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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2400
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
BYRON NEIL ANTONE,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:07-hc-02042-FL-JG)
Argued: December 11, 2013 Decided: February 4, 2014
Before GREGORY, DAVIS, and WYNN, Circuit Judges.
Reversed and remanded with instructions by published opinion.
Judge Davis wrote the opinion, in which Judge Gregory and Judge
Wynn joined.
ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Michael
Bredenberg, FMC BUTNER FEDERAL MEDICAL CENTER, Butner, 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, R.A. Renfer, Jr., Joshua B. Royster, Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
DAVIS, Circuit Judge:
Respondent-Appellant Byron Neil Antone appeals the district
court’s order of his civil commitment under the Adam Walsh Child
Protection and Safety Act of 2006 (“the Walsh Act”), codified at
18 U.S.C. §§ 4247-48. Four days before he was to be released
from federal prison, an official of the Federal Bureau of
Prisons certified Antone as a sexually dangerous person eligible
for civil commitment. Upon referral of the ensuing proceedings
by the district court, a federal magistrate judge held a three-
day evidentiary hearing and thereafter issued a report and
recommendation that Antone should not be found to be a sexually
dangerous person. The district court adopted the majority of the
magistrate judge’s factual and credibility determinations, but
it ultimately found that the Government had satisfied its burden
under the Walsh Act to prove that Antone was a sexually
dangerous person, and it committed him to civil custody.
Upon our careful review of the appellate record, we
conclude that the district court lacked sufficient evidence to
find that Antone met the standard for civil commitment under the
Walsh Act. Specifically, the Government did not present clear
and convincing evidence that Antone’s mental illnesses would
cause him to have serious difficulty refraining from sexually
violent conduct. Accordingly, we reverse.
2
I.
A.
Byron Neil Antone, now forty-one years old, was born in and
raised on the Tohono O’odham Indian Reservation in south central
Arizona. 1 Until age nine or ten, Antone was raised by his mother;
after that point, he resided with his grandmother and his
godmother.
Antone’s mother and grandmother were heavy drinkers and
Antone was often neglected and verbally and physically abused as
a child. At seven years old, Antone was on several occasions
sexually abused by his aunt, who was a teenager at the time. By
the time he was fifteen years old, he had had sexual intercourse
with at least two adult women, one of whom was twenty-six.
Antone had serious behavioral issues as a child, which led
to school expulsions and stints in juvenile detention. He
dropped out of high school in ninth grade. He did not maintain
steady employment thereafter, although he was employed
seasonally as a firefighter with the United States Forestry
1
These facts are a summary of the pertinent factual
findings set forth in the magistrate judge’s memorandum and
recommendation (“M&R”), which was wholly adopted by the district
court. To the extent conflicting inferences might be drawn from
the magistrate judge’s findings, because the Government was the
prevailing party before the district court, we construe the
evidence presented before the magistrate judge in the light most
favorable to, and consistent with, the ultimate determination of
the district court, whose order we review.
3
Service and had attended specialized training classes in that
field.
In 1991, when Antone was nineteen years old, he was
arrested and charged with sexual misconduct with a minor, sexual
abuse, and contributing to the delinquency of a minor. The
arrest related to two sexual acts with a sixteen-year-old who
was Antone’s girlfriend at the time. The first sexual act was
consensual, but the second was forcible rape. Antone pled guilty
to the sexual abuse charge in the Judicial Court of the Tohono
O’odham Nation (“tribal court”) and served about six months in
jail.
In 1997, tribal authorities charged Antone with threatening
and disorderly conduct. He admitted to rubbing the buttocks of
his cousin, then twenty-one years old, while she was sleeping on
the couch. He was sentenced to 60 days in tribal jail.
From 1998 to 1999, Antone was charged by tribal authorities
for several acts of sexual misconduct, which resulted in a
consolidated plea agreement and tribal judgment entered on March
16, 1999. The consolidated tribal judgment related to four
victims and spanned incidents from 1992 through 1997:
1) Forcible rape of a fourteen or fifteen-year-old in
1992 or 1993.
2) Touching of the crotch area of an eleven-year-old in
1996.
4
3) Sexual assault of C.R., a woman of unknown age, in
June 1997. During this incident, Antone tried to force
C.R. to have sex with him, and when she refused, he threw
her on the bed, held her hands down, touched her breasts,
and touched her crotch area. C.R. was able to escape by
jumping out of her bedroom window.
4) Forcible rape of R.J., age twenty-five, in November
1997. During this incident, R.J. awoke to find Antone on
top of her. He then forced her to have sex for five to
fifteen minutes.
Antone pled guilty to charges related to these four incidents in
the consolidated plea agreement. He was sentenced to 3,600 days
in jail by the tribal court.
Almost all of the incidents described above, and certainly
the June and November 1997 incidents, took place when Antone was
either intoxicated from alcohol and/or high on cocaine. Indeed,
Antone has a serious history of substance abuse. When he was
arrested in February 1998, he was drinking 3 to 5 quarts of beer
a day on average, and up to 11 quarts on some days. He was also
abusing a number of drugs, including marijuana, LSD, and crack
cocaine. As a result, Antone has little to no recollection of
these incidents.
In November 1999, Antone was sentenced in the United States
District Court for the District of Arizona on a sexual assault
5
charge. The particular charge related to Antone’s assault
against C.R. in June 1997, which was also a subject of his
consolidated tribal judgment. In addition, Antone admitted in
the federal plea agreement to sexual misconduct as to all the
incidents covered in the tribal court convictions.
According to the testimony of Antone’s attorney at the
time, which the magistrate judge fully credited, the federal
criminal charge was actually initiated by Antone and his
attorney. “The reason was to enable [Antone] to be transferred
to federal custody and thereby have access to sex offense
treatment at FCI-Butner, which [the attorney] believed would be
designed specifically for Native Americans.” J.A. 845.
The federal district court in Arizona sentenced Antone to
114 months of incarceration, with credit for time served, and 60
months of supervised release. The plea agreement reflected
Antone’s request to receive sex offender treatment in federal
custody, and the district court included a recommendation in its
judgment that Antone participate in the residential drug
treatment and sex offender treatment programs.
B.
In accordance with the federal judgment and commitment
order, Antone was incarcerated in the federal Bureau of Prisons
system from November 1999 through February 23, 2007, when the
Government initiated the instant proceeding four days before his
6
expected release. Since then, Antone has resided in FCI-Butner,
a medium security correctional institution in North Carolina,
awaiting his civil commitment hearing and its resolution. As a
result, Antone has been in continuous federal custody for the
past fourteen years, or since he was twenty-seven years old.
During the entire period of his federal custody, Antone has
not been shown to have consumed alcohol or drugs. Antone’s
prison record contains no sanctions or nonsanctioned incidents
related to alcohol or drugs, and he testified that he has been
sober for fourteen years. The Bureau of Prisons regularly
administers Breathalyzer tests on inmates in recognition of the
fact that it is possible to make and obtain contraband alcohol
within the prison. Antone has never tested positive on those
tests.
Antone has attended Alcoholics Anonymous and Narcotics
Anonymous on his own initiative. He attended meetings during the
first year and a half of his prison term and restarted about a
year before his commitment hearing. He also completed a Drug
Education Program and a non-residential substance abuse program.
Antone’s behavioral problems while in prison have been
minimal. He has been sanctioned for four incidents, twice for
fighting without serious injury and twice for minor rule
7
violations; the last of these sanctions occurred in 2004. 2 He
obtained his GED in 2001. In addition, he has maintained
employment as an orderly in his housing unit. His work
performance therein was characterized as “superior.” J.A. 843.
Antone regularly seeks out advice and counseling from his
prison’s counselors and treatment specialists. In particular, he
has asked his counselors how to communicate with his son, with
whom he corresponds by mail, and for advice on anger management.
Antone has taken classes in art, beading, meditation, and
guitar. He teaches other inmates how to play the guitar.
As for sexual conduct, Antone’s record indicates that he
has “not engaged in sexual misconduct during his extended
incarceration.” J.A. 882. At the time of the evidentiary
hearing, however, he had not attended sex offender therapy or
treatment. Antone and his former attorney testified that he had
made several requests for treatment at the early side of his
incarceration period, but it was apparently not then available
to him because “his release date was so far in the future.” 3 J.A.
2
The Bureau of Prisons records also refer to three events
that did not result in disciplinary sanction. They primarily
stem from the attempted delivery of the magazine Maxim to
Antone, and the presence in Antone’s cell of a number of
pictures, cut out from magazines, of scantily-clad adult women.
3
When asked to explain why he had not completed a sex
offender treatment program at any point during his
incarceration, Antone responded, “I don’t know why. Some places
(Continued)
8
830. When it became available in September 2008, after the
Government filed its § 4248(a) petition, Antone did not
participate in the treatment. He indicated that he did not do so
because he knew that statements made during treatment “could be
used against him” in the commitment proceeding. Id.
C.
On February 23, 2007, four days before Antone’s expected
release date, the Government filed a certification, pursuant to
18 U.S.C. § 4248(a), of Antone as a sexually dangerous person.
The case was originally stayed pending an appeal relating to the
constitutionality of § 4248, see United States v. Comstock, 551
F.3d 274, 276 (4th Cir. 2009) (holding that Congress lacked
authority to implement § 4248), rev’d and remanded, 560 U.S.
126, 130 (2010) (reversing on issue of Congressional authority
but remanding for due process consideration); 627 F.3d 513, 515
(4th Cir. 2010) (subsequently holding that § 4248 satisfies due
process clause), cert. denied, 131 S. Ct. 3026 (2011). In June
2010, Antone filed a motion for a hearing on the merits of the
certification, and the district court referred the matter to a
I went didn’t have the program. . . . I was talking with some
other brothers who are here and they said they were told they
didn’t qualify.” J.A. 1238.
9
magistrate judge for an evidentiary hearing and report and
recommendation.
The magistrate judge held an evidentiary hearing over the
course of three days in October 2011. As will be described in
further detail infra, the Government presented the testimony of
Antone, as well as two expert witnesses; Antone presented the
testimony of a specialist and a counselor at the correctional
facility at which he resided, a United States Probation Officer
from Arizona, and an expert witness. The magistrate judge
admitted the testimony of all three proffered expert witnesses.
On April 30, 2012, the magistrate judge issued his M&R, in
which he recommended that Antone not be found a sexually
dangerous person. The Government thereafter filed a series of
objections to the M&R, to which Antone responded. The Government
also submitted several additional notices of supplemental
authority, including Ninth Circuit case law on the tolling of
supervised release during the pendency of a civil commitment
proceeding.
On September 20, 2012, the district court issued its order
and judgment on the instant certification. Although it accepted
all of the magistrate judge’s credibility determinations and
findings of historical fact, it rejected the M&R’s ultimate
recommendation of a finding of not sexually dangerous. It found
that the combination of Antone’s serious mental illnesses —
10
namely antisocial personality disorder and polysubstance
dependence – would cause him to have serious difficulty in
refraining from sexually violent conduct if released. It
therefore committed Antone to the custody of the United States
Attorney General as a sexually dangerous person. The instant
appeal followed.
II.
A.
The Government seeks the commitment of Antone pursuant to
18 U.S.C. § 4248, which was enacted as part of the Adam Walsh
Child Safety and Protection Act of 2006. Under § 4248, the
Government may seek the civil commitment of certain individuals
in the custody of the Federal Bureau of Prisons who are
determined to be “sexually dangerous person[s].” 18 U.S.C.
§ 4248(d). The commitment process is initiated when the Attorney
General or his designee files a certification attesting that an
individual is sexually dangerous as defined by the Walsh Act,
after which the respondent is entitled to an evidentiary
hearing. “If, after the hearing, the court finds by clear and
convincing evidence that the person is a sexually dangerous
person, the court shall commit the person to the custody of the
Attorney General.” Id.
To demonstrate that an individual should be civilly
committed under § 4248, the Government must prove, by clear and
11
convincing evidence, that each one of the following criteria has
been satisfied: (1) the individual has previously “engaged or
attempted to engage in sexually violent conduct or child
molestation” (the “prior conduct” element), 18 U.S.C.
§ 4247(a)(5); (2) the individual currently “suffers from a
serious mental illness, abnormality, or disorder” (the “serious
illness” element), id. § 4247(a)(6); and (3) as a result of such
a condition, the individual “would have serious difficulty in
refraining from sexually violent conduct or child molestation if
released” (the “serious difficulty” or “volitional impairment”
element), id. See also Comstock, 560 U.S. at 130; United States
v. Springer, 715 F.3d 535, 538 (4th Cir. 2013). Antone has
conceded that the Government has met its burden with regard to
the prior conduct element as well as the finding of a serious
mental illness. He disputes, however, the district court’s
conclusion as to the third element, that the Government has
demonstrated a sufficient likelihood that Antone will re-offend.
We review the district court’s factual findings for clear
error and its legal conclusions de novo. United States v. Hall,
664 F.3d 456, 462 (4th Cir. 2012). For the reasons we explain
within, although the district court’s ultimate mixed finding on
volitional impairment is not infected with “clear error” in the
traditional sense of that term, it nonetheless constitutes
reversible error because it is against “the clear weight of the
12
evidence considered as a whole.” United States v. Wooden, 693
F.3d 440, 451 (4th Cir. 2012). Put somewhat differently, we
conclude as a matter of law that the Government failed to
establish by clear and convincing evidence that Antone would, as
a result of his serious illness or condition, have serious
difficulty in refraining from sexually violent conduct if
released.
B.
The standard set forth for civil commitment under § 4248 is
clear and convincing evidence. This so-called “intermediate”
standard is mandated not only by the plain language of the
statute, 18 U.S.C. § 4248(d), but by constitutional due process
constraints, as well. See Addington v. Texas, 441 U.S. 418, 427
(1979) (observing that the clear and convincing evidence
standard is required in civil commitment proceedings because
“[t]he individual’s interest in the outcome of a civil
commitment proceeding is of such [great] weight and gravity”).
When applying the clear and convincing standard, the court
must identify credible supporting evidence that renders its
factual determination “highly probable.” Direx Israel, Ltd. v.
Breakthrough Med. Corp., 952 F.2d 802, 810 n.7 (4th Cir. 1992).
The court must then weigh the evidence and ask whether the
totality of the record “produces in the mind of the trier of
fact a firm belief or conviction, without hesitancy, as to the
13
truth of the allegations sought to be established[.]” United
States v. Heyer, --- F.3d ---, ---, No. 12–7472, 2014 WL 185584,
at *6 (4th Cir. Jan. 17, 2014) (quoting Jimenez v.
DaimlerChrysler Corp., 269 F.3d 439, 450 (4th Cir. 2001));
Springer, 715 F.3d at 538.
In applying the first two commitment criteria under the
Walsh Act, the question is whether the Government has
established with clear and convincing evidence that the
respondent acted or acts in a certain manner. The third element,
however, is more complicated, in that it requires the court to
issue a predictive judgment: has the Government met its burden
by presenting clear and convincing evidence that, in the
uncertain future, the respondent will have “serious difficulty
in refraining from sexually violent conduct or child
molestation”? 18 U.S.C. § 4247(a)(6).
We are mindful that the Supreme Court has explained that
such an inquiry “will not be demonstrable with mathematical
precision.” Kansas v. Crane, 534 U.S. 407, 413 (2002). Instead,
in order to find that the third criterion is satisfied, the
court must look for
proof of serious difficulty in controlling behavior. And
this, when viewed in light of such features of the case as
the nature of the psychiatric diagnosis, and the severity
of the mental abnormality itself, must be sufficient to
distinguish the dangerous sexual offender whose serious
mental illness, abnormality, or disorder subjects him to
14
civil commitment from the dangerous but typical recidivist
convicted in an ordinary criminal case.
Id. In other words, the Government must demonstrate that the
serious illness, as it has manifested in the particular
respondent, has so significantly diminished his volitional
capacity such that he is distinguishable from the ordinary
“dangerous but typical recidivist.” Id.; see also Wooden, 693
F.3d at 460 (framing the third criterion as “the extent to which
the inmate is controlled by the illness”).
We now assess the instant record with this exacting
standard in mind. As to the third criterion, we find that the
aggregate of historical, direct, and circumstantial evidence
contained therein may be best described (as the magistrate judge
seemed to regard it) as in equipose, or, at most, as rising to a
level of preponderance in favor of commitment. But this is
simply not enough to satisfy the statutory burden of clear and
convincing evidence. See Medtronic, Inc. v. Mirowski Family
Ventures, LLC, 571 U.S. ---, ---, No. 12-1128, 2014 WL 223040,
at *6 (2014) (“[T]he burden of proof . . . [is] part of the very
substance of [the plaintiff’s] claim and cannot be considered a
mere incident of a form of procedure.”) (quoting Garret v.
Moore-McCormack Co., 317 U.S. 239, 249 (1942)). We thus have no
hesitation in finding a fatal evidentiary insufficiency in the
Government’s presentation.
15
C.
The majority of the evidentiary record consists of reports
and testimony presented at the three-day hearing in front of the
magistrate judge. At the hearing, the Government presented
testimony from Antone himself, and expert witnesses Dr. Amy
Phenix, Ph.D. and Manuel E. Gutierrez, Psy.D. Antone then
presented the testimony of Clement Gallop, a treatment
specialist in the commitment and treatment program at FCI-
Butner; Andre Taylor, a counselor at FCI-Butner; Anne Schauder,
a United States Probation Officer from Arizona; and an expert
witness, licensed psychologist Roy G. Daum, Psy.D. The
magistrate judge found all of the witnesses credible, with a
single exception related to Antone’s account of certain past
crimes.
Because the sole issue on appeal is whether there was
sufficient evidence of Antone’s future volitional impairment, we
summarize the evidence only as it pertains to that issue.
1.
The Government first called respondent Antone. Antone
testified that he was unable to recall the majority of his
sexual assaults because he was either drunk or high at the time
of the incidents. He then testified about his upbringing,
substance abuse, and progress while in prison. He stated that he
would always be an alcoholic and there would always be a risk
16
that he would drink again, but that he knew to stay away from
high risk places and people. He also stated that while in prison
he had learned how to talk to others about his problems and to
“release [his] feelings in a positive way.” J.A. 221.
Subsequently, Antone presented the lay testimony of Clement
Gallop and Andre Taylor. Gallop is employed as a treatment
specialist in the commitment and treatment program at FCI-Butner
and Taylor is a counselor at FCI-Butner. Gallop testified that
he is approached by Antone on a weekly basis, and that they have
discussed issues related to Antone’s son and anger management in
general. Taylor testified that Antone has never tested positive
or been observed to have imbibed alcohol or used drugs, even
though such substances are available in prison and Taylor had
disciplined others for alcohol-related issues. Both Gallop and
Taylor had positive impressions of their interactions with
Antone.
Antone also presented the testimony of Allan Duprey and
Anne Schauder. Duprey, who was Antone’s attorney on the federal
criminal charges, testified that the federal charges were
initiated at his urging so that Antone could have access to sex
offense treatment designed specifically for Native Americans.
Duprey also testified that he had inquired about the
availability of sex offender treatment, but was told by the
Bureau of Prisons that Antone would not receive treatment until
17
the last five years of his ten-year sentence. Schauder is a
United States Probation Officer in the District of Arizona. She
explained the support and supervision that her district provides
to sex offenders, including the utilization of halfway houses,
sex offender treatment, and polygraph tests. 4
2.
The Government also presented the testimony of two expert
witnesses, Dr. Amy Phenix and Dr. Manuel Gutierrez, who were
admitted as experts in the field of forensic psychology without
objection. Both Government experts testified that Antone met the
criteria for civil commitment as a sexually dangerous person.
Their conclusions were based on their review of Antone’s written
records. Dr. Gutierrez was unable to conduct an interview of
Antone, and the portion of Dr. Phenix’s report that related to
an interview she conducted with Antone was excluded by the
magistrate judge and the Government does not challenge that
order.
4
Schauder also testified that on November 3, 2011, the
federal district court in Arizona had added an additional
condition that Antone reside in a halfway house for up to 365
days after release from custody. Antone consented to this
additional condition and executed a written waiver. Antone has,
of course, not yet been before any district court (in Arizona or
in another district should his supervision be transferred) for a
final determination as to the terms of his supervised release,
in light of the fact that he remains in federal custody in North
Carolina subject to the instant § 4248 proceeding.
18
Dr. Phenix diagnosed Antone with paraphilia not otherwise
specified, nonconsent (“paraphilia NOS, nonconsent”); 5 alcohol
dependence; 6 and antisocial personality disorder (“APD”); 7 and
she testified that as a result, he would have serious difficulty
refraining from sexually violent conduct. She opined that the
primary cause of Antone’s volitional impairment was his
paraphilia NOS, nonconsent, mental illness. Dr. Phenix found
that Antone’s paraphilia NOS, nonconsent, caused him to deviate
from ordinary sexual impulses and behaviors, and then his
alcohol dependence would serve as a disinhibitor and his
antisocial personality disorder would reinforce his paraphilic
impulses. When specifically questioned by the court, Dr. Phenix
added that, even if the paraphilia diagnosis was disregarded,
5
Paraphilia is defined as “recurrent, intense sexually
arousing fantasies, urges and behaviors” involving, in the
context of the “nonconsent” specifier, sexual arousal “by the
nonconsenting aspect of nonconsensual sexual encounters.” J.A.
848-49.
6
Alcohol/substance dependence is defined as a “maladaptive
pattern of substance use, leading to clinically significant
impairment or distress[.]” J.A. 849. There is no dispute that
Antone suffers from substance dependence.
7
Antisocial personality disorder is defined as “an enduring
pattern of inner experience and behavior that deviates markedly
from the expectations of the individual’s culture, is pervasive
and inflexible, has an onset in adolescence or early adulthood,
is stable over time, and leads to distress or impairment.” J.A.
851. At the appellate level, Antone does not challenge the
diagnosis of antisocial personality disorder.
19
she would still “believe that [Antone] will go on to commit
criminal sexual behavior.” J.A. 420.
Dr. Phenix’s conclusion on the volitional impairment prong
was based on (1) the pattern and duration of Antone’s offending;
(2) his commission of additional offenses after his 1991 sexual
abuse conviction; (3) an actuarial assessment of risk based on
static risk factors; (4) the presence of dynamic risk factors;
and 5) the absence of protective factors. Dr. Phenix explained
at the hearing that her first methodology was to “look at the
pattern and duration of his offending to see how well his
behavioral controls were when he was in the community.” J.A.
331. She focused on certain undisputed historical factors,
emphasizing the repeated nature and aggression of Antone’s
assaults and that he continued to commit assaults even after his
first arrest in 1991. 8
Dr. Phenix viewed Antone’s behavior while incarcerated only
as a secondary consideration. When questioned on why she relied
almost exclusively on pre-incarceration conduct, Dr. Phenix
responded that “I think the best measure of his volition is
8
With respect to her actuarial analysis, Dr. Phenix
utilized several predictive models, in which she inputted a
number of “static,” mostly historical facts, including the
number of prior sex offenses; whether the offender was single at
the time of offending; and whether any victims were related to
the offender.
20
prior to being in a prison where you have such strict structure
and rules for your behavior[.]” J.A. 332.
The magistrate judge also heard similar testimony from
Government witness Dr. Gutierrez. Dr. Gutierrez’s diagnoses
matched those of Dr. Phenix - paraphilia NOS, nonconsent;
polysubstance (including alcohol) dependence; and antisocial
personality disorder – and also included an additional diagnosis
of paraphilia NOS, hebephilia. He concluded that a combination
of all of the above-listed illnesses, or alternatively a sole
diagnosis of APD, would “cumulative[ly]” cause Antone to have
serious difficulty refraining from sexually violent conduct.
J.A. 457-58.
Antone subsequently presented the testimony of his expert
witness, Dr. Roy Daum, who was admitted as an expert in the
field of forensic psychology over the Government’s objection.
After conducting a forensic evaluation of Antone in February
2011, Dr. Daum diagnosed Antone with polysubstance dependence;
frotteurism; and borderline personality disorder. 9 He agreed with
9
Notably, Dr. Daum did not diagnose Antone with any form of
paraphilia NOS, be it nonconsent (when an individual is aroused
by nonconsent) or hebephilia (when an individual is aroused by
pubescent individuals). He explained that after interviewing
Antone for five hours, he had not seen any evidence or admission
by Antone — for example, an interest in deviant sexual fantasies
or a physical arousal to certain images — that would suggest
that Antone was aroused by forced sex. Dr. Daum also referred to
a psychophysiological evaluation taken in 1999 in anticipation
(Continued)
21
the Government’s experts that Antone met the first and second
criteria of § 4248 confinement. He disagreed, however, that
Antone had demonstrated that he would have serious difficulty
refraining from sexually violent conduct if released.
Dr. Daum reasoned that Antone’s offense conduct had not
been rooted in sexual deviance, but rather stemmed from a lack
of interpersonal skills and a serious substance abuse. Dr.
Daum’s conclusion considered as a central part of his analysis
certain “dynamic” factors observed during Antone’s
incarceration, including the absence of evidence of any use of
drugs or alcohol or any engagement in antisocial activities; the
absence of records showing that Antone had a general sexual
preoccupation; Antone’s positive management records; and
evidence of his completion of several self-help programs,
learning of vocational skills, and seeking counseling while
incarcerated. Of the difference between his opinion and that of
Dr. Phenix and Dr. Gutierrez, he remarked the following:
of Antone’s federal sentencing. Although the report did not make
a formal diagnosis, it observed that “[i]t is possible that
[Antone’s] sexually aggressive and sexually deviant behavior
patterns are the result of emotional and psychological
disturbance, rather than persistent deviant sexual arousal or
attraction[.]” J.A. 829.
As will be discussed infra, both the magistrate judge and
the district court adopted Dr. Daum’s conclusion that Antone did
not suffer from any form of paraphilia.
22
I believe there are many factors that you look at as far as
a civil commitment is concerned. Certainly you have heard
the last two days of a lot of discussion about actuarials.
One of the things that is really missing is the dynamic
factors of how that person is now [as compared to his
former] acts. Static, meaning it’s all said and done and
it’s easy to score, . . . but the dynamic factors allow for
the growth of a person to change or it allows for the
person not to change.
J.A. 642. Finally, Dr. Daum opined that outpatient treatment of
Antone during supervised release could adequately address his
sex offense and substance abuse problems.
D.
On April 30, 2012, the magistrate judge issued a
comprehensive M&R recommending that the district court reject
the Government’s certification of Antone as a sexually dangerous
person. The magistrate judge concluded that the Government had
met its burden with regard to the first element, in that Antone
had previously engaged in sexually violent conduct. The
magistrate judge also accepted the Government’s contention that
Antone suffered from certain serious mental illnesses within the
scope of § 4247(a)(6). Specifically, the magistrate judge found
evidence of polysubstance dependence, but it rejected the rest
of the Government experts’ diagnoses, most notably paraphilia
NOS, nonconsent and antisocial personality disorder. It also
rejected Dr. Daum’s diagnoses of frotteurism and borderline
personality disorder.
23
The magistrate judge ultimately concluded, however, that
the Government had not presented sufficient evidence to
demonstrate that Antone’s polysubstance dependence would result
in a serious difficulty refraining from sexually violent
conduct. The magistrate judge emphasized that the Government’s
position on volitional impairment was “based on [a theory of]
multiple diagnoses,” but it had decided that the Government had
not met its burden on any of those diagnoses except
polysubstance dependence. As a result, the magistrate judge was
not persuaded by the Government’s presentation as to Antone’s
volitional impairment. It cited, for example, to Dr. Gutierrez’s
understanding that “just a substance diagnosis alone could not
essentially stand by itself for civil commitment.” J.A. 881.
The magistrate judge afforded near determinative weight to
Antone’s conduct “over the last 13 or so years,” during his time
in federal prison. It noted that Antone had not been shown to
have consumed alcohol or drugs or to have engaged in sexual
misconduct during his extended incarceration. It also pointed to
his attendance in Alcoholics Anonymous and his eagerness to seek
out counseling for anger management.
The magistrate judge recognized that Antone’s achievements
while incarcerated came about in a controlled environment where
access to his vices was limited. Nevertheless, its review of the
evidence – including the testimony of Dr. Daum, who had stressed
24
the utility of dynamic factors in Antone’s case - led it to
conclude that over the past thirteen years, Antone “has achieved
a level of sexual self-regulation” and “a measure of self-
control” that significantly undercut the Government’s position
that he would have serious difficulty refraining if released.
J.A. 882. It observed that certain evidence relied upon by the
Government’s expert witnesses, such as the nature, pattern, and
duration of offense conduct, “is not as reliable an indicator of
his behavior if released . . . because of, among other reasons,
the extended intervening period in which there was no
manifestation of such conduct.” J.A. 884-85.
The magistrate judge also considered as “significant[]” the
fact that Antone would be subject to “an extended term of
supervised release.” J.A. 883. It noted that he would spend his
first year of supervised release in a halfway house and that
throughout his term, he would be subject to supervision and
participation in substance abuse and sex offender treatment
programs, periodic drug tests, and prohibitions against contact
with children.
In light of the “paucity” of evidence that Antone would
have serious difficulty refraining from sexually violent conduct
if released, the magistrate judge concluded that the Government
had failed to meet its burden of establishing, by clear and
25
convincing evidence, that Antone was a sexually dangerous person
under § 4248. J.A. 886.
E.
On September 24, 2012, the district court issued an order
rejecting the magistrate judge’s ultimate recommendation and
civilly committing Antone. It accepted the M&R’s findings of
historical fact and witness credibility, and noted that it
reviewed de novo those aspects of the M&R that were objected to
by the parties.
In applying the three-prong test, the district court first
accepted the magistrate judge’s conclusion that the Government
had established that Antone had engaged in sexually violent
conduct. It also agreed with the majority of the magistrate
judge’s recommendations as to the diagnoses of Antone’s mental
illnesses. Notably, the district court found that Antone
suffered from polysubstance dependence and that he did not
suffer from paraphilia NOS, nonconsent. In disagreement with the
magistrate judge, however, the district court found sufficient
evidence of a diagnosis of antisocial personality disorder and
held that these two diagnoses, as manifested in Antone,
qualified as serious mental illnesses.
The district court then found that the Government had
satisfied the volitional impairment requirement of § 4248. In
26
doing so, its primary focus appeared to be Antone’s admitted
alcoholism. It stated:
Respondent admits that he is and will always be an
alcoholic. To his credit, respondent has participated in
substance abuse treatment and evidently has refrained from
using alcohol and drugs while incarcerated. . . .
[However,] the risk that respondent will relapse into
abusing alcohol and other substances would be much higher
in the community.
J.A. 1115-16. It continued, “[t]he court is convinced that if
respondent uses alcohol he will have serious difficulty stopping
himself from sexually attacking persons he finds desirable,
despite their nonconsent.” J.A. 1116.
The district court looked to the combination of Antone’s
substance dependence and APD diagnoses to predict that his past
history of sexual attacks would continue once released. “This
volitional impairment has resulted in a consistent pattern of
numerous violent sexual attacks in the past, and the court finds
that the impairment will persist if respondent is released.” Id.
The court also relied on Dr. Phenix’s testimony that her
conclusion on the volitional impairment prong would not change
without the paraphilia NOS, nonconsent diagnosis.
Finally, the court expressed concern that it would not be
able to require Antone to undergo sex offender treatment. All
parties – including Dr. Daum as well as Antone himself – agreed
that Antone would benefit from sex offender treatment. According
to the district court, however, under a recent Ninth Circuit
27
case, United States v. Turner, a § 4248 detainee’s term of
supervised release is not tolled while he remains in custody
awaiting a commitment hearing. 689 F.3d 1117, 1121 (9th Cir.
2012). Assuming Antone’s period of supervised release actually
had begun when he was due to be released from the Bureau of
Prisons, supervision would have ended on February 27, 2012, but
he was still civilly committed at that point. The district court
thus predicted that without a tolling mechanism, Antone would
not be subject to any term of supervised release under Ninth
Circuit law. It also rejected as “irrelevant” the testimony of
the probation officer from Arizona based on similar reasoning.
Accordingly, the district court rejected the magistrate
judge’s ultimate recommendation, instead finding that the
Government had established that Antone was a sexually dangerous
person within the meaning of 18 U.S.C. § 4247(a)(5) and (6).
F.
Because Antone has not disputed the first and second
elements of the Government’s § 4248 certification, the sole
issue on appeal is whether the district court erred in finding
that he will have serious difficulty refraining from sexually
violent conduct if released. We hold that it did.
Under the clear error standard, we may not reverse the
district court’s holding even if we are “convinced that had we
been sitting as the trier of fact, we would have weighed the
28
evidence differently.” Springer, 715 F.3d at 545 (internal
citations omitted). Yet “while clear-error review is
deferential, it is not toothless.” Wooden, 693 F.3d at 451
(internal citations omitted). A reversal is warranted, for
example, if the district 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.” Id. at 462. We may then reverse if, upon reviewing
the district court’s ultimate mixed findings, we are “left with
the definite and firm conviction that a mistake has been
committed.” Id. at 451.
That is precisely what is at stake here: our review of the
lower court opinion leads us to conclude that the district
court’s inadequate consideration of certain “substantial
evidence” – namely Antone’s behavior in the past fourteen years
or so – constitutes reversible error. And our subsequent
analysis of the evidentiary record leaves us with a definite and
firm conviction that Antone’s commitment should be reversed.
That Antone has “responded very well” to incarceration is
not in dispute. J.A. 333. Antone has not tested positive for any
substances while in prison, and he testified that he has been
sober during his extended incarceration. Antone’s conduct as it
relates to sexual deviance is equally commendable. Not only has
he not engaged in any actual sexual misconduct or hostility
29
toward women, but, just as importantly, his record is devoid of
any indication that he has even desired to manifest such
misconduct.
Instead, Antone has presented significant testimony to the
contrary. Two employees from the correctional facility testified
on Antone’s behalf, and the magistrate judge found credible
their assurances that their interactions with Antone have been
consistently positive and that he has demonstrated self-
awareness and control on a regular basis. He has for the most
part avoided conflicts with superiors or fellow inmates. Antone
has completed his GED, as well as other professional programs,
and he readily seeks out the prison’s mental health resources.
He has expressed remorse for his past acts.
Yet the district court’s discussion of Antone’s behavior
while incarcerated is negligible at best. It failed to discuss
the opinions of Gallop or Taylor, the only witnesses who have
had consistent contact with Antone since his incarceration. It
considered the testimony of Antone only to the extent that he
admitted that he will always be an alcoholic. 10 And it failed to
10
To the contrary, we note that Antone’s admission that he
will always struggle with alcohol is a crucial and necessary
step in his path toward recovery from substance abuse. See The
Twelve Steps of Alcoholics Anonymous, available at
http://www.aa.org/en_pdfs/smf-121_en.pdf (stating that the first
step in addressing addiction is accepting that a problem exists)
(last visited January 31, 2014).
30
mention the nearly ten-year period in which Antone has had zero
disciplinary infractions and the nearly fifteen-year period in
which Antone has had no sex-related incidents.
In fact, in the “serious difficulty” section of its
opinion, the district court’s analysis of Antone’s conduct while
incarcerated is limited to a single sentence acknowledging his
“evident[]” abstinence from alcohol. 11 Relying again on Antone’s
past history of “numerous violent sexual attacks,” it concluded
that his volitional impairment would persist if released.
Since upholding the constitutionality of the Walsh Act in
2010, we have disposed of more than a handful of § 4248 appeals
involving the volitional impairment prong, but none of them
involved a respondent who had demonstrated such positive
behavior during the extended period of his incarceration. In
each of those cases, the district court referred to some
negative aspect of the respondent’s recent (that is, during-
11
That portion of the district court opinion reads, in
total,
Respondent admits that he is and always will be an
alcoholic. To his credit, respondent has participated in
substance abuse treatment and evidently has refrained from
using alcohol and drugs while incarcerated. Although
alcohol and drugs are certainly present where respondent is
housed, they are contraband, and their availability is
considerably limited compared to the access respondent
would have to such substances if he were to be released.
J.A. 1115 (emphasis added).
31
incarceration or post-release) behavior. In United States v.
Bolander, 722 F.3d 199, 204 (4th Cir. 2013), for example, we
affirmed the commitment of a respondent who stole pornographic
materials from the treatment lab while incarcerated and
collected child pornography while on supervised release.
Likewise, in United States v. Wooden, 693 F.3d at 445, the
respondent had written a letter to one of his previous victims,
and we concluded that he had serious volitional impairment
issues. See also United States v. Heyer, --- F.3d at ---, 2014
WL 185584, at *2-3, 9 (noting respondent’s admission of “ongoing
sexual interest in children,” including showing child
pornography to a teenage boy while on probation).
Even those cases in which the respondent was ultimately
found not to qualify for commitment nevertheless involved some
evidence of negative behavior during incarceration. In United
States v. Hall, 664 F.3d at 464, the district court considered
the respondent’s ongoing interest in collecting pictures and
drawings of children and adolescents while in custody and his
report that he often masturbated to memories of his child
victims, but it ultimately concluded that due to his abstention
from hands-on offenses during his twenty-eight months of
release, he was not sexually dangerous under § 4248; we affirmed
the judgment. See also United States v. Francis, 686 F.3d 265,
271 (4th Cir. 2012) (considering respondent’s perceived
32
hostility toward women and his noncompliance with supervised
release, but affirming denial of government’s commitment
petition).
Here, Antone’s behavior during the past fourteen years –
indeed, during a period of time that spans the majority of his
adult life – reveals no acts that conceivably come close to the
sort of malfeasance present in our aforementioned precedent. 12 On
these facts, there is not much more that he could have done to
demonstrate that he is in control of his volitional faculties
and that such control is likely to persist after his release.
The district court should have been aware of the uniqueness of
Antone’s factual record. As such, it was imperative for the
12
The district court made reference to the fact that Antone
had not attended sex offender treatment. Antone had, however,
repeatedly sought this treatment at the beginning of his
incarceration to no avail. It is true that he was eventually
offered sex offender treatment sometime in September 2008, but
this choice was effectively no choice at all. At that point, the
Government was proceeding with its efforts to civilly commit
Antone, and any treatment received would be at the cost of
providing the Government with additional fodder to use against
him in those proceedings.
The district court also noted that Antone’s institutional
conduct “has not been without incident.” J.A. 1114. It cited to
his two sanctions for fighting, both of which occurred before
2004, and the presence of “inappropriate materials” in his cell.
We reject the notion that the prison’s confiscation of the
magazine Maxim can rise to the level of malfeasance discussed
above.
33
court to comprehensively address why it believed Antone’s recent
behavior was overshadowed by his past acts. It failed to do so.
In Wooden, we recently confronted a situation in which we
believed that the district court had failed to consider relevant
and substantial evidence of a respondent’s volitional
impairment. 693 F.3d at 458-62. There, the district court had
rejected the petition for civil commitment, finding that the
Government had failed to demonstrate clear and convincing
evidence that the respondent would have serious difficulty
refraining from re-offending. Our review of the evidentiary
record led us to hold otherwise. Because the district court
relied on a flawed expert opinion and ignored or otherwise
failed to account for a “substantial body of contradictory
evidence,” we found reversible error. Id. at 461.
Here, as in Wooden, we have again been “left with the
definite and firm conviction that a mistake has been committed.”
Id. The “core” of Antone’s case was his decade-long process of
rehabilitation. Antone called three separate witnesses to
support his position that, as a result of his efforts to obtain
treatment, he had improved his ability to control his impulses.
The district court’s one-sentence dismissal of Antone’s case in
chief does not sufficiently address the valid and important
evidence contained therein.
34
We hasten to note that it was not clearly erroneous for the
district court to place significant weight on Antone’s pre-
incarceration acts and behavior in reaching its predictive
finding. A respondent’s criminal record “may well be a
historical factor, but it is by no means a stale or irrelevant
one. When the question is whether an inmate . . . will have
serious difficulty refraining from re-offending if released,
consideration of the nature of his prior crimes provides a
critical part of the answer.” Wooden, 693 F.3d at 458. Rather,
the deficiency here lies primarily in the Government’s failure
to muster, and the district court’s failure to hold the
Government to its obligation to muster, sufficient evidence of
an ongoing volitional impairment in this case. The mixed finding
that ensues is “against the clear weight of the evidence
considered as a whole” and constitutes reversible error.
As both the magistrate judge and Dr. Daum recognized, in
analyzing whether a respondent will have serious difficulty
refraining from re-offending, one must look to his past and his
present condition. Here, Antone has presented significant
indicators that he presently “has problems, takes responsibility
for them, and seeks help for them,” and his pre-incarceration
malfeasance cannot be the sole relevant factor of consideration.
J.A. 883. We certainly do not fault the Government, as whatever
evidence it had, it presented, but that evidence largely (and
35
certainly equally) serves to bolster Antone’s asserted
rehabilitation and his subsequent capacity for volitional
control.
The Government contends that the district court amply
justified its conclusion by relying on the testimony and reports
of its expert witness Dr. Phenix. 13 It is true that Dr. Phenix
opined that Antone met the volitional impairment prong, and we
are “reluctant to set aside a finding based on the trial court’s
evaluation of conflicting expert testimony.” Hendricks v. Cent.
Reserve Life Ins. Co., 39 F.3d 507, 513 (4th Cir. 1994). Yet we
cannot unreservedly accept the district court’s election to give
determinative weight to Dr. Phenix’s opinions, and for two
reasons.
First, Dr. Phenix’s conclusion as to whether Antone would
have serious difficulty in re-offending was based on multiple
diagnoses (including, most importantly, paraphilia NOS,
nonconsent) that were subsequently rejected by the magistrate
judge and the district court. Indeed, Dr. Phenix testified that
Antone’s “paraphilic disorder is primarily responsible for so
many incidents of nonconsenting sexual activity and child
13
The district court did not state that it relied on Dr.
Gutierrez’s report or testimony for its conclusion on the third
prong, and we agree that Dr. Gutierrez’s statements do not give
rise to clear and convincing evidence of volitional impairment.
36
molest[ation],” and that her other two diagnoses, substance
dependence and antisocial personality disorder, served as a
“contributor” or “permission giver.” J.A. 318, 325. But the
district court concluded that Antone did not suffer from
paraphilia, the primary diagnosis supporting Dr. Phenix’s
conclusions. The fact that the court rejected Dr. Phenix’s
paraphilia diagnosis significantly minimizes the amount of
persuasive force retained by her opinion as to Antone’s
volitional impairment. 14
Second, and more fundamentally, Dr. Phenix’s evaluation of
Antone suffers from the same flaw as the conclusion ultimately
put forth by the district court. The expert report submitted by
Dr. Phenix focuses almost exclusively on events that occurred
prior to 1997; indeed, she admitted as much during her
testimony. Dr. Phenix explained that her decision to focus on
pre-incarcerative acts stemmed from her belief that actions
taken while in the outside world are more accurate predictors of
14
When specifically questioned on her thoughts on
commitment without her paraphilia diagnosis, Dr. Phenix did
opine that she would still consider Antone to be a sexually
dangerous person. She clarified that this was because she
“believe[d] that he will go on to commit criminal sexual
behavior.” J.A. 420. Dr. Phenix’s analysis of future criminality
is not the legal inquiry at stake in § 4248 commitment, which
looks instead to an individual’s volitional control. For this
reason, this statement is insufficient to meet the Government’s
heightened burden.
37
future behavior upon release. That is, of course, her choice,
but as it relates to our review of the evidentiary record, it
will not carry the day. The district court should have at the
very least explained why it found Dr. Phenix’s unadorned
conclusion more persuasive than that of Dr. Daum, who
specifically critiqued the former’s technique because it did not
allow for a respondent’s subsequent growth. We find that Dr.
Phenix’s conclusion on volitional impairment is insufficient to
satisfy the Government’s heightened clear and convincing
evidence burden. Cf. Wooden, 693 F.3d at 457 (finding that the
“many deficiencies” in an expert’s testimony “leave us firmly
and definitely convinced that the district court’s factual
findings were mistaken.”).
The Government next contends that the district court’s
consideration of Antone’s recent behavior was sufficient because
it explicitly adopted the magistrate judge’s factual findings
and credibility determinations related to the lay witness
testimony. We reject this argument. Even though the district
court acknowledged its awareness of the testimony, that by
itself does not indicate to us that it adequately considered its
impact. If, after reading the opinion, we cannot understand how
the district court came to its conclusions, then we will be
unable to perform a cogent analysis on its merits.
38
Factfinding is “a dynamic, holistic process that
presupposes for its legitimacy that the trier of fact will take
into account the entire record before it.” Taylor v. Maddox, 366
F.3d 992, 1007 (9th Cir. 2004). When “the court’s account of the
evidence is not plausible in light of the record viewed in its
entirety,” then it is not entitled to deference upon our review.
Wooden, 693 F.3d at 460. Here, the district court disposed of
more than a decade of evidentiary data points in a single
sentence, and we cannot find that it properly took into account
all substantial evidence.
Nor can we, on the merits of the matter, find that the
Government presented clear and convincing evidence that Antone
will have serious difficulty refraining from re-offending if
released. The Supreme Court has stated that the serious
difficulty element is intended to distinguish the “dangerous
sexual offender” from the “dangerous but typical recidivist
convicted in an ordinary criminal case who, having been
convicted and punished for one crime, proceeds through his own
free choice to commit another.” Kansas v. Crane, 534 U.S. at
413. Here, then, the Government must demonstrate that Antone’s
particular manifestation of his mental illnesses are so severe
and controlling as to deprive him of his liberty for an
indeterminate future.
39
That is not the case. Clear and convincing evidence equips
a factfinder with “a firm belief or conviction, without
hesitancy,” of the truth of the matter asserted, and, on the
record before us, we possess no such conviction about the grip
strength of Antone’s mental illness on his behavior. Springer,
715 F.3d at 538. We have already cited the substantial evidence
in the record indicating that Antone has developed a level of
general and social self-regulation; indeed, on these facts, we
are hard-pressed to suggest much else that he could possibly do
to undercut the notion that he would have serious difficulty in
restraining from re-offending. What’s more, Antone’s civil
commitment is based on two mental disorders that are
undisputedly prevalent in the nationwide prison population. 15
See, e.g., Kansas v. Crane, 534 U.S. at 412; see also Jack
Vognsen & Amy Phenix, Antisocial Personality Disorder is Not
15
In Kansas v. Crane, the Supreme Court recognized the
“constitutional importance of distinguishing a dangerous sexual
offender subject to civil commitment from other dangerous
persons who are perhaps more properly dealt with exclusively
through criminal proceedings.” 534 U.S. at 412. In fact, in
making this precise point, the Court cited to the wide
prevalence of antisocial personality disorder among inmates -
one of the two mental illnesses at issue in the instant case.
In his brief, Antone has contended that the language in
Crane supports his position that it is unconstitutional to
commit individuals under § 4248 who do not suffer from a
paraphilia. Because we hold that, on the evidentiary record
before us, Antone has not been shown to be a sexually dangerous
person, we do not reach this question.
40
Enough: A Reply to Sreeivasan, Weinburger, and Garrick, 32 J.
Am. Acad. Psychiatry Law 440, 442 (2004) (J.A. 1035-37) (noting
that 50 to 70 percent of the ordinary prison population suffers
from antisocial personality disorder); Dept. of Justice, Bureau
of Justice Statistics, Christopher J. Mumola & Jennifer C.
Karberg, Drug Use and Dependence, State and Federal Prisoners,
2004 1 (2004), available at
http://www.bjs.gov/content/pub/pdf/dudsfp04.pdf (finding that 45
percent of federal prisoners met DSM-IV criteria for drug
dependence or abuse) (last visited January 31, 2014). We
conclude that, under the clear and convincing evidence standard,
the Government has failed to distinguish Antone’s alleged
volitional impairment from that of a “dangerous but typical
recidivist.” Kansas v. Crane, 534 U.S. at 413.
G.
Finally, we turn to the issue of Antone’s supervised
release. The district court’s position seems to be that, if
Antone were to contest the terms of his supervised release in
front of his sentencing court in Arizona, then the sentencing
court would be bound by Ninth Circuit law and hold that his
supervised release expired in February 2012. See United v.
Turner, 689 F.3d at 1121 (holding that civil detention under the
Walsh Act does not toll supervised release). On appeal, Antone
contends that the district court erred as a matter of law
41
because it failed to consider the possibility that he would be
judicially estopped from challenging his expressly-agreed-to
supervised release in the course of this civil commitment
litigation.
As we hold that the evidence in this record is insufficient
under the clear and convincing standard to support the district
court’s predictive judgment of Antone’s volitional impairment,
we need not wade into this legal issue at this time, nor do we
find any reason to do so. Antone has given no indication that he
will challenge his status as a supervised releasee under the
judgment of the Arizona district court, and it is therefore
premature to anticipate that Turner will even be invoked in
front of the sentencing judge. Indeed, it is our understanding
that the sentencing judge has accepted a recommendation by joint
agreement (signed by Antone) that imposes as an additional
condition of his supervised release a 365-day term in a halfway
house upon his release from federal custody. Whether this
modification changes the application of Turner is for the
district court in Arizona (or another federal district court
should Antone’s supervision be transferred) to decide, not this
court or the North Carolina district court. 16
16
As for judicial estoppel, it, too, is prematurely in
front of this panel. Antone has not at this point “adopt[ed] a
position that is inconsistent with a stance taken in prior
(Continued)
42
At oral argument before us, counsel for Antone reported
that Antone is currently attending sex offender therapy. 17 One
can only be encouraged by Antone’s commitment to self-
improvement, rehabilitation, and recidivism prevention.
III.
For the reasons set forth, we conclude that the appellate
record does not support the district court’s determination that
Antone would have serious difficulty refraining from sexually
violent conduct if released. It may be that we would affirm the
judgment were the Government’s burden one of a mere
preponderance, but it is not and we do not. The Government has
not established by clear and convincing evidence that the facts
and circumstances of this case establish that Antone is a
sexually dangerous individual subject to commitment under
litigation,” and the Government has not invoked the defense of
judicial estoppel. See generally Zinkand v. Brown, 478 F.3d 634,
638 (4th Cir. 2007). However, if the tolling issue does
ultimately come before a federal district court, the court will
surely consider the relevance of Antone’s consistently expressed
intent to complete his term of supervised release upon his
release from the Bureau of Prisons.
17
We note that Antone has been attending sex offender
therapy in spite of its potential impact on future civil
commitment hearings. See generally Jeslyn A. Miller, Comment,
Sex Offender Civil Commitment: The Treatment Paradox, 98 Cal. L.
Rev. 2093, 2115 (2010) (explaining that “[e]verything that an
offender confesses during these multiple stages of treatment -
including sexual fantasies, uncharged offenses, and gruesome
details regarding sexual offenses - is discoverable.”).
43
§ 4248. Accordingly, we reverse the judgment of the district
court and remand the matter to the district court with
instructions to dismiss the petition. The mandate shall issue
forthwith.
REVERSED AND REMANDED WITH INSTRUCTIONS;
MANDATE TO ISSUE FORTHWITH
44