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Decided: February 4, 2014

The Fourth Circuit, finding that the Government failed to establish by clear and convincing evidence that Bryan Neil Antone (“Antone”) is a sexually dangerous person subject to civil commitment, reversed and remanded the district court’s judgment with instructions to dismiss.

Antone, now forty-one years old, was born and raised on an Indian Reservation in Arizona. Antone was often neglected and both verbally and physically abused as a child. By age seven, his aunt, on several occasions, sexually abused him. By age fifteen, he had engaged in sexual intercourse with at least two adult women. Not surprisingly, Antone had serious behavioral issues as a child, which led to school expulsions and stints in juvenile detention. He dropped out of high school in the ninth grade and was unable to maintain steady employment thereafter. When he was nineteen years old, in 1991, Antone was arrested. The arrest related to two sexual acts with his sixteen-year-old girlfriend. The first sexual act was consensual. The second, however, was forcible rape. Antone pled guilty to the rape in tribal court and served six months in jail.

Antone went on to engage in several other acts of sexual misconduct between 1997 and 1999. As a result, Antone entered into a consolidated plea agreement and judgment was entered on March 16, 2009. The consolidated tribal judgment related to four victims and spanned incidents from 1992 through 1997. The incidents included sexual assault, attempted rape, two instances of forcible rape, and improper touching. He was sentenced to 3,600 days in jail by the tribal court. Notably, Antone has a serious history of substance abuse and the incidents described above all took place when Antone was either intoxicated from alcohol and/or high on cocaine.

At the initiation of Antone and his attorney, Antone was sentenced in the United States District Court for the District of Arizona for a charge related to one of the sexual assaults that was also a subject of his consolidated tribal judgment. The reasoning was to enable Antone to be transferred to federal custody and thereby have access to sex offense treatment designed specifically for Native Americans. Antone was incarcerated in the federal prison from November 1999 through February 23, 2007, when the Government initiated a civil commitment proceeding four days before his expected release. Since then, Antone has resided in FCI-Butner, a medium security prison in North Carolina, awaiting his civil commitment hearing and its resolution. As a result, he has been in continuous federal custody for the past fourteen years, or since he was twenty-seven years old.

During his entire period of custody, Antone had not been shown to consume alcohol or drugs even though the Bureau of Prisons regularly administers Breathalyzer tests on inmates in recognition of the fact that it is possible to make and obtain contraband alcohol within the prison. Antone, moreover, attended Alcoholics Anonymous, Narcotics Anonymous, as well as, other drug education and substance abuse programs on his own initiative. He has had minimal behavioral problems while in prison. He completed his GED in 2001 and maintained employment as an orderly in his housing unit, where his work performance was characterized as “superior.” In addition, Antone regularly seeks out advice and counseling from his prison’s counselors and treatment specialists. He has taken classes in art, beading, meditation, and guitar. He now teaches other inmates guitar. As for sexual conduct, Antone’s record indicates that he has not engaged in sexual misconduct during his incarceration. In sum, Antone has been a model inmate.

Four days before Antone’s expected release date, on February 23, 2007, the Government filed a civil commitment order naming Antone as a sexually dangerous person. The district court referred the matter to a magistrate judge for an evidentiary hearing and a report and recommendation. During a three day hearing in October 2011, the Government presented the testimony of Antone and two expert witnesses; Antone presented the testimony of a specialist and a counselor at the prison at which he resided, a United States Probation Officer from Arizona, and an expert witness. On April 30, 2012, the magistrate judge issued his M&R, in which he recommended that Antone not be found a sexually dangerous person. Although the district court accepted the magistrate judge’s credibility determinations and findings of historical fact, it rejected the M&R’s ultimate recommendation of a finding of not sexually dangerous. Rather, the district court found that the combination of Antone’s mental illnesses would cause him to have serious difficulty in refraining from sexually violent conduct if released. Antone was, therefore, committed to the custody of the United States Attorney General as a sexually dangerous person. This appeal followed.

On appeal, the Fourth Circuit was left to address only the third prong of the requirements that must be proven before an individual can be civilly committed under Section 4248. The third prong requires the Government to prove, by clear and convincing evidence, that the individual would have serious difficulty in refraining from sexually violent conduct or child molestation if released. The Court first discussed the clear and convincing standard, which requires the court to identify credible supporting evidence that renders its factual determinations “highly probably.” Next, after assessing the record, the Court found that the aggregate of historical, direct, and circumstantial evidence contained therein, at most, rose to a level of preponderance in favor of commitment. But, it did not satisfy the statutory burden of clear and convincing evidence.

In so finding, the Court observed that the core of Antone’s case was his decade-long process of rehabilitation, which the Government’s expert completely discounted and the district court dismissed with one sentence. Notably, the Government relied on one of its expert witness’s opinions that was based entirely on Antone’s conduct prior to incarceration and did not take into account his rehabilitation. Thus, the Fourth Circuit concluded that the appellate record did not support the district court’s determination that Antone would have serious difficulty refraining from sexually violent conduct if released. Accordingly, the district court’s judgment was reversed and remanded with instructions to dismiss the petition.

Full Opinion

– W. Ryan Nichols