PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-7692
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
KEVIN MICHAEL SHEA,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:14-hc-02184-FL)
Argued: December 11, 2020 Decided: March 2, 2021
Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Keenan and Judge Wynn joined.
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. 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.
2 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
3 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.
4 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
5 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
6 “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 work he had done at Butner, it noted that
Shea did not “have a good track record in the community” and has a history, even at Butner,
of “pushing boundaries.” It therefore found the proposed conditions of release to be
“appropriate,” although not necessarily permanent. The court stated that it would
“welcome receiving a request down the road to make [Shea’s discharge] unconditional.”
After the court announced this decision, Shea suggested to the court that an
additional condition be added that would prohibit him from possessing any kind of
pornography, not just child pornography. The court said that the suggestion was a “very
good idea” and added that condition.
The court formally entered its order on September 13, 2019, and Shea has now
appealed it, arguing that the court should not have included conditions and that, in any
event, the district court erred procedurally in approving them without explanation.
7 II
The Adam Walsh Act authorizes a district court — upon the government’s filing of
a certificate that a person is sexually dangerous and a hearing conducted by the court — to
commit a “sexually dangerous person” to the custody of the Attorney General. 18 U.S.C.
§ 4248(a), (c), (d). The Act also provides that the committed person must be discharged
from custody when the court finds that the person (1) “is no longer sexually dangerous to
others” or (2) “will not be sexually dangerous to others if released under a prescribed
regimen of medical, psychiatric, or psychological care or treatment” that has been certified
by the director of the facility in which the person is committed. Id. § 4248(e). After any
discharge ordered with conditions imposing a prescribed regimen, the court remains
authorized to “modify or eliminate the regimen.” Id.
The Act defines a “sexually dangerous person” as “a person [1] who has engaged or
attempted to engage in sexually violent conduct or child molestation and [2] who is
sexually dangerous to others.” 18 U.S.C. § 4247(a)(5) (emphasis added). And “sexually
dangerous to others” is defined to mean that “the person 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).
In short, a person is sexually dangerous under the Adam Walsh Act if (1) he “has engaged
or attempted to engage in sexually violent conduct or child molestation” and (2) currently
“suffers from a serious mental illness, abnormality, or disorder” (3) that would cause him
“serious difficulty in refraining from sexually violent conduct or child molestation if
released.” Id. § 4247(a)(5), (6).
8 To commit a person, the government must prove all three elements defining a
sexually dangerous person by clear and convincing evidence. 18 U.S.C. § 4248(d). To
obtain a discharge, the committed person carries the burden to show by a preponderance
of the evidence that he is no longer sexually dangerous. Id. § 4248(e); see also United
States v. Wooden, 217 F. Supp. 3d 843, 850–51 (E.D.N.C. 2016).
At every hearing conducted for civil commitment and discharge under the Adam
Walsh Act, the person subject to the hearing must be provided with counsel and must be
“afforded an opportunity to testify, to present evidence, to subpoena witnesses on his
behalf, and to confront and cross-examine witnesses who appear at the hearing.” 18 U.S.C.
§ 4247(d).
In this case, Shea was committed by consent to the custody of the Attorney General
as a sexually dangerous person following a hearing conducted on March 30, 2015, and
discharged subject to a regimen of care and treatment following a hearing conducted on
September 13, 2019. In this appeal, he challenges the fact that conditions were imposed,
arguing that he is no longer a sexually dangerous person. He also now challenges the
procedure that the district court followed in imposing them.
III
The district court’s core finding was that Shea would not be sexually dangerous if
released under a prescribed regimen of medical, psychiatric, or psychological care or
treatment. Stated otherwise, the court found that Shea has a serious mental illness or mental
disorder and would have serious difficulty in refraining from engaging in or attempting to
9 engage in sexually dangerous conduct if released without the regimen imposed by the
conditions. While the court took into account Shea’s history, it based its finding mainly
on the expert testimony of Dr. Barnette and Dr. Smithson, which was presented by the
government, giving their testimony more weight than the expert testimony of Dr. Plaud
and Dr. Malinek, which was presented by Shea.
Shea contends that the district court erred in finding that his discharge should be
subject to conditions, claiming that he is “no longer sexually dangerous.” He argues that
the court’s finding “cut[s] against the clear weight of the evidence demonstrating that [he]
does not meet the second and third elements of the sexually dangerous classification — he
does not presently suffer from a serious mental illness and he would not have serious
difficulty refraining from child molestation if released unconditionally.” To support that
claim he relies mainly on the testimony of Dr. Malinek and Dr. Plaud, but he also points to
the facts that at the time of the hearing, he was “sixty-four years old, had not had a hands-
on offense in twenty years, and had completed four and a half years of treatment without
disciplinary infraction or evidence of sexual preoccupation.”
The government contends that “the district court did not clearly err in finding [that
Shea] failed to meet his burden [that] he was no longer sexually dangerous such that he
could be released without conditions.” The government points to Shea’s extensive history
of sexual abuse and the district court’s finding that Dr. Barnette’s opinion in particular was
“thorough, well-reasoned, and supported by the record” and therefore should be given
“greater weight” than the opinions of Dr. Plaud and Dr. Malinek, who testified on Shea’s
behalf. The government argues that the court’s finding was not clearly erroneous because
10 “neither [of Shea’s experts] fully considered [his] dynamic risk factors and both ignored
[his] considerable struggles with sexual preoccupation and deviant sexual interest.
Notably, Dr. Malinek did not even diagnose [Shea] with a pedophilic disorder, despite
[Shea’s] 100 known victims.”
The parties do not dispute Shea’s history, including his record while at Butner.
Essentially, they engage in a battle of experts, which the district court resolved in the
government’s favor. Such a dispute raises the question about our standard for reviewing a
district court’s findings based on its weighing of competing expert opinions, to which we
turn first.
A
Expert opinions are, to be sure, not facts that can be found as true or false. Whether
a defendant was driving on the wrong side of the road prior to a crash is a question of
historical fact that can be proved one way or another. And it is the role of the district
court’s factfinding, whether by judge or jury, to find that fact. Because of that role, as well
as the district court’s advantage in hearing and “weighing” evidence, a court of appeals
defers to the district court’s factfinding (whether by judge or jury), rejecting such a finding
only if the appellate court finds there to be clear error — that is, when the appellate court
is “left with the definite and firm conviction that a mistake has been committed.” United
States v. Hall, 664 F.3d 456, 462 (4th Cir. 2012) (quoting United States v. Gypsum Co.,
333 U.S. 364, 395 (1948)). This deference is strong, and a court of appeals is not entitled
to second guess the district court “simply because it is convinced that it would have decided
11 the case differently” or “weighed the evidence differently.” Anderson v. Bessemer City,
470 U.S. 564, 573–74 (1985). And when a factual finding is based on witness credibility,
the appellate court gives “even greater deference.” Id. at 573.
But an expert opinion is not fact that can be proved true or false. It is opinion.
While we recognize the value of expert opinions in trials to assist factfinding, see Fed. R.
Evid. 702, the standards applicable to the district court’s function in receiving, assessing,
and relying on expert opinions are distinct from the standards for finding historical facts.
In considering the admissibility vel non of expert testimony, the district court
performs a gatekeeping function to determine whether the expert evidence would be
relevant and reliable. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999)
(holding that the Daubert gatekeeping standard applies not only to “scientific testimony”
but also to “all expert testimony”). A court of appeals then reviews the district court’s
decision to admit or deny expert testimony for abuse of discretion. See id. at 152 (citing
General Electric Co. v. Joiner, 522 U.S. 136, 138–39 (1997)); In re Lipitor (Atorvastatin
Calcium) Mktg., Sales Practice & Prods. Liab. Litig. (No. II) MDL 2502, 892 F.3d 624,
632 (4th Cir. 2018).
Once expert testimony is admitted, the factfinder in the case, whether judge or jury,
must determine the weight to give it, and that is again a discretionary decision. In assessing
expert opinion, the factfinder cannot conclude that it is true or false. Rather, it must
determine the weight to give the opinion by considering whether it is “plausible, coherent,
and internally consistent,” United States v. Wooden, 887 F.3d 591, 603 (4th Cir. 2018), and
“not contradicted by extrinsic evidence,” United States v. Caporale, 701 F.3d 128, 142 (4th
12 Cir. 2012) (cleaned up). Indeed, in the context of an administrative hearing under the Black
Lung Benefits Act, we articulated similar criteria in yet more detail:
In weighing [expert] opinions, the ALJ is called upon to consider their quality. Thus, the ALJ should consider the qualifications of the experts, the opinions’ reasoning, their reliance on objectively determinable symptoms and established science, their detail of analysis, and their freedom from irrelevant distractions and prejudices. In addition, the ALJ should consider whether an opinion was, to any degree, the product of bias in favor of the party retaining the expert and paying the fee.
Underwood v. Elkay Mining, Inc., 105 F.3d 946, 951 (4th Cir. 1997), superseded on other
grounds by regulation, as recognized in Elm Grove Coal Co. v. Director, O.W.C.P., 480
F.3d 278, 289–92 (4th Cir. 2007). Because the assessment of the weight to give an expert
opinion is a discretionary determination committed to the factfinder, courts of appeals defer
to that determination, reviewing only for abuse of discretion.
Once a district court judge or jury makes the determination that one expert’s opinion
is to be given more weight than another, the judge or jury then finds facts, and those
findings are subject to appellate review under the clear error standard, as discussed. See
Wooden, 887 F.3d at 602, 605–06. But in reviewing under the clear error standard, the
appellate court can consider whether the factfinder abused its discretion in favoring one
expert opinion over another under the established criteria for evaluating expert opinions.
If an appellate court finds such abuse, it can conclude that the ensuing factual finding was
clearly erroneous. But courts of appeals “should be especially reluctant to set aside a
finding based on a trial court’s evaluation of conflicting expert testimony.” United States
v. Heyer, 740 F.3d 284, 292 (4th Cir. 2014) (quoting Hendricks v. Cent. Rsrv. Life Ins. Co.,
13 30 F.3d 507, 513 (4th Cir. 1994)); see also United States v. Francis, 686 F.3d 265, 273
(4th Cir. 2012).
In Wooden, we faced circumstances similar to those presented here that required us
to assess whether the district court clearly erred in finding, based primarily on the expert
testimony of Dr. Frederick Winsmann, that “Wooden no longer qualified as a sexually
dangerous person.” 887 F.3d at 594; see also id. at 596–602. In assessing that finding, we
concluded:
Winsmann’s testimony, standing alone, was coherent, plausible, and internally consistent; it is not any less so when it is placed beside [Dr. Hy] Malinek’s testimony. Under these circumstances, the district court’s decision to accept Winsmann’s views over Malinek’s contrary views is not clearly erroneous. See Anderson, 470 U.S. at 574 (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”).
Id. at 606 (emphasis added).
In short, while the district court (whether by judge or jury) exercises discretion in
weighing expert testimony, its findings based on that assessment are reviewed for clear
error.
This is the standard we now apply.
B
While Shea agrees that he satisfies the first element defining a “sexually dangerous
person,” having engaged in child molestation, he argues that he does not satisfy the second
and third elements — that he still suffers from a serious mental illness or mental disorder
and that he would have “serious difficulty” in refraining from reoffending. Because all
14 three elements must be satisfied, he argues that he no longer qualifies as a sexually
dangerous person and should have been released without conditions. In arguing that the
second and third elements are not satisfied, he relies on the testimony of the two experts he
presented at the hearing, Dr. Malinek and Dr. Plaud, both of whom gave opinions that, at
the time of the hearing, Shea did not suffer from a serious mental illness or mental disorder.
Shea also relies on the historical facts that his last hands-on offense was 20 years earlier
and that he has not exhibited any indications in custody “that pedophilic disorder still has
grip over” him. In addition, he points to his success in treatment and his rigorous release
plan; his advanced age, which has diminished his libido; and the decreased statistical
likelihood that he will recidivate.
But the district court found otherwise, giving greater weight to the government’s
expert testimony than to Shea’s. As to whether Shea continues to suffer from a serious
mental illness or mental disorder, Dr. Barnette testified that she had diagnosed Shea with
pedophilic disorder and other paraphilic disorder when Shea began treatment and that
“those are [still] applicable to Mr. Shea.” She explained that Shea’s history, his behavior
when he was last in the community, and Shea’s overall “abnormal sexual arousal pattern”
supported these diagnoses. Dr. Barnette’s testimony also aligned with her 2019 forensic
update on Shea — conducted five months before the hearing — which likewise affirmed
that these diagnoses “remain appropriate.” Moreover, even Dr. Malinek, one of Shea’s
experts, concluded in his October 2018 expert report that there is “current evidence of a
mental disorder or sexual deviation which would predispose Mr. Shea to the commission
of criminal sexual acts” — namely, pedophilic disorder. Dr. Malinek’s report recognized
15 that “the diagnosis of Pedophilic disorder is considered lifelong and chronic, and the fact
that Mr. Shea has not shown evidence of it in custody does not mean that he is not sexually
aroused by children.”
To be sure, Dr. Malinek later walked back his report’s diagnosis of pedophilic
disorder, testifying that “the evidence for it was weak” and that he has “change[d] his
opinion on that.” In a similar vein, Dr. Plaud, Shea’s other expert, testified that while Shea
historically met the diagnostic criteria for pedophilic disorder, that disorder lacks “grip
strength” over Shea such that it is not a serious mental illness as required by the Adam
Walsh Act.
In finding Dr. Barnette’s opinion more compelling, the district court did not abuse
its discretion. Dr. Barnette’s testimony was “plausible, coherent, and internally
consistent,” Wooden, 887 F.3d at 603, and “not contradicted by extrinsic evidence,”
Caporale, 701 F.3d at 142 (cleaned up). Moreover, Dr. Barnette’s diagnosis of pedophilic
disorder was also supported by Dr. Malinek’s expert report. In these circumstances, we
conclude that the district court did not clearly err in finding that Shea continues to suffer
from a serious mental illness based on the expert testimony before the court. See Anderson,
470 U.S. at 574 (“Where there are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous”); see also Francis, 686 F.3d at 273.
As to the third element — whether Shea would have serious difficulty in refraining
from sexual misconduct if released unconditionally — the evidence likewise supported the
district court’s finding. As with the mental-illness element, the question of whether a
person’s ongoing volitional impairment is sufficiently severe “turns on the significance of
16 the factual information as viewed by the expert psychiatrists and psychologists.” Francis,
686 F.3d at 275. Here, both of the government’s experts testified that the proposed
conditions were crucial to helping Shea refrain from reoffense if released. Both Dr.
Barnette and Dr. Smithson testified that Shea had a history of “push[ing] the boundaries”
and “bend[ing] the rules” while committed. Although the actual instances of such
misconduct appeared to have been relatively benign, Dr. Barnette explained that Shea’s
proclivity for pushing the boundaries is a “long-term vulnerability” because it “can be a
really slippery slope.” Citing Shea’s own testimony, Dr. Barnette explained that “a
seemingly unimportant decision can turn into deviance.” Dr. Smithson similarly testified
that the proposed conditions are aimed at creating a “structured environment,” which will
help “control [Shea’s] impulsive decision making.”
Another “dynamic risk factor” identified by the government’s experts was Shea’s
trouble developing genuine adult relationships. As Dr. Smithson explained, this matters
because if Shea “continues to have significant difficulty connecting . . . with adults, there
is a fear that he would end up” seeking that connection with minors.
Dr. Barnette testified to yet another risk factor — Shea’s “sexual arousal pattern to
youthful males,” considering that he has expressed those interests exclusively “in the
community.” As Dr. Barnette put it, “the real test for [Shea] is going to be in the
community when he has access to victims. That’s what has been the problem for him.”
When asked specifically if Shea needs conditions on release, Dr. Barnette
responded:
17 I absolutely think that Mr. Shea needs conditions. He has struggled in the community. He has never been in the community for a significant period of time without engaging in offending or having difficulties. I think that it’s going to be stressful for Mr. Shea to release. And I think that when things get stressful, there’s a tendency to revert back to prior coping skills that can be maladapted and cause problems. . . . And I think that having the tools that he has now is one thing, but the supervision will help him to apply those tools. And when he really is faced with those challenges, there will be support for him in place, and there will be just a way to be monitored and kept on the straight and narrow.
Again, the opinions on which the district court relied were plausible, coherent, and
internally consistent, and as important, they were not contradicted by extrinsic evidence.
Indeed, they better responded to Shea’s demonstrated conduct and circumstances than did
Shea’s experts’ opinions. As a consequence, the district court’s weighing them favorably
over the opinions of Shea’s experts did not constitute an abuse of discretion, and the district
court’s finding based on those opinions is not clearly erroneous.
In sum, we conclude that the district court’s finding that Shea would not be a
sexually dangerous person as long as he was released under a prescribed regimen was not
clearly erroneous.
IV
For the first time on appeal, Shea also contends that the district court erred
procedurally in failing to explain “why it imposed” the conditions it did and “how they are
part of a prescribed regimen” of care or treatment. He asserts that “the District Court’s
silence on why it imposed any conditions on [him] . . . deprived this Court of the ability to
determine whether the lower court abused its discretion in imposing all of the
Government’s requested conditions.” He argues that the district court should have
18 followed the procedural requirements specified for imposing conditions of supervised
release in criminal sentencing. See 18 U.S.C. §§ 3553, 3583; see also United States v.
Armel, 585 F.3d 182, 186 (4th Cir. 2009) (requiring district courts in criminal sentencing
to “explain the rationale for the special conditions it imposes” on supervised released).
Shea never argued before to the district court that the conditions — in part or in
whole — were not appropriate aspects of a prescribed regimen, and his failure to do so thus
denies us the benefit of the district court’s response.
More remarkably, during the proceedings before the district court, Shea actually
proposed imposition of the conditions if the court were to decide that conditions were
needed. In his proposed findings of fact submitted to the district court, Shea proposed that
the court impose no conditions because he was no longer a sexually dangerous person. In
the alternative, however, he proposed that if conditions were to be imposed, the court
should “us[e] the proposed conditional release order filed by the government.” In addition,
at the hearing, Shea testified with respect to the government’s proposed conditions that he
largely agreed with them and planned to live by them even if they were not imposed by the
court. Indeed, he even went so far as to propose an additional condition of release, which
the court accepted as a good idea.
In short, at the hearing before the district court, Shea never made the substance of
the conditions an issue, never objected to them — indeed, affirmatively proposed them if
conditions were to be ordered — and suggested that he thought it would be appropriate to
abide by them even if conditions were not imposed. Yet, he now argues that the court erred
in imposing them without giving an explanation for each condition. If this is not invited
19 error — i.e. proposing conditions to the district court that he now challenges on appeal —
see, e.g., United States v. Jackson, 124 F.3d 607, 617 (4th Cir. 1997) (“[W]e conclude that
any error was invited by Jackson when he knowingly failed to object to the Government’s
inaccurate portrayal of the stipulation between Jackson and the Government”), it certainly
constitutes a waiver, see United States v. Olano, 507 U.S. 725, 733 (1993) (“[W]aiver is
the intentional relinquishment or abandonment of a known right” (cleaned up)); cf. United
States v. Hale, 857 F.3d 158, 170 (4th Cir. 2017) (holding that defendant waived objection
to the form of a jury instruction where counsel at trial objected to the fact that the
instruction was given but explicitly stated “if the court is going to give one, we don’t have
any problem with the proposed instruction of the court”) (emphasis omitted)). Either way,
the issue would be unreviewable.
Accordingly, we conclude that Shea’s argument that the district court failed to
provide an adequate explanation for the conditions is waived.
* * *
The Adam Walsh Act is designed not only to serve the safety interests of the public
but also to facilitate the treatment of sexually dangerous persons and thus to provide them
a path to good citizenship. This case presents a fine example of where these purposes are
being fulfilled. The government and the district court both recognized that Shea had made
great strides at Butner, and the district court commended him accordingly. Our opinion
today affirming Shea’s conditional discharge is in no way intended to undercut that
observation or denigrate Shea’s progress. To the contrary, we provide judicial
encouragement, along with the observation that should Shea continue to demonstrate
20 progress, the Act provides a mechanism for the district court to “modify or eliminate” the
conditions that have been imposed. 18 U.S.C. § 4248(e)(2).
The judgment of the district court is
AFFIRMED.