Though the court vacated a man’s conviction for failing to update his sex offender registration, the determination that he is sexually dangerous — and the civil commitment stemming from that finding — does not have to be voided, a divided 4th U.S. Circuit Court of Appeals has ruled.

In its Jan. 12 opinion, the majority found that William Welsh is not entitled to relief because under the Adam Walsh Child Protection and Safety Act of 2006, the government can certify an individual as a sexually dangerous person if he is in the Bureau of Prisons, as Welsh was at the time.

“The [District] Court likened civil commitment of a sexually dangerous person to a situation where a prisoner is infected by a communicable disease,” Circuit Judge Albert Diaz wrote for the court. “In such a scenario, it would be necessary and proper for the government not to release that individual pursuant to its role as federal custodian.”

Welsh’s attorney, Jaclyn DiLauro of the Office of the Federal Public Defender in Raleigh, called the decision “haunting,” maintaining that her client was never in legal custody.

“We’re at 7 ½ years now. Convictions can be vacated based on procedural impropriety or some more technical elements, and this is not that,” DiLauro said. “This is a case where he is actually innocent — no crime was ever committed.”

Exonerated but incarcerated

In 2011, Welsh pleaded guilty in Oregon federal court to failing to comply with the Sex Offender Registration and Notification Act after admitting that he moved to Belize without updating his sex offender registration.

He was sentenced to nearly two years in federal prison and, while in custody, was certified as a sexually dangerous person and civilly committed under § 4248 of Title 18, enacted by the Walsh Act. He was sent to the Butner Federal Correctional Institution.

The conviction was later vacated after the U.S. Supreme Court found in a different case that at the time of Welsh’s alleged crime, SORNA did not require an offender to update his registration in his home state after moving to a foreign country. Nevertheless, Welsh remains inside Butner’s walls, committed indefinitely.

Welsh argued that his civil commitment was void under federal law because he was never in the legal custody of the Bureau of Prisons, and because his commitment was based on a conviction that had since been vacated.

Total body of work

In finding Welsh sexually dangerous, the court relied largely on multiple convictions over several decades for child molestation, sodomy, and sexual abuse, according to court documents. It also considered his “poor performance on supervision,” his “absconding” to Belize, and two experts who evaluated him and found that he met the criteria for civil commitment.

In 2017’s annual report, a forensic psychologist noted that Welsh suffers from mental illness, abnormality, or a disorder that would make it hard for him to refrain from child molestation of sexual violence if released from prison.

Incapacitation, not retribution

Welsh cited United States v. Joshua in his contention that he was not legally in federal custody when he was certified sexually dangerous, but the court held that because defendant Joshua, an Army officer and military prisoner, was housed with the BOP pursuant to an agreement with the Army, the cases are distinguishable from each other. Unlike Joshua, Welsh was serving a prison sentence pursuant to a court order committing him to BOP custody, placed there by statutory authority rather than “as a matter of convenience.”

“Thus, Welsh was in the Bureau’s legal custody at the time the government certified him as a sexually dangerous person, and the civil-commitment judgment is therefore not void,” Diaz wrote.

DiLauro believes that the court is conflating legal custody and physical custody.

“Reading page nine of the opinion … it says ‘…because the Bureau of Prisons is solely responsible for Welsh’s custody, care, subsistence, education…’ etc., that it does have legal custody,” DiLauro said. “In my understanding and reading of the cases, that’s physical custody.”

The court also disagreed with Welsh’s assertion that he was improperly denied relief under Rule 60(b)(5) and (b)(6) of the Federal Rules of Civil Procedure because there had been a change of conditions, and because his conviction had been vacated.

Diaz noted that Welsh’s burden of proving that the district court abused its discretion was a “heavy one.” He found that the district court recognized that Welsh no longer stood convicted of violating SORNA, but that it did not abuse its discretion when it ultimately held that the public had a “substantial countervailing interest” in Welsh’s continued commitment.

The district court, Diaz added, also found beyond Welsh’s conviction, clear and convincing evidence for his commitment. In fact, District Judge James Dever III wrote that the vacated conviction played a very minor role in the decision to commit Welsh.

While the defendant considers his civil commitment as a punishment for a crime, the court sees it not as a form of retribution, but a form of incapacitation.

“Welsh’s allegation of unfairness — that he shouldn’t be committed because he didn’t commit a crime — can be levied against any form of civil commitment,” Diaz wrote. “But of course the Adam Walsh Act expressly authorizes the civil commitment of individuals who were  never convicted of a crime.”

Decision ‘inequitable,’ ‘offensive’

Circuit Judge Stephanie Thacker disagreed with her colleagues, writing in her dissent that the district court abused its discretion by not affording relief based on the plain language of Rule 60(b)(5) and by improperly weighing the relevant considerations.

“Yet the majority affirms a district court order denying relief to an individual who has spent the last seven years in federal custody without a valid conviction,” Thacker wrote.

Vacating the civil commitment, Thacker opined, would not leave the government’s interest in protecting the public from danger because Welsh would still be subject to SORNA reporting requirements. In this country, she added, we detain for criminal conduct, not “mere propensity.”

“Detaining for propensity a citizen who never should have been in federal custody in the first place is not only inequitable, it is offensive to the most basic tenets of justice,” Thacker wrote.

DiLauro called the dissent “well-reasoned,” adding that her client plans to seek an en banc hearing before the 4th Circuit.

“We argued and maintain that he was never in the legal custody of the Bureau of Prisons, and that’s been recognized since with his vacated conviction,” DiLauro said. “We have someone who’s actually innocent, but has nevertheless been in prison for 7 ½ years now.”

The 22-page decision is U.S. v. Welsh (Lawyers Weekly No. 001-012-18). A digest of the opinion is available online at

Follow Heath Hamacher on Twitter @SCLWHamacher

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