United States v. Lara
| Decision Date | 14 March 2017 |
| Docket Number | No. 15-4767,15-4767 |
| Citation | 850 F.3d 686 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Juan Elias LARA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Daniel Robert Bieger, DAN BIEGER, PLC, Bristol, Tennessee, for Appellant. Kevin Lee Jayne, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee. ON BRIEF: John P. Fishwick, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge Wilkinson and Judge Niemeyer joined.
In this appeal, we decide whether the district court erred in considering at a defendant's sentencing hearing certain admissions he made while participating in a Sex Offender Treatment Program (the treatment program), which he was ordered to complete as a condition of probation in a prior case. The defendant, Juan Lara, contends that the statements he made in an interview conducted as part of the treatment program are protected by the psychotherapist-patient privilege and the Fifth Amendment privilege against self-incrimination. The government disagrees, arguing that Lara knowingly and voluntarily waived any privilege by earlier consenting to the disclosure of any such statements to the Virginia Department of Corrections (VDOC).
Upon our review, we conclude that Lara affirmatively waived any psychotherapist-patient privilege when he agreed as part of his conditions of probation in the prior case to the disclosure of any statements he made in the treatment program. We also conclude that the Fifth Amendment privilege against self-incrimination did not apply to those statements, because Lara voluntarily made the statements while participating in the treatment program. Accordingly, we hold that the district court did not err in considering Lara's statements at sentencing, and we affirm the district court's judgment.
In February 2008, Lara was convicted in the Circuit Court of Grayson County, Virginia, for the aggravated sexual battery of a mentally incapacitated victim, in violation of Virginia Code Section 18.2-67.3(A)(2). For that offense, Lara received a sentence of 20 years' imprisonment, with 17 years suspended, and a term of 20 years' supervised probation to be served upon his release from confinement. Lara was released from custody in December 2009, and immediately began his term of supervised probation. The terms of his supervision included a requirement that Lara "[a]ttend and successfully complete a Sex Offender Treatment Program," permit the Treatment Program provider to have "unrestricted communication with the probation and parole department," and "submit to any polygraph ... deemed appropriate by [his] supervising officer." Before he was released from custody, Lara signed the form listing these conditions. Above his signature was the following language: "I have read the above ... and by my signature or mark below, acknowledge receipt of these Conditions and agree to the Conditions set forth."
Pursuant to these release conditions, Lara was referred to Flora Counseling Services Corporation, a sex offender treatment program provider. As part of the "intake" process, Rudy Flora, a licensed clinical social worker, conducted an interview with Lara in April 2010. During that interview, Lara disclosed details about his sexual history, including his sexual contact with minors and commission of forcible sexual assaults, as well as his involvement in two murders. A few weeks later, Lara confirmed these details in a polygraph examination, and signed a written statement describing the incriminating information he had provided. About three months later, in July 2010, Lara signed a form titled "Sex Offender Program Acknowledgement of Confidentiality Waiver" (waiver form), acknowledging that "whatever [Lara] tell[s] a therapist or group leader ... is not privileged or private," and that he agreed to "waive any and all such rights of confidentiality which may exist by statute or rule of law."1
Although Flora transmitted to VDOC Lara's admissions regarding the uncharged sexual crimes and murders, the record does not indicate that law enforcement officials took any action at that time based on this information. Lara successfully completed the treatment program without further incident, and continued on supervised probation thereafter.
Around March 2014, Lara moved from Virginia to Texas. In violation of his conditions of probation, Lara failed to notify his probation officer of the move or update his registration with the Sex Offender and Crimes Against Minors Registry maintained by the Virginia State Police. Lara was arrested several months later in Lake Jackson, Texas, and ultimately was indicted by a federal grand jury for violating the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250.
Lara pleaded guilty to the SORNA violation. He later filed a motion to exclude from consideration at sentencing his admissions of criminal activity made in the treatment program interview. After a hearing, the district court denied Lara's motion. The district court held that Lara voluntarily had waived any psychotherapist-patient privilege, and that the Fifth Amendment did not protect Lara from the government's use of his voluntary disclosures of incriminating information. After finding that Lara more likely than not committed the crimes that he had described in the treatment program interview, the district court sentenced Lara for the SORNA violation to the statutory maximum penalty of 120 months' imprisonment. Lara appeals from the sentence imposed by the district court.
Lara argues that the district court erred by concluding that he knowingly and voluntarily waived the psychotherapist-patient privilege. He contends that he did not voluntarily waive the privilege, because he was "compelled to participate" in the treatment program.
In response, the government observes that when Lara agreed to the conditions of probation in the state court, including the waiver of treatment program confidentiality, he did so in order to avoid additional incarceration. According to the government, this is a choice routinely faced by defendants in criminal cases, and Lara's voluntary agreement to those terms of probation precludes his present assertion of privilege. We agree with the government's view, and conclude that Lara's waiver of any privilege was knowing and voluntary.2
A district court's decision whether to recognize a privilege is a mixed question of law and fact, which we consider de novo on appeal. Virmani v. Novant Health Inc. , 259 F.3d 284, 286–87 (4th Cir. 2001). Similarly, we review de novo the issue whether the government violated a defendant's Fifth Amendment right against compelled self-incrimination. See Howard v. Moore , 131 F.3d 399, 414 (4th Cir. 1997) (), abrogated on other grounds by Miller-El v. Dretke , 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).
Under Federal Rule of Evidence 501, the federal courts recognize a testimonial privilege for psychotherapist-patient communications. Jaffee v. Redmond , 518 U.S. 1, 15, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). Like other privileges, the psychotherapist-patient privilege may be waived "by knowingly and voluntarily relinquishing it." United States v. Bolander , 722 F.3d 199, 223 (4th Cir. 2013) (citing United States v. Hayes , 227 F.3d 578, 586 (6th Cir. 2000) ). We have "strictly construed" this privilege, and have emphasized that the party invoking the privilege bears the burden of showing that the privilege applies, including the absence of any waiver of privilege. Id. at 222.
Probation is "one point ... on a continuum of possible punishments" imposed on those convicted of a crime. Samson v. California , 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (quoting United States v. Knights , 534 U.S. 112, 119, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) ). Accordingly, courts administering probation "may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens." Knights , 534 U.S. at 119, 122 S.Ct. 587. The governmental interest in enforcing liberty-restricting conditions is especially strong when supervision is employed as an alternative to incarceration, including when, as here, a court partially suspends a sentence of imprisonment. See Pa. Bd. of Prob. & Parole v. Scott , 524 U.S. 357, 365, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998) ().
Based on the record before us, we conclude that Lara knowingly agreed to disclosure of his treatment records when he signed the form in the state court proceedings acknowledging the terms of his supervised probation. As noted above, these terms included an unambiguous provision authorizing the treatment program providers to have "unrestricted communication" with the state probation and parole department regarding "any ... information deemed necessary to protect the community." Lara expressly signed the form "acknowledg[ing] receipt of these Conditions and agree[ing] to the Conditions set forth." The Virginia court suspended 17 years of Lara's 20-year sentence of imprisonment in part based on this provision, as well as the other specified terms of probation. See Va. Code § 19.2-303 (). Because Lara signed a form in the state court acknowledging this "clearly expressed" condition, he was "unambiguously aware" of that condition.3 See United States v. Hill , 776 F.3d 243, 249 (...
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