United States v. Volungus

United States Court of Appeals
For the First Circuit
No. 12-1394
UNITED STATES OF AMERICA,
Petitioner, Appellee,
v.
JOHN CHARLES VOLUNGUS,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Stahl, Circuit Judges.
Ian Gold, Assistant Federal Public Defender, and Tamara
Fisher, Federal Defender Office, on brief for appellant.
Jennifer A. Serafyn, Assistant United States Attorney, and
Carmen M. Ortiz, United States Attorney, on brief for appellee.
September 17, 2013
TORRUELLA, Circuit Judge. Appellant John Charles
Volungus challenges an order from the District of Massachusetts
directing his civil confinement as a "sexually dangerous person"
under the Adam Walsh Child Protection and Safety Act, 18 U.S.C.
§ 4248 ("the Adam Walsh Act" or "the Act"). Volungus maintains
that the government failed to prove by clear and convincing
evidence that he was in fact a "sexually dangerous person."
Finding no error, we affirm.
I. Facts and Procedural Background
In detailing the factual background of this case, we look
to the district court's findings of fact in addition to the
testimony presented at trial.
Volungus was born into a stable, two-parent home in 1967.
Although he had two younger brothers, Volungus struggled to
maintain friendships with his peers at school. After he graduated
from college, Volungus joined the United States Army and was
stationed across the United States, Europe, and the Middle East.
It was during Volungus's time abroad that he began viewing what he
called "teen sex magazines."
In 1998, while stationed at Fort Campbell, Kentucky,
Volungus began to download child pornography. He reported
collecting pornographic images of children ranging from eighteen
months to eighteen years in age, viewing child pornography for
seven hours per night on weekdays and for thirteen hours per night,
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until 6:00 a.m., on weekends. Volungus also programmed his
computer to download and save child pornography when he was not
actively using it. Ultimately, he amassed thousands of images of
child pornography. That same year, Volungus began visiting
internet chat rooms where people discussed sex with children. In
these chat rooms, Volungus started having sexualized conversations
with people he believed to be minors. He would masturbate as they
"talked dirty" to each other. Volungus also took out
advertisements on chat room bulletins, seeking to physically meet
and have sex with young females.
These behaviors led Volungus to a person with the screen
name "IndyGirl." IndyGirl claimed to be a nineteen-year-old female
named "Deanna," but was actually an undercover law enforcement
officer. Volungus began his communication with her by stating that
he wished to meet her for some "real life fun." When IndyGirl
later told him that she had a fourteen-year-old sister named
"Sarah," Volungus stated that he would like to meet her too, and he
discussed where they could all meet to have sex.
In these chats with "Deanna" and "Sarah," Volungus
described himself as a "real-life pedophile." He boasted that he
had "enjoyed many young girls . . . as young as ten," had filmed a
sex tape with a fourteen-year-old, had anal sex with girls fourteen
years old and younger, and first had sex with an underage female
when he was seventeen and slept with the twelve-year-old girl he
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was babysitting. Eventually, after weeks of chatting, the law
enforcement agents arranged a telephone call between Volungus and
officers pretending to be Sarah and Deanna. During this call,
Volungus specifically talked to "Sarah" about engaging in sexual
acts with her. Volungus, "Deanna," and "Sarah" then agreed to meet
in person on August 22, 1998. When Volungus arrived at the meeting
place with sex toys and lingerie, he approached "Deanna" and
"Sarah" only to be surprised and subsequently arrested by military
police.
After his arrest, Volungus told law enforcement officials
that he had discussed meeting another fourteen-year-old female with
the screen name "facialgirl," and that he had spoken with a man in
Canada about having sex with his eight- or nine-year-old daughter.
However, Volungus claimed that he had never actually had sex with
a minor. He pled guilty to an eight-count federal indictment
including charges of child pornography and using an interstate
facility to attempt to persuade a person under eighteen years old
to engage in a sexual act. On June 14, 1999, Volungus was
sentenced to fifty-three months incarceration to be followed by
three years of supervised release. He was incarcerated from July
1999 to May 2003 at the Federal Correctional Institution at Fort
Dix, New Jersey. While in prison, Volungus kept in his prison
locker a list of books about sexual acts with children and hand-
drawn pornographic images depicting him having sex with children.
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After these items turned up in a search of his locker, Volungus
admitted to having "a problem and . . . [thinking] about sex with
children all the time."
On April 12, 2004, when probation officers visited
Volungus to install monitoring software on his computer as a
condition of his supervised release, they discovered that, once
again, Volungus had started downloading child pornography to his
computer. He had downloaded images depicting prepubescent minors
engaged in oral sex, intercourse, and lascivious exhibition. A few
days later, Volungus acknowledged to his probation officer that "he
had difficulty controlling his impulses" and had visited chat rooms
called "Youth and Beauty." A later forensic examination of his
computer also revealed that a file-wiping program had been run on
Volungus's computer three days before the probation officers'
arrival.
Volungus's probation officer increased his supervision
and treatment activities, adding one-on-one psychological treatment
to his sex offender treatment program, and Volungus seemed to be
improving. The appearance of improvement ended in May 2005, when
Volungus admitted that he had unsupervised contact with his five-
year-old niece in violation of his supervised release conditions.1
Volungus was subsequently arrested for violating the terms of his
1
An investigation of this matter by the New York Office of
Children and Family Services concluded that there had been no abuse
or maltreatment of the child.
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release and stipulated to the three charged violations: engaging in
criminal conduct by possessing child pornography, viewing and
possessing child pornography, and having unauthorized contact with
a minor. Volungus testified at his violation hearing that his
treatment program "hasn't helped enough. I know that. . . . I
have a problem controlling it . . . I really don't have enough
control over it . . . ." His supervised release was revoked and he
was sentenced to twenty-three months imprisonment followed by
thirteen months of supervised release.
After Volungus's sentencing, authorities discovered
letters Volungus had written to a man in Texas named Gary Gallardo,
who had been arrested for possession of child pornography. The
letters were written between March and April 2005, during
Volungus's supervised release and while he was attending sex
offender treatment classes. The letters contained graphic
descriptions of various scenes of child pornography, as well as
advice for procuring it. Additionally, the letters discussed
Volungus and Gallardo's plans to travel to other countries for the
purposes of having sex with children and producing child
pornography. Some pertinent passages from the letters follow:
• Get YAHOO Messenger. Many good chat rooms where goodies
are posted and traded. Watched some great vidz last
night, including one of guys daughter – about 7, cute as
hell and does one hell of a sexy striptease and pussy
show. I gotta figure out how to save a webcam broadcast!
• Oh . . . Newsgroup for you to check out . . . You'll need
a yenc decoder to see the goodies . . .
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alt.binaries.pictures.underage.admirers. Have been a
shitload of the FEBA series lately . . . . Girl about 7,
Bondage, Pissin, Shittin, Suck, Fuck . . . Lots of Anal
. . . Hot as Hell.
• I have a pretty nice collection building, almost 1 Gb
worth. Will share with you when your 'puter is up and
running.
• So, when we are free, where do we take a vacation?
Cambodia, Thailand, Philippines, Costa Rica, Brazil,
Czech Republic, or wherever? If you still have contacts,
we could make some extra cash with some homemade product.
• BTW . . . If a disk just happens to arrive for you, what
do you like . . [.] ages, acts, race, the more details
you give me, the better things could be.
• Met one fella last week . . . watched his webcam . . . he
was finger-fucking his daughter for the world to see. She
looked about 6 years old. She was loving it. He had a
microphone on. She was asking him to "Do it faster
Daddy!" and "Yeah . . . right there!" Was fucking
amazing. If I hadn't been in the middle of the library
I would have whipped it out and jacked off right there.
• While in the library yesterday a little cutie came over
and was apparently watching what I was doing . . . she
gave me this coy grin . . . I guess she liked what she
saw (I had been watching a k.p. [kiddie porn] fuck vid
before that). I see her again, I'm going to see what
happens, she seems like an approachable girl . . . or
maybe I'll just watch her and thank the Lord she didn't
say anything to anybody.
• What do you think about crossing the border to "Twins"
and picking up some young girls? How available are they
there . . . I've heard they are pretty common. You know
what I like . . . Brunette about 10 . . . Just budding is
perfect. If you ever see the Alicia series or videos,
she's fucking perfect . . . well almost . . . I like
longer hair.
• Found a nice site, you have to search through it, but I
have added over 100 great pix to my collection. . . .
Added a half dozen new videos, and am adding more.
Includes the whole vid of one girl I'm in lust with
(Alicia). Fucking Awesome. I'm filing my motion for
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relief soon, and once I do, and once you are free to
travel, we have to take a trip and fuck some girls . . .
and video it! Get a phone so I can call you!
• I took a trip to our local "red light" district, picked
up a great girl . . . sucked the cum outta my nuts and
ate it up. She seemed to be a bit "high," so I figure
I'm gonna work on her some more. Betcha she's got kids,
and if she needs a fix, I've got young pussy.
In late 2006, when Volungus's second term of
incarceration was almost complete, he had a psychological
evaluation with Bureau of Prisons Psychologist Dr. Ferraro to
determine whether he should be civilly committed as a sexually
dangerous person under the Adam Walsh Act. Dr. Ferraro assessed
Volungus as being at high risk to reoffend, prompting the
government to initiate proceedings for civil commitment.
In August 2007, while the commitment proceedings were
pending, the government found a sizeable file of documents among
Volungus's belongings, which contained hundreds of articles about
sex with minors, hand-drawn pictures of an adult male having sex
with children, several pages with handwritten lists of graphic
videos or pictures of young children performing explicit sexual
acts,2 notes on physical disguises and how to avoid detection when
viewing child pornography, notes making reference to "lovers'
rights" and NAMBLA (North American Man-Boy Love Association), and
2
This list included items such as the following entries: "boy
about 5 fucks baby sis in backyard," "Video of 4 girls getting
fucked–youngest is about 6 or 7 oldest about 12," and "girl about
8 getting cherry busted hot."
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slogans like "sex before eight or else it's too late!" A
substantial number of the materials in the file bore dates
suggesting that Volungus acquired them while his civil commitment
proceeding was pending.
Before his civil commitment hearing, Volungus was also
evaluated by several experts to determine whether he should be
committed as a "sexually dangerous person." These experts reached
varying conclusions on Volungus's risk of sexual recidivism using
a variety of actuarial instruments and tests.3 Volungus's own
account of his sexual history has also varied over time. When
speaking to a defense expert, he claimed to have had around 50
sexual partners, and when speaking to a government expert, Volungus
put the number closer to 200. Volungus has also denied having sex
with anyone younger than eighteen when speaking with examining
psychologists and criminal investigators, but he has bragged about
his sexual exploits with young teenagers and adolescents in
internet chat rooms.
On March 8, 2012, after a seven-day evidentiary hearing,
the district court determined that the government had proved by
clear and convincing evidence that Volungus suffered from
3
Specifically, Dr. Ferraro of the Bureau of Prisons concluded
Volungus had a "high" risk of recidivism, Volungus's experts
testified that he had a "moderate-high" or "low-moderate" risk,
while Dr. Phenix -- the government's expert -- testified first that
he had a "moderate-high" risk and later a "high" risk, although
using different instruments, he placed Volungus at "low," "low-
moderate," or "moderate" risk of recidivism.
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pedophilia, a mental disorder, which impaired his ability to
refrain from deviant sexual behavior and would cause Volungus to
have serious difficulty in refraining from child molestation. In
so holding, the court phrased the question before it as whether
Volungus's pedophilia impaired his volitional control such that he
would have serious difficulty refraining from child molestation if
released. The court recognized that the government had not proved
any actual or attempted child molestation offenses aside from
Volungus's attempt with "Sarah." Still, it concluded that Volungus
was so driven by his "obsessional impulses" with child pornography
and the idea of performing sexual acts with minors, that he would
be unable to control his pedophilia and limit it to private
masturbation sessions at his home.
II. Discussion
A. Standard of Review
We review the district court's findings of fact for clear
error and its conclusions of law de novo. United States v.
Shields, 649 F.3d 78, 89 (1st Cir. 2011). Where, as here, the
district court has applied a general standard of law to specific
facts, we give some deference to the fact-finder. Id. at 89;
United States v. Carta, 592 F.3d 34, 39 (1st Cir. 2010). Moreover,
under our clear error review, "[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 if we would have weighed
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the evidence differently had we been the trier of fact. Anderson
v. Bessemer City, 470 U.S. 564, 573-74 (1985).
B. The Adam Walsh Act
We begin with a brief examination of the purpose of the
Adam Walsh Act. The Act was enacted in 2006 "[t]o protect children
from sexual exploitation and violent crime." Pub. L. No. 109-248,
120 Stat. 587 (2006). To further this goal, the Act amends and
supplements existing civil commitment provisions to allow the
federal government to seek court-ordered civil commitment of
certain sexually dangerous persons in custody. See id. § 302
(codified at 18 U.S.C. §§ 4241, 4247, 4248).
The Act vests the Attorney General, any person authorized
by the Attorney General, or the Director of the Bureau of Prisons
with the power to certify that an individual in custody is a
"sexually dangerous person." Id. § 4248(a). This certification is
then transferred to the district court which must order a hearing
to determine whether the person is a "sexually dangerous person."
Id. At this hearing, the government bears the burden of
demonstrating by clear and convincing evidence that the inmate is
in fact a "sexually dangerous person," by showing that the
individual: 1) has "engaged or attempted to engage in sexually
violent conduct or child molestation," 2) "suffers from a serious
mental illness, abnormality, or disorder," and 3) as a result of
this disorder he "would have serious difficulty in refraining from
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sexually violent conduct or child molestation if released." Id.
§§ 4247(a)(5)-(6), 4248(d). The Supreme Court has noted that the
clear and convincing evidence standard is an "intermediate
standard" somewhere "between a preponderance of the evidence and
proof beyond a reasonable doubt," Addington v. Texas, 441 U.S. 418,
425 (1979), requiring proof that the government's assertions are
"highly probable," Colorado v. New Mexico, 467 U.S. 310, 316-17
(1984).
C. Sexual Dangerousness
On appeal, Volungus does not contest the district court's
finding that the government presented clear and convincing evidence
to establish that he has attempted to engage in child molestation
and he suffers from a serious mental disorder, pedophilia. Instead
his arguments focus on the third prong of the sexually dangerous
test, namely the court's conclusion that as result of his
pedophilia, Volungus would "have serious difficulty in refraining
from . . . child molestation if released." Volungus maintains that
his commitment cannot rest only on his mental disorder and
fantasies about having sex with children. He claims that he has
demonstrated an ability to refrain from molesting children, that he
is able to control his potential dangerousness, and that unlike
other individuals confined under the Adam Walsh Act, he has not
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committed numerous "hands-on" offenses with children.4 As such,
Volungus asserts that the district court erred by focusing on his
predisposition to view child pornography and fantasize about having
sex with children when it should have focused on the likelihood
that he would commit future physical acts of molestation.
We find Volungus's arguments that the court erred
unconvincing. In our view, the district court possessed ample
evidence to support a finding that Volungus's pedophilia would
cause him serious difficulty in refraining from sexual violence or
child molestation in the future.
Volungus has readily admitted, on multiple occasions,
that he is unable to control his attraction to prepubescent
children. The district court reasonably concluded that this lack
4
Volungus also argues that he has not actually had any "hands-on"
offenses as a result of his pedophilia, as the incident with
"Sarah" involved a fourteen-year-old, non-prepubescent girl.
Volungus claims that pedophilia only encompasses sexual desires and
behaviors with prepubescent children (generally aged 13 and
younger), and points out that all the experts agreed that his
seeking out "Sarah" was not a manifestation of his "pedophilia."
To the extent that Volungus argues that this makes him statutorily
ineligible for commitment, we do not find his arguments persuasive.
The second and third requirements for commitment under the Adam
Walsh Act are directly linked (the statute requires a finding that
an individual has a serious mental disorder, and as a result of
this disorder, would have difficulty refraining from child
molestation). However, the plain language of the statute indicates
that the first requirement is completely independent, and imposes
no precondition that the predicate offense have occurred as a
result of the respondent's disorder. 18 U.S.C. § 4248(a)(5)-(6).
As such, regardless of whether Volungus's offense with "Sarah"
resulted from his pedophilia, we hold it was sufficient to satisfy
the statute's first requirement.
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of volitional control was clearly evidenced by the fact that
Volungus -- while on supervised release, the very time he was most
likely to be caught -- downloaded large amounts of child
pornography, had prohibited contact with his niece, and wrote
graphic letters to a fellow pedophile about his plans to engage in
sexual acts with children. The court possessed proof that either
Volungus's sex offender treatment was not working or that he was
not participating in it sincerely; Volungus was actively
downloading child pornography and communicating with a fellow
pedophile about having sex with children and producing child
pornography while he was attending treatment sessions. Moreover,
Volungus, while on supervised release, continued his attempts to
contact minor females by visiting chat rooms similar to the one in
which he met "IndyGirl." The district court reasonably found that
such attempts to contact minors took Volungus a step beyond passive
consumption of child pornography and into the realm of affirmative
encounters with minors.5
Additionally, the district court found that Volungus
suffered from a "long and persistent trajectory of obsession" with
child pornography and sex with children. Volungus obsessively
viewed and downloaded child pornography, masturbated to it, then
5
The district court was careful to limit its finding, noting that
Volungus's attempts to contact minors like "facialgirl," while an
"affirmative encounter," did not qualify as a "hands-on" offense of
actual or attempted child molestation.
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used the internet to seek real child victims. Indeed, Volungus's
attempt to meet "Sarah" for sex, his chats with "facialgirl," whom
he believed to be a fourteen-year-old female, and his reported
conversations with a man in Canada about meeting the man's eight-
year-old daughter for sex can all be viewed as manifestations of
this "trajectory" which culminated in Volungus's conviction for
attempted molestation.6 The district court also noted the speed
with which Volungus moved from what he claimed was his first
introduction to child pornography in the Spring of 1998 to his
attempted molestation of "Sarah" just a few months later in August
of 1998. The evidence suggested that Volungus could not break this
cycle, as shortly after he began supervised release, he once again
began downloading child pornography and visiting chat rooms like
"Youth and Beauty." Accordingly, we find that the court had a
reasonable basis for concluding that Volungus's continuing behavior
of obsessive downloading and viewing of child pornography and
seeking online contact with children would cause him serious
difficulty in refraining from child molestation in the future.
To the extent that the court valued the opinion of the
government's witness, Dr. Phenix, who testified that Volungus's
6
In our analysis, we do not treat Volungus's online behavior as
actual or attempted child molestation under the statute. However,
we do consider this conduct, alongside Volungus's other actions, as
relevant to the district court's proper determination of Volungus's
sexual dangerousness. Here, these interactions demonstrate
Volungus's efforts to seek out real children for sex after
downloading and viewing large amounts of child pornography.
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pedophilia presented such a volitional impairment that he would
have serious difficulty refraining from molestation, over that of
the other experts who testified that he could refrain from
molestation, we find no error. See Shields, 649 F.3d 78, 90 (1st
Cir. 2011) (holding where two testifying experts "interpreted
[respondent's] child pornography offense as a sign of ongoing
deviance rather than improved impulse control . . . it was entirely
reasonable for the court to credit their testimony over [his]
expert's opinion"). It is not our place to re-weigh the credibility
of witnesses, United States v. Hahn, 17 F.3d 502, 508 (1st Cir.
1994), or to determine the weight accorded to expert witness,
Seahorse Marine Supplies, Inc. v. Puerto Rico Sun Oil Co., 295 F.3d
68, 81 (1st Cir. 2002).
Volungus's challenge to the district court's findings
emphasizes the fact that his criminal history includes a single
"hands-on" offense, attempted child molestation, dated more that
ten years ago.7 He also directs us to expert testimony that he
might have serious difficulty refraining from viewing child
pornography but would not have such difficulty in refraining from
7
Additionally, Volungus makes much of a list of cases where
respondents were civilly committed under the Act after they had
committed numerous contact offenses, which he contrasts with his
single attempted molestation conviction. However, this is not
persuasive evidence that Volungus himself should not be committed.
Indeed, these cases only demonstrate that individuals with
lengthier records than Volungus have been committed under the Act,
not that those in similar circumstances to Volungus are ineligible
for commitment.
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child molestation. We cannot, however, state that the court
clearly erred by placing more weight on the evidence of Volungus's
sexual obsession and the limitations on his volitional control.
United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir. 1991)
(it is ultimately the responsibility of the factfinder to "decide
among reasonable interpretations of the evidence"). Given
Volungus's history, failed treatment, correspondence with Gallardo,
and inability to abstain from sexually deviant behaviors at the
very moments when he was most likely to get caught, we believe the
determination that he lacked volitional control is well supported
by a reasonable interpretation of the evidence.
Ultimately, while actual or attempted child molestation
offenses may be telling evidence of just how sexually dangerous an
individual is, this is not the only type of evidence that speaks to
this trait. We are of the opinion that sexual dangerousness
requires an individualized determination that cannot rest solely on
the number of offenses committed or the timing of those offenses.
A court could reasonably conclude that an individual who has
committed multiple offenses but successfully completed a
rehabilitation program may be less dangerous than someone who has
committed one offense but exhibits a perpetual desire or propensity
to commit more offenses, even while in treatment.
In this case, the district court reasonably concluded
that Volungus either made little effort to sincerely engage in a
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sex offender treatment program or that the treatment program was
ineffective. Volungus went as far as to discuss planning trips to
have sex with children with another pedophile while undergoing this
treatment. He continued to collect or draw child pornography even
while on supervised release and in custody. He also had
unsupervised contact with a five-year-old in violation of the terms
of his supervised release. The evidence supports the district
court's conclusion that Volungus may have been convicted of a
single attempted molestation offense, but his obsession with child
pornography, his desire to have sex with children, and his
willingness to seek out children online have persisted without any
interruption or signs of improvement. In light of these
circumstances, we cannot find that the district court clearly erred
in determining that Volungus was a sexually dangerous person
subject to commitment.
III. Conclusion
Finding no error in the district court's factfinding or
legal conclusions, we affirm Volungus's commitment order in its
entirety.
So ordered.
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