Professional Documents
Culture Documents
Before
Lynch, Circuit Judge,
Souter,* Associate Justice, and
Selya, Circuit Judge.
February 5, 2016
_________
* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
and Safety Act (the Act) allows the federal government to seek
civil commitment of any "sexually dangerous person" already in the
custody of the Bureau of Prisons (BOP).
"would
have
serious
difficulty
in
refraining
from
Id.
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Wetmore
is
civilly
committed
to
the
BOP
Appellant
as
sexually
We assume the
commitment
and
treatment history.
chronicling
his
personal,
offense,
and
F.3d 570, 572-73 (1st Cir. 2012); United States v. Wetmore (Wetmore
I), 766 F. Supp. 2d 319, 321-25 (D. Mass. 2011).
For now, it
After
guilty
pornography.
in
2000
to
possession
and
receipt
of
child
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580.
Wetmore was held at the Butner (North Carolina) Federal
Correctional
Institution
(FCI-Butner).
While
there,
Wetmore
At the ensuing
Wetmore,
In
Hernandez
(the
clinical
coordinator
of
the
treatment
with
conducting
annual
reviews
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of
sexually
dangerous
persons
detained
at
FCI-Butner).
Each
of
the
government's
remained
sexually
dangerous
and,
thus,
subject
to
III), No. 07-12058, slip op. at 2 (D. Mass. Feb. 27, 2015).
The
court noted the open question regarding which party bears the
burden of proof at a hearing on a release petition under 18 U.S.C.
4247(h), but found it unnecessary to resolve this question.
Wetmore III, slip op. at 8-9, 13 & n.3.
See
See id. at 2, 9.
threshold
issue
in
this
appeal
is
whether
the
The Act
after
the
[discharge]
hearing,
the
court
finds
by
18 U.S.C. 4248(e).
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There, the
longer
create[s]
substantial
risk
of
bodily
injury.'"
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See United States v. Shields, 649 F.3d 78, 81-82 (1st Cir.
Thus, when
legal conclusions de novo and its findings of fact for clear error.
See United States v. Volungus, 730 F.3d 40, 46 (1st Cir. 2013).
The court below found that Wetmore remained sexually
dangerous because he "would have serious difficulty refraining
from future acts of child molestation if released."
slip op. at 20.
Wetmore III,
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op. at 13-20.
We have remarked before that "when lower courts have
supportably
found
the
facts,
applied
the
appropriate
legal
DeBenedictis v. Brady-
Zell (In re Brady-Zell), 756 F.3d 69, 71 (1st Cir. 2014) (citing
cases).
therefore
the
denial
of
Wetmore's
release
We
petition
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that
the
evidence
regarding
Wetmore's
sexual
United
After all,
inferences,
the
trier's
choice
between
those
Bessemer City, 470 U.S. 564, 573 (1985); Espinoza, 490 F.3d at 46.
Second: in all events, the record offers strong support
for the challenged finding.
noted that Dr. Plaud had never acted as a treatment provider for
Wetmore and had not worked with him formally on developing his
release and relapse prevention plan.
12.
Citing the testimony of Dr. Graney and Dr. Hernandez, the court
worried
(with
good
reason,
we
think)
that
Wetmore
had
not
- 9 -
In this
Affirmed.
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