[00:00:01] Speaker 03:
It's never happened before, so hopefully he'll be back.

[00:00:08] Speaker 03:
Go ahead and have a seat, I guess. Well, good morning. Oh, there he is. Sorry.

[00:00:20] Speaker 03:
The only person who's actually indispensable, and he's not here.

[00:00:23] Speaker 01:
I'm the only one with the gavel.

[00:00:25] Speaker 03:
All right. Go ahead and gavel us in. All right.

[00:00:29] Speaker 03:
All right, well, welcome to the Ninth Circuit. There's a little bit of a rocky start here.

[00:00:35] Speaker 03:
Judge Tallman and I are very pleased to welcome our newest colleague, Judge Tong, to his first oral argument, I think. So I don't know if you guys someday will be able to say that you presented the very first oral argument to the legendary Judge Tong at some point, so you should write this down in your memoirs.

[00:00:57] Speaker 03:
We have...

[00:00:59] Speaker 03:
We have several cases that have been submitted without argument this morning, and then we have, I think, three cases for argument.

[00:01:06] Speaker 03:
Our first case for argument is United States of America versus Bragg, and I believe, Mr. Crowley, are you going to start? All right. Yes. Please state your name and let us know how much time you want to try to reserve for rebuttal.

[00:01:24] Speaker 02:
I'd ask to reserve three minutes for rebuttal, please.

[00:01:27] Speaker 02:
You may proceed. Thank you. Thank you, and good morning. May it please the court. Your Honors, we contend here that the sex offender treatment ordered was not reasonably related to the sentencing statute factors as opposed to an order that would have only ordered general therapy and counseling. And when I was preparing for this argument, an analogy came to mind, which would be, say, as opposed to the pimping type of action that Mr. Bragg engaged in, if he was instead having a 17-year-old sell drugs for him and he was taking the money from the drug proceeds, maybe giving her a little bit and keeping the rest for himself, he would still have the same power and control dynamics.

[00:02:12] Speaker 02:
We would still have the issue of the person being a minor. And I would contend here that His actions, where there's no evidence before the lower court of sexual interest in this 17-year-old. Who fathered the child?

[00:02:29] Speaker 04:
For the underlying... She was pregnant, was she not? The 17-year-old?

[00:02:34] Speaker 04:
That he was running?

[00:02:35] Speaker 02:
I don't believe he... I am... I thought I read somewhere in the papers that... Yes, I think I know what you're thinking of. There was a revocation for a second pimping and pandering incident from 2024, 2023, where his girlfriend, who was an adult, ultimately had a child with Mr. Bragg. But the underlying victim in the original case that caused him to be on supervised release, I don't believe he's the father.

[00:03:04] Speaker 04:
But wasn't he arrested in Riverside County on charges of harassing a 13-year-old?

[00:03:13] Speaker 02:
In a state court case, yes.

[00:03:16] Speaker 04:
So I guess where I'm going with the questioning is why is it an abuse of discretion for the district court to conclude that he needs some type of sex offender counseling if he's pimping out underage women?

[00:03:30] Speaker 02:
It's the lack of personal sexual interest in or personal sexual actions.

[00:03:37] Speaker 04:
But he's promoting and aiding and abetting prostitution by minors.

[00:03:42] Speaker 04:
That's the concern, I think, that the district court had. And frankly, it's a concern that I share if I were the sentencing judge.

[00:03:50] Speaker 02:
The issue is where we have these generalized bases, such as the criminal history dating back to him being a minor himself, such as issues with his own mother not being present for his upbringing and being raised by uncles and fathers. and being abused and those such issues and where we have issues of him as the oral report from the probation officer said where he was psychopathic.

[00:04:23] Speaker 02:
My position is that those all indicate a need for that general treatment, but there's not something where he's on that level of needing sex offense specific treatment like somebody who's viewing child pornography.

[00:04:34] Speaker 04:
As I understood, the district court basically ordered whatever treatment the mental health professional recommended that would be helpful to him and that requires a psychosexual evaluation does it not and apparently that had not yet been completed at the time of sentencing do I understand the record correctly the I believe so

[00:04:59] Speaker 02:
Well, I'm sorry. At the time of the original sentencing, it had not been completed. But at the time of our revocation sentencing that's being challenged here, it had been.

[00:05:06] Speaker 04:
And what did the mental health professional recommend that he needed by way of treatment?

[00:05:13] Speaker 02:
They recommended that he continue with the sex offender treatment.

[00:05:18] Speaker 04:
Which consisted of what? Counseling? group counseling, individual one-on-one counseling.

[00:05:23] Speaker 02:
Well, the order, I don't, we didn't receive the actual report in the record, so the specifics are not there, but the court's order indicated physical testing, psychosexual testing, those kind of sex offender specific tests, and that's what we're after here with this objection and appeal is.

[00:05:46] Speaker 04:
I guess where I'm going with the questioning is the district judge is not clinical psychologist or psychiatrist. So what is improper about ordering the defendant to comply with whatever treatment a professional directs who is conducting the psychosexual evaluation? To me, that makes perfect sense. I'm trying to understand your position that somehow that amounts to error.

[00:06:14] Speaker 02:
Our conclusions from the report, as relayed by the probation officer, are that He's psychopathic. They don't inform them.

[00:06:22] Speaker 04:
That's a pretty serious diagnosis if that's what the mental health professional concluded, is it not?

[00:06:28] Speaker 02:
Yes, and we agree with generalized treatment and therapy being appropriate here and reasonably related to the sentencing factors.

[00:06:34] Speaker 04:
So are you arguing that the district court should have countered the recommendation of the mental health professional as to what treatment was appropriate for that diagnosis?

[00:06:48] Speaker 02:
Well, I argue, number one, that the district court should have reviewed the report.

[00:06:52] Speaker 04:
Well, we don't know that he didn't. It's just not in the record, right?

[00:06:57] Speaker 04:
The only thing the record shows is what probation recommended.

[00:07:02] Speaker 02:
Right. Yeah.

[00:07:05] Speaker 02:
I think you're right. I don't think the record has the judge saying, I did not review the report. Correct. So we don't know. Right.

[00:07:13] Speaker 04:
But then I go back to my earlier questioning about his criminal history. I mean, this guy is not a first-time offender. He's got a long rap sheet involving sexually deviant offenses.

[00:07:27] Speaker 02:
I think that's where I quibble with the court, and that's the point that distinguishes this from— Well, he's 30 years old, and he's never had a legitimate job.

[00:07:36] Speaker 04:
So where do you think he was making his money? I read it off the backs of these women. That's how he was making his money.

[00:07:42] Speaker 02:
Yes. Okay. Okay.

[00:07:45] Speaker 02:
I see why you draw that conclusion. But my point is that... The record supports that conclusion.

[00:07:51] Speaker 02:
My concern is that it's where we talk about this sex offender specific treatment with the specific physiological testing done with that. These are things that are geared towards people who personally have the interest in, personally have the sexual interest.

[00:08:05] Speaker 04:
So you do want the district judge to basically disagree with the recommendation of the mental health professional and what, designate a different type of treatment? How is the district court in a position to do that? We're not trained psychosexual evaluators.

[00:08:20] Speaker 02:
I think the district judge, based on the conclusions that were drawn of being psychopathic and knowing that he had not had sexual interest against any person, I think the district judge should have reviewed the report and then seen exactly why to be able to conclude that it did reasonably relate.

[00:08:40] Speaker 04:
You're asking us to speculate on the basis of unknown evidence and conclude the district court abused its discretion. Is that your position?

[00:08:49] Speaker 02:
I'm asking this court to remand it to the district court so that the district court can review the actual report that underlies these conclusions and ensure that it does reasonably relate.

[00:09:01] Speaker 04:
But on the basis of wholly speculative assumption that somehow that report is not going to substantiate the recommendation by the psychosexual evaluator.

[00:09:17] Speaker 02:
I don't know that it's speculative. It's more about having... Well, it has to be because you don't have the report and I don't have the report. Right, but the lack of report in the record, the lack of evidence before the court of the report indicates that there has not been...

[00:09:33] Speaker 02:
Record support for it reasonably relating to the sentencing factors.

[00:09:36] Speaker 04:
Based on his background, which it is in the record, the evidence points the other way. My concern is you've got nothing to put your finger on to dispute.

[00:09:48] Speaker 03:
As I understand, your argument is that, well, yeah, sure, he's involved in all kinds of sexual business, but there's no evidence that he's personally sexually deviant himself, which is an interesting argument. Maybe we'll have you reserve your time and hear from the government if you want, and then you can – Sure.

[00:10:08] Speaker 02:
I think that – is that a – am I accurately – Yes, the lack of personal interest, the lack of personal action against another person for his own sexual gratification or interest or desire.

[00:10:20] Speaker 03:
But we do have – and we'll hear from you when you get back. And I'll make sure you have enough time. But we do have evidence that he's in this business, and we have evidence that he's pimping his pregnant – his pregnant girlfriend at some point. Boy, it's hard for me to see how that's not enough for a judge to decide we need to maybe order whatever treatment an expert on this thinks.

[00:10:50] Speaker 03:
You can respond if you want, but then I'll give you time afterwards, too.

[00:10:53] Speaker 02:
I think we're just missing that link where if he has a his own non-criminal sexual action with the girlfriend which obviously resulted in her becoming pregnant that's not the that's not the crime so to speak the crime is pimping her and i would say mostly would say that's a criminal sexual action with your girlfriend the action of pimping is but what we have is this treatment and it's pimping is sexual well i think that's that's the distinction that i draw with the argument is when pimping is just business is as he as the evidence showed his that's what he says but he could see where maybe a expert

[00:11:31] Speaker 03:
would think otherwise and why the district court judge might think otherwise here.

[00:11:36] Speaker 03:
And I guess to Judge Tallman's question, you're basically asking us to sit here and second guess that. And that's what I'm struggling with.

[00:11:45] Speaker 02:
Well, not only that, not second guess, but ask the judge to rely on the actual report as opposed to the bare bones conclusions. And that's why I got into the the delegation concerns of the separate section of the argument and the part about the argument about it being reliant on unreliable evidence where we just have this accusation but not the actual report itself to back it up, so to speak. So with this record, I believe that we've fallen short of showing that it's – with reliable evidence showing that this was reasonably related to those factors.

[00:12:24] Speaker 01:
Counsel, I think you have a stronger argument on the delegation point. So can we quickly, just really quickly, how do you distinguish United States versus Reardon? Ninth Circuit case 2003, where the court had ordered the defendant there to participate in a psychological or psychiatric counseling and or a sex offender treatment program as ordered by the probation department. How is that distinguishable from the condition here which seems very similar you know complete a sex offender evaluation which may include periodic psychological testing at the direction of the court or probation officer if the thank you for that question the the big distinction is in our probation condition we have just following the part that your honor read the word if if so that makes all the difference the word if that's our position yes because if

[00:13:18] Speaker 02:
if ordered, passes the decision off to somebody else besides the district judge. In Reardon, we just have as ordered.

[00:13:25] Speaker 04:
I thought the order was if the psychosexual evaluator determines that this course of treatment is necessary, you're ordered to complete it.

[00:13:34] Speaker 04:
What's wrong with that? That's the district court issuing an order to the defendant as a term and condition to complete whatever treatment the mental health professional prescribed.

[00:13:46] Speaker 02:
Because it leaves the decision of whether or not treatment is to be given up to if somebody else determines it's necessary, as opposed to the district judge.

[00:13:56] Speaker 04:
A trained expert on psychosexual evaluations, which the district judge is not.

[00:14:04] Speaker 02:
I think what. The right way to do this to avoid delegation would be for there to be any evaluation and that to be given to the court.

[00:14:10] Speaker 04:
But counsel, as you know, psychosexual evaluations can take months to be completed just because of the volume and the shortage of examiners that are available. It is not uncommon for our district judges to be sentencing sex offenders without a completed psychosexual evaluation report.

[00:14:29] Speaker 04:
I honestly can't say. Well, I'm telling you from my experience of doing this for 25 years, that's what I've seen over the years.

[00:14:36] Speaker 02:
My concern is that simply because it's, not simply, but with those issues of it being slow, with those issues of it being a process, I don't know that that means we can do away with the delegation objection for those reasons.

[00:14:57] Speaker 01:
Counsel, what if instead of the current phrasing in the special condition, it said complete a sex offender evaluation with all the testing, and then it says participate in successfully complete an approved state-certified sex offender treatment program at direction of the court or probation officer. So you remove the words if demean necessary by the treatment provider, substitute it with at the direction of the court or probation officer.

[00:15:27] Speaker 01:
Wouldn't that be materially the same?

[00:15:31] Speaker 01:
As Reardon? As Reardon.

[00:15:34] Speaker 02:
If we remove the word if?

[00:15:35] Speaker 01:
Right. We substitute it with at the direction of the probation officer. Doesn't that inherently give some discretion to the probation officer? And haven't we already held in Reardon that that was permissible and not a delegation concern?

[00:15:50] Speaker 02:
Well, I think in Reardon, with that phrasing they were just left with the sort of where where and when issues that with the as directed but i think that what you have proposed as a modification your honor is changing the meaning of the of the of the condition when once we remove the word if it it changes it to an as directed and all that's left is for the um probation officer as the wing of the court so that's what i understood your argument to be but that but practically speaking it's

[00:16:21] Speaker 03:
Practically speaking, maybe this if makes a huge difference constitutionally or something, but practically speaking, it doesn't seem like there's much distance at all between the difference between saying, as a judge, do whatever treatment the person, you know, the expert says you need to do, which could be none, which could be none, right? But I'm ordering you for treatment of the type and to the extent that that person thinks you need, and in theory it could be none. versus saying be evaluated by that person and then do whatever treatment.

[00:16:58] Speaker 03:
And the latter is closer to our case, and you're saying that's not okay because the on-off switch of the treatment is being turned on or off by the expert, not by the judge. Whereas it just seems mostly, if not entirely, semantic to say, okay, you're going to do treatment, but you can do as little as the expert thinks you need, including down to zero.

[00:17:28] Speaker 03:
But that's okay under Reardon. I'm struggling with, I understand the difference logically between saying you're going to do treatment, but this part of the person is going to set all the parameters, including the amount of it, versus saying how this person evaluates you and do whatever treatment they say to do. I understand that. Theoretically, there's a difference, but practically it's hard for me to see what the difference is. And then it just feels like we're just sending this back for pure semantics.

[00:18:03] Speaker 02:
I see what you mean about the lack of a practical difference. My concern is if the lower court judge were to order only that treatment – at the direction of the – as recommended by the evaluator, that would be an order that needs to be supported by the 3553 – the relevant 3553 factors. And without the evaluation underlying it, we lead to a point where it's not reasonably related because – Yeah, so I think that you've got two arguments.

[00:18:42] Speaker 03:
You've got – this is sort of responding to I would put in the bucket of – I'll call it the Judge Tallman concern that we were talking about earlier, which is there's just not enough here to support standing for treatment. We want a remand for that. And the other is this more – this textual idea that you have to have a – the judge has to make the decision. And here the judge did not make the decision the way – precisely the same way they did in Reardon. And those are two different arguments. Why don't we do this? We're taking you way over.

[00:19:10] Speaker 03:
We'll let you come back up and respond to the government's position, but I think those are the two positions I'm seeing here. Thank you. Yes.

[00:19:21] Speaker 03:
Maybe we'll put two minutes on for him when he comes back up.

[00:19:24] Speaker 00:
May it please the Court, Daniel Zipp on behalf of the United States. Your Honor, starting with the first issue that you identified, the district court was well within its discretion in imposing a sex offender evaluation condition in this case.

[00:19:37] Speaker 03:
My defense counsel sort of used the – What do you think of the idea that – well, he's in this business. He makes money from sex, but he's not really himself somebody who needs treatment because he doesn't – there's no evidence that he himself has attracted the minors. He just pimps them out.

[00:19:55] Speaker 00:
A couple responses. One, the guidelines specifically call for the condition based on his offensive conviction, which is sex trafficking of a minor. So the fact that it doesn't fit within the category of someone viewing child pornography or a child molester, it's still within the guideline. So there would have to be something exceptional about this case to take it out of the guidelines.

[00:20:17] Speaker 03:
Could there be treatment? And this is I'm not super familiar with the different types of treatment, but it could be treatment tailored to somebody who, if it really is true that he himself has no attraction to minors, he just wants to make money off of them. Is there treatment for that type of person? that says, you know, you shouldn't do this.

[00:20:35] Speaker 00:
Yes, the condition was broad, and as the Tenth Circuit and Williams considered the same issue as to whether pimping can require sex offender treatment. In that case, they said that the sex offender treatment can destroy the cognitive distortions and thought processes that objectify sex in women. So even if he had no personal interest in the women that he was trafficking— It's still sort of antisocial behavior that could use treatment to correct it. But I would push back on the idea that he was totally removed and this was entirely a business proposition.

[00:21:10] Speaker 00:
I mean, if you look at his history and characteristics, he has one conviction from the state court before the offense at issue here. He was in a relationship with a prostitute in that offense. When he was out and on parole for that conviction, he then commits this offense with a 17-year-old.

[00:21:30] Speaker 00:
The 17-year-old's mother was looking for her, said she was a runaway, saw pictures posted online. This was a defendant who was taking nude photographs of a 17-year-old, posting them, selling the victim for money. That's very troubling behavior. And if you look in the PSR, the victim of that offense even told the arresting officers that she was dating Mr. Bragg and claimed not to have been having sex with him. But then you look at after he got out, he was prostituting another woman who he was in a relationship with who was actually pregnant with his child.

[00:22:05] Speaker 00:
So the totality of his history and circumstances doesn't support the idea that he's just this sort of businessman unrelated to any sex offense element.

[00:22:17] Speaker 00:
So based on that, And based on the need for rehabilitation, the court had to consider the fact that this defendant had initially agreed to sex offender treatment, had then refused to speak with the polygraph examiner, and who even the treatment provider had indicated was not amenable to treatment but was still worth another shot, essentially.

[00:22:40] Speaker 03:
So what about this other concern that Reardon is close but not exactly because in Reardon – You're ordering treatment. The judge is ordering treatment, and then the type and extent of the treatment is being set by the professional, whereas arguably here the judge is saying if the professional thinks that you need treatment, you have to do it.

[00:23:05] Speaker 00:
Right, and there's nothing wrong with that under this court's case law. What it has identified as the delegation problem is when the probation officer is allowed to determine the punishment. In Esparza, it was the probation officer was allowed to decide whether the defendant would have inpatient treatment or outpatient treatment. And this court held that that forcing someone to go into custody.

[00:23:27] Speaker 03:
To put it in, to use an analogy, incarceration. If a judge said, you should, you know, you need to be incarcerated for, and, you know, your good time credits will be figured out by somebody else.

[00:23:41] Speaker 03:
But if your judge says, you know, I'm basically giving over to this person and they will decide if and how much you'll be incarcerated, that would be a problem, wouldn't it? Yes, if the court in this case had said... And that's the argument here is that you're saying, you know, in theory that he could be evaluated and the conclusion could be that there need not be any treatment. So, you know, there's a logical aspect of the fact that the judge is not even ordering treatment that the...

[00:24:11] Speaker 00:
Yes, although the court in Wells made it clear that the sort of – as long as the court's determining punishment and determining what the conditions are, the details of where and when the condition will be satisfied can be left to probation.

[00:24:23] Speaker 01:
Counsel, but this is no mere detail. In United States v. HOHAG in 2018, we said, quote, sex offender treatment imposes a very significant restraint on liberty. And what this condition does, as I read it, the district court has not imposed the condition itself. Rather, it has delegated that determination to a probation officer, it says, or a treatment provider. It says, if deemed necessary by the treatment provider, then the sex offender treatment program shall be carried out and that the defendant will be subject to that program.

[00:25:02] Speaker 01:
Isn't that a plain delegation problem?

[00:25:05] Speaker 00:
No, we don't believe so, Your Honor. And I think the difference is the treatment might be sort of intense, but it's different in kind from what the court found to be punishment and esparza, which is going essentially back into custody at the discretion of the probation officer. This court has repeatedly held that the type and number of tests that a defendant is subject to can be, the probation officer can decide the type and extent of sex offender treatment. And as Your Honor noted in Reardon, the court specifically said that the psychological testing and or sex offender treatment as ordered by the probation department.

[00:25:39] Speaker 01:
But there, I mean, it could be a matter of just semantics, but as I read Reardon, it doesn't contain the conditional language of if the treatment provider decides whether treatment is necessary. It says the district court has ordered Reardon to undergo treatment, and the details will be left to the treatment provider to delineate. So...

[00:26:04] Speaker 01:
The words, you know, if deemed necessary to me might make a significant distinction here.

[00:26:12] Speaker 00:
I don't read Reardon in exactly that same way. I think when it says psychological testing and or sex offender treatment. it is giving discretion to the probation officer to decide either he gets sex offender treatment or he doesn't. And it falls within that range of sort of implementing the details of where and when the condition is applied as opposed to the narrow class of cases that the probation officer has essentially said, you decide when he goes back into custody through inpatient treatment.

[00:26:40] Speaker 04:
I sat on the panel and reared, and I remember the facts of that case very well. It's probably one of the most horrific, sex offenders i've seen in my years on the bench i mean this guy was basically fantasizing about kidnapping and sexually torturing and murdering children that's very different from the facts of this case but even in that case we said you have to comply with the evaluation and then whatever recommendation the treatment provider provides And I don't understand why this is any different from our decisions in Stevens and Fellows where we're ordering drug treatment based on a drug abuse evaluation and then whatever treatment the evaluator prescribes.

[00:27:25] Speaker 00:
I agree, Your Honor. I think it's only in that narrow case of punishment in the form of inpatient treatment or – you know, I think there's anti-psychotropic drugs that the court has held.

[00:27:36] Speaker 04:
I mean, sex offender treatment is on a continuum. I guess on the one end of the continuum, okay, you go to counseling sessions and you maybe meet one-on-one. On the other end of the spectrum is what you just mentioned, psychotropic medication or arousal testing, that sort of thing. And We're waiting for the professional to conduct the evaluation and decide exactly what treatment this particular offender needs. And the court then says, and I'm ordering you to do whatever the mental health evaluator says you need to do.

[00:28:10] Speaker 00:
We agree. And I think under this court's case law, that falls on the non-punishment end of the spectrum.

[00:28:16] Speaker 03:
I think that all makes sense to me. The argument, I guess, here is that because of the way it was worded, in theory, the the expert could conclude that this person doesn't need any treatment, that Greg doesn't need any treatment at all. I'm guessing that practically, I know much less about this than my colleagues, but I'm guessing that practically speaking, that that's probably not, would never happen, that he, that they would never, the expert would never look at this and say, yeah, no treatment at all, it's fine. But in theory, the wording of the court's order here leaves that open, whereas the I suppose in Reardon, they could reach the same conclusion, but they would have had to say, OK, you're in for sex treatment.

[00:28:54] Speaker 03:
You have you got five seconds and that's all we think you need. That's why I'm saying it feels like semantics. But but there is logically maybe a difference. And I can you confirm for me practically what are the chances that he would.

[00:29:10] Speaker 03:
If nothing else, you have an industry, right? Somebody whose job it is to give people treatment. And it seems weird for him to say, yeah, yeah, no treatment needed here. I just think that my instinct is that practically that's not going to happen.

[00:29:26] Speaker 00:
I don't know the answer to that. I would share your instinct, but all I know is that on the facts of this case, the treatment provider felt that it was still necessary to sort of give him another chance, even though he was refusing to answer questions, even though he didn't appear to be participating in the sex offender treatment.

[00:29:43] Speaker 03:
You say another chance to participate in treatment?

[00:29:46] Speaker 00:
Yes. That was what the probation officer relayed, was that despite initially not speaking with the polygraph examiner, the treatment provider believed that, I think as the district court said, that The professional opinion was that he needs to continue to be in treatment because there's a mindset that needs to be addressed.

[00:30:09] Speaker 04:
And then the district court looked at his criminal history and said, that's the mindset I'm trying to change.

[00:30:16] Speaker 00:
Correct.

[00:30:18] Speaker 00:
And one final point. We don't believe that it was plainly erroneous for the court to rely on the treatment professional's opinion. Basically, in order for this court to find error, it would have to show that it was factually untrue or unreliable, and that there was not even a minimum indicia of reliability. Here, this was a professional treatment provider providing his or her opinion about what was best for the defendant, and there was nothing wrong, certainly nothing plainly wrong, about the court relying on that when determining what conditions to impose.

[00:30:51] Speaker 01:
But you don't dispute that the question of whether there's a delegation problem is reviewed de novo, correct?

[00:30:57] Speaker 00:
Correct. He challenged that in the papers.

[00:31:01] Speaker 03:
Do you have any other questions for my colleagues? No. All right. Thank you, Governor.

[00:31:06] Speaker 03:
Two more minutes on the clock for your counsel.

[00:31:12] Speaker 03:
Maybe you have – I don't want to take too much – I'll make sure you have plenty of time to say what you want to say, but – Is my instinct correct that the odds that a evaluator here is going to say, yeah, I've looked at no treatment necessary for this guy, that seems like that would never happen?

[00:31:30] Speaker 02:
That was argued in the lower court that there's a financial incentive for the evaluator to recommend treatment. And then I heard Your Honor say this is an industry issue. That's what was argued in the lower court, is that there's a financial incentive to order treatment every time.

[00:31:47] Speaker 03:
But my point about that is that that even makes this feel even more just a semantic difference.

[00:31:54] Speaker 03:
The difference between a judge saying, you will receive treatment, the details will be filled out by the expert, versus you will receive treatment if the expert thinks you need treatment, or you need to talk to this expert and get whatever treatment the expert thinks. That latter problem being technically maybe a delegation problem, it feels very semantic if in almost every instance, and particularly in this instance, you know the treatment provider is going to set up some sort of treatment. Their recommendation is not going to be no treatment at all.

[00:32:28] Speaker 02:
I don't have statistics or anything. We certainly don't have it in the record, but I think you very well could have an offender...

[00:32:39] Speaker 02:
And i'm thinking of a case that I was reading for a different matter it's not going to come to mind, but where the the the the defendant had a child porn offense and had. A it might even been from another circuit but had that exact thing happen where, despite what you would expect from the offense. sex offender treatment wasn't recommended.

[00:33:01] Speaker 02:
And I don't know that the court can fairly conclude that that wouldn't happen. Okay.

[00:33:07] Speaker 03:
No. Okay. So maybe my instincts are, but that does lead me to feel a little bit like a catch 22 for you, but it does lead you to, if that's possible, then it does seem all the more odd that we have judges saying you must receive treatment.

[00:33:23] Speaker 03:
And the details will be filled out by that person, by the expert. But when the expert gets it, they're like, well, I've been told by a judge that we have to do treatment, so I guess we'll do it. But the expert who actually knows a lot more than the judge doesn't actually think they need treatment. The whole delegation problem here seems like some people on the Supreme Court or really smart people came up with, and it doesn't seem to make much practical sense to me.

[00:33:50] Speaker 02:
That may be. I would contend that it is an issue here where – where it's left up to the treatment team and the probation officers through them.

[00:34:03] Speaker 04:
One thing... How is this any different from somebody saying, I want you to do what the doctor orders?

[00:34:10] Speaker 04:
I think that... Take the pills, go to the counseling, get treatment.

[00:34:16] Speaker 02:
That's my order.

[00:34:19] Speaker 02:
And that to me feels like... the same delegation problem.

[00:34:23] Speaker 04:
But it's the court ordering the defendant to comply with what the doctor prescribes.

[00:34:30] Speaker 04:
Right, and in that choice of what to prescribe... You really do want the judge to say, well, I know that's what the doctors don't know. I do. I'm the judge.

[00:34:43] Speaker 02:
What I would propose as the right way to do it is Is there's a report, an evaluation that comes back to the court, the parties have an opportunity to read it, and I recognize that the objections in the lower court did not properly preserve all of these issues, but then the court and the parties can review the evaluation and scores on tests and results.

[00:35:02] Speaker 04:
The problem I have is it's just not a very practical suggestion. I mean, if we rule in the way you want us to rule, it's really going to throw a wrench in the gears of sentencing.

[00:35:10] Speaker 01:
Counsel, to Judge Tomlin's hypothetical, doesn't it matter in part what the doctor prescribes? So if the doctor prescribes inpatient hospitalization or this extreme form of plethysmograph testing, right, undisputedly a significant restraint on liberty, doesn't that make a difference when we want a judge to do that and not

[00:35:33] Speaker 02:
I would say yes, under a sparser we have the inpatient the limitation on inpatient treatment and then under whole heck, we have that comment from the Court from this Court about the heightened restraint of sex offender treatment.

[00:35:49] Speaker 02:
It this condition leaves open the door for the peanut plus has no graph testing.

[00:35:55] Speaker 04:
and those very invasive types of testing at the... But nothing prevents a defendant from coming back once that testing is recommended and saying, I object, they want me to take psychotropic medications, and we've got a whole line of case law that talks about that particular treatment and the restrictions on liberty and the due process concerns and the court has to hold a hearing and all that sort of thing.

[00:36:25] Speaker 04:
Right. I mean, the defendant can always come back and challenge it.

[00:36:29] Speaker 02:
I think from where we sit in this room, nothing, nothing prevents it. But I believe that there are practical realities, as we've been talking about with the nature of the supervising probation officer and a defendant who doesn't have the.

[00:36:45] Speaker 02:
the power in that dynamic as far as actually getting themselves before the court to have it reassessed i think i don't know that it's that simple for many of our defendants right but getting getting from the stage of the treatment event the treatment provider is telling me i need this the probation officer is ordering me with its inherent coercion, regardless of how much they- The court's already ordered.

[00:37:13] Speaker 04:
You keep trying to insert the probation officer, but in this case, it's pretty clear. The court said, I want you to do what the evaluator recommends you need to do after conducting the psychosexual evaluation.

[00:37:26] Speaker 04:
I don't see the delegation problem here.

[00:37:32] Speaker 04:
That is the order of the court, imposing the term and condition of supervised release.

[00:37:38] Speaker 02:
My position is that it's only if. I mean, we're back to it. Right. I don't want to do a serve with your honor with all respect.

[00:37:46] Speaker 03:
We've taken you way over. But I want to make sure. It's been a pretty hot bench. Do you have anything?

[00:37:51] Speaker 02:
I did want to respond to the government's point about it.

[00:37:58] Speaker 02:
The government appears to me to be arguing that it's limited to where there's punishment. But I believe some of the language of this court in Stevens makes it a little more broad than simply punishment. I would contend that even in Esparza, the inpatient drug treatment wasn't really punishment. It was an intensive form of rehabilitative treatment. And some of the language in Stevens as well that this court used shows that I don't know that it needs to be punishment for it to be a delegation problem.

[00:38:32] Speaker 02:
I think where we have an intensive Supervised release condition like this that's enough to have a delegation problem. So I just wanted to have that response.

[00:38:39] Speaker 03:
Thank you Yeah, the questions from colleagues. All right. Well, thank you counsel. I want to thank both sides. This case is submitted You know, it's a lot of questions, but very very helpful. Thank you.

[00:38:50] Speaker 04:
Thank you. Thank you