by Dale Chappell

In a case of first impression, the U.S. Court of Appeals for the Seventh Circuit held that an accused’s admissions during a pretrial services (“PTS”) interview for bail are confidential and cannot be used at trial to prove guilt.

The case came before the Court after Michael Chaparro was found guilty by a jury on three charges relating to accessing and transport of child pornography, all on separate dates. The investigation began in August 2014 when an IP (internet protocol) address sharing child pornography was traced back to a billing address for Chaparro’s grandmother’s house in Illinois. Four months later, local law enforcement armed with machine guns executed a search warrant at the house, but Chaparro wasn’t there. When he showed up later during the search, the smartphone he had in his possession was seized, along with two computers, all of which contained child pornography. He was eventually charged in March 2016, and he went to trial.

The question the Government had to answer at trial was exactly who had used the two computers at the house to access the child pornography. One of the computers was last used in early 2014, and the other hadn’t been powered up in over 15 months. Additionally, the computer that law enforcement connected to in order to get the IP address was never found. So, the Government had to prove somehow that Chaparro used those two computers during the time frame for the two charges related to them (the charge in connection with his cellphone was not at issue).

Chaparro never told law enforcement that he lived at his grandmother’s house during the dates the two computers were accessed there. While some evidence showed he had stayed at the house, it was unknown when and for how long. At trial, the defense called Chaparro’s uncle who testified that he had lived with a girlfriend during those times in question, which hurt the Government’s case.

However, at a PTS interview to determine if he should be set free on bail, Chaparro admitted that he had lived at his grandmother’s house “for three years prior to his arrest.” The Government called the PTS officer to testify before the jury in order to impeach the uncle, using Chaparro’s admission. Over both the defense’s and officer’s objections, the court allowed the officer’s testimony. Chaparro was convicted on all counts and sentenced to over 18 years in federal prison without parole. He appealed.

PTS Admissions Are Confidential

Under 18 U.S.C. § 3153(c)(1), statements made during a PTS interview “shall be used only for the purpose of a bail determination and shall otherwise be confidential.” The statute specifically says that PTS information “is not admissible on the issue of guilt in a criminal judicial proceeding.” The Seventh Circuit said the reason for the confidentiality of PTS information is because it’s “essential to the reliability” of the report to the judge determining bail, which is usually processed in a matter of hours.

Confidentiality is also important, the Court said, because “defendants already perceive danger in cooperating with pretrial services.” Allowing confidential statements in court to prove guilt would “corroborate these fears” and interfere with the court’s decisions. Therefore, the Court recognized a “strong policy favoring confidentiality” of statements to PTS.

The Court also cited due process concerns in that Chaparro invoked his right to not incriminate himself, thus putting the burden on the Government to prove its case without his help. The Court found that Chaparro’s statement about living with his grandmother “amounted to an admission” and was a “crucial fact” the Government had to prove to convict on two of the counts.

Exceptions to PTS Confidentiality

The Government convinced the district court that it needed to use Chaparro’s statement to impeach his uncle’s testimony that Chaparro was living with a girlfriend, and not his grandmother, during the dates of the alleged offenses. Relying on cases that have created a judge-made exception to the confidentiality rule for impeachment purposes, the court allowed the PTS officer to testify that Chaparro had told him otherwise.

While the statute does include some exceptions to PTS confidentiality, impeachment is not one of them. But several other Circuits have held that impeachment could still be an exception, the Seventh Circuit acknowledged. Without joining those Circuits, the Seventh Circuit assumed for purposes of Chaparro’s case that there was an impeachment exception to the PTS confidentiality rule.

But the kind of impeachment exception the district court granted here was not a valid exception, the Court said. “Nearly every case recognizing an impeachment exception to pretrial services confidentiality approved impeaching a witness by his or her own prior inconsistent statements,” the Court noted. “Impeachment by contradiction,” what the Government said it did here, requires substantive facts that the jury had to believe as true in order to impeach the uncle. “The problem is that contrary substantive evidence can impeach only if the jury accepts it as substantially true,” the Court explained.

Impeachment by contradiction is a “misnomer,” the Court continued. It really provides substantive evidence “in another guise.” Chaparro’s residency was “central to the government’s case,” so it definitely went to the “issue of guilty,” prohibited by § 3153(c)(1). The Court reiterated that a witness’s own statements may be used to impeach their testimony as an exception to PTS confidentiality, “not some other person’s contradictory account” — and not a statement by the defendant that “helped the government’s case significantly.” The Government had to prove Chaparro was the user of those two computers on certain dates. It couldn’t do that without his admission to PTS that he lived at his grandmother’s house on those dates.

The Remedy

While Chaparro was sentenced to three identical concurrent prison terms, vacatur of two of the convictions affected his Guidelines sentencing range (“GSR”). Under U.S.S.G. § 2G2.2, Chaparro faced severe enhancements because of the two convictions related to the computers. His base offense level was increased by seven points because of those convictions: two for distribution of child pornography from one of the computers and five for having over 600 images total (his cellphone had only two images). As a first-time offender, this brought Chaparro’s GSR from 210-262 months down to 97-121 months without those two convictions.

Accordingly, the Seventh Circuit reversed two of Chaparro’s child pornography convictions and remanded for resentencing, even if the Government chooses not to retry him on those other two counts. See: United States v. Chaparro, 2020 U.S. App. LEXIS 11559 (7th Cir. 2020).

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