[00:00:00] Speaker 03: Good morning. [00:00:01] Speaker 03: May it please the court, Darrell Mondu for Mr. Joshua Merritt. [00:00:05] Speaker 03: And I'm before you today because Mr. Merritt would like to be able to have supervised contact with his nieces when they come to visit from Texas. [00:00:16] Speaker 03: And I'm fully aware that judges have wide discretion in imposing or not conditions of supervised release. [00:00:31] Speaker 03: In this case, as in probably all cases, they're written by probation. [00:00:35] Speaker 03: And in this particular case, the probation officer disregarded [00:00:43] Speaker 03: the psychosexual evaluator's recommendation that Mr. Merrick not have any unsupervised release. [00:00:54] Speaker 03: It went in as no comment. [00:00:55] Speaker 04: And that's not binding in any way. [00:00:56] Speaker 04: That's not part of your argument, right? [00:00:59] Speaker 04: Say that again? [00:01:00] Speaker 04: It's certainly not a binding recommendation. [00:01:01] Speaker 04: That's not part of your argument. [00:01:03] Speaker 03: It's not binding, no. [00:01:04] Speaker 03: Right. [00:01:06] Speaker 03: OK. [00:01:06] Speaker 03: But even though there is record [00:01:14] Speaker 03: support for some of the things that Mr. Merritt was and did. [00:01:20] Speaker 03: For example, at trial, blaming his younger brother for the child pornography. [00:01:27] Speaker 03: That was not a very rational defense. [00:01:32] Speaker 03: His inability to sign a plea agreement because he didn't want to lose his identity. [00:01:40] Speaker 03: The expert did note some [00:01:44] Speaker 03: mental issues. [00:01:47] Speaker 04: Could I zero in on the, I think your argument that you started with has to do with the condition 12 about not being in the company or having contact with children you know are under the age of 18? [00:01:57] Speaker 04: Correct. [00:01:59] Speaker 04: Except your own children. [00:02:00] Speaker 04: So it does go on to say what contact means. [00:02:04] Speaker 04: And my first reaction was, well, can he go to the grocery store? [00:02:10] Speaker 04: How far away does he have to be from children who are obviously under the age of 18? [00:02:14] Speaker 04: And I'm not sure about that. [00:02:19] Speaker 04: But I'm also not sure about what the judge meant when he said that this is freely modifiable. [00:02:26] Speaker 04: It's always the case you can come and file a motion to modify. [00:02:29] Speaker 04: So could you enlighten us? [00:02:31] Speaker 03: Well, he could, but, um, Mr. Merrick could file the motion to modify, um, and his behavior while on pre-release between the first and second trials and, and he's actually on supervised release now, uh, he's been released from BOP custody, the facility. [00:02:54] Speaker 03: Um, he's had no violations whatsoever. [00:02:57] Speaker 03: But he also hasn't found a job, so he really doesn't even much leave his house. [00:03:04] Speaker 03: I'm not saying he doesn't need to have more specifics on contact. [00:03:08] Speaker 04: Well, maybe I should ask more directly, how should this read? [00:03:11] Speaker 04: Because I'm sure you're not arguing that the court erred by having a no contact provision. [00:03:18] Speaker 04: How could it be amended? [00:03:20] Speaker 04: How do you think it should read? [00:03:21] Speaker 03: Yes. [00:03:22] Speaker 03: Yes. [00:03:22] Speaker 03: I think it should have probation, the probation exception, where the probation officer gets advance notice of who he would like to be in contact with. [00:03:34] Speaker 03: But he's never indicated to me it's anybody else other than his nieces. [00:03:44] Speaker 03: approval by the children's parents in advance of ever going to a family function. [00:03:52] Speaker 03: Now, as far as the no contact is rather broad and it appears that [00:04:03] Speaker 03: If he ever needed to have that part extended beyond his nieces, he could do so. [00:04:08] Speaker 03: But his main issue right now is when his sister comes from Texas, he cannot visit. [00:04:19] Speaker 01: Right, but why not take it up with the district court? [00:04:23] Speaker 03: I could, well. [00:04:27] Speaker 01: Let me back up. [00:04:30] Speaker 01: We don't have any cases [00:04:32] Speaker 01: on point that I can find that are directly say you can't have this kind of provision in the supervised release. [00:04:41] Speaker 01: We have some that suggest it, but nothing that says it's on point. [00:04:45] Speaker 01: You didn't object or your trial counsel did not object at the time of sentencing, so we're looking at plain error, and the district judge has not had the opportunity to consider this argument you're making today, correct? [00:04:58] Speaker 03: Well, I believe the district judge could have indicated on the record, uh, specifically what his basis is for adopting. [00:05:08] Speaker 03: But there was no objection. [00:05:10] Speaker 02: There was no objection. [00:05:11] Speaker 03: So council objected somewhat in his pre-sentence objection to the PSR report. [00:05:20] Speaker 02: I read this and I kind of ended up where. [00:05:24] Speaker 02: Judge Thomas is asking you the judgment is at the end of 22. [00:05:28] Speaker 02: The brief gets submitted in 23. [00:05:33] Speaker 02: We're now in 24. [00:05:34] Speaker 02: And it just seems to me that while your request doesn't seem unreasonable on the face of it, but of course we don't have all the details, but on the face of it, why the district court wouldn't give that fair consideration, it just seems that on plain error review you have a [00:05:55] Speaker 02: big hill to climb, whereas with the district court, it would be freely modified, so to speak. [00:06:02] Speaker 03: A couple of reasons, Your Honor. [00:06:04] Speaker 03: Number one, I'm not on the CJA panel for district court work, so I would probably have to refer that back to the federal defenders. [00:06:13] Speaker 02: Right. [00:06:13] Speaker 02: Second- And that's not a problem, is it? [00:06:17] Speaker 02: I mean, I recognize you're here appointed on appeal, but [00:06:23] Speaker 02: It's the same individual, the same court, the same conditions. [00:06:27] Speaker 02: So there's no legal barrier to referral back to counsel for the trial court, right? [00:06:34] Speaker 03: But I discussed it with Mr. Mayor, and he wanted me to pursue his appeal. [00:06:41] Speaker 02: OK, well, that's a good reason. [00:06:42] Speaker 03: I explained to him the procedural barrier, so to speak, of plain error. [00:06:50] Speaker 03: Even so, I do think that there is a case that talks about how the judge has to have something be explained enough on the record, and I'm not talking Montoya, I'm talking what he used to [00:07:13] Speaker 03: What facts? [00:07:14] Speaker 03: What about Mr. Merritt generated him to accept the probation one and ignore the expert's opinion? [00:07:24] Speaker 03: And so if I was to explore that on appeal, I'd be putting words in the judge's mouth. [00:07:29] Speaker 03: I do not know. [00:07:30] Speaker 03: I could not tell what formed all of it, part of it, how much this weighed, how much that weighed. [00:07:38] Speaker 01: And that would even be- Right, but nobody really argued that. [00:07:42] Speaker 01: I'm looking at the sentencing memorandum you just referenced. [00:07:45] Speaker 01: I don't see anything in it. [00:07:47] Speaker 01: So district judges, when they're imposing what they believe are standard conditions, don't really elaborate a lot. [00:07:55] Speaker 03: Well, this is a special condition, and I believe that maybe if he had articulated something, counsel would have spoke up. [00:08:04] Speaker 03: Yes, he had an obligation to speak up irregardless. [00:08:08] Speaker 03: This is true. [00:08:09] Speaker 03: But to do a 2255 ineffective, I'm not sure what the judge, primarily. [00:08:18] Speaker 03: I have an inkling that it was because he was alleged to have touched his brother. [00:08:25] Speaker 01: Although the district court discounted that. [00:08:28] Speaker 01: He basically said, I know it's disputed, I didn't take it into consideration. [00:08:33] Speaker 03: But the government at sentencing argued that, and it was because of the brother's denial, the government argued that, well, adults very rarely admit it when they come to court of sexual abuse when they're younger. [00:08:48] Speaker 03: But this boy was interviewed by Child Protective Services of some nature in Tucson. [00:08:57] Speaker 03: denied it then at 11. [00:08:59] Speaker 03: Would you like to save a minute for rebuttal? [00:09:01] Speaker 03: Yes. [00:09:02] Speaker 04: Thank you. [00:09:03] Speaker 04: You bet. [00:09:10] Speaker 00: May it please the court. [00:09:11] Speaker 00: Good morning. [00:09:12] Speaker 00: My name is Craig Russell, appearing on behalf of the United States. [00:09:15] Speaker 00: There are actually two supervised release conditions at issue in this case, addressing first the computer condition. [00:09:23] Speaker 00: We recently filed a Rule 28A letter agreeing to a limited remand because after sentencing in this case, the District of Arizona adopted a new computer condition. [00:09:31] Speaker 00: For that reason, we think it's fair to [00:09:33] Speaker 00: have a limited remand in order for the district court to impose that new condition, which was set forth in our 20HA letter. [00:09:40] Speaker 00: Addressing the condition involving no contact with children, that condition was justified and reasonable in scope. [00:09:49] Speaker 00: there was substantial evidence in the records supporting the district court's imposition of that condition. [00:09:56] Speaker 00: In the PSR, the probation office laid out the justification for that condition, which was the defendant's sexual interest in children and child pornography, a preliminary diagnosis of a pedophilic disorder, and the admission about the incident that was just discussed here before the court a moment ago involving an 11-year-old relative. [00:10:14] Speaker 00: This condition met the standard in the supervised release statute in that it was reasonably related to deterrence, rehabilitation, and protection of the public. [00:10:23] Speaker 00: And also, it excluded the defendant's own children, so it's reasonable in scope and no more restrictive than necessary. [00:10:29] Speaker 00: And I think this court hit on another point that I want to make that I think is very important, is that we are operating on a plain error review here. [00:10:37] Speaker 00: The defendant is perfectly allowed to go back into district court and seek a motion to modify this condition, where he can present evidence and have. [00:10:47] Speaker 04: And the trial court in this case invited him to do that, quite overtly. [00:10:51] Speaker 00: I think that's correct, Your Honor. [00:10:53] Speaker 00: And so there's, I think for that reason we can't say there's plain error, because he can go back in and seek a modification. [00:10:59] Speaker 00: If the nieces want to come from Texas to visit and he wants permission, he can put that evidence in front of the district court who is equipped to make that decision. [00:11:06] Speaker 01: So would the United States oppose a modification of a restriction so we can see his? [00:11:14] Speaker 00: I don't think I could take a position at this point without seeing the evidence, Your Honor. [00:11:17] Speaker 00: I think standing here without any evidence, we would support the application of the condition as it stands now. [00:11:23] Speaker 00: But I think the trial attorney in the case would have to make an analysis of that. [00:11:27] Speaker 02: But it sounds like the United States might be amenable to a case-by-case determination. [00:11:33] Speaker 00: I think that's correct, Your Honor, and I think that's consistent with the case law, absolutely. [00:11:39] Speaker 00: Moving over to the other issue with respect to this condition is the procedural error claim. [00:11:45] Speaker 00: And the district court did not procedurally err in this case because the relationship at issue under this court's case law does not necessarily constitute a close family relationship. [00:11:56] Speaker 00: Generally speaking, the general rules of district court does not need to state its reasons. [00:12:00] Speaker 00: to impose a condition of supervised release. [00:12:03] Speaker 00: As long as those reasons are apparent from the record, of course, the exception is when the condition prohibits or impinges on a close family relationship, which this court has recognized constitutes a particularly significant liberty interest. [00:12:17] Speaker 00: Through the years, this court has set forth a number of opinions outlining the contours of what constitutes a close family relationship in this context. [00:12:25] Speaker 00: We know from the Napulu case in 2010 and Wolf's Child in 2012 that [00:12:31] Speaker 00: life partners, spouses, defendants' own children constitute that type of liberty interest that requires the district court to [00:12:44] Speaker 00: impose or use the special protections for the defendant that I think counsel was talking about here a moment ago where the district court would be required to do an individualized review with the relationship and make special findings so this court could undertake meaningful appellate review. [00:12:59] Speaker 00: However, more recently in the Magdaleno case in 2020, this court set some outer boundaries on what [00:13:07] Speaker 00: constitutes a close family relationship. [00:13:09] Speaker 00: And in that case, the relationship at issue involved brothers, sisters, half brothers and sisters, and this court said absent compelling evidence that that type of relationship is not going to require the district court to undertake these special protections. [00:13:24] Speaker 00: So applying these cases to the defendant, we know that the relationship here with his nieces, absent evidence, which we don't have in this case because there was no objection, that relationship does not require the special protections that this court [00:13:36] Speaker 00: um, set forth in the pool and wolf child. [00:13:40] Speaker 00: And so for that reason, we don't believe there's procedural error here by the district court because that relationship fell outside. [00:13:46] Speaker 00: And again, as I mentioned before, the defendant is perfectly capable of going back in to seek a modification of this condition if he wants. [00:13:55] Speaker 00: Unless this court has any questions, we're simply asking to uphold the condition related to children and impose a limited remand on the computer condition so that the district court can impose the new computer condition being used in the District of Arizona. [00:14:12] Speaker 04: We understand. [00:14:12] Speaker 04: Thank you, counsel. [00:14:13] Speaker 00: Thank you. [00:14:14] Speaker 04: Appreciate your advocacy. [00:14:16] Speaker 04: You have about a little over a minute left for rebuttal. [00:14:19] Speaker 03: Yes, I certainly agree with the remand on the computer issue. [00:14:25] Speaker 03: And I ask that this court vacate the supervised release and send it back for rehearing in district court. [00:14:34] Speaker 03: And it's always struck me that if he had children, in the supervised release language, it says, except for his children, which he does not have. [00:14:48] Speaker 03: But if he did, it's the same man that we're prohibiting, that they're prohibiting from contact with even his nieces. [00:14:56] Speaker 03: Nothing changes about the defendant other than if he had his own children, he'd be allowed to see them. [00:15:04] Speaker 03: And I think that's an important point because that provision affects [00:15:14] Speaker 03: the man, the individual, the defendant, as the computer one just affects his work and his little bit of lifestyle. [00:15:23] Speaker 03: So I ask that you vacate it and remand it with the computer. [00:15:28] Speaker 04: Thank you, counsel. [00:15:29] Speaker 04: We'll take that case under advisement and go on to the next case on the calendar.