Case o' The Week: If At First You Don't Succeed, Try, Try Again (if you're a P.O. or AUSA) - Post-prison modifications of supervised release

Sentencing is, of course, final. Absent changed conditions, there’s no going back after the jail sentence is done, to get a second bite of the apple and tinker with the terms of supervised release.

  Unless you are the government.

  Or Probation.

  Or both.

United States v. Bainbridge, 2014 WL 878832 (9th Cir. Mar. 6, 2014), decision available here.

Players: Decision by Judge Bea, joined by Justice (Ret.) O’Connor and Judge Tallman. Hard-fought appeal by D. W. Wa. & Idaho Ass’t Federal Defender Matthew Campbell.

Facts: After being convicted for Assault with Intent to Kidnap, Bainbridge was sentenced to 97 months of custody and three years of supervised release. Id. at *1. There were bad facts, involving the rape of a disabled woman in a motor home. Id. 

  Bainbridge served his term, and Probation then petitioned to modify his conditions of supervised release. Id. The government then filed a motion compelling Bainbridge to undergo a sexual deviancy evaluation, to determine whether Probation’s requested conditions were necessary. Id. The district court granted the government’s motion, over the defense objection that the court lacked jurisdiction to change conditions of supervised release absent a change of circumstances and that the changed conditions were unreasonable. Id.

Issue(s): “This case presents two questions: can a district court impose a sexual deviancy evaluation as a condition of supervised release when deviant sexual conduct was not an element of the underlying crime of conviction? If so, is it essential the Government prove a change in circumstances since the original supervised release conditions were imposed, to justify such an additional condition?” Id. at *1.

Held: “We hold that in the circumstances of this case, the sexual deviancy evaluation can be so imposed, without proof of a change in such circumstances.” Id.

Of Note: This is a disappointing and dangerous decision. On appeal, Bainbridge argued that Federal Rule of Criminal Procedure 32.1(c) did not provide the district with jurisdiction to modify the conditions of supervision absent changed circumstances. Id. at *3. NOTE that there was no violation alleged: the Probation office (and the government, riding the P.O.’s coattails), just thought that sexual deviancy evaluation (and forced psych counseling, and polygraph tests) would be a good idea. Id. at *2.

  Does this mean that the government and the Probation Office can forget to add conditions at sentencing, and get a second bite at the supervised release apple later – even with no violation or changed condition? Yep: while “it may be inefficient to omit important conditions and later, upon further reflection, petition the court to incorporate such conditions, the relevant statutes and rules do not prohibit such practice.” Id. at *5 (internal quotations and citation omitted).

How to Use: Does the “law of the case” doctrine prevent a district court from flip-flopping and adding conditions later after release from custody, when no circumstances have changed? 

  It didn’t here. Id. at *5 & n.8. 

  Note, however, that Judge Bea repeatedly notes that the sentencing court in Bainbridge didn’t impose these sex offender conditions at sentencing, but explicitly left it open at sentencing for the Probation Office to return and seek modifications at a later time if additional conditions are something that “needs to be addressed.” Id. “In such circumstances” the law of the case doctrine doesn’t preclude the new conditions – but worth litigating whether the doctrine would preclude these modifications if the sentencing court hadn’t left this door open.

                                               

For Further Reading: What do Senator Rand Paul (and reportedly half the Senate’s Republicans) and Attorney General Eric Holder have in common? They’re fed up with federal mandatory minimum sentencing laws and are itching for reform. For a great piece on an unexpected bipartisan alliance (with discussion of good legislation to come), see Matt Apuzzo, Holder and Republicans Unite to Soften Sentencing Laws, New York Times, Mar. 3, 2014, available here.

Image of “second bite of the apple” album cover from http://www.themusik.altervista.org/testi/second-bite-of-the-apple-dei-beady-eye/3006

Image of Attorney General Holder and Senator Rand Paul from http://www.thenation.com/sites/default/files/holder_paul_img.jpg

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

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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Case o' The Week: Hammer & Nail - Johnson and Sex Offender Conditions of Supervision

When all you’ve got is a hammer, the whole world looks like a nail.

Probation is getting resources for hammering sex-offender supervision (and our clients are getting nailed). United States v. Johnson, 2012 WL 5328597 (9th Cir. Oct. 30, 2012), decision available here.

Players: Decision by Judge Clifton. Hard-fought appeal litigated by C. Reneé Manes, AFPD D.Or.

Facts: In 1980, Johnson raped a woman at knifepoint and was sentenced to nine years. Id. at *1. In 1990, he raped a fourteen-year old girl at gunpoint and was sentenced to thirteen years. Id. 

  In March of 2010, Johnson had a gun; he was convicted of being a felon in possession and sentenced in May 2011. See Docket #23, 3:10-cr-240 MO (D. Or.). 

  Months later, Probation convinced the district court to issue a summons, bring the defendant back in, and face a new a special condition requiring that Johnson participate in a “sex offense assessment and treatment program.” Id. at Docket # 29. After briefing, the district court ordered that Johnson “submit to a sex offender assessment as directed by the probation officer.” Id.      

Issue(s): “This appeal presents the question of whether a district court may require a sexual offender assessment—not treatment, just an assessment—as a condition of supervised release when the defendant has two decades-old prior sexual offense convictions involving weapons, when the current offense also involves a weapon, and when the defendant's prior completion of sex offender treatment cannot be confirmed.” Johnson, 2012 WL 5328597, *1.

Held: “We conclude that it may require such an assessment and affirm the condition imposed in this case.” Id. at *1. “The district court did not abuse its discretion in ordering the sexual offender assessment condition. Johnson was twice convicted of serious and violent sexual offenses. In addition, Johnson's current offense involved possession of a gun, the same sort of weapon he used as a sexual offender. Johnson's history as a sexual offender, old as it may be, justified the district court's decision to order a sexual offender assessment. After the district court receives the results of the assessment, it will be better able to determine if additional conditions are necessary to protect the public and rehabilitate Johnson.” Id. at *2.

Of Note: The Ninth has held that twenty-year old and forty-one year old sex offenses were too stale to support supervised release conditions that included sex offender treatment and testing. Id. at *2 (quoting United States v. T.M., 330 F.3d 1235 (9th Cir. 2003)). How does the Ninth in Johnson distinguish T.M.? First, Johnson involved an assessment, and not sex offender treatment and testing. Id. In T.M., the defender had also demonstrated progress in sex offender treatment – here, there was no such record. Id. It bears emphasis that Johnson didn’t overrule T.M.: beware of rather narrow Johnson holding when battling these sex conditions on supervision.

How to Use: Why does Probation have sex on its mind? Long after sentencing, Probation Officers are now tromping back to court and seeking sex “assessment and treatment” conditions. These “assessments” involve polygraphs with questions about sex crimes, with no Miranda protections or immunity agreements. In a particular offensive gambit, Probation now pushes our clients to “voluntarily” sign these supervision modifications without alerting counsel. 

  Why the sex fixation? Maybe it’s the aftermath of the Phillip Garrido tragedy. Or maybe it is the resources and staffing that a Probation Office can snag if it supervises sex offenders. If a client has any sex offense in his past (even, apparently, one many decades old), warn them not to voluntarily sign new conditions of supervised release without speaking first to you.

                                               

For Further Reading: If you plead open to preserve an appeal, and the government denies you the third acceptance offense level, object!

   The Ninth is on the wrong side of a circuit split on this issue, and a compelling amicus brief from the Federal and Community Defenders and NACDL was filed last week supporting an en banc call. Poach freely from this beautiful brief for your sentencing objections – you can find it here.

Image of hammer and nail from https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjNtIZeg5ycskXt4nMzUAfqAdp2xkan4bWkETqg54ZEzpxLf4-i8Ig6swpExLgCrWt0qNC41UAoyf29yb5SpMlPUTv9n5-FA6zM9QsVHRn_4KOLOPPAkByJAYGb7a0SPQ3jr_h3/s1600/hammer-and-nail.jpg

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

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