United States v. Bolander, No. 12-6146
Decided: July 5, 2013
The Fourth Circuit held that the United States District Court for the Eastern District of North Carolina did not commit clear error by ordering civil commitment of Mikel Bolander (“Bolander”) as a “sexually dangerous person” under the Adam Walsh Act, 18 U.S.C. § 4248 (“section 4828”); that section 4828 did not deprive Bolander of equal protection, and did not impose an unconstitutional criminal punishment on him; that the length of time between Bolander’s projected release from prison and the evidentiary hearing regarding civil commitment did not violate Bolander’s due process rights; and that the district court did not commit error by denying Bolander’s December 6, 2011 motion in limine, in which Bolander argued that evidence relating to disclosures he made during participation in a Sex Offender Treatment Program (“SOTP”) should be excluded under the psychotherapist-patient privilege. The Fourth Circuit therefore affirmed the rulings of the district court.
Bolander began experiencing attraction to prepubescent boys at the age of twelve. In December 1988, when Bolander was twenty-four years old, he was charged with multiple sexual offenses in San Diego, California after molesting an eleven-year-old boy over a six-month period. Bolander was sentenced to six years’ imprisonment in April 1989. Bolander was paroled in 1992; however, a parole officer subsequently discovered child pornography and other lewd materials in a search of Bolander’s residence. Bolander was arrested in 1996, and later pled guilty to federal charges for distribution of child pornography. Bolander participated in a SOTP while serving a sentence in federal prison. Bolander was released in 1998, and was subsequently sentenced to prison for federal child pornography violations on two separate occasions. Bolander’s projected release date for the most recent prison term was February 9, 2007; however, on that day, the Federal Bureau of Prisons certified that Bolander was a “sexually dangerous person” pursuant to section 4248(a), thereby staying Bolander’s release in anticipation of an evidentiary hearing.
The hearing took place on January 19, 2012, nearly five years after Bolander’s projected release date. Prior to the hearing, on December 6, 2011, Bolander moved in limine to exclude the evidence related to disclosures he made as a participant in the SOTP, claiming the protection of the psychotherapist-patient privilege. The district court denied Bolander’s motion. At the January 19 hearing, the district court heard testimony from three psychologists, who had evaluated Bolander and prepared expert reports; a former director of the SOTP, who directed the program while Bolander was enrolled in it; and Bolander himself. The district court concluded that the government had proven Bolander was a “sexually dangerous person” by clear and convincing evidence, as the government proved that Bolander had engaged in an act of child molestation in the past, Bolander suffered from serious mental disorders, and Bolander “would have serious difficulty in refraining from . . . child molestation if released” due to his mental disorders. Of these three conclusions, Bolander appealed only the third.
The Fourth Circuit found that there was evidence in the record to support the district court’s finding of “serious difficulty”; furthermore, as a result of the reasonable explanations offered by one of the government’s psychologists, the district court had the liberty to reject Bolander’s alternative arguments. The Fourth Circuit also noted that Bolander’s equal protection argument, as well as his assertion that section 4828 imposed an unconstitutional criminal punishment, were foreclosed by the court’s decision in United States v. Timms, 664 F.3d 436. With regard to the delayed hearing, the Fourth Circuit found that the government’s justification for the delay satisfied due process requirements: The court listed Bolander’s own pretrial requests and decisions, as well as the constitutional uncertainty surrounding United States v. Comstock, 130 S. Ct. 1949, as reasons for the delay. Lastly, with regard to Bolander’s motion in limine regarding the SOTP evidence, the Fourth Circuit found that Bolander waived any potential psychotherapist-patient privilege by failing to properly assert the privilege in a timely manner.
– Stephen Sutherland