United States v. Cooke

MEMORANDUM OPINION

LOUISE W. FLANAGAN United States District Judge.

Upon allowance May 14, 2020, of respondent's motion filed April 9, 2020, for discharge hearing (DE 220), and after a lengthy discovery period, two-day hearing convened October 21, 2021. Petitioner's motion in limine to exclude the testimony and report of Dr. Andrew A. Young (“Young”) (DE 305) also occupied the court's attention at hearing attended by respondent's counsel James Braxton Craven, III (“Craven”) and Lynne Louise Reid (“Reid”), and petitioner's counsel Genna D. Petre and Mallory Brooks Storus. Respondent made his appearance by videoconference feed from the Federal Correctional Center in Butner, North Carolina (“FCC-Butner”). The court reflects here on aspects of case progress to date, memorializes decisions made at hearing, and outlines a course for the future.

BACKGROUND

The issue before the court is whether respondent has shown by a preponderance of the evidence that he no longer is a sexually dangerous person and therefore can be released from his civil commitment under the Adam Walsh Act Child Protection and Safety Act of 2006 (“Adam Walsh Act”), pursuant to 18 U.S.C. § 4247(h). In addition to documentary evidence made a part

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of the record, the court received testimony at hearing from the following witnesses offered by respondent: 1) Dr. Gary Zinik, Ph.D. (“Zinik”), petitioner's retained expert; 2) Dr. Joseph Plaud, Ph.D. (“Plaud”), respondent's retained expert; and 3) Young. Respondent also testified on his own behalf. The court received further testimony from the following witnesses offered by petitioner: 1) Patrick Cook, Ph.D. (“Cook”), clinical director for the commitment and treatment program (“CTP”) at FCC-Butner; 2) Dr. Lawrence Sichel, M.D. (“Sichel”), respondent's treating physician at FCC-Butner; and 3) Dr. Heather Ross, Ph.D. (“Ross”), Federal Bureau of Prisons (“FBOP”) forensic examiner.

The record shows that in March 1980, at age 17, respondent was involved in a motorcycle accident that left him paralyzed below the waist and confined to a wheelchair. Despite his paralysis, between the date of his accident and his federal arrest in March 2002, respondent committed several contact-based sexual offenses against minors ages 11 to 14. On June 24, 2002, respondent pleaded guilty, in the United States District Court for the Western District of Tennessee, to one count of possession of child pornography and two counts of receipt of child pornography. On October 4, 2002, respondent was sentenced to eighty-seven months' imprisonment and three years' supervised release.

Petitioner filed certificate of a sexually dangerous person as to respondent on March 9, 2009. On September 15, 2010, Craven entered notice of appearance as counsel for respondent. Craven has been respondent's primary counsel since that time. After extensive delays pending resolution of litigation addressing the constitutionality of the Adam Walsh Act, respondent's commitment hearing was held May 22 - 23, 2012. On March 18, 2013, the court found respondent

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was a sexually dangerous person under the Adam Walsh Act and ordered him civilly committed to the custody of the Attorney General.

Respondent, now 59 years old, has been housed at FCC-Butner since his March 2009 certification as a sexually dangerous person. On April 9, 2020, respondent, represented by Craven, moved for discharge hearing pursuant to 18 U.S.C. § 4247(h). Petitioner did not oppose the motion for hearing but requested leave to conduct pre-hearing discovery. The court granted both requests by order entered May 5, 2020. On June 29, 2021, Craven notified the court that Reid would also represent respondent at the hearing on a pro bono basis.

Discovery in the case was protracted and contentious. As pertinent here, respondent retained Young to review his medical records and provide expert opinion as to whether respondent could reoffend sexually given his ongoing medical problems. The timeliness of respondent's disclosure of Young's report and its admissibility at the discharge hearing were the subject of several related discovery motions. Ultimately, on July 30, 2021, the court determined that Young's testimony and report could be offered in evidence at hearing, subject to later exclusion by the court in the event it determined that the testimony did not satisfy the relevance and reliability standards set forth in Federal Rule of Evidence 702 and related case law. On August 5, 2021, the court granted petitioner's motion to reopen discovery to depose Young or take written discovery from him.

On October 14, 2021, one week prior to the scheduled hearing, petitioner filed the instant motion in limine again seeking exclusion of Young's testimony and report pursuant to Federal Rule of Evidence 702 based on new information obtained during the supplemental discovery period. Petitioner argues that the court should exclude Young's testimony and report for the

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following reasons: 1) Young lacks the experience, training, and knowledge to opine as a medical expert; 2) his testimony would be unhelpful and confusing to the court; and 3) his conclusions are not based on experience, methodology, research, or data. The court ordered expedited response, which respondent timely filed on October 18, 2021. Hearing got under way three days later.

COURT'S DISCUSSION

A. Legal Standard

The Adam Walsh Act established a program for civil commitment of individuals in the custody of the FBOP, and others, who are determined to be “sexually dangerous person[s].” 18 U.S.C. § 4248(d). An individual committed under the Act may request discharge hearing pursuant to 18 U.S.C. § 4247(h), provided the motion is not filed within 180 days of a court determination that he is sexually dangerous. At the discharge hearing, respondent must demonstrate by a preponderance of the evidence that he no longer is a sexually dangerous person, or will not be sexually dangerous if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment. 18 U.S.C. §§ 4247(h), 4248(e); see United States v. Shea, 989 F.3d 271, 276 (4th Cir. 2021) (“To obtain a discharge, the committed person carries the burden to show by a preponderance of the evidence that he is no longer sexually dangerous.”).

A “sexually dangerous person” is 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). The phrase “sexually dangerous to others” means that “the person suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious

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difficulty in refraining from sexually violent conduct or child molestation if released.” 18 U.S.C. § 4247(a)(6).

Thus, at the initial commitment hearing, petitioner must show that respondent 1) has previously “engaged or attempted to engage in sexually violent conduct or child molestation”; 2) currently “suffers from a serious mental illness, abnormality, or disorder”; and 3) “as a result of” such condition, “would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” 18 U.S.C. §§ 4247(a)(5), (6), 4248(d); see also United States v. Comstock, 560 U.S. 126, 130 (2010). To obtain discharge pursuant to § 4247(h), respondent must show by a preponderance of the evidence that one of the foregoing conditions no longer applies, or would not apply if the court released him on a prescribed regimen of medical, psychiatric, or psychological care and treatment. See 18 U.S.C. § 4248(e); Shea, 989 F.3d at 276. “The burden of showing something by a ‘preponderance of the evidence,' . . . simply requires the trier of fact ‘to believe that the existence of a fact is more probable than its nonexistence before he may find in favor of the party who has the burden to persuade the judge of the fact's existence.” Concrete Pipe & Prods. of California, Inc. v. Constr. Laborers Pension Tr. for S. California, 508 U.S. 602, 622 (1993) (alterations omitted) (quoting In re Winship, 397 U.S. 358, 371-72 (1970) (Harlan, J., concurring)).

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B. Analysis

The parties stipulated that prong one is satisfied here, and respondent's historical offense conduct establishes he has engaged in prior acts of child molestation. (See Pet'r's Ex. 9 at 3-8). That stipulation is true. Prong one is established in this case.

Prong two addresses whether respondent currently suffers from a serious mental illness, abnormality, or disorder. 18 U.S.C. § 4247(a)(6); Comstock, 560 U.S. at 130. The second prong requires examination of the psychiatric diagnoses proffered by the experts. Such diagnoses, however, are “merely the starting point for the court to consider the true thrust of the § 4247(a)(6) inquiry - whether, on a case-specific basis, the respondent's underlying condition constitutes a serious functional impairment.” United States v. Caporale, 701 F.3d 128, 137 n.4 (4th Cir. 2012).

Zinik and Ross diagnosed respondent with other specified paraphilic disorder, nonexclusive type, also known as hebephilia. Hebephilia is similar to pedophilic disorder, except that the attraction is to pubescent as opposed to prepubescent minors. See id. at 133 (describing criteria for diagnosis of hebephilia); (see also Pet'r's Ex. 9 at 23 (explaining hebephilia is the same as pedophilic disorder with the exception that the attraction is to pubescent minors, generally ages 11 to 14)) The criteria for hebephilia is summarized below:

A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a [pubescent minor or minors]

B. The individual