United States v. York

United States Court of Appeals
For the First Circuit

No. 02-2210

UNITED STATES OF AMERICA,

Appellee,

v.

LENNELL YORK, JR.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.

Catherine K. Byrne, with whom the Federal Defender Office was
on brief, for appellant.
John M. Hodgens, Jr., Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, and Virginia M.
Vander Jagt, Assistant United States Attorney, were on brief, for
appellee.

January 27, 2004
 LYNCH, Circuit Judge. Lennell York, Jr. pled guilty to

mailing a threatening letter to his estranged common-law spouse in

violation of 18 U.S.C. § 876. In September 2002, York was

sentenced to 41 months in prison, to be followed by three years of

supervised release. As part of his supervised release, the

district court required York to participate in a sex offender

treatment program and to submit to periodic polygraph testing as a

means to ensure his participation in that program.

On appeal, York attacks these two conditions, neither of

which will take effect until he begins his supervised release

program upon his release from prison in early 2006. We construe an

ambiguous provision in the supervised release order to minimize the

risk to York of coercive self-incrimination in violation of his

Fifth Amendment rights, and we affirm the judgment as construed.

I.

Though this is solely a sentencing appeal, the facts of

York's underlying offense and criminal history are pertinent to the

district court's choice of supervised release conditions. This is

so by statute. Under 18 U.S.C. § 3583(d), the district court may

impose any special condition of supervised release that it

considers "appropriate," provided that the condition satisfies

certain specified criteria. One such criterion is that the

condition imposed be "reasonably related to the factors set forth

in section 3553(a)(1)." Id. § 3583(d)(1). Section 3553(a)(1), in

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turn, requires the court to consider "the nature and circumstances

of the offense and the history and characteristics of the

defendant." See also U.S.S.G. § 5D1.3(b). In this case, the facts

are drawn from the pre-sentence report, as amended to reflect

York's minor objections, and from the transcript of the sentencing

hearing. See United States v. Lopez, 299 F.3d 84, 86 (1st Cir.

2002).

In July 2000, York was an inmate in a Massachusetts house

of corrections, where he was serving a sentence for a 1999

conviction for sexually assaulting a girl under the age of

fourteen. On July 2, York mailed a letter to A.S., his estranged

common-law wife and a relative of the girl whom he had assaulted.

In the letter, York wrote: "I can not and will not let you live.

I make this statement knowing full well what the consequences are.

. . . You will be dead, and I will be in jail. You may take this

as an idle threat if you choose to, but I will find and exterminate

you. You will cease to exist." He signed the letter "L. York."

A.S. reported the letter to the authorities, and on July

13, the FBI visited York in jail. He agreed to be interviewed,

signed a waiver of his Miranda rights, and admitted that he had

sent the letter. His lawyer later explained that York decided to

-3-
write the letter when he learned that A.S. was planning to move

away and take their children with her.1

A federal criminal complaint was filed against York in

the District of Massachusetts in February 2002, and York was

ordered detained pending indictment and trial. In April 2002, the

government formally charged York with violating 18 U.S.C. § 876,

which makes it a crime to send via the U.S. Postal Service any

"communication . . . addressed to any other person and containing

. . . any threat to injure the person of the addressee." § 876(c).

On May 13, 2002, York pled guilty to the charge.

At the sentencing hearing in September 2002, the district

court determined, and the parties agreed, that York's criminal

history qualified him as a "career offender" under U.S.S.G.

§ 4B1.1. Among York's prior offenses were two convictions in

Massachusetts state court for indecent assaults upon minors. In

the first incident, which occurred in 1993, York bought alcohol for

a minor girl who was over the age of fourteen and then subjected

her to an indecent assault and battery. The second incident, which

occurred in 1999, was York's sexual assault on the girl related to

A.S.

In light of York's criminal history and the dictates of

the career offender guideline, the district court determined that

1
In July 2001, following his release from state prison and
before his arrest for mailing the letter, York visited A.S. without
incident.

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the applicable guidelines range was 37 to 46 months. York sought

a downward departure on the basis of diminished capacity, see

U.S.S.G. § 5K2.13, which the court denied on the ground that

§ 5K2.13 does not permit departures where the defendant's conduct

involved "a serious threat of violence." Id. The court then

added:

I also agree with the government that . . . this
particular defendant's criminal history indicates a need
to incarcerate him to protect the public. He has shown
himself capable of committing, not one, but two very
dastardly and heinous sexual crimes against defenseless
young women . . . .

The court warned York that he would spend the rest of his life in

prison if he were ever arrested again for committing a violent

crime, "particularly a crime against people who are defenseless."

York was sentenced to 41 months in prison plus a three-year term of

supervised release.

In addition to the standard conditions of supervised

release, see U.S.S.G. § 5D1.3(c), the court imposed on York several

special conditions:

The defendant is to participate in a sex offender
specific treatment program at the direction of the
Probation Office. The defendant shall be required to
submit to periodic polygraph testing as a means to insure
that he is in compliance with the requirements of his
therapeutic program. No violation proceedings will arise
based solely on a defendant's failure to "pass" the
polygraph. Such an event could, however, generate a
separate investigation. When submitting to a polygraph

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 exam, the defendant does not give up his Fifth Amendment
rights.2

The government had not asked the court to impose these conditions

on York, nor had the Probation Office recommended them in York's

pre-sentence report (PSR).3 Defense counsel, however, did not

object when the court listed them among the conditions it was

imposing.

Several months after the sentencing hearing, York filed

a motion to modify the sex offender treatment and polygraph testing

conditions. The district court denied the motion because York had

already filed a notice of appeal to this court raising the same

issues. York's motion to reconsider that denial was denied on the

same ground. Cf. United States v. Distasio, 820 F.2d 20, 23 (1st

Cir. 1987) (pending notice of appeal deprives the district court of

jurisdiction over the substance of the appeal).4

2
The court further prohibited York from possessing a firearm
or other dangerous weapon, ordered him to participate in a drug
testing program as well as a mental health program, barred him from
consuming any alcoholic beverages, and prohibited him from
identifying himself by anything other than his true name. York
does not challenge these special conditions on appeal.
3
The government had sought only two of the special conditions
of supervised release that the court imposed on York: the
prohibition on possessing weapons and the requirement that York
attend a mental health treatment program. York consented to those
conditions.
4
The district court did not require York to submit to
compulsory registration as a sex offender, only to participate in
a treatment program for sex offenders. This court has elsewhere
recognized that "requiring registration as a sex offender is
different, in type and kind, from any of the usual conditions

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 II.

York attacks the conditions of his supervised release on

multiple grounds. He argues (1) that the district court could not

require him to attend a sex offender treatment program as a

condition of supervised release because his § 876 conviction did

not involve a sex-related offense; and (2) that the mandatory

polygraph testing condition is invalid because (i) it will compel

him to incriminate himself in violation of his Fifth Amendment

rights; (ii) it constitutes an impermissible delegation of the

judicial function to non-judicial officers; and (iii) it is an

inherently unreliable and thus unreasonable means of ensuring

compliance with supervised release conditions. We address each of

these contentions in turn, saving for last the more troublesome

issues raised by York's Fifth Amendment challenge.

A. Standard of Review

The parties disagree on the applicable standard of

review. This court ordinarily reviews challenges to conditions of

supervised release for abuse of discretion, but if the issue is

forfeited, review is for plain error only. United States v.

Mansur-Ramos, 348 F.3d 29, 32 (1st Cir. 2003). The government

argues that York forfeited his objections to the conditions of his

supervised release by failing to raise them during the sentencing

attached to supervised release." United States v. Brown, 235 F.3d
2, 4-5 (1st Cir. 2000). No issue of registration is presented
here.

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hearing. We have accepted this argument elsewhere. See, e.g.,

id.; United States v. Brown, 235 F.3d 2, 3-4 (1st Cir. 2000).

York acknowledges that he failed to object below.

Nevertheless, he argues that a contemporaneous objection was not

required because, given that the conduct for which he was convicted

was unrelated to sex, and given that neither the government nor the

PSR proposed sex offender treatment or polygraph testing, he could

not reasonably have anticipated the special conditions imposed by

the court. We are doubtful. Considering York's history of sexual

offenses and violence against women, it should not have been

difficult to predict the court's interest in such conditions.

In any event, we need not decide which of these arguments

should prevail, for our conclusion in York's case is the same under

either standard of review. But there is a serious consequence to

the belatedness of York's attack. As the government correctly

points out, there is no factual record developed as to the specific

sex offender treatment program that York will be required to

attend, the types of polygraph exams that may be administered, or

even the questions that York will likely be required to answer.

While the relevant treatment programs or polygraph technology may

be somewhat different in 2006, information as to existing programs

and polygraph exams is surely available and would have been

helpful. A timely objection and the creation of a record would

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have permitted both the district court and this court to review

York's claims with the benefit of that information.

B. Sex Offender Treatment Requirement

York argues that because his conviction was for mailing

a threatening communication, not for a sex-related crime, the

requirement that he participate in a sex offender treatment program

imposes a "greater deprivation of liberty than is reasonably

necessary" to deter criminal conduct or protect the public.

U.S.S.G. § 5D1.3(b). York misunderstands the law.

The Sentencing Guidelines do not limit district courts to

consideration only of the facts of the crime charged. A sentencing

court should consider each defendant's history, regardless of the

nature of the crime of conviction. The judge has the authority to

impose any condition of supervised release that is reasonably

related to (1) the defendant's offense, history, and

characteristics; (2) the need to deter the defendant from further

criminal conduct; (3) the need to protect the public from further

crimes by the defendant; and (4) the effective educational,

vocational, medical, or other correctional treatment of the

defendant. U.S.S.G. § 5D1.3(b)(1); see also 18 U.S.C.

§ 3583(d)(1); Mansur-Ramos, 348 F.3d at 33; United States v. Peppe,

80 F.3d 19, 23 (1st Cir. 1996). Although these factors are

connected by the word "and," see § 3583(d)(1); § 5D1.3(b)(1), "the

critical test is whether the challenged condition is sufficiently

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related to one or more of the permissible goals of supervised

release." Brown, 235 F.3d at 6 (emphasis added); see also United

States v. Barajas, 331 F.3d 1141, 1146-47 (10th Cir. 2003) (noting

that every circuit to have decided the issue has adopted this

interpretation notwithstanding the "and" conjunction). So the fact

that a condition of supervised release is not directly related to

York's crime of conviction does not render that condition per se

invalid.

York acknowledges these principles but argues that sex

offender treatment is uniquely reserved for cases involving sex

offenses. He points to U.S.S.G. § 5D1.3(d)(7), which provides that

a special condition requiring the defendant's participation in a

sex-offender treatment program should be imposed "if the instant

offense of conviction is a sex offense." But this is little aid to

York, as the Guidelines conspicuously do not say that sex-offender

treatment is appropriate only if the underlying crime was a sex

offense. In fact, the preamble to § 5D1.3(d) provides that the

special conditions listed therein, including participation in a

program for sex offenders, "are recommended in the circumstances

described and, in addition, may otherwise be appropriate in

particular cases." (emphasis added). And nothing in the statute

underlying § 5D1.3 limits the special condition of sex-offender

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treatment to defendants under prosecution for sex crimes.5 See 18

U.S.C. § 3583.

There are, however, several limitations on a district

court's power to fashion special conditions of supervised release.

We list a few. First, a special condition must in fact be tailored

to the circumstances: it can involve "no greater deprivation of

liberty than is reasonably necessary" to achieve the purposes of

supervised release. U.S.S.G. § 5D1.3(b)(2). Second, the condition

imposed must be consistent with any pertinent policy statements

from the Sentencing Commission. Id. Finally, the trial court's

decision to impose the challenged condition must have adequate

evidentiary support in the record. Brown, 235 F.3d at 6; United

States v. Thurlow, 44 F.3d 46, 46 n.3 (1st Cir. 1995) (per curiam).

Given York's criminal history and in light of the record

in this case, which includes a threat of violence by York against

yet another woman, the district court was well within its

discretion in requiring York to participate in the sex offender

5
York relies on United States v. Scott, 270 F.3d 632 (8th
Cir. 2001), in which the Eighth Circuit held that it was an abuse
of discretion to require sex-offender treatment as a condition of
supervised release for a defendant whose offense of conviction was
armed bank robbery. See id. at 636. But in Scott, the only
evidence of sexual misconduct by the defendant was a single
conviction over fifteen years old. The court concluded that sex-
offender treatment was unnecessary because the defendant's sex-
related misconduct had ceased. Id. York, by contrast, is a
recidivist sex offender who was convicted of a sex crime only three
years prior to the sentencing hearing.
In any event, to the extent Scott conflicts with our
reasoning, we decline to follow it.

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treatment program. The condition that he attend sex-offender

treatment is plainly related to his criminal history: York has

twice been convicted for sexually assaulting young girls, including

one conviction only a year before he mailed his threatening letter

to A.S. See United States v. Peterson, 248 F.3d 79, 84 (2d Cir.

2001) (approving a special release condition of sex-offender

treatment for a defendant convicted of bank larceny where the

defendant had been convicted of a sex offense in state court five

years earlier).

York's proven recidivism, moreover, makes the condition

reasonably related to another permissible purpose of supervised

release: protecting the public from further crimes by the

defendant. In McKune v. Lile, 536 U.S. 24 (2002), the Supreme

Court observed that convicted sex offenders who reenter society are

"much more likely than any other type of offender to be rearrested

for a new rape or sexual assault." Id. at 33. Furthermore,

treatment programs of the kind the district court has required York

to attend may "enable sex offenders to manage their impulses and in

this way reduce recidivism." Id. The district court's remarks

during sentencing make clear that the court believed that York

needed such treatment and that he continued to pose a risk to young

girls.

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 The district court committed no error, plain or

otherwise, in requiring York to participate in a sex-offender

treatment program as a condition of his supervised release.

C. Mandatory Polygraph Testing

More serious is York's Fifth Amendment challenge to the

mandatory polygraph testing requirement in his supervised release

conditions. We turn to that question after addressing York's two

threshold objections to the polygraph testing condition.

1. Impermissible delegation

York contends that the polygraph testing requirement, as

worded in the district court's order, unlawfully delegates to non-

judicial officers the power to determine matters of punishment. He

argues that the district court's command that he "shall be required

to submit to periodic polygraph testing as a means to insure that

he is in compliance with the requirements of his therapeutic

program" is vague as to the frequency, duration, and allowable

scope of the questioning. By failing to specify these details,

York claims, the district court impermissibly assigned to the

Probation Office the power to determine the nature and extent of

his punishment.

The district court committed no error in allowing York's

probation officers to determine these details. Federal courts are

not prohibited from "using nonjudicial officers to support judicial

functions, as long as th[e] judicial officer retains and exercises

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ultimate responsibility." United States v. Allen, 312 F.3d 512,

515-16 (1st Cir. 2002) (internal quotation marks omitted). Here,

the district court left no significant penological decision to the

discretion of the Probation Office: the court itself determined

that York "is to participate" in a treatment program for sex

offenders and that York "shall be required" to submit to polygraph

testing to confirm his compliance with his treatment regimen. This

distinguishes York's case from our recent decision in United States

v. Melendez-Santana, Nos. 01-2386 & 01-2397, 2003 WL 23008812 (1st

Cir. Dec. 24, 2003). In Melendez-Santana, this court upheld a

delegation challenge to a special condition of supervised release

because the district court had authorized the defendant's probation

officer to determine not only the details of the defendant's drug

treatment, but also whether the defendant would be required to

undergo such treatment. Id. at *7; see also Peterson, 248 F.3d at

84-85; United States v. Kent, 209 F.3d 1073, 1079 (8th Cir. 2000).

In this case, the district court made all such decisions itself.

Further, contrary to York's assertion, the district court

did restrict the scope of permissible questioning: the polygraph

testing is "a means to [e]nsure that [York] is in compliance with

the requirements of his therapeutic program." This is a

permissibly narrow delegation of administrative details. See

Melendez-Santana, 2003 WL 23008812, at *7 n.6 (the question of

which drug program a defendant must attend, and when he may be

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discharged, involves "administrative details" properly delegated to

a probation officer); Allen, 312 F.3d at 516. Indeed, the

delegation here is narrower than the one that this court upheld in

Allen as acceptable reliance on probation officers' administrative

expertise.6 See 312 F.3d at 515-16 (upholding a condition

requiring the defendant to participate in mental health treatment

"as directed by the probation officer, until such time as the

defendant is released from the program by the probation officer").

York's reliance on United States v. Merric, 166 F.3d 406

(1st Cir. 1999), is misplaced. In Merric, this court vacated the

defendant's sentence because the trial court impermissibly

delegated to a probation officer the power to set the defendant's

fine payment schedule. See id. at 408-09. If a probation officer

cannot set a fine payment schedule, York argues, a schedule of

6
Delegations to probation officers may be less likely to be
problematic than those involving other officials because probation
officers, while not judicial officers, are statutorily bound to
serve "within the jurisdiction and under the direction" of the
appointing court. 18 U.S.C. § 3602(a). They function as an "arm
of the court," United States v. Saxena, 229 F.3d 1, 5 n.1 (1st Cir.
2000), and the Sentencing Guidelines themselves entrust many
correctional decisions to their discretion, see, e.g., U.S.S.G.
§ 5D1.3(d)(7) (recommending that sex offenders participate in a
treatment program "approved by the United States Probation
Office"). As a practical matter, moreover, many district courts
must rely on probation services to ensure the efficient
administration of justice in criminal cases. See United States v.
Bernardine, 237 F.3d 1279, 1283 (11th Cir. 2001). For this reason,
at least one court of appeals has suggested that delegations like
the one in this case are permissible in part because of the unique
relationship between probation officers and the district courts.
See United States v. Taylor, 338 F.3d 1280, 1284 (11th Cir. 2003);
United States v. Zinn, 321 F.3d 1084, 1092 (11th Cir. 2003).

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polygraph sessions should be equally off-limits. The analogy is

not persuasive. Merric simply held that "it is the inherent

responsibility of the judge to determine matters of punishment and

this includes final authority over all payment matters." Id. at

409. But the schedule of installment payments for a fine or

restitution order has a far more material impact on a defendant

than the timing of intermittent polygraph examinations. Setting

the former may be a "core judicial function," United States v.

Miller, 77 F.3d 71, 78 (4th Cir. 1996) (internal quotation marks

omitted), but scheduling the latter is surely a matter of

administrative detail. Here, the court provided that the polygraph

testing shall be "periodic," and that the purpose of the testing

shall be to determine whether York is cooperating with his therapy.

Further detail from the court was not required. Cf. United States

v. Fellows, 157 F.3d 1197, 1204 (9th Cir. 1998) (observing that a

sentencing court "cannot be expected to design and implement the

particularities of a treatment program").

2. Inherent unreliability

York next asserts that the polygraph requirement is

unreasonable, and thus invalid, because polygraph tests are

inherently unreliable and cannot measure whether he is in fact

complying with his treatment program. York points to the Supreme

Court's acknowledgment that "there is simply no consensus that

polygraph evidence is reliable." United States v. Scheffer, 523

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U.S. 303, 309 (1998). In response, the United States does not deny

that polygraph technology is of doubtful reliability, but it

asserts that the polygraph is nevertheless a useful tool for

policing defendants' compliance with conditions of supervised

release. Regardless of the device's actual ability to detect lies,

the government suggests, the polygraph provides an incentive for

York to pursue his treatment program honestly because he may

believe that if he lies about his progress, the polygraph will

expose him. At least one court of appeals has endorsed this view.

See United States v. Taylor, 338 F.3d 1280, 1284 n.2 (11th Cir.

2003) (polygraph testing is useful in promoting the treatment of

sex offenders because "probationers fear that any false denials of

violations will be detected"); see also United States v. Lee, 315

F.3d 206, 217 (3d Cir. 2003) (polygraph testing can be "beneficial

in enhancing the supervision and treatment" of a sex offender).

The record in this case provides no factual foundation on

which to evaluate these arguments. The court imposed the polygraph

condition sua sponte; neither side submitted evidence on the

usefulness or reliability of polygraph exams. This leaves a

difficult empirical problem that appellate courts are not well

suited to resolve. Perhaps polygraph technology has become more

reliable in the five years since the Supreme Court's decision in

Scheffer. Or perhaps it will be more reliable when York actually

begins his supervised release in 2006. Or perhaps the whole theory

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of polygraph examinations is irredeemably flawed. Cf. Scheffer,

523 U.S. at 310 (citing studies challenging the scientific basis

for polygraph tests). Those questions are unanswerable on this

record.

Similarly, we cannot accept on faith that polygraphs are

effective at deterring lies, irrespective of their accuracy. The

deterrent effect of polygraph testing, after all, is related to the

reliability question: York will only be deterred from lying if he

believes that a polygraph will likely expose his lies. Perhaps

polygraphs, while imperfect, are reliable enough to achieve this

deterrent effect. Perhaps they will be so reliable in 2006. The

record provides no basis on which to make such a determination.

For these reasons, we decline to issue a blanket decision

on the propriety of polygraph testing as a tool of supervised

release. To the extent York fears that a false positive on a

polygraph exam will automatically result in the revocation of his

supervised release, the district court has anticipated and

addressed his concerns. According to the court's order, "[n]o

violation proceedings will arise based solely on [the] defendant's

failure to 'pass' the polygraph." Given this prophylaxis, the use

of a polygraph to promote York's rehabilitation is not per se

unreasonable. If, after his supervised release begins, York

believes that he has been prejudiced by the unreliability of a

polygraph test (or by the burdensomeness of the polygraph regime as

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administered by the Probation Office), he is free to marshal

supporting scientific evidence and petition the district court to

modify the conditions of his supervised release. See 18 U.S.C.

§ 3583(e)(2). Until that time, any specific claim of prejudice is

premature.

3. Fifth Amendment claim

York's most potent challenge to the mandatory polygraph

requirement is that it violates his Fifth Amendment privilege

against self-incrimination. York contends that in the course of

his treatment program he will inevitably be asked incriminating

questions, and that he will be compelled to answer due to the

severe consequences to him of revocation: because his criminal

history category is VI, York would face a minimum of eight months

in prison if his supervised release were revoked. See U.S.S.G.

§ 7B1.4.

In response, the United States does not dispute that the

Fifth Amendment applies in interviews with probation officers,

regardless of whether a polygraph is involved. See Minnesota v.

Murphy, 465 U.S. 420, 426 (1984). Instead, it argues that the

mandatory polygraph condition does not on its face "compel" York to

give incriminating answers. Cf. United States v. Washington, 431

U.S. 181, 188 (1977) ("[The] constitutional guarantee is only that

the witness be not compelled to give self-incriminating testimony."

(emphasis added)).

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 We begin with first principles. Nothing in the Fifth

Amendment mitigates the general obligation on probationers to

appear and answer questions truthfully. See Murphy, 465 U.S. at

427. Probation officers may demand honest answers to their

questions, just as prosecutors may demand truthful answers from

grand jury witnesses subpoenaed to testify. See id. Further,

because revocation proceedings are not criminal proceedings, York

will not be entitled to refuse to answer questions solely on the

ground that his replies may lead to revocation of his supervised

release. Id. at 435 n.7. York's probation officers, by requiring

him to answer such questions, will not "compel" him to incriminate

himself within the meaning of the Fifth Amendment. See id. at 427-

28, 435 n.7. Of course, York will have a valid Fifth Amendment

claim if his probation officers ask, and compel him to answer over

his assertion of privilege, a particular question implicating him

in "a crime other than that for which he has been convicted." Id.

at 426. But York cannot mount a generalized Fifth Amendment attack

on the conditions of his supervised release on the ground that he

will be required to answer probation officers' questions

truthfully.

The question, then, is whether the requirement that York

submit to polygraph tests during these interviews alters the

constitutional analysis. The government says that it does not,

arguing that the polygraph merely enforces the general obligation

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on probationers to answer questions concerning their probationary

status truthfully. In the government's view, the polygraph

requirement adds nothing relevant to the Fifth Amendment analysis:

York might have valid claims of privilege as to particular

questions, but the mandatory polygraph condition on its face does

not implicate York's Fifth Amendment rights.

In fact, the polygraph requirement may implicate York's

Fifth Amendment rights, depending on how the district court's order

is understood. One reading of the release condition is that it

flatly requires York to submit to polygraph testing as a condition

of his supervised release, so that York's refusal to answer any

question -- even on valid Fifth Amendment grounds –- could

constitute a basis for revocation. If that reading were intended,

it would be constitutionally problematic. The Supreme Court has

reasoned:

[I]f 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.

Murphy, 465 U.S. at 435.

Sensitive to Fifth Amendment issues, the district court

inserted a caveat in its order: "When submitting to a polygraph

exam, the defendant does not give up his Fifth Amendment rights."

The government argues that this qualification obviates any concern

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that the polygraph requirement on its face compels York to

incriminate himself. It might well have been intended to do so,

but the qualification is ambiguous. The court stated only that

York "does not give up his Fifth Amendment rights" in submitting to

polygraph testing. That could mean (1) that York's supervised

release will not be revoked based on his refusal to answer

polygraph questions on valid Fifth Amendment grounds; (2) that York

must answer every question during his polygraph exams on pain of

revocation, but that his answers will not be used against him in

any future prosecution; or simply (3) that York will be entitled,

in any future prosecution, to seek exclusion of his answers on the

grounds that the polygraph procedure forced him to incriminate

himself. York objects to the second interpretation because he

fears that it is ultra vires: the district court, he says,

probably lacks the power to grant him immunity from future

prosecutions, state or federal, based on information that he may

reveal to his probation officers. And the third interpretation

offers him no assurances at all.

The most sensible interpretation is the first, and we

construe the district court's order accordingly. Under Murphy, if

York can assert his Fifth Amendment privilege without risking

revocation, he does not face a "classic penalty situation," 465

U.S. at 435 & n.7, and his answers will not be considered

"compelled" within the meaning of the Fifth Amendment unless he is

-22-
forced to answer over his valid assertion of privilege, see id. at

429. At oral argument, the government conceded that this is the

best interpretation and agreed that it is acceptable; York likewise

found it preferable. Construing the order in this way also

guarantees that if York and his probation officers dispute whether

he refused to answer a question on valid Fifth Amendment grounds,

York will be entitled to a hearing before a court before any

penalty can be imposed.

We construe the district court's order to provide that

York's supervised release shall not be revoked based on his valid

assertion of Fifth Amendment privilege during a polygraph

examination. So construed, York's sentence, including the special

conditions of supervised release, is valid. See United States v.

Davis, 242 F.3d 49, 52 (1st Cir. 2001) (per curiam) (construing

condition of supervised release to avoid Fifth Amendment issues and

upholding the sentence as construed). To the extent York raises

specific Fifth Amendment objections to incriminating questions that

may be asked or coercive tactics that may be employed by the

Probation Office, his arguments are premature. York remains free

to assert his Fifth Amendment privilege if, after he begins his

supervised release term in 2006, such circumstances actually arise.

See id.

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 III.

The judgment of the district court is affirmed as

construed. So ordered.

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