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IN THE UNITED STATES DISTRICT COURT FORTHEEASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION No.5:10-HC-2013-BO UNITED STATES OF AMERICA, ) Petitioner, ) ) v. ) FINDINGS OF FACT ) AND CONCLUSIONS OF LAW SEAN ROBERT FRANCIS, ) Respondent. ) Petitioner (the government) instituted this civil action pursuant to Title 18 ofthe United States Code, Section 4248(a), seekingto commit Respondent Sean RobertFrancis (Respondent) as a"sexually dangerous person" pursuantto the Adam WalshChild Protection and Safety Act of 2006 ("the Act"). The government filed acertificate stating that mental healthpersonnel for the Federal Bureau ofPrisons (BOP) examined Respondent and issued apreliminary determination that he is sexuallydangerous within the meaningofthe Act [DE 1]. Such certificate stayed Respondent's release from federal custody pending ahearing to determine whether Respondent qualifies for commitment as a sexuallydangerous person. The government's petitionwas filed on February2,2010, four days beforeRespondent was scheduledto be releasedfrom BOP custody onFebruary 6, 2010. On October 5,6, and 7, 2011, the Courtconducted an evidentiary hearing inthis matter pursuantto 18 U.S.C. §4247(d). On October 7,2011, the Courtdirected the parties to file proposed findings offact and conclusions oflaw. Pursuantto Rule 52(a)(l) oftheFederal Rules ofCivil Procedure, and afterdue considerationofthe evidence presentedand argument of Case 5:10-hc-02013-BO Document 95 Filed 01/20/12 Page 1 of 6 counsel, the Courtadopts all but sectionIII(A) ofRespondent's Findings ofFact and Conclusions ofLaw (Findings), as filed on October 17,2011 [DE 88], and incorporates those findings and conclusions as ifthey were fully set forth herein. The Court declines to adopt Respondent's proposed conclusions regarding violations ofequal protection and due process as setforth in section III(A)(l)-(2) insofar as they are inconsistentwith the Fourth Circuit's recent holding in UnitedStates v. Timms, Nos. 11-6886 and 11-6941,2012 WL 34477 (4th Cir. Jan. 9, 2012). As set forth more fully in its Findings, the Courtnow holds that the Governmenthas failed to satisfy its burdento showthat Respondent is sexually dangerous to others as defined by the Adam Walsh Act. As each portionofthe §4248 analysis was challenged by Respondent, the Courtenters the following in supportofitsjudgment: DISCUSSION To order the commitmentofa respondentpursuantto §4248, a court must conclude, after anevidentiaryhearingat which the governmentbears the burdenofproofby clearand convincing evidence, that the respondent is a "sexually dangerous person" as defined bythe Act. The government must showthat (l) the respondent "has engaged in or attempted to engage in sexuallyviolent conductorchildmolestation" and (2) that the respondent"suffers from a serious mental illness, abnormality, or disorder as a resultofwhichhe would have serious difficulty in refraining from sexuallyviolentconductorchild molestation ifreleased." 18 U.S.C. §4248(d). "[C]learand convincinghas been defined as evidence ofsuch weightthat it produces in the mind ofthe trier offact a firm belieforconviction, withouthesitancy, as to the truth ofthe allegations soughtto be established, and, as well, as evidencethatproves the facts at issueto be highly 2 Case 5:10-hc-02013-BO Document 95 Filed 01/20/12 Page 2 of 6 which he had engaged. Althoughthe Court is troubled bythe utilization ofsuchtestimony by the government during ahearing at which fundamental liberty interests are at stake, inlight ofsuch constitutional protections as the Sixth Amendment confrontation right and the FifthAmendment right against self-incrimination, the Courtneed not address these potential deprivations here because, as discussed below, it finds thatthe government has failed to establishthat Respondent will be unable to refrain from sexually violent conduct ifreleased. Notwithstanding, the Courtnotes that it found crediblethe testimony ofRespondentthat many ifnot all ofthe "victims"he described during his polygraph interviewwere either fabricated entirelyor embellished forthe purposes ofremaining in a sex offendertreatment program. Such a finding is supported in the record bythe fact thatalthough Respondent had admitted for purposes ofsex offendertreatmentto committingup to fifty-seven contact sex offenses, only one potential victim has come forward and no charges have ever been filed against Respondent. 2. WhetherRespondentsuffersfrom aseriousmentalillness, abnormality, ordisorder as a resultofwhich he wouldhaveseriousdifficulty in refrainingfrom sexually violentconductor childmolestation ifreleased Even assuming, without deciding, that Respondent has engaged in sexuallyviolent conduct inthe past, the Court finds that the government has not carried its burden with regard to the second step ofthe §4248 analysis. The Court is persuaded bythe testimonyofDrs. Plaud and Singerthat Respondent at onetime suffered from a diagnosis ofParaphiliaNOS (not otherwise specified) -telephone scatalogia, butthatthere is at least aquestionas to whether it 4 Case 5:10-hc-02013-BO Document 95 Filed 01/20/12 Page 4 of 6 remains an accurate diagnosis today. Irrespective ofwhether ornot Respondent is still suffering from aserious mental disorder, the Court also finds credible the testimony ofDrs. Plaud and Singer that Respondentwould not have serious difficulty from refraining from sexually violent conduct ifreleased. Although they considered the admissions byRespondent to sexuallyviolent offenses, Drs. Plaud and Singer both noted the difficulty in using actuarial or statistical risk assessment tools to evaluate someone, suchas Respondent, who has not been shownto have engaged in hands-on or contact sex offenses. Additionally, bothofthese experts highlighted the fact thatRespondent had remained inthe community for more than six months while possessing a cell phone without engaging inthreatening or obscene phone call behaviors, opiningthatthis demonstrated Respondent's level ofvolitional control. As discussed recently by the Fourth Circuit, "[t]he serious difficulty prong ofthe §4248 certificationproceedings refers to the degree ofthe person's 'volitional impairment,' which impacts the person's ability to refrain from acting upon his deviant sexual interests." UnitedStates v. Hall, No. 11-7102,2012 WL 34481, at *5 (4th Cir. Jan. 9, 2012) (internal citation omitted). The Court finds most convincing the methods andjudgmentemployed by Drs. Plaud and Singer in assessing whether Respondentpossesses the volitional control to refrainfrom engaging in sexuallydeviant behavior inthe future, and finds thatthe governmenthas failed to showby clearand convincing evidence that Respondent will have serious difficulty refraining from sexuallyviolentconductifreleased. Also currently before the Court is Respondent's Motionto Dismiss [DE 81]. In light of the Fourth Circuit's recent holding in UnitedStates v. Timms, Nos. 11-6886 and 11-6941, 2012 WL 34477 (4th Cir. Jan. 9, 2012), Respondent's Motionto Dismiss is DENIED. As the Court has entered afactual finding inthis matter releasing Respondent, all other pending motions are 5 Case 5:10-hc-02013-BO Document 95 Filed 01/20/12 Page 5 of 6 hereby DENIED AS MOOT. CONCLUSION Accordingly, the Clerk is DIRECTED to enterjudgmentin favor ofthe Respondent Sean Robert Francis and against the Petitioner. The government is ORDERED to release the Respondent to the custody ofthe appropriate United States Probation Office. This action is hereby DISMISSED. 11 SO ORDERED, this day ofJanuary, 2012. T RRENCE W. BOYLE UNITED STATES DISTRICTJU 6 Case 5:10-hc-02013-BO Document 95 Filed 01/20/12 Page 6 of 6