United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
DEBORAH K. CHASANOW United States District Judge.
Liang was first released to supervision on January 4, 2013,
after serving a sentence of one year and one day for
possession of child pornography. The initial conditions
included prohibition on computer access except with
authorization, or in connection with authorized employment.
ECF No. 48. As part of his required participation in sex
offender treatment, he agreed not to possess or use any
computer without permission of the probation officer. ECF No.
51. As part of a request to authorize travel, the probation
office reported to the court on August 11, 2014, that
polygraph testing on July 30, 2014, indicated that Mr. Liang
was being truthful. ECF No. 52.
April 2015, a petition on supervised release was filed,
alleging that admissions during a pre-test polygraph
interview violated the condition that he satisfactorily
participate in a sex offender treatment program, that he was
untruthful with the probation officer concerning unauthorized
computers, and that he possessed an unauthorized MacBook. ECF
No. 53. A supplemental petition was filed in July alleging
unauthorized travel outside Maryland. ECF No. 61. After a
hearing on August 5, 2015, Mr. Liang's supervised release
was revoked and he was sentenced to serve one day in the
Marshal's lockup, followed by supervised release for 5
years, less one day. The special conditions of supervision
were adjusted, and included 9 months of home detention. The
violations found were failure to report conduct to the
therapist, being untruthful with the probation officer,
possession of unauthorized devices, and travel outside
Maryland without permission. ECF No. 64.
in October 2015, another series of petitions were filed, ECF
Nos. 66, 67, and 68, which included allegations of
unauthorized devices, the viewing of pornography, contact
with minors, and home detention curfew violations. Mr. Liang
admitted the violations in December, and, after a hearing in
March 2016, supervision was again revoked and Mr. Liang was
sentenced to 30 days in custody, followed by supervised
release of 5 years less 31 days. ECF No. 75.
August 2016, another petition was filed, alleging access to
or possession of unauthorized internet capable devices and
failure to update sex offender registration. ECF No. 79. A
supplemental petition followed in December 2016, alleging
failure to report for polygraph testing, admitting to using
unmonitored devices to access child pornography, purchasing
devices without permission, being dishonest with his
therapist and admitting to viewing pornography, and being
charged with failure to register as a sex offender. ECF No.
86. Those petitions remain pending. The probation officer has
also presented to the court a further supplemental petition
which would allege violations consisting of voluntary
admissions of conducting searches for child pornography, and
unapproved contact with children.
December 19, 2016, Mr. Liang filed a motion for an order that
he not be required to submit to any further polygraph
examinations until further order of court. ECF No. 90.
Because of ongoing discussions among counsel and the
probation officer, no response was filed to the motion and no
hearing was held. Ultimately the parties did not resolve
their differences, and Mr. Liang filed a motion to dismiss
the pending petitions and the government responded. A hearing
was held February 23, 2017. The court declined to dismiss the
petitions in their entirety, but took under advisement
whether any of the specific allegations were subject to
dismissal. A further hearing is set for March 27, 2017.
motion to dismiss recounts Mr. Liang's recollection of
events in November 2016 surrounding a polygraph examination
and group treatment. He asserts that any statements he made
during the polygraph examination qualify for Fifth Amendment
Fifth Amendment protects an individual from being compelled
to incriminate himself by permitting him to refuse to answer
questions put to him by officials of government. The
protection applies to people on supervised release. Under the
Fifth Amendment, a person may refuse to answer any question
until he is protected at least against the use of the
compelled responses in any subsequent criminal case.
person must, however, claim protection of the privilege.
Otherwise, responses to questions are not deemed to be
Thus it is that a witness confronted with questions that the
government should reasonably expect to elicit incriminating
evidence ordinarily must assert the privilege rather than
answer if he desires not to incriminate himself. If he
asserts the privilege, he “may not be required to
answer a question if there is some rational basis for
believing that it will incriminate him, at least without
at that time being assured that neither it nor its
fruits may be used against him” in a subsequent
criminal proceeding. Maness v. Meyers, 419 U.S. 449,
473, 95 S.Ct. 584, 598, 42 L.Ed.2d 574 (1976) (WHITE, J.,
concurring in the result) (emphasis in original). But if he
chooses to answer, his choice is considered to be voluntary
since he was free to claim the privilege and would suffer no
penalty as the result of his decision to do so.
Minnesota v. Murphy, 465 U.S. 420, 429 (1984).
Liang did not invoke his Fifth Amendment protection, but
instead seeks to put his situation into an
The general rule that the privilege must be claimed when
self-incrimination is threatened has . . . been deemed
inapplicable in cases where the assertion of the privilege is
penalized so as to “foreclos[e] a free choice to remain
silent, and ... compe[l] ... incriminating testimony.”
Garner v. United States, 424 U.S., at 661, 96 S.Ct.,
at 1186. Because revocation of his probation was threatened
if he was untruthful with his probation officer, Murphy
argues that he was compelled to make incriminating