US v. Walter Wooden
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:10-hc-02151-BO. . [16-7607]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Petitioner - Appellant,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, District Judge. (5:10-hc-02151-BO)
Argued: September 15, 2017
Decided: April 10, 2018
Before MOTZ, TRAXLER, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Traxler wrote the opinion, in which Judge Motz
and Judge Keenan joined.
ARGUED: Benjamin M. Shultz, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant. Debra Carroll Graves, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee. ON BRIEF: Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, Mark B. Stern, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; John Stuart Bruce,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellant. Thomas P. McNamara, Federal Public Defender, Eric J.
Brignac, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellee.
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TRAXLER, Circuit Judge:
The Adam Walsh Child Protection and Safety Act of 2006 (the “Act”), Pub. L.
No. 109–248, 120 Stat. 587 (codified as amended in scattered sections of 18 and 42
U.S.C.), authorizes the government to civilly commit “sexually dangerous” federal
inmates after the expiration of their sentences. 18 U.S.C. § 4248(a). A defendant is a
“sexually dangerous person” if he has a prior act or attempted act of child molestation or
sexually violent conduct and is “sexually dangerous to others.” Id. § 4247(a)(5). A
defendant is sexually dangerous to others if he “suffers from a 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.”
In 2010, Walter Wooden was serving a sentence at a federal correctional facility
when the government began proceedings against him under the Act; he was civilly
committed as a sexually violent predator in 2014. In 2016, Wooden requested a hearing
to address whether he should be released. See 18 U.S.C. § 4247(h). After a hearing, the
district court concluded that Wooden no longer qualified as a sexually dangerous person
and ordered Wooden’s release. The government appeals. As we will explain, the highly
deferential standard of review applicable to this case compels us to affirm.
Wooden, who was born in 1956, has a limited intellectual capacity. See United
States v. Wooden, 693 F.3d 440, 443 (4th Cir. 2012) (“Wooden I”). In 1972, when
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Wooden was 16, he was twice adjudicated delinquent for committing rectal sodomy on a
minor. The next year, he was again was adjudicated delinquent after sexually molesting a
minor. In 1974, Wooden was charged as an adult and pleaded guilty to taking indecent
liberties with a four-year-old child. Wooden received a 10-year sentence but was paroled
into the community in 1980. In 1984, Wooden was convicted and sentenced to 25 years’
imprisonment after separate incidents involving an eight-year-old boy and a twelve-yearold boy. Wooden was paroled in 2000, returned to prison in 2001 after violating the
terms of parole, and paroled again in 2002.
After being paroled in 2002, Wooden began sex-offender treatment with Dr.
Ronald Weiner. By 2005, Weiner believed Wooden was responding well enough to
treatment that he was thinking about discharging him. Before that happened, Wooden
resisted taking a routine polygraph, and he ultimately told Dr. Weiner that he had had
sexual contact in the basement laundry room of his building with a seven-year-old boy he
had been alone with on previous occasions. Wooden later changed his story and claimed
that he only dreamed about touching the boy. When interviewed by the police, the boy
denied that Wooden had touched him, but he did say that “he was afraid to be around
Wooden, even though Wooden sometimes gave him money.” Wooden I, 693 F.3d at
During a June 2005 polygraph, Wooden gave “non-deceptive” answers that
admitted to having “deviant sexual thoughts” about children in the past year, being
sexually aroused in the presence of children in the past year, engaging in sexual activity
with a child in the past year, and attempting to engage in sexual activity with a different
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child. See id. at 444. The District of Columbia parole board determined that Wooden’s
story about the boy in the laundry room was true and revoked Wooden’s parole. Wooden
served the revocation sentence at the Federal Correctional Institute in Butner, North
In 2010, shortly before Wooden was scheduled to be released from Butner, the
government filed a petition seeking to civilly commit him under the Act. At the hearing
on the government’s petition, Drs. Hy Malinek and Heather Ross testified as expert
witnesses for the government.
Both experts agreed that Wooden suffered from
pedophilia, which qualifies as a “serious mental illness” under the Act; that his illness
would make it difficult for Wooden to refrain from reoffending if released; and that
commitment under the Act was therefore warranted.
Wooden presented the expert
testimony of Dr. Terence Campbell. Campbell testified that Wooden no longer qualified
as a pedophile and that he did not have a volitional impairment, such that commitment
was not appropriate.
The district court denied the commitment petition, largely adopting Campbell’s
analysis. The court agreed that Wooden had suffered from pedophilia in the past, but
concluded that the government had not proven that Wooden still suffered from pedophilia
at the time of the hearing. As to the Act’s volitional-impairment requirement, the district
court held that it was not sufficient for the government to prove that the mental illness
caused the defendant to have “serious difficulty in refraining from sexually violent
conduct or child molestation if released,” as required by the Act. 18 U.S.C. § 4247(a)(6).
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Instead, the court concluded that the Constitution required the government to also prove
that the defendant was dangerous, which the court believed required evidence showing a
five-year recidivism rate of at least 50%. Because the government’s evidence fell short
of that threshold, the district court dismissed the government’s petition. See Wooden I,
693 F.3d at 450.
The government appealed to this court. Although we recognized that review of
the district court’s factual conclusions was governed by the highly deferential clearlyerroneous standard, we found the district court’s analysis wanting in several respects.
Most significantly, we explained that the district court (1) failed to account for evidence
showing Wooden’s then-current sexual interest in children when concluding that Wooden
was not a pedophile, see id. at 452; (2) failed to address certain internal inconsistencies
and deficiencies in Dr. Campbell’s report and testimony, see id. at 454-55; (3) erred by
equating volitional impairment with impulsiveness and then ignoring strong evidence of
impulsiveness, see id. at 457-58; (4) failed to consider other evidence relevant to the
question of volitional impairment, see id. at 459; and (5) erred by requiring proof of a
greater-than-50% risk that Wooden would re-offend within five years, see id. at 461.
We therefore reversed the district court’s decision and remanded for further proceedings.
On remand, the district court concluded that our opinion in Wooden I required it to
find that Wooden was a sexually violent predator, and the court therefore ordered
Wooden committed. We reversed and remanded again, explaining that “our mandate
contemplated the possibility that a proper distillation of all the evidence, including a full
accounting of all contradictory and conflicting evidence, could perhaps support the
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district court’s original findings.” United States v. Wooden, 546 F. Appx. 229, 231 (4th
Cir. 2013) (per curiam) (unpublished). After the second remand, the district court again
certified Wooden as sexually dangerous. Limiting the record to the evidence developed
for the original 2011 hearing, the court concluded that Wooden suffered from pedophilia
at the time of the hearing and that he would have serious difficulty refraining from
reoffending if released.
In 2014, counsel for Wooden hired Dr. Joseph Plaud to evaluate Wooden’s thencurrent condition. After his first interview with Wooden, Plaud became concerned about
Wooden’s neurocognitive development, and he strongly recommended that Wooden
undergo medical and neuropsychological evaluations.
Counsel then brought in Dr.
Frederick Winsmann to evaluate Wooden. Dr. Winsmann, a psychologist, is a leading
expert on the issue of volitional control in sex offenders. He is the founder of the Boston
Symposium on Psychology and the Law, “an annual event . . . [that] bring[s] together
experts in the field of psychology and psychiatry, as well as the law . . . . to discuss
difficult topics and advance the field.” J.A. 462.
Winsmann interviewed Wooden multiple times and conducted a battery of tests
measuring Wooden’s memory, intellectual ability, and adaptive functioning. Winsmann
also interviewed some of Wooden’s family members. Winsmann concluded that Wooden
suffers from Intellectual Development Disorder (“IDD”), a condition previously referred
to by mental-health professionals as mental retardation. Although evidence of Wooden’s
intellectual limitations was part of the original hearing record, see Wooden, 693 F.3d at
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443, his intellectual capacity was not then a focus of the experts’ reports. In Winsmann’s
view, the earlier failure to diagnose IDD or recognize its significance led to an incorrect
diagnosis of pedophilia.
On March 22, 2016, Wooden filed a motion requesting a hearing to determine
whether he should be discharged. See 18 U.S.C. § 4247(h).
At the hearing, Dr. Winsmann testified that Wooden met the diagnostic criteria for
IDD. According to Winsmann, Wooden has a full-scale IQ of 75 but presents and
communicates at an even lower level. Winsmann testified that Wooden’s “adaptive
functioning is very much impaired”; that his communication skills are “very low”; and
that his cognitive functioning compares to that of a 3rd- to 5th-grader. J.A. 470, 471.
When viewing Wooden’s past actions and statements through the IDD lens,
Winsmann testified that he saw no evidence of pedophilia. According to Winsmann,
Wooden’s “past offenses in the ʼ70s and ʼ80s were more opportunistic and borne out of
his intellectual deficit rather than this deviant preferential urge or arousal to children.”
J.A. 483. Winsmann explained,
I don’t see the focused interest on children. I see a global interest in many
different ages in his sexual interest. And I also see these real adaptive
difficulties that drive someone like this to really feel more comfortable
around persons who are so much younger than him chronologically, but he
is . . . really close to their age in terms of emotional and cognitive
So when you look at these factors and the way he’s functioned in the
world, it’s more compelling to me, it’s more compelling. I considered
Pedophilic Disorder. I would not be doing my job if I didn’t. But [IDD is
the] more compelling explanation for his behavior.
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In Dr. Winsmann’s view, the scope of Wooden’s intellectual and communicative
deficits had long been overlooked, which ultimately led to an incorrect diagnosis. For
example, Wooden’s earlier statements that his very young victims came to him asking for
sex were treated as “cognitive distortions or ‘thinking errors’ common to sex offenders,”
Wooden I, 693 F.3d at 452–53, when Winsmann believed they should have instead been
understood as “the musings of someone, all due respect to Mr. Wooden, mentally
retarded.” J.A. 507.
Winsmann also testified that, at the time of the hearing, Wooden did not have a
serious difficulty controlling his behavior. Winsmann explained that people with IDD do
develop, but they do so very slowly. And in his view, Wooden’s time in prison had given
him the ability to “weigh consequences, make choices, and think things through,” and
that Wooden therefore would not have “serious difficulty in controlling [his] behavior.”
J.A. 484. As proof of Wooden’s growth, Winsmann pointed to the “clear downward
trend” in the frequency of Wooden’s disciplinary infractions. J.A. 487. According to
Winsmann, the decreasing frequency showed that Wooden was increasingly able to
restrain himself and control his anger and impulsivity.
Dr. Plaud testified that while he diagnosed Wooden with pedophilic disorder based
on historical data, “there’s really no evidence . . . in the last ten years that Mr. Wooden,
as he sits at Butner, has recurrent or intense sexually arousing fantasies, urges, or
behavior involving sexual activity with prepubescent males. There’s nothing.” J.A. 55253. Plaud testified that he agreed with Winsmann that Wooden had IDD. See J.A. 553
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(“I would fully and completely agree that Mr. Wooden has what we used to call mental
retardation, now IDD.”). Plaud also agreed with Winsmann that Wooden now had
sufficient volitional control:
[W]e have more understanding now historically about why he may have
done what he did when he was younger. Because if you look at . . . when
he was active, engaged in pedophilic behavior, he, himself, was a teenager
and in his 20s. I think he was delayed.
You know, the question earlier was well, would a four year-old do
something to another four year-old? Well, no, because both of them don’t
really have much hormones going on there. But if you’re 14 or 15 and you
have physically the hormone development, the development of secondary
sexual characteristics but your mind is 10 years behind, that’s a problem.
And so you might see some sexualized behavior given the physiology
going on. But the brain is delayed. It can’t process it like he was a 14 yearold.
That’s what you got in my judgment. That’s . . . one of the
significances of this disorder that has gone up until this hearing now
basically unrecognized for Mr. Wooden.
So you fast forward. He’s not 14 or 24 or 34, he’s 60 years old.
Now, it takes a long time to catch up. Now, is he functioning typically,
cognitively like a 60 year-old? No. But he’s not functioning like a four
year-old either. I think he has that fundamental understanding now of the
wrongfulness of engaging in that behavior as a 60 year-old.
The government’s experts, Dr. Malinek and Dr. Ross, both testified that Wooden
continued to qualify for commitment under the Act. As to the IDD diagnosis, Malinek
acknowledged that Wooden had adaptive and intellectual deficits, but he questioned
whether IDD “is really fully present here.” J.A. 605. In any event, Malinek rejected
Winsmann’s argument that “IDD is now the explanation for it all.” J.A. 606. Malinek
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IDD has played a role in his history. I’m not saying it did not have
an impact. I view it as a facilitator or as a disinhibitor, as a factor involving
Individuals with IDD, if you look at the examples in the book or in
the literature, are not prone to pedophilic conduct. There’s nothing in IDD
in the DSM or the research that talks about proneness to aggressive,
persistent interest in prepubescent [children].
You do have people with IDD who have obviously sexual urges as
they grow and they do not know how to seek partners, they have poor
judgment. They may have boundary-violating behavior. But [Wooden’s
conduct] is not simply boundary-violating behavior. What he engages in is
aggressive, persistent, predatory sexual conduct with prepubescent children.
J.A. 625-26; see also J.A. 607 (“[T]here’s an impact of his cognitive difficulty here. This
is a contributor. I see it as a risk factor. But there’s nothing in . . . mild mental
retardation or intellectual disability that has a link to sexual conduct of that kind that we
have seen here.”). Malinek also questioned whether Wooden was a “reliable informant”
and whether his denial of sexual interest in children should be believed. J.A. 611. In
Malinek’s view, IDD simply could not explain away the conduct that Wooden had
[T]he conduct and the planning and the isolating of the children . . . shows
that is totally not IDD. That is forward, aggressive conduct directly that’s
coming from sexual arousal. He’s not befriending them for friendship . . .
as you would anticipate if he had just IDD, playing with them. There’s no
show me yours and I’ll show you mine -- if he was, indeed, at this level.
There is movement to anal sex right away. And that is a paraphilic,
persistent paraphilic chain here over time.
J.A. 627. In response to a question from the government, Malinek described Wooden as
among the most dangerous sex offenders that I have evaluated. There is an
unbroken chain of recidivism here. There’s the undisputed evidence of
pedophilia. There’s acting out while in treatment. There is predatory
behavior, seeking stranger children for the purpose of sodomy. There’s
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adult and child offenses. There’s no amenability, no interest in treatment.
There’s definitely evidence of defective controls and easily aroused anger.
So I believe he remains highly dangerous.
J.A. 633. The district court strongly disagreed with that assessment, interjecting that
Malinek’s description of Wooden “just thoroughly impeached all of [Malinek’s]
testimony.” J.A. 633. The court’s statement echoed an earlier critique of Malinek’s
testimony. Responding to Malinek’s testimony that narcissism was a “prominent” aspect
of Wooden’s personality, J.A. 598, the district court stated:
[Y]ou’ve been telling me he’s a narcissist and entitled and filled with
claims and demands for entitlement. I see a person who is mentally
retarded and feebleminded and not really presenting with any of those sorts
You know, your perception of the case is just so out of line with
what I see, that I’m -- honestly, I don’t have anything to hide. I’m honest
in telling you that.
Wooden testified in support of his discharge petition and expressed regret for his
actions. He testified that he “took advantage of them little kids,” J.A. 425, and he
acknowledged that it was not the right thing to do. He testified that he is attracted to
women and is no longer attracted to young boys. When pressed by the government,
Wooden stated that the last time he was attracted to boys was sometime between 2002
and 2004. See J.A. 446. While Wooden had maintained in the 2011 commitment
proceedings that his victims came to him for sex, he explained in this hearing that the
children came to him asking for money, not sex. Under persistent questioning by the
government, Wooden refused to blame his victims and consistently placed blame on
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himself. See J.A. 441 (“No, it’s my fault for, my fault for taking advantage of them. It
ain’t their fault. It’s my fault for taking advantage of them.”).
The district court ruled in favor of Wooden. Assigning the burden of proof to
Wooden, the district court concluded that Wooden no longer satisfied the statutory
requirements for commitment.
As to whether Wooden was then “suffer[ing] from a serious mental illness,
abnormality, or disorder,” 18 U.S.C. § 4247(a)(6), the district court specifically credited
the testimony of Dr. Winsmann and concluded that pedophilic disorder was not a proper
diagnosis for Wooden. The court explained:
[T]he Court highly credits the testimony and conclusions of Dr. Winsmann
and Dr. Plaud that Mr. Wooden has suffered from Intellectual Development
Disorder throughout the duration of his life and that IDD is a better
explanation for Mr. Wooden’s past criminal behavior than Pedophilic
The Court heeds the testimony of Dr. Malinek that individuals with
IDD usually do not commit sexual crimes but are instead often the victims
of sexual assault. The Court also considered Dr. Malinek’s testimony that
persons can, and often do, suffer from multiple disorders and that, in his
opinion, IDD cannot be the sole explanation for all of Mr. Wooden’s past
behavior because there is nothing in IDD that compels deviant sexual
attraction to children.
While it is undisputed that Mr. Wooden has molested children and
exhibited strong sexual interests toward prepubescent, male children, there
is also evidence demonstrating that Mr. Wooden has exhibited sexual
attraction toward adult women and has had adult, age-appropriate partners.
The Court finds compelling both Dr. Winsmann and Dr. Plaud’s
explanation for Mr. Wooden’s past behavior as being a result of serious
intellectual delay such that Mr. Wooden experienced the physical and
hormonal development of a teenager and young adult but the cognitive
development and maturity of a much younger person, as much as 10 or 15
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years behind, and was therefore unable to understand or control his sexual
urges. . . . Whereas Doctors Ross and Malinek ascribe Mr. Wooden’s past
sexual misconduct to an uncontrollable sexual attraction to prepubescent
male children, Doctors Plaud and Winsmann conclude that the record
evidence is indicative of a global sexual interest, which when coupled with
adaptive difficulties and an impaired emotional and cognitive development,
led to deviations from acceptable conduct and an inability to weigh
consequences with the maturity of a developed person of his physical age.
Essentially, due to his IDD or mental handicap, Mr. Wooden lacked the
cognitive functioning and emotional maturity to form healthy relationships,
control or understand his sexual urges, or discriminate between partners
his own age and children with whom he more easily bonded emotionally.
Mr. Wooden himself has exhibited these characteristics as the Court has
observed him over the course of five years. The Court finds that this
reasoning is compelling and that the record evidence supports this
J.A. 657-58 (emphasis added). The district court also noted that the DSM-V 1 requires
sexual arousal for a six-month period for a diagnosis of a paraphilia such as pedophilic
disorder, but that Winsmann and Plaud both testified that Wooden was not currently
exhibiting pedophilic urges. The court stated that “Wooden [has] not exhibited any
pedophilic urges since 2005, [and] he also testified credibly that he no longer experiences
those impulses.” J.A. 659. The district court therefore concluded that “the record in this
case no longer contains substantial evidence that Wooden is having intense and recurrent
sexually arousing fantasies and urges about prepubescent children.” Id. (internal
quotation marks and alteration omitted). After rejecting the pedophilia diagnosis, the
district court concluded that IDD does not qualify as a “serious mental illness,
The DSM-V is the fifth edition of the Diagnostic & Statistical Manual of
Mental Disorders, published by the American Psychiatric Association. See United States
v. Maclaren, 866 F.3d 212, 215 (4th Cir. 2017).
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abnormality, or disorder” under the Act 2 and that Wooden had no other condition that
qualified. Accordingly, the district court concluded that Wooden did not have a “serious
mental illness, abnormality, or disorder,” as required to qualify him as a sexually violent
predator under the Act. 18 U.S.C. § 4247(a)(6).
The court then moved on to the question of Wooden’s volitional control. The
court credited the testimony of Drs. Winsmann and Plaud that Wooden
has progressed cognitively and emotionally to the point that he no longer
faces a serious difficulty refraining from child molestation if released. In
the opinions of Doctors Plaud and Winsmann, Mr. Wooden is no longer
expressing arousal to children, has developed an ability to weigh choices
and understand consequences, and has shown reduced impulsivity. These,
especially when weighed alongside several protective factors including his
increased age, infirmity, and a release plan, show that Mr. Wooden will be
able to control his behavior and reduces the risk that he will reoffend.
The court specifically found the views of Dr. Malinek and Dr. Ross “unreliable”
on the question of Wooden’s “present condition” and explained that the doctors “relied
too heavily upon historical criminal behavior to justify their conclusions that he is
currently sexually dangerous.”
The district court rejected Malinek’s
assertion that Wooden was one of the most dangerous sex offenders he had evaluated,
stating that Malinek’s “inflated conclusion flatly contradicts the picture of Mr. Wooden
as the Court finds him today: 60 years old, physically and mentally handicapped, and
expressing credible regret over his past actions.” J.A. 665.
The government does not challenge this ruling on appeal.
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The district court noted Wooden’s improved behavior in prison, as shown by
“sharply declining rates of insubordinate behavior and disciplinary citations,” id., and by
the fact that Wooden had never been cited for possessing child pornography or other
sexual material while confined at Butner. In the view of the district court, “[t]his is
evidence of an increasing amount of self-control and weighs toward a finding that Mr.
Wooden will not face a serious difficulty refraining from sexual misconduct.” J.A. 665.
Again concluding that the 2005 laundry-room incident did not occur, 3 the court observed
that Wooden’s last criminal offense occurred in 1983, and that there was no evidence that
Wooden had “experienced any . . . intense sexual urges toward male children” in many
years. J.A. 667.
The district court recognized that the actuarial models 4 placed Wooden in the
“moderate-high risk category for sexual re-offense.” J.A. 668. The court gave less
weight to those assessments, however, because they were “based almost entirely on
historical factors which can never change and do not account for any development in
[Wooden’s] mental health.” Id. Although Wooden had refused sex-offender treatment
while at Butner, the district court believed that his refusal was more a function of his
intellectual deficits and misunderstandings about the nature of the program than a denial
The district court made the same factual determination when considering
the government’s initial commitment petition. See Wooden I, 693 F.3d at 449.
“[A]ctuarial models consider risk factors that have been shown to be
predictive of recidivism. Sex offenders are scored under the model based on the presence
or absence of the risk factors in that offender’s crimes, and the offender’s risk of
recidivism is determined by reference to the known recidivism rates of released sexoffenders who received the same score under the model.” Wooden I, 693 F.3d at 447 n.2.
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of his past crimes or a rejection of the general value of treatment. In the district court’s
view, the totality of the evidence showed that “Wooden has gained an awareness of the
wrongfulness of his actions, that he has regret for his actions, and that he understands the
consequences of his past behavior.” J.A. 669.
The district court also noted that Wooden’s age and health issues made it less
likely that Wooden would reoffend if discharged. Wooden was 60 at the time of the
hearing; as the district court noted, male sex drive decreases with age, which also reduces
the risk of sexual re-offense. Moreover, Wooden was in poor health and generally used a
wheelchair, which further reduced the likelihood that Wooden could engage in a forcible
offense. Wooden planned to live with his sister on release, and she testified about the
steps she would take to ensure that Wooden would not reoffend. In the district court’s
view, Wooden’s planned living arrangements “will provide a safeguard that reduces the
risk of recidivism.” J.A. 671. The district court therefore concluded that Wooden had
carried his burden of proving that he no longer qualified as a sexually dangerous person
under the Act, and the court ordered the government to release Wooden. 5
The government appeals, arguing that the district court erred in concluding that
Wooden did not suffer from pedophilic disorder and in concluding that Wooden would
not have serious difficulty refraining from re-offending.
Whether a defendant qualifies for commitment or discharge under the Act
involves inherently factual questions to be resolved by the district court as fact-finder,
We granted the government’s emergency motion to stay Wooden’s release
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and we review the district court’s factual findings for clear error. See Wooden I, 693 F.3d
at 451. “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 and firm conviction that a
mistake has been committed.” United States v. Hall, 664 F.3d 456, 462 (4th Cir. 2012)
(internal quotation marks omitted). “If the district court’s account of the evidence is
plausible in light of the record viewed in its entirety, the court of appeals may not reverse
it even though convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently.” Id. (internal quotation marks omitted).
We first consider the government’s challenge to the district court’s conclusion that
Wooden’s past misconduct was the product of IDD, not pedophilic disorder.
Although not identified as a separate issue on appeal, the government’s
overarching claim seems to be that Dr. Winsmann’s testimony was not worthy of
credence. We disagree.
Winsmann is a licensed psychologist who teaches at Harvard Medical School. He
provides treatment to patients, including 150-200 sex offenders, as well as patients with
IDD, some of whom also exhibited sexually inappropriate behavior. Winsmann has also
performed approximately 170 forensic evaluations in state and federal sexually-violentpredator cases; he found the defendants to meet the criteria for commitment in 45% of the
cases. Winsmann is one of the leading experts focusing on questions of volitional control
in sex offenders. In 2012, he published the first article in the field that attempted to
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“outlin[e] a protocol and approach [for] assessing serious difficulty in controlling
As explained in Winsmann’s article, the development of a
protocol is critical because “specialized tests and procedures [for assessing volitional
control] do not presently exist and mental health examiners have been, to date, relying
entirely on their imprecise and unreliable clinical judgment.” J.A. 522. Winsmann
founded the Boston Symposium on Psychology and the Law, an annual academic
gathering of experts in the fields of psychiatry, psychology, and the law. In 2015, the
Symposium focused on the subject of volitional control in the context of civil
commitment of sexual offenders. Winsmann’s qualifications and expertise, which are not
disputed by the government, are thus well matched to the issues in this case.
Winsmann’s initial review of Wooden’s records immediately raised questions
about Wooden’s intellectual capacity, and Winsmann administered a battery of tests to
measure Wooden’s intelligence. Considering the results of those tests and his hours of
interviews with Wooden, Winsmann ultimately concluded that Wooden suffered from
IDD and that it was IDD, not pedophilic disorder, that was the driving force behind
Winsmann explained that a diagnosis of pedophilic disorder required evidence of
“current arousal” to children. J.A. 478. Winsmann found no evidence that Wooden was
currently aroused by children – Wooden repeatedly denied it in interviews, and
Winsmann found nothing else in the record indicating current arousal.
testified that Wooden had a “global sexual interest” rather than a “focused preference on
children.” J.A. 478. Winsmann based that determination on his interviews with Wooden,
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where Wooden reported three romantic relationships with adult women, and Winsmann’s
interviews with two of Wooden’s sisters, who confirmed that Wooden had peer-aged
girlfriends during the periods when he was not incarcerated. See S.J.A. 53.
Given Wooden’s global sexual interests and the absence of any evidence of
current intense arousal to young children, Winsmann concluded that Wooden did not
suffer from pedophilic disorder and that IDD provided a “better explanation” for
Wooden’s offenses. J.A. 481. As explained in his report, Winsmann concluded that the
original diagnosis of pedophilic disorder was wrong:
The past improper decision making was made through a past developmental
lens. There is no clear and apparent evidence to support a diagnosis of
Pedophilic Disorder, and, I believe, there is a better explanation for his past
behavior when developmental considerations are properly given weight. In
short, past diagnoses of a paraphilic nature were made in error.
Winsmann testified that people with IDD are capable of personal and intellectual
growth, but that the growth happens very slowly.
He believed that Wooden had
experienced sufficient growth over the years of his incarceration that he had developed
“sufficient ability to weigh decisions and weigh outcomes.” J.A. 488-89. Winsmann
stated in his written report that
Mr. Wooden, intellectual deficits notwithstanding, showed evidence of
being able to examine the basis of and the associations to his thoughts so
that the sequelae of events, from thought to action, does not lead to an
offense. This is strong evidence of cognitive mediation – that active
psychic process that allows for one to modulate behavior.
Pg: 21 of 34
Winsmann’s opinion is plausible, coherent, and internally consistent, and thus
does not suffer from the problems that undermined the testimony of Wooden’s expert in
the original commitment hearing. See Wooden I, 693 F.3d at 454-55 (“Dr. Campbell’s
testimony was internally inconsistent and was otherwise deficient or problematic in so
many respects that his opinion provides no safe harbor for the district court’s factual
findings.”). Moreover, Winsmann’s belief that Wooden had slowly developed the ability
to consider the consequences of his actions and modulate his behavior finds support in
evidence before the district court.
Wooden was convicted multiple times of sexual crimes against children over a
period from his late teens through his 20s.
Wooden was sentenced to 25 years’
imprisonment in 1984 and was paroled in 2002, when he was 46. While on parole,
Wooden participated in sex-offender treatment supervised by Dr. Ronald Weiner. In
2005, Wooden reported the laundry-room encounter to Weiner. In the course of the
ensuing investigation, Wooden stated during a polygraph examination that he had had
sexual contact with a boy in the past year, and he told Weiner about two instances where
he had come close to committing an offense but had changed his mind and did not go
through with it. As to the questionable laundry-room incident itself, the facts as found by
the district court established that Wooden was having sexual urges and dreams about a
seven-year-old boy with whom he spent time alone, but Wooden did not act on those
urges. Thus, comparing Wooden’s conduct in the 1970s and 1980s to his conduct in the
early 2000s, Wooden went from committing multiple forcible sexual offenses to
committing some kind of sexual contact on one occasion while stopping himself from
Pg: 22 of 34
offending on several other occasions. While Wooden’s conduct in 2002-2005 was still
problematic, it nonetheless represents a dramatic improvement over his conduct 30 years
earlier. This trajectory is consistent with Winsmann’s testimony that people with IDD
grow, but do so very slowly, and that they can learn to modulate their behavior.
Evidence of Wooden’s personal growth can also be seen in the change in
Wooden’s testimony and demeanor between the proceedings in this case. In the 2011
commitment hearing, Wooden was at times “difficult and recalcitrant,” Wooden I, 693
F.3d at 445, and he repeatedly insisted that his young victims came to him seeking sex,
id. at 445-46. In the 2016 discharge hearing, however, Wooden was a cooperative
witness, and he no longer claimed that the victims came to him for sex. Instead, he
testified that they came to him asking for money and that he knew he shouldn’t have
taken advantage of them. The district court, which had been involved with Wooden’s
case from the beginning, found Wooden’s statements of regret to be credible. Wooden
thus went from being uncooperative and in denial in 2011 to being genuinely remorseful
in 2016. This change in Wooden’s behavior likewise provides support for Winsmann’s
Wooden’s behavior in prison provides further evidence of his personal growth and
maturation. During his early years of incarceration, Wooden had many angry outbursts,
and he was once transferred to a different prison after threatening his guards.
Winsmann observed, however, Wooden’s behavior has improved over the years at
Butner. He has not had an angry outburst in at least a decade, and the number of
disciplinary citations has dropped dramatically.
Pg: 23 of 34
Winsmann’s testimony thus presented the district court with an overarching,
unifying theory of the case: Wooden suffered from IDD, and the previous failure to
recognize the effect of IDD on Wooden’s actions and communications caused other
medical professionals to misdiagnose Wooden as suffering from pedophilic disorder.
Winsmann’s theory is “coherent and facially plausible,” and it is not “contradicted by
extrinsic evidence.” Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985).
Instead, Winsmann’s theory is supported by the slow improvement in Wooden’s
behavior, as explained above. Accordingly, there is nothing in Winsmann’s views that,
in and of itself, raises doubts about the district court’s decision to credit his testimony.
See id. (“[W]hen a trial judge’s finding is based on his decision to credit the testimony of
one of two or more witnesses, each of whom has told a coherent and facially plausible
story that is not contradicted by extrinsic evidence, that finding, if not internally
inconsistent, can virtually never be clear error.”). The question, then, is whether there are
other errors in the district court’s analysis that would make the court’s conclusion that
Wooden suffered from IDD, not pedophilic disorder, clearly erroneous.
The government contends that “[t]he record as a whole, and Dr. Malinek’s
testimony in particular,” show that the court erred in accepting Winsmann’s IDD
diagnosis. Brief of Appellant at 15. In support of this argument, the government notes
that Wooden committed several of his crimes in his late twenties and that he was still
having pedophilic urges in 2005.
In the government’s view, these facts cannot be
reconciled with the district court’s conclusion that Wooden committed his criminal
Pg: 24 of 34
offenses because he had a developmental delay of 10-15 years as a result of his IDD. We
As to the reference to a 10-15 year developmental delay, the central part of the
district court’s holding was that, as to his early offenses, Wooden was “unable to
understand or control his sexual urges” because he “experienced the physical and
hormonal development of a teenager and young adult but the cognitive development and
maturity of a much younger person,” J.A. 657, but that Wooden had now grown and
progressed to the point where he would not engage in the same conduct again. As
discussed above, that general conclusion, which is based on Dr. Winsmann’s testimony,
is supported by evidence in the record.
Accordingly, even if the court’s reference to a
10-15 year developmental gap did not precisely capture the nuances of the issue, the error
does not undermine the district court’s analysis or ultimate conclusion.
As to the government’s larger point, the district court did not ignore Malinek’s
testimony, but the court was not required to find it persuasive. The district court fairly
summarized Malinek’s testimony and acknowledged Malinek’s testimony that IDD could
not explain Wooden’s violent crimes against prepubescent children, see J.A. 653, 657,
but the court nonetheless found Winsmann’s testimony to be more persuasive. Although
a variety of factors go into a court’s credibility determinations, the district court put some
of its reasons on the record: the court believed that portions of Malinek’s testimony were
directly contradicted by the court’s own observations of and experiences with Wooden
over the years and that Malinek focused too heavily on historical criminal behavior rather
than Wooden’s present condition. Moreover, Winsmann reached his diagnosis after
Pg: 25 of 34
interviewing Wooden for hours and administering a battery of tests to measure his
intellectual capacity, while Malinek rejected the IDD diagnosis without ever even talking
to Wooden. See J.A. 480 (Winsmann testified that “you have to understand how a person
like this communicates. And these simple words can sometimes be misunderstood or
taken out of context, if . . . you don’t have the experience working with him or . . . you
don’t spend enough time with Mr. Wooden.”).
As just discussed, Winsmann’s testimony, standing alone, was coherent, plausible,
and internally consistent; it is not any less so when it is placed beside Malinek’s
testimony. Under these circumstances, the district court’s decision to accept Winsmann’s
views over Malinek’s contrary views is not clearly erroneous. See Anderson, 470 U.S. at
574 (“Where there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.”).
The government also contends that the district court erred by crediting Wooden’s
claims that he was sexually attracted to women without addressing Dr. Malinek’s
assertion that such an attraction would not be inconsistent with a diagnosis of pedophilic
disorder. 6 We see no error.
To the extent that the government suggests Wooden’s asserted interest in
adult women is not believable, we note that Wooden’s sisters confirmed to Winsmann
that Wooden had had peer-aged girlfriends. In addition, prison officials found pictures of
lingerie-clad adult women in Wooden’s cell. Although Wooden claimed the pictures
belonged to his cellmate, he admitted to Winsmann that he was sexually aroused when
looking at the pictures. During a recorded phone call, Wooden also expressed interest in
Pg: 26 of 34
Malinek’s testimony was not contrary to the district court’s finding, as the court
did not conclude that Wooden’s attraction to adult women precluded a pedophilicdisorder diagnosis. Rather, the district court concluded that Wooden had a “global sexual
interest,” but that his impaired cognitive functioning and adaptive difficulties led him to
act against children, “with whom he more easily bonded emotionally.” J.A. 658. Under
these circumstances, we cannot say that the district court clearly erred by failing to
explicitly address this portion of Malinek’s testimony.
The government also maintains that the district court failed to reconcile its
conclusion that Wooden suffered from IDD and was not a pedophile with the aggressive,
calculating nature of Wooden’s prior offenses. Dr. Malinek testified that people with
IDD are gullible and more likely to be the victim of violence than a violent aggressor. In
Malinek’s view, Wooden’s behavior was very different from what would be expected
from a person with IDD:
[T]he conduct and the planning and the isolating of the children . . . all . . .
shows that is totally not IDD. That is forward, aggressive conduct directly
that’s coming from sexual arousal. He’s not befriending them for
friendship . . . as you would anticipate if he had just IDD.
J.A. 627. The government contends the district court failed to address this evidence.
Contrary to the government’s argument, the district court did
consider and address this part of Malinek’s testimony. The court referred to this issue
having a relationship with the female attorney representing him in these proceedings. See
Pg: 27 of 34
when summarizing Malinek’s testimony, see J.A. 653, and again in its substantive
analysis, see J.A. 657 (“The Court heeds the testimony of Dr. Malinek that individuals
with IDD usually do not commit sexual crimes but are instead often the victims of sexual
assault.”). While the district court did not specifically explain why it did not find that
specific portion of Malinek’s testimony persuasive, it was not required to do so. Our
cases require district courts to take substantial contrary evidence into account when
acting as the finder of fact, see, e.g., Wooden I, 693 F.3d at 451, but that does not mean
the court must explain in detail why it rejects each and every individual piece of
evidence. Here, the district court explicitly acknowledged Malinek’s views, but the court
was nonetheless persuaded by Winsmann’s testimony that Wooden’s aggressive sexual
behavior was the product of IDD. Under our deferential standard of review, the district
court’s treatment and consideration of Malinek’s testimony was sufficient.
The government also argues that the district court committed reversible error when
it credited Wooden’s testimony that he was no longer attracted to young boys. The
government notes that the record in the original commitment proceedings included
evidence that Wooden was still experiencing pedophilic urges as late as 2011, see
Wooden I, 693 F.3d at 452 (noting that in his 2011 deposition, Wooden acknowledged
that he had been having sexual thoughts about children). According to the government,
the district erred by overlooking this evidence and “accepting Wooden’s testimony that
he [had] not experienced pedophilic urges since he was returned to custody in 2005.”
Brief of Appellant at 17.
Pg: 28 of 34
The government’s argument misstates the facts actually found by the district court.
In this part of its analysis, the district court drew a distinction between exhibiting and
experiencing pedophilic urges. The court concluded that Wooden had not “exhibited any
pedophilic urges since 2005,” J.A. 659 (emphasis added), but it did not conclude that
Wooden last experienced pedophilic urges in 2005. The district court found Wooden’s
testimony that “he no longer experiences those [urges]” to be credible, id., but the court
made no specific finding about when Wooden stopped experiencing pedophilic urges.
Accordingly, the evidence from the 2011 proceedings is not inconsistent with the district
court’s findings in these proceedings. Even if Wooden was experiencing urges in 2011,
there is no evidence that he was outwardly exhibiting those urges at that time. Likewise,
a conclusion that Wooden was experiencing pedophilic urges in 2011 is not inconsistent
with the district court’s determination that Wooden was no longer experiencing urges at
the time of the hearing in 2016.
Moreover, while the government argues that the district court should not have
accepted Wooden’s testimony about whether he had pedophilic urges, it points to no
contrary evidence that the court should have accepted. The government nonetheless
suggests that the absence of evidence of pedophilic urges does not mean that Wooden is
not currently experiencing those urges, given that Wooden “showed no evidence of
pedophilia while in custody between 1984 and 2001, but clearly experienced such urges
when he went back to the community.” Brief of Appellant at 17-18.
To accept the government’s argument would effectively mean that an offender
diagnosed with pedophilic disorder could never be released, as the government could
Pg: 29 of 34
always prove future impulse-control problems by pointing to past failures to exercise
control. The structure of the Act, which requires discharge if the inmate is no longer
sexually dangerous, clearly shows that Congress believed that sexually dangerous
predators could change and grow out of the sexually-dangerous classification.
government’s argument forecloses that possibility, and we therefore reject it. Cf. United
States v. Antone, 742 F.3d 151, 169 (4th Cir. 2014) (criticizing district court’s acceptance
of expert opinion that “did not allow for a respondent’s subsequent growth”).
There is no evidence in the record that Wooden ever told anyone at Butner that he
was still experiencing pedophilic urges or that he engaged in any conduct at Butner that
would suggest he was still experiencing those urges. 7 While Malinek and Ross testified
that Wooden still suffered from pedophilic disorder, they offered no testimony about
whether Wooden was suffering from pedophilic urges at the time of the hearing. Ross,
who had interviewed Wooden in 2015, did not testify that Wooden admitted to
experiencing pedophilic urges. She based her continued diagnosis on the fact that she
believed Wooden suffered from pedophilic disorder at the commitment hearing and had
seen “no evidence which suggests that that has changed in any way or that the IDD would
be a better explanation for his sexual offenses.” J.A. 411. Malinek likewise provided no
While there may be limited opportunities for an inmate to engage in
conduct indicative of pedophilic urges, it is not impossible. For example, when Wooden
was transferred to Butner in 2005, he sent a Christmas card to the seven-year-old boy at
the center of the 2005 laundry-room incident. Even the defense expert advocating against
commitment in the 2011 proceedings believed that “[a]ttempting to correspond with
children” was an “overt behavior” that would be indicative of “ongoing pedophilia.”
Wooden I, 693 F.3d at 455. There is no indication that Wooden has ever again attempted
to correspond with children.
Pg: 30 of 34
testimony that Wooden was currently experiencing urges about children. Nor could he
have, given that he has never interviewed Wooden and conducted his evaluation by
performing actuarial assessments and reviewing documents such as police reports,
mental-health treatment records, and prison records, none of which provided any
information about whether Wooden was experiencing pedophilic urges at the time of the
The only actual evidence of whether Wooden was then experiencing intense
pedophilic urges is found in Wooden’s testimony and that of Drs. Winsmann and Plaud,
both of whom had interviewed Wooden multiple times. Wooden denied he was currently
experiencing pedophilic urges at the hearing and in his interviews with Winsmann and
Plaud. As experts with experience in sexually violent predator commitment proceedings,
Winsmann and Plaud would not blindly take Wooden’s statements at face value, but
would use their training to evaluate the credibility of his statements. Cf. United States v.
Perez, 752 F.3d 398, 408 (4th Cir. 2014) (explaining that after interviewing Adam Walsh
detainee, Dr. Plaud rejected detainee’s denial of pedophilic arousal and described
detainee as “an untreated pedophile who is actively denying his sexual arousal patterns”
(internal quotation marks omitted)). They nevertheless found his denials to be credible,
and they testified that they knew of no evidence showing that Wooden was currently
experiencing pedophilic urges.
The government thus asks us to reject as clearly erroneous a factual conclusion
that was based on a credibility finding about the only affirmative evidence directed to that
issue. The district court, as fact-finder, could have rejected Wooden’s claim that he was
Pg: 31 of 34
no longer experiencing pedophilic urges if the court had reason to doubt it.
Anderson, 470 U.S. at 575 (“[O]nly the trial judge can be aware of the variations in
demeanor and tone of voice that bear so heavily on the listener’s understanding of and
belief in what is said.”). The court instead specifically found Wooden’s denial of current
pedophilic urges to be credible, and the government has pointed to nothing that would
permit us to reject that conclusion.
Under clear-error review, our task is to determine whether “the district court’s
account of the evidence is plausible in light of the record viewed in its entirety.”
Anderson, 470 U.S. at 573-74. If it is, “the court of appeals may not reverse it even
though convinced that had it been sitting as the trier of fact, it would have weighed the
evidence differently.” Id. at 574. For the reasons discussed above, we cannot say that the
district court’s view of the evidence regarding the IDD diagnosis is implausible. We
therefore conclude that the district court did not err in finding that Wooden suffers from
IDD, not pedophilic disorder.
As previously noted, the district court, after rejecting the pedophilic-disorder
diagnosis, considered whether IDD qualified as a “serious mental illness, abnormality, or
disorder” under the Adam Walsh Act, 18 U.S.C. § 4247(a)(6), or whether Wooden
suffered from any other qualifying condition.
See J.A. 660-62.
The district court
answered those questions in the negative, and the government has not challenged those
conclusions on appeal.
Pg: 32 of 34
Under these circumstances, our determination that the district court did not clearly
err when finding that Wooden did not suffer from pedophilic disorder is dispositive of
this appeal. The Act authorizes the civil commitment of “sexually dangerous” offenders,
18 U.S.C. § 4248(a), which requires, inter alia, proof that the offender “suffers from a
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). Commitment is thus proper under the Act only if the offender (1) “suffers
from a serious mental illness, abnormality, or disorder,” and (2) the illness, abnormality,
or disorder causes the offender to “have serious difficulty in refraining from sexually
violent conduct or child molestation.” Id.; see United States v. Caporale, 701 F.3d 128,
130, 142 (4th Cir. 2012) (finding clear error in district court’s conclusion that inmate did
not suffer from a qualifying serious mental illness, but nonetheless agreeing with district
court that commitment was not authorized because government failed to prove that
inmate would have serious difficulty in refraining from sexually violent conduct); Hall,
664 F.3d at 467 (finding no clear error in district court’s refusal to commit inmate
suffering from pedophilia and antisocial personality disorder because government failed
to prove that inmate would have serious difficulty refraining from re-offense). Because
we find no clear error in the district court’s determination that Wooden does not suffer
from a serious mental illness within the meaning of the Act, commitment is not
authorized, and there is no need for us to consider whether the district court erred in its
analysis of the volitional-impairment issue.
Pg: 33 of 34
In its briefs filed with this court, the government asserts that, at the very least, the
district court should have imposed conditions on Wooden’s release. We disagree. The
Act requires the “immediate discharge” of detainees who “will not be sexually
dangerous to others if released unconditionally,” 18 U.S.C. § 4748(e)(1), and authorizes
conditional discharges only for detainees who “will not be sexually dangerous to others if
released under a prescribed regimen of medical, psychiatric, or psychological care or
treatment,” id. § 4748(e)(2) (emphasis added). A conditional discharge thus is authorized
only for those detainees who require medical care or treatment to keep them from being
sexually dangerous; a detainee who is not sexually dangerous must be discharged
unconditionally. In this case, the district court concluded that Wooden does not suffer
from a serious mental illness, disease, or abnormality, and that Wooden therefore is not
Accordingly, we conclude that the Act does not permit the
imposition of conditions on Wooden’s release. 8
“The question of whether a person is sexually dangerous is by no means an easy
one,” Hall, 664 F.3d at 467 (internal quotation marks omitted), and the potential
consequences of an incorrect decision are steep – a loss of liberty if an inmate is wrongly
18 U.S.C. § 4748(e), which explicitly authorizes conditional discharges,
refers to discharge proceedings initiated by prison officials. This action, however, was
initiated by Wooden himself, as authorized by 18 U.S.C. § 4247(h). Because § 4247(h)
speaks in terms of “discharge” only and makes no mention of a conditional discharge,
Wooden contends that a district court lacks authority to impose conditions on the release
of a sexually violent predator in cases where the discharge proceeding was initiated by
the inmate under § 4247(h). Given our conclusion that § 4248(e) does not permit a
conditional discharge in this case, we need not consider this argument.
Pg: 34 of 34
found to be sexually dangerous or unspeakable harm to a child if an inmate is wrongly
released. Under our judicial system, however, it is the district court, not this court, that is
charged with sorting out the factual issues and answering the ultimate question. In this
case, the district court was presented with two plausible theories of the case, both of
which were supported by facially credible expert evidence. Regardless of whether we
would have reached the same conclusion had we been the factfinders, the factual findings
of the district court “represent a permissible and reasonable interpretation of the evidence
presented at the hearing.” Id. Under these circumstances, we are constrained to affirm
the district court’s order requiring Wooden’s release.
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