Ninth Circuit Blog: Case o' The Week: Seeing Hulen Rouge - Self-incrimination and Supervised Release Violations

Tell clients to be forthcoming with their treatment providers, while on supervised release.

(They'll feel good about themselves while serving their revocation sentences).

United States v. Hulen, 2018 WL 343759 (9thCir. Jan. 10, 2018), decision available here.

Players: Decision by Judge Clifton, joined by Judges Wardlaw and Owens. Hard-fought appeal by AFPDs David Merchant and Josyln Hunt, Federal Defenders of Montana.

Facts: Hulen was on supervised release for failure to register as a sex offender. Id. at *1. Hulen admitted to his treatment provider that “he was not doing all he could do to progress in treatment.” Id.

The provider told Hulen to write down his transgressions, then promptly shot Hulen’s list to the Probation Officer. Id. The P.O. filed a Form 12. Id.

[NB: Hulen did not admit to new crimes in his list].

Hulen conceded violations in the district court, was revoked, and sentenced to six months custody. Id. at *2.

Issue(s): “Hulen argues that the use of his statements against him in the revocation proceeding by the district court violated his right against self-incrimination under the Fifth Amendment.” Id. at *1.

Held: “We hold that the district court did not violate Hulen’s right against self-incrimination because that right extends only to prohibit the use of an admission in a criminal case. A proceeding to revoke supervised release is not a criminal case for purposes of the Fifth Amendment right against self-incrimination. Accordingly, we affirm the decision of the district court.” Id. at *1.

“A revocation proceeding is not a new criminal proceeding, but is instead part of the “matrix of punishment” arising out of the original crime . . . . Thus, the full panoply of rights due a defendant in a criminal proceeding does not apply to revocations. . . . Revocation deprives a probationer only of the conditional liberty properly dependent on observance of special restrictions. . . . . The Fifth Amendment does not provide a right to avoid the consequences of violating those special restrictions. Accordingly, a revocation proceeding is not a criminal case for purposes of the Fifth Amendment right against self-incrimination.” Id. at *4 (citations omitted).

Of Note: In Hulen, the Ninth recites the constrained constitutional rights afforded in violation proceedings, then extends these crabbed approaches to the Fifth Amendment. See, e.g., id. at *3 (“We held that the Sixth Amendment right of confrontation does not extend to revocations in United States v. Hall, 419 F.3d 980, 985–86 (9th Cir. 2005)).

Yet in UnitedStates v. Avila, the Ninth just reversed a revocation when a defendant wasn’t afforded confrontation in a contested hearing. No. 17-100065, (Ninth Cir. Nov. 17, 2017) (mem.) (“Under Morrisey v. Brewer, 408 U.S. 471 (1972), every release is guaranteed the right to confront and cross-examine adverse witnesses at a revocation hearing, unless the government shows good cause for not producing the witnesses.”) (citation and quotations omitted).

What gives, with Hulen and Avila?

A learned colleague flagged a difference as the origins of the Confrontation Clause right: Hulen is discussing Sixth Amendment Confrontation, and Avila, the due process confrontation right.

The nutshell? Hulen’s primer on S/R misery is a little more nuanced than at first it may first appear.

How to Use: There is a difference, the Ninth assures us, between conduct leading to a new criminal charge, and a violation of the supervised release “matrix of punishment.” That difference probably eludes Hulen, as he sits in his jail cell.

Note, however, also the major caveat in Hulen (needed to try to distinguish a long string of contrary Ninth decisions on self-incrimination for supervised release violations): if the conduct involves (or potentially involves) a new crime, the Fifth’s protections against self-incrimination (may) kick in. As Judge Clifton (sort of) concedes, “If an effort had been made to charge and convict Hulen for a new crime based on his admissions, he would presumably be able to claim the benefit of the Fifth Amendment.” Id. at *4.

For Further Reading: President Trump has placed three of the four U.S. Attorneys in California. They’ll hang onto their interim gigs if re-upped by the district courts, until they are ultimately confirmed by the Senate (likely outcomes, for these three experienced appointees).
The odd one out? N.D. Cal.