United States v. Rogers, 021921 FED1, 18-2097

Docket Nº:18-2097
Opinion Judge:HOWARD, CHIEF JUDGE
Party Name:UNITED STATES OF AMERICA, Appellee, v. BRIAN K. ROGERS, Defendant, Appellant.
Attorney: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.
Judge Panel:Before Howard, Chief Judge, Thompson and Barron, Circuit Judges.
Case Date:February 19, 2021
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

UNITED STATES OF AMERICA, Appellee,

v.

BRIAN K. ROGERS, Defendant, Appellant.

No. 18-2097

United States Court of Appeals, First Circuit

February 19, 2021

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge]

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.

Before Howard, Chief Judge, Thompson and Barron, Circuit Judges.

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 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 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 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.

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.

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 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...

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