F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

J E F F R E Y A L A N H I L G E R , Defendant-Appellant

. N o. 12-30192

D.C. No. 6:06-cr-00018- CCL -1

OPI NI ON

A ppeal from the United States District Court for the District of Montana Charles C. L ovell, Senior District J udg e, Presiding

Arg ued and Submitted J une 4, 2013—Seattle, W ashing ton

F iled Aug ust 26, 2013

B efore: M. Marg a

ret McKeown and Sandra S. I k uta, Circuit J udg es, and Cormac J . Carney , District J udg e. *

Opinion by

J udg e McKeown

* T h e Ho n o rab le Co rm ac J

. C arn ey , District J u d g e f o r th e U.S. District Co u rt f o r th e Cen tral District o f

Calif orn i a, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. H I L G E R 2

SUMMARY * *

Crim inal Law

A ffirming a judg ment revoking supervised release, t h e panel held that the Opper rule, which requires a c onviction to rest on more than the uncorroborated confession o f the defendant, does not apply to revocation of supervised release.

The panel c o n cl uded that on the record in this case the district co u r t did not a

b use its discretion in revoking the defendant’s supervised release based on his confession.

COUNSEL

Michael Donahoe, Senior L itig ator, F e deral Defenders o f Montana, Helena, Montana, for Appellant.

L eif M. J ohn s on (arg

ued) and Marcia Hurd, United States Attorne y ’s Office for the District of Montana, B illing s, Montana, for Appellee.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. H I L G E R 3

OP INION

McKEOW

N, Circuit J udg e:

I n criminal prosecutions, where g uilt must be e stablished bey ond a r easonable doubt, the S u p r eme 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 quest i o n h ere is whether the same standard should be

ex tended to revocation of su pervised release.

J effrey Hilg er was o n supervised release after a chi l d
pornog raphy conviction. After h e confessed to repeatedly violating restrictions on contact with minors, the district court revoked his supervised release. I n view of the fundam en tal differences between a criminal conviction and revocation of supervised release, including the lowered burden of proof, we decline Hilg er’s invitation to erect an equivalent barrier h ere. The Opper rule does not ap ply to supervised release proceeding s.

I. The Opper Rule D oes Not Apply to Supervised Release Revocation P roceedings.

The corpus delicti

— or “ Opper ”—rule was developed in the c o n t ex t of criminal p rosecutions and their attendant heig htened protections for defendants. Opper i m poses two evidentiary req u irements before a confession can be used a s the basis f

o r conviction. F irst, the g overnment “must introduce sufficient e vidence to e stablish that the criminal

c o nduct at the core of the offense has occurred.” U n i t e d Sta t e s v. Lopez–Alvarez

, 970 F .2d 583, 592 (9th Cir. 1992). T h is f oundation ensures that convictions are not b as e d o n confessions to nonex istent crimes. Id. “Se c o n d, [ theU N I T E D S T A T E S V

. H I L G E R 4

g overnment] must introduce independent evidence tending to establish the trustworthiness of t h e a dmissions, unless the confession is, by virtue of special circumst a n ces, inherently reliable.” I

d. This a d d i t i o n al requirement ensures that defendants are not convicted for making false confessions to crimes c ommitted by o ther s

. “[ O] nly w hen both [of] these
prong s a re satisf i ed w ill a jury b e ‘sufficiently justified’ in believing the truth of a c r iminal admission; only then w ill the evide n c e b e d eemed sufficient in a case in which the conviction depends in part on such admission.” Id

.

Revocation proceeding s are different. As th e S u p reme Court ex plained in Morrissey v. Brewer
, “the r evocation o f parole is not part of a criminal prosecution a n d t h us the full panoply o f r ig h ts due a defendant in such a proceeding does not apply to parole revocations.” 408 U.S. 471, 480 (1972);

see also United States v. B rennick

, 337 F. 3 d 1 07, 109 (1st Cir. 2003) (disting uishing revocation fr o m prosecution because “revocation is desig ned to punish an offender’s breach of trust in violating the court-ordered terms of release,

so the sanction is independent of

. . . reg ul a r c r i m i nal prosecution for the crime”). The g o v ernment’s burden o f proof is according ly lower: it must prove only a violation o f the conditions of release by a p r eponderance of the evidence. United S tates v. Turner
, 3 12 F .3d 1 137, 1 142 (9th Cir. 2002).

Revocation proceeding s are t o b e “ flex ible,” reflecting their d ifference from a criminal prosecution. Morrissey
, 408 U .S. at 489. B e c ause “[ r] evocation deprives an individual, not of the abs o l u te liberty to which every citiz en is entitled, but only of the conditional liberty p roperly dependent on observance of special p arole restrictions,” id. at 480, the court is permitted “to consider evidence includingU N I T E D S T A T E S V

. H I L G E R 5

letters, affidavits, a n d o ther material that would not be admissible in an adversary criminal trial.” Id. at 489. 1

Opper’s strict corroboration requirements are ill-suited to t h i s c o ntex t. See id

. (“W e emphasiz e there is no thoug h t t o

e q u ate

. . . revocation to a criminal prosecution in any sense.”). Althoug h federal courts h ave not directly addressed the question, state courts have consistently held t h a t the Opper rule does not apply to revocation proceeding s. See
e.g. , Commonweal t h v. Kavanaugh

, 482 A.2d 1128, 1130 (Pa. Super. C t

. 1 984) ( holding that the corpus delicti rule is inapplicable in pr o b a tion revocation proceeding s because they are not a stag e of criminal prosecution); see also People

v. Monette
, 2 5 Cal. App.4th 1572, 1575 (Ct. App. 1 994) (“The nature of a probation revocation hearing

, however, does not require the a

pplication of the corp us delicti rule.”); State ex. rel. Russell v. McGloth i n , 4 2 7 So. 2d 280, 282 (F la. Dist

. Ct. App. 1983) (reversing trial court’s determination that an uncorroborated admission of drug sales

was insufficient evidence to revoke probation). Althoug h not directed to this precise point, fede r al courts consistently
recog niz e the difference between criminal tr i a l s a nd revocation proceeding s. See B rennick

, 337 F .3d at 111–12 (upholding revocation where defendant’s confession to d rug

1 T h e p ro ced u

ral req u irem en t s in

rev o catio n

p ro ceed in g s are b asic: (a)

w ritten n o ti c e o f th e claim ed v i o latio n s o f p aro le; (b ) d isclo su re o f th e

ev id en ce ag ain st th e p aro l ee; (c) o p p o rtu n ity t o b e h eard in p erso n an d to p resen t w itn esses an d d o cu m en tary ev id en ce; (d ) th e rig h t to co n f ro n t an d

cro ss- ex am in e ad v erse w itn esses (u n less th e h earin g o f f icer sp ecif

ica lly f in d s g o o d c a u se f

o r n ot allo w in g co n f

ro n t atio n ); (e) a ‘ n eu tral an d d etach ed ’ h earin g b o d y ; an d (f ) a w ritten statem en t b y th e f

actf i n d ers as to th e ev id en ce relied o n an d th e reaso n s f o r rev ok in g p aro le. Mo rrissey
, 4 0 8 U.S. at 4 89

. H i l g e r d o es n o t claim t h at h is rev o catio n h earin g w as p ro ced u rally

d ef icien t.U N I T E D S T A T E S V

. H I L G E R 6

use was corrobora ted by p o sitive test and noting that in the

more flex ible federal r evocation p roceeding s, a court need not “determine whether the defendant c ould be convicted ,” but whether “the defendant has eng ag ed in conduct that constitutes a n offense under state l a w ” ) (emphasis in orig inal). W e ag ree with these courts and hold that O p p e r does not bar revocation here as a matter of law. 2

W e do not dismiss Hilg er’s concerns lig htly

. Revocation is a serious matter and involves a real deprivation of liberty

. Se e M o rrissey
, 4 08 U.S. at 482 (acknowledg ing that “the liberty of a parolee, althoug h indeterminate, includes many o f the core values of u nqualified liberty and it s t ermination inflicts a ‘g rievous loss’ on the parolee and often on o thers”). B ut our decision does not deprive Hilg er of protection ag ainst unjust incarce r ation. Hilg e r ex e rcised h is rig ht to confront and cross-ex amine the g o vernment’s w itnesses and evidence and presented h is o wn evidence that the alleg ations are false. Cf. U nited States v. Perez
, 526 F .3d 543, 550 (9th Cir. 2 008) (revocation o f supervised release based on a positive drug test

was improper where the d efendant was not allowed to crossex a mine technician to determine if t h e test was reliable). Hilg er’ s rig h ts were adequately p rotected throug h these

ex isting mechanisms, and we decline to impose f urther restrictions on revocation proceeding s.

2 Ou r o p in io n sh o u ld n o t be read as creatin g a p er s e r u l e t h a t th e g o v ern m en t n eed n ev er in tro d u ce m o re th an a d ef en d an t’ s u n co rro b orated

co n f essio n in o rd er to estab lish a v io latio n o f th e term s o f su p erv i s ed release. T h e d istrict co u rt m u st d eterm in e w

h eth er th e g ov ern m e n t h as estab lish ed su ch a v io latio n b y a p rep o n d eran ce o f th e ev id en ce o n a caseb y

- case b asis.U N I T E D S T A T E S V

. H I L G E R 7

II. The District Cour t D i d N ot Abuse Its Discretion In F inding That A Violation Had Occurred.

“W e 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, 1 274 (9th Cir. 2011). “A court may revoke a term of supervised release and sentence a defendant to a t er m of imprisonment if the court finds by a preponderance of the evidence that the defendant violated a

c o n dition of his supervised r elease.” United S tates v. Spangle

, 626 F .3d 488, 497 n .3 ( 9th Cir. 2010 ) ( c i t ing 18 U.S.C. § 3583(e)(3)).

Hilg er w as convicted on child pornog raphy charg es in 2007. He b eg an a term of supervised release in J anuary 2011. W h ile on r elease, H ilg er was s u b j e c t to two r e strictions relevant here: ( 1) he was required to complete a sex offender
treatment prog ram and abide by its terms while e nrolled; a nd (2) he was prohibited from b e ing in the company of children

u n d e r the ag e o f 1 8 without prior approval b y the U.S. Probation Office. H ilg e r passed a first poly g raph

ex a mination v erify

ing his compliance w i th these conditions in September 2011. His second ex amination, in March 2012, indicated deception when h e denied p r o hibited contact with minors. I n the follow-up interview with h is probation officer, Hilg e r initially claimed innocence, but later admitted to six specific u nauthoriz ed contacts. Hilg er was taken into c ustody and charg ed wit h v i o l ating the conditions of his r elease; a revocation hearing

followed.

The thoroug h revocation hearing

, which spanned m u l t iple day s, resulted in the di s t r i c t court’s conclusion that Hilg er had violated the terms of his r elease and imposition of a 24- month s entence. The key e vidence was Hilg er’s detailedU N I T E D S T A T E S V

. H I L G E R 8

confession to six prohibited contacts, ea c h o f which was described at the hearing by H i l ge r ’s probation officer. I t is apparent f

rom the district court’s questioni n g that the court delved into the confess i o n in detail and made a c oncerted effort to determine the rel i a b i l i ty and accuracy of the confession.

Hilg er d es c r ibed ex posing himself to one g irl o f
approx imately 13, g iving a p recise location on a local b ike trail, and describing her body

, outfit, and hair color. Another time, Hilg e r said, he spoke with a 13-y ear old g i r l f o r a few minutes, touched her neck, a nd then started speaking to her about sex and a sked to touch her, after which she left. Hilg er also recounted a sex ual contact with a 10-y ear old g irl in
g raphic detail, as summariz ed by the probation officer:

[ Hilg er] reports he ex posed himself to her a nd

a s k ed her if she would touch his penis

. . . [ She complied]

. T h en Mr. Hilg er asked her to lift u p her shirt and she indicated she was g oing to do so but did not.

He said that he had seen h er a couple o f times before and had said hi to her and that he watched her f

or 1 0 to 15 m i n u t e s in the bushes b efore approaching h er; that she was wearing sandals; had pink shorts on an d a belly -ty pe shirt and was of slim build and was

a brunette. He also discussed [ additional facts about her se x u a l h istory ] with her

. . . a nd [ discu s sed] that she lived somewhere in a trailer court nearby

.U N I T E D S T A T E S V

. H I L G E R 9

( E x cerpted to delete specific g raphic details.). Hilg e r ga v e similarly detailed descriptions of three additional encounters with g irls that, althoug h prohibited, were not overtly sex ual. Hilg er does not arg ue, and t h e r e i s no sug g estion, that the probation officers used coercive or improper techniqu e s to elicit his confession.

After hearing the confession, one probation officer visited the bike trail and verified that, as H ilg er had d e s c r ibed, children used it a lone. H owever , h e d i d not verify that any contact s had occurred, and the local police had received no reports matching Hilg e r ’s admissions. I t appears that there was no further investig ation of the contacts.

The p robation officer also contacted Hilg er’s sex offender
treatment provider reg ardin g the admissions; Hilg er was promptly terminated from the prog ram. Hilg er’s counselor testified that H ilg er had lied to his treatment g roup by say ing that he had stopped eng ag ing in inappropriate f antasies, only admitting the truth after the g roup confronted him. However, the counselor testified that he would no t have terminated Hilg er based on his lies alone.

Hilg er’s sister also testified a t the revoc a t i o n hearing

. She did n ot indep e ndently confirm any of the details o f Hilg er’s confessions, a lthoug h she did verify that Hilg er h ad

a bicy cle and rode it on a local trail. She said that Hilg er “doesn’t have the c a

p acity to” make up stories as detailed as those he told the probation officers. She believed that Hilg er

was a d ang er to the community a nd she feared that he would reoffend.

Hilg er ca l l e d a

n e x pert, Dr. B owman Smelko, w ho
t e s tified that h e had e x amined Hilg e r and concluded that h eU N I T E D S T A T E S V

. H I L G E R 10

w a s s u gg estible and prone to making up stories to suit hi s questioners. Dr. Smelko did not b el i e v e that the p robation officers a cted improperly

, but said that even under nor m al conditions H ilg er was “low fu n ct i o n ing and

. . . the w ay in which he handles stress . . . is to acquiesce and try to please, so” Hilg er was prone to confabulation under pressure

. Dr. Smelko noted that Hilg er is “an individual that comes across

as ver y normal functioning ,” and cautioned that Hilg er’s confession should n ot b e believed simply because Hilg er h ad
not appeared stressed. However, Dr. Smelko did not offer specific reasons to believe that these particular c o n f essions

were fa l s e

. Dr. Smelko’s testimony only raised g eneral concerns about the possibility of a false confession.

The district court a lso allowed Hilg er to describe his interview and ex p lain his confession. H ilg er 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 h ad accused him of ly ing a fter he had denied any inappropriate contact s

. Hilg e r ex p lained that he “ just fabricated that story , y o u k n o w, to g et [ the officer] off my back.” He repeated similar ex pl a n a t i ons several times, but provided no additional relevant details.

On this record, we conclude that the district court did not abuse its di s c r e t ion in revoking Hilg er’s supervised release based o n h i s confession. This matter was trig g ered b y a poly g raph test indicating that Hilg er had un a uthoriz e d contact with minors, therefore corrob o rating h is later confession. Hilg er’s subsequent interrog ation was nonc o e rcive. His confessions were detailed, in contrast to his nonspecific a nd repetitive responses to the district court’s questions. Hilg er’s

own sister also commented that fabrication in this d e t ail

ex c e eded Hilg er’s abilities. Hilg er was allowed to present aU N I T E D S T A T E S V

. H I L G E R 11

complete defense. Dr. Smelko testified a t leng th and the district court questioned him ex tensively

. Althoug h Dr. Smelko raised impor t a n t concerns, his testimony was speculative and provided n o specific reasons to doubt Hilg er’s confession to these particular contacts. The district court’s decision to credit Hilg er’s confession was amply supported by the record.

AF F IRMED.