United States v. Broncheau ( 2011 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Petitioner-Appellant,
v.  No. 10-7611
DONALD BRONCHEAU,
Respondent-Appellee.

UNITED STATES OF AMERICA, 
Petitioner-Appellant,
v.  No. 10-7616
JEFFREY NEUHAUSER,
Respondent-Appellee.

UNITED STATES OF AMERICA, 
Petitioner-Appellant,
v.  No. 10-7617
JERRY T. ROGERS,
Respondent-Appellee.

2 UNITED STATES v. BRONCHEAU
UNITED STATES OF AMERICA, 
Petitioner-Appellant,
v.  No. 10-7618
DAVID HENRY TOBEY,
Respondent-Appellee.

UNITED STATES OF AMERICA, 
Petitioner-Appellant,
v.  No. 10-7619
SCOTT KEVIN COMBE,
Respondent-Appellee.

UNITED STATES OF AMERICA, 
Petitioner-Appellant,
v.  No. 10-7620
MATHIAS THOMAS KOPP,
Respondent-Appellee.

UNITED STATES OF AMERICA, 
Petitioner-Appellant,
v.  No. 10-7621
EDWARD DAVID ERWIN,
Respondent-Appellee.

UNITED STATES v. BRONCHEAU 3
UNITED STATES OF AMERICA, 
Petitioner-Appellant,
v.  No. 10-7622
PATRICK CAPORALE,
Respondent-Appellee.

UNITED STATES OF AMERICA, 
Petitioner-Appellant,
v.  No. 10-7623
KEVIN MCGREEVY,
Respondent-Appellee.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(5:06-hc-02219-BO; 5:07-hc-02101-BO; 5:07-hc-02148-BO;
5:07-hc-02166-BO; 5:07-hc-02025-BO; 5:07-hc-02185-BO;
5:07-hc-02206-BO; 5:08-hc-02037-BO; 5:07-hc-02063-BO)
Argued: March 22, 2011
Decided: May 26, 2011
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.
4 UNITED STATES v. BRONCHEAU
COUNSEL
ARGUED: Samantha Lee Chaifetz, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appel-
lant. 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, SAM-
UEL A. FOREHAND, P.A., Raleigh, North Carolina, for
Appellee Rogers; Thomas P. McNamara, Federal Public
Defender, Raleigh, North Carolina, for all other Appellees.
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 provi-
sions 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 consti-
tutionality of § 4248, the district court collectively dismissed
all nine proceedings. See United States v. Broncheau, No. 06-
HC-2219 (L), (E.D.N.C. Oct. 29, 2010) (the "Dismissal
Order").1 The Dismissal Order reasoned that the proceedings
1
The Dismissal Order has been designated for publication, but has not
yet appeared in the Federal Supplement. We cite to the slip opinion of the
district court, which may be found at 2010 WL 4484635.
UNITED STATES v. BRONCHEAU 5
had not been properly instituted because, with respect to pris-
oners 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 dan-
gers associated with the release from custody of persons who,
because of mental illness, are likely to have difficulty refrain-
ing 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 per-
son" who is in federal custody, even when doing so detains
the prisoner beyond the expiration of his sentence of impris-
onment. See United States v. Comstock, 130 S. Ct. 1949, 1961
(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 "sexu-
ally 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 con-
duct 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.
6 UNITED STATES v. BRONCHEAU
§ 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 Attor-
ney General pursuant to section 4241(d)" on the basis of men-
tal 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 con-
ducted in accordance with 18 U.S.C. § 4247(d).3 If, after the
2
Section 4248(a) specifies the procedures by which the government may
institute a civil commitment proceeding on the basis of sexual dangerous-
ness. It provides, in pertinent part, that
the Attorney General or any [authorized official] may certify that
[an eligible] person is a sexually dangerous person, and transmit
the certificate to the clerk of the court for the district in which the
person is confined. . . . The court shall order a hearing to deter-
mine whether the person is a sexually dangerous person. A certif-
icate filed under this subsection shall stay the release of the
person pending completion of procedures contained in this sec-
tion.
18 U.S.C. § 4248(a).
3
The provisions of § 4247(d) of Title 18 apply to § 4248 proceedings.
See § 4248(c). Section 4247(d) details the procedural requirements of a
§ 4248 hearing, specifying, in pertinent part, that
[a]t a hearing ordered pursuant to this chapter the person whose
mental condition is the subject of the hearing shall be represented
UNITED STATES v. BRONCHEAU 7
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 commit-
ment 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 Com-
stock, 130 S. Ct. at 1954 (recognizing that Constitution grants
authority for Congress "to enact § 4248 as necessary and
by counsel and, if he is financially unable to obtain adequate rep-
resentation, counsel shall be appointed for him . . . . The person
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).
4
A respondent committed pursuant to § 4248 is entitled to seek from the
court that ordered his commitment a "hearing to determine whether [he]
should be discharged from the facility." See § 4247(h). Such relief cannot
be first sought, however, until 180 days after the respondent was civilly
committed. See id.
8 UNITED STATES v. BRONCHEAU
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 pro-
cess rights. See id. at 1965. On December 6, 2010, we con-
cluded that the burden of proof under § 4248 did not, on its
face, offend the Fifth Amendment, and thus reversed the dis-
trict 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 incarcer-
ated at the Federal Correctional Institute at Butner, North Car-
olina ("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 super-
vised release.5 Shortly before each Respondent was to be
released, however, the government instituted a § 4248 civil
commitment proceeding, filing a certification that the particu-
lar Respondent was in the custody of the BOP, a "sexually
dangerous person," and "sexually dangerous to others." Pursu-
ant 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 pro-
ceedings were initially stayed by the district court pending
resolution of the constitutional issues presented in the Com-
5
The Respondents’ various terms of supervised release were scheduled
to begin between January 4, 2007, and March 21, 2008, at the conclusion
of their individual terms of imprisonment.
UNITED STATES v. BRONCHEAU 9
stock 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 cer-
tifications, 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 constitu-
tional 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 govern-
ment, the district court entered its Dismissal Order.
It is undisputed that the Respondents were each in the cus-
tody of the BOP when they were certified, pursuant to
§ 4248(a)’s first category of eligible persons, as sexually dan-
gerous, as well as when these commitment proceedings were
instituted. Nonetheless, the district court dismissed the nine
commitment proceedings, expressing its concern that continu-
ing to hold the Respondents at FCI-Butner, rather than allow-
ing their terms of supervised release to commence, implicated
"various due process concerns." See Dismissal Order 15.7
6
The Respondents’ motions to dismiss in these cases made several argu-
ments in addition to the constitutional contentions relied upon by the Com-
stock respondents. More specifically, the Respondents alleged that their
terms of supervised release provided adequate safeguards to the public,
that these § 4248 certifications were premature and unnecessary, and that
the stigma of being labeled "a sexually dangerous person" is a lifelong
burden.
7
The Dismissal Order observed that at least one district court had con-
cluded that § 4248 "fails to provide procedural and evidentiary protections
sufficient to satisfy procedural due process, on its face and as applied."
Dismissal Order 11 (citing Timms v. Johns, 700 F. Supp. 2d 764, 770-74
(E.D.N.C. 2010), vacated, 627 F.3d 525 (4th Cir. 2010)). The district court
also stated its view that, by "staying the commencement of respondents’
court-ordered terms of supervised release, the section 4248 certifications
filed by the government have circumvented court-ordered criminal judg-
ments across the country, judgments which only the courts of imposition
have the power to modify." Id. at 16.
10 UNITED STATES v. BRONCHEAU
Although the Dismissal Order identified several potential con-
stitutional deficiencies in the § 4248 commitment procedures,
the court did not rule that § 4248 was unconstitutional, either
facially or as applied. Instead, the court — relying on the
principle that constitutional questions should be avoided when
possible, plus the rule that statutes relating to the same subject
matter should be read together, that is, in pari materia —
decided that these proceedings had not been properly insti-
tuted. In particular, the court ruled that the government should
have proceeded first under § 4241, rather than pursuant to
§ 4248, explaining that "when a respondent has not completed
his sentence because he has a remaining term of supervised
release, the use of section 4241 is the proper way to initiate
[civil commitment] proceedings under the Adam Walsh Act."
Dismissal Order 15.8
Under the approach espoused by the Dismissal Order, if the
government believes that a soon-to-be-released federal pris-
oner is a sexually dangerous person and that a civil commit-
ment under § 4248 is appropriate, it must first await the
release of the prisoner from BOP custody and thereafter
obtain a commitment order under § 4241. The government
may then pursue a § 4248 commitment under the second cate-
gory of the persons eligible for certification — that is, those
"committed to the custody of the Attorney General pursuant
to section 4241(d)." § 4248(a). The district court explained
that requiring such commitment proceedings to be initiated
under § 4241 alleviates the constitutional concerns presented
by § 4248. Because the government did not institute these
proceedings by first seeking a commitment order under
§ 4241, the court dismissed them and ordered the Respon-
8
Section 4241 of Title 18 was first enacted in 1948 and authorizes the
commitment of a criminal defendant who, as a result of a mental disease
or defect, lacks the mental competency to stand trial or undergo post-
release proceedings. See § 4241(a). Section 4241 thus provides a mecha-
nism to secure a judicial determination of a criminal defendant’s compe-
tency, thereby protecting the defendant’s fair trial rights and the integrity
of judicial proceedings.
UNITED STATES v. BRONCHEAU 11
dents released from custody within thirty days, by November
28, 2010.
The government promptly appealed the Dismissal Order,
and, in connection therewith, sought from the district court a
stay of the Respondents’ releases from BOP custody pending
appeal. The district court denied the government’s stay
request on November 22, 2010, after which the government
moved this Court for issuance of an emergency stay. On
November 26, 2010, we granted the government’s stay
request and expedited the briefing and oral argument sched-
ule. The Respondents therefore remain in the custody of the
BOP, and we possess jurisdiction pursuant to 28 U.S.C.
§ 1291.
II.
This appeal presents issues of statutory construction, quin-
tessential questions of law that we review de novo. See United
States v. Abuagla, 336 F.3d 277, 278 (4th Cir. 2003).
III.
As explained herein, 18 U.S.C. § 4248 was enacted to pro-
tect the public from the dangers posed by releasing sexually
dangerous persons from federal custody. See United States v.
Comstock, 130 S. Ct. 1949, 1961 (2010). Although § 4248(a)
spells out procedures for the government to follow in seeking
the civil commitment of such a sexually dangerous person, the
district court declined to give effect to those provisions.
Instead, the court devised an alternative approach that
requires the government to stand aside as a federal prisoner
with an upcoming term of supervised release — whom the
government believes to be sexually dangerous — is released
from BOP custody. After the prisoner’s release, the govern-
ment may then seek his commitment on a ground unrelated to
sexual dangerousness: that the former prisoner is "unable to
understand the nature and consequences of the proceedings
12 UNITED STATES v. BRONCHEAU
against him or to assist properly in his defense." 18 U.S.C.
§ 4241(a). Only then, after obtaining the former prisoner’s
commitment under § 4241, is the government entitled to file
its § 4248 certification, seeking his civil commitment —
under § 4248(a)’s second category of eligible persons — on
the basis that he is also sexually dangerous.
When it crafted the foregoing procedure, the district court
was unable to take account of the merits of the then-pending
Fifth Amendment burden-of-proof challenge to § 4248 that
was resolved by our decision in Comstock II. See 627 F.3d
513 (4th Cir. 2010). Comstock II was decided in early Decem-
ber 2010, scarcely more than a month after the Dismissal
Order was entered. Contemporaneously with Comstock II, we
decided its companion case of Timms v. Johns, 627 F.3d 525(4th Cir. 2010). In Timms, we vacated another of the primary
authorities on which the Dismissal Order relied in concluding
that § 4248 presented serious due process concerns.
Our usual course whenever a fundamental change in the
law negates the underpinnings of a district court’s decision is
to remand the matter for the court to reassess whether it may
reinstate its judgment consistent with the evolving legal land-
scape. See Adams v. Sch. Dist. No. 5, 444 F.2d. 99, 100-01
(4th Cir. 1971) (en banc). Although we could simply vacate
the Dismissal Order on the basis of Comstock II and Timms
without further discussion, compelling interests of judicial
economy warrant a more in-depth assessment of the proce-
dures fashioned by the district court concerning the initiation
of § 4248 civil commitment proceedings against sexually dan-
gerous prisoners whose sentences include terms of supervised
release. As explained below, the Dismissal Order’s approach
to § 4248 — requiring the government first to release the pris-
oner from BOP custody, then obtain a commitment order
under § 4241, and then finally seek a separate civil commit-
ment order under the second category of persons eligible for
certification under § 4248(a) (those "committed to the custody
of the Attorney General pursuant to § 4241(d)") — is flawed
UNITED STATES v. BRONCHEAU 13
for at least three other reasons: first, it departs from the plain
meaning of § 4248(a); second, it erroneously reads § 4248 in
pari materia with § 4241; and, third, it erroneously invokes
the canon of constitutional avoidance. For those reasons, and
because the district court did not have the timely benefit of
the Comstock II and Timms decisions, vacating the Dismissal
Order is necessarily the prudent course.
A.
We first observe that § 4248 is unambiguous with respect
to the initiation of civil commitment proceedings against sex-
ually dangerous federal prisoners in BOP custody. And,
where "the terms of a statute are unambiguous, judicial
inquiry is complete, except in rare and exceptional circum-
stances." Rubin v. United States, 449 U.S. 424, 430 (1981)
(internal quotation marks omitted). As the Supreme Court has
explained, if a reviewing court determines that the "legislative
purpose is expressed in plain and unambiguous language," the
duty of the court is to "give [the statute] effect according to
its terms." United States v. Rutherford, 442 U.S. 544, 552
(1979) (internal quotation marks omitted). We should also
strive, of course, when interpreting a statute, to give effect to
each word and provision thereof. See Broughman v. Carver,
624 F.3d 670, 677 (4th Cir. 2010).
Applying the foregoing principles, there is little or no room
for competing views on how Congress intended § 4248 civil
commitment proceedings to be initiated. As we have empha-
sized, § 4248 is explicit — an authorized official "may certify
that [an eligible individual] is a sexually dangerous person,
and transmit the certificate to the clerk for the court for the
district in which the person is confined." § 4248(a). Section
4248 is also unambiguous with respect to those eligible for
certification, and it identifies three categories of persons who
may be certified as sexually dangerous — the first being pris-
oners "in the custody of the Bureau of Prisons." § 4248(a).
Notably, there is no exception for prisoners (such as the
14 UNITED STATES v. BRONCHEAU
Respondents) whose sentences include terms of supervised
release. For at least two reasons, we are convinced that a pris-
oner whose sentence includes a term of supervised release
falls within the class of persons "in the custody of the [BOP]"
and is thus subject to a § 4248 certification.
First, as a factual matter, a prisoner in BOP custody whose
unexpired sentence includes a term of supervised release is no
less in the custody of the BOP than another prisoner who does
not face a term of supervised release. Second, in enacting
§ 4248, Congress did not neglect to assess how commitment
proceedings are to be initiated against prisoners whose sen-
tences include terms of supervised release. Manifestly, we are
unable to presume that Congress was unaware of those
offenses for which a term of supervised release is required.
See 18 U.S.C. § 3583(a), (k); Goodyear Atomic Corp. v. Mil-
ler, 486 U.S. 174, 185 (1988) (explaining that courts gener-
ally presume that "Congress is knowledgeable about existing
law pertinent to the legislation it enacts"). Nor can we con-
clude that Congress failed to take account of the fact that the
Sentencing Guidelines contemplate that a term of supervised
release "shall . . . follow imprisonment when a sentence of
imprisonment of more than one year is imposed." USSG
§ 5D1.1(a). Indeed, the overwhelming majority of federal
criminal judgments include terms of supervised release. See
United States Sentencing Commission, Federal Offenders
Sentenced to Supervised Release 49-50 (2010). As the Sen-
tencing Commission recently explained, for those convicted
of federal felony or serious misdemeanor offenses between
2005 and 2009, ninety-five percent faced sentences that
included terms of supervised release. See id.
By treating a prisoner whose sentence includes a term of
supervised release differently than one with no such sentence,
the Dismissal Order creates a judicial exception to § 4248 for
the bulk of the BOP’s prisoners who are otherwise eligible for
certification. A cardinal principle of statutory interpretation,
however, is that "[e]xceptions to clearly delineated statutes
UNITED STATES v. BRONCHEAU 15
will be implied only where essential to prevent absurd results
or consequences obviously at variance with the policy of the
enactment as a whole." Rutherford, 442 U.S. at 552 (internal
quotation marks omitted). The Dismissal Order’s construction
of § 4248 — excepting a sexually dangerous prisoner whose
sentence includes a term of supervised release from certifica-
tion so long as he remains in the BOP’s custody — is not at
all essential to avoid an absurd result. Importantly, such a
construction of § 4248 would create a collateral problem by
undermining the statute’s stay-of-release provision. See
§ 4248(a).
B.
The Dismissal Order is also flawed by its invocation of the
in pari materia principle of statutory construction, which the
district court used to justify its reliance on § 4241.9 We have
interpreted the principle to mean that "adjacent statutory sub-
sections that refer to the same subject matter" should be read
harmoniously. Va. Int’l Terminals, Inc. v. Edwards, 398 F.3d
313, 317 (4th Cir. 2005). The principle of in pari materia is
applicable, however, only "where the meaning of a statute is
ambiguous or doubtful." N. Pac. Ry. Co. v. United States, 156
F.2d 346, 350 (7th Cir. 1946); see also Greenport Basin &
Const. Co. v. United States, 260 U.S. 512, 516 (1923) (reject-
ing argument that two revenue statutes should be read in pari
materia where "the language of the act is clear," and there is
thus "no room for argument . . . drawn from other revenue
measures"). The Dismissal Order, however, failed to identify
any ambiguity in the methodology employed by § 4248 to ini-
tiate the civil commitment of sexually dangerous persons who
are in BOP custody. Importantly, we are unable to discern any
such ambiguity.
9
In pari materia is generally accepted as being the Latin term for "in
like material or substance." John Gray, Lawyers’ Latin: A Vade-Mecum 72
(2002).
16 UNITED STATES v. BRONCHEAU
Moreover, the Dismissal Order did not recognize or
acknowledge the fundamentally different purposes of the
commitment provisions embodied in § 4241 and § 4248.
These different purposes undermine the district court’s analy-
sis in this case, because the principle of in pari materia has
no force where two statutes "superficially relat[e] to similar
subjects," but "a finer examination reveal[s] that the purposes
underlying the laws var[y]." Firstar Bank, N.A. v. Faul, 253
F.3d 982, 990 (7th Cir. 2001). This limitation on applicability
is instructive, because § 4241 and § 4248 target different
groups and have different goals. Section 4248 sets forth the
commitment procedures for "sexually dangerous person[s]"
who are in federal custody, and is designed to protect the pub-
lic from such persons. § 4248(a) (emphasis added); see also
Comstock, 130 S. Ct. at 1961 ("As federal custodian, [the fed-
eral government] has the constitutional power to act in order
to protect nearby (and other) communities from the dangers
[sexually dangerous] federal prisoners may pose.").
Section 4241, in contrast to § 4248, constitutes the prover-
bial "horse of a different color." Section 4241 addresses the
circumstances under which the mental competency of a crimi-
nal defendant is to be assessed. See § 4241(a). It was designed
to ensure the integrity of the judicial system, i.e., protecting
a defendant from criminal proceedings that he cannot under-
stand, and barring prosecutors from pursuing such proceed-
ings against mentally defective defendants. See id. As the
Supreme Court has explained, "a person whose mental condi-
tion is such that he lacks the capacity to understand the nature
and object of the proceedings against him, to consult with
counsel, and to assist in preparing his defense may not be sub-
ject to a trial." See Drope v. Missouri, 420 U.S. 162, 171-72
(1975). Section 4241 is thus a codification of this well-settled
proposition.
The divergent purposes of § 4241 and § 4248 also illustrate
that the Dismissal Order’s approach to the civil commitment
process would prove unworkable. Section 4241 does not pro-
UNITED STATES v. BRONCHEAU 17
vide for a commitment on the basis of the criteria of § 4248
— that is, based on a prisoner’s sexual dangerousness. Rather,
§ 4241 authorizes a trial court to order a "hearing to determine
the mental competency of the defendant," where there is rea-
sonable cause to believe that he is unable to understand and
participate in criminal proceedings pending against him.
§ 4241(a). If the court, after conducting a § 4241 competency
hearing, finds by a preponderance of the evidence that the
defendant lacks the requisite mental competency, he is com-
mitted to custody pending improvement of his mental condi-
tion or further proceedings. See § 4241(d).
Nevertheless, this record offers no basis for concluding that
any of these Respondents are also defendants in a federal
court, or that any are suffering from a mental disease or defect
rendering him or them mentally incompetent within the mean-
ing of § 4241. More specifically, there have been no allega-
tions or showings that any of the Respondents are "unable to
understand the nature and consequences of the proceedings
against [them] or to assist properly in [their] defense."
§ 4241(a). Rather, the Respondents are simply certified as
sexually dangerous persons — under the first category of eli-
gible individuals (prisoners in the custody of the BOP) —
within the meaning of § 4248. As a result, it is not at all
apparent that any of the Respondents, if released, would be
subject to commitment under § 4241, as there would then be
no "proceedings" pending against any of them — at least until
some effort to modify or revoke a term of supervised release
has been initiated. As such, a civil commitment under § 4241
is not a proper first step in § 4248 commitment proceedings
against prisoners such as the Respondents.
C.
Finally, the district court erred by invoking the canon of
constitutional avoidance to justify creation of its alternative
commitment scheme. This canon has no application to the
construction of a statute in a manner that is incompatible with
18 UNITED STATES v. BRONCHEAU
its plain terms. See Boumediene v. Bush, 553 U.S. 723, 787
(2008) ("The canon of constitutional avoidance does not sup-
plant traditional modes of statutory interpretation."). As the
Supreme Court has recognized,
[s]tatutes should be construed to avoid constitutional
questions, but this interpretive canon is not a license
for the judiciary to rewrite language enacted by the
legislature. Any other conclusion, while purporting
to be an exercise in judicial restraint, would trench
upon the legislative powers vested in Congress by
Art. I, § 1 of the Constitution.
Salinas v. United States, 522 U.S. 52, 60-61 (1997) (internal
quotation marks and citations omitted). As we have explained,
§ 4248 is not ambiguous with respect to how civil commit-
ment proceedings are to be initiated against federal prisoners
whom the government believes to be sexually dangerous.
Thus, the canon of constitutional avoidance does not counte-
nance the Dismissal Order’s alternative commitment scheme.10
10
Although the Respondents vigorously defend the Dismissal Order’s
alternative commitment scheme, they present another rationale for an
affirmance thereof. The Respondents contend, in the alternative, that we
should affirm the district court because of readily apparent due process
violations that have resulted from the Respondents’ prolonged detentions
without being accorded merits hearings on their § 4248 certifications. This
contention, of course, is being presented for the first time on appeal.
Because the district court did not address and rule on this due process
argument, we decline to resolve it.
Nevertheless, it bears repeating that the Respondents remain in prison
absent any judicial determination that they yet belong there. Indeed, if not
for the legal uncertainties attendant to the civil commitment provisions of
the Adam Walsh Act and the continuing detention of the Respondents
thereby occasioned, some of them might well by now have completed
their terms of supervised release and satisfied their obligations to society.
We trust that the proceedings on remand will move forward with dispatch
and not further exacerbate the grim delay in achieving resolution of these
matters.
UNITED STATES v. BRONCHEAU 19
IV.
Pursuant to the foregoing, we vacate the Dismissal Order
and remand for such other and further proceedings as may be
appropriate.
VACATED AND REMANDED
WYNN, Circuit Judge, concurring:
I concur in the majority’s opinion, which applies unambig-
uous statutory language to conclude that proceeding under 18
U.S.C. § 4248 is the proper way for the government to pursue
the civil commitment of an allegedly sexually dangerous per-
son who is the custody of the Bureau of Prisons, even when
that person is serving a prison sentence that includes a period
of supervised release. I write separately to emphasize what is
touched upon in footnote 10 of the majority opinion — that
the application of 18 U.S.C. § 4248 in these cases raises seri-
ous constitutional questions related to the due process rights
of Respondents. Specifically, it is troubling that Respondents
have been detained, in some cases for years, without govern-
mental justification for their detention at a merits hearing on
their § 4248 certifications.
To be sure, our courts have yet to address the constitution-
ality of prolonged detention pursuant to the Adam Walsh Act
prior to a hearing on the merits. However, many courts have
held that the due process rights guaranteed by the Constitution
entitle one to a final determination as to the validity of his
confinement within a reasonable period of time. For instance,
in In re Barnard, 455 F.2d 1370 (D.C. Cir. 1971), the court,
in reviewing a District of Columbia statute providing for
emergency involuntary commitment, stated "where a person,
said to be mentally ill and dangerous, is involuntarily
detained, he must be given a hearing within a reasonable time
to test whether the confinement is based upon probable
cause." Id. at 1374. Indeed, even where emergency detention
20 UNITED STATES v. BRONCHEAU
can be justified on the basis of a potential danger resulting
from the detainee’s mental condition, the need remains to jus-
tify the detention without substantial delay.
In Logan v. Arafeh, 346 F. Supp. 1265 (D. Conn. 1972),
aff’d sum. sub nom. Briggs v. Arafeh, 411 U.S. 911 (1973),
the court considered the constitutionality of a Connecticut
statute under which a patient could be involuntarily commit-
ted for no longer than forty-five days without a judicial deter-
mination of the validity of his confinement. Id. at 1267-68.
The court stated "[t]he emergency commitment to a hospital
for mental illness on a temporary basis of a person on the
finding of a physician that he is a danger to himself or others
without prior notice and hearing does not offend the due pro-
cess clause provided there is available to him an adequate
means of testing the validity of his confinement within a rea-
sonable period of time." Id. at 1268; see also Coll v. Hyland,
411 F. Supp. 905, 910 (D. N.J. 1976)(concluding that in the
context of civil commitment, "a hearing held within a reason-
able time after confinement begins is an acceptable means of
supplying requisite due process.").
Similarly, in Lynch v. Baxley, 386 F.Supp. 378, 387-88
(M.D. Ala. 1974), the court struck down Alabama’s emer-
gency involuntary commitment statute and stated:
Since the interests of these emergency detainees in
retaining their liberty and avoiding unwarranted civil
commitment are comparable to the interests of per-
sons accused of criminal offenses in retaining their
liberty and avoiding wrongful incarceration, the bur-
den on the state to justify the emergency detention
must be similarly heavy. As one means of assuring
that persons accused of crimes are not held in cus-
tody and involuntarily deprived of their liberty with-
out a showing of probable cause to believe that they
have committed punishable offenses, it is generally
required that such persons be brought before a judi-
UNITED STATES v. BRONCHEAU 21
cial office without unnecessary delay after arrest to
determine whether they are being detained on proba-
ble cause. Likewise, in the situation here, where a
person said to be mentally ill and dangerous is invol-
untarily detained, he must be given a hearing within
a reasonable time to test whether the detention is
based upon probable cause to believe that confine-
ment is necessary under constitutionally proper stan-
dards for commitment.
Id. at 387-88 (citations omitted).
Most assuredly, the lengthy detention of Respondents with-
out a reasonably prompt adjudication of the government’s
petitions for their commitment was one of the "due process
concerns" that motivated the district court’s statutory interpre-
tation. See United States v. Broncheau, No. 06-HC-2219(L),
2010 WL 4484635 at * 9 (E.D.N.C. Oct. 29, 2010)
("[S]ection 4248 simply does not afford any respondent a rea-
sonable time in which to adjudicate the government’s petition
for his commitment."). But, as the majority recognizes, the
district court stopped short of making a constitutional ruling.
Instead, without finding any ambiguity in the language of the
statute, the district court sought to remedy a constitutional
problem through an unsupportable reading of the statutory
scheme. That error compels us to vacate the district court’s
order and remand.
Additionally, as pointed out by the majority, while the con-
stitutional due process concerns may persist, they were not
identified by Respondents, who failed to raise an as-applied
due process challenge to the statute.* This itself counsels us
*The only procedural due process concerns raised by Respondents, such
as the contentions that the right to a speedy trial was violated or that notice
was inadequate, were explicitly tied to the argument that § 4248 proceed-
ings, although nominally civil, were actually criminal. This line of argu-
ment was foreclosed when, in Comstock II, we reiterated that § 4248 is in
fact a civil commitment statute. See 627 F.3d at 520 ("[T]he purpose and
structure of the commitment process render it unlike any criminal prosecu-
tion.").
22 UNITED STATES v. BRONCHEAU
to avoid passing on the issue in the first instance. See Single-
ton v. Wulff, 428 U.S. 106, 120-21 (1976) (recognizing the
general rule that a court of appeals will not consider an issue
raised for the first time on appeal). I recognize that "there are
circumstances in which a federal appellate court is justified in
resolving an issue not passed on below, as where the proper
resolution is beyond any doubt or where injustice might other-
wise result." Id. at 121. Yet, I cannot conclude that such cir-
cumstances are present in this case as would warrant
departure from well-established principles of judicial review.