United States v. Michael Pardee

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6839
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
MICHAEL PARDEE,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:08-hc-02032-FL-JG)
Argued: May 15, 2013 Decided: July 2, 2013
Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: G. Alan DuBois, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Michael Gordon James,
OFFICE OF THE UNITED STATES ATTORNEY, for Appellee. ON BRIEF:
Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Research and Writing Specialist, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Thomas G.
Walker, United States Attorney, Jennifer May-Parker, Assistant
United States Attorney, Michael G. James, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
After a hearing, the district court found that Michael
Pardee was a sexually dangerous person, as defined in the Adam
Walsh Act, 18 U.S.C. § 4248, and ordered that he be committed to
the custody of the Attorney General. On Pardee’s appeal, we
affirm.
I
In 1993, Pardee pleaded guilty in Washington State to a
charge of child molestation and was sentenced to 68-months’
imprisonment. While in state prison, Pardee completed an 18-
month sex offender treatment program and, after his release,
completed two years of outpatient treatment.
In 2002, Pardee pleaded guilty in the Eastern District of
Washington to two counts of possession of child pornography and
was sentenced to 37-months’ imprisonment, plus three years
supervised release. While in prison, Pardee participated in the
sex offender treatment program for six months, but never
finished the program. When he was released in September 2004,
he returned to outpatient treatment, which he continued for 20
months.
On June 16, 2006, the district court revoked Pardee’s
supervised release because he used cocaine and alcohol and
sentenced him to 24-months’ imprisonment. Three days before
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Pardee was to be released, the government certified him as a
sexually dangerous person pursuant to 18 U.S.C. § 4248.
Pardee filed a motion on June 23, 2010, to dismiss the §
4248 proceedings, arguing (1) that § 4248 created an
unconstitutional criminal commitment scheme; (2) that § 4248
violated due process by imposing the clear and convincing burden
of proof on factual findings; and (3) that § 4248 violated equal
protection by limiting its application to individuals in the
custody of the Bureau of Prisons. The district court denied
Pardee’s motion and proceeded to a commitment hearing.
At the hearing, Pardee stipulated to the first two elements
necessary for an order of commitment -- that he had previously
engaged in sexually violent conduct or child molestation and
that he suffers from a serious mental illness, abnormality, or
disorder. See United States v. Comstock, 627 F.3d 513, 515-16
(4th Cir. 2010). He disputed, however, the third element --
that he would have serious difficulty in refraining from
sexually violent conduct or child molestation if released. See
id.Three experts testified at the two-day hearing -- two for
the government and one for Pardee. The government’s experts,
Dr. Jeffrey Davis and Dr. Manuel Gutierrez, testified that they
believed that Pardee would indeed have serious difficulty in
refraining from child molestation if released. Dr. Gutierrez
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identified several risk factors that led him to his conclusion:
(1) Pardee’s “pattern of offending over a significant period of
time”; (2) Pardee’s “continuing to have fantasies about
prepubescent children”; (3) Pardee’s “intimacy deficits with
same-age peers”; (4) Pardee’s practice of “inserting himself
into situations where he has access to children through families
that he befriends”; (5) his “emotional identification with
children”; (6) his impulsivity and pattern of substance abuse;
(7) his association with “negative peers of negative
influences”; and (8) the fact that Pardee would not have any
conditions of supervised release. Dr. Davis testified
similarly, noting that Pardee failed “in his ability to make use
of the treatment information that he previously had and [failed]
to appreciate the risks in which he placed himself for
reoffense.”
Pardee’s expert, Dr. Luis Rosell, testified that in his
opinion, Pardee would not have serious difficulty in refraining
from child molestation if released, because, although he did
engage in child pornography, he did not engage in any “hands-on
offending” while on state parole or on supervised release.
The parties stipulated into evidence the experts’ reports;
documents relating to Pardee’s participation in the sex offender
treatment programs; documents establishing and relating to his
1993 conviction; documents establishing and relating to his 2002
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conviction, including the presentence report; and documents
relating to his 2006 supervised-release revocation.
The presentence report relating to Pardee’s 2002 conviction
and sentencing described the child pornography that was the
subject of the offense. It also described evidence seized from
Pardee’s residence at the same time that the child pornography
was seized, including three videos that Pardee had made at
company picnics, in which Pardee focused the camera on blonde
prepubescent females and pointed the camera down the fronts of
their dresses to view their chests. While Pardee was given the
opportunity to object to the 2002 presentence report, he
objected only to the use, for purposes of his criminal history,
of a 1993 driving-under-the-influence conviction.
The district court ruled on Pardee’s commitment from the
bench, finding that the government had proven by clear and
convincing evidence that Pardee was sexually dangerous and
should be committed under the Adam Walsh Act. The court focused
on Pardee’s lack of empathy toward victims and the
ineffectiveness of his prior treatment. It noted that Pardee
downloaded child pornography after he completed treatment,
relying on his 2002 presentence report to describe the types of
images that Pardee had possessed. The court also referenced one
of the video tapes Pardee took at a company picnic as more
evidence that treatment had not worked, noting that Pardee
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placed himself in high-risk situations even after receiving
treatment. The court concluded, “And with all of the history,
with all of the issues, with all of the information available to
me, I have come to this conclusion that [Pardee was] suffering
still from this serious difficulty in refraining from sexually
violent conduct or child molestation.” The court memorialized
its ruling in a written commitment order, dated April 27, 2012.
From that order, Pardee took this appeal.
II
For his primary argument, Pardee contends that the district
court erred when it considered and relied on the contents of the
presentence report from his 2002 conviction for possession of
child pornography. He makes his argument as follows:
The primary factual dispute in this appeal involves
the district court’s acceptance of the factual
allegations contained in Mr. Pardee’s 2002 Presentence
Report (“PSR”). . . . The PSR contained specific and
detailed allegations about the content of child
pornography that Mr. Pardee possessed. It also
contained allegations about a video of a company
picnic that Mr. Pardee filmed, alleging that this
video unduly focused on young girls at the picnic.
The government did not present independent evidence of
these allegations [and] . . . Mr. Pardee had no
opportunity to cross-examine any witnesses concerning
the allegations in the PSR.
In short, Pardee argues that the 2002 presentence report was
inadmissible hearsay and its admission denied him his right to
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the confrontation of witnesses, as articulated in Crawford v.
Washington, 541 U.S. 36 (2004).
Because Pardee did not object to the 2002 presentence
report before the district court, we review its admission for
plain error. See United States v. Baptiste, 596 F.3d 214, 220
(4th Cir. 2010).
In 2002, after Pardee was charged with possession of child
pornography, in violation of 18 U.S.C. § 2252A(a)(5), he pleaded
guilty, stipulating to the factual basis for the charges,
including his acknowledgement of his 1993 conviction for first
degree child molestation as relevant to aggravated sexual abuse
involving a minor for sentencing purposes. See 18 U.S.C. §
2252A(b)(2). In connection with his sentencing, the probation
office prepared a presentence report that described in some
detail Pardee’s offense conduct and the pornographic images that
he possessed. It also described three video tapes seized from
Pardee’s residence at the same time that the pornographic images
were seized. The report states that Pardee made the video tapes
during employee picnics in 1999, 2000, and 2001 and describes
that they were taken with the camera “pointed down the shirt” of
blonde prepubescent females so as to reveal their chest areas.
The report describes how Pardee’s conduct at the picnics was
further investigated by federal law enforcement officers and the
evidence was then referred to state officials.
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Pardee was given the opportunity to challenge the
presentence report and have the court resolve any objections.
His only challenge at that time, however, was to the computation
of his criminal history by using a conviction for driving under
the influence. He made no objection to the description of the
video tapes seized from his residence.
The 2002 presentence report was an official document that
was required to be prepared before sentencing and was required
to be provided to Pardee, as well as the court, for purposes of
sentencing. See 18 U.S.C. § 3552(a), (d); Fed. R. Crim. P. 32.
At the commitment hearing in this case, Pardee stipulated
to the admission into evidence of the 2002 presentence report.
Moreover, during the hearing, Pardee acknowledged, pursuant to
questions put to him by his own counsel, that he took the videos
“but never watched [them] again after I recorded [them].” He
neither denied making the videos nor challenged the report’s
description of them. He only denied that he made the videos for
any sexual purpose and explained that they also depicted other
persons and events at the picnics.
In view of the fact that the presentence report was
stipulated into evidence and used by Pardee at the hearing, it
is curious that Pardee argues that he can now, for the first
time on appeal, challenge its admissibility on grounds of
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hearsay and denial of confrontational rights. We conclude that
Pardee has waived these arguments.
Moreover, Pardee could hardly have had any basis to object
to the report even had he made an objection at the commitment
hearing. The report was an official document connected with
Pardee’s 2002 conviction and sentencing, that was created after
Pardee had a right to object to it and have it changed in any
way appropriate. It was required to be prepared and was used in
the court’s sentencing. It was surely admissible into evidence
before the district court here as an official document. See
Fed. R. Evid. 803(8).
Pardee’s argument that he was denied the right to cross-
examine witnesses about the 2002 presentence report would also
have been unsupportable, had he raised it. First, Crawford, on
which he relies, applies only to criminal cases, not to civil
proceedings such as this. Second, he himself would be the best
witness to describe his own video tapes and to correct any
errors in their description.
Finally, aside from all these barriers, Pardee would have
to demonstrate that the admission of the 2002 presentence report
affected his substantial rights. But this too rings hollow.
The issue before the district court was whether Pardee would
have serious difficulty now in refraining from sexually violent
conduct or child molestation if released. The 12-year old video
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tapes could hardly be the centerpiece of the evidence necessary
to make that determination. And the district court did not make
it so, alluding to it only as an example of how Pardee did not
learn from his participation in sex offender programs.
For all the reasons given, we reject Pardee’s challenge to
the admission and consideration of his 2002 presentence report.
III
Pardee also mounts three constitutional challenges to the
Adam Walsh Act, arguing that § 4248 creates an unconstitutional
criminal proceeding; that § 4248 violates the Equal Protection
Clause; and that § 4248 violates the Due Process Clause. But
Pardee appropriately concedes that circuit precedent forecloses
each of these claims. See United States v. Timms, 664 F.3d 436,
449, 454-55 (4th Cir. 2012); United States v. Comstock, 627 F.3d
513, 524-25 (4th cir. 2010). Accordingly, we need not address
these challenges further.
For the foregoing reasons, we confirm the district court’s
order committing Pardee to the custody of the Attorney General.
AFFIRMED
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