Case o' The Week: Ninth Finds Bahr to Use of Incriminatary Statements from Supervision at Later Sentencing - Bahr, Sex Offender Treatment, and Supervised Release

Hon. Alfred T. Goodwin

  If our client is snagged by a cop, strapped into a polygraph, and told he’ll go to jail if he doesn’t confess all his crimes, that’s called a Fifth Amendment violation.

  If the same client is on supervised release, strapped into the same polygraph, and threatened with jail if he doesn’t confess his crimes, that’s called “sex offender treatment.”

  See the difference between the two? Neither, thankfully, does Judge Goodwin. United States v. Bahr, 2013 WL 5067083 (9th Cir. Sept. 16, 2013), decision available here.

Players: Decision by J. Goodwin, joined by Judges Reinhardt and Hurwitz. Big win for D. Or. AFPD Thomas Hester.

Facts: In 2003 Bahr was convicted of third degree rape in state court. Id. at *1. While on supervision he was required to take a “full disclosure” polygraph as part of his sex offender treatment. Id. During that polygraph, he revealed sexual contact with minors – both when he was a minor, and as an adult. Id. He also revealed in a sex offender “workbook” that he had sexually abused 18 children. Id. Bahr was later convicted in federal court of possession of child pornography, and sentenced to 240 months. Id. Over defense objection, the federal PSR included the admissions from the sex offender treatment, made during the prior supervision period.

Issue(s): “In order to establish a [Fifth Amendment] violation, a person must show ‘(1) that the testimony desired by the government carried the risk of incrimination . . . . and (2) that the penalty he suffered amounted to compulsion.” Id. at *1.

Held: “We make clear now that the use of unconstitutionally compelled statements to determine a sentence in a later, unrelated criminal proceeding is unconstitutional.” Id. “When the government conditions continued supervised release on compliance with a treatment program requiring full disclosure of past sexual misconduct, with no provision of immunity for disclosed conduct, it unconstitutionally compels self-incrimination.” Id. “At bottom, Bahr faced revocation of his supervised release for a failure to successfully complete treatment, and he received no assurance that his admissions during treatment would not be used to prosecute him. The government therefore compelled Bahr’s treatment disclosures in violation of the Fifth Amendment, and the district court should not have considered the information.” Id. at *3.

Of Note: Like a lamb to slaughter, Bahr fully complied with the orders that he incriminate himself during sex offender treatment and bleated nary an objection. By not asserting the Fifth while strapped into the polygraph, did he waive his objection? In his thoughtful opinion, Judge Goodwin explains, “no.” 

   “Although Bahr did not assert his Fifth Amendment right against self-incrimination at the time of the disclosures, that right is self-executing where its assertion is penalized so as to foreclose a free choice . . . When the government conditions continued supervised release on compliance with a treatment program requiring full disclosure of past sexual misconduct, with no provision of immunity for disclosed conduct, it unconstitutionally compels self-incrimination.” Id. at *1 (quotations and citations omitted). 

   Reassuring protection for our clients who are pushed into incrimination during sex offender treatment on supervised release, with inadequate warnings that their candor is the rope that will form a later noose.

How to Use: Will Bahr finally restore some honesty to sex offender treatment? We’re assured that our clients’ candid admissions during supervised release are only intended for “treatment” – yet despite this reported interest in treatment alone, Probation and the USAO flatly refuse to give immunity for statements made during the sessions. Judge Goodwin calls it like it is: “Bahr was required to give full disclosure without a guarantee of immunity, and with specific acknowledgement from his parole officer that crimes would be reported to the district attorney and could be prosecuted.” Id. at *2. After Bahr, Probation and the USAO should agree to written immunity agreements if they’re keen on extracting confessions during sex offender treatment.

                                               

For Further Reading: The federal government is likely to shut down on October 1. The Director of the Administrative Office, the Hon. John Bates, has provided a detailed memorandum on the ramifications for Federal Defenders and CJA counsel. The entire memorandum has now been posted online: it is available at http://legaltimes.typepad.com/files/shutdown.pdf

Image of the Honorable Judge Alfred T. Goodwin from http://law.uoregon.edu/giving/goodwin-fund/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Maciel v. Cate, No. 11-56620 (9-25-13) (Nguyen with Benavides and Bybee).

The 9th examines whether an imposition of a sex offender registration requirement was in violation of Wampler, an old Supreme Court case that limits additional discretionary punishment; it is the judgment that controls. The sentencing judge in this case imposed a sentence, but did not impose any registration requirement. Nonetheless, here though, under AEDPA, the 9th holds that registration could be found to be imposed by law and not discretionary.

Graves v. McEwen, No. 10-17203 (9-24-13)(Hurwitz with Graber and Bea).

Lets get rid of the suspense up front: the petitioner loses. But how he loses his hopeless appeal is important in a sixth amendment Anders context. Does a lawyer, representing a petitioner in a 2254 with a COA, but finding no colorable or meritorious issues, withdraw through an Anders motion and brief; or does counsel just file a motion to withdraw? The state wanted the latter: just file a motion. Its argument was that Anders protects the constitutional requirement of counsel; but in a habeas appeal, there is no constitutional right to counsel. The 9th declined the state's constitutional argument, because the 9th held the circuit rule controls. The circuit rule, 9th Cir. R. 4-1(c)(6), requires an Anders brief. Surprisingly, circuits have split and there is also inconsistent approaches in memorandum decisions in the 9th. The panel however relies on the circuit rule, finding it covers direct appeals and also habeas appeals. There are good policy reasons moreover to ensure that counsel briefs the issues, especially when there is a COA. Here, the district court issued a COA for five issues. Counsel did an Anders brief on all of them, plus two non COA issues. The 9th agrees that there was no colorable issues, permits the Anders brief, affirms the conviction, and grants the motion to withdraw.

Smith v. Lopez, No. 12-55860 (9-23-13)(Thomas with Hurwitz and Beistline, Chief DJ AK).

The 9th affirmed the granting of habeas relief. In a murder prosecution, the prosecutor presented the case as if the petitioner was the actual murderer of his wife. The case was defended on that basis, with the petitioner arguing that he was physically incapable of committing the bludgeoning death, and that his employee had motive and opportunity. The prosecutor asked for and got an aiding and abetting instruction at the last moment, and argued that someone else could have done it. The 9th found that the petitioner did not have notice of the aiding and abetting charge, and his right to notice was violated.

US v. Elk Shoulder, No. 10-30072 (9-23-13)(Ikuta with Tashima and Bea).

Denying constitutional challenges to SORNA, the 9th affirms the defendant's conviction. The 9th rejects an ex post facto challenge as foreclosed under US v. Elkins, 683 F.3d 1039 (9th Cir. 2012). Elkins also foreclosed the due process challenge to SORNA's registering requirement, or at least the inability to register. The 9th reasoned that the defendant had recent notice of his obligation to register under state law. Following US v. Kebodeaux, 133 S.Ct 2496 (2013), the 9th rejected the challenge to congressional authority to enact the statute through the Property, Necessary and Proper clause.

Case o' The Week: Ninth Dulls Jx Hook, No Mens Rea for Child Porn Interstate Commerce - Sheldon

Hon. Judge Richard Clifton

Another ding further dulls the point of the jurisdictional hook, in a decision on the interstate commerce element for the receipt of child porn. United States v. Sheldon, 2013 WL 5273101 (9th Cir. Sept. 19, 2013) decision available here.

Players: Decision by Judge Clifton, joined by Judges Hawkins and McKeown. Hard-fought appeal by Montana AFPD David Ness.

Facts: Sheldon lived with members of his family in Montana. Id. at *1. He was told to move out after he inappropriately touched a minor child. Id. “Shortly thereafter, the minor child’s video recorder was found to contain several videos of children naked, showering,” and other sexually-related conduct. Id. He was charged with sexual exploitation of a child, and knowingly receiving child pornography. Id. At trial, two female minor children testified that Sheldon showed them pornography on the internet and asked them to video themselves without clothing. Id. The defendant was convicted and sentenced to 480 months. Id.

Issue(s): Sheldon’s “primary argument . . . is that under 18 U.S.C. § 2251(a), the Government was required to prove that he knew the materials used to produce the child pornography had traveled in interstate commerce.” Id.

Held: “We agree with the other circuit courts that have previously considered this issue. Both the Fifth and Eleventh Circuits have held that § 2251(a) does not require knowledge as to the interstate nature of the crime. . . . We conclude that this interpretation of the statute is correct. To satisfy the jurisdictional element of § 2251(a) in this case, then, the Government was only required to prove beyond a reasonable doubt that the child pornography was produced with materials that had traveled in interstate commerce. The Government elicited testimony at trial that the recorder used to produce the videos in Montana was manufactured in China. This evidence was sufficient to satisfy the jurisdictional element of § 2251(a) under the correct interpretation of the statute.” Id. at *2-*3.  

Of Note: The tough task of defending child porn cases got even tougher this week, with this decision in Sheldon and with a decision on electronic searches, United States v. Schesso, 2013 WL 5227071 (9th Cir. Sept. 18, 2013). In Schesso, Judge McKeown explores the intersection between the Ninth’s decisions in Comprehensive Drug Testing (en banc) (“CDT III”) and Cotterman (en banc). Recall that in CDT III Chief Judge Kozinski urged excellent Fourth Amendment search protocols, but those protocols were, sadly, only advisory. In Schesso, Judge McKeown finds the failure to comply with the CDT III protocols aren’t fatal to the search that revealed child porn. Id. at *8. While a disappointing outcome, Schesso is a well-written opinion that grapples with the new frontier of electronic searches – it is worth a close read.

How to Use: Like the interstate commerce element in Section 922(g)(1) cases (felon in possession), or the FDIC insurance requirement in bank robbery trials, 18 U.S.C. § 2113(a), the jurisdictional “hook” in child porn prosecutions has been methodically dulled by years of appellate decisions. See, e.g., United States v. McCalla, 545 F.3d 750, 756 (9th Cir. 2008) (rejecting Commerce Clause challenge to intrastate production of child pornography even where there is no evidence that it was created for commercial purposes). Even a dull hook, however, can sometimes land a fish. It is easy for an AUSA to overlook proof of an obvious element – and the failure to prove a jurisdictional element is fatal to the conviction. See United States v. James, 987 F.2d 648, 651 (9th Cir. 1993) (reversing bank robbery conviction from the ND Cal when the government forgot to introduce a stipulation of FDIC insurance, and observing “The defense has no obligation to remind the government of its obligation to prove each element of a crime.”)

                                               

For Further Reading: A new American Bar Association resolution opposes plea or sentencing agreements that waive a defendant’s post-conviction claims of IAC, prosecutorial misconduct or destruction of evidence. See resolution description here. 

    This follows recent Florida Bar Ethical Opinion 12-1, which finds an unwaivable conflict of interest when defense counsel advises a client about these plea waivers. See Ethical opinion here. 

   The A.B.A. has written to AG Holder urging that these waivers be removed from agreements. See ABA Letter here. 

    Time for a close look at these broad waiver provisions in the “stock” ND Cal plea agreements.

Image of the Honorable Richard Clifton from https://www.law.hawaii.edu/sites/www.law.hawaii.edu/files/people/17376/Clifton_Richard.jpg

Hook image from http://killzoneauthors.blogspot.com/2012/04/hook-your-book.html#.Uj8EIj_Yhhk

Steven Kalar, Federal Public Defender ND Cal. Website at www.ndcalfpd.org

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