United States Court of Appeals For the First Circuit

No. 20-1009

UNITED STATES OF AMERICA,

Petitioner, Appellee,

v.

WAYNE HUNT,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Leo T. Sorokin, U.S. District Judge]

Before

Thompson and Kayatta, Circuit Judges, and Katzmann,* Judge.

Ian Gold for appellant. Jennifer A. Serafyn, Assistant United States Attorney, with whom Nathaniel R. Mendell, Acting United States Attorney, was on brief, for appellee.

December 17, 2021

* Of the United States Court of International Trade, sitting by designation. KAYATTA, Circuit Judge. In 2009, Wayne Hunt became one

of the first people to be civilly committed under the Adam Walsh

Child Protection and Safety Act of 2006, Pub L. No. 109–248,

(2006) ("Adam Walsh Act"), which authorizes additional

civil commitment of someone already in federal custody if the

government shows that he is a "sexually dangerous person." 18

U.S.C § 4248. In 2012, Hunt was discharged from this commitment

under conditions, including that he receive mental health

treatment and supervised probation.

The Adam Walsh Act also provides a path to unconditional

discharge upon a showing that the committed individual would not

be "sexually dangerous to others" if so released.

(e)(1). In 2018, Hunt moved for an unconditional

discharge,1 thereby initiating the proceedings leading to the

instant appeal. After a hearing in October 2019, the district

court found that, while it was a close question, Hunt had failed

to make the required showing. The court did eventually remove

many of his conditions, including those requiring treatment. Hunt

argues on appeal that the court erred in denying his unconditional

1 Hunt's motion for unconditional discharge was occasionally referred to below as a "petition." However, the United States is stylized as the "petitioner" in the case caption because this appeal is part of the larger civil action that commenced with the government's initial action in 2007 to have Hunt committed. Accordingly, we refer to Hunt's filing as a "motion" throughout this opinion to avoid confusion.

- 2 - discharge motion and that the statute compels his discharge in the

absence of any remaining treatment conditions. For the reasons

that follow, we find no reversible error in the district court's

decision.

I.

A.

Wayne Hunt is an admitted pedophile who, decades ago,

engaged in sexual acts with dozens of children as young as seven

from the time he was twenty-seven years old. United States v.

Hunt,

, 164–66 (D. Mass. 2009). He has

been convicted of multiple state and federal crimes stemming from

this conduct, including aggravated rape and the kidnapping of a

twelve-year-old boy.

at 165–66. He committed his last offense

in 1985 and was most recently imprisoned for his crimes between

1985 and 2007.

at 165–67.

As Hunt was approaching the end of his prison sentence,

the Bureau of Prisons (BOP) certified him under the Adam Walsh Act

as a "sexually dangerous person," which the Act defines as "a

person who has engaged or attempted to engage in sexually violent

conduct or child molestation and who is sexually dangerous to

others."2

(a)(5); Hunt,

,

2 Hunt remained incarcerated between the end of his criminal sentence and the trial on his civil commitment, pursuant to the automatic stay provision of the Adam Walsh Act. See Hunt,

; 18 U.S.C § 4248(a).

- 3 - 167. That certification initiated the proceedings that culminated

in the 2009 trial at which the government proved by clear and

convincing evidence that Hunt was sexually dangerous to others.

See Hunt,

. That finding led to his civil

commitment at FCI Butner in North Carolina, where Hunt successfully

participated in sex-offender-specific therapy for several years.

In 2012, Hunt moved for and was granted conditional

release under a "prescribed regimen of medical, psychiatric, and

psychological care," with the supervision of United States

Probation ("Probation"). See

(h), 4248(e)(2).

Altogether, Hunt was subject to thirty-two conditions in his

initial discharge, which, beyond requiring the prescribed medical

care, also limited his contact with minors and his use of

computers, required regular polygraph examinations, and imposed a

curfew. Since August 2012, he has lived at the New England Center

for Homeless Veterans in Boston without any noted violations of

these conditions. Throughout that time, Hunt has engaged in sex-

offender therapy with Dr. John Cusack, starting with weekly

individual sessions and a sex-offender group program, then

transitioning to monthly individual sessions supplemented with

monthly "maintenance/check-in" group meetings.

Hunt, now seventy-five years old, has been partially

paralyzed from a medical condition. His limited mobility confines

him to a wheelchair. He also contends with a partially collapsed

- 4 - lung and a heart infection. To manage chronic nerve pain, he takes

gabapentin, which he reports has also resulted in declining sexual

functioning.

After almost six years of satisfying his conditions of

release, Hunt moved in October 2018 for a hearing on his

eligibility for unconditional discharge from commitment under the

Adam Walsh Act. See

(h), 4248(e)(1). The

government responded that the motion was "premature" but that it

was "open to revisiting" Hunt's motion once he had completed

treatment in early 2019. Accordingly, Hunt renewed his motion in

March 2019 and asked the court to appoint his chosen examiner,

Dr. Joseph Plaud, to perform a psychological examination and sex-

offender risk assessment of him. See

§ 4247(b). The

government opposed Hunt's renewed motion for unconditional

discharge, and the district court permitted the appointment of

Dr. Plaud, setting the stage for a hearing on the discharge motion.

B.

At the October 2019 hearing, the district court heard

testimony from the appointed examiner, Dr. Plaud, and from Hunt

himself. The court also received three documents into evidence:

a summary of supervision by Probation, Dr. Plaud's report of his

findings and opinion, and Dr. Plaud's CV. The government offered

no evidence of its own.

- 5 - 1.

Probation's report largely credited Hunt's compliant

behavior. It noted that Hunt had consistently worked with

Dr. Cusack on his treatment regimen, and that he had progressed

through several stages of the rehabilitation program over time.

In addition to installing monitoring software on his laptop, Hunt

has been subject to regular polygraph testing to monitor

compliance. Probation documented no violations of his conditions.

However, the report noted two incidents "worth mentioning":

(1) Hunt had watched a non-pornographic movie titled "Slutty

Summer" that required follow-up in his treatment and (2) Hunt had

searched for sexual lubricants and "sexual toys" on Amazon. Hunt

later explained that he had been searching for lubricant for

medical reasons3 and that this search "led him to look at sexual

toys."

The report also discussed Hunt's "limited social support

system," which includes regular contact with his daughter, who

lives in upstate New York, and friendly interactions with other

members of the veterans' home where he has resided since his

release in 2012. The report observed that "[t]he probation office

continues to be an ongoing support in Mr. Hunt's life and continues

to provide him with face to face interactions to reinforce his

3 Dr. Plaud's report noted that Hunt used a catheter.

- 6 - positive progression." Hunt later acknowledged in his testimony

that he had a good relationship with his probation officers, and

he agreed that their involvement in his life was not "too onerous."

2.

Dr. Plaud, an expert in sex offender treatment,

consulted Hunt's medical records, conducted a clinical interview,

and discussed Hunt's treatment with his provider, Dr. Cusack. In

the fourteen-page report admitted at Hunt's discharge hearing,

Dr. Plaud diagnosed Hunt with pedophilic disorder based on Hunt's

"history," but stressed that he found "no indication in the present

tense, or going back in time multiple years, that there is

recurrent, intense sexually arousing fantasies, sexual urges, or

behaviors involving sexual activity with a prepubescent child or

children." Dr. Plaud concluded that Hunt was not a sexually

dangerous person, and that his "offense risk level" at the time of

the report in 2019 was "not in keeping with an individual who has

serious difficulty in refraining from sexually violent conduct or

child molestation if the conditions of his present supervised

release are removed." Dr. Plaud also noted that these assessments

were shared by Hunt's regular treatment provider, Dr. Cusack, whom

he quoted as saying, "I couldn't have asked Mr. Hunt to do any

better in the multiple years I've known him."

In his testimony, Dr. Plaud reinforced these

conclusions. For example, he noted that while the diagnosis of

- 7 - pedophilic disorder was compelled based on Hunt's history, "the

strength of the diagnosis, is such, in Mr. Hunt's case today, that

it's negligible," and "if there was a provision for remission [in

the Diagnostic and Statistical Manual of Mental Disorders (DSM-

V)], [he] would have found it most definitely in this case." On

cross-examination, Dr. Plaud acknowledged that he did not

undertake two specific exercises for empirically measuring sexual

offense risk: a "penile plethysmograph" or "PPG" (a test that

measures penile engorgement while viewing stimuli), and a "Static-

99r" (an actuarial measurement).4

Later in the hearing, the district court engaged in a

brief colloquy with Probation, which acknowledged Dr. Cusack's

support for Hunt and agreed that Dr. Plaud's characterization of

Dr. Cusack's opinions was "spot on."

Hunt then testified at length about his physical and

mental condition, the progress he had made, and that he had learned

how to experience empathy. Regarding his pedophilia, he said

"[y]ou know, the first thing that you got to do is know that

there's no cure. You've got to manage." He testified several

times to his present lack of sexual desire and fantasies. The

4 Dr. Plaud did not conduct the PPG because, in his judgment, it would have "flatlined," given Hunt's age and medical issues. He did not score a Static-99r because he believed the number would have been "invalid" and "meaningless" given Hunt's age and incident-free time in the community.

- 8 - district court later noted that Hunt struck the court as "sincere

and forthright, and honest, with a lot of insight," and the court

was "persuaded that Mr. Hunt has progressed successfully, compared

to when he was released."

3.

Nonetheless, in an oral decision issued at the hearing,

the district court found that Hunt had not met his burden to show

that he would not be sexually dangerous to others if released

unconditionally. The court therefore denied his motion for

unconditional discharge. At the same time, the court indicated it

would be open to lifting many of Hunt's conditions. The district

court primarily based its decision on: (1) Hunt's testimony that

he continued to "manage[] this every day"; (2) Hunt's past offense

conduct; and (3) a concern that the court was not sure how Hunt

would act without the supervision and accountability that had been

so helpful to him. The court acknowledged, though, that "[i]t is

a difficult thing to . . . prove, when you're on supervision,

that . . . you won't have serious difficulty when you're not."

The court's decision expressly did not rely on the absence of the

two tests that the government had asked Dr. Plaud about, though

the court did note that it disagreed with Dr. Plaud about the

usefulness of continued treatment for Hunt "once [he'd] learn[ed]

the skills" to manage his behavior.

- 9 - The district court also clarified at several points that

it understood Hunt's conditions of release were on a tapering

trajectory, and that it anticipated any remaining conditions would

continue on that path. For example, the court noted that it had

"delayed" the hearing5 from Hunt's 2018 motion in part because of

Hunt's planned transition to less frequent therapy. The court

then concluded its oral decision by noting that Hunt was "doing

very well. Tapering, in my oversight role, seems reasonable."

After the hearing, the court did lift many of Hunt's

conditions. The remaining "less restrictive conditions" govern

the logistics and routine details of Hunt's interactions with

Probation, prohibit unsupervised contact with minors (absent

authorization by Probation), bar Hunt from loitering around

"places where minors congregate," require Hunt to submit to

polygraph exams as requested by Probation, and require that Hunt

notify Probation before travelling outside the district. The

revised conditions do not include any requirement that Hunt

participate in treatment.

II.

Under the Adam Walsh Act, the Bureau of Prisons may

certify someone in its custody as a "sexually dangerous person,"

5 This was the district court's terminology, though we note that the 2018 motion was actually denied without prejudice to refile.

- 10 - who then, after a hearing and appropriate findings, may be civilly

committed to the custody of the Attorney General.

(a), (d). A "sexually dangerous person" is someone "who has

engaged or attempted to engage in sexually violent conduct or child

molestation" and "is sexually dangerous to others," which in turn

means the person: (1) "suffers from a serious mental illness,

abnormality, or disorder"; and (2) as a result of such disorder,

would have "serious difficulty in refraining from sexually violent

conduct or child molestation if released."

§ 4247(a)(5)–(6).

The Act also provides two paths for the "[d]ischarge" of

a person who has been so committed.6 Id. § 4248(e). First, if a

court finds by a preponderance of the evidence that the person

"will not be sexually dangerous to others if released

unconditionally," it "shall order that [the person] be immediately

discharged." Id. § 4248(e)(1). Alternatively, a court can

conditionally release someone who would not be sexually dangerous

"if released under a prescribed regimen of medical, psychiatric,

or psychological care or treatment," and thus "order, as an

explicit condition of release . . . treatment." Id. § 4248(e)(2).

If someone is released conditionally under this provision, the

6 The Act describes the substance of the discharge criteria in terms of a hearing after certification from the director of a facility housing a committed individual,

(e), though in another section it provides equivalent procedures and relief upon motion by the committed individual, regardless of whether the director has certified,

§ 4247(h).

- 11 - court may modify or eliminate "the regimen of . . . treatment"

after a hearing. Id. § 4248(e)(2)(B).

In this context, we take a three-tiered approach to

appellate review: We review questions of law de novo, questions

of fact for clear error, and "appl[ication of] a general standard

to specific facts" with "some deference" to the court below.

United States v. Carta,

(1st Cir. 2010) (citing

United States v. Jahagirdar,

(1st Cir. 2006)

(describing the standard for applying law to facts as "abuse of

discretion")); see also United States v. Volungus,

(1st Cir. 2013) (citing Carta for the "some deference" formulation

in discussing the Adam Walsh Act).

On appeal, Hunt asserts that the district court

erroneously concluded he had failed to show he would not be

sexually dangerous to others if released unconditionally. He also

contends that the Adam Walsh Act compels his complete discharge

because there is no statutory basis for his continued supervision

absent a condition of treatment. We consider these two challenges

in turn.

A.

We turn first to Hunt's challenge to the district court's

finding that he had not shown he would not be sexually dangerous

to others if released unconditionally. The burden to make this

showing by a preponderance of the evidence rests with Hunt. See

- 12 - United States v. Wetmore,

(1st Cir. 2016). He

takes issue with both prongs of the "sexually dangerous to others"

finding, namely: (1) whether he suffers from a "serious mental

illness," and (2) whether he would have "serious difficulty in

refraining from sexually violent conduct" if released

unconditionally.

1.

The conditions that may constitute a "serious mental

illness, abnormality, or disorder" are not "delimited by the

consensus of the medical community." Carta,

.

"[O]ne will search § 4247(a)(6) in vain for any language purporting

to confine the universe of qualifying mental impairments within

clinical or pedagogical parameters," and, accordingly, "it has

been left to the courts to develop the meaning of 'serious mental

illness, abnormality, or disorder' as a legal term of art." United

States v. Caporale,

(4th Cir. 2012) (citation

omitted).

Here, the district court was persuaded that Hunt

suffered from such an illness. The government argues that there

is no "legitimate dispute" on this prong because all parties agree

that Hunt has been diagnosed with pedophilic disorder. Cf. Carta,

592 F.3d at 40–41 (explaining that the umbrella condition

"paraphilia," which includes pedophilia and other sexual

fixations, constitutes a "serious mental illness" for purposes of

- 13 - the Adam Walsh Act). Hunt, however, argues that his disorder

cannot be characterized per se as a "serious" one, because, as

reported by Dr. Plaud, Hunt will always carry this diagnosis due

to his history and the fact that the DSM-V does not include a

provision for remission of his disorder. Indeed, Dr. Plaud

testified that the severity of the diagnosis in Hunt was

"negligible."7

That may be so, but Hunt himself testified that this is

a lifelong condition with "no cure" and that he "manage[d]" it

every day. The district court expressly relied on this testimony

in reaching its final decision.8 The court also stated that it

was not fully convinced by Dr. Plaud's assessment that continued

treatment would have limited value for Hunt. In light of these

bases for the court's finding that Hunt's pedophilia was a serious

mental illness, and the lack of an authoritative rubric for grading

7 Nonetheless, Dr. Plaud also testified, "I would say [Hunt] meets th[e serious mental illness] prong" of the test because of his diagnosis. He reconciled this with his earlier testimony about the strength of the diagnosis by concluding: "I would temper -- I'd give him half a point" for this prong. 8 We recognize that it is not entirely clear from the record for which element of the sexual dangerousness inquiry the district court invoked this testimony, but no party has argued that the court improperly cited it for the purposes of the "serious difficulty" prong, rather than for the "serious mental illness" prong.

- 14 - the seriousness of one's illness, we defer to the district court's

assessment of Hunt's condition.9

2.

Hunt's more substantial argument is that the district

court erred in finding that he had failed to meet his burden to

show that he would not have "serious difficulty in refraining from

sexually violent conduct."

(a)(6). We have

previously noted that "the question of . . . risk of future

offense" for sexually dangerous persons is "by no means an easy

one." United States v. Shields,

(1st Cir. 2011).

That is no less true here, where even the government declined to

argue below that Hunt had not met his burden. Nonetheless, the

district court correctly observed that even if both parties were

to agree that Hunt had met his burden, the court could find that

was not so.

We are not in a position to reweigh afresh the evidence

presented before the district court. Reviewing that court's

decision with some deference, as we must, we cannot say that the

court erred when it found that Hunt had not yet met his burden.

The district court carefully considered Hunt's evidence about his

treatment and his physical condition and noted that "[t]his is a

9 Because of the difficulties of drawing lines around the severity of particular diagnoses, arguments about the severity of a given case may be better directed to the second prong of sexual dangerousness, regarding volitional control.

- 15 - close and difficult case." It often expressly credited Hunt's

progress and his candor before the court. We do have some concern

that, despite this consideration, the district court gave

seemingly little weight to Hunt's physical impairments in its

ultimate ruling. That being said, the court placed decisive weight

on the difficulty of determining whether Hunt's spotless record

and success was dependent in part on the conditions that he sought

to remove. Unconvinced on this point, the district court opted

for a "tapering" approach, eliminating many of the conditions,

including further mandatory treatment, but leaving in place for

the moment conditions concerning Hunt's beneficial relationship

with Probation.

We agree with the district court that this is a close

call. But given the statute's placement of the burden on Hunt and

the deference we must give to the district court's fact-finding,

we are unable and unwilling to second guess the district court's

conclusion. In so deciding, we note that no party disputes that

Hunt can now renew his motion for release from the remaining

conditions. See

(h), 4248(e). As the issues

here are fact-bound, and Hunt has now presumably been living under

his tapered conditions for the past two years, nothing in this

opinion should be construed to limit Hunt's future attempts to

seek final release from all conditions. This is not a case where

the imposition of conditions should be indefinitely self-

- 16 - justifying. To the contrary, the logic of the district court's

tapering objective suggests that, absent evidence of any

backtracking, Hunt should now be well-positioned to renew his

request.

B.

Hunt's remaining argument is that the removal of his

treatment conditions in the district court's latest modifications

renders his continued supervision contrary to statute. In short,

he argues that once the court found that treatment was no longer

necessary, it lacked the statutory authority to impose any other

conditions.

Hunt never raised this argument below. Indeed, when

informed of the court's decision and invited to make a further

filing, Hunt preserved only his contention that he was not a

"[s]exually [d]angerous [p]erson" and thus should be subject to no

conditions at all. Had Hunt raised the textual argument that he

now raises, it is not at all clear what the effect would have been,

given the district court's apparent reliance on Hunt's

representations that he would continue treatment. On appeal, Hunt

concedes that how best to read the statute on this point is not

"pellucid." Hence, even were we to give Hunt the benefit of plain

error review, we would find here that Hunt has not established

that he would have secured a more favorable result had he raised

the argument. That said, nothing in this opinion should be read

- 17 - to foreclose the district court's consideration of this argument

in future proceedings, should it have occasion to do so.

III.

For the foregoing reasons, the district court's decision

denying Hunt's motion for unconditional discharge is affirmed.

- 18 -