FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JEFFREY ALAN HILGER,

Defendant-Appellant.

No. 12-30192

D.C. No.

6:06-cr-00018-

CCL-1

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 Opperrule, 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 crossexamine 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 caseby-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.