U.S. v. Broncheau

645 F.3d 676

UNITED STATES of America, Petitioner–Appellant,

v.Donald BRONCHEAU, Respondent–Appellee.United States of America, Petitioner–Appellant,

v.Jeffrey Neuhauser, Respondent–Appellee.United States of America, Petitioner–Appellant,

v.Jerry T. Rogers, Respondent–Appellee.United States of America, Petitioner–Appellant,

v.David Henry Tobey, Respondent–Appellee.United States of America, Petitioner–Appellant,

v.Scott Kevin Combe, Respondent–Appellee.United States of America, Petitioner–Appellant,

v.Mathias Thomas Kopp, Respondent–Appellee.United States of America, Petitioner–Appellant,

v.Edward David Erwin, Respondent–Appellee.United States of America, Petitioner–Appellant,

v.Patrick Caporale, Respondent–Appellee.United States of America, Petitioner–Appellant,

v.Kevin McGreevy, Respondent–Appellee.

Nos. 10–7611

10–7616

10–7617

10–7618

10–7619

10–7620

10–7621

10–7622

10–7623.

United States Court of Appeals, Fourth Circuit.

Argued: March 22, 2011.Decided: May 26, 2011.

ARGUED: Samantha Lee Chaifetz, United States Department of Justice, Washington, D.C., for Appellant. G. Alan DuBois, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellees. ON BRIEF: Tony West, Assistant Attorney General, Mark B. Stern, United States Department of Justice, Washington, D.C.; George E.B. Holding, United States Attorney, R.A. Renfer, Jr., Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellant. Samuel A. Forehand, Samuel A. Forehand, P.A., Raleigh, North Carolina, for Appellee Rogers; Thomas P. McNamara, Federal Public Defender, Raleigh, North Carolina, for all other Appellees.Before KING, GREGORY, and WYNN, Circuit Judges.Vacated and remanded by published opinion. Judge KING wrote the opinion, in which Judge GREGORY and Judge WYNN joined. Judge WYNN wrote a separate concurring opinion.

OPINION

KING, Circuit Judge:

In these consolidated appeals, we are called upon to resolve issues concerning the Adam Walsh Child Protection and Safety Act of 2006, specifically the civil commitment provisions codified at 18 U.S.C. § 4248. Invoking those provisions, the government initiated proceedings in the Eastern District of North Carolina seeking the civil commitment of the Respondents–Appellees—all prisoners in the custody of the Bureau of Prisons (the “BOP”)—because the government has certified them as “sexually dangerous person[s].” After delays precipitated by related litigation challenging the constitutionality of § 4248, the district court collectively dismissed all nine proceedings. See United States v. Broncheau, 759 F.Supp.2d 682 (E.D.N.C.2010) (the “Dismissal Order”).¹ The Dismissal Order reasoned that the proceedings had not been properly instituted because, with respect to prisoners whose sentences include a term of supervised release, § 4241 of Title 18, rather than § 4248, is “the proper way to initiate [civil commitment] proceedings under the Adam Walsh Act.” Id. at 15. The government has appealed, and, as explained below, we vacate the Dismissal Order and remand.

I.

We begin by identifying the applicable statutory provisions and briefly explaining the constitutional challenges to 18 U.S.C. § 4248 that have been heretofore resolved. We then set forth the relevant background of these proceedings.

A.

By the enactment of § 4248, Congress addressed the dangers associated with the release from custody of persons who, because of mental illness, are likely to have difficulty refraining from violent or dangerous sexual conduct. Section 4248 established a statutory mechanism whereby the United States may seek the civil commitment of a “sexually dangerous person” who is in federal custody, even when doing so detains the prisoner beyond the expiration of his sentence of imprisonment. See United States v. Comstock, ––– U.S. ––––, 130 S.Ct. 1949, 1961, 176 L.Ed.2d 878 (2010). A “sexually dangerous person” is defined as “a person who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others.” 18 U.S.C. § 4247(a)(5). In turn, a person is “sexually dangerous to others” if he “suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” § 4247(a)(6).

In order to institute a § 4248 civil commitment proceeding, an authorized official must first certify that the prospective respondent is a “sexually dangerous person.” 18 U.S.C. § 4248(a).² On the basis thereof, the government initiates a § 4248 commitment proceeding by filing the certification in the district court where the respondent is confined. See id. Three categories of sexually dangerous persons are eligible to be so certified: (1) persons “in the custody of the Bureau of Prisons”; (2) persons “committed to the custody of the Attorney General pursuant to section 4241(d)” on the basis of mental incompetency; and (3) persons “against whom all criminal charges have been dismissed solely for reasons relating to the mental condition of the person.” Id. These nine Respondents were each eligible for certification under the first of these three categories, that is, they were (and remain) in the custody of the BOP.

When a § 4248 certification is filed in the district court, the respondent's release from custody is immediately stayed pending completion of the prescribed procedures. See § 4248(a). These procedures include, inter alia, a psychiatric or psychological examination of the respondent (if ordered by the district court pursuant to § 4248(b)), and a hearing conducted in accordance with 18 U.S.C. § 4247(d).³ If, after the hearing, the court finds by clear and convincing evidence that the respondent is a “sexually dangerous person,” it must “commit the person to the custody of the Attorney General.” § 4248(d). Such a respondent remains so committed until he is “no longer sexually dangerous to others.” § 4248(d).⁴

B.

The § 4248 civil commitment process has faced several constitutional challenges since its enactment. See, e.g., United States v. Volungus, 595 F.3d 1 (1st Cir.2010); United States v. Comstock, 551 F.3d 274 (4th Cir.2009) (“ Comstock I ”). In 2007, a district court in this Circuit struck down the commitment scheme of § 4248 on two constitutional grounds: that (1) Congress lacked the authority to enact § 4248; and (2) § 4248's clear and convincing burden of proof contravened the Due Process Clause of the Fifth Amendment. See United States v. Comstock, 507 F.Supp.2d 522 (E.D.N.C.2007). On appeal, we agreed with the district court that enactment of § 4248 exceeded congressional authority, without reaching the due process issue. See Comstock I, 551 F.3d at 276.

In May 2010, the Supreme Court reversed our Comstock I decision, holding that Article I of the Constitution conferred sufficient authority for Congress to enact § 4248. See Comstock, 130 S.Ct. at 1954 (recognizing that Constitution grants authority for Congress “to enact § 4248 as necessary and proper for carrying into Execution the powers vested by the Constitution” (internal quotation marks omitted)). The Court remanded for an assessment of the unresolved issue of whether § 4248's clear and convincing burden of proof abridged a certified respondent's Fifth Amendment due process rights. See id. at 1965. On December 6, 2010, we concluded that the burden of proof under § 4248 did not, on its face, offend the Fifth Amendment, and thus reversed the district court. See United States v. Comstock, 627 F.3d 513, 524–25 (4th Cir.2010) (“ Comstock II ”).

C.

The relevant facts underlying these consolidated appeals are substantially similar. The nine Respondents are incarcerated at the Federal Correctional Institute at Butner, North Carolina (“FCI–Butner”), and they were—when their respective certifications were made—about to be released from BOP custody and begin serving previously imposed terms of supervised release.⁵ Shortly before each Respondent was to be released, however, the government instituted a § 4248 civil commitment proceeding, filing a certification that the particular Respondent was in the custody of the BOP, a “sexually dangerous person,” and “sexually dangerous to others.” Pursuant to § 4248(a), the filing of these certifications stayed release of the Respondents.

Although the government has consistently acknowledged that the Respondents are entitled to hearings and rulings on the merits of their respective § 4248 certifications, no such hearings have been conducted and the § 4248 procedures have not been completed. By way of explanation, the § 4248 proceedings were initially stayed by the district court pending resolution of the constitutional issues presented in the Comstock litigation. After the Supreme Court reversed Comstock I, however, the Chief Judge of the district court entered a standing order establishing, inter alia, procedures by which § 4248 respondents could request merits hearings on their certifications, rather than await judicial determination of pending constitutional issues in other litigation. See Standing Order, 10–SO–01 (E.D.N.C. Aug. 4, 2010).

By September 2010, each of the Respondents had filed a motion to dismiss his § 4248 commitment proceeding. These dismissal motions were predicated primarily on the constitutional contentions being pursued in the Comstock litigation.⁶ On October 29, 2010, before Comstock II resolved the Fifth Amendment burden-of-proof issue in favor of the government, the district court entered its Dismissal Order.

It is undisputed that the Respondents were each in the custody of the BOP when they were certified, pursuant to § 4248(a)'s first category of eligible persons, as sexually dangerous, as well as when these commitment proceedings were instituted. Nonetheless, the district court dismissed the nine commitment proceedings, expressing its concern that continuing to hold the Respondents at...