United States Court of Appeals For the First Circuit

No. 18-2097

UNITED STATES OF AMERICA,

Appellee,

v.

BRIAN K. ROGERS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

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

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.

February 19, 2021 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

- 2 - 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

- 3 - 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

- 4 - 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.

- 5 - 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.

- 6 - This timely appeal followed. We have jurisdiction under

II.

We generally review a district court order revoking a

defendant's supervised release for abuse of discretion. See United

States v. Colón-Maldonado,

(1st Cir. 2020) (citing

United States v. Wright,

(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

1 While the six months of imprisonment imposed by the district court upon its revocation of Rogers's supervised release has expired, Rogers's appeal is not moot because the district court also imposed a term of supervised release of eight years to which Rogers remains subject. See, e.g., United States v. Sostre- Cintrón,

(1st Cir. 2018) ("Notwithstanding the completion of [the defendant's] imprisonment term, these challenges are not moot because his period of supervised release continues."); United States v. Carter,

(1st Cir. 2017) (finding a defendant's sentencing challenge was not moot even though he had completed his prison sentence because he was still under supervised release and thus "has a real stake in challenging his sentence"). Furthermore, unlike in United States v. Suarez-Reyes,

(1st Cir. 2018), where we found that the defendant's release from prison rendered his appeal moot,

, here Rogers requested a sentence that included a longer term of imprisonment with no term of supervised release, and the government has not argued that Rogers's appeal is moot.

- 7 - 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,

(1984); see also

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,

(quoting United States v. Monia,

(1943))

(internal quotations marks omitted) (alterations omitted). In

line with that interpretation, the Court has articulated a "general

- 8 - rule" that in order for testimony to be considered "compelled"

within the meaning of the Amendment, "the privilege must be claimed

when self-incrimination is threatened."

. If a person

does not invoke it and chooses to speak, any resultant testimony

"will not be considered to have been 'compelled,'"

at 427

(quoting Monia,

), but rather "voluntary,"

.

The Court in Murphy applied these principles in

addressing a probationer's challenge to the use of statements that

he made to a court-mandated counselor in a subsequent criminal

proceeding. It reasoned that in accordance with the general rule

that one's Fifth Amendment privilege must be invoked, a

probationer's "general obligation to appear and answer questions

truthfully" does not "in itself convert . . . otherwise voluntary

statements into compelled ones" unless that probationer both

"invokes the privilege and shows that he faces a realistic threat

of self-incrimination" but is nevertheless "required to answer."

. Absent such an invocation, the probationer must show

that he falls within one of the few recognized "exception[s]" to

the general rule that the privilege must be invoked in order for

resultant testimony to be considered "compelled."

.

Of those exceptions, by virtue of which the privilege is

"self-executing,"

, Rogers only relies on one.

Specifically, the "penalty" exception is triggered in situations

- 9 - where a person's very right to invoke his Fifth Amendment privilege

is penalized, such that he can be considered to have been deprived

of a "free choice" between testifying and remaining silent.

at 434 (quoting Garner v. United States,

(1976)).

The Court recognized that one "classic penalty situation" is when

the government, "either expressly or by implication, asserts that

invocation of the privilege would lead to revocation of probation."

Id. at 435. In that situation, the exception would operate such

that any testimony elicited therefrom is "deemed compelled and

inadmissible in a criminal prosecution." Id.

The Court ultimately concluded that Murphy failed to

claim his Fifth Amendment privilege and did not fall within any of

the recognized exceptions. Id. at 429-40. In explaining why

Murphy could not avail himself of the "penalty" exception, the

Court distinguished Murphy's situation from that of the

petitioners in Garrity v. New Jersey,

(1967), in which

the Court held that New Jersey violated the Fifth Amendment when

it threatened state employees who were subjects of an investigation

that they would lose their jobs if they invoked the privilege

against self-incrimination.

. The Court found that

the choice "either to forfeit their jobs or to incriminate

themselves" was impermissibly "likely to exert such pressure upon

an individual as to disable him from making a free and rational

choice."

(second quoting Miranda v. Arizona, 384 U.S.

- 10 - 436, 464-65 (1966)). The Court in Murphy distinguished Garrity on

the basis that the latter's investigators had "expressly informed

[the state employees] . . . that an assertion of the privilege

would result in the imposition of a penalty," whereas the Court

found "no reasonable basis for concluding that Minnesota attempted

to attach an impermissible penalty to [Murphy's] exercise of the

privilege," or for Murphy to have believed "that his probation

would be revoked if he remained silent." Id. at 437-38.

Against this backdrop, in United States v. York,

(1st Cir. 2004), we examined a defendant's challenge to a

supervised release condition that, like the one at issue here,

required him "to submit to periodic polygraph testing as a means

to insure that he [was] in compliance with the requirements of

his" mandatory sex offender treatment program.

. We

recognized that York's Fifth Amendment challenge to the mandatory

polygraph examinations was a "potent" one, because the requirement

could have "implicate[d] [his] Fifth Amendment rights" if it were

construed to "flatly require[] York to submit to polygraph testing

as a condition of his supervised release, so that York's refusal

to answer any question -- even on valid Fifth Amendment grounds

-- could constitute a basis for revocation."

. But we

found that the better reading of the condition -- in light of its

qualifier that "[w]hen submitting to a polygraph exam, the

defendant does not give up his Fifth Amendment rights,"

at 18

- 11 - -- was that it prevented a revocation of supervised release based

on his invocation of the privilege.

.

Recently, in United States v. Hood,

(1st

Cir. 2019), we applied York to uphold a special condition of

supervised release identical to the one imposed on Rogers here.

. Our holding rested on our understanding that the

qualifier attached to the condition -- 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" -- prevented

the government from basing a revocation of supervised release in

any way (not just "solely") on the invocation of the privilege.

(alterations in original). It is thus settled law in

this circuit that a court can impose mandatory periodic polygraph

examinations in connection with sex offender treatment programs as

a condition of supervised release, where the condition prohibits

basing any revocation in any way on the defendant's assertion of

his Fifth Amendment privilege. See also United States v. Brewster,

(7th Cir. 2015) (collecting cases and

finding that "[e]very circuit to consider the issue has upheld the

imposition of polygraph testing as a condition of supervised

release").2

2 We recognize that Hood contemplated a potential challenge to the constitutionality of revoking supervised release based on

- 12 - 2.

In light of this applicable law, Rogers's options on

appeal are limited. This is largely because nothing in the record

indicates that he ever asserted or even attempted to assert his

Fifth Amendment privilege, and he does not now allege otherwise.

In consequence, he cannot make out a straightforward claim that

his Fifth Amendment privilege was violated because he invoked it

but nevertheless was compelled to give self-incriminating

testimony. Instead, Rogers offers two different contentions.

First, Rogers conclusorily asserts that "polygraph

examination in the context of sex offender treatment programs is

a form of compulsion so severe that it renders any statement made

during such an exam involuntary and inadmissible in any

proceeding," or put differently, that "statements made during a

polygraph examination are the result of compulsion and therefore

involuntary." This would be a significant departure from existing

doctrine. Indeed, Rogers seems to be asking us to recognize a new

exception to the general rule that the Fifth Amendment privilege

an investigation prompted by the invocation of the privilege during a mandatory polygraph examination.

n.3. The instant case does not require us to decide, and we do not decide, that issue. We note, however, that the invocation of the privilege does not by itself prevent the government from investigating or prosecuting the underlying conduct. See Kastigar v. United States,

(1972) ("The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted.").

- 13 - against self-incrimination is not self-executing. Specifically,

the thrust of the assertion is that the privilege should

automatically apply to protect anyone undergoing a polygraph

examination, on the ground that such examinations inherently will

elicit involuntary responses. Moreover, based on the facts of

this case, Rogers's conclusory argument means that any and all

responses to polygraph examination questions are "compelled," even

when an examinee explicitly agrees to undergo the examination and

actively participates in it after having been clearly informed

that his supervised release would not be revoked based on his

refusal to answer upon invoking his Fifth Amendment privilege.

Rogers does not offer any authority or developed

argument to support his view, so we might conclude that the claim

is waived. See United States v. Zannino,

(1st Cir.

1990). But even if it isn't waived, we would reject it because it

is contradicted by our decision in York, where we found that

periodic polygraph examinations as a condition of supervised

release, where the condition makes clear that the supervised

releasee may invoke his Fifth Amendment privilege without penalty,

are no more compulsory than mandatory interviews with probation

officers in which the probationer is required to be truthful and

which the Supreme Court held to be lawful.

-25

(citing Murphy,

, 435 & n.7). Here, the special

condition at issue included the same "limiting language" that we

- 14 - found satisfied those criteria in Hood.

. Only

subsequent controlling authority can upend that precedent. See

United States v. García-Cartagena,

(1st Cir.

2020). Rogers cites none.

The rule that perhaps most closely resembles the

exception that Rogers asks us to create is that which requires

"the exclusion of incriminating statements obtained during

custodial interrogation unless the suspect fails to claim the Fifth

Amendment privilege after being suitably warned of his right to

remain silent and of the consequences of his failure to assert

it." Murphy,

(citing Miranda, 384 U.S. at 467-

69). But the Supreme Court has repeatedly emphasized that this

"extraordinary safeguard 'does not apply outside the context of

the inherently coercive custodial interrogations for which it was

designed.'" Id. (quoting Roberts v. United States,

(1980)). The Court expressly rejected the expansion of the

exception to include probation interviews, finding any coercive

pressures that inhere in them, including the risk of revocation of

probation were the probationer to decide to terminate the

interview, to pale in comparison to those of custodial

interrogations. Id. at 430-34. We are not persuaded that

polygraph examinations of persons under supervision should be

treated differently.

- 15 - Thus, the only question that remains is whether a penalty

was attached to Rogers's potential invocation of the privilege.

That brings us to Rogers's second argument in support of his Fifth

Amendment claim. He asserts that he falls within the well-

established "penalty" exception to the general rule that the Fifth

Amendment privilege against self-incrimination is not self-

executing, because his supervised release was revoked at least in

part because of statements he made resulting from his compliance

with the mandatory polygraph examination requirement. Rogers says

that York is no barrier to his claim because in that case we

addressed a facial challenge to conditions of supervised release,

whereas here Rogers's release was actually revoked and therefore

he was actually penalized. On the facts of this case, however,

this amounts to a distinction without a difference.

The "penalty" exception only applies when the very

ability to invoke the Fifth Amendment privilege is penalized. The

cases that Rogers relies on are explicit on this point. Indeed,

Rogers asks us to "apply" Garrity, and he cites Justice Kennedy's

plurality opinion and Justice O'Connor's concurrence in McKune v.

Lile,

(2002). But the plurality opinion in McKune

acknowledged that "the so-called penalty cases," including

Garrity, "involved free citizens given the choice between invoking

the Fifth Amendment privilege and sustaining their economic

livelihood."

(emphasis added). Justice O'Connor's

- 16 - concurrence similarly understood that line of cases to prohibit

"penalties levied in response to a person's refusal to incriminate

himself or herself" that were severe enough to have "compel[led]"

the incriminating statements.

(same). Moreover, as

earlier discussed, the Court in Murphy had previously

distinguished Garrity in particular on the ground that government

officials had "expressly informed [the state employees] . . . that

an assertion of the privilege would result in the imposition of a

penalty." Murphy,

(same). Here, as in Hood, the

polygraph condition's qualifier suffices to defeat any notion that

the condition itself threatened to penalize Rogers's assertion of

the privilege, and nothing in the record even suggests that anyone

threatened him in this way. See

.

Accordingly, Rogers's Fifth Amendment privilege against

self-incrimination was not violated.

B.

Rogers also argues that his suspension from sex offender

treatment violated his Fifth Amendment right to due process,

because the suspension prevented him from continuing on supervised

release even though he was not afforded sufficient process to

contest the suspension.3

3 Rogers also contends that, as a matter of substantive due process, his revocation deprived him of the right to be free from termination of a sex offender treatment program on the basis of statements obtained through a polygraph examination. However, he

- 17 - Rogers bases his due process argument almost exclusively

on a single district court case from outside this circuit, Beebe

v. Heil,

(D. Colo. 2004). There, the District

Court for the District of Colorado concluded that an inmate had a

cognizable liberty interest in participating in sex offender

treatment because his suspension from treatment would have

automatically rendered him ineligible for parole.

at 1016-

17. Thus, accepting for the sake of argument the premise that

Beebe's reasoning supports the conclusion that Rogers had a

cognizable liberty interest in participating in a sex offender

treatment program, that interest arose not from a right to

participate in sex offender treatment for its own sake, but from

the potential consequences of suspension: the revocation of his

supervised release.

But there is a material difference between Beebe's and

Rogers's respective circumstances. Beebe complained that he was

rendered ineligible for parole "without prior written notice of

the reason for his termination, without an opportunity to be heard

by a neutral factfinder, without an opportunity to present evidence

in his defense, and without an opportunity to present witnesses in

his defense."

. Here, by contrast, Rogers

makes no argument why the Due Process Clause would provide broader protection in this context than the Self Incrimination Clause does, and therefore our conclusion above that the Self Incrimination Clause is not implicated here precludes this argument.

- 18 - participated in a full evidentiary hearing between his suspension

from treatment and the revocation of his supervised release --

precisely the kind of process that Beebe had requested.

Accordingly, Rogers's Fifth Amendment right to due

process was not violated.

III.

The district court's order revoking Rogers's supervised

release is affirmed.

- 19 -