UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-6831

UNITED STATES OF AMERICA,

Petitioner - Appellee,

v.

CARLOS OFARRIT-FIGUEROA,

Respondent - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Terrence W. Boyle, 

District Judge. (5:10-hc-02022-BO)

Argued: May 17, 2013 Decided: July 17, 2013

Before KEENAN and FLOYD, Circuit Judges, and Henry E. HUDSON, 

United States District Judge for the Eastern District of 

Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Raleigh, North Carolina, for Appellant. Michael 

Gordon James, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, 

North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, 

Federal Public Defender, G. Alan DuBois, Assistant Federal 

Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, 

North Carolina, for Appellant. Thomas G. Walker, United States 

Attorney, Jennifer P. May-Parker, Assistant United States 

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North 

Carolina, for Appellee.
2

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM: 

Carlos Ofarrit-Figueroa (“Ofarrit-Figueroa”) appeals his 

civil commitment as a sexually dangerous person under the Adam 

Walsh Child Protection and Safety Act of 2006 (“the Act”). 18 

U.S.C. § 4248. Following an evidentiary hearing, the district 

court found that Ofarrit-Figueroa had previously engaged, or 

attempted to engage, in sexually violent conduct; that he 

suffered from paraphilia not otherwise specified with 

exhibitionist features, a serious mental illness, abnormality or 

disorder; and that Ofarrit-Figueroa would have serious 

difficulty in refraining from engaging in sexually violent 

conduct as a result of a serious mental illness, abnormality or 

disorder. The district court committed Ofarrit-Figueroa to the 

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

On appeal, Ofarrit-Figueroa challenges his commitment 

contending that the district court clearly erred in two of the 

requisite findings under the Act. He contends that the district 

court diagnosed him with a mental disorder unsupported by the 

expert opinions offered at the hearing. He also maintains that 

the district court failed to connect its finding of substantial 
4

difficulty in refraining from sexually violent conduct to its 

finding of a serious mental disorder.1 

The Adam Walsh Child Protection and Safety Act of 2006, 18 

U.S.C. § 4247–48 provides for the civil commitment of a sexually 

dangerous person following the expiration of their federal 

prison sentence. 18 U.S.C. § 4248(a). A person is deemed to be 

sexually dangerous under the Act if he or she has “engaged or 

attempted to engage in sexually violent conduct or child 

molestation and who is sexually dangerous to others.” 18 U.S.C. 

§ 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.” 18 U.S.C. § 4247(a)(6). 

Commitment under the Act requires these findings by clear and 

convincing evidence. 18 U.S.C. § 4248(d). 

Ofarrit-Figueroa is presently 55 years old. He was born in 

Havana, Cuba in 1957 and migrated to the United States as part 

of the Mariel boat flotilla. (J.A. 260–61.) Prior to his 

 1 Ofarrit-Figueroa also argues that 18 U.S.C. § 4248 

violates the Equal Protection Clause of the United States 

Constitution. As Ofarrit-Figueroa acknowledges in his brief, 

this Court previously rejected this challenge in United States 

v. Timms, 664 F.3d 436, 456 (4th Cir. 2012). Ofarrit-Figueroa

offers no authority or argument which would compel this Court to 

revisit that decision.
5

arrival in the United States, Ofarrit-Figueroa was serving a ten 

year sentence for robbery in Cuba. (J.A. 74–75.) OfarritFigueroa denied sexually deviant behavior, i.e., masturbating 

openly, during his confinement in Cuba, because he had two 

girlfriends and was allowed conjugal visits every 30 days. 

(J.A. 91–92.)

Soon after his arrival in Florida, Ofarrit-Figueroa was 

taken into custody by the Immigration and Naturalization Service 

and confined in various facilities, including the United States 

Penitentiary (“USP”) in Atlanta, Georgia. In 1981, he was 

released on parole and relocated to New Jersey.

In 1982, while residing in New Jersey, Ofarrit-Figueroa

sexually assaulted a woman at knifepoint and stole her purse. As 

a result of this incident, he was later charged with and 

convicted of robbery in the first degree, aggravated sexual 

assault in the first degree, possession of a weapon and 

possession of a weapon for unlawful purpose. (J.A. 79–80, 330, 

359–60, 365–66, 407.)

However, prior to his conviction for rape and robbery in 

New Jersey, Ofarrit-Figueroa was found guilty in the State of 

Texas of armed robbery and was sentenced to five years 

imprisonment. (J.A. 80–82, 330.) Upon completion of this 

sentence, he was returned to the State of New Jersey to stand 

trial for the 1982 robbery, aggravated sexual assault and 
6

weapons charges. Ofarrit-Figueroa was convicted on all four 

counts and sentenced to a total of 18 years imprisonment. While 

housed in the New Jersey correctional system, Ofarrit-Figueroa

routinely masturbated in front of female correctional officers. 

At the evidentiary hearing in the immediate civil commitment 

proceeding, Ofarrit-Figueroa testified that he did this because 

he wanted the female officers to fall in love with him. (J.A. 

81–82.) 

In 1994, he was paroled into the custody of the Immigration 

and Naturalization Service. After being housed in a number of 

local facilities, he was transferred to the Federal Correctional 

Center (“FCC”) in Terre Haute, Indiana, where he was assigned to 

work in the food service area. On March 22, 2000, OfarritFigueroa struck, bit, kissed and sexually assaulted his female 

supervisor at that institution. When she attempted to summon 

help, Ofarrit-Figueroa knocked her radio from her hand. (J.A. 

82–86, 330–31.)

As a result of the incident at FCC Terre Haute, OfarritFigueroa was convicted of sexually assaulting and inflicting 

bodily injury on an employee of the Federal Bureau of Prisons

(“BOP”). He was sentenced to ten years imprisonment and 

designated to the USP in Marion, Illinois. (J.A. 330-31, 358.) 

At USP Marion, he continued to expose himself and openly 

masturbate in the presence of female staff, often as an 
7

expression of his anger. (J.A. 87, 89, 100.) In 2005, at his 

request, he was placed in the Sex Offender Management Program. 

However, because of his continuous sexual misbehavior, he was 

placed in a more secure special housing unit. (J.A. 343.) This 

was largely a result of his continued aggressive masturbation in 

the presence of female correctional officers he found 

attractive.

In the opinion of a staff psychologist at USP Marion, 

Ofarrit-Figueroa was deemed inappropriate for participation in a 

more intensive hypersexuality management program. The 

psychologist concluded that Ofarrit-Figueroa failed to accept 

responsibility for his actions, lacked motivation to change and

had a defiant attitude toward disciplinary sanctions.2

 (J.A. 

106.)

Ofarrit-Figueroa was eventually transferred to the BOP’s

most secure facility, the FCC in Florence, Colorado. He 

remained at that institution from 2006 to February 2010.3

 After 

a precertification evaluation for commitment as a seriously 

dangerous person under 18 U.S.C. § 4248, he was placed in a 

 2 Ofarrit-Figueroa admitted refusing to obey orders and 

throwing feces at correctional officers. (J.A. 99–100.)

3 Ofarrit-Figueroa was placed in secure and isolated status 

from 2000 through 2010, following his conviction for sexually 

assaulting a female officer. During that period, he had limited 

contact with BOP personnel or other inmates.
8

secure section of the Federal Correctional Institute (“FCI”) in

Butner, North Carolina (J.A. 337, 345.) At FCI Butner, OfarritFigueroa was evaluated by a certification review board, composed 

of a number of mental health professionals.

During intake processing at FCI Butner, Ofarrit-Figueroa

was initially evaluated by Dr. Andres Hernandez, the clinical 

coordinator of the commitment and treatment program at that 

facility. Ofarrit-Figueroa told Dr. Hernandez that women 

enjoyed having sexual intercourse with him and that he could not 

resist exposing himself while in prison. He further revealed to 

the psychologist that he believed that women who worked in 

prisons enjoyed observing inmates openly masturbating in their 

presence. (J.A. 109–11.)

The next mental health professional to come into contact 

with Ofarrit-Figueroa was Dr. Melanie Malterer, a sex offender 

program psychologist at FCI Butner. On May 28, 2010, Dr. 

Malterer observed Ofarrit-Figueroa exercising outside her window 

in a prohibited area. He was staring directly at her, 

shirtless, and appeared to have an erection. (J.A. 118.) 

Approximately one week later, an inmate reported to Dr. Malterer 

that Ofarrit-Figueroa was masturbating as she walked down the 

hallway. (J.A. 121–23.) 

As a result, Ofarrit-Figueroa was placed in inmate 

segregation. This restricted confinement was extended after Dr. 
9

Malterer learned from several inmates that Ofarrit-Figueroa

referred to her as his girl and that she enjoyed watching him 

exercise outside her office. During his confinement in this 

annex area, Dr. Malterer, while conducting an evaluation of 

another inmate, observed Ofarrit-Figueroa place his penis 

through the cell door food tray and masturbate as he stared at 

her through a mirror he held in his hand. When Dr. Malterer 

directed him to stop masturbating, Ofarrit-Figueroa refused and 

exhorted that “now you have a reason to lock me up, bitch.” 

(J.A. 123.) 

As part of the certification evaluation process, OfarritFigueroa was also evaluated by Dr. Dawn Graney, a sex offender 

forensic psychologist employed by the BOP. Dr. Graney testified 

that she diagnosed Ofarrit-Figueroa with exhibitionism, a 

paraphilia whereby individuals have recurrent and strong urges 

to expose themselves to nonconsenting strangers. Dr. Graney’s 

clinical impressions also included a diagnosis of personality 

disorder/antisocial personality disorder. She elaborated that 

antisocial personality disorder is a pattern of serious rule 

violations or disregard for the rights or welfare of others.

She added that both are mental disorders identified in the 

American Psychiatric Association’s Diagnostic and Statistical 

Manual of Mental Disorders, Fourth Edition, Text Revision (the 

“DSM”). (J.A. 55–56, 347, 349.) 
10

Dr. Graney concluded that Ofarrit-Figueroa masturbated in 

front of nonconsenting individuals as a means of initiating 

sexual activity with women and that he also used this behavior 

to retaliate against or exhibit anger toward women. (J.A. 56–

57.) In her view, unlike the typical exhibitionist, OfarritFigueroa could be very intimidating and threatening. (J.A. 57.) 

As an example, she described him as “engaging in stalking 

behaviors or leering at female staff.” (J.A. 61.) It was also 

her opinion that if faced with a woman who rejected his 

advances, he would engage in aggressive and threatening 

activity. (J.A. 60–61.) Based on psychological testing, Dr. 

Graney also testified that Ofarrit-Figueroa lacked volitional 

control, posed a high risk of sexually reoffending and would 

have serious difficulty in refraining from sexually violent 

conduct if he were to be released. (J.A. 63–64.)

The United States also called Dr. Hy Malinek, a clinical 

and forensic psychologist with offices in Beverly Hills, 

California. Dr. Malinek initially diagnosed Ofarrit-Figueroa

with exhibitionism and antisocial personality disorder. Dr. 

Malinek, however, on further evaluation, revised his findings in 

a second supplementary report, to paraphilia not otherwise 

specified (“NOS”) and antisocial personality disorder. (J.A.

131.) Dr. Malinek explained that the later diagnosis was more 

appropriate because Ofarrit-Figueroa possessed elements of 
11

several serious disorders. He described Ofarrit-Figueroa as an 

atypical exhibitionist that did not fit squarely within this DSM 

diagnostic category because he desired to have sex with his 

victims. (J.A. 131–33.) Dr. Malinek noted that “[h]e fixates 

on people. He has committed two sexual -– two hands on sexual 

assaults. One is on a woman at the BOP at Terre Haute in 

Indiana.” (J.A. 132.) Dr. Malinek also observed that OfarritFigueroa possessed a distorted perception that women wanted to 

have sex with him and that his role is to “bring joy to the 

world [with his penis] and that this is appropriate behavior, 

there’s nothing wrong with this . . . .” (J.A. 139.) Dr. 

Malinek added that this distorted perception “clearly amplifies

his dangerousness.” (J.A. 139.)

Based upon his evaluation, Dr. Malinek concluded that 

Ofarrit-Figueroa met the criteria for civil commitment under 18 

U.S.C. § 4248. (J.A. 130.) In Dr. Malinek’s view, OfarritFigueroa’s distorted thinking about his role with women and 

feelings of entitlement when combined with his antisocial 

personality disorder, make him sexually dangerous if rejected by 

a woman. (J.A. 149–53.)

The final expert witness was Dr. Luis Benjamin Rosell, 

called by Ofarrit-Figueroa. Dr. Rosell is a clinical and 

forensic psychologist with offices in Mount Pleasant, Iowa. Dr. 

Rosell testified that his evaluation did not reveal that 
12

Ofarrit-Figueroa met the criteria for civil commitment under the 

Adam Walsh Act. In Dr. Rosell’s opinion, Ofarrit-Figueroa would 

not have serious difficulty in refraining from sexually violent 

conduct. (J.A. 181-82.) Dr. Rosell rejected the notion that 

Ofarrit-Figueroa suffered from any paraphilia, particularly 

exhibitionism. Dr. Rosell identified several distinguishing 

features about Ofarrit-Figueroa’s conduct. Most prominently, he 

exposed himself to individuals with whom he would have recurring 

contact. Atypically, he did not engage in exposure solely for 

shock value. Instead, Ofarrit-Figueroa was motivated by a 

desire to engage in sexual intercourse with the individuals to 

whom he exposed himself. (J.A. 183-85.)

Dr. Rosell diagnosed Ofarrit-Figueroa with antisocial 

personality but cautioned that he did not believe that it 

existed to a degree that would inhibit him in refraining from 

engaging in sexually violent conduct. (J.A. 182.) Dr. Rosell 

also disagreed that Ofarrit-Figueroa posed a high risk of 

sexually reoffending because, in Dr. Rosell’s view, he had other 

opportunities to sexually offend while incarcerated but chose 

not to act on them. (J.A. 185.) Dr. Rosell also discounted Dr. 

Malinek’s assessment that Ofarrit-Figueroa’s sexual aggression 

was the product of anger. Instead, he believed that OfarritFigueroa exposed himself in an effort to gain consensual

intercourse. (J.A. 192-94.) Dr. Rosell did acknowledge, 
13

however, that a number of his diagnostic tools revealed factors 

that increased Ofarrit-Figueroa’s risk of sexual recidivism. 

(J.A. 202-04.) 

In its findings of fact and conclusions of law, the 

district court found that the United States had demonstrated by 

clear and convincing evidence that Ofarrit-Figueroa met the 

criteria for commitment under 18 U.S.C. § 4248. The court 

initially noted that Ofarrit-Figueroa stipulated that he had 

engaged in sexually violent conduct in the past, as reflected by 

his criminal history.

In its analysis of the expert testimony, the court 

acknowledged disagreement as to the appropriate diagnosis of 

Ofarrit-Figueroa’s mental illness. The court also observed that 

all three of the forensic psychologists agreed that OfarritFigueroa’s case was unique. The court attributed more weight to 

the testimony and findings of Drs. Malinek and Graney than that 

of Dr. Rosell. Both Drs. Malinek and Graney concluded that 

Ofarrit-Figueroa suffered from a serious mental illness, 

abnormality or disorder. However, neither found that his 

aggressive tendency to expose himself indecently, particularly 

when coupled with his desire to initiate sexual encounters, 

placed him squarely within any diagnostic label found in the

DSM. The court therefore concluded that the evidence supported 

a finding of paraphilia NOS, which met the criteria for a mental 
14

disorder under the Act. Specifically, the court credited Dr. 

Malinek’s opinion, stating that:

Mr. Ofarrit-Figueroa suffers from paraphilia NOS on

the basis that he demonstrates paraphilic tendencies 

but does not “cleanly” meet the diagnostic criteria 

for exhibitionism. On that basis alone, the Court 

finds that Petitioner has met its burden to 

demonstrate by clear and convincing evidence that Mr. 

Ofarrit-Figueroa suffers from a serious mental 

illness, abnormality, or disorder. 

(J.A. 303–04.)

Lastly, the court concluded that as a result of the 

illness, abnormality or disorder, Ofarrit-Figueroa would have 

serious difficulty in refraining from sexually violent conduct 

or child molestation if released. In drawing its conclusions on 

this element, the court relied on the teachings of United States 

v. Hall, 664 F.3d 456 (4th Cir. 2012). In Hall, the Fourth 

Circuit noted that 

the “serious difficulty” prong of § 4248’s 

certification proceeding refers to the degree of the 

person’s “volitional impairment,” which impacts the 

person’s ability to refrain from acting upon his 

deviant sexual interests. Kansas v. Hendricks, 521 

U.S. 346, 358 (1997) . . . (noting that statutory 

requirements that couple proof of dangerousness with 

proof of a mental illness or abnormality “serve to 

limit involuntary civil confinement to those who 

suffer from a volitional impairment rendering them 

dangerous beyond their control”).

664 F.3d at 463. 

After recounting in detail the sexually aggressive conduct 

exhibited by Ofarrit-Figueroa during his confinement within the 
15

BOP, his prior criminal history, and the findings of Dr. Malinek 

and Dr. Graney, the court concluded that “Ofarrit-Figueroa has

demonstrated, even while incarcerated, a serious inability to 

refrain from acting upon his deviant sexual interests. It 

appears that he has found it particularly difficult to control 

his behavior.”4 (J.A. 304.)

The two central issues raised on this appeal are whether 

the district court properly anchored its finding of substantial 

difficulty in refraining from sexually violent conduct to its 

finding of a serious mental disorder. In addition, OfarritFigueroa contends that the district court erred in adopting a 

mental diagnosis of Ofarrit-Figueroa unsupported by the expert 

testimony. 

In cases in which the government seeks civil commitment of 

a convicted sex offender under the Walsh Act, this Court reviews 

the district court’s findings for clear error and its legal 

conclusions de novo. United States v. Wooden, 693 F.3d 440, 451 

(4th Cir. 2012). Under the clear error standard, “[i]f the 

district court’s account of the evidence is plausible in light 

of the record viewed in its entirety, [we] may not reverse it 

even though convinced that had [we] been sitting as the trier of 

 4 During his confinement, Ofarrit-Figueroa was cited for 

fifty disciplinary infractions for sexually related conduct. 

(J.A. 99.)
16

fact, [we] would have weighed the evidence differently.” Id.

(quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S. 

Ct. 1504, 1511 (1985)) (internal quotation marks omitted). When 

the district court’s findings “are based on determinations 

regarding the credibility of witnesses, we give even greater 

deference to the trial court’s findings.” Hall, 664 F.3d at 462 

(quoting Anderson, 470 U.S. at 575, 105 S. Ct. at 1512).

Nevertheless, “while clear-error review is deferential, it 

is not toothless,” and, therefore, we may set aside a district 

court’s factual findings if the court failed to “properly tak[e] 

into account substantial evidence to the contrary” or its 

“factual findings are against the clear weight of the evidence 

considered as a whole.” Wooden, 693 F.3d at 452, 454, 462 

(citations and internal quotation marks omitted). Even so, we 

may find a district court’s factual findings were clearly 

erroneous only if we are “left with the definite and firm 

conviction that a mistake has been committed.” Id. at 451 

(citation and internal quotation marks omitted).

Focusing first on the diagnosis by the district court, 

Ofarrit-Figueroa contends that it is unsupported by the expert 

testimony. He argues that the district court “fundamentally 

misunderstood Dr. Malinek’s report and based its conclusion on 

that fundamental misunderstanding.” (Appellant’s Reply Br. 1.) 

According to Ofarrit-Figueroa, the district court erroneously 
17

concluded that Dr. Malinek’s diagnosis was paraphilia NOS, based 

on his exhibition-like tendencies. This Court disagrees with 

Ofarrit-Figueroa’s characterization.

While Dr. Malinek discussed exhibitionism in explaining his 

diagnosis, Ofarrit-Figueroa points out that Dr. Malinek rejected 

this diagnostic label and concluded that he fit more squarely in 

the category of paraphilia NOS nonconsent. This was predicated 

on Ofarrit-Figueroa’s interest in nonconsenting partners and his 

belief that indecent exposure was a vehicle intended to lure 

sexual partners. Dr. Malinek characterized his behavior as a 

“fundamental courtship disturbance.” (J.A. 302.)

The district court prefaced its impression of the evidence 

by emphasizing that all three of the forensic psychologists who 

testified described Ofarrit-Figueroa’s case as unique. The 

court further noted an apparent consensus among the experts that 

Ofarrit-Figueroa suffered from a serious mental illness, 

abnormality or disorder. The principle disagreement distilled 

to differences in diagnostic labeling. The behavior pattern 

demonstrated by Ofarrit-Figueroa was complex with manifestations 

that defied placement within the established diagnostic criteria 

contained in the DSM. In the final analysis, after thoroughly 

considering the contrary viewpoint of Dr. Rosell, the court 
18

found Dr. Malinek’s diagnosis and reasoning to be the most 

persuasive.5

In articulating its findings and conclusions, the district 

court found the evidence to best support the opinion of Dr. 

Malinek, namely that Ofarrit-Figueroa’s “incidents of indecent 

exposure, boundary violations, stalking, leering, and following 

a particular staff member supported this diagnosis of paraphilia

NOS.” (J.A. 302.) The court explained that the nomenclature 

NOS was employed as a residual diagnostic category throughout 

the DSM as a classification of individuals whose behavior does 

not cleanly fit into specified diagnostic categories. (J.A. 

302.) The court further explained that the nonconsent specifier 

used to describe Ofarrit-Figueroa’s paraphilia NOS was driven by 

two independent bases. First, he met some but not all of the 

criteria for an exhibitionism diagnosis. Second, and perhaps 

more importantly, Dr. Malinek utilized the diagnosis specifier 

nonconsent to reflect Ofarrit-Figueroa’s “anger and . . . need

to denigrate women and empower himself.” (J.A. 303.) Although 

the court expressed some reservation in embracing the nonconsent 

specifier, it found the explanation sufficient to support a 

 5 Dr. Graney’s conclusions paralleled those of Dr. Malinek 

in most respects, although she preferred a slightly different 

diagnostic label.
19

paraphilia NOS diagnosis and to meet the criteria for mental 

disorder under the Act. 

The district court further concluded that Ofarrit-Figueroa

demonstrated paraphilic tendencies but “does not ‘cleanly’ meet 

the diagnostic criteria for exhibitionism. On that basis alone, 

the Court finds that Petitioner has met its burden to 

demonstrate by clear and convincing evidence that Mr. OfarritFigueroa suffers from a serious mental illness, abnormality, or 

disorder.” (J.A. 303–04.) This Court finds no error in the 

district court’s conclusions.

In reviewing petitions for civil commitment under the Adam 

Walsh Act, the science of psychiatry informs but does not 

control the court’s ultimate legal determinations. Kansas v. 

Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 871 (2002) (citations 

omitted). Moreover, the Act contains no “language purporting 

to confine the universe of qualifying mental impairments within 

clinical or pedagogical parameters.” United States v. Caporale, 

701 F.3d 128, 136 (4th Cir. 2012). Qualifying mental 

abnormalities can encompass conditions falling outside the DSM 

or other well-defined clinical standards. This is such a case.

Irrespective of diagnostic labeling, the evidence was clear 

and convincing that Ofarrit-Figueroa suffered from a serious 

mental illness, abnormality or disorder. The diagnosis of 

paraphilia not otherwise specified standing alone is sufficient 
20

to satisfy the requirements of the Act. See United States v. 

Carta, 592 F.3d 34, 40 (1st Cir. 2010). It appears from the 

district court’s findings of fact and conclusions of law that 

the addition of the phrase “with exhibitionist tendencies” are 

words of explanation rather than qualification. Although each 

of the psychologists testifying in this case concluded that

Ofarrit-Figueroa’s behavior was inconsistent with typical 

exhibitionism, each acknowledged that his indecent exposure was 

a critical diagnostic element. Given this behavioral 

characteristic, common to the findings of all experts, it was 

certainly understandable that the court added this descriptive 

language to its findings.

The district court was clearly guided by the content of the

expert testimony, particularly that of Dr. Malinek and Dr. 

Graney, but was not obligated to accept their diagnostic labels. 

As the Supreme Court stressed in Kansas v. Hendricks, “[n]ot 

only do psychiatrists disagree widely and frequently on what 

constitutes mental illness, . . . but the Court itself has used 

a variety of expressions to describe the mental condition of 

those properly subject to civil confinement.” 521 U.S. at 359, 

117 S. Ct. at 2080 (citations and internal quotation marks

omitted). At that stage of the analysis, the district court’s 

task was to determine whether the evidence supported clearly and 

convincingly that Ofarrit-Figueroa suffered from a serious 
21

mental illness, abnormality or disorder. The trial court’s 

legal conclusions and factual findings were not clearly 

erroneous.

The final, and perhaps closer issue, is whether the 

district court adequately connected its finding of substantial 

difficulty in refraining from sexually violent conduct to its 

diagnosis of a serious mental disorder. This “prong of the § 

4248’s certification proceeding refers to the degree of the 

person’s volitional impairment, which impacts the person’s 

ability to refrain from acting upon his deviant sexual 

interests.” Hall, 664 F.3d at 463 (citations and internal 

quotation marks omitted). It is a forward-looking inquiry which 

attempts to predict future behavior and the extent to which an 

inmate is controlled by his illness. United States v. Francis, 

686 F.3d 265, 275 (4th Cir. 2012). As courts have recognized, 

this is the most challenging strand of the Act criteria for 

civil commitment.

The question of whether a person is “sexually dangerous” is 

“by no means an easy one,” and “there is no crystal ball that an 

examining expert or court might consult to predict conclusively 

whether a past offender will recidivate.” United States v. 

Shields, 649 F.3d 78, 89 (1st Cir. 2011). “Whether the 

individual is mentally ill and dangerous either to himself or 

others . . . turns on the meaning of the facts which must be 
22

interpreted by expert psychiatrists and psychologists.” 

Addington v. Texas, 441 U.S. 418, 429, 99 S. Ct. 1804, 1811

(1979) (emphasis in original). “In the end, however, it is for 

the factfinder to decide among reasonable interpretations of the 

evidence and determine the weight accorded to expert witnesses.” 

Shields, 649 F.3d at 89 (citations and internal quotation marks 

omitted).

In reviewing the district court’s findings on the 

volitional impairment prong, it is important to be mindful that 

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

opinions is a function best committed to the district courts . . 

. . An appellate court should be especially reluctant to set 

aside a finding 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). 

The district court discounted the opinion advanced by Dr. 

Rosell as inconsistent with Ofarrit-Figueroa’s demonstrated 

pattern of behavior. Dr. Rosell placed considerable weight on 

the fact that Ofarrit-Figueroa had not engaged in any sexually

assaultive behavior in the years immediately preceding his 

evaluation. However, during almost that entire time period, 

Ofarrit-Figueroa was in segregated lockdown at a supermax 

facility isolated from other people.
23

In concluding that Ofarrit-Figueroa would have serious 

difficulty in refraining from engaging in sexually violent 

conduct as a result of serious mental illness, abnormality or 

disorder, the district court clearly considered and weighed the 

testimony of all three psychologists, reviewed the actuarial and 

psychological tests performed, and attached considerable weight 

to his troubling history of sexual deviance. In the district 

court’s findings of fact and conclusions of law, as a predicate 

to its conclusions under this prong, the court detailed OfarritFigueroa’s sexually violent conduct, including committing a rape 

at knife point, sexually assaulting a correctional officer, and 

over forty incident reports since 1999 for behavior, including 

making sexual proposals or threats, engaging in sexual acts and 

indecent exposure.6

 (J.A. 304-05.)

In concluding that Ofarrit-Figueroa would have serious 

difficulty in refraining from sexually violent conduct if 

released, the district court carefully analyzed the actuarial 

instruments relied upon by the expert witnesses. Collectively 

viewed in light of Ofarrit-Figueroa’s individual circumstances, 

the court found these actuarial assessment results to be 

 6 As the United States Supreme Court recognized in 

Hendricks, “ʽprevious instances of violent behavior are an 

important indicator of future violent tendencies.’” 521 U.S. at 

358, 117 S. Ct. at 2080 (quoting Heller v. Doe, 509 U.S. 312, 

323, 113 S. Ct. 2637 (1993)).
24

consistent with its conclusion that Ofarrit-Figueroa posed a 

high risk of recidivism. The precision with which the court 

linked the volitional component to a well-defined mental 

disorder, however, was necessarily governed by the inability of 

the experts to diagnostically capture Ofarrit-Figueroa’s 

aberrant behavior.

As this Court has previously noted, the task of assessing 

the likelihood of future sexually violent conduct if OfarritFigueroa is released, does not lend itself to scientific 

precision. The district court’s findings represent a logical 

and reasonable interpretation of the evidence, and we cannot say 

that the district court clearly erred in finding that OfarritFigueroa is sexually dangerous within the meaning of the Adam 

Walsh Act.

AFFIRMED