United States v. Volungus, 2013 U.S. App. LEXIS 19170

Background

John Volungus, convicted in 1999 of child pornography and using an interstate facility to attempt to persuade a minor to engage in sexual activity, served federal prison time and was on supervised release when repeated violations occurred.
While on supervision and in custody he repeatedly downloaded/viewed child pornography, ran file-wiping software, maintained files and drawings sexualizing children, corresponded about plans to travel to procure child victims, and had unauthorized contact with a five-year-old niece.
He admitted persistent sexual attraction to children and poor impulse control; during supervised release he both attended sex-offender treatment and contemporaneously engaged in prohibited behavior and planning.
Bureau of Prisons and government experts assessed him at elevated risk to reoffend; some defense experts assessed lower risk.
After a seven-day hearing under 18 U.S.C. § 4248 (Adam Walsh Act), the district court found by clear and convincing evidence that Volungus suffered from pedophilia and, as a result, would have serious difficulty refraining from child molestation if released, and ordered civil commitment.
The First Circuit affirmed, holding the court’s volitional-impairment finding was supported by evidence of obsessive conduct, failed/insincere treatment participation, and affirmative attempts to contact minors.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the government proved the third statutory prong — that, due to a mental disorder, the respondent would have serious difficulty refraining from child molestation if released	Gov: Volungus’s pedophilia, obsessive conduct, failed treatment, and affirmative efforts to contact minors show serious difficulty in refraining from molestation	Volungus: Commitment cannot rest on fantasies/child-pornography alone; he has only one dated attempted “hands-on” offense and demonstrated ability to refrain	Held: Affirmed — clear and convincing evidence supports that pedophilia impairs volitional control and creates serious difficulty refraining from molestation.
Whether online-only conduct and fantasies can inform dangerousness despite few hands-on offenses	Gov: Online conduct, attempts to meet minors, and related behavior are relevant indicia of risk and volitional impairment	Volungus: Online acts are not equivalent to physical molestation and cannot alone justify commitment	Held: Affirmed — online behavior and attempts to contact minors are relevant to individualized dangerousness analysis.
Whether the district court erred in crediting government expert testimony over defense experts	Gov: Court reasonably credited expert(s) finding high risk and volitional impairment	Volungus: Defense experts testified to lower risk; court improperly weighed experts	Held: Affirmed — credibility and weight assessments are for the factfinder and not reversible if reasonable.
Whether the statutory first prong requires that the predicate offense be caused by the diagnosed disorder	Volungus: His attempt to meet a 14‑year‑old may not reflect pedophilia (prepubescent focus), so statutory eligibility disputed	Gov: The statute’s prongs are independent; the predicate attempt suffices regardless of causal link	Held: Affirmed — the statute does not require the first prong offense to be caused by the diagnosed disorder.

Key Cases Cited

Addington v. Texas, 441 U.S. 418 (1979) (clear-and-convincing standard is intermediate between preponderance and beyond a reasonable doubt)
Anderson v. Bessemer City, 470 U.S. 564 (1985) (appellate courts defer to district court factfinding unless clearly erroneous)
Colorado v. New Mexico, 467 U.S. 310 (1984) (describing the probability threshold for clear-and-convincing proof)
United States v. Carta, 592 F.3d 34 (1st Cir. 2010) (deference when district court applies general law to specific facts)
United States v. Shields, 649 F.3d 78 (1st Cir. 2011) (crediting experts who view child‑pornography offenses as evidence of ongoing deviance)
United States v. Hahn, 17 F.3d 502 (1st Cir. 1994) (appellate court will not reweigh witness credibility)
Seahorse Marine Supplies, Inc. v. Puerto Rico Sun Oil Co., 295 F.3d 68 (1st Cir. 2002) (weight accorded to expert testimony is for the factfinder)
Batista‑Polanco, 927 F.2d 14 (1st Cir. 1991) (factfinder decides among reasonable interpretations of the evidence)