U.S. v. Antelope

Decision Date27 January 2005
Docket NumberNo. 03-30557.,No. 03-30334.,03-30334.,03-30557.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Lawrence ANTELOPE, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Lawrence Antelope, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Anthony R. Gallagher, Federal Defender, John Rhodes, Assistant Federal Defender, and David Avery, Federal Defenders of Montana, Missoula, MT, for the defendant-appellant.

William W. Mercer, United States Attorney, Marcia Hurd, Assistant United States Attorney, Billings, MT, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. No. CR-00-00039-DWM.

Before: BRUNETTI, McKEOWN, and GOULD, Circuit Judges.

McKEOWN, Circuit Judge:

Lawrence Antelope is a convicted sex offender who shows promise of rehabilitation. The terms of his supervised release offer him treatment — but at a price he is not willing to pay. Antelope has repeatedly refused to incriminate himself as part of his sex offender treatment. He declines to detail his sexual history in the absence of any assurance of immunity because of the risk that he may reveal past crimes and that his admissions could then be used to prosecute him. In response, the government has twice revoked his conditional liberty and sent him to prison. The case he now brings requires us to decide whether the government's actions violated his Fifth Amendment right against compelled self-incrimination. Because the Constitution does not countenance the sort of government coercion imposed on Antelope, and because his claim is ripe for adjudication, we reverse the judgment of the district court.

We decide also Antelope's challenge to the release term prohibiting him from possessing "any pornographic, sexually oriented or sexually stimulating materials," which we vacate and remand, as well as his challenge to the term prohibiting him from access to "any `on-line computer service,'" which we affirm.


The course of events leading to this appeal began when Lawrence Antelope joined an Internet site advertising "Preteen Nude Sex Pics" and started corresponding with someone who, unbeknownst to Antelope, was an undercover law enforcement agent. The sting operation proved fruitful when Antelope ordered a child pornography video over the Internet. Federal agents arranged a controlled delivery, delivered the video, and then promptly arrested Antelope.

Caught red-handed, Antelope pleaded guilty to possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and was initially sentenced to five years probation. One of the probation terms required Antelope to participate in the Sexual Abuse Behavior Evaluation and Recovery program ("SABER"), which would subject him to mandatory "periodic and random polygraph examinations." At sentencing, Antelope raised a Fifth Amendment challenge to this requirement, but was told by the district judge that the "use of that information ... is, I think, subject to the privilege between the counselor and the patient." Antelope was also prohibited from "possess[ing] any pornographic, sexually oriented or sexually stimulating materials" and from "possess[ing] or us[ing] a computer with access to any `on-line computer service' at any location ... without the prior written approval of the probation department." Both Antelope and the government promptly appealed the sentence.

While the appeal was pending, the district court revoked Antelope's probation for failure to comply with several probation conditions, including the requirement that he submit to polygraph examinations as part of the treatment program. The district judge re-imposed probation with an additional six months of electronic monitoring and warned that Antelope's continued refusal to submit to the polygraph would result in his incarceration. Antelope appealed this ruling as well.

Immediately following this ruling, Antelope filed a motion in the district court seeking to clarify whether the order included immunity from the use of Antelope's statements made in compliance with SABER to prosecute him. The district court never ruled on this motion, later dismissing it as moot.

While these appeals were pending, the district court again found Antelope in violation of probation. At the probation revocation hearing, Roger Dowty, Antelope's counselor at the sex treatment program, testified that Antelope had failed to complete SABER's sexual history autobiography assignment and "full disclosure polygraph" verifying his "full sexual history." Dowty explained that Antelope had been told that any past criminal offenses he revealed in the course of the program could be released to the authorities. Dowty also testified that he was under a legal obligation to turn over information regarding offenses involving victims under eighteen. Antelope argued that the autobiography and full disclosure polygraph requirements violated his Fifth Amendment right, expressed his desire to continue treatment, and sought immunity for statements made in compliance with the program. The district court rejected his argument, ruling that the fact of probation nullifies any Fifth Amendment right Antelope might otherwise have to decline to "reveal[ ] information that may incriminate him," and sentenced him to 30 months in prison. Antelope appealed a third time.

All three appeals were consolidated for appellate review, and this court issued a decision reversing in part and remanding for resentencing. The court declined to reach Antelope's First and Fifth Amendment claims. See United States v. Antelope, 65 Fed. Appx. 112 (9th Cir.2003) (mem.).

Following remand, Antelope was resentenced to twenty months incarceration, followed by three years of supervised release. The district court again imposed the contested conditions as terms of his supervised release. Antelope once again objected, but the court ruled that the objection was not ripe, and would not be ripe until Antelope was "prosecuted or subject to prosecution" for additional crimes. Antelope appealed once more. This fourth appeal is one of the two directly before us now.

Shortly after he was resentenced, Antelope finished serving his prison term and was released under supervision. Antelope reasserted his desire for treatment but continued to refuse to reveal his full sexual history absent an assurance of immunity. When Antelope appeared at a release revocation hearing, he yet again argued the merits of his Fifth Amendment claim. The district judge reiterated his belief that Antelope's admissions would be protected by an "absolute privilege under Montana law between a counselor, psychologist and the patient"; asserted that "given the fact that[Antelope has] not said anything yet, ... everything is premature [a]nd until this judicial proceeding, where he's compelled to testify, it seems to me,... you don't have any legal arguments to be making that are meritorious in my view today"; and declined to rule on whether Antelope's admissions would be protected by use immunity, apparently on ripeness grounds. The district judge suggested that Antelope's proper course would be to "assert[ ] his privilege when he goes to see Mr. [Dowty, the counselor,] and say[ ], I am doing this because I'm ordered to do it. I am not doing it voluntarily, it's a court order, and I do it only because if I don't do it I'm going to end up in jail."

The district court sentenced Antelope to an additional ten months in prison and twenty-six months of supervised release with the same conditions. Antelope appealed a final time, and we consider the issues presented by his consolidated fourth and fifth appeals.


We turn first to the government's argument that Antelope's Fifth Amendment claim is not yet ripe for review. The constitutional component of ripeness is a jurisdictional prerequisite. Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1093-94 & n. 2 (9th Cir.2003) (noting that the question of ripeness often "coincides squarely with standing's injury in fact prong"). Whether Antelope's claim is sufficiently mature to justify appellate review is a question of law we consider de novo. Laub v. United States Dep't of the Interior, 342 F.3d 1080, 1084 (9th Cir.2003).

To determine whether Antelope suffered an injury in fact, we must identify "an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical." Id. at 1085. Here, Antelope's appeal centers around his claimed right to be free of unconstitutional compulsion: Under his theory, the government violated his Fifth Amendment right when it conditioned his probation and supervised release on the submission of a sexual autobiography that we may assume would have revealed prosecutable offenses. From Antelope's perspective, in whose shoes we stand when deciding this threshold issue of justiciability, he has already suffered the very serious and non-hypothetical injury of imprisonment after he invoked his Fifth Amendment right. In other words,"[i]f his legal argument is correct, he has already suffered constitutional injury." United States v. Purvis, 940 F.2d 1276, 1278 (9th Cir.1991) (holding ripe the defendant's challenge to his supervised release condition, which he had been re-incarcerated for violating). Antelope's case history reads like a never-ending loop tape: he asserts his constitutional rights, the district court advises him that surely his statements will be confidential but that he must comply with what he views as a violation of his constitutional rights, he refuses to comply, his release is revoked, and Antelope ends up incarcerated. Indeed, it is difficult to imagine a more paradigmatic "injury in fact" than actual incarceration. We therefore conclude that Antelope's Fifth...

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