                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                                May 10, 2016
                                                            Elisabeth A. Shumaker
                                                                Clerk of Court
                                  PUBLISH

              UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                   No. 15-1033

 BRIAN VON BEHREN,

       Defendant - Appellant.


                 Appeal from the United States District Court
                         for the District of Colorado
                     (D.C. No. 1:04-CR-00341-REB-1)


John T. Carlson, Assistant Federal Public Defender (Virginia L. Grady, Federal
Public Defender, with him on the briefs), Denver, Colorado, for Defendant-
Appellant.

J. Bishop Grewell, Assistant U.S. Attorney (John F. Walsh, United States
Attorney), Denver, Colorado, for Plaintiff-Appellee.


Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.


SEYMOUR, Circuit Judge.
      Brian Von Behren is serving a three-year term of supervised release

stemming from a 2005 conviction for distribution of child pornography. One of

the conditions of his supervised release was modified to require that he

successfully complete a sex offender treatment program, including a sexual

history polygraph requiring him to answer four questions regarding whether he

had committed sexual crimes for which he was never charged. The treatment

program required him to sign an agreement instructing the treatment provider to

report any discovered sexual crimes to appropriate authorities. Mr. Von Behren

contended that the polygraph condition violates his Fifth Amendment privilege

against self-incrimination. The district court disagreed and held that the

polygraph exam questions do not pose a danger of incrimination in the

constitutional sense. Mr. Von Behren refused to answer the sexual history

questions, thereby requiring the treatment provider to expel him from the program

and subjecting him to potential revocation of his supervised release for violating

the condition of supervision. The district court denied Mr. Von Behren’s request

to stay further proceedings pending appeal, but this court granted a stay. We

reverse on the Fifth Amendment issue. 1

      1
        We have jurisdiction to review rulings on the post-judgment modification
of supervised release, United States v. Lonjose, 663 F.3d 1292, 1299-1300 (10th
Cir. 2011), and the issue raised is ripe for judicial review. See United States v.
Wayne, 591 F.3d 1326, 1329 n.1 (10th Cir. 2010) (citing United States v. White,
244 F.3d 1199, 1202-04 (10th Cir. 2001)) (challenge to condition of supervised
release ripe for review where legal issue is fit for judicial decision, defendant will
                                                                         (continued...)

                                          -2-
                                         I

                                 BACKGROUND

      In March 2005, Mr. Von Behren was sentenced to 121 months in prison and

three years of supervised release for receipt and distribution of child pornography.

In March 2014, as he neared release, the probation office petitioned to modify his

release conditions. The petition requested several new and revised conditions,

among which was a requirement that Mr. Von Behren not only participate in but

also successfully complete an approved sex offender treatment program. These

new conditions were necessary for Mr. Von Behren to be accepted into a program

that complied with standards mandated by the Colorado Sex Offender

Management Board (SOMB).

      Created in 1992, SOMB is a regulatory board tasked with developing and

implementing statewide standards for the assessment, evaluation, treatment, and

behavioral monitoring of adult sex offenders. See Colo. Rev. Stat. §

16-11.7-103(1), (4). Compliance with SOMB standards is imperative to the

continued operation of Colorado sexual treatment providers. See Colo. Rev. Stat.

§ 16-11.7-106(1) (neither a state agency nor judicial department may contract

with any non-certified treatment provider to provide sex offender treatment). One

such standard is that each treatment program must conduct sexual history

      1
       (...continued)
experience hardship if we do not resolve issue, and prompt review will promote
judicial efficiency).

                                        -3-
polygraphs. SOMB Guidelines § 6.120. Failure to comply with SOMB standards

can lead to removal from the state’s list of approved providers. Id. § 8.010; Colo.

Rev. Stat. § 16-11.7-106(7)(b)(I). Treatment providers thus have a large incentive

to ensure that every patient they treat complies with SOMB requirements. As a

result, certified providers will not accept an offender or allow the offender to

continue in treatment if the offender refuses to undergo the sexual history

polygraphs required by SOMB.

      Mr. Von Behren was assigned to a SOMB certified treatment provider

named RSA, which stands for Redirecting Sexual Aggression. Due to SOMB

Guidelines requiring a written contract between the treatment provider and the sex

offender, SOMB Guidelines §§ 3.310, 3.410, RSA presented Mr. Von Behren with

a non-negotiable treatment agreement. The agreement required Mr. Von Behren

to complete a non-deceptive sexual history polygraph in order to advance through

the program. Failure to complete the sexual history polygraph would result in

removal from the program. Moreover, the agreement contained the following

provision concerning information gained by RSA regarding any crimes committed

by Mr. Von Behren:

      I hereby instruct RSA, Inc. to report to any appropriate authority or
      authorities any occurrence or potential occurrence of any sexual offense on
      my part regardless of how RSA, Inc. gains knowledge of such occurrence
      or potential occurrence. “Appropriate authority or authorities” as used in
      this and subsequent revisions may include, but is not limited to, County
      Human Services Departments, law enforcement agencies, probation or
      parole personnel, victims or potential victims, parents, spouses, school

                                         -4-
      personnel, and employers.

Rec., vol. 1 at 174 (emphasis added).

      Mr. Von Behren objected to probation’s supervised release modifications,

claiming, among other things, that the requirement to complete a sexual history

polygraph violated his Fifth Amendment right against self-incrimination. In its

first order, on August 26, 2014, the district court addressed the RSA contract and

held that because successful completion of sex offender treatment was a new

condition of Mr. Von Behren’s supervised release, and because compliance with

the terms of the RSA agreement was required for participation in and successful

completion of the RSA program, the requirements of the RSA agreement were, in

effect, conditions of Mr. Von Behren’s supervised release. The court ultimately

sustained Mr. Von Behren’s objection on the basis of the Fifth Amendment.

Without knowing the exact questions Mr. Von Behren would be asked, the court

modified Mr. Von Behren’s release conditions to exclude any requirement that he

admit to a criminal offense other than his offense of conviction.

      A few months later, despite the district court’s pronouncement, RSA

informed Mr. Von Behren that he would need to submit to a sexual history

polygraph or leave the program. RSA told Mr. Von Behren that the polygraph

examination would include four mandatory questions:

      1. After the age of 18, did you engage in sexual activity with anyone
         under the age of 15?
      2. Have you had sexual contact with a family member or relative?

                                        -5-
      3. Have you ever physically forced or threatened anyone to engage
         in sexual contact with you?
      4. Have you ever had sexual contact with someone who was
         physically asleep or unconscious?

Id. at 172. An affirmative answer to any one of the questions would trigger

a mandatory follow-up question asking “how many” times? Id. at 172-73.

Among these four questions, Mr. Von Behren would be permitted to refuse

to answer one.

      Due to RSA’s apparent violation of the district court’s initial order, Mr.

Von Behren, on December 23, 2014, filed an emergency motion to block the

exam. On January 27, 2015, upon seeing the particular questions that RSA would

ask, the district court reconsidered its earlier decision, denied Mr. Von Behren’s

motion, and ordered him to complete RSA’s sexual history polygraph. The court

held that the mandatory questions “d[id] not present a real and appreciable risk of

incrimination to Mr. Von Behren.” Id. at 179. Specifically, the court noted that

Mr. Von Behren’s answers would not “specify the time, the place, the identity of

any victim, or other people involved.” Id. at 180. The court did not address

compulsion, reasoning that “[a]bsent a risk of incrimination, it [was] not

necessary to consider the issue of compulsion.” Id. at 183.

      Mr. Von Behren filed an immediate notice of appeal, as well as a written

request asking the district court to stay its ruling. In the meantime, RSA

informed Mr. Von Behren that his polygraph examination was scheduled for


                                         -6-
February 11. On February 4 in its response to Mr. Von Behren’s motion for stay,

the government stated that RSA would terminate Mr. Von Behren from treatment

should he refuse to take the February 11 polygraph examination. Gov’t Response

to Stay, Dist. Ct. Doc. 104, at 6 n.2. The government also declared its opposition

to any scenario whereby Mr. Von Behren would be permitted to stay in the

community without treatment, and asserted that it would seek remand to prison if

Mr. Von Behren did not receive sex-offender specific treatment. Id. at 7.

      The district court issued its order denying Mr. Von Behren’s stay on the

afternoon of February 10, less than twenty-four hours before the scheduled exam

time. Just before midnight on February 10, Mr. Von Behren filed a motion with

this court asking us to stay the district court’s order pending direct appeal. The

next day, while Mr. Von Behren was in the examiner’s parking lot, we granted his

emergency stay of the polygraph pending appeal.



                                         II

                   THE FIFTH AMENDMENT PRIVILEGE
                     AGAINST SELF-INCRIMINATION

      Mr. Von Behren contends the district court erred when it held that one of

his conditions of supervised release, a sexual polygraph examination with four

mandatory questions, did not violate the Fifth Amendment’s privilege against

self-incrimination. “Our review of matters of constitutional law is de novo.”


                                         -7-
United States v. Rivas-Macias, 537 F.3d 1271, 1276 (10th Cir. 2008).

Accordingly, we will take a “‘fresh, independent’ look at the question at bar.” Id.

(quoting Timmons v. White, 314 F.3d 1229, 1234 (10th Cir. 2003)).

      The Fifth Amendment to the United States Constitution states that no

person “shall be compelled in any criminal case to be a witness against himself.”

U.S. Const. amend. V. The Fifth Amendment’s privilege against self-

incrimination applies not only to persons who refuse to testify against themselves

at a criminal trial in which they are the defendant, “but also ‘privileges [them] not

to answer official questions put to [them] in any other proceeding, civil or

criminal, formal or informal, where the answers might incriminate [them] in

future criminal proceedings.” Minnesota v. Murphy, 465 U.S. 420, 426 (1984)

(quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)). Significantly, “[a]

defendant does not lose this protection by reason of his conviction of a crime[.]”

Id.

      “To qualify for the Fifth Amendment privilege, a communication must be

testimonial, incriminating, and compelled.” Hiibel v. Sixth Judicial Dist. Court of

Nevada, Humboldt County, 542 U.S. 177, 189 (2004) (citing United States v.

Hubbell, 530 U.S. 27, 34-38 (2000)). There is no doubt that answering questions

during a polygraph examination involves a communicative act which is

testimonial. See Schmerber v. California, 384 U.S. 757, 761 (1966) (holding

privilege protects only communicative acts). But the elements of incrimination

                                         -8-
and compulsion are less certain and, accordingly, are the focus of this case. We

address each in turn.

A. Incrimination

      To assure an individual is not compelled to produce evidence that may later

be used against him in a criminal action, the Supreme Court has always broadly

construed the protection afforded by the Fifth Amendment privilege against self-

incrimination. Maness v. Meyers, 419 U.S. 449, 461 (1975); see also Hoffman v.

United States, 341 U.S. 479, 486 (1951); Rivas-Macias, 537 F.3d at 1278.

Accordingly, “[t]he protection does not merely encompass evidence which may

lead to criminal conviction, but includes information which would furnish a link

in the chain of evidence that could lead to prosecution, as well as evidence which

an individual reasonably believes could be used against him in a criminal

prosecution.” Maness, 419 U.S. at 461 (citing Hoffman, 341 U.S. at 486).

      The Fifth Amendment privilege is only properly invoked when the danger

of self-incrimination is “real and appreciable,” as opposed to “imaginary and

unsubstantial,” Brown v. Walker, 161 U.S. 591, 599 (1896), and “this protection

must be confined to instances where the witness has reasonable cause to

apprehend danger from a direct answer.” Hoffman, 341 U.S. at 486. But we have

explained that “[n]ot much is required . . . to show an individual faces some

authentic danger of self-incrimination, [] as the privilege ‘extends to admissions

that may only tend to incriminate.’” Rivas-Macias, 537 F.3d at 1278 (citation

                                        -9-
omitted) (quoting Emspak v. United States, 349 U.S. 190, 197 (1955)).

Accordingly, “we will uphold an individual’s invocation of the privilege against

self-incrimination unless it is ‘perfectly clear, from a careful consideration of all

the circumstances in the case,’ that the witness ‘is mistaken’ and his answers

could not ‘possibly have’ a ‘tendency to incriminate.’” Id. at 1278-79 (quoting

Hoffman, 341 U.S. at 488). Determining whether an individual has properly

invoked the privilege “is a question of law, which we review de novo.” Id. at

1278 (citing United States v. Bautista, 145 F.3d 1140, 1149 (10th Cir. 1998)).

      In this case, the district court held that the mandatory questions, along with

each of their follow-up questions, do not present a real and appreciable risk of

incrimination. It was convinced that the questions would only produce general

answers and would not require Mr. Von Behren to specify the time or location of

any incident, the identity of any victims, or the names of other people involved,

concluding that the four “questions present at worst, ‘an extraordinary and barely

possible contingency’ of incrimination and prosecution.” Rec., vol. 1 at 181

(quoting Brown, 161 U.S. at 599). We disagree.

      We start with the questions. Three of RSA’s mandatory questions ask for

the admission of a felony: (1) “After the age of 18, did you engage in sexual

activity with anyone under the age of 15?”; 2 (2) “Have you ever physically forced



      2
          See, e.g., Colo. Rev. Stat. § 18-3-405(1).

                                           -10-
or threatened anyone to engage in sexual contact with you?”; 3 and (3) “Have you

ever had sexual contact with someone who was physically asleep or

unconscious?” 4 The fourth mandatory question asks about sexual contact with a

family member, which acts to limit the possible pool of victims. 5 Given his

reluctance to submit to the polygraph, we infer that Mr. Von Behren’s answers to

these questions would reveal past sex crimes. See, e.g., United States v. Antelope,

395 F.3d 1128, 1135 (9th Cir. 2005) (“Based on the nature of this [sexual

polygraph] requirement and Antelope’s steadfast refusal to comply, it seems only

fair to infer that his sexual autobiography would, in fact, reveal past sex

crimes.”).

      An affirmative answer to any one of these questions could not support a

conviction on its own, but that is not the test. The Fifth Amendment is triggered

when a statement would provide a “lead” or “a link in the chain of evidence

needed to prosecute the” speaker, see, e.g., United States v. Powe, 591 F.2d 833,

845 n.36 (D.C. Cir. 1978), and affirmative answers to these questions would do

just that. If there were presently an investigation looking into the commission of

a sex crime, and if Mr. Von Behren were a suspect, an affirmative answer to these
      3
          See, e.g., Colo. Rev. Stat. § 18-3-402(4)(a).
      4
          See, e.g., Colo. Rev. Stat. § 18-3-402(1)(h).
      5
       This question could also involve the admission of a felony. See, e.g.,
Colo. Rev. Stat. § 18-6-301(1). However, the Colorado incest law only attaches
criminal liability to sexual relations between certain relatives, and the RSA
question is not specific in its use of the term “family member” or “relative.”

                                           -11-
questions would allow the police to focus the investigation on him. Moreover,

investigators would certainly look at Mr. Von Behren differently if they were

made aware that he had physically forced someone to engage in sexual relations

with him.

      The government, relying on Zicarelli v. New Jersey Commission of

Investigation, 406 U.S. 472, 478-79, 479 n.17 (1972), argues that when the

answer to a question would present only a remote and speculative possibility of

incrimination, and would therefore merely confirm the operating assumption of

law enforcement, there is no new link in the chain of evidence. But when the

witness in Zicarelli was subpoenaed to testify in front of the New Jersey

Commission of Investigation concerning organized crime, he refused to answer

any questions even after being provided immunity. Id. at 473-74. Despite the

immunity, the witness claimed he feared foreign prosecution. Id. at 478-79. One

of the questions he objected to asked him if he was a member of the Cosa Nostra.

Id. at 479, n.17. The Court stated that an answer to that question would only

confirm the assumptions of law enforcement. Id. Mr. Von Behren’s case is far

different. The witness in Zicarelli was a well-known member of organized crime,

and the committee questioning him, with a grant of immunity, was simply asking

him to confirm the fact. Id. at 473-74. Here, Mr. Von Behren is being asked to

admit that he committed uncharged sexual crimes. There is no evidence the

police have a working assumption that Mr. Von Behren committed such crimes

                                        -12-
and, even if they did, they could not force a witness to admit to a general crime

because it merely confirms what they “already know.”

      Furthermore, an affirmative answer could potentially be used against Mr.

Von Behren if he were ever charged with a sex crime. For instance, if Mr. Von

Behren were to answer yes to the underage sex question or the physical force

question, those answers could be used against him to show he has a propensity to

commit such bad acts. See Fed. R. Evid. 413, 414 (Rule 413(a) allows the

introduction of character evidence in sexual assault cases to show a propensity

toward committing such crimes, and Rule 414(a) allows the same thing in child

molestation cases.). As we recognized in United States v. Nance, 767 F.3d 1037

(10th Cir. 2014), “[a]lthough ‘[t]he rules of evidence generally prohibit the

admission of evidence for the purpose of showing a defendant’s propensity to

commit bad acts,’ Rule 414(a) ‘provides an exception to this general rule’ by

allowing the jury in a prosecution for child molestation to consider the fact that

the defendant has committed other acts of child molestation as evidence that the

defendant committed the charged offense.” Id. at 1041 (quoting United States v.

Sturm, 673 F.3d 1274, 1282 (10th Cir. 2012)). 6 And while the government argues

that a trial court could exclude such evidence under Fed. R. Evid. 403, the

evidentiary rule that commands trial courts to exclude relevant evidence if its


      6
        Colorado does not have a corresponding state version of Rules 413 or 414
of the Federal Rules of Evidence.

                                        -13-
probative value is substantially outweighed by its prejudicial effect, we do not

think the Fifth Amendment privilege should be submitted to an evidentiary

balancing test.

      The district court based part of its conclusion on the fact that Mr. Von

Behren’s polygraph examiner does not act as a criminal investigator, but rather as

a medical professional merely tasked with gathering relevant information to serve

the goal of treatment. The court noted that Mr. Von Behren’s scheduled

polygrapher had conducted about 47,000 polygraphs since 1978 and had never

been contacted by law enforcement regarding the results of a polygraph. This

may be true, but “[o]nce the court determines that the answers requested would

tend to incriminate the witness, it should not attempt to speculate whether the

witness will in fact be prosecuted.” United States v. Jones, 703 F.2d 473, 478

(10th Cir. 1983) (citing cases). The district court mistakenly assumed that an

assurance from the government was a substitute for immunity. See United States

v. Bahr, 730 F.3d 963, 966 n.2 (9th Cir. 2013) (“The privilege is concerned with

threat of incrimination; it does not look to whether the government mercifully

chooses not to capitalize on the constitutional violations it orchestrated.”).

      Notably, there is a provision in Mr. Von Behren’s contract with RSA that

instructs RSA “to report to any appropriate authority or authorities any

occurrence or potential occurrence of any sexual offense.” Rec., vol. 1 at 174.

This provision, which specifically authorizes his examiner to report his

                                         -14-
admissions to the police, undoubtedly adds to Mr. Von Behren’s apprehension in

regard to answering the four questions. Because the answers to the four

mandatory questions could focus an investigation—otherwise ignorant of his past

sex crimes—on Mr. Von Behren, and also because his confession to these past

crimes could potentially be used against him at trial under Fed. R. Evid. 413 and

414, we conclude that Mr. Von Behren faces at least some authentic danger of

self-incrimination by answering three of the four mandatory questions in the

RSA’s sexual history polygraph.

B. Compulsion

      After concluding in its final order that RSA’s sexual polygraph questions

do not pose a real and appreciable risk of incrimination to Mr. Von Behren, the

district court saw no need to consider whether there was compulsion. Having

disagreed with the district court on the incrimination issue, we turn to the issue of

compulsion.

      “[T]he touchstone of the Fifth Amendment is compulsion . . . .” Lefkowitz

v. Cunningham, 431 U.S. 801, 806 (1977). The privilege’s prohibition against

compulsion prevents the state from threatening to impose “substantial penalties

because a witness elects to exercise his Fifth Amendment right not to give

incriminating testimony against himself.” Id. at 805. This is so because “the

privilege against compelled self-incrimination could not abide any ‘attempt,

regardless of its ultimate effectiveness, to coerce a waiver of the immunity it

                                        -15-
confers.’” Id. at 805-06 (quoting Gardner v. Broderick, 392 U.S. 273, 279

(1968)) (emphasis added). Relying on Cunningham, the district court determined

in its initial order finding a risk of incrimination, that the penalty of potential

“revocation of supervised release and concomitant incarceration . . . is

sufficiently severe to constitute compulsion.” Rec., vol. 1 at 114. We agree with

that conclusion.

      The Fifth Amendment’s text “does not prohibit all penalties levied in

response to a person’s refusal to incriminate himself. ” McKune v. Lile, 536 U.S.

24, 49 (2002) (O’Connor, J., concurring). Rather, only “some penalties are so

great as to ‘compe[l]’ [incriminating] testimony, while others do not rise to that

level.” Id. (first alteration in original). The Court in McKune considered whether

a prison inmate was unconstitutionally compelled to incriminate himself when the

state threatened a reduction in his prison privileges and housing accommodations

if he refused to admit past offenses in response to sexual polygraph questions. Id.

at 31. Justice O’Connor agreed in her concurring opinion with the plurality’s

conclusion that the state’s threat to reduce prison privileges did not rise to the

level of compulsion. See id. at 48-54 (O’Connor, J., concurring). But she did

“not agree with the suggestion in the plurality opinion that these penalties could

permissibly rise to the level of those . . . [like] longer incarceration . . . [that] are

far greater than those we have already held to constitute unconstitutional




                                           -16-
compulsion in the [so-called] penalty cases.” Id. at 52. 7 See id. at 49-50 (citing

penalty cases including Lefkowitz v. Cunningham, 431 U.S. 801 (1977), and

Turley, 414 U.S. 70 (1973)).

      While the holding in McKune sheds light on what penalties rise to the level

of compulsion in the context of prison inmates, Mr. Von Behren is on supervised

release, not in prison. As the Supreme Court made clear in Morrissey v. Brewer,

408 U.S. 471, 482 (1972), “[t]hough the State properly subjects [a parolee] to

many restrictions not applicable to other citizens, his condition is very different

from that of confinement in a prison.” The Court in Minnesota v. Murphy, 465

U.S. 420 (1984), has spoken directly on the issue of Fifth Amendment compulsion

in the analogous probation context. The Court’s decision in Murphy, and the

prior penalty cases it relies on, leads us to conclude that the government’s threat

to revoke Mr. Von Behren’s supervised release for his failure to answer

potentially incriminating questions rises to the level of unconstitutional

compulsion.

      Murphy involved a man who was sentenced to three years’ probation after

pleading guilty to false imprisonment, a reduced charge that arose from criminal


      7
        We have recognized that Justice O’Connor’s concurrence is the holding of
the Court in McKune. See Searcy v. Simmons, 299 F.3d 1220, 1225 (10th Cir.
2002) (citing rule from Marks v. United States, 430 U.S. 188, 193 (1977), that
“the holding of a fragmented Court may be viewed as that position taken by those
Members who concurred in the judgments on the narrowest grounds” (internal
quotation omitted)).

                                         -17-
sexual conduct. Id. at 422. The terms of his probation required him to participate

in a sex offender treatment program, “report to his probation officer as directed,

and be truthful with the probation officer ‘in all matters.’” Id. After Mr. Murphy

stopped attending his treatment meetings, his treatment counselor informed his

probation officer that Mr. Murphy had admitted to committing a rape and murder

in 1974. Id. at 423. The probation officer confronted Mr. Murphy about the rape

and murder, and he admitted he had in fact committed both crimes. Id. at 423-24.

When Mr. Murphy refused the probation officer’s admonition to turn himself in,

the officer procured an arrest order.

        Mr. Murphy was eventually charged with first-degree murder. Id. at 424-

25. He sought to suppress his “confession on the ground[] that it was obtained in

violation of the Fifth and Fourteenth Amendments.” Id. at 425. The trial court

found he was not in custody at the time and his testimony was therefore not

compelled. Id. The Minnesota Supreme Court reversed, reasoning that the

compulsory nature of the meeting constituted compulsion under the Fifth

Amendment, even though Mr. Murphy failed to claim the privilege while being

questioned. Id. The Supreme Court granted certiorari and reversed. Although

the Court held that Mr. Murphy was not constitutionally compelled to give

incriminating testimony, the Court’s reasoning settles the compulsion issue in this

case.

        The Court started its analysis by noting that the Fifth Amendment privilege

                                         -18-
is normally not self-executing, meaning that a witness must affirmatively claim it

to realize its protections. Id. at 427-29. Although Mr. Murphy did not

affirmatively claim the privilege, he argued that he fell within an exception to the

general rule. Id. at 434-39. The Court addressed the first exception, confessions

obtained from suspects in police custody, see Miranda v. Arizona, 384 U.S. 436

(1966), and concluded that the pressure felt by suspects during a custodial

interrogation was markedly different than the relaxed environment of a meeting

between a probationer and his probation officer. See id. at 433.

      The Court next turned to the exception for penalty cases, a line of cases in

which the state “sought to induce [a witness] to forgo the Fifth Amendment

privilege by threatening to impose economic or other sanctions ‘capable of

forcing the self-incrimination which the Amendment forbids,’” id. at 434 (quoting

Cunningham, 431 U.S. at 806). The Court explained the central theme throughout

most of the penalty cases was that “a State may not impose substantial penalties

because a witness elects to exercise his Fifth Amendment right not to give

incriminating testimony against himself.” Id. (quoting Cunningham, 431 U.S. at

805). Notably, the Court cited cases where it had held that the state had “sought

to induce [an individual] to forgo the Fifth Amendment privilege by threatening

to impose economic or other sanctions ‘capable of forcing the self-incrimination

which the Amendment forbids.’” Id. (emphasis added) (citing Turley, 414 U.S. at

79-84).

                                         -19-
      But unlike many of the witnesses in the penalty cases, Mr. Murphy had not

asserted his privilege. Id. at 434-35. Accordingly the Court discussed cases

where “an individual succumb[s] to the pressure placed upon him, fail[s] to assert

the privilege, and disclose[s] incriminating information, which the state later

[seeks] to use against him in a criminal prosecution.” Id. at 434 (citing Garrity v.

New Jersey, 385 U.S. 493 (1967)). In Garrity, 385 U.S. at 498-99, the Court held

that an individual who was threatened with losing his job if he refused to answer

incriminating questions did not waive his Fifth Amendment privilege by

responding to those questions “rather than standing on his right to remain silent.”

Murphy, 465 U.S. at 435. Relying on Garrity, the Court declared:

      There is thus a substantial basis in our cases for concluding that if
      the state, either expressly or by implication, asserts that invocation
      of the privilege would lead to revocation of probation, it would have
      created the classic penalty situation, the failure to assert the
      privilege would be excused, and the probationer's answers would be
      deemed compelled and inadmissible in a criminal prosecution.

Murphy, id. at 435 (emphasis added).

      The Court ultimately held that this flagship rule of Fifth Amendment

jurisprudence did not apply to Mr. Murphy because his probation officer neither

affirmatively stated nor implied that Mr. Murphy’s assertion of the privilege

would result in the revocation of his probation. Id. at 437-38. In other words,

there was no threat. The Court noted that even though Mr. Murphy’s terms of

probation required him to be truthful when talking to his probation officer, the


                                        -20-
terms said “nothing about his freedom to decline to answer particular questions

and . . . contained no suggestion that his probation was conditional on his waiving

his Fifth Amendment privilege with respect to further criminal prosecution.” Id.

at 437. The Fifth Amendment privilege was not available to Mr. Murphy because

he did not claim it. 8 Id. at 438. Although the Court in Murphy concluded that no

unconstitutional compulsion was threatened in Mr. Murphy’s case, its analysis

makes clear that the opposite is true in this case.

      Murphy makes this case an easy one. It recognizes that a threat to revoke

one’s probation for properly invoking his Fifth Amendment privilege is the type

of compulsion the state may not constitutionally impose. 465 U.S. at 426. The

government asserted here that it would seek Mr. Von Behren’s remand to prison if

he refused to answer incriminating sexual polygraph questions because that

refusal would (and did) ultimately result in his termination from the sex offender

treatment program. The government’s threat constituted unconstitutional

compulsion within the meaning of the Fifth Amendment. See United States v.

York, 357 F.3d 14, 24-25 (1st Cir. 2004) (recognizing it “would be

constitutionally problematic” if supervised release provision requiring sex

offender treatment “require[d] York to submit to polygraph testing . . . so that

      8
        If he had claimed it, even the state agreed that it could not have revoked
his probation: “Indeed, in its brief in this Court, the State submits that it would
not, and legally could not, revoke probation for refusing to answer questions
calling for information that would incriminate in separate criminal proceedings.”
Murphy, 465 U.S. at 438.

                                         -21-
York’s refusal to answer any questions—even on valid Fifth Amendment

grounds—could constitute a basis for revocation”). The solution to this problem

was suggested in Murphy over thirty years ago: “[A] state may validly insist on

answers to even incriminating questions and hence sensibly administer its

probation system, as long as it recognizes that the required answers may not be

used in a criminal proceeding and thus eliminates the threat of incrimination.” Id.

at 435 n.7; see also Turley, 414 U.S. at 84-85 (state may compel waiver of Fifth

Amendment privilege only by grant of immunity from prosecution).

      The government counters that there was no unconstitutional compulsion

because RSA terminated Mr. Murphy from treatment for not completing the

polygraph exam and the government would be seeking a remand to prison for Mr.

Von Behren’s failure to complete treatment, not for his refusal to incriminate

himself. We are not persuaded by this argument. Mr. Von Behren was not

permitted to complete treatment solely and directly as a result of invoking his

Fifth Amendment privilege and refusing to answer incriminating questions. 9 The

government’s argument is a distinction without a difference.




      9
        The outcome would be different, and thus the government’s argument
would be valid, if Mr. Von Behren had refused to answer a question relevant only
to his supervised release status (such as whether he had looked at pornographic
material), or if he had refused to answer a question that did not involve the risk of
self-incrimination, or if he were given immunity and still refused to answer any
questions. But that is not this case.

                                        -22-
      The government also contends it is unclear whether the district court would

revoke Mr. Von Behren’s supervised release for the legitimate invocation of the

Fifth Amendment privilege against self-incrimination. If the court would not

send Mr. Von Behren to prison based on his termination from treatment for

invoking his Fifth Amendment privilege, the government argues, then the

necessary element of compulsion does not exist. The government is wrong.

Imagine the following scenario: Mr. Von Behren is sitting in an RSA exam room

and the polygraph examiner starts asking him a host of incriminating questions.

Mr. Von Behren feels uncomfortable and says, “I don’t know if I should answer

that.” The examiner responds by saying, “you can plead the Fifth if you want, but

if you do, we will end your treatment.” Mr. Von Behren asks to consult with

probation and is told that if he gets thrown out of treatment for failing to answer

the sexual polygraph questions, the government will seek revocation of his

supervised release. Subsequently, Mr. Von Behren confesses to a crime, and the

polygraph examiner reports his confession to the authorities. The police then

find, arrest, and charge Mr. Von Behren for the crime. At a hearing to consider

his motion to suppress the confession, Mr. Von Behren argues that the confession

should be inadmissible because it violated his Fifth Amendment privilege against

self-incrimination. The result is a virtual certainty: the confession will be thrown

out. The court would quickly dispose of the state’s argument by relying on

Garrity, 385 U.S. at 499-500 (holding confessions of two police officers were

                                         -23-
inadmissible at trial because they were obtained by telling officers they would

lose jobs if they invoked their Fifth Amendment privilege), and Murphy, 465 U.S.

at 435.

      The government’s position is that by changing one fact in the above

hypothetical—instead of confessing, Mr. Von Behren asserts his right to remain

silent and says nothing—the moment at which there is a constitutional violation

changes as well. The government argues that in this latter scenario, there is no

constitutional violation until a judge actually revokes Mr. Von Behren’s

supervised release. The government cites no authority for this bifurcated

approach. A witness is compelled under the Fifth Amendment as soon as the

government threatens him with a substantial penalty—it makes no difference

whether he proceeds with answering or stands on his right. See Turley, 444 U.S.

at 320-22 (holding state statute unconstitutional under Fifth Amendment because

it threatened state contractors with cancellation of existing contracts, plus five-

year disqualification for future contracts, for refusing to answer incriminating

questions); Bahr, 730 F.3d at 966 (“When the government conditions continued

supervised release on compliance with a treatment program requiring full

disclosure of past sexual misconduct, with no provision of immunity for disclosed

conduct, it unconstitutionally compels self-incrimination.”).




                                         -24-
      In sum, we hold that the government compelled Mr. Von Behren to be a

witness against himself. For the reasons set forth above, we REVERSE.




                                     -25-
