United States v. Juan Lara , 850 F.3d 686 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4767
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN ELIAS LARA,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at
Abingdon. James P. Jones, District Judge. (1:14−cr−00027−JPJ−PMS−1)
Argued: January 26, 2017 Decided: March 14, 2017
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge
Wilkinson and Judge Niemeyer joined.
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.
BARBARA MILANO KEENAN, Circuit Judge:
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.
I.
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
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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
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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
1
Flora testified at an evidentiary hearing that the waiver form was signed as a
prerequisite for entering the treatment program, but the face of the waiver form indicates
that both Flora and Lara signed the form on July 1, 2010, about three months after Lara
entered the program in April 2010.
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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.
II.
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
2
The district court ruled on the issue of Lara’s waiver of privilege without first
deciding whether the psychotherapist-patient privilege applies to evidence admitted at
sentencing proceedings. Because we agree with the district court that Lara waived any
privilege that may have applied, we affirm the district court’s ruling on the waiver issue,
(Continued)
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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) (reviewing
voluntariness of a Fifth Amendment waiver as a mixed question of law and fact),
abrogated on other grounds by Miller-El v. Dretke, 545 U.S. 231 (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
(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 (2006) (quoting
and need not decide whether the privilege applies to evidence admitted at sentencing
proceedings.
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United States v. Knights, 534 U.S. 112, 119 (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. 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 (1998) (“In most cases, the State is willing to extend parole only because it is
able to condition it upon compliance with certain requirements.”).
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 (“[T]he [sentencing] court may suspend imposition
of sentence . . . in whole or part and in addition may place the defendant on probation
under such conditions as the court shall determine.”). Because Lara signed a form in the
state court acknowledging this “clearly expressed” condition, he was “unambiguously
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aware” of that condition. 3 See United States v. Hill, 776 F.3d 243, 249 (4th Cir. 2015)
(internal quotation marks omitted) (quoting Samson, 547 U.S. at 852).
We also conclude that Lara voluntarily agreed to be bound by these conditions of
supervised probation. Lara does not cite any authority for the proposition that his
acquiescence to the conditions of probation was not voluntary because the alternative
would have been additional imprisonment. There is ample authority, however, to support
the contrary conclusion that a defendant’s agreement to be bound by court-imposed
conditions of release is not rendered involuntary by the sole fact that he will be
incarcerated in the absence of such acquiescence. See United States v. Yeary, 740 F.3d
569, 582–83 (11th Cir. 2014) (holding that a defendant voluntarily consented to
conditions of pretrial release); Anderson v. Commonwealth, 507 S.E.2d 339, 341 (Va.
1998) (holding that an offender’s selection between serving a sentence of imprisonment
and complying with conditions of a suspended sentence constituted a voluntary “choice,
not coercion”); see also McKune v. Lile, 536 U.S. 24, 50 (2002) (opinion of O’Connor,
J.) (concluding that the defendant had a voluntary choice, and was not compelled to
incriminate himself, when required to participate in a sex offender treatment program to
3
We recognize that Flora testified that he advised Lara during his intake interview
in the treatment program that any statements made during counseling would be shared
with VDOC, while Lara asserts that Flora advised him about this matter after he already
had made the incriminating statements. However, we need not consider this conflict in
the testimony, because Lara’s agreement to the conditions of probation at the time of his
sentencing in the Virginia court is sufficient to show that he knowingly acknowledged the
unrestricted communication between Flora and VDOC.
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avoid transfer from a medium-security to a maximum-security area of a prison). Also, in
analogous circumstances, we routinely have upheld plea agreements as voluntarily
entered even when defendants have elected to waive important rights in exchange for
reducing the risk or length of imprisonment. See United States v. Blick, 408 F.3d 162,
165 (4th Cir. 2005) (plea agreement waiving right to appeal held to be voluntary); United
States v. Lemaster, 403 F.3d 216, 223 (4th Cir. 2005) (waiver of collateral attack rights
held to be voluntary).
We therefore conclude that Lara’s agreement to be bound by the conditions of his
supervised probation was both knowing and voluntary. Accordingly, we hold that Lara
affirmatively has waived any psychotherapist-patient privilege that may have applied to
the incriminating statements he made while participating in the treatment program. See
Jaffee, 518 U.S. at 15 n.14; Bolander, 722 F.3d at 223.
III.
Lara next argues that his Fifth Amendment privilege against self-incrimination
was violated when he made the incriminating statements in his intake interview with
Flora. According to Lara, the condition of probation directing him to participate in the
treatment program effectively required him to disclose incriminating information or face
revocation of probation. He asserts that in view of this ongoing prospect, he was not
required to assert his Fifth Amendment privilege during the intake interview in order for
the privilege to have applied.
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In response, the government argues that the Fifth Amendment privilege generally
is not self-executing, and that Lara’s conditions of probation did not fall within the
narrow “penalty” exception to this rule. We agree with the government’s position.
To invoke the Fifth Amendment privilege against self-incrimination, a defendant
“ordinarily must assert the privilege rather than answer if he desires not to incriminate
himself.” Minnesota v. Murphy, 465 U.S. 420, 429 (1984). Thus, if the defendant
voluntarily “chooses to answer,” that answer is not privileged. Id. One exception to this
general rule occurs in “penalty” cases, in which assertion of the privilege results in a
penalty that essentially “foreclose[s] a free choice to remain silent.” Id. at 434 (internal
brackets omitted) (quoting Garner v. United States, 424 U.S. 648, 661 (1976)). We
conclude that this case does not involve such a “penalty.”
The Supreme Court has explained that in order for conditions of probation to
provide a sufficient “penalty” to overcome a defendant’s free choice to remain silent, the
threat of revocation must be nearly certain. See id. at 437–38 (holding that the threat of
revocation of probation was not sufficient to trigger self-executing Fifth Amendment
protections because “[t]here is no direct evidence that [the defendant] confessed because
he feared that his probation would be revoked if he remained silent,” and “[r]evocation is
not automatic” for violation of probation conditions); see also United States v. Ramos,
685 F.3d 120, 128–29 (2d Cir. 2012). The factual record before us conclusively
demonstrates that Lara answered freely and without any suggestion of invoking his Fifth
Amendment privilege, and that he was never threatened with the imposition of a penalty
sufficient to overcome his freedom of choice to remain silent.
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There is no evidence that Flora told Lara that his probation would be revoked if he
did not admit to uncharged sex offenses. Also, the language in Lara’s conditions of
probation advised him generally that “[t]he Court . . . may revoke or extend your
probation . . . upon cause shown.” (emphasis added). Thus, just as in Murphy,
revocation of Lara’s probation would not have been “automatic,” and he would have been
afforded a court hearing before revocation could have occurred. Murphy, 465 U.S. at
438; see also Ramos, 685 F.3d at 128–29 (holding that a possibility that silence “could
lead to the initiation of violation proceedings or the revocation of his parole” was
insufficient to create a penalty condition). And, if Lara had asserted his Fifth
Amendment privilege, the state court could not have revoked his probation on that basis.
See Murphy, 465 U.S. at 438.
Accordingly, we conclude that Lara was not compelled to provide incriminating
information, and that the circumstances surrounding his statements made in the intake
interview did not create a penalty situation in which the Fifth Amendment privilege was
self-executing. 4 Therefore, we hold that the district court did not err in considering at the
4
We are not persuaded by the Ninth Circuit’s holding in United States v. Bahr,
730 F.3d 963 (9th Cir. 2013). The defendant in Bahr was required, as a condition of
supervision, to complete a sex offender treatment program, and to comply with all the
rules and conditions of the program. Id. at 965. During a polygraph administered as part
of the program, the defendant in Bahr admitted to committing uncharged sex crimes. Id.
The Ninth Circuit held that the penalty for refusing to answer questions in such a
treatment program was “more than merely hypothetical.” Id. at 966 (internal quotation
marks omitted). The Ninth Circuit distinguished Bahr from Murphy by observing that
unlike in Murphy, where the defendant “could have chosen not to answer,” the defendant
in Bahr “had no choice but to answer the questions posed.” Id. at 967. As discussed
(Continued)
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sentencing hearing the incriminating statements Lara made while participating in the
treatment program.
IV.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
above, Lara could have chosen not to provide incriminating information, and thus the
reasoning in Bahr does not apply to this case.
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