Wake Forest Law Review

By Ali Fenno

On March 13, 2017, the Fourth Circuit issued a published opinion in the criminal case of United States v. Lara.  In Lara, the Fourth Circuit addressed whether the district court violated the psychotherapist-patient privilege and the Fifth Amendment privilege against self-incrimination when, during a sentencing hearing, it considered statements the defendant, Juan Lara (“Lara”), made while participating in a compulsory Sex Offender Treatment Program (“Treatment Program”) that had been a condition to his probation. After examining the knowing and voluntary nature of Lara’s consent to his probation terms and the voluntary nature of the statements Lara made during the Treatment Program, the Fourth Circuit concluded that the district court did not err in considering the self-incriminating statements.

Factual and Procedural Background

In February 2008, Lara was convicted for the aggravated sexual battery of a mentally incapacitated victim under Virginia Code Section 18.2-67.3(A)(2) and sentenced to 20 years’ imprisonment with 17 years suspended. In addition, upon his release from confinement, Lara was to serve 20 years’ supervised probation and was required to complete a Treatment Program, allow the Treatment Program provider to have “unrestricted communication with the probation and parole department,” and “submit to any polygraph . . . deemed appropriate by [his] supervising officer.” Lara acknowledged and consented to these conditions before his release by signing a form that listed the conditions.

Lara’s probationary period started immediately upon his release in December 2009. He was referred to a Treatment Program, Flora Counseling Services Corporation (“Flora), and met with one of Flora’s licensed clinical social workers for an interview in April 2010. During the interview, Lara detailed his past sexual conduct with minors, commission of forcible sexual assaults, and involvement in two murders. He later confirmed these incidents in a polygraph examination and signed a written statement describing the incidents. Then, in July 2010, he signed a document entitled “Sex Offender Program Acknowledgment of Confidentiality Waiver” to acknowledge that all information he relayed to Flora’s therapists and group leaders “is not privileged or private” and that Lara “waive[d] any and all such rights of confidentiality which may exist by statute or rule of law.”

Lara successfully completed Flora’s Treatment Program, but in March 2014, in violation of his conditions of probation, he moved from Virginia to Texas without notifying his probation officer or updating his registration with the Virginia State Police’s Sex Offender and Crimes Against Minors Registry. Several months later, he was arrested and indicted by a federal grand jury for violating the Sex Offender Registration and Notification Act (SORNA).

Lara pleaded guilty to the SORNA violation and filed a motion to exclude from consideration at sentencing the statements he made during Flora’s Treatment Program interview that detailed his past criminal incidents. The district court denied his motion, holding that he had voluntarily waived any psychotherapist-patient privilege and that the Fifth Amendment did not protect him from the government’s use of voluntary disclosures of incriminating information. The court then concluded that Lara more likely than not committed the crimes he admitted to during Flora’s Treatment Program interview, and sentenced him to 120 months’ imprisonment.

Issues on Appeal and Standard of Review

The first issue on appeal was whether Lara knowingly and voluntarily waived the psychotherapist-patient privilege. The second issue was whether the incriminating statements Lara made during his intake interview invoked his Fifth Amendment privilege against self-incrimination.  A district court’s determination of whether a privilege should be recognized is a mixed question of law and fact. Accordingly, the Fourth Circuit reviewed both issues de novo.

Waiver of the Psychotherapist-Patient Privilege

Lara first argued that he did not waive the psychotherapist-patient privilege because he was “compelled to participate” in Flora’s Treatment Program. In rejecting this argument, the Fourth Circuit first noted that the psychotherapist-patient privilege is strictly construed, and a defendant has the burden of showing that he did not waive the privilege by knowingly and voluntarily relinquishing it. The court then recognized that, especially when the probationary period is used as an alternative to incarceration, courts administering probation as a punishment may deprive a criminal offender of certain freedoms. The Fourth Circuit further identified multiple courts that had found a criminal defendant’s consent to court-imposed conditions of release to be voluntary despite the alternative of incarceration.

Here, Lara chose to agree to the terms of his supervised probation as an alternative to incarceration. Those terms explicitly authorized Treatment Program providers to have “unrestricted communication” with the state probation and parole department as an alternative to incarceration. Accordingly, the Fourth Circuit concluded that the alternative of incarceration did not eradicate the voluntary nature of Lara’s consent to the terms of his probation, and held that Lara waived any psychotherapist-patient privileges that may have applied to the incriminating statements he made while participating in Flora’s Treatment Program.

Failure to Invoke Fifth Amendment Privilege

Next, Lara argued that his Fifth Amendment privilege against self-incrimination was violated because the probation conditions required him to disclose incriminating information. The Fourth Circuit rejected this argument as well. It first noted that the Fifth Amendment privilege “generally is not self-executing” and that a defendant “ordinarily must assert the privilege rather than answer if he desires not to incriminate himself.” But it then looked to Minnesota v. Murphy, where the United States Supreme Court recognized that the threat of revocation of probation could “trigger self-executing Fifth Amendment protections.” However, this could only occur when direct evidence indicated that the defendant only confessed because it was nearly certain that his silence would cause probation to be revoked.

The Fourth Circuit then examined the factual record and could not find any direct evidence that Lara made the incriminating statements during Flora’s Treatment Program interview under the threat of revocation of his probation. Indeed, the state court could not have revoked his probation if he had asserted his Fifth Amendment privilege during the interview. Thus, the Fourth Circuit held that the statements were voluntarily made and did not invoke Lara’s Fifth Amendment privilege against self-incrimination.

Conclusion

Because Lara’s incriminating statements were knowingly and voluntarily made, the Fourth Circuit concluded that he waived the psychotherapist-patient privilege and did not invoke the Fifth Amendment privilege against self-incrimination.  Accordingly, the Fourth Circuit affirmed the district court’s judgment, holding that the district court did not err when it considered at the sentencing hearing the incriminating statements Lara made during Flora’s Treatment Program.

 

By Mike Stephens

On Thursday, February 23, 2017, the Fourth Circuit issued a published opinion in Heyer v. U.S. Bureau of Prisons. Appellant, Thomas Heyer, brought several claims against the United States Bureau of Prisons (BOP) for failing to accommodate his deafness. After reviewing the district court’s grant of summary judgment in favor of BOP, the Fourth Circuit vacated and remanded the order.

Facts and Procedural History

After Heyer’s initial sentence expired, he remained in civil custody after being deemed “sexually dangerous to others.” He was born deaf and his native language is American Sign Language (ASL) . Given the dramatic differences between ASL and English, Heyer is unable to communicate effectively in English. Since his arrival at the prison, Heyer has repeatedly requested ASL interpreters. His inability to communicate with others has created several problems. Heyer is unable to communicate with the mental health officials responsible for determining the duration of his stay in prison. Heyer has suffered several strokes at the prison and has not been provided a way to communicate with medical personnel. He has also does not attend religious services and is unable to access goods sold because there are no translators. Additionally, Heyer has repeatedly been late or missed scheduled activities because he cannot hear announcements and does not have a vibrating watch or bed.

In 2011, Heyer filed suit against BOP asserting multiple violations of his First and Fifth Amendment rights. His Fifth Amendment claims were based on BOP’s failure to provide translators that would allow him to communicate with the medical and mental health professionals. Furthermore, the complaint alleged Heyer’s First Amendment rights had been violated by BOP’s refusal to provide a videophone and its failure to have translators present at the religious services. The district court granted summary judgment in favor of BOP.

Heyer’s Fifth Amendment Claims

Heyer alleges that BOP’s repeated failure to accommodate his deafness violates his Fifth Amendment rights because it rises to the level of “deliberate indifference.” While this standard is most often used in claims arising under the Eighth Amendment, the Fourth Circuit applied it to Heyer’s Fifth Amendment claims. The standard has two components: the plaintiff must show that he has serious medical needs, an objective standard, and that the defendant acted with deliberate indifference to those needs, a subjective standard. Heyer did not claim his deafness constituted a “serious medical need.” Rather, Heyer’s complaint alleged that BOP’s failure to provide interpreters for his interaction with medical professionals has resulted in inadequate treatment for his medical needs. BOP argued that because Heyer had suffered any actual injury, the standard had not been violated.

The Fourth Circuit agreed and held that Heyer had presented enough evidence to satisfy the deliberate indifference standard. The Court rejected the BOP’s argument, holding that BOP’s actions had exposed Heyer to a substantial risk of serious harm. The Fourth Circuit reasoned that Heyer’s continued seizures, coupled with his inability to communicate with the medical staff, was sufficient to satisfy the object prong.

The Fourth Circuit held that Heyer satisfied the subjective prong as well. BOP argued that Heyer presented no evidence showing BOP knew that the failure to provide translators created a serious risk to his health. Additionally, BOP argued that providing Heyer with assistance from other inmates constituted constitutionally adequate treatment. Again, the Fourth Circuit rejected BOP’s argument. Given BOP’s awareness of Heyer’s deafness, the Court reasoned that BOP was well aware that the failure to provide translators would create for ineffective medical treatment. This awareness, the Court reasoned, was sufficient for a factfinder to conclude the BOP was deliberately indifferent.

First Amendment Claims

Heyer’s alleged that the refusal to provide a videophone violated his First Amendment right to communicate with others outside of the prison. BOP countered that the refusal was merely an unwillingness to provide Heyer with his preferred method of communication. As such, BOP argued that it did not “impinge” on Heyer’s constitutional rights because Heyer could use the TTY devices at the prison.

The Fourth Circuit rejected BOP’s argument. TTY devices require the users to be proficient in English. Given that Heyer could not communicate in English, the Court reasoned that requiring Heyer to use TTY devices to communicate impinged on his First Amendment rights. The Court then proceeded to determine whether requiring Heyer to use the TTY devices was reasonably related to the penological interests of the prison. The Court applied the four factor test as required by Turner v. Safley. Ultimately, the Court found that the factors created issues of fact to be decided at trial. First, there was a factual dispute as to whether the TTY devices provided Heyer an effective means of communication. Second, a question of fact arose as to whether BOP would have to install new IT infrastructure to maintain prison safety. Lastly, the Court found a factual dispute as to whether there were alternative communicative devices available for use by Heyer. Ultimately, given the disputed facts, the Fourth Circuit found the district court erred in granting BOP’s motion for summary judgment. The Fourth Circuit also found a dispute of fact existed as to whether BOP had unreasonably restricted Heyer’s access to the TTY devices.

Lastly, Heyer alleged that the refusal to provide interpreters at the religious services violated his First Amendment rights. The district court dismissed these claims, finding that they were moot given BOP had provided interpreters to Heyer for other occasions. The BOP argued that a 2014 affidavit from the prison chaplain showed that BOP would provide an interpreter if necessary.

The Fourth Circuit also rejected this argument. The Court found that the affidavit was merely a “mid-litigation change of course” given the BOP had failed to provide an interpreter to Heyer for a religious service. The Court reasoned that an assurance to provide an interpreter in the future did not make Heyer’s claim moot.

Conclusion

The Fourth Circuit vacated the district court’s grant of summary judgment on Heyer’s First and Fifth Amendment claims. The case was remanded to the district court for further proceedings.

By David Darr

Today, in the criminal case of United States v. Beyle, a published opinion, the Fourth Circuit affirmed the convictions of two Somali pirates for various charges relating to piracy, including the murder of four Americans off the coast of Somalia.

Defendants Contended the Court Lacked Jurisdiction and Violated Constitutional Rights

On appeal, Abukar Osman Beyle, defendant, contended that the court lacked jurisdiction over the charges related to murder and firearm use because the murder occurred in Somalia’s territorial waters, not on the high seas. Shani Nurani Shiekh Abrar, the other defendant, claimed that his Fifth Amendment right to due process and his Sixth Amendment right to present witnesses material to his defense were violated because he was unable to access certain witnesses important to his duress defense.

The Hostage Situation Resulting in the Deaths of Four Americans and Subsequent Proceedings

In February of 2011, a group of Somali pirates, which defendants were a part of, armed with automatic weapons and a rocket-propelled grenade launcher captured a Yemeni fishing boat. Both Beyle and Abrar were listed on the ledger for dividing the spoils among the pirates. The pirates attacked a ship with four Americans aboard that was part of an international yacht rally. Abrar was the first to board the American ship, and once on board he subdued the Americans and cut the communication lines. When the pirates gained control of the ship, it was approximately 950 miles off of the Somali coast. The pirates let four Yemeni fishermen they had captured with the Yemeni boat leave on the Yemeni boat, while the pirates stayed on the American boat. The pirates took the Americans hostage and tried to secure a ransom using their connections on land in Somalia. The U.S. Navy was alerted to this and moved to intercept the vessel before it could reach Somali waters. The Navy engaged with the pirates for several days in an attempt to get them to surrender, but the pirates refused, threatening to kill the hostages. The pirates started to fire guns and rockets at a Navy vessel that was attempting to block the boat from reaching Somali waters. The Navy did not return fire. A group of pirates, including Beyle and Abrar, opened fire on the four Americans, killing them all. At this time, the vessel was between thirty and forty nautical miles off the coast of Somalia. Navy SEALs then boarded the vessel, and the pirates surrendered after four pirates were killed. The FBI questioned the pirates and Abrar claimed that he was kidnapped and forced to be the pirates’ mechanic, with his role later changing to guard. Abrar claimed that the only reason he did not leave with the Yemeni fishermen was because he was afraid of being arrested in Yemen. Abrar admitted to pointing a gun at the hostages, but denied taking part in the shooting.

All of the pirates were taken to the United States and charged with a variety of crimes related to the piracy and hostage taking, including murder. All but three of the pirates, pled guilty and were sentenced to life in prison. Beyle, Abrar, and another pirate decided to take the case to trial. Beyle filed a motion to dismiss any counts relating to the murders because he claimed the murders took place in Somali territorial waters, outside of U.S. jurisdiction. Abrar filed a motion to dismiss the case against him because he could not reach witnesses, including the Yemeni fishermen, that would provide evidence that he acted under duress, which could act as a defense to all the charges except murder. The district court denied both motions. The U.S. sought the death penalty for all three defendants at trial. The trial lasted over a month, and ultimately the jury voted to convict all three defendants to life in prison. The jury heard instructions on Abrar’s duress defense, but decided that duress was not applicable. Beyle and Abrar appealed.

Definition of “High Seas”

The Constitution gives the federal government the power to punish piracy and felonies committed on the high seas. In statute, Congress had defined the high seas as including any waters outside the jurisdiction of any nation. The United Nations Convention on the Law of the Sea (UNCLOS), which the United States has recognized but not ratified and Somalia has ratified, recognizes that a nation’s sovereignty covers only territorial sea, which is twelve nautical miles off the coast. However, UNCLOS also recognizes exclusive economic zones (EEZ), which UNCLOS treats as quasi-territorial for economic rights. These EEZs extend to 200 miles off the coast of a nation. UNCLOS does not define waters as high seas until outside of these EEZs.

High Seas Include EEZs

Beyle argued that because UNCLOS does not consider the high seas to start until 200 miles of the coast of nation, the court below did not have jurisdiction because the murders occurred within forty miles of the Somali coast. The Fourth Circuit disagreed because EEZs allocated economic rights, not other rights. The actual authority to punish criminal violations only extended to twelve nautical miles off the coast of Somalia according to UNCLOS. Therefore, EEZs were outside of a nation’s sovereignty, making them “high seas” according to U.S. law, regardless of what UNCLOS defines as high seas. In the alternative, Beyle argued that Somalia had passed a resolution in 1972 extending its jurisdiction to 200 miles from the coast. The Fourth Circuit was unsure of the validity of this resolution, and found that Somalia’s subsequent adoption of UNCLOS superseded any such resolution. Because the murder occurred outside of twelve nautical miles off of the Somali coast, the Fourth Circuit found that the murders occurred on the high seas and were thus subject to U.S. jurisdiction.

Fifth and Sixth Amendment Protections

The Fifth Amendment provides due process protections when the government seeks to deprive someone of life, liberty, or property. The Sixth Amendment grants the right to a process to obtain witnesses for criminal defendants. The Sixth Amendment is violated if a defendant is arbitrarily deprived of relevant and material testimony that is vital to his defense. The Fifth and Sixth Amendments are closely related and the right to call witnesses to defend oneself is essential to due process.

The Fifth and Sixth Amendments Were Not Violated for Abrar

Abrar claimed that his Fifth and Sixth Amendment rights were violated because he did not have access to overseas witnesses that would have testified to his character and would have aided in his duress defense. The Fourth Circuit disagreed because the Sixth Amendment did not grant a defendant the right to any and all witnesses, only a compulsory process to obtain witnesses. This process was still limited by practicality, and the court did not have jurisdiction over the witnesses Abrar wanted to call. Additionally, outside concerns such as the security of Somalia made it very impracticable to locate and subpoena these witnesses. The Fourth Circuit also expressed concerns that some of Abrar’s witnesses might be fictional based on investigations into those witnesses that were made. The Fourth Circuit also did not think that the evidence that those witnesses would have put on would have been material because none of them actually witnessed Abrar’s abduction by pirates. Additionally, there were better witnesses such as the pirates Abrar claimed abducted him that the U.S. already had in custody that could testify to Abrar’s abduction. However, Abrar refused to call these witnesses because they would have contradicted his story. The district court even offered Abrar the opportunity to give testimony limited to his abduction but he refused. The Fourth Circuit also saw ample evidence on the record that Abrar was a willing participant. Therefore, the Fourth Circuit ruled that Abrar’s Fifth and Sixth Amendment rights were not violated.

Fourth Circuit Affirmed

The Fourth Circuit affirmed, holding that the court had jurisdiction over the actions of the defendants and that Abrar’s Fifth and Sixth Amendment rights were not violated.

By: Kelsey Kolb

Friday, in United States v. Stewart, the Fourth Circuit affirmed the District Court for the District of Maryland’s 180-month armed career criminal sentence against Stewart. Stewart pled guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012), to which the district court attached the 180-month sentence, pursuant to 18 U.S.C. § 924(e) (2012).

Did the district court err in its imposition of both a statutory mandatory minimum and increased statutory maximum sentence?

Stewart contended that the district court’s imposition of the statutory mandatory minimum sentence was in direct conflict with 18 U.S.C. § 3553(a) (2012), which mandates the court to impose a sentence that is “sufficient but not greater than necessary.” Stewart further appealed his statutory maximum sentence, arguing that the district court violated his Fifth and Sixth Amendment rights by increasing his sentence based on facts that were neither charged on the indictment, nor submitted to the jury.

The § 924(e) mandatory minimum does not conflict with the sentencing mandate of § 3553(a).

The Fourth Circuit held that § 3553(a) was not controlling in this case and thus, that the mandatory minimum was proper. The court reasoned that 18 U.S.C. § 3551(a) only yields to § 3553(a), the general criminal sentencing provision, if there is no other specific mandatory sentencing provision on point. Consequently, the “no greater than necessary” language from § 3553(a) would not apply in this case since there was another specific provision on point, § 924(e). Furthermore, even if § 3553(a) were controlling in this case, the court reasoned that the “no greater than necessary” language does not authorize a district court to sentence below the mandatory statutory minimum.

The increased statutory maximum sentence is not in violation of Stewart’s Fifth or Sixth Amendment rights.

The court briefly held that this claim was foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 228–35 (1998).