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Opinions – 2/6/12: 4th U.S. Circuit Court of Appeals

Administrative Law

Civil commitment

BOTTOM LINE: The U.S. District Court did not err in finding that the government failed to prove by clear and convincing evidence that defendant was “a sexually dangerous person,”; the court reasonably found one expert’s opinion to be more credible than the others offered as to whether defendant would have serious difficulty in refraining from child molestation if released, and the court’s factual findings were a permissible and reasonable interpretation of the evidence.

CASE: United States v. Hall, No. 11-7102 (decided Jan. 9, 2012) (Judges TRAXLER, Motz & Agee). RecordFax No. 12-0109-60, 18 pages.

COUNSEL: Ian Samuel, United States Department of Justice, Washington, for Appellant. Eric Brignac, Suzanne Little, Office of the Federal Public Defender, Raleigh, NC, for Appellee.

FACTS: This case arose out of the federal government’s initiation of civil commitment proceedings against Clyde Hall via a certification that Hall was a “sexually dangerous person” under the Adam Walsh Protection Act, 18 U.S.C. §4248.

Hall’s first conviction for a sexual offense occurred in 1989, when he was 21. Hall pled guilty to one count of unlawful sexual contact and one count of gross sexual misconduct. Hall’s second conviction for a sexual offense occurred in 1999, when he was 33. Hall pled guilty to one count of acting in a manner injurious to a child, a class A misdemeanor offense. In September of 1999, Hall was released from state custody. However, he was immediately arrested by federal authorities and convicted in New York of possession of child pornography. He was sentenced to 63 months’ imprisonment and three years of supervised release.

While incarcerated, Hall participated in a sex offender treatment program at the Federal Corrections Institute (“FCI”) at Butner, North Carolina. In 2002, Hall completed the program and prepared a release prevention plan. In April 2004, Hall was released to federal supervision, during which he continued to participate in sex offender treatment. In February 2006, Hall’s supervised release was revoked for violations of the program rules.

In June 2006, Hall was again released to a community corrections center and, in December 2006, from the corrections center into the community. In September 2006, Hall gave no deceptive answers to polygraph questions designed to ensure that he was not reoffending. There were no reports of any sexual offenses committed by Hall against minors during his two periods of supervised release and, therefore, no evidence that Hall had committed a sexual molestation offense against a child since the 1999 incident in New York.

In January 2007, the United States Probation Office was notified that Hall had viewed pornography and engaged in sex with another adult. Hall’s supervision was again revoked, and he was additionally charged and convicted for failure to register as a sex offender. In April 2008, Hall was sentenced to 25 months’ imprisonment and 25 years’ supervised release. Hall’s projected release date from prison was June 24, 2009. However, several months before his release date, he was transferred to FCI Butner for an evaluation of his sexual dangerousness.

On June 19, 2009, the BOP certified that Hall was a “sexually dangerous person” pursuant to §4248(a), automatically staying his release pending an evidentiary hearing. Hall requested an evidentiary hearing on the issue of his sexual dangerousness. The district court found that the government had failed to prove by clear and convincing evidence that Hall was a “sexually dangerous person” within the meaning of the Act.

The government appealed to the 4th Circuit, which affirmed.

LAW: To obtain a commitment order against Hall, the government was required to establish by clear and convincing evidence that: (1) Hall had engaged or attempted to engage in child molestation in the past; (2) Hall currently suffered from a serious mental illness, abnormality, or disorder; and (3) as a result of the illness, abnormality, or disorder, Hall would have serious difficulty in refraining from child molestation if released. 18 U.S.C. §4247(a)(5); 18 U.S.C. §4247(a)(6).

In this case, there was no dispute as to the first two factors. The crux of this appeal, therefore, was whether the district court erred in finding that the government failed to prove, by clear and convincing evidence, that Hall, as a result of these disorders, would have serious difficulty in refraining from child molestation if released from custody. 18 U.S.C. §4247(a)(6).

Three clinical and forensic psychologists evaluated Hall and testified at his evidentiary hearing, two on behalf of the government and one on behalf of Hall. In addition, Hall testified on his own behalf. The experts, utilizing actuarial tests, psychological tests, and their clinical judgment, arrived at conflicting opinions. Two of the experts testified that Hall would have serious difficulty refraining from child molestation if released and that Hall, therefore, was sexually dangerous within the meaning of §4248. The third expert, Dr. Luis Rosell, testified that Hall would not have serious difficulty refraining from child molestation if released.

Like the experts testifying against Hall, Dr. Rosell used psychological tests and actuarial tools in his evaluation of Hall. Of particular significance, Rosell was persuaded by the fact that Hall had a limited history of child molestation offenses and a limited number of child victims, had undergone sex offender treatment, and had demonstrated, by being in the community for 28 months without a hands-on offense, that he could refrain from engaging in child molestation despite ample opportunity to do so. Applying individual factors, Rosell opined that Hall was not a sexually dangerous person.

After weighing the conflicting testimony of the expert witnesses, the district court found the opinion of Rosell to be the most well-reasoned and persuasive of the expert opinions. The district court additionally found Hall to be a credible witness. The district court’s application of the statutory standards to the evidence was not erroneous, and its factual findings represented a permissible and reasonable interpretation of the evidence presented at the hearing.

Accordingly, the district court’s order dismissing the government’s commitment action was affirmed.

Constitutional Law

Equal Protection

BOTTOM LINE: Federal statute authorizing the civil commitment of “sexually dangerous persons” within custody of the Bureau of Prisons did not violate Equal Protection Clause. There was a rational basis for distinguishing between sexually dangerous persons in and out of BOP custody, since individuals in BOP custody are one of the few groups within Congress’s limited police power.

CASE: United States v. Timms, No. 11-6886, 11-6941 (decided Jan. 9, 2012) (Judges Traxler, Motz & AGEE). RecordFax No. 12-0109-60, 34 pages.

COUNSEL: Ian Samuel, U.S. Department of Justice, Washington, for the United States. Kearns Davis, Brooks, Pierce, McLendon, Humphrey & Leonard, Greensboro, NC, for Gerald Timms.

FACTS: In October 2008, the United States filed a certificate in district court seeking to commit Gerald Timms as a “sexually dangerous person” under §4248 of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248 §302, 120 Stat. 587, 620-22. Section 4248 authorizes the civil commitment of individuals in the custody of the Bureau of Prisons (“BOP”) who are determined to be “sexually dangerous persons.” The §4248 commitment process begins when the Attorney General, the Director of the BOP, or their designee certifies an individual as a “sexually dangerous person” in the district court where that individual is in custody. The certification automatically stays the prisoner’s release from BOP custody.

At the time, Timms was in BOP custody, serving a 100-month sentence for soliciting and receiving child pornography by mail. He was scheduled to be released from BOP custody on November 11, 2008, but upon the Government’s §4248 certification, Timms’s release was stayed, and his commitment proceeding was placed in abeyance pending the outcome of the first challenge constitutional challenge to §4248 in United States v. Comstock, 551 F.3d 274 (4th Cir. 2009), rev’d, 130 S. Ct. 1949 (2010) (“Comstock I”). Timms filed a separate pro se habeas corpus action pursuant to 28 U.S.C. §2241, requesting that §4248 be declared unconstitutional such that he would be entitled to a writ of habeas corpus.

In January 2009, the 4th Circuit decided in Comstock I that Congress lacked constitutional authority to enact §4248. The Supreme Court granted certiorari. During this time, the district court’s stay remained in effect, thus holding Timms beyond the date of his scheduled release from federal custody for the service of his criminal sentence. While the Comstock I appeal was pending, initial hearings were conducted in Timms’s habeas proceeding. The judge ultimately granted the petition for habeas corpus, holding that §4248 was unconstitutional (both on its face and as applied to Timms), and ordered Timms’ release. The release was stayed pending the Government’s appeal.

In May 2010, the Supreme Court issued its opinion in Comstock, reversing the 4th Circuit decision that §4248 was unconstitutional. The Supreme Court remanded the case to the 4th Circuit to consider additional grounds not decided in Comstock I, upon which the district court had held §4248 unconstitutional.

In December 2010, that court reversed the district court’s judgment concerning the burden of proof under §4248 (“Comstock II”), as well as the district court’s judgment granting Timms’s request for habeas corpus relief. Both cases were remanded to the district court, with instructions for the court in Comstock II to proceed to the merits with the commitment actions, and in the Timms case, to dismiss the habeas petition without prejudice.

In February 2011, Timms moved for dismissal of his case and for release from custody on a variety of constitutional grounds, or in the alternative, for the court to hold a hearing on the merits as to whether Timms could be civilly committed as a “sexually dangerous person” under §4248. The judge granted the motion to hold the commitment hearing, but deferred consideration of the constitutional challenges raised in the motion to dismiss. The district court ultimately concluded that the constitutional violations warranted dismissal, and ordered that Timms be released immediately. The district court’s final order did not, however, address the merits of whether Timms was a “sexually dangerous person.”

The Government moved in the district court to continue the stay pending appeal, and subsequently appealed to the 4th Circuit, which reversed on the grounds stated by the Government and remanded the case for the district court to determine whether Timms satisfied the criteria for commitment as a “sexually dangerous person.”

LAW: On appeal, the Government argued that the district court erred in finding that §4248 deprived Timms and other similarly situated individuals in BOP custody of equal protection. Legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985). Because the Supreme Court has never required greater than rational basis review in the context of civil commitment, rational basis review is the generally-applicable standard. See Baxstrom v. Herold, 383 U.S. 107 (1966). Under rational basis review, a classification enjoys a strong presumption of validity and is constitutional as long as there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. Heller v. Doe, 509 U.S. 312, 320 (1993).

The Equal Protection Clause commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike. City of Cleburne, 437 U.S. at 439. However, at the most basic level, individuals in BOP custody are not similarly situated to individuals who are

not in BOP custody. In contrast to the statute in Baxstrom, which provided for civil commitment of prisoners and non-prisoners alike, §4248 authorizes the civil commitment of only certain prisoners, primarily those in BOP custody. That limitation is rationally related to the fact that Congress, unlike the several states, lacks a general police power. As such, it was not a “capricious” classification based on the status of incarceration, but rather a reasonable recognition that individuals in BOP custody are one of the few groups of persons falling within Congress’s limited police power.

Consequently, the district court erred in concluding that there was no rational basis for distinguishing individuals in BOP custody from any other class of persons for §4248 purposes. Accordingly, the district court’s judgment dismissing the Government’s §4248 commitment action against Timms was reversed, and the case was remanded for the district court to determine on the merits whether Timms met the §4248 criteria for being declared a “sexually dangerous person.”

Criminal Procedure

Protective sweep of residence

BOTTOM LINE: Warrantless search of defendants’ home following defendants’ arrest for drug-related offenses was not unreasonable under the Fourth Amendment because, given that police officers observed seven vehicles parked on defendants’ property at 1:00 a.m. and that recent surveillance of defendants’ residence had revealed that known armed drug users were frequenting defendants’ house, officers were justified in performing a protective sweep of defendants’ home to determine whether other dangerous persons were in the residence.

CASE: United States v. Jones, No. 10-4442 (decided Jan. 13, 2012) (Judges KING, Diaz & Gergel (Sitting by Designation). RecordFax No. 12-0113-60, 17 pages.

COUNSEL: Matthew Segal, Federal Defenders of Western North Carolina, Inc., Asheville, NC, for Appellants. Richard Edwards, Office of the United States Attorney, Asheville, NC, for Appellee.

FACTS: In October 2008, officers in the Polk County, Tenn., Sheriff’s Office received information that a man who appeared to have been burned in a methamphetamine laboratory explosion, and suggesting that the explosion could have occurred at the home of Kipling and Rebecca Jones, a married couple. Four officers were dispatched to the Jones residence. As they approached, the officers noticed seven vehicles parked on the property. The officers knocked on the front door of the Joneses’ house, and the Joneses met the officers on the front porch. The officers explained that they were investigating a burn victim’s injuries and a possible meth lab explosion. Kipling Jones told the officers that he did not know anything about a burn victim or a meth lab explosion and asked the officers to leave his property.

The officers started to comply but, as they were about to leave the driveway, Officer Sean Matthews recalled that Kipling Jones might be the subject of an outstanding arrest warrant. An officer then confirmed by radio that there was an outstanding arrest warrant for Mr. Jones. The officers promptly returned to the residence, informed Mr. Jones of the outstanding warrant, and placed him under arrest. Officer Dustin Smith informed the Joneses that the officers were going to conduct a protective sweep of the residence. He asked the Joneses if there was anyone else in the house, and the Joneses replied that there was not. Nevertheless, Officer Smith was suspicious that others might be in the house, based primarily on his prior dealings with the Joneses, whom he had investigated at various times since 2003 as part of his duties as a narcotics officer.

During the protective sweep, Smith and the other officers noticed a number of items in plain view which, based on their training and experience, they believed to be precursor materials for the manufacture of methamphetamine. Smith also detected a strong odor that he associated with methamphetamine production, and observed a pipe containing marijuana and a pill that had been crushed into powder, lying on an end table near where Rebecca Jones had been sitting. Mrs. Jones was also then placed under arrest for possession of marijuana.

That afternoon, Officer Smith applied for and obtained a search warrant. Later that day, the North Carolina State Bureau of Investigation executed the warrant, seizing drug paraphernalia and methamphetamine mixture. A grand jury returned an indictment charging the Joneses with four offenses arising from the evidence seized at their residence. Count One charged the Joneses with conspiracy to manufacture, distribute, and dispense, and to possess with intent to distribute and dispense, at least 400 grams of a mixture and substance containing a detectable amount of methamphetamine, in contravention of 21 U.S.C. §846.

Rebecca Jones filed a motion to suppress the evidence seized from the Jones residence, asserting that the warrantless search violated her Fourth Amendment right against unreasonable search and seizure. Kipling Jones subsequently filed a nearly identical motion to suppress. The district court denied both motions to suppress, and the Joneses entered conditional guilty pleas to Count One, reserving their rights to appeal the district court’s denial of their suppression motions. The government agreed to dismiss the other three counts of the indictment.

The Joneses appealed to the 4th Circuit, which affirmed the convictions.

LAW: Warrantless police searches and seizures inside a home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586 (1980). However, this presumption may be overcome in some circumstances. Kentucky v. King, 131 S. Ct. 1849, 1856 (2011). A well-settled protective sweep exception to the warrant requirement was enunciated by the Supreme Court in Maryland v. Buie, 494 U.S. 325 (1990). The Buie Court identified two constitutionally permissible types of warrantless searches of a residence after, and while making, an arrest. Most pertinent to the present appeal, police officers are entitled to perform a further protective sweep, beyond the immediately adjoining areas, when they have articulable facts which, taken together with the rational inferences from which those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. Id. at 334.

Thus, in the present case, the question before the Court was whether there was a reasonable basis for the officers to believe that there could be other individuals in the Joneses’ residence who might resort to violence when incited by the defendants’ arrest. The district court concluded that there were specific articulable facts underlying the officers’ suspicions that other dangerous individuals could be in the Jones residence.

For one, recent surveillance of the residence had revealed that known drug users were frequenting the Joneses’ house, some who were known to carry firearms. Moreover, given that there were seven vehicles parked on the property at 1:00 a.m., a reasonably prudent officer would suspect that there were other individuals inside the Jones residence besides the two Joneses. Cf. United States v. Tapia, 610 F.3d 505, 511 (7th Cir. 2010). Such articulable facts, taken together with the rational inferences from those facts made by law officers, and construed in the light most favorable to the government, were more than sufficient to justify the officers’ protective sweep.

Accordingly, the defendants’ convictions were affirmed.

Immigration Law


BOTTOM LINE: The BIA abused its discretion by failing to explain why it found that a Honduran asylum-seeker had not satisfied his burden of proving that it was more likely than not that if he was removed to Honduras, he would endure torture as defined under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Punishment.

CASE: Zelaya v. Holder, No. 10-2401 (decided Jan. 11, 2012) (Judges Davis, Floyd & HAMILTON). RecordFax No. 12-0111-61, 18 pages.

COUNSEL: Bryan Ward, Sutherland, Asbill & Brennan, LLP, Atlanta, GA, for Petitioner. Kerry Monaco, United States Department of Justice, Washington, for Respondent.

FACTS: On January 19, 2007, Denis Zelaya, a native of Honduras, entered the United States illegally at the age of 16. Zelaya conceded his removability as charged in his notice to appear, but sought relief from removal by seeking asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Punishment (“CAT”). Zelaya applied for asylum and withholding of removal under the Immigration and Nationality Act based upon his membership in a particular social group.

On December 16, 2009, the immigration judge (“IJ”) held an evidentiary hearing on Zelaya’s asylum application. Zelaya claimed that he was entitled to asylum or withholding of removal under the INA because he had a well-founded fear of persecution on account of his membership in a particular social group consisting of young Honduran males who refuse to join the Mara Salvatrucha 13 gang (“MS-13”), have notified the authorities of MS-13’s harassment tactics, and have an identifiable tormentor within MS-13. Zelaya testified on his own behalf before the IJ. In addition to his own testimony, Zelaya submitted numerous documents in support of his asylum application.

The IJ denied Zelaya’s asylum claim and his withholding of removal claim. Zelaya appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”). The BIA affirmed the IJ’s decision and dismissed Zelaya’s appeal. Zelaya filed his petition for review of the BIA’s final order.

The 4th Circuit denied Zelaya’s petition for review with respect to his asylum claim and his withholding of removal claim. However, the Court granted Zelaya’s petition for review with respect to his CAT claim, vacated the BIA’s final order with respect to such claim, and remanded the case.

LAW: The BIA properly affirmed the IJ’s denial of Zelaya’s asylum claim, because the group identified by Zelaya (young Honduran males who refuse to join MS-13, have notified the authorities of MS-13’s harassment tactics, and have an identifiable tormentor within MS-13) does not qualify as a “particular social group” under §1101(a)(42)(A). Matter of S-E-G, 24 I. & N. Dec. 579 (BIA 2008). However, the BIA erred in regard to its findings regarding Zelaya’s protection claim under the CAT. To qualify for protection under the CAT, Zelaya was required to prove that, whatever the motivation, it was more likely than not that he would be tortured if removed to Honduras. Jian Tao Lin v. Holder, 611 F.3d 228, 236 (4th Cir. 2010).

For purposes of obtaining protection under the CAT in the United States, torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as punishing him for an act he has committed or intimidating or coercing him, when such pain or suffering is inflicted with the acquiescence of a public official or other person acting in an official capacity. 8 C.F.R. §1208.18(a)(1).

Here, based upon Zelaya’s testimony and the documentary evidence, the IJ found that Zelaya was a credible witness, that he consistently resisted MS-13’s recruitment efforts and that, as a result, MS-13 consistently pursued him until he fled Honduras at the age of 16, including beating him, threatening to kill him on several occasions, threatening to kill his brother, and shooting at him. The IJ found that Zelaya continued to be in fear of MS-13, and that when Zelaya reported the shooting incident in person to the local police with blood streaming down his face, a police officer told him that the police could not help him because MS-13’s members would hurt them as well.

The BIA provided no explanation as to why it found that the police officer’s ultimate refusal to help Zelaya in any way when he reported that he had just been threatened with a gunshot by a member of MS-13 for resisting MS-13’s recruitment efforts did not satisfy Zelaya’s burden of proving that it was more likely than not that if Zelaya was removed to Honduras, he would be subject to torture as defined under the CAT. See 8 C.F.R. §1208.16(c)(2).

The BIA abused its discretion by failing to address this critical issue and by failing to give a reasoned explanation for why the facts of this case did not satisfy the regulatory definition of “aquiescence of a public official” for purposes of analyzing a CAT claim. Id. §1208.18(a)(7). Thus, although the 4th Circuit affirmed the IJ’s denial of Zelaya’s asylum claim and the BIA’s affirmance of the IJ’s denial of Zelaya’s withholding of removal claim under the INA, it granted Zelaya’s petition for review with respect to his CAT claim and vacated the BIA’s decision to the extent it denied Zelaya’s CAT claim, and remanded the case for further proceedings.