Petition for Writ of Certiorari — Andrew Wayne Hulen, Petitioner v. United States

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2017

ANDREW HULEN,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

ANTHONY R. GALLAGHER

Federal Defender

*JOSLYN HUNT

Assistant Federal Defender

Federal Defenders of Montana

50 West 14" Street, Suite 1

Helena, MT 59601

Telephone: (406) 449-8381

July 16, 2018 *Counsel of Record

QUESTION PRESENTED

Petitioner Andrew Hulen was required to complete sexual offender treatment

as a condition of his supervised release. Petitioner was forthright with his treatment

provider about actions he took that were inconsistent with his treatment regimen. His

treatment provider had Petitioner write down his admissions. Those admissions were

forwarded to Petitioner’s probation officer. As a result of being open with his

treatment provider about his prohibited behaviors, Petitioner was terminated from the

treatment program. His supervised release was revoked as a result.

Petitioner faced a Hobson’s “choice”: to incriminate himself during treatment

or to say nothing and forestall treatment. Either would lead inextricably to

revocation. Against this background, the following question is presented:

Whether the Ninth Circuit’s failure to analyze Petitioner’s argument

under the classic penalty situation addressed by this Court in Minnesota

v. Murphy, 465 U.S. 420, 426 (1984), and Garrity v. State of New

Jersey, 385 U.S. 493 (1967) violates the Self Incrimination Clause of the

Fifth Amendment to the United States Constitution.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......... 0.0.0 il

TABLE OF CONTENTS. 2 eseeseiueseimeiueews we gesw enue we emeemeweaws ili

TABLE OF AUTHORITIES ........ 00... ccc cette eae lv-v

OPINION BELOW :acseieceesaesieu@s wes meee eg eee eae nes wep es@ameaaee 1

JURISDICTION AND TIMELINESS OF THE PETITION ................. 2

UNITED STATES CONSTITUTION ....... 0... cece eee eees 2

STATEMENT OF THE CASE AND FACTS 0.0... 0. cee eee eee eee eee 3

(A) General case overview: +... cecsueeeigeweswew ss eewsseeacaues 3

(B) The district court’s decision on Petitioner’s argument

regarding his compelled admissions and use of those

admissions against him to revoke his supervised release. ......... 5

(C) The Ninth Circuit’s decision. ......... 00.0.0 cece eee 6

REASONS FOR GRANTING THE WRIT ..... 00.0.0 sce e eee eee ees 7

CONCLUSION 1.0.0.0... .. cece ene eee nent eens 13

ili

TABLE OF AUTHORITIES

Page No.

Cases

Garner v. United States,

ADA WS. 648, GO] (1970): x we sce ena ames re ewe eMEseeRaameMTMEs ws 8

Garrity v. State of New Jersey,

385 U.S. 493 (1967) 2... cee eens ii, 8, 9, 10, 14

Lefkowitz v. Turley,

414 US. 70, 77 (1973) oot ene ee ene neta 7

Lisenba v. People of State of California,

314 US. 219 (1941) Lo ccc cece eee t tenn e eee 9

McCoy v. Commissioner,

696 F.2d 1234, 1236 (9" Cir. 1983) 0.0... c cece cece cee eee es 13

Minnesota v. Murphy,

465 U.S. 420, 426 (1984) 2... cece eens i, 7-14

United States v. Antelope,

395 F.3d 1128 (9" Cir. 2005) 20... cece cc eee eee eens 12, 14

United States v. Bahr,

730 F.3d 963, 965 (9" Cir. 2013)... ccc cc cece cece cee ences 11

United States v. Hulen,

879 F.3d 1015 (9" Cir. 2018) oo... cece cece eee ees 1, 6-9, 11, 13

United States v. Saechao,

418 F.3d 1073 (9" Cir. 2005) 0.0... c ccc cece eee eee eens 12

iv

United States Code

28 U.S.C. 812541) csmesacves ui wesessesmy meee esieewswsswaweseewesweas 2

United States Constitution

Fitth Amendinent: cecacieewaswimeiaeewioemeamemeswens u, 2, 6-9, 11-12, 14

Supreme Court Rules

Rule 13,91 occ. cccceceeee eee eee eect eee eeeeeeeeeeeeeeeeeeeeeenes 2

No.

IN THE

SUPREME COURT OF THE UNITED STATES

ANDREW HULEN,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

Petitioner, Andrew Hulen, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Ninth Circuit in this case.

OPINION BELOW

1; The Opinion of the Ninth Circuit Court of Appeals is reported as United

States v. Hulen, 879 F.3d 1015 (9" Cir. 2018). A copy is attached in the Appendix

to this petition at pages 1-6 of the Appendix.

2. No written decision of the federal district court revoking Petitioner’s

supervised release on the basis of his compelled admissions exists. Rather, the

district court’s reasoning is outlined in its sentencing of Petitioner—the pertinent

pages of which are attached at pages 9-15 of the Appendix.

JURISDICTION AND TIMELINESS OF THE PETITION

The Ninth Circuit’s Opinion was filed on January 10, 2018 (Appendix at pages

1-6). Petitioner filed a petition for rehearing and suggestion for rehearing en banc on

February 23, 2018, which the Ninth Circuit denied on April 17, 2018 (Appendix page

16). This Court’s jurisdiction arises under 28 U.S.C. §1254(1). Petitioner’s petition

is timely because it was placed in the United States mail, first class postage pre-paid,

on July 16, 2018, within the 90 days for filing under the Rule of this Court (see Rule

13,4 1).

UNITED STATES CONSTITUTION

This case involves the Self Incrimination Clause of the Fifth Amendment to the

United States Constitution, which provides that no person “shall be held to answer

for a capital, or otherwise infamous crime... nor shall be compelled in any criminal

case to be a witness against himself.” U.S. Const. amend. V.

STATEMENT OF THE CASE AND FACTS

(A) General case overview.

1. For an offense he committed when he was 18 years old, Petitioner was

required to register as a sex offender. He failed to do so. He acknowledged as much.

A prison sentence was imposed. Petitioner began sex offender treatment upon his

release from custody.

2. The United States Probation Office filed a Petition for Warrant for

Offender Under Supervision, alleging Petitioner committed 22 separate violations of

his supervised release. The probation office then amended the petition, including one

additional violation allegation. All but one of the alleged violations arose from the

admissions Petitioner made to his treatment provider during a sex offender treatment

session.

3. During that session, Petitioner was forthright with his treatment provider.

He told his treatment provider he had acted contrary to lessons learned in the

program. Petitioner’s treatment provider ordered him to write down all of his

unseemly actions. Petitioner complied. The treatment provider conveyed the list to

the United States Probation Officer.

4. Based on his admissions, Petitioner’s probation officer filed a Second

Amended Petition for Warrant for Offender Under Supervision, alleging Petitioner

(1) failed to advise his probation officer in advance of his new employment; (2) failed

to make payments toward his Special Assessment fine; and (3) was terminated from

sex offender treatment “due to the violations of the treatment program which were

outlined in a written admission from the defendant.” The original allegations were

not re-alleged in the second amended petition.

5. Athis final revocation hearing, Petitioner admitted to the three violations

contained in the second amended petition. The district court revoked his supervised

release and proceeded to sentencing.

6. The government argued a within-guideline sentence was sufficient,

indicating Petitioner’s “first two violations . . . are not that significant. But the third

violation is probably the most important one[.]”

7. Petitioner argued that when he met with his treatment provider for his

individual sex offender treatment session on April 21, 2016, he told his treatment

provider that he was not doing all that he should to progress in treatment. He wanted

to start over and do better. In fact, when Petitioner decided to stop actions that were

not advancing with treatment, he sought out his treatment. That was the day he was

compelled to confess his wrongdoing.

8.

Petitioner argued that compelling his admissions during sex offender

treatment and then using those admissions against him was no different than

compelling polygraph testing.

(B)

compelled:

The district court’s decision on Petitioner’s argument regarding his

compelled admissions and use of those admissions against him to

revoke his supervised release.

The district court addressed whether his admissions were unlawfully

And I don’t know the answer to this question about forcing people to

admit to violations of treatment. I don’t know the answer to that. How

can we monitor what people are doing in treatment if they — there isn’t

a requirement that they have to be truthful with their treatment provider?

And if they’re — and if, as in your case, Mr. Hulen, you’re truthful with

Mr. Lewis, and then you’re doing behaviors that seem to be kind of

escalating, and they’re sexual behaviors, then that’s going to raise a red

flag with Mr. Lewis. And it’s certainly going to raise a red flag with

Ms. Woog [Petitioner’s probation officer] when he tells her — “he,”

being Mr. Lewis, tells her what you’re doing. And you have to be

honest in order to get meaningful treatment.

Maybe the — you know, are we punishing you for being honest in sex

offender treatment? I guess that’s one way to look at it. But, on the

other hand, I’m punishing you because you didn’t comply with the rules

of sex offender treatment that you’re supposed to comply with.

That’s, I think, the flip side of that coin. No one is forcing you to send

nude pictures and receive them and all these other pictures, or go to bars,

or do all this stuff. You’re choosing to do that. And that’s a violation

of your sex offender treatment rules.

(Appendix at pages 12-13).

10. The district court sentenced Petitioner to six months imprisonment

followed by 54 months supervised release.

(C) The Ninth Circuit’s decision.

11. Petitioner’s supervised release was revoked for violations he admitted

to during required sex offender treatment. The treatment provider used the statements

necessary to progress in treatment as ammunition which inevitably and

unquestionably abrogate sex offender treatment—thereby providing the most serious

basis for the government to petition to revoke Petitioner’s supervised release. Hulen,

879 F.3d at 1018.

12. The Ninth Circuit held use of compelled statements in revoking

Petitioner in such a manner did not violate his constitutional right against

self-incrimination because a revocation proceeding is not a criminal case so the Fifth

Amendment does not apply. Hulen, 879 F.3d at 1020.

13. The Ninth Circuit denied Petitioner’s petition for rehearing and

suggestion for rehearing en banc.

REASONS FOR GRANTING THE WRIT

The Ninth Circuit’s holding focused on whether a criminal prosecution actually

resulted for the probationers. However, such a focus runs afoul of the Ninth Circuit’s

own case law as well as settled precedent from this Court—the practical effect of

which is to chill probationers’ freedom to speak during treatment.

According to the Ninth Circuit’s holding in Hulen, probationers can never

commit a new crime by failing to successfully complete sex offender treatment. As

aresult, the Fifth Amendment is never implicated to protect probationers’ statements

during treatment.

1. The Self Incrimination Clause of the Fifth Amendment “not only permits

a person to refuse to testify against himself at a criminal trial in which he is a

defendant, but also “privileges him not to answer official questions put to him in any

other proceeding, civil or criminal, formal or informal, where the answers might

incriminate him in future criminal proceedings.’” Murphy, 465 U.S. at 426 (quoting

Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)).

The Ninth Circuit seized on the “future criminal proceeding” language quoted

in Murphy indicating that a probationer in Petitioner’s situation will never have

committed a criminal act because unsuccessful completion of sex offender treatment

is not, by itself, a crime. Stated differently, the Hulen opinion means that if a

probationer is revoked for admissions made while on supervised release, absent a new

criminal prosecution, no Fifth Amendment violation exists. Petitioner’s right to

remain silent is an empty constitutional promise.

2. The Hulen decision is contrary to the “penalty” cases addressed by this

Court, in which this Court has noted “[o]ccasionally . . . an individual succumb[s] to

the pressure placed upon him, fail[s] to assert the privilege, and [later] disclose[s]

incriminating information, which the State later . . . use[s] against him in a criminal

prosecution.” Murphy, 465 U.S. at 435. The general rule that the Fifth Amendment

privilege must be asserted when self-incrimination is threatened is inapplicable where

asserting the privilege “foreclose[s] a free choice to remain silent, and... compel|[s]

... incriminating testimony.” Garner v. United States, 424 U.S. 648, 661 (1976).

The question for Mr. Hulen during his treatment became whether he was required to

choose between making incriminating statements and jeopardizing his treatment by

remaining silent.

Both choices would lead to revocation of his supervised release because both

choices terminated him from the treatment program. “[I]f the state, either expressly

or by implication, asserts that invocation of the privilege would lead to revocation of

probation, it would [create] the classic penalty situation.” Murphy, 465 U.S. at 435.

In Garrity v. New Jersey, 385 U.S. 493 (1967), petitioners were threatened with

discharge from their employment for exercising their Fifth Amendment rights. This

Court held that they had not waived their Fifth Amendment privilege by responding

to questions rather than standing on their right to remain silent. /d. at 498-499. That

2 66

followed because petitioners’ “choice . . . was either to forfeit their jobs or to

incriminate themselves. The option to lose their means of livelihood or to pay the

penalty of self-incrimination [wa]s the antithesis of free choice to speak out or to

remain silent.” Jd. at 497.

3. In direct contradiction to United States Supreme Court precedent,

because of the decision in Hulen, now probationers like Petitioner have the option to

incriminate themselves—and get terminated from treatment and revoked—or to

remain silent—and not actually benefit from the treatment they are court-ordered to

attend. And yet, even though these “options” deprive a probationer seeking sex

offender treatment of his “free choice to admit, to deny, or to refuse to answer” the

questions asked of him (Lisenba v. People of State of California, 314 U.S. 219

(1941)), the Ninth Circuit endorsed these “options” as constitutional since a

revocation proceeding is not a criminal proceeding. Of note, the petitioners in

Garrity did not face a criminal proceeding nor was that the focus of the decision.

The focus in Hulen presumes that in a probationary context the Fifth

Amendment never applies since a revocation proceeding is not a criminal proceeding.

The Ninth Circuit failed to consider the consequence of what Petitioner was forced

to say—i.e., the classic penalty situation. That type of focus was not the analysis this

Court directed in Murphy or Garrity. Likewise, it cannot be the focus when treatment

is involved. People attend treatment to speak freely about their problems.

Probationers like Mr. Hulen, however, now cannot speak freely. Doing so places

them at risk of revocation and imprisonment.

4. This Court in Murphy indicated that “[i]f, for example, a residential

restriction were imposed as a condition of probation, it would appear unlikely that a

violation of that condition would be a criminal act.” Murphy, 465 U.S. at 435, n.7.

The defendant in Murphy was on probation. He was required to participate in a sex

offender treatment program, report to his probation officer, and be truthful to his

probation officer “in all matters.” Jd. at 422.

After several months of compliance, the defendant met with his probation

officer and told his probation officer that, during sex offender treatment, he had

admitted to two past crimes. Jd. at 423. Of note, the sex offender treatment provider

never told the probation officer about what the defendant had disclosed until the

probation officer asked the treatment provider about those statements upon the

defendant’s actual disclosure to the probation officer. Jd. at 423-424.

10

This Court held that the probation officer’s failure to inform the defendant of

his Fifth Amendment right against self-incrimination did not bar use of his

admissions at trial. /d. at 431. In so holding, this Court indicated it was dispositive

that the nature of the defendant’s “probation is such that probationers should expect

to be questioned on a wide range of topics relating to their past criminality.” Jd. at

432. Therefore, probationers who reveal incriminating information to their probation

officers cannot be said to have been compelled to do so in violation of their Fifth

Amendment rights. Id. at 440.

This Court’s opinion in Murphy centered on whether the defendant’s statement

to his probation officer without Miranda warnings was admissible in a subsequent

criminal proceeding. Jd. at 425. Petitioner does not disagree with the contention in

Murphy that a probation officer may ask a defendant questions about compliance with

his conditions—be it a residential requirement (as in Murphy) or sex offender

treatment (as in Hulen).

This Court in Murphy, however, did not discuss answers provided by

probationers during treatment posed by a third party, and therein lies the error the

Ninth Circuit made in applying Murphy’s decision on Petitioner’s facts.

11

5. Moreover, the Ninth Circuit is not abiding by its own precedent with the

Hulen decision. The probationers in United States v. Antelope, 395 F.3d 1128 (9"

Cir. 2005) and United States v. Saechao, 418 F.3d 1073 (9" Cir. 2005), for example,

faced revocation proceedings. The court’s focus was not on the type of proceeding

they faced, but rather on the type of information the probationers were being

compelled to disclose as addressed in a classic penalty analysis. See United States

v. Bahr, 730 F.3d 963, 965 (9" Cir. 2013) (citing Saechao, 418 F.3d at 1081)

(“Revocation of supervised release is not necessary to violate the right [against

self-incrimination]; the threat of revocation is itself sufficient to violate the [Fifth

Amendment] privilege and make the resultant statements inadmissible.”).

In Antelope, in particular, the probationer three times faced revocations for

failing to disclose information during treatment. Antelope, 395 F.3d at 1130. Yet,

the Ninth Circuit still held the probationer’s successful participation in the sex

offender treatment program “triggered a real danger of self-incrimination, not simply

a remote or speculative threat” because without the probationer’s disclosure he faced

being sent to prison. /d. at 1135.

6. Petitioner was ordered by the district court to successfully complete sex

offender treatment, which means that Petitioner had no other choice—except

additional prison time—but to do what he was ordered to do. That is the essence of

12

compulsion. It was not the probation officer who asked Petitioner questions. It was

Petitioner’s treatment provider who knew what actions Petitioner had taken because

Petitioner went to treatment expecting to talk to his treatment provider. Unlike

Murphy, however, admissions to a third party are critically different since a person

attending treatment does not expect to have the information provided during

treatment used against him.

The short-sighted logic of Hulen fails to recognize that a person “need not

incriminate himself in order to invoke the privilege.” McCoy v. Commissioner, 696

F.2d 1234, 1236 (9" Cir. 1983). Murphy directs that a court when determining

whether a probationer is subject to a penalty situation “inquire whether [his]

probation conditions merely required him to appear and give testimony about matters

relevant to his probationary status or whether they went farther” by taking “the extra,

impermissible step” of requiring him “to choose between making incriminating

statements and jeopardizing his conditional liberty by remaining silent.” Murphy,

465 U.S. at 436. That is precisely what occurred in Petitioner’s case.

CONCLUSION

The treatment setting should not be a place of silence, nor should it be a venue

for probation officers to obtain adverse information. The Hulen decision has

13

sanctioned both. Now, scores of probationers seeking sex offender treatment will

face jail instead.

WHEREFORE, the Court should grant this petition and set the case down for

full briefing and argument to return the focus of the Ninth Circuit’s analysis to the

classic penalty situation discussed in Murphy, Garrity, and Antelope. Without such

a return, the Fifth Amendment becomes an empty vessel.

Respectfully submitted,

J T

ssistant Federal Defender

July 16, 2018 Counsel of Record

14