[00:00:00] Speaker 04: With that, we'll hear argument in the first case, which is United States versus Rourke. [00:00:06] Speaker 04: And I believe Mr. Newton is representing Mr. Rourke, right? [00:00:10] Speaker 03: Yes. [00:00:10] Speaker 04: Thank you. [00:00:11] Speaker 03: Good morning. [00:00:11] Speaker 03: You may please the court. [00:00:12] Speaker 03: And I would like to reserve two minutes for rebuttal. [00:00:15] Speaker 03: Keep your eye on the clock. [00:00:16] Speaker 03: We'll try to help you. [00:00:17] Speaker 03: I will. [00:00:17] Speaker 03: Thank you. [00:00:18] Speaker 03: Time permitting, this morning I would like to address three issues. [00:00:22] Speaker 03: First, whether the district court's mental health condition unconstitutionally delegates excessive discretion to a nonjudicial officer, in this case a mental health treatment provider, in contravention of this court's decision in United States v. Nishida. [00:00:38] Speaker 03: Second, whether the district court's gang condition is void for vagueness under the due process clause. [00:00:45] Speaker 03: And then finally, [00:00:46] Speaker 03: I would like to address why it is appropriate for this court to remand to the district court to modify the 12-step treatment option within the substance abuse condition if this court remands for modification of either of the other two conditions that I've challenged. [00:01:03] Speaker 04: Counsel, as you know, the government takes the position that the mental health treatment delegation and the religious 12-step program are premature, because it really hasn't happened to Mr. Roark yet. [00:01:17] Speaker 04: What's your response to that? [00:01:19] Speaker 03: I didn't see that argument about the mental health condition. [00:01:22] Speaker 03: I saw that about the 12-step program. [00:01:25] Speaker 04: It hasn't occurred yet, right? [00:01:27] Speaker 03: Well, he has been ordered to get mental health treatment. [00:01:31] Speaker 03: Whether he's been ordered to go inpatient at this point, he's in a residential facility right now. [00:01:37] Speaker 04: Okay. [00:01:37] Speaker 04: Let's just say, say, you're arguing, though, it hadn't happened yet. [00:01:42] Speaker 04: What's your response to that? [00:01:43] Speaker 04: Does it matter that these are just possibly going to occur for purposes of what you're claiming? [00:01:50] Speaker 03: Well, as I've noted in the brief, in the reply brief, [00:01:55] Speaker 03: Numerous decisions of this court have addressed conditions of supervision regardless of whether they have been activated or not. [00:02:04] Speaker 03: And let me tell you why that's actually the appropriate approach to take. [00:02:06] Speaker 03: There is the old Romero decision. [00:02:08] Speaker 03: I acknowledge that in the reply brief. [00:02:10] Speaker 03: But there are several subsequent Ninth Circuit published decisions after Romero that take an opposite approach. [00:02:16] Speaker 03: And it makes sense that they do so. [00:02:19] Speaker 03: A condition of supervised release or probation is tantamount to a penal statute. [00:02:24] Speaker 03: And we allow people to challenge penal statutes when there's a serious risk that they'll have standing. [00:02:32] Speaker 03: Certainly a person who is on supervised release who has a documented history of mental health and substance abuse problems would have standing to challenge a facially unconstitutional provision of the supervised release conditions. [00:02:44] Speaker 00: How much longer is he going to be on the supervised release? [00:02:47] Speaker 03: Good question. [00:02:48] Speaker 03: It ends on May 11th or May 10th of this year. [00:02:51] Speaker 05: Have any of these things happened [00:02:53] Speaker 05: yet. [00:02:54] Speaker 05: This is a separate question from the standing issue, just to be practical. [00:02:57] Speaker 05: Has he been required by the probation officer to attend a 12-step religious-based program? [00:03:05] Speaker 02: He has not. [00:03:07] Speaker 05: Has he been required by the probation officer to receive inpatient mental health treatment? [00:03:14] Speaker 05: He is inpatient for substance abuse, but how about for the mental health treatment? [00:03:18] Speaker 02: He has not. [00:03:19] Speaker 05: Has he been cited for [00:03:21] Speaker 05: violating the gang condition. [00:03:25] Speaker 02: He has not. [00:03:27] Speaker 05: And he's going to be released in four months. [00:03:30] Speaker 05: I want to make clear, I understand why the concerns existed, and when this case started, it's been on, for modern day, a relatively fast track, but the reality is he served two-thirds of his supervised release period already, and in less than four months, that's going to come to an end. [00:03:51] Speaker 03: That's correct, Your Honor, but I don't think any of that is a basis to avoid addressing serious constitutional violence. [00:03:58] Speaker 05: What is the practical implication of this? [00:04:01] Speaker 05: Even if we would adopt your positions and remand for resentencing, is there any practical impact given that by the time all of the process gets done, supervised release will have come to an end? [00:04:14] Speaker 03: Well, Your Honor, if it comes to an end, it's moot. [00:04:16] Speaker 03: But if it's not moot, this court [00:04:19] Speaker 03: has an obligation to address these constitutional issues. [00:04:22] Speaker 03: What do we do if we know practically that it will be moved? [00:04:28] Speaker 03: I mean, clearly the court has discretion to decide an appeal at the pace the court wishes to. [00:04:34] Speaker 03: I filed a motion to expedite this appeal at the outset with this in mind. [00:04:39] Speaker 03: I'm doing everything I can to have these substantial issues. [00:04:42] Speaker 03: And I should also say we, of course, are not simply here for Mr. Roark. [00:04:46] Speaker 03: as part of our common law adjudication system to decide the law as it affects future people on supervised release. [00:04:52] Speaker 03: So you're going to be issuing a ruling that also serves to guide federal district judges, probation officers, and litigants and defendants in the District of Arizona and throughout the Ninth Circuit [00:05:02] Speaker 05: so i i would ask the court to tell us we already have that ruling your arguments based on the sheet of basically well i'm applying the sheet to a different set of facture this is not on all fours and very rarely do you have a case on all fours well that would suggest that we need a published opinion for every single case because the max don't always match but that doesn't happen in fact we we have a published opinion you cited it appropriately to urge the result you reach [00:05:28] Speaker 05: But increasingly, this seems to me like a theoretical rather than real case, because I can't see any actual impact it could have on your client. [00:05:38] Speaker 03: Well, it could, Your Honor. [00:05:39] Speaker 03: The probation officer could decide to exercise that discretion. [00:05:42] Speaker 03: And this Court has said, and I've cited these decisions in my reply brief, you don't refuse to address an issue simply because the probation officer has discretion not to violate it. [00:05:54] Speaker 03: I cite two different nights where he was. [00:05:56] Speaker 05: But see, we're past that now. [00:05:57] Speaker 05: because we're two-thirds, more than two-thirds into his supervised release. [00:06:03] Speaker 05: He's already been assigned to a residential reentry center, so they're not pointing toward the 12-step program. [00:06:10] Speaker 05: There's no real indication that if the probation officer had raised the possibility and he said, no, I don't want to do that, that he would have been forced into doing that. [00:06:19] Speaker 05: I don't fault the appeal. [00:06:22] Speaker 05: But at this point, I don't see what real impact we could possibly have. [00:06:26] Speaker 05: So we may be wasting the time of everybody in this room hearing a case that can have no practical impact. [00:06:32] Speaker 05: What's wrong with that? [00:06:35] Speaker 03: I think you cannot simply say, we have four or five months left, and he's going to run out the clock. [00:06:43] Speaker 03: That can't be a reason to avoid addressing substantial constitutional issues that have potential implications, not just for him, even if remotely, but for other people as well. [00:06:51] Speaker 05: So you're guaranteeing it's theoretical rather than real almost, which leads to the standing question that Judge Smith was leading. [00:06:59] Speaker 05: If we don't have a practical impact, why are we taking this up? [00:07:02] Speaker 03: I'm not guaranteeing this is not going to happen by no means. [00:07:05] Speaker 03: I don't have a crystal ball. [00:07:06] Speaker 03: I'm not prescient. [00:07:08] Speaker 03: I want to turn to some other issues, if that's okay, and I'll limit it. [00:07:11] Speaker 04: Can I just ask one other thing to follow up from what Judge Clifton said? [00:07:15] Speaker 04: He's cited Nishida. [00:07:17] Speaker 04: There are, as you know, because you cited them, virtually every circuit who has dealt with a religious-based 12-step program has found it to be a violation of the Establishment Clause. [00:07:28] Speaker 04: If your client were actually compelled to do it, wouldn't that require us to find it unconstitutional? [00:07:37] Speaker 03: It would, but the fact that it is a recurring condition in the District of Arizona by itself is a good enough reason. [00:07:44] Speaker 03: If I could briefly turn to the gang condition. [00:07:47] Speaker 03: In my reply brief, in my reply brief, I note the Lenzetta decision of the Supreme Court from 1939. [00:07:55] Speaker 03: The Lenzetta decision provides that governing precedent concerning the undefined term gang. [00:08:03] Speaker 03: I also note the government repeatedly refers to the [00:08:07] Speaker 03: the standard inpatient and standard outpatient mental health treatment conditions used in the District of Arizona. [00:08:13] Speaker 03: The word inpatient and outpatient do not appear at all regarding the mental health condition here. [00:08:19] Speaker 04: The record- Can I go back to the gang condition? [00:08:23] Speaker 04: We have repeatedly upheld the concept of a criminal street gang. [00:08:27] Speaker 04: Correct. [00:08:28] Speaker 04: If the District Court amended the wording to include criminal, would that satisfy your problem? [00:08:34] Speaker 04: That would satisfy me. [00:08:35] Speaker 04: Okay. [00:08:41] Speaker 04: Very well. [00:08:43] Speaker 04: I want to say this right, very counter run, is that correct? [00:08:47] Speaker 01: Yes, Judge Forkotorin. [00:08:50] Speaker 01: May it please the court, Keith Forkotorin on behalf of the United States. [00:08:53] Speaker 01: First, I share a lot of the concerns that the court raised with regard to the reality of these three conditions. [00:09:00] Speaker 01: I would like to state, though, that we believe that the district court was correct in all three of these conditions. [00:09:06] Speaker 01: It was not objected to by the defendant at the district court level. [00:09:10] Speaker 01: and therefore we're under the plain error standard. [00:09:13] Speaker 01: I certainly realize that this court knows what that plain error standard states. [00:09:16] Speaker 01: Must be error, must be plain, must affect substantial rights, and must seriously affect. [00:09:22] Speaker 04: But counsel, with respect, plain error doesn't really apply in at least the two circumstances we're talking about, does it? [00:09:30] Speaker 04: I'm putting aside the gang issue. [00:09:32] Speaker 04: Don't we have case law that says that substantial rights are interfered with and that therefore it would not be a plain error standard? [00:09:40] Speaker 04: uh... judge i believe that the plane error standard applies on all three of these uh... and what cases would you cite for say for example the religious twelve-step program where what case would you say we would treat that as plane error i'd believe under the taylor case the taylor case forecloses delegation issue so that leaves them only with the establishment cause until i was asking about a step up but what case would you cite to us [00:10:09] Speaker 04: that says that if you have a condition that would require Mr. Rourke, in this case, to participate in a religious-based 12-step program, that whether he raises it or not, it is, it affects his substantial rights and therefore you don't look at it under plain error review. [00:10:32] Speaker 01: Well, I believe that there's no case law out there that's going to tell you a 12-step program is only religious-based. [00:10:39] Speaker 04: But if it is, there's plenty of case law that says that's a violation of the establishment clause, right? [00:10:45] Speaker 01: if the defendant objects to it. [00:10:47] Speaker 01: So under the Establishment Clause, there's two factors that the defendant must take up, that the program is entirely religion-based and offers no secular alternatives, and that the supervising court or probation officer required the defendant's participation after he objected to the religious-based nature of it. [00:11:06] Speaker 01: That's not the case here. [00:11:07] Speaker 01: And so how could any district court judge see that a 12-step program requirement within a supervised release condition be illegal, be so clearly outside the bounds of what this court has directed of the district court? [00:11:23] Speaker 04: Let me make sure I understand the government's position. [00:11:25] Speaker 04: You're saying that even though he could [00:11:32] Speaker 04: quickly find himself in such a program. [00:11:34] Speaker 04: He actually has to be in the program before he can object. [00:11:37] Speaker 04: Is that correct? [00:11:39] Speaker 01: I think at the point where a probation officer would direct an individual into a religious-based program and the person objects to it and the probation officer says, no, you must go or risk jail, I think that's when it becomes right. [00:11:50] Speaker 04: But at that point, he's risking jail. [00:11:53] Speaker 04: That's a serious matter. [00:11:54] Speaker 04: Why couldn't he, based on a [00:11:57] Speaker 04: pretty well-known, well-established establishment clause violation and say, wait a minute, this is per se, this doesn't work. [00:12:07] Speaker 01: Well, it's one of the reasons why we have a plain error standards, because we want to encourage defendants at the district court level to object to these sorts of things. [00:12:14] Speaker 01: And he failed to do that. [00:12:16] Speaker 01: And therefore, the probation officer wasn't allowed to put things on the record like, for instance, the fact that [00:12:23] Speaker 01: The District of Arizona Probation Department will never make anybody go into a religious-based program if they object to it based on the case law. [00:12:31] Speaker 01: And certainly, that's our court's approach as well. [00:12:33] Speaker 05: I mean, the reality is that if an objection had been made to the district court, the language would have been changed. [00:12:40] Speaker 01: Not necessarily within the condition itself, Your Honor. [00:12:43] Speaker 01: I believe that certainly our district courts and our probation officers know the law. [00:12:49] Speaker 05: This leads me to a concern I have about the position that [00:12:53] Speaker 05: the government has taken. [00:12:55] Speaker 05: As I understand your argument, you're basically saying, well, it is true that the mental health treatment condition does not specify outpatient, but the silence on that subject should be read to mean just outpatient. [00:13:12] Speaker 05: and that that's the standard practice in Arizona, the district of Arizona at this time. [00:13:17] Speaker 05: Is that the position? [00:13:18] Speaker 01: That's correct, post-Nashita, because it has to say inpatient. [00:13:21] Speaker 05: Stop, stop, because my law clerk has done a little research and he's identified at least four cases where orders issued by the district of Arizona specify outpatient. [00:13:31] Speaker 01: Now- Within substance abuse or within mental health? [00:13:34] Speaker 05: Mental health. [00:13:35] Speaker 05: I'll read one of them. [00:13:37] Speaker 05: This is from a case called the United States versus Denson. [00:13:41] Speaker 05: entered last April, you must participate in a mental health assessment and participate in outpatient mental health treatment," and so on and so forth. [00:13:50] Speaker 05: It doesn't seem to me to be the case that, oh, this is what everybody in Arizona understands, the silence to me. [00:13:57] Speaker 05: Now, I understand you're not going to be aware of every single order that gets entered by every single district judge, but it's hard for me to [00:14:06] Speaker 05: lean on an argument that says, oh, this is what it means when, in fact, other judges in Arizona are issuing orders that specify the word that's missing. [00:14:16] Speaker 05: And it gets me to the other concern I have, and this may relate to the potential standing argument. [00:14:22] Speaker 05: The process of appeal takes time. [00:14:26] Speaker 05: Here we are, and you've already heard my voice, my concern, that the clock has just about run out on us. [00:14:32] Speaker 05: And so the reason that I think our court allows [00:14:36] Speaker 05: defendants to object to conditions before they've suffered from the condition is that otherwise it's going to be too late. [00:14:43] Speaker 05: They will have suffered from whatever inappropriate direction is given by the probation officer before they can ever get this court to review it. [00:14:52] Speaker 05: So I don't think our history of decisions supports the proposition that they have to suffer from the application of the allegedly improper condition [00:15:06] Speaker 05: before they can complain about it. [00:15:09] Speaker 05: But then we come right back to the other problem, which is that there's not a real problem here, as best as anybody can tell, and it's highly unlikely that there will be. [00:15:19] Speaker 05: Any practical solution as to how we can address something like this? [00:15:23] Speaker 01: Well, I can certainly advise the court that there is a 0% chance that this defendant will be asked to go into inpatient, because our courts and our probation department understand the Nasheeda decision. [00:15:35] Speaker 01: whether they actually voice the word outpatient or not in their mental health condition maybe that should become the standard condition to avoid this. [00:15:42] Speaker 01: I'm not here to speak for every single judge within the district court. [00:15:47] Speaker 01: But I think that they believed, at least during the original writing of the differences between inpatient and outpatient mental health condition after Nishida, that the outpatient word was superfluous. [00:15:59] Speaker 01: Because if they don't say the word inpatient, it should be construed that Mr. Probation Officer or Mrs. Probation Officer, you are not allowed to put that particular defendant within an inpatient mental health facility. [00:16:09] Speaker 01: And therefore, there's a 0% chance that this defendant or any defendant that doesn't have the word inpatient into the mental health [00:16:17] Speaker 01: condition will ever risk doing inpatient mental health treatment. [00:16:21] Speaker 04: With respect, you're basically just entrusting us. [00:16:24] Speaker 01: Not entirely, Judge. [00:16:26] Speaker 01: This Court, in other cases, have construed silent words. [00:16:30] Speaker 01: For instance, in the, I believe it was a Daniels case that I cited with regard to the medication issue, that it didn't particularly state certain medications. [00:16:40] Speaker 04: Remember, Thomas Moore said silence denotes consent. [00:16:44] Speaker 04: So how do you deal with that? [00:16:45] Speaker 01: Well, not in the, in this legal sense, Judge, there are other cases that construe silence to be, we must review this as a constitutional way, in a constitutional way that the court meant it to be in a constitutional way, and therefore, that saves the day on the mental health treatment. [00:17:02] Speaker 00: What do you suggest we do here, under the circumstances? [00:17:05] Speaker 01: Judge, I do not believe there's a need for remand on this particular case for multiple reasons. [00:17:10] Speaker 01: First off, the defendant, these issues are not right. [00:17:14] Speaker 01: The defendant has not suffered any of these three conditions and any kind of violation. [00:17:19] Speaker 01: And it's not necessary because under the mental health I just explained, under the 12-step program, there is [00:17:27] Speaker 01: plenty of secular alternatives if the defendant were to voice any kind of objection on religious-based grounds for anything. [00:17:33] Speaker 01: And there's no court that's ever said that the 12-step programs are strictly religiously based in their nature. [00:17:40] Speaker 01: There could potentially be some 12-step programs that are and some 12-step programs that are not. [00:17:44] Speaker 01: And there are other programs that are listed in the condition that the defendant can go to for his treatment that are not religious-based. [00:17:53] Speaker 05: Then we hit exactly the practical problem we were just talking about. [00:17:56] Speaker 05: If we require a defendant to wait until he's suffered the ill consequences of a probation officer who you logically tell us won't do this, but isn't by the terms of the conditions in this supervised release, isn't prohibited from doing it, suppose the probation officer says, you know, I've been a big believer in this [00:18:22] Speaker 05: Baptist Church 12-step program has got a lot of religion in it, but it's going to work for you, so that's where I'm sending you. [00:18:28] Speaker 05: What's he supposed to do? [00:18:29] Speaker 05: He can't get to us to get it fixed. [00:18:33] Speaker 05: I don't think that's what the district judge intended or empowered, but we've got a problem, at least theoretically. [00:18:40] Speaker 05: Is there any kind of practical solution? [00:18:43] Speaker 05: I'll take you past your time for a second, because suppose we decide, OK, yeah, these conditions need to be fixed. [00:18:51] Speaker 05: Is there a way we can do that expeditiously? [00:18:54] Speaker 05: Can the district judge simply revise the conditions, or what a procedural problem are we facing here? [00:19:01] Speaker 01: I think procedurally, if this court were to render an opinion expeditiously, and you remand it back to the district court to add any terms that this court were to see fit, [00:19:11] Speaker 01: Certainly, the district court could hold a hearing and change any of those conditions forthwith. [00:19:18] Speaker 01: I don't think it's necessary here, though. [00:19:20] Speaker 01: And I'd like to mention on the gang terms that there's been numerous cases where the court has held that because there's a knowingly mens rea within the condition and [00:19:32] Speaker 01: The gang term, so for instance, in the Evans case, or any other gang, was not unconstitutionally vague. [00:19:39] Speaker 01: Criminal street gang and associate, not unconstitutionally vague. [00:19:43] Speaker 01: The Farley case, limiting the defendant's ability to associate with gang members. [00:19:48] Speaker 04: Donovan? [00:19:48] Speaker 04: We've let you go over your time. [00:19:49] Speaker 04: I know my colleague asked you questions, and of course, we can ask as many as we want. [00:19:53] Speaker 04: But let me ask my colleague whether either as additional questions. [00:19:56] Speaker 04: Thank you. [00:19:57] Speaker 04: I think we're good. [00:19:57] Speaker 04: Thank you very much. [00:19:59] Speaker 04: Thank you, sir. [00:19:59] Speaker 04: So here, some rebuttal, please. [00:20:00] Speaker 03: Thank you. [00:20:02] Speaker 03: Obviously, it's a different Article III standing type matter, but in several cases, the Supreme Court has held, if something's capable of repetition yet evading review, that is a basis to consider. [00:20:14] Speaker 03: I do want to remind this Court, at the outset of this appeal, I tried to speed this up to avoid the problem we're in now. [00:20:20] Speaker 03: Certainly not blaming anybody. [00:20:22] Speaker 04: We understand that, but practically speaking, it appears the only thing that's going to satisfy your request is a published opinion. [00:20:33] Speaker 04: which usually takes a little while to get out. [00:20:36] Speaker 04: And as my colleague has well demonstrated, practically speaking, it won't help this defendant at all because the time would have run. [00:20:44] Speaker 04: So practically, what can we do? [00:20:47] Speaker 04: Can the government and your client enter into some kind of stipulation where it will be immediately taken care of and moot the whole thing out? [00:20:55] Speaker 04: Or your whole point is you're here because you want the published opinion? [00:21:00] Speaker 03: As the officer of the court, sure, I would like to have good law made. [00:21:03] Speaker 03: But there are three things that could be done to satisfy my concerns. [00:21:07] Speaker 03: Add the word outpatient to the mental health condition. [00:21:12] Speaker 03: add the word criminal street before the word gang, and after the 12-step condition program, either strike it or put in parentheses solely with the defendant's knowing, voluntary, and intelligent consent. [00:21:24] Speaker 04: Okay. [00:21:24] Speaker 04: May we say this then? [00:21:25] Speaker 04: Well, on behalf of the court, we encourage the two of you to talk. [00:21:30] Speaker 04: If you can arrange a stipulation to have the court do that, will you please let us know ASAP? [00:21:37] Speaker 04: Because it doesn't sound like there's any practical problem to doing that in this case. [00:21:43] Speaker 04: But there is a practical problem in our running through published opinion and getting it for any time to help Mr. Rourke. [00:21:50] Speaker 03: Certainly. [00:21:51] Speaker 03: The only reason I would like it to be published is it would give guidance to courts in the future. [00:21:55] Speaker 04: Understand. [00:21:56] Speaker 03: Thank you. [00:21:57] Speaker 04: Any other questions by my colleagues? [00:21:58] Speaker 04: All right. [00:21:59] Speaker 04: Thanks to both counsel for your argument in this case. [00:22:01] Speaker 04: The case of United States versus Roark is submitted.