[00:00:00] Speaker 00:
23-3062.

[00:00:01] Speaker 00:
Council, you're both present, nobody's on the video so we're ready to hear your argument when you're ready to present it.

[00:00:10] Speaker 01:
Good morning, Your Honors, and may it please the Court, Ruth Rogin, on behalf of Appellant Joseph Coppola.

[00:00:15] Speaker 01:
I'd like to reserve three minutes for a bottle and I will watch the clock.

[00:00:19] Speaker 01:
Okay.

[00:00:19] Speaker 01:
This case involves two discrete issues.

[00:00:22] Speaker 01:
Notice of supervised release and supervision conditions.

[00:00:25] Speaker 01:
I will primarily focus on the former, but time permitting will address the debt prohibition and adult pornography prohibition conditions.

[00:00:33] Speaker 01:
Mr. Kobla lacked actual notice of supervised release.

[00:00:36] Speaker 01:
For the first time in almost 20 years after sentencing, the government moved to revoke his supervised release.

[00:00:43] Speaker 01:
In the interim, all relevant information informed him that he was no longer on supervision.

[00:00:49] Speaker 01:
The government revoked his supervised release only in the subsequent federal case.

[00:00:54] Speaker 01:
The government admitted that it forgot about supervised release, and probation told him that his case had expired.

[00:01:01] Speaker 00:
Please, go right ahead.

[00:01:03] Speaker 04:
Your argument is, if I understand it correctly, not so much that he didn't have notice, because he did get notice when he was initially sentenced, but more precisely that something that happened subsequently

[00:01:16] Speaker 04:
would have led him to believe he was no longer under supervision.

[00:01:20] Speaker 04:
Is that it?

[00:01:21] Speaker 01:
So we believe our argument is still about notice because the plain meaning of the term actual notice, which is the standard we believe applies, references the defendant's knowledge at the time of the violation.

[00:01:31] Speaker 01:
So we admit that he received knowledge about the term, the length of his supervised release at sentencing, but the events that happened afterwards informed him whether he had noticed when he committed the violations in this case.

[00:01:43] Speaker 00:
I'm understanding that to be a long way of saying yes.

[00:01:46] Speaker 00:
In response to that question, is that right?

[00:01:49] Speaker 01:
No, Your Honor, because we believe actual notice is referenced only at the time of the violation.

[00:01:55] Speaker 00:
But your time is ticking and we're not trying to get in your way, but it is important to move this along and make sure we have a clear record.

[00:02:02] Speaker 00:
I think in response to Judge Miller, you're agreeing that as of 2001, your client had notice.

[00:02:07] Speaker 00:
Yes, Your Honor, but not... And then that you think that the operative point in time is at the time of revocation.

[00:02:13] Speaker 00:
At that point, he was not on notice, that he was under the terms of the 2001 conditions.

[00:02:18] Speaker 00:
Is that it?

[00:02:19] Speaker 01:
Yes, Your Honor, at the time that he committed the violations in this case.

[00:02:22] Speaker 03:
But there's no question that the judge originally read out loud while your client was present all of the special conditions?

[00:02:31] Speaker 01:
All of the special conditions, though there are allegations in this case that he violated the standard conditions of supervised release, and the judge at sentencing never read all the standard conditions of supervised release.

[00:02:42] Speaker 01:
But regardless, we think we have three cases that make the defendant's knowledge at the time of the violations relevant to the question of whether the defendant had actual notice.

[00:02:51] Speaker 00:
Before you get to that, could you back up in response to I think your very first statement or maybe something you said in response to Judge Miller.

[00:02:59] Speaker 00:
You said after 2001,

[00:03:01] Speaker 00:
He received other indications from the government that the terms had expired or they were no longer operative.

[00:03:09] Speaker 00:
What were those other than the writing that said expired?

[00:03:12] Speaker 00:
What else are you relying on?

[00:03:14] Speaker 01:
Yes, Your Honor, so we're relying on two other pieces of information.

[00:03:17] Speaker 01:
First, the government's failure to pursue revocation proceedings in this case, but pursuing revocation proceedings in another federal case.

[00:03:25] Speaker 01:
And I think this is the most important point that we have.

[00:03:28] Speaker 01:
So in United States versus Hamilton, this court said that it's illustrative

[00:03:33] Speaker 01:
the probation officer's conduct in failing to pursue revocations, because that's informative of whether a defendant knows the true nature of their obligations on supervised release.

[00:03:42] Speaker 01:
And here, the first two revocation petitions that were only filed in a subsequent federal case were mandatory revocation.

[00:03:49] Speaker 01:
So they involved new law violations.

[00:03:51] Speaker 01:
So under Sentencing Guideline 7B.1.2A, the probation officer would have had to tell the court about these violations, and under 7B,

[00:04:00] Speaker 01:
1.3a.1, the court would normally subject him to mandatory revocations.

[00:04:06] Speaker 01:
We think that is informative of whether or not he knew his obligations at the time.

[00:04:10] Speaker 04:
So your argument almost seems to amount to a kind of, I know you don't put it in these terms, but it seems in substance to amount to a kind of a stopple theory that because the government didn't take action

[00:04:24] Speaker 04:
quickly enough or didn't take action under this judgment rather than the other judgment that therefore it's stopped from doing so later.

[00:04:32] Speaker 04:
And we normally are pretty reluctant to apply a stopple against the government.

[00:04:36] Speaker 04:
So why should the, you know, lastitude of the U.S.

[00:04:41] Speaker 04:
Attorney's Office alter the effect of a judgment of the court?

[00:04:46] Speaker 01:
So I want to make a legal point, but first I will say that the considerations of estoppel are relevant here, but it informs both the due process analysis, which is relevant to an understanding of actual notice.

[00:04:57] Speaker 01:
I want to direct the court back again to a case like United States versus Hamilton, where the probation officers failure to pursue revocation earlier with technical violations

[00:05:06] Speaker 01:
then amounted to a defendant not having adequate notice later on when the government tried to revoke him for similar conduct.

[00:05:13] Speaker 01:
Because it's informative of whether the defendant has knowledge of what the true nature of his conditions are.

[00:05:19] Speaker 01:
And if you look more broadly at the due process principles in cases like United States versus Guglardio, this court talks about a defendant needing an appropriate guide for their conduct.

[00:05:28] Speaker 01:
And that similar sort of language appears in both of the statutory provisions that are relevant here.

[00:05:34] Speaker 01:
So I would direct this court to 3583F and 36031, which direct what the probation officer has to do in providing a defendant a guide for his conduct.

[00:05:43] Speaker 01:
So I think those considerations are relevant to a defendant's knowledge, even though they also sound in terms of estoppel.

[00:05:50] Speaker 00:
Did you want to turn to the new conditions?

[00:05:53] Speaker 01:
Yes, Your Honor.

[00:05:54] Speaker 01:
So I would like to focus on two of them.

[00:05:57] Speaker 01:
The debt prohibition condition and the adult pornography prohibition condition.

[00:06:01] Speaker 01:
So more globally, there was no connection between these new sort of conditions and the relevant sentencing factors in this case.

[00:06:08] Speaker 01:
So starting with the debt prohibition condition, this condition lacks record support and it's both a greater restraint on liberty than necessary.

[00:06:16] Speaker 01:
Under the guidelines, this condition is only recommended if the defendant is not in compliance with his financial obligations that here,

[00:06:23] Speaker 01:
there was no dispute that Mr. Coppola had satisfied his financial obligations for both convictions at issue here.

[00:06:30] Speaker 00:
So what about the obvious point that you're aware of, that the record indicates that your client in the past has

[00:06:38] Speaker 00:
Rob Banks on multiple occasions, and then perhaps he did that because he had a gambling problem and needed money.

[00:06:43] Speaker 01:
So two responses to that.

[00:06:45] Speaker 01:
First, there was no contemporary evidence that he had a gambling problem.

[00:06:48] Speaker 01:
Both of his convictions are from conduct quite old, so 2003 and 1999.

[00:06:53] Speaker 00:
In part, I can imagine the district court thinking there isn't contemporary evidence because your client spent a lot of time in jail.

[00:07:00] Speaker 00:
But be that it may, it's dated, but it's certainly in the record.

[00:07:04] Speaker 00:
What else?

[00:07:05] Speaker 01:
So that took me to my second response.

[00:07:06] Speaker 01:
There were other conditions that also address the gambling problem.

[00:07:09] Speaker 01:
So he's barred from entering casinos.

[00:07:12] Speaker 01:
He's prohibited from gambling.

[00:07:14] Speaker 01:
He also has to attend to gambling addiction treatment.

[00:07:16] Speaker 01:
And most importantly, he is subject to a financial reporting condition that is unchallenged on appeal.

[00:07:22] Speaker 01:
So I point this court to the Second Circuit's decision in United States versus Brown, which says that the existence of a financial reporting condition is helpful because it forces the defendant to account for their income

[00:07:34] Speaker 03:
And allows for a monitoring of their so so counsel the district court said And the mental health treatment will be the same idea that if the treatment provider says he doesn't have a gambling issue anymore We don't think it's a problem, then you can file a motion to lift Isn't that a sensible lift the gambling prohibition isn't that a sensible or the financial prohibition isn't that a sensible approach I?

[00:07:58] Speaker 01:
No, because conditions have to be justified at the time of their imposition.

[00:08:02] Speaker 01:
And you look at the entirety of the conditions as they're imposed together.

[00:08:06] Speaker 01:
So we maintain that the four other conditions that exist to address his gambling problem are sufficient enough to address the issue, especially when creating a prohibition on accumulating new debts would force him to go to his probation officer for permission

[00:08:20] Speaker 01:
every single time he uses a credit card.

[00:08:22] Speaker 01:
And as we state in our briefs, Mr. Coppola is an indigent individual who would be frequent to rely on things like new.

[00:08:29] Speaker 04:
I think you just said he has to go to the probation officer every time he uses a credit card.

[00:08:35] Speaker 04:
I had understood it to mean

[00:08:36] Speaker 04:
you know, every time he, you know, obtains a credit card, not for each individual card transaction.

[00:08:43] Speaker 01:
I don't think so because the way the condition is worded, and I can clarify this point on rebuttal, it says that every time somebody acquires a new debt that he has to provide it, so I imagine each time

[00:08:53] Speaker 01:
you make a purchase on a credit card, you're doing it against credit.

[00:08:56] Speaker 01:
It's funds that you don't have.

[00:08:57] Speaker 01:
So my understanding is that that would require reporting to probation, and that's the understanding the Second Circuit has in the cases we cited in our reply brief.

[00:09:07] Speaker 00:
Just quickly, if we were to construe it and make it clear that we construe that term to relate to acquiring a new credit card, a new line of credit, would you have a problem?

[00:09:16] Speaker 01:
Yes, Your Honor.

[00:09:17] Speaker 01:
I think that condition would be better, but it's still unjustified on this record in light of the other conditions.

[00:09:21] Speaker 00:
You don't have very much time.

[00:09:22] Speaker 00:
I got your answer.

[00:09:23] Speaker 00:
Forgive me for interrupting, but I want to make sure you have a chance to turn to the last condition you wanted to challenge.

[00:09:28] Speaker 01:
Yeah, very briefly, Your Honor.

[00:09:29] Speaker 01:
So there is no evidence in this record that access to adult pornography, that portion of the condition, has any relevance to rehabilitation, past offenses, or treatment concerns here.

[00:09:40] Speaker 00:
Why not?

[00:09:41] Speaker 01:
Because there is no evidence in the record that he has ever even accessed adult pornography.

[00:09:45] Speaker 01:
So at least eight other circuits have emphasized you need specific evidence in order to justify it.

[00:09:50] Speaker 03:
So the district court at ER 30, when it said,

[00:09:53] Speaker 03:
What concerns me is the more recent stuff.

[00:09:56] Speaker 03:
I have an allegation of improper conduct, exposing himself, masturbating, conviction for lewd behavior, that there's no relationship between an adult pornography condition and those acts.

[00:10:08] Speaker 01:
No, Your Honor, because at least eight other circuits have said even in cases involving sex offenses, you need evidence specific to adult pornography in order to justify it.

[00:10:17] Speaker 01:
And we cite those cases in our brief.

[00:10:19] Speaker 01:
And the probation officers assertions otherwise were insufficient to justify the condition.

[00:10:23] Speaker 01:
I see that I'm over time.

[00:10:25] Speaker 00:
You are.

[00:10:25] Speaker 00:
We'll give you another minute when you come back.

[00:10:27] Speaker 00:
So you have some rebuttal time.

[00:10:29] Speaker 01:
OK.

[00:10:29] Speaker 00:
Thank you, Your Honor.

[00:10:30] Speaker 00:
You bet.

[00:10:38] Speaker 02:
Good morning, Your Honors.

[00:10:39] Speaker 02:
May it please the Court.

[00:10:40] Speaker 02:
I am AUSA Jim Feng.

[00:10:41] Speaker 02:
I represent the United States of America.

[00:10:46] Speaker 02:
First, I don't agree with defense that the lack of notice defense is valid in this case, given the fact that the record cannot be any more clear on this, that defendant waived that argument

[00:11:01] Speaker 02:
specifically when the district court asked him whether or not he wanted to proceed with his replication proceedings.

[00:11:06] Speaker 04:
Well, he waived it at the first hearing, right?

[00:11:10] Speaker 04:
And then we, he waived it at the first hearing, and then we vacated the judgment that was imposed after that hearing.

[00:11:16] Speaker 04:
And on remand, the district court said, in reference to this argument, all those are incorporated by reference, so they're preserved.

[00:11:24] Speaker 04:
If there's any question about that, they're preserved for appeal.

[00:11:27] Speaker 04:
I'll say that for the Ninth Circuit's benefit.

[00:11:30] Speaker 04:
Do you think that's not enough to preserve the argument?

[00:11:35] Speaker 02:
The government construes the district court's statement there as that the record before the first appeal was preserved because there's a question whether or not after the remand, whether or not what the district court decided before the first appeal will still be relevant or valid for the second appeal.

[00:11:55] Speaker 02:
So the government read that as the district court stating

[00:12:00] Speaker 02:
Everything I've done before the first appeal is still valid.

[00:12:04] Speaker 02:
It's still what my ruling is now that a case has been remanded.

[00:12:08] Speaker 02:
So therefore, everything that happened before still applies here.

[00:12:12] Speaker 02:
And I want to point out that right before the district court made that statement, defendant had misstated that we understood you denied that motion last time, which in this case never happened because the motion was never brought.

[00:12:25] Speaker 00:
what if it wasn't waived, counsel?

[00:12:27] Speaker 00:
I think we understand this part of the record, and it's thoroughly brief.

[00:12:31] Speaker 00:
Can you tell us, what is your position if the argument wasn't waived?

[00:12:34] Speaker 02:
If it wasn't waived, I do believe that a lot of the evidence that the defendant points to is that he had prior notice somehow that his supervisory release sentence has expired as dubious as best.

[00:12:46] Speaker 02:
For example, he points out that there was two words in his second PSR that said a case expired as evidence that he

[00:12:53] Speaker 02:
probation somehow told him that his supervisor lease sentence had expired for the first case.

[00:12:58] Speaker 02:
But if you examine the context of the two cases, you realize that that's a dubious argument because one, he committed his second, the crime charge in the second case before the custodial sentence in the first case has expired.

[00:13:13] Speaker 02:
So the district wanted to know whether or not there was any portion of the first sentence that was still remained so that it can decide whether or not the second sentence is to be consecutive concurrent.

[00:13:22] Speaker 02:
That's why those two words were in the PSR.

[00:13:25] Speaker 02:
By the time supervised release for the first case hasn't even started because defendant has never been released.

[00:13:31] Speaker 02:
So for him to say that those two words somehow indicated to him that supervised release had expired is in government's position that it's

[00:13:42] Speaker 02:
essentially makes no sense.

[00:13:44] Speaker 02:
He should have known that, at that time anyway, that there was, that those two words meant that his custodial sentence expired, not his expiry release, had expired.

[00:13:55] Speaker 02:
As for his second argument that the subsequent revocation in the second case somehow informed him that

[00:14:10] Speaker 02:
the supervisor lease for his first case had expired.

[00:14:14] Speaker 02:
I think that we are treading on dangerous grounds there because essentially we're saying whatever a defendant says.

[00:14:20] Speaker 02:
He believes whether or not his revocation expire is now the dispositive issue whenever this issue comes up.

[00:14:29] Speaker 02:
The dispositive evidence, what is this you're talking about?

[00:14:31] Speaker 02:
So any defendant can then just feign, oh, I don't remember that my supervisor release is still valid.

[00:14:37] Speaker 00:
Well, he's not just feigning anything.

[00:14:39] Speaker 00:
We do have the writing of the written indication on the PSR.

[00:14:43] Speaker 00:
That may be incorrect, but what about, let's say it is.

[00:14:45] Speaker 00:
What if the probation made a mistake?

[00:14:48] Speaker 00:
Sometimes that happens with time accounting.

[00:14:49] Speaker 00:
Still a judgment of the court.

[00:14:52] Speaker 02:
Well, I do want to make a point.

[00:14:54] Speaker 02:
Judge Miller has said that the US Attorney's Office made a mistake.

[00:14:58] Speaker 02:
I want to point out that probation violation is not initiated by the US Attorney's Office.

[00:15:04] Speaker 00:
It doesn't matter who made the mistake.

[00:15:06] Speaker 00:
People are human, and mistakes are made.

[00:15:08] Speaker 00:
And in this case, there's some sort of a cryptic notation on a PSR.

[00:15:14] Speaker 02:
Well, as I explained to PSR, I believe that that argument to be dubious because defendants should have known at that time that those two words does not mean... Suppose the probation office had sent him a letter and just said, you know, congratulations, you're now done with supervision, you know, good luck to you.

[00:15:31] Speaker 04:
Would that make a difference?

[00:15:34] Speaker 04:
That would make a difference, but in this case, as a government argument... So you think a letter like that would...

[00:15:41] Speaker 04:
even if it was erroneous and the term had not run, that would effectively terminate supervision?

[00:15:48] Speaker 02:
I don't believe that.

[00:15:49] Speaker 02:
That depends on the circumstances.

[00:15:51] Speaker 02:
In this particular case, the circumstances wasn't developed.

[00:15:53] Speaker 02:
We don't know what the probation officer did.

[00:15:55] Speaker 00:
I think you're missing the point.

[00:15:56] Speaker 00:
It's an important one to engage in.

[00:15:58] Speaker 00:
We're talking about judgment entered by a court.

[00:16:02] Speaker 00:
How would probation have any ability to, mistakenly or not, deem it satisfied?

[00:16:08] Speaker 02:
I agree with you, Your Honor.

[00:16:10] Speaker 02:
As I say, whether or not

[00:16:14] Speaker 02:
The defendant's knowledge in this case, that's what I'm trying to say.

[00:16:17] Speaker 02:
The defendant's opinion, knowledge, or whatever regarding whether or not he believes that he supervised release still remains in his case is irrelevant.

[00:16:29] Speaker 02:
It should not be based on the defendant's knowledge.

[00:16:33] Speaker 02:
In this particular case, maybe he did know that supervised release was still valid, but he just, hey, I didn't get violated.

[00:16:40] Speaker 02:
Great.

[00:16:41] Speaker 00:
Do you want to turn to the arguments about the merits of the individual conditions?

[00:16:49] Speaker 02:
Well, I'll address the debt condition first.

[00:16:50] Speaker 02:
I think Judge Bennett was correct that there is a lot of history and evidence in the record that the defendant has a gambling problem.

[00:16:57] Speaker 02:
And I do believe that is sufficient in this particular case for the district court to find that, hey, look, all of your histories suggest that your gambling problem will cause you to commit crimes.

[00:17:09] Speaker 03:
Your counsel, getting to a question that Judge Christen asked your friend,

[00:17:12] Speaker 03:
Does the debt provision here cover getting a new credit card or does it cover going to the Safeway or the subway and buying some groceries or a sandwich?

[00:17:26] Speaker 02:
As far as I know, I have never seen a defendant being violated simply because he used an existing credit card to charge.

[00:17:33] Speaker 03:
I don't think that was quite Judge Kristen's question, but let me ask the same question she asked her friend, but to you.

[00:17:41] Speaker 03:
Would the government have any problem with our saying and making it clear that the special condition that was imposed does not cover using a credit card as opposed to getting a new credit card?

[00:17:55] Speaker 02:
The government has no problem with that.

[00:17:57] Speaker 02:
I think that's basically the practice anyway, so.

[00:18:00] Speaker 00:
What about the condition that we're loosely describing as access to adults?

[00:18:04] Speaker 00:
I think he said pornography, sexually explicit materials.

[00:18:07] Speaker 00:
What about that?

[00:18:08] Speaker 02:
Well, the defendant actually challenged more than just that one condition.

[00:18:11] Speaker 02:
He challenged multiple conditions related to it.

[00:18:13] Speaker 00:
We understand that, counsel, but if you could recall, I'm just calling your attention to that one, because that's the one he's addressing today.

[00:18:19] Speaker 02:
As the government stated in the brief, that all of the conditions that he's challenging related to his sexual or sexually offensive conduct is related as a district court.

[00:18:29] Speaker 02:
All the conditions are tied together to make sure, well, at least to mitigate the risk a defendant might commit a sexual offense in the future.

[00:18:38] Speaker 02:
Here, I mean, I trust this court to understand that defendant did

[00:18:44] Speaker 02:
commit sexually offensive conduct.

[00:18:46] Speaker 02:
He exposed himself in public to two women and then also masturbated in public.

[00:18:51] Speaker 00:
One of the conditions is that he have mental health screening and he objected to that also because he said he's done that before and of course it's been a long time.

[00:18:58] Speaker 00:
So is it the case that the way, do you read this, to require that he have that kind of screening again, follow the terms of counseling if it is

[00:19:08] Speaker 00:
you know, ordered and that the probation officer has the ability to alter some of these conditions depending on the outcome of that counseling or screening?

[00:19:16] Speaker 02:
Well, first of all, I think the record indicates that the defendant may have had treatment prior, but he never completed it.

[00:19:22] Speaker 00:
So for him to say that he... If you could answer my question about what happens if he has that mental health screening.

[00:19:27] Speaker 00:
I'm not trying to give you a hard time, but I am trying to get the government's position on these questions.

[00:19:31] Speaker 00:
If he has that screening and counseling,

[00:19:34] Speaker 00:
Do these other, some of these other conditions depend upon the outcome of the screening and counseling?

[00:19:40] Speaker 02:
Which condition are you referring to, Your Honor?

[00:19:42] Speaker 02:
Like the sex, the prohibition, pro, pornography prohibition?

[00:19:46] Speaker 00:
We can take up that one, yes.

[00:19:47] Speaker 00:
What about that one?

[00:19:48] Speaker 02:
I think the district court has left that to the probation officer.

[00:19:52] Speaker 02:
I understand the mental health one.

[00:19:54] Speaker 02:
He, he, he stated on the record that if the, the counselor

[00:19:58] Speaker 02:
after you had the evaluation determines that your mental health evaluation and treatment is no longer necessary.

[00:20:06] Speaker 02:
You can move to have that condition moved.

[00:20:08] Speaker 02:
As for the prohibition, I think it's pretty clear that defendant's actions in the past, not just the recent one, he also has another indecent exposure conviction in his record a long time ago.

[00:20:19] Speaker 02:
So I think there's a sufficient record that establish that defendant does have a problem.

[00:20:24] Speaker 02:
with sexually offensive contact so that I think that it needs longer evaluation.

[00:20:29] Speaker 02:
Obviously, any condition can be, the defendant can move to strike any condition in the future if he chooses that he no longer needs those conditions.

[00:20:38] Speaker 00:
All right, just one last question in the few seconds remaining.

[00:20:42] Speaker 00:
Is it the government's position that

[00:20:46] Speaker 00:
that when he submits, if he's asked to submit to lie detector, polygraph, that he's entitled to take the Fifth Amendment privilege?

[00:20:54] Speaker 02:
Yes, Your Honor.

[00:20:55] Speaker 00:
Thank you.

[00:20:55] Speaker 00:
I don't have any other questions, Judge Miller?

[00:20:57] Speaker 00:
Judge Bennett?

[00:20:58] Speaker 00:
Okay, that's all the questions for the government.

[00:20:59] Speaker 00:
Thank you.

[00:20:59] Speaker 00:
Thank you very much for your patience with our questions.

[00:21:06] Speaker 01:
I first want to follow up on Judge Miller's point about new credit charges.

[00:21:09] Speaker 01:
So if you read special condition three, it says you must not incur new credit charges or open additional lines of credit without the approval of the probation officer.

[00:21:19] Speaker 01:
This is that excerpt of record six.

[00:21:21] Speaker 01:
So I think it makes clear that the plain text of the condition covers both charges on a credit card and opening new lines of credit.

[00:21:27] Speaker 00:
credit it did not because we we we make it clear that that does not seem to be a workable condition if if that it were the case I guess you've taken the position you'd still object we'd still have a problem not as big of a problem but if you ordered the first clause of the condition stricken I think that would at least improve the condition but we maintain that other conditions are sufficient what is your best thank you what is your best shot at convincing us that the charges your clients been convicted of don't relate to

[00:21:54] Speaker 00:
conduct that would trigger the restriction regarding access to adult pornography.

[00:22:00] Speaker 01:
So I would point to the other circuit court cases that we've cited in our briefs that say that even in sex offense cases, adult pornography prohibitions are not necessarily justified, one, because the guidelines don't recommend it for this class of cases, and two, because you still need individualized evidence that the defendant has a problem with pornography.

[00:22:19] Speaker 01:
And I would say United States versus Canfield is probably the best case.

[00:22:21] Speaker 00:
You mean individualized evidence, which is what you just said, or do you mean individualized findings?

[00:22:25] Speaker 01:
So you need an individualized connection either to the defendant's rehabilitation, the prior offense conduct, or something in his history.

[00:22:32] Speaker 01:
But here, there was- But you're not telling me.

[00:22:34] Speaker 00:
And just to be really clear, I'm using that term advisedly.

[00:22:36] Speaker 00:
intentionally, you're not taking the position that the district court's imposition of this condition fails for lack of the requisite finding?

[00:22:47] Speaker 01:
So I don't know if finding is the appropriate term or evidence or something like that, but the district court needs a rationale that is specific that looks to record evidence that justifies condition.

[00:22:58] Speaker 01:
I hope that's an answer to your question.

[00:22:59] Speaker 00:
I think it is, and I appreciate.

[00:23:00] Speaker 00:
Let me just see if we have any other questions.

[00:23:02] Speaker 00:
No, it doesn't.

[00:23:02] Speaker 00:
Thank you all both very much for your arguments.

[00:23:05] Speaker 00:
We'll take that matter under advisement and go on to the next case on the calendar