United States v. Volungus

• Decision Date: 17 September 2013
• Docket Number: No. 12–1394.,12–1394.
• Citation: 730 F.3d 40
• Parties: UNITED STATES of America, Petitioner, Appellee, v. John Charles VOLUNGUS, Respondent, Appellant.
• Court: U.S. Court of Appeals — First Circuit

730 F.3d 40

UNITED STATES of America, Petitioner, Appellee,

v.John Charles VOLUNGUS, Respondent, Appellant.

No. 12–1394.

United States Court of Appeals,First Circuit.

Sept. 17, 2013.

Ian Gold, Assistant Federal Public Defender, and Tamara Fisher, Federal Defender Office, on brief for appellant.

Jennifer A. Serafyn, Assistant United States Attorney, and Carmen M. Ortiz, United States Attorney, on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and STAHL, Circuit Judges.

TORRUELLA, Circuit Judge.

Appellant John Charles Volungus challenges an order from the District of Massachusetts directing his civil confinement as a “sexually dangerous person” under the Adam Walsh Child Protection and Safety Act, 18 U.S.C. § 4248 (“the Adam Walsh Act” or “the Act”). Volungus maintains that the government failed to prove by clear and convincing evidence that he was in fact a “sexually dangerous person.” Finding no error, we affirm.

I. Facts and Procedural Background

In detailing the factual background of this case, we look to the district court's findings of fact in addition to the testimony presented at trial.

Volungus was born into a stable, two-parent home in 1967. Although he had two younger brothers, Volungus struggled to maintain friendships with his peers at school. After he graduated from college, Volungus joined the United States Army and was stationed across the United States, Europe, and the Middle East. It was during Volungus's time abroad that he began viewing what he called “teen sex magazines.”

In 1998, while stationed at Fort Campbell, Kentucky, Volungus began to download child pornography. He reported collecting pornographic images of children ranging from eighteen months to eighteen years in age, viewing child pornography for seven hours per night on weekdays and for thirteen hours per night, until 6:00 a.m., on weekends. Volungus also programmed his computer to download and save child pornography when he was not actively using it. Ultimately, he amassed thousands of images of child pornography. That same year, Volungus began visiting internet chat rooms where people discussed sex with children. In these chat rooms, Volungus started having sexualized conversations with people he believed to be minors. He would masturbate as they “talked dirty” to each other. Volungus also took out advertisements on chat room bulletins, seeking to physically meet and have sex with young females.

These behaviors led Volungus to a person with the screen name “IndyGirl.” IndyGirl claimed to be a nineteen-year-old female named “Deanna,” but was actually an undercover law enforcement officer. Volungus began his communication with her by stating that he wished to meet her for some “real life fun.” When IndyGirl later told him that she had a fourteen-year-old sister named “Sarah,” Volungus stated that he would like to meet her too, and he discussed where they could all meet to have sex.

In these chats with “Deanna” and “Sarah,” Volungus described himself as a “real-life pedophile.” He boasted that he had “enjoyed many young girls ... as young as ten,” had filmed a sex tape with a fourteen-year-old, had anal sex with girls fourteen years old and younger, and first had sex with an underage female when he was seventeen and slept with the twelve-year-old girl he was babysitting. Eventually, after weeks of chatting, the law enforcement agents arranged a telephone call between Volungus and officers pretending to be Sarah and Deanna. During this call, Volungus specifically talked to “Sarah” about engaging in sexual acts with her. Volungus, “Deanna,” and “Sarah” then agreed to meet in person on August 22, 1998. When Volungus arrived at the meeting place with sex toys and lingerie, he approached “Deanna” and “Sarah” only to be surprised and subsequently arrested by military police.

After his arrest, Volungus told law enforcement officials that he had discussed meeting another fourteen-year-old female with the screen name “facialgirl,” and that he had spoken with a man in Canada about having sex with his eight- or nine-year-old daughter. However, Volungus claimed that he had never actually had sex with a minor. He pled guilty to an eight-count federal indictment including charges of child pornography and using an interstate facility to attempt to persuade a person under eighteen years old to engage in a sexual act. On June 14, 1999, Volungus was sentenced to fifty-three months incarceration to be followed by three years of supervised release. He was incarcerated from July 1999 to May 2003 at the Federal Correctional Institution at Fort Dix, New Jersey. While in prison, Volungus kept in his prison locker a list of books about sexual acts with children and hand-drawn pornographic images depicting him having sex with children. After these items turned up in a search of his locker, Volungus admitted to having “a problem and ... [thinking] about sex with children all the time.”

On April 12, 2004, when probation officers visited Volungus to install monitoring software on his computer as a condition of his supervised release, they discovered that, once again, Volungus had started downloading child pornography to his computer. He had downloaded images depicting prepubescent minors engaged in oral sex, intercourse, and lascivious exhibition. A few days later, Volungus acknowledged to his probation officer that “he had difficulty controlling his impulses” and had visited chat rooms called “Youth and Beauty.” A later forensic examination of his computer also revealed that a file-wiping program had been run on Volungus's computer three days before the probation officers' arrival.

Volungus's probation officer increased his supervision and treatment activities, adding one-on-one psychological treatment to his sex offender treatment program, and Volungus seemed to be improving. The appearance of improvement ended in May 2005, when Volungus admitted that he had unsupervised contact with his five-year-old niece in violation of his supervised release conditions.¹ Volungus was subsequently arrested for violating the terms of his release and stipulated to the three charged violations: engaging in criminal conduct by possessing child pornography, viewing and possessing child pornography, and having unauthorized contact with a minor. Volungus testified at his violation hearing that his treatment program “hasn't helped enough. I know that.... I have a problem controlling it ... I really don't have enough control over it....” His supervised release was revoked and he was sentenced to twenty-three months imprisonment followed by thirteen months of supervised release.

After Volungus's sentencing, authorities discovered letters Volungus had written to a man in Texas named Gary Gallardo, who had been arrested for possession of child pornography. The letters were written between March and April 2005, during Volungus's supervised release and while he was attending sex offender treatment classes. The letters contained graphic descriptions of various scenes of child pornography, as well as advice for procuring it. Additionally, the letters discussed Volungus and Gallardo's plans to travel to other countries for the purposes of having sex with children and producing child pornography. Some pertinent passages from the letters follow:

• Get YAHOO Messenger. Many good chat rooms where goodies are posted and traded. Watched some great vidz last night, including one of guys daughter—about 7, cute as hell and does one hell of a sexy striptease and pussy show. I gotta figure out how to save a webcam broadcast!

• Oh ... Newsgroup for you to check out ... You'll need a yenc decoder to see the goodies ... alt.binaries.pictures.underage.admirers. Have been a shitload of the FEBA series lately.... Girl about 7, Bondage, Pissin, Shittin, Suck, Fuck ... Lots of Anal ... Hot as Hell.

• I have a pretty nice collection building, almost 1 Gb worth. Will share with you when your 'puter is up and running.

• So, when we are free, where do we take a vacation? Cambodia, Thailand, Philippines, Costa Rica, Brazil, Czech Republic, or wherever? If you still have contacts, we could make some extra cash with some homemade product.

• BTW ... If a disk just happens to arrive for you, what do you like.. [.] ages, acts, race, the more details you give me, the better things could be.

• Met one fella last week ... watched his webcam ... he was finger-fucking his daughter for the world to see. She looked about 6 years old. She was loving it. He had a microphone on. She was asking him to “Do it faster Daddy!” and “Yeah ... right there!” Was fucking amazing. If I hadn't been in the middle of the library I would have whipped it out and jacked off right there.

• While in the library yesterday a little cutie came over and was apparently watching what I was doing ... she gave me this coy grin ... I guess she liked what she saw (I had been watching a k.p. [kiddie porn] fuck vid before that). I see her again, I'm going to see what happens, she seems like an approachable girl ... or maybe I'll just watch her and thank the Lord she didn't say anything to anybody.

• What do you think about crossing the border to “Twins” and picking up some young girls? How available are they there ... I've heard they are pretty common. You know what I like ... Brunette about 10 ... Just budding is perfect. If you ever see the Alicia series or videos, she's fucking perfect ... well almost ... I like longer hair.

• Found a nice site, you have to search through it, but I have added over 100 great pix to my collection.... Added a half dozen new videos, and am adding more. Includes the whole vid of one girl I'm in lust with (Alicia). Fucking Awesome. I'm filing my motion for relief soon, and once I do, and once you are free to travel, we have to take a trip and fuck some girls ... and video it! Get a phone so I can call you!

• I took a trip to our local “red light” district, picked up a great girl ... sucked the...