U.S. v. Volungus, 09-1596.

Decision Date08 January 2010
Docket NumberNo. 09-1596.,09-1596.
PartiesUNITED STATES of America, Petitioner, Appellant, v. John Charles VOLUNGUS, Respondent, Appellee.
CourtU.S. Court of Appeals — First Circuit

Samantha L. Chaifetz, Attorney, Appellate Staff, Civil Division, United States Department of Justice, with whom Tony West, Assistant Attorney General, Michael K. Loucks, Acting United States Attorney, Beth S. Brinkmann, Deputy Assistant Attorney General, and Mark B. Stern, Attorney, Appellate Staff, were on brief, for appellant.

Judith H. Mizner, Assistant Federal Public Defender, for appellee.

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

SELYA, Circuit Judge.

We are called upon to determine the constitutionality of a provision of the Adam Walsh Child Protection and Safety Act (Walsh Act), Pub.L. No. 109-248, 120 Stat. 587 (2006), a recently enacted federal law that provides in pertinent part for the civil commitment of a sexually dangerous person already in federal criminal custody in lieu of that person's release upon service of his full sentence. Id. § 320, 120 Stat. at 619-22, codified at 18 U.S.C. §§ 4241, 4247-4248 (which we shall call, as a shorthand, section 4248). The district court concluded that Congress lacked constitutional authority to enact this civil commitment provision and, therefore, dismissed the government's petition to enforce it against the respondent, John Charles Volungus. United States v. Volungus, 599 F.Supp.2d 68, 77-78, 80 (D.Mass.2009). The government appeals from that ruling.

After careful consideration, we hold that the civil commitment provision comes within the legitimate scope of congressional power conferred by the Necessary and Proper Clause of the federal Constitution. Consequently, we reverse the decision below and remand for further proceedings.


The challenged provision of the Walsh Act authorizes the government to seek court-ordered civil commitment of "sexually dangerous" persons who are in the custody of the federal Bureau of Prisons (BOP). 18 U.S.C. § 4248(a). A "sexually dangerous person" within the meaning of the Walsh Act is one "who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others." Id. § 4247(a)(5). A person is "sexually dangerous to others" if he "suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released." Id. § 4247(a)(6).

Mechanically, the Walsh Act's civil commitment provision operates in the following manner. A responsible federal official (the Attorney General, the director of the BOP, or the designee of either) may initiate commitment proceedings by petitioning the federal district court in the judicial district in which a targeted person is confined. Id. § 4248(a). The petition must certify to the court that the target, whom we shall call the respondent, "is a sexually dangerous person." Id. The filing of the petition stays the respondent's release from federal custody, notwithstanding the expiration of his sentence, "pending completion of procedures" described in the Walsh Act. Id.

Those procedures include an opportunity for the district court to order a mental health examination and to hold a "hearing to determine whether the [respondent named in the petition] is a sexually dangerous person." Id. § 4248(a)-(c); see id. § 4247(b)-(c). At the hearing, the respondent is entitled to counsel and to the opportunity "to testify, to present evidence, to subpoena witnesses on his behalf, and to confront and cross-examine" the government's witnesses. Id. § 4247(d).

In prosecuting such a petition, the government has the burden of proving "by clear and convincing evidence that the [respondent] is a sexually dangerous person." Id. § 4248(d). If the court finds that the government has carried this heavy burden, it must commit the respondent to the custody of the Attorney General. Id. The Attorney General is directed to defer to available state custody; that is, to "release the [respondent] to the appropriate official of the State in which [he] is domiciled or was tried if such State will assume responsibility for his custody, care, and treatment." Id. In addition, the Attorney General is required "to make all reasonable efforts to cause such a State to assume responsibility." Id. If such efforts prove unsuccessful, the Attorney General must retain federal custody and place the respondent in a suitable facility for treatment until either an eligible state "will assume ... responsibility" or the respondent's condition is ameliorated to the extent that "he can safely be released, either conditionally or unconditionally." Id.

The Walsh Act provides an array of post-commitment safeguards to ensure periodic reevaluation of a committed person's overall mental condition, potential dangerousness, and suitability for release. These include a requirement for an annual report setting forth a recommendation for or against continued commitment. Id. § 4247(e)(1)(B). If the director of the facility in which the person is confined determines that he is no longer sexually dangerous, the director must notify the court, which must either order the person's release or schedule a hearing to determine whether release is appropriate. Id. § 4248(e). The person himself, through counsel, may petition the court for such a hearing, but not within 180 days after a judicial determination that commitment is appropriate. Id. § 4247(h).

We turn now from the general to the specific. The respondent here, Volungus, was convicted of receipt of child pornography by means of a computer, possession of child pornography, and use of a facility of interstate commerce to attempt to persuade a minor to engage in a sexual act. See 18 U.S.C. §§ 2252(a)(2), 2252A(a)(5)(A), 2422(b). In June of 1999, the United States District Court for the Western District of Kentucky sentenced him to serve a 53-month incarcerative term, to be followed by a period of supervised release. The respondent served his initial prison sentence and embarked on his term of supervised release. He violated the conditions of his supervised release and, as a result, was haled into the United States District Court for the Northern District of New York. That court revoked the supervised release term and remanded him to federal prison for an additional 23-month period of incarceration.

Over time, the BOP housed the respondent in a number of different correctional facilities. The last of these was the Federal Medical Center Devens, in Ayer, Massachusetts (a prison hospital). The respondent was in custody there when the government, before the expiration of his extended term of immurement, commenced a civil commitment proceeding under section 4248 in the United States District Court for the District of Massachusetts. The respondent's release from prison, scheduled to take place when the sentence imposed following the revocation of supervised release expired on February 15, 2007, was stayed pending the outcome of the commitment proceeding. See 18 U.S.C. § 4248(a).

The respondent moved to dismiss the proceeding, making a facial challenge to the constitutionality of section 4248. The district court obliged, declaring the Walsh Act's civil commitment regime unconstitutional because Congress lacked the authority to enact it. See Volungus, 599 F.Supp.2d at 77-78. The court, however, stayed the respondent's release pending the consummation of this appeal. The respondent remains at Devens.

In this venue, the government argues that Congress had constitutional authority to enact section 4248 under both the Commerce Clause and the Necessary and Proper Clause. The two courts of appeals that thus far have examined the constitutionality of section 4248 have reached divergent conclusions. Compare United States v. Tom, 565 F.3d 497, 504-05 (8th Cir.2009) (upholding the provision), with United States v. Comstock, 551 F.3d 274, 284 (4th Cir.2009) (contra). The Supreme Court has granted certiorari in Comstock to resolve this conflict. ___ U.S. ___, 129 S.Ct. 2828, 174 L.Ed.2d 551 (2009). We decide this appeal now, however, because the timing of the Supreme Court's decision is uncertain, the respondent remains confined despite the expiration of his criminal sentence, and other petitions are currently being litigated in the courts of this circuit.


We review de novo challenges to the constitutionality of federal statutes. United States v. Hussein, 351 F.3d 9, 14 (1st Cir.2003); United States v. Bongiorno, 106 F.3d 1027, 1030 (1st Cir.1997). Before undertaking this review, we acknowledge some first principles.

As long as Congress acts within the sphere of its constitutional authority, it has the power to make criminal laws and to fashion penalties for noncompliance therewith. See Gonzales v. Raich, 545 U.S. 1, 15-17, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005); Champion v. Ames, 188 U.S. 321, 358-60, 23 S.Ct. 321, 47 L.Ed. 492 (1903); United States v. Fox, 95 U.S. 670, 672, 24 L.Ed. 538 (1877). In the criminal law arena, the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, typically furnishes the source of this congressional power. See, e.g., United States v. Lewis, 554 F.3d 208 214 n. 7 (1st Cir.2009) (discussing source of Congress's power to outlaw transmission of child pornography); United States v. Meade, 175 F.3d 215, 224-25 (1st Cir.1999) (discussing source of Congress's power to criminalize possession of a firearm by one subject to an anti-harassment order).

A certain degree of ancillary authority accompanies the power to enact and enforce criminal laws. One example of this ancillary authority is Congress's power to construct and operate a prison system. See, e.g., Ex parte Karstendick, 93 U.S. 396, 400, 23 L.Ed. 889 (1876); Estabrook v. King, 119 F.2d 607, 610 (8th Cir....

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