*1 discussed, conditional acquittal al- on count three its previously have As we count; and we of a new trial on grant he did not though Romano stated on jury’s guilty verdict of away reinstate people were when different recall pro- for further three. We remand meeting final on count during the group from the opinion. with this robbery, ceedings he consistent planned night prior to testimony that Mer- in his unequivocal was discussed present when Rossetti
lino was vigorous face of even in the grenade, attorney on cross
challenges by Merlino’s on re-cross examination.
examination internally inconsis- testimony was not
His consistent on the quite fact it was
tent —in by America, contradicted point at issue—or STATES of specific UNITED Petitioner, Appellant/Cross- record. any other evidence Appellee, Nevertheless, court conclud the district testimony was “too slen ed that Romano’s thirty mandatory support der a reed to CARTA, Respondent, Todd ” Merlino,
year consecutive sentence.... Appellee/Cross- at 92. cannot avoid the We Appellant. assess conclusion that the district court’s 09-1949, 09-2005. Nos. was, testimony ment of Romano’s some extent, about the informed its concern of Appeals, United States Court mandatory To the ex lengthy sentence. First Circuit. case, tent that was the such consideration Nov. 2009. penalty further undermines the dis Heard of the credibility trict conclusion as to the court’s Decided Jan. testimony. reliability of Romano’s Cf.
Shannon, 579, 114 512 U.S. at S.Ct. 2419. testimony regarding
Because Romano’s grenade was presence
Merlino’s when consistent, ultimately was uncon
discussed
tradicted, unequivocal, we conclude its discretion
that the district court abused the motion for a new trial. See granting (“[B]e- Rangel,
Rivera
cause it is not clear that result, seriously erroneous we
reached manifestly
find that the district court awarding its [defen
abused discretion (internal trial.”) quotations a new
dant] omitted).
marks and citation
III. affirm Merlino’s convictions and sen-
We one, two, four; we
tences counts judgment of
reverse the district court’s *3 Chaifetz,
Abby Wright and Samantha Staff, Division, Department Appellate Civil West, Justice, Tony with whom Assis- Loucks, General, K. Attorney tant Michael Attorney, and Mark Acting United States Stern, Staff, Division, Appellate B. Civil Justice, Department of were on brief for appellant/cross-appellee. petitioner, Mizner, H. Judith Assistant Federal Defender, Office, Public Federal Defender respondent, appellee/cross-appellant. SELYA, Before Circuit BOUDIN LAPLANTE,* Judge. Judges, and District BOUDIN, Judge. Circuit government sought to com- The federal mit Todd Carta under the Adam Walsh Act, Safety Pub L. Child Protection (2006) (“Adam No. 120 Stat. 587 Act”). That statute authorizes civil Walsh person already commitment of a federal custody, including finishing a sentence conviction, govern- after a criminal if the “sexually danger- ment shows that he is a (2006). § person.” оus 18 U.S.C. * sitting by designation. Hampshire, Of the District of New govern- opinion, district court held United States v. necessary (D.Mass.2009), failed to make the show- F.Supp.2d ment 212-14 appeals, now ing; (subject we on it to a draw few corrections claiming that the stat- cross-appeals record). reading based on our own of the ute is unconstitutional. (cid:127) ages Between the of 11 and Car- pleading guilty pornogra-
After to child performed ta oral sex on a child dia- phy charges October Carta was pers who was no more than three or years prison sentenced five fedеral years four old one time and on the dia- years supervised and three release. pered-child’s seven-year-old cousin *4 term, years requested Three into his Carta times; seven-year-old about 10 also a a granted and was transfer to federal performed oral on sex Carta. offering in North a sex
prison Carolina (cid:127) When he was 15 or Carta shot program. par- offender treatment Carta a BB gun similar-aged with a male when ticipated program approximately in the peer sex; engage refused to in oral months, seven but then withdrew without later, him Carta talked into oral sex and program. completing they in it engaged approximately 10 treating psychologist noted that Carta’s year over a period. times five program, pro- even within the he exhibited (cid:127) age At multiple on occasions reinforcing blematic behavior: the deviant engaged Carta in oral sex with his 16- of others in the program, denying beliefs year-old nephew. inappropriate that his behavior was (cid:127) ages Between 28 and Carta com- Further, acting impulsively. Carta multiple mitted sexual offenses while fol- dropped program partly out of the because band; lowing a rock among these were inability of his to curb his sexual interest a offering 13-year-old boy concert tick- program’s younger participants, exchange ets in for oral sex and fondling being which resulted restrictions im- a 17 masturbating 18-year-old or posed on contact them. his with passed male who was out drug from use program, In the course of the Carta in Carta’s van. disclosed details of his criminal sexual and (cid:127) began When Carta was 30 or he history prompted government’s sexually abusing 13-year-old boy, invocation of the Adam Walsh Act’s com- whom he had sexual contact with 30 to (in shorthand, mitment procedures “sec- year 40 times over a four period and 4248”). primary tion Carta described his “boyfriend.” referred to as his age sexual interest as children 12 to 17 and (cid:127) age At engaged he sexual secondary age interest as children 7 to separate contact on occasions with two having large and admitted to child 16-year-old collection; 16-year-old males and one pornography usually he stored female, 10,000 20,000 all of whom he met on the Inter- imаges between on his net. computer spent daily 12 to 14 hours
looking pornography prior at child to his (cid:127) When Carta was he met a 17- arrest. year-old male who living started with him; occasion, on least one sexually
Carta further admitted to abus- Carta occasions, orally ing many copulated 17-year-old’s youn- minors with his brother, youngest being ger victim who was diapers. child the time. history sexually Carta’s long abusing 13-year- Carta also abused a boy Internet, minors is detailed in the perform- old he met on the 1) objects, nonhuman generally involving on multiple on him occa- оral sex ing 2) time, humiliation of sions; suffering convinced the 13- or oneself 3) “three-way with children or year-old partner, to have sex” or one’s or other 17-year-old. that occur over a nonconsenting persons, Carta and months ... period at least 6 [and days prior 2007—two On March clinically significant distress cause that] good-time release scheduled Carta’s social, impairment occupational, Bureau of Prisons certified that date —the important functioning.... other areas of being held Carta, was in a federal who (4th Massachusetts, Ass’n, “sexually Psychiatric 522-23 was a Am. DSM facility in 2000). began condition was civil commit- ed. described dangerous person” under Dr. paraphilia section 4248. Phenix as proceedings ment dismiss, arguing hebephilia loosely, the stat- specified Carta moved because sex- — facially adolescents, unconstitutional on multi- ute was ual attraction after a the dis- ple hearing but an grounds, F.Supp.2d at 217—is not itself abnor- the motion. trict court denied United mality specifically listed in the DSM nor is *5 Carta, F.Supp.2d States v. paraphilia the of specific examples it one of (D.Mass.2007). The denial was without contrast, in By pedophilia, listed the DSM. as-applied challenge, to an which prejudice puber- sexual attraction to children before made. Carta never a in ty, variety paraphilia listed of the DSM, supra, DSM. at 527-28. February the district court held Bard, three-day a trial on whether Carta expert designated bench Dr. an Car- 4247(b), civil requirements § met for commitment request, ta’s see 18 U.S.C. con- Experts on 4248. testified under section from ceded Carta suffered “numerous government expert, both The Dr. sides. part in on Dr. problems” but —based that, Phenix, testified on risk Amy based Bard’s own tеst results —concluded that age, frequency factors such as of miscon- difficulty Carta not have serious treatment, duct and lack of success Car- refraining if from child molestation re- difficulty ta serious in refrain- would have Dr. leased. Bard also asserted hebe- ing child molestation if released.1 from was philia generally accepted diagno- not a Dr. that Carta from a Phenix said suffered community, in the sis mental health did known as not “paraphilia mental disorder para- fit of not within the DSM definition specified” that was characterized otherwise philia, diagnоstic lacked criteria could by “hebephilia.” defined; consistently not be that normal may arousing; adults find adolescents Paraphilia by Diag- is characterized by government articles offered Manual nostic and Statistical of Mental support diagnosis a were hebephilia (“DSM”), a commonly Disorders used ref- peer-reviewed legitimate research. of psychiatry erence book fields psychology, as follows: In June the district court ruled proved of Paraphilia by
The essential features
a
had not
recurrent,
sexually arousing
convincing
intеnse
clear and
evidence that Carta
are
fantasies,
urges,
a “sexually dangerous person”
sexual
or behaviors was
within
report,
prison,
the report
Phenix’s
like
of Car-
his behavior in
his statements about
Dr.
Bard,
seal;
present
expert
feelings
a
ta's
Dr. Leonard
is under
set
standardized
diagnosis
primarily
but we note that her
and evaluation
evaluative measurements based
on
correlating
dangerousness
simply
did not rest
on Car-
characteristics of the individual
past
with statistical data about re-offense.
ta's confession
incidents but also
meaning
requirеments
Adam Walsh Act. Car
and the former includes the
ta,
F.Supp.2d
Relying
4247(a)(5),(6).
§§
226-27.
on of the latter.
Id.
reasoning,
Dr. Bard’s
the district court
requires
combination
three elements:
diagnosis
para
concluded that Carta’s
(or
act)
prior
attempted
act
of “violent
philia not
specified
characterized
molestation”;
sexual
conduct
child
by hebephilia was not a
mental
“serious
illness,
“a
mental
abnormality,
serious
illness, abnormality, or
under
disorder”
disorder”; and
having
statute.
Id. at 222-27. Because
difficulty
resulting “serious
refrain-
defined
condition
prerequisite
mental
is a
ing
from
viоlent conduct or
under
commitment
section
child molestation if released.”
reach
separate question
did not
Carta
not deny
does
that he has en-
of whether
would have serious diffi
gaged in
past,
child molestation in the
culty refraining from molestation if re
judge
so found.
stayed
leased.
Id. at 229. We
Thus,
at 221-22.
whether the
pending
government’s expedit
release
government could commit Carta turned on
appeal.
ed
whether he suffered from “a serious men-
Code,
Chapter
of the Criminal
illness,
tal
abnormality, or disorder” and
§§
competen-
U.S.C.
addresses
whethеr he would have
difficulty”
“serious
trial,
cy
disposition
to stand
of those found in refraining from further child molesta-
guilty
insanity
reason of
and treat-
noted,
tion.
already
As
the district judge
custody
ment of
those
who are found to
*6
did not reach the
question
latter
because
be
from a
suffering
mental disease or de- he
ruled the
had failed to
authorizes,
fect.
provision
pro-
One
and
show that Carta suffered
the
from
neces-
for,
procedures
§§
vides
4246(a)-(g),
id.
sary mental condition.
continued commitment of individuals in
review,
distinguish
On
we
be
custody
federal
due for re-
—otherwise
means,
tween
questions
what the statute
of
lease—where release would “create a sub-
raw fact
step
of
intermediate
char
stantial
bodily injury
risk of
to another
acterizing
raw
facts in the terms of the
person
damage
property
or serious
to
of
issue,
statute thus defined. The first
stat
by
another”
of a
reason
“mental disease or
utory
novo,
interpretation, we
de
review
4246(a).
defect,”
§id.
Frechette,
1,
456 F.3d
7
Appended, with
cross-references
(1st Cir.2006); the
one of
second is
fact-
scheme,
by
basic
is a section added
error,
finding, reviewed for clear
Fed.
Adam
Act that
civil
Walsh
addresses
com-
52(a)(6);
R.Civ.P.
is
prob
the last
sexually
person”
mitment of “a
dangerous
lem applying general
of
spe
standard to
custody
who is in
Attorney
of the
cific facts in which some deference is ordi
Prisons;
General or Bureau of
commit-
narily
fact-finder,
accorded the
United
may
ment
until
person
continue
is
Jahagirdar,
States v.
466 F.3d
156
longer
transferred to state care or “is no
(1st Cir.2006).
sexually
or
dangerous
others”
until that
danger
by outpatient
may
can be controlled
The district court
have as
4248(a),
§§
care and treatment. 18
statutory conсept
U.S.C.
sumed that the
is delim
(d).
“Sexually dangerous
person” and
ited
the consensus of
medical
com
defined,
“sexually dangerous to
are
munity,
Further,
others”
but this is not so.2
Crane,
407, 413,
(2002) (''[T]he
2. See Kansas v.
534 U.S.
S.Ct.
The district report directly to contra- paraphilia appears that is ex- Bard’s approach court’s is only psychiatry, "[t]he 3. The district court asserted that which informs but does science determinations, legal diagnosis not control ultimate federal courts to have addressed science, ever-advancing whose distinctions an sexually dangerous person hebephilia in precisely to those not seek mirror do rejected have it as basis for commit- cases Hendricks, law.”); U.S. 521 Kansas Carta, F.Supp.2d (citing 222 620 at ment.” (1997) 117 S.Ct. 138 L.Ed.2d Shields, 07-12056, States v. No. United (same); pt. Rep. at see H.R. also Feb.26, (D.Mass. 2008) *2 WL at (rejecting 4248 a for section "narrow” Abregana, F.Supp.2d trigger approach to what mental conditions (D.Haw.2008)). stating that the statute instead the statute and substantively adopts standards "commitment approved by Supreme similar to those Hendricks). in Crane and Court” exception— teenagers Given that sexually diet this classification. The some are mature, hardly it is judge surprising noted did not which the but (and courts) DSM adopt, hesitate to expressly see (rather classify any and all sexual attraction testimony this: in his 223—is them as abnormal. But Dr. Phenix did not report), posi- Bard took the than his Dr. claim that mental disorder was phrase in tion that the term “children” hebephilia; she said it was paraphilia not persons,” nonconsenting “children other specified, otherwise and the reference to examplе as an of a which the DSM uses hebephilia merely pointed to adolescents category common of fixations that often as the target his fixation. does This paraphilia, only prepu- underlie refers everyone mean attracted to briefly, bescent children. He also stated disordered; rather, is mentally adolescents detail, any thought but that he without it urges means are whose so term in most clinicians used the “children” strong produce as to the symptoms and this manner. consequences in identified the DSM and describing Dr. Bard in reasoned by exhibited be could so in classified pedophilia, specifically DSM refers to an appropriate case. children; but, “prepubescent” anything, if by judge cases cited the district are qualifier “prepubescent” the explicit used Shields, helpful ruling. defining pedophilia would make one rejected trial hebephilia court standing think that its “chil- omission the phrase illness, alone as “a serious mental abnor- nonconsenting persons” dren and does not disorder,” mality, or categori- but did not young pubescent exclude but adolescents. cally reject the diagnosis оf paraphilia not The idea that the reference to “children” specified by otherwise characterized hebe- opening examples of common fixa- instead, philia; the district said it automatically definitively tions ex- adequate lacked an record to assess the young teenagers cludes molestation of latter diagnosis. *2. and, case, far compelling any from In Abregana, the court found that paraphi- “not specified” category re- lia specified not otherwise characterized mains. hebephilia disorder, was a mental but that dangerousness was not established. 574 So on this record it would be clear error F.Supp.2d at 1154. to say paraphi- that the DSM definition of *8 lia excluded an sexual fixation intense on sum, government’s In the position de- young teenagers accompanied aby pattern pended on showing not that a hebephilia is of such conduct as Nor did the Carta’s. mental showing disorder but on that Car- squarely position; district court take this ta’s sexual attraction to fell teenagers instead, its main concern was of indefi- within the DSM definition of paraphilia not niteness and over-inclusion: the district specified; Dr. provided Phenix judge that paraphilia said not otherwise ample to reason conclude that fell specified should not be stretched to include definition, within nothing the DSM and hebephilia thereby because it would en- report why Dr. Bard’s shows that conclu- anyone compass by post- aroused wrong. only sion is We add that it would pubescent minors, given vague- which the unlikely be to take Carta outside the stat- ness term hebephilia patholo- of the “could ute even if we improbably concluded that gize normаl men.” 620 he any DSM-recognized fell afflic- outside tion; already explained, as the reach of 42 claims a de novo specific not to the Carta’s constitutional limited
section 4248 United States applies. listed DSM. of review conditions standard E., (1st Cir.2009), 8, Rene 583 11 F.3d show that report Dr. does Bard’s denied, (Jan. 11, cert. 2010 58720 ability to experts disagree to Carta’s 2010). urges toward adoles- control his sexual prove by must cents. The Volungus, No. that convincing only clear and evidence (1st 09-1596, 2010 WL F.3d condition, required mental Carta has 2010), recently rejected the Cir. Jan. we difficulty have
but also
“serious
Congress’
claim that section 4248 exceeded
sexually violent conduct
refraining from
Clause,
power under the
find
Commerce
if
child molestation
released.”
U.S.C.
ing
power
sup
that the constitutional
4247(a)(6).
issue, Dr.
§
On
latter
creation
a federal
ex
ports the
crime
to Carta is rea-
Bard’s evaluation favorable
tends,
the Necessary
Proper
under
and
so Dr.
sonably
specific,
but
detailed
Clause,
public
safeguarding
against
contrary position.
analy-
Phenix’s
Whose
of an
clear
release
individual shown
to be
persuasive
sis is more
remains
deter-
convincing
a signif
evidence
remain
mined on remand.
Id. *1,
danger to
public.
icant
brings
This
us
Carta’s claims
issue,
4. The Fourth Circuit but came the other in Comstock held issue out Congress’ Congress’ authority power. was section 4248 exceeded the statute within 497, Tom, (8th and so was unconstitutional. 551 F.3d at United States v. 565 F.3d 508 6, Cir.2009), Eighth petition Aug. cert. 2009. The Circuit also ruled on this filed
43
(we
argued
prevent
It
need not decide
to give
arbitrary
has been
notice and
en-
issue)
forcement,
that at least the criminal stan-
present
and the
statute also
proof
dard of
should be used under section passes muster. See
Gaughan,
Peterson v.
past
(1st Cir.1968)
required
1375,
4248 to show the
act
F.2d
404
1377
(uphold-
statute).
molestation
sexual violence
child
where
ing similar state
prior
it is not embodied in
conviction.
claim
second
is
based
Shields,
v.
522 F.Supp.2d
failure
section 4248 to specify that a
(D.Mass.2007).
317, 331-32
But in this
prompt hearing
required
is
perhaps—
prior
case Carta conceded
acts of child
requisite
whether this is
is more debata
high-
if in other
molestation. Even
cases a
impose
prompt
ble—to
some
preliminary
required,
er standard were
it could
read
be
screening by
magistrate
a neutral
before a
into
applica-
the statute
unconstitutional
period
substantial
of detention occurs after
enjoined
tions
so that facial invalidation
expired.
the sentence has
say
We cannot
v.
Ayotte
would be unwarranted.
See
likely
violations are so
as meet
to
N.
England,
Planned Parenthood
New
high standard
to facially
needed
invalidate
320,
961,
328-29,
546
126 S.Ct.
163
U.S.
statute,
v.
McCullen
571
Coakley,
F.3d
(2006).
L.Ed.2d 812
(1st
167,
Cir.2009),
174
any
and in
event
claim,
jury
trial
On
the Su
those defects could be remedied
inter
preme
require
jury
Court declined to
polating requirements and remedies where
juvenile delinquency proceedings, McKeiv
hearing
individual’s
has been inordi
Pennsylvania,
er v.
U.S.
91
403
delayed,
nately
Ayotte,
see
546 U.S. at
(1971),
S.Ct.
ment government in that the holding “sexually dangerous per- erred target a men- met the court and failed to establish Carta to both son” 4248(a). § it to certifi- and remand for target. tal element 18 U.S.C. condition some of requisite dangerous- case cate in described whether the Carta’s consider molestation, list- of child past acts Carta’s ness exists. summarized diagnoses and his mental ed It ordered. is so he would be thinking that
the bases for future; fails to in the Carta dangerous constitutional- LAPLANTE, a notice is
explain why Judge, such District inаdequate. ly concurring. equal protection argu in in my recent dissent explained As fails rational section 4248
ment is that 09-1596, Volungus, v. No. of individu the class basis review because (1st 46968, 10, at *9 2010 WL F.3d by the statute— affected potentially als 2010), Jan.8, I have serious concerns Cir. not namely, prisoners federal all —does necessary Act is about whether Walsh govern to the relationship a rational bear of Congress’s exercise proper “sexually purpose incapacitating ment of powers. Supreme Since enumerated equal protec individuals. The dangerous” already argument heard oral Court has Baxstrom v. He argument tion builds on issue, very see case raises rold, S.Ct. 383 U.S. Comstock, 551 F.3d United Stales (1966), Supreme L.Ed.2d 620 where (4th Cir.2009), granted, - U.S. -, cert. commitment stat Court disallowed state (2009), I 174 L.Ed.2d S.Ct. it commit ute that made easier to based for the Supreme wait prefer already prison on mental illness those this ruling rather than remand Court’s not so counterpart than state residents unneces- potentially case and create now imprisoned. at 86 S.Ct. Id. sary court. work for the district state, gen- unlike has a Congress, But custody way, either will remain federal police gov- the federal power, eral whereas at in the short term. least responsibility interest and here ernment’s Notwithstanding I con- preference, this already from the fact that it has stem I fully majority opinion cur because Volungus, custody prisoner. Volungus, upheld which recognize *6-7, 595 F.3d 8. There of Congress’s Act as a exercise Walsh valid unimprisoned group no corresponding authority, is now the established law police subject power, to its so with persons this circuit. operation section respect to the prisoners unimprisoned per- federal similarly Plyler are See
sons situated. Doe, 216, 102 S.Ct. 457 U.S. (1982). Thus, far from
being is inevitable that reach sec-
federal limits the already cus-
tion 4248 to individuals its
tody. uphold determi-
We the district court’s facially un-
nation that the statute is