Argued and Submitted May 8, 2013 —Portland, Oregon
Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding D.C. No. 3:11-cr-00028-BR-1
Thomas J. Hester, Assistant Federal Public Defender, Portland, Oregon, for Defendant-Appellant.
Gary Y. Sussman, Assistant United States Attorney, Portland, Oregon, for Plaintiff-Appellee.
Before: Alfred T. Goodwin, Stephen Reinhardt, and Andrew D. Hurwitz, Circuit Judges.
Vacating a sentence and remanding, the panel held that the district court's consideration, at sentencing, of compelled statements made by the defendant in the course of sex offender treatment during an earlier period of post-prison supervision violated his Fifth Amendment privilege against self-incrimination.
The panel left to the district court on remand the determination whether the defendant's mother's testimony was admissible.
GOODWIN, Senior Circuit Judge
Defendant Richard Bahr, Jr. appeals the 240-month concurrent sentences he received after pleading guilty to two counts of possessing child pornography. Because the district court erroneously considered Bahr's statements made during an earlier period of post-prison supervision, we vacate the sentence and remand.
In 2003, Bahr was convicted of third degree rape under Oregon state law. Upon his release to supervision, Bahr was required to complete an approved sex offender treatment program. The terms of his supervision required adherence to all rules and conditions of the program and noted that the program could include polygraph testing. Bahr was indeed required to take a "full disclosure" polygraph test regarding his sexual history. During the test, he revealed that, as a minor, he had sexual contact with six other minors. He also revealed that, as an adult, he had sexual contact with seven different minors. And he revealed that he had eight to ten sexual encounters with fifteen- or sixteen-year-old girls while he was between eighteen and twenty years old. In another portion of the treatment program, Bahr admitted in a workbook that he had sexually abused eighteen children.
When the government prepared the pre-sentence report ("PSR") in this case, it included Bahr's admissions made during the polygraph disclosure and in the workbook exercise ("treatment disclosures"). Bahr moved to suppress the treatment ...