United States v. Wetmore

United States Court of Appeals
For the First Circuit
No. 15-1522
UNITED STATES OF AMERICA,
Appellee,
v.
JOEL WETMORE,
Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Circuit Judge,
Souter,* Associate Justice, and
Selya, Circuit Judge.
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.
February 5, 2016
_________
* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
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
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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
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
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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. § 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 dangerous
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persons detained at FCI-Butner). Each of the government's
witnesses maintained that Wetmore remained sexually dangerous and,
thus, could not safely be released into the community.
After considering all the evidence and evaluating the
conflicting expert testimony, the district court concluded that
Wetmore remained sexually dangerous and, thus, subject to
continued civil commitment. See United States v. Wetmore (Wetmore
III), No. 07-12058, slip op. at 2 (D. Mass. Feb. 27, 2015). The
court noted the open question regarding which party bears the
burden of proof at a hearing on a release petition under 18 U.S.C.
§ 4247(h), but found it unnecessary to resolve this question. See
Wetmore III, slip op. at 8-9, 13 & n.3. Instead, the court ruled
that — regardless of which party bore the burden of proof — Wetmore
could not safely be released into the community. See id. at 2, 9.
This timely appeal followed.
The threshold issue in this appeal is whether the
government or the committed person bears the burden of proof at a
release hearing held pursuant to 18 U.S.C. § 4247(h). The Act
itself is silent on this question. It states, without elaboration,
that the committing court may release the committed person only
"[i]f, after the [discharge] hearing, the court finds by a
preponderance of the evidence that the person's condition is such
that . . . he will not be sexually dangerous to others if released
. . . ." 18 U.S.C. § 4248(e).
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There are no reported federal cases that explicitly
decide which party bears the burden of proof at a section 4247(h)
hearing. What case law exists provides guidance only by analogy.
Most notably, a few courts have examined the allocation of the
burden of proof in the context of 18 U.S.C. § 4246 (a statutory
provision that addresses the release from civil commitment of
individuals deemed to be dangerous because of mental illness).
See, e.g., United States v. Anderson, No. 97-6372, 1998 WL 372382,
at *2 (4th Cir. June 8, 1998) (per curiam); United States v.
McAllister, 963 F. Supp. 829, 833 (D. Minn. 1997).
Anderson is typical of this line of cases. There, the
Fourth Circuit concluded that a committed person bears the burden
of showing by a preponderance of the evidence that "his release
'no longer create[s] a substantial risk of bodily injury.'"
Anderson, 1998 WL 372382, at *2 (alteration in original) (quoting
18 U.S.C. § 4246(e)). We find this analogy persuasive and hold
that, when a person who has been civilly committed as sexually
dangerous petitions for relief from his civil commitment under 18
U.S.C. § 4247(h), he bears the burden of showing by a preponderance
of the evidence that he is no longer sexually dangerous within the
meaning of 18 U.S.C. § 4247(a)(5)-(6).
This holding comports with the general precept that a
party who seeks the affirmative of an issue bears the burden of
proving his petition. See Mashpee Tribe v. New Seabury Corp., 592
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F.2d 575, 589 (1st Cir. 1979). After all, we have construed the
Act to place the burden on the government to demonstrate in the
first instance that a person is sexually dangerous, even though
the Act itself does not specify this allocation of the burden of
proof. See United States v. Shields, 649 F.3d 78, 81-82 (1st Cir.
2011); United States v. Volungus, 595 F.3d 1, 3 (1st Cir. 2010);
see also 18 U.S.C. § 4248(d) ("If . . . the court finds by clear
and convincing evidence that the person is a sexually dangerous
person, the court shall commit the person . . . ."). Thus, when
a committed person affirmatively initiates release proceedings,
"[i]t is not to be expected that the government would have the
burden of proving the negative," that is, that the committed person
is no longer sexually dangerous. McAllister, 963 F. Supp. at 833.
With the allocation of the burden of proof in place, we
turn to the district court's rescript. We review that court's
legal conclusions de novo and its findings of fact for clear error.
See United States v. Volungus, 730 F.3d 40, 46 (1st Cir. 2013).
The court below found that Wetmore remained sexually
dangerous because he "would have serious difficulty refraining
from future acts of child molestation if released." Wetmore III,
slip op. at 20. Wetmore's appeal, leaning heavily on Dr. Plaud's
opinion, challenges this finding. This challenge lacks force.
The district court, in a thorough and well-reasoned
exposition, grappled with the opposing views of the experts who
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testified at the release hearing. The court carefully explained
why it thought that Wetmore remained sexually dangerous and could
not safely be released into the community. See Wetmore III, slip
op. at 13-20.
We have remarked before that "when lower courts have
supportably found the facts, applied the appropriate legal
standards, articulated their reasoning clearly, and reached a
correct result, a reviewing court ought not to write at length
merely to hear its own words resonate." DeBenedictis v. Brady-
Zell (In re Brady-Zell), 756 F.3d 69, 71 (1st Cir. 2014) (citing
cases). That precept squarely applies in this instance. We
therefore uphold the denial of Wetmore's release petition
substantially on the basis of the district court's supportable
factfinding and its persuasive reasoning. We pause to make only
a few additional observations.
First: at its core, this case involves dueling experts.
Dr. Plaud explained his reasons for deeming Wetmore fit for
release. Dr. Graney (whose testimony was corroborated in material
part by Dr. Hernandez) explained her reasons for doubting Wetmore's
ability to control his harmful and inappropriate sexual urges.
Over the course of three days, the district court observed these
testifying experts and heard their competing opinions first-hand.
The court also had the opportunity to assess the persuasiveness
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vel non of the experts' views in light of the documentary evidence
and the testimony of lay witnesses (including Wetmore himself).
Given that the evidence regarding Wetmore's sexual
dangerousness was mixed, we are constrained to "defer in large
measure to the trial court's superior coign of vantage." United
States v. Espinoza, 490 F.3d 41, 44 (1st Cir. 2007). After all,
where — as here — a body of evidence supports plausible but
conflicting inferences, the trier's choice between those
inferences cannot be clearly erroneous. See Anderson v. City of
Bessemer City, 470 U.S. 564, 573 (1985); Espinoza, 490 F.3d at 46.
Second: in all events, the record offers strong support
for the challenged finding. For one thing, the district court
noted that Dr. Plaud had never acted as a treatment provider for
Wetmore and had not worked with him formally on developing his
release and relapse prevention plan. See Wetmore III, slip op. at
12. For another thing, the court found scant corroboration for
Dr. Plaud's hopeful assertion that Wetmore possessed the necessary
behavioral skills to reenter the community safely. See id. at 20.
Citing the testimony of Dr. Graney and Dr. Hernandez, the court
worried (with good reason, we think) that Wetmore had not
sufficiently demonstrated that he could curb his dangerous sexual
impulses. See id. at 13-17. Since "the district court's account
of the evidence is plausible in light of the record viewed in its
entirety," we must decline Wetmore's invitation to reweigh the
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testimony and second-guess the district court's appraisal of the
facts. Anderson, 470 U.S. at 573-74; see Volungus, 730 F.3d at
48; Shields, 649 F.3d at 89.
We need go no further. The burden of proof rested with
Wetmore to show by a preponderance of the evidence that he had
achieved the capacity to reenter the community safely. In this
fact-intensive case and on this chiaroscuro record, the district
court's assessment — though not inevitable — was plausible. Hence,
there is no principled way for us to reject the district court's
on-the-spot judgment and hold that Wetmore succeeded in carrying
his burden of proof.
Affirmed.
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