APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Patti B. Saris, U.S. District Judge]
The opinion of the court was delivered by: Howard, Circuit Judge.
Before Howard, Selya and Thompson, Circuit Judges.
Todd Carta appeals the district court's ruling that he is a "sexually dangerous person" subject to civil commitment under the Adam Walsh Child Protection and Safety Act of 2006 ("the Act").*fn1 After review of the record and the district court's factual findings and legal conclusions, we affirm.
Carta pled guilty to federal child pornography charges in 2002 and was sentenced to five years in prison and three years of supervised release. Prior to his scheduled release in 2007, the Bureau of Prisons certified that Carta was a "sexually dangerous person" and commenced proceedings pursuant to the Act, which authorizes civil commitment of a person in federal custody. 18 U.S.C. § 4248(a). A "sexually dangerous person" is one "who has engaged or attempted to engage in sexually violent conduct or child molestation and is sexually dangerous to others." 18 U.S.C. § 4247(a)(5). A determination that an individual is a "sexually dangerous person" requires the government to prove by clear and convincing evidence that he "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).*fn2
After a district judge ruled that the government had failed to establish that Carta's diagnosis of "paraphilia not otherwise specified characterized by hebephilia" was a "serious mental illness, abnormality or disorder" within the meaning of the Act, United States v. Carta, 620 F. Supp. 2d 210 (D. Mass. 2009) ("Carta I"), a panel of this court reversed, holding that the district court erred in ruling that the government had failed to establish the serious mental illness element. United States v. Carta, 592 F.3d 34, 44 (1st Cir. 2010) ("Carta II"). The case was remanded for consideration of "whether the requisite dangerousness exists." Id. A different district court judge subsequently conducted a seven-day trial, ultimately ruling in the government's favor. See United States v. Carta, No. 07-12064-PBS, 2011 WL 2680734 (D. Mass. July 7, 2011) ("Carta III"). This timely appeal followed.
We begin by observing that Carta, who was 42 years old when he pled guilty to the child pornography charges for which he was incarcerated, does not deny that the Act's first element -- that he has engaged in child molestation in the past -- is satisfied. His lengthy history of committing sexual abuse, beginning when he was 11 years old and including many such acts over the course of three decades, is detailed in both district court orders. See Carta III, 2011 WL 2680734 at *3-7; Carta I, 620 F. Supp. 2d at 212-14. We eschew repeating the details of his history here. In addition to his prior abusive conduct, Carta also displayed troubling behavior while in a sex offender treatment program in federal prison. After being transferred at his request to a prison in North Carolina that offered the program, Carta dropped out in part because of his inappropriate interest in the program's younger members. Carta II, 592 F.3d at 37.
Given Carta's concession as to the first element, the remaining issues before us are whether he suffers from a serious mental illness, abnormality or disorder and, if so, whether such condition would result in his having serious difficulty refraining from sexually violent conduct or child molestation.
At the heart of the first issue is the diagnosis proffered by the government expert, Dr. Amy Phenix, who testified that Carta was afflicted with a mental disorder known as "paraphilia not otherwise specified ("NOS") characterized by hebephilia." The Diagnostic and Statistical Manual of Mental Disorders ("DSM IV" or "DSM") describes the "essential features" of paraphilia as follows:
[R]ecurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving 1) nonhuman objects, 2) the suffering or humiliation of oneself or one's partner, or 3) children or other non-consenting persons, that occur over a period of at least 6 months . . . [and that] cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Carta II, 592 F.3d at 38 (quoting Am. Psychiatric Ass'n, DSM 522-23 (4th ed. 2000)). The "not otherwise specified" portion of the diagnosis stems from the fact that hebephilia is not one of the specific conditions listed in the DSM IV, either separately or as an example of paraphilia. Id. While the precise contours of hebephilia are the subject of debate, it suffices to say that the disorder consists of a sexual attraction to adolescents, as opposed to, for example, a specified paraphilia such as pedophilia, a sexual attraction to pre-pubescent children. Id. (citing DSM at 527-28).
The parties dispute whether our determination in Carta II that the government had established the mental disorder element is ...