Lying to Probation Officer is a Federal Crime

By Lee Davis
United States v. Vreeland

Everyone knows that a person has the right to remain silent when faced with questioning by police and most people understand that you have the right to have an attorney present during questioning. Perhaps fewer people know that it is a crime to lie to federal agents.

In Vreeland, the court was faced with these issues in the context of a man who lied to his probation officer during his monthly probation meeting. Vreeland denied knowing a man involved in a crime. He too was a suspect in this crime. His probation officer pressed on these facts. Vreeland's statements are what formed the basis of both a probation violation and the substantive new crime of lying to the PO--a federal agent. This is a novel issue in the Sixth Circuit.

In Vreeland the Court was face with two questions: whether his false statements to a probation officer during the course of a monthly supervisory meeting are protected by the Fifth Amendment privilege against self-incrimination, and whether such statements fall within the “judicial function exception” to prosecution set forth in 18 U.S.C. § 1001(b). The answer to both questions is no.

The Court reasoned that:
We have held that “the Fifth Amendment privilege against self-incrimination is not self-executing in the context of a meeting with a probation officer.” United States v. Miller, 910 F.2d 1321, 1326 (6th Cir. 1990) (holding that the defendant’s voluntary revelation to his probation officer during a presentence meeting that he regularly purchased cocaine to support his habit, resulting in the probation officer’s recalculation of the defendant’s base offense level and sentencing range for his drug offense, was not a compelled incrimination); see also United States v. Humphrey, 34 F.3d 551, 555 (7th Cir. 1994) (“[U]nless a state overtly threatens to revoke probation in retaliation for the legitimate exercise of the self-incrimination privilege, there is no reasonable basis for a probationer to believe that his Fifth Amendment rights are in jeopardy.”) (citing Murphy, 465 U.S. at 438).

As to the notion that these are protected communications that are not subject to prosecution, the Court rejected that idea.
A meeting between a probation officer and a defendant under supervision is not a “judicial proceeding” protected by § 1001(b) because it serves an administrative, not an adjudicative, function.

Vreeland received a two year sentence for lying to his PO and an additional two years for his probation violation.

The full opinion can be found here.

Tennessee Supreme Court says Lawyers must advise Clients of Mandatory Supervision in Sex Cases

Jason Calvert was represented by two lawyers after an indictment in Davidson County on numerous sex offenses. He and his lawyers met at least 6 times. They provided him discovery. They went over the materials with him. After these meetings, he entered a written plea agreement to several offenses, two of which were aggravated sexual battery. Calvert received a sentence of 10 years suspended after he served 9 months in jail. During the plea colloquoy, the Judge believed the sentence was illegal because aggravated sexual battery was non-probatable. After consulting with his lawyers, Calvert changed his plea from two counts of aggravated sexual battery to two counts of rape. Neither his attorney nor the Court advised him that rape carries with it mandatory lifetime supervision.


In revieweing Calvert's post-conviction petition, the Tennessee Supreme Court held that a lawyers failure to advise their clients of such an important and adverse consequence such as mandatory lifetime supervision when the client is considering a plea consitututes ineffective assistance of counsel under the 6th Amendment. The Supreme Court further held that because the Defendant testified that he thought it would have made a difference in his decision, that such deficiency constitutes prejudice.


Practice Note: Slow down attorneys. The Court has made it clear that even if your client is considering a plea that carries lifetime supervision, that you must advise of the possible supervision requirements. In Calvert, This issue got past the Judge and both Defense Attorneys who did not mention it. The one person it did not get past was the District Attorney who checked the box on the Judgment form. However, the DA never announced that condition in the plea colloquoy transcript. Had he announced it on the record, how much time could have been saved avoiding a post-conviction hearing and appeal?

• JASON CALVERT v. STATE OF TENNESSEE