[00:00:00] Speaker 03:
Never happened before so hopefully he'll be back Go ahead and have a seat, I guess Well good morning and other areas The only person who's actually indispensable and he's not here All right, go ahead and gavel sin

[00:00:29] Speaker 03:
All right, well, welcome to the Ninth Circuit.

[00:00:31] Speaker 03:
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.

[00:00:44] Speaker 03:
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.

[00:00:53] Speaker 03:
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 BRAG.

[00:01:13] Speaker 03:
And I believe Mr. Crowley, are you going to start?

[00:01:18] Speaker 03:
All right.

[00:01:19] Speaker 03:
Yes.

[00:01:19] Speaker 03:
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.

[00:01:28] Speaker 02:
Thank you.

[00:01:29] Speaker 02:
Thank you and good morning may it please the court your honors we contend here that the sex offender treatment order 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

[00:01:57] Speaker 02:
if he was instead having a 17-year-old sell drugs for him.

[00:02:02] Speaker 02:
And he was taking the money from the drug proceeds, maybe giving her a little bit, and keeping the rest for himself.

[00:02:09] Speaker 02:
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.

[00:02:16] Speaker 02:
And I would contend here that

[00:02:18] Speaker 02:
His actions, where there's no evidence before the lower court of sexual interest in this 17-year-old.

[00:02:26] Speaker 02:
Who fathered the child?

[00:02:29] Speaker 04:
For the underlying... She was pregnant, was she not?

[00:02:32] Speaker 04:
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.

[00:02:41] Speaker 02:
There was a revocation for a second pimping and pandering incident from

[00:02:46] Speaker 02:
2024 or 2023, where his girlfriend, who was an adult, ultimately had a child with Mr. Bragg.

[00:02:57] Speaker 02:
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?

[00:03:12] 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 02:
that's the concern and i think that the district court and frankly it's a concern that i share if i were the sentencing judge the issue is where we have these generalized uh... bases such as the criminal history goes dating back to him being a uh... minor himself such as issues with his own uh... mother not being present for his upbringing and being raised by uncles and fathers

[00:04:11] Speaker 02:
and being abused and those such issues and where we have issues of uh... as the oral report from the probation officer said where he was psychopathic uh... 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 the district court basically ordered whatever treatment the

[00:04:40] Speaker 04:
mental health professional recommended that would be helpful to him.

[00:04:46] Speaker 04:
And that requires a psychosexual evaluation, does it not?

[00:04:50] Speaker 04:
And apparently that had not yet been completed at the time of sentencing.

[00:04:54] Speaker 04:
Do I understand the record correctly?

[00:04:56] Speaker 02:
I believe so.

[00:04:59] Speaker 02:
Well, I'm sorry.

[00:05:00] Speaker 02:
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 was consisted of what?

[00:05:19] Speaker 04:
Counseling?

[00:05:20] Speaker 02:
group counseling individual one-on-one counseling will be ordered i don't like we didn't receive the uh... the the actual report in the writing the record so the specifics are not there but the court's order indicated uh... physical testing psycho sexual testing those kind of sex offender specific tests and that's what we're after here with with this objection and appeal is i i i guess we're going with the question is the the district judges dot

[00:05:50] Speaker 04:
a clinical psychologist or a psychiatrist.

[00:05:54] Speaker 04:
So what is improper about ordering the defendant to comply with whatever treatment a professional directs who is conducting the psychosexual evaluation?

[00:06:06] Speaker 04:
To me that makes perfect sense.

[00:06:08] Speaker 04:
I'm trying to understand your position that somehow that amounts to error.

[00:06:13] Speaker 02:
Our conclusions from the report as relayed by the probation officer are that

[00:06:19] Speaker 02:
he's psychopathic.

[00:06:21] Speaker 04:
They don't inform- 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.

[00:06:54] Speaker 04:
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.

[00:07:03] Speaker 02:
Yeah.

[00:07:05] Speaker 02:
I think you're right.

[00:07:06] Speaker 02:
I don't think the record has the judge saying, I did not review the report.

[00:07:11] Speaker 02:
Correct.

[00:07:11] Speaker 02:
So we don't know.

[00:07:12] Speaker 02:
Right.

[00:07:13] Speaker 04:
But then I go back to my earlier questioning about his criminal history.

[00:07:18] Speaker 04:
I mean, this guy is not a first-time offender.

[00:07:21] Speaker 04:
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?

[00:07:38] Speaker 04:
I read it off the backs of these women.

[00:07:41] Speaker 04:
That's how he was making his money.

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

[00:07:43] Speaker 02:
Okay.

[00:07:45] Speaker 02:
But I see that I see why you draw that conclusion, but my point is record supports that conclusion 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 So you do want the district judge to basically disagree with the recommendation of the mental health professional and

[00:08:12] Speaker 04:
what, designate a different type of treatment?

[00:08:15] Speaker 04:
How is the district court in the position to do that?

[00:08:18] Speaker 04:
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 sexually, had sexual interest against any person, I think the district

[00:08:33] Speaker 02:
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.

[00:08:47] Speaker 04:
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

[00:09:03] Speaker 02:
wholly speculative assumption that somehow that report is not going to substantiate the recommendation by the psychosexual evaluator I don't know that it's speculative it's more about having well it has to be because you don't have a report I don't have the report right but the lack of report in the in the record the lack of evidence before the court of the report indicates that there has not been

[00:09:32] Speaker 03:
record support for reasonably relating to the to the sentence 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 put your finger on to dispute is understand your your argument is that well yes sir he's involved in all kinds of uh... sexual business but he's there's no evidence that he's personally sexually deviant himself which is an interesting

[00:10:02] Speaker 03:
Maybe we'll have you reserve your time and hear from the government if you want and then you can.

[00:10:07] Speaker 03:
Sure.

[00:10:08] Speaker 03:
I think that is, is that a, am I accurately?

[00:10:13] Speaker 02:
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

[00:10:32] Speaker 03:
His pregnant girlfriend at some point that boy it's hard for me to see how that not enough for a judge to decide we need to Maybe maybe order whatever treatment a expert on this thinks And I go you can respond if you want, but then I'll give you time afterwards, too I think we're just missing that link where if he has a his own non criminal sexual

[00:11:01] Speaker 02:
action with the girlfriend which which obviously resulted in her becoming pregnant that's not the that's not the crime so to speak the crime is pimpinger and i would say mostly would say that's a criminal sexual action with your girlfriend the action of pimpings but what we have is this treatment and it's pimpings sexual well i think that's that's the distinction that i draw with the argument is when you're thinking is this business is as he as the evidence showed his ass what he says but he could see where maybe uh... 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, 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

[00:11:56] Speaker 02:
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.

[00:12:12] Speaker 02:
And so with this record, I believe that we've fallen short of showing that it's – with reliable evidence showing that this was

[00:12:22] Speaker 02:
reasonably related to those factors.

[00:12:24] Speaker 01:
Counsel, I think you have a stronger argument on the delegation point.

[00:12:27] Speaker 01:
So can we quickly, just really quickly, how do you distinguish United States versus Reardon?

[00:12:33] Speaker 01:
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.

[00:12:46] Speaker 01:
How is that

[00:12:47] Speaker 01:
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.

[00:13:03] Speaker 02:
If the thank you for that question.

[00:13:05] Speaker 02:
The the big distinction is in our probation condition.

[00:13:08] Speaker 02:
We have just following the part that your honor read the word if if so that makes all the difference.

[00:13:14] Speaker 02:
The word if that's our position.

[00:13:16] Speaker 02:
Yes, because if

[00:13:18] Speaker 02:
if ordered, passes the decision off to somebody else besides the district judge.

[00:13:23] Speaker 02:
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?

[00:13:36] Speaker 04:
That's the district court issuing an order to the defendant as a term and condition to complete whatever treatment the mental health professional prescribes.

[00:13:46] Speaker 02:
Because it leaves the decision of whether or not treatment is to be given.

[00:13:50] Speaker 02:
Up to if somebody else determines it's necessary as opposed to the trained expert on psycho sexual evaluations.

[00:14:02] Speaker 04:
The district judge is not I think what.

[00:14:05] Speaker 02:
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.

[00:14:20] Speaker 04:
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.

[00:14:30] Speaker 04:
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:
Council, what if instead of the current phrasing in the special condition, it said, complete a sex offender evaluation with all the testing.

[00:15:06] Speaker 01:
And then it says, participate in successfully complete and approved state certified sex offender treatment program at direction of the court or probation officer.

[00:15:16] Speaker 01:
So you remove the words if demean necessary by the treatment provider, substitute it with

[00:15:23] Speaker 01:
as 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?

[00:15:33] Speaker 01:
As Reardon.

[00:15:33] Speaker 02:
As Reardon.

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

[00:15:35] Speaker 01:
Right.

[00:15:36] Speaker 01:
We substitute it with at the direction of the probation officer.

[00:15:40] Speaker 01:
Doesn't that inherently give some discretion to the probation officer?

[00:15:44] Speaker 01:
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

[00:15:53] Speaker 02:
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 changes it to an as directed and all that's left is for the uh... probation officer as the wing of the court to that's what i understood your argument to be but that practically speaking it's

[00:16:21] Speaker 03:
Practically speaking, maybe it makes a huge difference constitutionally or something.

[00:16:26] Speaker 03:
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, the expert says you need to do, which could be none, which could be none, right?

[00:16:43] Speaker 03:
But I'm ordering you for treatment of the type and to the extent that that person thinks you need.

[00:16:49] Speaker 03:
And in theory, it could be none.

[00:16:51] Speaker 03:
versus saying be evaluated by that person and then do whatever treatment.

[00:16:58] Speaker 03:
And then the latter is closer to our case.

[00:17:00] Speaker 03:
And you're saying that's not OK, because the on-off switch of the treatment is being turned on or off by the expert, not by the judge.

[00:17:12] Speaker 03:
Whereas it just seems mostly, if not entirely, semantic to say, OK, you're going to do treatment.

[00:17:20] Speaker 03:
But you can do as little as the expert thinks you need, including down to zero.

[00:17:28] Speaker 03:
But that's OK under Reardon.

[00:17:30] Speaker 03:
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.

[00:17:48] Speaker 03:
theoretically there's a difference, but practically it's hard for me to see what the difference is.

[00:17:53] Speaker 03:
And then it just feels like we're just sending this back to, for pure semantics.

[00:18:03] Speaker 02:
I see what you mean about the lack of a practical difference.

[00:18:07] Speaker 02:
My concern is if the judge were to order simple, if the lower court judge were to order only that treatment,

[00:18:18] Speaker 02:
at the direction of uh... uh... as recommended by the uh... by the evaluator that would be an order that needs to be supported by the thirty five fifty three the relevant thirty five fifty three factors without the evaluation underlying it we lead to a point where it's it's not reasonably related because so i see i think you got to arguments you got this is sort of responding to

[00:18:44] Speaker 03:
What I would put in the bucket of call to judge Talman concern that we were talking about earlier Which is they're just not enough here to support same for treatment.

[00:18:51] Speaker 03:
We want to 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 He's precisely the same way they did in Reardon and those are two different arguments.

[00:19:06] Speaker 03:
Why don't we do this?

[00:19:07] Speaker 03:
We're taking you way over

[00:19:09] Speaker 03:
We'll let you come back up and respond to the government's position.

[00:19:13] Speaker 03:
But I think those are the two positions I'm seeing here.

[00:19:15] Speaker 03:
Thank you.

[00:19:16] Speaker 03:
Yes.

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

[00:19:25] Speaker 00:
May it please the court, Daniel Zip on behalf of the United States.

[00:19:28] Speaker 00:
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 00:
My defense counsel sort of used it.

[00:19:39] Speaker 03:
What do you think of the idea that, well, he's in this business.

[00:19:44] Speaker 03:
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.

[00:19:53] Speaker 03:
He just pimps them out.

[00:19:54] Speaker 00:
A couple of responses.

[00:19:56] Speaker 00:
One, the guidelines specifically call for the condition based on his offense of conviction, which is sex trafficking of a minor.

[00:20:05] Speaker 00:
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.

[00:20:13] Speaker 00:
And so there had to be something exceptional about this case to take it out of the guidelines.

[00:20:17] Speaker 03:
Could there be treatment?

[00:20:18] Speaker 03:
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.

[00:20:29] Speaker 03:
Is there treatment for that type of person?

[00:20:32] Speaker 03:
that says, you know, you shouldn't do this.

[00:20:35] Speaker 00:
Yes, the condition was broad.

[00:20:37] Speaker 00:
And as the 10th Circuit in Williams considered the same issue as to whether pimping can require sex offender treatment.

[00:20:44] Speaker 00:
And what they said, in that case, they said that the sex offender treatment can destroy the cognitive distortions and thought processes that objectify sex in women.

[00:20:54] Speaker 00:
So even if he had no personal interest in the women that he was trafficking,

[00:20:58] Speaker 00:
it's still sort of anti-social behavior that could use treatment to correct it.

[00:21:04] Speaker 00:
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.

[00:21:18] Speaker 00:
He was in a relationship with a prostitute in that offense.

[00:21:22] Speaker 00:
When he was out and on parole for that conviction, he then commits this offense with a 17-year-old.

[00:21:29] Speaker 00:
The 17-year-old's mother was looking for her, said she was a runaway, saw pictures posted online.

[00:21:36] Speaker 00:
This was a defendant who was taking nude photographs of a 17-year-old, posting them, selling the victim for money.

[00:21:42] Speaker 00:
That's very troubling behavior.

[00:21:46] Speaker 00:
And if you look in the PSR, the victim of that offense

[00:21:49] Speaker 00:
even told the arresting officers that she was dating Mr. Bragg and claimed not to have been having sex with him.

[00:21:58] Speaker 00:
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,

[00:22:18] Speaker 00:
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,

[00:22:49] Speaker 03:
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.

[00:23:06] Speaker 00:
And there's nothing wrong with that under this court's case law.

[00:23:09] Speaker 00:
What is that it has identified as the delegation problem is when the probation officer is allowed to determine the punishment.

[00:23:16] Speaker 03:
uh... in a sparse uh... 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 to going on a discussion put it in to use a analogy incarceration if a judge said you should you need to be incarcerated for and you know that your good time credits will be figured out by somebody else uh... but if your judge says

[00:23:43] Speaker 03:
you know, basically giving over to this person and they will decide if and how much you'll be incarcerated.

[00:23:48] Speaker 03:
That would be a problem, wouldn't it?

[00:23:51] Speaker 03:
Yes, if the court in this case had said... 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 that, you know, there's a logical aspect of the fact that the judge is not even ordering treatment.

[00:24:11] Speaker 00:
Yes, although the court and 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.

[00:24:26] Speaker 01:
In United States versus HOHAG from 2018, we said, quote, sex offender treatment imposes a very significant restraint on liberty.

[00:24:36] Speaker 01:
And what this condition does, as I read it,

[00:24:39] Speaker 01:
The district court has not imposed the condition itself.

[00:24:43] Speaker 01:
Rather, it has delegated that determination to a probation officer or a treatment provider.

[00:24:51] Speaker 01:
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

[00:25:10] Speaker 00:
sort of intense, but it's different in kind from what the court found to be punishment in Esparza, which is going essentially back into custody at the discretion of the probation officer.

[00:25:20] Speaker 00:
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.

[00:25:30] Speaker 00:
And as your honor noted in Reardon, the court specifically said that the psychological testing and and or sex offender treatment

[00:25:37] Speaker 00:
as ordered by the probation department.

[00:25:40] Speaker 01:
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.

[00:25:53] Speaker 01:
It says the district court has ordered Reardon to undergo treatment, and the details will be left to the treatment provider to delineate.

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

[00:26:10] Speaker 00:
I don't read Reardon in exactly that same way.

[00:26:14] Speaker 00:
I think when it says psychological testing and or sex offender treatment,

[00:26:19] Speaker 00:
it is giving discretion to the probation officer to decide, either he can get sex offender treatment or he doesn't.

[00:26:25] Speaker 00:
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.

[00:26:39] Speaker 04:
I sat on the panel and reared, and I remember the facts of that case very well.

[00:26:44] Speaker 04:
It's probably one of the most horrific

[00:26:47] Speaker 04:
sex offenders I've seen in my years on the bench.

[00:26:50] Speaker 04:
I mean, this guy was basically fantasizing about kidnapping and sexually torturing and murdering children.

[00:26:56] Speaker 04:
That's very different from the facts of this case.

[00:26:59] Speaker 04:
But even in that case, we said, you have to comply with the evaluation and then whatever recommendation the treatment provider provides.

[00:27:10] Speaker 04:
And I don't understand why this is any different from our decisions in Stevens and Fellowes 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.

[00:27:26] Speaker 00:
I think it's only in that narrow case of punishment in the form of inpatient treatment or

[00:27:31] Speaker 00:
you know, um, I think there's anti site site, psychotropic drugs that the court has held treatment is on a continuum.

[00:27:39] Speaker 04:
I guess on, on the one end of the continuum.

[00:27:41] Speaker 04:
Okay.

[00:27:41] Speaker 04:
You go to counseling sessions and you maybe meet one on one on the other end of the spectrum is what you just mentioned.

[00:27:48] Speaker 04:
Psychotropic medication or arousal testing, that sort of thing.

[00:27:54] Speaker 04:
And

[00:27:56] Speaker 04:
we're waiting for the professional to conduct the evaluation and decide exactly what treatment this particular offender needs and the court then says that 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 that the argument I guess here is that because of the way it was worded in theory the

[00:28:24] Speaker 03:
the expert could conclude that this person doesn't need any treatment, that Greg doesn't need any treatment at all.

[00:28:31] Speaker 03:
I'm guessing that practically, I know much less about this than my colleagues are, but I'm guessing that practically speaking, that that's probably not, would never happen.

[00:28:40] Speaker 03:
That they would never, the expert would never look at this and say, yeah, no treatment at all, it's fine.

[00:28:45] Speaker 03:
But in theory, the wording of the court's order here leaves that open, whereas

[00:28:50] Speaker 03:
i suppose in reardon they could reach the same conclusion but they would have had to say okay you're in for sex treatment 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 i can you confirm me practically what are the chances that he would

[00:29:09] Speaker 03:
If you have nothing else, you have an industry, right?

[00:29:12] Speaker 03:
And so somebody whose job it is to give people treatment.

[00:29:16] Speaker 03:
And it seems weird for him to say, yeah, yeah, no treatment needed here.

[00:29:21] Speaker 03:
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.

[00:29:27] Speaker 00:
I would share your instinct.

[00:29:29] Speaker 00:
But all I know is that on the facts of this case, the treatment provider felt that it was still

[00:29:35] Speaker 00:
necessary to sort of give him another chance even though he was refusing to answer questions even though he wasn't didn't appear to be participating in the sex offender treatment say another chance to participate in treatment yes uh... that was the what the probation officer relayed was that uh... you know despite initially not speaking with the polygraph examiner the treatment provider believed that uh... i think as the district court said that uh...

[00:30:03] Speaker 00:
The professional opinion was that he needs to continue be to be in treatment because there's a mindset that needs to be addressed so.

[00:30:11] Speaker 04:
It's hard court look at his criminal history and said that's the mindset i'm trying to change.

[00:30:16] Speaker 00:
Correct and one final point we don't believe that it was plainly erroneous for the court to rely on the treatment professionals.

[00:30:26] Speaker 00:
Um, opinion, um, basically in order for this court to find error, it would have to show that the, um, that it was factually untrue or unreliable and that there was no, not even a minimum and issue of reliability here.

[00:30:39] Speaker 00:
This was a professional treatment provider providing his or her opinion about what was best for, um, the defendant.

[00:30:45] Speaker 00:
And there was nothing wrong, certainly nothing plainly wrong about the court relying on that when determining what, 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.

[00:30:58] Speaker 00:
He challenged that in the papers.

[00:31:01] Speaker 03:
Do you have any other questions for my colleagues?

[00:31:03] Speaker 03:
No.

[00:31:03] Speaker 03:
All right.

[00:31:04] Speaker 01:
Thank you.

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

[00:31:12] Speaker 03:
Maybe you have, you know, I don't want to take too much.

[00:31:14] Speaker 03:
I'll make sure you have plenty of time to say what you want to say.

[00:31:17] Speaker 03:
My 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.

[00:31:26] Speaker 03:
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.

[00:31:36] Speaker 02:
And then I heard your honor say this is an industry.

[00:31:40] Speaker 03:
that that's what was argued in in the lower court is that there's a financial incentive to uh... yeah we'd maybe that maybe there's a lot of time every time but my point about that is that that even makes us feel even more just a semantic difference if the difference between a judge saying you will receive treatment the details will be filled out by the expert versus uh... you will receive treatment if the expert thinks you need treatment uh... or you know you need to talk to this expert and get whatever treatment the expert thinks

[00:32:10] Speaker 03:
that latter problem being a technically maybe a delegation problem that this uh... 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 i think it very well i mean i don't have statistics are spurt anything to uh... all i was going to tell me to have in the record but i think you very well could have an offender uh...

[00:32:39] Speaker 02:
And I'm thinking of a case that I was reading for a different matter.

[00:32:42] Speaker 02:
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.

[00:32:57] Speaker 02:
sex offender treatment wasn't recommended.

[00:33:00] Speaker 02:
Um, and I don't know that the court can fairly conclude that that wouldn't happen.

[00:33:07] Speaker 03:
Um, okay.

[00:33:07] Speaker 03:
No, okay.

[00:33:08] Speaker 03:
So that may, may be my instinct, 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.

[00:33:22] Speaker 03:
Um, and the details will be filled out by that person, by the expert.

[00:33:26] Speaker 03:
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.

[00:33:33] Speaker 03:
But the expert who actually knows a lot more than the judge doesn't actually think they need treatments.

[00:33:39] Speaker 03:
The whole delegation problem here seems like some people on the Supreme Court are really smart people came up with it.

[00:33:45] Speaker 03:
It doesn't seem to make much practical sense to me.

[00:33:49] Speaker 02:
That may be.

[00:33:50] Speaker 02:
I would contend that it is an issue here where

[00:33:57] Speaker 02:
Where it's left up to the treatment team and the probation officers through them.

[00:34:03] Speaker 02:
One thing.

[00:34:04] Speaker 04:
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:
And that's my order.

[00:34:19] Speaker 02:
And that to me feels like.

[00:34:21] Speaker 04:
This the same delegation problem, but it's the court ordering the defendant to comply with what the doctor prescribes Right and and in that choice of what to prescribe You really do To say well, I know that's what the doctors don't know what I do.

[00:34:42] Speaker 02:
I'm the judge What I would propose is the right way to do it is

[00:34:46] Speaker 02:
Is is there's a report an evaluation it 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:
I have is that's just not a very practical suggestion I mean if we rule and the way you want us to rule it's really gonna throw a wrench in the gears of sentencing

[00:35:10] Speaker 01:
Council to to judge Tom and hypothetical doesn't doesn't it matter in part what the doctor prescribes?

[00:35:17] Speaker 01:
So if the doctor prescribes inpatient hospitalization or this extreme form of plethesmograph testing right Undisputedly a significant restraint on Liberty doesn't it 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 as far as that we have the inpatient limitation inpatient treatment and then under whole head we have that comment from the court from this court about the heightened.

[00:35:45] Speaker 02:
A restraint of sex offender treatment.

[00:35:49] Speaker 02:
It this condition leaves open the door for the peanuts 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.

[00:36:11] Speaker 04:
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:
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.

[00:36:52] Speaker 02:
I think I don't know that it's that simple for many of our defendants.

[00:36:58] Speaker 02:
Right.

[00:36:58] Speaker 02:
But getting getting from the stage of the treatment event, the treatment provider is telling me I need this.

[00:37:05] Speaker 02:
The probation officer is

[00:37:07] Speaker 02:
ordering me with its inherent coercion, regardless of how much they tried.

[00:37:11] Speaker 04:
The court's already ordered it.

[00:37:13] Speaker 04:
You keep trying to insert the probation officer, but in this case, that's pretty clear.

[00:37:16] Speaker 04:
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 it's only uh... if if i mean we're back to you right i don't want to do it i serve with your honor with with all respect yes we've taken you way over do you have any but i want to make sure we've been it's been a pretty hot bench do you have anything you know i did want to respond to it the government's uh... point about it the government appears to me to be arguing that it's limited to where there's punishment

[00:38:03] Speaker 02:
But I believe some of the language of this court in Stevens makes it a little more broad than simply punishment.

[00:38:11] Speaker 02:
I would contend that even in Esparza, the inpatient drug treatment wasn't really punishment.

[00:38:17] Speaker 02:
It was an intensive form of rehabilitative treatment.

[00:38:21] Speaker 02:
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

[00:38:34] Speaker 02:
Supervised release condition like this.

[00:38:35] Speaker 02:
That's enough to have a delegation problem.

[00:38:37] Speaker 02:
So I just wanted to have that response Thank you.

[00:38:39] Speaker 03:
Any other questions for colleagues?

[00:38:41] Speaker 03:
All right.

[00:38:41] Speaker 03:
Well, thank you counsel.

[00:38:42] Speaker 03:
I want to thank both sides.

[00:38:43] Speaker 03:
This case is submitted a Lot of questions, but very very helpful.

[00:38:49] Speaker 04:
Thank you.

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

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