United States v. Shields

United States Court of Appeals
For the First Circuit

No. 09-1330

UNITED STATES OF AMERICA,

Petitioner, Appellee,

v.

JEFFREY SHIELDS,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Lynch, Chief Judge,
Lipez, Circuit Judge,
and Woodcock,* District Judge.

Judith H. Mizner, Assistant Federal Public Defender, for
appellant.
Samantha L. Chaifetz, Attorney, Appellate Staff, Civil
Division, U.S. Department of Justice, with whom Tony West,
Assistant Attorney General, Carmen M. Ortiz, United States
Attorney, and Mark B. Stern, Attorney, Appellate Staff, Civil
Division, U.S. Department of Justice, were on brief, for appellee.

August 11, 2011

*
Of the District of Maine, sitting by designation.
 LIPEZ, Circuit Judge. Jeffrey Shields was convicted in

2002 by a federal court for possession of child pornography. In

2006, a day before his scheduled release from custody, the Bureau

of Prisons filed a petition in the District Court for the District

of Massachusetts to have Shields civilly committed as a "sexually

dangerous person" under the authority of 18 U.S.C. § 4248. After

a ten-day bench trial with an advisory jury, during which the court

heard evidence of Shields's history of child molestation as well as

opinions from several clinical psychologists on the risk that

Shields would commit future offenses, the court found that the

government had met its burden of proving Shields to be "sexually

dangerous" and ordered him committed.

In this appeal, Shields raises two primary challenges to

his civil commitment. First, he argues that he was not lawfully in

the custody of the Bureau of Prisons at the time the commitment

proceedings were initiated, and accordingly that the Bureau's

petition should have been dismissed. Second, Shields argues that

the district court erred in concluding that the government met its

burden of proving his sexual dangerousness by "clear and convincing

evidence." In addition, Shields pursues a number of challenges to

the constitutionality of the commitment scheme, all of which are

foreclosed by precedent or have been waived. After a careful

review of the record, we find no error in the district court's

factfinding and legal analysis, and therefore we affirm.

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 I.

A. Factual Background

In recounting the factual background of this case, we

draw on the district court's findings of fact as well as testimony

presented at trial.

Jeffrey Shields's history of sexual abuse is a lengthy

one, over the troubled course of which he has been both victim and

perpetrator. Between the ages of seven and eleven, he was

repeatedly assaulted and raped by two teenage neighbors. Then,

after moving in with his grandmother at the age of eleven, he was

molested by his fifteen-year-old cousin. A series of further

misfortunes landed him on the streets working as a prostitute in

Florida by the age of thirteen.

Shields's first documented sexual offense occurred in May

1988, when, at the age of twenty-six, he was convicted in Florida

for making phone calls to two boys to solicit oral sex. He

received a sentence of six months' probation. The following year,

Shields committed a series of sexual offenses -- three in Maine and

one in Florida -- against boys aged six, nine, thirteen, and

fourteen. The authorities caught up with Shields in Maine, where

he was arrested in September 1989. Upon his arrest, Shields

communicated that he was sick and wanted to be placed in a hospital

where he could receive help. In February 1990, Shields pled guilty

to the three sexual offenses that took place in Maine, receiving a

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sentence of five years. A significant portion of his sentence was

suspended, and thus Shields was only incarcerated until January

1992.

Shields was on probation until March 1996, during which

time he completed a three-year sex offender counseling program. He

reported that the program, which consisted of weekly, two-hour

group counseling meetings, was of little aid. And, indeed, in

1998, two years after his probation ended, he was convicted in

state court of another charge of unlawful sexual contact, this time

with a twelve-year-old boy. Shields at first refused to take

responsibility for the offense, characterizing the boy (a transient

who was living in a Portland, Maine homeless shelter) as a

prostitute. He eventually pled guilty and received a term of five

years, all but 112 days of which was suspended.

The terms of Shields's probation for the 1998 offense

required that he register as a sex offender, avoid contact with

children under the age of sixteen, and participate in further sex

offender treatment. This second round of treatment involved

individual as well as group counseling sessions. As the district

court noted, the second counseling program differed from Shields's

earlier treatment in that it appeared to have been based on

cognitive behavioral therapy, the leading approach for treatment of

sex offenders. Shields reports that this treatment program, in

which he participated until 2001, was more helpful than the first,

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though it appears to have been interrupted by periods of

incarceration: between 1998 and 2001, Shields's probation was

revoked twice for probation violations (neither of which involved

sexual misconduct).

In September 2002, Shields was arrested again when the

authorities discovered thousands of pictures on his computer

depicting adolescent and prepubescent children engaged in sexual

conduct. As a result, Shields's state probation was revoked and he

was charged in federal court with possession of child pornography.

Shields pled guilty and was sentenced to fifty-seven months in

prison, with three years of supervised release to follow.

Shields sought additional treatment during this renewed

period of incarceration. He successfully petitioned for transfer

from the United States Penitentiary in Lewisburg, Pennsylvania,

where he was initially incarcerated, to the Federal Correctional

Institution at Butner (FCI-Butner) in North Carolina so that he

could enroll in drug and sex offender treatment programs offered

there. At FCI-Butner, Shields was placed on a waiting list for the

sex offender treatment program; in the interim he began treatment

for depression with Dr. Dawn Graney, a clinical psychologist.

Shields continued counseling with Dr. Graney for the duration of

his time at FCI-Butner, attending roughly fifty sessions over two

years. He also participated in drug treatment. However, he

refused to enter the sex offender treatment program when space

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eventually became available, explaining to Dr. Graney that he was

not in the "right state of mind" to benefit from the treatment

program. Dr. Graney later testified that she agreed with Shields's

assessment, concluding that his depression and other mental health

issues were likely to interfere with effective treatment. Despite

his unwillingness to proceed with treatment at FCI-Butner, Shields

told Dr. Graney that he was committed to entering a treatment

program in conjunction with his release.

In September 2006, Shields was transferred to a federal

halfway house to serve out the remaining two months of his

sentence. On November 8, one day before Shields's scheduled

release, the Bureau of Prisons certified him as a "sexually

dangerous person" and initiated civil commitment proceedings under

18 U.S.C. § 4248.

B. Statutory Background

The civil commitment scheme at issue in this case is set

forth in the Adam Walsh Child Protection and Safety Act of 2006

(Walsh Act), Pub. L. No. 109-248, 120 Stat. 587 (codified as

amended in scattered sections of 18 and 42 U.S.C.). Building on an

existing statutory scheme for civil commitment of mentally ill

persons in federal custody, see 18 U.S.C. §§ 4246, 4247, the Walsh

Act introduced a parallel procedure for committing "sexually

dangerous persons" who either are in the custody of the Bureau of

Prisons, have been determined mentally incompetent to stand trial

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and committed to the custody of the Attorney General, or have had

criminal charges dismissed on the basis of a mental illness. Id.

§ 4248(a). A "sexually dangerous person" is defined by statute to

mean a person who (1) "has engaged or attempted to engage in

sexually violent conduct or child molestation" and (2) "is sexually

dangerous to others." Id. § 4247(a)(5). In turn, "sexually

dangerous to others" is defined to mean "that the person 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).

A commitment proceeding under the Walsh Act begins with

the filing of a petition in the federal district court for the

district in which the individual to be committed (the respondent)

is confined. Id. § 4248(a). The petition, which may be filed by

the Attorney General, the Director of the Bureau of Prisons, or a

designee of either official, must include a certification that the

respondent qualifies as a sexually dangerous person. Id. The

filing of a petition will stay the release of the respondent

"pending completion of procedures" set forth in the statute, id.,

which include a full evidentiary hearing with an opportunity for

the respondent to testify, subpoena and present witnesses, and

cross-examine government witnesses. Id. §§ 4247(d), 4248(c).

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 To prevail on its petition, the government must prove by

"clear and convincing evidence" the following three elements, which

track the statute's definition of "sexually dangerous person": (1)

"a prior act (or attempted act) of 'violent sexual conduct or child

molestation'"; (2) "'a serious mental illness, abnormality, or

disorder'"; and (3) "a resulting 'serious difficulty in refraining

from sexually violent conduct or child molestation if released.'"

United States v. Carta, 592 F.3d 34, 39, 42 (1st Cir. 2010)

(quoting 18 U.S.C. § 4247(a)(5), (6)); see also 18 U.S.C.

§ 4248(d).1 Upon a finding that those elements have been

adequately established, the district court will commit the

respondent to the custody of the Attorney General. 18 U.S.C. §

4248(d). If the state in which the respondent was domiciled or

tried will accept custody, the Attorney General must transfer the

respondent to the state for "custody, care, and treatment." Id.

Otherwise, the Attorney General must place the respondent in a

"suitable facility" for treatment until such time as the state

accepts custody or the respondent ceases to be sexually dangerous.

Id.

Once committed, the respondent is entitled to seek

periodic review of his commitment by filing a motion for a

1
The district court held that due process requires that the
first element be established beyond a reasonable doubt, rather than
under the "clear and convincing evidence" standard specified in the
statute. As Shields's history of sexual offenses is uncontested,
this appeal gives us no occasion to review that holding.

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discharge hearing with the district court. Id. § 4247(h). The

only limitation on such review is that the respondent cannot file

a motion until 180 days have passed from the most recent commitment

determination by the court. Id.

C. Procedural History

In May 2007, Shields filed a motion to dismiss the

government's commitment petition, joining two other similarly

situated respondents in challenging the constitutionality of the

Walsh Act's commitment scheme. The respondents presented a raft of

arguments, including that the commitment scheme exceeded the scope

of congressional authority under Article I, section 8 of the

Constitution; that the scheme violated due process by failing to

require proof of sexual dangerousness beyond a reasonable doubt,

and by failing to define key terms such as, inter alia, "sexually

violent conduct" and "child molestation"; and that the commitment

proceedings were criminal in nature but lacked the constitutionally

mandated procedural protections that attend criminal prosecutions.

The district court largely rejected these challenges,2 finding the

2
Not all of the respondents' arguments failed outright. As
mentioned in note 2, supra, the district court agreed that the
statute's application of a "clear and convincing evidence" standard
of proof to the determination of whether the respondent had
previously committed or attempted an act of "violent sexual conduct
or child molestation" was a violation of due process, but addressed
the problem by severing the evidentiary language from the statute
and requiring proof of the "prior act" element beyond a reasonable
doubt. The court also held that due process would require an
opportunity for a probable cause hearing before a neutral
decisionmaker within a reasonable time following any stay of

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Walsh Act's commitment scheme to be a necessary and proper exercise

of congressional authority.3

Shields filed a second motion to dismiss in November

2007, arguing that he was not legally "in the custody" of the

Bureau of Prisons at the time the commitment petition was filed,

and thus he was not properly subject to civil commitment under the

Walsh Act. The factual predicate for Shields's argument was an

error in the calculation of his release date. Shields was taken

into custody on child pornography charges and state probation

violations on September 18, 2002. When he was sentenced for the

federal charges in November of the following year, he received

credit for time served from the date he was taken into custody, but

the Bureau of Prisons mistakenly used a date of September 20, 2002

to calculate the credit.4 As an audit by the Bureau of Prisons

release triggered by a petition under § 4248.
3
As discussed below, see infra Part II.A, this circuit
subsequently resolved, in two separate appeals, many of the
constitutional arguments raised by Shields. See Carta, 592 F.3d
34; United States v. Volungus, 595 F.3d 1 (1st Cir. 2010).
4
The source of this error is not entirely clear, as the
Bureau of Prisons examiner who calculated Shields's sentence
possessed all of the relevant dates necessary to make the proper
calculation, including Shields's September 18 arrest date. Shields
suggests that the examiner mistakenly counted from September 20
because that was the date upon which the State of Maine moved for
revocation of probation. Our review suggests that the error is
more likely traceable to the district court's judgment sentencing
Shields on the child pornography charges, which listed September 20
as the "date [the] offense concluded." The Bureau of Prisons
examiner appears to have believed, in reliance on this language
from the federal court judgment, that Shields's arrest on September

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would later confirm, this error resulted in a two-day

undercalculation of Shields's credit for time served; therefore,

his release should have been scheduled for November 7, 2006, the

day before the commitment petition was filed, rather than November

9, 2006, the actual date of Shields's scheduled release. Shields

argued on this basis that he was not properly in custody when the

Bureau initiated civil commitment proceedings. The district court

rejected this claim in a one-sentence electronic order. The court

similarly rebuffed a motion for reconsideration, explaining in its

order that Shields "was in custody on the date of the certification

and there is no evidence that the period of custody was prolonged

in bad faith."

In September 2008, the matter proceeded to a ten-day

trial before an advisory jury, empaneled at Shields's request.5

The court heard testimony from three expert witnesses, all of whom

18 related solely to his state probation violations, and therefore
that September 18 and 19 could not be taken into account for
purposes of the credit.
5
The use of the advisory jury is not provided for by the
Walsh Act itself. Rather, the advisory jury was used pursuant to
Federal Rule of Civil Procedure 39(c)(1), which grants a district
court the discretion to empanel an advisory jury either on a
party's motion or sua sponte. The role of a jury so empaneled is,
as the name would suggest, purely advisory in nature; "[t]he
responsibility for the decision-rendering process remains with the
trial judge" and "it is in its discretion whether to accept or
reject, in whole or in part, the verdict or findings of the
advisory jury." 9 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2335, at 354-56 (3d ed. 2008).

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were licensed clinical psychologists.6 In addition to an examiner

appointed by the court, see 18 U.S.C. §§ 4247(b), 4248(b), the

government and Shields each retained an independent expert. Based

on a review of Shields's background records -- and, in the case of

the court-appointed expert and Shields's retained expert, clinical

interviews with Shields7 -- the three experts all testified that

Shields suffers from pedophilia, a serious disorder characterized

by "recurrent, intense sexually arousing fantasies, sexual urges,

or behaviors involving sexual activity with a prepubescent child or

children." Am. Psychiatric Ass'n, Diagnostic & Statistical Manual

of Mental Disorders 572 (4th ed. 2000).

The experts' testimony diverged on the question of

whether Shields's pedophilia would cause him to have "serious

difficulty in refraining from sexually violent conduct or child

molestation if released." 18 U.S.C. § 4247(a)(6). Each expert

used an "adjusted actuarial approach" to gauge Shields's likelihood

6
Shields called an additional five witnesses, including Dr.
Graney, who treated Shields at FCI-Butner; the case manager at the
halfway house to which Shields was transferred pending his
scheduled release in 2006; a federal probation officer in Portland,
where he was to be released; a police detective in Portland
responsible for registering and monitoring sex offenders; and a
clinical social worker who would provide sex offender treatment to
Shields upon his release. The bulk of the testimony from these
witnesses related to (1) Shields's preparations for release from
prison and (2) the treatment programs Shields would participate in
and the probationary restrictions that would be imposed should he
be released rather than committed.
7
Shields refused to submit to an interview by the
government's retained expert.

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of committing future offenses. This method starts with a

standardized actuarial tool that quantifies risk of recidivism, and

then adjusts the risk prediction based upon mitigating or

aggravating factors. The court-appointed expert described the

actuarial tools as, at best, "moderate predictors of risk," but

testified that they facilitate a "greater than chance prediction"

of the likelihood of reoffense.

Employing one such actuarial tool known as the Rapid Risk

Assessment for Sexual Offense Recidivism (RRASOR), which relies on

an assessment of four factors, the court-appointed examiner scored

Shields a five out of six possible points. The expert explained

that, in the studies underlying the RRASOR, 49.8 percent of

offenders with Shields's score reoffended within five years;

extrapolating from that data, researchers predict a 73.1 percent

recidivism rate over ten years. The other two experts used a

different tool, the "Static-99," which analyzes ten factors rather

than four. Both experts scored Shields an eight out of a possible

twelve points, placing him in a "high risk" category, with

predicted reoffense rates of 39 percent for the first five years,

45 percent for ten years, and 52 percent for fifteen years.

The experts each considered additional "dynamic" factors

to adjust the risk rates returned by the actuarial models. One of

the primary dynamic factors considered was age, as the risk of

reoffense is significantly lower for older offenders. The court-

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appointed expert and the government's expert each concluded that

Shields, at forty-seven years old, was not yet of an age where the

risk of recidivism declines. As the court-appointed expert noted,

data for extra-familial offenders like Shields suggests that

recidivism rates in that group do not begin to decline

significantly until the offender reaches the age of fifty. The

court-appointed expert also considered Shields's treatment history.

Though compliance with a treatment plan may reduce risk, the expert

found a reduction unwarranted in light of Shields's relapses after

prior treatment. Finally, both the court-appointed expert and

government's expert cited Shields's recent child pornography

offense as evidence of ongoing sexual deviance and, accordingly,

increased risk of recidivism. Each of the two experts concluded

that Shields was at significant risk of reoffending if released.

Shields's expert reached the opposite conclusion,

emphasizing evidence of positive changes in Shields's behavioral

patterns. He described Shields's most recent offense for

possession of child pornography as "qualitatively much different"

than Shields's earlier "contact" sexual offenses, suggestive of a

downward trajectory in Shields's compulsive behavior and sexual

deviance. He also noted the absence of any conduct typically

associated with compulsive pedophilia (e.g., cutting out and

collecting pictures of young children from magazines and brochures)

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during Shields's time in prison, as well as Shields's commitment to

treatment and a sober lifestyle.

At the close of trial, the advisory jury returned a

special verdict form finding that the government had proven by

clear and convincing evidence that Shields suffered from a serious

mental illness. The jury reported, however, that it was "unable to

answer" whether the government had adequately proven that Shields

would have serious difficulty refraining from future sexually

violent conduct or molestation. The district court resolved the

question several months later in a comprehensive order. Weighing

the testimony of the three expert witnesses, the district court

agreed with Shields's expert that there were some signs of positive

change in Shields's record. However, the court found troubling the

fact that "Shields has never seriously engaged in sex offender

treatment despite three opportunities." Noting that Shields's

expert failed to persuasively address this inauspicious treatment

history, the court concluded that the government had met its burden

of demonstrating by clear and convincing evidence that Shields

would have serious difficulty refraining from child molestation if

released. The court emphasized the contingent nature of its

determination, stating that, with progress in treatment, "the

analysis in this case could be very different in just a short

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period of time." Until such time, the court ordered that Shields

be civilly committed to the custody of the Attorney General.8

This timely appeal followed.

II.

Shields raises three issues on appeal. First, Shields

reprises his constitutional challenges to the Walsh Act's civil

commitment scheme, contending that Congress lacked constitutional

authority to enact the commitment statute; that the statute fails

to afford the procedural safeguards required by due process; and

that the statute is unconstitutionally vague and represents an

improper delegation of legislative authority due to its failure to

adequately define key terms. Second, Shields argues that he was

not lawfully in the custody of the Bureau of Prisons at the outset

of the commitment proceedings, and that the district court erred in

8
While this appeal was pending, Shields was granted
conditional release, following a June 2011 hearing on a motion for
release pursuant to 18 U.S.C. § 4247(h). The district court found
that Shields, who underwent sexual offender treatment following his
commitment, had "recovered from his mental disease or defect to the
extent that his release under a prescribed regimen of medical,
psychiatric, or psychological treatment would no longer create a
substantial risk of bodily injury to another person." The order of
release imposed a lengthy set of conditions (including regular
participation in sex offender and substance abuse treatment),
violation of any of which would require that Shields be returned to
the custody of the Attorney General. Because these conditions are
ongoing -- most are not time-limited, though Shields can petition
the court to modify or terminate them -- Shields's conditional
release does not moot this appeal. Cf. United States v. DeLeon,
444 F.3d 41, 55 (1st Cir. 2006) ("It is well-settled that a
convict's claim is not moot if he has finished his prison term but
still faces supervised release . . . .").

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declining to dismiss the action on that basis. Third, Shields

argues that the court erred in finding that the government met its

burden of showing him to be a "sexually dangerous person" by clear

and convincing evidence. We address each argument in turn.

A. Constitutional Arguments

We need spend little time on the first line of argument,

for, as Shields acknowledges, his constitutional challenges to the

Walsh Act's commitment scheme largely have been foreclosed.9 In

United States v. Volungus, 595 F.3d 1 (1st Cir. 2010), we held that

the enactment of the Walsh Act was a constitutionally sound

exercise of Congress's powers under the Necessary and Proper

Clause, Article I, section 8 of the Constitution, a holding that

was subsequently confirmed by the Supreme Court in United States v.

Comstock, 130 S. Ct. 1949 (2010). We likewise addressed and

disposed of due process arguments substantively identical to those

Shields makes here in United States v. Carta, 592 F.3d 34 (1st Cir.

2010), decided a week after Volungus.

Finally, we also held in Carta that the key terms in the

Walsh Act's commitment provision were "sufficiently explicit to

give notice and prevent arbitrary enforcement," and therefore could

not be considered so vague as to violate due process. Id. at 43.

Though Shields halfheartedly contends that Carta did not directly

9
Shields indicates in his brief that he raises these issues
"to preserve [them] for possible further review."

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dispose of his companion argument that the purported vagueness of

the statute's terms results in an unconstitutional delegation of

legislative authority, he fails to develop that argument in his

briefing or cite any supporting authority. We consider the

argument waived and therefore decline to consider it here. See

Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir. 2010) ("[A]ppellate

arguments advanced in a perfunctory manner, unaccompanied by

citations to relevant authority, are deemed waived.").

B. Timing of the Commitment Petition

As laid out above, § 4248 provides for the initiation of

civil commitment proceedings against, inter alia, persons "in the

custody of the Bureau of Prisons." 18 U.S.C. § 4248(a). Shields

argues that the Bureau of Prisons could not rightfully claim

"custody" of him when the commitment petition was filed, as he

should have been released the previous day. This purported defect

in the legality of the Bureau's custody of Shields is indisputably

minor, arising from a two-day miscalculation in Shields's sentence

that led to his commitment petition being filed a day late.

Notwithstanding the minimal nature of the error, Shields contends

that we must construe the "custody" requirement strictly, and that

the delay in filing the petition required his release.10 We

10
Two of the judges on this panel have serious questions about
whether, in an appropriate circumstance, waiver may bar a defendant
from challenging Bureau of Prisons custody calculations under §
4248. Although Shields certainly knew his arrest date, he did
nothing to challenge the calculation of his release date until

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disagree.

A similar question came before the Supreme Court in

United States v. Montalvo-Murillo, 495 U.S. 711 (1990). That case

involved application of the Bail Reform Act of 1984, which

specifies that a detention hearing must be held immediately upon a

criminal detainee's first appearance before a judge, with provision

for no more than a five-day continuance. Id. at 714; 18 U.S.C. §

3142(f). En route to the Supreme Court, the district and appeals

courts had both determined that the remedy for any failure to meet

the statute's requirement for a timely hearing must be pretrial

release of the detainee, regardless of whether the detainee posed

a risk of flight and a danger to the community. 495 U.S. at 716.

The Court reversed. While acknowledging that the duty to

abide by the statutory time limits for a detention hearing was a

mandatory one, the Court held that "the sanction for breach is not

loss of all later powers to act." Id. at 718. In so holding, the

Court looked to the purposes of the Bail Reform Act and concluded

that requiring release to remedy a defect in the timing of the

detention hearing would defeat those purposes:

Automatic release contravenes the object of
the statute, to provide fair bail procedures
while protecting the safety of the public and

November 2007, nearly a year after the petition was filed. Had the
government been made aware earlier that there was a calculation
issue, it might have acted sooner. Nevertheless, waiver was not
raised, the record is undeveloped, and resolution of the waiver
issue is not necessary for this decision.

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 assuring the appearance at trial of defendants
found likely to flee. The end of exacting
compliance with the letter of § 3142(f) cannot
justify the means of exposing the public to an
increased likelihood of violent crime by
persons on bail, an evil the statute aims to
prevent. The Government's interest in
preventing these harms remains real and
substantial even when the time limits have
been ignored. The safety of society does not
become forfeit to the accident of
noncompliance with statutory time limits where
the Government is ready and able to come
forward with the requisite showing to meet the
burden of proof required by the statute.

Id. at 720 (citation omitted).

We reach the same conclusion here. The Walsh Act's civil

commitment scheme, like the Bail Reform Act, is intended to

safeguard society from persons in federal custody who would pose a

serious danger if released. Volungus, 595 F.3d at 6-7. To

interpret the Walsh Act to mandate release of a potentially

dangerous individual due to a de minimis mistake in the timing of

initiating the commitment process would be manifestly inconsistent

with the overall structure of the Act. Moreover, such an

interpretation would contravene the "great principle of public

policy, . . . which forbids that the public interests should be

prejudiced by the negligence of the officers or agents to whose

care they are confided." Montalvo-Murillo, 495 U.S. at 718

(quoting Brock v. Pierce Cnty., 476 U.S. 253, 260 (1983)). We find

nothing in the language of the Walsh Act to suggest that Congress

intended such a reading.

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 Shields resists application of Montalvo-Murillo's

reasoning on two grounds. First, he argues that more recent

Supreme Court precedent has declined to countenance a general

exception for "de minimis" or "technical" violations of an

enactment's procedural requirements, citing Alabama v. Bozeman, 533

U.S. 146 (2001). Second, he contends that the present case can be

distinguished from Montalvo-Murillo because the reference to

"custody" in § 4248(a) is jurisdictional, whereas the Bail Reform

Act's requirement of a timely hearing is not. If custody is a

jurisdictional prerequisite to civil commitment, as Shields urges,

a defect in the legality of custody might indeed deprive a federal

court of subject matter jurisdiction to hear a commitment petition

under § 4248(a).

To succeed, both of these lines of argument require a

level of statutory specificity regarding the nature of the custody

requirement and the consequences of imperfect "custody" that cannot

be found in § 4248(a). Bozeman was not a repudiation of Montalvo-

Murillo, but instead an example of the principle that a clear

statement can trump background interpretive assumptions, such as

Montalvo-Murillo's allowance for "de minimis" exceptions to an

enactment's procedural requirements. In Bozeman, the Supreme Court

affirmed dismissal of criminal charges due to the government's

failure to comply with the "antishuttling" provision of the

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Interstate Agreement on Detainers (IAD).11 In so doing, the Court

rejected the argument that the government's failure in compliance

was "de minimis" and should be ignored under Montalvo-Murillo and

related authority. The Court emphasized that the language of the

IAD, unlike the provisions of the Bail Reform Act at issue in

Montalvo-Murillo, stated in absolute and specific language the

consequences that would flow from a violation of the antishuttling

provision, namely, that "'the court shall enter an order dismissing

the [indictment] with prejudice.'" Bozeman, 533 U.S. at 153

(quoting 18 U.S.C. App. 2 § 2 (Art. IV(e))). There is no such

specificity here; § 4248(a), like the Bail Reform Act, "is silent

on the issue of a remedy for violations" of the custody

requirement. Id. (quoting Montalvo-Murillo, 495 U.S. at 716).

Certainly, neither § 4248(a) nor the Walsh Act specify that a

minimal defect in legal custody at the time that a commitment

petition is filed requires dismissal of the petition.

Shields's argument that custody is a "jurisdictional"

requirement fails for similar reasons. The Supreme Court has

cautioned that a "threshold limitation on a statute's scope" may

11
The IAD provides for transfer of a prisoner held in one
jurisdiction to another where charges are pending in order to allow
trial to proceed, but requires, pursuant to the so-called
"antishuttling" provision, "that trial must be 'had . . . prior to
the prisoner's being returned to the original place of
imprisonment'; otherwise, the charges 'shall' be dismissed with
prejudice." Bozeman, 533 U.S. at 150 (quoting 18 U.S.C. App. 2 §
2 (Art. IV(e))).

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not be branded "jurisdictional" unless Congress "clearly states"

its intent for the limitation to be so treated. Arbaugh v. Y & H

Corp., 546 U.S. 500, 515-16 (2006) ("[W]hen Congress does not rank

a statutory limitation on coverage as jurisdictional, courts should

treat the restriction as nonjurisdictional in character."). Here,

there is no suggestion, let alone a clear statement, that Congress

intended federal courts to treat the Bureau of Prison's custody of

a respondent as a jurisdictional requirement for commitment

proceedings under § 4248. Because § 4248(a) "'does not speak in

jurisdictional terms or refer in any way to the jurisdiction of the

district courts,'" id. at 515 (quoting Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 394 (1982)), we decline to grant it

jurisdictional effect.

For his last line of argument, Shields asserts that the

miscalculation here was either reckless or negligent, and even if

Montalvo-Murillo would permit a commitment proceeding to move

forward in the face of a de minimis defect in the legality of

custody, "it can do so only where [the defect in custody] . . . did

not result from bad faith, recklessness or negligence." The

argument is unavailing. The record indicates that the mistake in

the calculation of Shields's sentence was a clerical error. The

error was certainly not reckless,12 and whether it rose to the level

12
Shields focuses on the fact that the Bureau of Prisons
examiner who calculated his sentence knew that Shields was arrested
on September 18, and therefore "[i]t was literally impossible for
Shields to have committed his federal offense two days later, on

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of negligence is immaterial. Negligent "departures or omissions"

by government officials are precisely the sort of de minimis

mistakes addressed in Montalvo-Murillo. 495 U.S. at 717. Indeed,

it is this very "negligence of [government] officers or agents"

that Montalvo-Murillo cautions should not ordinarily forfeit the

government's ability to protect the public from potentially

dangerous individuals. Id. at 718.

In sum, a fair reading of § 4248(a) cannot justify

releasing Shields to remedy a one-day delay in filing his

commitment petition as a result of a de minimis error in

calculating his release date.13

C. The District Court's Sexual Dangerousness Finding

We turn last to Shields's challenge to the district

court's finding that he was a sexually dangerous person subject to

September 20, 2002." The examiner's failure to recognize the
inherent inconsistency between the September 18 arrest date and the
September 20 offense date used in the calculation is not as
astonishing as Shields suggests. As we note above, see supra note
5, the district court's judgment sentencing Shields on the child
pornography charges listed September 20 as the "date [the] offense
concluded." The fact that the examiner apparently accepted the
date of offense listed in that judgment, rather than independently
questioning the logic of finding an offense to have been committed
while the defendant was in custody, bespeaks -- at most -- simple
carelessness rather than the sort of knowing indifference to a
known risk characteristic of recklessness.
13
We emphasize that our analysis depends on the circumstances
of this case. This case does not raise and we do not address a
situation where the government knowingly and deliberately holds a
defendant in custody beyond his lawful period of custody in order
to file a commitment petition under § 4248.

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civil commitment under § 4248. We review a district court's

findings of fact following a bench trial with an advisory jury for

clear error, the court's conclusions of law de novo, and any

application of law to facts with some deference. Fed. R. Civ. P.

52(a)(6); Carta, 592 F.3d at 39. We have closely examined the

record and find no reversible error in the district court's

carefully considered and well-supported determination.

Shields does not challenge the court's resolution of the

first two elements of the sexual dangerousness analysis.14 Instead,

Shields challenges only the third element: the determination of

whether, as a result of pedophilia, Shields would have a "serious

difficulty in refraining from sexually violent conduct or child

molestation if released." 18 U.S.C. § 4247(a)(6).

The question of Shields's risk of future offense was by

no means an easy one. As each of the experts who testified at

trial acknowledged, there is no crystal ball that an examining

expert or court might consult to predict conclusively whether a

past offender will recidivate. At best, offenders can be located,

by means of an actuarial tool, within a population of individuals

that share certain characteristics and that studies have shown to

recidivate at a particular rate. These tools are, as the district

court's appointed expert cautioned, "moderate" predictors of risk.

14
There is no dispute that Shields has committed prior acts
of child molestation, and all three experts diagnosed Shields with
pedophilia, which qualifies as a serious mental disorder.

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At trial, Shields's counsel effectively elicited testimony

highlighting the shortcomings of the actuarial tools, among them

the fact that the studies underlying the RRASOR and Static-99 were

based largely on populations outside the United States, and that

data collected by the United States Department of Justice documents

lower recidivism rates than the actuarial tools would predict.

In the end, however, it is for the factfinder to "'decide

among reasonable interpretations of the evidence'" and "determine

the weight accorded to expert witnesses." United States v.

Shelton, 490 F.3d 74, 79 (1st Cir. 2007) (quoting United States v.

Batista-Polanco, 927 F.2d 14, 17 (1st Cir. 1991)). We find nothing

to criticize in the district court's assessment of the evidence

here. The court granted "little weight" to the raw scores returned

by the experts' actuarial tools, and focused instead on the

experts' evaluation of certain "dynamic factors" (age, treatment

history, and ongoing deviant behavior) that tailor the actuarial

risk assessment to an offender's individual circumstances. Of

particular concern to the court and its appointed expert was

Shields's failure to "seriously" engage in treatment given past

opportunities: Shields offended anew after his first two courses of

treatment, and refused sex offender treatment while in prison for

his most recent offense. Given that the opinion by Shields's

expert that Shields was not a "sexually dangerous person" rested to

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a large extent on evidence of Shields's purported commitment to

change, this contrary evidence was undeniably significant.

Shields argues here that the evidence does not support

the district court's characterization of his treatment history, but

his argument lacks force. Shields emphasizes that his first round

of treatment, in the early 1990s, was not the rigorous, cognitive

behavioral therapy model that is the prevailing mode of treatment

today, and could not be expected to produce significant results.

Following his 1998 offense, though, Shields did engage in a

cognitive behavioral therapy treatment program. He tries to cast

this as a success story, heralding the fact that his next crime in

2002 was not a "contact" offense but instead a conviction for

possession of child pornography. The district court had ample

basis to draw the opposite inference. Two of the testifying

experts interpreted Shields's child pornography offense as a sign

of ongoing deviance rather than improved impulse control, and it

was entirely reasonable for the court to credit their testimony

over Shields's expert's opinion.

Shields further argues that the district court was wrong

to draw adverse inferences from his refusal to enter sex offender

treatment at FCI-Butner. Shields contends that it was reasonable

to forego formal treatment at the time, as he was making progress

in treatment with Dr. Graney and was not in the right state of mind

to benefit from sex offender treatment. That may well be the case.

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However, though the episode might not be evidence of a general

unwillingness to enter into sex offender treatment (the district

court apparently viewed the episode that way), neither did

Shields's treatment in prison offer any affirmative indication that

Shields would in fact seriously engage with sex offender treatment

when given a further chance to do so, as Shields's expert tried to

suggest. Dr. Graney emphasized that she was treating Shields only

for depression and related issues, and that her treatment was no

substitute for a formal sex offender program. Consistent with

these limitations, Dr. Graney testified that when Shields expressed

a desire to "break the cycle" of offense in their sessions

together, she told him he would need to address those issues in sex

offender treatment.

As the district court concluded, the "bottom line" was

that Shields had undergone varying forms of treatment in the past

and such treatment was not wholly effective in addressing his

problems. In light of Shields's serious history of sexual crimes

and the opinion of two out of three testifying clinical

psychologists that he would have serious difficulty refraining from

future offenses, we find the district court's determination that he

was a "sexually dangerous person" within the meaning of § 4248 to

be well founded.15

15
As described above, see supra note 9, the district court
subsequently granted Shields conditional release upon a finding
that he had "recovered from his mental disease or defect to the
extent that his release under a prescribed regimen of . . .

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 III.

In Carta, we warned that we would have limited tolerance

for a "pattern in which the government certifies prisoners as

sexually dangerous mere days before their scheduled release."16 592

F.3d at 43. Recognizing that the case before us was one of the

earliest commitment proceedings to be initiated following enactment

of the Walsh Act, we do not fault the government for the tardiness

of its petition. However, this case highlights the problems

invited by such last-minute commitment petitions. We again caution

the government to make every reasonable effort to initiate

commitment proceedings well in advance of a prisoner's scheduled

release.

Finding no error in the district court's factfinding and

legal conclusions, we affirm the commitment order in its entirety.

So ordered.

treatment would no longer create a substantial risk of bodily
injury to another person." The commitment statute, in permitting
a confined individual to petition for release roughly every six
months, see 18 U.S.C. § 4247(h), implicitly acknowledges that an
individual's mental health status and dangerousness may change over
time with appropriate treatment. The district court's finding that
Shields could safely be released, subject to treatment and other
conditions, was made almost two and a half years after the court's
initial commitment order was entered, and subsequent to Shields's
participation in a treatment program. The court's reevaluation
thus in no way casts doubt on the foundation of its initial
dangerousness finding.
16
As we noted in that case, certifying prisoners on the eve
of release "guarantee[s] that they will be held for an extended
period beyond that date even if there is little basis for the
charge." Carta, 592 F.3d at 43.

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