United States v. Daniel King , 539 F. App'x 235 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7852
UNITED STATES OF AMERICA,
Appellee,
v.
DANIEL H. KING,
Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:10-hc-02009-FL-JG)
Submitted: August 13, 2013 Decided: September 16, 2013
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph L. Bell, Jr., BATTS, BATTS & BELL, LLP, Rocky Mount,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, R.A. Renfer, Jr., Assistant United States Attorney,
Edward D. Gray, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The district court ordered Appellant Daniel H. King civilly
committed as a sexually dangerous person under the Adam Walsh
Child Protection and Safety Act of 2006 (“Adam Walsh Act”), Pub.
L. No. 109-248, § 302, 120 Stat. 587, 619-22 (codified in 18
U.S.C. §§ 4241, 4247, and 4248). King appealed, now arguing the
district court erred both in referring his case to a magistrate
judge and in certifying him as a sexually dangerous person.
Finding no error, we affirm the district court’s decision.
I.
The record reveals that King’s history is replete with
instances of sexual misconduct and violence towards women.
King’s criminal history
• In 1971, at approximately age twelve, King began exposing
his penis to other children. His parents sought
professional help for this behavior, but were told King
would outgrow the problem.
• On April 18, 1974, at the age of fifteen, King was charged
with two counts of indecent exposure after exposing his
penis to two girls age seven and eight, asking them if they
wanted to touch it. King pled guilty to both counts. He
was given one year of juvenile probation.
• On October 10, 1975, when he was seventeen, King was
charged and pled guilty to the offense of “seize,
transport, and detain with intent to defile the victim’s
person.” King approached a female stranger, age nineteen,
and after a brief conversation, grabbed her with one hand
and placed a knife at her neck with the other. King then
forced her into the backseat of a car driven by another
male, and they drove away. King held the young woman
around her throat and fondled her breast. He was given
2
indeterminate probation not to last past his twenty-first
birthday for the offense.
• On April 7, 1978, at the age of nineteen, King was charged
with two counts of attempted abduction. King reported he
attempted to abduct two women on separate occasions on the
same day. The first count was nolle prossed, and King pled
guilty to the second count. He was sentenced to ten years’
imprisonment with five years suspended plus five years
probation. On February 3, 1984, King’s probation was
revoked due to his commission of a crime in late 1983 (see
below), and he received a five-year term of imprisonment.
He was paroled from imprisonment on November 14, 1985, and
began serving the sentence for the 1983 offense.
• On November 23, 1983, at the age of twenty-five and while
on probation, King was charged with simple assault, two
counts of carrying a dangerous weapon-felony, and assault
with intent to kidnap while armed. In this incident, King
approached a female stranger and asked her to walk him to
his car because he was drunk. The woman declined, and King
told her not to scream or he would kill her. He then
attempted to push her into her vehicle, but the woman
kicked and screamed, causing King to flee. One count of
carrying a dangerous weapon-felony was dismissed, and King
pled guilty to the other count and to simple assault. King
received two-to-eight years on the carrying a dangerous
weapon count and a one year consecutive term for the simple
assault. He was paroled on September 3, 1987.
• Finally, On February 19, 1988, at age twenty-nine and while
on parole, King was charged in the District of Columbia
with assault with intent to rob while armed and armed
kidnapping. King grabbed a woman around her neck,
threatened her with a knife and instructed her not to
scream, led her down the street, and asked her if she had
any money. King then tried to force her into her vehicle.
King was thwarted when a passerby diverted his attention,
and the victim was able to break his hold and run away.
The assault with attempt to rob charge was dismissed, and
King pled guilty to armed kidnapping. King was sentenced
to twelve to thirty-six years for this offense. King
surrendered to the custody of the Bureau of Prisons (BOP)
and was serving time for this offense before he was civilly
committed.
3
King’s misconduct while in BOP custody
King’s misconduct did not dissipate while incarcerated.
• On April 9, 1993, King was in a one-on-one therapy session
with a female BOP psychologist. King asked the
psychologist to turn off the audio recorder, and said “I
want you to touch my penis.” The BOP sanctioned King for
this incident.
• On October 18, 2011, on the morning of his § 4248 hearing,
King exposed himself to female detainees in a cell across
the hall from his at the Wakefield County Jail. King
purposefully masturbated in view of the female detainees.
• While in the custody of the BOP King was also sanctioned
for the following: threatening bodily harm to a female
staff psychologist (1995); possessing a dangerous weapon
(1998); wrongful use/possession of drugs and alcohol (1998,
2000, 2004); possessing intoxicants-homemade alcohol (1999,
2006); disruptive conduct while high (1999); refusing to
take an alcohol test (1999); use of drugs/drug items
(2000); attempted escape (2000); threatening bodily harm
(2000); use of drugs (2003, 2005, 2009); possessing
intoxicants and use of drugs (2007); and refusing an
order/being insolent to staff member (2010).
• Also while in custody, BOP staff confiscated magazines from
King with sexually suggestive pictures of women, and
intercepted an email from him in which he said he planned
on purchasing a pay-as-you-go cellphone upon release so
authorities could not track him.
King’s Section 4248 proceedings
King was scheduled for release on January 20, 2010. One
day prior to his scheduled release date, the government filed a
certificate with the district court certifying that King is a
sexually dangerous person as defined by the Adam Walsh Act, see
18 U.S.C. § 4248(a), staying King’s release. On June 25, 2010,
King filed a motion requesting a commitment hearing. Discovery
4
commenced, with an end date of September 15, 2011, and a hearing
date set for October 17, 2011 before a magistrate judge. On
September 16, 2011, King moved the court to reconsider its
decision to refer his case to a magistrate judge, which was
denied on October 11, 2011. The commitment hearing was held
October 17-19, and continued on November 16. At the hearing,
the magistrate judge accepted into evidence various documents
submitted by both parties, including forensic evaluation
reports, medical records, court records, police reports, and BOP
records. The court also heard testimony from two expert
psychologists on behalf of the government – Dr. Gary Zinik and
Dr. Dawn Graney, and one expert psychiatrist on behalf of King –
Dr. Fabian Selah.
Dr. Zinik’s Testimony
Dr. Zinik provided expert testimony on behalf of the
government, opining that King met the requirements for civil
commitment. Dr. Zinik formed his opinion after interviewing
King and evaluating King’s criminal history, medical history,
social history, substance abuse history, institutional
adjustment, and other records. Dr. Zinik opined that King
suffers from Paraphilia 1 Not Otherwise Specified-forced sex with
1
“Paraphilia” is defined in the Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition, Text Revision (“DSM-
IV-TR”) as “recurrent, intense sexually arousing fantasies,
(Continued)
5
nonconsenting females (“Paraphilia NOS-nonconsent”);
Exhibitionism; Polysubstance Abuse; and Antisocial Personality
Disorder. Dr. Zinik expressed that Paraphilia NOS is a serious
mental illness under the Adam Walsh Act. Dr. Zinik based his
diagnosis on King’s record of rapid reoffending upon release
from confinement, the sexual motivation behind King’s crimes,
evidence that King planned his attacks, King’s admissions of his
continued sexual urges, and King’s repeated misconduct while
incarcerated.
Dr. Zinik noted that during an interview with the Parole
Commission in 1997, King said he needed treatment for his
“repetitive pattern of behavior that has been unacceptable in
society.” Further, in a 2009 letter addressed to BOP staff,
King stated he has not developed the ability to control himself.
There was also evidence that King stated verbally to BOP
psychology staff that he has committed undetected sexual
offenses in the past, that the sex treatment he has received has
been ineffective, that he has not received adequate tools to
control himself, and that he would sexually reoffend if
released. All of this, in addition to King exposing himself on
urges or behaviors generally involving (1) nonhuman objects, (2)
the suffering or humiliation of oneself or one’s partner, or (3)
children or other nonconsenting persons that occur over a period
of at least six months.”
6
the day of his § 4248 hearing, was “very compelling evidence”
that King had a “total breakdown in sexual impulse control.”
When deciding whether King would have serious difficulty in
refraining from sexually violent conduct if released, Dr. Zinik
did both a clinical analysis and a statistical analysis using
three actuarial risk assessment tools that have a moderate
degree of accuracy. On all three measures King ranked as having
a “high” risk of reoffending. Dr. Zinik also found that a
number of dynamic risk factors, such as an intimacy deficit,
lack of sexual self-regulation, lack of cooperation with
supervision, and a lack of general self-regulation, increased
King’s likelihood of reoffending.
Finally, Dr. Zinik looked at the factors that weigh against
King reoffending if released, including: (1) King had not
sexually reoffended while in BOP custody; (2) King only had
fifteen years left in his “time at risk,” and once outside the
risk period his motivation and ability to reoffend will
significantly decrease; and (3) his advanced age. However,
despite considering these “protective” factors, Dr. Zinik still
formed his expert opinion that King would have serious
difficulty refraining from sexually violent conduct if released,
and therefore weighing everything together, found that King
qualifies as a sexually dangerous person.
7
Dr. Graney’s Testimony
Dr. Graney is employed by the BOP and testified on behalf
of the government. She too opined that King meets the criteria
for civil commitment under the Adam Walsh Act, and diagnosed
King as suffering from: (1) Paraphilia NOS-nonconsent; (2)
Exhibitionism; (3) Alcohol Abuse; (4) Opiate Abuse; and (5)
Antisocial Personality Disorder. Her report reached these
conclusions by detailing King’s developmental history,
relationship history, education history, military/work history,
substance abuse history, nonsexual criminal history, sexual
criminal history, psychosexual history, mental health history,
medical history, her diagnostic treatment impressions, and by
using actuarial instruments. Based on all of this information,
Dr. Graney also found that King would have a high risk of
reoffending if released.
Dr. Saleh’s Testimony
Dr. Saleh testified on King’s behalf, opining that King
does not meet the criteria for civil commitment. As part of his
evaluation, Dr. Saleh interviewed King, during which King in
toto retracted his statements that he would reoffend if
released. King told Dr. Saleh that he simply made those
statements in order to remain confined and to receive continued
treatment. As such, Dr. Saleh found that King had a history of
“acting out and feigning psychiatric symptoms for secondary
8
gain.” Consistent with Dr. Zinik and Dr. Graney, Dr. Saleh
diagnosed King as suffering from Antisocial Personality
disorder, but did not find King to suffer from any other mental
illness. Dr. Saleh opined King does not suffer from a
paraphilia because outside of King’s behavior in the mid-1970s,
evidence of paraphilia is “inexistent.” Dr. Saleh testified
that the incident of King exposing himself the day of his § 4248
hearing does not change his opinion. Finally, in his report,
Dr. Saleh noted that he did not believe King to have committed a
sexually violent act necessary for commitment. Dr. Saleh did
not provide an opinion as to whether King would have serious
difficulty refraining from sexually violent conduct if released,
nor did he use any actuarial risk assessment tools in his
evaluation.
Magistrate’s Recommendation and District Court Decision
Based on all the evidence, the magistrate judge found
King’s statements regarding his impulse control to be credible,
despite characterizing King as a “habitual liar.” The
magistrate judge reached this conclusion based on King self-
reporting his impulse to engage in nonconsensual sexual
encounters on at least ten separate occasions over the past
three decades. King’s own behavior over the time-period
corroborated his finding. Therefore, when turning to the
elements necessary for civil commitment, the magistrate judge
9
first found that King’s 1975 conviction for the offense of
seize, transport, and detain with intent to defile the victim’s
person satisfied the first element – whether King had previously
engaged in sexually violent conduct. As to whether King had a
serious mental illness, the magistrate judge found persuasive
the testimony of Drs. Zinik and Graney, finding that King
suffered from a “paraphilic disorder characterized by his
impulse to engage in nonconsensual sexual encounters with
women,” yet refused to attach the formal diagnosis of Paraphilia
NOS-nonconsent to King’s mental illness. The magistrate judge
further found that the disorder is serious because of the
substantial disruption it caused in King’s life. And finally,
the magistrate judge found there was clear and convincing
evidence that King would have serious difficulty refraining from
sexually violent conduct if released, as evinced by his own
statements. As further support, the magistrate judge noted that
King’s paraphilic disorder impacted impulse control, as shown by
his conduct both before his surrender to BOP custody and during,
and the actuarial measures indicating King’s future risk
(although the magistrate judge did not give the assessments
“great weight”). Therefore, the magistrate judge recommended
that King met the criteria for civil commitment under the Adam
Walsh Act.
10
King entered objections to the magistrate judge’s report
and recommendations, arguing the magistrate judge erred in
finding his statements regarding his sexual impulse control
credible, and that the magistrate judge erred in finding he
satisfied the elements necessary for civil commitment. The
district court reviewed the disputed issues de novo and adopted
the magistrate judge’s unchallenged findings. After
independently reviewing the contested issues, the district court
found the magistrate judge’s reasoning persuasive and adopted
the magistrate judge’s conclusion — that King qualifies as a
sexually dangerous person under the Adam Walsh Act, and
therefore meets the criteria for civil commitment.
King timely appealed.
II.
We review the district court’s factual findings for clear
error and legal decisions de novo. United States v. Hall, 664
F.3d 456, 462 (4th Cir. 2012).
A.
Before we decide whether the district court erred in
finding King to be sexually dangerous under the Adam Walsh Act,
we address King’s objection to the district court’s referral of
this matter to a magistrate judge for an evidentiary hearing.
King has conceded both before the district court and this Court
11
that the district court had the authority to refer this matter
to a magistrate judge. See J.A. 29; Appellant’s Br. 16; see
also 28 U.S.C. § 636(b)(1)(B) (conferring power to magistrate
judges to conduct evidentiary hearings in civil matters); Gomez
v. United States, 490 U.S. 858, 872 (1989) (stating magistrate
judges have been granted authority “to conduct trials of civil
matters”). Yet despite this concession, King argues that
because the Adam Walsh Act makes no mention of a magistrate
judge’s role in § 4248 commitment proceedings, such referral was
improper. 2
We recently held that civil commitment proceedings under
§ 4248 are civil and not criminal in nature. See United States
v. Timms, 664 F.3d 436 (4th Cir.), cert. denied, 133 S. Ct. 189(2012); see also United States v. Comstock, 627 F.3d 513, 520-21
(4th Cir. 2010). As a civil proceeding, therefore, the district
court had the authority pursuant to the Federal Magistrates Act
to refer this case to a magistrate judge for an evidentiary
hearing. See 28 U.S.C. § 636(b)(1)(B). That the Adam Walsh Act
2
King also argues that referral of § 4248 commitment
proceedings to a magistrate judge does not further the purposes
of the Federal Magistrates Act. We disagree. The district
court referred this matter to a magistrate judge to ensure that
King would have a speedy hearing. At the time there were
considerable delays taking place in the district with respect to
§ 4248 hearings. This is the type of supporting role envisioned
for magistrate judges by the Federal Magistrates Act. See
Peretz v. United States, 501 U.S. 923, 929 (1991).
12
does not specifically mention magistrate judges does not limit
the sweep of the Federal Magistrates Act. Moreover, the record
indicates the district court reviewed de novo all objections
made to the magistrate’s report and recommendations and scoured
the record before reaching its decision. Thus, we find no error
in the referral of this matter to a magistrate judge.
B.
Next, King challenges the district court’s determination
that he is sexually dangerous as defined by the Adam Walsh Act.
In order to be committed as a sexually dangerous person the
government must prove by clear and convincing evidence that:
(1) King engaged in or attempted to engage in sexually violent
conduct or child molestation; (2) King suffers from a serious
mental illness, abnormality, or disorder; and (3) because of the
serious mental illness, abnormality, or disorder, King would
have serious difficulty in refraining from sexually violent
conduct or child molestation if released. 18 U.S.C. §§ 4248(a),
(d); see United States v. Francis, 686 F.3d 265, 274 (4th Cir.
2012).
1.
King engaged in sexually violent conduct
King does not dispute that he has previously engaged in
sexually violent conduct. Indeed, more than one incident in
King’s criminal history satisfies this element.
13
2.
King suffers from a serious mental illness
King does dispute, however, that the government proved by
clear and convincing evidence that he suffers from a serious
mental illness requiring commitment. Our review of the record
proves King’s argument unavailing.
Two expert witnesses, Drs. Zinik and Graney, opined King
suffered from a paraphilic disorder, characterized by his
intense desire to engage in nonconsensual sex with women. The
experts reached this conclusion based on King’s extensive
criminal history, his repeated misconduct while incarcerated,
and his repeated assertions about his wanton sexual desires and
inability to control them. Dr. Selah reached a contrary
conclusion. Dr. Selah discounted King’s self-reporting, finding
that he is a pathologic liar. Without King’s statements, Dr.
Selah found that there was little evidence that King suffered
from a paraphilia – specifically citing that King had not
engaged in any sexually violent acts while incarcerated.
When “[e]valuating the credibility of experts and the value
of their opinions,” we are “especially reluctant to set aside a
finding based on the trial court’s evaluation of conflicting
expert testimony.” Hall, 664 F.3d at 462 (citation omitted).
It was within the province of the district court to determine
which expert opinion to credit. There is nothing to indicate
14
that Drs. Zinik and Graney’s testimony is inconsistent with the
evidence presented. And expert opinion is critical to
determining whether King suffers from a mental illness. See
Addington v. Texas, 441 U.S. 418, 429 (1979). Moreover, the
district court specifically found King’s self-reporting to be
credible, and we are required to give “due regard” to a trial
court’s credibility determination of a witness. See Fed. R.
Civ. P. 52(a)(6); Anderson v. City of Bessemer City, N.C., 470
U.S. 564, 573 (1985). The fact that Dr. Selah’s expert opinion
rested on a finding that King’s self-reporting was not credible
runs contrary to the magistrate judge’s conclusion, and
therefore undermines its utility. 3 And it is not dispositive
that King has not committed an overt sexually violent act while
incarcerated, as paraphilia is characterized by both fantasies
and urges, not just physical behavior.
Essentially, whether King suffers from a “serious mental
illness, abnormality or disorder” under the Adam Walsh Act is a
question of fact that we will only overturn for clear error.
3
We also find it curious that Dr. Selah states there is no
record of King committing a sexually violent act in the past,
even though King himself is willing to concede this point. We
have clearly stated that it is error for a district court to
rely upon the testimony of an expert who “largely ignored all
contradictory evidence” and whose “analysis was internally
inconsistent.” United States v. Wooden, 693 F.3d 440, 455 (4th
Cir. 2012).
15
U.S. v. Hill, 649 F.3d 258, 262 (4th Cir. 2011). And “[w]here
there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.”
Anderson, 470 U.S. at 574. Because there is no evidence that
Drs. Zinik and Graney’s testimony was clinically unsound or
unsupported by fact or science, we find that their opinions,
with support of King’s voluminous record, establishes by clear
and convincing evidence that King suffered from a paraphilia.
3.
King would have serious difficulty refraining
Finally, King argues the government failed to prove by
clear and convincing evidence that he would have serious
difficulty in refraining from sexually violent conduct if
released. This argument runs contrary to the record.
The serious difficulty element “refers to the degree of the
person’s ‘volitional impairment,’ which impacts the person’s
ability to refrain from acting upon his deviant interests.”
Hall, 664 F.3d at 463 (citing Kansas v. Hendricks, 521 U.S. 346,
358 (1997)). The fact that the district court found credible
King’s repeated assertions he would have difficulty refraining
from sexually violent conduct is evidence enough. Moreover,
both Dr. Zinik and Dr. Graney testified it was their expert
belief that King would have serious difficulty refraining. And
their expert testimony is supported by King’s conduct, as he has
16
“repeated involvement in sexually-motivated offense behaviors,”
and has a “habit in engaging in offenses for which he is likely
to get caught.” In addition, King presently refuses to
acknowledge he has a sexual problem that will require effort to
keep in check should he be released. This is a likely indicator
that King will not be amenable to future treatment. And the
actuarial measures all indicate King has an elevated risk of
reoffending. With all this considered, even in light of the
paucity of King’s overt sexually violent conduct while in BOP
custody, the evidence shows King will have serious difficulty in
refraining from sexually violent conduct if released.
III.
Ultimately, we will not reverse unless “we are left with
the definite and firm conviction that a mistake has been
committed.” United States v. Caporale, 701 F.3d 128, 135 (4th
Cir. 2012) (internal citations and quotation marks omitted). We
have no such conviction. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid in the
decisional process. The district court’s judgment is affirmed.
AFFIRMED
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