United States v. Bahr

It is a violation of a defendant’s Fifth Amendment right against self-incrimination to consider compelled statements in determining “a sentence in a later, unrelated criminal proceeding.”

Richard Bahr, Jr. was convicted of two counts of possession of child pornography. He was previously convicted of third degree rape under Oregon state law and was required to complete a "sex offender treatment program" in which he had to give "full disclosure of past sexual misconduct." Bahr was not guaranteed immunity for the disclosures, but if he did not fully disclose and complete the program he could have faced revocation of his supervised release and further incarceration. The government included the treatment disclosures in Bahr’s pre-sentence report. Bahr moved to suppress the disclosures, and the district court denied his motion. The Ninth Circuit held that even though Bahr “did not assert his Fifth Amendment right against self-incrimination at the time of the [treatment] disclosures," his right was self-executing because its assertion was “penalized so as to foreclose a free choice." The panel further ruled that "the use of unconstitutionally compelled statements to determine a sentence in a later, unrelated criminal proceeding is unconstitutional" and violates a defendant's Fifth Amendment right against self-incrimination. VACATED AND REMANDED.