US v. Daniel King

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:10-hc-02009-FL-JG Copies to all parties and the district court/agency. [999193726].. [12-7852]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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
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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.

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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
King exposed himself to
the hall from his at
purposefully masturbated

•

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.

the morning of his § 4248 hearing,
female detainees in a cell across
the Wakefield County Jail.
King
in view of the female detainees.

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.
4

Discovery

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commenced, with an end date of September 15, 2011, and a hearing
date set for October 17, 2011 before a magistrate judge.
September

16,

2011,

King

moved

the

court

to

reconsider

On
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,

adjustment,

and

substance
other

abuse

records.

Dr.

history,
Zinik

institutional

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 (“DSMIV-TR”) as “recurrent, intense sexually arousing fantasies,
(Continued)
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nonconsenting

females

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(“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

psychology

also
staff

evidence
that

that

he

King

has

stated

committed

verbally
undetected

to

BOP

sexual

offenses in the past, that the sex treatment he has received has
been ineffective, that he has not received adequate tools to
control
released.

himself,

and

that

he

would

sexually

reoffend

if

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.”

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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

degree of accuracy.

assessment

tools

that

have

a

moderate

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

sexually

if

reoffended

released,
while

in

including:

BOP

(1)

custody;

King

had

not

(2)

King

only

had

fifteen years left in his “time at risk,” and once outside the
risk

period

his

significantly

motivation

decrease;

and

and
(3)

ability
his

to

advanced

reoffend
age.

will

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,

qualifies as a sexually dangerous person.

7

found

that

King

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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

Exhibitionism;
Antisocial

from:

(1)

Alcohol

Abuse;

(3)

Personality

conclusions

by

Paraphilia
(4)

Disorder.

detailing

Opiate

Her

King’s

NOS-nonconsent;
Abuse;

report

and

reached

developmental

(2)
(5)

these

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.

King

Graney

also

found

that

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

released.

King

his
told

statements
Dr.

Saleh

that
that

he
he

would

reoffend

simply

made

if

those

statements in order to remain confined and to receive continued
treatment.
“acting

out

As such, Dr. Saleh found that King had a history of
and

feigning

psychiatric
8

symptoms

for

secondary

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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 selfreporting

his

encounters

on

three

impulse
at

decades.

corroborated

his

least

to
ten

King’s
finding.

engage
separate

own

in

nonconsensual

occasions

over

behavior

over

the

Therefore,

when

turning

sexual

the

past

time-period
to

the

elements necessary for civil commitment, the magistrate judge
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that

King’s

Pg: 10 of 17

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

suffered

from

impulse

to

of

Drs.

a

“paraphilic

engage

Zinik

in

and

Graney,

disorder

nonconsensual

finding

that

characterized
sexual

by

encounters

King
his
with

women,” yet refused to attach the formal diagnosis of Paraphilia
NOS-nonconsent to King’s mental illness.
further

found

that

the

disorder

is

The magistrate judge

serious

because

substantial disruption it caused in King’s life.
the

magistrate

judge

found

there

was

clear

of

the

And finally,

and

convincing

evidence that King would have serious difficulty refraining from
sexually

violent

statements.

conduct

if

released,

as

evinced

by

his

own

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

(although

actuarial
the

measures

magistrate

“great weight”).

indicating

judge

did

not

King’s
give

the

future

risk

assessments

Therefore, the magistrate judge recommended

that King met the criteria for civil commitment under the Adam
Walsh Act.

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King entered objections to the magistrate judge’s report
and

recommendations,

finding

his

arguing

statements

credible,

and

that

the

satisfied

the

elements

the

regarding

magistrate
his

magistrate
necessary

sexual

judge
for

judge

impulse

erred

civil

erred

in

in

control

finding

commitment.

he
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
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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).

2

That the Adam Walsh Act

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).

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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
have

mental

serious

illness,

difficulty

abnormality,
in

or

refraining

conduct or child molestation if released.

disorder,
from

King

sexually

would

violent

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.
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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

by

his

intense desire to engage in nonconsensual sex with women.

The

experts

reached

criminal

paraphilic

this

history,

his

disorder,

conclusion
repeated

characterized

based

misconduct

on

King’s

while

extensive

incarcerated,

and his repeated assertions about his wanton sexual desires and
inability
conclusion.

to

control

them.

Dr.

Selah

reached

a

contrary

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.
14

There is nothing to indicate

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that Drs. Zinik and Graney’s testimony is inconsistent with the
evidence

presented.

And

expert

opinion

is

critical

determining whether King suffers from a mental illness.
Addington v. Texas, 441 U.S. 418, 429 (1979).

to
See

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

therefore undermines its utility. 3

judge’s

conclusion,

and

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).

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U.S. v. Hill, 649 F.3d 258, 262 (4th Cir. 2011).
there

are

two

permissible

views

of

the

And “[w]here
evidence,

the

factfinder’s choice between them cannot be clearly erroneous.”
Anderson, 470 U.S. at 574.
Drs.

Zinik

and

Graney’s

Because there is no evidence that

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,
clear

and

difficulty
released.

King

argues

convincing
in

the

government

evidence

refraining

from

that

failed
would

he

sexually

to
have

violent

prove

by

serious

conduct

if

This argument runs contrary to the record.

The serious difficulty element “refers to the degree of the
person’s
ability

‘volitional
to

refrain

impairment,’
from

acting

which
upon

impacts

his

the

deviant

person’s

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
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“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

committed.”

and

firm

conviction

that

a

mistake

has

been

United States v. Caporale, 701 F.3d 128, 135 (4th

Cir. 2012) (internal citations and quotation marks omitted).
have no such conviction.

We

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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