[00:00:01] Speaker 01:
Good morning, Your Honors.

[00:00:02] Speaker 01:
May it please the Court, I'm Renee Maness, an Assistant Federal Public Defender here in Portland, Oregon, and I'm representing the defendant and appellant, Mr. Nicholas Parsons.

[00:00:13] Speaker 01:
The question presented in this appeal is,

[00:00:18] Speaker 01:
Should the condition of supervision imposed on Mr. Parsons by the district court for polygraph examinations at the request of his probation officer include what we are calling a prophylactic grant of immunity?

[00:00:33] Speaker 01:
Conditions of supervision may be statutorily imposed within the framework of the statute.

[00:00:40] Speaker 01:
And when a condition of supervision is sought, it is the government's burden to prove that that condition is within the statutory framework and is also no more restrictive than necessary to meet the goals of supervision.

[00:00:57] Speaker 01:
In this matter, at the district court level, Mr. Parsons objected to the condition of supervision to the extent that it did not include a grant of immunity.

[00:01:07] Speaker 01:
And that's because we are well aware of this court's prior rulings in this area.

[00:01:12] Speaker 01:
And in particular, the decision in United States versus Antelope from 2005.

[00:01:19] Speaker 01:
the recommendation in Antelope where the polygraph was enclosed in the Sabre program or the treatment and evaluation of sex offenders was that it was appropriate for the defendant to assert his Fifth Amendment rights and refuse to answer any questions until

[00:01:44] Speaker 01:
He was granted immunity.

[00:01:45] Speaker 03:
So can I ask you about Stoderow, though?

[00:01:48] Speaker 03:
In United States versus Stoderow, we interpreted the condition as already allowing a defendant to not answer and to invoke the Fifth Amendment.

[00:01:56] Speaker 03:
So shouldn't we give the same interpretation here?

[00:02:00] Speaker 01:
I guess the question is going to become, is that, in fact, what is going to happen?

[00:02:08] Speaker 01:
Is every single time a defendant is

[00:02:11] Speaker 01:
subjected to a polygraph in the supervision context and answers the question, regardless of the fact that a court order says he's granted immunity, is he in fact just going to be given immunity?

[00:02:24] Speaker 03:
I'm not sure that's what Stoderow says.

[00:02:26] Speaker 03:
I think Stoderow says he doesn't have to answer.

[00:02:29] Speaker 01:
However, the condition here does not include a warning about not having to answer.

[00:02:37] Speaker 03:
But neither did the condition in Stoderow.

[00:02:39] Speaker 03:
I think it was the same language, right?

[00:02:43] Speaker 01:
I'm not sure if the condition in Stodro had the exact same language.

[00:02:47] Speaker 01:
If you look at the condition here, we've had two variations of it.

[00:02:50] Speaker 01:
The current doesn't even include advisement of rights.

[00:02:53] Speaker 01:
What I have been looking at is the language from Antelope, which states that without a pre-testimonial assurance of immunity, the witness is scarcely better protected than if there were no privilege at all.

[00:03:05] Speaker 02:
So if we issued a ruling in this case saying that the condition is

[00:03:10] Speaker 02:
permissible, so long as it is consistent with Stoderow and there's also a case called Kelly.

[00:03:16] Speaker 02:
I think it's Kelly.

[00:03:18] Speaker 02:
I'm sorry, there's a case called Weber.

[00:03:21] Speaker 02:
If we said that, basically what Judge Freeland just said, wouldn't that take care of your concern?

[00:03:27] Speaker 01:
not if the defendant is not advised of those rights.

[00:03:32] Speaker 01:
If the defendant, while he is sitting there being given a polygraph, is not informed by the way there are these Ninth Circuit decisions out there that might inform these issues,

[00:03:44] Speaker 01:
there is no way for an individual to have that knowledge.

[00:03:47] Speaker 01:
Most of these individuals have absolutely no legal training or not certainly in depth in their knowledge of the Ninth Circuit rulings in these area.

[00:03:57] Speaker 01:
The question is, what's our role with doing this polygraph?

[00:04:00] Speaker 01:
If we really want it as a condition of supervision to assist the defendant in order to have their rehabilitation, then there's just the best way, the least burdensome,

[00:04:12] Speaker 01:
the one that is no more an infringement than necessary is the prophylactic pre-questioning grant of immunity discussed in Antelope.

[00:04:24] Speaker 01:
And I will just state, I'm sorry, I should have said this at the beginning, I'd like to reserve two minutes for rebuttal.

[00:04:29] Speaker 01:
Got it.

[00:04:29] Speaker 01:
Okay.

[00:04:31] Speaker 01:
So the problem here is... So I'm a little bit confused.

[00:04:35] Speaker 03:
So, I mean, maybe you're saying this should be the way the condition is for all defendants, but

[00:04:41] Speaker 01:
your defendant's lawyer and you are having this conversation with us so what is wrong with telling your client that Stoderow says you don't have to answer questions first there one of the issues here is that of course at the district court level there was no objection by the government and no attempt to justify the condition without the grant of immunity as an appropriate condition of supervision and the problem is

[00:05:05] Speaker 01:
Mr. Parsons, like so many other individuals convicted of crimes of this nature, is going to spend a significant period of time in prison.

[00:05:13] Speaker 01:
He won't be faced with this for seven to eight or however many years.

[00:05:18] Speaker 01:
At that point in time, will I have advised him at some point in time that yes, I just want every single one of my clients as soon as anybody says polygraph to say, Fifth Amendment, immunity, thank you, please grant me

[00:05:32] Speaker 01:
Immunity and refuse to answer until they are granted immunity, but I'm 63 years old I'm likely not going to be practicing when this comes up for mr. Parsons.

[00:05:42] Speaker 01:
He may not think he should call me He is not going to be advised that he has the right to counsel He nothing in the condition requires him that he be advised that he has fifth amendment or sixth amendment privileges at this point in time So we have no way of knowing

[00:05:58] Speaker 01:
what will be advised to Mr. Parsons and what he will understand.

[00:06:03] Speaker 02:
When you say that, that makes me think that this case is not right.

[00:06:06] Speaker 02:
Because you're basically saying we can't issue a ruling right now because we don't know what's going to happen.

[00:06:11] Speaker 02:
And that's normally when we would say, well, that must be that it's not a right question.

[00:06:15] Speaker 02:
But I think you and the government are saying this case is right.

[00:06:18] Speaker 01:
We do believe.

[00:06:19] Speaker 01:
And in both Hoffman, the Supreme Court decision, and in Antelope, Hoffman is what we cite in our reply brief, they discuss the fact that the review of Fifth Amendment privileges are right before the questions are asked and before immunity is invoked.

[00:06:35] Speaker 01:
Because if you have to wait for immunity to be invoked in order for that issue to be right, then basically the Fifth Amendment privilege has no meaning.

[00:06:47] Speaker 01:
So we believe that under Antelope and Hoffman and Murphy versus Minnesota, the case law is pretty clear.

[00:06:56] Speaker 01:
If you want to force an individual to do a polygraph, which impinges on Fifth Amendment core constitutional rights,

[00:07:06] Speaker 01:
they should be granted immunity.

[00:07:08] Speaker 01:
And Antelope discusses that that immunity should be granted prophylactically.

[00:07:13] Speaker 03:
Stoderow comes after Antelope and doesn't say that you need a blanket grant of immunity ahead.

[00:07:20] Speaker 03:
You just interpret the condition as including the right to not answer questions.

[00:07:24] Speaker 03:
So I'm having trouble understanding what you're doing with Stoderow.

[00:07:27] Speaker 03:
It seems like you just want us to ignore it.

[00:07:29] Speaker 01:
I'm not asking you to ignore Stoderow.

[00:07:31] Speaker 01:
The problem is

[00:07:33] Speaker 01:
Again, if that is, in fact, how the courts are going to interpret and always apply this question, then that would not be a problem.

[00:07:43] Speaker 01:
And there is a de facto grant of immunity.

[00:07:46] Speaker 01:
But I don't read that decision in the same way.

[00:07:52] Speaker 03:
So isn't a grant of immunity saying you have to answer, but you get immunity?

[00:07:56] Speaker 03:
I think Stoder is saying you don't have to answer.

[00:07:58] Speaker 01:
But they're not advised that they don't have to answer.

[00:08:00] Speaker 01:
And they're not advised that they have the right to consult with counsel.

[00:08:03] Speaker 01:
And the reality is, under established Ninth Circuit precedents... You want us to disagree with Stoderow.

[00:08:10] Speaker 03:
I mean, do we need to call this en banc?

[00:08:11] Speaker 03:
I'm trying to understand your... Stoderow says this condition is fine because it gets interpreted as you don't have to answer.

[00:08:19] Speaker 01:
I don't read that question as clearly presented in Stoderow.

[00:08:24] Speaker 01:
Here, we're just trying to forestall having that problem by allowing immunity to be granted.

[00:08:31] Speaker 01:
And if, Your Honor, looks at our briefing, our reply briefing, as we discuss, Ninth Circuit case law is very clear that the earlier panel decision controls, to the extent that Sturdo is at all inconsistent with Antelope.

[00:08:44] Speaker 01:
Antelope is the controlling decision of this court.

[00:08:46] Speaker 01:
unless en banc is taken and Antelope is overturned in that process.

[00:08:51] Speaker 01:
I'm down to a minute and 10, so I will reserve.

[00:08:54] Speaker 02:
And we'll round up to two.

[00:08:55] Speaker 02:
Thank you.

[00:08:56] Speaker 02:
When you have one case on calendar, get a little more leeway.

[00:09:07] Speaker 04:
May it please the court, Mira Chernyk on behalf of the United States.

[00:09:10] Speaker 04:
Good morning, Your Honors.

[00:09:12] Speaker 04:
I want to start with Judge Friedland's line of questioning, which I think really gets to the heart of this case.

[00:09:17] Speaker 04:
As Judge Friedland noted, the Stoderow case squarely addresses the circumstances that are before the court today.

[00:09:23] Speaker 04:
In that case, the court held that the condition requiring the defendant to submit to polygraph examinations allowed the defendant to decline to answer polygraph questions that would incriminate him, consistent with the precedent established prior in Antelope.

[00:09:36] Speaker 04:
What I don't think we got to during the defendant's portion of the argument is that that case also held that polygraph examinations are non-custodial, that they don't require Miranda warnings because it's not a custodial interrogation.

[00:09:47] Speaker 04:
It doesn't rise to the level of custody that would require advisement of the defendant of their Fifth Amendment rights.

[00:09:54] Speaker 04:
And so the defendant's objection that Stoderow is somehow insufficient because there's no guarantee that the defendant will be advised of his rights, that's already addressed by the holding in Stoderow itself.

[00:10:07] Speaker 03:
Why?

[00:10:07] Speaker 03:
So it seems like something odd happened here because the government actually initially said he could be granted immunity and then that didn't get imposed in the version we have now.

[00:10:18] Speaker 03:
So what do we do with that fact?

[00:10:22] Speaker 04:
Well, I think that fact is immaterial to this court's decision.

[00:10:26] Speaker 04:
The government's failure to object to the defendant's request can't create a new judicial right to confer immunity that didn't exist before.

[00:10:34] Speaker 04:
And it also doesn't invalidate a valid appellate waiver.

[00:10:37] Speaker 04:
And both of those are issues in this case.

[00:10:39] Speaker 03:
But does it show that this condition is broader than it needs to be?

[00:10:43] Speaker 04:
No, I don't believe so.

[00:10:46] Speaker 04:
So first of all, the argument that this condition is broader than it needs to be is squarely addressed by the appellate waiver and the precedent in Wells that dealt specifically with an argument that a court's

[00:10:57] Speaker 04:
failure to properly apply the 3853d factors rendered the sentence illegal.

[00:11:04] Speaker 04:
And Wells said that that does not equate to a legal sentence and it can't defeat an appellate waiver.

[00:11:09] Speaker 04:
And that's exactly the situation we have in this case.

[00:11:12] Speaker 04:
The defendant is trying to use that exact same language to argue that this sentence was illegal and therefore defeats the appellate waiver when Wells clearly holds that that just doesn't satisfy the definition

[00:11:26] Speaker 04:
established by Bibler and the cases around that.

[00:11:29] Speaker 04:
So first of all, I think the appellate waiver deals with that argument.

[00:11:37] Speaker 04:
The second part of it

[00:11:43] Speaker 04:
I just am having trouble seeing how the government's failure to object to the defense's request for immunity could change the district court's reasoning or this court's reasoning about whether the 3853d factors were properly applied, even if the appellate waiver weren't in place.

[00:12:00] Speaker 04:
I just don't see how the government's failure to object would change that calculus.

[00:12:06] Speaker 03:
Well, what are the purposes of this condition?

[00:12:10] Speaker 04:
It has multiple purposes.

[00:12:11] Speaker 04:
One is treatment, and one is accountability.

[00:12:15] Speaker 04:
Many of the conditions imposed on sex offenders are imposed to protect the community from violations of their conditions that would endanger children or could start them down a slippery slope towards re-offending.

[00:12:28] Speaker 03:
So does that suggest that you do need the defendant to answer incriminating questions?

[00:12:35] Speaker 04:
It may be necessary.

[00:12:37] Speaker 04:
to fulfill that function for the defendant to answer incriminating questions.

[00:12:42] Speaker 04:
And in that circumstance, the government would be faced with the option of either granting immunity under the immunity statute, as has been the practice whenever the government wants to compel testimony that would incriminate a defendant or a witness, to grant that defendant immunity for the specific question it wants answered on a case-by-case basis.

[00:13:08] Speaker 04:
But that decision should be left to the executive.

[00:13:11] Speaker 02:
But because I take it, there could be a situation where you could ask a question.

[00:13:15] Speaker 02:
And whether or not it's incriminating depends on the answer.

[00:13:17] Speaker 02:
For example, if there was an issue of molestation at a nearby school, you could ask him, hey, were you near this school?

[00:13:24] Speaker 02:
And he can honestly say, no, I wasn't.

[00:13:26] Speaker 02:
That would still help law enforcement, because it maybe crosses him off the list of potential suspects.

[00:13:30] Speaker 02:
If the answer was yes, then he would probably want to invoke.

[00:13:33] Speaker 02:
So I guess the question of him is not merely to see if he did bad things.

[00:13:37] Speaker 02:
It's also to see what's going on in the area, I imagine.

[00:13:42] Speaker 04:
Well, yes, there's a general policing motive to the questions.

[00:13:48] Speaker 04:
And there's also the efficacy of treatment is the goal of those questions as well.

[00:13:54] Speaker 04:
Full disclosure is part of sex offender treatment, disclosure of facts related to the case that

[00:14:01] Speaker 04:
they've been convicted of and potentially additional acts as well.

[00:14:04] Speaker 04:
And again, if the government decides that the treatment incentives associated with full disclosure warrant granting use immunity to the defendant for answering specific questions, then that's the executive's decision to make.

[00:14:18] Speaker 04:
And it can make that decision on a case-by-case basis once the defendant has invoked and

[00:14:24] Speaker 04:
that question has come back to the government, but it's not a prospective broad grant of immunity for all answers to the polygraph is both unsupported by law.

[00:14:36] Speaker 04:
There's no precedent for a court granting really any type of immunity, but particularly that type of immunity, and Jenkins and Straub

[00:14:43] Speaker 04:
make it clear that courts need to do everything they can to avoid granting immunity, even in circumstances where due process is on the line.

[00:14:51] Speaker 04:
And this case doesn't present any different scenario or legal situation that would justify creating a brand new judicial authority to grant immunity to defendants, especially prospectively and in this broad way that the defendant is requesting.

[00:15:06] Speaker 02:
So I'm going to ask you the same question I asked her.

[00:15:08] Speaker 02:
Putting the waiver issue aside,

[00:15:11] Speaker 02:
If we were to reach the merits in this case, would the government be satisfied with a MemDISPO that says basically, you know, here's Weber's footnote 17, here's however you pronounce that staratu, however you pronounce that case name.

[00:15:23] Speaker 02:
Sounds like a vampire.

[00:15:25] Speaker 02:
If you do those two, as long as it's done consistently with those two cases, we're good.

[00:15:31] Speaker 02:
Would that be an acceptable result for you?

[00:15:33] Speaker 04:
Yes, that's entirely within the court's discretion.

[00:15:35] Speaker 04:
I would note, as your honor noted, that there is an appellate waiver in this case that would foreclose that option.

[00:15:41] Speaker 04:
But yes, appellate waiver aside, that would be a perfectly acceptable outcome.

[00:15:46] Speaker 03:
Do you think the appellate waiver bars the constitutional challenge?

[00:15:49] Speaker 03:
I know you think the constitutional challenge fails, but I don't think you do.

[00:15:53] Speaker 03:
Do you think it bars her from making a constitutional argument?

[00:15:55] Speaker 03:
No.

[00:15:57] Speaker 03:
So she still can make this argument under the Fifth Amendment, and then your answer is just interpret it the way Stoderow does.

[00:16:04] Speaker 04:
Yes, our answer is to the extent that the defendant is raising a constitutional claim, that is dispatched by Antelope and Stoderow.

[00:16:11] Speaker 04:
To the extent that he is making a claim that goes beyond the Fifth Amendment, that is dispatched by the appellate waiver.

[00:16:20] Speaker 04:
If the court has no further questions, I'm happy to cede the rest of my time.

[00:16:25] Speaker 02:
All right, good.

[00:16:25] Speaker 02:
Thank you.

[00:16:26] Speaker 04:
Thank you, Your Honor.

[00:16:32] Speaker 00:
So before you get going, I am interested in whether your statutory argument is any different from your constitutional argument.

[00:16:40] Speaker 01:
Yes, Your Honor, it is.

[00:16:42] Speaker 01:
I mean, the statutory argument focuses on whether this is the least restrictive condition of supervision necessary to meet the goals of supervision, and incorporated into that whether the government met its burden of justifying this condition as the least restrictive goals of supervision at the time of sentencing.

[00:17:01] Speaker 01:
We believe that the two are deeply intertwined.

[00:17:06] Speaker 01:
It's a constitutional violation, which to some extent is answered

[00:17:10] Speaker 01:
by the supervision statute itself, which says, yes, you may have the goal of supervision.

[00:17:17] Speaker 01:
And as the government is acknowledging, part of that goal here may well be seeking to engage in criminal investigation of these probationers.

[00:17:26] Speaker 01:
If you're going to have that as a goal of supervision and compel Polygraph in order to meet that goal, then we believe that a prophylactic pre-existing grant of immunity is absolutely required.

[00:17:40] Speaker 01:
I looked back at my notes on Sturdo and what I believe that case was in the context of was treatment.

[00:17:46] Speaker 01:
It falls into the triumvirate of the treatment cases.

[00:17:49] Speaker 01:
That's the antelope decision the bear decision I hope I'm pronouncing that correctly and and stodoro which we understood the polygraphs all arose in the context of sex offender treatment and It does that make any difference to the Fifth Amendment question though I mean it says you don't have to answer the questions.

[00:18:07] Speaker 03:
Wouldn't that be the same?

[00:18:08] Speaker ?:
I

[00:18:08] Speaker 01:
Well, I think if you look at the three cases, including Bayer, which I believe is the last one, they confirmed that because it's in the treatment perspective, and Antelope has said he's entitled to immunity, that they will not be prosecuted.

[00:18:23] Speaker 01:
This is a question of where these, these are not treatment polygraphs.

[00:18:27] Speaker 01:
These are just polygraphs by the probation officer.

[00:18:30] Speaker 01:
And there's no requirement in the condition that the defendant be informed that he does have a Fifth Amendment right.

[00:18:37] Speaker 01:
All of the conditions of supervision always encourage

[00:18:40] Speaker 01:
cooperate with your probation officer, submit to a polygraph examination.

[00:18:45] Speaker 01:
That submission implies answer those questions.

[00:18:48] Speaker 01:
Nowhere in this condition of supervision is he given the analysis that you do have a Fifth Amendment privilege.

[00:18:56] Speaker 01:
And what the Supreme Court has noted, and that's specifically in the Hoffman case, and then also the language came in antelope as well,

[00:19:05] Speaker 01:
The Fifth Amendment extends not just to answers in and of themselves that support a conviction under a federal criminal statute, but likewise embraces the link and the chain of evidence needed to prosecute the claimant for a federal crime.

[00:19:20] Speaker 01:
If every assertion of the Fifth Amendment privilege would need to be weighed by a court, then the defendant is required to prove the hazard in the sense in which a claim is usually required to be established in court.

[00:19:33] Speaker 01:
He would be compelled to surrender the very protection which the privilege is designed to guarantee if we make them wait until they answer the question.

[00:19:44] Speaker 01:
If the goal of this polygraph is the conditions of supervision of assisting Mr. Parsons with reentering into the community, the least restrictive burden is to grant him prophylactic immunity as this court discussed in Antelope.

[00:20:00] Speaker 01:
And that request was not objected to by the government at the time of sentencing in the district court, and we continue to believe it is appropriate.

[00:20:09] Speaker 02:
all right thank you very much thank you counsel both for your argument briefing this matter submitted and we are done for today thank you