United States v. Wetmore

• Decision Date: 26 November 2012
• Docket Number: No. 11–1626.,11–1626.
• Citation: 700 F.3d 570
• Parties: UNITED STATES of America, Petitioner, Appellee, v. Joel WETMORE, Respondent, Appellant.
• Court: U.S. Court of Appeals — First Circuit

700 F.3d 570

UNITED STATES of America, Petitioner, Appellee,

v.Joel WETMORE, Respondent, Appellant.

No. 11–1626.

United States Court of Appeals, First Circuit.

Nov. 26, 2012.

Robert B. Mann, by appointment of the court, with whom Mann and Mitchell was on brief for appellant.

Eve A. Piemonte Stacey, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for appellee.

Before LYNCH, Chief Judge, BOUDIN and LIPEZ, Circuit Judges.

BOUDIN, Circuit Judge.

The Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act”), Pub.L. No. 109–248, tit. III, § 302(4), 120 Stat. 587, 620–22 (codified at 18 U.S.C. §§ 4247–4248 (2006)), allows the federal government to seek civil commitment of “sexually dangerous persons” already in the custody of the Bureau of Prisons (“BOP”). Once ordered so committed by a federal court, the person is confined to a treatment facility until its director or a court finds that the person is no longer sexually dangerous to others, or will not be dangerous if released under a prescribed treatment regimen. Id. §§ 4247(h), 4248(e).

Joel Wetmore, nearing the end of a federal criminal sentence, was the subject of such a civil commitment order and he now appeals. Wetmore, 56 years old, was born and raised in Houlton, Maine; he graduated from high school there in 1975 and over the next 25 years held a variety of jobs, mostly in Maine but also including a two-year stint in Texas. He eventually settled in Bangor, Maine, where he resided until October, 1999. Over the course of his life, Wetmore has served several prison terms for sex-related crimes:

—a first conviction in 1981 at age 24, under Maine law, for unlawful sexual actions with a minor, specifically, fondling the genitals of a 12 year old boy, resulting in a 30 day suspended sentence and six months probation;

—a second conviction in 1987 at age 31, under Maine law, for gross sexual misconduct, specifically, for repeatedly molesting over a two-year period an 11–year–old boy, resulting in an 18 year sentence of which nine years were served, with an additional four years subsequently imposed after his probation was revoked because of the offense that led to his third conviction; and

—a third conviction in 2000 at age 44, under federal law, for possessing over 2,000 images of child pornography, leading to an 87 month sentence.

Wetmore had a BOP projected release date from his federal sentence on November 18, 2006, but, on November 17, the federal government filed a notice commencing the effort to have him certified by a court as a sexually dangerous person and to commit him civilly under the Adam Walsh Act. Under the terms of the statute, the court may commit an individual “who is in the custody of the Bureau of Prisons” if the government can prove by clear and convincing evidence that he is a “sexually dangerous person,” 18 U.S.C. § 4248(a) & (d), defined as someone

who has engaged or attempted to engage in sexually violent conduct or child molestation and who ... 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)(5) & (6).

The district court held a seven-day bench trial beginning in late 2010 and endingin 2011.¹ The court heard expert testimony from its appointed psychological examiner, Dr. Robert Prentky, as well as from the government's retained expert psychologist, Dr. Amy Phenix. Other witnesses included government officials, prison inmates, Wetmore's mother and brother, and Wetmore himself. The testimony covered Wetmore's life history, including his sexual experiences and activities. The details are elaborated in the district court's thorough, 20–page decision. United States v. Wetmore, 766 F.Supp.2d 319 (D.Mass.2011).

In the decision, the district court ruled that the government had met its burden of proof, determined that Wetmore met the conditions for certification as a sexually dangerous person, and ordered him civilly committed. Wetmore now seeks review in this court, first raising a threshold issue, whether he was legitimately in BOP custody when the notice was filed; he then argues that in any event the district court erred in finding that he suffered from the requisite mental disorder and that he satisfied the statutory dangerousness test.

The threshold issue presents a legal question. The Adam Walsh Act permits the government to civilly commit sexually dangerous persons who are “in the custody of the Bureau of Prisons.” 18 U.S.C. § 4248(a). At the time the government began the civil commitment proceeding on November 17, 2006, Wetmore was held in custody under the authority of BOP based on his federal child pornography conviction with a projected release date of November 18, 2006. There is no indication that Wetmore had earlier disputed the November 18 date while in prison.

In 2010, shortly before his commitment hearing, Wetmore argued that the proceedings should be dismissed; he claimed that on November 17, 2006, when the government initiated the commitment process, he had not been in the “lawful” custody of BOP because his projected release date—if now re-computed—should have been earlier than November 18. Expressing some doubt as to whether this mattered, the district court considered the premise and concluded that Wetmore had been in the lawful custody of BOP when the government sought his commitment.

The statute itself says nothing about “lawful” custody, but mere physical control could hardly suffice in all instances: imagine that Wetmore had been acquitted at trial of child pornography charges but mistakenly listed as convicted, held in prison by BOP based on this mistake and then sought to be certified during this period. So, at the very least, some colorable legal authority must exist for the detention and the courts normally so assume. E.g., United States v. Joshua, 607 F.3d 379, 388–89 (4th Cir.2010) (fact of BOP physical custody alone not sufficient); United States v. Hernandez–Arenado, 571 F.3d 662, 666–67 (7th Cir.2009) (same).

But it is a different question how far Wetmore can belatedly challenge alleged sentencing or computational errors at the commitment stage and which errors might matter. The answer is not supplied merely by the word “custody”—a chameleon term, Ramsey v. Brennan, 878 F.2d 995, 996 (7th Cir.1989)—as applied to a variety of situations likely never considered by Congress. We already have held that, in an Adam Walsh proceeding, “to mandate release of a potentially dangerous individual due to a de minimis mistake in the timing of initiating the commitment process would be manifestly inconsistent with the overall structure of the Act.” United States v. Shields, 649 F.3d 78, 87 (1st Cir.2011), cert. denied,––– U.S. ––––, 132 S.Ct. 1586, 182 L.Ed.2d 200 (2012).

De minimis mistakes merely illustrate a larger tension. The mechanics of determining a release date are more complicated than might be supposed. The federal judge ordinarily imposes a term of months ( e.g., 60 months) and, if another sentence is already being served by the defendant, chooses whether and to what extent the new federal sentence will run concurrently or consecutively to the existing sentence. 18 U.S.C. §§ 3553 (2006 & Supp. IV 2011), 3584 (2010). The defendant may then seek direct appellate review of this sentence. Id. § 3742; see also Gall v. United States, 552 U.S. 38, 47, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). But often there remain, as here, complicated adjustments that determine the prisoner's precise release date, depending on events that already occurred ( e.g., time spent in custody awaiting trial) or will occur later ( e.g., good conduct time).²

These calculations are ordinarily made administratively by the Attorney General through the Bureau of Prisons, Kayfez v. Gasele, 993 F.2d 1288, 1289 (7th Cir.1993), resulting in a posted projected release date, sometimes falling much earlier than the stated sentence of months might suggest. But these sometimes abstruse calculations, illustrated by Wetmore's own case, may involve debatable legal and factual issues. The convicted defendant can contest the projected date through an administrative proceeding, 28 C.F.R. § 542.10–.19 (2012), and, if dissatisfied, can ultimately obtain judicial review, 28 U.S.C. § 2241; see also Reno v. Koray, 515 U.S. 50, 53, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995); Romandine v. United States, 206 F.3d 731, 736 (7th Cir.2000).

Given the Adam Walsh Act's incontestible aim to detain individuals still sexually dangerous upon release, Comstock, 130 S.Ct. at 1960–61, the government argues that post-hoc computational attacks on the lawfulness of his detention should be limited to habeas proceedings or tempered by other exhaustion requirements. Accommodation of new statutes to existing administrative schemes is the ordinary work of courts where not squarely addressed by Congress, but this is the wrong case for broad rules. As the district court ruled, Wetmore was still serving his proper federal sentence when the commitment proceeding began.

Wetmore's contrary arguments stem from a complicated chronology:

—On October 22, 1999, he was arrested by Hampden, Maine, police after a 15–year–old male reported that Wetmore had performed a sexual act on him; a second juvenile male reported that Wetmore had child pornography on his computer.

—On February 14, 2000, his state court parole was revoked and the court imposed the additional four year state sentence already mentioned.

—On April 11, 2000, he was indicted on the federal child pornography charges, and entered his guilty plea on July 10, 2000.

—On October 25, 2000 he received his 87 month federal sentence, to be served concurrently with the four-year state sentence he was then serving.

Wetmore's projected release date on his federal sentence was November 18, 2006. On November 17, 2006, the...