United States v. Joshua Riley , 920 F.3d 200 ( 2019 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4783
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSHUA WAYNE RILEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at
Harrisonburg. Michael F. Urbanski, Chief District Judge. (5:13-cr-00002-MFU-1)
Argued: January 29, 2019 Decided: April 3, 2019
Before THACKER and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Affirmed by published opinion. Senior Judge Traxler wrote the opinion, in which Judge
Thacker and Judge Richardson joined.
ARGUED: Lisa M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charlottesville, Virginia, for Appellant. Grayson A. Hoffman, OFFICE OF THE
UNITED STATES ATTORNEY, Harrisonburg, Virginia, for Appellee. ON BRIEF:
Frederick T. Heblich, Jr., Interim Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Thomas T. Cullen, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia,
for Appellee.
TRAXLER, Senior Circuit Judge:
Based on statements made by Joshua Wayne Riley to his probation officer, the
district court determined that Riley violated the conditions of his supervised release and
sentenced Riley to twenty months’ imprisonment. Riley appeals, arguing that the use of
his statements violated the Fifth Amendment and that, absent corroboration, the court
erred by finding his statements sufficient to establish the violations. We find no
reversible error and therefore affirm the judgment of the district court.
I.
Riley was convicted on federal drug-related charges in 2013. He was released
from prison in 2016 and began serving a five-year term of supervised release. Although
Riley tested positive for methamphetamine several times between March 2017 and
February 2018, his probation officer did not seek revocation of his supervised release.
On March 16, 2018, Riley was stopped for a traffic infraction by local law
enforcement officers, who found methamphetamine while searching Riley’s car. He was
charged by the state with possession of a controlled substance. Riley’s federal probation
officer thereafter petitioned the district court for an arrest warrant, alleging that Riley
violated the terms of his supervised release by being arrested and by possessing a
controlled substance. Riley was subsequently arrested for the supervised-release
violation and taken into custody.
2
Riley’s probation officer interviewed Riley while he was being held at the county
jail. The officer did not inform Riley of his Miranda 1 rights before questioning him.
Riley admitted to the officer that he had been using methamphetamine on a daily basis
for several months and that, during the last month, he had been distributing an ounce of
methamphetamine per week. Riley signed a written statement confirming his statements.
At the revocation hearing, Riley objected to the use of his statements to the
probation officer. He contended that because he was in custody when interviewed by the
probation officer, the failure to give him Miranda warnings required suppression of his
oral and written statements. The district court rejected that argument, relying on United
States v. Armstrong, 187 F.3d 392 (4th Cir. 1999), which held that the exclusionary rule
does not apply in supervised-release revocation proceedings and that evidence obtained
in violation of the Fourth Amendment is admissible in those proceedings. The district
court also rejected Riley’s argument that the government was required to present
independent corroboration of his confession in order to establish that he distributed
methamphetamine.
Relying on Riley’s admissions, the court determined that Riley had violated the
conditions of his supervised release by distributing a controlled substance. Drug
distribution qualifies as a Grade A violation, see U.S.S.G. § 7B1.1(a)(1) & cmt. n.3;
U.S.S.G. § 4B1.2(b), which in this case carried a Guidelines-recommended sentence of
24-30 months’ imprisonment, see U.S.S.G. § 7B1.4(a). The court sentenced Riley to 20
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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months’ imprisonment. If the court had instead found that Riley had only possessed a
controlled substance, that would have qualified as a Grade B violation with a
recommended sentence of 4-10 months. See U.S.S.G. §§ 7B1.1(a)(2), 7B1.4(a). Riley
appeals, pressing the same issues he raised before the district court.
II.
A.
We turn first to Riley’s claim that his Fifth Amendment rights were violated. The
Fifth Amendment’s Self-Incrimination Clause provides that “[n]o person . . . shall be
compelled in any criminal case to be a witness against himself.” U.S. Const., amend. V.
The Clause speaks in terms of compelled testimony, and thus the protections it grants
generally are not “self-executing.” United States v. Lara, 850 F.3d 686, 692 (4th Cir.
2017). That is, a person seeking to invoke the Fifth Amendment privilege against self-
incrimination generally “must assert the privilege rather than answer.” Minnesota v.
Murphy, 465 U.S. 420, 429 (1984). If the person voluntarily answers, the answer is not
privileged. See id.
Exceptions to this general rule arise in certain situations that are viewed as
inherently coercive. One exception involves custodial police interrogations, a setting that
contains “inherently compelling pressures which work to undermine the individual’s will
to resist and to compel him to speak where he would not otherwise do so freely.”
Miranda v. Arizona, 384 U.S. 436, 467 (1966). In order to dissipate these coercive
pressures, “the Miranda Court required the exclusion of incriminating statements
obtained during custodial interrogation unless the suspect fails to claim the Fifth
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Amendment privilege after being suitably warned of his right to remain silent and of the
consequences of his failure to assert it.” Murphy, 465 U.S. at 430. Another exception
arises in “penalty” cases, where the assertion of the privilege results in the imposition of a
penalty substantial enough to effectively “foreclose a free choice to remain silent.” Id. at
434 (internal quotation marks and alteration omitted).
Although Riley answered the questions put to him by the probation officer rather
than asserting his Fifth Amendment privilege, he contends that because he was in custody
at the time of the interview, Miranda warnings were required. 2 And because no warnings
were given, Riley contends the district court erred by refusing to apply the exclusionary
rule and suppressing his oral and written statements. In Riley’s view, Armstrong’s
refusal to apply the exclusionary rule in revocation proceedings applies only to violations
of the Fourth Amendment and does not preclude application of the exclusionary rule in
the context of the Fifth Amendment. Riley contends that there are different interests at
stake in cases involving a Fifth Amendment violation and that application of the
exclusionary rule is required to vindicate those interests.
2
A prisoner who is questioned by police is not necessarily in custody for
purposes of the Miranda rule. See Howes v. Fields, 565 U.S. 499, 512 (2012)
(“[S]tandard conditions of confinement and associated restrictions on freedom will not
necessarily implicate the same interests that the Court sought to protect when it afforded
special safeguards to persons subjected to custodial interrogation. Thus, service of a term
of imprisonment, without more, is not enough to constitute Miranda custody.”). Because
the government does not question whether the circumstances of Riley’s interview
qualified as custody under Howes, we will assume for purposes of this opinion that Riley
was in custody.
5
In our view, Riley’s exclusionary-rule argument puts the cart before the horse.
The exclusionary rule is a “judicially created remedy” applied in cases where certain
constitutional violations have been committed. Davis v. United States, 564 U.S. 229, 238
(2011) (internal quotation marks omitted). Thus, before considering whether it would be
proper to apply the exclusionary rule, we must first determine whether there has been a
constitutional violation.
B.
Because the Self-Incrimination Clause focuses on the use of compelled evidence
in a criminal case, the clause creates “a fundamental trial right of criminal defendants.”
United States v. Verdugo–Urquidez, 494 U.S. 259, 264 (1990) (emphasis added).
Accordingly, “a violation of the constitutional right against self-incrimination occurs only
if one has been compelled to be a witness against himself in a criminal case.” Chavez v.
Martinez, 538 U.S. 760, 770 (2003) (plurality opinion) (emphasis omitted); accord
Verdugo-Urquidez, 494 U.S. at 264 (“Although conduct by law enforcement officials
prior to trial may ultimately impair that right, a constitutional violation occurs only at
trial.”). Even with regard to statements made under circumstances that would otherwise
be viewed as coercive, the Self-Incrimination Clause is violated only if those statements
are used in a criminal trial. See Chavez, 538 U.S. at 767 (plurality opinion) (“Statements
compelled by police interrogations of course may not be used against a defendant at trial,
but it is not until their use in a criminal case that a violation of the Self–Incrimination
Clause occurs . . . .” (citation omitted)); id. at 769 (“[M]ere coercion does not violate the
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text of the Self–Incrimination Clause absent use of the compelled statements in a criminal
case against the witness.”).
Supervised release revocation proceedings, however, are not part of the underlying
criminal prosecution. As the Supreme Court has explained, revocation of parole
“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 v. Brewer, 408 U.S. 471, 480 (1972). Accordingly, “the
revocation of parole is not part of a criminal prosecution and thus the full panoply of
rights due a defendant in such a proceeding does not apply to parole revocations.” Id.; see
Murphy, 465 U.S. at 435 n.7 (“Although a [probation] revocation proceeding must
comport with the requirements of due process, it is not a criminal proceeding.”
(emphasis added)). That analysis is equally applicable to supervised release proceedings,
which, as relevant to this case, are analogous to and largely indistinguishable from
probation and parole revocation proceedings. See Armstrong, 187 F.3d at 394
(explaining that “parole and supervised release are not just analogous, but virtually
indistinguishable” and that, as with parole revocation proceedings, the “full panoply of
constitutional protections afforded a criminal defendant is not available” in supervised
release revocation proceedings (internal quotation marks omitted)). It is therefore clear
that, like parole and probation revocation proceedings, “supervised release revocation
hearings are not criminal proceedings.” United States v. Tippens, 39 F.3d 88, 89 (5th Cir.
1994) (per curiam) (internal quotation marks and alteration omitted); accord United
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States v. Ward, 770 F.3d 1090, 1097 (4th Cir. 2014) (“[S]upervised release revocation
proceedings are not considered part of a criminal prosecution.”).
The government therefore contends that because revocation proceedings are not
criminal proceedings, the use of Riley’s statements did not violate the Self-Incrimination
Clause of the Fifth Amendment. Riley does not dispute that revocation proceedings are
not criminal proceedings. Instead, he contends that because he was in custody when
questioned, the nature of the proceedings are irrelevant. We disagree.
Riley’s argument depends largely on the Supreme Court’s decision in Minnesota
v. Murphy. The defendant in Murphy was sentenced to probation on state sexual
misconduct charges, and the terms of his probation required him to participate in a
treatment program for sexual offenders and to be truthful with his probation officer. See
Murphy, 465 U.S. at 422. The defendant admitted to his treatment-program counselor
that he had committed a rape and murder several years earlier, and the counselor reported
the confession to the defendant’s probation officer. The defendant again admitted the
crimes during a meeting with his probation officer. The probation officer reported the
confession to police, and the defendant thereafter was arrested and charged with murder.
Over the defendant’s objection, the probation officer testified at trial about his
confession. The defendant was convicted of murder by the jury. See id. at 423-25.
Before the Supreme Court, the defendant argued that the admission of the
probation officer’s testimony violated his Fifth Amendment rights because he was not
given Miranda warnings before being interviewed. The Supreme Court rejected these
arguments. The defendant had answered the probation officer’s questions rather than
8
asserting his Fifth Amendment privilege, and the Court concluded that none of the
exceptions to the general rule applied. See id. at 440. In a footnote, however, the Court
stated that “[a] different question would be presented if [the defendant] had been
interviewed by his probation officer while being held in police custody or by the police
themselves in a custodial setting.” Id. at 429 n.5. In Riley’s view, that footnote
demonstrates that custodial status is the dispositive issue in a Fifth Amendment case.
And because he was in custody when he confessed to the distribution offense, Riley
contends that his case presents the “different question” anticipated by the Murphy Court.
We disagree with Riley’s reading of Murphy. The confessions at issue in Murphy
were used against the defendant in a criminal prosecution for the offenses to which he
confessed. See id. at 424-25. Because the statements were used against the defendant in
a criminal proceeding, the Fifth Amendment inquiry therefore depended on whether the
statements were compelled. The Supreme Court held that the statements were not
compelled because the defendant voluntarily answered without asserting the privilege,
and none of the circumstances that make the privilege self-executing were present -- the
defendant was not in custody when questioned, see id. at 430, and he was not subject to a
substantial penalty for invoking his right against self-incrimination, see id. at 437. Thus,
as the Court indicated in footnote 5, it would have indeed been a “different question” if
the defendant had been in custody because, as previously discussed, the privilege against
self-incrimination is self-executing in cases involving unwarned statements obtained
through custodial interrogation.
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In this case, however, whether Riley was in custody is not relevant because his
statements were not used against him in a criminal proceeding. Under these
circumstances, Riley’s Fifth Amendment rights were not violated, a point on which the
majority and the dissent in Murphy agreed. See id. 435 n.7 (explaining that because
revocation proceedings are not criminal proceedings, “[j]ust as there is no right to a jury
trial before probation may be revoked, neither is the privilege against compelled self-
incrimination available to a probationer”); id. at 441 (Marshall, J., dissenting)
(“[B]ecause probation revocation proceedings are not criminal in nature and because the
Fifth Amendment ban on compelled self-incrimination applies only to criminal
proceedings, the possibility that a truthful answer to a question might result in the
revocation of his probation does not accord the probationer a constitutional right to refuse
to respond.” (citation omitted)).
Riley also contends that the criminal or non-criminal nature of the revocation
proceeding is irrelevant because the Fifth Amendment privilege against self-
incrimination applies in civil as well as criminal proceedings.
Riley’s observation is at least partially correct. The privilege against self-
incrimination applies in non-criminal proceedings in the sense that a witness in such
proceedings may assert the privilege rather than give an answer that “might incriminate
him in future criminal proceedings.” Murphy, 465 U.S. at 426 (emphasis added; internal
quotation marks omitted)); accord Maness v. Meyers, 419 U.S. 449, 461-62 (1975)
(explaining that the Fifth Amendment privilege against self-incrimination may be
asserted if one is “compelled to produce evidence which later may be used against him as
10
an accused in a criminal action”). The question in this case, however, is not when the
privilege may be asserted, but when it is violated. And as to that question, the answer is
clear: The Fifth Amendment privilege against self-incrimination is violated only when
compelled statements are used against the witness in a criminal proceeding. See Chavez,
538 U.S. at 770 (“Although our cases have permitted the Fifth Amendment’s self-
incrimination privilege to be asserted in noncriminal cases, that does not alter our
conclusion that a violation of the constitutional right against self-incrimination occurs
only if one has been compelled to be a witness against himself in a criminal case.”)
(plurality opinion) (citations omitted); Verdugo–Urquidez, 494 U.S. at 264 (“The
privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental
trial right of criminal defendants. Although conduct by law enforcement officials prior
to trial may ultimately impair that right, a constitutional violation occurs only at trial.”
(emphasis added) (citation omitted)). Because the use of Riley’s admissions did not
violate the Self-Incrimination Clause of the Fifth Amendment, the district court did not
err in considering them.
III.
We turn now to Riley’s claim that the government was obliged to present evidence
corroborating his admission that he had distributed methamphetamine.
“It is beyond dispute that a criminal defendant’s conviction cannot rest entirely on
an uncorroborated extrajudicial confession.” United States v. Stephens, 482 F.3d 669, 672
(4th Cir. 2007); see Opper v. United States, 348 U.S. 84, 89 (1954) (“In the United States
our concept of justice that finds no man guilty until proven has led our state and federal
11
courts generally to refuse conviction on testimony concerning confessions of the accused
not made by him at the trial of his case.”). Riley contends that the government’s only
evidence of drug distribution was his own admissions to his probation officer. Because
there was no independent corroboration of his admissions, Riley argues that the evidence
was insufficient to show that he committed the Grade A offense of distribution. We
disagree.
The requirement that an out-of-court admission of criminal activity be
corroborated is a rule applicable to criminal proceedings. See Stephens, 482 F.3d at 672;
Fed. R. Evid. 804(b)(3)(B). In civil cases, such statements are generally admissible as
admissions against penal interest without additional corroboration. See Fed. R. Evid.
804(b)(3)(A). As we have already discussed, supervised release revocation proceedings
are not criminal proceedings, and a determination that a person violated the terms of
supervised release does not amount to a conviction for a criminal offense. See United
States v. Hill, 48 F.3d 228, 232 (7th Cir. 1995) (“The violation of a condition of
supervised release is not a crime as such, but it is a breach of trust, and a ground for
revocation of supervised release.” (citation and internal quotation marks omitted)). Thus,
the very description of the corroboration rule – an uncorroborated extrajudicial
confession cannot alone support a criminal conviction – demonstrates that the rule has no
application to supervised release revocation proceedings, where courts are permitted “to
consider evidence including letters, affidavits, and other material that would not be
admissible in an adversary criminal trial.” Morrissey, 408 U.S. at 489. Under these
12
circumstances, we agree with the Ninth Circuit that the corroboration rule is “ill-suited”
to revocation proceedings. United States v. Hilger, 728 F.3d 947, 950 (9th Cir. 2013).
Moreover, “Congress intended supervised release to assist individuals in their
transition to community life. Supervised release fulfills rehabilitative ends, distinct from
those served by incarceration.” United States v. Johnson, 529 U.S. 53, 59 (2000). If the
goals of supervised release are to be met, it is critical that the defendant cooperate with
his probation officer and comply with the conditions of supervised release, including the
standard condition to provide truthful information to his probation officer. Prohibiting
revocation without corroboration of a defendant’s statements would undermine the
requirement for truthfulness and unduly tie the hands of the supervising officer.
Accordingly, because supervised release revocation proceedings are not criminal
proceedings, the government was not required to present evidence corroborating Riley’s
admissions to his probation officer. See Morrissey, 408 U.S. at 489 (“We emphasize
there is no thought to equate . . . revocation to a criminal prosecution in any sense.”).
The district court therefore did not err in relying on Riley’s admissions to conclude that
Riley committed a Grade A violation by distributing methamphetamine, and those
admissions were sufficient to support the district court’s conclusions. See 18 U.S.C. §
3583(e)(3) (violation of conditions of supervised release must be established by a
preponderance of the evidence); United States v. Padgett, 788 F.3d 370, 374 (4th Cir.
2015).
IV.
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In sum, we hold that because supervised release revocation proceedings are not
criminal proceedings, the introduction of unwarned admissions made by Riley to his
probation officer did not violate Riley’s rights under the Self-Incrimination Clause of the
Fifth Amendment. And because the proceedings are not criminal, the government was
not required to present evidence corroborating Riley’s admissions. We therefore affirm
the district court’s judgment.
AFFIRMED
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