USA v Bahr
Vacating a sentence and remanding, the panel held that the district court’s consideration, at sentencing, of compelled statements made by the defendant in the course of sex offender treatment during an earlier period of post-prison supervision violated his Fifth Amendment privilege against self-incrimination. The panel left to the district court on remand the determination whether the defendant’s mother’s testimony was admissible.
In 2003, Bahr was convicted of third degree rape under Oregon state law. Upon his release to supervision, Bahr was required to complete an approved sex offender treatment program. The terms of his supervision required adherence to all rules and conditions of the program and noted that the program could include polygraph testing. Bahr was indeed required to take a “full disclosure” polygraph test regarding his sexual history. During the test, he revealed that, as a minor, he had sexual contact with six other minors. He also revealed that, as an adult, he had sexual contact with seven different minors. And he revealed that he had eight to ten sexual encounters with fifteen- or sixteen-year-old girls while he was between eighteen and twenty years old. In another portion of the treatment program, Bahr admitted in a workbook that he had sexually abused eighteen children.
When the government prepared the pre-sentence report (“PSR”) in this case, it included Bahr’s admissions made during the polygraph disclosure and in the workbook exercise (“treatment disclosures”). Bahr moved to suppress the treatment disclosures. The district court denied the motion.1 During the sentencing hearing, the prosecution also called as a witness Sandra Brown, Bahr’s mother, who testified regarding statements Bahr made to her concerning his past sexual misconduct.
The use of the compulsory treatment disclosures at sentencing violated Bahr’s Fifth Amendment privilege against self-incrimination. United States v. Antelope, 395 F.3d 1128, 1133 (9th Cir. 2005). In order to establish a violation, a person must show “(1) that the testimony desired by the government carried the risk of incrimination . . . and (2) that the penalty he suffered amounted to compulsion.” Antelope, 395 F.3d at 1134. Potential violations of the Fifth Amendment are legal questions reviewed de novo. Id. at 1133.
We make clear now that the use of unconstitutionally compelled statements to determine a sentence in a later, unrelated criminal proceeding is unconstitutional. The Supreme Court has recognized that the Fifth Amendment’s protections extend to the sentencing phase of a criminal case. Mitchell v. United States, 526 U.S. 314, 327–28 (1999). We have recognized that those protections also extend to separate criminal proceedings. United States v. Saechao, 418 F.3d 1073, 1081 (9th Cir. 2005). Thus, in accord with this court’s precedent, we hold that the district court’s consideration of the treatment disclosures violated Bahr’s Fifth Amendment rights.
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Because the district court erred in considering Bahr’s compelled statements obtained in violation of Bahr’s Fifth Amendment privilege against self-incrimination, we remand for re-sentencing. We leave the issue of the admissibility of Brown’s testimony for the district court on remand, and we decline to reassign this case, as Bahr urges. If any revisions or redactions to the PSR must be made in light of our ruling, the district court should have the first opportunity to address those alterations. SENTENCE VACATED AND REMANDED.
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