[00:00:33] Speaker 00:
I will do my best to watch my time.

[00:00:36] Speaker 00:
Remand for resentencing is appropriate in this case for multiple reasons.

[00:00:41] Speaker 00:
Here the government agrees to remand for Montoya and Nishida errors.

[00:01:57] Speaker 00:
And I also wanted to address Your Honor's question from previous arguments as to this issue about prematurely addressing conditions of release.

[00:02:08] Speaker 00:
Under United States v. Gross, the illegality is not a proper grounds for modification.

[00:02:14] Speaker 00:
So here we need to raise these – the fact that these conditions are unconstitutional here on draft

[00:02:25] Speaker 00:
specific challenges that they're vague or overbroad.

[00:02:27] Speaker 00:
We need to do that here before your honors.

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So as to the special conditions of supervision, Mr. Ely challenged multiple, but the government only disputes two.

[00:02:40] Speaker 00:
Those are special conditions 14 and special conditions 16, both of which involve computer monitoring.

[00:03:24] Speaker 02:
Because in the prior case, the language was so broad that it would reach statutes in case law.

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That isn't the case here.

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So what is it?

[00:03:35] Speaker 02:
What's the factual basis for asking for a carve-out for that?

[00:03:40] Speaker 00:
I assure you, Your Honor, there's a concern that there might be a need to review, for example, even evidence for a habeas petition or something of that nature.

[00:04:16] Speaker 02:
no your honor it's contraband he's not allowed to have child pornography i don't understand you have no factual basis to suggest that he needs to review that in order to bring a collateral challenge that's the only thing that condition would bar him i don't see how it's overpriced whether the government conceded or not it's not overpriced explain what am i missing in a collateral attack could happen at any time right so he'd be able to keep the stuff for decades

[00:04:46] Speaker 00:
I'm not aware as to how that would work exactly, Your Honor, but here in this case, I think there's also a concern about when we're talking about the

[00:05:17] Speaker 00:
or other means of sexually explicit conduct involving children or actual sexually explicit conduct involving adults and so it's possible that that conduct or its descriptions could fall within that language but this condition is also problematic for another reason that the government does not address which is that it does not match the oral pronouncement that was made at sentencing

[00:05:58] Speaker 00:
any future appeals.

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For that reason, remand is also appropriate.

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And if there's any...

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be able to present a legal challenge.

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I mean, it's not like he's going to successfully argue or he could try to argue, oh, it's not really pornography.

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That's not going to be the subject of a legal challenge, collateral challenge.

[00:07:02] Speaker 02:
So what is?

[00:07:05] Speaker 00:
And so I can't speak to what the arguments would be in the collateral challenge, apart from the fact that this language about sexually explicit conduct

[00:07:17] Speaker 00:
could be read broadly to include anything that would describe these images as – for example, like I – The qualifier, though, you must not view or possess any visual depiction or any photograph.

[00:07:30] Speaker 01:
I mean, all that language at the front, that precatory language seems to limit it to just the actual porn, not the PSR, for example.

[00:07:46] Speaker 00:
Again, in this case, while that, even if we take it from the perspective of he's not permitted to have this for the purposes of collateral attack and that it doesn't extend to any other documentation or things that he might need to review for preparing a collateral attack, we still have this discrepancy in the language

[00:08:23] Speaker 00:
when putting together a collateral attack.

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And this court's caseload and code is very clear on that, which is that he has a right to this materials necessary to preparing that.

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And unfortunately, I don't do collateral attack petitions myself, but it would be my understanding that this is something that is

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or appeal would be inhibited by his inability to actually have access to the pictures.

[00:10:05] Speaker 01:
want?

[00:10:08] Speaker 00:
To ensure that these conditions are not overbroad and that the probation officer can make sure that he is in compliance, but in a way that makes sense to him, that he's on notice as to what his- But doesn't want his child pornography?

[00:10:22] Speaker 00:
No, not in those words, Your Honor, no.

[00:10:24] Speaker 00:
But we want to make sure this is consistent with the court's precedent.

[00:10:27] Speaker 00:
And here, we provide in the 28-J letter a United States versus Benevento that's as helpful as a roadmap for this

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and that because it exempted materials necessary to and used for any future appeals for sex offender treatment.

[00:10:59] Speaker 00:
So I think that that language is what

[00:11:17] Speaker 02:
I'm also going to give you time to address the computer monitoring issues, which is what you wanted to start with, so why don't you address that, please.

[00:11:24] Speaker 00:
Yes, Your Honor, and I'll do that briefly.

[00:11:27] Speaker 00:
So here, special condition 14 is vague and overbroad because it provides blanking language that computer monitoring should be installed.

[00:11:40] Speaker 00:
zone are clear that blanket monitoring is improper.

[00:11:45] Speaker 00:
There needs to be some sort of limitation as to the kind or degree of monitoring permitted.

[00:11:51] Speaker 00:
And because that doesn't exist within this language, it needs to be remanded.

[00:12:09] Speaker 02:
being referenced refers to monitoring for the types of things that are discussed earlier in the sentence, which is visual depictions of sexually explicit conduct involving children.

[00:12:26] Speaker 00:
So this language that appears at the beginning of Special Condition 14 is addressing what kind of devices

[00:12:47] Speaker 02:
to have, it needs to have monitoring.

[00:12:50] Speaker 02:
Isn't the logical reading of that, that the monitoring is to see whether it can – because it has the capacity to get the forbidden material, the monitoring is to look for the forbidden material.

[00:13:03] Speaker 02:
It seems built in already.

[00:13:06] Speaker 01:
That's what 16 actually says.

[00:13:08] Speaker 01:
It says it starts with to ensure compliance with the computer monitoring condition, which

[00:13:35] Speaker 02:
any prohibited data to determine whether there have been attempts to modify it.

[00:13:44] Speaker 02:
It seems to tie into the thing that the conditions say is forbidden.

[00:13:49] Speaker 00:
So I disagree, Your Honors.

[00:13:51] Speaker 00:
If we look at Special Condition 14, it's saying that these are defining

[00:14:03] Speaker 00:
is helpful because it describes all the different types of monitoring software that were available at least at the time that the court issued that decision.

[00:14:10] Speaker 00:
There it describes that blanket monitoring software is overbought because it could track every use, the entire activity of cell phones, computer usage, and instances some monitoring software takes snapshots of

[00:14:36] Speaker 00:
that somehow limits that monitoring software to the degree and kind.

[00:14:41] Speaker 00:
In KeynZone, it was something such as internet activity.

[00:14:45] Speaker 00:
And here, turning to special condition 16 and whether that also addresses your honor's concern, the government points to this prohibited data language, but that is only applied to the prohibited data prior to the installation of the monitoring software.

[00:15:00] Speaker 00:
So here, I would submit that that doesn't extend

[00:15:26] Speaker 00:
submit that there needs to be a limitation as to where the software can search and what it's looking for.

[00:15:34] Speaker 00:
And so here, even if Your Honors read Special Condition 14 more narrowly than we do as to prohibited materials, there still needs to be a limit on where it can search for those prohibited materials, which this Court has already spoken as to that in the United States versus Keynes Zone in saying that internet-related activity would be appropriate, especially in a case such as this.

[00:15:59] Speaker 00:
And I'm well over my time, Your Honors, but I would just also note for the term of supervision here, the term of supervision wasn't reasonable because in this case, the district court found that it saw differences in this case in comparison to other child pornography cases, and that finding cannot be reconciled with the maximum term.

[00:16:40] Speaker 01:
defense counsel, appellate counsel.

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positions.

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How is that possible?

[00:17:28] Speaker 01:
I do believe that the other counsel have submitted a letter and have changed the government's position on that.

[00:17:34] Speaker 02:
Based on an unpublished decision, and you might have gathered from the tenor of this, which we may not necessarily agree with, I don't understand how one U.S.

[00:17:45] Speaker 02:
Attorney's office can submit two red briefs on the same issue and take inconsistent positions that

[00:17:57] Speaker 01:
I understand what you're saying, but obviously, like I said, the government's position now is consistent.

[00:18:02] Speaker 02:
And the government obviously... But you can see that he should have a carve-out to possess child pornography for purposes of a collateral challenge.

[00:18:12] Speaker 02:
That's the position of the government of the United States in this Court.

[00:18:15] Speaker 01:
Well, Your Honor, I believe the reason why we can

[00:18:44] Speaker 02:
is the child porn.

[00:18:46] Speaker 02:
Why is the government conceding that he has a right to possess child porn for purposes of a collateral challenge?

[00:18:53] Speaker 01:
Well, the second reason why the government is conceding is because the language that the district court has imposed already includes Carvel for appeals.

[00:19:01] Speaker 01:
They will be making no sense.

[00:19:03] Speaker 02:
So if they put in an erroneous condition, they should keep going the whole way.

[00:19:09] Speaker 02:
And the appeal is over.

[00:19:10] Speaker 02:
I mean, this is the appeal.

[00:19:12] Speaker 02:
He didn't get the material for the appeal.

[00:19:15] Speaker 02:
So, but the government thinks he should get back his stash of child porn so that he can have it for future reference for a collateral challenge.

[00:19:24] Speaker 01:
I don't agree with that's what the language says.

[00:19:26] Speaker 01:
The language says that Mr. Eli can have material for the purpose of appeal.

[00:19:33] Speaker 01:
And in this case, the government is conceding for a collateral challenge.

[00:19:36] Speaker 01:
So, I say the probation officer.

[00:19:38] Speaker 01:
The question is why?

[00:19:54] Speaker 02:
why the visual material

[00:20:28] Speaker 01:
approach, then, say, Benevento or Coke.

[00:20:31] Speaker 01:
But in practice, I think your Honor's concern can be addressed in practice.

[00:20:36] Speaker 01:
For example, let's say the probation officer finds prohibited material on defendant's computer.

[00:20:43] Speaker 01:
It's allowed to ask the defendant, why do you have these items on your computer?

[00:20:48] Speaker 01:
And given the fact that special condition 10, which only carves out for the purpose of appeal and perhaps only remand,

[00:21:05] Speaker 01:
So there's not a blanket convention to allow him to have child porn for, just because in case that I might need these for collateral challenger appeals, he has to show to the public race network, he has them for that purpose, because that's all the language of the condition

[00:21:36] Speaker 01:
This is crazy.

[00:21:38] Speaker 01:
I don't think that's the thing, right?

[00:21:39] Speaker 01:
I understand what your honors concerns are, but that's the underlying, the rise of the rationale I'm proposing.

[00:21:47] Speaker 01:
I see very, very little reason why a petitioner, a defendant will ever have this material, the vigil depiction of sexual activities for any purpose on appeal or collateral challenge.

[00:21:59] Speaker 01:
So I believe that in practice,

[00:22:02] Speaker 01:
does find that material on the defendant's computer, I believe 99.9 percent of the time, he can't justify it by saying that it is for appeal or collateral challenge because, like you said, I can't even see why you would have the visual material for appeal and collateral challenge.

[00:22:19] Speaker 01:
And I think the conditions, and I think under COPE and the government's position here is that we don't want the limit.

[00:22:25] Speaker 02:
But if it's 99.9 percent, as you just said, then the condition is not overbroad.

[00:22:51] Speaker 02:
appropriate matter, but it's not an overbroad condition if it can't seemingly conceivably ever apply.

[00:22:59] Speaker 01:
I understand, Your Honor, but we're bound by the language the district court has, in fact, imposed in this case, and it did carve out future appeals, and the government's position is that if it carved out... But the appeal, Cope itself points out why appeal is different from collateral challenge, because Cope said in an appeal you have counsel, and so everything can

[00:23:46] Speaker 01:
condition here.

[00:23:49] Speaker 01:
Do you want to address the other condition?

[00:23:51] Speaker 01:
Yes, Your Honor.

[00:23:51] Speaker 01:
I want to focus on the computer.

[00:23:54] Speaker 01:
I will be very brief on the computer monitoring and computer search condition because Your Honors have already raised many of the points I want to address.

[00:24:00] Speaker 01:
Here, like I said, as the brief mentioned that there are limitations that make some of the language

[00:24:16] Speaker 01:
prohibited data in this case which is child.

[00:25:14] Speaker 01:
in the district court, which had he raised a district court could have the opportunity to say, well, let me tighten up the language here a little bit.

[00:25:21] Speaker 01:
And he didn't.

[00:25:23] Speaker 01:
It's plain error.

[00:25:23] Speaker 01:
And to the fact that there might be ambiguity as to the

[00:25:39] Speaker 01:
back for revision.

[00:25:41] Speaker 01:
And second, I don't agree with opposing counsel's argument here.

[00:25:47] Speaker 01:
She focused very much on the method of monitoring, because special condition 14 is the monitoring part to ensure that defendant doesn't obtain prohibited material.

[00:25:59] Speaker 01:
But in this case, defendants wholesale

[00:26:10] Speaker 01:
like a way to circumvent it.

[00:26:12] Speaker 01:
It doesn't matter whether he gets it from the internet.

[00:26:15] Speaker 01:
It doesn't matter if a friend gets a USB drive containing child porn that he later puts on his computer.

[00:26:21] Speaker 01:
It doesn't matter if he goes to a public internet cafe, if such things still exist, to download pornography so they are by circumvent the monitoring software.

[00:26:32] Speaker 01:
And they later on put that, what he download onto his computer.

[00:26:36] Speaker 01:
And that's the problem here.

[00:26:38] Speaker 01:
The government believes

[00:26:42] Speaker 01:
monitoring because there are many, many ways in which Mr. Eli may obtain the material put on his device to arbitrarily limit the method of monitoring is essentially giving Mr. Eli ways to evade the condition that he can't possess adult and child-born period.

[00:27:00] Speaker 01:
We wouldn't, like Ayanna brought up the very good point of comparing this case to drugs, we wouldn't limit a probation

[00:27:20] Speaker 01:
Eli has many, many ways of obtaining prohibited data.

[00:27:24] Speaker 01:
So I don't agree with opposing counsel that somehow this court should carve out some kind of limitation as to the monitoring yourself, given that Mr. Eli has many, many ways of obtaining the prohibited data.

[00:27:38] Speaker 01:
Moving up briefly, I'd like to see if you all have any more questions about these two conditions.

[00:27:44] Speaker 01:
I'm moving briefly to the lifetime supervision.

[00:27:47] Speaker 01:
I actually have one minute.

[00:27:49] Speaker 01:
First and foremost, the district court here.

[00:27:52] Speaker 01:
You don't have one minute.

[00:27:54] Speaker 02:
You're in deficit.

[00:27:55] Speaker 02:
I'm sorry, Your Honor.

[00:27:57] Speaker 02:
Because we've taken up a lot of your time with questions.

[00:28:00] Speaker 01:
I'm sorry, Your Honor.

[00:28:03] Speaker 01:
The district court followed the Sentencing Commission's recommendation, which is that

[00:28:12] Speaker 01:
And this court in Apodaca essentially held that the Sentencing Commission's position is justified given that they have reviewed plenty of data in the past and conclude that lifetime supervision may be required for these individuals.

[00:28:44] Speaker 01:
provided that particular data that Alpha Deca requires.

[00:28:49] Speaker 01:
And furthermore, there are other facts in this case that this court has relied on to show that defendant may be at future arrest.

[00:28:55] Speaker 01:
For example, he admitted to the probation officer.

[00:29:14] Speaker 00:
Thank you, Your Honors.

[00:29:16] Speaker 00:
I do agree with the government that we need to look at the plain language of these special conditions.

[00:29:21] Speaker 00:
That's what the Court states in United States versus Nishida.

[00:29:24] Speaker 00:
When we look at the plain language of these conditions, they are vague or overbroad for the reasons we raised in our briefing.

[00:29:31] Speaker 00:
And I agree with Your Honor that these could be tailored to be more explicit on remand, because from our position,

[00:29:49] Speaker 00:
The court has stated that its case law has never approved monitoring all of its forms.

[00:30:01] Speaker 00:
There needs to be some limitation.

[00:30:05] Speaker 00:
And here, when we look at the plain language, given that the

[00:30:20] Speaker 00:
by the district court.

[00:30:23] Speaker 00:
Additionally, Your Honors, we do not dispute that the supervision term was within the guideline range.

[00:30:29] Speaker 00:
However, the district court's findings don't justify