          United States Court of Appeals
                     For the First Circuit


No. 12-1394

                    UNITED STATES OF AMERICA,

                      Petitioner, Appellee,

                               v.

                     JOHN CHARLES VOLUNGUS,

                     Respondent, Appellant.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. George A. O'Toole, U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
              Torruella and Stahl, Circuit Judges.



     Ian Gold, Assistant Federal Public Defender, and Tamara
Fisher, Federal Defender Office, on brief for appellant.
     Jennifer A. Serafyn, Assistant United States Attorney, and
Carmen M. Ortiz, United States Attorney, on brief for appellee.




                       September 17, 2013
           TORRUELLA,        Circuit    Judge.     Appellant     John   Charles

Volungus challenges an order from the District of Massachusetts

directing his civil confinement as a "sexually dangerous person"

under the Adam Walsh Child Protection and Safety Act, 18 U.S.C.

§ 4248 ("the Adam Walsh Act" or "the Act").               Volungus maintains

that the government failed to prove by clear and convincing

evidence that he was in fact a "sexually dangerous person."

Finding no error, we affirm.

                   I. Facts and Procedural Background

           In detailing the factual background of this case, we look

to the district court's findings of fact in addition to the

testimony presented at trial.

           Volungus was born into a stable, two-parent home in 1967.

Although   he   had    two    younger    brothers,    Volungus    struggled   to

maintain friendships with his peers at school.            After he graduated

from college, Volungus joined the United States Army and was

stationed across the United States, Europe, and the Middle East.

It was during Volungus's time abroad that he began viewing what he

called "teen sex magazines."

           In 1998, while stationed at Fort Campbell, Kentucky,

Volungus   began      to   download     child    pornography.      He   reported

collecting pornographic images of children ranging from eighteen

months to eighteen years in age, viewing child pornography for

seven hours per night on weekdays and for thirteen hours per night,


                                        -2-
until 6:00 a.m., on weekends.              Volungus also programmed his

computer to download and save child pornography when he was not

actively using it.      Ultimately, he amassed thousands of images of

child   pornography.      That   same   year,    Volungus    began     visiting

internet chat rooms where people discussed sex with children.                In

these chat rooms, Volungus started having sexualized conversations

with people he believed to be minors.         He would masturbate as they

"talked   dirty"   to     each    other.        Volungus     also     took   out

advertisements on chat room bulletins, seeking to physically meet

and have sex with young females.

           These behaviors led Volungus to a person with the screen

name "IndyGirl." IndyGirl claimed to be a nineteen-year-old female

named "Deanna," but was actually an undercover law enforcement

officer. Volungus began his communication with her by stating that

he wished to meet her for some "real life fun."                When IndyGirl

later told him that she had a fourteen-year-old sister named

"Sarah," Volungus stated that he would like to meet her too, and he

discussed where they could all meet to have sex.

           In   these   chats    with   "Deanna"   and     "Sarah,"    Volungus

described himself as a "real-life pedophile."            He boasted that he

had "enjoyed many young girls . . . as young as ten," had filmed a

sex tape with a fourteen-year-old, had anal sex with girls fourteen

years old and younger, and first had sex with an underage female

when he was seventeen and slept with the twelve-year-old girl he


                                    -3-
was babysitting.    Eventually, after weeks of chatting, the law

enforcement agents arranged a telephone call between Volungus and

officers pretending to be Sarah and Deanna.      During this call,

Volungus specifically talked to "Sarah" about engaging in sexual

acts with her. Volungus, "Deanna," and "Sarah" then agreed to meet

in person on August 22, 1998. When Volungus arrived at the meeting

place with sex toys and lingerie, he approached "Deanna" and

"Sarah" only to be surprised and subsequently arrested by military

police.

           After his arrest, Volungus told law enforcement officials

that he had discussed meeting another fourteen-year-old female with

the screen name "facialgirl," and that he had spoken with a man in

Canada about having sex with his eight- or nine-year-old daughter.

However, Volungus claimed that he had never actually had sex with

a minor.    He pled guilty to an eight-count federal indictment

including charges of child pornography and using an interstate

facility to attempt to persuade a person under eighteen years old

to engage in a sexual act.       On June 14, 1999, Volungus was

sentenced to fifty-three months incarceration to be followed by

three years of supervised release.    He was incarcerated from July

1999 to May 2003 at the Federal Correctional Institution at Fort

Dix, New Jersey.    While in prison, Volungus kept in his prison

locker a list of books about sexual acts with children and hand-

drawn pornographic images depicting him having sex with children.


                                -4-
After these items turned up in a search of his locker, Volungus

admitted to having "a problem and . . . [thinking] about sex with

children all the time."

             On   April   12,   2004,   when   probation   officers   visited

Volungus to install monitoring software on his computer as a

condition of his supervised release, they discovered that, once

again, Volungus had started downloading child pornography to his

computer.    He had downloaded images depicting prepubescent minors

engaged in oral sex, intercourse, and lascivious exhibition. A few

days later, Volungus acknowledged to his probation officer that "he

had difficulty controlling his impulses" and had visited chat rooms

called "Youth and Beauty."         A later forensic examination of his

computer also revealed that a file-wiping program had been run on

Volungus's computer three days before the probation officers'

arrival.

             Volungus's probation officer increased his supervision

and treatment activities, adding one-on-one psychological treatment

to his sex offender treatment program, and Volungus seemed to be

improving.    The appearance of improvement ended in May 2005, when

Volungus admitted that he had unsupervised contact with his five-

year-old niece in violation of his supervised release conditions.1

Volungus was subsequently arrested for violating the terms of his


1
    An investigation of this matter by the New York Office of
Children and Family Services concluded that there had been no abuse
or maltreatment of the child.

                                        -5-
release and stipulated to the three charged violations: engaging in

criminal conduct by possessing child pornography, viewing and

possessing child pornography, and having unauthorized contact with

a minor.    Volungus testified at his violation hearing that his

treatment program "hasn't helped enough.             I know that. . . .         I

have a problem controlling it . . . I really don't have enough

control over it . . . ."       His supervised release was revoked and he

was sentenced to twenty-three months imprisonment followed by

thirteen months of supervised release.

            After    Volungus's       sentencing,    authorities      discovered

letters Volungus had written to a man in Texas named Gary Gallardo,

who had been arrested for possession of child pornography.                    The

letters    were    written    between     March   and    April     2005,    during

Volungus's supervised release and while he was attending sex

offender   treatment       classes.       The   letters       contained    graphic

descriptions of various scenes of child pornography, as well as

advice for procuring it.           Additionally, the letters discussed

Volungus and Gallardo's plans to travel to other countries for the

purposes    of    having     sex   with   children      and    producing     child

pornography.      Some pertinent passages from the letters follow:

•           Get YAHOO Messenger. Many good chat rooms where goodies
            are posted and traded.    Watched some great vidz last
            night, including one of guys daughter – about 7, cute as
            hell and does one hell of a sexy striptease and pussy
            show. I gotta figure out how to save a webcam broadcast!

•           Oh . . . Newsgroup for you to check out . . . You'll need
            a   yenc   decoder   to   see   the   goodies   .   .   .

                                        -6-
    alt.binaries.pictures.underage.admirers. Have been a
    shitload of the FEBA series lately . . . . Girl about 7,
    Bondage, Pissin, Shittin, Suck, Fuck . . . Lots of Anal
    . . . Hot as Hell.

•   I have a pretty nice collection building, almost 1 Gb
    worth. Will share with you when your 'puter is up and
    running.

•   So, when we are free, where do we take a vacation?
    Cambodia, Thailand, Philippines, Costa Rica, Brazil,
    Czech Republic, or wherever? If you still have contacts,
    we could make some extra cash with some homemade product.

•   BTW . . . If a disk just happens to arrive for you, what
    do you like . . [.] ages, acts, race, the more details
    you give me, the better things could be.

•   Met one fella last week . . . watched his webcam . . . he
    was finger-fucking his daughter for the world to see. She
    looked about 6 years old. She was loving it. He had a
    microphone on.    She was asking him to "Do it faster
    Daddy!" and "Yeah . . . right there!"        Was fucking
    amazing. If I hadn't been in the middle of the library
    I would have whipped it out and jacked off right there.

•   While in the library yesterday a little cutie came over
    and was apparently watching what I was doing . . . she
    gave me this coy grin . . . I guess she liked what she
    saw (I had been watching a k.p. [kiddie porn] fuck vid
    before that). I see her again, I'm going to see what
    happens, she seems like an approachable girl . . . or
    maybe I'll just watch her and thank the Lord she didn't
    say anything to anybody.

•   What do you think about crossing the border to "Twins"
    and picking up some young girls? How available are they
    there . . . I've heard they are pretty common. You know
    what I like . . . Brunette about 10 . . . Just budding is
    perfect. If you ever see the Alicia series or videos,
    she's fucking perfect . . . well almost . . . I like
    longer hair.

•   Found a nice site, you have to search through it, but I
    have added over 100 great pix to my collection. . . .
    Added a half dozen new videos, and am adding more.
    Includes the whole vid of one girl I'm in lust with
    (Alicia). Fucking Awesome. I'm filing my motion for

                         -7-
           relief soon, and once I do, and once you are free to
           travel, we have to take a trip and fuck some girls . . .
           and video it! Get a phone so I can call you!

•          I took a trip to our local "red light" district, picked
           up a great girl . . . sucked the cum outta my nuts and
           ate it up. She seemed to be a bit "high," so I figure
           I'm gonna work on her some more. Betcha she's got kids,
           and if she needs a fix, I've got young pussy.

           In   late    2006,       when    Volungus's       second    term   of

incarceration    was    almost   complete,        he   had    a   psychological

evaluation with Bureau of Prisons Psychologist Dr. Ferraro to

determine whether he should be civilly committed as a sexually

dangerous person under the Adam Walsh Act.              Dr. Ferraro assessed

Volungus   as   being   at   high    risk    to   reoffend,       prompting   the

government to initiate proceedings for civil commitment.

           In August 2007, while the commitment proceedings were

pending, the government found a sizeable file of documents among

Volungus's belongings, which contained hundreds of articles about

sex with minors, hand-drawn pictures of an adult male having sex

with children, several pages with handwritten lists of graphic

videos or pictures of young children performing explicit sexual

acts,2 notes on physical disguises and how to avoid detection when

viewing child pornography, notes making reference to "lovers'

rights" and NAMBLA (North American Man-Boy Love Association), and



2
   This list included items such as the following entries: "boy
about 5 fucks baby sis in backyard," "Video of 4 girls getting
fucked–youngest is about 6 or 7 oldest about 12," and "girl about
8 getting cherry busted hot."

                                      -8-
slogans    like    "sex    before     eight    or   else   it's    too   late!"      A

substantial       number   of   the    materials      in   the    file   bore   dates

suggesting that Volungus acquired them while his civil commitment

proceeding was pending.

            Before his civil commitment hearing, Volungus was also

evaluated by several experts to determine whether he should be

committed as a "sexually dangerous person."                These experts reached

varying conclusions on Volungus's risk of sexual recidivism using

a variety of actuarial instruments and tests.3                      Volungus's own

account of his sexual history has also varied over time.                          When

speaking to a defense expert, he claimed to have had around 50

sexual partners, and when speaking to a government expert, Volungus

put the number closer to 200.           Volungus has also denied having sex

with anyone younger than eighteen when speaking with examining

psychologists and criminal investigators, but he has bragged about

his   sexual    exploits     with     young    teenagers    and    adolescents      in

internet chat rooms.

            On March 8, 2012, after a seven-day evidentiary hearing,

the district court determined that the government had proved by

clear     and   convincing      evidence       that   Volungus      suffered      from


3
   Specifically, Dr. Ferraro of the Bureau of Prisons concluded
Volungus had a "high" risk of recidivism, Volungus's experts
testified that he had a "moderate-high" or "low-moderate" risk,
while Dr. Phenix -- the government's expert -- testified first that
he had a "moderate-high" risk and later a "high" risk, although
using different instruments, he placed Volungus at "low," "low-
moderate," or "moderate" risk of recidivism.

                                         -9-
pedophilia, a mental disorder, which impaired his ability to

refrain from deviant sexual behavior and would cause Volungus to

have serious difficulty in refraining from child molestation.     In

so holding, the court phrased the question before it as whether

Volungus's pedophilia impaired his volitional control such that he

would have serious difficulty refraining from child molestation if

released.   The court recognized that the government had not proved

any actual or attempted child molestation offenses aside from

Volungus's attempt with "Sarah." Still, it concluded that Volungus

was so driven by his "obsessional impulses" with child pornography

and the idea of performing sexual acts with minors, that he would

be unable to control his pedophilia and limit it to private

masturbation sessions at his home.

                            II. Discussion

A. Standard of Review

            We review the district court's findings of fact for clear

error and its conclusions of law de novo.          United States v.

Shields, 649 F.3d 78, 89 (1st Cir. 2011).       Where, as here, the

district court has applied a general standard of law to specific

facts, we give some deference to the fact-finder.        Id. at 89;

United States v. Carta, 592 F.3d 34, 39 (1st Cir. 2010). Moreover,

under our clear error review, "[i]f the district court's account of

the evidence is plausible in light of the record viewed in its

entirety, [we] may not reverse it," even if we would have weighed


                                 -10-
the evidence differently had we been the trier of fact.                   Anderson

v. Bessemer City, 470 U.S. 564, 573-74 (1985).

B. The Adam Walsh Act

              We begin with a brief examination of the purpose of the

Adam Walsh Act. The Act was enacted in 2006 "[t]o protect children

from sexual exploitation and violent crime."               Pub. L. No. 109-248,

120 Stat. 587 (2006).            To further this goal, the Act amends and

supplements existing civil commitment provisions to allow the

federal      government     to    seek    court-ordered    civil    commitment     of

certain sexually dangerous persons in custody.                     See id. § 302

(codified at 18 U.S.C. §§ 4241, 4247, 4248).

              The Act vests the Attorney General, any person authorized

by the Attorney General, or the Director of the Bureau of Prisons

with the power to certify that an individual in custody is a

"sexually dangerous person." Id. § 4248(a). This certification is

then transferred to the district court which must order a hearing

to determine whether the person is a "sexually dangerous person."

Id.      At       this   hearing,   the    government     bears    the   burden    of

demonstrating by clear and convincing evidence that the inmate is

in    fact    a    "sexually     dangerous    person,"    by   showing    that    the

individual: 1) has "engaged or attempted to engage in sexually

violent conduct or child molestation," 2) "suffers from a serious

mental illness, abnormality, or disorder," and 3) as a result of

this disorder he "would have serious difficulty in refraining from


                                          -11-
sexually violent conduct or child molestation if released."                     Id.

§§ 4247(a)(5)-(6), 4248(d).         The Supreme Court has noted that the

clear   and     convincing   evidence    standard      is    an    "intermediate

standard" somewhere "between a preponderance of the evidence and

proof beyond a reasonable doubt," Addington v. Texas, 441 U.S. 418,

425 (1979), requiring proof that the government's assertions are

"highly probable," Colorado v. New Mexico, 467 U.S. 310, 316-17

(1984).

C. Sexual Dangerousness

              On appeal, Volungus does not contest the district court's

finding that the government presented clear and convincing evidence

to establish that he has attempted to engage in child molestation

and he suffers from a serious mental disorder, pedophilia. Instead

his arguments focus on the third prong of the sexually dangerous

test,   namely     the   court's    conclusion   that       as    result   of    his

pedophilia, Volungus would "have serious difficulty in refraining

from . . . child molestation if released." Volungus maintains that

his   commitment    cannot   rest    only   on   his   mental      disorder     and

fantasies about having sex with children.              He claims that he has

demonstrated an ability to refrain from molesting children, that he

is able to control his potential dangerousness, and that unlike

other individuals confined under the Adam Walsh Act, he has not




                                     -12-
committed numerous "hands-on" offenses with children.4            As such,

Volungus asserts that the district court erred by focusing on his

predisposition to view child pornography and fantasize about having

sex with children when it should have focused on the likelihood

that he would commit future physical acts of molestation.

            We   find   Volungus's    arguments   that   the   court   erred

unconvincing.     In our view, the district court possessed ample

evidence to support a finding that Volungus's pedophilia would

cause him serious difficulty in refraining from sexual violence or

child molestation in the future.

            Volungus has readily admitted, on multiple occasions,

that he is unable to control his attraction to prepubescent

children.   The district court reasonably concluded that this lack



4
  Volungus also argues that he has not actually had any "hands-on"
offenses as a result of his pedophilia, as the incident with
"Sarah" involved a fourteen-year-old, non-prepubescent girl.
Volungus claims that pedophilia only encompasses sexual desires and
behaviors with prepubescent children (generally aged 13 and
younger), and points out that all the experts agreed that his
seeking out "Sarah" was not a manifestation of his "pedophilia."
To the extent that Volungus argues that this makes him statutorily
ineligible for commitment, we do not find his arguments persuasive.
The second and third requirements for commitment under the Adam
Walsh Act are directly linked (the statute requires a finding that
an individual has a serious mental disorder, and as a result of
this disorder, would have difficulty refraining from child
molestation). However, the plain language of the statute indicates
that the first requirement is completely independent, and imposes
no precondition that the predicate offense have occurred as a
result of the respondent's disorder. 18 U.S.C. § 4248(a)(5)-(6).
As such, regardless of whether Volungus's offense with "Sarah"
resulted from his pedophilia, we hold it was sufficient to satisfy
the statute's first requirement.

                                     -13-
of volitional control was clearly evidenced by the fact that

Volungus -- while on supervised release, the very time he was most

likely   to    be   caught   --   downloaded    large   amounts   of   child

pornography, had prohibited contact with his niece, and wrote

graphic letters to a fellow pedophile about his plans to engage in

sexual acts with children.        The court possessed proof that either

Volungus's sex offender treatment was not working or that he was

not   participating     in   it    sincerely;    Volungus   was   actively

downloading child pornography and communicating with a fellow

pedophile about having sex with children and producing child

pornography while he was attending treatment sessions.            Moreover,

Volungus, while on supervised release, continued his attempts to

contact minor females by visiting chat rooms similar to the one in

which he met "IndyGirl."      The district court reasonably found that

such attempts to contact minors took Volungus a step beyond passive

consumption of child pornography and into the realm of affirmative

encounters with minors.5

              Additionally, the district court found that Volungus

suffered from a "long and persistent trajectory of obsession" with

child pornography and sex with children.            Volungus obsessively

viewed and downloaded child pornography, masturbated to it, then



5
  The district court was careful to limit its finding, noting that
Volungus's attempts to contact minors like "facialgirl," while an
"affirmative encounter," did not qualify as a "hands-on" offense of
actual or attempted child molestation.

                                    -14-
used the internet to seek real child victims.   Indeed, Volungus's

attempt to meet "Sarah" for sex, his chats with "facialgirl," whom

he   believed to be a fourteen-year-old female, and his reported

conversations with a man in Canada about meeting the man's eight-

year-old daughter for sex can all be viewed as manifestations of

this "trajectory" which culminated in Volungus's conviction for

attempted molestation.6   The district court also noted the speed

with which Volungus moved from what he claimed was his first

introduction to child pornography in the Spring of 1998 to his

attempted molestation of "Sarah" just a few months later in August

of 1998. The evidence suggested that Volungus could not break this

cycle, as shortly after he began supervised release, he once again

began downloading child pornography and visiting chat rooms like

"Youth and Beauty."   Accordingly, we find that the court had a

reasonable basis for concluding that Volungus's continuing behavior

of obsessive downloading and viewing of child pornography and

seeking online contact with children would cause him serious

difficulty in refraining from child molestation in the future.

          To the extent that the court valued the opinion of the

government's witness, Dr. Phenix, who testified that Volungus's


6
   In our analysis, we do not treat Volungus's online behavior as
actual or attempted child molestation under the statute. However,
we do consider this conduct, alongside Volungus's other actions, as
relevant to the district court's proper determination of Volungus's
sexual dangerousness.      Here, these interactions demonstrate
Volungus's efforts to seek out real children for sex after
downloading and viewing large amounts of child pornography.

                               -15-
pedophilia presented such a volitional impairment that he would

have serious difficulty refraining from molestation, over that of

the   other    experts    who   testified   that   he   could    refrain    from

molestation, we find no error.          See Shields, 649 F.3d 78, 90 (1st

Cir. 2011) (holding where two testifying experts "interpreted

[respondent's] child pornography offense as a sign of ongoing

deviance rather than improved impulse control . . . it was entirely

reasonable for the court to credit their testimony over [his]

expert's opinion"). It is not our place to re-weigh the credibility

of witnesses, United States v. Hahn, 17 F.3d 502, 508 (1st Cir.

1994), or to determine the weight accorded to expert witness,

Seahorse Marine Supplies, Inc. v. Puerto Rico Sun Oil Co., 295 F.3d

68, 81 (1st Cir. 2002).

              Volungus's challenge to the district court's findings

emphasizes the fact that his criminal history includes a single

"hands-on" offense, attempted child molestation, dated more that

ten years ago.7      He also directs us to expert testimony that he

might   have    serious    difficulty    refraining     from    viewing    child

pornography but would not have such difficulty in refraining from


7
   Additionally, Volungus makes much of a list of cases where
respondents were civilly committed under the Act after they had
committed numerous contact offenses, which he contrasts with his
single attempted molestation conviction.     However, this is not
persuasive evidence that Volungus himself should not be committed.
Indeed, these cases only demonstrate that individuals with
lengthier records than Volungus have been committed under the Act,
not that those in similar circumstances to Volungus are ineligible
for commitment.

                                     -16-
child molestation.      We cannot, however, state that the court

clearly erred by placing more weight on the evidence of Volungus's

sexual obsession and the limitations on his volitional control.

United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir. 1991)

(it is ultimately the responsibility of the factfinder to "decide

among   reasonable   interpretations      of    the   evidence").    Given

Volungus's history, failed treatment, correspondence with Gallardo,

and inability to abstain from sexually deviant behaviors at the

very moments when he was most likely to get caught, we believe the

determination that he lacked volitional control is well supported

by a reasonable interpretation of the evidence.

            Ultimately, while actual or attempted child molestation

offenses may be telling evidence of just how sexually dangerous an

individual is, this is not the only type of evidence that speaks to

this trait.     We are of the opinion that sexual dangerousness

requires an individualized determination that cannot rest solely on

the number of offenses committed or the timing of those offenses.

A court could reasonably conclude that an individual who has

committed    multiple   offenses    but        successfully   completed   a

rehabilitation program may be less dangerous than someone who has

committed one offense but exhibits a perpetual desire or propensity

to commit more offenses, even while in treatment.

            In this case, the district court reasonably concluded

that Volungus either made little effort to sincerely engage in a


                                   -17-
sex offender treatment program or that the treatment program was

ineffective.    Volungus went as far as to discuss planning trips to

have sex with children with another pedophile while undergoing this

treatment.    He continued to collect or draw child pornography even

while   on   supervised    release     and   in    custody.       He   also   had

unsupervised contact with a five-year-old in violation of the terms

of his supervised release.           The evidence supports the district

court's conclusion that Volungus may have been convicted of a

single attempted molestation offense, but his obsession with child

pornography,    his   desire    to    have   sex   with    children,    and   his

willingness to seek out children online have persisted without any

interruption    or    signs    of    improvement.         In   light   of   these

circumstances, we cannot find that the district court clearly erred

in determining that Volungus was a sexually dangerous person

subject to commitment.

                               III. Conclusion

             Finding no error in the district court's factfinding or

legal conclusions, we affirm Volungus's commitment order in its

entirety.

             So ordered.




                                      -18-
