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United States v. Whiterock

United States District Court, E.D. North Carolina, Western Division

April 12, 2019

UNITED STATES OF AMERICA, Petitioner,
v.
MICHAEL GREY WHITEROCK, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This matter is before the court on respondent's motion for discharge hearing[1] (DE 95) and petitioner's motion for discovery and authorization for expert to conduct examination of respondent (DE 99). The motions have been fully briefed and are ripe for ruling. For the reasons stated below, the court grants the motions.

         BACKGROUND

         On July 31, 2012, the court civilly committed respondent as a sexually dangerous person pursuant to the Adam Walsh Child Protection and Safety Act of 2006, 18 U.S.C. § 4248. Since that time, respondent has been committed to the custody of the United States Attorney General for sex offender treatment, housed at the Federal Correctional Institution in Butner, North Carolina.

         In November and December 2018, respondent arranged for Dr. Joseph Plaud, a clinical psychologist, to evaluate respondent's current sexual dangerousness. Dr. Plaud examined respondent and thereafter authored evaluation report opining respondent no longer meets criteria for commitment under § 4248. Based on this report, respondent filed the instant motion for discharge hearing on February 4, 2019, pursuant to 18 U.S.C. § 4247(h).

         On February 21, 2019, petitioner filed response to the motion for discharge hearing, stating petitioner does not object to such hearing. That same day, petitioner filed the instant motion for discovery and authorization for expert to conduct examination of respondent (“motion for discovery”). As noted, the motion was fully briefed.

         DISCUSSION

         Petitioner requests 90-day period of discovery prior to the discharge hearing. Petitioner seeks to reopen discovery so its retained expert can examine respondent and prepare evaluation report addressing whether respondent currently meets criteria for commitment. Petitioner also intends to conduct discovery related to Dr. Plaud's evaluation, respondent's progress in treatment, and respondent's discharge plans. Respondent objects to reopening discovery. Respondent argues that permitting additional discovery period would “render obsolete the statutory mandate, ” purportedly set forth in 18 U.S.C. § 4247(h), that respondent may petition for discharge hearings every 180 days. (Resp't's Opp'n (DE 100) at 3-4). Respondent also argues additional discovery is unnecessary where respondent has been in petitioner's custody since August 2012 and petitioner has access to his treatment records and annual forensic evaluations addressing respondent's sexual dangerousness.

         The court begins with respondent's argument that permitting prehearing discovery period would violate his right to file motion for discharge hearing every 180 days, which is purportedly “mandated” by § 4247(h). Prehearing discovery period in this case would extend the 180-day interval because a person committed under § 4248 cannot file renewed motion for discharge hearing within 180 days of a court determination regarding his sexual dangerousness. 18 U.S.C. § 4247(h). If the court grants the instant motion for discovery, the court's ruling on respondent's motion for discharge will be delayed and respondent will not be permitted to file another motion for discharge hearing within 180 days of the motion he filed on February 4, 2019.

         “[I]n deciding questions of statutory interpretation, [courts begin] with the text of the statute.” Othi v. Holder, 734 F.3d 259, 265 (4th Cir. 2013) (internal citations omitted). “Unless Congress indicates otherwise, [courts are to] give statutory terms their ordinary, contemporary, common meaning.” Id. (internal quotations omitted). To determine the plain meaning of a statute, courts “not only look to the language itself, but also the specific context in which that language is used, and the broader context of the statute as a whole.” Id. (internal quotations omitted). “It is an axiom of statutory construction that courts are obliged to give effect, if possible, to every word used by the legislature.” In re Kitchin Equip. Co. of Va., Inc., 960 F.2d 1242, 1247 (4th Cir. 1992) (internal citations omitted).

         Here, the statute provides:

Discharge.--Regardless of whether the director of the facility in which a person is committed has filed a certificate pursuant to the provisions of subsection (e) of section . . . 4248 . . . counsel for the person or his legal guardian may, at any time during such person's commitment, file with the court that ordered the commitment a motion for a hearing to determine whether the person should be discharged from such facility, but no such motion may be filed within one hundred and eighty days of a court determination that the person should continue to be committed. A copy of the motion shall be sent to the director of the facility in which the person is committed and to the attorney for the Government.

18 U.S.C. § 4247(h). Section 4247(h) states respondent may petition the court for discharge hearing “at any time” provided such motion is not filed within 180 days of prior court determination that respondent meets criteria for commitment. See id. The 180-day period thus begins to run on the date of the most recent court determination finding respondent should be committed, and, during that 180-day period, respondent may not file another motion for discharge hearing. See id. But the statute does not establish a 180-day “review period” or permit respondent to file motion for discharge hearing every 180 days. See United States v. Francis, 686 F.3d 265, 268 (4th Cir. 2012) (“A committed individual may seek periodic review of his confinement [pursuant to § 4247(h)] no sooner than 180 days from the most recent determination by the district court.”). Accordingly, the plain language of the statute does not support respondent's position that he is entitled to petition the court for discharge hearing at 180-day intervals.

         As to respondent's argument that the requested discovery is unnecessary and duplicative because respondent is in custody at the Federal Bureau of Prisons (“BOP”), the court disagrees. As respondent himself has noted, at the discharge hearing, “the committed person enjoys all of ‘the same rights to counsel, to present evidence, and to subpoena and cross-examine witnesses as afforded him at the commitment hearing.'” (Resp't's Mot. for Review Hearing (DE 95) at 2 (citing United States v. Comstock, 627 F.3d 513, 516 (4th Cir. 2010)). At the hearing, the court must determine, based on preponderance of the evidence standard, whether the committed person remains sexually dangerous and subject to ...


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