Ryan v. State of Montana

• Decision Date: 22 August 1978
• Docket Number: No. 76-2518,76-2518
• Citation: 580 F.2d 988
• Parties: Donald E. RYAN, Petitioner-Appellant, v. STATE OF MONTANA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 988

580 F.2d 988

Donald E. RYAN, Petitioner-Appellant, v. STATE OF MONTANA, Respondent-Appellee.

No. 76-2518.

United States Court of Appeals Ninth Circuit.

Aug. 22, 1978.

Richard N. Dinallo (argued), of O'Gara & O'Gara, San Francisco, Cal., for petitioner-appellant.

J. Mayo Ashley, Deputy Atty. Gen., Helena, Mont., for respondent-appellee.

Appeal from the United States District Court for the District of Montana.

Before CARTER, KENNEDY and ANDERSON, Circuit Judges.

KENNEDY, Circuit Judge:

This appeal requires us to determine whether or not a state is required to grant a probationer immunity from use of testimony he gives at a combined probation revocation and deferred sentencing hearing at a time when he is under criminal indictment for the same act that constitutes the alleged probation violation.

Petitioner, Donald E. Ryan, was convicted on three counts of grand larceny in a superior court of the State of Montana on July 27, 1973. The court placed Ryan on probation and deferred imposition of sentence for one year. On July 8, 1974, when only nineteen days of Ryan's probationary term remained, the state charged that Ryan had committed a subsequent theft, thus violating the terms of his probation. The charge was that Ryan had stolen a typewriter from a bus terminal in Billings, Montana. The state moved to revoke Ryan's probation and to impose sentencing for the 1973 convictions, and in addition it indicted petitioner for the subsequent theft. His trial on that charge was still pending during the probation and deferred sentencing hearing.

At the revocation-sentencing proceeding, Ryan moved for a continuance until after his trial on the criminal charge. This motion was denied. The state called witnesses at the hearing to prove the violation, and they were cross-examined by defense counsel. The petitioner declined to testify in his own behalf, asserting that his testimony might incriminate him in the subsequent criminal proceeding. Petitioner was not offered immunity from use of his testimony at the subsequent trial, and at oral argument before this court respondent conceded that state law would not permit such immunity. The state trial court found Ryan in violation of the deferred sentence agreement, revoked his probation, and imposed three concurrent terms of ten years imprisonment. Thereafter the criminal charge for the typewriter theft was dismissed on motion of the state.

Ryan appealed the judgment entered in the revocation proceeding to the Supreme Court of Montana. He argued there, as he does here, that he had been denied due process by being forced to elect to remain silent and risk probation revocation and sentencing, or to speak in his own defense and risk incriminating himself on the criminal charge. The Supreme Court of Montana rejected petitioner's claim on the theory that his dilemma involved a strategic choice which did not offend the constitution. State v. Ryan, 166 Mont. 419, 533 P.2d 1076 (1975). His state remedies exhausted, Ryan filed a petition in federal district court for a writ of habeas corpus. The district court summarily rejected the petition for the reasons stated in the Montana Supreme Court's opinion. Ryan appeals from the decision of the district court, and we affirm.

Absent compulsion, it is not unconstitutional for the state to secure a conviction by using a statement made by the accused. See Hoffa v. United States, 385 U.S. 293, 303-04, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). The definition of compulsion may present a difficult question, however, and the principal issue in this case is whether Montana's procedures for probation revocation and deferred sentencing subjected Ryan to compulsion of the sort forbidden by the self-incrimination clause of the fifth amendment. ¹ We find the state did not compel Ryan to testify or put him to an unconstitutional election.

The Supreme Court has ruled that testimony is compelled in a manner forbidden by the purpose and intent of the self-incrimination clause when the state requires testimony under threat of certain noncriminal sanctions. Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973) (cancellation of state contracts and bar from future contracts for five years for refusal to waive fifth amendment privilege when called to testify concerning state contracts); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968) (discharge from police force for failure to waive privilege against self-incrimination, without immunity, before grand jury); Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) (statements made under threat of discharge from police force for refusal to answer held to be involuntary); See Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967) (plurality opinion of four justices) (disbarment based on lawyer's refusal to produce records which were presumed to be protected by the privilege against self-incrimination). These cases, which find compulsion in sanctions that are removed by one step at least from a direct compulsion to testify in a criminal case, have been reaffirmed in the recent case of Lefkowitz v. Cunningham 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977). The guidelines which Cunningham provides for determining when impermissible compulsion has been exerted control our decision in this case.

In Cunningham, a New York state statute required persons holding office in a political party to testify before a grand jury about matters related to their official duties. Party officers were forced to waive immunity from use of such grand jury testimony in any later prosecution on pain of removal from office and disqualification from holding any public or party office for five years thereafter. The Court held that the statutory scheme compelled testimony in violation of the fifth amendment because it imposed disabilities for failure to execute a waiver of use immunity. The Court emphasized that by asserting his privilege against self-incrimination the defendant forfeited a powerful and sought-after position, lost the economic benefit of potential future employment, and was deprived of certain associational rights guaranteed by the first amendment. Id. at 807-08, 97 S.Ct. 2132.

The probation revocation and sentencing procedures used by Montana do not involve the kind or degree of compulsion which the Court found inherent in the Cunningham situation. The Cunningham Court confined its holding to situations where "refusal to waive the Fifth Amendment privilege leads automatically and without more to imposition of sanctions." Id. at 808 n. 5, 97 S.Ct. at 2138. On this basis the Court distinguished Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), where it was held permissible to draw a negative inference from a prisoner's refusal to testify in a prison disciplinary hearing, even though he was not entitled to immunity from use of his testimony or its fruits at a subsequent criminal trial. Id. at 317-19, 96 S.Ct. 1551. As in Baxter, Ryan's decision whether or not to testify was a strategic choice. No sanction followed automatically from his exercise of the privilege to remain silent. Rather, the absence of exculpatory information which Ryan might have furnished if he had decided to testify "was only one of a number of factors" which might figure in the probation revocation and sentencing determinations. See Cunningham, 431 U.S. at 808 n. 5, 97 S.Ct. at 2138. Indeed, Ryan was under even less disadvantage in deciding to withhold his testimony than was the petitioner in Baxter, since it is not contended that an inference of guilt was or could have been drawn from Ryan's silence at the probation revocation hearing. ²

The State of Montana did not institute probation revocation proceedings for the purpose of eliciting testimony. In this respect, too, Ryan's case is distinguishable from Cunningham, where the clear purpose of the New York statute was to force a political party official to make self-incriminating statements. There is no indication that Montana initiated the proceeding without adequate evidence to support the probation violation charge, or that the proceedings were otherwise a cover for an investigation directed solely toward obtaining information to be used in a subsequent criminal trial. Such a misuse of the probation revocation process would be impermissible under United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975), where we stated:

(U)nder no circumstances should cooperation between law enforcement officers and probation officers be permitted to make the probation system "a subterfuge for criminal investigations." See Latta v. Fitzharris, 521 F.2d 246 (9th Cir. 1975).

Id. at 267. Thus we do not find that Ryan was under the sort of direct compulsion to testify that Cunningham and the cases on which it relies found unconstitutional.

As a general proposition, the courts do not favor procedural rules which require an individual to sacrifice one constitutional right as the price of preserving another. See, e.g., Cunningham, 431 U.S. at 807-08, 97 S.Ct. 2132; Simmons v. United States, 390 U.S. 377, 389-94, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). But there are circumstances, even at criminal trials, when requiring a defendant to make a difficult strategic choice which necessarily results in relinquishing a constitutional right is both legitimate and, from a self-incrimination standpoint, noncompulsive. The Supreme Court permitted the state to put the defendant to such an election in Crampton v. Ohio, sub nom. McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), Vacated on other grounds, 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972) (hereinafter referred to as McGautha ). There the defendant was afforded a single trial in which the jury was to determine guilt and fix punishment at death or life imprisonment. The defendant argued that he was constitutionally entitled to a...