UNITED STATES v. ROSS (2021)

United States Court of Appeals, Ninth Circuit.2021-07-01No. No. 20-10158

Summary · law.co

Holding. The court affirmed the district court's imposition of the supervised release conditions, holding that they do not violate the Fifth Amendment despite lacking explicit language protecting the defendant's right against self-incrimination.

Ronald Gene Ross, Jr. was convicted of receiving child pornography and sentenced to 78 months in prison plus lifetime supervised release. After his supervised release was revoked in 2020, he appealed two conditions related to polygraph examinations that may occur as part of his treatment program, claiming they violated his Fifth Amendment rights.

Ross argued that the conditions were unconstitutional because he could be discharged from his treatment program if he invoked his Fifth Amendment privilege during a polygraph exam, and such a discharge might trigger revocation of his supervised release. The court rejected this argument, finding that the conditions do not violate the Fifth Amendment even though they lack explicit language protecting his right against self-incrimination. The government conceded that supervised release cannot actually be revoked based on a valid Fifth Amendment invocation during a polygraph exam.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether conditions of supervised release requiring polygraph exams violate the Fifth Amendment
Whether supervised release can be revoked based on invocation of Fifth Amendment privilege
Ripeness of challenges to contingent supervised release conditions

Procedural posture

The defendant appealed from the district court's imposition of supervised release conditions after revocation of his original supervised release.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Defendant Ronald Gene Ross, Jr. was convicted of one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2). He was sentenced to 78 months in prison and a lifetime term of supervised release. In 2020, the district court revoked his supervised release and sentenced him to 72 days in custody and lifetime supervised release. Ross challenges two conditions of supervised release related to polygraph exams that may be conducted as part of his treatment program. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

The government contends that this case is not ripe for review. However, “[a] term of supervised release, even if contingent, is part and parcel of the defendants sentence and can be challenged on direct appeal.” United States v. Weber, 451 F.3d 552, 557 (9th Cir. 2006). Ross asserts a facial challenge to alleged inconsistencies in his conditions of supervised release so that challenge is ripe for review.

Ross argues that the conditions violate his Fifth Amendment rights because he may be discharged from the required treatment program based on a valid invocation of the Fifth Amendment during polygraph exams, and the discharge could lead to revocation of his supervision. “We review the district courts decision to impose conditions of supervised release for abuse of discretion.” United States v. Stoterau, 524 F.3d 988, 1002 (9th Cir. 2008). “[W]e review de novo claims that such conditions violate the Constitution.” United States v. Evans, 883 F.3d 1154, 1159–60 (9th Cir. 2018).

The conditions do not violate the Fifth Amendment. “[A] defendant retains his Fifth Amendment rights during” polygraph exams. Stoterau, 524 F.3d at 1003–04 (citation omitted). The absence of language ensuring compliance with the Fifth Amendment does not render the condition unconstitutional or otherwise infirm. The government admits that Rosss supervised release cannot be revoked based on a valid invocation of the Fifth Amendment during a polygraph exam.

The judgment of the district court is AFFIRMED.