United States v. Jennings, No. 10-1642-cr (2d Cir. July 22, 2011) (Kearse, Miner, Chin, CJJ)
For defendant Russell Jennings, looking at child pornography was a hard habit to break. He served a twenty-one-month possession sentence in a 2006 case then, in 2009, while on supervised release, did it again. For the 2009 case, he received a long prison sentence, plus a concurrent supervised release violation sentence on the 2006 case, and a lifetime term of supervised release.
His appellate claims related largely to the way the evidence against him in the 2009 case was developed. He argued that his probation officer was improperly involved in the procurement of the search warrant and criminal complaint, and that incriminating statements he made to the officer were obtained in violation of the Fifth Amendment. The circuit affirmed.
For the first argument, Jennings asserted that his probation officer lacked the statutory and constitutional authority to (1) meet with the prosecutor to plain the 2009 criminal investigation (2) swear out, apply for and execute a search warrant and (3) become involved in the criminal investigation by interrogating Jennings at the government’s direction and by swearing out the criminal complaint.
The circuit disagreed. The duties of a probation officer are set out in 18 U.S.C. § 3603, and include protecting the public from persons whose release proves threatening to the community. Thus, officers should report a releasee’s wrongdoing, and the officer here did not act beyond the scope of this authority when he put the information he developed into affidavit form that better allowed other agencies to perform their duties. Nor did the officer usurp the Executive Branch’s prosecutorial function, in violation the doctrine of separation of powers. The United States Attorney’s Office drafted the search warrant and criminal complaint based on information that the officer provided, which was not a separation-of-powers violation.
Relatedly, Jennings also argued that the probation officer’s one-week delay in reporting its violation findings to the court violated a statutory requirement that he do so “immediately.” The circuit found no plain error, since the statutory requirement of immediacy, set out in 18 U.S.C. § 3603(8)(B), covers only those persons conditionally released after having been found not guilty by reason of insanity or otherwise suffering from a mental disease or defect, but not persons on supervised release in general.
The circuit likewise rejected Jennings’ Fifth Amendment claim, which derived from a condition of supervised release requiring him to answer his probation officer’s questions truthfully. Since he gave incriminating answers to the officer during an interview about his violation conduct, Jennings argued that those answers were compelled and should be protected by the Fifth Amendment.
But, since Jennings did not invoke the privilege against self-incrimination during the interview, the statements could be used. The Fifth Amendment privilege is not “self-executing,” and thus statements made by a person to his probation officer are not covered, unless the officer threatened that invocation of the privilege would subject the person to a penalty. But merely requiring a releasee to answer his probation officer’s questions truthfully does not render the answer to those questions “compelled,” even if the officer deliberately sought incriminating evidence.
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