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United States v. Castillo

United States District Court, D. New Mexico

August 7, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
RAYLON CASTILLO, Defendant.

          MEMORANDUM OPINION AND ORDER OVERRULING DEFENDANT'S OBJECTION TO POLYGRAPH TESTING AS CONDITION OF SUPERVISED RELEASE

         THIS MATTER comes before the Court following a hearing on Defendant's Formal Objections to Presentence Report (Doc. 30) which was filed on June 20, 2019 by Defendant Raylon Castillo (hereinafter “Defendant” or “Castillo”). At the hearing on July 15, 2019, the Court ruled on Defendant's other sentencing objections and took the objection to the proposed special condition of supervised release requiring Castillo to submit to polygraph testing under advisement. The Court now addresses Defendant's objection to the polygraph condition of his terms of supervised release, as provided in Doc. 25-1/Doc. 34-1. Having reviewed the relevant law and the parties' arguments, the Court finds that Defendant's objection is not well-taken and, therefore, is OVERRULED.

         BACKGROUND

         In May of 2015, Castillo was indicted on the charge of aggravated sexual abuse of a minor in Indian Country, in violation of 18 U.S.C. §§ 1153, 2243(a) and 2246(2)(A). 15-CR-1802, Docs. 1, 26. In 2016, Castillo pleaded guilty to sexual abuse of a minor in front of U.S. District Judge Robert Brack, who sentenced Castillo to thirty months' imprisonment, followed by five years of supervised release. 15-CR-1802, Doc. 47. Castillo was required to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA) as a condition of his conviction, which Castillo did on September 29, 2016 when he registered with the Bernalillo County Sheriff's Office. PSR, ¶¶ 9-10. Castillo established his residence at the La Posada Halfway House on December 21, 2017, but he absconded about a week later and did not update his residency information as required under SORNA. PSR, ¶ 11. In April 2018, Farmington, New Mexico law enforcement officers arrested Castillo on unrelated charges. PSR, ¶ 13. In May 2018, the United States Probation Officer petitioned for revocation of Castillo's supervised release from the sexual abuse conviction on the grounds that he had violated his conditions of supervised release. 15-CR-1802, Doc. 87. Judge Brack imposed an eighteen-month sentence upon Castillo's admission of his violation. 15-CR-1802, Doc. 98.

         On November 7, 2018, Castillo was indicted on a single count of failing to update sex offender registry status, in violation of 18 U.S.C. § 2250(a) and 34 U.S.C. § 20913. 18-CR-3673, Doc. 1. Castillo is now before the undersigned judge for sentencing upon pleading guilty to the failure to register charge pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(B) plea agreement. Doc. 22.

         Castillo filed his Sentencing Memorandum (Doc. 29) and his Formal Objections to the Presentence Report (Doc. 30), and the Government responded (Doc. 32). At the hearing on July 15, 2019, this Court addressed the objections raised by Castillo, including the six-level enhancement to his offense level, the risk notification condition, and the restriction barring Castillo from places used primarily by children. Doc. 33, Clerk's Minutes. The Court ruled that the total adjusted Sentencing Guidelines offense level is 12 and the criminal history category is III, yielding an advisory guideline sentencing range of 15-21 months. Doc. 33. The final objection to the Pre- Sentence Report (PSR) before the Court stems from the polygraph condition, which requires that Castillo “must submit to clinical polygraph examinations, as directed by the probation officer and/or treatment provider.” Doc. 25-1/Doc. 34-1, Conditions Attachment to PSR; Doc. 30.

         DISCUSSION

         Castillo objects to the polygraph condition on several grounds, which are addressed in turn below. First, he argues that the special polygraph condition violates his Fifth Amendment privilege against self-incrimination. Second, he argues that this condition is an improper delegation because it grants the probation officer decision making authority that should be reserved for the judiciary. Third, Castillo claims that the probation officer has failed to identify how this condition is reasonably necessary to achieve the statutory goals of supervised release as provided in 18 U.S.C. § 3583(d). Furthermore, at the hearing, defense counsel argued that, should the Court require the polygraph testing condition, the examiner should inform defense counsel of the anticipated questions ahead of time so that defense counsel can advise Castillo about answering them.

         I. Fifth Amendment Privilege Against Self-Incrimination[1]

         As the Tenth Circuit Court of Appeals has explained,

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.'

United States v. Von Behren, 822 F.3d 1139, 1144 (10th Cir. 2016) (quoting Minnesota v. Murphy, 465 U.S. 420, 426 (1984)). For a communication to receive Fifth Amendment privilege, it must be testimonial, incriminating, and compelled. Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County, 542 U.S. 177, 189 (2004). The Tenth Circuit, joining other circuits, has ruled that statements made during polygraph examinations may be protected by the Fifth Amendment because “[t]here is no doubt that answering questions during a polygraph examination involves a communicative act which is testimonial.” Von Behren, 822 F.3d at 1144. Von Behren noted that the issues of incrimination and compulsion are “less certain” in the context of when a clinical polygraph examination is included as a special condition of a defendant's supervised release. Id.

         The Fifth Amendment privilege is normally not self-executing, which means that a defendant or witness must affirmatively claim it to receive its protection; however, an exception exists for “penalty cases.” Id. at 1149. The Fifth Amendment prohibits the government from “threatening to impose substantial penalties” because the defendant invokes the Fifth Amendment protection to not give incriminating testimony against himself. Id. at 1147 (citation and quotation marks omitted). The Supreme Court has explained that not all penalties are so great as to violate this maxim, but relevant to this case, the Supreme Court has expressly ruled that

[t]here 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.

Minnesota v. Murphy, 465 U.S. 420, 435 (1984). As to incrimination, a communication is incriminating under the Fifth Amendment not only when it directly yields evidence to support a criminal conviction, but when it “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.” Von Behren, 822 F.3d at 1144 (citation omitted). The danger of self-incrimination must ...


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