Argued: January 26, 2017
from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
by published opinion. Judge Keenan wrote the opinion, in
which Judge Wilkinson and Judge Niemeyer joined.
Robert Bieger, DAN BIEGER, PLC, Bristol, Tennessee, for
Lee Jayne, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon,
Virginia, for Appellee.
P. Fishwick, Jr., United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
BARBARA MILANO KEENAN, Circuit Judge
appeal, we decide whether the district court erred in
considering at a defendant's sentencing hearing certain
admissions he made while participating in a Sex Offender
Treatment Program (the treatment program), which he was
ordered to complete as a condition of probation in a prior
case. The defendant, Juan Lara, contends that the statements
he made in an interview conducted as part of the treatment
program are protected by the psychotherapist-patient
privilege and the Fifth Amendment privilege against
self-incrimination. The government disagrees, arguing that
Lara knowingly and voluntarily waived any privilege by
earlier consenting to the disclosure of any such statements
to the Virginia Department of Corrections (VDOC).
our review, we conclude that Lara affirmatively waived any
psychotherapist-patient privilege when he agreed as part of
his conditions of probation in the prior case to the
disclosure of any statements he made in the treatment
program. We also conclude that the Fifth Amendment privilege
against self-incrimination did not apply to those statements,
because Lara voluntarily made the statements while
participating in the treatment program. Accordingly, we hold
that the district court did not err in considering Lara's
statements at sentencing, and we affirm the district
February 2008, Lara was convicted in the Circuit Court of
Grayson County, Virginia, for the aggravated sexual battery
of a mentally incapacitated victim, in violation of Virginia
Code Section 18.2-67.3(A)(2). For that offense, Lara received
a sentence of 20 years' imprisonment, with 17 years
suspended, and a term of 20 years' supervised probation
to be served upon his release from confinement. Lara was
released from custody in December 2009, and immediately began
his term of supervised probation. The terms of his
supervision included a requirement that Lara "[a]ttend
and successfully complete a Sex Offender Treatment Program,
" permit the Treatment Program provider to have
"unrestricted communication with the probation and
parole department, " and "submit to any polygraph .
. . deemed appropriate by [his] supervising officer."
Before he was released from custody, Lara signed the form
listing these ...