United States v. Earl Webster Cox , 549 F. App'x 169 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-8107
UNITED STATES OF AMERICA,
Petitioner – Appellee,
v.
EARL WEBSTER COX,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:11-hc-02137-H-JG)
Submitted: November 20, 2013 Decided: December 19, 2013
Before DAVIS, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Bradley L. Henry, BREEDING, LODATO, & LENIHAN, LLC, Knoxville,
Tennessee, for Appellant. Thomas G. Walker, United States
Attorney, Rudy A. Renfer, Michael G. James, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This appeal arises under the Adam Walsh Child
Protection and Safety Act, 18 U.S.C.A. §§ 4247-4248 (West 2000 &
Supp. 2013) (the Walsh Act). The Walsh Act “provides that
individuals in the custody of the Bureau of Prisons (BOP) who
are sexually dangerous may be committed civilly after the
expiration of their federal prison sentences.” United States v.
Francis, 686 F.3d 265, 268 (4th Cir. 2012). Here, Earl W. Cox
appeals the district court’s order, following a hearing,
committing him to the custody and care of the Attorney General
pursuant to § 4248. We affirm.
I
Cox first claims that the district court erred in
admitting into evidence a copy of his presentence investigation
report (PSR) without affording Cox the opportunity to
cross-examine witnesses about the factual accuracy of the
report. Cox effectively contends that the PSR constituted
inadmissible hearsay and its admission violated Crawford v.
Washington, 541 U.S. 36 (2004). Because Cox did not raise this
claim below, our review is for plain error. See United States
v. Baptiste, 596 F.3d 214, 220 (4th Cir. 2010).
We recently rejected a similar argument in a case
involving a commitment proceeding under the Walsh Act. In
United States v. Pardee, __ F. App’x ___, 2013 WL 3316313 (4th
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Cir. 2013), we found that the PSR was properly admitted under
Fed. R. Evid. 803(8). We further rejected Pardee’s claim that
admission of the PSR violated Crawford because Crawford applies
only to criminal cases, and a commitment proceeding under the
Walsh Act is civil in nature. Id. at *4. Under this authority,
we find no error in the admission of Cox’s PSR.
II
Civil commitment under the Walsh Act is authorized
only if the Government satisfies a three-pronged test. Under
this test, the Government must establish by clear and convincing
evidence that the individual:
(1) previously engaged or attempted to engage in
sexually violent conduct or child molestation (the
prior conduct prong); (2) currently suffers from a
serious mental illness, abnormality, or disorder (the
serious mental illness prong); and (3) as a result of
that mental condition, . . . would have serious
difficulty in refraining from sexually violent conduct
or child molestation if released (the volitional
control prong).
United States v. Springer, 715 F.3d 535, 538 (4th Cir. 2013)
(internal quotation marks omitted); see 18 U.S.C.
§ 4247(a)(5)-(6). “If the [G]overnment fails to meet its burden
on any of the three prongs, an individual may not be committed.”
Springer, 715 F.3d at 538.
Cox concedes that the Government established the prior
conduct and serious mental illness prongs but challenges the
district court’s finding that the Government met its burden with
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respect to the volitional control prong. In particular, Cox
complains that the district court did not meaningfully address
evidence concerning his medical condition and his refraining
from deviant behavior while incarcerated. In Cox’s view, his
medical issues and prison record constitute significant
“protective factors” — factors which decrease the risk of future
sexual offending — and should have been discussed in depth when
the court analyzed the volitional control prong. We review the
district court’s factual findings for clear error and its legal
conclusions de novo. Springer, 715 F.3d at 545.
In deciding that the Government had met its burden
with respect to the volitional control prong, the district court
credited the opinions of the three experts, who agreed that Cox
would have serious difficulty refraining from child molestation.
The district court discussed in detail each expert’s reasons for
reaching this conclusion. While it is true that the court
devoted little or no discussion to Cox’s medical impairments and
record while incarcerated, a district court is not required to
address every bit of evidence presented at a commitment hearing.
United States v. Caporale, 701 F.3d 128, 141 (4th Cir. 2012).
This is particularly so here, where there was no evidence
contradicting expert testimony that neither Cox’s limited
mobility and other medical conditions nor his spotless prison
record overcame overwhelming evidence that Cox met the
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volitional control prong. For instance, Dr. Plaud and Dr. Ross
testified that Cox’s medical issues would have no impact on the
likelihood of his re-offending because his prior “hands-on”
molestations did not involve chasing or “snatching” children and
did not require much physical strength or stamina. As for Cox’s
having refrained from deviant behavior while in prison, Dr. Ross
stated that this had no impact on her conclusion as to the
volitional control prong because, while incarcerated, Cox did
not have access to his preferred victim pool (prepubescent
females) or to child pornography. We discern no error in the
district court’s finding that the Government established the
volitional control prong by clear and convincing evidence.
III
We accordingly affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED
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