United States v. Wetmore

United States Court of Appeals
For the First Circuit

No. 15-1522

UNITED STATES OF AMERICA,

Appellee,

v.

JOEL WETMORE,

Appellant.

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

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

Before

Lynch, Circuit Judge,
Souter,* Associate Justice, and
Selya, Circuit Judge.

James B. Craven III for appellant.
Jennifer A. Serafyn, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

February 5, 2016

_________
* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
 SELYA, Circuit Judge. The Adam Walsh Child Protection

and Safety Act (the Act) allows the federal government to seek

civil commitment of any "sexually dangerous person" already in the

custody of the Bureau of Prisons (BOP). See 18 U.S.C. § 4248(a).

Pursuant to the Act, an individual is deemed to be sexually

dangerous (and thus unfit to be safely returned to the community)

if the government can prove by clear and convincing evidence that

the individual "has engaged or attempted to engage in sexually

violent conduct or child molestation"; "suffers from a serious

mental illness, abnormality, or disorder"; and as a result of such

disorder "would have serious difficulty in refraining from

sexually violent conduct or child molestation if released." Id.

§ 4247(a)(5)-(6); see id. § 4248(d). Once such a person is civilly

committed, he can be released only upon a showing that he is no

longer sexually dangerous. See id. § 4248(e).

This appeal presents a question of first impression at

the federal appellate level regarding the operation of the Act's

"release" provision: when a person who has previously been deemed

sexually dangerous petitions for release from civil commitment,

which party — the committed person or the government — bears the

burden of proof? We hold that the burden is on the committed

person to make the requisite showing. With the proper allocation

of the burden of proof in place, we turn to the case at hand and

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affirm the district court's denial of the release petition at issue

here.

The anatomy of the case is uncomplicated. Appellant

Joel Wetmore is civilly committed to the BOP as a sexually

dangerous person pursuant to 18 U.S.C. §§ 4247-48. We assume the

reader's familiarity with earlier opinions involving Wetmore's

civil commitment and chronicling his personal, offense, and

treatment history. See United States v. Wetmore (Wetmore II), 700

F.3d 570, 572-73 (1st Cir. 2012); United States v. Wetmore (Wetmore

I), 766 F. Supp. 2d 319, 321-25 (D. Mass. 2011). For now, it

suffices to say that Wetmore has a history of pedophilia. After

a series of convictions for sexual misconduct involving minors, he

pleaded guilty in 2000 to possession and receipt of child

pornography. See 18 U.S.C. § 2252A. The district court sentenced

him to an 87-month term of immurement.

On November 17, 2006 — one day before Wetmore was

scheduled to complete his prison term — the BOP certified him as

sexually dangerous and commenced an effort to have him civilly

committed under the Act. See id. § 4248(a). Wetmore's confinement

continued, see id., and on March 2, 2011 — following a seven-day

bench trial on the government's application for civil commitment

— the district court determined that Wetmore was sexually dangerous

and ordered him civilly committed. See Wetmore I, 766 F. Supp. 2d

at 338. Wetmore's confinement continued during and after the

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pendency of his unsuccessful appeal. See Wetmore II, 700 F.3d at

580.

Wetmore was held at the Butner (North Carolina) Federal

Correctional Institution (FCI-Butner). While there, Wetmore

participated in a treatment program and, in due course, he sought

a psychiatric evaluation as a precursor to his possible release

from civil commitment. Dr. Joseph Plaud, a forensic psychologist,

was engaged on Wetmore's behalf to determine whether Wetmore

remained sexually dangerous. Dr. Plaud's initial assessment was

unfavorable to Wetmore. But when Dr. Plaud reevaluated Wetmore in

April of 2014 (less than a year after his initial evaluation), he

concluded that Wetmore was no longer sexually dangerous.

On November 27, 2013, Wetmore moved for a hearing to

determine whether he satisfied the criteria for release under the

Act. See 18 U.S.C. § 4247(h). Implicit in this motion was

Wetmore's assertion that he was no longer sexually dangerous and

would be able to reenter the community safely. At the ensuing

hearing, Dr. Plaud testified that, in his view, Wetmore was no

longer sexually dangerous and could safely be released. Wetmore,

his brother, and a long-time family friend also testified. In

opposition, the government introduced the testimony of both Dr.

Andres Hernandez (the clinical coordinator of the treatment

program at FCI-Butner) and Dr. Dawn Graney (a forensic psychologist

charged with conducting annual reviews of sexually dangerous

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persons detained at FCI-Butner). Each of the government's

witnesses maintained that Wetmore remained sexually dangerous and,

thus, could not safely be released into the community.

After considering all the evidence and evaluating the

conflicting expert testimony, the district court concluded that

Wetmore remained sexually dangerous and, thus, subject to

continued civil commitment. See United States v. Wetmore (Wetmore

III), No. 07-12058, slip op. at 2 (D. Mass. Feb. 27, 2015). The

court noted the open question regarding which party bears the

burden of proof at a hearing on a release petition under 18 U.S.C.

§ 4247(h), but found it unnecessary to resolve this question. See

Wetmore III, slip op. at 8-9, 13 & n.3. Instead, the court ruled

that — regardless of which party bore the burden of proof — Wetmore

could not safely be released into the community. See id. at 2, 9.

This timely appeal followed.

The threshold issue in this appeal is whether the

government or the committed person bears the burden of proof at a

release hearing held pursuant to 18 U.S.C. § 4247(h). The Act

itself is silent on this question. It states, without elaboration,

that the committing court may release the committed person only

"[i]f, after the [discharge] hearing, the court finds by a

preponderance of the evidence that the person's condition is such

that . . . he will not be sexually dangerous to others if released

. . . ." 18 U.S.C. § 4248(e).

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 There are no reported federal cases that explicitly

decide which party bears the burden of proof at a section 4247(h)

hearing. What case law exists provides guidance only by analogy.

Most notably, a few courts have examined the allocation of the

burden of proof in the context of 18 U.S.C. § 4246 (a statutory

provision that addresses the release from civil commitment of

individuals deemed to be dangerous because of mental illness).

See, e.g., United States v. Anderson, No. 97-6372, 1998 WL 372382,

at *2 (4th Cir. June 8, 1998) (per curiam); United States v.

McAllister, 963 F. Supp. 829, 833 (D. Minn. 1997).

Anderson is typical of this line of cases. There, the

Fourth Circuit concluded that a committed person bears the burden

of showing by a preponderance of the evidence that "his release

'no longer create[s] a substantial risk of bodily injury.'"

Anderson, 1998 WL 372382, at *2 (alteration in original) (quoting

18 U.S.C. § 4246(e)). We find this analogy persuasive and hold

that, when a person who has been civilly committed as sexually

dangerous petitions for relief from his civil commitment under 18

U.S.C. § 4247(h), he bears the burden of showing by a preponderance

of the evidence that he is no longer sexually dangerous within the

meaning of 18 U.S.C. § 4247(a)(5)-(6).

This holding comports with the general precept that a

party who seeks the affirmative of an issue bears the burden of

proving his petition. See Mashpee Tribe v. New Seabury Corp., 592

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F.2d 575, 589 (1st Cir. 1979). After all, we have construed the

Act to place the burden on the government to demonstrate in the

first instance that a person is sexually dangerous, even though

the Act itself does not specify this allocation of the burden of

proof. See United States v. Shields, 649 F.3d 78, 81-82 (1st Cir.

2011); United States v. Volungus, 595 F.3d 1, 3 (1st Cir. 2010);

see also 18 U.S.C. § 4248(d) ("If . . . the court finds by clear

and convincing evidence that the person is a sexually dangerous

person, the court shall commit the person . . . ."). Thus, when

a committed person affirmatively initiates release proceedings,

"[i]t is not to be expected that the government would have the

burden of proving the negative," that is, that the committed person

is no longer sexually dangerous. McAllister, 963 F. Supp. at 833.

With the allocation of the burden of proof in place, we

turn to the district court's rescript. We review that court's

legal conclusions de novo and its findings of fact for clear error.

See United States v. Volungus, 730 F.3d 40, 46 (1st Cir. 2013).

The court below found that Wetmore remained sexually

dangerous because he "would have serious difficulty refraining

from future acts of child molestation if released." Wetmore III,

slip op. at 20. Wetmore's appeal, leaning heavily on Dr. Plaud's

opinion, challenges this finding. This challenge lacks force.

The district court, in a thorough and well-reasoned

exposition, grappled with the opposing views of the experts who

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testified at the release hearing. The court carefully explained

why it thought that Wetmore remained sexually dangerous and could

not safely be released into the community. See Wetmore III, slip

op. at 13-20.

We have remarked before that "when lower courts have

supportably found the facts, applied the appropriate legal

standards, articulated their reasoning clearly, and reached a

correct result, a reviewing court ought not to write at length

merely to hear its own words resonate." DeBenedictis v. Brady-

Zell (In re Brady-Zell), 756 F.3d 69, 71 (1st Cir. 2014) (citing

cases). That precept squarely applies in this instance. We

therefore uphold the denial of Wetmore's release petition

substantially on the basis of the district court's supportable

factfinding and its persuasive reasoning. We pause to make only

a few additional observations.

First: at its core, this case involves dueling experts.

Dr. Plaud explained his reasons for deeming Wetmore fit for

release. Dr. Graney (whose testimony was corroborated in material

part by Dr. Hernandez) explained her reasons for doubting Wetmore's

ability to control his harmful and inappropriate sexual urges.

Over the course of three days, the district court observed these

testifying experts and heard their competing opinions first-hand.

The court also had the opportunity to assess the persuasiveness

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vel non of the experts' views in light of the documentary evidence

and the testimony of lay witnesses (including Wetmore himself).

Given that the evidence regarding Wetmore's sexual

dangerousness was mixed, we are constrained to "defer in large

measure to the trial court's superior coign of vantage." United

States v. Espinoza, 490 F.3d 41, 44 (1st Cir. 2007). After all,

where — as here — a body of evidence supports plausible but

conflicting inferences, the trier's choice between those

inferences cannot be clearly erroneous. See Anderson v. City of

Bessemer City, 470 U.S. 564, 573 (1985); Espinoza, 490 F.3d at 46.

Second: in all events, the record offers strong support

for the challenged finding. For one thing, the district court

noted that Dr. Plaud had never acted as a treatment provider for

Wetmore and had not worked with him formally on developing his

release and relapse prevention plan. See Wetmore III, slip op. at

12. For another thing, the court found scant corroboration for

Dr. Plaud's hopeful assertion that Wetmore possessed the necessary

behavioral skills to reenter the community safely. See id. at 20.

Citing the testimony of Dr. Graney and Dr. Hernandez, the court

worried (with good reason, we think) that Wetmore had not

sufficiently demonstrated that he could curb his dangerous sexual

impulses. See id. at 13-17. Since "the district court's account

of the evidence is plausible in light of the record viewed in its

entirety," we must decline Wetmore's invitation to reweigh the

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testimony and second-guess the district court's appraisal of the

facts. Anderson, 470 U.S. at 573-74; see Volungus, 730 F.3d at

48; Shields, 649 F.3d at 89.

We need go no further. The burden of proof rested with

Wetmore to show by a preponderance of the evidence that he had

achieved the capacity to reenter the community safely. In this

fact-intensive case and on this chiaroscuro record, the district

court's assessment — though not inevitable — was plausible. Hence,

there is no principled way for us to reject the district court's

on-the-spot judgment and hold that Wetmore succeeded in carrying

his burden of proof.

Affirmed.

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