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United States v. Montgomery

United States District Court, E.D. North Carolina, Western Division

April 17, 2018

UNITED STATES OF AMERICA, Petitioner,
v.
KEVIN MONTGOMERY, Respondent.

          ORDER

          TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE

         This cause comes before the Court following petitioner's motion to commit respondent, Kevin Montgomery, as a sexually dangerous person pursuant to the Adam Walsh Child Protection and Safety Act of 2006, 18 U.S.C. § 4248. For the reasons that follow, the Court finds that Mr. Montgomery is not sexually dangerous and orders his release from commitment.

         BACKGROUND

         Petitioner ("the government") instituted this civil action pursuant to Title 18 of the United States Code, Section 4248(a), seeking to commit respondent Kevin Montgomery ("respondent" or "Mr. Montgomery") as a sexually dangerous person pursuant to the Adam Walsh Child Protection and Safety Act of 2006 ("the Act"). The government filed a certificate stating that mental health personnel for the Federal Bureau of Prisons ("BOP") had examined the respondent and issued a preliminary determination that he was a sexually dangerous person within the meaning of the Act [DE 1]. Such certificate stayed the respondent's release from federal custody pending a hearing to determine whether the respondent qualifies for commitment as a sexually dangerous person. The government's petition was filed on April 21, 2017. Respondent's projected release date was November 6, 2017.

         On October 11, 2017, the Court conducted an evidentiary hearing in this matter pursuant to 18 U.S.C. § 4247(d). The parties filed proposed findings of fact and conclusions of law on October 4 and 5, 2017. Pursuant to Rule 52(a)(1) of the Federal Rules of Civil Procedure, and after due consideration of the evidence presented and arguments of counsel, the Court adopts in part respondent's findings of fact and conclusions of law as filed on October 4, 2017. Specifically, the Court adopts sections A (Mr. Montgomery's Background), B (Substance Abuse History), C (Medical History), D (Criminal History), and E (Institutional Adjustment). The Court now holds that the government has failed to satisfy its burden to show by clear and convincing evidence that Respondent is sexually dangerous to others as defined by the Adam Walsh Act.

         DISCUSSION

         To order the commitment of a respondent pursuant to § 4248, a court must conclude, after an evidentiary hearing at which the government bears the burden of proof by clear and convincing evidence, that the respondent is as "sexually dangerous person" as defined by the Act. The government must show that (1) the respondent has engaged in or attempted to engage in sexually violent conduct or child molestation; (2) that the respondent suffers from a serious mental illness, abnormality, or disorder; and (3) as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released. 18 U.S.C. § 4248(d).). "[C]lear and convincing has been defined as evidence of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established, and, as well, as evidence that proves the facts at issue to be highly probable." Jimenez v. DaimlerChrysler Corp., 269 F.3d 439, 450 (4th Cir. 2001) (internal quotation marks, citations, and alterations omitted). If the Court finds that the government has satisfied its burden, the individual must be committed to a suitable facility for mental treatment until he is determined to no longer be sexually dangerous to others. 18 U.S.C. § 4248(d).

         1. Whether the respondent has engaged or attempted to engage in sexually violent conduct or child molestation.

         At the outset, the government must demonstrate that respondent has engaged or attempted to engage in sexually violent conduct or child molestation. 18 U.S.C. § 4248(d). The Court finds, by clear and convincing evidence, that respondent has engaged or attempted to engage in sexually violent conduct. Specifically, respondent pleaded guilty to fourth degree sexual assault in 1996, second degree rape in 1997, misdemeanor sexual abuse in 2010, and attempted first degree sexual abuse in 2011. These convictions are sufficient to establish that the government has met its burden on prong one.

         2. Whether the respondent currently suffers from a serious mental illness, abnormality, or disorder.

         To meet its burden on the second prong, the government must prove by clear and convincing evidence that respondent "suffers from a serious mental illness, abnormality, or disorder." 18 U.S.C. § 4248(d). Civil commitment is limited to individuals whose mental illness renders them dangerous beyond their control. United States v. Francis, 686 F.3d 265, 275 (4th Cir. 2012). The determination of whether an individual's mental illness rises to the level of a sexually dangerous person is fact specific as viewed by expert psychiatrists and psychologists. Id.

         Although the phrase "serious mental illness, abnormality, or disorder" is not specifically defined, the Fourth Circuit has instructed courts that labeling a respondent with a "diagnosis" is merely a starting point and that "the true thrust of the § 4247(a)(6) inquiry [is] whether, on a case-specific basis, the respondent's underlying condition constitutes a serious functional impairment." United States v. Caporale, 701 F.3d 128, 137 n.4 (4th Cir. 2012). The Court in Caporale further noted that "a mental disorder or defect need not necessarily be one so identified in the DSM in order to meet the statutory requirement." 701 F.3d at 136 (citing United States v. Carta, 592 F.3d 34, 39-40 (1st Cir. 2010)). Accordingly, the phrase "serious mental illness, abnormality, or disorder" in the Act is "a legal term of art" to be developed by the courts. Caporale, 701 F.3d at 136; see also Kansas v. Hendricks, 521 U.S. 346, 359 (Hendricks) (explaining that "the term 'mental illness' is devoid of any talismanic significance, " and instructing that legislative development of specialized "[l]egal definitions . . . need not mirror those advanced by the medical profession").

         Four expert witnesses offered opinions as to whether respondent suffers from a serious mental disorder that is related to his sexual offending. The government's first expert, Dr. Gutierrez, a forensic psychologist with the Bureau of Prisons, diagnosed respondent with stimulant use disorder (cocaine), in a controlled environment, and other specified personality disorder (antisocial features), later amended to antisocial personality disorder. The government's second expert, Dr. Lovestrand, diagnosed respondent with other specified personality disorder (antisocial) and cocaine use disorder, severe, in a controlled environment. Dr. North, who was appointed by the court as an expert in this case, diagnosed stimulant use disorder (cocaine), in a controlled environment, and other specified personality disorder with antisocial features. Finally, respondent's expert, Dr. Plaud, diagnosed respondent with stimulant use disorder, cocaine, in a controlled environment. Respondent was not diagnosed with paraphilia or any other sexual disorder. Only Dr. North and Dr. Plaud actually examined respondent.

         The Court has the authority to "decide the proper weight to give the expert opinions." United States v. Wood, 741 F.3d 417, 425 (4th Cir. 2013). This Court declines to find the government's second expert, Dr. Lovestrand, credible or to give his testimony weight. Dr. Lovestrand is a forensic psychologist based in California. He did not examine respondent. He had never before been involved in an Adam Walsh Act proceeding, either as a witness or as an evaluating psychologist. [DE 57 at 111]. He has never done any academic work on sex offender psychology. [DE 57 at 132]. He had never previously testified in federal court. [DE 57 at 133]. In the two previous times he testified on the subject of sexual violence in state court, he testified on behalf of the government. Id. His report in this case contained errors. He claimed that respondent had been convicted five times for sexual violence against women, which is not true. [DE 57 at 136]. He claimed that respondent has not worked in prison since 2014, which is also not true. [DE 57 at 137]. And he claimed respondent had not participated in a GED class at the time of his report, which is not true. [DE 57 at 139-40]. Dr. Lovestrand's lack of familiarity with particular area of the law, his position as an expert retained by the government, and his limited knowledge of the specifics of this case, including his substantive errors, indicate that his testimony is of limited utility here. The Court also gives great weight to Dr. North and Dr. Plaud's testimony, as they both actually examined respondent. Dr. North's testimony especially merits attention, as he was appointed by the court in this case.

         Substance ...


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