United States v. Carta

United States Court of Appeals
For the First Circuit

No. 11-1921

UNITED STATES OF AMERICA,

Appellee,

v.

TODD CARTA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Howard, Selya and Thompson,
Circuit Judges.

Ian Gold, Assistant Federal Public Defender, with whom Tamara
Fisher and Federal Defenders Office, were on brief, for appellant.
Eve A. Piemonte Stacy, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney and Jennifer Serafyn,
Assistant United States Attorney, were on brief, for appellee.

July 27, 2012
 HOWARD, Circuit Judge. Todd Carta appeals the district

court's ruling that he is a "sexually dangerous person" subject to

civil commitment under the Adam Walsh Child Protection and Safety

Act of 2006 ("the Act").1 After review of the record and the

district court's factual findings and legal conclusions, we affirm.

I.

Carta pled guilty to federal child pornography charges in

2002 and was sentenced to five years in prison and three years of

supervised release. Prior to his scheduled release in 2007, the

Bureau of Prisons certified that Carta was a "sexually dangerous

person" and commenced proceedings pursuant to the Act, which

authorizes civil commitment of a person in federal custody. 18

U.S.C. § 4248(a). A "sexually dangerous person" is one "who has

engaged or attempted to engage in sexually violent conduct or child

molestation and is sexually dangerous to others." 18 U.S.C.

§ 4247(a)(5). A determination that an individual is a "sexually

dangerous person" requires the government to prove by clear and

convincing evidence that he "suffers from a serious mental illness,

abnormality, or disorder as a result of which he would have serious

difficulty in refraining from sexually violent conduct or child

molestation if released." Id. § 4247(a)(6).2

1
Pub. L. No. 109-248, 120 Stat. 587 (2006), codified at 18
U.S.C. §§ 4247-48.
2
If the government meets its burden, the inmate is committed
to the custody of the United States Attorney General. 18 U.S.C. §

-2-
 After a district judge ruled that the government had

failed to establish that Carta's diagnosis of "paraphilia not

otherwise specified characterized by hebephilia" was a "serious

mental illness, abnormality or disorder" within the meaning of the

Act, United States v. Carta, 620 F. Supp. 2d 210 (D. Mass. 2009)

("Carta I"), a panel of this court reversed, holding that the

district court erred in ruling that the government had failed to

establish the serious mental illness element. United States v.

Carta, 592 F.3d 34, 44 (1st Cir. 2010) ("Carta II"). The case was

remanded for consideration of "whether the requisite dangerousness

exists." Id. A different district court judge subsequently

conducted a seven-day trial, ultimately ruling in the government's

favor. See United States v. Carta, No. 07-12064-PBS, 2011 WL

2680734 (D. Mass. July 7, 2011) ("Carta III"). This timely appeal

followed.

II.

We begin by observing that Carta, who was 42 years old

when he pled guilty to the child pornography charges for which he

was incarcerated, does not deny that the Act's first element --

4248(d). If the state in which he is currently domiciled or was
tried will accept him, he will be transferred to the state for
"care, custody and treatment." Id. If not, the Attorney General
must place him in a "suitable facility" for treatment until such
time as the state accepts custody or he is no longer sexually
dangerous. Id. § 4248(e). A committed individual is also
permitted to file a motion seeking discharge with the court that
ordered his commitment. Id. § 4247(h). If denied, there is a 180-
day waiting period before he can again seek relief. Id.

-3-
that he has engaged in child molestation in the past -- is

satisfied. His lengthy history of committing sexual abuse,

beginning when he was 11 years old and including many such acts

over the course of three decades, is detailed in both district

court orders. See Carta III, 2011 WL 2680734 at *3-7; Carta I, 620

F. Supp. 2d at 212-14. We eschew repeating the details of his

history here. In addition to his prior abusive conduct, Carta also

displayed troubling behavior while in a sex offender treatment

program in federal prison. After being transferred at his request

to a prison in North Carolina that offered the program, Carta

dropped out in part because of his inappropriate interest in the

program's younger members. Carta II, 592 F.3d at 37.

Given Carta's concession as to the first element, the

remaining issues before us are whether he suffers from a serious

mental illness, abnormality or disorder and, if so, whether such

condition would result in his having serious difficulty refraining

from sexually violent conduct or child molestation.

A.

At the heart of the first issue is the diagnosis

proffered by the government expert, Dr. Amy Phenix, who testified

that Carta was afflicted with a mental disorder known as

"paraphilia not otherwise specified ("NOS") characterized by

hebephilia." The Diagnostic and Statistical Manual of Mental

-4-
Disorders ("DSM IV" or "DSM") describes the "essential features" of

paraphilia as follows:

[R]ecurrent, intense sexually arousing
fantasies, sexual urges, or behaviors
generally involving 1) nonhuman objects,
2) the suffering or humiliation of oneself or
one's partner, or 3) children or other
nonconsenting persons, that occur over a
period of at least 6 months . . . [and that]
cause clinically significant distress or
impairment in social, occupational, or other
important areas of functioning.

Carta II, 592 F.3d at 38 (quoting Am. Psychiatric Ass'n, DSM 522-23

(4th ed. 2000)). The "not otherwise specified" portion of the

diagnosis stems from the fact that hebephilia is not one of the

specific conditions listed in the DSM IV, either separately or as

an example of paraphilia. Id. While the precise contours of

hebephilia are the subject of debate, it suffices to say that the

disorder consists of a sexual attraction to adolescents, as opposed

to, for example, a specified paraphilia such as pedophilia, a

sexual attraction to pre-pubescent children. Id. (citing DSM at

527-28).

The parties dispute whether our determination in Carta

II that the government had established the mental disorder element

is binding as law of the case. It is.

Under the law of the case doctrine, "when a court decides

upon a rule of law, that decision should continue to govern the

same issues in subsequent stages of the same case." United States

-5-
v. Matthews, 643 F.3d 9, 12 (1st Cir. 2011) (citing Arizona v.

California, 460 U.S. 605, 618 (1983)). Two branches of the

doctrine are pertinent here. The "mandate rule" proscribes

relitigation in the trial court of matters that were decided by an

earlier appellate decision in the same case. Id. at 13. The other

branch, related to the "law of the circuit" principle, binds a

successor appellate panel in the same case to "honor fully the

original decision." Id. Here, both varieties of the rule apply.

The only issue before us in Carta II was whether the

district court in Carta I had correctly ruled that the diagnosis of

paraphilia NOS characterized by hebephilia was not a serious mental

illness, abnormality or disorder. We determined that the statutory

definition of "serious mental illness" is not limited to either the

consensus of the medical community or to maladies identified in the

DSM. Carta II, 592 F.3d at 39-40. Additionally, we noted that

even if hebephilia lacks sufficient indicia to fit it within the

statutory praxis, paraphilia itself is listed in the DSM, as is the

category "paraphilia not otherwise specified." Id. at 40. Thus,

we discounted the testimony of defense expert Dr. Leonard Bard that

hebephilia is not a generally accepted diagnosis and does not fit

within the DSM definition of paraphilia. In the end, we concluded

that "Dr. Phenix's report, Carta's past history of sexually abusing

minors, his in-prison behavior and his expressed attitudes justify

classifying him as suffering from paraphilia: he has a decades-

-6-
long sexual fixation on minors that plainly has 'caused significant

distress or impairment' in his life." Id. at 40.3

On remand to determine whether Carta would have serious

difficulty in refraining from sexually violent conduct or child

molestation, the district court nevertheless acceded to Carta's

request to accept additional evidence on the mental condition

issue. Carta III, 2011 WL 2680734 at *2. The court need not have

done so.

In Carta II, we explicitly decided the serious mental

illness question. Under the mandate rule, relitigation is

ordinarily foreclosed. See United States v. Rivera-Martinez, 931

F.2d 148, 150 (1st Cir. 1991) ("When a case is appealed and

remanded, the decision of the appellate court establishes the law

of the case and it must be followed by the trial court on remand.")

(emphasis in original). The trial court possesses "some limited

discretion" to reopen an issue, but only in "very special

situations." United States v. Wallace, 573 F.3d 82, 88-89 (1st

Cir. 2009) (quoting United States v. Bell, 988 F.2d 247, 250-51

(1st Cir. 1993)). We have described the "exceptional

circumstances" that must be present to overcome the mandate rule as

requiring a showing of a change in controlling legal authority,

3
One example of the impact of Carta's fixation on his life is
his report that he spent between twelve and fourteen hours per day
on the internet searching for and viewing child pornography and
masturbating to images two to three times daily.

-7-
significant new evidence not previously obtainable, or the prospect

of serious injustice. Id.

Similarly, the law of the circuit principle requires that

we follow Carta II "unless and until the decision is modified or

overturned by a higher court" or "if the initial ruling was made on

an inadequate record or was designed to be preliminary or

tentative, . . . if newly discovered evidence bears on the

question, or if reconsideration would avoid manifest injustice."

Wallace, 573 F.3d at 89 (quoting Ellis v. United States, 313 F.3d

636, 647-48 (1st Cir. 2002)) (internal quotation marks omitted).

"A finding of manifest injustice requires a definite and firm

conviction that a prior ruling . . . is unreasonable or obviously

wrong [and] a finding of prejudice." Id. (citation and internal

quotation marks omitted).

None of the factors that would obviate application of

either branch of the law of the case doctrine to the holding in

Carta II is present here. There has been no intervening authority

that would undermine the earlier panel decision, Carta II was not

decided on an inadequate record, and there was nothing about the

opinion that could be regarded as preliminary or tentative. Carta,

however, argues that new evidence compels re-examination of the

issue. Indeed, the district court allowed him to introduce an

article written after Carta II, in which two drafters of the DSM IV

express their doubts about the propriety of a forensic diagnosis of

-8-
paraphilia NOS with a hebephilia descriptor. The court also

appointed, at Carta's request, Dr. Robert Prentky, who interviewed

Carta for six hours and reviewed his records. Although Dr. Prentky

testified that Carta did not suffer from a serious mental illness,

he agreed with Dr. Phenix that paraphilia NOS with a descriptor of

hebephilia can be an appropriate diagnosis. But this additional

disagreement among experts does nothing to alter the scenario that

we analyzed in Carta II, and therefore our determination that Carta

fits within the "serious mental illness" prong of the Act was (and

remains) binding.

That said, however, nothing about our law of the case

analysis should be read to suggest that we have cause to doubt the

district court's conclusion that the proof provided during the

court's supplemental inquiry satisfied the second element of the

Act. The judge's analysis of the serious mental condition issue,

taking into account the additional evidence, does not come close to

qualifying as clear error. See Fed. R. Civ. P. 52(a)(6).

B.

Turning to the third element, we note that the Act does

not define "serious difficulty in refraining" from sexually violent

conduct or child molestation. Nevertheless, sufficient guidance

comes from the Supreme Court's pre-Act review of a Kansas civil

commitment statute in Kansas v. Crane, 534 U.S. 407 (2002). In

Crane, the Court held that a showing of "serious difficulty in

-9-
controlling behavior" was a prerequisite to civil commitment of a

sexually dangerous person. Id. at 413. Such lack of control need

not be "demonstrable with mathematical precision," but the

defendant's lack of control "must be sufficient to distinguish the

dangerous sexual offender whose serious mental illness,

abnormality, or disorder subjects him to civil commitment from the

dangerous but typical recidivist convicted in an ordinary criminal

case." Id.

In ruling in the government's favor, the district court

relied on transcripts from Carta I, testimony from Drs. Phenix,

Prentky and Bard, and Carta's own testimony and history. As for

the experts, Dr. Phenix concluded that Carta would have serious

difficulty refraining from sexually molesting children if released;

Dr. Prentky and Dr. Bard disagreed.

Although Carta refused to allow her to interview him, Dr.

Phenix based her opinion on her review of Carta's records, as well

as her use of three different risk-assessment actuarial tools to

yield a re-offense rate. Carta III, 2011 WL 2680734 at *14-16,

*23. The district court did not entirely accept Dr. Phenix's

actuarial conclusions, however, because her analysis included a

subjective step that contributed to the finding of a higher re-

offense rate, but which has not been empirically validated. Id. at

*14 n.1.

-10-
 In addition to applying the actuarial tools, Dr. Phenix

observed other risk factors present in Carta's life, including the

absence of social support, the presence of significant intimacy

deficits and poor sexual and non-sexual self-regulation, and a

demonstrated lack of cooperation with supervision. In sum, Dr.

Phenix testified that Carta was the same person that he was when he

entered treatment -- still believing that sexual relationships with

thirteen year-old boys were permissible.

Dr. Prentky, who did meet with Carta, used a diagnostic

tool (known as the SVR-20) that excluded from consideration sex

crimes that had not been legally adjudicated. Id. at *20. Dr.

Prentky combined the score from this model with other factors,

including, e.g., the lack of documented sexual offenses and

significant sanctions, as well as Carta's infraction-free presence

in the community pending sentencing and the fact that he neither

had re-offended after a criminal sanction nor had a sex-related

disciplinary problem in prison. Id. Ultimately, although Dr.

Prentky believed that Carta would have serious difficulty

refraining from general anti-social behavior, he did not think that

such difficulty would carry over into sexually violent conduct or

child molestation. Id.

Dr. Bard relied on an actuarial test that assessed

Carta's likelihood of recidivision at seven to fifteen percent. He

acknowledged, however, that the tool did not account for Carta's

-11-
then-current situation, but instead combined factors from his past

and compared them to others with similar data points. Id. at *18.

To overcome this limitation, Dr. Bard created a "dynamic risk

assessment" that combined the test with other factors. He placed

considerable weight on the fact that Carta had not engaged in any

sexual misconduct while in prison. He placed little significance,

however, on Carta's actions during his time in the federal prison

treatment program. Essentially, Dr. Bard took the position that

since there is nothing illegal or deviant about having a

relationship with a twenty-five year-old, Carta's actions did not

point to a likelihood of re-offense. To the contrary, Dr. Bard

suggested that these actions demonstrated that Carta was "mov[ing]

his level of attraction from teenagers to twenty-somethings." Id.

Moreover, Dr. Bard accepted Carta's explanation for having dropped

out of the treatment program -- it resulted from his stubbornness

about admitting that he had made a mistake, rather than from

inappropriate contact with other program members. Id.

Ultimately, Dr. Bard testified that Carta is "a very

different person" and that his likelihood of re-offense would be

tempered by the presence of a support system in the form of

therapists, family members and a probation officer. Id. at 19. He

testified that Carta's attraction, impulsivity and anger "are not

the same now as [they were] in the past" and that "[he] is able to

-12-
control his behavior as evidenced by his nine plus years in prison

without any serious violence." Id.

The district court concluded that none of the experts'

testimony could be given full weight, noting that Dr. Bard believed

that paraphilia NOS (hebephilia) is not a valid diagnosis under any

circumstances, that Dr. Phenix's methodology included a subjective

step, and that Dr. Prentky's analysis did not include Carta's self-

reported crimes. Id. at *23. Additionally, the court was less

convinced than Dr. Prentky that Carta had undergone "considerable

self-transformation" while in custody awaiting the hearing in this

case.

The court also considered numerous other factors. In

Carta's favor were the lack of sexual misconduct either during the

interval between his guilty plea and his incarceration or while he

was in prison, the fact that he was seeking treatment during the

pendency of the hearing, and his advancing age. Id. at *24. At

the same time, however, the court observed that Carta's history of

sexual crimes and anti-social behavior was deeply troubling, and

his impulsive actions and volatility when faced with adversity were

highly concerning. Id. Additionally, the court found that Carta

continued to engage in distorted thinking, exemplified by his

attempt to rationalize his behavior by stating that both a thirteen

year old boy and his daughter's boyfriend had initiated sexual

-13-
contact with him. Id.4 Finally, the court noted that Carta's

inability to refrain from engaging with younger participants while

in the federal sex offender treatment program, and his departure

from the program, demonstrated a disturbing degree of

impulsiveness. Id. at *25.

Carta targets the weight that the district court assigned

to the many strands of evidence in the mix. Two specific points

stand out. First, Carta places great significance on the fact that

he committed no sexual offenses or violations while incarcerated.

The relevance of that behavior, however, is limited by the fact

that the main targets of his attraction -- adolescent boys -- are

inaccessible in prison. Next, he says that the district court

placed insufficient weight on his lack of sexual misconduct while

he was in the community pending sentencing, as well as on his lack

of re-offense after being sanctioned. Compared to these relatively

short time frames on which Carta focuses, however, he has a lengthy

pre-sanction history of sexual misbehavior involving children. We

have no difficulty accepting the premise that multiple instances of

post-sanction recidivism can buttress a commitment decision. See,

e.g. United States v. Shields, 649 F.3d 78, 89 (1st Cir. 2011);

4
Carta takes issue with this finding, arguing on appeal that
there is no evidence that he was lying about the encounters, and
that the other individuals did initiate them. We read the district
court's concern as, even assuming that Carta was truthful, the
encounters nevertheless were inappropriate no matter who initiated
them.

-14-
United States v. Hunt, 643 F. Supp. 2d 161, 181 (D. Mass. 2009).

But we do not read the Act as requiring previous post-sanction

misconduct.

Aside from those two assertions, the essence of Carta's

argument is that more weight should have been given to the

testimony of the experts who testified in his favor, with

correspondingly less placed on Dr. Phenix's testimony, his own past

conduct, and his departure from the federal prison treatment

program. After reviewing the district court's factfinding for

clear error, we have no warrant to upset that court's assessment of

the evidence. Carta II, 592 F.3d at 39.5 As the district court

acknowledged, the "serious difficulty refraining" assessment

presented the most vexing issue. Id. at *22. But it is abundantly

clear that the court carefully weighed the evidence and the

competing views espoused by each of the experts.

Our task is not to re-weigh the evidence or to make

credibility assessments. See Adelson v. Hananel, 652 F.3d 75, 86

(1st Cir. 2011) ("[W]hen a case has been decided on the facts by a

judge . . . an appellate court must refrain from any temptation to

retry the factual issues anew.") (quoting Johnson v. Watts

5
We summarily reject Carta's argument that the district court
committed legal error -- subject to de novo review -- by saddling
him with the burden of proving that he was not dangerous. Contrary
to Carta's claim, the district court's conclusion that Carta lacked
the tools to control his behavior was a finding of fact that the
court used to buttress its ultimate conclusion.

-15-
Regulator Co., 63 F.3d 1129, 1138 (1st Cir. 1995)); Fed. R. Civ. P.

52(a)(6) ("reviewing court must give due regard to trial court's

opportunity to judge the witnesses' credibility."). The district

court, in its role as factfinder, was free to "decide among

reasonable interpretations of the evidence," Shields, 649 F.3d at

89, and the factfinder's choice between two permissible views of

the evidence cannot be clearly erroneous. Adelson, 652 F.3d at 86

(quoting Johnson, 63 F.3d at 1138.).

As we have observed before, "there is no crystal ball

that an examining expert or court might consult to predict

conclusively whether a past offender will recidivate." Shields,

649 F.3d at 87. Ultimately, we can find clear error only if "we

are left with the definite and firm conviction that a mistake has

been committed." United States v. D'Andrea, 648 F.3d 1, 14 (1st

Cir. 2011) (citation and quotation marks omitted). No such error

was committed here.

III.

The judgment of the district court is affirmed.

-16-