United States v. Jeffrey Hilger

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30192
Plaintiff-Appellee,
D.C. No.
v. 6:06-cr-00018-
CCL-1
JEFFREY ALAN HILGER,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, Senior District Judge, Presiding
Argued and Submitted
June 4, 2013—Seattle, Washington
Filed August 26, 2013
Before: M. Margaret McKeown and Sandra S. Ikuta,
Circuit Judges, and Cormac J. Carney, District Judge.*
Opinion by Judge McKeown
*
The Honorable Cormac J. Carney, District Judge for the U.S. District
Court for the Central District of California, sitting by designation.
2 UNITED STATES V. HILGER
SUMMARY**
Criminal Law
Affirming a judgment revoking supervised release, the
panel held that the Opper rule, which requires a conviction to
rest on more than the uncorroborated confession of the
defendant, does not apply to revocation of supervised release.
The panel concluded that on the record in this case the
district court did not abuse its discretion in revoking the
defendant’s supervised release based on his confession.
COUNSEL
Michael Donahoe, Senior Litigator, Federal Defenders of
Montana, Helena, Montana, for Appellant.
Leif M. Johnson (argued) and Marcia Hurd, United States
Attorney’s Office for the District of Montana, Billings,
Montana, for Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. HILGER 3
OPINION
McKEOWN, Circuit Judge:
In criminal prosecutions, where guilt must be established
beyond a reasonable doubt, the Supreme Court requires a
conviction to rest on more than the uncorroborated confession
of the defendant. Opper v. United States, 348 U.S. 84 (1954).
The question here is whether the same standard should be
extended to revocation of supervised release.
Jeffrey Hilger was on supervised release after a child
pornography conviction. After he confessed to repeatedly
violating restrictions on contact with minors, the district court
revoked his supervised release. In view of the fundamental
differences between a criminal conviction and revocation of
supervised release, including the lowered burden of proof, we
decline Hilger’s invitation to erect an equivalent barrier here.
The Opper rule does not apply to supervised release
proceedings.
I. The Opper Rule Does Not Apply to Supervised
Release Revocation Proceedings.
The corpus delicti—or “Opper”—rule was developed in
the context of criminal prosecutions and their attendant
heightened protections for defendants. Opper imposes two
evidentiary requirements before a confession can be used as
the basis for conviction. First, the government “must
introduce sufficient evidence to establish that the criminal
conduct at the core of the offense has occurred.” United
States v. Lopez–Alvarez, 970 F.2d 583, 592 (9th Cir. 1992).
This foundation ensures that convictions are not based on
confessions to nonexistent crimes. Id. “Second, [the
4 UNITED STATES V. HILGER
government] must introduce independent evidence tending to
establish the trustworthiness of the admissions, unless the
confession is, by virtue of special circumstances, inherently
reliable.” Id. This additional requirement ensures that
defendants are not convicted for making false confessions to
crimes committed by others. “[O]nly when both [of] these
prongs are satisfied will a jury be ‘sufficiently justified’ in
believing the truth of a criminal admission; only then will the
evidence be deemed sufficient in a case in which the
conviction depends in part on such admission.” Id.Revocation proceedings are different. As the Supreme
Court explained in Morrissey v. Brewer, “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.” 408 U.S. 471, 480 (1972);
see also United States v. Brennick, 337 F.3d 107, 109 (1st
Cir. 2003) (distinguishing revocation from prosecution
because “revocation is designed to punish an offender’s
breach of trust in violating the court-ordered terms of release,
so the sanction is independent of . . . regular criminal
prosecution for the crime”). The government’s burden of
proof is accordingly lower: it must prove only a violation of
the conditions of release by a preponderance of the evidence.
United States v. Turner, 312 F.3d 1137, 1142 (9th Cir. 2002).
Revocation proceedings are to be “flexible,” reflecting
their difference from a criminal prosecution. Morrissey,
408 U.S. at 489. Because “[r]evocation 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,” id. at
480, the court is permitted “to consider evidence including
UNITED STATES V. HILGER 5
letters, affidavits, and other material that would not be
admissible in an adversary criminal trial.” Id. at 489.1
Opper’s strict corroboration requirements are ill-suited to
this context. See id. (“We emphasize there is no thought to
equate . . . revocation to a criminal prosecution in any
sense.”). Although federal courts have not directly addressed
the question, state courts have consistently held that the
Opper rule does not apply to revocation proceedings. See
e.g., Commonwealth v. Kavanaugh, 482 A.2d 1128, 1130
(Pa. Super. Ct. 1984) (holding that the corpus delicti rule is
inapplicable in probation revocation proceedings because
they are not a stage of criminal prosecution); see also People
v. Monette, 25 Cal. App.4th 1572, 1575 (Ct. App. 1994)
(“The nature of a probation revocation hearing, however,
does not require the application of the corpus delicti rule.”);
State ex. rel. Russell v. McGlothin, 427 So. 2d 280, 282
(Fla. Dist. Ct. App. 1983) (reversing trial court’s
determination that an uncorroborated admission of drug sales
was insufficient evidence to revoke probation). Although not
directed to this precise point, federal courts consistently
recognize the difference between criminal trials and
revocation proceedings. See Brennick, 337 F.3d at 111–12
(upholding revocation where defendant’s confession to drug
1
The procedural requirements in revocation proceedings are basic: (a)
written notice of the claimed violations of parole; (b) disclosure of the
evidence against the parolee; (c) opportunity to be heard in person and to
present witnesses and documentary evidence; (d) the right to confront and
cross-examine adverse witnesses (unless the hearing officer specifically
finds good cause for not allowing confrontation); (e) a ‘neutral and
detached’ hearing body; and (f) a written statement by the factfinders as
to the evidence relied on and the reasons for revoking parole. Morrissey,
408 U.S. at 489. Hilger does not claim that his revocation hearing was
procedurally deficient.
6 UNITED STATES V. HILGER
use was corroborated by positive test and noting that in the
more flexible federal revocation proceedings, a court need not
“determine whether the defendant could be convicted,” but
whether “the defendant has engaged in conduct that
constitutes an offense under state law”) (emphasis in
original). We agree with these courts and hold that Opper
does not bar revocation here as a matter of law.2
We do not dismiss Hilger’s concerns lightly. Revocation
is a serious matter and involves a real deprivation of liberty.
See Morrissey, 408 U.S. at 482 (acknowledging that “the
liberty of a parolee, although indeterminate, includes many of
the core values of unqualified liberty and its termination
inflicts a ‘grievous loss’ on the parolee and often on others”).
But our decision does not deprive Hilger of protection against
unjust incarceration. Hilger exercised his right to confront
and cross-examine the government’s witnesses and evidence
and presented his own evidence that the allegations are false.
Cf. United States v. Perez, 526 F.3d 543, 550 (9th Cir. 2008)
(revocation of supervised release based on a positive drug test
was improper where the defendant was not allowed to cross-
examine technician to determine if the test was reliable).
Hilger’s rights were adequately protected through these
existing mechanisms, and we decline to impose further
restrictions on revocation proceedings.
2
Our opinion should not be read as creating a per se rule that the
government need never introduce more than a defendant’s uncorroborated
confession in order to establish a violation of the terms of supervised
release. The district court must determine whether the government has
established such a violation by a preponderance of the evidence on a case-
by-case basis.
UNITED STATES V. HILGER 7
II. The District Court Did Not Abuse Its Discretion In
Finding That A Violation Had Occurred.
“We review the district court’s decision to revoke a term
of supervised release for abuse of discretion.” United States
v. Harvey, 659 F.3d 1272, 1274 (9th Cir. 2011). “A court
may revoke a term of supervised release and sentence a
defendant to a term of imprisonment if the court finds by a
preponderance of the evidence that the defendant violated a
condition of his supervised release.” United States v.
Spangle, 626 F.3d 488, 497 n.3 (9th Cir. 2010) (citing
18 U.S.C. § 3583(e)(3)).
Hilger was convicted on child pornography charges in
2007. He began a term of supervised release in January 2011.
While on release, Hilger was subject to two restrictions
relevant here: (1) he was required to complete a sex offender
treatment program and abide by its terms while enrolled; and
(2) he was prohibited from being in the company of children
under the age of 18 without prior approval by the U.S.
Probation Office. Hilger passed a first polygraph
examination verifying his compliance with these conditions
in September 2011. His second examination, in March 2012,
indicated deception when he denied prohibited contact with
minors. In the follow-up interview with his probation officer,
Hilger initially claimed innocence, but later admitted to six
specific unauthorized contacts. Hilger was taken into custody
and charged with violating the conditions of his release; a
revocation hearing followed.
The thorough revocation hearing, which spanned multiple
days, resulted in the district court’s conclusion that Hilger
had violated the terms of his release and imposition of a 24-
month sentence. The key evidence was Hilger’s detailed
8 UNITED STATES V. HILGER
confession to six prohibited contacts, each of which was
described at the hearing by Hilger’s probation officer. It is
apparent from the district court’s questioning that the court
delved into the confession in detail and made a concerted
effort to determine the reliability and accuracy of the
confession.
Hilger described exposing himself to one girl of
approximately 13, giving a precise location on a local bike
trail, and describing her body, outfit, and hair color. Another
time, Hilger said, he spoke with a 13-year old girl for a few
minutes, touched her neck, and then started speaking to her
about sex and asked to touch her, after which she left. Hilger
also recounted a sexual contact with a 10-year old girl in
graphic detail, as summarized by the probation officer:
[Hilger] reports he exposed himself to her and
asked her if she would touch his penis . . .
[She complied]. Then Mr. Hilger asked her to
lift up her shirt and she indicated she was
going to do so but did not.
He said that he had seen her a couple of
times before and had said hi to her and that he
watched her for 10 to 15 minutes in the
bushes before approaching her; that she was
wearing sandals; had pink shorts on and a
belly-type shirt and was of slim build and was
a brunette. He also discussed [additional facts
about her sexual history] with her . . . and
[discussed] that she lived somewhere in a
trailer court nearby.
UNITED STATES V. HILGER 9
(Excerpted to delete specific graphic details.). Hilger gave
similarly detailed descriptions of three additional encounters
with girls that, although prohibited, were not overtly sexual.
Hilger does not argue, and there is no suggestion, that the
probation officers used coercive or improper techniques to
elicit his confession.
After hearing the confession, one probation officer visited
the bike trail and verified that, as Hilger had described,
children used it alone. However, he did not verify that any
contacts had occurred, and the local police had received no
reports matching Hilger’s admissions. It appears that there
was no further investigation of the contacts.
The probation officer also contacted Hilger’s sex offender
treatment provider regarding the admissions; Hilger was
promptly terminated from the program. Hilger’s counselor
testified that Hilger had lied to his treatment group by saying
that he had stopped engaging in inappropriate fantasies, only
admitting the truth after the group confronted him. However,
the counselor testified that he would not have terminated
Hilger based on his lies alone.
Hilger’s sister also testified at the revocation hearing.
She did not independently confirm any of the details of
Hilger’s confessions, although she did verify that Hilger had
a bicycle and rode it on a local trail. She said that Hilger
“doesn’t have the capacity to” make up stories as detailed as
those he told the probation officers. She believed that Hilger
was a danger to the community and she feared that he would
reoffend.
Hilger called an expert, Dr. Bowman Smelko, who
testified that he had examined Hilger and concluded that he
10 UNITED STATES V. HILGER
was suggestible and prone to making up stories to suit his
questioners. Dr. Smelko did not believe that the probation
officers acted improperly, but said that even under normal
conditions Hilger was “low functioning and . . . the way in
which he handles stress . . . is to acquiesce and try to please,
so” Hilger was prone to confabulation under pressure. Dr.
Smelko noted that Hilger is “an individual that comes across
as very normal functioning,” and cautioned that Hilger’s
confession should not be believed simply because Hilger had
not appeared stressed. However, Dr. Smelko did not offer
specific reasons to believe that these particular confessions
were false. Dr. Smelko’s testimony only raised general
concerns about the possibility of a false confession.
The district court also allowed Hilger to describe his
interview and explain his confession. Hilger said that he “did
fabricate the story,” and that he “never did touch any people
like they said.” He admitted that he “wasn’t threatened,” but
said that the probation officer had accused him of lying after
he had denied any inappropriate contacts. Hilger explained
that he “just fabricated that story, you know, to get [the
officer] off my back.” He repeated similar explanations
several times, but provided no additional relevant details.
On this record, we conclude that the district court did not
abuse its discretion in revoking Hilger’s supervised release
based on his confession. This matter was triggered by a
polygraph test indicating that Hilger had unauthorized contact
with minors, therefore corroborating his later confession.
Hilger’s subsequent interrogation was noncoercive. His
confessions were detailed, in contrast to his nonspecific and
repetitive responses to the district court’s questions. Hilger’s
own sister also commented that fabrication in this detail
exceeded Hilger’s abilities. Hilger was allowed to present a
UNITED STATES V. HILGER 11
complete defense. Dr. Smelko testified at length and the
district court questioned him extensively. Although Dr.
Smelko raised important concerns, his testimony was
speculative and provided no specific reasons to doubt
Hilger’s confession to these particular contacts. The district
court’s decision to credit Hilger’s confession was amply
supported by the record.
AFFIRMED.