UNITED STATES of America, Petitioner-Appellee, v. Jose De La Luz PEREZ, Respondent-Appellant.
No. 13-6043
United States Court of Appeals, Fourth Circuit
May 15, 2014
Argued: Jan. 28, 2014.
Even if there was more uncompromised evidence, as Garcia points out, this Court‘s inquiry is not “merely whether there was enough [evidence] to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence.” Curbelo, 343 F.3d at 286 (quoting Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239). Here, in a trial spanning twelve days, Agent Dayton testified on six different days, recalled to the stand eighteen times. From the beginning of the trial to the end of the trial, the calls and the meaning of the words used in those calls were the centerpiece of the Government‘s case. There was little direct evidence connecting Garcia to three of the four actual possession charges, and law enforcement never observed Garcia actually exchanging drugs or money with any coconspirators. We cannot find Agent Dayton‘s testimony harmless under the circumstances.
IV.
In Wilson, we criticized defense counsel for failing to react aggressively to nudge the district court to better exercise its “gatekeeping” responsibilities in respect to a law enforcement witness decoding expert. Wilson, 484 F.3d at 278 n. 5 (“Appellants deserve some of the blame for those rare instances where improper testimony slipped through the gate‘s cracks.“). Here, no such scolding is appropriate. Garcia timely and repeatedly objected regarding the foundational sufficiency and methodological reliability of the agent‘s expert testimony, and he specifically pointed to the risk of prejudice arising from the agent‘s dual capacity as both an expert and fact witness. Counsel objected early and often, always respectfully and, on occasion, with success. But even when the district court sustained some objections (after a bench conference), the Government would often “move on” to its next question or its next area of interest, leaving prejudicial effects hanging in the air. Although here, as usual, the quantum of prejudice is not susceptible of exact measurement, we are persuaded that Garcia has established his entitlement to relief.
For the reasons set forth above, the judgment is vacated and the case is remanded for further proceedings not inconsistent with this opinion.
VACATED AND REMANDED.
Before TRAXLER, Chief Judge, and MOTZ and THACKER, Circuit Judges.
Affirmed by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge MOTZ and Judge THACKER joined.
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,”
I.
Under the Act, the government has the authority to civilly commit “sexually dangerous” federal inmates following the expiration of their federal prison sentences.
The Attorney General or the Director of the Bureau of Prisons (“BOP“) may commence a
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
As mandated by the Act, the district court conducted an evidentiary hearing “to determine whether [Perez was] a sexually dangerous person.”
The government presented the expert testimony of three forensic psychologists who each performed a 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
In making their assessments, all three experts reviewed Perez‘s criminal history records which established the following. In September 1970, Perez was arrested for abducting a 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. See Perez v. State, 478 S.W.2d 551 (Tex.Crim.App.1972). 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 asked how the jeans fit. 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. He was eventually apprehended in March 1987. The charge 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 with a child in relation to the twelve-year-old victim. The charge also alleged that Perez had one prior felony conviction for enhancement
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 door-to-door and noticed a young boy in a woman‘s apartment. 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 in the parking lot. 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 was instructed not to tell anyone about what happened. 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 them the very next day. The reported sexual abuse involved anal intercourse and occurred in several locations besides the home, including locations in the state of New Mexico. Perez also transported the boys to and from Mexico on several occasions. At least three other children were interviewed during the investigation and reported that respondent had sexually molested them. Medical evaluations of the two reported victims revealed signs consistent with chronic perianal trauma.
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.”
The district court found that the government established by clear and convincing evidence that Perez was a “sexually dangerous person” as defined by
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.” United States v. Hall, 664 F.3d 456, 462 (4th Cir.2012). 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. We reject this argument.
A civil action in federal court commences with the filing of a complaint, see
As Perez points out, a commitment proceeding under
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, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010). The question is whether the Act requires the government to serve a summons pursuant to Rule 4 upon a respondent in federal custody despite the obvious differences between the initiation of civil
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 initiate and to notify the respondent of a
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....
We conclude that the procedure set forth in
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, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). Establishing notification to a civil defendant through proper service of the summons is critical since, among other things, service of the summons triggers defendant‘s duty to file a responsive pleading to the complaint, see
The respondent in a
A second function performed by service of a civil summons under Rule 4 is to assert the district court‘s jurisdiction over a person. “Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied. Service of summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served.” Omni Capital Int‘l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987) (emphasis added) (internal quotation marks and alteration omitted). 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, 66 S.Ct. 154, 90 L.Ed. 95 (1945))). Over time in the civil context, “[t]he idea of ‘minimum contacts’ developed as a surrogate for actual presence in a State but did not alter the essentially territorial nature of jurisdic-
IV.
Next, Perez contends that the district court committed clear error in finding him to be a “sexually dangerous person.”
To obtain a civil commitment order under the Act, the government must prove three elements by clear and convincing evidence. See United States v. Wood, 741 F.3d 417, 419 (4th Cir.2013). The government first must demonstrate that the person has previously “engaged or attempted to engage in ... child molestation.”
Perez does not dispute that the government established the first two elements by clear and convincing evidence—(1) that he previously engaged or attempted to engage in child molestation and (2) that he suffers from a serious mental illness, abnormality, or disorder, i.e., pedophilia. Perez challenges only the district court‘s finding that as a result of his pedophilia, “he would have serious difficulty in refraining from ... child molestation if released.”
Perez contends that the government‘s evidence rested almost entirely on his criminal offense history and failed to adequately account for Perez‘s current level of volitional impairment. Perez claims, moreover, that any expert opinion about his 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, we reject Perez‘s suggestion that the district court‘s substantial consideration of his criminal offense history was erroneous or improper. Although “[t]he nature of [Perez‘s] prior crimes may well be a historical factor, ... it is by no means a stale or irrelevant one. When the question is whether an inmate suffering from pedophilia will have serious difficulty refraining from re-offending if released, consideration of the nature of his prior crimes provides a critical part of the answer.” 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 partici-
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.”
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. J.A. 214. Dr. Malinek applied three different actuarial scales “that assess baseline recidivism risk in sexual offenders.” J.A. 214. First, Perez‘s risk of reoffending was assessed using the Static-99R scale, which incorporates numerous static 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 five static categories, including age, persistence of sexual offending, deviant sexual interests, relationship to the victims, and general criminality. Dr. Malinek scored Perez a 7 on the Static-2002R, placing him in the moderate-high risk category. 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). Dr. Malinek gave Perez a score of 12 on the MnSOST-R, placing him in the high risk category with an “expected recidivism rate within six years of release [of] 30 percent.” J.A. 221.
Dr. Malinek then considered a number of dynamic risk factors taken from the STABLE-2007 scale “that have been statistically liked with both increased recidivism and decreased recidivism.” J.A. 221. “Significant Negative Social Influence” for example, is a well-established predictor of general recidivism that, in Dr. Malinek‘s view, suggests an increased risk of reoffending 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 Perez‘s sexually deviant conduct, exemplified by his having begun molesting his most recent victims immediately after meeting them. Dr. Malinek also noted that Perez‘s pedophilia is a chronic condition and that it is unlikely that “his decades-long 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 criteria for civil commit-
[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....
[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, Dr. Malinek testified that Perez‘s statements to Dr. Plaud within six months of the hearing reaffirmed his opinion that Perez would have difficulty refraining from child molestation. Specifically, Perez‘s admission that he never had sexual relations with an adult female “means that he is probably an exclusive, 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 disorder and therefore unlikely to change simply with the passage of time.
Dr. Ross also provided a written evaluation addressing Perez‘s sexual dangerousness under
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 offenses; the chronic nature of Perez‘s disorder; and his refusal to participate in sexual 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 from further acts of child molestation if he were released.” J.A. 230. 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.” J.A. 231. At the evidentiary hearing, however, Dr. Plaud unequivocally stated that he considered Perez “sexually dangerous” under the Act: “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 prepubescent-aged males.... That‘s why I think he‘s sexually dangerous.” 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, and his brazen and risky behavior despite previous legal sanctions. The district court also gave significant weight to Perez‘s lack of sex offender treatment and his apparent denial of pedophilic sexual interest. And, the district court concluded, based on testimony from all three experts, that Perez‘s age did not mitigate his risk of recidivism in light of all of the other risk factors.
In sum, the district court carefully considered the evidence before it, and its factual findings represent a permissible and reasonable interpretation of the evidence presented at the hearing. Because we are not “left with the 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 argu-
VI.
For the foregoing reasons, the order of the district court is
AFFIRMED.
TRAXLER
CHIEF JUDGE