United States v. Spencer Tuggle , 645 F. App'x 561 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 23 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30248
Plaintiff - Appellee, D.C. No. 3:12-cr-00074-SI-1
v.
MEMORANDUM*
SPENCER ANTONIO TUGGLE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted March 8, 2016
Portland, Oregon
Before: FISHER, BERZON, and WATFORD, Circuit Judges.
1. Other than the Fifth Amendment problem discussed below, the district
court did not abuse its discretion by requiring Spencer Tuggle to (1) complete a
domestic violence evaluation, and (2) refrain from any contact with the mother of
his son not related to childcare or visitation. After considering the totality of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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circumstances, the court reasonably found that these additional conditions would
aid Tuggle’s rehabilitation and help protect the public. The court did not
impermissibly rely on unsubstantiated allegations in imposing these new
conditions. See United States v. Abbouchi, 502 F.3d 850, 857–58 (9th Cir. 2007).
The court based its decision on information collected by Tuggle’s probation officer
and Tuggle’s own testimony at the revocation hearing, which established that, at
the very least, Tuggle’s relationship with his ex-girlfriend was sufficiently volatile
to warrant the court’s intervention.
2. Tuggle’s Fifth Amendment challenge to the domestic violence evaluation
requirement is ripe for review at this time. To complete a meaningful evaluation,
Tuggle will necessarily be required to answer a number of potentially
incriminating questions regarding any past history of domestic violence he may
have. See United States v. Streich, 560 F.3d 926, 931–32 (9th Cir. 2009). The
district court stated that it was “not ordering [Tuggle] to waive any of his
constitutional rights.” By so stating, the district court may have intended to
provide Tuggle with immunity for any statements he makes during the course of
the evaluation, to ensure that he can comply with the mandatory condition without
risking either self-incrimination or revocation of his supervised release. See
United States v. Bahr, 730 F.3d 963, 966–67 (9th Cir. 2013). However, because
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the record is unclear on that score, we vacate the domestic violence evaluation
requirement and remand to the district court for clarification. If the district court
does not grant Tuggle immunity, he may not be punished for refusing to answer
any questions posed during the course of the evaluation that present a real and
appreciable risk of self-incrimination. See United States v. Antelope, 395 F.3d
1128, 1134 (9th Cir. 2005).
AFFIRMED IN PART, VACATED IN PART, and REMANDED.