United States v. Mikel Bolander, 722 F.3d 199

Bolander was certified by the Attorney General as a ‘sexually dangerous person’ under 18 U.S.C. § 4248 and committed to the Attorney General’s custody after a district court found clear and convincing evidence.
The government had to prove three elements: past engaging in child molestation, current serious mental illness/abnormality, and serious difficulty refraining from molestation if released.
Three psychologists (Dr. North, Dr. Demby for the government; Dr. Warren for Bolander) and Bolander testified; experts relied on SOTP records, Static risk tools, and dynamic risk factors.
The district court credited the government’s experts and found Bolander would have serious difficulty refraining from child molestation if released, adopting the experts’ conclusions and deeming actuarial tools informative but not dispositive.
Bolander argued delay in the hearing violated due process; the court concluded delay was justified by the government’s § 4248 duties and procedural posture, with timing ultimately not violating due process.
Bolander raised claims about equal protection, double jeopardy/punishment, and psychotherapist–patient privilege; the court addressed these and found § 4248 constitutionally permissible and did not err in handling privileges.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred in concluding Bolander would have serious difficulty refraining from molestation if released	Bolander argues insufficient volitional impairment evidence.	Government asserts significant expert evidence and risk factors support the third element.	No clear error; district court’s finding supported by record and deference to expert credibility.
Whether due process was violated by the evidentiary hearing delay	Bolander claims five-year delay prejudiced liberty interests.	Government contends delay justified by statutory framework and post-Comstock procedural posture.	Delay did not violate due process; government’s interest and justification outweighed concerns.
Whether § 4248 violates equal protection or constitutes impermissible punishment	Bolander asserts equal protection and punishment concerns.	Government relies on Timms foreclosing these challenges and upholds civil nature of § 4248.	Both equal protection and punishment challenges rejected.
Whether Bolander waived psychotherapist–patient privilege and whether disclosures were privileged	Bolander contends privilege should apply to SOTP disclosures.	Government asserts waiver by Bolander; disclosures to Dr. Warren not protected; also privilege not extending to treatment consultations.	Bolander waived privilege; district court did not err in denying the motion in limine.

Jimenez v. DaimlerChrysler Corp., 269 F.3d 439 (4th Cir. 2001) (clear-and-convincing standard explained)
Hall, 664 F.3d 456 (4th Cir. 2012) (clear error/credibility review standard)
United States Gypsum Co., 333 U.S. 364 (1948) (standard of review; defer to district court on credibility)
Kansas v. Crane, 534 U.S. 407 (2002) (volitional impairment standard for civil commitment)
Addington v. Texas, 441 U.S. 418 (1979) (importance of expert opinion in mental illness determinations)
Jaffee v. Redmond, 518 U.S. 1 (1996) (psychotherapist-patient privilege under Rule 501)
United States v. Comstock, 129 S. Ct. 1952 (2010) (upheld § 4248 under Necessary and Proper Clause (Comstock II))
United States v. Comstock, 551 F.3d 274 (4th Cir. 2009) (earlier holding; pre-Comstock decision)
Timms, 664 F.3d 436 (4th Cir. 2012) (due process and delay analysis in § 4248 cases)
Shields, 649 F.3d 78 (1st Cir. 2011) (contextual discussion cited in comparable risk assessment)