Argued, January 28, 2014
Appeal fro the United States District Court for the Eastern District of North Carolina, at Raleigh. (5:11-hc-02015-BR-JG). W. Earl Britt, Senior District Judge.
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.
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.
Before TRAXLER, Chief Judge, and MOTZ and THACKER, Circuit Judges. Chief Judge Traxler wrote the opinion, in which Judge Motz and Judge Thacker joined.
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.
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 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).
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 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 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 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 ...