United States v. Francis

• Decision Date: 16 July 2012
• Docket Number: No. 12–1205.,12–1205.
• Citation: 686 F.3d 265
• Parties: UNITED STATES of America, Petitioner–Appellant, v. Sean Robert FRANCIS, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

686 F.3d 265

UNITED STATES of America, Petitioner–Appellant,

v.Sean Robert FRANCIS, Respondent–Appellee.

No. 12–1205.

United States Court of Appeals,Fourth Circuit.

Argued: May 17, 2012.

Decided: July 16, 2012.

ARGUED: Ian James Samuel, United States Department of Justice, Washington, D.C., for Appellant. James Ryan Hawes, The Edmisten, Webb & Hawes Law Firm, Raleigh, North Carolina, for Appellee. ON BRIEF:Stuart F. Delery, Acting Assistant Attorney General, Mark B. Stern, United States Department of Justice, Washington, D.C.; Thomas G. Walker, United States Attorney, Raleigh, North Carolina, for Appellant. William Woodward Webb, The Edmisten, Webb & Hawes Law Firm, Raleigh, North Carolina, for Appellee.

Before TRAXLER, Chief Judge, and MOTZ and KEENAN, Circuit Judges.

Affirmed by published opinion. Judge KEENAN wrote the opinion, in which Chief Judge TRAXLER and Judge MOTZ joined.

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

This case began with the government's initiation of civil commitment proceedings against Sean R. Francis. The government certified that Francis, who had numerous criminal convictions based on his repeated conduct of placing threatening and obscene telephone calls, was a “sexually dangerous person,” within the meaning of 18 U.S.C. § 4248. After conducting an evidentiary hearing, the district court determined that Francis was not eligible for commitment, because the government failed to prove by clear and convincing evidence that Francis would have serious difficulty refraining from sexually violent conduct if released.

On appeal, the government argues that the district court erred by failing to make necessary factual findings regarding Francis' prior sexually violent conduct and by failing to determine whether Francis presently suffers from a qualifying mental condition under the relevant statutes. The government contends that the district court improperly based its decision on an “abstract determination” that Francis was unlikely to commit new offenses of a sexually violent nature. After reviewing the record, we affirm the district court's judgment, because the court appropriately considered the elements required for civil commitment under 18 U.S.C. § 4248, and did not clearly err in determining that the government failed to meet its burden of proving that Francis was a sexually dangerous person.

I.

A.

The statutory provision that permits civil commitment for sexually dangerous individuals is set forth in 18 U.S.C. § 4248, which is part of the Adam Walsh Child Protection and Safety Act of 2006 (the Act), Pub.L. No. 109–248, 120 Stat. 587.¹ As relevant to this case, the statute provides that individuals in the custody of the Bureau of Prisons (BOP) who are sexually dangerous may be committed civilly after the expiration of their federal prison sentences. 18 U.S.C. § 4248. A “sexually dangerous person” is defined as one “who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others.” 18 U.S.C. § 4247(a)(5). An individual 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.” 18 U.S.C. § 4247(a)(6).

The Attorney General, his designee, or the Director of the BOP may initiate commitment proceedings by filing in the district court for the district in which the individual is confined a certification that the individual is sexually dangerous. 18 U.S.C. § 4248(a). The filing of such a certification stays the release of the individual from custody “pending completion of procedures,” including a full evidentiary hearing. Id. After the hearing, if the district court concludes that the government proved by clear and convincing evidence that the individual is sexually dangerous, the court “shall commit” that individual to the custody of the Attorney General. 18 U.S.C. § 4248(d). Once committed, an individual remains confined until he is “no longer sexually dangerous to others.” 18 U.S.C. § 4248(e). A committed individual may seek periodic review of his confinement no sooner than 180 days from the most recent determination by the district court. 18 U.S.C. § 4247(h).

B.

Francis first was arrested in 1998 at the age of 20 after he placed two threatening telephone calls to randomly-selected telephone numbers. In both telephone calls, Francis threatened to rape the women who answered the telephone. Francis was convicted in a New York state court of two counts of aggravated harassment and was sentenced to a term of three years' probation.

Shortly after his conviction, Francis pleaded guilty to violating the terms of his probation for failing to participate in sex offender treatment, lying to his probation officer, and failing to report to his probation officer as directed. The state court imposed a sentence placing Francis on continued probation.

In November 1999, Francis pleaded guilty to federal charges, including eight counts of making threatening interstate communications, in violation of 18 U.S.C. § 875(c). These charges arose after Francis placed more than 100 harassing telephone calls to women in several states. In these calls, Francis often asked the women about their sexual behavior, demanded that they masturbate, described any personal information he knew about them, stated that he had been watching them, threatened to harm them if they contacted police or did not do as he directed, and threatened to rape or to kill them. Francis was convicted and sentenced to a term of 22 months' imprisonment and to a three-year term of supervised release.

Based on these federal convictions, Francis' probation resulting from his New York state convictions was revoked and, following that revocation, he received an additional sentence of six months' imprisonment. Francis was released from incarceration in July 2001.

In December 2001, a female college student, “Emily,” accused Francis of rape. During the investigation conducted by a local police department, Francis stated that he had engaged in consensual sexual intercourse with “Emily.” Francis was not arrested, and the police did not file charges in connection with this incident.

Later in December 2001, Francis' supervised release was revoked after he admitted to making about 50 threatening telephone calls similar in content to the previous calls for which he had been convicted. Based on this violation of the conditions of his supervised release, Francis was sentenced to serve a term of 24 months in prison. He was released in September 2003.

Within three weeks after his release, Francis began making similar threatening telephone calls. As a result, in December 2003, Francis was charged with 26 counts of making interstate threatening communications, in violation of 18 U.S.C. § 875, and four counts of intimidating and threatening a victim, in violation of 18 U.S.C. § 1512(b)(3). Francis was convicted and sentenced to a term of 70 months' imprisonment and to a three-year term of supervised release.

Before Francis' release from prison on January 12, 2009, a BOP review panel determined, based on mental health evaluations completed while Francis was incarcerated, that Francis did not meet the criteria of a sexually dangerous person under the Act. Upon his release, Francis was not required to register as a sex offender.

Francis' term of supervised release included many requirements and conditions, including that he submit to periodic polygraph examinations. During one such examination in 2009, Francis described numerous sexual acts, for which he had not been arrested or charged, in which he claimed to have sexually assaulted or raped 27 female victims. Francis later denied committing any of these acts.

In September 2009, more than seven months after his release from prison, Francis' supervised release term was revoked based on three violations unrelated to placing threatening telephone calls. The first violation occurred when a probation officer visiting Francis in his home observed that Francis had rented a pornographic movie. Francis admitted to the probation officer that he had viewed six pornographic movies.

The second violation occurred after Francis stated during a polygraph examination that he had engaged in sexual relations with two women he had met on the internet. When Francis refused to identify the women, he violated the condition of his probation requiring that he provide requested information to his probation officer. As a result of committing these violations, Francis was expelled from a mandatory sex offender treatment program. This expulsion constituted the third violation of the terms of his supervised release.

Based on his commission of these three violations, Francis was sentenced to serve a term of six months' imprisonment and a 12–month term of supervised release. Before Francis' scheduled release from prison in February 2010, the government filed a certificate in the district court stating that mental health personnel for the BOP had examined Francis and had issued a preliminary determination that he was sexually dangerous, within the meaning of the Act. The government's certification stayed Francis' release pending an evidentiary hearing. See18 U.S.C. § 4248(a).

C.

At the hearing conducted by the district court, Francis testified that he began making threatening telephone calls at the age of 13 after his mother informed him that she had received an upsetting, sexually-explicit telephone call. Francis testified that his parents had divorced when he was young, and that he and his mother had had a strained relationship. Francis stated that during his high school years, his mother physically and emotionally abused him. According to Francis, he expressed his anger toward his mother by making threatening telephone calls to women. Francis stated that he would make as many as 100 calls in one...