by Mark Wilson

On September 8, 2021, the U.S. Court of Appeals for the Ninth Circuit declined to offer any relief to an Oregon sex offender who challenged his removal from parole-required sex offender treatment—which led to jail sanctions—for refusing to admit to his crime even though he was then appealing his conviction.

In May 2008, Daniel Chavez was charged with several Oregon sex crimes involving minors under 14 years old. He claimed that he was innocent, but a jury convicted him of two counts of felony attempted first-degree sexual abuse and two counts of misdemeanor private indecency. The court imposed an 18-month prison term, plus 60 months of post-prison supervision (PPS), which was conditioned on his enrollment and successful completion of sex offender treatment.

Chavez appealed his convictions, but that appeal was still pending when he was released to PPS. He was assigned to the caseload of Parole Officer Lisa Moore, who ordered Chavez to enroll in a sex offender treatment program run by David Robinson and his company, Correctional Evaluation and Treatment, Inc.

During an initial treatment meeting in June 2010, Robinson told Chavez that a program condition required him to admit to the conduct underlying each of his convictions. He was also required to sign a form authorizing Robinson to disclose to Moore anything discussed in the program. Chavez asked to first speak with his attorney about how the admissions might impact his pending appeal. Robinson refused and told him that he would go to jail if he failed to admit to the criminal conduct underlying his convictions.

When Chavez refused, Robinson dismissed him from the sex offender treatment program and notified Moore. She, in turn, sanctioned Chavez to jail for violating the PPS condition that he submit to sex offender treatment. Chavez did not appeal the PPS sanction.

But after his release from jail sanctions, the same thing happened again in August 2010. Moore again ordered Chavez to enroll in Robinson’s treatment program. Chavez again refused to admit to the conduct underlying his convictions, and Robinson again dismissed him from the program and notified Moore. Once more, Chavez was sanctioned to a jail term for violating the sex offender treatment condition. But again he did not appeal the PPS sanction.

At that point, Chavez’s appellate attorney moved the trial court to stay the sex offender treatment condition, arguing that the condition could not be implemented unless Chavez was given complete immunity for any statements he made during treatment. Counsel noted that a prosecutor had previously represented that Chavez would be given such immunity, but nothing in the record bound the state to that promise. So counsel argued that the state should, therefore, be required to make that commitment on the record in open court.

The trial court ultimately refused to stay treatment, but it granted Chavez immunity for any statements or admission made about his conduct during sex offender treatment and any evidence gained as a result of such statements or admissions, except related to homicide.

In March 2011, Chavez brought suit in federal court for the District of Oregon against Moore and Robinson, alleging that they violated his Fifth Amendment protection against self-incrimination by requiring him to confess under threat of confinement to a crime while he was appealing his conviction, as well as his Sixth Amendment guarantee to counsel by not letting him consult with this defense attorney about the matter.

Robinson then dismissed Chavez from treatment and Moore revoked his PPS, imposing a third jail sanction for refusing to complete sex offender treatment. Chavez again did not appeal the revocation and sanction, but he amended his civil complaint to add a claim that Defendants violated his First Amendment right to free expression by dismissing him from the program in retaliation for his filing of the suit.

While this suit was pending, the Oregon Court of Appeals vacated Chavez’s criminal conviction and remanded his case for a new trial in February 2012. See: State v. Chavez, 272 P3d 167 (Or App 2012). On remand, Chavez entered into an agreement to plead “no contest” to one count of felony attempted sexual abuse. In exchange, the prosecution dismissed all other charges and recommended a sentence of credit for time served, as well as sex offender registration. The court accepted the plea agreement in February 2014.

Subsequently, the federal district court granted Defendants’ motion to dismiss the civil suit for failure to state a claim, under Federal Rules of Civil Procedure 12(b)(6). The district court also held that Defendants were entitled to qualified immunity (QI) on all claims.

On appeal, the Ninth Circuit affirmed. Beginning with Chavez’s claimed violation of his Fifth Amendment right against self-incrimination, the Court held that he could not bring a Fifth Amendment claim unless the government used “compelled statements in a criminal case against him.” However, “Chavez did not make any incriminating statement, nor was any such statement used in a criminal proceeding,” the court found. “Rather, his claim is based on a violation of the judge-made protection from being forced to give incriminating testimony.”

Accordingly, the court affirmed the dismissal of the Fifth Amendment claim declaring “Chavez may use the privilege only defensively as a shield, and may not wield it as a sword in an action for damages.” While allowing that the case “raises some close questions” about QI, the Court also concluded that Defendants were also entitled to it on the Fifth Amendment claim.

Next the Court affirmed dismissal of Chavez’s Sixth Amendment denial-of-counsel claim, noting that “no existing precedent establishes that a prisoner who is prevented from contacting counsel during sex offender treatment has been denied counsel on appeal.” The Court then held that “Robinson and Moore are also entitled to [QI]” on that claim.

Lastly, the Court rejected Chavez’s First Amendment retaliation claim, concluding that “Chavez cites no case holding that a person providing rehabilitation therapy for a supervised releasee may not discharge the releasee from the program in response to a lawsuit.” Finding that Robinson could have concluded that he had a “legitimate correctional goal” in dismissing Chavez from the sex offender treatment program, the Court concluded that both Robinson and Moore were entitled to [QI] on the retaliation claim, too.

One member of the Court’s three-judge panel, Marsha S. Burzon, dissented with respect to Chavez’s Fifth Amendment self-incrimination claim, saying “it takes no complex analysis to conclude that Chavez was ‘compelled in [a] criminal case’ to be a witness against himself and imprisoned because he would not.” She also believed that Chavez stated a Sixth Amendment denial-of-counsel claim but agreed with the majority that Defendants were entitled to QI because “there is no clearly established law on whether Chavez had a right to consult with counsel under the circumstances.” See: Chavez v. Robinson, 12 F.4th 978 (9th Cir. 2021).

Chavez was represented in suit by Portland attorney James F. Halley, who filed a petition with the Court for a re-hearing en banc before the full Ninth Circuit. But that request was denied on February 2, 2022. See: Chavez v. Robinson, 2022 U.S. App. LEXIS 2998 (9th Cir.).

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