United States v. Davis

United States Court of Appeals
For the First Circuit

No. 00-2054

UNITED STATES,

Appellee,

v.

AARON JOHN DAVIS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Selya, Boudin and Lynch,
Circuit Judges.

Michael A. Tucker on brief for appellant.
Margaret E. Curran, United States Attorney, and Donald C.
Lockhart, Assistant United States Attorney, on Motion for Summary
Dismissal for appellee.

March 12, 2001
 Per Curiam. Defendant Aaron John Davis, who is presently

serving an eight-month prison sentence, to be followed by twenty-

eight months of supervised release, seeks to appeal from the

following special condition of his supervised release:

The defendant is to cooperate with the Probation Officer
in all investigations and interviews during his period of
supervised release.

Davis argues that the circumstances surrounding the imposition of

the special condition -- including the district court's specific

warning that if Davis failed to answer truthfully questions about

his use of aliases and falsification of identification documents,
his supervised release would be revoked -- amounted to a violation

of his Fifth Amendment privilege against self-incrimination.
The government has filed a motion for summary dismissal on the
ground that the issue raised on appeal is not ripe for review.

Davis responds that he is challenging the special condition itself,
not its application or enforcement. The judgment imposing
sentence, of which the challenged special condition is a part, is

a final judgment. "That an issue may arise concerning a party's
subsequent compliance with an order does not negate the . . .
order's finality." United States v. Allee, 888 F.2d 208, 212 (1st

Cir. 1989).
Davis's term of supervised release will commence in less than
two months. He will then be subject to the challenged condition

imposed by the district court. Under these circumstances, the
challenge is not hypothetical. Compare United States v. Schoenborn,

4 F.3d 1424, 1434 (7th Cir. 1993) (dismissing appeal for lack of

2
ripeness where defendant sought to challenge the effect that a

possible revocation of his supervised release would have on the

length of his sentence). Davis faces a sufficiently "direct and
immediate dilemma," Stern v. U.S. District Court for District of

Massachusetts, 214 F.3d 4, 10 (1st Cir. 2000), cert. denied, __

S.Ct. __, 2001 WL 137645 (Feb. 20, 2001), as he reasonably seeks to
determine whether exercising his Fifth Amendment privilege in

response to questions by his probation officer will result in

revocation of his supervised release. See Pustell v. Lynn Public

Schools, 18 F.3d 50, 52 (1st Cir. 1994) (finding that controversy

was ripe where plaintiffs faced "possible sanctions" regardless of

the imminence of an enforcement action). As limited by Davis, his

challenge to the district court's imposition of the special
condition is ripe for review.1

The Fifth Amendment privilege against compelled self-

incrimination applies in the context of interviews with probation
officers. See Minnesota v. Murphy, 465 U.S. 420, 426 (1984).

However, "the general obligation to appear and answer questions

truthfully" does not amount to compulsion. Id. at 427. The answers

are "compelled" only if "the witness is required to answer over his

valid claim of the privilege." Id. Here, the questioning has not

yet happened. "Compulsion therefore turns on what the government

would do in such a case, rather than on what in fact it has done."

Nat'l Fed'n of Fed. Employees v. Greenberg, 983 F.2d 286, 392 (D.C.

1
The government's unsupported statement that the probation
department will not question Davis about his use of aliases and
counterfeited documents does not defeat ripeness.

3
Cir. 1993).

The Supreme Court's "decisions have made clear that the State

could not constitutionally carry out a threat to revoke probation
for the legitimate exercise of the Fifth Amendment privilege."

Murphy, 465 U.S. at 438. Although the district court's comments at

sentencing might possibly be interpreted to contain such a threat,
that is not their only reasonable interpretation. The sentencing

court stated that the information was sought "so [Davis] can be

properly supervised." The district court so stated in the context

of discussing an antecedent Magistrate Judge's report and

recommendation expressing concern that Davis might have been

planning to use false identification documents to relocate in

another state and escape supervision by the Probation Department.
Therefore, questions about Davis's use of aliases and false

identification documents have obvious relevance to Davis's

probationary status, particularly in light of the standard
conditions that he not leave the judicial district without the

probation officer's permission and that he notify the probation

officer ten days prior to any change of residence. And not all such

information necessarily would be incriminating.

As the Murphy Court observed, "we are hesitant to read into

the truthfulness requirement an additional obligation that [a

probationer] refrain from raising legitimate objections to

furnishing information that might lead to his conviction for

another crime." 465 U.S. at 437. Should the court revoke Davis's

supervised release as a penalty for his legitimate exercise of his

4
Fifth Amendment privilege, he remains free to challenge that action

at the time it occurs. That eventuality, however, has not yet

occurred (and may never occur). For now, we must focus on the
challenged special condition itself. We do not find that

condition, even as explained by the district court, to carry a

realistic threat of such a penalty. So construed, Davis's sentence,
including the special condition requiring cooperation with his

probation officer, is valid. We therefore grant the government's

motion for summary disposition and affirm the sentence. See 1st Cir.
R. 27(c).

5