     Case: 15-60105      Document: 00513537457         Page: 1    Date Filed: 06/07/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-60105                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                    June 7, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

AARON GRANT WILLIS,

              Defendant - Appellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 2:14-CR-20-1


Before REAVLEY, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Aaron Grant Willis pleaded guilty to abusive sexual contact of a minor
and was sentenced to 18 months of imprisonment and ten years of supervised
release. On appeal, he challenges the district court’s denial of his motions to
appoint new counsel and to withdraw the guilty plea. Additionally, he contests
two special conditions of his supervised release.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                   No. 15-60105
      Willis’s claim that he should have been appointed new counsel is not
based on the Sixth Amendment.           Accordingly, our review is for abuse of
discretion. United States v. Mitchell, 709 F.3d 436, 441 (5th Cir. 2013). Willis
has a constitutional right to counsel, but no right to choose his appointed
counsel. United States v. Fields, 483 F.3d 313, 350 (5th Cir. 2007). “The court
is constitutionally required to provide substitute counsel only if there is a
substantial conflict or problem affecting the ability to represent the
defendant—a conflict of interest, a complete breakdown in communication or
an irreconcilable conflict which led to an apparently unjust verdict.” Mitchell,
709 F.3d at 441–42 (internal quotations omitted).
      Willis supported his request for new counsel with a handwritten letter
that simply does not bespeak substantial conflict and instead represents an
attempt to choose new counsel based on vague claims of dissatisfaction.
Further, various assertions made in the letter conflict with the sworn
testimony Willis had previously given. Nevertheless, the district court spoke
with Willis directly to further flesh out the basis for his request. Despite these
opportunities,   Willis   failed   to   demonstrate   any   substantial    conflict
necessitating the appointment of new counsel. Indeed, his specific complaints
were unwarranted. The district court did not abuse its discretion in denying
the motion for appointment of new counsel.
      Willis’s arguments that he should have been permitted to withdraw his
guilty plea were built upon his argument that he was entitled to new counsel.
That is, Willis contends that the district court failed to fairly consider the
motion to withdraw the guilty plea because it was brought and argued by the
attorney with whom Willis was dissatisfied. Given our ruling that Willis was
not entitled to new counsel, the argument fails. Further, the record establishes
that the district court properly considered the relevant factors and did not


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                                  No. 15-60105
abuse its discretion in denying Willis’s request to withdraw his guilty plea. See
United States v. Carr, 740 F.2d 339, 343–44 (5th Cir. 1984).
      We next consider the special conditions imposed by the district court.
The first challenged special condition requires that “[a]t the direction of” his
probation officer, Willis “shall submit to a polygraph examination(s), by a
license[d] polygraph examiner, as approved by the U.S. Probation Officer, and
shall burden the cost of the examination.” According to Willis, this special
condition violates his Fifth Amendment rights against self-incrimination.
      We have previously rejected an “as applied” challenge to a similar special
conditions where the probationer lied during his polygraph examination and
therefore had his probation revoked. See United States v. Locke, 482 F.3d 764,
766 (5th Cir. 2007) (“Locke did not challenge the conditions of probation when
imposed, only upon revocation.        As such, we view Locke’s arguments as
challenges to the constitutionality of certain conditions of his probation as
applied to him in the revocation.”). We now hold that requiring probationers
to undergo polygraph examinations as a condition of their supervised release
does not violate the Fifth Amendment. Locke and Minnesota v. Murphy, 465
U.S. 420, 104 S. Ct. 1136 (1984), control.
      The obligation to undergo a polygraph test—and to answer questions
truthfully—does      not   displace   the       constitutional   right   against   self-
incrimination. If, in the course of a polygraph test, Willis is asked questions
posing “a realistic threat of self-incrimination,” he may assert the Fifth
Amendment and refuse to answer. Murphy, 465 U.S. at 427–29, 104 S. Ct. at
1142–43. If, however, Willis is asked questions simply pertaining to whether
he has violated the terms of his probation, the Fifth Amendment is not
implicated. Locke, 482 F.3d at 767. “A probationer may only invoke the Fifth
Amendment privilege if a truthful answer would incriminate the probationer
by exposing him to prosecution for a different crime.” Id. Finally, a Fifth
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                                  No. 15-60105
Amendment-based refusal to answer questions may not be treated as a
violation of his probation conditions. Murphy, 465 U.S. at 435, 104 S. Ct. at
1146; Locke, 482 F.3d at 767.
      At bottom, our inquiry is whether Willis’s “probation conditions merely
required him to appear and give testimony about matters relevant to his
probationary status or whether they went farther and required him to choose
between making incriminating statements and jeopardizing his conditional
liberty by remaining silent.” Murphy, 465 U.S. at 436, 104 S. Ct. at 1147. On
its face, the special condition does “not attempt to take the extra, impermissible
step” and, therefore, does not violate the Fifth Amendment. See id. Willis
remains free to assert the Fifth Amendment should ever the need arise.
      Lastly, while all parties agree that the district court rightly imposed a
special condition calling for Willis to receive mental health treatment, Willis
objects to the requirement that he sign a confidentiality waiver permitting his
probation officer to access related health records. His argument that the
confidentiality waiver “directly conflicts” with the fourth 18 U.S.C. § 3553
factor is foreclosed by United States v. Tang, 718 F.3d 476, 486 (5th Cir. 2013).
His alternative argument, that the waiver of confidentiality somehow violates
the Fifth Amendment’s protections against self-incrimination, is meritless.
Willis retains his Fifth Amendment right against self-incrimination and is not
required to give self-incriminating statements. Further, the Fifth Amendment
imposes limits on how statements made to a psychotherapist may be used in
court. See Estelle v. Smith, 451 U.S. 454, 463, 101 S. Ct. 1866, 1873 (1981). If
ever those limits are transgressed, Willis will have a constitutional claim. For
the moment, his fears are speculative.
      AFFIRMED.




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