United States of America v. Carta

Filing 183

Judge Patti B. Saris: ORDER entered: FINDINGS OF FACT AND CONCLUSIONS OF LAW. (Anderson, Jennifer)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA
v.
TODD CARTA,
Respondent.

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) CIVIL NO. 07-12064-PBS
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FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER
July 7, 2011
Saris, U.S.D.J.
INTRODUCTION
The United States seeks to civilly commit Respondent Todd
Carta as a “sexually dangerous person” under Section 302(4) of
the Adam Walsh Child Protection and Safety Act of 2006 (“Adam
Walsh Act”), Pub. L. No. 109-248, Title 111, § 302(4), 120 Stat.
587, 620-22 (2006), codified at 18 U.S.C. §§ 4247-4248.
In order to commit Mr. Carta, the government must prove by
clear and convincing evidence that he is “sexually dangerous.”
Under the Adam Walsh Act, a person is sexually dangerous if he
“has engaged or attempted to engage in sexually violent conduct
or child molestation and. . . is sexually dangerous to others.”
18 U.S.C. § 4247(a)(5).

In order to determine that someone is

sexually dangerous to others, a court must find that he “suffers
from a serious mental illness, abnormality, or disorder as a
result of which he would have serious difficulty in refraining
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from sexually violent conduct or child molestation if released.”
Id. § 4247(a)(6).

Mr. Carta concedes that he has engaged in

sexually violent conduct or child molestation, meaning that in
order to commit Mr. Carta the government must prove by clear and
convincing evidence (1) that Mr. Carta has a mental illness,
abnormality, or disorder; and (2) that he would have “serious
difficulty refraining from sexually violent conduct or child
molestation” as a result of this serious mental illness
abnormality or disorder.
This case has already been to trial once.

On June 4, 2009,

after a three-day bench trial, Judge Tauro determined that the
government had not met its burden of establishing that Mr. Carta
was a sexually dangerous person. See United States v. Carta, 620
F.Supp.2d 210, 229 (D. Mass. 2009)(“Carta I”).

The court based

this conclusion on its findings (1) that paraphilia not otherwise
specified (“NOS”) characterized by Hebephilia, a diagnosis Mr.
Carta had received from the government’s expert Dr. Amy Phenix,
was not a “serious mental illness, abnormality, or disorder”
under the Adam Walsh Act, id. at 222-27; and (2) that Mr. Carta’s
alternative potential diagnoses, including personality disorders
and substance abuse disorders, either did not “[rise] to the
level of a serious mental illness” under the Act, id. at 227
(with regard to personality disorders), or did not “significantly
contribute to his history of sexual offending” and, thus, did not

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serve as a basis for civil commitment under the Act. Id. at 22829 (with regard to substance abuse disorders).
The First Circuit reversed and remanded. See United States
v. Carta, 592 F.3d 34, 44 (1st Cir. 2010)(“Carta II”).

The court

focused on the determination in Carta I that paraphilia NOS
(Hebephilia) did not constitute a serious mental illness,
abnormality, or disorder under the Adam Walsh Act.

The court

observed that the district court had determined that Hebephilia,
or attraction to pubescent-age children, was not an accepted
diagnosis within the medical community; however, the First
Circuit noted that “the statutory concept [of a mental illness]
is [not] delimited by the consensus of the medical community. . .
.” Carta II at 39.

Moreover, even if the DSM-IV and medical

consensus did set the bounds of the mental illness analysis,
“paraphilia is expressly a DSM-listed disorder and Carta appears
to fall in this category.” Id. at 40 (emphasis in original).
Under the Diagnostic and Statistical Manual (“DSM”), IV, which is
the most recently published DSM, “Paraphilia” is characterized by
the following features:
[R]ecurrent, intense sexually arousing fantasies,
sexual urges, or behaviors generally involving 1)
nonhuman objects, 2) the suffering or humiliation of
oneself or one’s partner, or 3) children or other
nonconsenting persons, that occur over a period of at
least 6 months. . . [and that] cause clinically
significant distress or impairment in social,
occupational, or other important areas of functioning.
Carta II at 38 (quoting Am. Psychiatric Ass’n, DSM 522-23 (4th
3

ed. 2000)(internal quotation marks omitted).

At trial there had

been disagreement over whether the term “children” referred only
to pre-pubescent aged children or whether it also included
pubescent or even post-pubescent minor children.

In response,

the court noted that “it would be clear error to say that the DSM
definition of paraphilia excluded an intense sexual fixation on
young teenagers accompanied by a pattern of conduct such as
Carta’s.” Id. at 41 (emphasis added).

The court clarified that

“[t]his does not mean that everyone sexually attracted to
adolescents is mentally disordered; rather, it means that one
whose urges are so strong as to produce the symptoms and
consequences identified in the DSM and exhibited by Carta could
be so classified in an appropriate case.” Id.

The court held

that “[b]ased on Dr. Phenix’s report, Carta’s past history of
sexually abusing minors, his in-prison behavior and his expressed
attitudes seemingly justify classifying him as suffering from a
paraphilia: he has a decades-long sexual fixation on minors that
plainly has ‘caused significant distress or impairment’ in his
life.” Id. at 40.

Moreover, according to the court, “[the report

of an expert who disagreed with the diagnosis] would be unlikely
to take Carta outside the statute even if we concluded improbably
that he fell outside any DSM-recognized affliction.” Id. at 41.
The court concluded its opinion by finding that “the district
court erred in holding that the government failed to establish

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that Carta met the mental condition element.” Id. at 44. The
court then “remand[ed] for the [district court] to consider
whether the requisite dangerousness exists.” Id. at 44.
The case was then remanded to this Court.
seven-day trial in late 2010 and early 2011.

The Court held a

The parties agreed

to admit the transcripts and exhibits from Carta I, and the Court
heard the testimony of Dr. Amy Phenix, the government’s expert;
Dr. Leonard Bard, the court-appointed expert; and Dr. Robert
Prentky, Mr. Carta’s expert.

The Court also heard testimony from

Mr. Carta.
Although the First Circuit appears to have explicitly
answered the “mental condition” question and remanded solely for
a determination of whether Carta will have serious difficulty
refraining from sexually violent conduct or child molestation,
the parties submitted evidence on both the mental condition
question and the “serious difficulty” question.

According to

Carta, to the extent that the First Circuit answered the former
inquiry, this analysis should be rethought in light of new
developments in the thriving academic debate over the status of
paraphilia NOS (Hebephilia).

The Court need not decide, however,

whether the First Circuit has foreclosed reexamination of whether
Carta has a “serious mental illness” under the Act, for the Court
finds that the government has established this prong of the test
by clear and convincing evidence.

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The Court also finds that the

government has established by clear and convincing evidence that
Mr. Carta will have serious difficulty refraining from sexually
violent conduct or child molestation, and, therefore, that he
meets the requirements of Adam Walsh Act commitment.
These holdings are based upon the following findings of fact
and conclusions of law.
FINDINGS OF FACT
A. Carta’s Personal History
1. Early Life and Non-Sexual Criminal History
Born on October 21, 1960, Mr. Carta lived with his mother,
father, and three older siblings in Connecticut during childhood.
Mr. Carta has reported that his family-life was loveless and
cold; his mother never expressed love for him and subjected him
and his sisters to verbal, emotional, and physical abuse. (Trial
Tr. Day 4, 6:1-10).

At school, Mr. Carta reports that his

classmates bullied and teased him, ultimately causing him to stop
attending school around seventh or eighth grade. (Id. at 7:4-11.)
Between the ages of thirteen and fifteen, Mr. Carta spent
the majority of his time in the woods behind the apartment
complex where he lived. (Id. at 11:22-12:3.)

Around this time he

began hanging out with a group of neighborhood kids whom he
described as fellow delinquents, (Ex. 25 at 3,) and he started
having problems with the law.

At the age of fifteen, he pleaded

guilty to Reckless Burning for setting fire to an abandoned
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shack.

This was apparently not the first time that he had

experimented with lighting fires, and he reported feeling an
“adrenaline rush” when he ignited the shack. (Id.)

When he was

seventeen, the police arrested Mr. Carta for burglary when he
broke into a drug store and restaurant to steal cigarettes and
food. He ultimately spent six-months in state incarceration as a
result of this incident. (Trial Tr. Day 4, 16:23-17:1).
2.

Sexual and Relationship History

Mr. Carta’s childhood was also plagued by his frequent
victimization by sexual abuse.

At the age of seven, a

neighborhood boy forced Carta to perform oral sex with a
similarly-aged child. (Id. at 8:1-3).

When he was ten or eleven,

a fifteen-year-old boy forced Carta to perform oral sex on him
during a game of “doctor.” (Id. at 8:21-9:8).

When Carta was

about thirteen, he met an older man fishing by the river.

The

man asked Carta if the man could perform oral sex on Carta.
Carta initially refused, but ultimately relented. (Id. at 13-14.)
Carta’s relationship with the man lasted approximately two years,
and during this period they engaged in approximately twenty
sexual encounters. (Id. at 14:7-16.)

At the time, Carta felt

that he had a positive experience with the man.

At trial, Carta

testified that the man had “showed me love, what I thought was
love, you know.”

(Id. at 14:20-21).

During this same period, Carta also began perpetrating acts

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of abuse on others.

At approximately thirteen, Mr. Carta

performed oral sex on a boy in diapers. (Id. at 9:17-10:14.)

In

describing the incident, Mr. Carta testified that, at the time,
he thought his behavior appropriate because similar acts had been
performed on him. (Id. at 10:18-20.)

At the age of sixteen, Mr.

Carta shot a similarly-aged boy with a BB gun after the boy
refused to engage in oral sex; the pair eventually performed oral
sex on each other on multiple occasions. (Id. at 45:24-46:22.)
At the age of twenty-one, Mr. Carta engaged in oral sex with his
sixteen-year-old nephew on multiple occasions. (Id. at 43.)
Beginning in his twenties, Mr. Carta entered into two
separate long-term relationships with women: Lucille and Brenda.
At the age of twenty-four, Mr. Carta married Lucille, who was
seventeen at the time. (Id. at 20:4-21:3.)
appears to have been relatively rocky.

The relationship

At one point, Mr. Carta

took approximately 20 aspirin and then called his wife to tell
her what he had done. (Ex. 25 at 2.)

The marriage dissolved

after less than one year, but the relationship produced one
daughter.

Initially, Mr. Carta’s daughter lived with her mother,

Lucille, but Carta ultimately pursued a court order declaring
Lucille unfit.

At that point, when he was twenty-five, Carta

took custody of his daughter. (Id. at 21.)

After a few months,

Carta’s mother ended up caring for his daughter. (Id. at 23.)
Subsequently, Mr. Carta entered into a five year monogamous

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relationship with Brenda.

The relationship was fairly stable.

Carta reported, however, that Brenda’s sexual appetite was
“insatiable.” (Id. at 24:22.) The couple routinely engaged in
bondage and participated in three-way sexual intercourse on
multiple occasions. (Id. at 25.)
Brenda was having an affair.

Ultimately, Carta learned that

In response he reported becoming

“pissed” and smashing the windshield of a friend’s car.

He also

placed nude photographs of Brenda in her brother’s mailbox in an
attempt to “destroy her.” (Ex. 25 at 4.)
For approximately five years, in his late twenties and early
thirties, Mr. Carta went “on tour” with the band Grateful Dead.
(Id. at 26:5-11).

He described the experience as “like being

with a big family.” (Id. at 26:14.)

While touring with the

Grateful Dead, Carta had at least one sexual encounter when he
exchanged his own concert tickets for the opportunity to perform
oral sex on a thirteen-year-old boy. (Id. at 28:7-13.)

Mr. Carta

reports that the boy did not have facial hair, but had pubic
hair, and looked approximately six feet tall. (Id. at 29:10-20).
While in federal sex offender treatment, Carta also admitted that
during this period he once fondled a seventeen to eighteen yearold male who was unconscious as a result of drug use. (Ex. 25. at
7.)
After touring with the Dead, Carta moved to California and
entered into a three-year relationship with a thirteen year-old

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boy named John. (Trial Tr. Day 4, 31:14-20.)

Mr. Carta claims

that the relationship began when Mr. Carta was living in Eureka,
California.

When he was sitting in his van one day while it was

raining, John knocked on the door and asked to come in.

Carta

says he gave John a blanket, and John began to masturbate.

Carta

then says he asked John if he needed “any help;” when John said
yes, Carta began performing oral sex on him. (Trial Tr. Day 4,
32:5-7.)

Mr. Carta estimates that they engaged in sexual

activity on at least twenty occasions, the majority of which
involved Mr. Carta performing oral sex on John. (Id. at 33:4-11).
Mr. Carta testified that he was attracted to John because he was
young, energetic, and physically active. (Id. at 33:18-25).
Carta’s relationship with John seems to have been particularly
predatory.

Carta has acknowledged that John’s parents were drug

addicts and that John tended to be very lonely. (Ex. 25 at 8.)
Carta would often invite John to meet him, but John would often
fail to show up.

When this happened, Carta would track John,

going to all of his favorite hang-outs to find him. (Id.)
In his late thirties, Mr. Carta moved back to Connecticut
and John soon followed. (Id. at 34:15-35:10.) Apparently, Carta
convinced John that Carta could offer him a better life in
Connecticut. (Ex. 25 at 8.)

Carta at one point acknowledged,

however, that the true intent behind moving John to Connecticut
was that John would be less likely to roam from Carta as he had

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been prone to do in California. (Id.) After living together for
an unknown period of time, John eventually moved back to
California.

According to Mr. Carta, John had become homesick and

likely tired of living with an older man. (Trial Tr. Day 4, 710).
After John moved away, Mr. Carta testified that he became
addicted to child pornography, amassing approximately 50,000
images of children, some as young as three-years-old. (Id. at
39:2-7.)

His addiction became so severe that if he was missing a

specific picture from a series, he would scour the internet for
hours until he found it. (Id. at 52.) According to Mr. Carta, he
primarily viewed images of males between the ages of thirteen and
twenty, but collected images of children of a variety of ages for
the purposes of trading with other collectors. (Id. at 38:2239:12.)

Carta’s preoccupation with child pornography became very

disruptive to the rest of his life.

He reported spending between

12-14 hours on the internet and masturbating to child pornography
between 2-3 times a day. (Ex. 25 at 9.)
In addition to viewing child pornography, Mr. Carta posted
online advertisements in search of sex with fourteen to eighteen
year old males. (Id. at 39:19-40:7.)

On one occasion, Mr. Carta

performed oral sex on a thirteen-year-old boy who responded to an
advertisement.

Mr. Carta testified he did not allow the boy to

give him oral sex because it was “too intrusive,” and he did not

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want to damage the boy. (Id. at 40:9-22.)
During this time, Mr. Carta also developed a long-term
relationship with Fred, a seventeen-year-old boy. (Id. at 53:823.)

He knew that Fred was from a “bad family,” and Carta

provided Fred with a job and money to manipulate Fred into
feeling comfortable with Carta.

Ultimately, Carta asked Fred to

move in with him. (Ex. 25 at 4.)
number of deviant aspects.

The relationship included a

Fred and Carta once had three-way

sexual contact with the same thirteen year-old boy whom Carta had
met over the internet. (Id. at 8.)

Overtime, Carta fell in love

with Fred and envisioned a future for the two of them together.
(Trial Tr. Day 4, 54.)

However, Carta testified that he had a

habit of becoming overbearing in a relationship. (Id. at 55.)
After a time, he felt like he needed to be with Fred all the
time. (Id. at 55:3-7.)

As a result, Carta’s relationship with

Fred became explosive, and they fought often.

According to

Carta, after one fight, Fred’s fifteen year-old brother came to
Carta’s room and told Carta how lucky Fred was for being in a
relationship with Carta. (Id. at 55:19-20.)

At this time, Carta

performed oral sex on Fred’s brother for a couple of minutes.
(Id. at 55:19-21.)

This version of events differs from the

narrative provided by Fred’s brother, however, who claimed that
Carta invited him into bed and initiated sexual contact. (Ex. 40
at 9.)

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At some point later, Carta and Fred had another fight after
which Carta called 911 because Fred was “smashing stuff” at
Carta’s house. (Trial Tr. Day 4, 57.)

Both Carta and Fred were

arrested for the domestic disturbance. (Id.)

After this

incident, Carta and Fred moved apart, but on a number of
occasions Fred called Carta in order to invite him over.

On

these occasions, when Carta arrived at Fred’s residence, Fred was
often not present.

To retaliate for this frequent rejection,

Carta posted flyers with derogatory remarks about Fred and his
family in mailboxes around the neighborhood.
58:11).

(Id. at 57:21-

The police arrested Mr. Carta for Disorderly Conduct.

(Id. at 61:22-62:2).
Subsequently, state authorities charged Mr. Carta with Risk
of Injury to a Minor for providing alcohol and drugs to Fred and
his younger brothers. (Id. at 59:2-9.)

For this charge, Mr.

Carta was sentenced to five years probation and conditions of
release which included a recommended sex offender treatment
program at the state level.

According to Mr. Carta, even though

Carta’s lawyer told him that he could avoid the sex offender
treatment because he was not charged for a sex crime, he agreed
to attend the meetings “because [he] needed them.”

(Id. at 70:4-

15).
About a month after Fred left, Carta’s daughter and her
boyfriend, Seth, moved in with Carta. (Id. at 62:3-4.)

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At some

point soon after they moved in, Carta had sex with Seth when Seth
was “coming down” from a drug binge. (Ex. 25 at 4.)
seventeen at the time. (Id.)

Seth was

According to Carta, the first

sexual contact occurred at some point when Carta’s daughter was
out of the house and Seth and Carta were sitting in the living
room.

Seth apparently began taking off his clothes, and when

Carta asked him what he was doing Seth, according to Carta,
responded: “Well, you’re gay, ain’t you?” (Trial Tr. Day 4,
62:13-18.)

Over the course of a year, they had sex many times

but hid the relationship from Carta’s daughter. (Trial Tr. Day 5,
20-21.)
While Carta’s daughter was living with him, Carta was taken
into state custody on marijuana charges.

Carta had left money

for his daughter and Seth to bail him out of jail.

When they

never came to bail him out, he tried to contact them through his
mother, who refused to allow him to communicate with either his
daughter or her boyfriend.

At this point Carta sent a

threatening letter to his mother in which he stated that he would
“get her.” (Trial Tr. Day 4, 60:19-25.)

Carta also lashed out at

his daughter by telling her about his relationship with Seth.
While in the federal sex offender treatment program, Carta stated
that he told his daughter about the relationship hoping that his
daughter would leave Seth so that he could have a relationship
with him. (Ex. 25 at 5.)

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3. Substance Abuse History
Carta has also struggled with substance abuse.

In federal

sex offender treatment he reported beginning to use alcohol when
he was fifteen or sixteen.

His alcohol use continued to increase

until he was drinking three or four “six-packs” a week, though he
claimed to quit drinking once released on his state charges.
(Id.)
He also has struggled with marijuana and other drugs.

He

smoked marijuana regularly between the ages of seventeen and
forty-one, including daily use while in his thirties.

Between

the ages of seventeen through nineteen he began using LSD.

This

use grew substantially while he toured with the Grateful Dead,
when he would sometimes have week-long LSD “binges.” (Id.)
Carta has acknowledged that his alcohol and drug use have
contributed to his legal problems, (id.) and that they are
triggers for his sexual offending. (Trial Tr. Day 4, 82-83.)
4.

Pornography Charges and Federal Incarceration

In 1999, the FBI conducted an investigation of newsgroups
involved in the trading of child pornography. (Ex. 40 at 2.)
During the course of this investigation, the FBI found
approximately 110 postings by Carta containing child pornography.
(Id.)

In 2001, the postal service learned that Carta had mailed

a package containing computer disks and a modem to an individual
15

in Maryland who had been identified as a participant in a child
pornography video. (Id.)

Around this same time, the New Britain

Police Department received a complaint from Carta’s live-in
boyfriend Fred that Carta had been viewing child pornography,
that Carta had performed oral sex on Fred’s fifteen year-old
brother, and that Carta had provided drugs and alcohol to Fred
and his fifteen and thirteen year-old brothers. (Id. at 2-3.)
When police investigated Carta’s house, they discovered that he
operated several websites featuring naked pictures of teenage
boys.

They also found incriminating online ads in which Carta

stated that he was “looking for a cute, hot 14-18 year-old to
take care of and spoil. . . .“ (Ex. 40 at 3-4.)
On April 9, 2002 Carta pled guilty in Federal Court to
Transportation of Child Pornography.

He was released pending

sentencing and continued to attend sex offender treatment in the
community until his federal sentencing. (Trial Tr. Day 4, 72.)
During this period Carta also assisted the government in
prosecuting other child porn offenders. (Id. at 72-73.)

While he

was in state sex offender treatment and cooperating with the
government, Carta said he did not view child pornography or
engage in sexual contact with a minor (Id. at 73-74.)

The

sentencing court sentenced Carta to 60 months incarceration, a
substantial downward departure, in recognition of the cooperation
he had provided to the government. (Id.)

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At sentencing, Carta

told the court that he had had a positive experience in state sex
offender treatment, and that the treatment had provided him with
his first opportunity to “talk about [his] problems. . . like
touching kids, all that.” (Id. at 75.)
Carta was initially sentenced to the United States Prison at
Allenwood, PA. (Id.)

Carta described his experience at Allenwood

as being frightening, and he often feared for his own personal
safety. (Id.)

During his time there he saw one fellow inmate

murdered. (Id. at 76)

And, apparently, at some point one of the

staff members in the institution informed inmates that Carta was
a sex offender thereby subjecting Carta to considerable danger.
(Id.) Simultaneously, however, Carta took part in educational
programming at the institution. (Id.) He earned his GED and
participated in a program called Challenges, Opportunities,
Discipline, and Ethics (CODE). (Id.)

The program helped Carta

work on many of the same issues, including his thinking errors
and cognitive distortions, that he worked on during his stint in
sex offender treatment. (Id.)

Nonetheless, the program did not

give Carta an opportunity to actually speak about his sexual
offenses and urges, as doing so would have revealed his status as
a sex offender and exposed him to danger in the institution. (Id.
at 76-77.)

Carta described this drawback of the CODE program as

“very frustrating.” (Id. at 78:1-2.)

17

In 2005, after Carta had completed CODE, he applied to the
federal sex offender treatment program (“SOTP”) at FCI-Butner
(“Butner”) in North Carolina. (See Ex. 25 at 1; Trial Tr. Day 4,
80.)

This voluntary decision was based in part on Carta’s desire

to leave Allenwood, along with his understanding that he needed
to focus more specifically on the problems that led to his sexual
offenses. (Id. at 80:7-9.)
The SOTP at Butner was comprised of four phases: (1) initial
orientation; (2) assessment; (3) treatment; and (4) relapse
prevention release planning.

As part of the assessment phase,

Mr. Carta voluntarily filled out a Personal History
Questionnaire, a detailed self-report which revealed his
previously undetected sexual offenses.

At the first trial,

Carta’s physiologist at Butner, Michael Wood, testified that
Carta was “more forthcoming than [Wood] generally experienced”
with newly admitted patients. (See Carta I, Trial Tr. Day 1,
125.)
Based on Carta’s answers to the PHQ, and the results of
other tests, Dr. Wood published a comprehensive psychosexual
evaluation. (See Ex. 25.)

The evaluation provided a

comprehensive review of Carta’s personal history, with a focus on
his sexually deviant and criminal behaviors.

Wood summarized his

findings by noting that Carta “exhibits a number of problematic
personality traits in that he reports being ‘intense’ in his

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relationships, in that he does not trust others and ‘suffocates’
them because he wants to spend all of his available time with
them.” (Ex. 25 at 12.)

The report also noted that Carta “reports

a primary attraction to postpubescent teenaged males.” (Id. at
13.)

In Carta’s first interview with SOTP staff, he reported

this age range to be between the ages of 13-17. (Id. at 9.)

This

group was particularly attractive to Carta because with teens
Carta feels “cooler, more knowledgeable, and wealthier.” (Id. at
13.)

The evaluation also deemed Carta’s sexual behavior

particularly problematic due to a number of cognitive
distortions.

For example, Carta never acknowledged the

“manipulative characteristics of his behavior in which he grooms
[teenage boys] with drugs, money or a place to live.” (Id.)
Carta’s comments on this issue suggested to Wood that Carta
believed his relationships with his victims helped them as
opposed to hurt them. (Id.)

Wood noted that Carta’s explanation

that he “perform[ed] fellatio on minors because it is enjoyable
for them, while [he] refrain[ed] from having them to reciprocate
because it is more intrusive and ‘can mess them up’ highlighted
[this problem].” (Id.)

Finally, also of note, the evaluation

observed that Carta scored in the “Very Superior” range of
intelligence on an IQ test. (Id. at 10.)
Dr. Wood testified that Carta’s progress at SOTP was a
somewhat mixed bag.

Though Carta was in the early phases of

19

beginning to accept responsibility for his actions, he did not
participate in the program long enough to “fully accept the
harmfulness of his behavior.” (Carta I, Trial Tr. Day 1, 87:6-8.)
When it came to Carta understanding his own sexual deviance, “he
would have a breakthrough and then it was like one step forward
and two steps back.” (Id. at 87:12-14.)

At times Carta became

defensive about his cognitive distortions regarding his behaviors
and victims, but at other times he would break down and agree
with Dr. Wood about his problems. (Id. at 129-30.)

In Carta’s

discharge report, Dr. Wood wrote that Carta presented at Butner
with significant cognitive distortions common to men who sexually
offended.

Carta was, at times, able to acknowledge these

distortions, however, “he exhibited difficulty enacting these
insights into behavior change.” (Ex. 27 at 3.)
At trial Carta testified about the difficulty of the SOTP at
Butner.

In particular, he noted that he participated in a

“process group,” which “ripped you down, and then rebuilt you all
back up and bared you open to everything.” (Trial Tr. Day 4,
82:5-8.)

During this process he apparently realized that he “had

a lot of thinking errors” and “cognitive distortions.” (Id. at
82:16.)

These included thought patterns like “this kid wants to

have sex with me so it’s okay” or “I’m only trying to help him.”
(Id. at 82:21-24.)

He also identified drugs, alcohol, and

pornography as possible triggers. (Id. at 82-83.)

20

Despite this moderate progress, Carta failed to complete
SOTP at Butner.

While there, Carta began to associate with some

of the younger men who took part in the treatment program.

He

apparently stated that his desire was to “help” these younger
participants. (Ex. 27 at 4.)

This, according to Dr. Wood,

“mimicked Mr. Carta’s pattern of behavior with young males prior
to his incarceration.” (Id.)

According to Dr. Wood, though there

was nothing technically deviant about this behavior, it was
“problematic.” (Carta I, Trial Tr. Day 1, 140:4.)

When staff and

other participants challenged his behavior, Carta became angry
and argued that he was acting appropriately.

This pattern

continued for a number of weeks until Carta finally broke down
crying and admitted that he was attracted to one of the men. (Ex.
27 at 4-5.)

At one point a young male participant, whom Carta

admitted being attracted to, challenged Carta on his behavior at
a community meeting.

Mr. Carta became enraged and spent the next

few weeks seeking revenge against the other participant,
repeatedly telling staff about the other participant’s
wrongdoing. (Id. at 5.)

Eventually Carta was encouraged to come

up with an action plan to hold himself accountable for his
preoccupation with younger peers. (Id.)

He ultimately decided to

restrict himself from interacting with anyone not in the final
stages of treatment. (Carta I, Trial Tr. Day 1, at 92-93.)
Eventually, after struggling with this restriction, Carta quit

21

the program.

This was not the first time that Carta had

attempted to quit the program.

Each of the prior times he had

changed his mind, but, according to Dr. Wood, this decision
seemed final. (Id. at 94.)

The day after he quit treatment he

acknowledged that he had made the wrong decision but stated that
he was “too embarrassed” to resume treatment. (Id. at 131.)
Carta’s version of why he left treatment differs from Dr.
Wood’s as memorialized in the discharge report. (See Ex. 27.)
According to Carta, his decision to leave the SOTP at Butner was
the result of a dispute with treatment providers over the
expulsion of a fellow participant.

Apparently, the program was

designed to encourage participants to disclose other
participants’ behaviors that were inconsistent with the aims of
the treatment program. (Trial Tr. Day 4, 104-05.)

On a few

occasions, Carta confronted other inmates in open meetings about
their behaviors, including on one occasion confronting another
inmate on the fact that he was having sexual contact with someone
else in the facility. (Trial Tr. Day 4, 106-07; Day 5, 38-39.)
Carta said he was remorseful about confronting the other inmate,
however, and told treatment providers that he would quit the
program if this other participant were expelled. (Trial Tr. Day
4, 102.)

The other participant was ultimately expelled, and

Carta quit treatment. (Trial Tr. Day 4, 106.)
After leaving the SOTP, Carta was transferred back to

22

Allenwood for about a year.

During that time he had one

disciplinary issue when he allegedly threatened a member of
prison staff by stating that he was “going to pour hot baby oil
on her.” (Id. at 110.)

Carta disputes this allegation. (Id.)

With two weeks left on his sentence Carta was transferred to
FMC-Devens for evaluation as a sexually dangerous person under
the Adam Walsh Act. (Trial Tr. Day 4, 111.)

Since he was

transferred to Devens, he has had a few disciplinary problems.
For example, he has received citations for “fixing radios” for
other inmates and an insolence report for talking back to a staff
member who requested that he tuck in his shirt. (Id. at 114.)
Most seriously, he has also been cited for possession of
amphetamines. (Id. at 114:25.)

Carta says he does not know how

the amphetamines appeared in his locker. (Id. at 117.)

Since the

incident he has been drug tested on a number of occasions and has
tested negatively each time. (Id. at 116.)

He testified that

since his incarceration he has never consumed drugs of any kind
or had any sexual contact. (Id. at 118.)
B. Carta’s Testimony
At trial Carta testified extensively about his past
offending and his experience in the BOP.

He also specifically

addressed the question of whether he continues to be attracted to
children.

He stated:

Yeah. I would say I still had an attraction. I
mean, I don’t know; I’m not around any 13-year-olds so
23

. . . I mean, I feel like I don’t, but I can’t be
honest and say that.
It’s not an honest statement if I say I’m not
attracted to them, I don’t know if that’s honest or
not. We’ve got guys in prison that, you know – there
ain’t no 12-year-olds in prison.
I know I would never have sex with a 13-year-old
you know, no matter if they looked 20, you know, I
don’t care; it’s just illegal, and I know the damages I
can cause that person, you know, psychological damages.
(Id. at 94-95.)

The Court pushed Carta on his ability to

restrain himself from acting on an attraction to young men.

In

the past, during the course of his relationships with family and
his time at Butner, Carta has acted impulsively when he has felt
discouraged, challenged, or spurned.

At trial I asked, “How do I

know you wouldn’t get frustrated at some dumb rule and just quit
[treatment] again?” He responded:
Because if I do, I’ll be right back here again;
that’s the only thing I can tell you. . . because being
on the street’s a little bit different, you know, it’s
no – you’re not in prison so you’re not getting all
this stuff rammed down your throat 24 hours a day, but
I did a little bit of it before at Connections, and I
liked the people that put it together, and like the
psychologists and stuff, I like them; but I can only
give my word, your Honor, that’s all I can do, and tell
you that if I go out there and do something again and I
come back here, you won’t have to have a trial; I’ll
commit myself, okay? That’s all I can tell you.
(Id. at 121-22.)
At trial Carta also expressed an eagerness to resume
intensive sex offender treatment despite his attorney’s
objection.

According to BOP, Carta is not eligible for sex

24

offender treatment because he has not been formally committed.
(See Ex. 41.) Ultimately Carta began receiving a form of one-onone treatment at FMC-Devens pending the resolution of this
matter, though it is unclear how much of this treatment has been
focused specifically on sex offending as opposed to criminality
more generally.
Carta also testified about his eagerness to be released.
Despite his past problems with his family, he claims to have
reconciled with at least some family members.

While at Butner,

he wrote his mom and dad a letter about how sorry he was for “all
the stuff [he had done]” which he “had never had the courage to
tell [his father]” who died in 2010. (Trial Tr. Day 4, 122-23.)
He then continued, “My mother wants me home.
needs me.

She told me she

My brother is out there and he said he’ll do whatever

he can to help me.” (Id. at 123.)
C. Experts
1. Dr. Amy Phenix
Dr. Phenix, the government’s expert witness, formed her
opinion after examining Mr. Carta’s records, including his
psychiatric history, his history of criminality and drug use, and
his treatment records from SOTP at Butner.

She has never held a

face-to-face evaluation of Mr. Carta because he refused to be
interviewed.

On the basis of this review Dr. Phenix has opined

that Carta can be diagnosed with a serious mental illness,
25

abnormality, or disorder as a result of which he will have
serious difficulty refraining from sexually abusing minor-aged
children if released.
a) Mental Condition
Dr. Phenix diagnosed Carta with paraphilia-NOS,
characterized by Hebephilia.

She testified that this diagnosis

was supported by the text of the Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition, Text Revision (“DSMIV-TR”), which includes a paraphilia NOS diagnosis as a “residual
category” meant to code paraphilias that do not fall within the
codified and more common paraphilias, like Pedophilia,
Exhibitionism, and Fetishism. (See Trial Tr. Day 1, 61.)

As

discussed above, paraphilia NOS is characterized by two criteria:
“(1) recurrent, intense sexually arousing fantasies,
sexual urges, or behaviors generally involving. . .
children or other nonconsenting persons that occur over
a period of at least 6 months. . . [and] (2) behavior,
sexual urges, or fantasies [that] cause significant
distress, impairment in social occupational or other
important areas of functioning.”
(Ex. 11.)
Although Dr. Phenix did not testify expressly about whether
she believed the term “children” included pubescent-aged
children, she opined that Mr. Carta fit the DSM-IV diagnosis of
paraphilia NOS because of an intense arousal to pubescent
children coupled with its disruptive effects on Carta’s life.
(Trial Tr. Day 1, 64:7-22.)

According to Dr. Phenix, this
26

attraction is evident in Carta’s admissions in the SOTP that his
primary child pornography interest was in images depicting
children between the ages of 12 and 17, with an admitted
secondary interest in images depicting 7 to 11 year olds. (Id. at
79.)

The arousal is also evident in Carta's extensive sexual

contact with thirteen year-old boys, including a multi-year
relationship with one boy that began when the boy was thirteen.
(Id. at 64.)

Furthermore, this arousal has, in the past, caused

considerable distress and dysfunction in Carta's life.

In

particular, Dr. Phenix noted that Carta admitted to viewing child
pornography up to twelve to fourteen hours a day to the exclusion
of work, showering and taking care of his hygiene. (Id.)
Dr. Phenix also testified that “Hebephilia” is a discreet
mental illness studied in peer-reviewed journals, and, thus, that
it is an appropriate specification to a paraphilia NOS diagnosis.
The most prominent academic exploration of Hebephilia is Dr. Ray
Blanchard's article “Pedohebephilia, Hebephilia, and the DSM-V.”
(Trial Tr. Day 1, 70:4-7.)

Dr. Blanchard determined that certain

individuals are particularly attracted to children going through
the process of puberty, defined as children aged 11-14. (Id. at
73:20-23.)

In addition, the DSM-V working group, a group of

scholars working on a proposed text for the new version of the
DSM, has recommended that the manual include a diagnosis of
Pedohebephilic Disorder. (Id. at 74-75.)

27

The recommendation

specifies that the definition of pedophilia “be revised to
include Hebepedophilia” as defined as “the erotic preference for
children in Tanner stages 2-3.” (Id. at 75:16-20.)

The “Tanner

stages” refer to the stages of physical development in children
and adolescents.

Stages two and three describe children who are

developing some secondary sexual characteristics but still have
mostly immature bodies. (Id. at 76.)

By including these

children, Dr. Phenix testified, the diagnosis of Pedohebephilia
usefully expands on the Pedophilia diagnosis to capture deviant
arousal not only to prepubescent children but to pubescent
children as well.

Although the diagnosis has yet to be added to

the DSM, Dr. Phenix testified that it is already fairly well
accepted in the treatment community because treatment providers
often diagnose patients with Hebephilia for the purposes of
treatment planning. (Id. at 77:1-4.)
The diagnostic criteria for the proposed Pedohebephilic
disorder are the following: 1) over a period of six months, the
individual experiences recurrent sexual fantasies, urges, or
behaviors directed toward prepubescent and pubescent children, or
has greater arousal to these ages than to physically mature
individuals; and 2) the person has clinically significant
distress or impairment in important areas of functioning from
sexual attraction to children; or the person has sought sexual
stimulation, on separate occasions, from either two or more

28

different children, if both are prepubescent or three or more
different children, if one or more are pubescent; or repeated use
of and greater arousal from, pornography depicting prepubescent
or pubescent children than from pornography depicting physically
mature persons, for a period of six months or longer. (Id. at
78.)
Dr. Phenix also testified about Carta's fit with these
criteria.

Carta met criterion one as a result of his numerous

sexual relationships with thirteen year-olds, at least some of
whom Dr. Phenix believed to fall into the pubescent, as opposed
to post-pubescent category, his admissions of arousal to children
in this age group, and his extensive collection and obsession
with child pornography. (Id. at 81:1-10.)

Dr. Phenix was less

certain about whether Carta was primarily attracted to children
in this age group, as his relationships with post-pubescent
minors and adults would seem to suggest at least some attraction
to those outside of the stages identified in the Pedehebephilia
diagnosis. (Id. at 81:12-13.)

However, this did not necessarily

preclude a Hebephilia finding.

As Dr. Phenix testified, deviant

sexual arousal is sometimes very narrow – focused on a small
range of ages. (Id. at 86.)

More often, however, individuals

with diagnosable paraphilias exhibit some non-deviant sexual
attraction along with their deviant sexual arousal. (Id.)

The

Pedehebephilia diagnosis allows for this possibility by including

29

a criterion of primary arousal to prepubescent or pubescent
children as a sufficient but not a necessary condition to meeting
prong one of the diagnosis.

An individual can also meet the

diagnosis of Pedehebephilia when he has “recurrent sexual
fantasies, urges, or behaviors” in relation to this age group.
Dr. Phenix did not have any doubt that Carta met at least this
criterion.
Dr. Phenix also opined that Mr. Carta met the second part of
the diagnosis for Pedehebephilia.

First, he is, according to Dr.

Phenix, a “person who has been subject to a significant loss of
freedom” as a result of his attraction to pubescent children.
Once again, he has admitted to spending between twelve and
fourteen hours a day looking at child pornography, to the
exclusion of keeping good hygiene or gaining employment. (Id. at
82.)

He also meets criterion two because he has engaged in

sexual conduct with at least three different pubescent-aged
children. (Id.)
Dr. Phenix acknowledged that a diagnosis of paraphilia NOS
(Hebephilia) was not universally accepted in the medical
community because some experts believe that attraction to postpubescent minors, though in contravention of clear social mores,
is not psychologically deviant and is present in the normal
population.

She agreed with this notion, but, she testified that

there was a clear distinction between post-pubescent aged minors

30

and pubescent children who may have some secondary sexual
characteristics but are mainly physically immature.

A failure to

recognize this distinction, she argues, has led some to eschew
the paraphilia NOS (Hebephilia) diagnosis.

Nonetheless, she

testified that this opinion was held by a small, though vocal,
minority in the medical community.

“Almost everyone in [the]

field accepts a Hebephilia diagnosis and it has been a focus of
treatment in standard sex offender treatment programs.” (Id. at
84:12-15.)

Dr. Phenix clarified, however, that the diagnosis

only applies to attraction to pubescent children, not to postpubescents.

Carta fit the diagnosis, therefore, because of his

arousal to children in the eleven to fourteen year old age group,
not his frequent sexual contact with older teens. (Id. at 81:89.)
Dr. Phenix also diagnosed Mr. Carta with Hallucinogen
Dependence, Cannabis Dependence, Alcohol Abuse, and Personality
Disorder NOS with antisocial and borderline traits.

The

diagnosis of dependence disorders was based upon Carta's
significant consumption of alcohol and drugs in the years prior
to his incarceration. (Trial Tr. 88-92.)
In regard to the personality disorder diagnosis, the DSM-IVTR defines a personality disorder as an enduring pattern of inner
experience and behavior that deviates markedly from the
expectations of the individual's culture, is pervasive and

31

inflexible, has an onset in adolescence or early adulthood, is
stable over time, and leads to distress or impairment.
According to Dr. Phenix, Carta's volatile, manipulative, and
often vindictive behaviors all suggest that he falls within this
diagnosis.

Of particular relevance, Dr. Phenix focused on: 1)

his attempted suicide after his wife ended their brief marriage;
2) his very similar efforts to retaliate against Brenda and Fred
by posting damaging flyers about them around the neighborhood
after they broke up with him; 4) his excessive use of drugs and
alcohol; and 5) his general criminality. (Id. at 92-93.)
According to the Government and Dr. Phenix, this diagnosis
qualifies as a mental illness under the Act because it allows
Carta to rationalize hurting others.

As Dr. Phenix testified,

Carta “does not have a conscience about engaging in sex with
young boys and the harm that it may cause them because of his
antisocial attitudes.” (Id. at 93.)

For example, his borderline

traits cause him to form the kind of suffocating relationship
tendencies that led him to manipulate a thirteen year-old, John,
to come across the country and live with him in Connecticut, and
during SOPT he exhibited a number of distorted views on his
sexual behavior, including that he was helping the boys he
assaulted. (Id. at 94:1-5.)
b)

Serious Difficulty Refraining

Dr. Phenix then testified that, as a result of Carta's

32

paraphilia NOS (Hebephilia), he would have serious difficulty
refraining from sexually violent conduct or child molestation.
She reached this conclusion after scoring three separate riskassessment instruments to determine Carta's risk range, as well
as considering a number of dynamic risk factors.
First she scored the Static-99R.

The Static-99R is peer-

reviewed actuarial instrument that estimates the probability of
sexual and violent re-conviction for adult males sex offenders.
(See Trial Tr. Day 2, 50:23-25 (Static-99R is peer reviewed.).)
It is a revision of the Static-99, which Dr. Phenix scored at
Carta's first trial before Judge Tauro.

The revised instrument

includes new data on age and reoffending.

Whereas the Static-99

included only two age groups – below twenty-five and above
twenty-five – the Static-99R scores subjects differently
depending on whether they are 18 to 34.9, 35 to 39.9, 40 to 59.9,
or 60 and over. (Id. at 100:18-22.)

The new instrument,

therefore, takes a more nuanced account of Mr. Carta's age by
scoring him within the 40 to 59.9 age group, which, according to
the instrument, makes him less likely to reoffend than a similar
younger subject.
Along with age, the instrument scores a number of other
characteristics including whether the subject has lived with a
lover for two years (which will make a subject less likely to
reoffend), whether he has exhibited nonsexual violence (which

33

will make him more likely to reoffend), and whether he has had
stranger victims, male victims, or unrelated victims (all of
which will also make him more likely to reoffend). (Id. at 100.)
According to Dr. Phenix's scoring of these multiple factors,
Carta scored in the moderate-high range as compared to other
offenders. (Id. at 102.)
Determining the likelihood that Carta will reoffend based
upon this scoring is a more complicated question.

At the last

trial in this case, Dr. Phenix scored according to what she
termed a “pure actuarial” method. (Trial Tr. Day 2, 41:5.)

This

method produced a range of percentages within which Carta’s
reoffense rate at five and ten years was likely to fall.
According to the pure actuarial method, the scorer would use this
range, along with consultation of a number of general risk
factors, known as dynamic risk factors, to provide an opinion on
whether an individual would have serious difficulty refraining if
released.

For Mr. Carta in 2009 the percentage range for five

years was 13 to 27 percent, and for ten years 16 to 37 percent.
(Id. at 39.)
According to Dr. Phenix, however, since that time, scorers
have been instructed1 that they can arrive at a more precise
1

It does not appear that placing offenders in bins in order
to calculate more precise reoffense rates has been empirically
validated. Dr. Phenix testified that this approach does not
require empirical validation because the scoring instruments, the
Static 99 and the Static-99R, have been peer reviewed and are
generally accepted in the scientific community. Placing
34

prediction of likelihood that any specific subject will reoffend
by categorizing that subject and using the data from past
offenders who fall within the same category.

In other words,

actuarial instruments like the Static-99R work by comparing the
subject to data samples for past offenders.

In part because not

all offenders are exactly alike, the instruments will generally
only be able to arrive at a rough estimate of the likelihood of
reoffending.

If a scorer bores down into the data underlying the

instrument and compares the subject with data samples that appear
more similar to him, then, according to Dr. Phenix, the
instrument can yield more precise predictions.

This change has

been spurred by the recognition that “factors outside of the
actuarial instrument affect[] base rates or rates of sexual
reoffense,” and that, by relying on these other factors, the
scorer can compare the subject of the instrument to samples that
exhibit similar extra-instrument risk factors. (Id. at 42:16-17.)
For example, one sample set includes only offenders who have been
pre-selected for treatment.

Because these types of offenders are

inherently more likely to reoffend, it makes sense, according to

offenders in bins in order to refine the prediction percentage
is, according to Dr. Phenix, merely a way of “interpret[ing] the
instrument” and is “not subject to peer review.” (Trial Tr. Day
2, 51-52.) I have doubts about whether this method would survive
Daubert analysis, but it is not necessary to perform such an
analysis here, for though I have considered Dr. Phenix’s scoring
of the Static-99R, an instrument which is widely accepted, I have
not placed dispositive weight in the resulting percentage
likelihood of reoffense.
35

Dr. Phenix, to compare an offender who has been pre-selected for
treatment to this sample. (Id. at 42-43.)

In this case, Dr.

Phenix relied upon a number of dynamic risk factors, discussed
further below, to place Mr. Carta into the “high-risk bin.” (Id.
at 43.)

She testified that she could have also placed him into

the pre-selected for treatment bin, but that he exhibited a
number of factors that made his reoffense rate even higher than
it would be for the average person pre-selected for treatment.
(Id.)

When using data from offenders who fall within a similar

high risk category, Dr. Phenix claims she was able to provide
more precise predictions of the likelihood that Carta will
reoffend. (Id.)

She predicted that he had a 25.2 percent

likelihood of reoffending at five years and a 35.5 percent
likelihood of reoffending at ten years. (Id. at 42:1-3.)

As Dr.

Phenix’s testimony also disclosed, however, the decision to place
an offender within a certain “bin” is remarkably high stakes.

If

Dr. Phenix had placed Mr. Carta in the routine sample, then she
would have predicted an 11.4 percent likelihood of reoffense
within five years; if she had placed him in the pre-selected for
treatment sample, she would have predicted a 15.9 percent
likelihood of reoffense over five years. (Id. at 54.)
Dr. Phenix also scored Mr. Carta on two other actuarial
instruments, the Static 2002-R and the MnSTOT-R.

She testified

that the most reliable instrument was likely the Static-99R,

36

which had been validated on more samples than either of the two
other instruments.

(Trial Tr. Day 1, 105:22-23.)

Nonetheless,

she scored multiple instruments in order to ensure that there was
not a large discrepancy between any of the instruments, which
might have given cause to doubt the validity of her conclusions.
(Id. at 106:8-14.)
The Static-2002R is a risk assessment device that is similar
to the Static-99R, but as opposed to providing just a list of ten
factors, it includes clusters of factors each related to various
characteristics of the subject.

When Dr. Phenix scored the

Static-2002R she found that Carta was in the moderate-high risk
range.

Offenders with the same score as Carta on this instrument

reoffended at a rate of 25 percent in five years and 33.8 percent
in ten years. (Id. at 107.)
The MnSTOT-R is based on data from inmates released from the
Minnesota Department of Corrections. (Id. at 111:2-13.)

The

instrument includes many of the same factors taken into account
on the Static-99R and Static-2002R, but it also includes some
more untraditional risk factors that researchers have found to be
statistically significant, like whether any offending has
occurred in a public place. (Id. at 109-10.)

Furthermore, it

includes four dynamic, or changing, risk factors like whether the
subject has completed chemical dependency treatment, has
completed sex offender treatment, or has a disciplinary history

37

while incarcerated. (Id. at 110.)

When Dr. Phenix explained her

scoring of this instrument on direct examination, she placed
Carta in the high risk range and predicted about a thirty percent
likelihood of reoffending while under supervision. (Id. at
111:23-25.)

On cross examination, however, she admitted that she

had made an error on the scoring of this instrument when she
added three points for Carta’s termination of sex offender
treatment.

In fact, according to the instrument’s instructions,

a scorer should not add these points when the offender
voluntarily quits treatment, as was the case with Carta, as
opposed to being forced out. (Id. at 103-105.)

After adjusting

Carta’s score accordingly, Dr. Phenix found that he scored in the
“moderate” risk range with a 20 percent rate of reoffense under
supervision. (Id. at 105:20-25.)
Dr. Phenix also relied upon a number of dynamic risk factors
in forming her opinion that Carta will have serious difficulty
refraining from reoffending.

These factors, laid out in an

instrument called the Stable-2000, address various dynamic
influences on an offender’s life and ability to control behavior.
They include: significant social influences, intimacy deficits,
ability to control sexual preoccupation, cooperation with
supervision, and general self-regulation.

Dr. Phenix testified

that all of the factors set forth in the Stable-2000 are present
in Carta. (Id. at 115.)

38

First, Carta will, according to Dr. Phenix, have minimal
social support in the community.

Carta's vindictive behavior,

especially toward his family, has driven his support-system away
and estranged him from his daughter. (Id. at 115-16.)
Second, according to Dr. Phenix, Carta has significant
intimacy deficits.

He has described difficulty in relationships,

stating that he often suffocates his partners.

He has also

turned toward pornography as a substitute for real relationships.
Dr. Phenix also testified that Carta has turned to inappropriate
sexual partners and that he does not have the skills to develop a
meaningful relationship that would protect against future
reoffending. (Id.)
Third, Carta, according to Dr. Phenix, has poor “sexual
self-regulation.”

To support this claim, she pointed to Carta's

compulsive preoccupation with child pornography and his seeking
out pubescent boys for sexual activity.

According to Dr. Phenix,

this obsessiveness has also been apparent during Carta's time in
custody where he has developed inappropriate relationships with
younger treatment program participants. (Id. at 116-17.)
Fourth, Carta has a diminished “general self-regulation.”
This characteristic manifests in Carta's behavioral impulsivity
as evident in his non-sexual criminal history, compulsive use of
child pornography, and tendency to act emotionally and
vindictively to hurt the people close to him. Furthermore,

39

Dr.Phenix testified that Carta has exhibited bad problem-solving,
which is indicative of poor general self-regulation.

In

particular, he impulsively quit the SOTP at Butner despite the
fact that he later believed quitting to be a mistake. (Id. at
120-21.)
Fifth, Carta exhibited a lack of cooperation with
supervision.

Of particular note to Dr. Phenix was Carta’s

failure to follow through with SOTP at Butner, which, according
to Dr. Phenix, entailed repeatedly engaging in behaviors that
treatment providers had counseled against. (Id. at 119.)
Dr. Phenix concluded by testifying that Carta's failure to
complete the SOTP at Butner was particularly concerning.

She

believed that his focus on meeting his sexual needs with younger
participants interfered with his ability to focus on treatment
needs. (Id. at 123.)

Furthermore, upon reviewing Carta's

response to treatment, Dr. Phenix testified that she does not
believe that he understands his offense cycle, which he engaged
in by spending time with younger program participants at Butner.
In sum, she felt that Carta is now the same person he was when he
entered Butner as an untreated sex offender.

When he left the

program at Butner he retained a number of cognitive distortions,
including that it was permissible to have sex with thirteen yearold boys because it was good for them. (Id.)

Without further

treatment, and a structured plan to avoid relapse, Dr. Phenix

40

believes that Carta will have serious difficulty refraining from
sexually violent crimes or child molestation. (Id.)
2. Dr. Bard (Court-Appointed Expert)
a) Mental Condition
Dr. Bard did not agree with Dr. Phenix that Carta had a
diagnosable mental illness.

He agreed that Carta was attracted

to, at the very least, “post-pubescent” age children, and he
agreed that this attraction would always be present.

Dr. Bard

disagreed, however, with the use of the descriptor “Hebephilia”
attached to the paraphilia NOS diagnosis, and further testified
that paraphilia NOS does not describe a diagnosable mental
illness in the forensic context.
Dr. Bard first explained that attraction to pubescent and
post-pubescent minors cannot be considered deviant because
research indicates that normal adults with no history of sexually
offending experience some arousal to these age groups. (See Ex.
37.)

According to Dr. Bard, the Blanchard article, on which Dr.

Phenix based much of her testimony, is not valid and has been
criticized by a number of researchers.

The methodological

problems cited have been 1) exclusion of images of the 15-18 year
old age group; 2) no control group of non-offenders to compare
the phallometric response of normal non-offending adults to the
stimuli; and 3) the exclusion of more than half of the study's
potential subjects. (Id.)
41

Dr. Bard believes that attraction to pubescent children and
post-pubescent children is non-deviant.

When pressed on whether

he believed that attraction to thirteen year-olds fell within the
contours of non-deviant sexual arousal, Dr. Bard wavered: “I
can't answer the question the way you asked it because the age is
basically irrelevant. Sexual development is the only issue, not
age.” (Trial Tr. Day 5, 69:8-9.)
Dr. Bard also specifically testified about the paraphilia
NOS diagnosis.

Though this diagnosis was accepted by the First

Circuit in Carta I, Carta contends that new research since that
case was published complicates the assumptions on which the First
Circuit's reasoning was based.

Most importantly, Allen Frances,

the chair of the DSM-IV task force, and Michael First, editor of
the text and criteria for DSM-IV and editor and co-chair of the
DSM-IV-TR, recently wrote an article in The Journal of the
American Academy of Psychiatry and the Law explaining their
understanding of the text of the DSM-IV paraphilia definition.
(Ex. 39.)

The article explains that the forensic diagnosis of

paraphilia NOS with a Hebephilia descriptor is a misreading of
the DSM-IV. (Id. at 79.)

In the DSM-IV, reference to an arousal

to “children or nonconsenting persons” as a criterion for
paraphilia replaced the DSM-III's reference to “unusual or
bizarre imagery or acts” as being an essential feature of any
disorder in the paraphilia category.

42

The authors explain that

this language was removed from the DSM-III because of a concern
that “unusual or bizarre” called for too subjective an inquiry
into the arousal pattern. (Id.)

Nonetheless, the authors did not

envision the change as effectuating a fundamental reworking of
the paraphilia definition.

In their view, someone can only have

a paraphilia if his arousal patterns are somehow “unusual or
bizarre.”

Because, in their view, attraction to pubescents is

normal, it does not support a paraphilia diagnosis, and,
therefore, the term “children” in the DSM-IV definition cannot
reference adolescent or post-adolescent youths.

In sum, they

conclude:
“Paraphilia is meant to apply only to sexual urges,
fantasies, and behaviors that are unusual or bizarre. .
. . [S]exual attraction to pubescent individuals is far
too widespread to be considered unusual or bizarre and
has not been considered to be evidence of a paraphilia
in any of the DSMs from DSM-I all the way through DSMIV-Tr. Given the rightful illegality of predatory
sexual relationships with minors, being intensely
sexually aroused by adolescents may predispose the
individual with such inclinations to committing a
crime, but the attraction in and of itself is not an
indicator of a mental disorder.”
(Id. at 90.)
b) Serious Difficulty Refraining
Dr. Bard concluded to a reasonable degree of professional
and medical certainty that Carta would not have serious
difficulty refraining from molesting children.

In reaching this

conclusion, Dr. Bard performed an “adjusted risk assessment.”
(Trial Tr. Day 5, 90:21-24).

The process included use of an
43

actuarial tool and evaluation of dynamic risk factors, including
“general self control in a non-sexual way, sexual self-control,
as is the pattern of sexual offending, intimacy, differences,
deficits, participation and/or completion of a treatment program,
and age.”

(Id. at 90:21-91:14).

Dr. Bard described the actuarial tool – the Static-99 – as
only “moderate in validity” because “[i]t doesn't tell me
anything about their current situation. It doesn't look at if
he's in treatment or has behaviors since his offending . . . . I
think it's a good beginning, though, and that's it.”
107:4-8).

(Bard Dep.

Dr. Bard’s application of the Static-99R revealed that

Mr. Carta had a 7-15 percent chance of re-offense. (Id. at 100:613.)
In finding that Mr. Carta would not have serious difficulty
refraining from child molestation if released from prison,

Dr.

Bard found it significant that Mr. Carta has not engaged in
sexual misconduct in prison. (Id. at 88:1-3.)

In addition, Dr.

Bard stressed that Mr. Carta is not a classic recidivist in the
sense that he has not committed additional sexual offenses since
his imprisonment for child pornography. (Id. at 88:4-7.)
According to Dr. Bard, “Once someone has been sanctioned and they
continue to physically contemplate that behavior, it gives
evidence that that person. . . has shown difficulty controlling
their. . . impulses.”

(Id. at 87:18-21.)

44

With respect to Mr. Carta associating with younger members
of the SOTP at Butner before his voluntary withdrawal, Dr. Bard
does not view that activity as problematic.

Dr. Bard testified

that “if Mr. Carta left the program today and proceeded to engage
in sexual relationships with 25-year-olds, why is that a bad
thing? It's not illegal. It's not deviant. It's his -- if he was
able to successfully move his level of attraction from teenagers
to twenty-somethings, why is that a problem?”
21).

(Id. at 110:16-

Overall, he credits Mr. Carta's assertion that the reason

he dropped out of SOTP was frustration with the program and Mr.
Carta's own stubbornness about admitting that he had made a
mistake, not because of any sexual or otherwise inappropriate
contact with anyone in the program. (Id. at 110-13.)
In response the Court’s inquiry of whether Mr. Carta would
impulsively reoffend if “he hits a bump in the road” after his
release from prison in the same way that he appears to have
responded impulsively to other negative experiences, Dr. Bard
responded that Mr. Carta is “a very different person now” and
“he’s going to have a support system” in the form of therapists,
family members, and a probation officer. (Id. at 89:3-18.)
According to Dr. Bard, “the vast majority of offenders can be
treated successfully with good treatment in the community and a
desire to change.” (Id. at 116:6-8.)
In sum, Dr. Bard testified that “Mr. Carta's attraction, if

45

you can assess that, is clearly not the same now as it was then.
His impulsivity is not the same now as it was in the past. His
anger is not the same now as it was in the past. He is able to
control his behavior as evidenced by his nine plus years in
prison without any serious violence.”

(Id. at 109:6-11.)

Ultimately, according to Dr. Bard, these changes make it unlikely
that Carta will reoffend. (Id. at 109:18-20).
3. Dr. Prentky
Dr. Prentky's opinion was based on his review of Mr. Carta's
record and two, three-hour interviews with Mr. Carta. (Trial Tr.
Day 3, 22-25.)
a) Mental Condition
Dr. Prentky testified that Mr. Carta does not suffer from a
mental illness, abnormality, or disorder, and, in particular,
that he does not suffer from the mental disorder of paraphilia
NOS, characterized by Hebephilia. (Id. at 57:17-20.)
This opinion, however, was not based on Dr. Prentky's view
that paraphilia NOS with a descriptor of Hebephilia is never an
appropriate diagnosis. (Id. at 65-66.)

Dr. Prentky was familiar

with the ever-present debate over the paraphilia NOS (Hebephilia)
diagnosis and was up-to-date on the newest developments in the
field, including the new article by Frances and Frist. (Id. at
66.)

Nonetheless, Dr. Prentky agreed with Dr. Phenix that

paraphilia-NOS, “the wastebasket” paraphilia diagnosis, as he
46

deemed it, (id. at 66:23-25,) was an appropriate diagnosis with a
Hebephilia descriptor. (Id. at 68:6-12.)
In deciding not to diagnose Mr. Carta with paraphilia not
otherwise specified, characterized by Hebephilia, Dr. Prentky
highlighted the fact that only three of Mr. Carta’s self-reported
victims were age eleven to fourteen and that most of his child
pornography interests revolved around an obsession with trading
and collection as opposed to consumption. (Id. at 43, 74:11-16.)
Dr. Prentky testified that Mr. Carta is most attracted to the
body type that “would be essentially a pubescent male in the age
range of fifteen to twenty.”

(Id. at 74:22-23.)

According to

Dr. Prentky, “[t]he overwhelming weight of the evidence seems to
be that his preference is for young adolescents who are older
than [eleven to fourteen] . . . . [I]f you look at all of the
[victims] that we're talking about, indeed, 9 of the 13 were
either 15, 16, or 17 years old, and one apparently was 15 . . .”
(Id. at 76:2-7)

Dr. Prentky qualified his finding by admitting

that “[a]ge is a relatively crude measure when we're talking
about this gray area of adolescence.

Age is much easier when

we're talking about children or we're talking about adults; it
only becomes highly problematic when we're talking about
adolescence.”

Despite this ambiguity, Dr. Prentky stated that,

according to the information at hand, Mr. Carta can not be said
to have recurrent, intense sexually-arousing fantasies or urges

47

involving children age eleven to fourteen. (Id. at 108:23-109:4.)

b) Serious Difficulty Refraining
Dr. Prentky also concluded that Mr. Carta would not have
serious difficulty refraining from molesting children. (Id. at
27:16-20.)

This conclusion was based on Dr. Prentky's attempt to

score the Static-99 actuarial instrument and his use of the
“empirically-guided” risk assessment referred to as the SVR-20.
(Id. at 81:2-4.)
With respect to the Static-99, Dr. Prentky determined that
Mr. Carta could not be scored with that instrument. (Id. at
97:14-16.)

According to Dr. Prentky, in order to be eligible for

scoring on the Static-99 the subject must have been adjudicated
on at least one “Category A” offense, or an offense including a
sexual battery. (Id. at 81.)

Although Carta has self-reported a

number of Category A offenses through the SOPT, self-reported
offenses inexplicably do not provide a sufficient basis for
scoring the instrument. (Id.)
Instead, Dr. Prentky relied upon a similar instrument, the
SVR-20, which has been used for over a decade, mostly in Canada.
(Id. at 83:11-16.)

According to Prentky, “the SVR-20 is at least

as good in terms of its predictive performance as the Static-99,
and. . . at least one or two studies [have] actually [determined
it to be] better.” (Id. at 83:25-84:2.)
48

Under the first

“cluster” of variables set out by the SVR-20, the cluster
referring to “psychosocial adjustments,” Carta received an
extremely high score. (Id. at 85:15-17.)

These variables,

including supervision failure, nonviolent offenses, nonsexual
violent offenses, employment problems, and severe social problems
are all consistent with Carta's severe antisocial attributes.
(Id. at 85.)

Other items, however, namely those concerning

Carta's sexual history, provided a substantially lower score;
significantly, however, this was in part because Dr. Prentky did
not score Carta's sexual crimes that had not been adjudicated.
(Id. at 87.)

Moreover, Dr. Prentky's meetings with Carta did not

reveal distorted attitudes about his sex crimes.

In fact, Dr.

Prentky testified that Carta was actually “rather embarrassed”
about his past. (Id. at 87:15-16.)
The SVR-20 does not yield quantitative predictions in the
way that the Static-99 and Static-2002 do.

Instead, the scorer

combines the results of the risk assessment with a number of
other factors in order to form an overall opinion about whether
an offender will likely reoffend.

Based on Carta's score on the

SVR-20, which Prentky deemed, in his experience, extremely low,
(id. at 89:19-21,) and the number of other factors present in
Carta's case, Dr. Prentky opined that Carta would not have
serious difficulty restraining from reoffending in the future.
These other factors included: 1) that there is no documented

49

evidence of a sexual offense until Carta was 40; 2) that his
prison sentence resulting from his conviction is his first
significant sanction for a sexual offense; 3) that after he pled
guilty to transportation of child pornography, he was released
pending sentencing and was in the community without any known
infraction; and 4) that he has a non-sexual criminal history.
(Id. at 90-91.)

Notably, the last of these factors seems to cut

against Dr. Prentky's conclusions, and Dr. Prentky recognized
that Carta's antisocial attributes along with his criminal
history contribute to his risk.

However, these considerations,

in Dr. Prentky's mind, did not overcome Carta’s other
characteristics, including, most importantly, the fact that Carta
had never sexually reoffended after a criminal sanction for a
sexual offense and did not have serious disciplinary or sexual
problems in prison.

Overall, Dr. Prentky opined that Carta will

have serious difficulty in refraining from general antisocial
behavior, but he did not believe that Carta will have serious
difficulty in refraining from sexually violent conduct or child
molestation.
Further, Dr. Prentky testified that the SOTP in conjunction
with CODE have “deeply moved” Mr. Carta and have helped him
accept responsibility for his prior misconduct. (Id. at 47:548:6.)

Dr. Prentky did not consider Mr. Carta’s voluntary

withdrawal from the SOTP significant.

50

He explained that “the

literature is very, very clear that however clinically important
[withdrawal] may seem to us, and it is clinically important, it
has no bearing on their risk to recidivate.” (Id. at 94:13-16.)
Furthermore, Dr. Prentky doubted the propriety of considering Mr.
Carta’s relationship with younger program participants to be part
of an offense cycle, as these kinds of relationships would be
perfectly appropriate outside of an institutional setting. (Id.
at 93-94.)
D. Conditions of Release
During this trial, the parties did not spend much time
addressing Carta's conditions of supervision if released.

At the

first trial, however, the court heard testimony from a number of
sources about the kinds of programs available to Carta if he is
released.

Carta has a three-year term of supervised release on

his child pornography sentence and in addition to standard
conditions of supervision, he would be subject to several special
conditions imposed by the sentencing court, including required
participation in mental health, sex offender, and substance abuse
treatment, as well as polygraph examinations and searches of his
home and computer equipment by U.S. Probation. (Ex. 25.)
At the first trial, Dr. Randall Kent Wallace, a psychologist
who works for Connection, Inc., an organization that provides sex
offender treatment to sex offenders in Connecticut who are
supervised by the U.S. Department of Probation, testified about

51

Carta's likely treatment if released. (Carta I, Trial Tr. Day 1,
3.)

The program provides regular polygraph examinations, and

helps offenders establish support systems and a plan for life
after supervision. (Id. at 21, 28.)

The program does not cure

sex offenders but, rather, seeks to help them manage behaviors
(Id. at 39.)

Dr. Wallace did not know Carta and did not know if

he would be accepted into the program at Connection. (Id. at 41.)
At this trial, Dr. Bard testified that if released, Carta
plans to live in a transitional housing program in Hartford
called Open Hearth. (Trial Tr. Day 5, 127:13-17.) The Court was
provided with little information about Open Hearth, and it is not
clear at this time whether it would accept Carta. (Id. at 12728.)
CONCLUSIONS OF LAW
A.

The Second Element: Serious Mental Disorder
I find that the government has established by clear and

convincing evidence that Carta suffers from a serious mental
illness, abnormality or disorder in the form of paraphilia NOS
with a descriptor of Hebephilia.

In Carta II, the First Circuit

accepted this diagnosis and remanded to this Court seemingly for
the purposes of examining prong three of the sexually dangerous
person test only.

Nonetheless, Carta and Dr. Bard have

vigorously argued that the analysis should be reexamined in light

52

of new evidence in the form of articles written by the drafters
of the DSM-IV.

I find this argument unpersuasive.

As the First Circuit has recognized, the Court is not bound
by the precise contours of the DSM. See Carta II at 39.

The

statute allows for the commitment of individuals who have
“serious mental abnormalit[ies], defect[s], or disorder[s],” 18.
U.S.C. § 4247(a)(6)(emphasis added).

Even though there is

disagreement within the psychiatric community over the propriety
of the paraphilia NOS (Hebephilia) diagnosis, the government has
established by clear and convincing evidence that paraphilia NOS
(Hebephilia) – that is an attraction to pubescent children
between the ages of 11 and 14 – is a serious mental illness,
abnormality or disorder within the statutory language.
has been published in a peer-reviewed journal.

First, it

Second,

Pedehebephilia, a variant of paraphilia NOS (Hebephilia), is
under serious consideration for inclusion in the DSM-V.

Finally,

two of the three experts, including Mr. Carta’s own expert,
testified that paraphilia NOS (Hebephilia) was an appropriate
medical diagnosis.

Moreover, because the diagnosis includes a

requirement that the diagnosed individual be subject to
“clinically significant distress or impairment in social,
occupational, or other important areas of functioning,” (Ex. 11
at 1,) I also find that this disorder is “serious” within the
language of the statute.

53

The paraphilia NOS (Hebephilia) diagnosis also fits Mr.
Carta.

Given his testimony, I find that Carta continues to be

aroused to thirteen year-old children.

Further, he has been

caught with thousands of images of child pornography, including
many depicting young pubescent and even pre-pubescent aged
children, and he has admitted that he masturbated to these
materials for hours every day; most importantly, he has engaged
in repeated sexual contact with thirteen year olds, including a
multi-year sexual relationship with one thirteen year-old whom he
groomed and manipulated into coming across the country to live
with him.

Carta has even admitted that part of the reason he

enjoys children of this age is precisely because of their
immaturity and the fact that he feels good taking care of them.
At least some of Carta's victims must have been in the process of
puberty, and his arousal to them was and remains deviant.
Furthermore, Carta’s arousal pattern has caused significant
distress and impairment in his life.

Not only was Carta obsessed

with child pornography, but his intense attraction to young boys
has caused him to form prolonged, deviant, and dysfunctional
relationships with pubescent youths.

This is evident in

particular in Carta’s relationship with John, which was
characterized by manipulation and stalking behaviors.
B. The Third Element: Serious Difficulty Refraining

54

The harder issue is whether the government has established
by clear and convincing evidence that Carta will have serious
difficulty refraining from sexual violence or child molestation.
The statute provides minimal guidance on how I should answer this
question.

On the one hand, the statutory language requires that

the government establish that Carta’s difficulty will be
“serious.”

Merely the presence of a sexual attraction to minors

is insufficient to meet this prong of the test for civil
commitment if the person the government seeks to commit has
developed the skills necessary to overcome the urge to have
sexual contact with minors without difficulty.

On the other

hand, the government need not establish that the person it seeks
to commit will, or even is likely to, reoffend. See United States
v. Hunt, 643 F.Supp.2d 161, 179-81 (D. Mass. 2009).

The analysis

must focus on Carta’s volitional control understood in relation
to his mental illness.

Making this determination, therefore, is

not as simple as merely relying on recidivism rates of past
offenders; it calls for an analysis of a range of different
factors, including Mr. Carta’s history before incarceration, his
time in prison, and the opinions of experts.
The determination under this prong is also informed by the
constitutional constraints on the civil commitment scheme.

In

Kansas v. Crane, 534 U.S. 411 (2002), the Supreme Court held that
in order to civilly commit someone for sexual dangerousness

55

“there must be proof of serious difficulty in controlling
behavior.” Id. at 413.

The Court noted that this standard

allowed courts wide discretion in relying on a number of
different factors relevant to sexual dangerousness.

The standard

did not have “any kind of narrow or technical meaning;” nor was
it demonstrable with “mathematical precision.” Id.

The final

analysis, however, must not be just whether Mr. Carta exhibits
traits shared by recidivists.

Ultimately, Carta’s volitional

control must be “viewed in light of such features of the case as
the nature of the psychiatric diagnosis, and the severity of the
mental abnormality itself. . . [in such a way that]
distinguish[es] [him] from the dangerous but typical recidivist
convicted in an ordinary criminal case.” Id.
After weighing the many different factors that bear on this
analysis, I find that the government has established by clear and
convincing evidence that Mr. Carta will have serious difficulty
refraining from sexually molesting minors.

I also find that this

difficulty will arise from his underlying mental condition.
The analysis begins with the actuarial instruments scored by the
experts.

The predicted reoffense ranges ascribed to Mr. Carta

are not as high as those of other sex offenders this Court has
committed under the Adam Walsh Act. See United States v. Wetmore,
766 F.Supp.2d 319, 334 (D. Mass. 2011)(Dr. Prentky scoring noting
that individual’s likelihood of reoffending over ten years was 35

56

percent); United States v. Shields, 597 F.Supp.2d 223, 237 (D.
Mass. 2009)(Static-99 resulted in reoffense rates of 39 percent
over five years, 45 percent over ten years, and 52 percent over
fifteen years).

Moreover, two of the experts in this case opined

that Mr. Carta would not have serious difficulty refraining from
sexually reoffending.

Nonetheless, I take seriously Dr. Phenix’s

scoring of the Static-99R, which, even disregarding her choice to
put Carta in a certain offender bin, resulted in reoffense rates
of between 11 and 25 percent within five years. (Tr. Day 2, 5455.)

These findings demonstrate that offenders with similar

backgrounds to Carta have had serious difficulty refraining from
reoffending.
The experts’ testimony on sexual dangerousness is not,
however, dispositive of the question.

In the end, I did not give

full weight to the testimony of any of the experts.

Dr. Bard’s

analysis of the difficulty refraining question seemed colored by
his adamant opposition to the paraphilia NOS (Hebephilia)
diagnosis.

Dr. Phenix’s testimony regarding her decision to

place Carta within a certain “bin” in order to compare him to
other similar offenders for the purposes of determining a
recidivism rate was so unpersuasive that it caused me to place
less weight on her ultimate conclusions regarding Carta’s
likelihood of reoffense.

Dr. Prentky’s testimony on the serious

difficulty refraining question was perhaps the most convincing,

57

but I found reasons to doubt his testimony as well.

I was not

persuaded that Carta’s self-reported crimes could not serve as a
basis for scoring actuarial instruments, and it appeared that
much of Dr. Prentky’s conclusions were based on his own
assessment that Carta has experienced considerable selftransformation while in custody awaiting a final determination of
this matter.

As discussed below, I am less convinced than Dr.

Prentky that this is the case.
Along with the expert testimony, I weigh a number of other
factors.

The most important factor weighing in Carta’s favor is

the fact that there is no evidence that he has had inappropriate
sexual relations after criminal sanction for a sex offense.

This

includes no inappropriate sexual contact during his six months in
the community between his plea in the child pornography case and
his incarceration, and no sexual contact while he has been in
federal incarceration.

Though most of this evidence is derived

from Carta’s own self-report, he has, in the past, been candid
about his sexual contact.

In fact, when he first arrived at SOTP

at Butner, he was reported to have been unusually forthcoming
about his serious past deviant behaviors.
This factor, together with Carta’s reported interest in
seeking out sex offender treatment at Devens, suggests that his
substantial sanction for child pornography, and his resulting
time in incarceration, may have had a positive impact on his

58

volitional control.

Dr. Prentky noted the same after his two

fairly extensive face-to-face interactions with Mr. Carta.

He

testified that Carta seemed to have benefitted from his CORE
treatment at Allenwood, his limited sex offender treatment at
Devens, and his time in incarceration and that he no longer
expressed the cognitive distortions that he had used to excuse
his past sexual abuse.
Other factors in Carta’s favor include both his age and the
fact that he is sexually aroused to majority-aged males and
females.

At the time of trial, Carta was fifty years-old placing

him on the high-end of sexual offenders.

The experts testified

about the decrease in sexual arousal experienced by men around
this age, and data on this phenomenon has led to amending the
actuarial tables to take account of the decrease in arousal after
age forty.

Furthermore, Carta remains attracted to young adult

men, providing a surrogate for sexual offending and the
possibility of a healthy and legal sexual relationship in the
future.
Still, there are a number of weighty factors that cut in
favor of commitment.

Carta’s history is deeply troubling not

just because of his sexual crimes but also because of his
extreme, often despicable, anti-social behaviors, behaviors that
have caused tremendous harm to his friends, family, and lovers
and spurred non-sexual criminal conduct.

59

These behaviors have

led Mr. Carta to act impulsively when faced with adversity and
often cause him to exhibit a volatility which I find highly
concerning.
I also find that Carta has not shed all of his cognitive
distortions.

On the whole, I believe that he is not the same

person who reoffended so frequently in the past.

That said, he

often spoke about how young boys, including John, with whom he
had sexual contact over a number of years beginning when John was
thirteen, and Seth, his daughter’s boyfriend, initiated sexual
contact with Carta.

I found Carta’s account of these sexual

experiences to be highly troubling and suggestive of distorted
thinking regarding his illicit sexual relationships.
Most significantly, Carta’s withdrawal from the SOTP at
Butner persuades me that despite Carta’s testimony at trial, he
has not yet acquired the tools he will need to control his
deviant sexual arousal without serious difficulty.

Although

there is some dispute about why Carta left treatment, there is no
question that his behavior reflected a concerning level of
impulsiveness.

Despite the close supervision and the presence of

nearly round-the-clock therapeutic support, Mr. Carta was neither
able to control his desire to “help” younger program
participants, even though he had been told these relationships
were inappropriate, nor to check his self-defeating and stubborn
impulse to leave treatment.

These behaviors, more than any other

60

evidence in the record, bear directly on Carta’s lack of
volitional control.

Furthermore, the Court credits Dr. Wood’s

contemporaneous reports, which noted that Carta had not yet shed
his cognitive distortions concerning his relationships with
younger males.

Although Carta may have experienced some growth

in the few years since his stint at Butner, his changed tune is
more likely the result of his intervening certification for civil
commitment than a self-directed epiphany while in custody.
The government has also established that Carta will have
serious difficulty refraining from child molestation as a result
of his serious mental illness, abnormality. 18 U.S.C. §
4247(a)(6)(emphasis added); see also Crane, 534 U.S. at 413
(noting that civil commitment requires that a lack of volitional
control be connected to a mental illness). His lack of selfcontrol is exacerbated by his anti-social attributes and
substance abuse addictions, and many of his past behaviors that I
find most troubling, for example his grooming and prolonged
sexual relationship with a thirteen year-old boy, likely arose
from a combination of personality traits and serious mental
illness.

However, though Mr. Carta’s ability to manage his

mental illness has been hampered by his other problems, at its
heart, his lack of volitional control with regard to having
sexual contact with children is driven by his paraphilia NOS
(Hebephilia).

61

ORDER
The government has established by clear and convincing
evidence that Carta is a sexually dangerous person under 18
U.S.C. § 4247(a)(5).

He shall be committed to the custody of the

Attorney General until he is no longer a sexually dangerous
person under the Act.

/s/ Patti B. Saris
PATTI B. SARIS
United States District Judge

62