             United States Court of Appeals
                        For the First Circuit

No. 09-1596

                       UNITED STATES OF AMERICA,

                        Petitioner, Appellant,

                                  v.

                        JOHN CHARLES VOLUNGUS,

                         Respondent, Appellee.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF MASSACHUSETTS

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


                                Before

                   Boudin and Selya, Circuit Judges,
                    and Laplante,* District Judge.


     Samantha L. Chaifetz, Attorney, Appellate Staff, Civil
Division, United States Department of Justice, with whom Tony West,
Assistant Attorney General, Michael K. Loucks, Acting United States
Attorney, Beth S. Brinkmann, Deputy Assistant Attorney General, and
Mark B. Stern, Attorney, Appellate Staff, were on brief, for
appellant.
     Judith H. Mizner, Assistant Federal Public Defender, for
appellee.

                            January 8, 2010




     *
         Of the District of New Hampshire, sitting by designation.
            SELYA, Circuit Judge.           We are called upon to determine

the constitutionality of a provision of the Adam Walsh Child

Protection and Safety Act (Walsh Act), Pub. L. No. 109-248, 120

Stat. 587 (2006), a recently enacted federal law that provides in

pertinent part for the civil commitment of a sexually dangerous

person already in federal criminal custody in lieu of that person's

release upon service of his full sentence.               Id. § 320, 120 Stat. at

619-22, codified at 18 U.S.C. §§ 4241, 4247-4248 (which we shall

call, as a shorthand, section 4248).           The district court concluded

that Congress lacked constitutional authority to enact this civil

commitment provision and, therefore, dismissed the government's

petition    to    enforce    it   against    the   respondent,    John   Charles

Volungus.    United States v. Volungus, 599 F. Supp. 2d 68, 77-78, 80

(D. Mass. 2009).      The government appeals from that ruling.

            After careful consideration, we hold that the civil

commitment       provision    comes   within       the   legitimate   scope   of

congressional power conferred by the Necessary and Proper Clause of

the federal Constitution.          Consequently, we reverse the decision

below and remand for further proceedings.

I.   BACKGROUND

            The challenged provision of the Walsh Act authorizes the

government to seek court-ordered civil commitment of "sexually

dangerous" persons who are in the custody of the federal Bureau of

Prisons (BOP). 18 U.S.C. § 4248(a). A "sexually dangerous person"

within the meaning of the Walsh Act is one "who has engaged or

                                       -2-
attempted     to   engage     in    sexually    violent    conduct   or    child

molestation     and   who    is    sexually    dangerous   to   others."     Id.

§ 4247(a)(5).       A person is "sexually dangerous to others" if he

"suffers from a serious mental illness, abnormality, or disorder as

a result of which he would have serious difficulty in refraining

from sexually violent conduct or child molestation if released."

Id. § 4247(a)(6).

            Mechanically, the Walsh Act's civil commitment provision

operates in the following manner.             A responsible federal official

(the Attorney General, the director of the BOP, or the designee of

either) may initiate commitment proceedings by petitioning the

federal district court in the judicial district in which a targeted

person is confined.         Id. § 4248(a).      The petition must certify to

the court that the target, whom we shall call the respondent, "is

a sexually dangerous person."            Id.     The filing of the petition

stays     the      respondent's       release     from     federal    custody,

notwithstanding the expiration of his sentence, "pending completion

of procedures" described in the Walsh Act.               Id.

            Those procedures include an opportunity for the district

court to order a mental health examination and to hold a "hearing

to determine whether the [respondent named in the petition] is a

sexually dangerous person."          Id. § 4248(a)-(c); see id. § 4247(b)-

(c).    At the hearing, the respondent is entitled to counsel and to

the opportunity "to testify, to present evidence, to subpoena



                                       -3-
witnesses on his behalf, and to confront and cross-examine" the

government's witnesses.         Id. § 4247(d).

           In prosecuting such a petition, the government has the

burden of proving "by clear and convincing evidence that the

[respondent] is a sexually dangerous person."                  Id. § 4248(d).    If

the court finds that the government has carried this heavy burden,

it must commit the respondent to the custody of the Attorney

General.    Id.     The Attorney General is directed to defer to

available state custody; that is, to "release the [respondent] to

the appropriate official of the State in which [he] is domiciled or

was tried if such State will assume responsibility for his custody,

care, and treatment."       Id.       In addition, the Attorney General is

required "to make all reasonable efforts to cause such a State to

assume responsibility."         Id.    If such efforts prove unsuccessful,

the Attorney General must retain federal custody and place the

respondent in a suitable facility for treatment until either an

eligible   state    "will   assume       .    .    .    responsibility"     or   the

respondent's condition is ameliorated to the extent that "he can

safely be released, either conditionally or unconditionally."                    Id.

           The    Walsh   Act    provides     an       array   of   post-commitment

safeguards to ensure periodic reevaluation of a committed person's

overall mental condition, potential dangerousness, and suitability

for release.      These include a requirement for an annual report

setting forth a recommendation for or against continued commitment.

Id. § 4247(e)(1)(B).      If the director of the facility in which the

                                        -4-
person   is    confined    determines       that   he   is    no   longer    sexually

dangerous, the director must notify the court, which must either

order the person's release or schedule a hearing to determine

whether release is appropriate.                  Id. § 4248(e).         The person

himself,      through   counsel,     may    petition    the    court   for       such   a

hearing, but not within 180 days after a judicial determination

that commitment is appropriate.             Id. § 4247(h).

              We turn now from the general to the specific.                         The

respondent here, Volungus, was convicted of receipt of child

pornography      by     means   of    a     computer,    possession         of    child

pornography, and use of a facility of interstate commerce to

attempt to persuade a minor to engage in a sexual act.                           See 18

U.S.C. §§ 2252(a)(2), 2252A(a)(5)(A), 2422(b).                     In June of 1999,

the United States District Court for the Western District of

Kentucky sentenced him to serve a 53-month incarcerative term, to

be followed by a period of supervised release.                      The respondent

served his initial prison sentence and embarked on his term of

supervised release.        He violated the conditions of his supervised

release and, as a result, was haled into the United States District

Court for the Northern District of New York.                   That court revoked

the supervised release term and remanded him to federal prison for

an additional 23-month period of incarceration.

              Over time, the BOP housed the respondent in a number of

different correctional facilities.                 The last of these was the

Federal Medical Center Devens, in Ayer, Massachusetts (a prison

                                           -5-
hospital).       The   respondent   was    in    custody   there    when    the

government,   before    the   expiration    of    his   extended     term   of

immurement, commenced a civil commitment proceeding under section

4248 in the United States District Court for the District of

Massachusetts.    The respondent's release from prison, scheduled to

take place when the sentence imposed following the revocation of

supervised release expired on February 15, 2007, was stayed pending

the outcome of the commitment proceeding. See 18 U.S.C. § 4248(a).

          The respondent moved to dismiss the proceeding, making a

facial challenge to the constitutionality of section 4248.                  The

district court obliged, declaring the Walsh Act's civil commitment

regime unconstitutional because Congress lacked the authority to

enact it. See Volungus, 599 F. Supp. 2d at 77-78.                  The court,

however, stayed the respondent's release pending the consummation

of this appeal.    The respondent remains at Devens.

          In this venue, the government argues that Congress had

constitutional authority to enact section 4248 under both the

Commerce Clause and the Necessary and Proper Clause.                 The two

courts of appeals that thus far have examined the constitutionality

of section 4248 have reached divergent conclusions. Compare United

States v. Tom, 565 F.3d 497, 504-05 (8th Cir. 2009) (upholding the

provision), with United States v. Comstock, 551 F.3d 274, 284 (4th

Cir. 2009) (contra).     The Supreme Court has granted certiorari in

Comstock to resolve this conflict.         129 S. Ct. 2828 (2009).          We

decide this appeal now, however, because the timing of the Supreme

                                    -6-
Court's decision is uncertain, the respondent remains confined

despite    the   expiration    of   his       criminal   sentence,   and    other

petitions are currently being litigated in the courts of this

circuit.

II.   ANALYSIS

            We review de novo challenges to the constitutionality of

federal statutes.       United States v. Hussein, 351 F.3d 9, 14 (1st

Cir. 2003); United States v. Bongiorno, 106 F.3d 1027, 1030 (1st

Cir. 1997).      Before undertaking this review, we acknowledge some

first principles.

            As   long   as   Congress     acts    within   the   sphere    of   its

constitutional authority, it has the power to make criminal laws

and to fashion penalties for noncompliance therewith. See Gonzales

v. Raich, 545 U.S. 1, 15-17 (2005); Champion v. Ames, 188 U.S. 321,

358-60 (1903); United States v. Fox, 95 U.S. 670, 672 (1877).                   In

the criminal law arena, the Commerce Clause, U.S. Const. art. I,

§ 8, cl. 3, typically furnishes the source of this congressional

power.     See, e.g., United States v. Lewis, 554 F.3d 208, 214 n.7

(1st Cir. 2009) (discussing source of Congress's power to outlaw

transmission of child pornography); United States v. Meade, 175

F.3d 215, 224-25 (1st Cir. 1999) (discussing source of Congress's

power to criminalize possession of a firearm by one subject to an

anti-harassment order).

            A certain degree of ancillary authority accompanies the

power to enact and enforce criminal laws.                  One example of this

                                        -7-
ancillary authority is Congress's power to construct and operate a

prison system.        See, e.g., Ex parte Karstendick, 93 U.S. 396, 400

(1876); Estabrook v. King, 119 F.2d 607, 610 (8th Cir. 1941).                      A

related (and subsidiary) example is Congress's authority to commit

mentally ill prison inmates while they are in federal custody.

See, e.g., Greenwood v. United States, 350 U.S. 366, 375 (1956);

see     also     Jackson      v.     Indiana,    406     U.S.   715,   726    (1972)

(acknowledging that Greenwood settled any question of the federal

government's "substantive power to commit").                      These ancillary

strands of power descend from the Necessary and Proper Clause, U.S.

Const. art. I, § 8, cl. 18.             See Greenwood, 350 U.S. at 375.

                The Necessary and Proper Clause imbues Congress with a

measure of legislative discretion to enact laws that are incidental

to the furtherance of legislation authorized under more specific

powers conferred by the Constitution.                  See McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316, 414-15, 417, 420 (1819).                   The Clause is a

bit   of    an    anomaly.         Although   the   Constitution    enshrines    the

principle of a limited federal government, see Gregory v. Ashcroft,

501 U.S. 452, 457 (1991), the Necessary and Proper Clause injects

some legislative flexibility into the equation.                     It is a broad

grant      of    incidental    power     that   enables     Congress   to    further

constitutionally legitimate ends.               See Sabri v. United States, 541

U.S. 600, 605 (2004); Jinks v. Richland County, 538 U.S. 456, 462-

63 (2003); see also The Federalist No. 33 (Alexander Hamilton). As

Chief Justice Marshall aptly observed: "Let the end be legitimate,

                                          -8-
let it be within the scope of the constitution, and all means which

are appropriate, which are plainly adapted to that end, which are

not prohibited, but consist with the letter and spirit of the

constitution, are constitutional."    McCulloch, 17 U.S. (4 Wheat.)

at 421.

           In this instance, the respondent served time in federal

prison following his conviction for violating a panoply of federal

criminal laws.   Congress's power to enact those laws flowed from

the Commerce Clause, and the respondent does not challenge their

provenance.   The inquiry here involves the constitutionality of a

statutory scheme of federal civil commitment that operates after a

defendant has been convicted, sentenced, and reached the brink of

release.

           That the operation of the Walsh Act is federal in nature

is an important datum. The Supreme Court has made it transparently

clear that a state may civilly commit a prisoner beyond the

expiration of his sentence if the prisoner is determined under

appropriate procedures to be sexually dangerous.     See Kansas v.

Hendricks, 521 U.S. 346, 350, 360, 371 (1997).   But the source of

the federal government's authority to commit is less clearly

defined, and the statutory provision here in issue is limited in

its application to federal action vis-à-vis persons in federal

custody.   See 18 U.S.C. § 4248(a).   The question before us, then,

is whether section 4248's civil commitment scheme is an appropriate

exercise of congressional power.

                                -9-
               The government argues that it is, pointing to both the

Commerce       Clause    and   the   Necessary       and   Proper   Clause.      The

respondent argues that it is not.               In our view, federal authority

to commit civilly, if constitutional at all, would seem to fit most

comfortably among the auxiliary, implied powers conferred by the

Necessary and Proper Clause.             Consequently, we focus our inquiry

there.

               The civil commitment scheme spelled out in section 4248

is new, but it is not sui generis.              Since the nineteenth century,

Congress has provided for the commitment of convicts who, while in

federal custody, are determined through appropriate procedures to

be mentally ill.         See, e.g., Act of Aug. 7, 1882, ch. 433, 22 Stat.

302, 330; Act of June 23, 1874, ch. 465, § 1, 18 Stat. 251, 251.

More than six decades ago, Congress passed legislation dealing with

this issue — and that legislation, in modified form, remains in

force.    See Act. of Sept. 7, 1949, ch. 535, § 1, 63 Stat. 686, 686-

88 (codified as amended at 18 U.S.C. §§ 4244-4247); see also Act of

June 25, 1948, ch. 645, 62 Stat. 683, 855-56 (codified as amended

at 18 U.S.C. §§ 4241-4243). This legislation provides that persons

in federal criminal custody, including those whose incarcerative

terms    are    about     to   expire,   may    be   civilly   committed      upon   a

determination that they suffer from a mental disease or defect and

are dangerous.          See 18 U.S.C. §§ 4245-4246.

               Enacted many years prior to the passage of the Walsh Act,

this earlier regime — a regime that we shall call, as a shorthand,

                                         -10-
section 4246 — covered a wide array of mentally ill persons in

federal custody, including pretrial detainees, persons who had been

convicted and sentenced, and persons tried but found not guilty by

reason of insanity.        See id. §§ 4241-4247.

            When a federal pretrial detainee challenged section 4246,

the Supreme Court upheld it (and, thus, effectively upheld the

potentially    indefinite       pretrial     commitment      of        a    mentally

incompetent defendant).       Greenwood, 350 U.S. at 375.              In so doing,

the Court endorsed the proposition that Congress may provide for

the civil commitment of a person in federal custody who would be

dangerous to society if released.               See id. at 374; see also

Jackson, 406 U.S. at 732; cf. Jones v. United States, 463 U.S. 354,

368-70 (1983) (stating that indefinite commitment of a dangerous

person    acquitted   by    reason   of   insanity    does   not       violate   due

process); United States v. DeBellis, 649 F.2d 1, 3 (1st Cir. 1981)

(similar).    The Court reasoned that the law providing for civil

commitment was constitutional, under the Necessary and Proper

Clause, as "an assertion of authority, duly guarded, auxiliary to

incontestible national power" to prosecute for federal crimes.

Greenwood, 350 U.S. at 375.

            We read Greenwood to hold, as a general matter, that

civil commitment under a federal scheme targeted to those in

federal    criminal   custody    is    within   the    scope      of       Congress's

constitutional authority under the Necessary and Proper Clause.

The respondent strives to limit this generalization by pointing out

                                      -11-
that Greenwood involved a pretrial detainee, whereas he has at this

juncture served his entire sentence.                      As we explain below, this

distinction does not make a dispositive difference.

            Both section 4246 and section 4248 are geared toward

preventing the release of persons in federal custody who would, if

set free, be dangerous to society because of mental illness.

Compare 18 U.S.C. § 4246 (a) (defining dangerousness as resulting

"from a mental disease or defect"), with id. § 4247(a)(6) (defining

sexual dangerousness to others as rooted in "a serious mental

illness,    abnormality,         or    disorder").          The    primary    difference

between    these       two   provisions        is   the    condition     that   triggers

possible commitment. On the one hand, section 4246 is triggered by

the prospect of generalized danger arising from mental illness,

traditionally conceived.                On the other hand, section 4248 is

triggered    by        discrete        dangers      arising       from   a    particular

manifestation of mental illness: sexually dangerous proclivities.

In a sense, then, section 4248 is simply a specific application of

section 4246, designed to forestall dangers presented by those who

do not necessarily meet the criteria for commitment under the more

general section 4246 scheme.               Cf. Hendricks, 421 U.S. at 350-51

(explaining that state legislation specific to sexual dangerousness

was enacted to bridge an analogous gap).                          Seen in that light,

Greenwood is a formidable precedent.

            In     all       events,     the     similarities       between     the    two

provisions       are     more    salient       than       the   differences.          Most

                                           -12-
importantly, under both provisions the authority to commit civilly

is auxiliary to the longstanding federal power to prosecute and

punish federal crimes.   Greenwood places that authority within the

compass of the Necessary and Proper Clause.

           In point of fact, the case for constitutionality here may

be even stronger than in Greenwood.        There, the defendant was

merely charged with having committed a federal crime.       350 U.S. at

369.   Here, however, the respondent has already been found guilty

of a crime.   That data point is telling: "[t]he fact that a person

has been found, beyond a reasonable doubt, to have committed a

criminal act certainly indicates dangerousness."        Jones, 463 U.S.

at 364; see Hendricks, 521 U.S. at 358.     Thus, civil commitment of

one in the respondent's position entails proof of both future

dangerousness and past dangerousness.

           The   respondent   counters     that,   in     working   the

constitutional calculus, the Greenwood Court noted that federal

authority over the defendant "persist[ed]" because he was being

detained pretrial when committed.      350 U.S. at 375.   In contrast,

the respondent has now served his sentence.          Seizing on this

sequencing, the district court distinguished Greenwood on the

ground that federal power over the defendant there was unexhausted.

Volungus, 599 F. Supp. 2d at 75-76.

           This attempted distinction is more illusory than real.

The government filed its petition for civil commitment in this case

before the respondent's sentence had run its course.         From that

                                -13-
time     forward,        the   respondent        remained,     lawfully,   in    the

uninterrupted legal custody of the BOP.                 See Rumsfeld v. Padilla,

542 U.S. 426, 435, 439 (2004); Wales v. Whitney, 114 U.S. 564, 572-

74 (1885).       No exhaustion has occurred because the government's

authority over the respondent is tied to its lawful custody of him,

up to the present time and continuing.

            To be sure, it can be argued that continued confinement,

beyond     the     expiration      of     the      respondent's      sentence,    is

unconstitutional.          But the respondent's initial confinement was

indisputably lawful, and when the government detains an individual

involuntarily, it enters into a special relationship with that

individual.         As    an   integral    part    of   that    relationship,    the

government assumes a duty to care for and protect the individual

while he remains in its custody.            See DeShaney v. Winnebago County

Dep't of Soc. Servs., 489 U.S. 189, 198-200 (1989); Vélez-Diaz v.

Vega-Irizarry, 421 F.3d 71, 80-81 (1st Cir. 2005); White v. United

States, 780 F.2d 97, 103 (D.C. Cir. 1986); cf. United States v.

Muniz, 374 U.S. 150, 164-65 (1963) (allowing federal prisoner to

sue for negligence under the Federal Tort Claims Act).

            This     custodial     duty     typically        faces   inward.     The

government, for example, must provide the detained person with

shelter, sustenance, and medical care.                    See, e.g., Farmer v.

Brennan, 511 U.S. 825, 832 (1994); DeShaney, 489 U.S. at 199;

Youngberg v. Romeo, 457 U.S. 307, 315 (1982).                  Nevertheless, some

aspects of this duty face outward. For example, the government may

                                          -14-
in certain circumstances have a responsibility "to avert the public

danger likely to ensue from the release          of . . . dangerous

detainees."     United States v. S.A., 129 F.3d 995, 999 (8th Cir.

1997); see White, 780 F.2d at 106 (finding a federal mental

institution negligent in permitting a dangerous inmate to leave its

grounds); see also Jones, 463 U.S. at 370 (stating that the

Constitution permits commitment of a defendant acquitted by reason

of insanity "until such time as he . . . is no longer a danger to

himself or society"); cf. Restatement (Second) of Torts § 319

(1965) ("One who takes charge of a third person whom he knows or

should know to be likely to cause bodily harm to others if not

controlled is under a duty to exercise reasonable care to control

the third person to prevent him from doing such harm.").

          The    commitment   scheme    surrounding   section   4248   is

designed to facilitate the performance of this duty.        That scheme

is a variation of the protocol set out in section 4246 — a protocol

that has long been thought constitutional.       See United States v.

Pinson, 542 F.3d 822, 838 (10th Cir. 2008); S.A., 129 F.3d at 999;

United States v. Moses, 106 F.3d 1273, 1280 (6th Cir. 1997); United

States v. Sahhar, 56 F.3d 1026, 1029 (9th Cir. 1995).

          Congress may act in divers ways to ensure the proper

discharge of the government's custodial duty.         See, e.g., Muniz,

374 U.S. at 164-65; Ponzi v. Fessenden, 258 U.S. 254, 262-64

(1922); United States v. Quintana-Aguayo, 235 F.3d 682, 687 n.10

(1st Cir. 2000).    Section 4248 reflects Congress's recognition of

                                 -15-
the outward-facing aspects of this custodial duty.               The statute

allows the government to retain custody of a prisoner who would be

dangerous to others if released.            That step seems to be plainly

adapted to the proper discharge of the government's custodial duty.

See Sahhar, 56 F.3d at 1029; DeBellis, 649 F.2d at 3; see also

United States v. Salerno, 481 U.S. 739, 747-49 (1987).              We agree

with   Justice   Stevens   who,    though     dissenting   in   Salerno,   was

compelled to concede how difficult it would be "to accept the

proposition that the Government is without power to detain a person

when it is a virtual certainty that he or she would otherwise kill

a group of innocent people in the immediate future."             481 U.S. at

768 (Stevens, J., dissenting).

            The most closely analogous cases — those under section

4246 — are consistent with this view. Civil commitment proceedings

under that (earlier) statute, involving mentally ill prison inmates

in federal custody, have withstood challenges even though they

result in federal commitment that persists beyond the expiration of

the committed person's sentence.             See, e.g., United States v.

Williams, 299 F.3d 673, 674-75, 678 (8th Cir. 2002); United States

v. Anderson, 104 F.3d 359 (4th Cir. 1996) (table); United States v.

Woods, 970 F. Supp. 711, 715-17, 722 (D. Minn. 1997).            These cases

reinforce     the   notion        that      the   government's     custodial

responsibilities with respect to a federal prison inmate do not

come to an abrupt end upon the expiration of the inmate's sentence.

In cases in which the federal government has uninterrupted custody

                                     -16-
of   a       person    who    is       demonstrably      dangerous     to     others,      it    is

appropriate for the government to take steps to mitigate that

danger when the expiration of a sentence looms.

                To say more on this subject would be supererogatory.

Because        Congress's         formulation       of   section     4248     constitutes         a

reasonable           effort       to    discharge       an   important       aspect     of      the

government's           custodial          duty,     it       falls     within     Congress's

constitutional power to pass laws that are in service to its well-

settled authority to make and enforce criminal laws and to maintain

prisons.1

                We    have    one       final    task.       Even    legislation      that       is

otherwise necessary and proper must not stray past the boundaries

of our system of federalism.                     See Jinks, 538 U.S. at 464.                 Even

though civil commitment is traditionally a prerogative of the

states, Tom, 565 F.3d at 506; United States v. Lapi, 458 F.3d 555,

563 (7th Cir. 2006), this does not mean that a federal civil

commitment        scheme          is    always    and    inevitably      an    impermissible

infringement on traditional state power.                        See Greenwood, 350 U.S.

at 375 (characterizing the regime created by section 4246 as a

valid        assertion       of    federal       power);     Sahhar,    56    F.3d    at     1029




         1
       This means, of course, that the district court erred in
treating section 4248 as a mechanism for confinement untethered to
the respondent's original imprisonment. Volungus, 599 F. Supp. 2d
at 78. Civil commitment is auxiliary to the respondent's sentence
and, thus, falls within the broad grant of implied authority that
flows from the Necessary and Proper Clause.

                                                 -17-
(explaining that section 4246 is not "an invasion of the general

field of lunacy").

          The decisive consideration is whether the federal scheme

is "duly guarded" and sufficiently respectful of state sovereignty.

Greenwood, 350 U.S. at 375.    We believe that section 4248 passes

through this screen.   Taken as a whole, it constitutes a carefully

circumscribed foray into the field of civil commitment.       It is

jurisdictionally limited and deferential to the primacy of state

custody whenever possible.

          It cannot be gainsaid that civil commitment under section

4248 has some trappings of the police power.     Nevertheless, that

fact does not argue persuasively in favor of striking it down.

When the federal government exercises any of the powers granted to

it by the Constitution, it is not a valid objection that the

exercise may bring with it some incidents of the police power.   See

Raich, 545 U.S. at 29 & n.38; Lambert v. Yellowley, 272 U.S. 581,

596 (1926).   It seems especially appropriate to apply this tenet

where, as here, a federal statute seeks merely to assist in

carrying out the federal government's custodial responsibilities.

          We emphasize that section 4248 intrudes no further into

the field of civil commitment than is reasonably necessary to

discharge these custodial responsibilities.    Under this provision,

as under section 4246, federal custody is a precondition to the

inauguration of commitment proceedings.       Thus, section 4248 is



                                -18-
limited in application to persons with whom the federal government

has a preexisting relationship.

            Section 4248's grasp is as modest as its reach.                      For

instance, the provision requires that a person committed thereunder

be   released   when   he     is   determined   to   be   no     longer     sexually

dangerous. 18 U.S.C. § 4248(d)(2). Such limitations, which ensure

that a legitimate federal interest remains implicated throughout

the duration of a commitment, are important.              See United States v.

Perry, 788 F.2d 100, 110 (3d Cir. 1986) (upholding a federal

commitment statute in part because the statute recognized "the

limits of congressional authority [by providing] for release of the

detainee when the federal reason for detention ceases").

            Furthermore,       section   4248   defers      to      state    custody

whenever possible.      Its commitment scheme operates as a gap-filler

in situations in which states either cannot or do not wish to

assume responsibility for sexually dangerous persons in federal

custody.    See United States v. Shields, 522 F. Supp. 2d 317, 328

(D. Mass. 2007); cf. S.A., 129 F.3d at 1000 (upholding section 4246

in   part   because    that    statute   "applies    only      in    those    unique

situations where suitable arrangements for state care and custody

are unavailable").

            Let us be perfectly clear.           Although section 4248 is

reminiscent in these respects of section 4246, it does not fully

replicate the federal-state balance that is struck in section 4246.

There are, for example, subtle differences in language with respect

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to the efforts required of the Attorney General to find suitable

state placements for persons subject to federal civil commitment.

Compare 18 U.S.C. § 4246(a), (d), with id. § 4248(a), (d).                    But

these differences pale in comparison to the common expression,

shared by section 4248 and section 4246, of a clear preference for

state    placement,      if   and    when    available,    of    those   committed

federally. Both statutes require the Attorney General to make "all

reasonable efforts" to cause a state to assume control over the

committed person.         Id. §§ 4246(d), 4248(d).             Even if a state at

first demurs, section 4248 directs the Attorney General to release

the committed person to the state if the state later reverses its

field.    Id. § 4248(d)(1).          On balance, then, we agree with the

Eighth Circuit that the differences between sections 4246 and 4248

are not significant enough to alter the constitutional calculus.

Tom, 565 F.3d at 507.           We thus follow the lead of the Greenwood

Court,   350    U.S.     at   375,   and    hold   that   section   4248's   civil

commitment scheme passes constitutional muster.

III.    CONCLUSION

              We need go no further.               The exercise of a federal

commitment power embodied in section 4248 operates to prevent the

release into society at large of sexually dangerous persons as to

whom    the    federal    government        has    custodial    responsibilities.

Because that exercise is limited to cases in which the federal

government has a custodial duty, and because the federal scheme

respects state prerogatives in the field of civil commitment, we

                                           -20-
conclude that it is consistent with both the letter and spirit of

the Constitution.

          We reverse the order of the district court and remand to

that court for further proceedings consistent with this opinion.



                    — Dissenting Opinion Follows —




                                 -21-
           LAPLANTE,      District     Judge       (dissenting).       Unlike    my

distinguished colleagues, I have serious concerns about whether the

Walsh Act’s provision authorizing federal civil commitment of

sexually dangerous prisoners beyond the end of their federal

criminal   sentences     is,   in   fact,    necessary     and   proper    to   the

exercise   of   Congress’s       enumerated       powers   --    or    merely    an

encroachment on the states’ traditional power to regulate sexually

dangerous conduct.       See United States v. Comstock, 551 F.3d 274

(4th Cir. 2009) (declaring that provision unconstitutional), cert.

granted, 129 S. Ct. 2828 (2009).                 Neither the Supreme Court’s

specific decision in Greenwood v. United States, 350 U.S. 366

(1956)   (upholding    federal      detention     of   incompetent     defendants

awaiting trial on federal charges), nor its broader jurisprudence

under the Necessary and Proper Clause, U.S. Const. art. I, § 8, cl.

18, provides a clear answer to this difficult question.

           Given that the Supreme Court is hearing oral argument in

Comstock on January 12, 2010, and is likely to answer this question

within the next six months, I would prefer to wait for its ruling

rather   than   settle   for    either      of   the   imperfect      alternatives

available to us now: remanding and creating potentially unnecessary

work for the district court, or conversely declaring a major

federal statute unconstitutional on debatable grounds. While it is

true that the respondent here, like the respondent in Comstock,

remains in federal custody pending the outcome on appeal, the

majority’s decision upholding the statute means that he will stay

                                      -22-
there either way, at least in the short term.            On balance, I see

less   harm   than   good   in   waiting   for   the   Supreme   Court.   I

respectfully dissent.




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