United States v. Bell, 17-6627

• Decision Date: 12 March 2018
• Docket Number: No. 17-6627,17-6627
• Citation: 884 F.3d 500
• Parties: UNITED STATES of America, Petitioner–Appellee, v. Kaylan Jay BELL, Respondent–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

884 F.3d 500

UNITED STATES of America, Petitioner–Appellee,

v.Kaylan Jay BELL, Respondent–Appellant.

No. 17-6627

United States Court of Appeals, Fourth Circuit.

Argued: January 30, 2018

Decided: March 12, 2018

ARGUED: Jaclyn Lee DiLauro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Christopher Michael Anderson, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Louis C. Allen, Acting Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, G. Norman Acker, III, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before NIEMEYER and TRAXLER, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed by published opinion. Judge Traxler wrote the opinion in which Judge Niemeyer and Senior Judge Shedd joined.

TRAXLER, Circuit Judge:

Under the Adam Walsh Child Protection and Safety Act of 2006 (the "Act"), 18 U.S.C. §§ 4247 – 4248, the government may civilly commit a "sexually dangerous person" to the custody of the Attorney General upon the expiration of the person’s prison sentence if the government proves by clear and convincing evidence that the person: (1) "has engaged or attempted to engage in sexually violent conduct or child molestation"; (2) "suffers from a serious mental illness, abnormality, or disorder"; and (3) as a result, "would have serious difficulty in refraining from sexually violent conduct or child molestation if released." 18 U.S.C. § 4247(a)(5), (a)(6). Kaylan Bell appeals the district court’s order finding him to be sexually dangerous under the Act. We affirm.

I.

A.

Bell is 33 years old. In 1999, when he was 14 years old, he sexually molested his six-year-old half-brother. He was convicted in juvenile court in Utah and received a sentence of suspended detention and counseling. When Bell was approximately 16 years old, he sexually molested his half-brother again and his six-year-old male cousin. Bell bribed his victims to engage in this sexual activity and to remain silent. He was not arrested or charged for these latter offenses. For much of this time, Bell had been placed in a youth home by his mother. However, Bell violated the rules by engaging in consensual sexual acts with peer-age males, and he was removed from the home.

In 2003, when Bell was 18 years old, he exposed his penis and masturbated in front of at least three 12-year-old boys in a pool locker room. Bell admitted to this conduct, but he was not arrested or charged.

In May 2004, Bell went to a field across from an elementary school and masturbated within 10 to 15 feet of six or seven small children. Bell admitted that he wanted the children to see him, and he hoped that they would come over and engage in a sexual act with him. Bell also admitted to a responding police officer that he had masturbated at the field as recently as one week prior to the incident and that he fantasized about sexual encounters with children. Bell was convicted in Utah state court of two counts of lewdness involving a child. He was sentenced to 24 months’ probation.

On September 4, 2004, while on probation, Bell committed another sexual offense. He smoked marijuana and walked to an area near a school "looking to do something sexual with someone." J.A. 78. Bell saw two boys, ages 7 and 9, and "wanted to have sexual contact with the boys." J.A. 80. He approached the boys and, within 10 or 20 feet of them, "exposed [his] penis and masturbated in front of the boys." J.A. 80. When one of the boys asked the other, " ‘What do you want to do?’ " Bell "exposed his erect penis and scrotum and said, ‘You could play with this.’ " J.A. 375–76. Bell was arrested and admitted "that he often fantasizes about anal and oral sex with boys, as well as fondling their genitals." J.A. 376. He was convicted of third-degree attempted sodomy on a child. While incarcerated in Utah state prison, Bell admitted to therapists that his urges were very strong and that he has violent fantasies, including one in which he "conclud[es] sex with a child by slitting the child’s throat as he orgasm[s]." J.A. 376.

On December 9, 2009, Bell was released from state prison. Less than three months later, Bell targeted a 13-year-old boy that he saw in a grocery store and followed him, hoping to convince the boy to engage in a sexual act with him. Bell eventually gave up when it got too cold outside.

On June 1, 2010, Bell was arrested for failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a), after moving from Utah to Idaho. He pled guilty and received a sentence of 42 months, followed by lifetime supervised release. During that proceeding, the district court observed that Bell " ‘poses a serious danger to children’ and ‘has begun to fantasize about kidnapping, molesting and then murdering young boys.’ " J.A. 377. Given his " ‘documented history of interest and willingness to act on his urges,’ and ‘lack [of] impulse control,’ " the district court observed that the " ‘danger [Bell] poses to the community is of paramount concern.’ " J.A. 377.

On October 4, 2013, Bell was released to the community from his federal prison sentence. Among other things, Bell was required to abstain from using alcohol, take his prescribed medications, and participate in mental-health and sex-offender treatment. Bell was noncompliant. He drank alcohol, used drugs, failed to take his prescribed medications, failed to regularly appear for mental-health and sex-offender treatment sessions, and failed to comply with other conditions of his supervised release. Bell also admitted to his probation officer that he had been masturbating in public bathrooms to fantasies about prepubescent boys that he had seen in the community. Four months later, on February 5, 2014, Bell’s supervised release was revoked for failing to comply with the conditions of his release. He was sentenced to 12 months in prison.

On February 4, 2015, Bell was released from federal prison for the second time under similar conditions of supervised release. Less than two weeks later, Bell skipped a scheduled meeting with his probation officer, purchased alcohol, walked to a nearby park where he had previously seen elementary school-age children playing, and quickly drank the alcohol. He located two boys, ages 11 and 13, and began watching them. When the boys walked to another location, Bell followed them. He exposed his penis to the children, began masturbating, and, with his penis in one hand, Bell opened his wallet, showed the boys money, and asked them to come over to him. When the boys refused, Bell moved closer. The boys threw rocks at Bell and told him (falsely) that they had a gun and would shoot him if he did not stop. Bell continued towards them, picked up a stick, and threatened to sodomize the boys with it. Bell left when an adult intervened, but was apprehended nearby. Bell’s probation officer was notified and went to the scene to interview Bell and his victims. Bell admitted to most of the conduct, but denied threatening the boys. However, Bell also admitted that he was intoxicated, which alcohol testing confirmed. Bell pleaded guilty in state court to indecent exposure and was sentenced to 180 days in state prison. His federal supervised release was also revoked, for which he received an 18-month term of imprisonment.

B.

Bell’s projected release date from federal prison was December 5, 2016. On August 17, 2016, the government initiated commitment proceedings by filing a certification that Bell was a sexually dangerous person within the meaning of the Act, staying his release.

At the commitment hearing, Bell admitted to the lion’s share of his prior conduct. However, he denied that he was sexually attracted to prepubescent children and, despite earlier admissions to the contrary, denied that he fantasized about prepubescent children. He claimed that he was only attracted to older children (ages 13–17) and that he had mistakenly believed that his earlier victims were older than they actually were. The district court did not credit Bell’s testimony. The district court pointed to evidence that Bell "masturbated to fantasies involving prepubescent children, and fantasized about violent sexual acts with them while in state prison," and "continued masturbating to pedophilic fantasies, sometimes using magazine pictures of boys, in federal prison and even while in sex offender treatment." J.A. 382–83.

Bell’s mother testified at the hearing about her son and letters that he had written to her. For example, in 2014, Bell wrote to his mother that "he had tried to molest children," that "he had stopped children," and that "he had gone to church just for the purpose of trying to entice children so that he could molest them." J.A. 40. Bell also admitted to fantasizing about "devour[ing] humans of their flesh, bone, and blood," and to having "psychotic dreams with friends, family, and random people being butchered, raped, [and] beaten" by him. J.A. 42–43. Bell’s mother testified that she knew that civil commitment would mean that Bell would have to remain in custody, but chose to testify "[s]o that [Bell] can get the help that he needs, so that he can be kept safe, and so children can be kept safe." J.A. 39.

Bell’s federal probation officer also testified at the hearing. As noted above, Bell was noncompliant with his medication regime, failed to consistently attend his case management appointments, and failed to consistently appear for his mental-health and sex-offender treatment sessions. In addition, Bell "was very concerned about his term of GPS monitoring" and "wanted to be released from the GPS monitoring as soon as possible." J.A. 139–40. He also failed to charge his GPS on a consistent basis. Bell continued to have deviant thoughts about sex with underage boys, which often included pain and blood, and masturbated to these deviant...