United States v. John Manning

Filing

PER CURIAM OPINION FILED - THE COURT: ROGER L. WOLLMAN, MICHAEL J. MELLOY and BOBBY E. SHEPHERD (UNPUBLISHED); Granting [3881180-2] motion to withdraw as counsel filed by Mr. David Randolph Mercer. [3940655] [12-1014]

United States Court of Appeals
For the Eighth Circuit
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No. 12-1014
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
John Tyler Manning
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: August 7, 2012
Filed: August 9, 2012
[Unpublished]
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Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.
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PER CURIAM.
John Manning, who has been released under supervision following a prison
term for a child-pornography offense, appeals the district court’s1 imposition of new

1

The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri, adopting the report and recommendations of the Honorable
James C. England, United States Magistrate Judge for the Western District of
Missouri.

Appellate Case: 12-1014

Page: 1

Date Filed: 08/09/2012 Entry ID: 3940655

supervised-release conditions requiring him to undergo a polygraph exam and a
psychosexual evaluation in connection with sex-offender counseling as directed by
his probation officer. We conclude that Manning’s Fifth Amendment challenge to
these conditions is premature. See United States v. York, 357 F.3d 14, 24-25 (1st Cir.
2004) (rejecting argument that mandatory polygraph violated defendant’s Fifth
Amendment rights; defendant could not mount generalized Fifth Amendment attack
on supervised release on ground that he would be required to answer probation
officers’ questions truthfully; any specific Fifth Amendment objection to
incriminating questions that might be asked was premature, and defendant remained
free to assert Fifth Amendment privilege if such circumstances were actually to arise);
United States v. Zinn, 321 F.3d 1084, 1090-92 (11th Cir. 2003) (condition requiring
defendant to undergo polygraph test did not violate Fifth Amendment, where it was
undisputed that there had not yet been any potentially incriminating question,
invocation of privilege against self-incrimination, or government compulsion to testify
over valid claim of privilege; hypothetical possibilities do not present cognizable Fifth
Amendment claim; if and when defendant were to be forced to testify over valid claim
of privilege, he could then raise Fifth Amendment challenge); see also United States
v. Muhlenbruch, 682 F.3d 1096, 1102 (8th Cir. 2012) (imposition of conditions of
supervised release are reviewed for abuse of discretion).
Accordingly, we affirm. We also grant counsel’s motion to withdraw.
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Appellate Case: 12-1014

Page: 2

Date Filed: 08/09/2012 Entry ID: 3940655