USA v. Andrew Hulen

Filing

FILED OPINION (KIM MCLANE WARDLAW, RICHARD R. CLIFTON and JOHN B. OWENS) AFFIRMED. Judge: RRC Authoring,. FILED AND ENTERED JUDGMENT. [10719376]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDREW WAYNE HULEN,
Defendant-Appellant.

No. 16-30160
D.C. No.
1:15-cr-00012SPW-1
OPINION

Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted October 2, 2017
Seattle, Washington
Filed January 10, 2018
Before: Kim McLane Wardlaw, Richard R. Clifton,
and John B. Owens, Circuit Judges.
Opinion by Judge Clifton

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UNITED STATES V. HULEN
SUMMARY*

Criminal Law
The panel affirmed the district court’s judgment revoking
the defendant’s supervised release based on the defendant’s
admissions during mandatory sex-offender treatment.
The panel held that a proceeding to revoke supervised
release is not a criminal case for purposes of the Fifth
Amendment against self-incrimination, and that the district
court therefore did not violate the defendant’s right against
self-incrimination by revoking his supervised release based
on his admissions.

COUNSEL
David A. Merchant II (argued) and Joslyn Hunt, Assistant
Federal Defenders; Anthony R. Gallagher, Federal Defender;
Federal Defenders of Montana, Billings, Montana; for
Defendant-Appellant.
John David Sullivan (argued), Assistant United States
Attorney; Leif M. Johnson, Acting United States Attorney;
United States Attorney’s Office, Billings, Montana; for
Plaintiff-Appellee.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. HULEN

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OPINION
CLIFTON, Circuit Judge:
The issue in this case is whether admissions made during
mandatory sex-offender treatment may be used against a
defendant to revoke supervised release. Answering that
question requires us to consider whether a proceeding to
revoke supervised release is a “criminal case” for purposes of
the Fifth Amendment right against self-incrimination.
While on supervised release, Andrew Hulen violated
various conditions of his release. He admitted those
violations during sex-offender treatment, in which he was
required to participate as a condition of his release. Based on
those admissions, he was terminated from treatment, and the
district court revoked his supervised release. Hulen argues
that the use of his statements against him in the revocation
proceeding by the district court violated his right against selfincrimination under the Fifth Amendment. We hold that the
district court did not violate Hulen’s right against selfincrimination because that right extends only to prohibit the
use of an admission in a criminal case. A proceeding to
revoke supervised release is not a criminal case for purposes
of the Fifth Amendment right against self-incrimination.
Accordingly, we affirm the decision of the district court.
I. Background
At the time of the events alleged in this case, Hulen was
serving a five-year term of supervised release that followed
twelve months of imprisonment for failure to register as a sex
offender in violation of 18 U.S.C. § 2250(a). As a condition

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UNITED STATES V. HULEN

of his supervised release, Hulen was required to participate in
sex-offender treatment.
Two months into his supervised release, Hulen informed
his treatment provider that he was not doing all he could to
progress in treatment. Hulen’s provider told him to write
down everything he had done in violation of his treatment
program, which he did. Hulen’s violations included using
marijuana; spending nights with a woman; receiving nude
photos and video from two different women; sending nude
photos and video; sexting; having contact with an individual
with whom he was not permitted to have contact; attending a
party where alcohol was present; entering a bar; being in the
company of minors; contacting people on Craigslist; going to
an adult bookstore; lying to his probation officer and
treatment provider about what he had done; failing to notify
his probation officer about being terminated from his
employment because of not showing up; failing to provide to
his treatment provider all of the email addresses he was
using; utilizing social media sites to meet people and using an
alias to hide his status as a sex offender; going to a mall;
deleting photos and videos he had taken and lying about his
actions; having contact with two individuals who were on
probation; and failing to make payments toward his $100
special assessment.
Hulen’s treatment provider sent a letter to Hulen’s
probation officer, informing her that Hulen would be
terminated from treatment. The treatment provider included
the list of violations in his letter. Hulen’s probation officer
then filed a petition to revoke Hulen’s supervised release
based on Hulen’s admissions. Shortly thereafter, Hulen was
officially terminated from the treatment program. Because
treatment was itself a condition of Hulen’s supervised release,

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the probation officer filed an amended petition adding
Hulen’s termination from the program to the list of violations.
Hulen filed a motion to strike twenty of the twenty-three
alleged violations listed in the amended petition. In response,
his probation officer removed the challenged violations and
filed a second amended petition containing only three
purported violations. The remaining allegations were:
(1) accepting employment without permission; (2) failing to
make payments toward his special assessment; and (3) being
terminated from the treatment program. The government
later acknowledged that the first two alleged violations were
“not that significant” but described the third as the “most
egregious offense.”
Hulen admitted to the three violations. The district court
revoked Hulen’s supervised release and sentenced him to
another six months of imprisonment followed by a new fiftyfour-month term of supervised release. Hulen now appeals
his sentence, arguing that the district court violated his right
against self-incrimination by relying on his admissions to
revoke his supervised release.
II. Discussion
A. Mootness
As a threshold matter, the government argues that Hulen’s
appeal is moot because he has already served his term of
imprisonment and is once again on supervised release. We
review questions of mootness de novo. Foster v. Carson,
347 F.3d 742, 745 (9th Cir. 2003).

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“A claim is moot ‘when the issues presented are no longer
live or the parties lack a legally cognizable interest in the
outcome.’” Alvarez v. Hill, 667 F.3d 1061, 1064 (9th Cir.
2012) (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S.
388, 396 (1980)). Although Hulen has already served his
term of imprisonment, he remains on supervised release. An
appeal of a sentence is not moot where success on the appeal
could alter the length or conditions of the supervised release
portion of the defendant’s sentence. United States v. Verdin,
243 F.3d 1174, 1178 (9th Cir. 2001). Because that is the case
here, this appeal is not moot.
B. Fifth Amendment
Hulen argues that the district court violated his Fifth
Amendment right against self-incrimination. We review
potential violations of the Fifth Amendment de novo. In re
Grand Jury Subpoena, 75 F.3d 446, 447 (9th Cir. 1996).
The Fifth Amendment provides that no person “shall be
compelled in any criminal case to be a witness against
himself.” Thus, the Fifth Amendment provides a right
against compelled self-incrimination, but that right only
applies when a compelled statement is used against a
defendant in a “criminal case.” Chavez v. Martinez, 538 U.S.
760, 766–67 (2003) (plurality opinion); Stoot v. City of
Everett, 582 F.3d 910, 922–23 (9th Cir. 2009).
A compelled statement is used in a criminal case when it
is “relied upon to file formal charges against the declarant, to
determine judicially that the prosecution may proceed, and to
determine pretrial custody status.” Stoot, 582 F.3d at 925.
Thus, “in cases where police coerce a statement but do not
rely on that statement to file formal charges or oppose bail,

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the Fifth Amendment would not be implicated.” Id. at 925
n.15.
The Fifth Amendment may be implicated when a
probation officer coerces an individual into making an
incriminating statement, if the statement is used against the
probationer in a criminal case. For example, we have held
that there was a Fifth Amendment violation when a
probationer was compelled to make incriminating admissions
that were later used to charge the probationer with a new
crime. United States v. Saechao, 418 F.3d 1073, 1075–76
(9th Cir. 2005). Here, however, Hulen was not charged with
a new crime. Instead, his supervised release was revoked.
That is not the same thing.
“It is well established that parole revocation is not part of
a criminal prosecution.”1 Standlee v. Rhay, 557 F.2d 1303,
1306 (9th Cir. 1977) (citing Morrissey v. Brewer, 408 U.S.
471, 480 (1972)). “[T]hus the full panoply of rights due a
defendant in such a proceeding does not apply to parole
revocations.” Morrissey, 408 U.S. at 480. Revocation
proceedings implicate fewer rights because revocation “is not
new punishment for a new crime. It is part of the whole
matrix of punishment which arises out of a defendant’s
original crime, of which the defendant has already been
convicted after a trial subject to the full panoply of
constitutional guarantees.” United States v. Soto-Olivas,
44 F.3d 788, 792 (9th Cir. 1995) (alteration incorporated)
(internal quotation marks omitted)). Thus, “[r]evocation

1

“Parole, probation, and supervised release revocation hearings are
constitutionally indistinguishable and are analyzed in the same manner.”
United States v. Hall, 419 F.3d 980, 985 n.4 (9th Cir. 2005) (citing United
States v. Comito, 177 F.3d 1166, 1170 (9th Cir. 1999)).

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deprives an individual, not of the absolute liberty to which
every citizen is entitled, but only of the conditional liberty
properly dependent on observance of special parole
restrictions.” Morrissey, 408 U.S. at 480.
The Supreme Court articulated these principles in
Morrissey, holding that revocation proceedings require only
basic due process rather than the full protection of the Sixth
Amendment. Id. at 481–89.; cf. Middendorf v. Henry,
425 U.S. 25, 37 (1976) (“[T]he fact that a proceeding will
result in loss of liberty does not ipso facto mean that the
proceeding is a ‘criminal prosecution’ for purposes of the
Sixth Amendment.”). Based on Morrissey, we have
repeatedly recognized that revocation proceedings are not
“criminal cases” that would confer various rights due to
defendants in criminal proceedings. For example, we held
that the Sixth Amendment right to self-representation does
not apply to revocation proceedings in United States v.
Spangle, 626 F.3d 488, 494 (9th Cir. 2010). We held that the
Sixth Amendment right of confrontation does not extend to
revocations in United States v. Hall, 419 F.3d 980, 985–86
(9th Cir. 2005). We held that supervised release may be
revoked without corroborating a confession, even though
corroboration is required to convict a defendant at trial, in
United States v. Hilger, 728 F.3d 947, 949–51 (9th Cir.
2013). And, we held that collateral estoppel does not bar a
subsequent revocation after a criminal acquittal in Standlee,
557 F.2d at 1307.
While Morrissey was decided in the context of the Sixth
Amendment, the principles underlying Morrissey apply with
equal force to the Fifth Amendment right against selfincrimination. Indeed, the Supreme Court indicated as much
in Minnesota v. Murphy, 465 U.S. 420 (1984). The issue in

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Murphy was whether the Fifth Amendment right is selfexecuting, but in a footnote the Court explained that “a
revocation proceeding . . . is not a criminal proceeding. Just
as there is no right to a jury trial before probation may be
revoked, neither is the privilege against compelled selfincrimination available to a probationer.” Id. at 435 n.7
(internal citations omitted). Based partly on Murphy, we later
held that an insanity acquittee could not invoke the right
against self-incrimination in the context of a release hearing.
United States v. Phelps, 955 F.2d 1258, 1263 (9th Cir. 1992).
The right did not apply to statements made for purposes of
the release hearing, even though such statements could
prolong the insanity acquittee’s loss of liberty. Id. Instead,
the right would only apply to future criminal prosecutions.
Id.
The same reasoning applies here. A revocation
proceeding is not a new criminal proceeding, but is instead
part of the “matrix of punishment” arising out of the original
crime. Soto-Olivas, 44 F.3d at 792. Thus, the full panoply of
rights due a defendant in a criminal proceeding does not
apply to revocations. See Morrissey, 408 U.S. at 480.
Revocation deprives a probationer only of the conditional
liberty properly dependent on observance of special
restrictions. See id. The Fifth Amendment does not provide
a right to avoid the consequences of violating those special
restrictions. Accordingly, a revocation proceeding is not a
criminal case for purposes of the Fifth Amendment right
against self-incrimination.
Hulen cites a number of cases to support his position, but
none of them address whether a revocation proceeding is
itself a criminal proceeding for purposes of the right against
self-incrimination. In Saechao, the question presented was

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whether the right against self-incrimination was selfexecuting under the particular facts of the case. Saechao,
418 F.3d at 1075. The probationer in Saechao was compelled
to provide evidence that was used to charge him with a new
crime. Id. at 1075–76. The later criminal proceeding was the
“criminal case” for purposes of the Fifth Amendment.
Similarly, in United States v. Bahr, a statement made during
a period of post-prison supervision was used to determine a
sentence in a later, unrelated criminal proceeding. 730 F.3d
963, 965–66 (9th Cir. 2013). Finally, in United States v.
Antelope, a probationer refused to detail his sexual history out
of fear that he would be charged with new crimes for past
actions. 395 F.3d 1128, 1135 (9th Cir. 2005). We noted that
we had “no doubt,” based on the facts of the case, “that any
admissions of past crimes would likely make their way into
the hands of prosecutors.” Id. We therefore upheld the
probationer’s right to refuse to detail his sexual history
because the answers “would incriminate him in a pending or
later criminal prosecution.” Id. (quoting Murphy, 465 U.S. at
435). Thus, our analysis was driven by the threat of a new
prosecution. We did not address the question of whether the
Fifth Amendment would be implicated by an admission
leading to the revocation of supervised release.
If an effort had been made to charge and convict Hulen
for a new crime based on his admissions, he would
presumably be able to claim the benefit of the Fifth
Amendment. That is not the case before us, however. The
right against self-incrimination did not prevent the use of his
admissions to revoke his supervised release.

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III.

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Conclusion

There was no violation of Hulen’s right against selfincrimination because a proceeding to revoke supervised
release is not a criminal case for the purposes of the Fifth
Amendment.
AFFIRMED.