US v. Byron Antone

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 5:07-hc-02042-FL-JG. [999290238]. [12-2400]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-2400

UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
BYRON NEIL ANTONE,
Respondent - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:07-hc-02042-FL-JG)

Argued:

December 11, 2013

Decided:

February 4, 2014

Before GREGORY, DAVIS, and WYNN, Circuit Judges.

Reversed and remanded with instructions by published opinion.
Judge Davis wrote the opinion, in which Judge Gregory and Judge
Wynn joined.

ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.
Michael
Bredenberg, FMC BUTNER FEDERAL MEDICAL CENTER, Butner, North
Carolina, for Appellee.
ON BRIEF: Thomas P. McNamara, Federal
Public Defender, G. Alan DuBois, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant.
Thomas G. Walker, United States
Attorney, R.A. Renfer, Jr., Joshua B. Royster, Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.

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DAVIS, Circuit Judge:
Respondent-Appellant Byron Neil Antone appeals the district
court’s order of his civil commitment under the Adam Walsh Child
Protection and Safety Act of 2006 (“the Walsh Act”), codified at
18 U.S.C. §§ 4247-48. Four days before he was to be released
from

federal

prison,

an

official

of

the

Federal

Bureau

of

Prisons certified Antone as a sexually dangerous person eligible
for civil commitment. Upon referral of the ensuing proceedings
by the district court, a federal magistrate judge held a threeday

evidentiary

hearing

and

thereafter

issued

a

report

and

recommendation that Antone should not be found to be a sexually
dangerous person. The district court adopted the majority of the
magistrate judge’s factual and credibility determinations, but
it ultimately found that the Government had satisfied its burden
under

the

Walsh

Act

to

prove

that

Antone

was

a

sexually

dangerous person, and it committed him to civil custody.
Upon

our

careful

review

of

the

appellate

record,

we

conclude that the district court lacked sufficient evidence to
find that Antone met the standard for civil commitment under the
Walsh Act. Specifically, the Government did not present clear
and

convincing

evidence

that

Antone’s

mental

illnesses

would

cause him to have serious difficulty refraining from sexually
violent conduct. Accordingly, we reverse.

2

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I.
A.
Byron Neil Antone, now forty-one years old, was born in and
raised on the Tohono O’odham Indian Reservation in south central
Arizona. 1 Until age nine or ten, Antone was raised by his mother;
after

that

point,

he

resided

with

his

grandmother

and

his

drinkers

and

godmother.
Antone’s

mother

and

grandmother

were

heavy

Antone was often neglected and verbally and physically abused as
a child. At seven years old, Antone was on several occasions
sexually abused by his aunt, who was a teenager at the time. By
the time he was fifteen years old, he had had sexual intercourse
with at least two adult women, one of whom was twenty-six.
Antone had serious behavioral issues as a child, which led
to

school

expulsions

and

stints

in

juvenile

detention.

He

dropped out of high school in ninth grade. He did not maintain
steady

employment

seasonally

as

a

thereafter,

firefighter

with

1

although
the

he

United

was

employed

States

Forestry

These facts are a summary of the pertinent factual
findings set forth in the magistrate judge’s memorandum and
recommendation (“M&R”), which was wholly adopted by the district
court. To the extent conflicting inferences might be drawn from
the magistrate judge’s findings, because the Government was the
prevailing party before the district court, we construe the
evidence presented before the magistrate judge in the light most
favorable to, and consistent with, the ultimate determination of
the district court, whose order we review.

3

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Service and had attended specialized training classes in that
field.
In

1991,

when

Antone

was

nineteen

years

old,

he

was

arrested and charged with sexual misconduct with a minor, sexual
abuse,

and

contributing

to

the

delinquency

of

a

minor.

The

arrest related to two sexual acts with a sixteen-year-old who
was Antone’s girlfriend at the time. The first sexual act was
consensual, but the second was forcible rape. Antone pled guilty
to the sexual abuse charge in the Judicial Court of the Tohono
O’odham Nation (“tribal court”) and served about six months in
jail.
In 1997, tribal authorities charged Antone with threatening
and disorderly conduct. He admitted to rubbing the buttocks of
his cousin, then twenty-one years old, while she was sleeping on
the couch. He was sentenced to 60 days in tribal jail.
From 1998 to 1999, Antone was charged by tribal authorities
for

several

acts

of

sexual

misconduct,

which

resulted

in

a

consolidated plea agreement and tribal judgment entered on March
16,

1999.

The

consolidated

tribal

judgment

related

to

four

victims and spanned incidents from 1992 through 1997:
1) Forcible rape of a fourteen or fifteen-year-old in
1992 or 1993.
2) Touching of the crotch area of an eleven-year-old in
1996.
4

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3) Sexual assault of C.R., a woman of unknown age, in
June 1997. During this incident, Antone tried to force
C.R. to have sex with him, and when she refused, he threw
her on the bed, held her hands down, touched her breasts,
and touched her crotch area. C.R. was able to escape by
jumping out of her bedroom window.
4) Forcible rape of R.J., age twenty-five, in November
1997. During this incident, R.J. awoke

to find Antone on

top of her. He then forced her to have sex for five to
fifteen minutes.
Antone pled guilty to charges related to these four incidents in
the consolidated plea agreement. He was sentenced to 3,600 days
in jail by the tribal court.
Almost all of the incidents described above, and certainly
the June and November 1997 incidents, took place when Antone was
either intoxicated from alcohol and/or high on cocaine. Indeed,
Antone has a serious history of substance abuse. When he was
arrested in February 1998, he was drinking 3 to 5 quarts of beer
a day on average, and up to 11 quarts on some days. He was also
abusing a number of drugs, including marijuana, LSD, and crack
cocaine. As a result, Antone has little to no recollection of
these incidents.
In November 1999, Antone was sentenced in the United States
District Court for the District of Arizona on a sexual assault
5

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charge.

The

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particular

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charge

related

to

Antone’s

assault

against C.R. in June 1997, which was also a subject of his
consolidated tribal judgment. In addition, Antone admitted in
the federal plea agreement to sexual misconduct as to all the
incidents covered in the tribal court convictions.
According

to

the

testimony

of

Antone’s

attorney

at

the

time, which the magistrate judge fully credited, the federal
criminal

charge

was

actually

initiated

by

Antone

and

his

attorney. “The reason was to enable [Antone] to be transferred
to

federal

custody

and

thereby

have

access

to

sex

offense

treatment at FCI-Butner, which [the attorney] believed would be
designed specifically for Native Americans.” J.A. 845.
The federal district court in Arizona sentenced Antone to
114 months of incarceration, with credit for time served, and 60
months

of

supervised

release.

The

plea

agreement

reflected

Antone’s request to receive sex offender treatment in federal
custody, and the district court included a recommendation in its
judgment

that

Antone

participate

in

the

residential

drug

treatment and sex offender treatment programs.
B.
In

accordance

with

the

federal

judgment

and

commitment

order, Antone was incarcerated in the federal Bureau of Prisons
system from November 1999 through February 23, 2007, when the
Government initiated the instant proceeding four days before his
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expected release. Since then, Antone has resided in FCI-Butner,
a medium security correctional institution in North Carolina,
awaiting his civil commitment hearing and its resolution. As a
result, Antone has been in continuous federal custody for the
past fourteen years, or since he was twenty-seven years old.
During the entire period of his federal custody, Antone has
not

been

shown

to

have

consumed

alcohol

or

drugs.

Antone’s

prison record contains no sanctions or nonsanctioned incidents
related to alcohol or drugs, and he testified that he has been
sober

for

fourteen

years.

The

Bureau

of

Prisons

regularly

administers Breathalyzer tests on inmates in recognition of the
fact that it is possible to make and obtain contraband alcohol
within the prison. Antone has never tested positive on those
tests.
Antone

has

attended

Alcoholics

Anonymous

and

Narcotics

Anonymous on his own initiative. He attended meetings during the
first year and a half of his prison term and restarted about a
year before his commitment hearing. He also completed a Drug
Education Program and a non-residential substance abuse program.
Antone’s

behavioral

problems

while

in

prison

have

been

minimal. He has been sanctioned for four incidents, twice for
fighting

without

serious

injury

7

and

twice

for

minor

rule

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violations; the last of these sanctions occurred in 2004. 2 He
obtained

his

employment

GED

as

an

in

2001.

orderly

In
in

addition,
his

he

housing

has

maintained

unit.

His

work

performance therein was characterized as “superior.” J.A. 843.
Antone regularly seeks out advice and counseling from his
prison’s counselors and treatment specialists. In particular, he
has asked his counselors how to communicate with his son, with
whom he corresponds by mail, and for advice on anger management.
Antone

has

taken

classes

in

art,

beading,

meditation,

and

guitar. He teaches other inmates how to play the guitar.
As for sexual conduct, Antone’s record indicates that he
has

“not

engaged

incarceration.”

in

J.A.

sexual
882.

misconduct

At

the

time

during
of

the

his

extended

evidentiary

hearing, however, he had not attended sex offender therapy or
treatment. Antone and his former attorney testified that he had
made several requests for treatment at the early side of his
incarceration period, but it was apparently not then available
to him because “his release date was so far in the future.” 3 J.A.

2

The Bureau of Prisons records also refer to three events
that did not result in disciplinary sanction. They primarily
stem from the attempted delivery of the magazine Maxim to
Antone, and the presence in Antone’s cell of a number of
pictures, cut out from magazines, of scantily-clad adult women.
3

When asked to explain why he had not completed a sex
offender
treatment
program
at
any
point
during
his
incarceration, Antone responded, “I don’t know why. Some places
(Continued)
8

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830.

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When

Government

it

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became

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available

its

in

§ 4248(a)

September
petition,

2008,

after

the

Antone

did

not

participate in the treatment. He indicated that he did not do so
because he knew that statements made during treatment “could be
used against him” in the commitment proceeding. Id.
C.
On February 23, 2007, four days before Antone’s expected
release date, the Government filed a certification, pursuant to
18 U.S.C. § 4248(a), of Antone as a sexually dangerous person.
The case was originally stayed pending an appeal relating to the
constitutionality of § 4248, see United States v. Comstock, 551
F.3d

274,

276

(4th

Cir.

2009)

(holding

that

Congress

lacked

authority to implement § 4248), rev’d and remanded, 560 U.S.
126, 130 (2010) (reversing on issue of Congressional authority
but remanding for due process consideration); 627 F.3d 513, 515
(4th Cir. 2010) (subsequently holding that § 4248 satisfies due
process clause), cert. denied, 131 S. Ct. 3026 (2011). In June
2010, Antone filed a motion for a hearing on the merits of the
certification, and the district court referred the matter to a

I went didn’t have the program. . . . I was talking with some
other brothers who are here and they said they were told they
didn’t qualify.” J.A. 1238.

9

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magistrate

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judge

for

an

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evidentiary

hearing

and

report

and

recommendation.
The magistrate judge held an evidentiary hearing over the
course of three days in October 2011. As will be described in
further detail infra, the Government presented the testimony of
Antone, as well as two expert witnesses; Antone presented the
testimony of a specialist and a counselor at the correctional
facility at which he resided, a United States Probation Officer
from

Arizona,

and

an

expert

witness.

The

magistrate

judge

admitted the testimony of all three proffered expert witnesses.
On April 30, 2012, the magistrate judge issued his M&R, in
which

he

recommended

that

Antone

not

be

found

a

sexually

dangerous person. The Government thereafter filed a series of
objections to the M&R, to which Antone responded. The Government
also

submitted

several

additional

notices

of

supplemental

authority, including Ninth Circuit case law on the tolling of
supervised release during the pendency of a civil commitment
proceeding.
On September 20, 2012, the district court issued its order
and judgment on the instant certification. Although it accepted
all

of

the

magistrate

judge’s

of

historical

fact,

findings

credibility
it

rejected

determinations
the

M&R’s

and

ultimate

recommendation of a finding of not sexually dangerous. It found
that

the

combination

of

Antone’s
10

serious

mental

illnesses

—

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namely

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antisocial

dependence

–

refraining

from

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personality

would

cause

sexually

him

disorder
to

have

violent

and

serious

conduct

polysubstance
difficulty

in

released.

It

if

therefore committed Antone to the custody of the United States
Attorney General as a sexually dangerous person. The instant
appeal followed.
II.
A.
The Government seeks the commitment of Antone pursuant to
18 U.S.C. § 4248, which was enacted as part of the Adam Walsh
Child

Safety

and

Protection

Act

of

2006.

Under

§ 4248,

the

Government may seek the civil commitment of certain individuals
in

the

custody

determined

to

of
be

the

Federal

“sexually

Bureau

dangerous

of

Prisons

person[s].”

who
18

are

U.S.C.

§ 4248(d). The commitment process is initiated when the Attorney
General or his designee files a certification attesting that an
individual is sexually dangerous as defined by the Walsh Act,
after

which

the

respondent

is

entitled

to

an

evidentiary

hearing. “If, after the hearing, the court finds by clear and
convincing

evidence

that

the

person

is

a

sexually

dangerous

person, the court shall commit the person to the custody of the
Attorney General.” Id.
To

demonstrate

that

an

individual

should

be

civilly

committed under § 4248, the Government must prove, by clear and
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convincing evidence, that each one of the following criteria has
been satisfied: (1) the individual has previously “engaged or
attempted

to

engage

molestation”

(the

§ 4247(a)(5);

(2)

in

sexually

“prior
the

violent

conduct”

individual

conduct

element),

currently

or
18

“suffers

child
U.S.C.
from

a

serious mental illness, abnormality, or disorder” (the “serious
illness” element), id. § 4247(a)(6); and (3) as a result of such
a condition, the individual “would have serious difficulty in
refraining from sexually violent conduct or child molestation if
released” (the “serious difficulty” or “volitional impairment”
element), id. See also Comstock, 560 U.S. at 130; United States
v.

Springer,

715

F.3d

535,

538

(4th

Cir.

2013).

Antone

has

conceded that the Government has met its burden with regard to
the prior conduct element as well as the finding of a serious
mental

illness.

conclusion

as

He

to

disputes,

the

third

however,

element,

the

that

district

the

court’s

Government

has

demonstrated a sufficient likelihood that Antone will re-offend.
We review the district court’s factual findings for clear
error and its legal conclusions de novo. United States v. Hall,
664 F.3d 456, 462 (4th Cir. 2012). For the reasons we explain
within, although the district court’s ultimate mixed finding on
volitional impairment is not infected with “clear error” in the
traditional

sense

of

that

term,

it

nonetheless

constitutes

reversible error because it is against “the clear weight of the
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evidence considered as a whole.” United States v. Wooden, 693
F.3d

440,

conclude

451
as

(4th

a

Cir.

matter

2012).

of

law

Put

that

somewhat
the

differently,

Government

failed

we
to

establish by clear and convincing evidence that Antone would, as
a

result

of

difficulty

his

in

serious

illness

refraining

from

or

condition,

sexually

have

violent

serious

conduct

if

released.
B.
The standard set forth for civil commitment under § 4248 is
clear

and

standard

convincing

is

mandated

evidence.
not

only

This
by

so-called

the

plain

“intermediate”

language

of

the

statute, 18 U.S.C. § 4248(d), but by constitutional due process
constraints, as well. See Addington v. Texas, 441 U.S. 418, 427
(1979)

(observing

standard
“[t]he

is

that

required

individual’s

in

the

clear

civil

interest

and

convincing

commitment
in

the

evidence

proceedings

outcome

of

because
a

civil

commitment proceeding is of such [great] weight and gravity”).
When applying the clear and convincing standard, the court
must

identify

credible

supporting

evidence

that

renders

its

factual determination “highly probable.” Direx Israel, Ltd. v.
Breakthrough Med. Corp., 952 F.2d 802, 810 n.7 (4th Cir. 1992).
The

court

must

then

weigh

the

evidence

and

ask

whether

the

totality of the record “produces in the mind of the trier of
fact a firm belief or conviction, without hesitancy, as to the
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truth of the allegations sought to be established[.]” United
States v. Heyer, --- F.3d ---, ---, No. 12–7472, 2014 WL 185584,
at

*6

(4th

Cir.

DaimlerChrysler

Jan.

Corp.,

17,

269

2014)

F.3d

439,

(quoting
450

Jimenez

(4th

Cir.

v.

2001));

Springer, 715 F.3d at 538.
In applying the first two commitment criteria under the
Walsh

Act,

the

established

question

with

clear

is

and

whether
convincing

the

Government

evidence

that

has
the

respondent acted or acts in a certain manner. The third element,
however, is more complicated, in that it requires the court to
issue a predictive judgment: has the Government met its burden
by

presenting

clear

and

convincing

evidence

that,

in

the

uncertain future, the respondent will have “serious difficulty
in

refraining

from

sexually

violent

conduct

or

child

molestation”? 18 U.S.C. § 4247(a)(6).
We are mindful that the Supreme Court has explained that
such

an

inquiry

“will

not

be

demonstrable

with

mathematical

precision.” Kansas v. Crane, 534 U.S. 407, 413 (2002). Instead,
in order to find that the third criterion is satisfied, the
court must look for
proof of serious difficulty in controlling behavior. And
this, when viewed in light of such features of the case as
the nature of the psychiatric diagnosis, and the severity
of the mental abnormality itself, must be sufficient to
distinguish the dangerous sexual offender whose serious
mental illness, abnormality, or disorder subjects him to

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civil commitment from the dangerous but typical recidivist
convicted in an ordinary criminal case.
Id. In other words, the Government must demonstrate that the
serious

illness,

respondent,
capacity

has

such

as
so

that

it

has

manifested

he

is

the

particular

diminished

significantly

in

his

volitional

distinguishable

from

the

ordinary

“dangerous but typical recidivist.” Id.; see also Wooden, 693
F.3d at 460 (framing the third criterion as “the extent to which
the inmate is controlled by the illness”).
We

now

assess

the

instant

record

with

this

exacting

standard in mind. As to the third criterion, we find that the
aggregate

of

historical,

direct,

and

circumstantial

evidence

contained therein may be best described (as the magistrate judge
seemed to regard it) as in equipose, or, at most, as rising to a
level

of

preponderance

in

favor

of

commitment.

But

this

is

simply not enough to satisfy the statutory burden of clear and
convincing

evidence.

See

Medtronic,

Inc.

v.

Mirowski

Family

Ventures, LLC, 571 U.S. ---, ---, No. 12-1128, 2014 WL 223040,
at *6 (2014) (“[T]he burden of proof . . . [is] part of the very
substance of [the plaintiff’s] claim and cannot be considered a
mere

incident

of

a

form

of

procedure.”)

(quoting

Garret

v.

Moore-McCormack Co., 317 U.S. 239, 249 (1942)). We thus have no
hesitation in finding a fatal evidentiary insufficiency in the
Government’s presentation.

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C.
The majority of the evidentiary record consists of reports
and testimony presented at the three-day hearing in front of the
magistrate
testimony

judge.
from

Phenix,

Ph.D.

presented

in

the

Antone
and

the

specialist

At

hearing,

himself,

Manuel

testimony
the

the

and

Government

expert

E.

Gutierrez,

of

Clement

commitment

and

presented

witnesses
Psy.D.

Gallop,

treatment

Dr.

Antone
a

Amy
then

treatment

program

at

FCI-

Butner; Andre Taylor, a counselor at FCI-Butner; Anne Schauder,
a United States Probation Officer from Arizona; and an expert
witness,

licensed

psychologist

Roy

G.

Daum,

Psy.D.

The

magistrate judge found all of the witnesses credible, with a
single exception related to Antone’s account of certain past
crimes.
Because

the

sole

issue

on

appeal

is

whether

there

was

sufficient evidence of Antone’s future volitional impairment, we
summarize the evidence only as it pertains to that issue.
1.
The
testified

Government
that

he

first

was

called

unable

to

respondent
recall

the

Antone.
majority

Antone
of

his

sexual assaults because he was either drunk or high at the time
of

the

incidents.

He

then

testified

about

his

upbringing,

substance abuse, and progress while in prison. He stated that he
would always be an alcoholic and there would always be a risk
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that he would drink again, but that he knew to stay away from
high risk places and people. He also stated that while in prison
he had learned how to talk to others about his problems and to
“release [his] feelings in a positive way.” J.A. 221.
Subsequently, Antone presented the lay testimony of Clement
Gallop

and

Andre

Taylor.

Gallop

is

employed

as

a

treatment

specialist in the commitment and treatment program at FCI-Butner
and Taylor is a counselor at FCI-Butner. Gallop testified that
he is approached by Antone on a weekly basis, and that they have
discussed issues related to Antone’s son and anger management in
general. Taylor testified that Antone has never tested positive
or been observed to have imbibed alcohol or used drugs, even
though such substances are available in prison and Taylor had
disciplined others for alcohol-related issues. Both Gallop and
Taylor

had

positive

impressions

of

their

interactions

with

Antone.
Antone also presented the testimony of Allan Duprey and
Anne Schauder. Duprey, who was Antone’s attorney on the federal
criminal

charges,

testified

that

the

federal

charges

were

initiated at his urging so that Antone could have access to sex
offense

treatment

Duprey

also

availability

designed

testified
of

sex

specifically

that

offender

he

had

treatment,

for

Native

inquired
but

was

Americans.
about

told

by

the
the

Bureau of Prisons that Antone would not receive treatment until
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the last five years of his ten-year sentence. Schauder is a
United States Probation Officer in the District of Arizona. She
explained the support and supervision that her district provides
to sex offenders, including the utilization of halfway houses,
sex offender treatment, and polygraph tests. 4
2.
The Government also presented the testimony of two expert
witnesses, Dr. Amy Phenix and Dr. Manuel Gutierrez, who were
admitted as experts in the field of forensic psychology without
objection. Both Government experts testified that Antone met the
criteria for civil commitment as a sexually dangerous person.
Their conclusions were based on their review of Antone’s written
records. Dr. Gutierrez was unable to conduct an interview of
Antone, and the portion of Dr. Phenix’s report that related to
an

interview

magistrate

she

judge

conducted
and

the

with

Antone

Government

was

does

excluded

not

by

challenge

the
that

order.

4

Schauder also testified that on November 3, 2011, the
federal district court in Arizona had added an additional
condition that Antone reside in a halfway house for up to 365
days after release from custody. Antone consented to this
additional condition and executed a written waiver. Antone has,
of course, not yet been before any district court (in Arizona or
in another district should his supervision be transferred) for a
final determination as to the terms of his supervised release,
in light of the fact that he remains in federal custody in North
Carolina subject to the instant § 4248 proceeding.

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Dr. Phenix diagnosed Antone with paraphilia not otherwise
specified, nonconsent (“paraphilia NOS, nonconsent”); 5 alcohol
dependence; 6 and antisocial personality disorder (“APD”); 7 and
she testified that as a result, he would have serious difficulty
refraining from sexually violent conduct. She opined that the
primary

cause

paraphilia

NOS,

of

Antone’s

nonconsent,

volitional
mental

impairment

illness.

Dr.

was

Phenix

his
found

that Antone’s paraphilia NOS, nonconsent, caused him to deviate
from

ordinary

alcohol

sexual

dependence

impulses

would

serve

and
as

behaviors,
a

and

disinhibitor

then

his

and

his

antisocial personality disorder would reinforce his paraphilic
impulses. When specifically questioned by the court, Dr. Phenix
added that, even if the paraphilia diagnosis was disregarded,

5

Paraphilia is defined as “recurrent, intense sexually
arousing fantasies, urges and behaviors” involving, in the
context of the “nonconsent” specifier, sexual arousal “by the
nonconsenting aspect of nonconsensual sexual encounters.” J.A.
848-49.
6

Alcohol/substance dependence is defined as a “maladaptive
pattern of substance use, leading to clinically significant
impairment or distress[.]” J.A. 849. There is no dispute that
Antone suffers from substance dependence.
7

Antisocial personality disorder is defined as “an enduring
pattern of inner experience and behavior that deviates markedly
from the expectations of the individual’s culture, is pervasive
and inflexible, has an onset in adolescence or early adulthood,
is stable over time, and leads to distress or impairment.” J.A.
851. At the appellate level, Antone does not challenge the
diagnosis of antisocial personality disorder.

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she would still “believe that [Antone] will go on to commit
criminal sexual behavior.” J.A. 420.
Dr. Phenix’s conclusion on the volitional impairment prong
was based on (1) the pattern and duration of Antone’s offending;
(2) his commission of additional offenses after his 1991 sexual
abuse conviction; (3) an actuarial assessment of risk based on
static risk factors; (4) the presence of dynamic risk factors;
and 5) the absence of protective factors. Dr. Phenix explained
at the hearing that her first methodology was to “look at the
pattern

and

duration

of

his

offending

to

see

how

well

his

behavioral controls were when he was in the community.” J.A.
331.

She

emphasizing

focused
the

on

certain

repeated

undisputed

nature

and

historical

aggression

factors,

of

Antone’s

assaults and that he continued to commit assaults even after his
first arrest in 1991. 8
Dr. Phenix viewed Antone’s behavior while incarcerated only
as a secondary consideration. When questioned on why she relied
almost

exclusively

on

pre-incarceration

conduct,

Dr.

Phenix

responded that “I think the best measure of his volition is

8

With respect to her actuarial analysis, Dr. Phenix
utilized several predictive models, in which she inputted a
number of “static,” mostly historical facts, including the
number of prior sex offenses; whether the offender was single at
the time of offending; and whether any victims were related to
the offender.

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prior to being in a prison where you have such strict structure
and rules for your behavior[.]” J.A. 332.
The

magistrate

Government
matched

witness

those

polysubstance

of

judge
Dr.
Dr.

(including

also

heard

Gutierrez.
Phenix

-

Dr.

similar

Gutierrez’s

paraphilia

alcohol)

testimony

dependence;

NOS,
and

from

diagnoses
nonconsent;
antisocial

personality disorder – and also included an additional diagnosis
of paraphilia NOS, hebephilia. He concluded that a combination
of all of the above-listed illnesses, or alternatively a sole
diagnosis of APD, would “cumulative[ly]” cause Antone to have
serious

difficulty

refraining

from

sexually

violent

conduct.

J.A. 457-58.
Antone subsequently presented the testimony of his expert
witness, Dr. Roy Daum, who was admitted as an expert in the
field of forensic psychology over the Government’s objection.
After conducting a forensic evaluation of Antone in February
2011, Dr. Daum diagnosed Antone with polysubstance dependence;
frotteurism; and borderline personality disorder. 9 He agreed with

9

Notably, Dr. Daum did not diagnose Antone with any form of
paraphilia NOS, be it nonconsent (when an individual is aroused
by nonconsent) or hebephilia (when an individual is aroused by
pubescent individuals). He explained that after interviewing
Antone for five hours, he had not seen any evidence or admission
by Antone — for example, an interest in deviant sexual fantasies
or a physical arousal to certain images — that would suggest
that Antone was aroused by forced sex. Dr. Daum also referred to
a psychophysiological evaluation taken in 1999 in anticipation
(Continued)
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the Government’s experts that Antone met the first and second
criteria

of

§ 4248

confinement.

He

disagreed,

however,

that

Antone had demonstrated that he would have serious difficulty
refraining from sexually violent conduct if released.
Dr. Daum reasoned that Antone’s offense conduct had not
been rooted in sexual deviance, but rather stemmed from a lack
of

interpersonal

skills

and

a

serious

substance

abuse.

Dr.

Daum’s conclusion considered as a central part of his analysis
certain

“dynamic”

factors

observed

during

Antone’s

incarceration, including the absence of evidence of any use of
drugs or alcohol or any engagement in antisocial activities; the
absence

of

records

preoccupation;
evidence

of

learning

of

showing

Antone’s
his

Antone

positive

completion

vocational

that

of

skills,

had

a

management
several

and

general

records;

self-help

seeking

sexual
and

programs,

counseling

while

incarcerated. Of the difference between his opinion and that of
Dr. Phenix and Dr. Gutierrez, he remarked the following:

of Antone’s federal sentencing. Although the report did not make
a formal diagnosis, it observed that “[i]t is possible that
[Antone’s] sexually aggressive and sexually deviant behavior
patterns
are
the
result
of
emotional
and
psychological
disturbance, rather than persistent deviant sexual arousal or
attraction[.]” J.A. 829.
As will be discussed infra, both the magistrate judge and
the district court adopted Dr. Daum’s conclusion that Antone did
not suffer from any form of paraphilia.

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I believe there are many factors that you look at as far as
a civil commitment is concerned. Certainly you have heard
the last two days of a lot of discussion about actuarials.
One of the things that is really missing is the dynamic
factors of how that person is now [as compared to his
former] acts. Static, meaning it’s all said and done and
it’s easy to score, . . . but the dynamic factors allow for
the growth of a person to change or it allows for the
person not to change.
J.A. 642. Finally, Dr. Daum opined that outpatient treatment of
Antone during supervised release could adequately address his
sex offense and substance abuse problems.
D.
On

April

30,

2012,

the

magistrate

judge

issued

a

comprehensive M&R recommending that the district court reject
the Government’s certification of Antone as a sexually dangerous
person. The magistrate judge concluded that the Government had
met its burden with regard to the first element, in that Antone
had

previously

engaged

in

sexually

violent

conduct.

The

magistrate judge also accepted the Government’s contention that
Antone suffered from certain serious mental illnesses within the
scope of § 4247(a)(6). Specifically, the magistrate judge found
evidence of polysubstance dependence, but it rejected the rest
of the Government experts’ diagnoses, most notably paraphilia
NOS,

nonconsent

rejected

Dr.

and

Daum’s

antisocial

personality

diagnoses

of

personality disorder.

23

disorder.

frotteurism

and

It

also

borderline

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The
the

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magistrate

Government

Pg: 24 of 44

judge

ultimately

concluded,

not

presented

sufficient

had

however,
evidence

that
to

demonstrate that Antone’s polysubstance dependence would result
in

a

serious

difficulty

refraining

from

sexually

violent

conduct. The magistrate judge emphasized that the Government’s
position on volitional impairment was “based on [a theory of]
multiple diagnoses,” but it had decided that the Government had
not

met

its

burden

on

any

of

those

diagnoses

except

polysubstance dependence. As a result, the magistrate judge was
not persuaded by the Government’s presentation as to Antone’s
volitional impairment. It cited, for example, to Dr. Gutierrez’s
understanding that “just a substance diagnosis alone could not
essentially stand by itself for civil commitment.” J.A. 881.
The magistrate judge afforded near determinative weight to
Antone’s conduct “over the last 13 or so years,” during his time
in federal prison. It noted that Antone had not been shown to
have consumed alcohol or drugs or to have engaged in sexual
misconduct during his extended incarceration. It also pointed to
his attendance in Alcoholics Anonymous and his eagerness to seek
out counseling for anger management.
The magistrate judge recognized that Antone’s achievements
while incarcerated came about in a controlled environment where
access to his vices was limited. Nevertheless, its review of the
evidence – including the testimony of Dr. Daum, who had stressed
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the utility of dynamic factors in Antone’s case - led it to
conclude that over the past thirteen years, Antone “has achieved
a

level

of

sexual

self-regulation”

and

“a

measure

of

self-

control” that significantly undercut the Government’s position
that he would have serious difficulty refraining if released.
J.A. 882. It observed that certain evidence relied upon by the
Government’s expert witnesses, such as the nature, pattern, and
duration of offense conduct, “is not as reliable an indicator of
his behavior if released . . . because of, among other reasons,
the

extended

intervening

period

in

which

there

was

no

manifestation of such conduct.” J.A. 884-85.
The magistrate judge also considered as “significant[]” the
fact

that

Antone

would

be

subject

to

“an

extended

term

of

supervised release.” J.A. 883. It noted that he would spend his
first year of supervised release in a halfway house and that
throughout

his

participation

term,
in

he

would

substance

be

abuse

subject
and

sex

to

supervision

offender

and

treatment

programs, periodic drug tests, and prohibitions against contact
with children.
In light of the “paucity” of evidence that Antone would
have serious difficulty refraining from sexually violent conduct
if released, the magistrate judge concluded that the Government
had failed to meet its burden of establishing, by clear and

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convincing evidence, that Antone was a sexually dangerous person
under § 4248. J.A. 886.
E.
On September 24, 2012, the district court issued an order
rejecting

the

magistrate

judge’s

ultimate

recommendation

and

civilly committing Antone. It accepted the M&R’s findings of
historical

fact

and

witness

credibility,

and

noted

that

it

reviewed de novo those aspects of the M&R that were objected to
by the parties.
In applying the three-prong test, the district court first
accepted the magistrate judge’s conclusion that the Government
had

established

conduct. It

that

also

Antone

agreed

had

with

engaged

the

in

majority

sexually
of

the

violent

magistrate

judge’s recommendations as to the diagnoses of Antone’s mental
illnesses.
suffered

Notably,

from

the

district

polysubstance

court

dependence

found

and

that

that
he

Antone
did

not

suffer from paraphilia NOS, nonconsent. In disagreement with the
magistrate judge, however, the district court found sufficient
evidence of a diagnosis of antisocial personality disorder and
held

that

these

two

diagnoses,

as

manifested

in

Antone,

qualified as serious mental illnesses.
The

district

court

then

found

that

the

Government

had

satisfied the volitional impairment requirement of § 4248. In

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doing so, its primary focus appeared to be Antone’s admitted
alcoholism. It stated:
Respondent admits that he is and will always be an
alcoholic. To his credit, respondent has participated in
substance abuse treatment and evidently has refrained from
using alcohol and drugs while incarcerated. . . .
[However,] the risk that respondent will relapse into
abusing alcohol and other substances would be much higher
in the community.
J.A. 1115-16. It continued, “[t]he court is convinced that if
respondent uses alcohol he will have serious difficulty stopping
himself

from

sexually

attacking

persons

he

finds

desirable,

despite their nonconsent.” J.A. 1116.
The district court looked to the combination of Antone’s
substance dependence and APD diagnoses to predict that his past
history of sexual attacks would continue once released. “This
volitional impairment has resulted in a consistent pattern of
numerous violent sexual attacks in the past, and the court finds
that the impairment will persist if respondent is released.” Id.
The

court

also

relied

on

Dr.

Phenix’s

testimony

that

her

conclusion on the volitional impairment prong would not change
without the paraphilia NOS, nonconsent diagnosis.
Finally, the court expressed concern that it would not be
able to require Antone to undergo sex offender treatment. All
parties – including Dr. Daum as well as Antone himself – agreed
that Antone would benefit from sex offender treatment. According
to the district court, however, under a recent Ninth Circuit
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case,

Doc: 41

United

Filed: 02/04/2014

States

v.

Pg: 28 of 44

Turner,

a

§ 4248

detainee’s

term

of

supervised release is not tolled while he remains in custody
awaiting a commitment hearing. 689 F.3d 1117, 1121 (9th Cir.
2012). Assuming Antone’s period of supervised release actually
had begun when he was due to be released from the Bureau of
Prisons, supervision would have ended on February 27, 2012, but
he was still civilly committed at that point. The district court
thus predicted that without a tolling mechanism, Antone would
not be subject to any term of supervised release under Ninth
Circuit law. It also rejected as “irrelevant” the testimony of
the probation officer from Arizona based on similar reasoning.
Accordingly,
judge’s

ultimate

the

district

court

recommendation,

rejected

instead

the

magistrate

finding

that

the

Government had established that Antone was a sexually dangerous
person within the meaning of 18 U.S.C. § 4247(a)(5) and (6).
F.
Because
elements

of

Antone
the

has

not

Government’s

disputed
§ 4248

the

first

and

certification,

second

the

sole

issue on appeal is whether the district court erred in finding
that he will have serious difficulty refraining from sexually
violent conduct if released. We hold that it did.
Under

the

clear

error

standard,

we

may

not

reverse

the

district court’s holding even if we are “convinced that had we
been sitting as the trier of fact, we would have weighed the
28

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evidence

differently.”

citations

omitted).

deferential,
(internal

it

is

Springer,
Yet

not

citations

Pg: 29 of 44

715

“while

A

at

545

clear-error

toothless.”

omitted).

F.3d

Wooden,

reversal

693
is

(internal

review
F.3d

is

at

451

warranted,

for

example, if the district court failed to “properly tak[e] into
account substantial evidence to the contrary” or its “factual
findings are against the clear weight of the evidence considered
as a whole.” Id. at 462. We may then reverse if, upon reviewing
the district court’s ultimate mixed findings, we are “left with
the

definite

and

firm

conviction

that

a

mistake

has

been

committed.” Id. at 451.
That is precisely what is at stake here: our review of the
lower

court

court’s

opinion

leads

inadequate

us

to

consideration

conclude
of

that

the

certain

district

“substantial

evidence” – namely Antone’s behavior in the past fourteen years
or

so

–

constitutes

reversible

error.

And

our

subsequent

analysis of the evidentiary record leaves us with a definite and
firm conviction that Antone’s commitment should be reversed.
That Antone has “responded very well” to incarceration is
not in dispute. J.A. 333. Antone has not tested positive for any
substances while in prison, and he testified that he has been
sober during his extended incarceration. Antone’s conduct as it
relates to sexual deviance is equally commendable. Not only has
he

not

engaged

in

any

actual

sexual
29

misconduct

or

hostility

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toward women, but, just as importantly, his record is devoid of
any

indication

that

he

has

even

desired

to

manifest

such

misconduct.
Instead, Antone has presented significant testimony to the
contrary. Two employees from the correctional facility testified
on

Antone’s

behalf,

and

the

magistrate

judge

found

credible

their assurances that their interactions with Antone have been
consistently

positive

and

that

he

has

demonstrated

self-

awareness and control on a regular basis. He has for the most
part avoided conflicts with superiors or fellow inmates. Antone
has completed his GED, as well as other professional programs,
and he readily seeks out the prison’s mental health resources.
He has expressed remorse for his past acts.
Yet the district court’s discussion of Antone’s behavior
while incarcerated is negligible at best. It failed to discuss
the opinions of Gallop or Taylor, the only witnesses who have
had consistent contact with Antone since his incarceration. It
considered the testimony of Antone only to the extent that he
admitted that he will always be an alcoholic. 10 And it failed to
10

To the contrary, we note that Antone’s admission that he
will always struggle with alcohol is a crucial and necessary
step in his path toward recovery from substance abuse. See The
Twelve
Steps
of
Alcoholics
Anonymous,
available
at
http://www.aa.org/en_pdfs/smf-121_en.pdf (stating that the first
step in addressing addiction is accepting that a problem exists)
(last visited January 31, 2014).

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mention the nearly ten-year period in which Antone has had zero
disciplinary infractions and the nearly fifteen-year period in
which Antone has had no sex-related incidents.
In

fact,

in

the

“serious

difficulty”

section

of

its

opinion, the district court’s analysis of Antone’s conduct while
incarcerated is limited to a single sentence acknowledging his
“evident[]” abstinence from alcohol. 11 Relying again on Antone’s
past history of “numerous violent sexual attacks,” it concluded
that his volitional impairment would persist if released.
Since upholding the constitutionality of the Walsh Act in
2010, we have disposed of more than a handful of § 4248 appeals
involving

the

involved

a

volitional

respondent

impairment
who

had

prong,

but

demonstrated

none
such

of

them

positive

behavior during the extended period of his incarceration. In
each

of

those

cases,

the

district

court

referred

to

some

negative aspect of the respondent’s recent (that is, during11

That portion of the district court opinion reads, in

total,
Respondent admits that he is and always will be an
alcoholic. To his credit, respondent has participated in
substance abuse treatment and evidently has refrained from
using alcohol and drugs while incarcerated. Although
alcohol and drugs are certainly present where respondent is
housed, they are contraband, and their availability is
considerably limited compared to the access respondent
would have to such substances if he were to be released.
J.A. 1115 (emphasis added).

31

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incarceration

or

Pg: 32 of 44

post-release)

behavior.

In

United

States

v.

Bolander, 722 F.3d 199, 204 (4th Cir. 2013), for example, we
affirmed the commitment of a respondent who stole pornographic
materials

from

collected

child

Likewise,

in

the

treatment

pornography

United

States

lab

while

while

v.

on

Wooden,

incarcerated

supervised
693

F.3d

at

and

release.
445,

the

respondent had written a letter to one of his previous victims,
and

we

concluded

that

he

had

serious

volitional

impairment

issues. See also United States v. Heyer, --- F.3d at ---, 2014
WL 185584, at *2-3, 9 (noting respondent’s admission of “ongoing
sexual

interest

in

children,”

including

showing

child

pornography to a teenage boy while on probation).
Even those cases in which the respondent was ultimately
found not to qualify for commitment nevertheless involved some
evidence of negative behavior during incarceration. In United
States v. Hall, 664 F.3d at 464, the district court considered
the

respondent’s

ongoing

interest

in

collecting

pictures

and

drawings of children and adolescents while in custody and his
report

that

he

often

masturbated

to

memories

of

his

child

victims, but it ultimately concluded that due to his abstention
from

hands-on

offenses

during

his

twenty-eight

months

of

release, he was not sexually dangerous under § 4248; we affirmed
the judgment. See also United States v. Francis, 686 F.3d 265,
271

(4th

Cir.

2012)

(considering
32

respondent’s

perceived

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hostility

toward

release,

but

women

and

affirming

his

Pg: 33 of 44

noncompliance

denial

of

with

government’s

supervised
commitment

petition).
Here, Antone’s behavior during the past fourteen years –
indeed, during a period of time that spans the majority of his
adult life – reveals no acts that conceivably come close to the
sort of malfeasance present in our aforementioned precedent. 12 On
these facts, there is not much more that he could have done to
demonstrate that he is in control of his volitional faculties
and that such control is likely to persist after his release.
The district court should have been aware of the uniqueness of
Antone’s

factual

record.

As

such,

it

was

imperative

for

the

12

The district court made reference to the fact that Antone
had not attended sex offender treatment. Antone had, however,
repeatedly sought this treatment at the beginning of his
incarceration to no avail. It is true that he was eventually
offered sex offender treatment sometime in September 2008, but
this choice was effectively no choice at all. At that point, the
Government was proceeding with its efforts to civilly commit
Antone, and any treatment received would be at the cost of
providing the Government with additional fodder to use against
him in those proceedings.
The district court also noted that Antone’s institutional
conduct “has not been without incident.” J.A. 1114. It cited to
his two sanctions for fighting, both of which occurred before
2004, and the presence of “inappropriate materials” in his cell.
We reject the notion that the prison’s confiscation of the
magazine Maxim can rise to the level of malfeasance discussed
above.

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court to comprehensively address why it believed Antone’s recent
behavior was overshadowed by his past acts. It failed to do so.
In Wooden, we recently confronted a situation in which we
believed that the district court had failed to consider relevant
and

substantial

evidence

of

a

respondent’s

volitional

impairment. 693 F.3d at 458-62. There, the district court had
rejected the petition for civil commitment, finding that the
Government
evidence

had

failed

that

the

refraining

from

record

led

us

relied

on

a

failed

to

account

to

demonstrate

respondent

would

re-offending.
to

hold

flawed

otherwise.

expert
for

Our

a

clear

have

and

convincing

serious

difficulty

review

of

Because

the

opinion

and

“substantial

the

district

ignored
body

evidentiary

of

or

court

otherwise

contradictory

evidence,” we found reversible error. Id. at 461.
Here,

as

in

Wooden,

we

have

again

been

“left

with

the

definite and firm conviction that a mistake has been committed.”
Id. The “core” of Antone’s case was his decade-long process of
rehabilitation.

Antone

called

three

separate

witnesses

to

support his position that, as a result of his efforts to obtain
treatment, he had improved his ability to control his impulses.
The district court’s one-sentence dismissal of Antone’s case in
chief

does

not

sufficiently

address

evidence contained therein.

34

the

valid

and

important

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We hasten to note that it was not clearly erroneous for the
district

court

incarceration
finding.

A

to

place

acts

and

significant
behavior

respondent’s

weight

in

on

reaching

criminal

record

Antone’s
its

“may

pre-

predictive
well

be

a

historical factor, but it is by no means a stale or irrelevant
one. When the question is whether an inmate . . . will have
serious

difficulty

consideration

of

refraining

the

nature

from
of

re-offending

his

prior

if

crimes

released,
provides

a

critical part of the answer.” Wooden, 693 F.3d at 458. Rather,
the deficiency here lies primarily in the Government’s failure
to

muster,

and

the

district

court’s

failure

to

hold

the

Government to its obligation to muster, sufficient evidence of
an ongoing volitional impairment in this case. The mixed finding
that

ensues

is

“against

the

clear

weight

of

the

evidence

considered as a whole” and constitutes reversible error.
As both the magistrate judge and Dr. Daum recognized, in
analyzing

whether

a

respondent

will

have

serious

difficulty

refraining from re-offending, one must look to his past and his
present

condition.

Here,

Antone

has

presented

significant

indicators that he presently “has problems, takes responsibility
for them, and seeks help for them,” and his pre-incarceration
malfeasance cannot be the sole relevant factor of consideration.
J.A. 883. We certainly do not fault the Government, as whatever
evidence it had, it presented, but that evidence largely (and
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certainly

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equally)

rehabilitation

and

serves
his

Pg: 36 of 44

to

bolster

subsequent

Antone’s

capacity

for

asserted
volitional

control.
The

Government

contends

that

the

district

court

amply

justified its conclusion by relying on the testimony and reports
of its expert witness Dr. Phenix. 13 It is true that Dr. Phenix
opined that Antone met the volitional impairment prong, and we
are “reluctant to set aside a finding based on the trial court’s
evaluation of conflicting expert testimony.” Hendricks v. Cent.
Reserve Life Ins. Co., 39 F.3d 507, 513 (4th Cir. 1994). Yet we
cannot unreservedly accept the district court’s election to give
determinative

weight

to

Dr.

Phenix’s

opinions,

and

for

two

reasons.
First, Dr. Phenix’s conclusion as to whether Antone would
have serious difficulty in re-offending was based on multiple
diagnoses

(including,

most

importantly,

paraphilia

NOS,

nonconsent) that were subsequently rejected by the magistrate
judge and the district court. Indeed, Dr. Phenix testified that
Antone’s “paraphilic disorder is primarily responsible for so
many

incidents

of

nonconsenting

13

sexual

activity

and

child

The district court did not state that it relied on Dr.
Gutierrez’s report or testimony for its conclusion on the third
prong, and we agree that Dr. Gutierrez’s statements do not give
rise to clear and convincing evidence of volitional impairment.

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molest[ation],”

and

dependence

antisocial

and

“contributor”
district

or

court

paraphilia,

the

conclusions.

The

that

her

primary
fact

paraphilia

diagnosis

persuasive

force

other

giver.”

that

the

J.A.

by

her

318,

did

325.

not

opinion

as

But

suffer

a

the
from

Dr.

rejected

minimizes

substance

served

supporting

court

significantly

diagnoses,

disorder,

Antone

diagnosis

that

retained

two

personality

“permission
concluded

Pg: 37 of 44

Phenix’s

Dr.

Phenix’s

the
as

amount
to

of

Antone’s

volitional impairment. 14
Second, and more fundamentally, Dr. Phenix’s evaluation of
Antone suffers from the same flaw as the conclusion ultimately
put forth by the district court. The expert report submitted by
Dr. Phenix focuses almost exclusively on events that occurred
prior

to

1997;

indeed,

she

admitted

as

much

during

her

testimony. Dr. Phenix explained that her decision to focus on
pre-incarcerative

acts

stemmed

from

her

belief

that

actions

taken while in the outside world are more accurate predictors of

14

When
specifically
questioned
on
her
thoughts
on
commitment without her paraphilia diagnosis, Dr. Phenix did
opine that she would still consider Antone to be a sexually
dangerous person. She clarified that this was because she
“believe[d] that he will go on to commit criminal sexual
behavior.” J.A. 420. Dr. Phenix’s analysis of future criminality
is not the legal inquiry at stake in § 4248 commitment, which
looks instead to an individual’s volitional control. For this
reason, this statement is insufficient to meet the Government’s
heightened burden.

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future behavior upon release. That is, of course, her choice,
but as it relates to our review of the evidentiary record, it
will not carry the day. The district court should have at the
very

least

conclusion

explained
more

why

it

persuasive

found
than

Dr.

that

Phenix’s
of

Dr.

unadorned
Daum,

who

specifically critiqued the former’s technique because it did not
allow for a respondent’s subsequent growth. We find that Dr.
Phenix’s conclusion on volitional impairment is insufficient to
satisfy

the

Government’s

heightened

clear

and

convincing

evidence burden. Cf. Wooden, 693 F.3d at 457 (finding that the
“many deficiencies” in an expert’s testimony “leave us firmly
and

definitely

convinced

that

the

district

court’s

factual

district

court’s

findings were mistaken.”).
The

Government

next

contends

that

the

consideration of Antone’s recent behavior was sufficient because
it explicitly adopted the magistrate judge’s factual findings
and

credibility

determinations

related

to

the

lay

witness

testimony. We reject this argument. Even though the district
court

acknowledged

its

awareness

of

the

testimony,

that

by

itself does not indicate to us that it adequately considered its
impact. If, after reading the opinion, we cannot understand how
the district court came to its conclusions, then we will be
unable to perform a cogent analysis on its merits.

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Factfinding

is

“a

Pg: 39 of 44

dynamic,

holistic

process

that

presupposes for its legitimacy that the trier of fact will take
into account the entire record before it.” Taylor v. Maddox, 366
F.3d 992, 1007 (9th Cir. 2004). When “the court’s account of the
evidence is not plausible in light of the record viewed in its
entirety,” then it is not entitled to deference upon our review.
Wooden, 693 F.3d at 460. Here, the district court disposed of
more

than

a

decade

of

evidentiary

data

points

in

a

single

sentence, and we cannot find that it properly took into account
all substantial evidence.
Nor can we, on the merits of the matter, find that the
Government presented clear and convincing evidence that Antone
will

have

serious

difficulty

released.

The

difficulty

element

sexual

Supreme

offender”

convicted

in

an

is

from

refraining

Court

has

intended

to

the

ordinary

from

stated

that

distinguish

“dangerous
criminal

but
case

re-offending
the

if

serious

the

“dangerous

typical

recidivist

who,

having

been

convicted and punished for one crime, proceeds through his own
free choice to commit another.” Kansas v. Crane, 534 U.S. at
413. Here, then, the Government must demonstrate that Antone’s
particular manifestation of his mental illnesses are so severe
and

controlling

as

to

deprive

indeterminate future.

39

him

of

his

liberty

for

an

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That is not the case. Clear and convincing evidence equips
a

factfinder

with

“a

firm

belief

or

conviction,

without

hesitancy,” of the truth of the matter asserted, and, on the
record before us, we possess no such conviction about the grip
strength of Antone’s mental illness on his behavior. Springer,
715 F.3d at 538. We have already cited the substantial evidence
in the record indicating that Antone has developed a level of
general and social self-regulation; indeed, on these facts, we
are hard-pressed to suggest much else that he could possibly do
to undercut the notion that he would have serious difficulty in
restraining
commitment
undisputedly

from
is

re-offending.
based

prevalent

on
in

What’s

two
the

more,

Antone’s

mental

disorders

nationwide

prison

that

civil
are

population. 15

See, e.g., Kansas v. Crane, 534 U.S. at 412; see also Jack
Vognsen & Amy Phenix, Antisocial Personality Disorder is Not
15

In Kansas v. Crane, the Supreme Court recognized the
“constitutional importance of distinguishing a dangerous sexual
offender subject to civil commitment from other dangerous
persons who are perhaps more properly dealt with exclusively
through criminal proceedings.” 534 U.S. at 412. In fact, in
making this precise point, the Court cited to the wide
prevalence of antisocial personality disorder among inmates one of the two mental illnesses at issue in the instant case.
In his brief, Antone has contended that the language in
Crane supports his position that it is unconstitutional to
commit individuals under § 4248 who do not suffer from a
paraphilia. Because we hold that, on the evidentiary record
before us, Antone has not been shown to be a sexually dangerous
person, we do not reach this question.

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Enough: A Reply to Sreeivasan, Weinburger, and Garrick, 32 J.
Am. Acad. Psychiatry Law 440, 442 (2004) (J.A. 1035-37) (noting
that 50 to 70 percent of the ordinary prison population suffers
from antisocial personality disorder); Dept. of Justice, Bureau
of

Justice

Statistics,

Christopher

J.

Mumola

&

Jennifer

C.

Karberg, Drug Use and Dependence, State and Federal Prisoners,
2004 1 (2004), available at
http://www.bjs.gov/content/pub/pdf/dudsfp04.pdf (finding that 45
percent

of

dependence

federal
or

prisoners

abuse)

(last

met

DSM-IV

visited

criteria

January

31,

for

drug

2014).

We

conclude that, under the clear and convincing evidence standard,
the

Government

volitional

has

failed

to

from

that

impairment

distinguish
of

a

Antone’s

“dangerous

alleged

but

typical

recidivist.” Kansas v. Crane, 534 U.S. at 413.
G.
Finally,
release. The

we

turn

district

to

the

court’s

issue

of

position

Antone’s

seems

to

be

supervised
that,

if

Antone were to contest the terms of his supervised release in
front of his sentencing court in Arizona, then the sentencing
court would be bound by Ninth Circuit law and hold that his
supervised

release

expired

in

February

2012.

See

United

v.

Turner, 689 F.3d at 1121 (holding that civil detention under the
Walsh Act does not toll supervised release). On appeal, Antone
contends

that

the

district

court
41

erred

as

a

matter

of

law

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because it failed to consider the possibility that he would be
judicially

estopped

supervised

release

from
in

challenging

the

course

his

of

expressly-agreed-to

this

civil

commitment

litigation.
As we hold that the evidence in this record is insufficient
under the clear and convincing standard to support the district
court’s predictive judgment of Antone’s volitional impairment,
we need not wade into this legal issue at this time, nor do we
find any reason to do so. Antone has given no indication that he
will challenge his status as a supervised releasee under the
judgment of
premature

to

the

Arizona

anticipate

district
that

court,

Turner

and

will

it

even

is
be

therefore
invoked

in

front of the sentencing judge. Indeed, it is our understanding
that the sentencing judge has accepted a recommendation by joint
agreement

(signed

by

Antone)

that

imposes

as

an

additional

condition of his supervised release a 365-day term in a halfway
house

upon

modification

his

release

changes

the

from

federal

application

custody.
of

Turner

Whether
is

for

this
the

district court in Arizona (or another federal district court
should Antone’s supervision be transferred) to decide, not this
court or the North Carolina district court. 16

16

As for judicial estoppel, it, too, is prematurely in
front of this panel. Antone has not at this point “adopt[ed] a
position that is inconsistent with a stance taken in prior
(Continued)
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At oral argument before us, counsel for Antone reported
that Antone is currently attending sex offender therapy. 17 One
can

only

be

encouraged

by

Antone’s

commitment

to

self-

improvement, rehabilitation, and recidivism prevention.
III.
For the reasons set forth, we conclude that the appellate
record does not support the district court’s determination that
Antone would have serious difficulty refraining from sexually
violent conduct if released. It may be that we would affirm the
judgment

were

the

Government’s

burden

one

of

a

mere

preponderance, but it is not and we do not. The Government has
not established by clear and convincing evidence that the facts
and

circumstances

sexually

dangerous

of

this

case

individual

establish
subject

to

that

Antone

commitment

is

a

under

litigation,” and the Government has not invoked the defense of
judicial estoppel. See generally Zinkand v. Brown, 478 F.3d 634,
638 (4th Cir. 2007). However, if the tolling issue does
ultimately come before a federal district court, the court will
surely consider the relevance of Antone’s consistently expressed
intent to complete his term of supervised release upon his
release from the Bureau of Prisons.
17

We note that Antone has been attending sex offender
therapy in spite of its potential impact on future civil
commitment hearings. See generally Jeslyn A. Miller, Comment,
Sex Offender Civil Commitment: The Treatment Paradox, 98 Cal. L.
Rev. 2093, 2115 (2010) (explaining that “[e]verything that an
offender confesses during these multiple stages of treatment including sexual fantasies, uncharged offenses, and gruesome
details regarding sexual offenses - is discoverable.”).

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§ 4248. Accordingly, we reverse the judgment of the district
court

and

remand

the

matter

to

the

district

court

with

instructions to dismiss the petition. The mandate shall issue
forthwith.
REVERSED AND REMANDED WITH INSTRUCTIONS;
MANDATE TO ISSUE FORTHWITH

44