July 16, 2012 4th Circuit published opinion

United States v Francis

Francis was convicted of dozens of counts of making harassing phone calls where he called women and made sexual or sexually violent comments to them. After his most recent supervised release was revoked, he was certified as a sexually violent person and his commitment to a secured treatment facility was sought by the Attorney General. The trail court found the government failed to prove its case by clear and convincing evidence and ordered Francis released. The government appealed and the panel affirmed. It held the district court did not err when it assumed that Francis’ prior convictions satisfied the violent crime element. It held that despite a lack of specific finding, the district court’s statement that a “question” remained about whether Francis still suffers from a sexual paraphillia involving harassing phone calls demonstrated that the government failed to meet its burden. The panel finally held that the district court properly concluded that Francis could control his impulses relying on a seven or eight year pattern of control and the opinions of defense experts.

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