United States v. James Vandivere ( 2023 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-6118
UNITED STATES OF AMERICA,
Petitioner – Appellee,
v.
JAMES DOW VANDIVERE,
Respondent – Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:15−hc−02017−D)
Argued: October 25, 2023 Decided: December 8, 2023
Before WILKINSON, NIEMEYER, and BENJAMIN, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judges
Niemeyer and Benjamin joined.
ARGUED: Jeffrey M. Young, HITACHI ENERGY USA INC., Raleigh, North Carolina,
for Appellant. Rudy E. Renfer, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee. ON BRIEF: Sharon Leigh Smith, UNTI &
SMITH, Raleigh, North Carolina, for Appellant. Michael F. Easley, Jr., United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
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WILKINSON, Circuit Judge:
James Dow Vandivere appeals the district court order denying his motion for release
from civil commitment under the Adam Walsh Act, 18 U.S.C. § 4248. Vandivere was
convicted of various crimes involving the sexual exploitation of minors and sentenced to
almost twenty years’ imprisonment. As he neared the conclusion of his sentence, however,
the government moved to civilly commit him, arguing that he remained sexually dangerous
and could not be safely released into the community. The district court agreed and ordered
that he be committed.
In August 2020, Vandivere filed a motion for discharge. After a hearing, the district
court found that he remained sexually dangerous and denied his motion. Vandivere
challenges the district court’s ruling, arguing that he was wrongly forced to bear the burden
of proof at the hearing. He also asserts that the district court erred in determining that he
remains sexually dangerous. We reject Vandivere’s challenges and affirm the judgment of
the district court.
I.
A.
James Dow Vandivere was arrested in 1998 after a decades-long spree of sexually
abusing preteen boys. He was roughly fifty years old at the time, aged enough to make his
own choices and reckon (or not) with his own misconduct. Yet his victims were often
fatherless and wayward, scarcely old enough to shave. Vandivere lured them in with
companionship, with money, with promises he would help them fulfill their dreams. He
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assured them that the sexual acts they performed together were normal and nothing to be
ashamed of. So they acquiesced.
Vandivere’s abuse was cut short when he was arrested in May 1998. He was
convicted in December 1998 of sexual exploitation of children, certain activities related to
material involving sexual exploitation, and transportation of a minor with intent to engage
in criminal sexual activity. He was sentenced to nearly twenty years in prison and three
years of supervised release. Vandivere entered the custody of the Bureau of Prisons (BOP)
and began to serve his time.
B.
As Vandivere’s sentence neared its end, the government feared he could not be
safely released into society. In January 2015, the government certified Vandivere as a
sexually dangerous person pursuant to the Adam Walsh Act and petitioned the district court
to civilly commit him. See 18 U.S.C. § 4248(a), (d). That certification triggered the
requisite statutory hearing “to determine whether [Vandivere] is a sexually dangerous
person.” Id. § 4248(a). At that hearing, the government was required to demonstrate by
clear and convincing evidence that: (1) Vandivere “engaged or attempted to engage in
sexually violent conduct or child molestation,” id. § 4247(a)(5) (the “prior conduct”
element); (2) Vandivere “suffers from a serious mental illness, abnormality, or disorder,”
id. § 4247(a)(6) (the “serious mental illness” element); and (3) Vandivere “would have
serious difficulty in refraining from sexually violent conduct or child molestation if
released” as a result of his disorder, id. (the “serious difficulty” element). In November
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2016, the district court found that the government had met its burden, and Vandivere was
civilly committed to the custody of the BOP. See id. § 4248(d).
C.
In August 2020, after nearly four years of civil commitment, Vandivere filed a
motion via 18 U.S.C. § 4247(h) seeking a discharge hearing before the district court in
order to argue he was no longer sexually dangerous and could be released. Section 4247(h)
is silent as to the burden of proof in this hearing. Vandivere filed a motion in limine
contending that the burden of proof at the discharge hearing should be the same as at the
initial commitment hearing: the government would bear the burden of proving Vandivere’s
sexual dangerousness by clear and convincing evidence. The government disagreed,
asserting that the burden had shifted to Vandivere to prove he was no longer sexually
dangerous by a preponderance of the evidence.
The discharge hearing was held in May 2021. At the outset, the district court denied
Vandivere’s motion in limine and agreed with the government that Vandivere had the
burden to demonstrate he was no longer sexually dangerous by a preponderance of the
evidence. Vandivere conceded the first element of the sexual dangerousness test (the prior
conduct element), but disputed elements two (the serious mental illness element) and three
(the serious difficulty element). Five witnesses testified at the hearing. Because one of
Vandivere’s claims challenges the district court’s assessment of this testimony, we think it
proper to give an overview of that testimony here.
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Three psychologists testified as expert witnesses. Dr. Gary Zinik and Dr. Dawn
Graney testified on behalf of the government, and Dr. Luis Rosell testified on behalf of
Vandivere.
Dr. Zinik, a clinical forensic psychologist, testified on behalf of the government. He
opined that Vandivere continued to satisfy the elements of sexual dangerousness. As for
the serious mental illness element, he diagnosed Vandivere with (a) other specified
paraphilic disorder, hebephilia; and (b) other specified personality disorder, antisocial and
narcissistic features. Hebephilia is a term used to describe adults with an enduring sexual
interest in children around the age of pubescence. J.A. 216–17. Dr. Zinik testified that a
diagnosis of hebephilia was proper for Vandivere because he suffered from a lifelong
sexual preference for boys who are immediately post-pubescent or just prior to pubescence,
typically preying on boys ages ten through fifteen. He discussed the harms to Vandivere’s
victims and how Vandivere targeted disadvantaged, homeless, and runaway boys.
Regarding Vandivere’s antisocial and narcissistic features, Dr. Zinik emphasized
Vandivere’s lack of remorse for his victims and his persistent failure to take responsibility
for the harm he had wrought.
As for the serious difficulty element, Dr. Zinik stressed that Vandivere was not safe
to be released. He conceded offenders older than sixty are typically unlikely to reoffend,
and that Vandivere’s age of seventy-two weighed in his favor. Dr. Zinik emphasized
however, that, while rare, recidivism in older sex offenders occurs. Dr. Zinik referred to
these individuals as “rare birds.” J.A. 230. He testified to his belief that “Mr. Vandivere is
one of those rare birds. He is one out of a hundred, maybe one out of a thousand, maybe
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one out of a million.” Id. He emphasized that Vandivere showed several dynamic risk
factors that exacerbated his likelihood of recidivism, including Vandivere’s emotional
identification with children, his poor problem-solving skills, his tendency to lie, and his
distorted understandings of what constitutes sexual abuse. On this last risk factor, Dr. Zinik
reported that Vandivere had recently confessed that he did not believe pubescent boys were
children and that sex with a pubescent boy was not abuse. In sum, Dr. Zinik stressed that
Vandivere was “one of those rare birds that we need to protect the community from”
because of Vandivere’s “current definition of sexual abuse, his current lack of
understanding of his own offending history and the damage he caused, his current belief
that he still wants to help teenage boys, [and] his current belief that he sees no reason why
he shouldn’t have contact with teenage boys.” Id. at 230–31.
Dr. Graney, a psychologist for the Federal Bureau of Prisons, also testified on behalf
of the government. As for the serious mental illness element, she diagnosed Vandivere with
(a) other specified paraphilic disorder, hebephilia; and (b) other specified personality
disorder, antisocial features. With respect to hebephilia, Dr. Graney emphasized that
Vandivere had an extended history of preying on thirteen-, fourteen-, and fifteen-year-old
boys, using drugs, pornography, or employment to groom them before escalating to sexual
abuse. She detailed how Vandivere’s fifty-plus years of deviant sexual interest in pubescent
boys caused immense harm to his victims. With respect to Vandivere’s antisocial features,
Dr. Graney stressed Vandivere’s repeated criminal conduct, deceitful character, lack of
remorse, and history of impulsive behavior. She acknowledged that some individuals age
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out of antisocial and narcissistic behaviors but stressed that Vandivere had not shed these
tendencies even in his late age.
As for the serious difficulty element, Dr. Graney acknowledged that Vandivere was
in the “advanced-age category” and that research shows “a very low risk of reoffense for
that age category.” J.A. 190. Nonetheless, she pointed out that it is important to consider a
sex offender as an individual and take his personal characteristics into account when
assessing sexual dangerousness. Based on a holistic consideration of Vandivere’s case, Dr.
Graney agreed that Vandivere was a “rare bird.” J.A. 204. While she admitted that rare-
bird status was a subjective determination, she emphasized that Vandivere’s persistent
denial of responsibility and refusal to receive sex offender treatment while in custody
differentiated him from other sex offenders of his age. She likewise pointed out that over
a fifty-year period, Vandivere’s attitudes and beliefs about sexual abuse had not
meaningfully changed.
Dr. Rosell, a clinical and forensic psychologist, testified on behalf of Vandivere. As
for the serious mental illness element, Dr. Rosell argued that hebephilia could not serve as
valid grounds for a civil commitment. He explained that the diagnosis was “controversial
because there’s no specific criteria for evaluators to make a determination whether it’s
present or not,” and that it was not recognized in the fifth edition of The Diagnostic and
Statistical Manual of Mental Disorders (DSM-V). J.A. 134. He emphasized Vandivere’s
rule-abiding behavior while in custody was an indication that his antisocial conduct may
have diminished with age. As for the serious difficulty element, Dr. Rosell opined that
Vandivere was not likely to reoffend. He testified that extensive research conducted over
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the preceding fifteen years had demonstrated that sex offenders older than sixty have a
reduced rate of recidivism, and that offenders older than seventy have an even lower rate.
Citing various studies, he put Vandivere’s risk of recidivism at 5.9 percent. He testified
that that “no matter how you look at it in terms of risk, there’s never more than a 10 percent
recidivism rate. It’s always in the single digits.” J.A. 133.
Regarding Vandivere’s refusal to participate in sex offender treatment while in
custody, Dr. Rosell testified that such treatment does reduce recidivism rates, but that the
recidivism rates of those who do not undergo such treatment are still not very high. He
dismissed reliance on dynamic risk factors, contending that most of these are generally not
strong predictors of recidivism. He again pointed to Vandivere’s compliant behavior while
in custody as evidence that he could control his conduct if released. However, Dr. Rosell
did concede that Vandivere had a history of lying to authorities, had molested children
while out on supervision in 1971, and had indicated distorted understandings of sexual
abuse.
As for lay witness testimony, Vandivere testified on his own behalf, as did his long-
time friend, Denton Scott Wilson.
In his testimony, Vandivere admitted to engaging in inappropriate sexual contact
with ten minors between 1966 and 1978, and then again with more minors in the 1980s and
1990s. However, he continued to deny any inappropriate sexual contact with the boys he
was convicted of molesting in 1971 and asserted the boys concocted the allegations. He
stressed that he had not engaged in sexual contact with a minor for at least twenty-three
years. However, he admitted that he told Dr. Zinik he believed that as long as children were
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growing pubic hair and understood right from wrong, they were old enough to consent to
sexual relationships. When asked why he had repeatedly declined sex offender treatment
while in custody, he claimed that he did not trust the prison therapists. However, he stressed
that he “absolutely” would comply with such treatment if it were ordered as a condition of
his release. J.A. 83.
Denton Scott Wilson also testified on behalf of Vandivere. Wilson met Vandivere
in 1989, when Wilson was eighteen years old. Wilson was friends with one of Vandivere’s
victims. Vandivere was never sexually inappropriate with Wilson, and Wilson was
unaware at the time that Vandivere was abusing minors. Wilson owned a cabin in a remote
area of Washington State and offered it to Vandivere as a place to live if he were
discharged. This cabin was six hours away from where Wilson lived. Wilson testified that
he would report Vandivere if he ever learned about Vandivere abusing a minor.
D.
The district court orally announced its findings of facts and conclusions of law on
the record in December 2021. It stated that it “reviewed the entire record and all exhibits
from both Vandivere’s original trial and from Vandivere’s Section 4247(h) trial,” and that
it “made credibility determinations concerning the witnesses who testified at the 4247(h)
trial.” J.A. 260. The court also considered various reports the experts had prepared after
evaluations of Vandivere. The court then explained that Vandivere had failed to meet his
burden of proving he was no longer sexually dangerous.
As for the serious mental illness element, the district court found persuasive Dr.
Zinik’s and Dr. Graney’s diagnoses of hebephilia and other specified personality disorder,
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antisocial and narcissistic features. Regarding the serious difficulty element, the district
court found that Vandivere failed to demonstrate he would not have serious difficulty in
refraining from child molestation if released either unconditionally or conditionally. Its
analysis focused on “Vandivere’s volitional control in light of such features of the case as
the nature of the psychiatric diagnoses and the severity of his mental illnesses,
abnormalities, or disorders, in such a way that distinguish Vandivere from the dangerous
but typical recidivist convicted in an ordinary criminal case.” J.A. 294 (citing Kansas v.
Crane, 534 U.S. 411, 413 (2002)). The court emphasized that this determination “requires
more than relying on recidivism rates of past offenders but requires an analysis of a range
of different factors.” J.A. 293. The court thus considered the record as a whole,
including Vandivere’s [prior] failure on supervision, his resistance to
treatment, his medical conditions, his age, his long-standing and continued
deviant thoughts, his cognitive distortions, his impulsivity, his actuarial risk
assessment, his dynamic risk factors, his lack of credibility, his conduct while
incarcerated, and the historical nature of his offenses, both sexual and non-
sexual.
J.A. 295.
Additionally, the court gave “greater weight to the persuasive opinions of Drs.
Graney and Zinik” than to the opinion of Dr. Rosell, as “[t]heir analysis of Vandivere’s
sexual dangerousness [was] more thorough, better reasoned, better supported by the record,
and better supported by research, especially in light of the factors” the Fourth Circuit has
found relevant to an analysis of sexual dangerousness. J.A. 296.
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In sum, the district court concluded that Vandivere had failed to show by a
preponderance of the evidence that he was no longer sexually dangerous and denied his
motion for discharge.
Vandivere timely appealed the order of the district court. He argues that the district
court erred in making him shoulder the burden of proof at his discharge hearing. Vandivere
also challenges the district court’s conclusion that he remains sexually dangerous. ∗ 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).
II.
This case principally concerns the Adam Walsh Child Protection and Safety Act of
2006, codified at 18 U.S.C. § 4248. Enacted in the wake of the gruesome kidnapping and
murder of six-year-old Adam Walsh, the statute aims to “protect children from sexual
exploitation and violent crime, to prevent child abuse and child pornography, to promote
Internet safety, and to honor the memory of Adam Walsh and other child crime victims.”
Pub. L. No. 109-248, 120 Stat. 587. Among other provisions, the Act created novel sex-
∗
Vandivere also asserts that the government lacks standing in the present action.
But we can easily reject this claim. The injury to the government here is the potential
release of a sexually dangerous person into society. See United States v. Searcy, 880 F.3d
116, 124 (4th Cir. 2018) (explaining that in an Adam Walsh Act commitment proceeding,
“the government is exercising its constitutional power to civilly commit an individual for
the protection of the public at large”); Stauffer v. Brooks Brothers, Inc., 619 F.3d 1321,
1325 (Fed. Cir. 2010) (holding Congress can enact legislation which “define[s] an injury
in fact to the United States” and noting “the government would have standing to enforce
its own law”). This injury is traceable to Vandivere’s prior conduct as a sexual predator
and the district court’s finding that he remains sexually dangerous. And it is likely to be
redressed by his continued commitment.
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offender registration and notification requirements; strengthened various laws penalizing
sexual and violent crimes against children; and, pertinent here, instituted a procedure for
federal civil commitment of sexually violent predators.
Civil commitment under the Adam Walsh Act applies to individuals who are already
in the custody of the BOP, such as Vandivere; who are committed to the custody of the
Attorney General because they have been deemed incompetent to stand trial pursuant to 18
U.S.C. § 4241(d); or who have had their criminal charges dropped solely because of their
mental condition. 18 U.S.C. § 4248(a). The Attorney General, his designee, or the Director
of the BOP may certify an individual falling into one of these categories as “sexually
dangerous” and petition a federal district court to order that person’s civil commitment. Id.Certification automatically stays that person’s release from federal custody until a hearing
where the district court determines whether the individual is in fact “sexually dangerous.”
Id. At this initial commitment hearing, the government bears the burden of proving that the
individual is sexually dangerous by clear and convincing evidence. Id. § 4248(d). If the
government prevails, the person is taken into the custody of the Attorney General, who
arranges for detention and treatment. Id.
A person who has been civilly committed pursuant to the Adam Walsh Act has
several avenues to discharge. For example, the committed individual may collaterally
attack his detention via habeas corpus. Id. § 4247(g). Another avenue comes from within
the Act itself. Under § 4248(e), when the director of the facility in which the person is
being housed determines that 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
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prescribed regimen” of treatment, the director “shall promptly file a certificate to that
effect” in the district court. The district court then either orders the discharge outright or
holds a hearing to determine whether discharge is appropriate. Id.
Vandivere himself pursued discharge under a related statute, 18 U.S.C. § 4247(h).
This provision provides a channel for a variety of committed people, including Adam
Walsh detainees, to challenge their commitments. Under § 4247(h), the committed person
may move for a discharge hearing “at any time during such person’s commitment” and, if
denied discharge after the hearing, renew the motion every 180 days. At the hearing
contemplated in § 4247(h), “[t]he person shall be afforded an opportunity to testify, to
present evidence, to subpoena witnesses on his behalf, and to confront and cross-examine
witnesses who appear at the hearing.” Id. § 4247(d). The person “shall be represented by
counsel” and will be appointed counsel if “he is financially unable to obtain adequate
representation.” Id.
As recounted above, Vandivere was given a hearing before the district court after
filing a § 4247(h) motion. At the conclusion of this hearing, the district court found that
Vandivere failed to establish he was no longer sexually dangerous and ordered he remain
in civil commitment. We turn now to Vandivere’s challenges to the district court’s
decision.
III.
Vandivere challenges the district court’s ruling on two grounds: (A) that the district
court wrongly forced him to bear the burden of proof and (B) that, regardless of the burden
of proof, the district court improperly weighed the evidence. We take each in turn.
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A.
Vandivere argues that the district court erred when it forced him to bear the burden
of proving he was no longer sexually dangerous by a preponderance of the evidence, and
in doing so violated his due process rights. He maintains, as he argued in his motion in
limine below, that the burden should have been on the government to show that he
remained sexually dangerous by clear and convincing evidence.
We disagree. The statute and our precedents make clear that the burden of proof at
an Adam Walsh discharge hearing is just as the district court said: the detainee must show
he is no longer sexually dangerous by a preponderance of the evidence. And despite
Vandivere’s protests, the Supreme Court’s due process decisions do not make that
allocation unconstitutional. In the sections below, we start with the statutory framework
before moving to Vandivere’s due process arguments.
1.
There are really two questions here. First, what is the standard of proof? Second,
who bears the burden of proof?
The statutory scheme confirms that the proper standard of proof at an Adam Walsh
discharge hearing initiated via § 4247(h) is a preponderance of the evidence. It is true that
§ 4247(h) itself is silent about the standard of proof that attaches to a detainee-initiated
hearing. The Adam Walsh Act is clear, however, as to the standard of proof in director-
initiated hearings under § 4248(e): “If, after the hearing, the court finds by a preponderance
of the evidence that the person’s condition is such that” he is not sexually dangerous or can
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be safely “released under a prescribed regimen” of treatment, the court shall order
discharge. In Adam Walsh Act cases, this circuit has consistently read § 4247(h) as a
vehicle to access the discharge hearing delineated in § 4248(e). See United States v.
Maclaren, 866 F.3d 212, 218 (4th Cir. 2017) (referring to a § 4247(h) motion as a “motion
for a § 4248 discharge hearing”). Section 4248(e)’s standard of proof thus applies to
hearings initiated by § 4247(h) motions as well. See Searcy, 880 F.3d at 120 (applying the
§ 4248(e) standard of proof to a hearing initiated by a § 4247(h) motion); United States v.
Comstock, 627 F.3d 513, 516 (4th Cir. 2010) (same).
Applying the standard of proof we find in § 4248(e) to hearings initiated via
§ 4247(h) is sound. Although the vehicle by which the discharge hearing is initiated may
differ, the destination is the same: a hearing, conducted with the safeguards set out in
§ 4247(d), where the district court determines if the detainee can be released. It is altogether
unclear why the standard of proof would change because the director is advocating on
behalf of the detainee, rather than the detainee advocating on behalf of himself. We thus
agree with the district court that the proper standard of proof in a discharge hearing is a
preponderance of the evidence.
That leaves us with the question of who bears the burden of proof. Because “[t]he
statute speaks in terms of showing recovery, rather than asking the government to prove
non-recovery,” United States v. McAllister, 963 F. Supp. 829, 833 (D. Minn. 1997), we
readily conclude that the detainee is the one who must offer such proof. It would not make
sense to place on the government the burden of proving precisely what it disagrees with:
“that the committed person is no longer sexually dangerous.” United States v. Wetmore,
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812 F.3d 245, 248 (1st Cir. 2016). The language of the statute thus indicates that the burden
should fall on the committed individual.
A burden-shifting framework makes sense here. By the time we get to a discharge
hearing, the government has already met its initial burden of proving that the individual is
sexually dangerous by clear and convincing evidence at the time of confinement. See id.The burden then logically shifts to the committed individual to prove he has recovered.
See United States v. Barrett, 691 F. App'x 754, 755 (4th Cir. 2017). The committed
individual is the one who seeks to alter the status quo, and in our system “the person who
seeks court action should justify the request.” C. Mueller & L. Kirkpatrick, Evidence § 3.1,
p. 104 (3d ed. 2003). “Absent some reason to believe that Congress intended otherwise,
therefore, we will conclude that the burden of persuasion lies where it usually falls, upon
the party seeking relief.” Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 58 (2005).
Our interpretation is confirmed by the treatment of a similar statute, 18 U.S.C.
§ 4246, which concerns the civil commitment of mentally ill individuals whose release into
society would create “a substantial risk of bodily injury to another person or serious
damage to property of another.” Id. § 4246(a). Like the Adam Walsh Act, this statute
permits the director of the facility in which the individual is being housed to certify that
the individual’s release would no longer pose a danger to society. Certification triggers a
hearing where if the court “finds by a preponderance of the evidence that the person has
recovered” from his mental illness to the extent that he is no longer dangerous, the court
shall order discharge. Id. § 4246(e). And detainees committed pursuant to § 4246 can move
for their own discharge via § 4247(h), just as Adam Walsh detainees can. Courts that have
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considered the issue have thus concluded that § 4247(h) movants seeking to be released
from § 4246 custody bear the burden of proving they no longer pose a danger to society by
a preponderance of the evidence. United States v. Evanoff, 10 F.3d 559, 563 (8th Cir. 1993);
McAllister, 963 F. Supp. at 833; United States v. Taylor, 513 F. App'x 287, 290 (4th Cir.
2013) (per curiam); United States v. Anderson, 104 F.3d 359 *5 n.12 (4th Cir. 1996)
(unpublished). The same goes for § 4247(h) movants seeking to be released from Adam
Walsh Act custody.
2.
Vandivere asserts that, regardless of what the statute mandates, forcing detainees to
bear the burden of proof at their own discharge hearings violates their due process rights.
The proper allocation of burdens of proof in a given statutory scheme is a question of
procedural due process. See, e.g., Addington v. Texas, 441 U.S. 418, 425 (1979); Santosky
v. Kramer, 455 U.S. 745, 758 (1982). We therefore look to the three factors elucidated in
Mathews v. Eldridge, 424 U.S. 319, 335 (1976), for guidance: (a) “the private interest . . .
affected by the official action,” id.; (b) “the fairness and reliability of the existing . . .
procedures, and the probable value, if any, of additional procedural safeguards,” id. at 343;
and, finally, (c) “the public interest,” which “includes the administrative burden and other
societal costs” that would accompany the requested procedure, id. at 347. While Mathews
has the drawbacks of indeterminacy, it has the virtues of balance, which seem especially
appropriate to this setting.
a. The private interest at stake. The Supreme Court “repeatedly has recognized that
civil commitment for any purpose constitutes a significant deprivation of liberty that
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requires due process protection,” Addington, 441 U.S. at 425, and that “[f]reedom from
bodily restraint has always been at the core of the liberty protected by the Due Process
Clause.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992). It cannot be denied, then, that the
private interest at stake is a weighty one. But “that liberty interest is not absolute,” Kansas
v. Hendricks, 521 U.S. 346, 356 (1997), and the governmental interest in protecting the
public from mentally disturbed and sexually dangerous detainees should not be minimized.
See Mathews, 424 U.S. at 340–43.
b. Evaluation of existing procedures; value of potential additional safeguards.
Congress, in enacting the Adam Walsh Act, provided detainees with a number of
guardrails. Start with the initial civil commitment hearing, in which procedures “differ
substantially from those that apply to a run-of-the-mill civil case in that they afford
individuals rights traditionally associated with criminal proceedings, including the right to
appointed counsel, the right to confront witnesses, and a heightened burden of proof.”
Searcy, 880 F.3d at 125.
Even if the government is successful in the initial commitment proceeding, the
individual is not condemned to indefinite confinement. He has access to various avenues
for relief, see supra Part II, one of which is renewable by the detainee himself, 18 U.S.C.
§ 4247(h), and one of which permits his caretakers to advocate on his behalf, id. § 4248(e).
In both proceedings, the individual bears a lesser burden to earn his discharge than the
government bore to secure his confinement. And both proceedings come with the
safeguards set out in § 4247(d). Finally, an individual has the option to collaterally attack
his confinement. Id. § 4247(g). In this way, Congress aimed to strike a balance between
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respecting individual liberty on the one hand and protecting the citizenry at large on the
other. Courts should not lightly overturn what was obviously a thorough and concerted
effort on the part of a coordinate branch of government to weigh the personal and public
stakes at issue.
c. The public interest. If the government were forced to hold more frequent or more
elaborate hearings, even if the detainee had little evidence of his rehabilitation, the
government would bear an unnecessary hardship. At the very least, it would require the
government to repeatedly recall the same expert witnesses and make the same claims about
the detainee’s behavior patterns. Placing the burden on the detainee at each discharge
hearing helps to prevent such needless and wasteful repetition, as a hearing will only prove
beneficial to the detainee if he can persuade the court that circumstances have changed
such that he can be safely released. The existing scheme has the additional side effect of
breeding positive incentives: the detainee is encouraged to participate in treatment while
in commitment, so that he has proof of recovery at a subsequent discharge hearing. Shifting
the burden to the government would eviscerate these positive incentives and undermine the
statute’s general thrust towards rehabilitation.
On balance, therefore, the Mathews v. Eldridge factors demonstrate that the
allocation of the burden of proof on an Adam Walsh Act detainee complies with the Due
Process Clause.
Vandivere, however, tried to avoid the Mathews inquiry entirely by invoking three
Supreme Court precedents in support of his claim: Addington v. Texas, 441 U.S. 41819
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(1979); Foucha v. Louisiana, 504 U.S. 71 (1992); and Kansas v. Hendricks, 521 U.S. 346(1997). None of these precedents can bear the weight Vandivere attempts to place on them.
Start with Addington. There, the Supreme Court considered the constitutionally
requisite standard of proof in initial civil commitment proceedings. 441 U.S. at 419–20.
The Court held that to civilly commit an individual in the first instance, the government
must prove by clear and convincing evidence that the individual is mentally ill and
dangerous. Id. at 431. This “middle level of burden of proof” between a preponderance of
the evidence standard and a proof beyond a reasonable doubt standard strikes “a fair
balance between the rights of the individual and the legitimate concerns of the state.” Id.Addington does little to help Vandivere. No one disputes that the government has
the burden of proof in the initial commitment proceedings, a burden it met here. And
nothing in Addington indicates that the government must be forced to bear this burden each
time a civilly committed individual moves for discharge, which could be as often as every
180 days. 18 U.S.C. § 4247(h).
Vandivere next argues that Foucha established the principle that “in matters
involving civil commitment, the burden must at all times be on the Government.”
Appellant’s Br. 29. But Foucha said no such thing. In Foucha, a criminal defendant was
committed to a psychiatric hospital on the grounds that he was mentally ill and dangerous
after being found not guilty by reason of insanity. 504 U.S. at 73–74. At a subsequent
discharge hearing, the state no longer contended he was mentally ill, and thus sought to
confine him indefinitely based on dangerousness alone. Id. at 75, 80. The Supreme Court
held that for indefinite civil commitment to be justified, the state must at all times contend
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that the detainee is both mentally ill and dangerous. Id. at 77, 83. Here, the government
continues to assert that Vandivere remains both mentally ill and dangerous; indeed, the
government put forth evidence at Vandivere’s discharge hearing to attest to exactly that.
Finally, Vandivere points to Hendricks as establishing that, for a civil commitment
scheme to be constitutional, the state cannot shift the burden of proof at discharge
proceedings to the detainee. But this is too broad a reading of the case. Hendricks
concerned a state law predecessor of the Adam Walsh Act. 521 U.S. at 350. In describing
the statute, the Court noted that “[i]n addition to placing the burden of proof upon the State,
the Act afforded the individual a number of other procedural safeguards.” Id. at 353. In
subsequent discharge proceedings, “[i]f the court found that the State could no longer
satisfy its burden under the initial commitment standard, the individual would be freed
from confinement.” Id.From this description of the statute, Vandivere tries to extract a constitutional rule.
He posits that the statute’s lack of burden shifting was a necessary condition of its
constitutionality. But the Court’s ultimate conclusion that the statute complied with the
Due Process Clause did not rest on burdens of proof. Rather, the Court upheld the statute
against a challenge that it ran counter to Foucha and Addington because it allowed for civil
commitment of those with a mere “mental abnormality,” a “term coined by the Kansas
Legislature,” rather than those with a “mental illness.” Id. at 358–59. The Court rejected
this assertion, holding that “the term ‘mental illness’ is devoid of any talismanic
significance.” Id. at 359. Because the statute “require[d] a finding of future dangerousness,
and then link[ed] that finding to the existence of a ‘mental abnormality’ or ‘personality
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disorder’ that makes it difficult, if not impossible, for the person to control his dangerous
behavior,” the statute complied with the Due Process Clause. Id. at 358. The statute’s lack
of burden shifting simply did not play into the Court’s analysis.
None of the precedents Vandivere cites, then, render the Adam Walsh Act
constitutionally suspect, and we decline to read into the meticulous efforts of Congress
constitutional problems where there are none. Unwinding these interrelated efforts either
piecemeal or wholesale would produce a perfect mess. We therefore agree with the district
court and hold that, in an Adam Walsh Act discharge hearing, the detainee bears the burden
of proof to show his recovery by a preponderance of the evidence.
IV.
Vandivere next contends that, regardless of the burden of proof, the district court
erred in concluding that he remained sexually dangerous.
We review the district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Charboneau, 914 F.3d 906, 912 (4th Cir. 2019). The
clear error standard preserves the district court's role as the primary fact finder. Thus, a
reviewing court is not entitled to reverse factual findings merely because it might have
weighed the evidence differently. United States v. Wooden, 693 F.3d 440, 451 (4th Cir.
2012). Further, “[e]valuating the credibility of experts and the value of their opinions is a
function best committed to the district courts,” and the reviewing court “should be
especially reluctant to set aside a finding based on the trial court’s evaluation of conflicting
expert testimony.” Hendricks v. Cent. Reserve Life Ins. Co., 39 F.3d 507, 513 (4th Cir.
1994).
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As discussed above, the district court concluded that Vandivere failed to meet his
burden of proving he was no longer sexually dangerous after a consideration of the entire
record, which included expert testimony, lay witness testimony, and evidentiary reports.
The district court carefully evaluated the credibility of the witnesses and cogently
explained its conclusions on the record. We have not been left with “the definite and firm
conviction” that the district court erred in concluding Vandivere remained sexually
dangerous. Easley v. Cromartie, 532 U.S. 234, 242 (2001). Instead, the district court’s
assessment of the evidence appears reasoned, balanced, and well-informed.
Vandivere nonetheless criticizes the district court for disregarding Dr. Rosell’s
opinion that hebephilia is not a valid basis for civil commitment, due to its exclusion from
the DSM-V. However, this Court has already rejected that very same argument, holding
that “the scope of ‘illness, abnormality, or disorder’ in § 4247(a)(6) is certainly broad
enough to include hebephilia,” and that “a mental disorder or defect need not necessarily
be one so identified in the DSM in order to meet the statutory requirement.” United States
v. Caporale, 701 F.3d 128, 136–37 (4th Cir. 2012) (quoting United States v. Carta, 592
F.3d 34, 39–40 (1st Cir.2010)) (internal quotation marks omitted); see also Hendricks, 521
U.S. at 359 (holding that definitions of mental illness in civil commitment statutes need
not track precise medical definitions).
Vandivere also protests that the district court erred in relying on the government’s
rare-bird theory. He asserts that the theory is entirely subjective and contradicts the weight
of objective research that suggests a sex offender of Vandivere’s age is highly unlikely to
reoffend. But the question of whether a particular sex offender will reoffend requires more
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than a consideration of general statistics about the mine-run of sex offenders. Instead,
district courts are tasked with considering the personal proclivities of each offender and
what these idiosyncrasies might indicate about his risk of reoffending. See, e.g.,
Charboneau, 914 F.3d at 917 n.10; United States v. Perez, 752 F.3d 398, 408 (4th Cir.
2014); United States v. Heyer, 740 F.3d 284, 292–94 (4th Cir. 2014); Hall, 664 F.3d at
466. The district court was thus well within its discretion to evaluate the statistical evidence
in light of Vandivere’s own foibles, most notably his utter lack of remorse and persistent
refusal to participate in sex offender therapy, and conclude that Vandivere remained
sexually dangerous, despite his advanced age.
Finally, Vandivere asserts that the district court committed reversible error due to
its “inadequate consideration of certain substantial evidence,” namely, Vandivere’s
positive behavior during confinement. Appellant’s Reply Br. 23 (quoting United States v.
Antone, 742 F.3d 151, 165 (4th Cir. 2014)). He points out that all three experts agreed that
Vandivere has not been a management problem while in custody, and that his last sexually
based infraction was fifteen years ago. He argues that this demonstrates he can control his
behavior. He therefore asserts that the district court’s refusal to properly account for this
evidence warrants reversal.
We reject this argument. The district court did consider Vandivere’s behavior while
in custody, but correctly noted that “there are no 13- to 15-year-old boys in the BOP.” J.A.
298. Further, the court emphasized that Vandivere continued to demonstrate cognitive
distortions about sexual abuse into the present, such as his belief that pubescent boys could
validly consent to sex with an adult, that he refused to “even attempt” sex offender
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treatment while in custody, and that his suggested release plan to live in Wilson’s remote
cabin was not “remotely acceptable.” J.A. 295, 298–99.
Thus, we are far from a situation where the district court ignored “substantial
evidence in the record indicating that [Vandivere] has developed a level of general and
social self-regulation” and engaged in a “decade[s]-long process of rehabilitation.” Antone,
742 F.3d at 167, 169. Nor is it the case that the district court reached its conclusions “by
relying on a flawed expert opinion [or] by ignoring or otherwise failing to account for [a]
substantial body of contradictory evidence.” Wooden, 693 F.3d at 461. On the contrary, the
record reflects that “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.” United States v. Bolander, 722 F.3d 199, 216 (4th Cir. 2013).
V.
We end with a brief observation on the peculiarity of civil commitment. We would
be remiss if we did not comment on the oddity of a system that deprives individuals so
fully of their liberty outside the context of criminal confinement. Indeed, the concept may
strike one as unseemly in a society founded on higher notions of justice and redemption.
But we would also be remiss if we failed to acknowledge the horrid details of
Vandivere’s crimes. The callousness and cruelty with which he subjected his young victims
to lifetimes of trauma cannot be dismissed here. We do not raise the brutality of his abuse
to allude to some moralistic desire to make him pay for what he has done, however. He has
already served his time in prison for that purpose. Rather, his past crimes inform what the
district court understood it was protecting the public from in the present. In its view, the
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risk of recurrence upon release had not dissipated, and we have no basis for upsetting the
trial court’s judgment.
AFFIRMED
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