United States District Court, D. Oregon
S. AMANDA MARSHALL, United States Attorney, GARY Y. SUSSMAN, Assistant United States Attorney, Portland, OR, Attorneys for Plaintiff.
STEVEN T. WAX, Federal Public Defender, THOMAS J. HESTER, Assistant Federal Defender, Portland, OR, Attorneys for Defendant.
OPINION AND ORDER
ANNA J. BROWN, District Judge.
This matter comes before the Court on Defendant Richard Roosevelt Bahr's Motion (#51) to Exclude Testimony of Sandra Brown and to Strike Material from the Presentence Investigation Report. For the reasons that follow, the Court GRANTS in part and DENIES in part Defendant's Motion.
On January 26, 2011, Defendant was charged with two counts of Knowingly and Unlawfully Possessing Child Pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and 2253. On August 12, 2011, Defendant pled guilty to both counts of the Indictment.
On March 21, 2012, the Court held a sentencing hearing at which Defendant objected to the Court's consideration in fashioning a reasonable sentence of statements made by Defendant during a May 2009 polygraph examination taken in the course of the state post-prison supervision term that followed Defendant's release from prison after a rape conviction. The Court directed the parties to brief the issue.
On April 11, 2012, Defendant filed a Motion to Suppress in which he sought an order suppressing statements from Defendant's May 2009 polygraph on "which the Government's sentencing recommendation is partially predicated" on the ground that the Fifth Amendment bars consideration of those statements at sentencing.
On April 16, 2012, the government filed a Response in which it asserted, among other things, that (1) the Court could consider Defendant's statements in his May 2009 polygraph at sentencing and (2) even if the Court did not consider Defendant's May 2009 polygraph statements, the Court should apply a fivelevel guidelines enhancement based on admissions that Defendant made to his mother, Sandra Brown, about his sexual abuse and/or exploitation of minors.
On April 23, 2012, Defendant filed a Reply in which he requested the Court also to suppress the statements he made to Brown about his sexual abuse and/or exploitation of minors.
On April 23, 2012, the Court took testimony from Brown and heard oral argument on Defendant's Motion.
On May 24, 2012, the Court issued an Opinion and Order in which it denied Defendant's Motion to Suppress.
On June 5, 2012, the Court sentenced Defendant to 240 months imprisonment on each of Counts 1 and 2 to be served concurrently and to a life term of supervised release. On June 25, 2012, Defendant appealed the Court's denial of his Motion to Suppress and his sentence.
On January 23, 2014, the Ninth Circuit issued an Opinion and Mandate in which it vacated Defendant's sentence on the ground that "the government... compelled [Defendant's] [May 2009 liedetector] treatment disclosures in violation of the Fifth Amendment, and the district court should not have considered the information." United States v. Bahr, 730 F.3d 963, 967 (9th Cir. 2013). The Ninth Circuit remanded the matter to this Court for resentencing. The Ninth Circuit specifically noted, however, that it "express[ed] no opinion regarding whether Brown's testimony was admissible evidence in determining a valid sentence" and "le[ft] the issue of the admissibility of Brown's testimony for the district court on remand." Id. The Ninth Circuit also noted "[i]f any revisions or redactions to the [Presentence Report] PSR must be made in light of our ruling, the district court should have the first opportunity to address those alterations." Id.
On June 16, 2014, Defendant filed a Motion to Exclude Testimony of Sandra Brown and to Strike Material from the Presentence Investigation Report.
On July 8, 2014, the Court heard oral argument on Defendant's Motion and directed the parties to file supplemental briefing.
Defendant moves to exclude the statements made to Brown on the ground that consideration of those statements for purposes of sentencing violates Defendant's rights under the Fifth Amendment to the United States Constitution.
The Fifth Amendment provides in pertinent part that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. "It has long been held that this prohibition 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.'" Minn. v. Murphy, 465 U.S. 420, 426 (1984)(quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)).
In all such proceedings, a witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant.... Absent such protection, if he is nevertheless compelled to answer, his answers are inadmissible against him in a later criminal prosecution.
Id. (quotation omitted).
In addition, "[a] defendant does not lose this protection by reason of his conviction of a crime; notwithstanding that a defendant is imprisoned or on probation at the time he makes incriminating statements, if those statements are compelled they are inadmissible in a subsequent trial for a crime other than that for which he has been convicted." Id. (citing Baxter v. Palmigiano, 425 U.S. 308, 316 (1976)).
The Supreme Court has made clear, however, that the Fifth Amendment is concerned with a compulsion to testify coming from a government source. See, e.g., Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977)("When a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered, that testimony is obtained in violation of the Fifth Amendment and cannot be used against the declarant in a subsequent criminal prosecution."). The Supreme Court has noted the Fifth Amendment is not concerned "with moral and psychological pressures to confess emanating from sources other than official coercion." Or. v. Elstad, 470 U.S. 298, 304-05 (1985)(citing Cal. v. Beheler, 463 U.S. 1121, 1125 & n.3 (1983)). "Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions." Id. at 305 (quotation and citation omitted). See also Colorado v. Connelly, 479 U.S. 157, 165-66 (1986)(There is an "essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant, on the other"; the "most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause."); United States v. Eide, 875 F.2d 1429, 1434 (9th Cir. 1989)("[V]oluntariness is not an issue when the admissions are made to private individuals"; coercive police activity "is a necessary predicate to the finding that a confession is not voluntary.")(quoting Connelly, 479 U.S. at 167).
Brown testified at the April 23, 2012, hearing that Brown learned from a neighbor that Defendant stuck his hand down the pants of the neighbor's daughter when Defendant was five years old and he threatened to kill the daughter if she told anyone. Brown also described many occasions when Defendant became violent with her before he was 12, including stabbing holes in Brown's bedroom door, lighting things on fire inside the house, making a bomb and putting it under her bed, and threatening to burn down the house. Brown testified there were times when she locked herself and her two girls in the bedroom and put a chair in front of the door because it was not safe being in the house with Defendant. Brown stated she feels Defendant is a danger ...