By Ali Fenno
On March 13, 2017, the Fourth Circuit issued a published opinion in the criminal case of United States v. Lara. In Lara, the Fourth Circuit addressed whether the district court violated the psychotherapist-patient privilege and the Fifth Amendment privilege against self-incrimination when, during a sentencing hearing, it considered statements the defendant, Juan Lara (“Lara”), made while participating in a compulsory Sex Offender Treatment Program (“Treatment Program”) that had been a condition to his probation. After examining the knowing and voluntary nature of Lara’s consent to his probation terms and the voluntary nature of the statements Lara made during the Treatment Program, the Fourth Circuit concluded that the district court did not err in considering the self-incriminating statements.
Factual and Procedural Background
In February 2008, Lara was convicted for the aggravated sexual battery of a mentally incapacitated victim under Virginia Code Section 18.2-67.3(A)(2) and sentenced to 20 years’ imprisonment with 17 years suspended. In addition, upon his release from confinement, Lara was to serve 20 years’ supervised probation and was required to complete a Treatment Program, allow the Treatment Program provider to have “unrestricted communication with the probation and parole department,” and “submit to any polygraph . . . deemed appropriate by [his] supervising officer.” Lara acknowledged and consented to these conditions before his release by signing a form that listed the conditions.
Lara’s probationary period started immediately upon his release in December 2009. He was referred to a Treatment Program, Flora Counseling Services Corporation (“Flora), and met with one of Flora’s licensed clinical social workers for an interview in April 2010. During the interview, Lara detailed his past sexual conduct with minors, commission of forcible sexual assaults, and involvement in two murders. He later confirmed these incidents in a polygraph examination and signed a written statement describing the incidents. Then, in July 2010, he signed a document entitled “Sex Offender Program Acknowledgment of Confidentiality Waiver” to acknowledge that all information he relayed to Flora’s therapists and group leaders “is not privileged or private” and that Lara “waive[d] any and all such rights of confidentiality which may exist by statute or rule of law.”
Lara successfully completed Flora’s Treatment Program, but in March 2014, in violation of his conditions of probation, he moved from Virginia to Texas without notifying his probation officer or updating his registration with the Virginia State Police’s Sex Offender and Crimes Against Minors Registry. Several months later, he was arrested and indicted by a federal grand jury for violating the Sex Offender Registration and Notification Act (SORNA).
Lara pleaded guilty to the SORNA violation and filed a motion to exclude from consideration at sentencing the statements he made during Flora’s Treatment Program interview that detailed his past criminal incidents. The district court denied his motion, holding that he had voluntarily waived any psychotherapist-patient privilege and that the Fifth Amendment did not protect him from the government’s use of voluntary disclosures of incriminating information. The court then concluded that Lara more likely than not committed the crimes he admitted to during Flora’s Treatment Program interview, and sentenced him to 120 months’ imprisonment.
Issues on Appeal and Standard of Review
The first issue on appeal was whether Lara knowingly and voluntarily waived the psychotherapist-patient privilege. The second issue was whether the incriminating statements Lara made during his intake interview invoked his Fifth Amendment privilege against self-incrimination. A district court’s determination of whether a privilege should be recognized is a mixed question of law and fact. Accordingly, the Fourth Circuit reviewed both issues de novo.
Waiver of the Psychotherapist-Patient Privilege
Lara first argued that he did not waive the psychotherapist-patient privilege because he was “compelled to participate” in Flora’s Treatment Program. In rejecting this argument, the Fourth Circuit first noted that the psychotherapist-patient privilege is strictly construed, and a defendant has the burden of showing that he did not waive the privilege by knowingly and voluntarily relinquishing it. The court then recognized that, especially when the probationary period is used as an alternative to incarceration, courts administering probation as a punishment may deprive a criminal offender of certain freedoms. The Fourth Circuit further identified multiple courts that had found a criminal defendant’s consent to court-imposed conditions of release to be voluntary despite the alternative of incarceration.
Here, Lara chose to agree to the terms of his supervised probation as an alternative to incarceration. Those terms explicitly authorized Treatment Program providers to have “unrestricted communication” with the state probation and parole department as an alternative to incarceration. Accordingly, the Fourth Circuit concluded that the alternative of incarceration did not eradicate the voluntary nature of Lara’s consent to the terms of his probation, and held that Lara waived any psychotherapist-patient privileges that may have applied to the incriminating statements he made while participating in Flora’s Treatment Program.
Failure to Invoke Fifth Amendment Privilege
Next, Lara argued that his Fifth Amendment privilege against self-incrimination was violated because the probation conditions required him to disclose incriminating information. The Fourth Circuit rejected this argument as well. It first noted that the Fifth Amendment privilege “generally is not self-executing” and that a defendant “ordinarily must assert the privilege rather than answer if he desires not to incriminate himself.” But it then looked to Minnesota v. Murphy, where the United States Supreme Court recognized that the threat of revocation of probation could “trigger self-executing Fifth Amendment protections.” However, this could only occur when direct evidence indicated that the defendant only confessed because it was nearly certain that his silence would cause probation to be revoked.
The Fourth Circuit then examined the factual record and could not find any direct evidence that Lara made the incriminating statements during Flora’s Treatment Program interview under the threat of revocation of his probation. Indeed, the state court could not have revoked his probation if he had asserted his Fifth Amendment privilege during the interview. Thus, the Fourth Circuit held that the statements were voluntarily made and did not invoke Lara’s Fifth Amendment privilege against self-incrimination.
Because Lara’s incriminating statements were knowingly and voluntarily made, the Fourth Circuit concluded that he waived the psychotherapist-patient privilege and did not invoke the Fifth Amendment privilege against self-incrimination. Accordingly, the Fourth Circuit affirmed the district court’s judgment, holding that the district court did not err when it considered at the sentencing hearing the incriminating statements Lara made during Flora’s Treatment Program.