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Full Opinion
United States Court of Appeals
For the First Circuit
No. 11-1921
UNITED STATES OF AMERICA,
Appellee,
v.
TODD CARTA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Howard, Selya and Thompson,
Circuit Judges.
Ian Gold, Assistant Federal Public Defender, with whom Tamara
Fisher and Federal Defenders Office, were on brief, for appellant.
Eve A. Piemonte Stacy, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney and Jennifer Serafyn,
Assistant United States Attorney, were on brief, for appellee.
July 27, 2012
HOWARD, Circuit Judge. Todd Carta appeals the district
court's ruling that he is a "sexually dangerous person" subject to
civil commitment under the Adam Walsh Child Protection and Safety
Act of 2006 ("the Act").1 After review of the record and the
district court's factual findings and legal conclusions, we affirm.
I.
Carta pled guilty to federal child pornography charges in
2002 and was sentenced to five years in prison and three years of
supervised release. Prior to his scheduled release in 2007, the
Bureau of Prisons certified that Carta was a "sexually dangerous
person" and commenced proceedings pursuant to the Act, which
authorizes civil commitment of a person in federal custody. 18
U.S.C. § 4248(a). A "sexually dangerous person" is one "who has
engaged or attempted to engage in sexually violent conduct or child
molestation and is sexually dangerous to others." 18 U.S.C.
§ 4247(a)(5). A determination that an individual is a "sexually
dangerous person" requires the government to prove by clear and
convincing evidence that he "suffers from a serious mental illness,
abnormality, or disorder as a result of which he would have serious
difficulty in refraining from sexually violent conduct or child
molestation if released." Id. § 4247(a)(6).2
1
Pub. L. No. 109-248, 120 Stat. 587 (2006), codified at 18
U.S.C. §§ 4247-48.
2
If the government meets its burden, the inmate is committed
to the custody of the United States Attorney General. 18 U.S.C. §
-2-
After a district judge ruled that the government had
failed to establish that Carta's diagnosis of "paraphilia not
otherwise specified characterized by hebephilia" was a "serious
mental illness, abnormality or disorder" within the meaning of the
Act, United States v. Carta, 620 F. Supp. 2d 210 (D. Mass. 2009)
("Carta I"), a panel of this court reversed, holding that the
district court erred in ruling that the government had failed to
establish the serious mental illness element. United States v.
Carta, 592 F.3d 34, 44 (1st Cir. 2010) ("Carta II"). The case was
remanded for consideration of "whether the requisite dangerousness
exists." Id. A different district court judge subsequently
conducted a seven-day trial, ultimately ruling in the government's
favor. See United States v. Carta, No. 07-12064-PBS, 2011 WL
2680734 (D. Mass. July 7, 2011) ("Carta III"). This timely appeal
followed.
II.
We begin by observing that Carta, who was 42 years old
when he pled guilty to the child pornography charges for which he
was incarcerated, does not deny that the Act's first element --
4248(d). If the state in which he is currently domiciled or was
tried will accept him, he will be transferred to the state for
"care, custody and treatment." Id. If not, the Attorney General
must place him in a "suitable facility" for treatment until such
time as the state accepts custody or he is no longer sexually
dangerous. Id. § 4248(e). A committed individual is also
permitted to file a motion seeking discharge with the court that
ordered his commitment. Id. § 4247(h). If denied, there is a 180-
day waiting period before he can again seek relief. Id.
-3-
that he has engaged in child molestation in the past -- is
satisfied. His lengthy history of committing sexual abuse,
beginning when he was 11 years old and including many such acts
over the course of three decades, is detailed in both district
court orders. See Carta III, 2011 WL 2680734 at *3-7; Carta I, 620
F. Supp. 2d at 212-14. We eschew repeating the details of his
history here. In addition to his prior abusive conduct, Carta also
displayed troubling behavior while in a sex offender treatment
program in federal prison. After being transferred at his request
to a prison in North Carolina that offered the program, Carta
dropped out in part because of his inappropriate interest in the
program's younger members. Carta II, 592 F.3d at 37.
Given Carta's concession as to the first element, the
remaining issues before us are whether he suffers from a serious
mental illness, abnormality or disorder and, if so, whether such
condition would result in his having serious difficulty refraining
from sexually violent conduct or child molestation.
A.
At the heart of the first issue is the diagnosis
proffered by the government expert, Dr. Amy Phenix, who testified
that Carta was afflicted with a mental disorder known as
"paraphilia not otherwise specified ("NOS") characterized by
hebephilia." The Diagnostic and Statistical Manual of Mental
-4-
Disorders ("DSM IV" or "DSM") describes the "essential features" of
paraphilia as follows:
[R]ecurrent, intense sexually arousing
fantasies, sexual urges, or behaviors
generally involving 1) nonhuman objects,
2) the suffering or humiliation of oneself or
one's partner, or 3) children or other
nonconsenting persons, that occur over a
period of at least 6 months . . . [and that]
cause clinically significant distress or
impairment in social, occupational, or other
important areas of functioning.
Carta II, 592 F.3d at 38 (quoting Am. Psychiatric Ass'n, DSM 522-23
(4th ed. 2000)). The "not otherwise specified" portion of the
diagnosis stems from the fact that hebephilia is not one of the
specific conditions listed in the DSM IV, either separately or as
an example of paraphilia. Id. While the precise contours of
hebephilia are the subject of debate, it suffices to say that the
disorder consists of a sexual attraction to adolescents, as opposed
to, for example, a specified paraphilia such as pedophilia, a
sexual attraction to pre-pubescent children. Id. (citing DSM at
527-28).
The parties dispute whether our determination in Carta
II that the government had established the mental disorder element
is binding as law of the case. It is.
Under the law of the case doctrine, "when a court decides
upon a rule of law, that decision should continue to govern the
same issues in subsequent stages of the same case." United States
-5-
v. Matthews, 643 F.3d 9, 12 (1st Cir. 2011) (citing Arizona v.
California, 460 U.S. 605, 618 (1983)). Two branches of the
doctrine are pertinent here. The "mandate rule" proscribes
relitigation in the trial court of matters that were decided by an
earlier appellate decision in the same case. Id. at 13. The other
branch, related to the "law of the circuit" principle, binds a
successor appellate panel in the same case to "honor fully the
original decision." Id. Here, both varieties of the rule apply.
The only issue before us in Carta II was whether the
district court in Carta I had correctly ruled that the diagnosis of
paraphilia NOS characterized by hebephilia was not a serious mental
illness, abnormality or disorder. We determined that the statutory
definition of "serious mental illness" is not limited to either the
consensus of the medical community or to maladies identified in the
DSM. Carta II, 592 F.3d at 39-40. Additionally, we noted that
even if hebephilia lacks sufficient indicia to fit it within the
statutory praxis, paraphilia itself is listed in the DSM, as is the
category "paraphilia not otherwise specified." Id. at 40. Thus,
we discounted the testimony of defense expert Dr. Leonard Bard that
hebephilia is not a generally accepted diagnosis and does not fit
within the DSM definition of paraphilia. In the end, we concluded
that "Dr. Phenix's report, Carta's past history of sexually abusing
minors, his in-prison behavior and his expressed attitudes justify
classifying him as suffering from paraphilia: he has a decades-
-6-
long sexual fixation on minors that plainly has 'caused significant
distress or impairment' in his life." Id. at 40.3
On remand to determine whether Carta would have serious
difficulty in refraining from sexually violent conduct or child
molestation, the district court nevertheless acceded to Carta's
request to accept additional evidence on the mental condition
issue. Carta III, 2011 WL 2680734 at *2. The court need not have
done so.
In Carta II, we explicitly decided the serious mental
illness question. Under the mandate rule, relitigation is
ordinarily foreclosed. See United States v. Rivera-Martinez, 931
F.2d 148, 150 (1st Cir. 1991) ("When a case is appealed and
remanded, the decision of the appellate court establishes the law
of the case and it must be followed by the trial court on remand.")
(emphasis in original). The trial court possesses "some limited
discretion" to reopen an issue, but only in "very special
situations." United States v. Wallace, 573 F.3d 82, 88-89 (1st
Cir. 2009) (quoting United States v. Bell, 988 F.2d 247, 250-51
(1st Cir. 1993)). We have described the "exceptional
circumstances" that must be present to overcome the mandate rule as
requiring a showing of a change in controlling legal authority,
3
One example of the impact of Carta's fixation on his life is
his report that he spent between twelve and fourteen hours per day
on the internet searching for and viewing child pornography and
masturbating to images two to three times daily.
-7-
significant new evidence not previously obtainable, or the prospect
of serious injustice. Id.
Similarly, the law of the circuit principle requires that
we follow Carta II "unless and until the decision is modified or
overturned by a higher court" or "if the initial ruling was made on
an inadequate record or was designed to be preliminary or
tentative, . . . if newly discovered evidence bears on the
question, or if reconsideration would avoid manifest injustice."
Wallace, 573 F.3d at 89 (quoting Ellis v. United States, 313 F.3d
636, 647-48 (1st Cir. 2002)) (internal quotation marks omitted).
"A finding of manifest injustice requires a definite and firm
conviction that a prior ruling . . . is unreasonable or obviously
wrong [and] a finding of prejudice." Id. (citation and internal
quotation marks omitted).
None of the factors that would obviate application of
either branch of the law of the case doctrine to the holding in
Carta II is present here. There has been no intervening authority
that would undermine the earlier panel decision, Carta II was not
decided on an inadequate record, and there was nothing about the
opinion that could be regarded as preliminary or tentative. Carta,
however, argues that new evidence compels re-examination of the
issue. Indeed, the district court allowed him to introduce an
article written after Carta II, in which two drafters of the DSM IV
express their doubts about the propriety of a forensic diagnosis of
-8-
paraphilia NOS with a hebephilia descriptor. The court also
appointed, at Carta's request, Dr. Robert Prentky, who interviewed
Carta for six hours and reviewed his records. Although Dr. Prentky
testified that Carta did not suffer from a serious mental illness,
he agreed with Dr. Phenix that paraphilia NOS with a descriptor of
hebephilia can be an appropriate diagnosis. But this additional
disagreement among experts does nothing to alter the scenario that
we analyzed in Carta II, and therefore our determination that Carta
fits within the "serious mental illness" prong of the Act was (and
remains) binding.
That said, however, nothing about our law of the case
analysis should be read to suggest that we have cause to doubt the
district court's conclusion that the proof provided during the
court's supplemental inquiry satisfied the second element of the
Act. The judge's analysis of the serious mental condition issue,
taking into account the additional evidence, does not come close to
qualifying as clear error. See Fed. R. Civ. P. 52(a)(6).
B.
Turning to the third element, we note that the Act does
not define "serious difficulty in refraining" from sexually violent
conduct or child molestation. Nevertheless, sufficient guidance
comes from the Supreme Court's pre-Act review of a Kansas civil
commitment statute in Kansas v. Crane, 534 U.S. 407 (2002). In
Crane, the Court held that a showing of "serious difficulty in
-9-
controlling behavior" was a prerequisite to civil commitment of a
sexually dangerous person. Id. at 413. Such lack of control need
not be "demonstrable with mathematical precision," but the
defendant's lack of control "must be sufficient to distinguish the
dangerous sexual offender whose serious mental illness,
abnormality, or disorder subjects him to civil commitment from the
dangerous but typical recidivist convicted in an ordinary criminal
case." Id.
In ruling in the government's favor, the district court
relied on transcripts from Carta I, testimony from Drs. Phenix,
Prentky and Bard, and Carta's own testimony and history. As for
the experts, Dr. Phenix concluded that Carta would have serious
difficulty refraining from sexually molesting children if released;
Dr. Prentky and Dr. Bard disagreed.
Although Carta refused to allow her to interview him, Dr.
Phenix based her opinion on her review of Carta's records, as well
as her use of three different risk-assessment actuarial tools to
yield a re-offense rate. Carta III, 2011 WL 2680734 at *14-16,
*23. The district court did not entirely accept Dr. Phenix's
actuarial conclusions, however, because her analysis included a
subjective step that contributed to the finding of a higher re-
offense rate, but which has not been empirically validated. Id. at
*14 n.1.
-10-
In addition to applying the actuarial tools, Dr. Phenix
observed other risk factors present in Carta's life, including the
absence of social support, the presence of significant intimacy
deficits and poor sexual and non-sexual self-regulation, and a
demonstrated lack of cooperation with supervision. In sum, Dr.
Phenix testified that Carta was the same person that he was when he
entered treatment -- still believing that sexual relationships with
thirteen year-old boys were permissible.
Dr. Prentky, who did meet with Carta, used a diagnostic
tool (known as the SVR-20) that excluded from consideration sex
crimes that had not been legally adjudicated. Id. at *20. Dr.
Prentky combined the score from this model with other factors,
including, e.g., the lack of documented sexual offenses and
significant sanctions, as well as Carta's infraction-free presence
in the community pending sentencing and the fact that he neither
had re-offended after a criminal sanction nor had a sex-related
disciplinary problem in prison. Id. Ultimately, although Dr.
Prentky believed that Carta would have serious difficulty
refraining from general anti-social behavior, he did not think that
such difficulty would carry over into sexually violent conduct or
child molestation. Id.
Dr. Bard relied on an actuarial test that assessed
Carta's likelihood of recidivision at seven to fifteen percent. He
acknowledged, however, that the tool did not account for Carta's
-11-
then-current situation, but instead combined factors from his past
and compared them to others with similar data points. Id. at *18.
To overcome this limitation, Dr. Bard created a "dynamic risk
assessment" that combined the test with other factors. He placed
considerable weight on the fact that Carta had not engaged in any
sexual misconduct while in prison. He placed little significance,
however, on Carta's actions during his time in the federal prison
treatment program. Essentially, Dr. Bard took the position that
since there is nothing illegal or deviant about having a
relationship with a twenty-five year-old, Carta's actions did not
point to a likelihood of re-offense. To the contrary, Dr. Bard
suggested that these actions demonstrated that Carta was "mov[ing]
his level of attraction from teenagers to twenty-somethings." Id.
Moreover, Dr. Bard accepted Carta's explanation for having dropped
out of the treatment program -- it resulted from his stubbornness
about admitting that he had made a mistake, rather than from
inappropriate contact with other program members. Id.
Ultimately, Dr. Bard testified that Carta is "a very
different person" and that his likelihood of re-offense would be
tempered by the presence of a support system in the form of
therapists, family members and a probation officer. Id. at 19. He
testified that Carta's attraction, impulsivity and anger "are not
the same now as [they were] in the past" and that "[he] is able to
-12-
control his behavior as evidenced by his nine plus years in prison
without any serious violence." Id.
The district court concluded that none of the experts'
testimony could be given full weight, noting that Dr. Bard believed
that paraphilia NOS (hebephilia) is not a valid diagnosis under any
circumstances, that Dr. Phenix's methodology included a subjective
step, and that Dr. Prentky's analysis did not include Carta's self-
reported crimes. Id. at *23. Additionally, the court was less
convinced than Dr. Prentky that Carta had undergone "considerable
self-transformation" while in custody awaiting the hearing in this
case.
The court also considered numerous other factors. In
Carta's favor were the lack of sexual misconduct either during the
interval between his guilty plea and his incarceration or while he
was in prison, the fact that he was seeking treatment during the
pendency of the hearing, and his advancing age. Id. at *24. At
the same time, however, the court observed that Carta's history of
sexual crimes and anti-social behavior was deeply troubling, and
his impulsive actions and volatility when faced with adversity were
highly concerning. Id. Additionally, the court found that Carta
continued to engage in distorted thinking, exemplified by his
attempt to rationalize his behavior by stating that both a thirteen
year old boy and his daughter's boyfriend had initiated sexual
-13-
contact with him. Id.4 Finally, the court noted that Carta's
inability to refrain from engaging with younger participants while
in the federal sex offender treatment program, and his departure
from the program, demonstrated a disturbing degree of
impulsiveness. Id. at *25.
Carta targets the weight that the district court assigned
to the many strands of evidence in the mix. Two specific points
stand out. First, Carta places great significance on the fact that
he committed no sexual offenses or violations while incarcerated.
The relevance of that behavior, however, is limited by the fact
that the main targets of his attraction -- adolescent boys -- are
inaccessible in prison. Next, he says that the district court
placed insufficient weight on his lack of sexual misconduct while
he was in the community pending sentencing, as well as on his lack
of re-offense after being sanctioned. Compared to these relatively
short time frames on which Carta focuses, however, he has a lengthy
pre-sanction history of sexual misbehavior involving children. We
have no difficulty accepting the premise that multiple instances of
post-sanction recidivism can buttress a commitment decision. See,
e.g. United States v. Shields, 649 F.3d 78, 89 (1st Cir. 2011);
4
Carta takes issue with this finding, arguing on appeal that
there is no evidence that he was lying about the encounters, and
that the other individuals did initiate them. We read the district
court's concern as, even assuming that Carta was truthful, the
encounters nevertheless were inappropriate no matter who initiated
them.
-14-
United States v. Hunt, 643 F. Supp. 2d 161, 181 (D. Mass. 2009).
But we do not read the Act as requiring previous post-sanction
misconduct.
Aside from those two assertions, the essence of Carta's
argument is that more weight should have been given to the
testimony of the experts who testified in his favor, with
correspondingly less placed on Dr. Phenix's testimony, his own past
conduct, and his departure from the federal prison treatment
program. After reviewing the district court's factfinding for
clear error, we have no warrant to upset that court's assessment of
the evidence. Carta II, 592 F.3d at 39.5 As the district court
acknowledged, the "serious difficulty refraining" assessment
presented the most vexing issue. Id. at *22. But it is abundantly
clear that the court carefully weighed the evidence and the
competing views espoused by each of the experts.
Our task is not to re-weigh the evidence or to make
credibility assessments. See Adelson v. Hananel, 652 F.3d 75, 86
(1st Cir. 2011) ("[W]hen a case has been decided on the facts by a
judge . . . an appellate court must refrain from any temptation to
retry the factual issues anew.") (quoting Johnson v. Watts
5
We summarily reject Carta's argument that the district court
committed legal error -- subject to de novo review -- by saddling
him with the burden of proving that he was not dangerous. Contrary
to Carta's claim, the district court's conclusion that Carta lacked
the tools to control his behavior was a finding of fact that the
court used to buttress its ultimate conclusion.
-15-
Regulator Co., 63 F.3d 1129, 1138 (1st Cir. 1995)); Fed. R. Civ. P.
52(a)(6) ("reviewing court must give due regard to trial court's
opportunity to judge the witnesses' credibility."). The district
court, in its role as factfinder, was free to "decide among
reasonable interpretations of the evidence," Shields, 649 F.3d at
89, and the factfinder's choice between two permissible views of
the evidence cannot be clearly erroneous. Adelson, 652 F.3d at 86
(quoting Johnson, 63 F.3d at 1138.).
As we have observed before, "there is no crystal ball
that an examining expert or court might consult to predict
conclusively whether a past offender will recidivate." Shields,
649 F.3d at 87. Ultimately, we can find clear error only if "we
are left with the definite and firm conviction that a mistake has
been committed." United States v. D'Andrea, 648 F.3d 1, 14 (1st
Cir. 2011) (citation and quotation marks omitted). No such error
was committed here.
III.
The judgment of the district court is affirmed.
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