United States v. Shea

989 F.3d 271

UNITED STATES of America, Petitioner - Appellee,

v.Kevin Michael SHEA, Respondent - Appellant.

No. 19-7692

United States Court of Appeals, Fourth Circuit.

Argued: December 11, 2020

Decided: March 2, 2021

ARGUED: Jaclyn Lee Tarlton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Genna Danelle Petre, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Keenan and Judge Wynn joined.

NIEMEYER, Circuit Judge:

We decide here whether Kevin Shea — who was civilly committed in 2015 to the custody of the Attorney General under the Adam Walsh Child Protection and Safety Act of 2006 as a sexually dangerous person — was properly released under government-proposed conditions that prescribe a "regimen of medical, psychiatric, or psychological care or treatment," 18 U.S.C. § 4248(e)(2), or should have been released without such conditions, as Shea maintains. Neither party contends that Shea should not have been released at all.

The district court ordered that Shea be discharged from civil commitment, but it did so subject to the government-proposed conditions, which provide Shea with a prescribed regimen of care and treatment. It found that Shea still suffered from a serious mental illness or mental disorder and that he would have difficulty in refraining from sexual misconduct if he were released without conditions. In reaching that conclusion, the court relied on Shea's extensive history of sexual misconduct and the testimony of the government's expert witnesses.

Because we conclude (1) that the district court did not clearly err in finding that Shea would be sexually dangerous to others without the conditions and (2) that it did not procedurally err in imposing the conditions — as Shea now contends for the first time on appeal — we affirm.

I

Kevin Shea has an extensive criminal history of sexual misconduct that reaches back to 1978, and he continued to offend almost continuously up until his conviction for child-pornography offenses in 2000, for which he was sentenced to 150 months’ imprisonment. But most of his life of sexual misconduct involved hands-on contact with children, concededly numbering over 100, and a number of those he molested. And during this 40-plus-years history, Shea never lived in the community for any significant period of time without reoffending.

In July 2011, while Shea was still in federal custody serving the sentence for his 2000 child-pornography conviction, the government filed with the clerk of the district court a certificate under the Adam Walsh Act asserting that Shea was a sexually dangerous person and seeking to civilly commit him to the custody of the Attorney General upon completion of his prison term. Following a hearing, the district court concluded that the government had failed to establish the requirements for such commitment, and Shea finished his prison term in due course in 2012. Thereafter, Shea began a five-year period of supervised release. About a year after his release from prison, however, Shea was found to have violated the terms of supervised release because he picked up a 16-year old boy and allegedly solicited him for sex. The court revoked Shea's supervised release and sentenced him to 27 months’ imprisonment followed by 33 months’ supervised release.

While Shea was still in prison serving the 27-month sentence, the government again filed a certificate with the clerk to civilly commit him as a sexually dangerous person. This time, Shea consented to commitment because he wanted to get better. Accordingly, by a consent order dated March 30, 2015, the district court committed him to the custody of the Attorney General, who sent him to FCI Butner, a federal prison and treatment facility in North Carolina. While at Butner, Shea entered into the Commitment and Treatment Program, which consists of four phases running from orientation to eventual community-reintegration preparation and planning. Shea took his treatment seriously and was promoted to the fourth and final phase of the program in December 2018.

On February 1, 2019, Shea, then 64 years old, filed a motion pursuant to 18 U.S.C. § 4247(h), seeking his discharge from custody on the ground that, based on the reports of two experts, he no longer met the criteria for civil commitment. After the district court ordered a hearing, the government filed a certificate of the Warden of Butner pursuant to § 4248(e), stating that "Mr. Shea's condition is now such that ‘he will not be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment.’ " (Quoting 18 U.S.C. § 4248(e)(2) (emphasis added)). In that filing, the Warden certified that the prescribed regimen proposed to be imposed as 38 conditions of release was "appropriate." She requested that Shea be released under those conditions. The regimen was "designed by Mr. Shea's treatment team as well as the United States Probation Office." It would require Shea, among other things, to participate in group and individual treatment for sex offenders, to consent to GPS monitoring for a year, to keep a driving log, and to submit detailed financial records to his probation officer on a monthly basis. It would also prohibit Shea from, among other things, having direct contact with minors, owning a firearm, drinking alcohol, and operating any device with internet access unless approved by his probation officer.

At the hearing, which took place on September 13, 2019, Shea did not challenge the substance of the Warden's prescribed regimen, and the parties and the court did not address the regimen's substance; they focused only on whether Shea should be released with the government's proposed conditions or with no conditions at all . Indeed, in the proposed findings of fact that Shea submitted to the court, Shea stated that if his release were ordered to be with conditions, the conditions should be those proposed by the government.

Shea testified at the hearing to his experience in treatment, explaining that his treatment had forced him to confront the pain he had caused his victims and had taught him various coping mechanisms for controlling his urges. Indeed, Shea testified that his time in treatment had taught him that he needed to overhaul his entire life — "It's things like relationships, health and wellbeing, career and employment, learning and personal growth, citizenship and community, spiritually, recreation and leisure; all things that are pieces of people's lives ... need to be pieces of my life." Shea acknowledged at the hearing that he had prepared a "Good Life Plan" dated June 3, 2019, some three months before the hearing, and stated that it was "true." In the Plan he stated, "I am sexually attracted to the youth and risk-taking of teenage boys and young male adults" and that he needed to avoid, after his release, unsupervised contact with "minor boys." But at the hearing Shea revised that statement in his Plan, testifying that he remained sexually attracted to "young adult males," not "teenage boys." Shea also acknowledged that he had had a few minor infractions for violating rules while in custody, but he stated that he always learned from his mistakes. As to the substance of the regimen contained in the government's proposed conditions, Shea testified that he largely agreed with them and planned to live by them even if they were not required by the court.

Shea also presented the testimony of two experts, Dr. Hy Malinek and Dr. Joseph Plaud, to support his release without conditions. Dr. Malinek testified that while Shea previously had met the definition of pedophilic disorder, he was no longer sexually dangerous because he did not presently have a serious "mental disorder that would predispose him to commit sexual acts." He explained that while pedophilic disorder is a lifelong and chronic condition, the "strength of sexual urges changes." Dr. Plaud similarly testified that Shea did not at that time suffer from a serious mental impairment and that, "with or without conditions," he would not have serious difficulty refraining from reoffense.

The government also presented two experts, Dr. Trisha Smithson, a psychologist and treatment provider for Shea while at Butner, and Dr. Rebecca Barnette, a forensic psychologist at Butner who evaluated Shea on an annual basis. Dr. Smithson described Shea's treatment plan, goals, and need for continued treatment, explaining that one purpose of the conditions was to provide Shea with a "structured environment" so that he does not "get off track" once released. Similarly, Dr. Barnette testified that Shea needed a "structured" environment to avoid relapse when released into the community. She also reaffirmed her diagnoses of Shea that he continued to suffer from pedophilic disorder and "other specified paraphilic disorder." She concluded with her opinion that "at this time" Shea would not be "appropriate for unconditional release" but that he would be "appropriate for conditional release with the conditions that have been presented to the Court in this case."

The district court found that Shea still suffers from a serious mental illness or mental disorder and would remain a sexually dangerous person within the meaning of the Adam Walsh Act if released without conditions and, therefore, that he could be released only with conditions, as stated in the opinions of the government's experts. The court explained that it "found the testimony of the [government's] medical professionals very compelling." While the court "commend[ed]" Shea for the...