United States v. Von Behren
| Citation | 822 F.3d 1139 |
| Decision Date | 10 May 2016 |
| Docket Number | No. 15–1033.,15–1033. |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Brian VON BEHREN, Defendant–Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
822 F.3d 1139
UNITED STATES of America, Plaintiff–Appellee
v.
Brian VON BEHREN, Defendant–Appellant.
No. 15–1033.
United States Court of Appeals, Tenth Circuit.
May 10, 2016.
John T. Carlson, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, CO, for Defendant–Appellant.
J. Bishop Grewell, Assistant U.S. Attorney (John F. Walsh, United States Attorney), Denver, CO, for Plaintiff–Appellee.
Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.
SEYMOUR, Circuit Judge.
Brian Von Behren is serving a three-year term of supervised release stemming from a 2005 conviction for distribution of child pornography. One of the conditions of his supervised release was modified to require that he successfully complete a sex offender treatment program, including a sexual history polygraph requiring him to answer four questions regarding whether he had committed sexual crimes for which he was never charged. The treatment program required him to sign an agreement instructing the treatment provider to report any discovered sexual crimes to appropriate authorities. Mr. Von Behren contended that the polygraph condition violates his Fifth Amendment privilege against self-incrimination. The district court disagreed and held that the polygraph exam questions do not pose a danger of incrimination in the constitutional sense. Mr. Von Behren refused to answer the sexual history questions, thereby requiring the treatment provider to expel him from the program and subjecting him to potential revocation of his supervised release for violating the condition of supervision. The district court denied Mr. Von Behren's request to stay further proceedings pending appeal, but this court granted a stay. We reverse on the Fifth Amendment issue.1
I
BACKGROUND
In March 2005, Mr. Von Behren was sentenced to 121 months in prison and three years of supervised release for receipt and distribution of child pornography. In March 2014, as he neared release, the probation office petitioned to modify his release conditions. The petition requested several new and revised conditions,
among which was a requirement that Mr. Von Behren not only participate in but also successfully complete an approved sex offender treatment program. These new conditions were necessary for Mr. Von Behren to be accepted into a program that complied with standards mandated by the Colorado Sex Offender Management Board (SOMB).
Created in 1992, SOMB is a regulatory board tasked with developing and implementing statewide standards for the assessment, evaluation, treatment, and behavioral monitoring of adult sex offenders. See Colo.Rev.Stat. § 16–11.7–103(1), (4). Compliance with SOMB standards is imperative to the continued operation of Colorado sexual treatment providers. See Colo.Rev.Stat. § 16–11.7–106(1) (neither a state agency nor judicial department may contract with any non-certified treatment provider to provide sex offender treatment). One such standard is that each treatment program must conduct sexual history polygraphs. SOMB Guidelines § 6.120. Failure to comply with SOMB standards can lead to removal from the state's list of approved providers. Id. § 8.010; Colo.Rev.Stat. § 16–11.7–106(7)(b)(I). Treatment providers thus have a large incentive to ensure that every patient they treat complies with SOMB requirements. As a result, certified providers will not accept an offender or allow the offender to continue in treatment if the offender refuses to undergo the sexual history polygraphs required by SOMB.
Mr. Von Behren was assigned to a SOMB certified treatment provider named RSA, which stands for Redirecting Sexual Aggression. Due to SOMB Guidelines requiring a written contract between the treatment provider and the sex offender, SOMB Guidelines §§ 3.310, 3.410, RSA presented Mr. Von Behren with a non-negotiable treatment agreement. The agreement required Mr. Von Behren to complete a non-deceptive sexual history polygraph in order to advance through the program. Failure to complete the sexual history polygraph would result in removal from the program. Moreover, the agreement contained the following provision concerning information gained by RSA regarding any crimes committed by Mr. Von Behren:
I hereby instruct RSA, Inc. to report to any appropriate authority or authorities any occurrence or potential occurrence of any sexual offense on my part regardless of how RSA, Inc. gains knowledge of such occurrence or potential occurrence. “Appropriate authority or authorities” as used in this and subsequent revisions may include, but is not limited to, County Human Services Departments, law enforcement agencies, probation or parole personnel, victims or potential victims, parents, spouses, school personnel, and employers.
Rec., vol. 1 at 174 (emphasis added).
Mr. Von Behren objected to probation's supervised release modifications, claiming, among other things, that the requirement to complete a sexual history polygraph violated his Fifth Amendment right against self-incrimination. In its first order, on August 26, 2014, the district court addressed the RSA contract and held that because successful completion of sex offender treatment was a new condition of Mr. Von Behren's supervised release, and because compliance with the terms of the RSA agreement was required for participation in and successful completion of the RSA program, the requirements of the RSA agreement were, in effect, conditions of Mr. Von Behren's supervised release. The court ultimately sustained Mr. Von Behren's objection on the basis of the Fifth Amendment. Without knowing the exact questions Mr. Von Behren would be asked, the court modified Mr. Von Behren's
release conditions to exclude any requirement that he admit to a criminal offense other than his offense of conviction.
A few months later, despite the district court's pronouncement, RSA informed Mr. Von Behren that he would need to submit to a sexual history polygraph or leave the program. RSA told Mr. Von Behren that the polygraph examination would include four mandatory questions:
1. After the age of 18, did you engage in sexual activity with anyone under the age of 15?
2. Have you had sexual contact with a family member or relative?
3. Have you ever physically forced or threatened anyone to engage in sexual contact with you?
4. Have you ever had sexual contact with someone who was physically asleep or unconscious?
Id. at 172. An affirmative answer to any one of the questions would trigger a mandatory follow-up question asking “how many” times? Id. at 172–73. Among these four questions, Mr. Von Behren would be permitted to refuse to answer one.
Due to RSA's apparent violation of the district court's initial order, Mr. Von Behren, on December 23, 2014, filed an emergency motion to block the exam. On January 27, 2015, upon seeing the particular questions that RSA would ask, the district court reconsidered its earlier decision, denied Mr. Von Behren's motion, and ordered him to complete RSA's sexual history polygraph. The court held that the mandatory questions “d[id] not present a real and appreciable risk of incrimination to Mr. Von Behren.” Id. at 179. Specifically, the court noted that Mr. Von Behren's answers would not “specify the time, the place, the identity of any victim, or other people involved.” Id. at 180. The court did not address compulsion, reasoning that “[a]bsent a risk of incrimination, it [was] not necessary to consider the issue of compulsion.” Id. at 183.
Mr. Von Behren filed an immediate notice of appeal, as well as a written request asking the district court to stay its ruling. In the meantime, RSA informed Mr. Von Behren that his polygraph examination was scheduled for February 11. On February 4 in its response to Mr. Von Behren's motion for stay, the government stated that RSA would terminate Mr. Von Behren from treatment should he refuse to take the February 11 polygraph examination. Gov't Response to Stay, Dist. Ct. Doc. 104, at 6 n. 2. The government also declared its opposition to any scenario whereby Mr. Von Behren would be permitted to stay in the community without treatment, and asserted that it would seek remand to prison if Mr. Von Behren did not receive sex-offender specific treatment. Id. at 7.
The district court issued its order denying Mr. Von Behren's stay on the afternoon of February 10, less than twenty-four hours before the scheduled exam time. Just before midnight on February 10, Mr. Von Behren filed a motion with this court asking us to stay the district court's order pending direct appeal. The next day, while Mr. Von Behren was in the examiner's parking lot, we granted his emergency stay of the polygraph pending appeal.
II
THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF–INCRIMINATION
Mr. Von Behren contends the district court erred when it held that one of his conditions of supervised release, a sexual polygraph examination with four mandatory questions, did not violate the Fifth Amendment's privilege against self-incrimination. “Our review of matters of constitutional
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