U.S. v. Carta

• Decision Date: 15 January 2010
• Docket Number: No. 09-2005.,No. 09-1949.,09-1949.,09-2005.
• Parties: UNITED STATES of America, Petitioner, Appellant/Cross-Appellee, v. Todd CARTA, Respondent, Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — First Circuit

592 F.3d 34

UNITED STATES of America, Petitioner, Appellant/Cross-Appellee, v. Todd CARTA, Respondent, Appellee/Cross-Appellant.

No. 09-1949.

No. 09-2005.

United States Court of Appeals, First Circuit.

Heard November 3, 2009.

Decided January 15, 2010.

Abby Wright and Samantha Chaifetz, Appellate Staff, Civil Division, Department of Justice, with whom Tony West, Assistant Attorney General, Michael K. Loucks, Acting United States Attorney, and Mark B. Stern, Appellate Staff, Civil Division, Department of Justice, were on brief for petitioner, appellant/cross-appellee.

Judith H. Mizner, Assistant Federal Public Defender, Federal Defender Office, for respondent, appellee/cross-appellant.

Before BOUDIN and SELYA, Circuit Judges, and LAPLANTE,^* District Judge.

BOUDIN, Circuit Judge.

The federal government sought to commit Todd Carta under the Adam Walsh Child Protection and Safety Act, Pub L. No. 109-248, 120 Stat. 587 (2006) ("Adam Walsh Act"). That statute authorizes civil commitment of a person already in federal custody, including one finishing a sentence after a criminal conviction, if the government shows that he is a "sexually dangerous person." 18 U.S.C. § 4248 (2006). The district court held that the government failed to make the necessary showing; the government now appeals, and Carta cross-appeals claiming that the statute is unconstitutional.

After pleading guilty to child pornography charges in October 2002, Carta was sentenced to five years in federal prison and three years of supervised release. Three years into his term, Carta requested and was granted a transfer to a federal prison in North Carolina offering a sex offender treatment program. Carta participated in the program for approximately seven months, but then withdrew without completing the program.

Carta's treating psychologist noted that even within the program, he exhibited problematic behavior: reinforcing the deviant beliefs of others in the program, denying that his behavior was inappropriate and acting impulsively. Further, Carta dropped out of the program partly because of his inability to curb his sexual interest in the program's younger participants, which resulted in restrictions being imposed on his contact with them.

In the course of the program, Carta disclosed details of his sexual and criminal history that prompted the government's invocation of the Adam Walsh Act's commitment procedures (in shorthand, "section 4248"). Carta described his primary sexual interest as children age 12 to 17 and his secondary interest as children age 7 to 11, and admitted to having a large child pornography collection; he usually stored between 10,000 and 20,000 images on his computer and spent 12 to 14 hours daily looking at child pornography prior to his arrest.

Carta further admitted to sexually abusing minors on many occasions, with his youngest victim being a child in diapers. Carta's long history of sexually abusing minors is detailed in the district court opinion, United States v. Carta, 620 F.Supp.2d 210, 212-14 (D.Mass.2009), and we draw on it (subject to a few corrections based on our own reading of the record).

• Between the ages of 11 and 13, Carta performed oral sex on a child in diapers who was no more than three or four years old one time and on the diapered-child's seven-year-old cousin about 10 times; the seven-year-old also performed oral sex on Carta.

• When he was 15 or 16, Carta shot with a BB gun a similar-aged male when the peer refused to engage in oral sex; later, Carta talked him into oral sex and they engaged in it approximately 10 times over a five year period.

• At age 21, on multiple occasions Carta engaged in oral sex with his 16-year-old nephew.

• Between ages 28 and 34, Carta committed multiple sexual offenses while following a rock band; among these were offering a 13-year-old boy concert tickets in exchange for oral sex and fondling and masturbating a 17 or 18-year-old male who was passed out from drug use in Carta's van.

• When Carta was 30 or 31, he began sexually abusing a 13-year-old boy, whom he had sexual contact with 30 to 40 times over a four year period and referred to as his "boyfriend."

• At age 33, he engaged in sexual contact on separate occasions with two 16-year-old males and one 16-year-old female, all of whom he met on the Internet.

• When Carta was 39, he met a 17-year-old male who started living with him; on at least one occasion, Carta orally copulated the 17-year-old's younger brother, who was 15 at the time. Carta also sexually abused a 13-year-old boy he met on the Internet, performing oral sex on him on multiple occasions; one time, Carta convinced the 13-year-old to have "three-way sex" with Carta and the 17-year-old.

On March 7, 2007—two days prior to Carta's scheduled good-time release date—the Bureau of Prisons certified that Carta, who was being held in a federal facility in Massachusetts, was a "sexually dangerous person" and began civil commitment proceedings under section 4248. Carta moved to dismiss, arguing the statute was facially unconstitutional on multiple grounds, but after a hearing the district court denied the motion. United States v. Carta, 503 F.Supp.2d 405, 407 (D.Mass.2007). The denial was without prejudice to an as-applied challenge, which Carta never made.

In February 2009, the district court held a three-day bench trial on whether Carta met the requirements for civil commitment under section 4248. Experts testified on both sides. The government expert, Dr. Amy Phenix, testified that, based on risk factors such as age, frequency of misconduct and lack of success in treatment, Carta would have serious difficulty in refraining from child molestation if released.¹ Dr. Phenix said that Carta suffered from a mental disorder known as "paraphilia not otherwise specified" that was characterized by "hebephilia."

Paraphilia is characterized by the Diagnostic and Statistical Manual of Mental Disorders ("DSM"), a commonly used reference book in the fields of psychiatry and psychology, as follows:

The essential features of a Paraphilia are recurrent, 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. . . .

Am. Psychiatric Ass'n, DSM 522-23 (4th ed. 2000). Carta's condition was described by Dr. Phenix as paraphilia not otherwise specified because hebephilia—loosely, sexual attraction to adolescents, Carta, 620 F.Supp.2d at 217—is not itself an abnormality specifically listed in the DSM nor is it one of the specific examples of paraphilia listed in the DSM. By contrast, pedophilia, sexual attraction to children before puberty, is a listed variety of paraphilia in the DSM. DSM, supra, at 527-28.

Dr. Bard, an expert designated at Carta's request, see 18 U.S.C. § 4247(b), conceded that Carta suffered from "numerous problems" but—based in part on Dr. Bard's own test results—concluded that Carta would not have serious difficulty in refraining from child molestation if released. Dr. Bard also asserted that hebephilia was not a generally accepted diagnosis in the mental health community, did not fit within the DSM definition of paraphilia, lacked diagnostic criteria and could not be consistently defined; that normal adults may find adolescents arousing; and that articles offered by the government to support a hebephilia diagnosis were not legitimate peer-reviewed research.

In June 2009, the district court ruled that the government had not proved by clear and convincing evidence that Carta was a "sexually dangerous person" within the meaning of the Adam Walsh Act. Carta, 620 F.Supp.2d at 226-27. Relying on Dr. Bard's reasoning, the district court concluded that Carta's diagnosis of paraphilia not otherwise specified characterized by hebephilia was not a "serious mental illness, abnormality, or disorder" under the statute. Id. at 222-27. Because having a defined mental condition is a prerequisite for commitment under section 4248, the court did not reach the separate question of whether Carta would have serious difficulty refraining from molestation if released. Id. at 229. We stayed Carta's release pending the government's expedited appeal.

Chapter 313 of the Criminal Code, 18 U.S.C. §§ 4241-4248, addresses competency to stand trial, disposition of those found not guilty by reason of insanity and treatment of those in custody who are found to be suffering from a mental disease or defect. One provision authorizes, and provides procedures for, id. §§ 4246(a)-(g), continued commitment of individuals in federal custody—otherwise due for release—where release would "create a substantial risk of bodily injury to another person or serious damage to property of another" by reason of a "mental disease or defect," id. § 4246(a).

Appended, with cross-references to the basic scheme, is a section added by the Adam Walsh Act that addresses civil commitment of "a sexually dangerous person" who is in the custody of the Attorney General or Bureau of Prisons; commitment may continue until that person is transferred to state care or "is no longer sexually dangerous to others" or until that danger can be controlled by outpatient care and treatment. 18 U.S.C. §§ 4248(a), (d). "Sexually dangerous person" and "sexually dangerous to others" are defined, and the former includes the requirements of the latter. Id. §§ 4247(a)(5),(6). The combination requires three elements:

a prior act (or attempted act) of "violent sexual conduct or child molestation";

"a serious mental illness, abnormality, or disorder"; and

a resulting "serious difficulty in refraining from sexually violent conduct or child molestation if released."

Carta does not deny that he has...