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Ebel Commitment Order 8-30-13_1 _3_

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Ebel Commitment Order 8-30-13_1 _3_ Powered By Docstoc
					                           IN THE UNITED STATES DISTRICT COURT
                       FOR THE EASTERN DISTRICT OF NORTH CAROLINA
                                    WESTERN DIVISION
                                    NO. 5:10-HC-2124-BO


UNITED STATES OF AMERICA                               )
                                                       )
                                                       )
                  V.                                   )                  FINDINGS OFFACT AND
                                                       )                  CONCLUSIONS OF LAW
                                                       )
PETER M. EBEL                                          )

         Petitioner (the government) instituted this civil action pursuant to Title 18 of the United

States Code, Section 4248(a), seeking to commit respondent Peter M. Ebel (respondent or Mr.

Ebel) as a "sexually dangerous person" pursuant to the Adam Walsh Child Protection and Safety

Protection Act of 2006 ("the Act"). The government filed a certificate stating that mental health

personnel for the Federal Bureau of Prisons ("BOP") had examined the respondent and issued a

preliminary determination that he was a sexually dangerous person within the meaning of the Act

[DE 1]. Such certificate stayed the respondent's release from federal custody pending a hearing

to determine whether the respondent qualifies for commitment as a sexually dangerous person.

The government's petition was filed on June 21, 2010. 1 Respondent's projected release date was

June 22, 2010.

         On June 17, 2013, the Court conducted an evidentiary hearing in this matter pursuant to

18 U.S.C. 4247(d). On June 17, 2013, the Court directed the parties to file proposed findings of

fact and conclusions of law. Pursuant to Rule 52 (a)(l) of the Federal Rules of Civil Procedure,

and after due consideration of the evidence presented and argument of counsel, the Court

ADOPTS the government's findings of fact and conclusions oflaw ("findings"), as filed on July


1
 Many trial documents misdate the petition and certificate as being filed on July 21, 20 I 0. They were, in fact, filed
on June 21,2010.

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              Case 5:10-hc-02124-BO Document 117 Filed 08/30/13 Page 1 of 7
2, 2013 [DE 113] 2 and GRANTS the government's motion to amend their proposed findings of

fact, The Court incorporates those findings as if they were fully set forth herein.

        The Court now holds that the government has met its burden to show by clear and

convincing and convincing evidence that Mr. Ebel suffers from a serious mental illness,

abnormality, or disorder as a result of which he would have serious difficulty refraining from

sexually violent conduct or child molestation if released. Therefore, Mr. Ebel is committed to the

custody of the Attorney General pursuant to 18 U.S.C. § 4248.

                                               DISCUSSION

        To order the commitment of a respondent pursuant to § 4248, a court must conclude,

after an evidentiary hearing at which the government bears the burden of proof by clear and

convincing evidence, that the respondent is a "sexually dangerous person" as defined by the Act.

The government must show that (1) the respondent "has engaged in or attempted to engage in

sexually violent conduct or child molestation" and (2) that the respondent "suffers from a serious

mental illness, abnormality, or disorder as a result of which he would have serious difficulty in

refraining from sexually violent conduct or child molestation if released." 18 U.S.C. § 4248(d).

"[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. 2001) (internal

quotation marks, citations, and alterations omitted); see also Addington v. Texas, 441 U.S. 418,

423-24 (1979) (noting that the "clear and convincing" standard of proof is an "intermediate

standard" that falls between a "mere preponderance of the evidence" and "beyond a reasonable

2
 The parties were given fourteen days to file proposed findings of fact with the Court. The government filed two
such documents: one was timely filed on July 1, 2013 and the other was filed outside the fourteen-day period. The
Court grants the government's motion to amend their first filing and adopts the proposed filings at DE 113.

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             Case 5:10-hc-02124-BO Document 117 Filed 08/30/13 Page 2 of 7
doubt"). If the Court finds that the government has satisfied its burden, the individual must be

committed to a suitable facility for mental treatment until he is determined to no longer be

sexually dangerous to others. 18 U.S.C. § 4248(d)


   1. Whether the respondent has engaged or attempted to engage in sexually violent
      conduct or child molestation.

       The Court finds that the government has established by clear and convincing evidence

that Mr. Ebel has engaged in sexually violent conduct or child molestation in the past. Mr. Ebel

has conceded that this element is satisfied [DE 114].

   2. Whether the respondent currently suffers from a serious mental illness,
      abnormality, or disorder.

   To meet its burden on this point, the government must prove by clear and convincing

evidence that the respondent: "suffers from a serious mental illness, abnormality, or disorder."

Civil commitment is limited to individuals whose mental illness renders them dangerous beyond

their control. United States v. Francis, 686 F.3d 265, 275 (4th Cir. 2012). The determination of

whether an individual's mental illness rises to the level of a sexually dangerous person is fact

specific as viewed by expert psychiatrists and psychologists. !d. This evaluation of petitioner's

mental illness is not limited by the diagnoses contained in the DSM; rather, sexual

dangerousness is a legal concept that necessarily exceeds sometimes narrow medical definitions.

See United States v. Caporale, 701 F.3d 128, 136 (4th Cir. 2012).

       Drs. Cunic and Davis diagnosed Mr. Ebel with pedophilia, sexually attracted to males,

nonexclusive type and paraphilia, not otherwise specified (hebephilia). The American Psychiatric

Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, (DSM-V)

requires that the following criteria be met to support this diagnosis: "A. Over a period of at least

6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving


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            Case 5:10-hc-02124-BO Document 117 Filed 08/30/13 Page 3 of 7
sexual activity with a prepubescent child or children (generally age 13 years or younger). B. The

individual has acted on these sexual urges, or the sexual urges or fantasies cause marked distress

or interpersonal difficulty. C. The individual is at least age 16 years and at least 5 years older

than the child or children in Criterion A." DSM-V at 697.

       Dr. Plaud rejected a diagnosis of pedophilia because he opined that the trajectory of Mr.

Ebel's sexual attraction focused on pubescent and post-pubescent males. Dr. Plaud

acknowledged that Mr. Ebel had sexually touched boys as young as eight and had admitted to

being attracted to thirteen and fifteen year-old boys. Dr. Plaud, however, explained away these

instances of pedophilic behavior by stating that they were but brief encounters that did not meet

the DSM's requirement that such behavior be "recurrent and intense." Dr. Plaud rejected a

diagnosis of hebephilia because such a diagnosis cannot be found in the DSM.

       Dr. Plaud's testimony was strongly countered by the live testimony of two of Mr. Ebel's

victims. Mr. Marien explained how Mr. Ebel took advantage of him when he was twelve years

old and participating in a young pilots program, of which Mr. Ebel was a leader. Mr. Klein told a

similar story   Mr. Ebel took advantage of him when was twelve years old. At the time, Mr. Ebel

was Mr. Klein's math teacher and a person to whom Mr. Klein looked for guidance and advice.

Mr. Klein related to the Court how Mr. Ebel had performed oral sex on him every night for

approximately eight months when Mr. Klein was just twelve years old. Mr. Ebel had explained

to his twelve-year-old victim, one of the shortest in his class, that such sexual contact would help

Mr. Klein grow taller. This victim testimony was particularly persuasive.

       The Court credits the testimony of Dr. Cunic and Dr. Davis's testimony, and finds that

Dr. Plaud did not provide a persuasive justification as to why Mr. Ebel does not satisfy the

relevant diagnostic criteria for pedophilia and paraphilia NOS (hebephilia).



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            Case 5:10-hc-02124-BO Document 117 Filed 08/30/13 Page 4 of 7
   3. Whether, as a result of the illness, abnormality, or disorder, the respondent would
      have serious difficulty in refraining from sexually violent conduct or child
      molestation if released.

       The government has also met its burden to establish, by clear and convincing evidence,

that Mr. Ebel will have serious difficulty in refraining from sexually violent conduct or child

molestation if released. As noted by the Fourth Circuit in United States v. Hall,


       [t]he 'serious difficulty' prong of 4248's certification proceeding refers to the
       degree of the person's "volitional impairment," which impacts the person's ability
       to refrain from acting upon his deviant sexual interest. Kansas v. Hendricks, 521
       U.S. 346, 358 (1997) (noting that statutory requirements that couple proof of
       dangerousness with proof of a mental illness or abnormality "serve to limit
       involuntary civil confinement to those who suffer from a volitional impairment
       rendering them dangerous beyond their control"); id. at 357(noting that civil
       commitment statutes may "provide[] for the forcible civil detainment of people
       who are unable to control their behavior and who thereby pose a danger to the
       public health and safety . . . provided the confinement takes place pursuant to
       proper procedures and evidentiary standards") (internal citations omitted); see
       also Kansas v. Crane, 534 U.S. 407, 414 (2002) (noting that "our cases suggest
       that civil commitment of dangerous sexual offenders will normally involve
       individuals who find it particularly difficult to control their behavior.")
The Fourth Circuit has found that in weighing the serious difficulty prong, it is

appropriate to consider the following factors: (1) failures while on supervision; (2)

resistance to treatment; (3) continued deviant thoughts; (4) cognitive distortions; (5)

actuarial risk assessments; (6) impulsiveness; and (7) historical offenses. United States v.

Wooden, 693 F.3d 440 (4th Cir. 2012).

       The Court is persuaded, by clear and convincing evidence, that the circumstances

surrounding Mr. Ebel' s behavior while imprisoned, while being knowingly subjected to

the highest level of scrutiny, indicate that Mr. Ebel would have serious difficulty in

refraining from sexually violent conduct or child molestation if released.

       The respondent has an ongoing fixation with deviant adolescent molestation. His

refusal to participate in treatment is just the first sign that he would have difficulty in

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           Case 5:10-hc-02124-BO Document 117 Filed 08/30/13 Page 5 of 7
refraining from child molestation. Even while in prison he has continued to have deviant

thoughts, and fantasizes and writes about such sexual conduct. From his autobiographical

manuscript to his re-creations of decades-old catalogues of prepubescent and pubescent

male sexual characteristics, even in the most scrutinized of environments - federal prison

-the defendant continues to plot out his fantasy.

       And his brazenness doesn't stop there; there is evidence that he recently attempted

to contact a teenage boy who had become known for allegedly killing his father after

being subjected to sexual abuse. Mr. Ebel's efforts to contact this teenager reflect an

impulsiveness that suggests Mr. Ebel does not consider the consequences of his desires

before taking action. His own testimony about his sexuality and sexual arousal is

equivocaL He explained to Dr. Plaud that he was attracted to thirteen and fifteen year old

boys. In his testimony to the Court, however, he claimed that he no longer experienced

any sexual arousaL This conflicting testimony is troubling. Further, given his admitted

past sexual conduct, it is surprising that the respondent has no apparent plan for his life

after release. His wife stated that she will not live with him and that she is not sure she

even loves him.

       In addition to these qualitative observations, each of the testifying experts relied,

to a greater or lesser degree, on actuarial instruments. Dr. Cunic used the STATIC -99

and the STATIC -99R to assess the respondent's risk ofre-offense. On the STATIC -99

Mr. Ebel scored a four. On the STATIC -99R he scored a one. This score places Mr. Ebel

in the low-risk category for sexual offenders. The difference between the two scores

reflects Mr. Ebel's age. Dr. Davis also used the SRA:FV assessment and testified that the




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            Case 5:10-hc-02124-BO Document 117 Filed 08/30/13 Page 6 of 7
test "yielded a result that suggested he has a very high level of treatment need or dynamic

and psychological risk factors."

       It is important to note that these actuarial risk assessments reflect relative risk

among various large groups of individuals and do not provide specific risks or

probabilities for any individual. These actuarial models do a particularly poor job of

predicting Mr. Ebel' s risk of re-offending because his sexually deviant conduct and

fantasies have not tapered as he has aged and these models assume a drop off in such

conduct with age. Viewed in light of Mr. Ebel's ongoing conduct and individual

circumstances, the risk assessment and dynamic factors support a conclusion that the

respondent would have serious difficulty in refraining from reoffending.

                                      CONCLUSION

       For the foregoing reasons, judgment shall be entered in favor ofthe petitioner, the

United States of America, and against the respondent, Peter M. Ebel. Mr. Ebel shall be

committed to the custody of the Attorney General pursuant to 18 U.S.C. 4248. As stated

above, the government's motion to amend its proposed findings of fact is GRANTED.

SO ORDERED.

This the   l l day of August, 2013.


                                             ~Ew.~~
                                             UNITED STATES DISTRICT JUDGE




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             Case 5:10-hc-02124-BO Document 117 Filed 08/30/13 Page 7 of 7

				
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