United States v. Streich ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-30105
Plaintiff-Appellee,
v.  D.C. No.
CR-05-05247-RBL
DONALD JAY STREICH,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
October 21, 2008—Seattle, Washington
Filed March 9, 2009
Before: Diarmuid F. O’Scannlain, Pamela Ann Rymer, and
Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge O’Scannlain;
Judge Kleinfeld Writes Separately
2937
UNITED STATES v. STREICH 2939
COUNSEL
Jonathan S. Solovy, Law Office of Jonathan S. Solovy, Seat-
tle, Washington, argued the cause for the defendant-appellant
and filed the briefs.
Mark Parrent, Assistant United States Attorney, Seattle,
Washington, argued the cause for the plaintiff-appellee and
filed the brief. Jeffrey C. Sullivan, United States Attorney,
Seattle, Washington, was also on the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a criminal defendant who pled
guilty can challenge the inclusion of information in his Pre-
Sentence Report that might put him at risk of subsequent civil
confinement.
2940 UNITED STATES v. STREICH
I
A
For the better part of 2004, Donald Jay Streich boarded in
the homes of several families with small children at Fort
Lewis, Washington. In most of these households, the father
was serving in Iraq and the mother needed assistance caring
for the children. Streich typically received board and some
spending money in exchange for his help babysitting and
housekeeping.
In the last such household, Streich was responsible for a
seven year-old boy and a fifteen year-old boy, both the chil-
dren of a Mrs. T. from a previous marriage. One morning,
military police pulled Streich over for speeding. After a back-
ground check, the officers discovered that there was an out-
standing warrant for Streich’s arrest in a nearby county for
Failure to Register as a Sex Offender. Streich pled guilty to
this crime and was sentenced to eight months in jail.
During Streich’s incarceration, Mrs. T.’s husband, Mr. T.,
who had been deployed in Iraq when Streich began living in
the house, returned home. One day, while searching the house
for his wife’s digital camera, he discovered it in a book bag
belonging to Streich. On that camera he found pornographic
photographs of his seven year-old stepson. After investiga-
tion, federal officers ultimately found evidence that Streich,
twenty-three years-old at the time, had had multiple sexual
encounters with Mrs. T’s fifteen year-old son.
B
On the basis of the sexual encounters with the fifteen year-
old boy only, prosecutors brought an indictment against
Streich for one count of sexual abuse of a minor in violation
of 18 U.S.C. § 2243. The photographs of the seven year-old
boy did not generate separate charges. Streich utlimately pled
UNITED STATES v. STREICH 2941
guilty to the sexual abuse charge pursuant to an agreement
including two provisions important to this appeal. First, in a
section entitled “Ultimate Sentence,” the agreement stated
that the “[d]efendant acknowledges that no one has promised
or guaranteed what sentence the Court will impose.” Indeed
neither side promised to make a particular sentencing recom-
mendation. The agreement also included a provision entitled
“Non-Prosecution of Additional Offenses,” which read in rel-
evant part:
As part of this Plea Agreement, the United States
Attorney’s Office for the Western District of Wash-
ington agrees to not prosecute the Defendant for any
additional offenses known to it as of the time of this
Agreement that are based upon evidence in its pos-
session at this time, or that arise out of the conduct
giving rise to this investigation. In this regard,
Defendant recognizes that the United States has
agreed not to prosecute all of the criminal charges
that the evidence establishes were committed by
Defendant solely because of the promises made by
Defendant in this Agreement. Defendant acknowl-
edges and agrees, however, that for purposes of pre-
paring the Presentence Report, the United States
Attorney’s Office will provide the Untied States Pro-
bation Officer with evidence of all relevant conduct
committed by Defendant.
In anticipation of sentencing, the probation officer prepared
an unusually long and detailed presentence report (“PSR”).
The PSR included information about an earlier conviction,
when Streich was seventeen years-old, on one count of child
molestation and one count of attempted child molestation.
Streich had been incarcerated by the Washington State Juve-
nile Rehabilitation Administration and subsequently released
on parole. At some point during his incarceration and parole,
Streich enrolled in a psychosexual treatment program, in the
course of which he volunteered information revealing past,
2942 UNITED STATES v. STREICH
and potentially criminal, conduct, for which he has not been
charged. The only evidence of such conduct appears to be his
own disclosures as part of the psychosexual treatment pro-
gram, which Streich provided in exchange for immunity.
When the probation officer was preparing the PSR, he
asked Streich about this prior conviction and the psychosexual
treatment that he underwent. At the officer’s request and in
the presence of defense counsel, Streich signed two releases,
authorizing private parties and government entities, respec-
tively, to provide information to the Probation Office.
C
At the sentencing hearing, defense counsel objected to the
inclusion in the PSR of the information from Streich’s psy-
chosexual treatment records. He argued that Streich had not
validly consented to their release. On the basis of that view,
the defense urged the district court not to consider informa-
tion derived from those records to decide on a sentence. In
addition, it argued that the district court should excise the por-
tions of the PSR based on the records because they would sig-
nificantly prejudice Streich in the future. The district judge
immediately indicated, and repeated several times, that “with
regard to the evidence from the juvenile rehabilitation author-
ity, I was not inclined to use that evidence in formulating a
decision.”
After hearing testimony, the district court ultimately con-
cluded, “based on a preponderance of the evidence,” that
Streich validly consented to release the psychosexual treat-
ment records and that excision of the PSR was unnecessary.
After further argument from counsel, the district court handed
down a sentence of 120 months imprisonment, followed by a
five-year term of supervised release subject to certain special
conditions. Streich timely appeals.
UNITED STATES v. STREICH 2943
II
A
Streich first argues that the government breached the plea
agreement by basing its sentencing recommendation on
uncharged conduct, including the photographs he took of Mrs.
T’s seven-year-old son.1 We construe a plea agreement as a
contract between a government and a defendant. See United
States v. Mondragon, 228 F.3d 978, 980 (9th Cir. 2000). If
“the terms of the plea agreement on their face have a clear and
unambiguous meaning, then this court will not look to extrin-
sic evidence to determine their meaning.” United States v.
Clark, 218 F.3d 1092, 1095 (9th Cir. 2000).
B
Streich’s specific contention is that the government
breached the provision of the plea agreement that bound it not
to “prosecute” him for any additional offenses based on evi-
dence “in its possession” at the time of the agreement or “that
arise out of the conduct giving rise to this investigation.” Con-
sistent with this promise, the government did not charge or
prosecute Streich for any crime other than that involved in
this appeal. However, he points to the fact that the govern-
ment highlighted the pornographic photographs he took of
1
Streich also appears to raise, on appeal, the district court’s failure to
resolve his objection to a specific paragraph of the PSR. But the district
court did not resolve this objection because Streich withdrew it in his sec-
ond sentencing memorandum and then declined to revive it at the sentenc-
ing hearing. Therefore he has done more than forfeit his objection; he has
waived it completely. See United States v. Olano, 507 U.S. 725, 733
(1993) (“Waiver is different from forfeiture. Whereas forfeiture is the fail-
ure to make the timely assertion of a right, waiver is the intentional relin-
quishment or abandonment of a known right.”) (internal quotation marks
omitted). An error to which one waives objection is no error at all, and
leaves a court of appeals with nothing to review. Id. at 732-33 (“Deviation
from a legal rule is “error” unless the rule has been waived.”).
2944 UNITED STATES v. STREICH
Mrs. T.’s seven year-old son. Essentially, Streich contends
that by arguing for an upward departure from the sentencing
guideline maximum “based, in part, on the evidence concern-
ing the photographs,” the government effectively prosecuted
him for the additional offense of possession of child pornog-
raphy in violation of the plea agreement.
[1] The crucial term is the government’s promise not to
“prosecute” Striech for any offenses, other than the charge to
which he pled guilty, with respect to which the government
had evidence at the time of the agreement. Although the gov-
ernment did not in fact charge him with any crime beside that
to which he pled guilty, Streich maintains that a promise not
to prosecute means more than merely a promise not to charge
him with additional crimes.
[2] We disagree. As a matter of common usage, to “prose-
cute,” in connection with the law, means “to institute legal
proceedings against.” Webster’s Third New International Dic-
tionary 1820 (1986). Streich relies on our decision in Mon-
dragon for the proposition that a promise not to prosecute
certain conduct includes a promise not to recommend a
heightened sentence on the basis of such conduct. It is true
that in Mondragon we held it a breach for the government “to
influence the district court to impose a harsher sentence than
that suggested by [defendant’s] counsel.” 228 F.3d at 980. But
the government in that case had, in fact, promised to “make
no recommendation regarding sentence.” Id. at 979. There,
the government’s action violated the clear, plain meaning of
the term in the plea agreement. Furthermore, in Mondragon
we began, as we do in this case, with the common, dictionary
definition of the contractual term in question. Id. at 980 n.3.
Thus, Mondragon does not support the counterintuitive notion
that a promise not to prosecute conduct means a promise not
to make a recommendation concerning a sentence; indeed its
ratio decidendi refutes any such idea. It is irrelevant that the
government advocated for a higher sentence based on
uncharged conduct. It never promised to do the contrary, and
UNITED STATES v. STREICH 2945
we therefore conclude that it did not breach the plea agree-
ment.
III
Streich also raises a variety of arguments, based on state
law, the Federal Rules of Criminal Procedure, Federal privacy
laws, and the Fifth and Sixth Amendments to the Federal
Constitution, to challenge the inclusion of the pyschosexual
treatment information in his PSR. The gravamen of all of
these arguments is Streich’s fear that the pyschosexual treat-
ment information will ultimately factor into a proceeding to
commit him civilly under the Adam Walsh Act. See 18 U.S.C.
§ 4248. Given that the government has not initiated or indi-
cated an interest in initiating any such proceeding, we must
ask, as a threshold matter, whether these claims are ripe.
A
Ripeness is a constitutional prerequisite for jurisdiction; we
therefore have no jurisdiction to review claims unless they are
ripe. Reg’l Rail Reorganization Act Cases, 419 U.S. 102, 138-
39 (1974). “Ripeness,” the Supreme Court has observed, “is
peculiarly a question of timing.” Thomas v. Union Carbide
Agr. Prods. Co., 473 U.S. 568, 580 (1985) (internal quota-
tions and citation omitted). A claim is not ripe if it involves
“contingent future events that may not occur as anticipated, or
indeed may not occur at all.” Id. at 580-81 (internal quotations
and citation omitted). At the same time, a litigant need not
“await the consummation of threatened injury to obtain pre-
ventive relief. If the injury is certainly impending, that is
enough.” 18 Unnamed John Smith Prisoners v. Meese, 871
F.2d 881, 883 (9th Cir. 1989) (internal quotations and cita-
tions omitted) (emphasis added). With this in mind, we evalu-
ate “both the fitness of the issues for judicial decision, and the
hardship to the parties of withholding court consideration.” Id.
(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)).
2946 UNITED STATES v. STREICH
Several of our decisions illustrate how to make this evalua-
tion. In 18 Unnamed John Smith Prisoners, we held that a
challenge under the Eighth and Fifth Amendments was not
ripe. 871 F.2d at 883. Several inmates, held in protective cus-
tody as part of a witness protection program, objected to a
proposed policy to “double bunk” them. Id. Even though the
relevant institution “had been advised by the . . . Bureau of
Prisons . . . that it would be double bunked,” this Court found
the alleged injury to be “speculative.” Id. Similarly, we held,
in United States v. Abbouchi, that a Fifth Amendment chal-
lenge to a condition of supervised release that the defendant
“truthfully answer any questions asked of him by the proba-
tion officer” was not ripe. 502 F.3d 850, 859 (9th Cir. 2007).
By contrast, the defendant’s similar Fifth Amendment chal-
lenge in United States v. Antelope was ripe because the gov-
ernment had already incarcerated him for violating the
challenged condition of supervised release. See 395 F.3d
1128, 1132-33 (9th Cir. 2005).
B
[3] Streich repeatedly invokes the specter of civil commit-
ment under the Adam Walsh Act as the injury of which he
complains. He cannot complain about the district court’s use
of the psychosexual treatment information in sentencing,
because the district court explicitly stated that it would not use
it. Although there are other uses to which the Bureau of Pris-
ons might put a PSR,2 Streich does not complain about those.
He has therefore forfeited any challenges he might have made
in connection with them. Furthermore, although Streich
claims that the district court violated certain statutory and
constitutional rights by including the pyschosexual treatment
information in his PSR, those technical violations do not
motivate his appeal.3 On this issue, Streich’s appeal addresses
2
The Bureau of Prisons can rely on the information included in a PSR
for various penological purposes. See, e.g., 28 C.F.R. §§ 301.103, 545.11.
3
In any event, if they did, Streich’s appeal might very well lack standing
on different grounds, namely the absence of any injury in fact. See Lujan
UNITED STATES v. STREICH 2947
only the potential use of the psychosexual treatment informa-
tion in the PSR for the purposes of civil commitment. His
briefs repeatedly invoke the Adam Walsh Act as the cause of
his injury and the motivator of his appeal.
[4] Taking Streich at his word, then, we assume that his
claimed injury is a potential civil commitment on the basis of
the inclusion of the psychosexual treatment information in his
PSR. This strikes us as the classic example of a “contingent
future event” that “may not happen at all.” Unlike in 18
Unnamed John Smith Prisoners, the Bureau of Prisons has not
yet made the decision, the consequences of which the defen-
dant objects to. Streich is at the start of his sentence, in a pos-
ture similar to Mr. Abbouchi. See Abbouchi, 502 F.3d at 853
(stating that the defendant was appealing his conviction and
sentence on various grounds). If Abbouchi’s Fifth Amend-
ment injury from a condition of supervised release—a condi-
tion the district court had already imposed but which had not
yet begun—was not ripe, then Streich’s injury arising from a
hypothetical civil commitment cannot be ripe.4
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (describing injury-in-
fact as an “irreducible constitutional minimum”). A plaintiff who asserts
a legal claim without any injury-in-fact specific to the litigant has no more
standing than a litigant whose injury-in-fact is not ripe.
Under standing law, “[a]bstract injury is not enough,” Schlesinger v.
Reservists Committee to Stop the War, 418 U.S. 208, 219 (1975) (internal
quotation marks omitted), for “the party seeking review must himself have
suffered an injury,” Sierra Club v. Morton, 405 U.S. 727, 738 (1972). It
is not enough for the law to have been violated; its violation must harm
or affect the plaintiff in some way. Even the most generous interpretation
of standing doctrine requires that “the interest sought to be protected by
the complainant [be] arguably within the zone of interests to be protected
or regulated by the statute or constitutional guarantee in question.” Ass’n
of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970).
That is to say, there must be an interest apart from the adherence to the
law that the plaintiff wishes to protect.
4
Streich also argues that the “harm is not hypothetical because the pro-
posed regulations provide in mandatory terms that the B[ureau of ] P[ri-
2948 UNITED STATES v. STREICH
IV
[5] For the foregoing reasons, we AFFIRM the sentence of
the district court with respect to the defendant’s breach of plea
agreement claim and DISMISS WITHOUT PREJUDICE the
defendant’s claims challenging the inclusion of the psycho-
sexual information in the Pre-Sentence Report.
KLEINFELD, Circuit Judge, writing separately:
I concur in the majority’s rejection of Streich’s challenge.
Indeed, I concur in the entirety of the opinion, except for the
conclusion that Streich’s challenge is unripe. In my view,
Streich’s challenge is ripe. True, insofar as the challenge is
addressed to the use of the presentence report in a civil com-
mitment proceeding subsequent to Streich’s custodial sen-
tence, the challenge is not ripe. Ripeness, though, flows from
the district court’s duties under Federal Rule of Criminal Pro-
cedure 32, and from the use that will be made of the presen-
tence report even if there never is a civil commitment
proceeding.
I. Procedural Considerations
Federal Rule of Criminal Procedure 32 governs the prepa-
ration and consideration of presentence reports. The probation
officer preparing the report must include an analysis of the
applicable sentencing guidelines as well as the defendant’s
offense history, financial condition, circumstances, and “any
sons] must review the presentence report in determining whether to file a
petition under the Adam Walsh Act.” The point, however, is that the
Bureau must still determine whether to file such petition. It may not file
it at all; but if it does, Streich will then have an opportunity to challenge
his commitment under the procedures of that Act. See 18 U.S.C.
§ 4247(d).
UNITED STATES v. STREICH 2949
other information that the court requires.”1 The preparer must
exclude information that could harm the defendant or others,
such as the name of an informant or certain diagnoses.
A copy of the report is given to the defense and prosecution
at least a month before the judge considers it. The parties can
object to its contents. The court must ensure that the parties
are aware of the information that the judge is planning to rely
on at sentencing and allow the parties to comment on that
information. The court may accept any undisputed portion of
the presentence report as true. As for disputed portions, the
court must either “rule on the dispute or determine that a rul-
ing is unnecessary . . . because the court will not consider the
matter.”2 The advisory committee notes make it clear that a
court may do both — it can rule on an objection even if the
matter is unnecessary to sentencing but could affect correc-
tional management of the offender.3 The court must append a
copy of its determination to the report provided to the Bureau
of Prisons.
The court must do so because the Bureau of Prisons is enti-
tled to rely on the information the judge considered reliable.
The presentence report is used by the Bureau of Prisons to
determine institutional placement, eligibility for programs,
work assignments, financial plans, continuing security evalua-
tions, and possible civil commitment.4 Leaving disputes unre-
1
Fed. R. Crim. P. 32(d)(1)-(2).
2
Fed. R. Crim. P. 32(i)(3)(B).
3
Fed. R. Crim. P. 32, Advisory Committee Notes, 2002 Amendments
(“If counsel objects to material in the presentence report that could affect
the defendant’s service of sentence, the court may resolve the question, but
is not required to do so.”) (emphasis added).
4
28 C.F.R. §§ 301.103, 545.11 (2007); Civil Commitment of a Sexually
Dangerous Person, 72 Fed. Reg. 43205, 43206 (proposed Aug. 3, 2007)
(to be codified at 28 C.F.R. pt. 549); Fed. Bureau of Prisons, Program
Statement: Inmate Security Designation and Custody Classification (2006)
*15-22, *48-49, available at http://www.bop.gov/policy/progstat/
5100_008.pdf (presentence report used in initial placement and continuing
security evaluations).
2950 UNITED STATES v. STREICH
solved is inconsistent with the Bureau’s use of the contested
portions.
In this case, the district judge followed exactly the right
procedure. The judge determined that the information from
Streich’s psychosexual treatment was unnecessary for the
determination of his sentence. The court did not, however,
stop there. It held a hearing to resolve the dispute over the
validity of Streich’s waiver of whatever right he might have
to nondisclosure of the records at issue. The court heard testi-
mony from the probation officer. It concluded that the waiver
was valid and ruled that Streich’s history could be both
included in the presentence report and considered by the
Bureau of Prisons.
The district court thus performed its duty under Rule 32.
Presentence reports should include “any circumstances affect-
ing the defendant’s behavior that may be helpful in imposing
sentence or in correctional treatment.”5 Consideration of this
information will enable the Bureau of Prisons to determine
the best method to address Streich’s criminality. If the infor-
mation is incorrectly included, however, the Bureau will be
misled in ways that may harm current management of Streich
in his institutional placement and program eligibility.6
Because Streich’s claims are ripe for review on this basis, I
would reach their merits discussed below in part II.
II. Substantive Considerations
Just because the challenge is ripe does not mean that it is
meritorious. It is not. Streich argues that the material regard-
ing his sex crimes as a juvenile was provided confidentially,
so its inclusion violated his Fifth Amendment rights. The
5
Fed. R. Crim. P. 32(d)(2)(A)(iii) (emphasis added).
6
These harms are potential injuries-in-fact to Streich as well. For exam-
ple, he may be placed in a different prison or subjected to more security
restrictions based on the information. Streich therefore has standing.
UNITED STATES v. STREICH 2951
record, though, does not support the argument that it was con-
fidential. First, the two paragraphs of the presentence report
on which Streich relies for the claim of confidentiality do not
say that the information was confidential. They say that
“Streich had been given immunity” for the information he dis-
closed. Immunity and confidentiality are altogether different.
When Oliver North described his activities to the Iran/Contra
congressional committees, pursuant to a grant of immunity,
the immunity protected him from prosecution, but there was
nothing confidential about the information broadcast on
worldwide television.7 Second, the judge determined that
Streich waived any confidentiality he might have with regard
to the information, a finding fully supported by the record.
Streich therefore waived his claimed right to confidentiality,
which was not violated in any event.
Streich bases a second confidentiality claim on Federal
Rule of Criminal Procedure 32(d)(3). That rule requires that
the presentence report exclude “any diagnoses that, if dis-
closed, might seriously disrupt a rehabilitation program”8 and
“any sources of information obtained upon a promise of confi-
dentiality.”9 The former provision only applies to diagnoses;
the latter to sources. Neither provision requires exclusion of
the information in Streich’s presentence report. The purpose
of Rule 32(d)’s exclusions is to prevent revealing to the
defendant information that might harm the defendant or others.10
7
See United States v. North, 910 F.2d 843, 851 (D.C. Cir. 1990), modi-
fied, United States v. North, 920 F.2d 940 (D.C. Cir. 1990).
8
Fed. R. Crim. P. 32(d)(3)(A).
9
Fed. R. Crim. P. 32(d)(3)(B).
10
See Fed. R. Crim. P. 32, Advisory Committee Notes, 1975 enactment
(“However, the court may decline to let the defendant read the report if
it contains (a) diagnostic opinion . . . (b) sources of information . . . , or
(c) any other information that, if disclosed, might result in harm to the
defendant or other persons.”); id., 1989 Amendments (“Although the
Committee was concerned about the potential unfairness of having confi-
dential or diagnostic material included in the presentence reports but not
disclosed to a defendant . . . . some of this material might assist correc-
tional officials in prescribing treatment programs for an incarcerated
defendant.”) (emphases added).
2952 UNITED STATES v. STREICH
The latter provision protects someone who, for example,
might tell something relevant to the sentence to the probation
officer, but fears retaliation if his or her identity is revealed.
There is no basis in Rule 32(d)(3)(B) for hiding the material,
just the “sources” of the material.
Streich’s other challenges are also without merit. Hearsay
may be used in sentencing.11 The Federal Privacy Act does
not apply to state agencies.12 Washington state privacy laws
do not apply because federal admissibility is not predicated on
state law.13 HIPAA does not provide any private right of
action, much less a suppression remedy.14
18 U.S.C. § 3661 provides that “[n]o limitation shall be
placed on the information concerning the background, charac-
ter, and conduct of a person convicted of an offense which a
court of the United States may receive and consider for the
purpose of imposing an appropriate sentence.”15 Congress
thus made a broad policy choice to have a judge be as fully
informed as possible before passing sentence on a defendant.
Justice in sentencing requires that the judge be fully informed
about all the aspects of the defendant’s history. Both rehabili-
tation possibilities and protection of the public require that the
judge know who the defendant really is.
Justice is what Donald Streich got. Streich’s history as a
sexual predator shows that the sexual predation for which he
11
E.g., United States v. Littlesun, 444 F.3d 1196, 1200 (9th Cir. 2006).
12
5 U.S.C. § 552a(a)(1).
13
United States v. Becerra-Garcia, 397 F.3d 1167, 1173 (9th Cir. 2005).
14
Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1081 (9th
Cir. 2007) (“HIPAA itself provides no right of action.”); United States v.
Frazin, 780 F.2d 1461, 1466 (9th Cir. 2006) (“Had Congress intended to
authorize a suppression remedy, it surely would have included it among
the remedies it expressly authorized.”).
15
18 U.S.C. § 3661 (2006). See also Fed. R. Evid. 1101(d)(3) (evidenti-
ary restrictions inapplicable at sentencing).
UNITED STATES v. STREICH 2953
was convicted in this case was not an out of character episode,
but rather consistent with what his character had been for
years. Treatment during his imprisonment, and supervision
when he is eventually released, ought properly to reflect his
history, and section 3661 requires that the court have access
to it.