United States v. Antone
| Decision Date | 24 September 2012 |
| Docket Number | 5:07-HC-2042-FL |
| Parties | UNITED STATES OF AMERICA, Petitioner, v. BYRON NEIL ANTONE, Respondent. |
| Court | U.S. District Court — Eastern District of North Carolina |
This matter is before the court for a determination of whether respondent Byron Neil Antone ("respondent") should be committed as a sexually dangerous person pursuant to 18 U.S.C. § 4248 ("§ 4248"). Pursuant to 28 U.S.C. § 636(b)(1)(B), an evidentiary hearing was held before United States Magistrate Judge James E. Gates, who entered a memorandum and recommendation (DE # 114) ("M&R") wherein he recommends that the court find respondent is not a sexually dangerous person. Petitioner filed objections to the M&R, along with supplemental authority. Respondent has responded to the objections. In this posture, the issues raised are ripe for ruling. For the reasons that follow, the court finds that respondent is a sexually dangerous person and commits him to the custody of the Attorney General pursuant to § 4248.
The procedure for commitment under § 4248 was enacted as part of the Adam Walsh Child Safety and Protection Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (2006) (hereinafter "Adam Walsh Act"). The statute authorizes the government to certify for commitment individuals within the custody of the Bureau of Prisons ("BOP"). 18 U.S.C. § 4248(a). Such certification automatically stays the person's release from custody, pending completion of the § 4248proceedings, despite the expiration of the incarcerative portion of the person's criminal sentence. Id.
The government initiated this action by filing its certification of respondent as a sexually dangerous person on February 23, 2007. At the time, respondent was serving a term of 114 months imprisonment in the BOP for his 2002 conviction in the District of Arizona for aggravated sexual abuse. His projected date for release from criminal confinement was February 27, 2007, but the filing of the certification stayed his release.
The court designated the magistrate judge to conduct an evidentiary hearing and to submit proposed findings of fact and recommendations for the disposition of the commitment petition, pursuant to 28 U.S.C. § 636(b)(1)(B) and (b)(3).1 The parties may object to the magistrate judge's findings and recommendations, and the court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). Absent a specific and timely filed objection, the court reviews only for "clear error" and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983). Upon careful review of the record, the court may "accept, reject, or modify, in whole or inpart, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).
To obtain a commitment order pursuant to § 4248, the government must prove by clear and convincing evidence that the person
(1) "has engaged or attempted to engage in sexually violent conduct or child molestation" in the past, 18 U.S.C. § 4247(a)(5);
(2) currently "suffers from a serious mental illness, abnormality, or disorder"; and
(3) as a result of the illness, abnormality or disorder, "would have serious difficulty in refraining from sexually violent conduct or child molestation if released," 18 U.S.C. § 4247(6). See United States v. Hall, 664 F.3d 456, 461 (4th Cir. 2012).
"[C]lear and convincing has been defined as evidence of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established, and, as well, as evidence that proves the facts at issue to be highly probable." Hall, 664 F.3d at 461 (quoting Jimenez v. DaimlerChrysler Corp., 269 F.3d 439, 450 (4th Cir. 2001) and citing Addington v. Texas, 441 U.S. 418, 423-24 (1979).
Petitioner does not object to the magistrate judge's findings of historical fact (M&R, § IV, pp. 13-30), nor his determination that respondent has engaged in sexually violent conduct and child molestation, establishing the first element for commitment (M&R, § VII.B, pp. 55-56). The court hereby adopts those findings as if fully set forth herein. With the exception of the testimony of Anne Schauder, which, as described below, is irrelevant and will not be considered, the court adopts the magistrate judge's findings and credibility determinations related to lay witness testimony (M&R,§ V, pp. 30-33). Finally, the court adopts the unchallenged findings of the magistrate judge that respondent suffers from polysubstance dependence and does not suffer from borderline personality disorder, depressive disorder, frotteurism, or paraphilia NOS, hebephilia (M&R, § VII.C, pp. 56-57, 59-60, 67-68).
Petitioner first objects to what it perceives as the magistrate judge's application of a higher standard of proof than clear and convincing evidence. Petitioner argues, for example, that the magistrate judge applied an improper standard in his determination as to the existence of paraphilia not otherwise specified ("NOS"), nonconsent as a valid diagnosis, and whether respondent's sexual offense conduct resulted from his substance abuse rather than paraphilia NOS, nonconsent or antisocial personality disorder. Notwithstanding the petitioner's objections, the magistrate judge applied the proper standard of review. Nevertheless, because petitioner has specifically objected to the magistrate court's findings with regard to the diagnoses of paraphilia NOS, nonconsent and antisocial personality disorder and how those conditions affect his behavior and volitional control, the court will conduct a de novo review of these findings, as described below. The court will apply the clear and convincing evidence standard to its de novo review.
Petitioner next objects to the magistrate judge giving greater weight to the opinions of Dr. Roy Daum than those of Dr. Amy Phenix and Dr. Manuel Gutierrez. The court has conducted a de novo review of the reports and testimony provided by each expert and considered the appropriate weight to be given. The court specifically overrules petitioner's objections to the qualifications ofDr. Daum and finds that he is qualified to provide his expert opinion. The court's analysis of the expert evidence is provided below.
Third, petitioner objects to the magistrate judge's conclusion that paraphilia NOS, nonconsent is not a valid diagnosis. The magistrate judge determined that the government failed to prove that paraphilia NOS, nonconsent is a disorder that exists among the population generally. Although extensively debated among the psychological community, it has not been adopted for inclusion in the Diagnostic and Statistical Manual of Mental Disorders (DSM), a near-universally accepted resource for the classification of psychological conditions. However, "the reach of section 4248 is not limited to the specific conditions listed in the DSM." United States v. Carta, 592 F.3d 34, 41-42 (1st Cir. 2010). The Fourth Edition, text revision of the DSM ("DSM-IV-TR"), the current version of the reference, defines "paraphilia" as "recurrent, intense sexually arousing fantasies, 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." DSM-IV-TR 566 (emphasis added). The fact that the definition of "paraphilia" itself contemplates nonconsenting persons gives credence to the validity of paraphilia NOS, nonconsent as a diagnosis. The court finds that although paraphilia NOS, nonconsent is not specifically included in the DSM, the term could conceivably be used to describe a person with abnormal sexual arousal toward nonconsenting sexual encounters. Furthermore, such a condition could conceivably meet the statutory definition of a serious mental illness, abnormality, or disorder for purposes of § 4248 commitment. In deciding whether respondent actually suffers from such a condition, the court has considered the debate among the psychological community as to the validityof the diagnosis. As described below, the court finds that petitioner has failed to prove that respondent suffers from a paraphilic disorder characterized by arousal to nonconsensual sexual encounters.
Fourth, petitioner objects to the magistrate judge's conclusion that respondent does not suffer from paraphilia NOS, nonconsent. Although the magistrate judge found paraphilia NOS, nonconsent is not a diagnosis that has been shown to exist generally in the population, he nevertheless considered whether respondent individually suffers from a disorder characterized by abnormal arousal toward nonconsensual sexual encounters.2
The court has conducted a de novo review of the record and concludes that petitioner has failed to prove that respondent suffers from a paraphilic disorder characterized by arousal to nonconsenting sexual encounters. The court is not clearly convinced that respondent is specifically aroused to the nonconsenting aspect of his sexual offense conduct. Instead, the court finds it more likely that respondent was aroused by his victims themselves, rather than specifically by their nonconsent.
As described below, however, the court finds that respondent's other mental conditions cause him serious difficulty in controlling his sexual urges when confronted with the nonconsent and even violent resistance of his victims.
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