United States v. Carta , 592 F.3d 34 ( 2010 )

United States Court of Appeals
For the First Circuit
Nos. 09-1949, 09-2005
UNITED STATES OF AMERICA,
Petitioner, Appellant/Cross-Appellee,
v.
TODD CARTA,
Respondent, Appellee/Cross-Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Boudin and Selya, Circuit Judges,
and Laplante,* District Judge.
Abby Wright and Samantha Chaifetz, Appellate Staff, Civil
Division, Department of Justice, with whom Tony West, Assistant
Attorney General, Michael K. Loucks, Acting United States Attorney,
and Mark B. Stern, Appellate Staff, Civil Division, Department of
Justice, were on brief for petitioner, appellant/cross-appellee.
Judith H. Mizner, Assistant Federal Public Defender, Federal
Defender Office, for respondent, appellee/cross-appellant.
January 15, 2010
*
Of the District of New Hampshire, sitting by designation.
BOUDIN, Circuit Judge. The federal government sought to
commit Todd Carta under the Adam Walsh Child Protection and Safety
Act, Pub L. No. 109-248, 120 Stat. 587 (2006) ("Adam Walsh Act").
That statute authorizes civil commitment of a person already in
federal custody, including one finishing a sentence after a
criminal conviction, if the government shows that he is a "sexually
dangerous person." 18 U.S.C. § 4248 (2006). The district court
held that the government failed to make the necessary showing; the
government now appeals, and Carta cross-appeals claiming that the
statute is unconstitutional.
After pleading guilty to child pornography charges in
October 2002, Carta was sentenced to five years in federal prison
and three years of supervised release. Three years into his term,
Carta requested and was granted a transfer to a federal prison in
North Carolina offering a sex offender treatment program. Carta
participated in the program for approximately seven months, but
then withdrew without completing the program.
Carta's treating psychologist noted that even within the
program, he exhibited problematic behavior: reinforcing the deviant
beliefs of others in the program, denying that his behavior was
inappropriate and acting impulsively. Further, Carta dropped out
of the program partly because of his inability to curb his sexual
interest the program's younger participants, which resulted in
restrictions being imposed on his contact with them.
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In the course of the program, Carta disclosed details of
his sexual and criminal history that prompted the government's
invocation of the Adam Walsh Act's commitment procedures (in
shorthand, "section 4248"). Carta described his primary sexual
interest as children age 12 to 17 and his secondary interest as
children age 7 to 11, and admitted to having a large child
pornography collection; he usually stored between 10,000 and 20,000
images on his computer and spent 12 to 14 hours daily looking at
child pornography prior to his arrest.
Carta further admitted to sexually abusing minors on many
occasions, with his youngest victim being a child in diapers.
Carta's long history of sexually abusing minors is detailed in the
district court opinion, United States v. Carta, 620 F. Supp. 2d
210, 212-14 (D. Mass. 2009), and we draw on it (subject to a few
corrections based on our own reading of the record).
•Between the ages of 11 and 13, Carta
performed oral sex on a child in diapers who
was no more than three or four years old one
time and on the diapered-child's seven-year-
old cousin about 10 times; the seven-year-old
also performed oral sex on Carta.
•When he was 15 or 16, Carta shot with
a BB gun a similar-aged male when the peer
refused to engage in oral sex; later, Carta
talked him into oral sex and they engaged in
it approximately 10 times over a five year
period.
•At age 21, on multiple occasions Carta
engaged in oral sex with his 16-year-old
nephew.
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•Between ages 28 and 34, Carta
committed multiple sexual offenses while
following a rock band; among these were
offering a 13-year-old boy concert tickets in
exchange for oral sex and fondling and
masturbating a 17 or 18-year-old male who was
passed out from drug use in Carta's van.
•When Carta was 30 or 31, he began
sexually abusing a 13-year-old boy, whom he
had sexual contact with 30 to 40 times over a
four year period and referred to as his
"boyfriend."
•At age 33, he engaged in sexual
contact on separate occasions with two 16-
year-old males and one 16-year-old female, all
of whom he met on the Internet.
•When Carta was 39, he met a 17-year-
old male who started living with him; on at
least one occasion, Carta orally copulated the
17-year-old's younger brother, who was 15 at
the time. Carta also sexually abused a 13-
year-old boy he met on the Internet,
performing oral sex on him on multiple
occasions; one time, Carta convinced the 13-
year-old to have "three-way sex" with Carta
and the 17-year-old.
On March 7, 2007--two days prior to Carta's scheduled
good-time release date--the Bureau of Prisons certified that Carta,
who was being held in a federal facility in Massachusetts, was a
"sexually dangerous person" and began civil commitment proceedings
under section 4248. Carta moved to dismiss, arguing the statute
was facially unconstitutional on multiple grounds, but after a
hearing the district court denied the motion. United States v.
Carta, 503 F. Supp. 2d 405, 407 (D. Mass. 2007). The denial was
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without prejudice to an as-applied challenge, which Carta never
made.
In February 2009, the district court held a three-day
bench trial on whether Carta met the requirements for civil
commitment under section 4248. Experts testified on both sides.
The government expert, Dr. Amy Phenix, testified that, based on
risk factors such as age, frequency of misconduct and lack of
success in treatment, Carta would have serious difficulty in
refraining from child molestation if released.1 Dr. Phenix said
that Carta suffered from a mental disorder known as "paraphilia not
otherwise specified" that was characterized by "hebephilia."
Paraphilia is characterized by the Diagnostic and
Statistical Manual of Mental Disorders ("DSM"), a commonly used
reference book in the fields of psychiatry and psychology, as
follows:
The essential features of a Paraphilia are
recurrent, intense sexually arousing
fantasies, sexual urges, or behaviors
generally involving 1) nonhuman objects, 2)
the suffering or humiliation of oneself or
one's partner, or 3) children or other
nonconsenting persons, that occur over a
period of at least 6 months . . . [and that]
1
Dr. Phenix's report, like the report of Carta's expert Dr.
Leonard Bard, is under seal; but we note that her diagnosis and
evaluation of dangerousness did not rest simply on Carta's
confession of past incidents but also on his behavior in prison,
his statements about his present feelings and a set of standardized
evaluative measurements based primarily on correlating
characteristics of the individual with statistical data about re-
offense.
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cause clinically significant distress or
impairment in social, occupational, or other
important areas of functioning . . . .
Am. Psychiatric Ass'n, DSM 522-23 (4th ed. 2000). Carta's
condition was described by Dr. Phenix as paraphilia not otherwise
specified because hebephilia--loosely, sexual attraction to
adolescents, Carta, 620 F. Supp. 2d at 217--is not itself an
abnormality specifically listed in the DSM nor is it one of the
specific examples of paraphilia listed in the DSM. By contrast,
pedophilia, sexual attraction to children before puberty, is a
listed variety of paraphilia in the DSM. DSM, supra, at 527-28.
Dr. Bard, an expert designated at Carta's request, see 18
U.S.C. § 4247(b), conceded that Carta suffered from "numerous
problems" but--based in part on Dr. Bard's own test results--
concluded that Carta would not have serious difficulty in
refraining from child molestation if released. Dr. Bard also
asserted that hebephilia was not a generally accepted diagnosis in
the mental health community, did not fit within the DSM definition
of paraphilia, lacked diagnostic criteria and could not be
consistently defined; that normal adults may find adolescents
arousing; and that articles offered by the government to support a
hebephilia diagnosis were not legitimate peer-reviewed research.
In June 2009, the district court ruled that the
government had not proved by clear and convincing evidence that
Carta was a "sexually dangerous person" within the meaning of the
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Adam Walsh Act. Carta, 620 F. Supp. 2d at 226-27. Relying on Dr.
Bard's reasoning, the district court concluded that Carta's
diagnosis of paraphilia not otherwise specified characterized by
hebephilia was not a "serious mental illness, abnormality, or
disorder" under the statute. Id. at 222-27. Because having a
defined mental condition is a prerequisite for commitment under
section 4248, the court did not reach the separate question of
whether Carta would have serious difficulty refraining from
molestation if released. Id. at 229. We stayed Carta's release
pending the government's expedited appeal.
Chapter 313 of the Criminal Code, 18 U.S.C. §§ 4241-4248,
addresses competency to stand trial, disposition of those found not
guilty by reason of insanity and treatment of those in custody who
are found to be suffering from a mental disease or defect. One
provision authorizes, and provides procedures for, id. §§ 4246(a)-
(g), continued commitment of individuals in federal custody--
otherwise due for release--where release would "create a
substantial risk of bodily injury to another person or serious
damage to property of another" by reason of a "mental disease or
defect," id. § 4246(a).
Appended, with cross-references to the basic scheme, is
a section added by the Adam Walsh Act that addresses civil
commitment of "a sexually dangerous person" who is in the custody
of the Attorney General or Bureau of Prisons; commitment may
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continue until that person is transferred to state care or "is no
longer sexually dangerous to others" or until that danger can be
controlled by outpatient care and treatment. 18 U.S.C. §§ 4248(a),
(d). "Sexually dangerous person" and "sexually dangerous to
others" are defined, and the former includes the requirements of
the latter. Id. §§ 4247(a)(5),(6). The combination requires three
elements:
a prior act (or attempted act) of "violent
sexual conduct or child molestation";
"a serious mental illness, abnormality, or
disorder"; and
a resulting "serious difficulty in refraining
from sexually violent conduct or child
molestation if released."
Carta does not deny that he has engaged in child
molestation in the past, and the district judge so found. Carta,
620 F. Supp. 2d at 221-22. Thus, whether the government could
commit Carta turned on whether he suffered from "a serious mental
illness, abnormality, or disorder" and whether he would have
"serious difficulty" in refraining from further child molestation.
As already noted, the district judge did not reach the latter
question because he ruled the government had failed to show that
Carta suffered from the necessary mental condition.
On review, we distinguish between what the statute means,
questions of raw fact and the intermediate step of characterizing
the raw facts in the terms of the statute thus defined. The first
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issue, statutory interpretation, we review de novo, United States
v. Frechette, 456 F.3d 1, 7 (1st Cir. 2006); the second is one of
fact-finding, reviewed for clear error, Fed. R. Civ. P. 52(a)(6);
and the last is the problem of applying a general standard to
specific facts in which some deference is ordinarily accorded the
fact-finder, United States v. Jahagirdar, 466 F.3d 149, 156 (1st
Cir. 2006).
The district court may have assumed that the statutory
concept is delimited by the consensus of the medical community, but
this is not so.2 Further, a mental disorder or defect need not
necessarily be one so identified in the DSM in order to meet the
statutory requirement; several state decisions on counterpart
statutes have so held. See, e.g., In re Commitment of Frankovitch,
121 P.3d 1240, 1245 (Ariz. Ct. App. 2005); In re Care and Treatment
of Dahl, 167 P.3d 387, 2007 WL 2768036, at *2 (Kan. Ct. App. 2007);
Commonwealth v. Starkus, 867 N.E.2d 811, 819-20 (Mass. App. Ct.
2007). But in the present case the central problem is that there
is no conflict between the DSM and the government's position, which
the district court appears to have misunderstood.
2
See Kansas v. Crane, 534 U.S. 407, 413 (2002) ("[T]he science
of psychiatry, which informs but does not control ultimate legal
determinations, is an ever-advancing science, whose distinctions do
not seek precisely to mirror those of the law."); Kansas v.
Hendricks, 521 U.S. 346, 359 (1997) (same); see also H.R. Rep. 109-
218, pt. 1, at 29 (rejecting for section 4248 a "narrow" approach
to what mental conditions trigger the statute and stating that the
statute instead adopts "commitment standards substantively similar
to those approved by the Supreme Court" in Crane and Hendricks).
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Believing this to be the position of other federal
courts,3 the district court rejected hebephilia as a "serious
mental illness, abnormality, or disorder," concluding that it does
not fit within the DSM category of paraphilia not otherwise
specified and is not otherwise found within the DSM. Carta, 620 F.
Supp. 2d at 223-24. The court also considered whether classing
hebephilia as a mental disorder was "supported by research in the
field of psychology" and whether it was "generally accepted in the
psychiatric and psychological community," finding that although
there is some dispute in the field, hebephilia is "not generally
recognized as a serious mental illness." Id. at 225-26.
The problem with the district court's approach is that
paraphilia is expressly a DSM-listed disorder and Carta appears to
fall within this category. The "essential features" of paraphilia
are "recurrent, intense sexually arousing fantasies, sexual urges,
or behaviors" fixated on a specific "stimuli," which "occur over a
period of at least 6 months" and "cause clinically significant
distress or impairment in social, occupational, or other important
areas of functioning." DSM, supra, at 522-23. The DSM states that
frequent objects of fixation are "nonhuman objects," "the suffering
3
The district court asserted that "[t]he only federal courts
to have addressed the diagnosis of hebephilia in sexually dangerous
person cases have rejected it as a basis for commitment." Carta,
620 F. Supp. 2d at 222 (citing United States v. Shields, 2008 WL
544940, at *2 (D. Mass. Feb. 26, 2008) and United States v.
Abregana, 574 F. Supp. 2d 1145, 1159 (D. Haw. 2008)).
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or humiliation of oneself or one's partner," and "children or other
nonconsenting persons." Id. At first blush, one might think that
a number of those abused by Carta fall easily within the category
of "children or other nonconsenting persons."
But in any case the DSM includes a catch-all category
called "paraphilia not otherwise specified" that lists, simply as
examples, types of paraphilia, such as fixation on obscene phone
calls, specific body parts, feces or urine. DSM, supra, at 532.
Based on Dr. Phenix's report, Carta's past history of sexually
abusing minors, his in-prison behavior and his expressed attitudes
seemingly justify classifying him as suffering from a paraphilia:
he has a decades-long sexual fixation on minors that plainly has
"caused significant distress or impairment" in his life.
With one exception, nothing in Dr. Bard's report appears
directly to contradict this classification. The exception--which
the district judge noted but did not expressly adopt, see Carta,
620 F. Supp. 2d at 223--is this: in his testimony (rather than his
report), Dr. Bard took the position that the term "children" in the
phrase "children or other nonconsenting persons," which the DSM
uses as an example of a common category of fixations that often
underlie paraphilia, refers only to prepubescent children. He also
stated briefly, but without any detail, that he thought most
clinicians used the term "children" in this manner.
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Dr. Bard reasoned that in describing pedophilia, the DSM
specifically refers to "prepubescent" children; but, if anything,
the explicit qualifier "prepubescent" used in defining pedophilia
would make one think that its omission in the phrase "children and
nonconsenting persons" does not exclude young but pubescent
adolescents. The idea that the reference to "children" in the
opening examples of common fixations automatically and definitively
excludes molestation of young teenagers is far from compelling and,
in any case, the "not otherwise specified" category remains.
So on this record it would be clear error to say that the
DSM definition of paraphilia excluded an intense sexual fixation on
young teenagers accompanied by a pattern of conduct such as
Carta's. Nor did the district court squarely take this position;
instead, its main concern was one of indefiniteness and over-
inclusion: the district judge said that paraphilia not otherwise
specified should not be stretched to include hebephilia because it
would thereby encompass anyone sexually aroused by post-pubescent
minors, which given the vagueness of the term hebephilia "could
pathologize normal men." Carta, 620 F. Supp. 2d at 224.
Given that some teenagers are sexually mature, it is
hardly surprising that the DSM (and the courts) would hesitate to
classify any and all sexual attraction to them as abnormal. But
Dr. Phenix did not claim that Carta's mental disorder was
hebephilia; she said it was paraphilia not otherwise specified, and
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the reference to hebephilia merely pointed to adolescents as the
target of his fixation. This does not mean that everyone sexually
attracted to adolescents is mentally disordered; rather, it means
that one whose urges are so strong as to produce the symptoms and
consequences identified in the DSM and exhibited by Carta could be
so classified in an appropriate case.
The cases cited by the district judge are not helpful to
his ruling. In Shields, the trial court rejected hebephilia
standing alone as "a serious mental illness, abnormality, or
disorder," but did not categorically reject the diagnosis of
paraphilia not otherwise specified characterized by hebephilia;
instead, the district court said it lacked an adequate record to
assess the latter diagnosis. 2008 WL 544940, at *2. In Abregana,
the court found that paraphilia not otherwise specified
characterized by hebephilia was a mental disorder, but that
dangerousness was not established. 574 F. Supp. 2d at 1154.
In sum, the government's position depended not on showing
that hebephilia is a mental disorder but on showing that Carta's
sexual attraction to teenagers fell within the DSM definition of
paraphilia not otherwise specified; Dr. Phenix provided ample
reason to conclude that Carta fell within the DSM definition, and
nothing in Dr. Bard's report shows why that conclusion is wrong.
We add only that it would be unlikely to take Carta outside the
statute even if we concluded improbably that he fell outside any
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DSM-recognized affliction; as already explained, the reach of
section 4248 is not limited to the specific conditions listed in
the DSM.
Dr. Bard's report does show that the experts disagree as
to Carta's ability to control his sexual urges toward adolescents.
The government must prove by clear and convincing evidence not only
that Carta has the required mental condition, but also would have
"serious difficulty in refraining from sexually violent conduct or
child molestation if released." 18 U.S.C. § 4247(a)(6). On the
latter issue, Dr. Bard's evaluation favorable to Carta is
reasonably detailed and specific, but so is Dr. Phenix's contrary
position. Whose analysis is more persuasive remains to be
determined on remand.
This brings us to Carta's claims that section 4248 is
facially unconstitutional because the statute is not a valid
exercise of Congress' authority under the Commerce Clause and
because it violates the Due Process Clause of the 5th Amendment and
its encompassed equal protection requirement. The Supreme Court
has taken under review United States v. Comstock, 551 F.3d 274 (4th
Cir. 2009), cert. granted, 129 S. Ct. 2828 (June 22, 2009), to
resolve a circuit split over Congress' authority to enact section
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4248, and so will likely resolve a portion of Carta's
constitutional claims.4
Because Carta is being held in custody after his now-
expired sentence, this court concluded that the appeal should be
expedited because affirmance of the district court ruling would
have expedited his release. Given our disagreement with the
district court's ruling, we turn to the constitutional issues
which, if disposed of in Carta's favor, would provide an
alternative ground for his release. In considering Carta's
constitutional claims a de novo standard of review applies. United
States v. Rene E., 583 F.3d 8, 11 (1st Cir. 2009), cert. denied,
2010 WL 58720 (Jan. 11, 2010).
In United States v. Volungus, No. 09-1596, 2010 WL 46968,
(1st Cir. Jan. 8, 2010), we recently rejected the claim that
section 4248 exceeded Congress' power under the Commerce Clause,
finding that the constitutional power that supports the creation of
a federal crime extends, under the Necessary and Proper Clause, to
safeguarding the public against the release of an individual shown
by clear and convincing evidence to remain a significant danger to
the public. Id. at *1, 4-9. On this issue, Carta's brief relied
4
The Fourth Circuit in Comstock held that section 4248
exceeded Congress' authority and so was unconstitutional. 551 F.3d
at 276. The Eighth Circuit also ruled on this issue but came out
the other way, finding that the statute was within Congress' power.
United States v. Tom, 565 F.3d 497, 508 (8th Cir. 2009), petition
for cert. filed Aug. 6, 2009.
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solely on Volungus' briefing and the Volungus decision is
dispositive.
Carta's due process arguments are that the Constitution
demands that section 4248 commitment proceedings require a jury
trial, proof beyond a reasonable doubt, and additional prior notice
and prompt hearing requirements. But section 4248 imposes civil
commitment--Carta does not argue otherwise--and Addington v. Texas,
441 U.S. 418, 427-33 (1979), ruled that proof of future
dangerousness in a civil commitment proceeding requires only clear
and convincing evidence. In re Winship, 397 U.S. 358, 368 (1970),
applied a reasonable doubt requirement in a civil proceeding
incarcerating a juvenile for delinquency, which the Court deemed
essentially criminal; but Addington held that civil commitment can
"in no sense be equated to a criminal prosecution," 441 U.S. at
428.
It has been argued (we need not decide the issue) that at
least the criminal standard of proof should be used under section
4248 to show the required past act of sexual violence or child
molestation where it is not embodied in a prior conviction. United
States v. Shields, 522 F. Supp. 2d 317, 331-32 (D. Mass. 2007).
But in this case Carta conceded prior acts of child molestation.
Even if in other cases a higher standard were required, it could be
read into the statute or unconstitutional applications enjoined so
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that facial invalidation would be unwarranted. See Ayotte v.
Planned Parenthood of N. New Eng., 546 U.S. 320, 328-29 (2006).
On Carta's jury trial claim, the Supreme Court declined
to require a jury in juvenile delinquency proceedings, McKeiver v.
Pa., 403 U.S. 528, 547 (1971), and the claim to a jury trial right
in civil commitments has been rejected under not only the Due
Process Clause, United States v. Sahhar, 917 F.2d 1197, 1206-07
(9th Cir. 1990), cert. denied, 499 U.S. 963 (1991), but also the
Sixth and Seventh Amendments, see e.g., Hernandez-Carrera v.
Carlson, 547 F.3d 1237, 1256 (10th Cir. 2008), cert. denied, 2009
WL 1982389 (Dec. 14, 2009); Poole v. Goodno, 335 F.3d 705, 710-11
(8th Cir. 2003). Carta cites virtually no law to the contrary.
Three other due process claims are made. One is that the
key components of section 4248--"serious difficulty in refraining
from sexually violent conduct" resulting from a "serious mental
illness, abnormality, or disorder"--are too vague to comport with
due process. But the criminal law itself is filled with equally
imprecise terms (including fraud, insanity and defenses such as
entrapment and duress). These terms are sufficiently explicit to
give notice and prevent arbitrary enforcement, and the present
statute also passes muster. See Peterson v. Gaughan, 404 F.2d
1375, 1377 (1st Cir. 1968) (upholding similar state statute).
The second claim is based on the failure of section 4248
to specify that a prompt hearing is required and perhaps--whether
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this is requisite is more debatable--to impose some prompt
preliminary screening by a neutral magistrate before a substantial
period of detention occurs after the sentence has expired. We
cannot say that violations are so likely as to meet the high
standard needed to facially invalidate the statute, McCullen v.
Coakley, 571 F.3d 167, 174 (1st Cir. 2009), and in any event those
defects could be remedied by interpolating requirements and
remedies where the individual's hearing has been inordinately
delayed, see Ayotte, 546 U.S. at 328-29; see also Shields, 522 F.
Supp. 2d at 336-37. Carta has now had his hearing, did not bring
an as-applied challenge against the timing of his hearings and does
not on appeal claim prejudice in his ability to present his case.
This does not excuse what may be a pattern in which the
government certifies prisoners as sexually dangerous mere days
before their scheduled release, thereby guaranteeing that they will
be held for an extended period beyond that date even if there is
little basis for the charge. Any such practice is a result of
improper administration, not statutory command. The government
deserves fair warning and a modest additional period to frame the
necessary regulations limiting the period of detention without a
hearing; after that, it is likely to find courts imposing remedies.
Carta's third claim is that section 4248 does not provide
adequate notice of the proposed basis of commitment. Section 4248
requires a responsible government official to provide a certificate
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that the target is a "sexually dangerous person" to both the
district court and the target. 18 U.S.C. § 4248(a). The
certificate in Carta's case described some of Carta's past acts of
child molestation, listed his mental diagnoses and summarized the
bases for thinking that he would be dangerous in the future; Carta
fails to explain why such a notice is constitutionally inadequate.
Carta's equal protection argument is that section 4248
fails rational basis review because the class of individuals
potentially affected by the statute--namely, all federal prisoners-
-does not bear a rational relationship to the government purpose of
incapacitating "sexually dangerous" individuals. The equal
protection argument builds on Baxstrom v. Herald, 383 U.S. 107(1966), where the Supreme Court disallowed a state commitment
statute that made it easier to commit based on mental illness those
already in prison than counterpart state residents not so
imprisoned. Id. at 110-11.
But a state, unlike Congress, has a general police
power, whereas the federal government's interest and responsibility
here stem from the fact that it already has custody of the
prisoner. Volungus, 2010 WL 46968, at *6-7. There is no
corresponding group of unimprisoned persons subject to its police
power, so with respect to the operation of section 4248, federal
prisoners and unimprisoned persons are not similarly situated. See
Plyler v. Doe, 457 U.S. 202, 216 (1982). Thus, far from being
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irrational, it is inevitable that the federal government limits the
reach of section 4248 to individuals already in its custody.
We uphold the district court's determination that the
statute is not facially unconstitutional, conclude that the
district court erred in holding that the government failed to
establish that Carta met the mental condition element and remand
for it to consider whether the requisite dangerousness exists.
It is so ordered.
--Concurring Opinion Follows--
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LAPLANTE, District Judge, concurring. As explained in my
recent dissent in United States v. Volungus, No. 09-1596, 2010 WL
46968, at *9 (1st Cir. Jan. 8, 2010), I have serious concerns about
whether the Walsh Act is necessary and proper to the exercise of
Congress’s enumerated powers. Since the Supreme Court has already
heard oral argument in a case that raises that very issue, see
United States v. Comstock, 551 F.3d 274 (4th Cir. 2009), cert.
granted, 129 S. Ct. 2828 (2009), I would prefer to wait for the
Supreme Court’s ruling rather than remand this case now and create
potentially unnecessary work for the district court. Carta will
remain in federal custody either way, at least in the short term.
Notwithstanding this preference, I concur fully in the
majority opinion because I recognize that Volungus, which upheld
the Walsh Act as a valid exercise of Congress’s authority, is now
the established law of this circuit.
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