United States Court of Appeals For the First Circuit
No. 18-2097
UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN K. ROGERS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Howard, Chief Judge, Thompson and Barron, Circuit Judges.
Robert C. Andrews for appellant. Benjamin M. Block, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.
February 19, 2021 HOWARD, Chief Judge. While on supervised release after
serving a term of incarceration for possession of child
pornography, Brian K. Rogers underwent two polygraph examinations
and admitted to accessing the internet to view pornography, thereby
violating a condition of his release. After ignoring his sex
offender treatment clinician's instruction to contact his
probation officer about the violation, Rogers was suspended from
the treatment program, thereby violating another condition of his
release. On those facts, the court revoked Rogers's supervised
release and sentenced him to six months of imprisonment and an
additional eight years of supervised release. On appeal, Rogers
argues that the revocation of his release violated his Fifth
Amendment privilege against self-incrimination and that his
suspension from treatment violated his right to due process under
the same. We affirm.
I.
In 2012, a jury convicted Rogers of one count of
possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B), (b)(2). Later that year, the district court
sentenced him to sixty months of imprisonment and eight years of
supervised release. As special conditions of his release, he was
required to "participate and comply with the requirements of the
Computer and Internet Monitoring Program" and to "fully
- 2 - participate in sex offender treatment as directed by the
supervising officer." Rogers was released in 2013.
In 2017, the court revoked Rogers's supervised release
after he admitted to violating the two aforementioned special
conditions. The court sentenced him to time served and an
additional eight years of supervised release, with the same two
special conditions as before. New for Rogers's second term of
supervised release, his conditions of release also included a
requirement that he "submit to periodic random polygraph
examinations as directed by the probation officer to assist in
treatment and/or case planning related to behaviors potentially
associated with sex offense conduct." The condition disclaimed
that "[n]o violation proceedings will arise solely on the
defendant's failure to pass a polygraph examination, or on the
defendant's refusal to answer polygraph questions based on 5th
amendment grounds," but it added that "[s]uch an event could,
however, generate a separate investigation."
Rogers participated in one such polygraph examination on
June 2, 2018. The examiner asked whether Rogers had "accessed or
viewed any X-rated pornography during the last sixteen months,"
and Rogers's negative response was determined to be deceptive.
The examiner also asked Rogers whether he had viewed pornography
featuring prepubescent minors, and Rogers's negative response to
this question was deemed inconclusive. In an interview after the
- 3 - polygraph examination, Rogers admitted that he had used his
roommate's cellular telephone to view pornography on one occasion.
A professional polygraph examiner performed a follow-up
polygraph examination of Rogers on August 27, 2018. The examiner
did not verbally tell Rogers that he had a right not to
participate, but Rogers signed a consent form that indicated that
Rogers "consent[ed] voluntarily" to the examination and understood
that he did "not have to take this examination . . . and [he could]
stop this examination at any time." As part of a preliminary
interview lasting over two hours, Rogers told the examiner that he
had used an undisclosed internet-enabled Nintendo 2DS video gaming
system to view pornography on a regular basis for a period of three
months. During the examination proper, the examiner asked Rogers
whether "[b]esides someone showing [him]," he "personally accessed
X-rated pornography since January 1st"; whether "[b]esides that
Nintendo," he "personally use[d] another secret Internet device to
view pornography in the past year"; and whether he "purposely
accessed prepubescent minors online since August 2017." Rogers
answered "No" to all three questions but was determined to have
failed the polygraph examination.
Rogers's probation officer was informed of his
confessions to the second examiner and of his having failed the
polygraph examination. The probation officer discussed how to
handle Rogers's confessions with Rogers's treating clinician on
- 4 - August 31, 2018. The confessions and polygraph failures compounded
Rogers's already poor performance in sex offender treatment,
throughout which he had neglected to share experiences when
directed to do so in group sessions, failed to complete assignments
in his workbook, reported thoughts about harming another
individual, and generally demonstrated a lack of motivation.
Rogers's probation officer and his clinician decided that the
clinician would discuss Rogers's confessions and polygraph, as
well as his overall performance in the treatment program, at his
next scheduled appointment on September 4, 2018.
At the appointment, the clinician observed that Rogers
"continued to be unmotivated and unwilling to accept
responsibility." The clinician directed Rogers to contact his
probation officer before Rogers's next treatment session on
September 11, 2018, in order to continue sex offender treatment.
Rogers failed to do so, and so, after discussion with the probation
officer, the clinician suspended Rogers from sex offender
treatment. The probation officer then contacted Rogers, and during
the resultant conversation, Rogers admitted to her that he had
used the Nintendo 2DS to view pornography and "said that he doesn't
trust treatment, he doesn't trust probation, and . . . he would
rather be in custody than on supervision." After that
conversation, the probation officer initiated the internal process
for filing a petition to revoke Rogers's supervised release.
- 5 - The probation officer testified that she had used the
information gained at Rogers's polygraph examination, as well as
the fact that he was suspended from sex offender treatment, to
justify filing a petition to revoke his supervised release. She
also acknowledged that she had no other evidence that Rogers had
used an unmonitored, internet-capable device outside of Rogers's
admissions in the interview conducted as part of the polygraph
examinations and in his subsequent conversation with the probation
officer. She stated, however, that she had additional evidence of
Rogers's failure to fully participate in his sex offender treatment
program, citing specifically Rogers's failure to reach out to her
when directed to do so by his clinician, as well as Rogers's
failure to complete certain assigned activities and avowed lack of
motivation to continue participating in treatment.
On November 1, 2018, after an evidentiary hearing, the
district court revoked Rogers's supervised release, sentencing him
to six months in prison and eight additional years of supervised
release. The court based its judgment on Rogers's violations of
the special conditions that he abide by the Computer and Internet
Monitoring Program and that he fully participate in the sex
offender treatment program.
- 6 - This timely appeal followed. We have jurisdiction under
28 U.S.C. § 1291.1
II.
We generally review a district court order revoking a
defendant's supervised release for abuse of discretion. See United
States v. Colón-Maldonado, 953 F.3d 1, 3 (1st Cir. 2020) (citing
United States v. Wright, 812 F.3d 27, 30 (1st Cir. 2016)). In
doing so, we review legal questions de novo and factual findings
for clear error. Id. at 3-4.
A.
Rogers's first of two principal contentions is that the
polygraph examination requirement and the examinations themselves
compelled him to make self-incriminating statements in violation
of the Fifth Amendment, and that the district court therefore erred
1 While the six months of imprisonment imposed by the district court upon its revocation of Rogers's supervised release has expired, Rogers's appeal is not moot because the district court also imposed a term of supervised release of eight years to which Rogers remains subject. See, e.g., United States v. Sostre- Cintrón, 911 F.3d 54, 58 (1st Cir. 2018) ("Notwithstanding the completion of [the defendant's] imprisonment term, these challenges are not moot because his period of supervised release continues."); United States v. Carter, 860 F.3d 39, 43 (1st Cir. 2017) (finding a defendant's sentencing challenge was not moot even though he had completed his prison sentence because he was still under supervised release and thus "has a real stake in challenging his sentence"). Furthermore, unlike in United States v. Suarez-Reyes, 910 F.3d 604 (1st Cir. 2018), where we found that the defendant's release from prison rendered his appeal moot, id. at 605-06, here Rogers requested a sentence that included a longer term of imprisonment with no term of supervised release, and the government has not argued that Rogers's appeal is moot.
- 7 - by relying on those statements in its decision to revoke his
supervised release. The government disputes Rogers's assertion
that the polygraph examination requirement and resultant
questioning compelled him to make the statements at issue. Because
we agree with the government, we do not address whether the
polygraph requirement or the questions posed to Rogers resulting
from his compliance with that requirement would have been
"reasonably expect[ed]" to elicit an incriminating response from
him, such that the Fifth Amendment privilege attached in the first
place. Minnesota v. Murphy, 465 U.S. 420, 428 (1984); see also
id. at 435 n.7 (noting that the privilege is unavailable where
"the questions put to a probationer . . . posed no realistic threat
of incrimination in a separate criminal proceeding"). We briefly
discuss the applicable law before turning to Rogers's argument.
1.
The Fifth Amendment provides in relevant part that "[n]o
person . . . shall be compelled in any criminal case to be a
witness against himself." U.S. Const. amend. V. As the Supreme
Court has explained, "the Fifth Amendment speaks of compulsion";
"[i]t does not preclude a witness from testifying voluntarily in
matters which may incriminate him." Murphy, 465 U.S. at 427
(quoting United States v. Monia, 317 U.S. 424, 427 (1943))
(internal quotations marks omitted) (alterations omitted). In
line with that interpretation, the Court has articulated a "general
- 8 - rule" that in order for testimony to be considered "compelled"
within the meaning of the Amendment, "the privilege must be claimed
when self-incrimination is threatened." Id. at 434. If a person
does not invoke it and chooses to speak, any resultant testimony
"will not be considered to have been 'compelled,'" id. at 427
(quoting Monia, 317 U.S. at 427), but rather "voluntary," id. at
429.
The Court in Murphy applied these principles in
addressing a probationer's challenge to the use of statements that
he made to a court-mandated counselor in a subsequent criminal
proceeding. It reasoned that in accordance with the general rule
that one's Fifth Amendment privilege must be invoked, a
probationer's "general obligation to appear and answer questions
truthfully" does not "in itself convert . . . otherwise voluntary
statements into compelled ones" unless that probationer both
"invokes the privilege and shows that he faces a realistic threat
of self-incrimination" but is nevertheless "required to answer."
Id. at 427. Absent such an invocation, the probationer must show
that he falls within one of the few recognized "exception[s]" to
the general rule that the privilege must be invoked in order for
resultant testimony to be considered "compelled." Id. at 429-40.
Of those exceptions, by virtue of which the privilege is
"self-executing," id. at 436, Rogers only relies on one.
Specifically, the "penalty" exception is triggered in situations
- 9 - where a person's very right to invoke his Fifth Amendment privilege
is penalized, such that he can be considered to have been deprived
of a "free choice" between testifying and remaining silent. Id.
at 434 (quoting Garner v. United States, 424 U.S. 648, 661 (1976)).
The Court recognized that one "classic penalty situation" is when
the government, "either expressly or by implication, asserts that
invocation of the privilege would lead to revocation of probation."
Id. at 435. In that situation, the exception would operate such
that any testimony elicited therefrom is "deemed compelled and
inadmissible in a criminal prosecution." Id.
The Court ultimately concluded that Murphy failed to
claim his Fifth Amendment privilege and did not fall within any of
the recognized exceptions. Id. at 429-40. In explaining why
Murphy could not avail himself of the "penalty" exception, the
Court distinguished Murphy's situation from that of the
petitioners in Garrity v. New Jersey, 385 U.S. 493 (1967), in which
the Court held that New Jersey violated the Fifth Amendment when
it threatened state employees who were subjects of an investigation
that they would lose their jobs if they invoked the privilege
against self-incrimination. Id. at 495-500. The Court found that
the choice "either to forfeit their jobs or to incriminate
themselves" was impermissibly "likely to exert such pressure upon
an individual as to disable him from making a free and rational
choice." Id. at 497 (second quoting Miranda v. Arizona, 384 U.S.
- 10 - 436, 464-65 (1966)). The Court in Murphy distinguished Garrity on
the basis that the latter's investigators had "expressly informed
[the state employees] . . . that an assertion of the privilege
would result in the imposition of a penalty," whereas the Court
found "no reasonable basis for concluding that Minnesota attempted
to attach an impermissible penalty to [Murphy's] exercise of the
privilege," or for Murphy to have believed "that his probation
would be revoked if he remained silent." Id. at 437-38.
Against this backdrop, in United States v. York, 357
F.3d 14 (1st Cir. 2004), we examined a defendant's challenge to a
supervised release condition that, like the one at issue here,
required him "to submit to periodic polygraph testing as a means
to insure that he [was] in compliance with the requirements of
his" mandatory sex offender treatment program. Id. at 18. We
recognized that York's Fifth Amendment challenge to the mandatory
polygraph examinations was a "potent" one, because the requirement
could have "implicate[d] [his] Fifth Amendment rights" if it were
construed to "flatly require[] York to submit to polygraph testing
as a condition of his supervised release, so that York's refusal
to answer any question -- even on valid Fifth Amendment grounds
-- could constitute a basis for revocation." Id. at 24. But we
found that the better reading of the condition -- in light of its
qualifier that "[w]hen submitting to a polygraph exam, the
defendant does not give up his Fifth Amendment rights," id. at 18
- 11 - -- was that it prevented a revocation of supervised release based
on his invocation of the privilege. Id. at 25.
Recently, in United States v. Hood, 920 F.3d 87 (1st
Cir. 2019), we applied York to uphold a special condition of
supervised release identical to the one imposed on Rogers here.
Id. at 93. Our holding rested on our understanding that the
qualifier attached to the condition -- that "[n]o violation
proceedings will arise solely on the defendant['s] failure to pass
a polygraph examination, or on the defendant's refusal to answer
polygraph questions based on 5th amendment grounds" -- prevented
the government from basing a revocation of supervised release in
any way (not just "solely") on the invocation of the privilege.
Id. at 93-94 (alterations in original). It is thus settled law in
this circuit that a court can impose mandatory periodic polygraph
examinations in connection with sex offender treatment programs as
a condition of supervised release, where the condition prohibits
basing any revocation in any way on the defendant's assertion of
his Fifth Amendment privilege. See also United States v. Brewster,
627 F. App'x 567, 570-71 (7th Cir. 2015) (collecting cases and
finding that "[e]very circuit to consider the issue has upheld the
imposition of polygraph testing as a condition of supervised
release").2
2 We recognize that Hood contemplated a potential challenge to the constitutionality of revoking supervised release based on
- 12 - 2.
In light of this applicable law, Rogers's options on
appeal are limited. This is largely because nothing in the record
indicates that he ever asserted or even attempted to assert his
Fifth Amendment privilege, and he does not now allege otherwise.
In consequence, he cannot make out a straightforward claim that
his Fifth Amendment privilege was violated because he invoked it
but nevertheless was compelled to give self-incriminating
testimony. Instead, Rogers offers two different contentions.
First, Rogers conclusorily asserts that "polygraph
examination in the context of sex offender treatment programs is
a form of compulsion so severe that it renders any statement made
during such an exam involuntary and inadmissible in any
proceeding," or put differently, that "statements made during a
polygraph examination are the result of compulsion and therefore
involuntary." This would be a significant departure from existing
doctrine. Indeed, Rogers seems to be asking us to recognize a new
exception to the general rule that the Fifth Amendment privilege
an investigation prompted by the invocation of the privilege during a mandatory polygraph examination. 920 F.3d at 94 n.3. The instant case does not require us to decide, and we do not decide, that issue. We note, however, that the invocation of the privilege does not by itself prevent the government from investigating or prosecuting the underlying conduct. See Kastigar v. United States, 406 U.S. 441, 453 (1972) ("The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted.").
- 13 - against self-incrimination is not self-executing. Specifically,
the thrust of the assertion is that the privilege should
automatically apply to protect anyone undergoing a polygraph
examination, on the ground that such examinations inherently will
elicit involuntary responses. Moreover, based on the facts of
this case, Rogers's conclusory argument means that any and all
responses to polygraph examination questions are "compelled," even
when an examinee explicitly agrees to undergo the examination and
actively participates in it after having been clearly informed
that his supervised release would not be revoked based on his
refusal to answer upon invoking his Fifth Amendment privilege.
Rogers does not offer any authority or developed
argument to support his view, so we might conclude that the claim
is waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990). But even if it isn't waived, we would reject it because it
is contradicted by our decision in York, where we found that
periodic polygraph examinations as a condition of supervised
release, where the condition makes clear that the supervised
releasee may invoke his Fifth Amendment privilege without penalty,
are no more compulsory than mandatory interviews with probation
officers in which the probationer is required to be truthful and
which the Supreme Court held to be lawful. 357 F.3d at 24-25
(citing Murphy, 465 U.S. at 426-28, 435 & n.7). Here, the special
condition at issue included the same "limiting language" that we
- 14 - found satisfied those criteria in Hood. 920 F.3d at 93-94. Only
subsequent controlling authority can upend that precedent. See
United States v. García-Cartagena, 953 F.3d 14, 27-28 (1st Cir.
2020). Rogers cites none.
The rule that perhaps most closely resembles the
exception that Rogers asks us to create is that which requires
"the exclusion of incriminating statements obtained during
custodial interrogation unless the suspect fails to claim the Fifth
Amendment privilege after being suitably warned of his right to
remain silent and of the consequences of his failure to assert
it." Murphy, 465 U.S. at 430 (citing Miranda, 384 U.S. at 467-
69). But the Supreme Court has repeatedly emphasized that this
"extraordinary safeguard 'does not apply outside the context of
the inherently coercive custodial interrogations for which it was
designed.'" Id. (quoting Roberts v. United States, 445 U.S. 552,
560 (1980)). The Court expressly rejected the expansion of the
exception to include probation interviews, finding any coercive
pressures that inhere in them, including the risk of revocation of
probation were the probationer to decide to terminate the
interview, to pale in comparison to those of custodial
interrogations. Id. at 430-34. We are not persuaded that
polygraph examinations of persons under supervision should be
treated differently.
- 15 - Thus, the only question that remains is whether a penalty
was attached to Rogers's potential invocation of the privilege.
That brings us to Rogers's second argument in support of his Fifth
Amendment claim. He asserts that he falls within the well-
established "penalty" exception to the general rule that the Fifth
Amendment privilege against self-incrimination is not self-
executing, because his supervised release was revoked at least in
part because of statements he made resulting from his compliance
with the mandatory polygraph examination requirement. Rogers says
that York is no barrier to his claim because in that case we
addressed a facial challenge to conditions of supervised release,
whereas here Rogers's release was actually revoked and therefore
he was actually penalized. On the facts of this case, however,
this amounts to a distinction without a difference.
The "penalty" exception only applies when the very
ability to invoke the Fifth Amendment privilege is penalized. The
cases that Rogers relies on are explicit on this point. Indeed,
Rogers asks us to "apply" Garrity, and he cites Justice Kennedy's
plurality opinion and Justice O'Connor's concurrence in McKune v.
Lile, 536 U.S. 24 (2002). But the plurality opinion in McKune
acknowledged that "the so-called penalty cases," including
Garrity, "involved free citizens given the choice between invoking
the Fifth Amendment privilege and sustaining their economic
livelihood." 536 U.S. at 40 (emphasis added). Justice O'Connor's
- 16 - concurrence similarly understood that line of cases to prohibit
"penalties levied in response to a person's refusal to incriminate
himself or herself" that were severe enough to have "compel[led]"
the incriminating statements. Id. at 49 (same). Moreover, as
earlier discussed, the Court in Murphy had previously
distinguished Garrity in particular on the ground that government
officials had "expressly informed [the state employees] . . . that
an assertion of the privilege would result in the imposition of a
penalty." Murphy, 465 U.S. at 438 (same). Here, as in Hood, the
polygraph condition's qualifier suffices to defeat any notion that
the condition itself threatened to penalize Rogers's assertion of
the privilege, and nothing in the record even suggests that anyone
threatened him in this way. See 920 F.3d at 93-94.
Accordingly, Rogers's Fifth Amendment privilege against
self-incrimination was not violated.
B.
Rogers also argues that his suspension from sex offender
treatment violated his Fifth Amendment right to due process,
because the suspension prevented him from continuing on supervised
release even though he was not afforded sufficient process to
contest the suspension.3
3 Rogers also contends that, as a matter of substantive due process, his revocation deprived him of the right to be free from termination of a sex offender treatment program on the basis of statements obtained through a polygraph examination. However, he
- 17 - Rogers bases his due process argument almost exclusively
on a single district court case from outside this circuit, Beebe
v. Heil, 333 F. Supp. 2d 1011 (D. Colo. 2004). There, the District
Court for the District of Colorado concluded that an inmate had a
cognizable liberty interest in participating in sex offender
treatment because his suspension from treatment would have
automatically rendered him ineligible for parole. Id. at 1016-
17. Thus, accepting for the sake of argument the premise that
Beebe's reasoning supports the conclusion that Rogers had a
cognizable liberty interest in participating in a sex offender
treatment program, that interest arose not from a right to
participate in sex offender treatment for its own sake, but from
the potential consequences of suspension: the revocation of his
supervised release.
But there is a material difference between Beebe's and
Rogers's respective circumstances. Beebe complained that he was
rendered ineligible for parole "without prior written notice of
the reason for his termination, without an opportunity to be heard
by a neutral factfinder, without an opportunity to present evidence
in his defense, and without an opportunity to present witnesses in
his defense." Id. at 1012-13. Here, by contrast, Rogers
makes no argument why the Due Process Clause would provide broader protection in this context than the Self Incrimination Clause does, and therefore our conclusion above that the Self Incrimination Clause is not implicated here precludes this argument.
- 18 - participated in a full evidentiary hearing between his suspension
from treatment and the revocation of his supervised release --
precisely the kind of process that Beebe had requested.
Accordingly, Rogers's Fifth Amendment right to due
process was not violated.
III.
The district court's order revoking Rogers's supervised
release is affirmed.
- 19 -