United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE
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
("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.
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.
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.
Whether the respondent has engaged or attempted to engage in
sexually violent conduct or child molestation.
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
Whether the respondent currently suffers from a serious
mental illness, abnormality, or disorder.
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.
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
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.
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.