US v. Carlos Ofarrit-Figueroa, No. 12-6831 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-6831 UNITED STATES OF AMERICA, Petitioner - Appellee, v. CARLOS OFARRIT-FIGUEROA, Respondent - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:10-hc-02022-BO) Argued: May 17, 2013 Decided: July 17, 2013 Before KEENAN and FLOYD, Circuit Judges, and Henry E. HUDSON, United States District Judge for the Eastern District of Virginia, sitting by designation. Affirmed by unpublished per curiam opinion. ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Michael Gordon James, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Carlos Ofarrit-Figueroa ( Ofarrit-Figueroa ) appeals his civil commitment as a sexually dangerous person under the Adam Walsh Child Protection and Safety Act of 2006 ( the Act ). U.S.C. § 4248. court found Following an evidentiary hearing, the district that attempted to suffered 18 from Ofarrit-Figueroa engage, in had sexually paraphilia not previously violent engaged, conduct; otherwise that specified or he with exhibitionist features, a serious mental illness, abnormality or disorder; and difficulty in that Ofarrit-Figueroa refraining from engaging would in have sexually serious violent conduct as a result of a serious mental illness, abnormality or disorder. The district court committed Ofarrit-Figueroa to the custody of the Attorney General under 18 U.S.C. § 4248. On appeal, Ofarrit-Figueroa challenges his commitment contending that the district court clearly erred in two of the requisite findings under the Act. He contends that the district court diagnosed him with a mental disorder unsupported by the expert opinions offered at the hearing. He also maintains that the district court failed to connect its finding of substantial 3 difficulty in refraining from sexually violent conduct to its finding of a serious mental disorder. 1 The Adam Walsh Child Protection and Safety Act of 2006, 18 U.S.C. § 4247 48 provides for the civil commitment of a sexually dangerous person prison sentence. following the expiration 18 U.S.C. § 4248(a). of their federal A person is deemed to be sexually dangerous under the Act if he or she has engaged or attempted to engage in sexually violent conduct molestation and who is sexually dangerous to others. § 4247(a)(5). or child 18 U.S.C. A person is considered sexually dangerous to others if the person 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. 18 U.S.C. § 4247(a)(6). Commitment under the Act requires these findings by clear and convincing evidence. 18 U.S.C. § 4248(d). Ofarrit-Figueroa is presently 55 years old. He was born in Havana, Cuba in 1957 and migrated to the United States as part of the Mariel boat flotilla. (J.A. 260 61.) 1 Prior to his Ofarrit-Figueroa also argues that 18 U.S.C. § 4248 violates the Equal Protection Clause of the United States Constitution. As Ofarrit-Figueroa acknowledges in his brief, this Court previously rejected this challenge in United States v. Timms, 664 F.3d 436, 456 (4th Cir. 2012). Ofarrit-Figueroa offers no authority or argument which would compel this Court to revisit that decision. 4 arrival in the United States, Ofarrit-Figueroa was serving a ten year sentence for robbery in Cuba. Figueroa denied openly, during girlfriends sexually his and deviant confinement was allowed his arrival (J.A. 74 75.) behavior, in Cuba, conjugal i.e., masturbating because visits Ofarrit- he every had 30 two days. (J.A. 91 92.) Soon after in Florida, Ofarrit-Figueroa was taken into custody by the Immigration and Naturalization Service and confined in various facilities, including the United States Penitentiary ( USP ) in Atlanta, Georgia. In 1981, he was released on parole and relocated to New Jersey. In 1982, while residing in New Jersey, Ofarrit-Figueroa sexually assaulted a woman at knifepoint and stole her purse. As a result of this convicted of robbery assault in the incident, in first the he was first degree, later charged degree, possession with aggravated of possession of a weapon for unlawful purpose. a and sexual weapon and (J.A. 79 80, 330, 359 60, 365 66, 407.) However, prior to his conviction for rape and robbery in New Jersey, Ofarrit-Figueroa was found guilty in the State of Texas of armed imprisonment. robbery (J.A. and 80 82, was 330.) sentenced Upon to five completion years of this sentence, he was returned to the State of New Jersey to stand trial for the 1982 robbery, aggravated 5 sexual assault and weapons charges. Ofarrit-Figueroa was convicted on all four counts and sentenced to a total of 18 years imprisonment. While housed in the New Jersey correctional system, Ofarrit-Figueroa routinely masturbated in front of female correctional officers. At the evidentiary hearing in the immediate civil commitment proceeding, Ofarrit-Figueroa testified that he did this because he wanted the female officers to fall in love with him. (J.A. 81 82.) In 1994, he was paroled into the custody of the Immigration and Naturalization Service. After being housed in a number of local facilities, he was transferred to the Federal Correctional Center ( FCC ) in Terre Haute, Indiana, where he was assigned to work in the food service area. On March 22, 2000, Ofarrit- Figueroa struck, bit, kissed and sexually assaulted his female supervisor at that institution. When she attempted to summon help, Ofarrit-Figueroa knocked her radio from her hand. (J.A. 82 86, 330 31.) As a result of the incident at FCC Terre Haute, OfarritFigueroa was convicted of sexually assaulting and inflicting bodily injury on an employee of the Federal Bureau of Prisons ( BOP ). He was sentenced to ten years designated to the USP in Marion, Illinois. At USP Marion, masturbate in he the continued presence to of 6 expose female imprisonment and (J.A. 330-31, 358.) himself staff, and often openly as an expression of his anger. (J.A. 87, 89, 100.) In 2005, at his request, he was placed in the Sex Offender Management Program. However, because of his continuous sexual misbehavior, he was placed in a more secure special housing unit. (J.A. 343.) This was largely a result of his continued aggressive masturbation in the presence of female correctional officers he found attractive. In the opinion of a staff psychologist at USP Marion, Ofarrit-Figueroa was deemed inappropriate for participation in a more intensive psychologist hypersexuality concluded that management Ofarrit-Figueroa program. failed to The accept responsibility for his actions, lacked motivation to change and had a defiant attitude toward disciplinary sanctions. 2 (J.A. 106.) Ofarrit-Figueroa most secure was facility, eventually the FCC in transferred Florence, to the Colorado. remained at that institution from 2006 to February 2010. 3 a precertification evaluation for commitment BOP s as a He After seriously dangerous person under 18 U.S.C. § 4248, he was placed in a 2 Ofarrit-Figueroa admitted refusing to obey orders throwing feces at correctional officers. (J.A. 99 100.) 3 and Ofarrit-Figueroa was placed in secure and isolated status from 2000 through 2010, following his conviction for sexually assaulting a female officer. During that period, he had limited contact with BOP personnel or other inmates. 7 secure section of the Federal Correctional Institute ( FCI ) in Butner, North Carolina (J.A. 337, 345.) At FCI Butner, Ofarrit- Figueroa was evaluated by a certification review board, composed of a number of mental health professionals. During intake processing at FCI Butner, Ofarrit-Figueroa was initially evaluated by Dr. Andres Hernandez, the clinical coordinator of the commitment facility. Ofarrit-Figueroa and told treatment Dr. program Hernandez at that that women enjoyed having sexual intercourse with him and that he could not resist exposing himself while in prison. the psychologist that he believed He further revealed to that women who worked in prisons enjoyed observing inmates openly masturbating in their presence. (J.A. 109 11.) The next mental health professional to come into contact with Ofarrit-Figueroa was Dr. Melanie Malterer, a sex offender program psychologist at FCI Butner. On May 28, 2010, Dr. Malterer observed Ofarrit-Figueroa exercising outside her window in a prohibited shirtless, and area. appeared He to was have staring an directly erection. at (J.A. her, 118.) Approximately one week later, an inmate reported to Dr. Malterer that Ofarrit-Figueroa was masturbating as she walked down the hallway. As (J.A. 121 23.) a segregation. result, Ofarrit-Figueroa was placed in inmate This restricted confinement was extended after Dr. 8 Malterer learned from several inmates that Ofarrit-Figueroa referred to her as his girl and that she enjoyed watching him exercise outside her office. annex area, another Dr. inmate, During his confinement in this Malterer, while conducting observed Ofarrit-Figueroa an evaluation place his of penis through the cell door food tray and masturbate as he stared at her through a mirror he held in his hand. When Dr. Malterer directed him to stop masturbating, Ofarrit-Figueroa refused and exhorted that now you have a reason to lock me up, bitch. (J.A. 123.) As part of the certification evaluation process, OfarritFigueroa was also evaluated by Dr. Dawn Graney, a sex offender forensic psychologist employed by the BOP. that she diagnosed Ofarrit-Figueroa Dr. Graney testified with exhibitionism, a paraphilia whereby individuals have recurrent and strong urges to expose themselves to nonconsenting strangers. Dr. Graney s clinical impressions also included a diagnosis of personality disorder/antisocial personality disorder. She elaborated that antisocial personality disorder is a pattern of serious rule violations or disregard for the rights or welfare of others. She added American that both Psychiatric are mental Association s disorders identified Diagnostic and in the Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (the DSM ). (J.A. 55 56, 347, 349.) 9 Dr. Graney concluded that Ofarrit-Figueroa masturbated in front of nonconsenting individuals as a means of initiating sexual activity with women and that he also used this behavior to retaliate against or exhibit anger toward women. 57.) (J.A. 56 In her view, unlike the typical exhibitionist, Ofarrit- Figueroa could be very intimidating and threatening. As an example, she described him as behaviors or leering at female staff. her opinion that if with engage in advances, he activity. (J.A. 60 61.) Graney also would faced testified a engaging (J.A. 57.) in stalking (J.A. 61.) It was also woman who aggressive rejected and his threatening Based on psychological testing, Dr. that Ofarrit-Figueroa lacked volitional control, posed a high risk of sexually reoffending and would have serious difficulty in refraining conduct if he were to be released. from sexually violent (J.A. 63 64.) The United States also called Dr. Hy Malinek, a clinical and forensic California. with psychologist Dr. Malinek exhibitionism and with offices initially antisocial in diagnosed personality Beverly Hills, Ofarrit-Figueroa disorder. Dr. Malinek, however, on further evaluation, revised his findings in a second supplementary report, to paraphilia not otherwise specified ( NOS ) and antisocial personality disorder. 131.) (J.A. Dr. Malinek explained that the later diagnosis was more appropriate because Ofarrit-Figueroa 10 possessed elements of several serious disorders. He described Ofarrit-Figueroa as an atypical exhibitionist that did not fit squarely within this DSM diagnostic category victims. because (J.A. 131 33.) he desired to have sex with his Dr. Malinek noted that [h]e fixates on people. He has committed two sexual - two hands on sexual assaults. One is on a woman at the BOP at Terre Haute in Indiana. (J.A. 132.) Dr. Malinek also observed that Ofarrit- Figueroa possessed a distorted perception that women wanted to have sex with him and that his role is to bring joy to the world [with his penis] and that this is appropriate behavior, there s nothing wrong with this . . . . (J.A. 139.) Dr. Malinek added that this distorted perception clearly amplifies his dangerousness. Based upon (J.A. 139.) his evaluation, Dr. Malinek concluded that Ofarrit-Figueroa met the criteria for civil commitment under 18 U.S.C. § 4248. Figueroa s feelings (J.A. 130.) distorted of In Dr. Malinek s view, Ofarrit- thinking entitlement about role with women combined when his and with his antisocial personality disorder, make him sexually dangerous if rejected by a woman. The called (J.A. 149 53.) final witness Ofarrit-Figueroa. was Dr. Luis Dr. Rosell forensic psychologist with offices in Mount Pleasant, Iowa. Dr. that his evaluation 11 did a Rosell, and testified is Benjamin clinical Rosell by expert not reveal that Ofarrit-Figueroa met the criteria for civil commitment under the Adam Walsh Act. In Dr. Rosell s opinion, Ofarrit-Figueroa would not have serious difficulty in refraining from sexually violent conduct. (J.A. 181-82.) Dr. Rosell rejected the notion that Ofarrit-Figueroa suffered exhibitionism. Dr. from Rosell any paraphilia, identified several features about Ofarrit-Figueroa s conduct. particularly distinguishing Most prominently, he exposed himself to individuals with whom he would have recurring contact. shock Atypically, he did not engage in exposure solely for value. Instead, Ofarrit-Figueroa was motivated by a desire to engage in sexual intercourse with the individuals to whom he exposed himself. Dr. Rosell personality (J.A. 183-85.) diagnosed but cautioned Ofarrit-Figueroa that he did not with antisocial believe that it existed to a degree that would inhibit him in refraining from engaging in sexually violent conduct. (J.A. 182.) also posed disagreed that Ofarrit-Figueroa a Dr. Rosell high risk of sexually reoffending because, in Dr. Rosell s view, he had other opportunities to sexually offend while incarcerated but chose not to act on them. (J.A. 185.) Dr. Rosell also discounted Dr. Malinek s assessment that Ofarrit-Figueroa s sexual aggression was the product of anger. Figueroa exposed intercourse. himself (J.A. Instead, he believed that Ofarritin an 192-94.) effort Dr. 12 to Rosell gain did consensual acknowledge, however, that a number of his diagnostic tools revealed factors that increased Ofarrit-Figueroa s risk of sexual recidivism. (J.A. 202-04.) In its findings of fact and conclusions of law, the district court found that the United States had demonstrated by clear and criteria initially convincing for evidence commitment noted that under that 18 Ofarrit-Figueroa U.S.C. Ofarrit-Figueroa § 4248. met The stipulated that the court he had engaged in sexually violent conduct in the past, as reflected by his criminal history. In its acknowledged analysis of disagreement the as expert to Ofarrit-Figueroa s mental illness. the testimony, appropriate the court diagnosis of The court also observed that all three of the forensic psychologists agreed that OfarritFigueroa s case was unique. The court attributed more weight to the testimony and findings of Drs. Malinek and Graney than that of Dr. Rosell. Both Drs. Malinek and Graney concluded that Ofarrit-Figueroa suffered abnormality or disorder. from a However, serious mental neither found illness, that his aggressive tendency to expose himself indecently, particularly when coupled with his desire to initiate sexual encounters, placed him squarely within any diagnostic label found in the DSM. The court therefore concluded that the evidence supported a finding of paraphilia NOS, which met the criteria for a mental 13 disorder under the Act. Specifically, the court credited Dr. Malinek s opinion, stating that: Mr. Ofarrit-Figueroa suffers from paraphilia NOS on the basis that he demonstrates paraphilic tendencies but does not cleanly meet the diagnostic criteria for exhibitionism. On that basis alone, the Court finds that Petitioner has met its burden to demonstrate by clear and convincing evidence that Mr. Ofarrit-Figueroa suffers from a serious mental illness, abnormality, or disorder. (J.A. 303 04.) Lastly, illness, the court abnormality or concluded that as a result disorder, Ofarrit-Figueroa of would the have serious difficulty in refraining from sexually violent conduct or child molestation if released. In drawing its conclusions on this element, the court relied on the teachings of United States v. Hall, 664 F.3d 456 (4th Cir. 2012). In Hall, the Fourth Circuit noted that the serious difficulty prong of § 4248 s certification proceeding refers to the degree of the person s volitional impairment, which impacts the person s ability to refrain from acting upon his deviant sexual interests. Kansas v. Hendricks, 521 U.S. 346, 358 (1997) . . . (noting that statutory requirements that couple proof of dangerousness with proof of a mental illness or abnormality serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control ). 664 F.3d at 463. After recounting in detail the sexually aggressive conduct exhibited by Ofarrit-Figueroa during his confinement within the 14 BOP, his prior criminal history, and the findings of Dr. Malinek and Dr. Graney, the court concluded that Ofarrit-Figueroa has demonstrated, even while incarcerated, a serious inability to refrain from acting upon his deviant sexual interests. It appears that he has found it particularly difficult to control his behavior. 4 (J.A. 304.) The two central issues raised on this appeal are whether the district court properly anchored its finding of substantial difficulty in refraining from sexually violent conduct to its finding of a serious mental disorder. In addition, Ofarrit- Figueroa contends that the district court erred in adopting a mental diagnosis of Ofarrit-Figueroa unsupported by the expert testimony. In cases in which the government seeks civil commitment of a convicted sex offender under the Walsh Act, this Court reviews the district court s conclusions de novo. (4th Cir. 2012). findings for clear error and its legal United States v. Wooden, 693 F.3d 440, 451 Under the clear error standard, [i]f the district court s account of the evidence is plausible in light of the record viewed in its entirety, [we] may not reverse it even though convinced that had [we] been sitting as the trier of 4 During his confinement, Ofarrit-Figueroa was cited for fifty disciplinary infractions for sexually related conduct. (J.A. 99.) 15 fact, [we] would have weighed the evidence differently. Id. (quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S. Ct. 1504, 1511 (1985)) (internal quotation marks omitted). the district court s findings are based on When determinations regarding the credibility of witnesses, we give even greater deference to the trial court s findings. Hall, 664 F.3d at 462 (quoting Anderson, 470 U.S. at 575, 105 S. Ct. at 1512). Nevertheless, while clear-error review is deferential, it is not toothless, and, therefore, we may set aside a district court s factual findings if the court failed to properly tak[e] into account substantial evidence to the contrary or its factual findings are against the clear weight of the evidence considered as a whole. Wooden, 693 F.3d at 452, 454, 462 (citations and internal quotation marks omitted). may find erroneous conviction a district only that if a we court s are mistake factual left has with been findings the Even so, we were definite committed. clearly and Id. at firm 451 (citation and internal quotation marks omitted). Focusing first on the diagnosis by the district court, Ofarrit-Figueroa contends that it is unsupported by the expert testimony. He argues that the district court fundamentally misunderstood Dr. Malinek s report and based its conclusion on that fundamental misunderstanding. (Appellant s Reply Br. 1.) According district to Ofarrit-Figueroa, the 16 court erroneously concluded that Dr. Malinek s diagnosis was paraphilia NOS, based on his exhibition-like tendencies. This Court disagrees with Ofarrit-Figueroa s characterization. While Dr. Malinek discussed exhibitionism in explaining his diagnosis, Ofarrit-Figueroa points out that Dr. Malinek rejected this diagnostic label and concluded that he fit more squarely in the category of paraphilia NOS nonconsent. This was predicated on Ofarrit-Figueroa s interest in nonconsenting partners and his belief that indecent exposure was a vehicle intended to lure sexual partners. Dr. Malinek characterized his behavior as a fundamental courtship disturbance. (J.A. 302.) The district court prefaced its impression of the evidence by emphasizing that all three of the forensic psychologists who testified described Ofarrit-Figueroa s case as unique. The court further noted an apparent consensus among the experts that Ofarrit-Figueroa suffered abnormality or disorder. from a serious mental illness, The principle disagreement distilled to differences in diagnostic labeling. The behavior pattern demonstrated by Ofarrit-Figueroa was complex with manifestations that defied placement within the established diagnostic criteria contained in the DSM. considering the In the final analysis, after thoroughly contrary viewpoint 17 of Dr. Rosell, the court found Dr. Malinek s diagnosis and reasoning to be the most persuasive. 5 In articulating its findings and conclusions, the district court found the evidence to best support the opinion of Dr. Malinek, namely that Ofarrit-Figueroa s incidents of indecent exposure, boundary violations, stalking, leering, and following a particular staff member supported this diagnosis of paraphilia NOS. (J.A. 302.) The court explained that the nomenclature NOS was employed as a residual diagnostic category throughout the DSM as a classification of individuals whose behavior does not cleanly fit into specified diagnostic categories. 302.) (J.A. The court further explained that the nonconsent specifier used to describe Ofarrit-Figueroa s paraphilia NOS was driven by two independent bases. First, he met some but not all of the criteria for an exhibitionism diagnosis. Second, and perhaps more importantly, Dr. Malinek utilized the diagnosis specifier nonconsent to reflect Ofarrit-Figueroa s anger and . . . need to denigrate women and empower himself. (J.A. 303.) Although the court expressed some reservation in embracing the nonconsent specifier, it found the explanation 5 sufficient to support a Dr. Graney s conclusions paralleled those of Dr. Malinek in most respects, although she preferred a slightly different diagnostic label. 18 paraphilia NOS diagnosis and to meet the criteria for mental disorder under the Act. The district court further concluded that Ofarrit-Figueroa demonstrated paraphilic tendencies but does not cleanly meet the diagnostic criteria for exhibitionism. the Court finds that Petitioner On that basis alone, has met its burden to demonstrate by clear and convincing evidence that Mr. OfarritFigueroa suffers from a serious mental illness, abnormality, or disorder. (J.A. 303 04.) This Court finds no error in the district court s conclusions. In reviewing petitions for civil commitment under the Adam Walsh Act, the science of psychiatry informs but control the court s ultimate legal determinations. does not Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 871 (2002) (citations omitted). Moreover, the Act contains no language purporting to confine the universe of qualifying mental impairments within clinical or pedagogical parameters. 701 F.3d 128, 136 (4th Cir. United States v. Caporale, 2012). Qualifying mental abnormalities can encompass conditions falling outside the DSM or other well-defined clinical standards. This is such a case. Irrespective of diagnostic labeling, the evidence was clear and convincing mental illness, that Ofarrit-Figueroa abnormality or suffered disorder. from The a serious diagnosis of paraphilia not otherwise specified standing alone is sufficient 19 to satisfy the requirements of the Act. See United States v. Carta, 592 F.3d 34, 40 (1st Cir. 2010). It appears from the district court s findings of fact and conclusions of law that the addition of the phrase with exhibitionist tendencies are words of explanation rather than qualification. of the psychologists Ofarrit-Figueroa s testifying behavior in was this case Although each concluded inconsistent with that typical exhibitionism, each acknowledged that his indecent exposure was a critical diagnostic element. Given this behavioral characteristic, common to the findings of all experts, it was certainly understandable that the court added this descriptive language to its findings. The district court was clearly guided by the content of the expert testimony, particularly that of Dr. Malinek and Dr. Graney, but was not obligated to accept their diagnostic labels. As the Supreme Court stressed in Kansas v. Hendricks, [n]ot only do psychiatrists disagree widely and frequently on what constitutes mental illness, . . . but the Court itself has used a variety of expressions to describe the mental condition of those properly subject to civil confinement. 117 S. Ct. omitted). at 2080 (citations and internal 521 U.S. at 359, quotation marks At that stage of the analysis, the district court s task was to determine whether the evidence supported clearly and convincingly that Ofarrit-Figueroa 20 suffered from a serious mental illness, abnormality legal conclusions and or disorder. factual The court s were findings trial not clearly erroneous. The final, and perhaps closer issue, is whether the district court adequately connected its finding of substantial difficulty in refraining from sexually violent conduct to its diagnosis of a serious mental disorder. 4248 s certification person s ability volitional to interests. refrain Hall, proceeding refers impairment, from 664 quotation marks omitted). F.3d to which acting at upon 463 This prong of the § the degree impacts his the and the person s deviant (citations of sexual internal It is a forward-looking inquiry which attempts to predict future behavior and the extent to which an inmate is controlled by his illness. 686 F.3d 265, 275 (4th Cir. 2012). United States v. Francis, As courts have recognized, this is the most challenging strand of the Act criteria for civil commitment. The question of whether a person is sexually dangerous is by no means an easy one, and there is no crystal ball that an examining expert or court might consult to predict conclusively whether Shields, a past 649 offender F.3d 78, will 89 recidivate. (1st Cir. United 2011). States Whether v. the individual is mentally ill and dangerous either to himself or others . . . turns on the meaning of the facts which must be 21 interpreted by expert psychiatrists and psychologists. Addington v. Texas, 441 U.S. 418, 429, 99 S. Ct. 1804, 1811 (1979) (emphasis in original). In the end, however, it is for the factfinder to decide among reasonable interpretations of the evidence and determine the weight accorded to expert witnesses. Shields, 649 F.3d at 89 (citations and internal quotation marks omitted). In reviewing the district court s findings on the volitional impairment prong, it is important to be mindful that [e]valuating the credibility of experts and the value of their opinions is a function best committed to the district courts . . . . An appellate court should be especially reluctant to set aside a finding conflicting based expert on the testimony. trial court s Hendricks v. evaluation Central of Reserve Life Ins. Co., 39 F.3d 507, 513 (4th Cir. 1994). The district court discounted the opinion advanced by Dr. Rosell as inconsistent pattern of behavior. with Ofarrit-Figueroa s demonstrated Dr. Rosell placed considerable weight on the fact that Ofarrit-Figueroa had not engaged in any sexually assaultive evaluation. behavior in the years immediately preceding his However, during almost that entire time period, Ofarrit-Figueroa was in segregated facility isolated from other people. 22 lockdown at a supermax In concluding difficulty in that refraining Ofarrit-Figueroa from engaging would in have serious sexually violent conduct as a result of serious mental illness, abnormality or disorder, the district court clearly considered and weighed the testimony of all three psychologists, reviewed the actuarial and psychological tests performed, and attached considerable weight to his troubling history of sexual deviance. In the district court s findings of fact and conclusions of law, as a predicate to its conclusions under this prong, the court detailed OfarritFigueroa s sexually violent conduct, including committing a rape at knife point, sexually assaulting a correctional officer, and over forty incident reports since 1999 for behavior, including making sexual proposals or threats, engaging in sexual acts and indecent exposure. 6 In concluding difficulty in (J.A. 304-05.) that refraining Ofarrit-Figueroa from sexually would violent have serious conduct if released, the district court carefully analyzed the actuarial instruments relied upon by the expert witnesses. Collectively viewed in light of Ofarrit-Figueroa s individual circumstances, the court found these actuarial 6 assessment results to be As the United States Supreme Court recognized in Hendricks, ʽprevious instances of violent behavior are an important indicator of future violent tendencies. 521 U.S. at 358, 117 S. Ct. at 2080 (quoting Heller v. Doe, 509 U.S. 312, 323, 113 S. Ct. 2637 (1993)). 23 consistent with its conclusion high risk of recidivism. linked the volitional that Ofarrit-Figueroa posed a The precision with which the court component to a well-defined mental disorder, however, was necessarily governed by the inability of the experts to diagnostically capture Ofarrit-Figueroa s aberrant behavior. As this Court has previously noted, the task of assessing the likelihood of future sexually violent conduct if OfarritFigueroa precision. is released, does not lend itself to scientific The district court s findings represent a logical and reasonable interpretation of the evidence, and we cannot say that the district court clearly erred in finding that OfarritFigueroa is sexually dangerous within the meaning of the Adam Walsh Act. AFFIRMED 24
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