United States v. Wood, No 12-7653

Decided: December 20, 2013

The Fourth Circuit, holding that Vernon Dale Wood (“Wood”) was a “sexually dangerous person” under the Adam Walsh Act (the “Act”), affirmed the district court’s order committing Wood to the custody of the Attorney General of the United States (“U.S.A.G.”).

Wood was born in 1953. In 1976, he was arrested for promoting prostitution and simple assault in the state of Washington. The prostitution charges were dropped, but Wood was convicted of the simple assault charge. The following year, Wood was arrested for promoting prostitution and compelling prostitution in Oregon. He was found guilty on both counts and served approximately five years in prison. One of the women involved in the Oregon prostitution offenses was sixteen years old. In 1987, Wood was charged with sexual abuse in Iowa. He was found guilty of this offense, which involved intercourse with a ten-year old girl, and sentenced to twenty years in prison. However, he was released in January 2001. The following April, Wood was arrested and charged with failure to comply with Iowa’s sex offender registry requirements. He was placed on probation. Wood’s probation was revoked in 2002, however, when he was arrested on five counts of supplying alcohol to minors. In 2004, Wood was again arrested in Iowa and charged with lascivious acts with a child and being a felon in possession of a firearm. The state of Iowa deferred to the U.S.A.G.’s office for prosecution and a grand jury charged Wood with two counts o f being a felon in possession of a firearm. While the federal charges were pending, in 2005, Wood was charged with seven counts of sexual abuse stemming from an alleged molestation of a female under the age of twelve over a period of three years. Following Wood’s 2006 conviction on the federal firearm charge, a presentence report (the “2006 PSR”) was prepared in preparation for sentencing. The 2006 PSR detailed Wood’s extensive criminal history, which also included numerous offenses in a variety of state courts for non-sexual offenses. Wood’s received concurrent 100-month sentences, his projected release date was August 13, 2012.

 In January 2012, the Bureau of Prisons certified that Wood was a “sexually dangerous person” in accordance with the Act, automatically staying his release pending an evidentiary hearing. The entire procedure was guided by a standing order governing all cases arising under the Act (the “Standing Order”). Paragraph 5(h) of the Standing Order provides for two types of examiners identified as a “court selected examiner” and an “additional examiner” selected by the defendant. The Standing Order bars counsel from either party from ex parte communication with either Paragraph 5(h) examiner. Additionally, Paragraph 5(h) provides an opportunity for the defendant to obtain a “non-testifying examiner” to assist in developing a defense. Wood, however, never sought the appointment of such an examiner. The district court, appointed Dr. Harry Hoberman (“Dr. Hoberman”), a licensed psychologist, as the “court selected examiner.” Following a motion by Wood, Dr. Fabian Saleh (“Dr. Saleh”) was selected as an “additional examiner.”  Wood then filed a motion seeking leave to substantively communicate ex parte with Dr. Saleh. The motion was denied.

The district court held a civil commitment hearing in July 2012. At the hearing, Dr. Tanya Cunic (“Dr. Cunic”), Dr. Hoberman, and Dr. Saleh testified as experts in the field of psychology. Based on a record review, Dr. Cunic testified that she diagnosed Wood with two serious mental disorders: (1) Pedophilia; and (2) Personality Disorder, Not Otherwise Specified with Antisocial Traits. Dr. Cunic further testified that, based on Wood’s serious mental disorders and dynamic risk factors; he would have serious difficulty in refraining from child molestation. Similarly, Dr. Hoberman testified that he diagnosed Wood with two serious mental disorders: (1) Pedophilia; and (2) Antisocial Personality Disorder. Dr. Hoberman also testified that he believed Wood would have serious difficulty refraining from future acts of child molestation. Dr. Saleh, on the other hand, testified that there was no evidence that Wood suffered from Pedophilia or Antisocial Personality Disorder. Dr. Saleh did, however, testify that he diagnosed Wood with Personality Disorder, Not Otherwise Specified but that there was no link in this case between the disorder and sexual reoffending. Dr. Saleh further testified that he believed Wood would not have serious difficulty in refraining from engaging in child molestation.

On September 6, 2012, the district court issued its civil commitment order. With regard to the second element required under the Act, the court credited the opinions of Drs. Cunic and Hoberman over the opinion of Dr. Saleh and found that Wood suffered from Pedophilia, a serious mental disorder. Moreover, the district court found Wood suffered from Personality Disorder, Not Otherwise Specified with Antisocial Traits. With regard to the third element, the district court found that Wood would have serious difficulty in refraining from child molestation if released. Again, the court credited the opinions of Drs. Cunic and Hoberman over that of Dr. Saleh. This appeal followed.

On appeal, the Fourth Circuit first addressed Wood’s contention that the Standing Order violated his due process rights because it did not allow him to substantively communicate ex parte with his selected examiner, Dr. Saleh. The court rejected this contention, reasoning that (1) Dr. Saleh’s expert opinions supported Wood’s claim that he was not a sexually dangerous person; and (2) Wood had the opportunity to select a “non-testifying expert” to assist in building his defense. Next, the court addressed Wood’s argument that the district court erred in admitting unreliable hearsay into evidence. The court also rejected this argument. In so concluding, the court noted that the challenged reports were admissible under Rule 703 of the Federal Rules of Evidence, which permits an expert to testify to opinions based on inadmissible evidence. Moreover, the reliability of the challenged reports was supported by the fact that they were used in preparation of the 2006 PSR, which was admissible as an official document under Rule 803(8). Importantly, the 2006 PSR set forth the vast majority of the relevant evidence contained in the challenged reports.

Full Opinion

-W. Ryan Nichols

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