                                                                              FILED
                            NOT FOR PUBLICATION                                MAR 23 2016

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                          No. 15-30248

              Plaintiff - Appellee,                D.C. No. 3:12-cr-00074-SI-1

 v.
                                                   MEMORANDUM*
SPENCER ANTONIO TUGGLE,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael H. Simon, District Judge, Presiding

                        Argued and Submitted March 8, 2016
                                 Portland, Oregon

Before: FISHER, BERZON, and WATFORD, Circuit Judges.

      1. Other than the Fifth Amendment problem discussed below, the district

court did not abuse its discretion by requiring Spencer Tuggle to (1) complete a

domestic violence evaluation, and (2) refrain from any contact with the mother of

his son not related to childcare or visitation. After considering the totality of the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                            Page 2 of 3
circumstances, the court reasonably found that these additional conditions would

aid Tuggle’s rehabilitation and help protect the public. The court did not

impermissibly rely on unsubstantiated allegations in imposing these new

conditions. See United States v. Abbouchi, 502 F.3d 850, 857–58 (9th Cir. 2007).

The court based its decision on information collected by Tuggle’s probation officer

and Tuggle’s own testimony at the revocation hearing, which established that, at

the very least, Tuggle’s relationship with his ex-girlfriend was sufficiently volatile

to warrant the court’s intervention.

      2. Tuggle’s Fifth Amendment challenge to the domestic violence evaluation

requirement is ripe for review at this time. To complete a meaningful evaluation,

Tuggle will necessarily be required to answer a number of potentially

incriminating questions regarding any past history of domestic violence he may

have. See United States v. Streich, 560 F.3d 926, 931–32 (9th Cir. 2009). The

district court stated that it was “not ordering [Tuggle] to waive any of his

constitutional rights.” By so stating, the district court may have intended to

provide Tuggle with immunity for any statements he makes during the course of

the evaluation, to ensure that he can comply with the mandatory condition without

risking either self-incrimination or revocation of his supervised release. See

United States v. Bahr, 730 F.3d 963, 966–67 (9th Cir. 2013). However, because
                                                                            Page 3 of 3
the record is unclear on that score, we vacate the domestic violence evaluation

requirement and remand to the district court for clarification. If the district court

does not grant Tuggle immunity, he may not be punished for refusing to answer

any questions posed during the course of the evaluation that present a real and

appreciable risk of self-incrimination. See United States v. Antelope, 395 F.3d

1128, 1134 (9th Cir. 2005).

      AFFIRMED IN PART, VACATED IN PART, and REMANDED.
