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United States v. Wetmore

United States Court of Appeals, First Circuit

February 5, 2016



James B. Craven III for appellant.

Jennifer A. Serafyn, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before Lynch, Circuit Judge, Souter,[*] Associate Justice, and Selya, Circuit Judge.


Page 246

SELYA, Circuit Judge.

The Adam Walsh Child Protection and Safety Act (the Act) allows the federal government to seek civil commitment of any " sexually dangerous person" already in the custody of the Bureau of Prisons (BOP). See 18 U.S.C. § 4248(a). Pursuant to the Act, an individual is deemed to be sexually dangerous (and thus unfit to be safely returned to the community) if the government can prove by clear and convincing evidence that the individual " has engaged or attempted to engage in sexually violent conduct or child molestation" ; " suffers from a serious mental illness, abnormality, or disorder" ; and as a result of such disorder " would have serious difficulty in refraining from sexually violent conduct or child molestation if released." Id. § 4247(a)(5)-(6); see id. § 4248(d). Once such a person is civilly committed, he can be released only upon a showing that he is no longer sexually dangerous. See id. § 4248(e).

This appeal presents a question of first impression at the federal appellate level regarding the operation of the Act's " release" provision: when a person who has previously been deemed sexually dangerous petitions for release from civil commitment, which party -- the committed person or the government -- bears the burden of proof? We hold that the burden is on the committed person to make the requisite showing. With the proper allocation of the burden of proof in place, we turn to the case at hand and affirm the district court's denial of the release petition at issue here.

The anatomy of the case is uncomplicated. Appellant Joel Wetmore is civilly committed to the BOP as a sexually dangerous person pursuant to 18 U.S.C. § § 4247-48. We assume the reader's familiarity with earlier opinions involving Wetmore's civil commitment and chronicling his personal, offense, and treatment history. See United States v. Wetmore (Wetmore II), 700 F.3d 570, 572-73 (1st Cir. 2012); United States v. Wetmore (Wetmore I), 766 F.Supp.2d 319, 321-25 (D. Mass. 2011). For now, it suffices to say that Wetmore has a history of pedophilia. After a series of convictions for sexual misconduct involving minors, he pleaded guilty in 2000 to possession and receipt of child pornography. See 18 U.S.C. § 2252A. The district court sentenced him to an 87-month term of immurement.

On November 17, 2006 -- one day before Wetmore was scheduled to complete his prison term -- the BOP certified him as sexually dangerous and commenced an effort to have him civilly committed under the Act. See id. § 4248(a). Wetmore's confinement

Page 247

continued, see id., and on March 2, 2011 -- following a seven-day bench trial on the government's application for civil commitment -- the district court determined that Wetmore was sexually dangerous and ordered him civilly committed. See Wetmore I, 766 F.Supp.2d at 338. Wetmore's confinement continued during and after the pendency of his unsuccessful appeal. See Wetmore II, 700 F.3d at 580.

Wetmore was held at the Butner (North Carolina) Federal Correctional Institution (FCI-Butner). While there, Wetmore participated in a treatment program and, in due course, he sought a psychiatric evaluation as a precursor to his possible release from civil commitment. Dr. Joseph Plaud, a forensic psychologist, was engaged on Wetmore's behalf to determine whether Wetmore remained sexually dangerous. Dr. Plaud's initial assessment was unfavorable to Wetmore. But when Dr. Plaud reevaluated Wetmore in April of 2014 (less than a year after his initial evaluation), he concluded that Wetmore was no longer sexually dangerous.

On November 27, 2013, Wetmore moved for a hearing to determine whether he satisfied the criteria for release under the Act. See 18 U.S.C. ยง 4247(h). Implicit in this motion was Wetmore's assertion that he was no longer sexually dangerous and would be able to reenter the community safely. At the ensuing hearing, Dr. Plaud testified that, in his view, Wetmore was no longer sexually dangerous and could safely be released. Wetmore, his brother, and a long-time family friend also testified. In opposition, the government introduced the testimony of both Dr. Andres Hernandez (the clinical coordinator of the treatment program at FCI-Butner) and Dr. Dawn Graney (a forensic psychologist charged with conducting annual reviews of sexually ...

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