United States Court of Appeals
For the First Circuit
No. 20-1009
UNITED STATES OF AMERICA,
Petitioner, Appellee,
v.
WAYNE HUNT,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]
Before
Thompson and Kayatta, Circuit Judges,
and Katzmann,* Judge.
Ian Gold for appellant.
Jennifer A. Serafyn, Assistant United States Attorney, with
whom Nathaniel R. Mendell, Acting United States Attorney, was on
brief, for appellee.
December 17, 2021
* Of the United States Court of International Trade, sitting
by designation.
KAYATTA, Circuit Judge. In 2009, Wayne Hunt became one
of the first people to be civilly committed under the Adam Walsh
Child Protection and Safety Act of 2006, Pub L. No. 109–248, 120
Stat. 587 (2006) ("Adam Walsh Act"), which authorizes additional
civil commitment of someone already in federal custody if the
government shows that he is a "sexually dangerous person." 18
U.S.C § 4248. In 2012, Hunt was discharged from this commitment
under conditions, including that he receive mental health
treatment and supervised probation.
The Adam Walsh Act also provides a path to unconditional
discharge upon a showing that the committed individual would not
be "sexually dangerous to others" if so released. 18
U.S.C. § 4248(e)(1). In 2018, Hunt moved for an unconditional
discharge,1 thereby initiating the proceedings leading to the
instant appeal. After a hearing in October 2019, the district
court found that, while it was a close question, Hunt had failed
to make the required showing. The court did eventually remove
many of his conditions, including those requiring treatment. Hunt
argues on appeal that the court erred in denying his unconditional
1 Hunt's motion for unconditional discharge was occasionally
referred to below as a "petition." However, the United States is
stylized as the "petitioner" in the case caption because this
appeal is part of the larger civil action that commenced with the
government's initial action in 2007 to have Hunt committed.
Accordingly, we refer to Hunt's filing as a "motion" throughout
this opinion to avoid confusion.
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discharge motion and that the statute compels his discharge in the
absence of any remaining treatment conditions. For the reasons
that follow, we find no reversible error in the district court's
decision.
I.
A.
Wayne Hunt is an admitted pedophile who, decades ago,
engaged in sexual acts with dozens of children as young as seven
from the time he was twenty-seven years old. United States v.
Hunt, 643 F. Supp. 2d 161, 162, 164–66 (D. Mass. 2009). He has
been convicted of multiple state and federal crimes stemming from
this conduct, including aggravated rape and the kidnapping of a
twelve-year-old boy.
Id. at 165–66. He committed his last offense
in 1985 and was most recently imprisoned for his crimes between
1985 and 2007.
Id. at 165–67.
As Hunt was approaching the end of his prison sentence,
the Bureau of Prisons (BOP) certified him under the Adam Walsh Act
as a "sexually dangerous person," which the Act defines as "a
person who has engaged or attempted to engage in sexually violent
conduct or child molestation and who is sexually dangerous to
others."2 18 U.S.C. § 4247(a)(5); Hunt,
643 F. Supp. 2d at 162,
2 Hunt remained incarcerated between the end of his criminal
sentence and the trial on his civil commitment, pursuant to the
automatic stay provision of the Adam Walsh Act. See Hunt, 643 F.
Supp. 2d at 162; 18 U.S.C § 4248(a).
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167. That certification initiated the proceedings that culminated
in the 2009 trial at which the government proved by clear and
convincing evidence that Hunt was sexually dangerous to others.
See Hunt, 643 F. Supp. 2d at 162. That finding led to his civil
commitment at FCI Butner in North Carolina, where Hunt successfully
participated in sex-offender-specific therapy for several years.
In 2012, Hunt moved for and was granted conditional
release under a "prescribed regimen of medical, psychiatric, and
psychological care," with the supervision of United States
Probation ("Probation"). See 18 U.S.C. §§ 4247(h), 4248(e)(2).
Altogether, Hunt was subject to thirty-two conditions in his
initial discharge, which, beyond requiring the prescribed medical
care, also limited his contact with minors and his use of
computers, required regular polygraph examinations, and imposed a
curfew. Since August 2012, he has lived at the New England Center
for Homeless Veterans in Boston without any noted violations of
these conditions. Throughout that time, Hunt has engaged in sex-
offender therapy with Dr. John Cusack, starting with weekly
individual sessions and a sex-offender group program, then
transitioning to monthly individual sessions supplemented with
monthly "maintenance/check-in" group meetings.
Hunt, now seventy-five years old, has been partially
paralyzed from a medical condition. His limited mobility confines
him to a wheelchair. He also contends with a partially collapsed
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lung and a heart infection. To manage chronic nerve pain, he takes
gabapentin, which he reports has also resulted in declining sexual
functioning.
After almost six years of satisfying his conditions of
release, Hunt moved in October 2018 for a hearing on his
eligibility for unconditional discharge from commitment under the
Adam Walsh Act. See 18 U.S.C. §§ 4247(h), 4248(e)(1). The
government responded that the motion was "premature" but that it
was "open to revisiting" Hunt's motion once he had completed
treatment in early 2019. Accordingly, Hunt renewed his motion in
March 2019 and asked the court to appoint his chosen examiner,
Dr. Joseph Plaud, to perform a psychological examination and sex-
offender risk assessment of him. See
id. § 4247(b). The
government opposed Hunt's renewed motion for unconditional
discharge, and the district court permitted the appointment of
Dr. Plaud, setting the stage for a hearing on the discharge motion.
B.
At the October 2019 hearing, the district court heard
testimony from the appointed examiner, Dr. Plaud, and from Hunt
himself. The court also received three documents into evidence:
a summary of supervision by Probation, Dr. Plaud's report of his
findings and opinion, and Dr. Plaud's CV. The government offered
no evidence of its own.
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1.
Probation's report largely credited Hunt's compliant
behavior. It noted that Hunt had consistently worked with
Dr. Cusack on his treatment regimen, and that he had progressed
through several stages of the rehabilitation program over time.
In addition to installing monitoring software on his laptop, Hunt
has been subject to regular polygraph testing to monitor
compliance. Probation documented no violations of his conditions.
However, the report noted two incidents "worth mentioning":
(1) Hunt had watched a non-pornographic movie titled "Slutty
Summer" that required follow-up in his treatment and (2) Hunt had
searched for sexual lubricants and "sexual toys" on Amazon. Hunt
later explained that he had been searching for lubricant for
medical reasons3 and that this search "led him to look at sexual
toys."
The report also discussed Hunt's "limited social support
system," which includes regular contact with his daughter, who
lives in upstate New York, and friendly interactions with other
members of the veterans' home where he has resided since his
release in 2012. The report observed that "[t]he probation office
continues to be an ongoing support in Mr. Hunt's life and continues
to provide him with face to face interactions to reinforce his
3 Dr. Plaud's report noted that Hunt used a catheter.
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positive progression." Hunt later acknowledged in his testimony
that he had a good relationship with his probation officers, and
he agreed that their involvement in his life was not "too onerous."
2.
Dr. Plaud, an expert in sex offender treatment,
consulted Hunt's medical records, conducted a clinical interview,
and discussed Hunt's treatment with his provider, Dr. Cusack. In
the fourteen-page report admitted at Hunt's discharge hearing,
Dr. Plaud diagnosed Hunt with pedophilic disorder based on Hunt's
"history," but stressed that he found "no indication in the present
tense, or going back in time multiple years, that there is
recurrent, intense sexually arousing fantasies, sexual urges, or
behaviors involving sexual activity with a prepubescent child or
children." Dr. Plaud concluded that Hunt was not a sexually
dangerous person, and that his "offense risk level" at the time of
the report in 2019 was "not in keeping with an individual who has
serious difficulty in refraining from sexually violent conduct or
child molestation if the conditions of his present supervised
release are removed." Dr. Plaud also noted that these assessments
were shared by Hunt's regular treatment provider, Dr. Cusack, whom
he quoted as saying, "I couldn't have asked Mr. Hunt to do any
better in the multiple years I've known him."
In his testimony, Dr. Plaud reinforced these
conclusions. For example, he noted that while the diagnosis of
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pedophilic disorder was compelled based on Hunt's history, "the
strength of the diagnosis, is such, in Mr. Hunt's case today, that
it's negligible," and "if there was a provision for remission [in
the Diagnostic and Statistical Manual of Mental Disorders (DSM-
V)], [he] would have found it most definitely in this case." On
cross-examination, Dr. Plaud acknowledged that he did not
undertake two specific exercises for empirically measuring sexual
offense risk: a "penile plethysmograph" or "PPG" (a test that
measures penile engorgement while viewing stimuli), and a "Static-
99r" (an actuarial measurement).4
Later in the hearing, the district court engaged in a
brief colloquy with Probation, which acknowledged Dr. Cusack's
support for Hunt and agreed that Dr. Plaud's characterization of
Dr. Cusack's opinions was "spot on."
Hunt then testified at length about his physical and
mental condition, the progress he had made, and that he had learned
how to experience empathy. Regarding his pedophilia, he said
"[y]ou know, the first thing that you got to do is know that
there's no cure. You've got to manage." He testified several
times to his present lack of sexual desire and fantasies. The
4 Dr. Plaud did not conduct the PPG because, in his judgment,
it would have "flatlined," given Hunt's age and medical issues.
He did not score a Static-99r because he believed the number would
have been "invalid" and "meaningless" given Hunt's age and
incident-free time in the community.
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district court later noted that Hunt struck the court as "sincere
and forthright, and honest, with a lot of insight," and the court
was "persuaded that Mr. Hunt has progressed successfully, compared
to when he was released."
3.
Nonetheless, in an oral decision issued at the hearing,
the district court found that Hunt had not met his burden to show
that he would not be sexually dangerous to others if released
unconditionally. The court therefore denied his motion for
unconditional discharge. At the same time, the court indicated it
would be open to lifting many of Hunt's conditions. The district
court primarily based its decision on: (1) Hunt's testimony that
he continued to "manage[] this every day"; (2) Hunt's past offense
conduct; and (3) a concern that the court was not sure how Hunt
would act without the supervision and accountability that had been
so helpful to him. The court acknowledged, though, that "[i]t is
a difficult thing to . . . prove, when you're on supervision,
that . . . you won't have serious difficulty when you're not."
The court's decision expressly did not rely on the absence of the
two tests that the government had asked Dr. Plaud about, though
the court did note that it disagreed with Dr. Plaud about the
usefulness of continued treatment for Hunt "once [he'd] learn[ed]
the skills" to manage his behavior.
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The district court also clarified at several points that
it understood Hunt's conditions of release were on a tapering
trajectory, and that it anticipated any remaining conditions would
continue on that path. For example, the court noted that it had
"delayed" the hearing5 from Hunt's 2018 motion in part because of
Hunt's planned transition to less frequent therapy. The court
then concluded its oral decision by noting that Hunt was "doing
very well. Tapering, in my oversight role, seems reasonable."
After the hearing, the court did lift many of Hunt's
conditions. The remaining "less restrictive conditions" govern
the logistics and routine details of Hunt's interactions with
Probation, prohibit unsupervised contact with minors (absent
authorization by Probation), bar Hunt from loitering around
"places where minors congregate," require Hunt to submit to
polygraph exams as requested by Probation, and require that Hunt
notify Probation before travelling outside the district. The
revised conditions do not include any requirement that Hunt
participate in treatment.
II.
Under the Adam Walsh Act, the Bureau of Prisons may
certify someone in its custody as a "sexually dangerous person,"
5 This was the district court's terminology, though we note
that the 2018 motion was actually denied without prejudice to
refile.
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who then, after a hearing and appropriate findings, may be civilly
committed to the custody of the Attorney General. 18 U.S.C.
§ 4248(a), (d). A "sexually dangerous person" is someone "who has
engaged or attempted to engage in sexually violent conduct or child
molestation" and "is sexually dangerous to others," which in turn
means the person: (1) "suffers from a serious mental illness,
abnormality, or disorder"; and (2) 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).
The Act also provides two paths for the "[d]ischarge" of
a person who has been so committed.6 Id. § 4248(e). First, if a
court finds by a preponderance of the evidence that the person
"will not be sexually dangerous to others if released
unconditionally," it "shall order that [the person] be immediately
discharged." Id. § 4248(e)(1). Alternatively, a court can
conditionally release someone who would not be sexually dangerous
"if released under a prescribed regimen of medical, psychiatric,
or psychological care or treatment," and thus "order, as an
explicit condition of release . . . treatment." Id. § 4248(e)(2).
If someone is released conditionally under this provision, the
6 The Act describes the substance of the discharge criteria
in terms of a hearing after certification from the director of a
facility housing a committed individual, 18 U.S.C. § 4248(e),
though in another section it provides equivalent procedures and
relief upon motion by the committed individual, regardless of
whether the director has certified,
id. § 4247(h).
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court may modify or eliminate "the regimen of . . . treatment"
after a hearing. Id. § 4248(e)(2)(B).
In this context, we take a three-tiered approach to
appellate review: We review questions of law de novo, questions
of fact for clear error, and "appl[ication of] a general standard
to specific facts" with "some deference" to the court below.
United States v. Carta, 592 F.3d 34, 39 (1st Cir. 2010) (citing
United States v. Jahagirdar,
466 F.3d 149, 156 (1st Cir. 2006)
(describing the standard for applying law to facts as "abuse of
discretion")); see also United States v. Volungus,
730 F.3d 40, 46
(1st Cir. 2013) (citing Carta for the "some deference" formulation
in discussing the Adam Walsh Act).
On appeal, Hunt asserts that the district court
erroneously concluded he had failed to show he would not be
sexually dangerous to others if released unconditionally. He also
contends that the Adam Walsh Act compels his complete discharge
because there is no statutory basis for his continued supervision
absent a condition of treatment. We consider these two challenges
in turn.
A.
We turn first to Hunt's challenge to the district court's
finding that he had not shown he would not be sexually dangerous
to others if released unconditionally. The burden to make this
showing by a preponderance of the evidence rests with Hunt. See
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United States v. Wetmore, 812 F.3d 245, 246 (1st Cir. 2016). He
takes issue with both prongs of the "sexually dangerous to others"
finding, namely: (1) whether he suffers from a "serious mental
illness," and (2) whether he would have "serious difficulty in
refraining from sexually violent conduct" if released
unconditionally.
1.
The conditions that may constitute a "serious mental
illness, abnormality, or disorder" are not "delimited by the
consensus of the medical community." Carta, 592 F.3d at 39.
"[O]ne will search § 4247(a)(6) in vain for any language purporting
to confine the universe of qualifying mental impairments within
clinical or pedagogical parameters," and, accordingly, "it has
been left to the courts to develop the meaning of 'serious mental
illness, abnormality, or disorder' as a legal term of art." United
States v. Caporale,
701 F.3d 128, 136 (4th Cir. 2012) (citation
omitted).
Here, the district court was persuaded that Hunt
suffered from such an illness. The government argues that there
is no "legitimate dispute" on this prong because all parties agree
that Hunt has been diagnosed with pedophilic disorder. Cf. Carta,
592 F.3d at 40–41 (explaining that the umbrella condition
"paraphilia," which includes pedophilia and other sexual
fixations, constitutes a "serious mental illness" for purposes of
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the Adam Walsh Act). Hunt, however, argues that his disorder
cannot be characterized per se as a "serious" one, because, as
reported by Dr. Plaud, Hunt will always carry this diagnosis due
to his history and the fact that the DSM-V does not include a
provision for remission of his disorder. Indeed, Dr. Plaud
testified that the severity of the diagnosis in Hunt was
"negligible."7
That may be so, but Hunt himself testified that this is
a lifelong condition with "no cure" and that he "manage[d]" it
every day. The district court expressly relied on this testimony
in reaching its final decision.8 The court also stated that it
was not fully convinced by Dr. Plaud's assessment that continued
treatment would have limited value for Hunt. In light of these
bases for the court's finding that Hunt's pedophilia was a serious
mental illness, and the lack of an authoritative rubric for grading
7 Nonetheless, Dr. Plaud also testified, "I would say [Hunt]
meets th[e serious mental illness] prong" of the test because of
his diagnosis. He reconciled this with his earlier testimony about
the strength of the diagnosis by concluding: "I would temper --
I'd give him half a point" for this prong.
8 We recognize that it is not entirely clear from the record
for which element of the sexual dangerousness inquiry the district
court invoked this testimony, but no party has argued that the
court improperly cited it for the purposes of the "serious
difficulty" prong, rather than for the "serious mental illness"
prong.
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the seriousness of one's illness, we defer to the district court's
assessment of Hunt's condition.9
2.
Hunt's more substantial argument is that the district
court erred in finding that he had failed to meet his burden to
show that he would not have "serious difficulty in refraining from
sexually violent conduct." 18 U.S.C. § 4247(a)(6). We have
previously noted that "the question of . . . risk of future
offense" for sexually dangerous persons is "by no means an easy
one." United States v. Shields,
649 F.3d 78, 89 (1st Cir. 2011).
That is no less true here, where even the government declined to
argue below that Hunt had not met his burden. Nonetheless, the
district court correctly observed that even if both parties were
to agree that Hunt had met his burden, the court could find that
was not so.
We are not in a position to reweigh afresh the evidence
presented before the district court. Reviewing that court's
decision with some deference, as we must, we cannot say that the
court erred when it found that Hunt had not yet met his burden.
The district court carefully considered Hunt's evidence about his
treatment and his physical condition and noted that "[t]his is a
9 Because of the difficulties of drawing lines around the
severity of particular diagnoses, arguments about the severity of
a given case may be better directed to the second prong of sexual
dangerousness, regarding volitional control.
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close and difficult case." It often expressly credited Hunt's
progress and his candor before the court. We do have some concern
that, despite this consideration, the district court gave
seemingly little weight to Hunt's physical impairments in its
ultimate ruling. That being said, the court placed decisive weight
on the difficulty of determining whether Hunt's spotless record
and success was dependent in part on the conditions that he sought
to remove. Unconvinced on this point, the district court opted
for a "tapering" approach, eliminating many of the conditions,
including further mandatory treatment, but leaving in place for
the moment conditions concerning Hunt's beneficial relationship
with Probation.
We agree with the district court that this is a close
call. But given the statute's placement of the burden on Hunt and
the deference we must give to the district court's fact-finding,
we are unable and unwilling to second guess the district court's
conclusion. In so deciding, we note that no party disputes that
Hunt can now renew his motion for release from the remaining
conditions. See 18 U.S.C. §§ 4247(h), 4248(e). As the issues
here are fact-bound, and Hunt has now presumably been living under
his tapered conditions for the past two years, nothing in this
opinion should be construed to limit Hunt's future attempts to
seek final release from all conditions. This is not a case where
the imposition of conditions should be indefinitely self-
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justifying. To the contrary, the logic of the district court's
tapering objective suggests that, absent evidence of any
backtracking, Hunt should now be well-positioned to renew his
request.
B.
Hunt's remaining argument is that the removal of his
treatment conditions in the district court's latest modifications
renders his continued supervision contrary to statute. In short,
he argues that once the court found that treatment was no longer
necessary, it lacked the statutory authority to impose any other
conditions.
Hunt never raised this argument below. Indeed, when
informed of the court's decision and invited to make a further
filing, Hunt preserved only his contention that he was not a
"[s]exually [d]angerous [p]erson" and thus should be subject to no
conditions at all. Had Hunt raised the textual argument that he
now raises, it is not at all clear what the effect would have been,
given the district court's apparent reliance on Hunt's
representations that he would continue treatment. On appeal, Hunt
concedes that how best to read the statute on this point is not
"pellucid." Hence, even were we to give Hunt the benefit of plain
error review, we would find here that Hunt has not established
that he would have secured a more favorable result had he raised
the argument. That said, nothing in this opinion should be read
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to foreclose the district court's consideration of this argument
in future proceedings, should it have occasion to do so.
III.
For the foregoing reasons, the district court's decision
denying Hunt's motion for unconditional discharge is affirmed.
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