US v. Jose De La Luz Perez

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 5:11-hc-02015-BR-JG. [999356540]. [13-6043]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6043

UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
JOSE DE LA LUZ PEREZ,
Respondent - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
W. Earl Britt, Senior
District Judge. (5:11-hc-02015-BR-JG)

Argued:

January 28, 2014

Before TRAXLER,
Judges.

Chief

Judge,

Decided:

and

MOTZ

and

May 15, 2014

THACKER,

Circuit

Affirmed by published opinion.
Chief Judge Traxler wrote the
opinion, in which Judge Motz and Judge Thacker joined.

ARGUED: Jenna Turner Blue, BLUE, STEPHENS & FELLERS, LLP,
Raleigh, North Carolina, for Appellant.
Matthew Fesak, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney,
R.A. Renfer, Jr., Edward D. Gray, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.

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TRAXLER, Chief Judge:
Jose De La Luz Perez appeals from an order of the district
court concluding after an evidentiary hearing that Perez is a
“sexually dangerous person,” 18 U.S.C. § 4248(a), under the Adam
Walsh Child Protection and Safety Act of 2006 (the “Act”), Pub.
L. No. 109–248, 120 Stat. 587, and committing him to the custody
of the United States Attorney General.

Perez asks us to vacate

the civil commitment order, contending that the district court
lacked personal jurisdiction because the government failed to
serve him with a summons pursuant to Rule 4 of the Federal Rules
of

Civil

district
person”

Procedure.
court’s

under

Alternatively,

finding

the

Act

that

was

he

clearly

Perez

is

a

argues

“sexually

erroneous.

As

that

the

dangerous
explained

below, we affirm.
I.
Under the Act, the government has the authority to civilly
commit

“sexually

expiration

of

dangerous”

their

federal

federal
prison

inmates

sentences.

following
18

the

U.S.C.

§

4248(a); see United States v. Wooden, 693 F.3d 440, 442 (4th
Cir. 2012). The statute defines a “sexually dangerous person” as
one “who has engaged or attempted to engage in sexually violent
conduct or child molestation and who is sexually dangerous to
others.”

18

U.S.C.

§

4247(a)(5).

A

person

is

considered

“sexually dangerous to others” if “the person suffers from a
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serious mental illness, abnormality, or disorder as a result of
which

he

would

have

serious

difficulty

in

refraining

from

sexually violent conduct or child molestation if released.”

Id.

§ 4247(a)(6) (emphasis added).
The

Attorney

General

or

the

Director

of

the

Bureau

of

Prisons (“BOP”) may commence a § 4248 commitment proceeding by
filing with the clerk of court for the district in which the
respondent

is

confined

a

certification

that

sexually dangerous as defined by the Act.

the

person

is

See id. § 4248(a).

The “filing automatically stays the release of the person from
custody pending a hearing before the district court.”

United

States v. Heyer, 740 F.3d 284, 286 (4th Cir. 2014); see 18
U.S.C.

§

4248(a).

The

district

court

is

then

“required

to

convene a hearing to afford the government the opportunity to
prove the ultimate truth of its certification.”

United States

v. Caporale, 701 F.3d 128, 131 (4th Cir. 2012); 18 U.S.C. §
4248(a) (“The court shall order a hearing to determine whether
the person is a sexually dangerous person.” (emphasis added)).
“If, after the hearing, the court finds by clear and convincing
evidence that the person is a sexually dangerous person, the
court shall commit the person to the custody of the Attorney
General.”

18 U.S.C. § 4248(d) (emphasis added).

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II.
In

December

2011,

Perez

was

incarcerated

at

the

BOP

facility in Butner, North Carolina, where he was serving the
final

few

months

of

a

20-year

federal

sentence

for

(1)

transportation of a minor in foreign commerce with intent to
engage in criminal sexual activity, see 18 U.S.C. § 2423(a), and
(2) importation of an alien for immoral purposes, see 8 U.S.C. §
1328.

On January 6, 2011, the BOP Certification Review Panel

filed in the Eastern District of North Carolina a certification
seeking to have Perez civilly committed as a “sexually dangerous
person.”
dismiss

18 U.S.C. § 4248(a).
the

commitment

Perez subsequently moved to

proceedings

on

the

basis

that

the

government failed to comply with Rule 4(c)(1) of the Federal
Rules of Civil Procedure by failing to serve a summons.
United
motion,

States

filed

arguing

that

a

response
§

4248

in

only

opposition
requires

to

the

Mr.

The

Perez’s

filing

of

a

certification to initiate commitment proceedings, not a standard
civil summons.
that

Perez’s

The United States argued, in the alternative,

service

of

process

argument

was

barred

by

Rule

12(h)(1) because he failed to raise it in a prior motion that
addressed other procedural issues.

The district court denied

the motion to dismiss on slightly different grounds, concluding
that even if service of the summons was required here, dismissal
was not mandatory where, as here, Perez received actual notice
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of the § 4248 proceeding and suffered no prejudice from the
government’s failure to serve him with a summons.
As mandated by the Act, the district court conducted an
evidentiary hearing “to determine whether [Perez was] a sexually
dangerous person.”

18 U.S.C. § 4248(a).

Any person subject to

a hearing pursuant to the Act “shall be represented by counsel”
and “shall be afforded an opportunity to testify, to present
evidence, to subpoena witnesses on his behalf, and to confront
and

cross-examine

U.S.C.

witnesses

who

appear

§

4247(d);

see

id.

§

4248(c)

conducted

pursuant

to

the

provisions

at

the

(“The
of

hearing.”

hearing

section

18

shall

be

4247(d).”).

Perez moved to proceed pro se, and the court found that Perez
knowingly

and

counsel.
unlawful,

voluntarily

Believing
however,

participate

in

the

that

Perez

elected
the

to

appear

proceedings

refused

hearing.

to

be

without

against

present

Accordingly,

the

legal

him

or

were

otherwise

hearing

was

conducted in Perez’s absence.
The
forensic

government

presented

psychologists

who

the
each

expert

testimony

performed

a

of

three

pre-hearing

evaluation of Perez for the purpose of determining whether he
was

a

“sexually

dangerous

person”

under

the

Act:

Dr.

Hy

Malinek, a forensic psychologist who has evaluated hundreds of
individuals in § 4248 commitment proceedings; Dr. Heather Ross,
also a forensic psychologist specializing in the assessment of
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sex offenders; and Dr. Joseph Plaud, a forensic psychologist who
was appointed on behalf of Perez.

See 18 U.S.C. § 4247(b).

All

three experts prepared written reports stating their opinions
and summarizing the bases for their opinions.
In
Perez’s

making

criminal

following.
a

their

assessments,

history

all

records

three
which

experts

reviewed

established

the

In September 1970, Perez was arrested for abducting

seven-year-old

boy

at

a

laundromat

in

San

Antonio,

Texas.

Perez drove the boy to a motel where he held the boy overnight
and forced him to engage in oral sodomy numerous times.

The

next morning, Perez dropped the boy off in the street fifteen
blocks away from his home.

Perez was convicted in Texas state

court of kidnapping a minor from his parents and sentenced to 25
years imprisonment.
Crim. App. 1972).

See Perez v. State, 478 S.W.2d 551 (Tex.

He was released on parole in May 1979.

In May 1982, Perez made sexual contact with a nine-year-old
boy in a dressing room at a mall.

The boy’s mother reported the

incident to a security officer who then returned with the boy to
the dressing room and found Perez victimizing a twelve-year-old
boy.

The nine-year-old victim identified Perez as the molester.

In each case, Perez approached the boy and offered him money to
try on jeans, suggesting that they were the same size as Perez’s
nephew,

for

whom

Perez

was

shopping.

Each

victim

fell

for

Perez’s ruse, and Perez entered the dressing room with them and
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asked how the jeans fit.

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Eventually, Perez put his hands down

the boys’ pants and felt their genitals, patted their buttocks,
and asked them to bend over and touch their toes.
Perez was arrested at the time of the offense in May 1982.
After being placed on bond, Perez fled and evaded detection for
several years.
The

charge

He was eventually apprehended in March 1987.

involving

the

mall

dressing

room

molestation

was

dismissed because the nine-year old victim could not be located,
but Perez was convicted under Texas law in November 1987 of
indecency
victim.

with

a

child

in

relation

to

the

twelve-year-old

The charge also alleged that Perez had one prior felony

conviction for enhancement purposes.
five years’ imprisonment in Texas.

Perez was sentenced to

He was paroled in February

1989 and was discharged from parole in August 1992.
During

the

time

that

he

was

a

fugitive

from

charges

relating to the mall incident in 1982, Perez was convicted of
indecency with a child and sentenced to five years of probation
in

March

1983

in

Texas.

This

offense,

which

occurred

approximately six months after the offense in the mall, took
place

as

Perez

was

selling

subscriptions

noticed a young boy in a woman’s apartment.

door-to-door

and

After making a sale

to her, Perez left but returned a short time later, asking to
use the telephone.

While he was on the telephone, the woman

told her ten-year-old son to take the trash out to the dumpster
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in the parking lot.

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Perez followed the boy into the parking

lot, where he pinched and rubbed the child’s buttocks, touched
him on the front of his pants, and told him to unzip his pants.
The

victim

happened.

was

instructed

not

to

tell

anyone

about

what

Finally, in September 1993, Perez was arrested after

agents from the Immigration and Naturalization Service executed
a search warrant at his house in Texas.

The agents found two

boys, ages twelve and thirteen, who were living with Perez and
Perez’s father.

The boys were Mexican citizens and were living

in the United States illegally.
Interviews with the boys revealed that they had been living
with

respondent

and

his

father

for

approximately

two

years,

after respondent picked them up on the street in El Paso, Texas.
The twelve-year-old boy reported that respondent began sexually
abusing
involved
besides

them

the

anal
the

very

next

intercourse

home,

day.

and

including

The

occurred

locations

reported
in
in

sexual

several
the

abuse

locations

state

of

New

Mexico.

Perez also transported the boys to and from Mexico on

several

occasions.

interviewed

during

At
the

least

three

investigation

respondent had sexually molested them.

other

children

were

and

reported

that

Medical evaluations of

the two reported victims revealed signs consistent with chronic
perianal trauma.

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In 1993, Perez pled guilty to Transportation of a Minor in
Foreign

Commerce

with

Intent

to

Engage

in

Aggravated

Sexual

Assault and to Importation of an Illegal Alien for the Immoral
Purpose of Sexual Assault.

He was sentenced to 120 months’

imprisonment on each charge, to be served consecutively, as well
as three years of supervised release.
In addition to reviewing this criminal offense history, all
three experts sought to interview Perez.

Drs. Malinek and Ross

were rebuffed by Perez, who refused to cooperate.

Dr. Plaud was

more successful, eliciting a few limited statements from Perez
relating to his personal sexual history.

All three experts,

however, found Perez’s statements to Dr. Plaud to be significant
and considered them in assessing Perez’s sexual dangerousness.
The experts unanimously diagnosed Perez with pedophilia, marked
by an exclusive sexual attraction to young males, a condition
all agreed qualified as “a serious mental illness, abnormality,
or disorder.”
experts

agreed

18 U.S.C. § 4247(a)(6).
that

Perez

would

And, finally, all three
have

serious

difficulty

refraining from child molestation upon release from custody.
The district court found that the government established by
clear

and

convincing

evidence

that

Perez

was

a

“sexually

dangerous person” as defined by § 4247(a)(5), and that civil
commitment was therefore required under § 4248(d).

First, based

on Perez’s criminal records, the court found that Perez “has
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engaged or attempted to engage in sexually violent conduct or
child molestation” in the past.

Id. § 4247(a)(5).

Second,

based on the unanimous opinions of the expert witnesses, the
district

court

concluded

that

Perez

“suffers

mental illness, abnormality, or disorder.”

from

a

serious

Id. § 4247(a)(6).

And third, relying on the detailed testimony of the experts as
well as Perez’s criminal history, the district court held that
the

government

had

proven

that

Perez’s

pedophilia

“presently

impairs respondent’s volitional ability to refrain from deviant
behavior

and

that,

absent

abatement

by

effective

treatment,

would in the future give him serious difficulty in refraining
from child molestation or sexually violent conduct.”

J.A. 181-

82.
III.
In an appeal from an order granting or denying a civil
commitment

under

the

Act,

“we

review

the

district

court's

factual findings for clear error and its legal conclusions de
novo.”
2012).

United States v. Hall, 664 F.3d 456, 462 (4th Cir.
Perez’s

first

challenge

to

the

district

court’s

commitment order is a purely legal one—that the district court
could not exercise personal jurisdiction over him because he was
never served with a summons pursuant to Rule 4.
argument.

10

We reject this

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A civil action in federal court commences with the filing
of a complaint, see Fed. R. Civ. P. 3, and personal service of a
summons and a copy of the complaint upon the defendant, see Fed.
R. Civ. P. 4(c)(1).

Rule 4 dictates that the summons must,

among other things, identify the court and the parties; apprise
the defendant when he or she must appear to defend against the
allegations; and warn the defendant that failure to appear will
result in a default judgment in favor of the plaintiff.
Fed. R. Civ. P. 4(a)(1).
defendant

within

120

See

If the summons is not served on the

days

after

the

complaint

is

filed,

dismissal is required unless the district court extends the time
for

good

cause

shown.

See

Fed.

R.

Civ.

P.

4(m).

It

is

undisputed that the government never served Perez with a summons
and

that

no

extension

of

time

was

sought

or

granted.

The

government contends, however, that service of a standard civil
summons

under

commitment

Rule

4

proceedings

is

not

under

required

§

4248

to

against

commence
an

civil

allegedly

“sexually dangerous person” in the custody of the BOP.
As Perez points out, a commitment proceeding under § 4248
is civil and not criminal in nature, see United States v. Timms,
664

F.3d

436,

455-56

(4th

Cir.

2012),

and

thus,

broadly

speaking, the Federal Rules of Civil Procedure would apply to a
§ 4248 commitment proceeding.

Rule 1 provides that “[t]hese

rules govern the procedure in all civil actions and proceedings
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in the United States district courts, except as stated in Rule
81.”

Fed. R. Civ. P. 1.

Although Rule 81 enumerates several

types of civil actions or proceedings to which the Rules of
Civil Procedure, to one extent or another, do not apply, a civil
commitment proceeding pursuant to 18 U.S.C. § 4248 is not among
them.

See Fed. R. Civ. P. 81.
That the Rules of Civil Procedure generally apply to civil

commitment proceedings under the Act, however, does not mean
that they cannot be displaced by specific procedural provisions
included in the Act.

Congress “has ultimate authority over the

Federal Rules of Civil Procedure; it can create exceptions to an
individual rule as it sees fit—either by directly amending the
rule or by enacting a separate statute overriding it in certain
instances.”

Shady Grove Orthopedic Assocs., P.A. v. Allstate

Ins. Co., 559 U.S. 393, 400 (2010).

The question is whether the

Act requires the government to serve a summons pursuant to Rule
4

upon

a

differences

respondent
between

in
the

federal

custody

initiation

of

despite

the

civil

proceedings under § 4248 and a typical civil action.

obvious

commitment
We think

not.
The Act does not expressly indicate whether service of a
summons is required; “service of process” under Rule 4 is simply
not mentioned.

However, the Act is not silent as to how to

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initiate and to notify the respondent of a § 4248 commitment
proceeding:
Institution of proceedings.
In relation to a person
who is in the custody of the Bureau of Prisons, . . .
the Attorney General or any individual authorized by
the Attorney General or the Director of the Bureau of
Prisons may certify that the person is a sexually
dangerous person, and transmit the certificate to the
clerk of the court for the district in which the
person is confined.
The clerk shall send a copy of
the certificate to the person, and to the attorney for
the Government . . . .
18

U.S.C.

§

streamlined

4248(a)
procedure

(emphasis
for

added).

initiating

The

Act

commitment

provides

a

proceedings

against individuals in BOP custody who have been certified as
“sexually

dangerous”

under

§

4248.

Under

the

Act,

“[t]he

Attorney General, his designee, or the Director of the [BOP] may
initiate a § 4248 commitment proceeding in the district court
for the district in which the person is confined by filing a
certification that the person is sexually dangerous within the
meaning of the Act.”

Heyer, 740 F.3d at 286 (emphasis added).

And, rather than require the government to effect formal service
of the certificate and a standard summons upon the respondent,
the Act directs the clerk of court simply to “send a copy of the
certificate to the person” in BOP custody who was certified as
“sexually dangerous.”

18 U.S.C. § 4248(a).

We conclude that the procedure set forth in 18 U.S.C. §
4248(a) for initiating proceedings for the civil commitment of a

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sexually dangerous person supplants the summons requirement set
forth in Rule 4.
two

primary

Service of process pursuant to Rule 4 serves

functions

in

a

typical

civil

action

in

federal

court:

it provides formal notice to the defendant to appear and

defend

against

an

action

court,

and

is

the

it

that

means

has

by

been

which

commenced

the

personal jurisdiction over the defendant.

court

in

federal

asserts

its

See Henry H. Perritt,

Jr., Jurisdiction in Cyberspace, 41 Vill. L. Rev. 1, 31 (1996)
(“Service of process performs two functions in Anglo-American
civil procedure: it represents assertion of judicial power of
the forum state over the person of the defendant, and it is the
formal means of providing notice to the defendant so that he or
she may defend the lawsuit.”).

In the unique context of a §

4248 proceeding, however, service of a standard summons under
Rule 4 is not necessary to perform either function.
First, the paramount function of serving a summons is to
provide formal notice to the defendant that action is required
to avoid liability and preserve his or her rights.

Service of

the summons apprises a defendant “of the pendency of the action”
and “afford[s] [the defendant] an opportunity to present [his]
objections.”

Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80,

84 (1988) (quoting Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950)).
defendant

through

proper

Establishing notification to a civil
service
14

of

the

summons

is

critical

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other

things,

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service

of

the

summons

triggers

defendant’s duty to file a responsive pleading to the complaint,
see Fed. R. Civ. P. 12(a)(1)(A)(i) (“A defendant must serve an
answer . . . within 21 days after being served with the summons
and complaint.”), and the failure to respond in a timely fashion
can result in liability being imposed by default, see Fed. R.
Civ. P. 55(a).
The respondent in a § 4248 civil commitment proceeding, by
contrast, is not required to file any responsive pleading and
faces no risk of a contrary merits determination being entered
by default or without his knowledge.

In fact, Congress afforded

§ 4248 respondents a number of procedural safeguards, including
a mandatory evidentiary hearing, see 18 U.S.C. § 4248(a) (“The
court shall order a hearing to determine whether the person is a
sexually dangerous person.”); id. § 4248(d) (granting district
courts the power to “commit the [respondent] to the custody of
the

Attorney

right

to

be

General”

after

represented

the

by

an

mandatory
attorney

hearing);
at

the

and

the

mandatory

evidentiary hearing, see id. §§ 4248(c), 4247(d) (providing that
“[a]t

a

hearing

ordered

pursuant

to

this

chapter

the

[respondent] . . . shall be represented by counsel and, if he is
financially
shall

be

unable

appointed

to

obtain

for

adequate

him”).

representation,

Moreover,

at

the

counsel

mandatory

hearing, the respondent “shall be afforded an opportunity to
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testify,

to

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present

evidence,

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to

subpoena

witnesses

on

his

behalf, and to confront and cross-examine witnesses who appear
at the hearing.”

Id. § 4247(d).

In light of these procedural

safeguards inherent in § 4248 proceedings, receipt of a copy of
the

certificate

initiating

commitment

proceedings

suffices

to

provide notice to the respondent—and it is undisputed that Perez
was

provided

committed

as

a
a

copy

of

the

“sexually

certificate

dangerous

seeking

person.”

to

have

Service

him

of

a

summons is unnecessary in this context in view of the fact that
Congress provided another means of notifying the respondent of
the proceedings as well as several procedural safeguards. 1

See

Meadows v. Krischer, 763 So. 2d 1087, 1091 (Fla. Dist. Ct. App.
1999)

(concluding

that

“a

standard

civil

summons

would

be

unnecessary” to initiate proceedings under Florida law providing
for the civil commitment of “sexually violent predators” where
the law did not require service of a regular civil summons).
A second function performed by service of a civil summons
under Rule 4 is to assert the district court’s jurisdiction over
a

person.

jurisdiction

“Before
over

a

a

federal

defendant,

court
the

service of summons must be satisfied.

may

exercise

procedural

personal

requirement

of

Service of summons is the

procedure by which a court having venue and jurisdiction of the
1

Perez does not challenge the constitutional sufficiency of
the notice prescribed by 18 U.S.C. § 4248(a).
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subject matter of the suit asserts jurisdiction over the person
of the party served.”
&

Co.,

484

U.S.

97,

Omni Capital Int’l, Ltd. v. Rudolf Wolff
104

(1987)

(emphasis

quotation marks and alteration omitted).

added)

(internal

Historically, however,

personal jurisdiction in both the civil and criminal contexts
flowed from physical custody or control over the defendant.

See

ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707,
710-11 (4th Cir. 2002) (“[T]he limits on personal jurisdiction
were grounded in a court’s power over the actual person of the
defendant.

Thus,

a

person’s

‘presence

within

the

territorial

jurisdiction of a court was prerequisite to its rendition of a
judgment personally binding him.’” (quoting Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)).
context,

“[t]he

idea

of

‘minimum

Over time in the civil

contacts’

developed

as

a

surrogate for actual presence in a State but did not alter the
essentially territorial nature of jurisdiction.”

Yahoo! Inc. v.

La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199,
1228 (9th Cir. 2006) (en banc) (O’Scannlain, J., concurring in
judgment).

Personal jurisdiction in a criminal case is still

based on physical presence, which is usually acquired by taking
the defendant into custody via arrest.

See United States v.

Wilson, 721 F.2d 967, 972 (4th Cir. 1983) (“It has long been the
general rule that a court’s power to try a criminal defendant is
not impaired by the government’s use of even forcible abduction
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bring

the

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defendant

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within

the

court’s

jurisdiction.”);

United States v. Rendon, 354 F.3d 1320, 1326 (11th Cir. 2003)
(“A federal district court has personal jurisdiction to try any
defendant brought before it on a federal indictment charging a
violation of federal law.”).

Even if physical custody is no

longer

a

necessary

to

endow

civil

court

with

personal

jurisdiction over a defendant, it is clearly sufficient to do
so.

Thus, that the government has physical custody over the

respondent in § 4248 civil commitment proceedings obviates the
need for a summons.
IV.
Next,

Perez

contends

that

the

district

court

committed

clear error in finding him to be a “sexually dangerous person.”
18 U.S.C. § 4248(d).

“A finding is ‘clearly erroneous’ when

although there is evidence to support it, the reviewing court on
the

entire

evidence

is

left

with

the

definite

conviction that a mistake has been committed.”

and

firm

Hall, 664 F.3d

at 462 (internal quotation marks omitted).
To

obtain

a

civil

commitment

order

under

the

Act,

the

government must prove three elements by clear and convincing
evidence.
Cir.

2013).

See United States v. Wood, 741 F.3d 417, 419 (4th
The

government

first

must

demonstrate

that

the

person has previously “engaged or attempted to engage in . . .
child molestation.”

18 U.S.C. § 4247(a)(5); see Wood, 741 F.3d
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at 419.

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Second, the government must establish that the person

currently “suffers from a serious mental illness, abnormality,
or disorder.”
And

third,

18 U.S.C. § 4247(a)(6); Wood, 741 F.3d at 419.

“the

government

is

required

to

show

that

the

defendant, as a result of the illness, abnormality, or disorder,
‘would have serious difficulty in refraining from . . . child
molestation if released.’”
U.S.C.

§

4247(a)(6)).

Wood, 741 F.3d at 419 (quoting 18
“Clear

and

convincing”

evidence

is

“evidence of such weight that it produces in the mind of the
trier of fact a firm belief or conviction, without hesitancy, as
to the truth of the allegations sought to be established, and,
as well, as evidence that proves the facts at issue to be highly
probable.”

Jimenez v. DaimlerChrysler Corp., 269 F.3d 439, 450

(4th

2001)

Cir.

(internal

alterations omitted).

quotation

marks,

citations,

and

“[T]he ‘clear and convincing’ standard of

proof is an ‘intermediate standard’ that falls between a ‘mere
preponderance of the evidence’ and ‘beyond a reasonable doubt.’”
Hall, 664 F.3d at 461 (quoting Addington, 441 U.S. at 423-24).
Perez does not dispute that the government established the
first two elements by clear and convincing evidence – (1) that
he

previously

molestation
illness,

and

engaged
(2)

abnormality,

or

that
or

attempted
he

to

suffers

from

disorder,

i.e.,

engage
a

in

child

serious

mental

pedophilia.

Perez

challenges only the district court’s finding that as a result of
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his pedophilia, “he would have serious difficulty in refraining
from

.

.

.

child

4247(a)(6).

molestation

“[T]he

serious

if

released.”

difficulty

18

prong

U.S.C.

of

§

§

4248’s

certification proceeding refers to the degree of the person’s
volitional

impairment,

which

impacts

the

person’s

ability

refrain from acting upon his deviant sexual interests.”
664 F.3d at 463 (internal quotation marks omitted).
of

control

or

inability

to

control

behavior

demonstrable with mathematical precision.

to

Hall,

The “‘lack

will

not

be

It is enough to say

that there must be proof of serious difficulty in controlling
behavior.’”

Id. (quoting Kansas v. Crane, 534 U.S. 407, 413

(2002)) (alteration omitted).
Perez contends that the government’s evidence rested almost
entirely

on

adequately

his

criminal

account

impairment.
about

his

for

offense

Perez’s

history

current

and

level

failed

of

to

volitional

Perez claims, moreover, that any expert opinion
present

mental

state

and

capacity

for

volitional

control rests on speculation, especially, he points out, because
none

of

the

experts

who

testified

at

the

commitment

hearing

interviewed him.
First,
court’s

we

reject

substantial

Perez’s

suggestion

consideration

history was erroneous or improper.

of

his

that

the

criminal

district
offense

Although “[t]he nature of

[Perez’s] prior crimes may well be a historical factor, . . . it
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is by no means a stale or irrelevant one.

When the question is

whether an inmate suffering from pedophilia will have serious
difficulty

refraining

consideration

of

the

from

nature

critical part of the answer.”

re-offending

of

his

prior

if

crimes

released,
provides

a

Wooden, 693 F.3d at 458.

Moreover, it is not entirely accurate to suggest that each
expert evaluation was completed without Perez being interviewed.
Although Perez refused to submit to pre-hearing interviews with
the

government’s

psychologists,

he

ultimately

some extent in Dr. Plaud’s interview. 2

participated

to

Perez refused to discuss

his offense history with Dr. Plaud, but he did comment generally
on his sexual history, denying pedophilic sexual arousal and
“presenting himself as a . . . non-violent, moral heterosexual
male.”
admitted

J.A. 109.
to

Dr.

Despite this self-characterization, Perez

Plaud

that

he

relations with an adult woman.

had

never

experienced

sexual

Because these comments were so

completely at odds with Perez’s offense history, his statements
during the interview raised concerns for Dr. Plaud that Perez
possibly

suffered

“cognitive

2

distortions,

bordering

on

Dr. Plaud explained that “[a]t the outset, Mr. Perez did
not indicate . . . that he even wanted to participate in the
interview” but that Perez “reconsidered as [Dr. Plaud] began to
leave.” J.A. 108.

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J.A. 110. 3

delusion[s]” regarding his sexuality.

Perez also

told Dr. Plaud that he does not need sexual offender treatment,
supporting

Dr.

Plaud’s

belief

that

Perez

is

“an

untreated

pedophile who is actively denying his sexual arousal patterns.”
J.A. 111.
clinical

Dr. Plaud indicated that he learned nothing from the
interview

that

suggested

Perez

ever

acquired

the

ability to regulate and control his sexual impulses or that he
“has the present-day ability to monitor and control his sexual
impulses.”

J.A. 230.

Significantly, Drs. Malinek and Ross both

considered Perez’s statements to Dr. Plaud and incorporated them
into their own analyses.

Accordingly, the lack of a formal

interview

Malinek

with

either

Dr.

or

Dr.

Ross—which

was

of

Perez’s own making—did not render either report unreasonable or
speculative.
We conclude that the government easily presented sufficient
evidence to support the conclusion that, by clear and convincing
evidence,

Perez,

as

a

result

of

his

pedophilia,

“would

have

serious difficulty in refraining from . . . child molestation if
released.”

18

U.S.C.

submitted

written

4247(a)(6).

evaluations

3

First,

conducted

the
by

government
its

expert

Dr. Plaud also observed, however, that it was difficult to
determine “how serious
. . . he took the entire interview
process” and that Perez may have been merely trying to “elicit a
reaction” from Dr. Plaud by claiming to be a heterosexual male.
J.A. 110.
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psychologists, Drs. Malinek and Ross.

Both experts considered

(1) actuarial scales incorporating static risk factors for sex
offenders to determine a statistical likelihood that Perez would
engage in child molestation again, and (2) dynamic risk factors
from the STABLE-2007 scale.

“[U]nlike static factors, which

typically

do

are

historical

and

not

change,

a

dynamic

risk

factor refers to something that has the capacity to change over
time, for example with treatment.”

United States v. Bolander,

722 F.3d 199, 209 (4th Cir. 2013).
Dr. Malinek “considered the most recent published studies
and risk assessment formulas” to determine whether Perez would
at the time of the evaluation have serious difficulty refraining
from

child

molestation

if

released

from

BOP

custody.

Dr.

Malinek applied three different actuarial scales “that assess
baseline
First,

recidivism
Perez’s

Static-99R

risk

risk

scale,

in

sexual

of

reoffending

which

incorporates

offenders.”

J.A.

was

using

assessed

numerous

static

214.
the

factors

such as prior sex offenses, age at release, and whether the
person had any “unrelated victims,” “stranger victims,” or “male
victims.”

J.A.

215.

Dr.

Malinek

scored

Perez

a

4

on

the

Static-99R, which placed him in the moderate-high risk category
and suggested “recidivism rates of 15.4% in five years and 22.6%
in ten years.”

J.A. 218.

Second, Dr. Malinek used the Static

2002-99R scale.

This risk assessment formula takes into account
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static

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categories,

offending,

deviant

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including

sexual

age,

interests,

victims, and general criminality.
on

the

Static-2002R,

category.

placing

persistence

of

relationship

sexual
to

the

him

Dr. Malinek scored Perez a 7
in

the

moderate-high

risk

Offenders assessed with a similar score and grouping

as Perez “have been found to sexually reoffend at a rate of 25.2
percent in five years and 35.8 percent in ten years.”

J.A. 220.

Finally, Perez was assessed using the Minnesota Sex Offender
Screening Tool-Revised (MnSOST-R).
score

of

12

on

the

MnSOST-R,

Dr. Malinek gave Perez a

placing

him

in

the

high

risk

category with an “expected recidivism rate within six years of
release [of] 30 percent.”
Dr.
factors

Malinek
taken

then

from

J.A. 221.
considered

the

a

STABLE-2007

number
scale

of

dynamic

“that

have

risk
been

statistically liked with both increased recidivism and decreased
recidivism.”
for

J.A. 221.

example,

is

a

“Significant Negative Social Influence”
well-established

predictor

of

general

recidivism that, in Dr. Malinek’s view, suggests an increased
risk of re-offending for Perez, who had “family, friends, and
acquaintances

who

are

criminally

involved,

have

past

sexual

offenses, . . . or who minimize or deny [Perez’s] sex crimes.”
J.A. 223.

Specifically, Perez’s father lived with him during

the time that he kept two Mexican boys in his home and sexually
abused them.

Dr. Malinek highlighted the impulsive nature of
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Perez’s
begun

Filed: 05/15/2014

sexually
molesting

meeting them.

deviant
his

Pg: 25 of 30

conduct,

most

exemplified

recent

victims

by

his

having

immediately

after

Dr. Malinek also noted that Perez’s pedophilia is

a chronic condition and that it is unlikely that “his decadeslong deviant interest in boys has abated simply as a function
[of the] passage of time,” J.A. 225; and that Perez has molested
new victims while on supervised release or on bond for similar
offenses,

and

that

there

was

no

information

to

suggest

that

Perez had ever maintained a stable intimate relationship.
Based

on

his

assessment

using

the

foregoing

static

and

dynamic risk factors, Dr. Malinek concluded in his report that
Perez

met

the

statutory

sexually dangerous person.

criteria

for

civil

commitment

as

a

Dr. Malinek reiterated this opinion

during his testimony at the hearing, emphasizing the chronic
nature of his long-term pedophilic fixation, and the impulsive
and brazen nature of his sexual offense against children:
[Perez’s pedophilia] has spanned for decades, has led
him to engage in sexual molestation of multiple boys
over a period of 25 years. . . .
. . . His pedophilic urges have repeatedly led him to
act out, have been evident in volitional impairments
time and again, have been evident in [the] predatory
search for victims, have been evident in both
opportunistic and predatory crimes, have been evident
in recidivism on three occasions . . . and while on
conditional release on three separate occasions.
. . .
. . .
These are mostly stranger children that he’s
never met before. . . .
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. . .
[T]here is no evidence that he had developed any
emotional attachment or relationship with these kids.
It looks like this was a predatory search for the
primary purpose of sexual victimization to me.
J.A.

127-130.

Dr.

Malinek

viewed

the

impulsive

and

public

nature of Perez’s offenses as particularly illustrative of the
danger he poses to his preferred victims:
The crimes here are both impulsive and predatory . . .
in the sense that he takes advantage of an opportunity
when it presents itself, there’s always a significant
level of impulsivity evident in it.
The reference to crimes occurring in a public place,
in the changing room of a Dillard department store in
1982 or in the street as happened in November of 1982,
clearly speaks to . . . brazen, high-risk behavior,
[in view of] the fact that he could be detected, or
that the mother of the boy he molested who he was
trying to sell newspapers to, she could identify him.
. . . [T]he urge develops very quickly, he acts out on
it right away in a public place.
J.A.

131.

Finally,

statements

to

reaffirmed

his

opinion

refraining

from

child

admission
female

that

“means

Dr.

he

Dr.

Plaud

never

that

he

Malinek

within
that

six

Perez

molestation.
had
is

sexual
probably

testified

that

Perez’s

the

hearing

months

of

would

have

difficulty

Specifically,
relations
an

with

exclusive,

Perez’s
an

adult

fixated

pedophile” and that “kids are his only way to meet his sexual
needs.”

J.A. 140.

Moreover, Dr. Malinek observed that his

“presentation of himself” to Dr. Plaud as interested in adult
heterosexual relationships suggested he was in denial of his
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and

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therefore

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unlikely

to

change

simply

with

the

passage of time.
Dr.

Ross

also

provided

a

written

evaluation

Perez’s sexual dangerousness under § 4248.

addressing

Like Dr. Malinek,

Dr. Ross assessed Perez’s statistical risk of recidivism using
static risk factors under the Static-99R scale and then further
evaluated the statistical results in light of various dynamic
risk factors taken from the STABLE-2007 scale.

Dr. Ross scored

Perez a 3 on the Static-99R, which put him in the low-moderate
risk category “with about a 9.3% likelihood for being arrested
or

convicted

of

a

new

sexual

offense

within

5

years

post-

incarceration and about a 14.5% likelihood . . . in 10 years.”
J.A.

197.

Dr.

Ross,

however,

noted

that

her

score

underestimated his actual risk due to the scoring of his age
under the Static-99R, which reflects the general tendency for an
offender’s risk of reoffending to decrease significantly after
age 60.

Dr. Ross concluded that “[t]his does not seem likely in

Mr. Perez’s case, however, due to his long history of sexual
offending, as well as the fact that his most recent offenses
(which occurred when he was between 45 and 47 years old) were
also

his

most

egregious.”

J.A.

196.

Ultimately,

Dr.

Ross

opined that Perez would have serious difficulty refraining from
child molestation upon release from prison.

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At the hearing, Dr. Ross strengthened her opinion based on
Perez’s

statements

as

recounted

by

Dr.

Plaud.

Dr.

Ross

testified that she would now score Perez a 4 on the Static-99R,
as did Dr. Malinek, in view of Perez’s admission—of which Dr.
Ross was previously unaware—that he has never had a sexually
intimate relationship with an adult.

Dr. Ross also emphasized

many of the same factors that Dr. Malinek found suggestive that
Perez would experience serious difficulty refraining from child
molestation, including the impulsive, brazen and public nature
of

his

pedophilic

disorder;

and

his

offenses;
refusal

the

to

chronic

participate

nature
in

of

sexual

Perez’s
offender

treatment.
Dr. Plaud, who was initially engaged on behalf of Perez,
was also called by the government to testify.

In a written

evaluation prepared pre-trial, Dr. Plaud reported that although
“from a statistical perspective Mr. Perez is at this time [a]
low risk to re-offend sexually . . . , there is evidence that he
may

have

ongoing

and

serious

difficulty

in

refraining

further acts of child molestation if he were released.”
230.

from
J.A.

Dr. Plaud concluded finally that “[a]t best the data in

this case are equivocal; however, I cannot opine that Mr. Perez
is not a sexually dangerous person at this time.”
At

the

evidentiary

hearing,

however,

Dr.

Plaud

J.A. 231.

unequivocally

stated that he considered Perez “sexually dangerous” under the
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“I am unpersuaded that [Perez] has developed the skills to

control

his

sexual

behavior

as

a

function

of

increased

age,

because I think he is so actively denying the very basis of his
sexual arousal towards pre-pubescent-aged males . . . .
why I think he’s sexually dangerous.”

That’s

J.A. 112-13.

Although the district court recognized and considered the
statistical rates of recidivism based on the various actuarial
scales, the court explained that it “affords them less weight
than respondent’s past and current conduct, and the testimony of
the experts as a whole.”

J.A. 179.

The district court noted

that each of the testifying experts identified several factors
as indicative of Perez’s lack of volitional control, including
Perez’s impulsivity, failure to cooperate while on supervised
release,
legal

and

his

brazen

sanctions.

weight

to

The

Perez’s

and

district

lack

of

risky

of

apparent

denial

district

court

concluded,

experts,

that

Perez’s

court

sex

pedophilic

on

did

despite

also

offender
sexual

based

age

behavior

gave

not

significant

treatment

from

mitigate

his

and

his

And,

interest.

testimony

previous

the

all

three

risk

of

recidivism in light of all of the other risk factors.
In
evidence

sum,

the

before

permissible

and

district

it,

and

its

reasonable

presented at the hearing.

court

carefully

factual

considered

findings

interpretation

of

represent
the

the
a

evidence

Because we are not “left with the
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definite and firm conviction that a mistake has been committed”
by the district court, Hall, 664 F.3d at 462 (internal quotation
marks omitted), we cannot say that the district court clearly
erred in finding, by clear and convincing evidence, that Perez
is sexually dangerous within the meaning of the Act.
V.
Finally, Perez contends that (1) the Act deprives him of
equal protection under the Fifth and Fourteenth Amendments, and
(2)

the

Act

imposes

an

unconstitutional

criminal

punishment.

Both of these arguments are foreclosed by our decision in Timms.
See

664

F.3d

at

449,

455.

Accordingly,

we

reject

these

arguments.
VI.
For the foregoing reasons, the order of the district court
is
AFFIRMED.

30