United States v. Castillo, 18-CR-3673-WJ

396 F.Supp.3d 997

UNITED STATES of America, Plaintiff,

v.Raylon CASTILLO, Defendant.

No. 18-CR-3673-WJ

United States District Court, D. New Mexico.

Filed August 7, 2019

Frederick T. Mendenhall, III, U.S. Attorney's Office, Albuquerque, NM, for Plaintiff.

MEMORANDUM OPINION AND ORDER OVERRULING DEFENDANT'S OBJECTION TO POLYGRAPH TESTING AS CONDITION OF SUPERVISED RELEASE

William P. Johnson, Chief U.S. District Judge.

THIS MATTER comes before the Court following a hearing on Defendant's Formal Objections to Presentence Report (Doc. 30) which was filed on June 20, 2019 by Defendant Raylon Castillo (hereinafter "Defendant" or "Castillo"). At the hearing on July 15, 2019, the Court ruled on Defendant's other sentencing objections and took the objection to the proposed special condition of supervised release requiring Castillo to submit to polygraph testing under advisement. The Court now addresses Defendant's objection to the polygraph condition of his terms of supervised release, as provided in Doc. 25-1/Doc. 34-1. Having reviewed the relevant law and the parties' arguments, the Court finds that Defendant's objection is not well-taken and, therefore, is OVERRULED .

BACKGROUND

In May of 2015, Castillo was indicted on the charge of aggravated sexual abuse of a minor in Indian Country, in violation of 18 U.S.C. §§ 1153, 2243(a) and 2246(2)(A). 15-CR-1802, Docs. 1, 26. In 2016, Castillo pleaded guilty to sexual abuse of a minor in front of U.S. District Judge Robert Brack, who sentenced Castillo to thirty months' imprisonment, followed by five years of supervised release. 15-CR-1802, Doc. 47. Castillo was required to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA) as a condition of his conviction, which Castillo did on September 29, 2016 when he registered with the Bernalillo County Sheriff's Office. PSR, ¶¶ 9–10. Castillo established his residence at the La Posada Halfway House on December 21, 2017, but he absconded about a week later and did not update his residency information as required under SORNA. PSR, ¶ 11. In April 2018, Farmington, New Mexico law enforcement officers arrested Castillo on unrelated charges. PSR, ¶ 13. In May 2018, the United States Probation Officer petitioned for revocation of Castillo's supervised release from the sexual abuse conviction on the grounds that he had violated his conditions of supervised release. 15-CR-1802, Doc. 87. Judge Brack imposed an eighteen-month sentence upon Castillo's admission of his violation. 15-CR-1802, Doc. 98.

On November 7, 2018, Castillo was indicted on a single count of failing to update sex offender registry status, in violation of 18 U.S.C. § 2250(a) and 34 U.S.C. § 20913. 18-CR-3673, Doc. 1. Castillo is now before the undersigned judge for sentencing upon pleading guilty to the failure to register charge pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(B) plea agreement. Doc. 22.

Castillo filed his Sentencing Memorandum (Doc. 29) and his Formal Objections to the Presentence Report (Doc. 30), and the Government responded (Doc. 32). At the hearing on July 15, 2019, this Court addressed the objections raised by Castillo, including the six-level enhancement to his offense level, the risk notification condition, and the restriction barring Castillo from places used primarily by children. Doc. 33, Clerk's Minutes. The Court ruled that the total adjusted Sentencing Guidelines offense level is 12 and the criminal history category is III, yielding an advisory guideline sentencing range of 15–21 months. Doc. 33. The final objection to the Pre-Sentence Report (PSR) before the Court stems from the polygraph condition, which requires that Castillo "must submit to clinical polygraph examinations, as directed by the probation officer and/or treatment provider." Doc. 25-1/Doc. 34-1, Conditions Attachment to PSR; Doc. 30.

DISCUSSION

Castillo objects to the polygraph condition on several grounds, which are addressed in turn below. First, he argues that the special polygraph condition violates his Fifth Amendment privilege against self-incrimination. Second, he argues that this condition is an improper delegation because it grants the probation officer decision making authority that should be reserved for the judiciary. Third, Castillo claims that the probation officer has failed to identify how this condition is reasonably necessary to achieve the statutory goals of supervised release as provided in 18 U.S.C. § 3583(d). Furthermore, at the hearing, defense counsel argued that, should the Court require the polygraph testing condition, the examiner should inform defense counsel of the anticipated questions ahead of time so that defense counsel can advise Castillo about answering them.

I. Fifth Amendment Privilege Against Self-Incrimination¹

As the Tenth Circuit Court of Appeals has explained,

The Fifth Amendment's privilege against self-incrimination applies not only to persons who refuse to testify against themselves at a criminal trial in which they are the defendant, but also ‘privileges [them] not to answer official questions put to [them] in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate [them] in future criminal proceedings.’

United States v. Von Behren , 822 F.3d 1139, 1144 (10th Cir. 2016) (quoting Minnesota v. Murphy , 465 U.S. 420, 426, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) ). For a communication to receive Fifth Amendment privilege, it must be testimonial, incriminating, and compelled. Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County , 542 U.S. 177, 189, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). The Tenth Circuit, joining other circuits, has ruled that statements made during polygraph examinations may be protected by the Fifth Amendment because "[t]here is no doubt that answering questions during a polygraph examination involves a communicative act which is testimonial." Von Behren , 822 F.3d at 1144. Von Behren noted that the issues of incrimination and compulsion are "less certain" in the context of when a clinical polygraph examination is included as a special condition of a defendant's supervised release. Id.

The Fifth Amendment privilege is normally not self-executing, which means that a defendant or witness must affirmatively claim it to receive its protection; however, an exception exists for "penalty cases." Id. at 1149. The Fifth Amendment prohibits the government from "threatening to impose substantial penalties" because the defendant invokes the Fifth Amendment protection to not give incriminating testimony against himself. Id. at 1147 (citation and quotation marks omitted). The Supreme Court has explained that not all penalties are so great as to violate this maxim, but relevant to this case, the Supreme Court has expressly ruled that

[t]here is thus a substantial basis in our cases for concluding that if the state, either expressly or by implication, asserts that invocation of the privilege would lead to revocation of probation, it would have created the classic penalty situation, the failure to assert the privilege would be excused, and the probationer's answers would be deemed compelled and inadmissible in a criminal prosecution.

Minnesota v. Murphy , 465 U.S. 420, 435, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984). As to incrimination, a communication is incriminating under the Fifth Amendment not only when it directly yields evidence to support a criminal conviction, but when it "includes information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution." Von Behren , 822 F.3d at 1144 (citation omitted). The danger of self-incrimination must be "real and appreciable," and not merely "imaginary and unsubstantial." Id. (citation omitted).

The Tenth Circuit addressed incrimination and compulsion in United States v. Von Behren , where the polygraph examination required the defendant to answer four questions that focused on the defendant's past sexual activity with minors, use of force or threats to engage in sexual activity, sexual contact with anyone who was unconscious, and sexual contact with family members. Id. at 1145. These questions corresponded to Colorado state criminal statutes, and three of the questions asked for the admission of a felony under state law. Id. at 1145 n.2–5. The polygraph examination at issue did not have other questions about the defendant's compliance with his supervised release. Id. at 1145. The Circuit explained that the defendant's answers could furnish a link in a prosecution against him for any of those potential crimes or could lead to an investigation of the defendant for such crimes. Id. The Circuit also ruled that the questions were compulsory because the government's position was that if the defendant did not answer the questions, then he would be terminated from the treatment program which in turn would result in a petition to revoke supervised release for violating conditions of supervision. Id. at 1150. The Circuit found that "[a] witness is compelled under the Fifth Amendment as soon as the Government threatens him with a substantial penalty—it makes no difference whether he proceeds with answering or stands on his right." Id. at 1151.

Castillo relies on Von Behren to argue that the "mandatory condition of polygraph examinations as part of supervised release is compulsion in violation of the Fifth Amendment." Doc. 30 at 9. However, a careful reading of the opinion in Von Behren does not support Castillo's contention in the instant matter. First, the Tenth Circuit in Von Behren did not impose a blanket ban on polygraph examinations as conditions of supervised release when ordered by a treatment provider, as Castillo suggests. See Doc. 30 at 8. Indeed, the Tenth Circuit has upheld the use of polygraph testing as a condition of supervised release as permissible when...