United States v. Mikel Bolander , 722 F.3d 199 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6146
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
MIKEL BOLANDER,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Bernard A. Friedman,
Senior District Judge, sitting by designation. (5:07-hc-02032-
FL-JG)
Argued: May 15, 2013 Decided: July 5, 2013
Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by published opinion. Judge Hamilton wrote the opinion
in which Judge Niemeyer and Judge Keenan joined.
ARGUED: Walter Hoytt Paramore, III, Jacksonville, North
Carolina, for Appellant. Edward D. Gray, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON
BRIEF: Thomas G. Walker, United States Attorney, Raleigh, North
Carolina, for Appellee.
HAMILTON, Senior Circuit Judge:
The government certified Mikel Bolander as a “sexually
dangerous person” under the Adam Walsh Act, 18 U.S.C. § 4248(the Act). In the ensuing civil commitment proceeding, the
district court found that the government had proven by clear and
convincing evidence that Bolander is a sexually dangerous person
under the Act. As a result, he was committed to the custody of
the Attorney General of the United States. On appeal, Bolander
challenges this ruling, and others, by the district court. We
affirm.
I
A
The Act provides for the civil commitment of a “sexually
dangerous person” following the expiration of their federal
prison sentences. Id. § 4248(a). 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.” Id. § 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).
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The Attorney General, his designee, or the Director of the
Federal Bureau of Prisons (BOP) may initiate a § 4248 commitment
proceeding in the district court for the district in which the
person is confined by filing a certification that the person is
sexually dangerous within the meaning of the Act. Id.
§ 4248(a). The filing automatically stays the release of the
person from custody pending a hearing before the district court.
Id. “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.” Id. § 4248(d). 1
B
Bolander was born in Minnesota in 1964. During his
adolescence, he abused alcohol and marijuana. At the age of
twelve, he began to experience attraction to prepubescent boys,
and he began to collect pictures from art books and nudist
1
If an order of commitment is obtained, the Attorney
General must first attempt to release the person to “the State
in which the person is domiciled or was tried if such State will
assume responsibility for his custody, care, and treatment.” 18
U.S.C. § 4248(d). However, if the Attorney General is
unsuccessful in this effort, he “shall place the person for
treatment in a suitable facility, until” a state assumes
responsibility or until “the person’s condition is such that he
is no longer sexually dangerous to others, or will not be
sexually dangerous to others if released under a prescribed
regimen of medical, psychiatric, or psychological care or
treatment.” Id.- 3 -
magazines at that time. His mother described her son as a
loner, who typically had no more than one male friend at a time.
As a teenager, Bolander was suspended from school for
selling marijuana, and his parents placed him in a substance
abuse program which he failed to complete. At the age of
sixteen, his parents divorced. His mom moved to California and
remarried, and Bolander lived in California with his mother,
sister, and step-father.
At the age of nineteen, he enlisted in the Navy and was
stationed in San Diego. Although he refrained from marijuana
use while in the Navy, he continued to abuse alcohol. He was
referred to a Navy psychologist after pedophilic literature was
found in his foot locker. Bolander received approximately six
counseling sessions over the course of six months and was
discharged from treatment after he was transferred to a new duty
station.
After his honorable discharge in late 1985 or early 1986,
Bolander continued to abuse alcohol. 2 At the same time, he
became preoccupied with his sexual urges and desires for young
boys, and he began to collect child pornographic films and
pictures by contacting a distributor of such material. Bolander
2
In May 1986, Bolander was convicted of driving while under
the influence of alcohol (DUI). He was fined $675 and sentenced
to time-served (two days).
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began to visit arcades and other places where young boys were
present, which would enable him to befriend a potential victim.
In December 1988, at the age of twenty-four, Bolander was
charged with numerous sexual offenses in San Diego County
(California) Superior Court. He pled guilty to one count of
engaging in a lewd and lascivious act with a child under the age
of fourteen. The California state court records indicate that
Bolander molested an eleven-year old boy over a six-month period
at his residence and place of employment. Such molestation
involved both oral and anal sex, and Bolander often videotaped
and took pictures of these encounters. Bolander kept the videos
and pictures of these encounters, along with a host of other
child pornographic material he had obtained, at his residence.
In April 1989, he was sentenced to six years’ imprisonment.
While he was incarcerated in the California Department of
Corrections, Bolander was transferred on April 12, 1990 to the
Sex Offender Treatment and Evaluation Project at the Atascadero
State Hospital (ASH). During his treatment, he expressed
rationalizations for his illicit behaviors and his
“‘philosophy’” about consensual relationships with young boys.
(J.A. 494). He stated that boys as young as nine-years old
“‘know what homosexuality is and know what they are doing.’”
(J.A. 494). During his time at ASH, Bolander stole a
substantial amount of pornographic stimulus material from the
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program (in total, twenty-two magazines, 297 loose pictures, six
35 mm black and white slides, two booklets, and two flyers). He
was arrested on June 6, 1991, but the state prosecutors declined
to prosecute the case. Bolander was paroled in May 1992 after
serving a little more than three years. 3
While on parole, Bolander was required to complete
outpatient sex offender therapy. Upon completion, the program
facilitator opined that Bolander was in need of long-term
treatment, that his problem had not been fully resolved, and
that there was continued risk for relapse. Reportedly, Bolander
became angry and agitated when discussing the course of his
treatment. Such conduct prompted his parole officer to search
his residence. There the parole officer discovered computer
disks that contained child pornography, letters indicating how
to import and export child pornography, pornographic videos
featuring minor males, a copy of the video of Bolander
performing sexual acts with the boy who was the victim of the
1988 conviction, and magazines, posters, and books featuring
nude boys.
3
Upon release from the California Department of
Corrections, Bolander enrolled in college, studying computer
programming. He maintained a 3.37 GPA and completed thirty-six
credit hours before withdrawing in the Fall of 1994.
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The discovery of this material led to the January 1995
revocation of Bolander’s state parole. It also formed the basis
of a February 1996 arrest on federal charges for distribution of
child pornography and possession of child pornography. Bolander
pled guilty to the distribution offense in the United States
District Court for the Southern District of California and was
sentenced to thirty-seven months’ imprisonment.
While in federal prison, Bolander voluntarily participated
in the Sex Offender Treatment Program (SOTP) at FCI-Butner. His
participation, which began on November 5, 1997, required him to
sign an “INFORMED CONSENT FORM.” (J.A. 168). In relevant part,
the form provides:
I hereby consent to voluntary participation in the
Sex-Offender Treatment Program and agree to adhere to
all conditions stipulated in this document. My
signature below acknowledges my voluntary
participation in the program.
I understand that I may withdraw from treatment at any
time. I understand that my confidentiality will be
protected at all times, except in cases where there is
potential harm to myself or others, or when the
security of the correctional institution is
threatened. I also understand that the staff of the
SOTP and the Federal Bureau of Prisons, Department of
Justice, and United States Probation Office may share
information regarding my case.
(J.A. 168).
Bolander’s participation in the SOTP was hampered by his
hostility, argumentativeness, and arrogance. According to
psychological records, he displayed the following behaviors
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while in treatment: asserting that the victim initiated the
sexual contact; maintaining that child molestation was not
harmful and that the worst children might suffer was some slight
embarrassment; admitting at one point that he would continue to
molest boys, if it were not for the legal consequences;
declaring that he was the victim of societal persecution for his
sexual attraction to children; refusing to complete homework
assignments; insisting that therapeutic assignments were of no
benefit; and a lack of respect towards treatment staff.
Bolander was manipulative during treatment and “absolute[ly]
fail[ed] to empathize with his victims.” (J.A. 536) (internal
quotation marks omitted). As a result, he was expelled from
treatment in April 1998 by Dr. Andres Hernandez, the Director of
SOTP at that time. 4
Bolander was released from federal prison in October 1998.
While on supervised release, Bolander was indicted on federal
child pornography charges in the United States District Court
for the Western District of New York. These charges arose after
it was discovered that Bolander was exchanging child pornography
with a co-defendant that resided in New York. In October 1999,
4
Two reports generated at the SOTP are relevant here. The
first is the “Psychosexual Evaluation” dated January 29, 1998;
the second is the SOTP “Discharge Summary” dated April 13, 1998.
(J.A. 518).
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Bolander pled guilty to one count of attempting to receive child
pornography and was sentenced to twelve months’ imprisonment.
Following his release from federal custody, Bolander’s
supervised release again was rescinded following a May 2001
search of his residence. The search was prompted by the
probation officer’s concern that Bolander was living in close
proximity to children and that he refused to participate in a
recommended treatment program. During the search, it was
discovered that Bolander maintained a second phone line through
which he obtained unauthorized Internet access. An analysis of
Bolander’s computer equipment revealed a large cache of child
pornography. 5 Most of the child pornography seized involved
prepubescent boys, some as young as toddlers. 6 The analysis also
5
The probation officer was informed that Bolander’s
computer equipment contained “‘possibly the largest seizure of
child pornography recorded in San Diego County.’” (J.A. 527).
6
Bolander meticulously categorized his collection of child
pornography. He used a ratings system (“G-clothed, non-sexual;
PG-clothed, sexual; R-nude, non-sexual (nudist); X-nude,
provocative (lewd poses); XX-nude, sexual (erection,
masturbation, kissing); and XXX-nude, hardcore sex (sucking,
f***ing, licking)), and separated the materials based on the
age of the participants (“0-2 years old; 3-5 years old; 6-8
years old, and so on”). (J.A. 504, 527).
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revealed that Bolander was participating in Internet news groups
and chat rooms that catered to pedophiles. 7
As a result of the search, more federal charges were
brought against Bolander. He was convicted of possession of
child pornography in February 2002 and was sentenced to sixty
months’ imprisonment. This sentence was imposed consecutive to
two sentences totaling twenty-six months that Bolander received
for supervised release violations.
Bolander’s projected release date from prison (with good-
time credits factored) was February 9, 2007. On that day, the
BOP certified that he was a “sexually dangerous person” pursuant
to § 4248(a), automatically staying his release pending an
evidentiary hearing. According to the certification, based on
psychological assessments of Bolander, he would have serious
difficulty refraining from sexually violent conduct or child
molestation if released.
The procedural history of this case gets muddled following
the filing of the certification, as it took nearly five years to
hold the evidentiary hearing. Such delay is relevant to
Bolander’s due process claim, so we will set forth that relevant
procedural history in Part IIIB of the opinion. At the
7
The record reflects that Bolander endorsed pro-pedophilic
beliefs. He believes adult-child sexual relations are natural
and beneficial.
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conclusion of the January 19, 2012 evidentiary hearing, the
district court found that the government had proven by clear and
convincing evidence that Bolander was a “sexually dangerous
person” under the Act. Bolander noted this timely appeal.
II
A
To obtain a commitment order against Bolander, the
government was required to establish three elements by clear and
convincing evidence. First, the government was required to
establish that Bolander had “engaged or attempted to engage in .
. . child molestation” in the past, 18 U.S.C. § 4247(a)(5).
Next, the government was required to prove that he currently
“suffers from a serious mental illness, abnormality, or
disorder,” id. § 4247(a)(6). Finally, the government was
required to show that Bolander, as a result of the illness,
abnormality, or disorder, “would have serious difficulty in
refraining from . . . child molestation if released.” Id.
“[C]lear and convincing has been defined as evidence of
such weight that it produces in the mind of the trier of fact a
firm belief or conviction, without hesitancy, as to the truth of
the allegations sought to be established, and, as well, as
evidence that proves the facts at issue to be highly probable.”
Jimenez v. DaimlerChrysler Corp., 269 F.3d 439, 450 (4th Cir.
- 11 -
2001) (citations, alterations, and internal quotation marks
omitted).
On appeal, we review the district court’s factual findings
for clear error and its legal conclusions de novo. United
States v. Hall, 664 F.3d 456, 462 (4th Cir. 2012). “A finding
is ‘clearly erroneous’ when although there is evidence to
support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed.” United States v. United States Gypsum Co., 333 U.S.
364, 395 (1948). “This standard plainly does not entitle a
reviewing court to reverse the finding of the trier of fact
simply because it is convinced that it would have decided the
case differently.” Anderson v. Bessemer City, 470 U.S. 564, 573
(1985). “If the district court’s account of the evidence is
plausible in light of the record viewed in its entirety, the
court of appeals may not reverse it even though convinced that
had it been sitting as the trier of fact, it would have weighed
the evidence differently.” Id. at 573–74.
“When findings are based on determinations regarding the
credibility of witnesses,” we give “even greater deference to
the trial court’s findings.” Id. at 575. We do this because
only the trial judge can be aware of the variations in
demeanor and tone of voice that bear so heavily on the
listener’s understanding of and belief in what is
said. This is not to suggest that the trial judge may
insulate his findings from review by denominating them
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credibility determinations, for factors other than
demeanor and inflection go into the decision whether
or not to believe a witness. Documents or objective
evidence may contradict the witness’ story; or the
story itself may be so internally inconsistent or
implausible on its face that a reasonable factfinder
would not credit it. Where such factors are present,
the court of appeals may well find clear error even in
a finding purportedly based on a credibility
determination. But when a trial judge’s finding is
based on his decision to credit the testimony of one
of two or more witnesses, each of whom has told a
coherent and facially plausible story that is not
contradicted by extrinsic evidence, that finding, if
not internally inconsistent, can virtually never be
clear error.
Id. (citations and alterations omitted). As with lay witnesses,
“[e]valuating the credibility of experts and the value of their
opinions is [also] a function best committed to the district
courts, and one to which appellate courts must defer,” and we
“should be especially reluctant to set aside a finding based on
the trial court’s evaluation of conflicting expert testimony.”
Hendricks v. Central Reserve Life Ins. Co., 39 F.3d 507, 513
(4th Cir. 1994).
B
Here, there is no dispute that Bolander engaged in a past
act of child molestation, as evidenced by his prior conviction
in California state court for engaging in a lewd and lascivious
act with a child under the age of fourteen. Thus, the district
court correctly found that the government established the first
element of sexual dangerousness by clear and convincing
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evidence. 18 U.S.C. § 4247(a)(5). There is also no dispute
that Bolander presently “suffers from a serious mental illness,
abnormality, or disorder.” Id. § 4247(a)(6). Bolander was
diagnosed by several clinical psychologists as suffering from
pedophilia and antisocial personality disorder, and Bolander
does not challenge these findings on appeal. Accordingly, the
district court correctly found that the government established
the second element by clear and convincing evidence.
Thus, the outcome of this appeal largely turns on whether
the district court erred in finding that the government had
proven, by clear and convincing evidence, that Bolander, as a
result of these disorders, “would have serious difficulty in
refraining from . . . child molestation if released” from
custody. Id. § 4247(a)(6).
The final element of the sexual dangerousness analysis
turns on the degree of the person’s “volitional impairment,”
which impacts the person’s ability to refrain from acting upon
his deviant sexual interests. Kansas v. Hendricks, 521 U.S.
346, 358 (1997); Hall, 664 F.3d at 463. A person’s lack of
control or inability to control his behavior
will not be demonstrable with mathematical precision.
It is enough to say that there must be proof of
serious difficulty in controlling behavior. And this,
when viewed in light of such features of the case as
the nature of the psychiatric diagnosis, and the
severity of the mental abnormality itself, must be
sufficient to distinguish the dangerous sexual
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offender whose serious mental illness, abnormality, or
disorder subjects him to civil commitment from the
dangerous but typical recidivist convicted in an
ordinary criminal case.
Kansas v. Crane, 534 U.S. 407, 413 (2002). “Whether [an]
individual is mentally ill and dangerous to either himself or
others and is in need of confined therapy turns on the meaning
of the facts which must be interpreted by expert psychiatrists
and psychologists.” Addington v. Texas, 441 U.S. 418, 429
(1979).
C
Three psychologists evaluated Bolander, prepared expert
reports, and testified at the evidentiary hearing, two on behalf
of the government, Dr. Christopher North and Dr. Lela Demby, and
one on behalf of Bolander, Dr. John Warren. 8 Bolander testified
on his own behalf. There were no objections raised to the
qualifications of the expert witnesses, and the district court
found each expert to be qualified to offer opinions on the issue
of Bolander’s sexual dangerousness. In reaching their
respective opinions, the experts utilized actuarial tests,
psychological tests, and their clinical judgment. Of note, each
of the psychologists used the reports generated during
Bolander’s participation in the SOTP at FCI-Butner. Dr. North
8
Dr. North and Dr. Warren are in private practice. Dr.
Demby is employed by the BOP.
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and Dr. Demby testified that Bolander met the criteria for civil
commitment under the Act. Dr. John Warren declined to offer an
opinion on the third element of sexual dangerousness. 9
1
In forming his opinion, Dr. North considered the voluminous
documents referenced in his reports as well as other evidence.
Such evidence included information related to Bolander’s
criminal history, medical history, social history, substance
abuse history, institutional adjustment, and other records. Dr.
North also considered the forensic evaluations of Dr. Demby and
Dr. Warren. Dr. North’s report was prepared on March 14, 2011
and updated on October 11, 2011. His testimony at the
evidentiary hearing was consistent with the findings and
conclusions contained in his report and updated report.
Dr. North determined that Bolander had previously engaged
in child molestation. He also determined that Bolander suffers
from pedophilia, male exclusive type. According to Dr. North,
9
According to Dr. Warren, as a psychologist, it was not his
place to offer an opinion on the third element. He testified
the third element was “legal jargon” and an “ultimate issue”
created by the courts, and that the third element did not “mesh
well with medical or psychological nomenclature.” (J.A. 399).
As noted below, Dr. Warren did opine, however, that Bolander had
volitional control over his actions, as evidenced by the period
of time that had elapsed since Bolander’s only molestation
offense.
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Bolander “‘lacks any internal prohibitions against engaging in
sexual activity with a child.’” (J.A. 190).
In determining whether Bolander would have serious
difficulty refraining from sexually violent conduct, Dr. North
used several risk tools that have at least a moderate degree of
accuracy. Application of such tools placed Bolander in the
comparison group of offenders with a moderate-high to high risk
of reoffending.
Dr. North used three actuarial scales aimed mainly at
examining static risk factors for sex offender risk assessment:
the Static–99R, the Static–2002R, and the Minnesota Sex Offender
Screening Tool–Revised (MnSOST–R). 10 Static risk factors
typically are historical and do not change. For example, the
Static-99R examines ten static risk factors and gives scores for
each category. 11 Such tests enabled Dr. North to calculate group
recidivism rates of sexual offenders considered by him to be
10
According to Dr. North, the use of multiple “actuarial
measures can provide increased confidence in those results.”
(J.A. 540).
11
The ten static risk factors examined by the Static-99R
are: (1) age at release from instant sex offense; (2) past
habitation with a lover for at least two years; (3) convictions
for index non-sexual violence; (4) convictions for prior non-
sexual violence; (5) prior sex offenses; (6) prior sentencing
dates; (7) convictions for non-contact sex offenses; (8) any
unrelated victims; (9) any stranger victims; and (10) any male
victims.
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most analogous to Bolander, and he found a group rate of
recidivism of 42% within ten years under Static–99R, 40% within
ten years under Static–2002R, and 20% within six years under
MnSOST–R.
In addition to these static risk tools, Dr. North also used
the Stable-2007, a dynamic risk assessment tool. According to
Dr. North, unlike static factors, which typically are historical
and do not change, a dynamic risk factor refers to something
that has the capacity to change over time, for example with
treatment. The presence of dynamic risk factors increases an
offender’s risk. The following dynamic risk factors were
considered by Dr. North: (1) significant social influences; (2)
intimacy deficits; (3) sexual self-regulation; (4) cooperation
with supervision; and (5) general self-regulation.
Dr. North determined that Bolander’s significant social
influences were “minimal or primarily negative in that they
consist of other men interested in child pornography.” (J.A.
552). Dr. North recognized Bolander’s close relationship with
his mother and step-father, but opined that these relationships
never exerted any significant influence over his sexual life or
behavior.
Dr. North determined that intimacy deficits were a
significant risk factor for Bolander because he had never
established or maintained a committed, reciprocal relationship
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with a partner that was not abusive. Dr. North noted that
Bolander had indicated in the past that he was not interested in
developing intimate or sexual relationships with adults. Dr.
North also noted Bolander’s lack of remorse and that his
dependency needs may motivate him to seek contact with other
children.
According to Dr. North, Bolander had a “severe problem[]”
with sexual self-regulation. Dr. North noted that Bolander had
been obsessed with child pornography for many years and had
collected child pornography while on probation and parole. He
further noted that Bolander “has shown a high degree of sexual
preoccupation and is exclusively attracted to prepubescent
boys.” (J.A. 553).
Dr. North determined that Bolander’s lack of cooperation
with supervision was problematic. He noted that Bolander’s
institutional behavior was “fairly good,” but was poor while on
probation/parole, as demonstrated by his numerous violations
while on supervised release. (J.A. 553).
With regard to general self-regulation, Dr. North indicated
that Bolander’s problem-solving skills were poor because he is
unwilling to meaningfully address his pedophilia and obsessive
involvement with child pornography. Overall, Dr. North
described Bolander’s general-self regulation as “poor.” (J.A.
553).
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Dr. North also examined potentially protective factors. A
protective factor decreases the risk of future sexual offending.
The three potentially protective factors examined by Dr. North
are: (1) having been in the community for ten years without
sexually reoffending; (2) having less than fifteen years left to
live due to illness or physical conditions that significantly
decrease the motivation and/or ability to sexually reoffend; and
(3) very advanced age. Dr. North opined that none of these
factors were particularly mitigating for Bolander. Bolander had
no medical problems that would serve to decrease his ability or
motivation to commit a new sexual offense. Although it had been
more ten years since Bolander’s last hands-on conviction, Dr.
North noted that Bolander’s obsession with child pornography
placed him in positions where there was considerable risk to
children. Dr. North further noted that Bolander chose to live
close to children, an act which placed him at high risk of
reoffending. He also noted that Bolander’s total time in the
community since his last hands-on conviction was limited, and
during this time Bolander was under supervision, which made it
more difficult for him to make contact with a child.
In the “SUMMARY” and “CONCLUSION” sections of his March 14,
2011 report, Dr. North stated:
Bolander is a 47-year-old pedophile who is exclusively
attracted to boys. He was convicted of molesting an
11-year-old boy in California in 1989 and sentenced to
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six years in prison. Since then he has obsessively
collected child pornography despite repeated arrests
and returns to custody for this behavior. His
pedophilia is ego-syntonic meaning he accepts it and
is not distressed by his sexual attraction to boys.
He believes it is society that has the problem and
told Dr. MacLaren in 1989 that boys over the age nine
or ten “know what homosexuality is and know what they
are doing.” Mr. Bolander is attracted to boys between
the ages of 6 and 12.
The critical issue in this case is Mr. Bolander’s risk
of committing a new “hands-on” sex offense. Although
he obtained moderate to high scores on the actuarial
instruments used to assess risk for sexual reoffense,
these instruments do not predict the type of sexual
offense to be committed and he clearly appears to be
more likely to commit a “hands-off” offense (involving
pornography) than a “hands-on” crime. On the other
hand, he has not been in the community for very long
since paroling for his molest offense in 1992 and was
supervised closely enough that it was probably
difficult for him to establish contact with a child.
It was easier for him to believe that he could escape
detection by collecting pornography. . . . He is 47
years old and appears to be in good health, and
barring any unforeseen circumstances, his opportunity
time (at risk) could be 30 to 40 years. Given the
lack of any internal prohibitions against sexual
activity with a child and Mr. Bolander’s intense
sexual interest in male children, it is this
evaluator’s opinion that eventually Mr. Bolander is
indeed likely to commit a new “hands-on” sex offense
with a prepubescent boy. His pedophilia will cause
him serious difficulty in refraining from child
molestation if released to the community.
* * *
Based on the above information, it is my opinion that
Mikel Bolander does meet the criteria as a Sexually
Dangerous Person.
(J.A. 554-55).
Following the preparation of this report, Dr. North met
with Bolander. During the interview, Bolander clarified some
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minor factual inaccuracies in Dr. North’s report. He also
stressed to Dr. North that he was trying to increase his sexual
arousal to adults, had not masturbated in five to six years,
knew child molestation and possession of child pornography were
wrong, felt remorse for victims, and was “truly motivated to
never molest again.” (J.A. 580). Although Dr. North noted that
Bolander “presented well,” he was skeptical of Bolander’s
claims, noting that he had made reformation claims in the past
yet still went on to amass large collections of child
pornography. Ultimately, Dr. North concluded that Bolander’s
“exclusive sexual interest in prepubescent boys is so strong
that he will have serious difficulty refraining from child
molestation if released to the community.” (J.A. 581).
2
Dr. Demby, a BOP forensic psychologist, also testified at
the evidentiary hearing. Her testimony was consistent with the
findings and conclusions contained in her report dated March 9,
2011.
In her report, Dr. Demby examined Bolander’s developmental
history, relationship history, education history, employment
history, substance abuse history, non-sexual criminal history,
sexual criminal history, psychiatric/psychological history,
mental health history, and medical history. Because Bolander
refused to participate in a clinical evaluation with Dr. Demby,
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she was not able to interview Bolander as part of her
evaluation.
Dr. Demby made the following diagnoses: “(1) Pedophilia,
Sexually Attracted to Males, Exclusive and (2) Schizoid
Personality Disorder.” (J.A. 195). Dr. Demby explained the
bases for each of her diagnoses and opined that each qualify as
a serious mental illness, abnormality, or disorder. Further,
she concluded that, as a result of these diagnoses, Bolander
would have serious difficulty in refraining from sexually
violent conduct.
With regard to the pedophilia diagnosis, Dr. Demby
explained that Bolander meets the diagnosis based, in part, on
his recurrent and intense sexually arousing fantasies, and
sexual urges and actions involving prepubescent males. Further,
she opined that the evidence shows he constructed his lifestyle
to obtain maximum exposure to young children and child
pornography, even while on supervised release. He engaged in
sophisticated techniques to avoid financial disclosure of his
activities to his probation officers. She specifically noted
that treatment providers have reported that he has demonstrated
little guilt or remorse for his crimes, except for self-focused
regret concerning the negative consequences he has endured. In
spite of efforts at treatment, he has continued to engage in
sexually inappropriate attraction to young boys even when the
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threat of detection and sanctions are high, as indicated by his
theft of sexual stimuli at ASH and his numerous revocations of
supervised release.
Dr. Demby utilized the Static-99R to assess Bolander’s risk
of sexual reoffense. She found a group rate of recidivism of
49% within ten years under this test.
In considering the applicability of dynamic risk factors,
Dr. Demby utilized an empirically guided risk assessment tool
called the “SVR-20.” (J.A. 511). The SVR–20 does not yield
quantitative predictions in the same way that the Static–99 and
Static–2002R do. Instead, the scorer evaluates twenty factors
weighing them in their totality to form an overall opinion about
whether an offender will likely reoffend. 12 Dr. Demby concluded
that Bolander had eight factors that were considered to
12
The twenty factors include: (1) the presence of sexual
deviance; (2) whether the respondent had been a victim of child
abuse; (3) psychopathy traits; (4) the presence of a major
mental illness; (5) endorsement of suicidal or homicidal
ideation; (6) a history of substance abuse; (7) the presence of
a stable relationship; (8) a stable employment history; (9) a
history of nonsexual violent offenses; (10) a history of
nonviolent and nonsexual offenses; (11) past supervision
failure; (12) a high density of sexual offenses within a
relatively short period; (13) multiple types of sexual offenses;
(14) causing victims physical harm; (15) the use of weapons or
threats; (16) the presence of escalating sexual offenses or
severity of sexual offenses; (17) extreme minimization or denial
of responsibility; (18) attitudes that support or condone sexual
offenses; (19) negative attitudes towards intervention; and (20)
release and relapse prevention plans.
- 24 -
exacerbate his risk of reoffending (Factors (1), (7), (10), (11)
(13), (17), (18), and (19)), eleven that were considered not to
exacerbate his risk of reoffending (Factors (2), (3), (4), (5),
(6) (8), (9), (12), (14), (15), and (16)), and one factor
(Factor 20) that was not assessed because Bolander refused to be
interviewed. After weighing the number and nature of the
exacerbating factors, Dr. Demby concluded that Bolander’s risk
of future sexual violence was “High” on the SVR-20. (J.A. 515).
With regard to the factors in exacerbation, Dr. Demby
emphasized Bolander’s sexual deviance, as evidenced by his
history of sexual arousal to young children and his lack of an
interest in engaging in a sexual or intimate relationship with
an adult. She also emphasized that Bolander had no stable
relationships that would provide him support upon release, as
evidenced by his history as a loner and his desire to “continue
[life] in this vein.” (J.A. 513). Dr. Demby noted as
exacerbating Bolander’s history of non-violent, non-sexual
offenses, which included juvenile delinquency, substance abuse,
and a DUI conviction. Also exacerbating were Bolander’s past
supervision failures, namely, his “violat[ion of] supervision on
two occasions by sexually reoffending.” (J.A. 514). Dr. Demby
noted that Bolander had multiple types of offenses involving
child abuse/pornography (molestation, possession and
distribution of pornography, and attempting to receive child
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pornography through the mail) and that Bolander continued to
minimize and deny responsibility for his conduct. Dr. Demby
also examined Bolander’s long history of supporting a right to
adult-child relationships:
“[C]opious treatment records indicate that he believes
that he is entitled to sex, and that he is a
preferential, fixated, same-sex pedophile. When told
that he needed to recondition his pedophilic urges, he
has sabotaged treatment, stolen sexual stimuli, and
twice refused to participate in arousal
reconditioning. He has stated several times the he
would continue to molest boys if he thought he could
get away with it.
(J.A. 514). Relying on much of the same evidence, Dr. Demby
concluded that Bolander harbored a negative attitude toward
intervention.
With regard to the factors that did not exacerbate, Dr.
Demby noted that Bolander was not a victim of sexual abuse. She
noted that, although Bolander displayed signs of psychopathy,
such signs were insignificant to find the psychopathy factor
exacerbating. Dr. Demby found no presence of a major mental
illness, suicidal or homicidal ideation, or a recent history of
substance abuse. She noted Bolander’s ability to maintain
steady employment and that he had no history of non-violent
sexual offenses. Dr. Demby also noted that Bolander had not
committed sexual offenses frequently in a short period of time,
had not physically injured his victims, and used no weapons or
threats during the commission of his offenses. Finally, Dr.
- 26 -
Demby noted that Bolander’s sexual offenses did not escalate or
become more severe over time.
At the conclusion of her report, Dr. Demby gave a “Summary
of Risk Assessment & Prognosis” and an “Opinion on the Issue of
Sexual Dangerousness.” (J.A. 516-17). The report states:
Mr. Bolander is a 47-year-old, life-long pedophile and
child abuser whose past history and high scores on the
Static-99R and the SVR-20 indicate a very high
probability that his past patterns of sexually abusing
children will continue. His paraphilic sexual
attraction to children began in his early adolescence,
and has led to numerous charges, convictions,
incarceration, and revocations of his release. He has
unsuccessfully attempted therapy to address his sexual
attraction to young boys. He continues to endorse
sexually deviant beliefs, and minimizes his
responsibility by blaming his child victim for
initiating the sexual molestation. He has behaved in
sexually inappropriate ways even when the risk of
detection was high, as seen in his residential
proximity to children, and downloading and
distribution of a massive amount of child pornography,
while on supervised release. His pervasive
personality style of exploiting his environment
displays itself in his repeated violations of social
norms, expectations, and rules, including the sexual
coercion of those most vulnerable around him.
Cumulatively, his overall history, criminal record,
offense characteristics, lifestyle choices,
personality patterns, sexual relapses, and treatment
failures indicate an extremely high risk of future
sexual reoffense. His prognosis at this time is very
poor.
* * *
It is highly likely that Mr. Bolander will continue
the sexual abuse of young children, particularly
prepubescent boys. His diagnosis of Pedophilia and
Schizoid Personality Disorder are chronic, pervasive,
and deeply engrained. He has continued to sexually
reoffend after receiving sex offender treatment and
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intensive community supervision. He has stated and
demonstrated his intent to continue to indulge his
pedophilic sexual deviance. It is the opinion of this
evaluator that Mr. Bolander is a person suffering 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.
(J.A. 516-17).
3
Dr. Warren testified at the evidentiary hearing as
Bolander’s expert witness. His testimony was consistent with
the findings and conclusions contained in his report dated July
25, 2011. Dr. Warren opined that Bolander met the first two
elements necessary for sexual dangerousness. As part of his
evaluation, Dr. Warren used the Static-99R test. He calculated
Bolander’s group rate of recidivism to be 14.7% within five
years. Dr. Warren also identified six dynamic factors, four
lessening the recidivism risk (significant social influences,
sexual self-regulation, general self-regulation, and cognitive
problem solving skills) and two increasing the risk of
recidivism (intimacy deficits and cooperation with supervision).
Dr. Warren opined that Bolander had certain strengths that would
enable him to function normally in society by maintaining his
volitional control. Dr. Warren noted that Bolander: (1)
functioned in an incarcerated setting without significant
disciplinary issues; (2) had been able to control his behavior
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in terms of hygiene, his activities, and his vocational
interests within the facility; (3) had a four-year period of
non-contact offending; (4) earlier in life decided to stop
marijuana use; (5) earlier in life decided to further his
education; and (6) made decisions earlier in life to advance his
vocational interests. In the “Summary and Recommendations”
section of his report, Dr. Warren states:
Mikel James Bolander is a 47-year-old, Caucasian male
with a history of completion of sentencing for
conviction of Possession of Child Pornography. He has
a previous conviction for one, sexually-related
contact offense and two other child pornography (one
possession, one mailing) offenses.
He does not have a mental disorder that [impairs] his
volitional ability to control his behavior. He does
not have a personality disorder.
Mr. Bolander’s risk for sexual re-offending with child
pornography offenses is higher than that of contact
offending, and overall slightly higher than all sexual
offenders taken as a group. However, his risk for all
sexual re-offending upon release from incarceration is
more likely than not lower than the published
recidivism risk of non-sexual offenders released from
prison.
Mr. Bolander has a history of gainful and consistent
employment. He has interpersonal and technical skills
that can be applied to future employment. If released
from incarceration Mr. Bolander reported his plan to
reside in Las Vegas due to the multiple opportunities
for employment . . . and to the proximity of his
parents’ residence about one and a half hours away.
(J.A. 560-61). As noted above, Dr. Warren did not offer an
opinion on the third element of the commitment test, but he did
indicate that, whether Bolander was committed or released, he
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needed sexuality psychoeducation in the context of a strength
based individual and/or group treatment approach, and cognitive
behavioral treatment.
D
Bolander also testified at the evidentiary hearing. He
described the details of his only hands-on offense and expressed
remorse over what had happened. He testified that, around 2004
or 2005, he had a change of heart that caused him to think
differently about child molestation. He read numerous
psychological journals and books on victim empathy. Bolander
testified that he now knows child molestation is “totally
wrong,” (J.A. 342), and that he had not thought about children
in a sexual way in over seven years. He testified he would not
molest another child again. He also testified that, for the
first time in his life, he has been able to develop close
friendships with adults.
E
Dr. Andres Hernandez, who was the Director of SOTP while
Bolander was enrolled in the program, testified as a lay witness
at the evidentiary hearing. He testified that Bolander’s
participation in the SOTP was “rather memorable.” (J.A. 358).
He found “striking” Bolander’s “pedophilic drive,” his
resistance to treatment, and “the degree to which his pedophilic
beliefs were so entrenched.” (J.A. 358). Dr. Hernandez also
- 30 -
found that Bolander was not in the SOTP to change, but rather to
challenge the beliefs of others.
F
At the conclusion of the evidentiary hearing, the district
court ruled from the bench. With respect to the third element
of the commitment test, the district court stated:
Respondent [has] continued to commit criminal offenses
while on parole or supervised release, . . .
Respondent has not successfully completed a sex
offender program. Both Doctors Demby and North opined
that Respondent would have serious difficulty in
refraining from sexual violent conduct or child
molestation if released. The Court finds that both
doctors are credible and adopts their conclusions as
they are well-reasoned and supported by the evidence
in this case.
Both Doctors Demby and North found that, using
actuarial instruments, the Respondent is in the
moderate to high range. However, [t]he Court believes
though these instruments are important, the greater
weight should be placed on factors outside the
actuarial scheme as indicated in those instruments.
These include the areas discussed before, i.e., the
relapse, failure to complete the offenders program.
Respondent believes on his “oath to himself” that it –
this will ensure that he does not reoffend. This is
certainly a good start, but his lack of completion of
a sex offender program leaves him without the tools to
accomplish his oath. Respondent’s self-help by
reading books and developing victim empathy is good,
but [t]he Court finds that this is not a substitute
for a sex offender program, and Respondent has failed
to seriously complete a program.
The Court finds that Respondent places himself in a
slippery slope situation, and it appears that that’s a
word that comes up very often in these cases. It’s
defined by the way his conduct was while he was
released into the community and has not developed the
necessary skills to remain free if released.
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The Court finds that Respondent talks the talk, but,
again, does not have the skills to remain crime free
without meaningful mainstream treatment. And I say
mainstream treatment as opposed to Dr. Warren, who I’m
sure was very knowledgeable and so forth, but
suggested treatment that was not that mainstream and
not in the sense that it was not good treatment. But
it was certainly an unreasonable expectation to have
that kind of one-on-one kind of treatment while he’s
incarcerated, though he does get one-on-one . . . when
needed, and it would be unrealistic to release him
until such time as he has this treatment and develops
the skills necessary so that he does not reoffend.
For these reasons, [t]he Court finds that Respondent
is sexually dangerous and that he suffers from a
serious mental illness, abnormality or disorder and as
a result of this, he would have serious difficulty in
refraining from sexually violent conduct or child
molestation if he was released.
(J.A. 425-27).
G
Bolander maintains that the district court erred in
concluding that he would have serious difficulty refraining from
future acts of child molestation. Reduced to its essence,
Bolander posits that the district court did not adequately take
into account his time in the community without a hands-on
offense.
“Serious difficulty” refers to the degree of the person’s
volitional impairment which impacts the person’s ability to
refrain from acting upon his deviant sexual interests. Hall,
664 F.3d at 463. Here, there were facts in evidence, if
credited by the district court, that would support a finding
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that Bolander would have serious difficulty refraining from acts
of child molestation if he was released because of his
pedophilia. The record is replete with examples of Bolander’s
inability to refrain from engaging in acts involving child
pornography. Whether it was his stealing of pornographic
materials from the treatment lab while at ASH or his repeated
possession of child pornography while on supervised release, the
record is clear that he has serious difficulty refraining from
trying to find an appropriate outlet for his sexual desires. He
has an admitted attraction to adolescent males between the ages
of six and twelve and has not participated in any treatment
which would assist him in managing these volitional control
issues. Moreover, the intense nature of Bolander’s obsession
with child pornography, in particular his large cache of
materials and the meticulous manner in which he kept such
materials, understandably was a concern of Dr. North and Dr.
Demby. In view of this evidence, it was reasonable for the
district court to find by clear and convincing evidence that
Bolander’s pedophilia would cause him to have serious difficulty
refraining from acts of child molestation.
Bolander’s argument that the district court did not
adequately consider the fact that he had no hands-on offense in
over twenty years misses the mark. As noted by Dr. North, the
absence of a more recent hands-on offense has more to do with
- 33 -
the strict supervision placed on Bolander than a true change of
heart. Considering Dr. North’s reasonable explanation, the
district court was at liberty to reject Bolander’s no hands-on
offense argument. Anderson, 470 U.S. at 573-75. Along a
similar vein, the district court was free to reject Bolander’s
testimony that he is a reformed man. The success of his
rehabilitation efforts largely are suspect considering he is
doing them on his own.
In sum, as we noted in Hall, the “question of whether a
person is ‘sexually dangerous’ is ‘by no means an easy one,’ and
‘there is no crystal ball that an examining expert or court
might consult to predict conclusively whether a past offender
will recidivate.’” 664 F.3d at 467 (quoting United States v.
Shields, 649 F.3d 78, 89 (1st Cir. 2011), cert. denied, 132 S.
Ct. 1586 (2012)). In this case, the district court carefully
considered the evidence before it, and its factual findings
represent a permissible and reasonable interpretation of the
evidence presented at the hearing. Because we are not “left
with the definite and firm conviction that a mistake has been
committed” by the district court, United States Gypsum Co., 333
U.S. at 395, we cannot say that the district court clearly erred
in finding, by clear and convincing evidence, that Bolander is
sexually dangerous within the meaning of the Act.
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III
Having concluded that the district court did not err when
it found by clear and convincing evidence that the government
met each of the three elements for sexual dangerousness, we turn
to Bolander’s remaining arguments challenging his civil
commitment.
A
Bolander contends that § 4248 deprives him of equal
protection under the Fifth and Fourteenth Amendments. In
pressing this argument, Bolander acknowledges that this argument
is foreclosed by our decision in United States v. Timms, 664
F.3d 436 (4th Cir.), cert. denied, 133 S. Ct. 189 (2012). In
Timms, we held that § 4248 does not violate the Equal Protection
Clause because individuals in BOP custody are not similarly
situated to individuals who are not in BOP custody. Id. at 449.
In so holding, we emphasized that “Congress rationally limited
§ 4248’s scope to sexually dangerous persons within BOP custody
based on Congress’ limited police power and the federal interest
in protecting the public from reasonably foreseeable harm from
such persons.” Id. Because Timms forecloses Bolander’s equal
protection argument, we reject it.
Bolander also contends that § 4248 levies an
unconstitutional criminal punishment. This argument also is
foreclosed by our decision in Timms. Id. at 455. In Timms, we
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clarified any ambiguity concerning this question created by our
decision in United States v. Comstock, 627 F.3d 513 (4th Cir.
2010), cert. denied, 131 S. Ct. 3026 (2011) (Comstock II). Id.We further noted that § 4248’s use of the clear and convincing
evidence standard rather than the proof beyond a reasonable
doubt standard rendered the overall design of § 4248 civil in
nature. Id. 13
B
Second, Bolander argues that his due process rights were
violated because the January 12, 2009 evidentiary hearing took
place almost five years after he was due to be released
(February 9, 2007). This argument has no merit.
In Timms, we noted that the “civil commitment process
clearly impacts an individual’s due process rights.” Id. at
450. “Because an adverse outcome in a commitment hearing
results in a massive curtailment of a person’s liberty, whether
the respondent is already a prisoner or not, the Supreme Court
has held that due process . . . affords respondents in [civil
commitment] proceedings several procedural protections.” Id.
13
To the extent Bolander challenges the actual conditions
of his confinement under § 4248, this civil/criminal argument
similarly is foreclosed by Timms. 664 F.3d at 455. That is not
to say, however, that Bolander is without a remedy. As the
government concedes, Bolander may challenge the conditions of
his confinement in an action under Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
- 36 -
(citation and internal quotation marks omitted). “Once it is
determined that due process applies, the question remains what
process is due.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
In assessing what due process is due in the civil
commitment context, we analyze “‘the importance of the private
interest and the harm to this interest occasioned by delay; the
justification offered by the Government for delay and its
relation to the underlying governmental interest; and the
likelihood that the interim decision may have been mistaken.’”
Timms, 664 F.3d at 451 (quoting FDIC v. Mallen, 486 U.S. 230,
242 (1988). This test “evaluate[s] the sufficiency of
particular procedures, while also avoiding the establishment of
rigid rules due to the recognition that the requirements of due
process are flexible and cal[l] for such procedural protections
as the particular situation demands.” Id. (citations and
internal quotation marks omitted).
Without question, Bolander possesses a substantial private
interest affected by the certification under § 4248. His
interest in liberty and freedom from physical restraint are at
stake. Thus, the private liberty interest factor weighs in his
favor. Id. (“The statute also places no express outer limit on
how long that stay may remain in force or when the court must
conduct the commitment hearing. During that period of time,
however short or long it may be, an individual’s liberty is
- 37 -
restrained; thus, the statute implicates a substantial
interest.”). Moreover, the likelihood that the interim decision
may have been mistaken factor favors Bolander. Id. at 452
(noting that the interim decision factor weighed in favor of the
respondent because § 4248 requires no specific steps prior to
certifying someone, other than that signatory’s determination
that the person meets the criteria for being sexually dangerous,
§ 4248 requires no pre-certification hearing or other initial
adversarial review, and the risk of improper certification was
“apparent from the parties’ representation that of the
approximately 130 individuals certified under § 4248, the
Government subsequently dismissed almost two dozen
certifications because it subsequently determined the individual
did not satisfy the criteria”).
However, like the respondent in Timms, Bolander’s due
process claim fails because the last inquiry, the government’s
interest and the justification offered by the government for the
delay, weighs decidedly in the government’s favor. To resolve
this last inquiry, we must first turn to the convoluted
procedural history of the case.
Following the implementation of the Act, the government
began to certify individuals as sexually dangerous under the
Act. Such action led to a host of constitutional challenges in
the United States District Court for the Eastern District of
- 38 -
North Carolina, the district in which nearly all § 4248 actions
were filed.
On February 9, 2007, the government filed a certificate in
the United States District Court for the Eastern District of
North Carolina seeking to commit Bolander as a sexually
dangerous person under § 4248. At the time, Bolander was about
to be released from BOP custody, but his release was stayed
because of the government’s § 4248 certification. On the same
day, Judge Britt, the senior district judge assigned to
Bolander’s case, appointed the Federal Public Defender to
represent Bolander and set a hearing date of September 4, 2007.
On August 15, 2007, Bolander filed a motion to continue the
hearing, which the district court granted.
On September 7, 2007, Judge Britt issued his ruling in
United States v. Comstock, 507 F. Supp. 2d 522 (E.D.N.C. 2007).
In that case, the government certified five respondents in its
custody as sexually dangerous under § 4248 and requested
evidentiary hearings. Id. at 526-27. However, no evidentiary
hearings were held. Id. at 559-60. Instead, Judge Britt
granted the respondents’ motions to dismiss as a matter of law,
on the ground that § 4248 exceeded the scope of Congress’s
authority under the United States Constitution to enact
legislation and, in the alternative, on the ground that the
statute facially violated the respondents’ due process rights.
- 39 -
Id. at 526, 559. However, Judge Britt stayed the release of the
respondents from custody pending an appeal from his decision.
Id. at 560.
On September 11, 2007, Bolander filed a motion to dismiss
the certification on the basis of Judge Britt’s decision in
Comstock. In response, on September 20, 2007, the government
moved to stay its response to Bolander’s motion and other
similar motions pending in numerous certification cases in the
Eastern District of North Carolina. On January 8, 2008, the
district court granted the government’s motion to stay its
response to Bolander’s motion and other similar motions pending.
On January 8, 2009, we affirmed the dismissal of the § 4248
certifications in United States v. Comstock, 551 F.3d 274 (4th
Cir. 2009), rev’d, 130 S. Ct. 1949 (2010) (Comstock I), holding
that Congress lacked constitutional authority to enact the
statute. Id. at 276. The following day, Bolander filed a
motion for release from custody, relying on our decision in
Comstock I. While this motion was pending, the government
petitioned for a writ of certiorari. The United States Supreme
Court granted the petition on June 22, 2009. United States v.
Comstock, 129 S. Ct. 2828 (2009). Because the Supreme Court
granted the petition, the district court declined to rule on
Bolander’s motion for release.
- 40 -
In May 2010, the United States Supreme Court issued its
opinion in United States v. Comstock, reversing our decision
that § 4248 was unconstitutional, and holding that Congress
properly enacted the statute pursuant to the Necessary and
Proper Clause of the United States Constitution. 130 S. Ct.
1949, 1954 (2010). The Supreme Court remanded the case to this
court to consider the additional grounds presented, but not
decided, in Comstock I, and upon which the district court in
that case had held that § 4248 was unconstitutional. Id. at
1955, 1965.
Following the Supreme Court’s decision in Comstock, on June
6, 2010, the district court denied, under the authority of
Comstock, all pending motions for release in the § 4248 cases
before it and lifted any stay or abeyance ordered in those
cases. The district court directed Bolander to proceed with
additional constitutional challenges or an evidentiary hearing
as he saw fit.
On June 22, 2010, Bolander filed a motion to dismiss the
certification, relying on the constitutional claims left
unresolved by the Supreme Court’s decision in Comstock. In the
motion, Bolander stated that he was not requesting an
evidentiary hearing “[a]t this time.” (J.A. 67).
On August 4, 2010, the then-Chief Judge for the Eastern
District of North Carolina, Chief Judge Louise W. Flanagan,
- 41 -
issued a standing order related to the processing of § 4248
commitment actions in that district. The order’s terms included
the following provision regarding motions for hearings:
Until such time as the final determination by an
appellate court of “any claim that the statute or its
application denies equal protection of the laws,
procedural or substantive due process, or any other
rights guaranteed by the Constitution[,]” if an
individual respondent would like to proceed with the
litigation of the government’s petition for his
commitment, counsel for the respondent shall inform
the court of the respondent’s desire to proceed with a
hearing by filing a motion for a hearing. Such motion
shall be filed . . . as soon as practicable after the
respondent informs his counsel of his desire to
litigate the commitment petition.
Aug. 4, 2010 Standing Order of the Court, § 3(b). On August 6,
2010, Bolander’s case was reassigned to Chief Judge Flanagan.
We heard oral argument in the remanded case in September
2010. In our December 10, 2010 decision in Comstock II, we
reversed the district court’s judgment concerning the burden of
proof under § 4248. We held that the statute did not violate
the Due Process Clause by requiring a court to find by clear and
convincing evidence (rather than proof beyond a reasonable
doubt) that the individual has engaged or attempted to engage in
sexual violence or child molestation and is sexually dangerous
to others. 627 F.3d at 519-25. Consequently, the case was
remanded to the district court with instructions to proceed to
the merits on the pending commitment actions. Id. at 525.
- 42 -
On December 15, 2010, Bolander filed a motion for
substitution of counsel, asserting that his relationship with
his public defender had deteriorated to the point where he felt
the public defender could not adequately represent him. On
January 14, 2011, the Office of the Federal Public Defender
moved to withdraw and have new counsel appointed. On February
16, 2011, the motion for substitution of counsel and the motion
to withdraw were granted.
On January 28, 2011, the district court entered a
scheduling order directing the government to provide initial
disclosures. The government’s initial disclosures were due by
April 4, 2011, and Bolander’s were due by June 6, 2011. After
the exchange of initial disclosures, the parties had an
additional sixty days within which to conclude discovery.
On March 25, 2011, the district court denied Bolander’s
June 22, 2010 motion to dismiss the certification, finding no
grounds in which to grant the motion. On May 31, 2011, Bolander
moved for an extension of time until July 18, 2011 to provide
his initial disclosure. The motion was granted. On July 14,
2011, Bolander sought to extend the deadline until September 16,
2011, and the district court granted this request as well.
On September 16, 2011, the district court set an
evidentiary hearing date of November 28, 2011. On September 23,
2011, Bolander requested a continuance of the hearing date until
- 43 -
the week of December 20, 2011. The motion for continuance was
granted, but the district court set the evidentiary hearing for
January 12, 2012.
In this case, the record reflects that the justification
offered by the government for the delay in holding Bolander’s
§ 4248 hearing satisfies the requirements of due process. The
initial date for Bolander’s evidentiary hearing was September 4,
2007. However, prior to the hearing date, Bolander moved for a
continuance. Before a new hearing date was set, the district
court issued its ruling in Comstock. From the time the district
court issued this decision, the government cannot be held
responsible for failing to push for an evidentiary hearing. As
we noted in Timms, the government cannot be blamed “for agreeing
to the abeyance in light of the heavy cost of pursuing hearings
on the merits when § 4248 proceedings remained under a cloud of
constitutional uncertainty. There is simply no basis for the
validity of the argument that the Government should have, at its
own initiative, pressed for a commitment hearing under these
circumstances.” 664 F.3d at 453.
After the Supreme Court issued its decision in Comstock,
the constitutionality of § 4248 still was unsettled.
Notwithstanding this uncertainty, Bolander did not seek an
evidentiary hearing. Rather, in his June 22, 2010 motion, he
specifically stated he was not requesting a hearing. His case
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remained dormant, mainly because Comstock II was pending in this
court, until the end of 2010 when he requested a substitution of
counsel. The granting of this request further delayed the
proceedings, with no fault attributable to the government.
After substitute counsel was appointed, Bolander sought two
extensions of time in which to file initial disclosures and
requested a continuance after the November 28, 2011 hearing date
was set. After this request for continuance was granted, the
district court held the evidentiary hearing less than two months
after the November 28 date.
In sum, the government’s lawful exercise of its authority
under § 4248 is not to blame for the delay in holding Bolander’s
evidentiary hearing and did not deny him due process.
Accordingly, the district court did not err when it concluded
that Bolander’s due process rights were not violated in this
case.
C
As noted above, Bolander participated in the SOTP at FCI-
Butner from November 1997 until April 1998. During his
participation in the program, two relevant reports were
generated. The first is titled “Psychosexual Evaluation” and
dated January 29, 1998; the second is titled “Discharge Summary”
and dated April 13, 1998. (J.A. 518). In preparing his expert
report, Dr. North (as well as Dr. Warren) referred to these
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reports. Prior to the evidentiary hearing, on December 6, 2011,
Bolander moved in limine to exclude any and all evidence
relating to the personal disclosures he made as part of the
SOTP, contending they were privileged under a psychotherapist-
patient privilege. The district court denied the motion, and
Bolander challenges this ruling before this court.
The United States Supreme Court has recognized a
psychotherapist-patient privilege, finding that psychotherapy
serves “a public good of transcendent importance.” Jaffee v.
Redmond, 518 U.S. 1, 11 (1996). In Jaffee, the Court held that
confidential communications between a patient and a licensed
social worker, during the course of diagnosis or treatment, are
privileged and protected from discovery. Id. at 15-16.
The Court looked to Rule 501 of the Federal Rules of
Evidence, which authorizes federal courts to define new
privileges by interpreting “principles of common law . . . in
the light of reason and experience.” Fed. R. Evid. 501. Reason
and experience, as well as the fact that all fifty states plus
the District of Columbia had some version of the
psychotherapist-patient privilege, led the Court to conclude
that the psychotherapist-patient privilege exists under Rule
501. Jaffee, 518 U.S. at 10-12.
In Jaffee, the first officer to respond to a call involving
a fight shot and killed Ricky Allen. Id. at 10. Officer
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Redmond shot Allen because she believed he was about to stab
another man with a butcher knife. Id. at 4. As a result of
this incident, Officer Redmond participated in approximately
fifty counseling sessions with a state-licensed social worker.
Id. at 5. Jaffee, the administrator of Allen’s estate, brought
a § 1983 excessive force claim against the Officer Redmond. Id.
Jaffee requested production of the social worker’s notes from
her counseling sessions with Officer Redmond in order to use
these notes in cross-examination. Id. Although Officer Redmond
and the social worker asserted the psychotherapist-patient
privilege and “vigorously resisted the discovery,” the district
court ordered that the notes be disclosed. Id. After Officer
Redmond and the social worker refused discovery of the notes,
the district court instructed the jury that they could presume
the contents of the notes to be unfavorable to Officer Redmond.
Id. at 5-6. Jaffee was awarded a total judgment of $545,000
against Officer Redmond. Id. at 6.
The Seventh Circuit reversed and remanded for a new trial,
concluding that Rule 501 compelled recognition of a
psychotherapist-patient privilege. Id. According to the
Seventh Circuit, the privilege would not apply if “in the
interests of justice, the evidentiary need for the disclosure of
the contents of a patient’s counseling sessions outweighs [the]
patient’s privacy interests.” Id. at 7 (internal quotation
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marks omitted). The Seventh Circuit determined that Officer
Redmond’s privacy interest outweighed Jaffee’s evidentiary need
for the notes. Id.
On appeal to the Supreme Court, the Court affirmed the
Seventh Circuit, holding that protecting confidential
communications between a psychotherapist and patient promotes a
critical interest and outweighs the need for probative evidence.
Id. at 16-18. However, the Court rejected the Seventh Circuit’s
balancing test. Id. at 17. The Court reasoned that “[m]aking
the promise of confidentiality contingent upon a trial judge’s
later evaluation of the relative importance of the patient’s
interest in privacy and the evidentiary need for disclosure
would eviscerate the effectiveness of the privilege.” Id. at
17. The Supreme Court feared that use of a balancing test would
frustrate the aim of the privilege by making its application
uncertain. Id. at 18.
The Court’s decision in Jaffee is premised on the notion
that “[t]he mental health of our citizenry, no less than its
physical health, is a public good of transcendent importance.”
Id. at 11. The Court recognized that the psychotherapist-
patient relationship is “rooted in the imperative need for
confidence and trust” wherein the patient willingly makes “frank
and complete disclosure of facts, emotions, memories, and
fears.” Id. at 10 (internal quotation marks omitted). Thus,
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“the mere possibility of disclosure may impede development of
the confidential relationship necessary for successful
treatment.” Id. Without the privilege, the Court observed,
“confidential conversations between psychotherapists and their
patients would surely be chilled, particularly when it is
obvious that the circumstances that give rise to the need for
treatment will probably result in litigation.” Id. at 11-12.
The Jaffee Court did not outline the contours of the
psychotherapist-patient privilege, because it was “neither
necessary nor feasible to delineate its full contours in a way
that would govern all conceivable future questions in this
area.” Id. at 18 (citation and internal quotation marks
omitted). In a footnote, the Court noted that the patient may
waive this privilege, like other testimonial privileges, but did
not further address the issue of waiver. Id. at 15 n.14.
The Court in Jaffee also noted that the privilege would
yield under some circumstances. Id. at 18 n.19. In a footnote,
the Court stated “[w]e do not doubt that there are situations in
which the privilege must give way, for example, if a serious
threat of harm to the patient or to others can be averted only
by means of a disclosure by the therapist.” Id.
Like all testimonial or evidentiary privileges, the
psychotherapist-patient privilege must be strictly construed.
United States v. Squillacote, 221 F.3d 542, 560 (4th Cir. 2000)
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(spousal privilege). In the case of another evidentiary
privilege, the attorney-client privilege, we have recognized
that the holder of it may waive the privilege either expressly
or impliedly by a voluntary disclosure to a third party.
Hawkins v. Stables, 148 F.3d 379, 384 n.4 (4th Cir. 1998)
(attorney-client privilege). An implied waiver waives the
privilege not only as to the specific information disclosed, but
also as to the subject matter of the disclosure. Id. The
burden rests on the person invoking the privilege to demonstrate
its applicability, including the absence of any waiver of it.
United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982).
In this case, the government argues that a person subject
to civil commitment does not have a constitutionally protected
expectation of privacy in prison treatment records when the
government has a legitimate interest in access to them. This
argument is premised on Footnote 19 in Jaffee, where the Court
stated that the psychotherapist-patient privilege would “give
way” in certain situations. Jaffee, 518 U.S. at 18 n.19.
Alternatively, the government argues that Bolander waived any
psychotherapist-patient privilege he may have enjoyed. Because
we agree with the government that Bolander waived any
psychotherapist-patient privilege he may have enjoyed, we
decline to address the government’s argument premised on
Footnote 19 in Jaffee. Accordingly, we express no opinion on
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whether the disclosures made by Bolander during his
participation in the SOTP are protected communications under the
psychotherapist-patient privilege.
A patient may waive the psychotherapist—patient privilege
by knowingly and voluntarily relinquishing it. United States v.
Hayes, 227 F.3d 578, 586 (6th Cir. 2000). A waiver may occur
when the substance of therapy sessions is disclosed to unrelated
third parties, see id. (noting that “a patient can waive the
protections of the psychotherapist/patient privilege by
disclosing the substance of therapy sessions to unrelated third
parties”), or when the privilege is not properly asserted during
testimony. See Hawkins, 148 F.3d at 384 (“By answering the
question as [the defendant] did, [the defendant] both waived her
[attorney-client] privilege and provided probative evidence [on
the subject matter].”).
In this case, Bolander willingly provided the SOTP
materials to his own expert, Dr. Warren. In the report, Dr.
Warren acknowledged that he received and reviewed the materials
Bolander claims are privileged. Bolander did not assert the
psychotherapist—patient privilege prior to his disclosure to Dr.
Warren. Rather, he waited until approximately one month prior
to the evidentiary hearing to do so, even though the case had
been pending in the district court for quite some time. By
failing to timely assert the psychotherapist—patient privilege,
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Bolander waived whatever privilege he may have had. Put another
way, it was incumbent upon Bolander to assert the
psychotherapist—patient privilege in a timely fashion, rather
than waiting until the eleventh hour to do so. See United
States v. Ary, 518 F.3d 775, 784-85 (10th Cir. 2008) (holding
that failure to timely assert attorney-client privilege
constitutes waiver); United States v. White, 970 F.2d 328, 334–
35 (7th Cir. 1992) (same). Moreover, to the extent Bolander
claims a privilege in his communications with Dr. Warren, we
reject this argument as well. Dr. Warren was not being sought
for treatment, but rather to evaluate Bolander’s mental
condition. And as the Supreme Court in Jaffee made clear, the
privilege only extends to those psychotherapists who are being
consulted for diagnosis and treatment, not under other
circumstances. 501 U.S. at 15.
Bolander also failed to assert the psychotherapist—patient
privilege during his October 4, 2011 deposition. During that
deposition, Bolander was asked questions about his participation
in the SOTP. He did not assert any privilege with respect to
the information he provided in the SOTP, including the documents
generated by the program. Instead, Bolander openly discussed
his participation in the SOTP, including the numerous admissions
he made during that program. By answering questions without
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asserting the psychotherapist—patient privilege, Bolander waived
any privilege he may have enjoyed. Hawkins, 148 F.3d at 384.
Bolander suggests that a defendant in need of psychotherapy
treatment will be forced to make the unenviable choice of
foregoing treatment altogether or receiving treatment and
thereby waiving the psychotherapist—patient privilege. We
certainly are not insensitive to the Hobson’s choice faced by a
person in Bolander’s position. However, in this particular
case, Bolander simply failed to properly assert any privilege he
may have had. Accordingly, the district court did not err when
it denied Bolander’s motion in limine. 14
14
The government also argues that Bolander waived any
psychotherapist/patient privilege he may have enjoyed when he
executed the “INFORMED CONSENT FORM” as part of his
participation in the SOTP. (J.A. 168). By executing this
consent form, Bolander acknowledged that the information he
provided in the program may be disclosed by the SOTP. The
consent form states: “I also understand that the staff of the
SOTP and Federal Bureau of Prisons, Department of Justice, and
United States Probation Office may share information regarding
my case.” (J.A. 168). The meaning of this provision in the
consent form is ambiguous because it is unclear whether the
information disclosed by Bolander could be “share[d]” amongst
only these federal agencies or “share[d]” by these agencies with
third parties, such as an expert in a civil commitment
proceeding. Bolander says the ambiguity is resolved by the
provision in the consent form that says his “confidentiality
will be protected at all times.” (J.A. 168). Bolander posits
that this provision means that the information he provided in
the SOTP could not be disclosed to third parties; otherwise, his
confidentiality would not be protected. We need not resolve the
government’s waiver argument premised on the consent form
because there are other bases in the record in which to find a
(Continued)
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IV
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED
waiver of any psychotherapist/patient privilege Bolander may
have enjoyed.
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