PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Petitioner-Appellant,
v. No. 11-7102
CLYDE M. HALL,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(5:09-hc-02083-BO)
Argued: October 28, 2011
Decided: January 9, 2012
Before TRAXLER, Chief Judge, and MOTZ and
AGEE, Circuit Judges.
Affirmed by published opinion. Chief Judge Traxler wrote the
opinion, in which Judge Motz and Judge Agee joined.
COUNSEL
ARGUED: Ian James Samuel, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellant. Eric
Joseph Brignac, Suzanne Little, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. HALL
ON BRIEF: Tony West, Assistant Attorney General, Mark
B. Stern, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Thomas G. Walker, United States Attor-
ney, Raleigh, North Carolina, for Appellant. Thomas P.
McNamara, Federal Public Defender, Raymond C. Tarlton,
Assistant Federal Public Defender, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellee.
OPINION
TRAXLER, Chief Judge:
This case arises out of the federal government’s initiation
of civil commitment proceedings against Clyde Hall via a cer-
tification that Hall is a "sexually dangerous person" under 18
U.S.C. § 4248. Following an evidentiary hearing, the district
court found that the government had failed to prove by clear
and convincing evidence that Hall is sexually dangerous
under the Act. We affirm.
I.
A.
Section 4248 of Title 18 was enacted as part of the Adam
Walsh Child Protection and Safety Act of 2006 (the "Act").
It provides for the civil commitment of "sexually dangerous
person[s]" following the expiration of their federal prison sen-
tences. See 18 U.S.C. § 4248(a). A "sexually dangerous per-
son" is one "who has engaged or attempted to engage in
sexually violent conduct or child molestation and who is sex-
ually dangerous to others." 18 U.S.C. § 4247(a)(5). A person
is considered "sexually dangerous to others" if "the person
suffers from a serious mental illness, abnormality, or disorder
as a result of which he would have serious difficulty in
UNITED STATES v. HALL 3
refraining from sexually violent conduct or child molestation
if released." Id.
The Attorney General, his designee, or the Director of the
Federal Bureau of Prisons ("BOP") may initiate a § 4248
commitment proceeding in the district court for the district in
which the person is confined by filing a certification that the
person is sexually dangerous within the meaning of the Act.
See 18 U.S.C. § 4248(a). The filing automatically stays the
release of the person from custody pending a hearing before
the district court. See id. "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." 18 U.S.C. § 4248(d). Id.1
B.
Clyde Hall was born in 1965. As a child, he was subjected
to physical and emotional abuse by his parents. Beginning at
the age of nine, he was subjected to sexual abuse by a sixteen-
year-old female acquaintance, which continued for approxi-
mately eleven months. Hall’s father banished him from the
family home when Hall was sixteen years old. Shortly there-
after, he was sexually assaulted by an adult male, and he
began to support himself as a prostitute. Hall also abused
drugs and alcohol from the age of nine until the age of
twenty-three, when he voluntarily ceased using these sub-
stances.
1
If an order of commitment is obtained, the Attorney General must first
attempt to release the person to "the State in which the person is domiciled
or was tried if such State will assume responsibility for his custody, care,
and treatment." 28 U.S.C. § 4248(d). However, if the Attorney General is
unsuccessful in this effort, he "shall place the person for treatment in a
suitable facility, until" a state assumes responsibility or until "the person’s
condition is such that he is no longer sexually dangerous to others, or will
not be sexually dangerous to others if released under a prescribed regimen
of medical, psychiatric, or psychological care or treatment." Id.
4 UNITED STATES v. HALL
Hall’s first conviction for a sexual offense occurred in
1989, in Androscoggin County, Maine, when he was twenty-
one years old. Hall pled guilty to one count of unlawful sexual
contact and one count of gross sexual misconduct. According
to the presentence report, "Hall exposed himself to a ten-year-
old girl" and "touched her and had her ‘help’ him while he
masturbated." J.A. 479. The following month "Hall got into
bed with the same ten-year-old, touched her vagina with his
hands and mouth, and had her touch his penis with her hands
and mouth." J.A. 479. Hall was sentenced to four years in
prison and six years of supervised release. He was released
from prison in November 1991. Hall participated in a sex
offender treatment program while in the custody of the state
of Maine and continued treatment while on supervised
release.
Hall’s second conviction for a sexual offense occurred in
1999 in Essex County, New York, when he was thirty-three
years old. Hall pled guilty to one count of acting in a manner
injurious to a child, a class A misdemeanor offense. Hall was
living with a woman and her young daughter at the time, and
he showed the daughter and her friend, both of whom were
ten years old, "drawings of unclothed females, intended to be
pictures of ten-year-old girls." J.A. 480. In addition, "[t]he
victim’s mother reported that Mr. Hall sexually abused her
daughter by having her wear lingerie for him, dancing with
him, sitting naked on his naked lap, having oral sex performed
on her and performing oral sex on Mr. Hall, and being shown
sexual pictures of young girls by Mr. Hall." J.A. 480.
In September 1999, Hall was released from state custody.
However, he was immediately arrested by federal authorities
and convicted in federal district court in New York of posses-
sion of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B). This conviction arose out of a search of the
residence where Hall was living with the woman and child
involved in the New York state offense. Hall admitted access-
ing child pornography sites and admitted that he had down-
UNITED STATES v. HALL 5
loaded and printed child pornography. He was sentenced to
sixty-three months’ imprisonment and three years of super-
vised release. While incarcerated, Hall participated in a sex
offender treatment program at the Federal Institute at Butner,
North Carolina ("FCI Butner"). In 2002, Hall completed the
program and prepared a release prevention plan addressing his
sexual offense history and risk factors, as well as the coping
strategies, lifestyle changes, and support network he needed
to manage his risk factors. When he was discharged from the
program, he was assessed as being at a high risk of reoffend-
ing.
In April 2004, Hall was released to federal supervision,
during which he continued to participate in sex offender treat-
ment. Hall was also subjected to several polygraph tests while
on supervised release. In June 2005, Hall gave a deceptive
response when asked if he had touched the sexual organs of
a minor while on supervised release. When confronted with
the results, Hall stated that he masturbated to memories of his
prior child victims approximately 45 percent of the time.
However, Hall denied any hands-on child molestation offense
since being released to supervision. In October 2005, Hall
again gave a deceptive response when asked if he had
engaged in sexual or physical contact with an adult since leav-
ing the halfway house. In February 2006, Hall’s supervised
release was revoked "for violations of the program rules,
inappropriate behavior with female clients, being defiant with
staff, and failure to complete chores at the community correc-
tion’s placement." J.A. 480. He was sentenced to four months
in jail, six months in community confinement at a halfway
house, and thirty months’ supervised release.
In June 2006, Hall was again released to a community cor-
rections center and, in December 2006, from the corrections
center into the community. In September 2006, Hall gave no
deceptive answers to polygraph questions designed to ensure
that he was not reoffending. There are no reports of any sex-
ual offenses committed by Hall against minors during his two
6 UNITED STATES v. HALL
periods of supervised release (April 2004 to February 2006,
and June 2006 to January 2007) and, therefore, no evidence
that Hall has committed a sexual molestation offense against
a child since the 1999 incident in New York.
In January 2007, the United States Probation Office was
notified that Hall had viewed pornography and engaged in sex
with an adult AA participant. Hall lost his job at approxi-
mately this same time, failed to report to the Probation Office
or to his mental health treatment agency, and absconded from
supervision. After he was apprehended, Hall’s supervision
was again revoked, and he was additionally charged and con-
victed for failure to register as a sex offender in violation of
18 U.S.C. § 2250(a)(1). In April 2008, Hall was sentenced to
25 months’ imprisonment and 25 years’ supervised release.
The terms of the supervised release prohibit Hall from having
contact with anyone under the age of 18, access to computers
or other devices with online capabilities except at a place of
employment, and from frequenting places where persons
under the age of 18 are likely to congregate. The supervised
release terms also require that he register as a sex offender,
participate in sex offender treatment, mental health treatment
and substance abuse treatment, and report to a probation offi-
cer as required.
Hall’s projected release date from prison was June 24,
2009. However, several months before his release date, he
was transferred to FCI Butner for an evaluation of his sexual
dangerousness. On June 19, 2009, the BOP certified that Hall
was a "sexually dangerous person" pursuant to § 4248(a),
automatically staying his release pending an evidentiary hear-
ing. Since that time, Hall has been found in possession of sex-
ually inappropriate materials at FCI Butner, including pictures
of prepubescent children and traced drawings of prepubescent
girls with their clothing removed and their genitals drawn.
Hall also obtained or attempted to obtain inappropriate mail
at FCI Butner, including publications from Jam Marketing,
Glamour Girl Photos, High Caliber, Heavy Metal Magazine,
UNITED STATES v. HALL 7
Maxim Magazine and Teen Vogue. Hall has additionally been
sanctioned at FCI Butner for various rules violations, includ-
ing refusing to obey an order, being present in an unautho-
rized area, interfering with the taking of inmate count, and
being insolent to a staff member.
On January 20, 2011, Hall requested an evidentiary hearing
on the issue of his sexual dangerousness. At the conclusion of
the hearing, the district court found that the government had
failed to prove by clear and convincing evidence that Hall was
a "sexually dangerous person" within the meaning of the Act.
We stayed Hall’s release pending the government’s appeal of
the district court’s order, and expedited the appeal proceedings.2
II.
A.
To obtain a commitment order against Hall, the govern-
ment was required to establish three distinct facts by clear and
convincing evidence: that Hall (1) "has engaged or attempted
to engage in . . . child molestation" in the past, 18 U.S.C.
2
The § 4248 proceeding against Hall languished for approximately 19
months, while this court and the Supreme Court considered various consti-
tutional challenges to § 4248, and the government’s detention of former
inmates under the statute’s authority. See United States v. Comstock, 130
S. Ct. 1949 (2010); Timms v. Johns, 627 F.3d 525 (4th Cir. 2010); United
States v. Comstock (Comstock II), 627 F.3d 513 (4th Cir. 2010). Shortly
after we issued our decisions in Timms and Comstock II, Hall requested
that his evidentiary hearing proceed. Hall also had a motion to dismiss
pending, asserting that § 4248 as applied to him violated his rights to due
process and equal protection under the law. In addition to finding that Hall
is not sexually dangerous under the Act, the district court granted Hall’s
motion to dismiss. Because we conclude that the district court did not
clearly err in finding that Hall is not sexually dangerous under the Act, we
do not address Hall’s constitutional claims in this appeal, but note we
rejected similar claims in the case heard seriatim with this one, United
States v. Timms, No. 11-6886, the opinion in which is being filed at the
same time as this opinion.
8 UNITED STATES v. HALL
§ 4247(a)(5); (2) currently "suffers from a serious mental ill-
ness, abnormality, or disorder"; and (3) as a result of the ill-
ness, abnormality, or disorder, "would have serious difficulty
in refraining from . . . child molestation if released," 18
U.S.C. § 4247(a)(6). See United States v. Comstock, 627 F.3d
513, 515-16 (4th Cir. 2010). "[C]lear and convincing has been
defined as evidence of such weight that it produces in the
mind of the trier of fact a firm belief or conviction, without
hesitancy, as to the truth of the allegations sought to be estab-
lished, and, as well, as evidence that proves the facts at issue
to be highly probable." Jimenez v. DaimlerChrysler Corp.,
269 F.3d 439, 450 (4th Cir. 2001) (internal quotation marks,
citations, and alterations omitted); see also Addington v.
Texas, 441 U.S. 418, 423-24 (1979) (noting that the "clear
and convincing" standard of proof is an "intermediate stan-
dard" that falls between a "mere preponderance of the evi-
dence" and "beyond a reasonable doubt"); see also Direx
Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 810
n.7 (4th Cir. 1992) (same).
On appeal, we review the district court’s factual findings
for clear error and its legal conclusions de novo. See Fed. R.
Civ. P. 52(a)(6); United States v. White, 620 F.3d 401, 410
(4th Cir. 2010); United States v. Cox, 964 F.2d 1431, 1433
(4th Cir. 1992). "A finding is ‘clearly erroneous’ when
although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm con-
viction that a mistake has been committed." United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948); Easley
v. Cromartie, 532 U.S. 234, 242 (2001) (internal quotation
marks omitted). "This standard plainly does not entitle a
reviewing court to reverse the finding of the trier of fact sim-
ply because it is convinced that it would have decided the
case differently." Anderson v. Bessemer City, 470 U.S. 564,
573 (1985). "If the district court’s account of the evidence is
plausible in light of the record viewed in its entirety, the court
of appeals may not reverse it even though convinced that had
UNITED STATES v. HALL 9
it been sitting as the trier of fact, it would have weighed the
evidence differently." Id. at 573-74.
"When findings are based on determinations regarding the
credibility of witnesses," we give "even greater deference to
the trial court’s findings." Id. at 575.
[O]nly the trial judge can be aware of the variations
in demeanor and tone of voice that bear so heavily
on the listener’s understanding of and belief in what
is said. This is not to suggest that the trial judge may
insulate his findings from review by denominating
them credibility determinations, for factors other
than demeanor and inflection go into the decision
whether or not to believe a witness. Documents or
objective evidence may contradict the witness’ story;
or the story itself may be so internally inconsistent
or implausible on its face that a reasonable factfinder
would not credit it. Where such factors are present,
the court of appeals may well find clear error even
in a finding purportedly based on a credibility deter-
mination. But when a trial judge’s finding is based
on his decision to credit the testimony of one of two
or more witnesses, each of whom has told a coherent
and facially plausible story that is not contradicted
by extrinsic evidence, that finding, if not internally
inconsistent, can virtually never be clear error.
Id. (citations omitted). As with lay witnesses, "[e]valuating
the credibility of experts and the value of their opinions is
[also] a function best committed to the district courts, and one
to which appellate courts must defer," and we "should be
especially reluctant to set aside a finding based on the trial
court’s evaluation of conflicting expert testimony." Hendricks
v. Central Reserve Life Ins. Co., 39 F.3d 507, 513 (4th Cir.
1994).
10 UNITED STATES v. HALL
B.
Here, there is no dispute that Hall engaged in past acts of
child molestation, as evidenced by his prior convictions in
1989 and 1999. Thus, the district court found that the govern-
ment established the first element of sexual dangerousness by
clear and convincing evidence. See 18 U.S.C. § 4247(a)(5).
There is also no dispute that Hall presently "suffers from a
serious mental illness, abnormality, or disorder." 18 U.S.C.
§ 4247(a)(6). Hall was diagnosed by several clinical psychol-
ogists as suffering from pedophilia and antisocial personality
disorder, and the district court found that the government also
established this second element by clear and convincing evi-
dence. Hall does not challenge these findings on appeal.
The crux of this appeal, therefore, is whether the district
court erred in finding that the government failed to prove, by
clear and convincing evidence, that Hall, as a result of these
disorders, "would have serious difficulty in refraining from
. . . child molestation if released" from custody. 18 U.S.C.
§ 4247(a)(6).
As noted by the district court, the "serious difficulty" prong
of § 4248’s certification proceeding refers to the degree of the
person’s "volitional impairment," which impacts the person’s
ability to refrain from acting upon his deviant sexual interests.
Kansas v. Hendricks, 521 U.S. 346, 358 (1997) (noting that
statutory requirements that couple proof of dangerousness
with proof of a mental illness or abnormality "serve to limit
involuntary civil confinement to those who suffer from a voli-
tional impairment rendering them dangerous beyond their
control"); id. at 357 (noting that civil commitment statutes
may "provide[ ] for the forcible civil detainment of people
who are unable to control their behavior and who thereby
pose a danger to the public health and safety . . . provided the
confinement takes place pursuant to proper procedures and
evidentiary standards") (internal citations omitted); see also
Kansas v. Crane, 534 U.S. 407, 414 (2002) (noting that "our
UNITED STATES v. HALL 11
cases suggest that civil commitment of dangerous sexual
offenders will normally involve individuals who find it partic-
ularly difficult to control their behavior").
[This] lack of control [or] inability to control behav-
ior will not be demonstrable with mathematical pre-
cision. It is enough to say that there must be 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 civil commitment from
the dangerous but typical recidivist convicted in an
ordinary criminal case.
Crane, 534 U.S. at 413 (internal quotation marks omitted).
"Whether [an] individual is mentally ill and dangerous to
either himself or others and is in need of confined therapy
turns on the meaning of the facts which must be interpreted
by expert psychiatrists and psychologists." Addington, 441
U.S. at 429; see also Comstock, 627 F.3d at 521.
C.
Three clinical and forensic psychologists evaluated Hall
and testified at his evidentiary hearing, two on behalf of the
government and one on behalf of Hall. Hall also testified on
his own behalf. There were no objections raised to the qualifi-
cations of the expert witnesses, and the district court found
each expert to be qualified to offer opinions on the issue of
Hall’s sexual dangerousness. The experts, utilizing actuarial
tests, psychological tests, and their clinical judgment, arrived
at conflicting opinions. Two of the experts, Dr. Dale Arnold
and Dr. Lela Demby, testified that Hall would have serious
difficulty refraining from child molestation if released and
that Hall, therefore, was sexually dangerous within the mean-
12 UNITED STATES v. HALL
ing of the Act. The third expert, Dr. Luis B. Rosell, testified
that Hall would not have serious difficulty refraining from
child molestation if released and that he, therefore, was not
sexually dangerous within the meaning of the Act.
We begin with Dr. Arnold and Dr. Demby. Dr. Arnold used
actuarial tools—the Static-99R, the Static-2002R, and the
Minnesota Sex Offender Screening Tool-Revised (MnSOST-
R)—to determine group recidivism rates of sexual offenders
considered by him to be most analogous to Hall, and found a
group rate of recidivism as high as 36% over ten years. Such
actuarial tests, however, only gauge a risk of recidivism based
upon the statistics of the particular group of sex offenders
selected for comparison. According to the evidence presented,
knowing the recidivism rate of a particular group does not
mean that the individual under consideration poses the same
chance of recidivism in the same time frame; his risk could
be higher or lower than that of the group based upon the
unique circumstances of his case. Thus, experts using these
tools also consider, among other things, the age of the particu-
lar offender, his participation in treatment, his compliance
with such treatment, his history of reoffending after treatment,
and his commitment to controlling his deviant behavior.
In determining that Hall would have serious difficulty
refraining from future acts of child molestation, Dr. Arnold
found particularly significant Hall’s history of a high number
of adult sexual partners, both male and female; Hall’s report
that he masturbates to the memories of his prior child victims
45% of the time; Hall’s ongoing interest in pictures and draw-
ings of children and adolescents while in BOP custody; and
Hall’s general failure to follow rules and cooperate while
under supervision and while awaiting his certification hearing.
Dr. Demby used the Static-99R and the Static-99 actuarial
tools in her evaluation of Hall. Her opinions in large part mir-
rored those of Dr. Arnold. Like Dr. Arnold, Dr. Demby was
most persuaded that Hall was sexually dangerous due to his
UNITED STATES v. HALL 13
ongoing failure to comply with rules and directives while
under supervision and after his certification, as well as his
continued, deviant interest in collecting pictures and drawings
of children pending his certification hearing.
The third expert, Dr. Rosell, also used the Static-99R,
Static-2002R, and additionally used the Multisample Age
Stratified Table of Sexual Recidivism Rate ("MATS") actuar-
ial tools in his evaluation of Hall. He varied from the other
experts in his selection of the comparative group but testified
that the group recidivism rates were as high as 25% over eight
years. Applying individual factors, Dr. Rosell opined that Hall
was not a sexually dangerous person. Of particular signifi-
cance, Dr. Rosell was persuaded by the fact that Hall had a
limited history of child molestation offenses and a limited
number of child victims, had undergone sex offender treat-
ment, and had demonstrated, by being in the community for
twenty-eight months without a hands-on offense, that he
could refrain from engaging in child molestation despite
ample opportunity to do so. According to Dr. Rosell:
Hall has had a significant amount of time in the com-
munity since his last hands-on offense and currently,
in my opinion, although he has not been compliant
on supervision or while confined he does not appear
to be an individual who would engage in future acts
of sexual violence because he has not demonstrated
a serious difficulty in controlling his behavior and
was able to refrain from sexual violent conduct or
child molestation while in the community over an
extended period of time.
J.A. 184. Additionally, Dr. Rosell noted that "[a] review of
actuarials, as well as protective factors, such as some treat-
ment completion, honesty with regards to sexual history, an
understanding of his offense behavior and an appropriate
release plan, [indicate that] Hall is [at a] lower risk for sexual-
[ly] dangerous behavior." J.A. 184. With regard to Hall’s
14 UNITED STATES v. HALL
ongoing and admittedly troubling interest in pictures and
drawings of children since his certification, Dr. Rosell testi-
fied that this behavior alone did not indicate that Hall would
likely reoffend, and he pointed to recent research suggesting
that hands-on offenders who possess such materials have a
lower recidivism rate than those who do not collect such
materials. Finally, Dr. Rosell observed that Hall would be
subject to twenty-five years of stringent restrictions when
released and could receive a sentence of life imprisonment if
he reoffended, both of which would likely have an additional
deterrent effect on Hall.
After hearing and weighing the conflicting testimony of the
expert witnesses, the district court found "the opinion of Dr.
Rosell to be the most well reasoned and persuasive" of the
expert opinions. J.A. 506. Specifically, the district court found
as follows:
Dr. Rosell, like Dr. Arnold, based his opinion on
clinical judgment, actuarial instruments, and psycho-
logical tests. The Court is persuaded that Dr.
Rosell’s method of synthesizing the available data
and applying it to Mr. Hall has given the Court a
more accurate depiction of Mr. Hall’s risk of reof-
fending. Dr. Rosell utilized the same actuarial instru-
ments and psychological tests as Dr. Arnold and Dr.
Demby; however, he provided a more complete dis-
cussion of the tests’ strengths and weaknesses. For
instance, not only did he provide a scholarly com-
ment on the false/negative aspects of the actuarial
instruments, but he did not limit his analysis of the
recidivism rates to only one or two sample groups
but provided recidivism rates for all sample groups.
He gave more credence to the fact that Mr. Hall
spent a considerable time in the community with no
new hands-on sex offenses which the Court finds to
be a persuasive factor that Mr. Hall will not recidi-
vate. Lastly, he correctly acknowledged that if
UNITED STATES v. HALL 15
released Mr. Hall will be under supervision for
twenty-five years. This Court finds the lengthy and
onerous conditions that will be imposed on Mr. Hall
if released give further assurance that Mr. Hall will
not reoffend.
J.A. 506.
The district court additionally considered the content of
Hall’s testimony and found that Hall was a credible witness.
The district court found that Hall "appears to understand the
severe consequences he faces if convicted of a new sexual
offense" and "the harm he has done to his victims." J.A. 506-
07. The district court also found that Hall understands "the
methods he must employ to ensure that he does not molest
children" in the future, and that he "appears to be committed
to not reoffending." J.A. 507.
III.
On appeal, the government does not take issue with the dis-
trict court’s credibility determinations. Rather, the govern-
ment argues that the district court erred by giving controlling
weight to the fact that Hall was on supervised release for
twenty-eight months without committing a molestation
offense against a child. The government argues that the dis-
trict court thereby altered § 4248’s requirement that it demon-
strate that Hall would have serious difficulty refraining from
child molestation to one requiring that it demonstrate insur-
mountable difficulty, and ensured that any respondent who
can point to even a brief time in which his desires for children
were controlled would be ineligible for commitment. A
review of the district court’s order, however, belies the gov-
ernment’s assertion in this regard. And a review of the entire
record leaves us unable to say that the district court’s factual
findings are clearly erroneous.
As noted above, the district court clearly considered and
weighed the testimony of the experts and of Hall. The experts
16 UNITED STATES v. HALL
considered actuarial tests, psychological tests, and Hall’s indi-
vidual circumstances, and made clinical judgments based
upon their evaluations. The actuarial tools relied upon by the
experts yielded a group recidivism rate of individuals who
scored similarly to Hall in the moderate to moderate-high
range. Depending upon the group to which Hall was com-
pared and the particular test employed, the range spanned
from approximately a 10% to 36% recidivism rate over a ten-
year period. In the end, however, the core of the experts’ dis-
agreement centered not so much on the actuarial tools or the
group rates of recidivism, as it did on the results of Hall’s
psychological tests, his individual circumstances, and the
experts’ respective interpretations of whether and to what
extent Hall’s circumstances affected his ability to control his
sexual urges towards prepubescent children.
As noted by the district court and Dr. Rosell, Hall has had
a limited number of hands-on child molestation offenses and
victims, particularly when compared to other pedophiles. And
while the record evidence indicates that Hall had somewhat
limited success in various sex offender treatment programs, it
is undisputed that Hall participated in such treatment and was
instructed in, among other things, coping skills to deal with
his pedophilia. In sum, Hall was convicted of two offenses
involving child molestation, his last child molestation offense
occurred in 1999, and he spent a total of approximately
twenty-eight months in the community (between April 2004
and January 2007), after completing the sex offender treat-
ment program at FCI Butner, without any reported hands-on
child molestation offense.
Additionally, the district judge who was in a position to
observe Hall’s testimony, found him to be credible, and relied
upon his testimony in making his findings. Hall testified that
he is remorseful, understands the damage he caused his prior
victims, and understands the risks of reoffense. He also testi-
fied that he has developed coping skills to keep him from act-
ing upon his impulses, and that he employed these coping
UNITED STATES v. HALL 17
strategies while in the community on supervised release.
Finally, Hall faces a 25-year period of supervised release that
includes substantial restrictions designed to prevent his reof-
fending and the risk of life imprisonment if he does reoffend.
Thus, while the district court found Hall’s time in the commu-
nity without reoffense "to be a persuasive factor that Mr. Hall
will not recidivate," J.A. 506, it is clear to us that the district
court did not place exclusive or controlling weight upon this
single factual finding.
Finally, we cannot say that the district court’s finding that
Hall is not sexually dangerous is clearly erroneous. Weighed
against the evidence found most persuasive by the district
court was Hall’s troubling history of failing to comply with
institutional rules and supervised release conditions, as well
as his continued sexual interest in pictures and drawings of
prepubescent children. As the experts noted, Hall’s pedophilia
and antisocial personality disorder have led him to continue
to break rules and to seek out inappropriate sexual materials.
Dr. Arnold and Dr. Demby placed great weight upon this non-
contact misconduct as evidence that Hall would also have
serious difficulty refraining from acting upon his pedophilic
urges if released. Dr. Rosell, however, testified that Hall’s
non-contact misconduct does not alone indicate a likelihood
of a hands-on reoffense, and concluded that Hall’s behavior
while confined at FCI Butner was not sufficient, in his opin-
ion, to overcome the other circumstances that indicated that
he would not likely reoffend. The government presented no
evidence upon which we could conclude that Dr. Rosell’s
interpretation of Hall’s possession of these materials was
unreasonable, and the district court did not clearly err in cred-
iting Dr. Rosell’s opinion over those of Dr. Arnold and Dr.
Demby. Compare United States v. Shields, 649 F.3d 78, 90
(1st Cir. 2011) (noting that where "[t]wo of the testifying
experts interpreted Shields’s child pornography offense as a
sign of ongoing deviance rather than improved impulse con-
trol, . . . it was entirely reasonable for the court to credit their
testimony over Shields’s expert’s opinion.").
18 UNITED STATES v. HALL
Accordingly, we reject as unsupported by the record the
government’s claim that the district court applied an imper-
missibly high burden of proof under § 4248, and we hold that
the district court’s factual findings are not clearly erroneous.
Having reviewed the record in its entirety, we cannot say that
the district court’s account of the evidence is implausible in
light of the record as a whole, even though we might well
have weighed the evidence differently. See Anderson, 470
U.S. at 573-74.
IV.
The question of whether a person is "sexually dangerous"
is "by no means an easy one," and "there is no crystal ball that
an examining expert or court might consult to predict conclu-
sively whether a past offender will recidivate." Shields, 649
F.3d at 89. "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." Id. (inter-
nal quotation marks omitted); see also United States v. Carta,
592 F.3d 34, 42 (1st Cir. 2010) (noting that the factfinder is
to determine "[w]hose [expert] analysis is more persuasive").
Here, the district court’s application of the statutory stan-
dards to the evidence is not erroneous, and its factual findings
represent a permissible and reasonable interpretation of the
evidence presented at the hearing. Because we are not "left
with the definite and firm conviction that a mistake has been
committed" by the district court, United States Gypsum Co.,
333 U.S. at 395, we cannot say that the district court clearly
erred in finding that Hall is not sexually dangerous within the
meaning of the Act. Accordingly, we affirm the district
court’s order dismissing the government’s commitment
action.
AFFIRMED