of § 4248 was authorized by the
Constitution’s Necessary and Proper Clause. See 560 U.S. 126. And on remand of
Comstock, we held that § 4248’s requirement that past bad sexual acts need only be
proved by clear and convincing evidence rather than beyond a reasonable doubt, does not
violate the Due Process Clause. See Comstock, 627 F.3d 513. But no court, as far as we
are able to ascertain, has held that it is unconstitutional to subject an incompetent person
to indefinite civil commitment under § 4248 when the person challenges all three
elements for such commitment, especially the prior-conduct element.
12
The parties agree that the relevant analysis should be governed by Mathews. See
Addington, 441 U.S. at 425 (applying the Mathews framework to the due process analysis
of a civil commitment statute). Mathews holds that a due process challenge is governed
by a three-factor balancing test, weighing (1) the private interest affected by the official
action; (2) the risk of an erroneous deprivation with the procedures presently used; and
(3) the government’s interest, including the function involved and the fiscal and
administrative burdens associated with additional procedures. Id. at 335.
When we consider the first of Mathews’ three factors, there is no dispute that
White’s liberty interest is extraordinarily weighty. A civil commitment “for any purpose
constitutes a significant deprivation of liberty.” Addington, 441 U.S. at 425. We accept
that proposition as foundational.
In a similar vein, when we consider the third Mathews factor, we agree with the
district court that the government has an “important and substantial interest in delivering
mental health care to sexually dangerous persons who are in federal custody and [in]
protecting the public from such individuals.” See Addington, 441 U.S. at 426
(recognizing that the State has a parens patriae interest in an individual’s mental health
and “authority under its police power to protect the community from the dangerous
tendencies of some who are mentally ill”). Again, we accept this as a weighty factor.
But the dispute between the government and White in this case focuses on the
second Mathews factor — whether, when a person is mentally incompetent, the process
afforded in § 4248 allows too great a risk of an “erroneous deprivation of [the private]
interest through the procedures used.” 424 U.S. at 335.
13
To be sure, White as a mentally incompetent person, cannot be subject to criminal
liability. But the procedures provided in this case are, we conclude, constitutionally
sufficient to commit him in a civil proceeding. In a § 4248 proceeding, the government
must, as White has repeatedly noted, prove that he previously engaged in sexually violent
conduct or child molestation. And because that proof implicates historical facts, White’s
mental incompetency does indeed present him with a challenge in responding to the
government’s case because he is unable to assist in his defense. Nonetheless, we
conclude that the risk of an erroneous deprivation of White’s liberty interest is
substantially and adequately mitigated by the broad array of procedures required for a
§ 4248 commitment, particularly as they apply to incompetent persons.
First, the statute requires that White have counsel, and in this case, he was not
only appointed counsel, he was also provided a guardian ad litem to look after his
interests and assist his counsel. See 18 U.S.C. § 4247(d).
Second, the court must conduct a hearing, and White’s counsel must be able to
subpoena witnesses, present evidence, and cross-examine the government’s witnesses at
that hearing. See id. § 4248(a), (c); id. § 4247(d).
Third, the government must prove the necessary elements, including White’s prior
conduct, by clear and convincing evidence, a burden of proof greater than the
preponderance-of-the-evidence standard that is routine in civil proceedings. See id.
§ 4248(d).
And fourth, the risk that an erroneous factual finding of prior sexual violence or
child molestation will result in civil commitment is substantially mitigated by the
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personal observations and opinions of professionals that are required to prove that White
is “sexually dangerous to others” in that he “suffers from a serious mental illness,
abnormality, or disorder as a result of which he would have serious difficulty in
refraining from sexually violent conduct or child molestation if released” — showings
that the government is required to make. Id. § 4247(a)(5), (6).
In addition, any order of commitment under § 4248 is subject to correction by
multiple mechanisms afforded by the statute. The government must file an annual report
concerning White’s mental condition with recommendations as to the need for continued
commitment. See 18 U.S.C. § 4247(e)(1)(B). Moreover, White’s counsel can seek a
video recording of the interview of White upon which the annual report is based to assist
in the district court’s review of White’s commitment following such reports. See id.
§ 4247(f). Also, White’s counsel can, “at any time” after the first 180 days, file a motion
to have a court determine whether he should be released. See id. § 4247(h). And as
important, when the director of the facility to which White has been committed
determines that he is no longer sexually dangerous, with conditions or not, the director
must promptly certify that fact to the court. See id. § 4248(e). Finally, White retains the
right to challenge the legality of his detention at any time by filing a petition for a writ of
habeas corpus, which is explicitly preserved. See id. § 4247(g).
Under these procedures, it is difficult to conceive of circumstances where a person
such as White would be wrongfully committed, although we recognize there is always
some degree of risk inherent in any type of adversary proceeding, including a § 4248
proceeding. As we explained on remand in Comstock, the Supreme Court approved the
15
constitutionality of the commitment scheme before it in Addington because “layers of
professional review and the concern of family and friends provided continuous
opportunities for an erroneous commitment to be corrected.” 627 F.3d at 521 (cleaned
up). And we concluded that § 4248 “offers the same sort of professional review and
opportunity for correction of an erroneous commitment” by mandating discharge “as
soon as a person ceases to pose a danger to others.” Id.
At bottom, while White’s liberty interest is surely one of the most important to
protect under the Constitution, the government’s police power is also important when
exercised to protect the public from persons found to be unable to control their sexual
dangerousness. The balance struck by § 4248 in serving these interests is, we conclude,
constitutionally sufficient under the Due Process Clause and Mathews.
Accordingly, we reverse the judgment of the district court and remand with
instructions that the court promptly conduct a § 4248 hearing to determine whether White
is sexually dangerous and therefore must be committed to the custody of the Attorney
General.
REVERSED AND REMANDED
WITH INSTRUCTIONS
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