742 F.3d 151 (4th Cir. 2014), 12-2400, United States v. Antone

Docket Nº:12-2400
Citation:742 F.3d 151
Opinion Judge:DAVIS, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Petitioner - Appellee, v. BYRON NEIL ANTONE, Respondent - Appellant
Attorney:Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Michael Bredenberg, FMC BUTNER FEDERAL MEDICAL CENTER, Butner, North Carolina, for Appellee. Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, OFFICE O...
Judge Panel:Before GREGORY, DAVIS, and WYNN, Circuit Judges. Judge Davis wrote the opinion, in which Judge Gregory and Judge Wynn joined.
Case Date:February 04, 2014
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 151

742 F.3d 151 (4th Cir. 2014)

UNITED STATES OF AMERICA, Petitioner - Appellee,

v.

BYRON NEIL ANTONE, Respondent - Appellant

No. 12-2400

United States Court of Appeals, Fourth Circuit

February 4, 2014

Argued: December 11, 2013.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. (5:07-hc-02042-FL-JG). Louise W. Flanagan, District Judge.

ARGUED:

Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant.

Michael Bredenberg, FMC BUTNER FEDERAL MEDICAL CENTER, Butner, North Carolina, for Appellee.

ON BRIEF:

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant.

Thomas G. Walker, United States Attorney, R.A. Renfer, Jr., Joshua B. Royster, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before GREGORY, DAVIS, and WYNN, Circuit Judges. Judge Davis wrote the opinion, in which Judge Gregory and Judge Wynn joined.

OPINION

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DAVIS, Circuit Judge:

Respondent-Appellant Byron Neil Antone appeals the district court's order of his civil commitment under the Adam Walsh Child Protection and Safety Act of 2006 (" the Walsh Act" ), codified at 18 U.S.C. § § 4247-48. Four days before he was to be released from federal prison, an official of the Federal Bureau of Prisons certified Antone as a sexually dangerous person eligible for civil commitment. Upon referral of the ensuing proceedings by the district court, a federal magistrate judge held a three-day evidentiary hearing and thereafter issued a report and recommendation that Antone should not be found to be a sexually dangerous person. The district court adopted the majority of the magistrate judge's factual and credibility determinations, but it ultimately found that the Government had satisfied its burden under the Walsh Act to prove that Antone was a sexually dangerous person, and it committed him to civil custody.

Upon our careful review of the appellate record, we conclude that the district court lacked sufficient evidence to find that Antone met the standard for civil commitment under the Walsh Act. Specifically, the Government did not present clear and convincing evidence that Antone's mental illnesses would cause him to have serious difficulty refraining from sexually violent conduct. Accordingly, we reverse.

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I.

A.

Byron Neil Antone, now forty-one years old, was born in and raised on the Tohono O'odham Indian Reservation in south central Arizona.1 Until age nine or ten, Antone was raised by his mother; after that point, he resided with his grandmother and his godmother.

Antone's mother and grandmother were heavy drinkers and Antone was often neglected and verbally and physically abused as a child. At seven years old, Antone was on several occasions sexually abused by his aunt, who was a teenager at the time. By the time he was fifteen years old, he had had sexual intercourse with at least two adult women, one of whom was twenty-six.

Antone had serious behavioral issues as a child, which led to school expulsions and stints in juvenile detention. He dropped out of high school in ninth grade. He did not maintain steady employment thereafter, although he was employed seasonally as a firefighter with the United States Forestry Service and had attended specialized training classes in that field.

In 1991, when Antone was nineteen years old, he was arrested and charged with sexual misconduct with a minor, sexual abuse, and contributing to the delinquency of a minor. The arrest related to two sexual acts with a sixteen-year-old who was Antone's girlfriend at the time. The first sexual act was consensual, but the second was forcible rape. Antone pled guilty to the sexual abuse charge in the Judicial Court of the Tohono O'odham Nation (" tribal court" ) and served about six months in jail.

In 1997, tribal authorities charged Antone with threatening and disorderly conduct. He admitted to rubbing the buttocks of his cousin, then twenty-one years old, while she was sleeping on the couch. He was sentenced to 60 days in tribal jail.

From 1998 to 1999, Antone was charged by tribal authorities for several acts of sexual misconduct, which resulted in a consolidated plea agreement and tribal judgment entered on March 16, 1999. The consolidated tribal judgment related to four victims and spanned incidents from 1992 through 1997:

1) Forcible rape of a fourteen or fifteen-year-old in 1992 or 1993.

2) Touching of the crotch area of an eleven-year-old in 1996. 3) Sexual assault of C.R., a woman of unknown age, in June 1997. During this incident, Antone tried to force C.R. to have sex with him, and when she refused, he threw her on the bed, held her hands down, touched her breasts, and touched her crotch area. C.R. was able to escape by jumping out of her bedroom window. 4) Forcible rape of R.J., age twenty-five, in November 1997. During this incident, R.J. awoke to find Antone on top of her. He then forced her to have sex for five to fifteen minutes.

Antone pled guilty to charges related to these four incidents in the consolidated plea agreement. He was sentenced to 3,600 days in jail by the tribal court.

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Almost all of the incidents described above, and certainly the June and November 1997 incidents, took place when Antone was either intoxicated from alcohol and/or high on cocaine. Indeed, Antone has a serious history of substance abuse. When he was arrested in February 1998, he was drinking 3 to 5 quarts of beer a day on average, and up to 11 quarts on some days. He was also abusing a number of drugs, including marijuana, LSD, and crack cocaine. As a result, Antone has little to no recollection of these incidents.

In November 1999, Antone was sentenced in the United States District Court for the District of Arizona on a sexual assault charge. The particular charge related to Antone's assault against C.R. in June 1997, which was also a subject of his consolidated tribal judgment. In addition, Antone admitted in the federal plea agreement to sexual misconduct as to all the incidents covered in the tribal court convictions.

According to the testimony of Antone's attorney at the time, which the magistrate judge fully credited, the federal criminal charge was actually initiated by Antone and his attorney. " The reason was to enable [Antone] to be transferred to federal custody and thereby have access to sex offense treatment at FCI-Butner, which [the attorney] believed would be designed specifically for Native Americans." J.A. 845.

The federal district court in Arizona sentenced Antone to 114 months of incarceration, with credit for time served, and 60 months of supervised release. The plea agreement reflected Antone's request to receive sex offender treatment in federal custody, and the district court included a recommendation in its judgment that Antone participate in the residential drug treatment and sex offender treatment programs.

B.

In accordance with the federal judgment and commitment order, Antone was incarcerated in the federal Bureau of Prisons system from November 1999 through February 23, 2007, when the Government initiated the instant proceeding four days before his expected release. Since then, Antone has resided in FCI-Butner, a medium security correctional institution in North Carolina, awaiting his civil commitment hearing and its resolution. As a result, Antone has been in continuous federal custody for the past fourteen years, or since he was twenty-seven years old.

During the entire period of his federal custody, Antone has not been shown to have consumed alcohol or drugs. Antone's prison record contains no sanctions or nonsanctioned incidents related to alcohol or drugs, and he testified that he has been sober for fourteen years. The Bureau of Prisons regularly administers Breathalyzer tests on inmates in recognition of the fact that it is possible to make and obtain contraband alcohol within the prison. Antone has never tested positive on those tests.

Antone has attended Alcoholics Anonymous and Narcotics Anonymous on his own initiative. He attended meetings during the first year and a half of his prison term and restarted about a year before his commitment hearing. He also completed a Drug Education Program and a non-residential substance abuse program.

Antone's behavioral problems while in prison have been minimal. He has been sanctioned for four incidents, twice for fighting without serious injury and twice

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for minor rule violations; the last of these sanctions occurred in 2004.2 He obtained his GED in 2001. In addition, he has maintained employment as an orderly in his housing unit. His work performance therein was characterized as " superior." J.A. 843.

Antone regularly seeks out advice and counseling from his prison's counselors and treatment specialists. In particular, he has asked his counselors how to communicate with his son, with whom he corresponds by mail, and for advice on anger management. Antone has taken classes in art, beading, meditation, and guitar. He teaches other inmates how to play the guitar.

As for sexual conduct, Antone's record indicates that he has " not engaged in sexual misconduct during his extended incarceration." J.A. 882. At the time of the evidentiary hearing, however, he had not attended sex offender therapy or treatment. Antone and his former attorney testified that he had made several requests for treatment at the early side of...

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