                               PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 12-6146


UNITED STATES OF AMERICA,

                  Petitioner - Appellee,

           v.

MIKEL BOLANDER,

                  Respondent - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Bernard A. Friedman,
Senior District Judge, sitting by designation.   (5:07-hc-02032-
FL-JG)


Argued:   May 15, 2013                         Decided:   July 5, 2013


Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by published opinion. Judge Hamilton wrote the opinion
in which Judge Niemeyer and Judge Keenan joined.


ARGUED:     Walter Hoytt Paramore, III, Jacksonville, North
Carolina, for Appellant.  Edward D. Gray, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.      ON
BRIEF: Thomas G. Walker, United States Attorney, Raleigh, North
Carolina, for Appellee.
HAMILTON, Senior Circuit Judge:

        The     government       certified       Mikel    Bolander          as   a    “sexually

dangerous person” under the Adam Walsh Act, 18 U.S.C. § 4248

(the    Act).        In    the    ensuing      civil     commitment         proceeding,    the

district court found that the government had proven by clear and

convincing evidence that Bolander is a sexually dangerous person

under the Act.            As a result, he was committed to the custody of

the Attorney General of the United States.                          On appeal, Bolander

challenges this ruling, and others, by the district court.                                  We

affirm.



                                                 I

                                                 A

        The Act provides for the civil commitment of a “sexually

dangerous        person”     following         the     expiration      of    their     federal

prison sentences.            Id. § 4248(a).             A sexually dangerous person

is   one      “who   has    engaged       or    attempted    to     engage       in   sexually

violent         conduct    or     child     molestation       and      who       is   sexually

dangerous to others.”              Id. § 4247(a)(5).          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.”                                 Id.

§ 4247(a)(6).

                                               - 2 -
      The Attorney General, his designee, or the Director of the

Federal Bureau of Prisons (BOP) may initiate a § 4248 commitment

proceeding in the district court for the district in which the

person is confined by filing a certification that the person is

sexually     dangerous       within      the    meaning      of     the    Act.         Id.

§ 4248(a).        The filing automatically stays the release of the

person from custody pending a hearing before the district court.

Id.       “If,   after    the   hearing,       the   court       finds    by    clear   and

convincing       evidence    that    the   person      is    a    sexually       dangerous

person, the court shall commit the person to the custody of the

Attorney General.”          Id. § 4248(d). 1

                                           B

      Bolander      was     born    in   Minnesota      in       1964.         During   his

adolescence, he abused alcohol and marijuana.                            At the age of

twelve, he began to experience attraction to prepubescent boys,

and   he   began    to    collect     pictures       from   art    books       and   nudist


      1
       If an order of commitment is obtained, the Attorney
General must first attempt to release the person to “the State
in which the person is domiciled or was tried if such State will
assume responsibility for his custody, care, and treatment.” 18
U.S.C. § 4248(d).       However, if the Attorney General is
unsuccessful in this effort, he “shall place the person for
treatment in a suitable facility, until” a state assumes
responsibility or until “the person’s condition is such that he
is no longer sexually dangerous to others, or will not be
sexually dangerous to others if released under a prescribed
regimen of medical, psychiatric, or psychological care or
treatment.” Id.



                                         - 3 -
magazines at that time.              His mother described her son as a

loner, who typically had no more than one male friend at a time.

     As    a   teenager,    Bolander        was   suspended       from   school       for

selling marijuana, and his parents placed him in a substance

abuse    program    which   he     failed    to   complete.        At    the    age    of

sixteen, his parents divorced.               His mom moved to California and

remarried, and Bolander lived in California with his mother,

sister, and step-father.

     At the age of nineteen, he enlisted in the Navy and was

stationed in San Diego.             Although he refrained from marijuana

use while in the Navy, he continued to abuse alcohol.                           He was

referred to a Navy psychologist after pedophilic literature was

found in his foot locker.             Bolander received approximately six

counseling     sessions     over    the     course    of    six   months       and    was

discharged from treatment after he was transferred to a new duty

station.

     After his honorable discharge in late 1985 or early 1986,

Bolander continued to abuse alcohol. 2                     At the same time, he

became preoccupied with his sexual urges and desires for young

boys,    and   he   began   to     collect    child   pornographic        films       and

pictures by contacting a distributor of such material.                         Bolander

     2
       In May 1986, Bolander was convicted of driving while under
the influence of alcohol (DUI). He was fined $675 and sentenced
to time-served (two days).



                                       - 4 -
began to visit arcades and other places where young boys were

present, which would enable him to befriend a potential victim.

      In December 1988, at the age of twenty-four, Bolander was

charged     with   numerous       sexual      offenses    in   San   Diego       County

(California) Superior Court.                He pled guilty to one count of

engaging in a lewd and lascivious act with a child under the age

of fourteen.       The California state court records indicate that

Bolander molested an eleven-year old boy over a six-month period

at   his    residence    and     place   of    employment.      Such      molestation

involved both oral and anal sex, and Bolander often videotaped

and took pictures of these encounters.                  Bolander kept the videos

and pictures of these encounters, along with a host of other

child pornographic material he had obtained, at his residence.

In April 1989, he was sentenced to six years’ imprisonment.

      While he was incarcerated in the California Department of

Corrections, Bolander was transferred on April 12, 1990 to the

Sex Offender Treatment and Evaluation Project at the Atascadero

State      Hospital     (ASH).     During       his    treatment,    he    expressed

rationalizations         for       his        illicit     behaviors        and      his

“‘philosophy’” about consensual relationships with young boys.

(J.A. 494).        He stated that boys as young as nine-years old

“‘know what homosexuality is and know what they are doing.’”

(J.A.      494).      During      his    time     at    ASH,   Bolander     stole    a

substantial amount of pornographic stimulus material from the

                                         - 5 -
program (in total, twenty-two magazines, 297 loose pictures, six

35 mm black and white slides, two booklets, and two flyers).                           He

was arrested on June 6, 1991, but the state prosecutors declined

to prosecute the case.               Bolander was paroled in May 1992 after

serving a little more than three years. 3

       While     on      parole,     Bolander       was    required       to     complete

outpatient sex offender therapy.                   Upon completion, the program

facilitator         opined    that    Bolander      was    in    need    of    long-term

treatment, that his problem had not been fully resolved, and

that there was continued risk for relapse.                      Reportedly, Bolander

became      angry    and    agitated      when    discussing     the    course    of   his

treatment.          Such conduct prompted his parole officer to search

his residence.             There the parole officer discovered computer

disks that contained child pornography, letters indicating how

to   import     and     export     child    pornography,        pornographic       videos

featuring       minor      males,     a    copy    of     the   video     of     Bolander

performing sexual acts with the boy who was the victim of the

1988       conviction,     and   magazines,       posters,      and    books   featuring

nude boys.




       3
        Upon   release   from   the  California   Department of
Corrections, Bolander enrolled in college, studying computer
programming. He maintained a 3.37 GPA and completed thirty-six
credit hours before withdrawing in the Fall of 1994.



                                           - 6 -
     The   discovery   of   this   material    led   to   the   January     1995

revocation of Bolander’s state parole.          It also formed the basis

of a February 1996 arrest on federal charges for distribution of

child pornography and possession of child pornography.               Bolander

pled guilty to the distribution offense in the United States

District Court for the Southern District of California and was

sentenced to thirty-seven months’ imprisonment.

     While in federal prison, Bolander voluntarily participated

in the Sex Offender Treatment Program (SOTP) at FCI-Butner.                  His

participation, which began on November 5, 1997, required him to

sign an “INFORMED CONSENT FORM.”        (J.A. 168).       In relevant part,

the form provides:

     I hereby consent to voluntary participation in the
     Sex-Offender Treatment Program and agree to adhere to
     all conditions stipulated in this document.        My
     signature     below    acknowledges   my    voluntary
     participation in the program.

     I understand that I may withdraw from treatment at any
     time.    I understand that my confidentiality will be
     protected at all times, except in cases where there is
     potential harm to myself or others, or when the
     security    of    the   correctional   institution  is
     threatened.    I also understand that the staff of the
     SOTP and the Federal Bureau of Prisons, Department of
     Justice, and United States Probation Office may share
     information regarding my case.

(J.A. 168).

     Bolander’s participation in the SOTP was hampered by his

hostility,    argumentativeness,      and   arrogance.          According    to

psychological   records,    he     displayed   the   following      behaviors

                                    - 7 -
while    in   treatment:       asserting      that    the    victim     initiated   the

sexual    contact;       maintaining     that     child      molestation      was   not

harmful and that the worst children might suffer was some slight

embarrassment; admitting at one point that he would continue to

molest     boys,    if    it    were    not     for    the    legal     consequences;

declaring that he was the victim of societal persecution for his

sexual    attraction      to    children;     refusing       to   complete    homework

assignments; insisting that therapeutic assignments were of no

benefit;      and   a    lack    of    respect        towards     treatment     staff.

Bolander      was   manipulative       during    treatment        and   “absolute[ly]

fail[ed] to empathize with his victims.”                     (J.A. 536) (internal

quotation marks omitted).              As a result, he was expelled from

treatment in April 1998 by Dr. Andres Hernandez, the Director of

SOTP at that time. 4

        Bolander was released from federal prison in October 1998.

While on supervised release, Bolander was indicted on federal

child pornography charges in the United States District Court

for the Western District of New York.                  These charges arose after

it was discovered that Bolander was exchanging child pornography

with a co-defendant that resided in New York.                      In October 1999,


     4
       Two reports generated at the SOTP are relevant here. The
first is the “Psychosexual Evaluation” dated January 29, 1998;
the second is the SOTP “Discharge Summary” dated April 13, 1998.
(J.A. 518).



                                        - 8 -
Bolander pled guilty to one count of attempting to receive child

pornography and was sentenced to twelve months’ imprisonment.

     Following      his   release   from      federal    custody,       Bolander’s

supervised    release     again   was    rescinded     following    a    May    2001

search   of   his   residence.          The   search    was   prompted     by   the

probation officer’s concern that Bolander was living in close

proximity to children and that he refused to participate in a

recommended      treatment   program.         During    the    search,    it    was

discovered that Bolander maintained a second phone line through

which he obtained unauthorized Internet access.                 An analysis of

Bolander’s computer equipment revealed a large cache of child

pornography. 5      Most of the child pornography seized involved

prepubescent boys, some as young as toddlers. 6               The analysis also




     5
        The probation officer was informed that Bolander’s
computer equipment contained “‘possibly the largest seizure of
child pornography recorded in San Diego County.’” (J.A. 527).
     6
       Bolander meticulously categorized his collection of child
pornography.   He used a ratings system (“G-clothed, non-sexual;
PG-clothed,   sexual;   R-nude,  non-sexual   (nudist);   X-nude,
provocative    (lewd   poses);    XX-nude,   sexual    (erection,
masturbation, kissing); and XXX-nude, hardcore sex (sucking,
f***ing, licking)),   and separated the materials based on the
age of the participants (“0-2 years old; 3-5 years old; 6-8
years old, and so on”). (J.A. 504, 527).



                                    - 9 -
revealed that Bolander was participating in Internet news groups

and chat rooms that catered to pedophiles. 7

         As    a   result     of    the    search,       more    federal      charges      were

brought against Bolander.                   He was convicted of possession of

child pornography in February 2002 and was sentenced to sixty

months’ imprisonment.               This sentence was imposed consecutive to

two sentences totaling twenty-six months that Bolander received

for supervised release violations.

         Bolander’s projected release date from prison (with good-

time credits factored) was February 9, 2007.                            On that day, the

BOP certified that he was a “sexually dangerous person” pursuant

to   §       4248(a),   automatically           staying        his   release    pending      an

evidentiary hearing.                According to the certification, based on

psychological         assessments         of    Bolander,       he   would     have   serious

difficulty         refraining       from    sexually      violent       conduct    or      child

molestation if released.

         The procedural history of this case gets muddled following

the filing of the certification, as it took nearly five years to

hold         the   evidentiary      hearing.            Such    delay    is    relevant      to

Bolander’s due process claim, so we will set forth that relevant

procedural          history    in    Part       IIIB     of    the   opinion.         At    the

         7
       The record reflects that Bolander endorsed pro-pedophilic
beliefs.   He believes adult-child sexual relations are natural
and beneficial.



                                               - 10 -
conclusion       of    the         January    19,       2012    evidentiary        hearing,      the

district court found that the government had proven by clear and

convincing       evidence           that     Bolander      was     a   “sexually         dangerous

person” under the Act.                Bolander noted this timely appeal.



                                                   II

                                                    A

        To   obtain            a    commitment          order     against       Bolander,        the

government was required to establish three elements by clear and

convincing       evidence.             First,      the     government        was    required      to

establish that Bolander had “engaged or attempted to engage in .

.   .   child    molestation”           in    the       past,    18    U.S.C.      § 4247(a)(5).

Next, the government was required to prove that he currently

“suffers        from       a       serious     mental          illness,      abnormality,        or

disorder,”       id.       §       4247(a)(6).           Finally,      the    government         was

required to show that Bolander, as a result of the illness,

abnormality,          or   disorder,         “would       have     serious       difficulty      in

refraining from . . . child molestation if released.”                                   Id.

        “[C]lear and convincing has been defined as evidence of

such weight that it produces in the mind of the trier of fact a

firm belief or conviction, without hesitancy, as to the truth of

the     allegations        sought       to    be    established,          and,     as    well,    as

evidence that proves the facts at issue to be highly probable.”

Jimenez v. DaimlerChrysler Corp., 269 F.3d 439, 450 (4th Cir.

                                              - 11 -
2001)    (citations,    alterations,        and   internal     quotation   marks

omitted).

       On appeal, 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).                   “A finding

is    ‘clearly   erroneous’        when   although   there     is   evidence   to

support it, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been

committed.”      United States v. United States Gypsum Co., 333 U.S.

364, 395 (1948).         “This standard plainly does not entitle a

reviewing court to reverse the finding of the trier of fact

simply because it is convinced that it would have decided the

case differently.”       Anderson v. Bessemer City, 470 U.S. 564, 573

(1985).       “If the district court’s account of the evidence is

plausible in light of the record viewed in its entirety, the

court of appeals may not reverse it even though convinced that

had it been sitting as the trier of fact, it would have weighed

the evidence differently.”          Id. at 573–74.

       “When findings are based on determinations regarding the

credibility of witnesses,” we give “even greater deference to

the trial court’s findings.”          Id. at 575.    We do this because

       only the trial judge can be aware of the variations in
       demeanor and tone of voice that bear so heavily on the
       listener’s understanding of and belief in what is
       said. This is not to suggest that the trial judge may
       insulate his findings from review by denominating them

                                      - 12 -
     credibility determinations, for factors other than
     demeanor and inflection go into the decision whether
     or not to believe a witness.    Documents or objective
     evidence may contradict the witness’ story; or the
     story itself may be so internally inconsistent or
     implausible on its face that a reasonable factfinder
     would not credit it. Where such factors are present,
     the court of appeals may well find clear error even in
     a   finding   purportedly  based   on   a  credibility
     determination.   But when a trial judge’s finding is
     based on his decision to credit the testimony of one
     of two or more witnesses, each of whom has told a
     coherent and facially plausible story that is not
     contradicted by extrinsic evidence, that finding, if
     not internally inconsistent, can virtually never be
     clear error.

Id. (citations and alterations omitted).     As with lay witnesses,

“[e]valuating the credibility of experts and the value of their

opinions is [also] a function best committed to the district

courts, and one to which appellate courts must defer,” and we

“should be especially reluctant to set aside a finding based on

the trial court’s evaluation of conflicting expert testimony.”

Hendricks v. Central Reserve Life Ins. Co., 39 F.3d 507, 513

(4th Cir. 1994).

                                 B

     Here, there is no dispute that Bolander engaged in a past

act of child molestation, as evidenced by his prior conviction

in California state court for engaging in a lewd and lascivious

act with a child under the age of fourteen.      Thus, the district

court correctly found that the government established the first

element   of   sexual   dangerousness   by   clear   and   convincing


                               - 13 -
evidence.     18 U.S.C. § 4247(a)(5).                  There is also no dispute

that Bolander presently “suffers from a serious mental illness,

abnormality,     or   disorder.”             Id.    § 4247(a)(6).        Bolander     was

diagnosed by several clinical psychologists as suffering from

pedophilia   and      antisocial        personality         disorder,    and   Bolander

does not challenge these findings on appeal.                          Accordingly, the

district court correctly found that the government established

the second element by clear and convincing evidence.

      Thus, the outcome of this appeal largely turns on whether

the   district   court     erred        in   finding    that    the     government    had

proven, by clear and convincing evidence, that Bolander, as a

result of these disorders, “would have serious difficulty in

refraining    from     .   .   .   child       molestation      if     released”     from

custody.    Id. § 4247(a)(6).

      The   final     element      of    the       sexual   dangerousness      analysis

turns on 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); Hall, 664 F.3d at 463.                         A person’s lack of

control or inability to control his behavior

      will not be demonstrable with mathematical precision.
      It is enough to say that there must be proof of
      serious difficulty in controlling behavior. And this,
      when viewed in light of such features of the case as
      the nature of the psychiatric diagnosis, and the
      severity of the mental abnormality itself, must be
      sufficient   to  distinguish   the   dangerous sexual

                                         - 14 -
      offender whose serious mental illness, abnormality, or
      disorder subjects him to civil commitment from the
      dangerous but typical recidivist convicted in an
      ordinary criminal case.

Kansas      v.    Crane,   534   U.S.     407,    413   (2002).          “Whether     [an]

individual is mentally ill and dangerous to either himself or

others and is in need of confined therapy turns on the meaning

of the facts which must be interpreted by expert psychiatrists

and   psychologists.”            Addington       v.   Texas,     441    U.S.   418,    429

(1979).

                                            C

      Three       psychologists        evaluated      Bolander,        prepared   expert

reports, and testified at the evidentiary hearing, two on behalf

of the government, Dr. Christopher North and Dr. Lela Demby, and

one on behalf of Bolander, Dr. John Warren. 8                       Bolander testified

on his own behalf.               There were no objections raised to the

qualifications of the expert witnesses, and the district court

found each expert to be qualified to offer opinions on the issue

of    Bolander’s       sexual      dangerousness.              In      reaching     their

respective         opinions,     the    experts       utilized      actuarial     tests,

psychological tests, and their clinical judgment.                        Of note, each

of    the        psychologists     used     the       reports       generated     during

Bolander’s participation in the SOTP at FCI-Butner.                            Dr. North

      8
       Dr. North and Dr. Warren are in private practice.                               Dr.
Demby is employed by the BOP.



                                         - 15 -
and Dr. Demby testified that Bolander met the criteria for civil

commitment under the Act.           Dr. John Warren declined to offer an

opinion on the third element of sexual dangerousness. 9

                                          1

       In forming his opinion, Dr. North considered the voluminous

documents referenced in his reports as well as other evidence.

Such       evidence    included     information     related      to   Bolander’s

criminal      history,    medical    history,     social   history,    substance

abuse history, institutional adjustment, and other records.                  Dr.

North also considered the forensic evaluations of Dr. Demby and

Dr. Warren.       Dr. North’s report was prepared on March 14, 2011

and    updated    on     October    11,   2011.      His   testimony    at   the

evidentiary      hearing     was    consistent     with    the    findings   and

conclusions contained in his report and updated report.

       Dr. North determined that Bolander had previously engaged

in child molestation.         He also determined that Bolander suffers

from pedophilia, male exclusive type.               According to Dr. North,



       9
       According to Dr. Warren, as a psychologist, it was not his
place to offer an opinion on the third element.      He testified
the third element was “legal jargon” and an “ultimate issue”
created by the courts, and that the third element did not “mesh
well with medical or psychological nomenclature.”     (J.A. 399).
As noted below, Dr. Warren did opine, however, that Bolander had
volitional control over his actions, as evidenced by the period
of time that had elapsed since Bolander’s only molestation
offense.



                                      - 16 -
Bolander “‘lacks any internal prohibitions against engaging in

sexual activity with a child.’”           (J.A. 190).

     In     determining    whether        Bolander     would     have     serious

difficulty refraining from sexually violent conduct, Dr. North

used several risk tools that have at least a moderate degree of

accuracy.     Application    of    such    tools     placed    Bolander   in   the

comparison group of offenders with a moderate-high to high risk

of reoffending.

     Dr.    North   used   three   actuarial       scales     aimed   mainly   at

examining static risk factors for sex offender risk assessment:

the Static–99R, the Static–2002R, and the Minnesota Sex Offender

Screening    Tool–Revised     (MnSOST–R). 10           Static    risk     factors

typically are historical and do not change.                   For example, the

Static-99R examines ten static risk factors and gives scores for

each category. 11   Such tests enabled Dr. North to calculate group

recidivism rates of sexual offenders considered by him to be



     10
        According to Dr. North, the use of multiple “actuarial
measures can provide increased confidence in those results.”
(J.A. 540).
     11
        The ten static risk factors examined by the Static-99R
are: (1) age at release from instant sex offense; (2) past
habitation with a lover for at least two years; (3) convictions
for index non-sexual violence; (4) convictions for prior non-
sexual violence; (5) prior sex offenses; (6) prior sentencing
dates; (7) convictions for non-contact sex offenses; (8) any
unrelated victims; (9) any stranger victims; and (10) any male
victims.



                                   - 17 -
most    analogous    to    Bolander,       and    he   found    a     group    rate     of

recidivism of 42% within ten years under Static–99R, 40% within

ten years under Static–2002R, and 20% within six years under

MnSOST–R.

       In addition to these static risk tools, Dr. North also used

the Stable-2007, a dynamic risk assessment tool.                        According to

Dr. North, unlike static factors, which typically are historical

and do not change, a dynamic risk factor refers to something

that has the capacity to change over time, for example with

treatment.      The presence of dynamic risk factors increases an

offender’s     risk.        The    following      dynamic      risk    factors        were

considered by Dr. North: (1) significant social influences; (2)

intimacy deficits; (3) sexual self-regulation; (4) cooperation

with supervision; and (5) general self-regulation.

       Dr.   North   determined      that       Bolander’s     significant        social

influences    were     “minimal     or    primarily     negative       in     that    they

consist of other men interested in child pornography.”                               (J.A.

552).    Dr. North recognized Bolander’s close relationship with

his mother and step-father, but opined that these relationships

never exerted any significant influence over his sexual life or

behavior.

       Dr.   North     determined        that     intimacy      deficits        were     a

significant     risk      factor   for     Bolander     because       he    had      never

established or maintained a committed, reciprocal relationship

                                         - 18 -
with a partner that was not abusive.                        Dr. North noted that

Bolander had indicated in the past that he was not interested in

developing intimate or sexual relationships with adults.                               Dr.

North    also   noted     Bolander’s      lack    of       remorse      and    that    his

dependency needs may motivate him to seek contact with other

children.

       According to Dr. North, Bolander had a “severe problem[]”

with sexual self-regulation.             Dr. North noted that Bolander had

been    obsessed   with       child   pornography      for    many    years     and    had

collected child pornography while on probation and parole.                              He

further noted that Bolander “has shown a high degree of sexual

preoccupation      and    is     exclusively      attracted        to     prepubescent

boys.”    (J.A. 553).

        Dr. North determined that Bolander’s lack of cooperation

with    supervision      was    problematic.          He   noted     that     Bolander’s

institutional behavior was “fairly good,” but was poor while on

probation/parole,        as    demonstrated      by    his    numerous        violations

while on supervised release.            (J.A. 553).

        With regard to general self-regulation, Dr. North indicated

that Bolander’s problem-solving skills were poor because he is

unwilling to meaningfully address his pedophilia and obsessive

involvement     with      child       pornography.           Overall,         Dr.     North

described Bolander’s general-self regulation as “poor.”                               (J.A.

553).

                                        - 19 -
     Dr. North also examined potentially protective factors.               A

protective factor decreases the risk of future sexual offending.

The three potentially protective factors examined by Dr. North

are: (1) having been in the community for ten years without

sexually reoffending; (2) having less than fifteen years left to

live due to illness or physical conditions that significantly

decrease the motivation and/or ability to sexually reoffend; and

(3) very advanced age.        Dr. North opined that none of these

factors were particularly mitigating for Bolander.              Bolander had

no medical problems that would serve to decrease his ability or

motivation to commit a new sexual offense.          Although it had been

more ten years since Bolander’s last hands-on conviction, Dr.

North   noted   that   Bolander’s    obsession   with   child    pornography

placed him in positions where there was considerable risk to

children.   Dr. North further noted that Bolander chose to live

close to children, an act which placed him at high risk of

reoffending.     He also noted that Bolander’s total time in the

community since his last hands-on conviction was limited, and

during this time Bolander was under supervision, which made it

more difficult for him to make contact with a child.

     In the “SUMMARY” and “CONCLUSION” sections of his March 14,

2011 report, Dr. North stated:

     Bolander is a 47-year-old pedophile who is exclusively
     attracted to boys.   He was convicted of molesting an
     11-year-old boy in California in 1989 and sentenced to

                                    - 20 -
     six years in prison.   Since then he has obsessively
     collected child pornography despite repeated arrests
     and returns to custody for this behavior.         His
     pedophilia is ego-syntonic meaning he accepts it and
     is not distressed by his sexual attraction to boys.
     He believes it is society that has the problem and
     told Dr. MacLaren in 1989 that boys over the age nine
     or ten “know what homosexuality is and know what they
     are doing.” Mr. Bolander is attracted to boys between
     the ages of 6 and 12.

     The critical issue in this case is Mr. Bolander’s risk
     of committing a new “hands-on” sex offense.      Although
     he obtained moderate to high scores on the actuarial
     instruments used to assess risk for sexual reoffense,
     these instruments do not predict the type of sexual
     offense to be committed and he clearly appears to be
     more likely to commit a “hands-off” offense (involving
     pornography) than a “hands-on” crime.      On the other
     hand, he has not been in the community for very long
     since paroling for his molest offense in 1992 and was
     supervised   closely   enough   that   it  was   probably
     difficult for him to establish contact with a child.
     It was easier for him to believe that he could escape
     detection by collecting pornography. . . . He is 47
     years old and appears to be in good health, and
     barring any unforeseen circumstances, his opportunity
     time (at risk) could be 30 to 40 years.        Given the
     lack of any internal prohibitions against sexual
     activity with a child and Mr. Bolander’s intense
     sexual   interest   in   male   children,  it   is   this
     evaluator’s opinion that eventually Mr. Bolander is
     indeed likely to commit a new “hands-on” sex offense
     with a prepubescent boy.      His pedophilia will cause
     him serious difficulty in refraining from child
     molestation if released to the community.

                                * * *

     Based on the above information, it is my opinion that
     Mikel Bolander does meet the criteria as a Sexually
     Dangerous Person.

(J.A. 554-55).

     Following the preparation of this report, Dr. North met

with Bolander.   During the interview, Bolander clarified some
                              - 21 -
minor    factual     inaccuracies      in       Dr.    North’s    report.      He   also

stressed to Dr. North that he was trying to increase his sexual

arousal to adults, had not masturbated in five to six years,

knew child molestation and possession of child pornography were

wrong, felt remorse for victims, and was “truly motivated to

never molest again.”         (J.A. 580).          Although Dr. North noted that

Bolander      “presented     well,”     he       was    skeptical     of    Bolander’s

claims, noting that he had made reformation claims in the past

yet     still    went   on    to    amass        large     collections       of     child

pornography.         Ultimately, Dr. North concluded that Bolander’s

“exclusive sexual interest in prepubescent boys is so strong

that    he    will   have    serious    difficulty         refraining       from    child

molestation if released to the community.”                   (J.A. 581).

                                            2

        Dr. Demby, a BOP forensic psychologist, also testified at

the evidentiary hearing.           Her testimony was consistent with the

findings and conclusions contained in her report dated March 9,

2011.

        In her report, Dr. Demby examined Bolander’s developmental

history,      relationship     history,         education        history,   employment

history, substance abuse history, non-sexual criminal history,

sexual       criminal   history,       psychiatric/psychological              history,

mental health history, and medical history.                         Because Bolander

refused to participate in a clinical evaluation with Dr. Demby,

                                       - 22 -
she     was    not   able    to        interview           Bolander     as    part        of     her

evaluation.

      Dr. Demby made the following diagnoses: “(1) Pedophilia,

Sexually       Attracted         to     Males,        Exclusive       and     (2)     Schizoid

Personality Disorder.”                 (J.A. 195).            Dr. Demby explained the

bases for each of her diagnoses and opined that each qualify as

a serious mental illness, abnormality, or disorder.                                   Further,

she concluded that, as a result of these diagnoses, Bolander

would    have    serious         difficulty           in    refraining       from     sexually

violent conduct.

      With      regard      to        the   pedophilia             diagnosis,       Dr.        Demby

explained that Bolander meets the diagnosis based, in part, on

his   recurrent      and     intense        sexually          arousing       fantasies,          and

sexual urges and actions involving prepubescent males.                                Further,

she opined that the evidence shows he constructed his lifestyle

to    obtain     maximum         exposure        to        young     children       and        child

pornography, even while on supervised release.                                He engaged in

sophisticated techniques to avoid financial disclosure of his

activities to his probation officers.                              She specifically noted

that treatment providers have reported that he has demonstrated

little guilt or remorse for his crimes, except for self-focused

regret concerning the negative consequences he has endured.                                      In

spite of efforts at treatment, he has continued to engage in

sexually inappropriate attraction to young boys even when the

                                            - 23 -
threat of detection and sanctions are high, as indicated by his

theft of sexual stimuli at ASH and his numerous revocations of

supervised release.

       Dr. Demby utilized the Static-99R to assess Bolander’s risk

of sexual reoffense.      She found a group rate of recidivism of

49% within ten years under this test.

       In considering the applicability of dynamic risk factors,

Dr. Demby utilized an empirically guided risk assessment tool

called the “SVR-20.”       (J.A. 511).     The SVR–20 does not yield

quantitative predictions in the same way that the Static–99 and

Static–2002R do.      Instead, the scorer evaluates twenty factors

weighing them in their totality to form an overall opinion about

whether an offender will likely reoffend. 12       Dr. Demby concluded

that    Bolander   had   eight   factors   that   were   considered   to


       12
        The twenty factors include: (1) the presence of sexual
deviance; (2) whether the respondent had been a victim of child
abuse; (3) psychopathy traits; (4) the presence of a major
mental illness; (5) endorsement of suicidal or homicidal
ideation; (6) a history of substance abuse; (7) the presence of
a stable relationship; (8) a stable employment history; (9) a
history of nonsexual violent offenses; (10) a history of
nonviolent   and  nonsexual   offenses; (11)   past  supervision
failure; (12) a high density of sexual offenses within a
relatively short period; (13) multiple types of sexual offenses;
(14) causing victims physical harm; (15) the use of weapons or
threats; (16) the presence of escalating sexual offenses or
severity of sexual offenses; (17) extreme minimization or denial
of responsibility; (18) attitudes that support or condone sexual
offenses; (19) negative attitudes towards intervention; and (20)
release and relapse prevention plans.



                                 - 24 -
exacerbate his risk of reoffending (Factors (1), (7), (10), (11)

(13), (17), (18), and (19)), eleven that were considered not to

exacerbate his risk of reoffending (Factors (2), (3), (4), (5),

(6)    (8),     (9),    (12),    (14),     (15),    and    (16)),      and     one    factor

(Factor 20) that was not assessed because Bolander refused to be

interviewed.            After    weighing    the     number      and     nature      of    the

exacerbating factors, Dr. Demby concluded that Bolander’s risk

of future sexual violence was “High” on the SVR-20.                          (J.A. 515).

        With    regard    to     the   factors      in    exacerbation,        Dr.        Demby

emphasized       Bolander’s       sexual    deviance,       as    evidenced          by    his

history of sexual arousal to young children and his lack of an

interest in engaging in a sexual or intimate relationship with

an    adult.      She     also   emphasized        that   Bolander       had    no    stable

relationships that would provide him support upon release, as

evidenced by his history as a loner and his desire to “continue

[life]     in    this     vein.”        (J.A.     513).       Dr.      Demby    noted       as

exacerbating        Bolander’s         history     of     non-violent,         non-sexual

offenses, which included juvenile delinquency, substance abuse,

and a DUI conviction.              Also exacerbating were Bolander’s past

supervision failures, namely, his “violat[ion of] supervision on

two occasions by sexually reoffending.”                    (J.A. 514).          Dr. Demby

noted that Bolander had multiple types of offenses involving

child          abuse/pornography           (molestation,            possession             and

distribution       of    pornography,       and    attempting       to    receive         child

                                         - 25 -
pornography through the mail) and that Bolander continued to

minimize and deny responsibility for his conduct.                            Dr. Demby

also examined Bolander’s long history of supporting a right to

adult-child relationships:

     “[C]opious treatment records indicate that he believes
     that he is entitled to sex, and that he is a
     preferential, fixated, same-sex pedophile.   When told
     that he needed to recondition his pedophilic urges, he
     has sabotaged treatment, stolen sexual stimuli, and
     twice    refused    to    participate    in    arousal
     reconditioning.   He has stated several times the he
     would continue to molest boys if he thought he could
     get away with it.

(J.A. 514).     Relying on much of the same evidence, Dr. Demby

concluded   that   Bolander    harbored        a    negative      attitude      toward

intervention.

     With regard to the factors that did not exacerbate, Dr.

Demby noted that Bolander was not a victim of sexual abuse.                        She

noted that, although Bolander displayed signs of psychopathy,

such signs were insignificant to find the psychopathy factor

exacerbating.      Dr. Demby found no presence of a major mental

illness, suicidal or homicidal ideation, or a recent history of

substance   abuse.     She    noted      Bolander’s       ability       to    maintain

steady   employment   and    that   he   had       no   history    of    non-violent

sexual offenses.      Dr. Demby also noted that Bolander had not

committed sexual offenses frequently in a short period of time,

had not physically injured his victims, and used no weapons or

threats during the commission of his offenses.                          Finally, Dr.

                                    - 26 -
Demby noted that Bolander’s sexual offenses did not escalate or

become more severe over time.

     At the conclusion of her report, Dr. Demby gave a “Summary

of Risk Assessment & Prognosis” and an “Opinion on the Issue of

Sexual Dangerousness.”    (J.A. 516-17).    The report states:

     Mr. Bolander is a 47-year-old, life-long pedophile and
     child abuser whose past history and high scores on the
     Static-99R and the SVR-20 indicate a very high
     probability that his past patterns of sexually abusing
     children    will    continue.       His   paraphilic    sexual
     attraction to children began in his early adolescence,
     and   has    led    to   numerous    charges,    convictions,
     incarceration, and revocations of his release. He has
     unsuccessfully attempted therapy to address his sexual
     attraction to young boys.         He continues to endorse
     sexually     deviant     beliefs,     and    minimizes     his
     responsibility     by blaming      his   child    victim   for
     initiating the sexual molestation.         He has behaved in
     sexually inappropriate ways even when the risk of
     detection was high, as seen in his residential
     proximity      to    children,     and     downloading     and
     distribution of a massive amount of child pornography,
     while    on    supervised     release.        His    pervasive
     personality     style   of   exploiting     his    environment
     displays itself in his repeated violations of social
     norms, expectations, and rules, including the sexual
     coercion    of    those   most    vulnerable    around    him.
     Cumulatively, his overall history, criminal record,
     offense       characteristics,        lifestyle       choices,
     personality patterns, sexual relapses, and treatment
     failures indicate an extremely high risk of future
     sexual reoffense. His prognosis at this time is very
     poor.

                                *   *   *

     It is highly likely that Mr. Bolander will continue
     the sexual abuse of young children, particularly
     prepubescent boys.   His diagnosis of Pedophilia   and
     Schizoid Personality Disorder are chronic, pervasive,
     and deeply engrained.     He has continued to sexually
     reoffend after receiving sex offender treatment and

                                - 27 -
     intensive community supervision.    He has stated and
     demonstrated his intent to continue to indulge his
     pedophilic sexual deviance. It is the opinion of this
     evaluator that Mr. Bolander is a person suffering 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.

(J.A. 516-17).

                                             3

     Dr.     Warren        testified     at       the    evidentiary         hearing     as

Bolander’s expert witness.              His testimony was consistent with

the findings and conclusions contained in his report dated July

25, 2011. Dr. Warren opined that Bolander met the first two

elements necessary for sexual dangerousness.                           As part of his

evaluation, Dr. Warren used the Static-99R test.                            He calculated

Bolander’s    group    rate     of    recidivism        to     be   14.7%    within    five

years.      Dr. Warren also identified six dynamic factors, four

lessening    the    recidivism       risk     (significant          social    influences,

sexual self-regulation, general self-regulation, and cognitive

problem     solving        skills)     and       two    increasing      the     risk    of

recidivism (intimacy deficits and cooperation with supervision).

Dr. Warren opined that Bolander had certain strengths that would

enable him to function normally in society by maintaining his

volitional    control.          Dr.     Warren         noted    that    Bolander:      (1)

functioned     in     an     incarcerated         setting       without       significant

disciplinary issues; (2) had been able to control his behavior


                                        - 28 -
in   terms    of    hygiene,    his    activities,        and    his    vocational

interests within the facility; (3) had a four-year period of

non-contact    offending;      (4)    earlier      in   life    decided    to    stop

marijuana    use;    (5)   earlier     in   life    decided     to     further    his

education; and (6) made decisions earlier in life to advance his

vocational    interests.       In     the   “Summary     and    Recommendations”

section of his report, Dr. Warren states:

     Mikel James Bolander is a 47-year-old, Caucasian male
     with a history of completion of sentencing for
     conviction of Possession of Child Pornography. He has
     a   previous  conviction   for  one,  sexually-related
     contact offense and two other child pornography (one
     possession, one mailing) offenses.

     He does not have a mental disorder that [impairs] his
     volitional ability to control his behavior.   He does
     not have a personality disorder.

     Mr. Bolander’s risk for sexual re-offending with child
     pornography offenses is higher than that of contact
     offending, and overall slightly higher than all sexual
     offenders taken as a group. However, his risk for all
     sexual re-offending upon release from incarceration is
     more likely than not lower than the published
     recidivism risk of non-sexual offenders released from
     prison.

     Mr. Bolander has a history of gainful and consistent
     employment. He has interpersonal and technical skills
     that can be applied to future employment. If released
     from incarceration Mr. Bolander reported his plan to
     reside in Las Vegas due to the multiple opportunities
     for employment . . . and to the proximity of his
     parents’ residence about one and a half hours away.

(J.A. 560-61).       As noted above, Dr. Warren did not offer an

opinion on the third element of the commitment test, but he did

indicate that, whether Bolander was committed or released, he


                                      - 29 -
needed sexuality psychoeducation in the context of a strength

based individual and/or group treatment approach, and cognitive

behavioral treatment.

                                            D

     Bolander also testified at the evidentiary hearing.                                 He

described the details of his only hands-on offense and expressed

remorse over what had happened.                 He testified that, around 2004

or 2005, he had a change of heart that caused him to think

differently      about      child     molestation.                 He    read       numerous

psychological journals and books on victim empathy.                                 Bolander

testified      that   he    now     knows    child      molestation            is   “totally

wrong,” (J.A. 342), and that he had not thought about children

in a sexual way in over seven years.                    He testified he would not

molest another child again.                 He also testified that, for the

first   time    in    his   life,    he     has      been   able    to    develop      close

friendships with adults.

                                            E

     Dr. Andres Hernandez, who was the Director of SOTP while

Bolander was enrolled in the program, testified as a lay witness

at   the   evidentiary       hearing.           He    testified         that    Bolander’s

participation in the SOTP was “rather memorable.”                              (J.A. 358).

He   found      “striking”        Bolander’s           “pedophilic         drive,”      his

resistance to treatment, and “the degree to which his pedophilic

beliefs were so entrenched.”                (J.A. 358).            Dr. Hernandez also

                                       - 30 -
found that Bolander was not in the SOTP to change, but rather to

challenge the beliefs of others.

                                   F

     At the conclusion of the evidentiary hearing, the district

court ruled from the bench.    With respect to the third element

of the commitment test, the district court stated:

     Respondent [has] continued to commit criminal offenses
     while on parole or supervised release, . . .
     Respondent has not successfully completed a sex
     offender program. Both Doctors Demby and North opined
     that Respondent would have serious difficulty in
     refraining from sexual violent conduct or child
     molestation if released.   The Court finds that both
     doctors are credible and adopts their conclusions as
     they are well-reasoned and supported by the evidence
     in this case.

     Both Doctors Demby and North found that, using
     actuarial instruments, the Respondent is in the
     moderate to high range. However, [t]he Court believes
     though these instruments are important, the greater
     weight should be placed on factors outside the
     actuarial scheme as indicated in those instruments.
     These include the areas discussed before, i.e., the
     relapse, failure to complete the offenders program.

     Respondent believes on his “oath to himself” that it –
     this will ensure that he does not reoffend.    This is
     certainly a good start, but his lack of completion of
     a sex offender program leaves him without the tools to
     accomplish his oath.       Respondent’s self-help by
     reading books and developing victim empathy is good,
     but [t]he Court finds that this is not a substitute
     for a sex offender program, and Respondent has failed
     to seriously complete a program.

     The Court finds that Respondent places himself in a
     slippery slope situation, and it appears that that’s a
     word that comes up very often in these cases.     It’s
     defined by the way his conduct was while he was
     released into the community and has not developed the
     necessary skills to remain free if released.
                              - 31 -
       The Court finds that Respondent talks the talk, but,
       again, does not have the skills to remain crime free
       without meaningful mainstream treatment.     And I say
       mainstream treatment as opposed to Dr. Warren, who I’m
       sure was very knowledgeable and so forth, but
       suggested treatment that was not that mainstream and
       not in the sense that it was not good treatment. But
       it was certainly an unreasonable expectation to have
       that kind of one-on-one kind of treatment while he’s
       incarcerated, though he does get one-on-one . . . when
       needed, and it would be unrealistic to release him
       until such time as he has this treatment and develops
       the skills necessary so that he does not reoffend.

       For these reasons, [t]he Court finds that Respondent
       is sexually dangerous and that he suffers from a
       serious mental illness, abnormality or disorder and as
       a result of this, he would have serious difficulty in
       refraining from sexually violent conduct or child
       molestation if he was released.

(J.A. 425-27).

                                            G

       Bolander     maintains      that        the   district    court       erred   in

concluding that he would have serious difficulty refraining from

future   acts      of   child    molestation.         Reduced    to   its     essence,

Bolander posits that the district court did not adequately take

into    account     his   time    in     the     community   without     a    hands-on

offense.

       “Serious difficulty” 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.                           Hall,

664    F.3d   at   463.      Here,       there    were   facts   in   evidence,      if

credited by the district court, that would support a finding



                                         - 32 -
that Bolander would have serious difficulty refraining from acts

of     child     molestation       if    he     was     released      because     of    his

pedophilia.         The record is replete with examples of Bolander’s

inability      to    refrain    from         engaging    in    acts   involving        child

pornography.          Whether      it    was     his     stealing     of    pornographic

materials from the treatment lab while at ASH or his repeated

possession of child pornography while on supervised release, the

record is clear that he has serious difficulty refraining from

trying to find an appropriate outlet for his sexual desires.                             He

has an admitted attraction to adolescent males between the ages

of six and twelve and has not participated in any treatment

which    would      assist   him    in       managing    these    volitional      control

issues.        Moreover, the intense nature of Bolander’s obsession

with     child      pornography,        in    particular       his    large     cache    of

materials      and    the    meticulous         manner    in    which      he   kept    such

materials, understandably was a concern of Dr. North and Dr.

Demby.      In view of this evidence, it was reasonable for the

district court to find by clear and convincing evidence that

Bolander’s pedophilia would cause him to have serious difficulty

refraining from acts of child molestation.

       Bolander’s       argument        that     the     district       court    did    not

adequately consider the fact that he had no hands-on offense in

over twenty years misses the mark.                      As noted by Dr. North, the

absence of a more recent hands-on offense has more to do with

                                             - 33 -
the strict supervision placed on Bolander than a true change of

heart.      Considering          Dr.    North’s       reasonable     explanation,       the

district court was at liberty to reject Bolander’s no hands-on

offense   argument.         Anderson,          470    U.S.    at    573-75.     Along     a

similar vein, the district court was free to reject Bolander’s

testimony    that      he   is    a    reformed       man.     The    success     of    his

rehabilitation         efforts    largely       are    suspect      considering    he    is

doing them on his own.

     In sum, as we noted in Hall, 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 a past offender

will recidivate.’”          664 F.3d at 467 (quoting United States v.

Shields, 649 F.3d 78, 89 (1st Cir. 2011), cert. denied, 132 S.

Ct. 1586 (2012)).           In this case, 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, United States Gypsum Co., 333

U.S. at 395, we cannot say that the district court clearly erred

in finding, by clear and convincing evidence, that Bolander is

sexually dangerous within the meaning of the Act.



                                             - 34 -
                                       III

     Having concluded that the district court did not err when

it found by clear and convincing evidence that the government

met each of the three elements for sexual dangerousness, we turn

to   Bolander’s       remaining    arguments            challenging          his    civil

commitment.

                                           A

     Bolander      contends    that        §    4248    deprives       him     of   equal

protection    under    the    Fifth    and        Fourteenth     Amendments.           In

pressing this argument, Bolander acknowledges that this argument

is foreclosed by our decision in United States v. Timms, 664

F.3d 436 (4th Cir.), cert. denied, 133 S. Ct. 189 (2012).                              In

Timms, we held that § 4248 does not violate the Equal Protection

Clause   because    individuals       in       BOP   custody    are    not     similarly

situated to individuals who are not in BOP custody.                          Id. at 449.

In so holding, we emphasized that “Congress rationally limited

§ 4248’s scope to sexually dangerous persons within BOP custody

based on Congress’ limited police power and the federal interest

in protecting the public from reasonably foreseeable harm from

such persons.”      Id.      Because Timms forecloses Bolander’s equal

protection argument, we reject it.

     Bolander       also      contends          that     §      4248     levies        an

unconstitutional      criminal    punishment.            This    argument       also   is

foreclosed by our decision in Timms.                   Id. at 455.      In Timms, we

                                      - 35 -
clarified any ambiguity concerning this question created by our

decision in United States v. Comstock, 627 F.3d 513 (4th Cir.

2010), cert. denied, 131 S. Ct. 3026 (2011) (Comstock II).                               Id.

We further noted that § 4248’s use of the clear and convincing

evidence       standard       rather   than    the      proof       beyond   a    reasonable

doubt standard rendered the overall design of § 4248 civil in

nature.       Id. 13

                                              B

       Second, Bolander argues that his due process rights were

violated because the January 12, 2009 evidentiary hearing took

place       almost     five    years   after       he    was    due     to   be    released

(February 9, 2007).            This argument has no merit.

       In    Timms,     we     noted   that       the   “civil       commitment      process

clearly impacts an individual’s due process rights.”                                 Id. at

450.        “Because     an     adverse   outcome        in     a    commitment     hearing

results in a massive curtailment of a person’s liberty, whether

the respondent is already a prisoner or not, the Supreme Court

has held that due process . . . affords respondents in [civil

commitment]       proceedings      several        procedural         protections.”      Id.

       13
        To the extent Bolander challenges the actual conditions
of his confinement under § 4248, this civil/criminal argument
similarly is foreclosed by Timms. 664 F.3d at 455. That is not
to say, however, that Bolander is without a remedy.       As the
government concedes, Bolander may challenge the conditions of
his confinement in an action under Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).



                                          - 36 -
(citation and internal quotation marks omitted).                            “Once it is

determined that due process applies, the question remains what

process is due.”        Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

      In    assessing     what      due     process     is    due      in     the     civil

commitment context, we analyze “‘the importance of the private

interest and the harm to this interest occasioned by delay; the

justification      offered     by    the     Government       for     delay     and    its

relation     to   the    underlying        governmental        interest;        and     the

likelihood that the interim decision may have been mistaken.’”

Timms, 664 F.3d at 451 (quoting FDIC v. Mallen, 486 U.S. 230,

242    (1988).       This     test        “evaluate[s]       the      sufficiency       of

particular procedures, while also avoiding the establishment of

rigid rules due to the recognition that the requirements of due

process are flexible and cal[l] for such procedural protections

as    the   particular     situation        demands.”         Id.     (citations        and

internal quotation marks omitted).

      Without question, Bolander possesses a substantial private

interest     affected    by    the   certification           under    §     4248.       His

interest in liberty and freedom from physical restraint are at

stake.      Thus, the private liberty interest factor weighs in his

favor.      Id. (“The statute also places no express outer limit on

how long that stay may remain in force or when the court must

conduct     the   commitment     hearing.      During    that        period    of     time,

however short or long it may be, an individual’s liberty is

                                      - 37 -
restrained;       thus,        the      statute     implicates         a      substantial

interest.”).       Moreover, the likelihood that the interim decision

may    have    been    mistaken      factor    favors       Bolander.         Id.   at     452

(noting that the interim decision factor weighed in favor of the

respondent because § 4248 requires no specific steps prior to

certifying      someone,       other    than    that    signatory’s        determination

that the person meets the criteria for being sexually dangerous,

§ 4248 requires no pre-certification hearing or other initial

adversarial review, and the risk of improper certification was

“apparent       from     the     parties’       representation          that        of    the

approximately         130    individuals        certified       under      § 4248,        the

Government         subsequently           dismissed           almost         two         dozen

certifications because it subsequently determined the individual

did not satisfy the criteria”).

       However,       like   the     respondent        in   Timms,     Bolander’s         due

process claim fails because the last inquiry, the government’s

interest and the justification offered by the government for the

delay, weighs decidedly in the government’s favor.                             To resolve

this    last    inquiry,        we     must    first    turn    to     the     convoluted

procedural history of the case.

       Following       the   implementation        of   the    Act,     the    government

began to certify individuals as sexually dangerous under the

Act.    Such action led to a host of constitutional challenges in

the United States District Court for the Eastern District of

                                          - 38 -
North Carolina, the district in which nearly all § 4248 actions

were filed.

       On February 9, 2007, the government filed a certificate in

the United States District Court for the Eastern District of

North       Carolina      seeking      to     commit      Bolander         as     a    sexually

dangerous person under § 4248.                   At the time, Bolander was about

to be released from BOP custody, but his release was stayed

because of the government’s § 4248 certification.                                On the same

day,    Judge       Britt,      the     senior      district        judge       assigned       to

Bolander’s        case,    appointed          the    Federal       Public       Defender        to

represent Bolander and set a hearing date of September 4, 2007.

On August 15, 2007, Bolander filed a motion to continue the

hearing, which the district court granted.

       On    September     7,       2007,   Judge    Britt        issued    his       ruling   in

United States v. Comstock, 507 F. Supp. 2d 522 (E.D.N.C. 2007).

In that case, the government certified five respondents in its

custody      as    sexually         dangerous       under    §     4248     and       requested

evidentiary hearings.               Id. at 526-27.           However, no evidentiary

hearings      were     held.         Id.    at   559-60.          Instead,      Judge      Britt

granted the respondents’ motions to dismiss as a matter of law,

on   the     ground    that     §    4248    exceeded       the    scope    of        Congress’s

authority         under    the       United      States      Constitution             to   enact

legislation        and,   in     the   alternative,         on     the   ground        that    the

statute facially violated the respondents’ due process rights.

                                            - 39 -
Id. at 526, 559.          However, Judge Britt stayed the release of the

respondents from custody pending an appeal from his decision.

Id. at 560.

       On September 11, 2007, Bolander filed a motion to dismiss

the    certification      on     the    basis     of   Judge    Britt’s       decision      in

Comstock.          In response, on September 20, 2007, the government

moved    to     stay    its    response      to    Bolander’s        motion       and     other

similar motions pending in numerous certification cases in the

Eastern District of North Carolina.                        On January 8, 2008, the

district      court     granted       the   government’s       motion        to    stay    its

response to Bolander’s motion and other similar motions pending.

       On January 8, 2009, we affirmed the dismissal of the § 4248

certifications in United States v. Comstock, 551 F.3d 274 (4th

Cir. 2009), rev’d, 130 S. Ct. 1949 (2010) (Comstock I), holding

that    Congress       lacked     constitutional           authority     to       enact    the

statute.        Id. at 276.            The following day, Bolander filed a

motion    for      release     from    custody,      relying    on     our    decision      in

Comstock      I.       While    this    motion       was    pending,    the       government

petitioned for a writ of certiorari.                       The United States Supreme

Court granted the petition on June 22, 2009.                          United States v.

Comstock, 129 S. Ct. 2828 (2009).                      Because the Supreme Court

granted the petition, the district court declined to rule on

Bolander’s motion for release.



                                            - 40 -
       In May 2010, the United States Supreme Court issued its

opinion in United States v. Comstock, reversing our decision

that    §    4248       was   unconstitutional,           and   holding       that   Congress

properly         enacted      the    statute    pursuant        to    the     Necessary      and

Proper Clause of the United States Constitution.                                130 S. Ct.

1949, 1954 (2010).             The Supreme Court remanded the case to this

court       to    consider     the    additional         grounds     presented,       but    not

decided, in Comstock I, and upon which the district court in

that case had held that § 4248 was unconstitutional.                                      Id. at

1955, 1965.

       Following the Supreme Court’s decision in Comstock, on June

6,   2010,        the    district     court    denied,      under      the     authority      of

Comstock, all pending motions for release in the § 4248 cases

before      it     and   lifted      any    stay    or    abeyance      ordered      in    those

cases.           The district court directed Bolander to proceed with

additional constitutional challenges or an evidentiary hearing

as he saw fit.

       On June 22, 2010, Bolander filed a motion to dismiss the

certification,            relying      on     the     constitutional           claims       left

unresolved by the Supreme Court’s decision in Comstock.                                   In the

motion,          Bolander      stated       that    he     was       not     requesting       an

evidentiary hearing “[a]t this time.”                      (J.A. 67).

       On August 4, 2010, the then-Chief Judge for the Eastern

District         of   North    Carolina,       Chief      Judge      Louise    W.    Flanagan,

                                             - 41 -
issued a standing order related to the processing of § 4248

commitment actions in that district.        The order’s terms included

the following provision regarding motions for hearings:

     Until such time as the final determination by an
     appellate court of “any claim that the statute or its
     application denies equal protection of the laws,
     procedural or substantive due process, or any other
     rights guaranteed by the Constitution[,]” if an
     individual respondent would like to proceed with the
     litigation of the government’s petition for his
     commitment, counsel for the respondent shall inform
     the court of the respondent’s desire to proceed with a
     hearing by filing a motion for a hearing. Such motion
     shall be filed . . . as soon as practicable after the
     respondent informs his counsel of his desire to
     litigate the commitment petition.

Aug. 4, 2010 Standing Order of the Court, § 3(b).           On August 6,

2010, Bolander’s case was reassigned to Chief Judge Flanagan.

     We heard oral argument in the remanded case in September

2010.   In our December 10, 2010 decision in Comstock II, we

reversed the district court’s judgment concerning the burden of

proof under § 4248.     We held that the statute did not violate

the Due Process Clause by requiring a court to find by clear and

convincing   evidence   (rather    than    proof   beyond   a   reasonable

doubt) that the individual has engaged or attempted to engage in

sexual violence or child molestation and is sexually dangerous

to others.    627 F.3d at 519-25.          Consequently, the case was

remanded to the district court with instructions to proceed to

the merits on the pending commitment actions.        Id. at 525.




                                  - 42 -
      On   December        15,     2010,        Bolander      filed    a    motion      for

substitution of counsel, asserting that his relationship with

his public defender had deteriorated to the point where he felt

the   public     defender       could   not      adequately     represent       him.     On

January    14,    2011,    the    Office        of   the    Federal   Public     Defender

moved to withdraw and have new counsel appointed.                           On February

16, 2011, the motion for substitution of counsel and the motion

to withdraw were granted.

      On   January        28,     2011,     the      district       court    entered      a

scheduling       order    directing       the    government      to   provide     initial

disclosures.        The government’s initial disclosures were due by

April 4, 2011, and Bolander’s were due by June 6, 2011.                                After

the   exchange      of     initial      disclosures,          the     parties     had    an

additional sixty days within which to conclude discovery.

      On March 25, 2011, the district court denied Bolander’s

June 22, 2010 motion to dismiss the certification, finding no

grounds in which to grant the motion.                      On May 31, 2011, Bolander

moved for an extension of time until July 18, 2011 to provide

his initial disclosure.             The motion was granted.                 On July 14,

2011, Bolander sought to extend the deadline until September 16,

2011, and the district court granted this request as well.

      On   September        16,     2011,        the       district    court     set     an

evidentiary hearing date of November 28, 2011.                        On September 23,

2011, Bolander requested a continuance of the hearing date until

                                          - 43 -
the week of December 20, 2011.            The motion for continuance was

granted, but the district court set the evidentiary hearing for

January 12, 2012.

      In this case, the record reflects that the justification

offered by the government for the delay in holding Bolander’s

§ 4248 hearing satisfies the requirements of due process.                       The

initial date for Bolander’s evidentiary hearing was September 4,

2007.    However, prior to the hearing date, Bolander moved for a

continuance.     Before a new hearing date was set, the district

court issued its ruling in Comstock.             From the time the district

court   issued    this     decision,    the   government    cannot       be   held

responsible for failing to push for an evidentiary hearing.                     As

we noted in Timms, the government cannot be blamed “for agreeing

to the abeyance in light of the heavy cost of pursuing hearings

on the merits when § 4248 proceedings remained under a cloud of

constitutional uncertainty.            There is simply no basis for the

validity of the argument that the Government should have, at its

own initiative, pressed for a commitment hearing under these

circumstances.”    664 F.3d at 453.

      After the Supreme Court issued its decision in Comstock,

the     constitutionality       of      § 4248     still    was         unsettled.

Notwithstanding     this     uncertainty,     Bolander     did    not    seek   an

evidentiary hearing.         Rather, in his June 22, 2010 motion, he

specifically stated he was not requesting a hearing.                     His case

                                     - 44 -
remained dormant, mainly because Comstock II was pending in this

court, until the end of 2010 when he requested a substitution of

counsel.      The    granting          of    this      request       further    delayed   the

proceedings,       with    no     fault       attributable           to   the    government.

After    substitute       counsel       was       appointed,         Bolander    sought   two

extensions    of    time    in    which       to       file    initial      disclosures   and

requested a continuance after the November 28, 2011 hearing date

was set.      After this request for continuance was granted, the

district court held the evidentiary hearing less than two months

after the November 28 date.

     In sum, the government’s lawful exercise of its authority

under § 4248 is not to blame for the delay in holding Bolander’s

evidentiary       hearing        and        did       not     deny    him      due   process.

Accordingly, the district court did not err when it concluded

that Bolander’s due process rights were not violated in this

case.

                                                  C

     As noted above, Bolander participated in the SOTP at FCI-

Butner     from    November       1997       until          April    1998.       During   his

participation       in     the     program,            two     relevant        reports    were

generated.        The first is titled “Psychosexual Evaluation” and

dated January 29, 1998; the second is titled “Discharge Summary”

and dated April 13, 1998.               (J.A. 518).            In preparing his expert

report, Dr. North (as well as Dr. Warren) referred to these

                                             - 45 -
reports.     Prior to the evidentiary hearing, on December 6, 2011,

Bolander     moved     in    limine     to    exclude        any    and       all     evidence

relating to the personal disclosures he made as part of the

SOTP, contending they were privileged under a psychotherapist-

patient privilege.           The district court denied the motion, and

Bolander challenges this ruling before this court.

       The    United        States    Supreme         Court        has        recognized        a

psychotherapist-patient          privilege,          finding       that       psychotherapy

serves “a public good of transcendent importance.”                                   Jaffee v.

Redmond, 518 U.S. 1, 11 (1996).                In Jaffee, the Court held that

confidential        communications      between       a     patient      and     a    licensed

social worker, during the course of diagnosis or treatment, are

privileged and protected from discovery.                     Id. at 15-16.

       The   Court     looked   to    Rule     501     of    the    Federal          Rules    of

Evidence,      which       authorizes        federal       courts        to     define       new

privileges by interpreting “principles of common law . . . in

the light of reason and experience.”                   Fed. R. Evid. 501.                  Reason

and experience, as well as the fact that all fifty states plus

the     District       of     Columbia         had        some      version           of     the

psychotherapist-patient          privilege,          led    the    Court       to     conclude

that   the    psychotherapist-patient            privilege         exists       under       Rule

501.    Jaffee, 518 U.S. at 10-12.

       In Jaffee, the first officer to respond to a call involving

a   fight    shot    and    killed    Ricky    Allen.         Id.     at      10.      Officer

                                        - 46 -
Redmond shot Allen because she believed he was about to stab

another man with a butcher knife.                  Id. at 4.           As a result of

this   incident,       Officer    Redmond     participated         in    approximately

fifty counseling sessions with a state-licensed social worker.

Id. at 5.      Jaffee, the administrator of Allen’s estate, brought

a § 1983 excessive force claim against the Officer Redmond.                           Id.

Jaffee requested production of the social worker’s notes from

her counseling sessions with Officer Redmond in order to use

these notes in cross-examination.              Id.        Although Officer Redmond

and    the    social    worker      asserted    the        psychotherapist-patient

privilege and “vigorously resisted the discovery,” the district

court ordered that the notes be disclosed.                       Id.     After Officer

Redmond and the social worker refused discovery of the notes,

the district court instructed the jury that they could presume

the contents of the notes to be unfavorable to Officer Redmond.

Id. at 5-6.       Jaffee was awarded a total judgment of $545,000

against Officer Redmond.           Id. at 6.

       The Seventh Circuit reversed and remanded for a new trial,

concluding       that     Rule      501      compelled          recognition      of     a

psychotherapist-patient           privilege.         Id.         According      to    the

Seventh      Circuit,    the     privilege    would       not    apply    if    “in   the

interests of justice, the evidentiary need for the disclosure of

the contents of a patient’s counseling sessions outweighs [the]

patient’s     privacy    interests.”         Id.     at    7    (internal      quotation

                                      - 47 -
marks omitted).           The Seventh Circuit determined that Officer

Redmond’s privacy interest outweighed Jaffee’s evidentiary need

for the notes.       Id.

      On   appeal    to    the   Supreme    Court,    the    Court    affirmed    the

Seventh      Circuit,       holding        that      protecting        confidential

communications between a psychotherapist and patient promotes a

critical interest and outweighs the need for probative evidence.

Id. at 16-18.       However, the Court rejected the Seventh Circuit’s

balancing test.       Id. at 17.          The Court reasoned that “[m]aking

the promise of confidentiality contingent upon a trial judge’s

later evaluation of the relative importance of the patient’s

interest    in    privacy     and   the    evidentiary      need    for   disclosure

would eviscerate the effectiveness of the privilege.”                        Id. at

17.   The Supreme Court feared that use of a balancing test would

frustrate the aim of the privilege by making its application

uncertain.       Id. at 18.

      The Court’s decision in Jaffee is premised on the notion

that “[t]he mental health of our citizenry, no less than its

physical health, is a public good of transcendent importance.”

Id.   at   11.      The    Court    recognized      that    the    psychotherapist-

patient    relationship       is    “rooted   in     the    imperative     need   for

confidence and trust” wherein the patient willingly makes “frank

and   complete      disclosure      of     facts,    emotions,       memories,     and

fears.”     Id. at 10 (internal quotation marks omitted).                        Thus,

                                         - 48 -
“the mere possibility of disclosure may impede development of

the      confidential            relationship       necessary         for      successful

treatment.”         Id.      Without the privilege, the Court observed,

“confidential conversations between psychotherapists and their

patients      would     surely      be    chilled,     particularly         when    it     is

obvious that the circumstances that give rise to the need for

treatment will probably result in litigation.”                     Id. at 11-12.

       The    Jaffee       Court    did   not    outline    the       contours      of    the

psychotherapist-patient              privilege,       because     it     was       “neither

necessary nor feasible to delineate its full contours in a way

that   would    govern       all     conceivable      future     questions         in    this

area.”        Id.     at    18     (citation    and    internal       quotation         marks

omitted).      In a footnote, the Court noted that the patient may

waive this privilege, like other testimonial privileges, but did

not further address the issue of waiver.                   Id. at 15 n.14.

       The Court in Jaffee also noted that the privilege would

yield under some circumstances.                 Id. at 18 n.19.         In a footnote,

the Court stated “[w]e do not doubt that there are situations in

which the privilege must give way, for example, if a serious

threat of harm to the patient or to others can be averted only

by means of a disclosure by the therapist.”                     Id.

       Like    all     testimonial         or    evidentiary          privileges,         the

psychotherapist-patient             privilege      must   be    strictly       construed.

United States v. Squillacote, 221 F.3d 542, 560 (4th Cir. 2000)

                                          - 49 -
(spousal       privilege).            In    the    case       of     another      evidentiary

privilege,        the    attorney-client          privilege,         we    have     recognized

that the holder of it may waive the privilege either expressly

or   impliedly          by    a    voluntary      disclosure         to    a   third      party.

Hawkins      v.   Stables,         148    F.3d    379,      384    n.4    (4th    Cir.     1998)

(attorney-client             privilege).          An   implied        waiver      waives     the

privilege not only as to the specific information disclosed, but

also as to the subject matter of the disclosure.                                    Id.      The

burden rests on the person invoking the privilege to demonstrate

its applicability, including the absence of any waiver of it.

United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982).

       In this case, the government argues that a person subject

to civil commitment does not have a constitutionally protected

expectation       of     privacy      in   prison      treatment          records    when    the

government has a legitimate interest in access to them.                                     This

argument is premised on Footnote 19 in Jaffee, where the Court

stated    that     the       psychotherapist-patient              privilege       would    “give

way”    in     certain       situations.          Jaffee,      518    U.S.     at    18    n.19.

Alternatively, the government argues that Bolander waived any

psychotherapist-patient privilege he may have enjoyed.                                 Because

we     agree      with       the    government         that        Bolander       waived     any

psychotherapist-patient               privilege        he     may     have       enjoyed,     we

decline      to    address         the     government’s           argument       premised    on

Footnote 19 in Jaffee.                   Accordingly, we express no opinion on

                                            - 50 -
whether   the      disclosures    made      by   Bolander     during    his

participation in the SOTP are protected communications under the

psychotherapist-patient privilege.

     A patient may waive the psychotherapist—patient privilege

by knowingly and voluntarily relinquishing it.         United States v.

Hayes, 227 F.3d 578, 586 (6th Cir. 2000).           A waiver may occur

when the substance of therapy sessions is disclosed to unrelated

third parties, see id. (noting that “a patient can waive the

protections      of   the    psychotherapist/patient        privilege    by

disclosing the substance of therapy sessions to unrelated third

parties”), or when the privilege is not properly asserted during

testimony.      See Hawkins, 148 F.3d at 384 (“By answering the

question as [the defendant] did, [the defendant] both waived her

[attorney-client] privilege and provided probative evidence [on

the subject matter].”).

     In   this    case,     Bolander   willingly    provided    the     SOTP

materials to his own expert, Dr. Warren.            In the report, Dr.

Warren acknowledged that he received and reviewed the materials

Bolander claims are privileged.            Bolander did not assert the

psychotherapist—patient privilege prior to his disclosure to Dr.

Warren.   Rather, he waited until approximately one month prior

to the evidentiary hearing to do so, even though the case had

been pending in the district court for quite some time.                   By

failing to timely assert the psychotherapist—patient privilege,

                                  - 51 -
Bolander waived whatever privilege he may have had.                   Put another

way,    it   was      incumbent       upon     Bolander         to   assert     the

psychotherapist—patient       privilege       in   a   timely    fashion,    rather

than waiting until the eleventh hour to do so.                        See United

States v. Ary, 518 F.3d 775, 784-85 (10th Cir. 2008) (holding

that    failure     to     timely     assert       attorney-client      privilege

constitutes waiver); United States v. White, 970 F.2d 328, 334–

35 (7th Cir. 1992) (same).             Moreover, to the extent Bolander

claims a privilege in his communications with Dr. Warren, we

reject this argument as well.             Dr. Warren was not being sought

for    treatment,    but     rather     to     evaluate    Bolander’s        mental

condition.    And as the Supreme Court in Jaffee made clear, the

privilege only extends to those psychotherapists who are being

consulted    for     diagnosis      and      treatment,     not      under    other

circumstances.      501 U.S. at 15.

       Bolander also failed to assert the psychotherapist—patient

privilege during his October 4, 2011 deposition.                      During that

deposition, Bolander was asked questions about his participation

in the SOTP.       He did not assert any privilege with respect to

the information he provided in the SOTP, including the documents

generated by the program.             Instead, Bolander openly discussed

his participation in the SOTP, including the numerous admissions

he made during that program.              By answering questions without



                                      - 52 -
asserting the psychotherapist—patient privilege, Bolander waived

any privilege he may have enjoyed.            Hawkins, 148 F.3d at 384.

     Bolander suggests that a defendant in need of psychotherapy

treatment      will    be   forced   to   make   the   unenviable    choice   of

foregoing      treatment      altogether    or    receiving     treatment     and

thereby     waiving     the   psychotherapist—patient         privilege.      We

certainly are not insensitive to the Hobson’s choice faced by a

person    in   Bolander’s     position.       However,   in   this   particular

case, Bolander simply failed to properly assert any privilege he

may have had.         Accordingly, the district court did not err when

it denied Bolander’s motion in limine. 14



     14
         The government also argues that Bolander waived any
psychotherapist/patient privilege he may have enjoyed when he
executed    the   “INFORMED   CONSENT   FORM”   as   part   of  his
participation in the SOTP.       (J.A. 168).     By executing this
consent form, Bolander acknowledged that the information he
provided in the program may be disclosed by the SOTP.           The
consent form states: “I also understand that the staff of the
SOTP and Federal Bureau of Prisons, Department of Justice, and
United States Probation Office may share information regarding
my case.”     (J.A. 168).   The meaning of this provision in the
consent form is ambiguous because it is unclear whether the
information disclosed by Bolander could be “share[d]” amongst
only these federal agencies or “share[d]” by these agencies with
third parties, such as an expert in a civil commitment
proceeding.     Bolander says the ambiguity is resolved by the
provision in the consent form that says his “confidentiality
will be protected at all times.”      (J.A. 168).   Bolander posits
that this provision means that the information he provided in
the SOTP could not be disclosed to third parties; otherwise, his
confidentiality would not be protected. We need not resolve the
government’s waiver argument premised on the consent form
because there are other bases in the record in which to find a
(Continued)
                                     - 53 -
                               IV

     For the reasons stated herein, the judgment of the district

court is affirmed.

                                                          AFFIRMED




waiver of any   psychotherapist/patient   privilege   Bolander   may
have enjoyed.



                             - 54 -
