United States v. Locke

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 21, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 06-40270
__________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOHN DAVIS LOCKE,

Defendant - Appellant.

___________________________________________________

Appeal from the United States District Court
For the Eastern District of Texas
___________________________________________________

Before GARWOOD, WIENER, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

John Davis Locke appeals the revocation of his probation, arguing, inter alia, that certain of

his probation conditions violated the Fifth Amendment because they allegedly coerced him into

revealing that he had violated terms of his probation. For the following reasons, we affirm.

I. FACTS AND PROCEEDINGS

Locke pleaded guilty to one count of possession of child pornography in violation of 18

U.S.C. § 2252(a)(4)(B) and was sentenced to four years probation. Relevant to this appeal, the terms

of Locke’s probation required the following:

Standard Conditions:
The defendant shall answer truthfully all inquires by the probation officer and follow
the instruction of the probation officer.

Special Conditions:

Under the guidance and direction of the U.S. Probation Office, the defendant shall
participate in a sex offender treatment program which may include the application of
physiological testing instruments to determine appropriate treatment. The defendant
shall pay any cost associated with treatment and testing.

Locke’s probation also prohibited him from having access to the Internet and from “viewing,

possessing, or obtaining pornography in any form.”

In accordance with his probation conditions, Locke underwent “physiological testing,”

namely, a polygraph test. The test revealed that Locke’s answers claiming not to have viewed

pornography were dishonest. Prior to the administration of the test, Locke had admitted to his sex-

offender therapist, Dr. Rafael Otero, that he had used his wife’s computer to access the Internet to

view erotic stories.

With the statements made by Locke during the polygraph test and during his discussion with

Dr. Otero, as well as with Locke’s wife’s consent, the United States Probation Office obtained court

approval to perform a forensic examination on Locke’s wife’s computer. The analysis revealed

downloaded erotic stories and at least forty-nine images of adult pornography. When confronted with

the results of the computer search, Locke admitted using the computer to access the Internet to

search for pornographic pictures. Based on the foregoing facts, the district court revoked Locke’s

probation and sentenced him to twelve months and one day in prison. Locke appealed.

II. STANDARD OF REVIEW

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Locke did not challenge the conditions of probation when imposed, only upon revocation. As

such, we view Locke’s arguments as challenges to the constitutionality of certain conditions of his

probation as applied to him in the revocation. We review a decision to revoke probation for abuse

of discretion, but we review issues of constitutional law de novo. United States v. King, 990 F.2d

190, 193 (5th Cir. 1993); see also United States v. Grandlund, 71 F.3d 507, 509 (5th Cir. 1995)

(reviewing de novo a constitutional challenge about the right to confront adverse witnesses).

III. DISCUSSION

A. Polygraph examination

Locke first contends that, as applied, the probation condition requiring his participation in a

treatment program that included polygraph testing violated his Fifth Amendment right against self-

incrimination. He contends that the district court should have suppressed his answers to questions

asked during the polygraph test and should have suppressed all of the later-discovered evidence of

Locke’s probation violations. We disagree.

“[The Fifth Amendment privilege] does not preclude a witness from testifying voluntarily in

matters which may incriminate him.” United States v. Monia, 317 U.S. 424, 427 (1943). If a

defendant desires the protection of the privilege, he must claim it or his statements will not be

considered “compelled” within the meaning of the Fifth Amendment. Id. The general rule that the

privilege must be claimed when self-incrimination is threatened may be waived if “the assertion of the

privilege is penalized so as to ‘foreclos[e] a free choice to remain silent, and . . . compe[l] . . .

incriminating testimony.’” Minnesota v. Murphy, 465 U.S. 420, 434 (1984) (quoting Garner v.

United States, 424 U.S. 648, 661 (1976) (alterations and omissions in original)). According to the

Murphy Court, if the government, either expressly or by implication, “asserts that invocation of the

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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.” Id. at 435.

Though Locke did not invoke the Fifth Amendment privilege, he argues that the mandatory

polygraph testing condition created the “classic penalty situation” envisioned in Murphy in that he

had no choice but to submit to the polygraph test and provide answers that incriminated him. Locke

focuses on questions asked during the polygraph test that attempted to ascertain whether Locke had

viewed any pornography using the Internet or otherwise since Locke began his probation. The Fifth

Amendment has not been infringed, since these questions attempted to ascertain whether Locke had

violated conditions of his probation, and Locke’s answers could not serve as a basis for a future

criminal prosecution. A probationer may only invoke the Fifth Amendment privilege if a truthful

answer would incriminate the probationer by exposing him to prosecution for a different crime. See

Murphy, 465 U.S. at 435–36 n.7; see also United States v. Lee, 315 F.3d 206, 213 (3d Cir. 2003)

(“A probationer may not refuse to answer a question just because his answer would disclose a

violation of probation . . . .”).1

The fact that the questions were asked to Locke in the context of a polygraph test does not

convert the question-and-answer session into a Fifth Amendment violation. See Lee, 315 F.3d at 212;

see also United States v. Johnson, 446 F.3d 272, 279–80 (2d Cir. 2006). This holding comports with

1
United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005), cited by Locke, is inapposite.
Antelope involved a situation where a defendant suffered “repeated revocation of his conditional
liberty as a result of invoking his Fifth Amendment right.” Id. at 1139. In contrast, Locke only
unreasonably speculates that his probation would have been revoked for invoking his Fifth
Amendment privilege during the polygraph examination. Locke’s probation was, in fact, revoked
because he used the Internet to view pornographic images.

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decisions of other circuits, which have deemed polygraph tests permissible probation conditions. See

Lee 315 F.3d at 212–13; see also Johnson, 446 F.3d at 279–80 (upholding the administration of a

polygraph test); United States v. York, 357 F.3d 14, 24–25 (1st Cir. 2004) (same); Owens v. Kelley,

681 F.2d 1362, 1369 (11th Cir. 1982) (holding that the condition requiring the probationer to submit

to “Psychological Stress Evaluation[s]” did not violate his constitutional rights because it did not

stipulate that he must respond to incriminating questions).

B. Locke’s remaining challenges

Locke next argues that the probation condition prohibiting him from possessing any form of

pornography is impermissibly vague as applied. Locke, however, did not object to the imposition of

this condition, nor did he ever request guidance as to its meaning. Moreover, the terms of Locke’s

probation, the record, and the statute of conviction provided sufficient notice that the pornographic

material that Locke possessed was prohibited by the probation condition. The forty-nine images

captured from Locke’s computer depicted erotic behavior intended to cause sexual excitement; they

depicted various nude persons, both male and female, engaging in a variety of sexual activity. Locke

pleaded guilty to one count of violating 18 U.S.C. § 2252(a)(2), which prohibits, inter alia,

possessing visual pictures of minors engaged in “sexually explicit conduct.” That term is defined at

18 U.S.C. § 2256(2) as “actual or simulated . . . sexual intercourse, including genital-genital, oral-

genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.” The original

indictment charging Locke alleged that he had possessed multiple images “depicting minors engaging

in oral/genital sexual intercourse.” Under these circumstances, Locke had sufficient notice that the

pictures he downloaded to his wife’s computer were “pornography” within the meaning of his

probation condition. See Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973) (“[E]ven if the outermost

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boundaries of [the statute] may be imprecise, any such uncertainty has little relevance here, where

appellants’ conduct falls squarely within the ‘hard core’ of the statute’s proscriptions and appellants

concede as much.”); Farrell v. Burke, 449 F.3d 470, 490–92 (2d Cir. 2006) (rejecting an as applied

vagueness challenge to a criminal statute using the term “pornography”). Lastly, Locke argues that

the probation condition denying his access to the Internet imposed a greater deprivation of his First

Amendment rights than was reasonably necessary. Again, Locke did not object to this condition when

imposed, and, as applied, the probation condition was constitutional. Locke used the Internet in a

manner which was entirely proper to proscribe. See United States v. Paul, 274 F.3d 155, 168–69 (5th

Cir. 2001) (holding that an Internet prohibition was reasonably related to the defendant’s child

pornographyoffense). Locke attempts to distinguish Paul because the Paul defendant had, in addition

to possessing child pornography, used the Internet “to encourage exploitation of children.” See id.

at 169. However, the Internet prohibition in Paul, just like the one here, served the dual purpose of

protecting the public and discouraging recidivism. See id. That Locke did not encourage others to

exploit children in no way lessens the harm caused by the images of child pornography.

IV. CONCLUSION

Finding no merit in any of Locke’s challenges to his probation conditions as applied, the

district court’s revocation of Locke’s probation is AFFIRMED.