[00:00:00] Speaker 03: This case is 25-3067, United States v. Williams. [00:00:07] Speaker 02: Judge Timkovich, and may it please the Court. [00:00:09] Speaker 02: My name is Dan Hansmeier. [00:00:11] Speaker 02: I'm with the Kansas Federal Public Defender's Office, and I represent the appellant, Edwin Williams. [00:00:17] Speaker 02: The question presented in this appeal is whether district courts have the statutory authority to include payment language within treatment conditions of supervised release. [00:00:26] Speaker 02: I guess there's three things going on. [00:00:29] Speaker 02: We've made a pitch in our reply brief that this can be a really easy case based on what the government said on page 15 of its brief about not revoking people for failure to pay. [00:00:39] Speaker 02: If you want to say that and send us all home, you can do that. [00:00:42] Speaker 02: I assume I didn't fly all the way out to Denver for you to do that, so I'll move on. [00:00:47] Speaker 02: The second thing is prudential ripeness. [00:00:50] Speaker 02: I don't want to talk about prudential ripeness. [00:00:53] Speaker 02: I briefed it exhaustively in my reply brief. [00:00:56] Speaker 02: I'd prefer to stand on the briefs. [00:00:59] Speaker 02: Also, if I'm going to lose this appeal, that would be the way to lose it, not on the merits. [00:01:05] Speaker 02: So if I can just transition to the merits, that's where I'd prefer to spend my limited amount of time. [00:01:14] Speaker 02: So we think we have text. [00:01:17] Speaker 02: This is an issue of statutory interpretation. [00:01:19] Speaker 02: We believe we have the text. [00:01:20] Speaker 02: We believe we have statutory context. [00:01:22] Speaker 02: We believe we have statutory history. [00:01:24] Speaker 02: And we think we have a ton of precedent that supports us in this case. [00:01:29] Speaker 02: So to start with the text, essentially, this court needs to find statutory authority for courts to do this. [00:01:35] Speaker 02: We don't think it can. [00:01:37] Speaker 02: The specific statute that authorizes treatment conditions is 3563B9. [00:01:43] Speaker 02: That statute says nothing about requiring defendants to pay for their treatment. [00:01:48] Speaker 02: That matters. [00:01:50] Speaker 02: Courts do not supply omissions. [00:01:52] Speaker 02: Supplying omissions transcends the judicial function. [00:01:54] Speaker 02: We would simply ask you not to supply that omission as a textual matter. [00:01:59] Speaker 02: That conclusion also flows from the... What about B20? [00:02:07] Speaker 03: And it talks about a process that requires payment by the defendant for the support and maintenance of a child. [00:02:17] Speaker 03: I know that's a different aspect, but it suggests that some conditions can have a payment obligation. [00:02:25] Speaker 02: So I actually disagree that that's the implication. [00:02:29] Speaker 02: I think the implication from the inclusion of payment language in other provisions within B20 is that Congress did not [00:02:37] Speaker 02: intentionally did not include payment language within B-9. [00:02:42] Speaker 03: Okay, I think that's a good response. [00:02:43] Speaker 03: What about B-22, quote, satisfy such other conditions as the court may impose? [00:02:50] Speaker 02: So, right, I mean, I think this is what the district court relied on. [00:02:54] Speaker 02: I don't think this makes any sense in this case because B-22 is a catch-all provision for conditions of probation, and we have a catch-all provision for conditions of supervised release in 3583-D. [00:03:05] Speaker 02: So I think if you want to rely on a catch-all provision, it has to be in 3583D. [00:03:08] Speaker 04: I'm sorry, can you explain that again? [00:03:11] Speaker 04: Why we can't rely on the catch-all in 22? [00:03:14] Speaker 04: Well, so... It says you can impose mandatory conditions to satisfy such other conditions as the court may impose. [00:03:23] Speaker 02: Correct, but that is a catch-all for probationary conditions. [00:03:28] Speaker 02: And this is supervised release. [00:03:30] Speaker 02: And the supervised release statute has its own catch-all provision. [00:03:34] Speaker 02: So I mean, essentially, if you were to write an opinion saying we're relying on 3563B22, you just made the catch-all provision in 3583D entirely superfluous. [00:03:45] Speaker 02: There's just no point if you're going to rely on the other catch-all provision. [00:03:49] Speaker 00: So essentially, your argument would indicate that [00:03:56] Speaker 00: Any specific condition has to be specifically authorized in the statute. [00:04:04] Speaker 02: That's not true. [00:04:06] Speaker 00: Well, then why doesn't 3583D provide all the power the court needs, you know, as conditions as needed? [00:04:16] Speaker 02: Because there's a specific statute that covers treatment conditions. [00:04:19] Speaker 02: So I'm relying on the specific over general canon of construction and also the canon against [00:04:25] Speaker 02: And so, because we have a specific provision that enumerates treatment conditions and that provision does not include payment language, you should not add that language to the specific provision. [00:04:40] Speaker 02: Now, for conditions that are not enumerated at all, [00:04:44] Speaker 02: That is what the catch-all provision covers. [00:04:48] Speaker 02: So for instance, don't associate with gangs. [00:04:51] Speaker 02: That's not an enumerated condition. [00:04:53] Speaker 02: I wouldn't stand here and say a court couldn't impose that condition. [00:04:56] Speaker 02: That would be in any other condition if it satisfies the three factors in D1, D2, and D3. [00:05:03] Speaker 02: So that's the difference, is that we have the enumerated condition in B9. [00:05:10] Speaker 04: I mean, this is... Do you have any authority to suggest that that's how we should read it? [00:05:14] Speaker 04: If it's not explicit, you just don't have authority unless there's explicit authority granted. [00:05:21] Speaker 02: Yeah. [00:05:21] Speaker 02: I have a ton of authority. [00:05:22] Speaker 04: Okay, what's your best authority? [00:05:25] Speaker 02: So in the conditions context, we have this court's opinion in Prescon Court. [00:05:28] Speaker 04: Anything in terms of like this type of a payment, though? [00:05:31] Speaker 02: Yes. [00:05:31] Speaker 02: I mean, we have this court's opinion in Prescon Court. [00:05:34] Speaker 02: I mean, that case involved [00:05:36] Speaker 02: Judges and there's other judges from other circuits about this on these charitable organizations courts wanting to impose I don't impose a fine. [00:05:44] Speaker 02: I want you to pay a charitable organization That was totally different that undermined the entire concept of the statute They were paying corporations instead of the victims which was the point of the statute I don't think it is totally different because what this court said is the probation act did not intend to authorize the district courts to direct the payments of funds and [00:06:03] Speaker 02: as condition of probation beyond the express authorizations contained in the statute. [00:06:08] Speaker 04: Right, and there was an express authorization that it goes to the victims. [00:06:12] Speaker 04: This was about who it goes to, not about the payment itself. [00:06:17] Speaker 02: Fair enough. [00:06:18] Speaker 04: It was about who it's directed to. [00:06:19] Speaker 04: That's not our question here. [00:06:20] Speaker 04: We know what it's directed to. [00:06:22] Speaker 02: Well, the principles are the same, though. [00:06:25] Speaker 04: I don't think they are. [00:06:26] Speaker 04: I think it's about who you can direct a payment to, as opposed to whether you have authority to direct a payment. [00:06:34] Speaker 02: And that's the question here. [00:06:36] Speaker 04: Anything else besides that case? [00:06:38] Speaker 02: We have the Fifth Circuit's opinion in Jimenez about court-appointed counsel fees. [00:06:42] Speaker 02: I think this is important because there's a statute, 3006A, that allows a judge to impose court-appointed attorney fees. [00:06:50] Speaker 02: What the Fifth Circuit said is you can't make that a condition of supervised release because it is not authorized by the conditions statutes. [00:07:01] Speaker 02: That's entirely analogous to what I'm saying here. [00:07:04] Speaker 02: You have the Ninth Circuit's opinion in Lakatos. [00:07:07] Speaker 02: That case involved 3563B20, the child support obligations. [00:07:11] Speaker 02: The district court wanted to impose, well, did impose [00:07:16] Speaker 02: child support obligations at a rate different than the state court order. [00:07:19] Speaker 02: The Ninth Circuit said you can't do that. [00:07:21] Speaker 02: You have to follow the statute. [00:07:23] Speaker 02: That's exactly what I'm saying here about 3563B9. [00:07:25] Speaker 02: That's different also. [00:07:26] Speaker 04: I mean, if the statute says follow the state court order and the court says, no, you don't have to follow the state court order, that's not what we have here either. [00:07:35] Speaker 04: I mean, we have, that's just nothing like this. [00:07:39] Speaker 02: I mean, I just completely disagree with you. [00:07:41] Speaker 02: I mean, 3563B20 says you can impose child support [00:07:46] Speaker 02: child support as a condition of supervised release. [00:07:48] Speaker 02: Right. [00:07:49] Speaker 02: And you have to follow what that provision says. [00:07:52] Speaker 02: The district court in that case did not follow what the provision says. [00:07:56] Speaker 02: And why didn't it follow it? [00:07:57] Speaker 02: Because it went beyond what the child support obligation was. [00:08:01] Speaker 02: And what I'm saying is... Right. [00:08:02] Speaker 04: And it says you've got to... It was explicit that you've got to pay... You can pay for this, but you can impose this, but you can only impose it for what we tell you you can impose it for. [00:08:12] Speaker 04: That's not what we're dealing with here. [00:08:15] Speaker 04: We're dealing with a condition that's been imposed for treatment, and the court's saying, and I'm going to direct you to pay for that treatment. [00:08:22] Speaker 04: There's nothing here saying you can't impose it, which was essentially explicit in the statutes you're talking about. [00:08:30] Speaker 02: I don't think that's right. [00:08:31] Speaker 02: I think if you read 3563B20, there's nothing explicit saying you cannot depart from the court order. [00:08:39] Speaker 02: It's a general provision just like this one, but it doesn't include the specific authorization. [00:08:45] Speaker 02: We also have Ferguson from the Fifth Circuit. [00:08:47] Speaker 02: That's about 3563B19 and home detention. [00:08:52] Speaker 02: The district court in that case imposed a home detention condition outside the scope permitted by that statute. [00:08:59] Speaker 02: The Fifth Circuit said you can't do that. [00:09:01] Speaker 02: You have to stick within the scope of the provision. [00:09:04] Speaker 02: That's exactly what we're saying here. [00:09:05] Speaker 02: Cotman from the Third Circuit, that involved buy money and 3563B3 and restitution. [00:09:13] Speaker 02: They said buy money isn't restitution. [00:09:16] Speaker 02: There's no specific provision authorizing the payment of buy money as condition of supervised release, so you can't do it. [00:09:22] Speaker 04: I mean, I guess I see what you're saying as if we had a provision here saying, well, you can direct payment of substance abuse treatment, which is one of the orders here. [00:09:35] Speaker 04: But you can't direct payment for mental health treatment, which we also have here. [00:09:41] Speaker 04: And the court directed payment for mental health treatment. [00:09:47] Speaker 04: That would be different than where we simply don't have any, there's just nothing here as to whether you can or can't direct payment for these two kinds of treatment. [00:10:00] Speaker 02: Well, that's true in that absence. [00:10:01] Speaker 04: And I think the cases that you talk about, and again, I understand you disagree with me, but they seem to be statutory obligations or you can direct payment for a particular obligation. [00:10:15] Speaker 04: And that's explicit what that obligation is. [00:10:17] Speaker 04: That means you can't go beyond that. [00:10:21] Speaker 02: And I think that is what Judge Moritz threw out. [00:10:23] Speaker 04: Yeah, I understand we're not agreeing on this, so I apologize, but yeah. [00:10:28] Speaker 02: I mean, throughout 3563, our payment obligations as discretionary conditions. [00:10:34] Speaker 02: I mean, they're just there. [00:10:36] Speaker 02: But they're not in 3563B9. [00:10:39] Speaker 02: Now, why would Congress not include them in 3563B9, but include monetary obligations everywhere? [00:10:46] Speaker 02: And if you're going to read in, if you're going to say that we don't care, that it is an absent provision, and we're going to allow courts to [00:10:54] Speaker 02: require defendants to pay for things that aren't within 3563, then you've just made the payment obligations within 3563 superfluous. [00:11:05] Speaker 02: There's no point for Congress to put up any of that language within the statute if there's some inherent authority for district courts to make defendants pay for things on supervised release. [00:11:16] Speaker 02: You would just gut [00:11:18] Speaker 02: I think six provisions within 3563 if you do this. [00:11:27] Speaker 02: We haven't talked about thirty six seventy two. [00:11:29] Speaker 03: What are the six again? [00:11:31] Speaker 02: Excuse me. [00:11:32] Speaker 03: What are what are the six payment provisions? [00:11:35] Speaker 02: Well, but you have restitution you have fines you have child support. [00:11:39] Speaker 02: What numbers are those? [00:11:40] Speaker 02: I think that's a good question. [00:11:43] Speaker 03: Restitution is two. [00:11:44] Speaker 02: B3 I think B I think B1 is [00:11:51] Speaker 02: Dependent sport dependence is that right? [00:11:52] Speaker 02: I can read it. [00:11:54] Speaker 03: I'm sorry. [00:11:56] Speaker 03: It's not supposed to be a trick question. [00:11:57] Speaker 03: I'm looking at it. [00:11:58] Speaker 03: I'll figure it out. [00:11:58] Speaker 02: Yeah, I think the 20 you know dependence I want to say do you want support dependence or you can oppose that be 1b 20b 3 and Couple others sorry. [00:12:10] Speaker 02: I don't not staring at the statute I'm getting close to my rebuttal time [00:12:18] Speaker 02: We haven't talked about 3672. [00:12:19] Speaker 02: I would just say 3672, the district court didn't rely on it. [00:12:23] Speaker 02: I don't think you should either. [00:12:24] Speaker 02: If you were to rely on it though, I do want to make this last point and I'll reserve the remainder of my time. [00:12:31] Speaker 02: The conditions in this case do not comply with [00:12:35] Speaker 02: 3672. [00:12:35] Speaker 02: So if you want to go down that route, I think you still have to send this case back. [00:12:40] Speaker 02: If you look at the record, page 34 to 36, that sort of explains that point. [00:12:47] Speaker 04: The Seventh Circuit relied on 3672B, right? [00:12:51] Speaker 02: Yeah. [00:12:52] Speaker 04: And why shouldn't we rely on that? [00:12:55] Speaker 02: Well, a whole host of reasons. [00:12:58] Speaker 02: So that provision is not what, so if you look at [00:13:05] Speaker 02: 3672 it does not kill all my time talking about this. [00:13:10] Speaker 02: It doesn't exist within the supervised release statutory scheme. [00:13:17] Speaker 02: One it doesn't mention supervise conditions supervised release or other otherwise tie reimbursement mechanism to the reimbursement mechanism to supervised release. [00:13:26] Speaker 02: It doesn't cross-reference or reference 3563 or 3583 or vice versa. [00:13:33] Speaker 02: The enumerated duties, you would think that if, so 3672 is structured in these paragraphs, it's not numbered, but you would think that if one paragraph could be a condition of supervised release, they all could. [00:13:47] Speaker 02: Well, that's not true. [00:13:49] Speaker 02: try to make any of those other paragraphs a condition of supervised release, it doesn't work. [00:13:53] Speaker 02: The second to last paragraph is not limited. [00:13:55] Speaker 04: That's sufficient. [00:13:56] Speaker 04: Essentially, you're saying it just doesn't apply to conditions of supervised release. [00:14:00] Speaker 04: Is that your answer? [00:14:01] Speaker 02: That is. [00:14:02] Speaker 02: If I can make three... Well, you didn't want to make the points earlier. [00:14:06] Speaker 02: So if you want to go to something else, go ahead. [00:14:08] Speaker 02: I'm kind of in the groove right now. [00:14:10] Speaker 02: So I'll just go with it. [00:14:12] Speaker 02: The other enumerated... So if you look at the second to last paragraph that talks about [00:14:17] Speaker 02: Ordering treatment, it's not limited to supervised release. [00:14:19] Speaker 02: It can be someone on pretrial release. [00:14:21] Speaker 02: It can be someone with incompetency hearings. [00:14:24] Speaker 02: And then the last paragraph that we're talking about, the reimbursement mechanism, the phrase is, quote, a person furnished such services, end quote, a person. [00:14:32] Speaker 02: Again, that's broader than just anyone on supervised release. [00:14:36] Speaker 02: And I will just [00:14:40] Speaker 03: I'll give you a rebuttal, but can you tell me what the fatal flaw in Beagle is, or your judgment? [00:14:48] Speaker 02: Well, probably the defense attorney who argued Beagle would probably be my answer. [00:14:52] Speaker 02: I mean, that's just not... The argument in Beagle was about a sufficient explanation for the condition. [00:14:59] Speaker 02: I mean, the case essentially came to you as a concession that this is allowed, this is proper. [00:15:04] Speaker 02: I'm arguing that that concession was wrong, and I just don't know how you [00:15:09] Speaker 02: take an unpublished opinion about a different issue that, you know, where the attorney conceded the point I'm arguing and say I lose because of it. [00:15:19] Speaker 02: I really hope you don't do that. [00:15:22] Speaker 03: Thanks. [00:15:23] Speaker 03: We'll hear from the government. [00:15:37] Speaker 01: Good morning, Your Honors. [00:15:38] Speaker 01: May it please the Court, Jared Magg, on behalf of the United States. [00:15:43] Speaker 01: Your Honors, a district court's decision to require a defendant to assist in the cost of treatment imposed as a special condition of supervised release is supported by the relevant provisions of 3553A, 3563, 3583D, and 3672. [00:15:59] Speaker 01: The defendant's facial challenge alleging that no authorization exists for such a condition [00:16:05] Speaker 01: must be rejected here. [00:16:07] Speaker 01: Now apart from his decision not to challenge the underlying programming and drug treatment imposed as a condition of supervised release, the requirement that he also pay the cost of this treatment if he is financially able to do so is consistent with the relevant factors of 3553A and not inconsistent with guideline policy which aims to look at the individualized treatment of a defendant in each instance. [00:16:33] Speaker 01: The district court's authority to impose the financial requirement is contemplated by 3583D. [00:16:38] Speaker 01: There, Congress plainly stated that a district court may order any condition set forth as a discretionary condition of Section 3563B and any other condition it considers to be appropriate to the extent that the condition satisfies the factors under 3553A, does not [00:16:57] Speaker 01: impose any greater deprivation of liberty and is consistent with the policy statements of the condition. [00:17:03] Speaker 01: Simply put, 3583D allows for a special condition consistent with the factors of 3553A, and a district court does not run afoul of the law by imposing an additional cost incentive that will positively influence the defendant's efforts at reintegration and rehabilitation. [00:17:23] Speaker 01: Make no mistake, the government stands in support of a defendant's recovery during the term of supervised release. [00:17:31] Speaker 01: The requirement that the defendant be required to possibly pay in support of his own treatment leads to greater success. [00:17:45] Speaker 01: Judge Murphy, I think you hit probably on the point that the government is relying on mostly is that 3583D really sets [00:17:54] Speaker 01: the groundwork for how this particular special provision is to be analyzed. [00:18:03] Speaker 01: Congress clearly gave the court's broad discretion in establishing special conditions. [00:18:09] Speaker 01: That language is seen both in 3583D and 3563B. [00:18:14] Speaker 01: That broad discretion allows for an individualized assessment of a defendant to determine whether or not [00:18:24] Speaker 01: their ability to assist in their own treatment in the payment, if they're able to do so, is certainly not something that can run afoul of 3583D because it sets the groundwork for the provisions that the court has to meet. [00:18:50] Speaker 01: It has to look at the 3553A factors. [00:18:53] Speaker 01: has to determine if there's a deprivation of liberty, and it has to determine if that particular provision would run afoul of the policy guidelines. [00:19:05] Speaker 04: The district court didn't really do that here. [00:19:06] Speaker 04: I mean, it kind of discussed the language, but I didn't really see any real analysis of the factors. [00:19:13] Speaker 04: It just recited some language, and that it was no greater deprivation of liberty interest. [00:19:20] Speaker 04: In fact, the court even seemed to sort of [00:19:22] Speaker 04: hedge on that. [00:19:23] Speaker 04: And he said, when talking about whether there was a greater deprivation of liberty than reasonably necessary, Judge Crabtree said, well, we can't tell now. [00:19:30] Speaker 04: We don't really know, because we can't tell now whether he'll be asked to pay. [00:19:33] Speaker 04: I thought that was a little bit odd. [00:19:35] Speaker 01: Yeah, I think the lower court's sort of analysis in looking at this certainly wasn't [00:19:43] Speaker 01: I guess it was understandable that Judge Crabtree might have had some confusion about whether or not the defendant was asking in this instance as to whether or not the issue was, could he pay? [00:19:53] Speaker 01: Because of course, that is the provision. [00:19:55] Speaker 01: Is he financially able to do so? [00:19:58] Speaker 01: And when Judge Crabtree is looking at that, he seemed to get to look at that issue maybe as a condition that would come up later. [00:20:10] Speaker 01: And that seemed to be his concern. [00:20:12] Speaker 01: But I would disagree that he didn't give full consideration to the issue of whether or not the underlying conditions were appropriate. [00:20:20] Speaker 04: Certainly there's... Well, he basically said it's appropriate because I've imposed these treatment conditions and so it's related to that. [00:20:28] Speaker 04: But he does go through... He didn't say very much. [00:20:30] Speaker 01: He does go through the fact that the defendant had a drug history. [00:20:33] Speaker 01: Sure. [00:20:34] Speaker 04: But that doesn't really support the payment part of it. [00:20:40] Speaker 04: I didn't understand the connection there. [00:20:42] Speaker 04: I think you've tried to make one by suggesting, when you're briefing and citing to a case or two that suggests that if the defendant has some skin in the game, well, then he's more invested in the treatment. [00:20:53] Speaker 04: But there was nothing like that. [00:20:55] Speaker 04: from district court, nothing at all. [00:20:57] Speaker 01: Right. [00:20:57] Speaker 01: He falls back on the Beagle decision sort of as a basis to find that. [00:21:00] Speaker 01: Right. [00:21:00] Speaker 04: And what about the Beagle decision? [00:21:02] Speaker 04: What does it really tell us? [00:21:03] Speaker 01: Well, it at least gives some indication that this court in looking at Beagle did not seem to raise any concerns with the fact that this type of payment could be made. [00:21:12] Speaker 04: Of course, that wasn't argued. [00:21:13] Speaker 01: It wasn't necessarily argued. [00:21:15] Speaker 01: It really is pretty meaningless. [00:21:16] Speaker 01: That's why I would sort of point, as Your Honor sort of alluded to, I'd point the court to the Hines decision as a more appropriate decision to look at in terms of [00:21:24] Speaker 01: of relevance. [00:21:25] Speaker 01: Certainly, it's only persuasive. [00:21:26] Speaker 01: It's not this circuit. [00:21:27] Speaker 01: But at the end of the day, the Hines Court certainly looked at this in the exact posture that the defendant brings the case today. [00:21:33] Speaker 01: There in Hines, the defendant raised the issue, particularly of whether or not this provision ran afoul of congressional authority to be able to [00:21:45] Speaker 01: to allow for this to happen. [00:21:47] Speaker 01: And they fell back on 3672 as a basis. [00:21:50] Speaker 04: We understand the difference. [00:21:52] Speaker 04: Pellett makes a pretty good argument that 3672 really can't be applicable here, can it? [00:22:00] Speaker 04: That's an interesting question. [00:22:02] Speaker 01: They didn't really analyze that. [00:22:03] Speaker 01: To some degree, and counsel can certainly correct me if I'm wrong here, but they seem to suggest that if the court were to restructure the order, if this were to be sent back and the court were to restructure the order, [00:22:13] Speaker 01: It certainly would be allowed to make this provision just writing it in a different format. [00:22:19] Speaker 01: So it's sort of six and one half dozen the other. [00:22:21] Speaker 01: You can either order it through the special provision as a special condition, or you can simply separate it out into a particular order itself under 3672. [00:22:31] Speaker 01: So to me, I think there's an appreciation for the fact that Congress did authorize this [00:22:39] Speaker 01: The courts looked at it as, well, if we're going to use a vehicle to impose this type of payment, 3672 certainly allows for that vehicle to exist. [00:22:49] Speaker 01: And the court being able to do that under 3583D as a measure, as a part of a special condition, certainly fits within the court's authority. [00:22:58] Speaker 01: Because one, under 3553A, as we argue, it certainly incentivizes the defendant. [00:23:05] Speaker 01: And we believe it meets all of the factors under 3553A, [00:23:08] Speaker 01: Because again, he has skin in the game to make sure that that treatment is followed through, gives him an opportunity to better his integration. [00:23:18] Speaker 01: And so it is certainly a factor that the government believes and certainly has been stated in other cases that this incentive is important for a defendant to succeed. [00:23:31] Speaker 01: We're not standing here trying to suggest that this payment is some sort of a fine, [00:23:35] Speaker 01: or anything. [00:23:36] Speaker 01: This is something that the government truly believes in because we stand with the defendant to ensure that they have the best way to succeed on supervised release. [00:23:45] Speaker 01: And giving the district court the authority to impose a special condition like this certainly lends itself to the defendant being able to do so. [00:23:54] Speaker 01: So at the end of the day, if the court were to find that somehow this violates the statute in the way that the defendant says, [00:24:03] Speaker 01: It would certainly beg the question about whether or not the district court could just simply reform the language itself to fit 3672. [00:24:12] Speaker 01: And again, you're getting to the exact same issue. [00:24:15] Speaker 01: The defendant associating or being able to provide for costs toward his own treatment if he is financially able to do so. [00:24:26] Speaker 04: I know the government didn't rely on 3563b22. [00:24:28] Speaker 04: The district court brought that up. [00:24:32] Speaker 04: Sue Esponte, are you suggesting that that somehow supports its probation? [00:24:37] Speaker 01: Only to the extent that it gives some sort of congressional intent on the idea that there is a much broader discretion when you're getting into the conditions that someone is being given by the district court in these, both on probationary status and as supervised release. [00:24:52] Speaker 01: And again, I don't think that that should be undervalued here because congressional intent really is, in the broader sense here, the idea that the district courts must look at each defendant in an individualized way. [00:25:05] Speaker 01: If you begin to cabin that discretion, you start to treat every defendant the same way. [00:25:10] Speaker 01: Congress certainly didn't want that to happen. [00:25:13] Speaker 01: It set the groundwork and set the parameters under 3583D by setting those three criteria that the court must meet. [00:25:22] Speaker 01: And again, our position is that when someone is told that they must assist in the payment, if they can do so, it certainly incentivizes them to be able to succeed on supervised release. [00:25:32] Speaker 04: Well, there certainly are plenty of other conditions in the statute where the Congress has specifically made it clear you can impose payment obligations. [00:25:43] Speaker 04: What does that mean? [00:25:44] Speaker 04: Does it mean the opposite can't be true? [00:25:47] Speaker 04: If you don't have authority, you can't impose them? [00:25:52] Speaker 01: We don't believe so. [00:25:53] Speaker 04: Can you address some of the case law that Mr. Hansmeier was discussing that he said was analogous? [00:26:00] Speaker 01: Our position again is that 3583D drives this, that it isn't 3563 that drives the understanding. [00:26:06] Speaker 01: Certainly Congress, when looking at the probationary factors, made a determination that there has to be certain payments under certain circumstances. [00:26:13] Speaker 01: Again, many of those are tied to the conviction themselves necessarily, but not all of them. [00:26:17] Speaker 01: But 3583D, knowing that in terms of supervised release, that each individual defendant may have particular factors that they have to reach, [00:26:26] Speaker 01: set the gates that must be met, and those are 3553 deprivation of liberty and policy considerations under the guidelines. [00:26:36] Speaker 01: That is the only analysis that we believe that the court must go through. [00:26:39] Speaker 01: I think you can divorce [00:26:41] Speaker 01: The court can divorce itself of 3563 in that instance. [00:26:45] Speaker 01: And therefore, anything under 3563 really doesn't have as much impact here as 3583D. [00:26:54] Speaker 01: I think what the defendant wants the court to look at is that those two statutes have to be read together in a way to establish congressional intent. [00:27:03] Speaker 01: But 3583D drives supervised release analysis. [00:27:11] Speaker 03: Is this payment scheme, is that standard practice for the district of Kansas judges? [00:27:18] Speaker 01: I don't want to speak for the entire district judge. [00:27:21] Speaker 01: I don't know. [00:27:22] Speaker 01: I will tell you in researching this issue, this seems to be at least a common factor amongst districts across the United States. [00:27:30] Speaker 01: How uniform that is, it's hard to say because in a lot of instances [00:27:35] Speaker 01: I think you have to look at it in terms of is it uniform in the context of everybody who is getting treatment. [00:27:42] Speaker 01: Certainly there are going to be individual defendants where there's no treatment issue. [00:27:46] Speaker 01: But in terms of this particular language being uniform across the district, it certainly does come up quite often. [00:27:52] Speaker 01: I would say it's probably used more often than not. [00:27:55] Speaker 01: Under the circumstances, most of the judges in the district, at least in the cases that I have handled, [00:28:01] Speaker 01: That language is incorporated into the overall supervised release provision. [00:28:08] Speaker 04: respond to the argument that is made in the reply brief. [00:28:11] Speaker 04: I know you haven't had a chance to respond, that the government somehow conceded when you said in your brief that nothing suggests from the record of the district court's order that any failure by the defendant to contribute is a standalone violation that could potentially cause a revocation of supervised release. [00:28:28] Speaker 04: Now, I don't really need you to address whether that's concession or not. [00:28:32] Speaker 04: I do wonder if that isn't an incorrect statement of the law. [00:28:36] Speaker 04: I mean, if you make it a mandatory condition of release, it certainly could be a standalone basis for revocation if he doesn't pay as directed, couldn't it? [00:28:47] Speaker 01: We, again, to sort of alleviate any confusion, [00:28:52] Speaker 01: Yes, what I was trying to simply suggest is that the highly unlikelyhood of that occurring under the circumstances of an individual who could show indigency. [00:29:01] Speaker 01: But I would agree with the court that in the event that a district court had someone say who was quite wealthy. [00:29:07] Speaker 01: certainly could impose that. [00:29:09] Speaker 04: Or maybe not quite wealthy. [00:29:10] Speaker 04: Maybe just has the ability to pay something. [00:29:12] Speaker 04: That's really not what the condition requires. [00:29:16] Speaker 01: Not necessarily. [00:29:16] Speaker 04: You have to be quite wealthy. [00:29:18] Speaker 01: Right. [00:29:18] Speaker 01: And again, we're coming at it from a practical standpoint. [00:29:22] Speaker 01: And quite frankly, we've not seen, at least had a situation, and that sort of drove the issue about whether or not there was a rightness issue as to whether or not there were conditions that needed to be established before this question really was something that was appropriate to bring to the court. [00:29:35] Speaker 01: To clear up that issue, to be very clear, it looks like in the reply brief, the defendant himself is sort of arguing now without any issue that this is strictly a facial challenge to the statute. [00:29:47] Speaker 01: If that is the case, the government would concede that there is no right in this issue for the court to address, that if the court is only going to address the issue of whether or not there's authority under the statute, this is right before the court. [00:29:58] Speaker 01: Judge, I want to be as completely responsive to your question with respect to the issue of [00:30:04] Speaker 01: of whether or not it's a standalone reason to go ahead and reject or to revoke someone's supervised release. [00:30:10] Speaker 01: Again, we made that argument to some degree under the rightness issue to try to suggest that that's an issue that would come up at a later time. [00:30:18] Speaker 01: But at the same point, we do concede that at the end of the day, a district court could do that. [00:30:23] Speaker 01: We just simply suggest that it's highly unlikely. [00:30:26] Speaker 04: I appreciate your acknowledgement of that. [00:30:28] Speaker 01: I see that I am exactly out of time. [00:30:30] Speaker 01: Unless there are further courts, we would ask the court to affirm the court's decision to impose this condition. [00:30:34] Speaker 03: Thank you, counsel. [00:30:35] Speaker 03: And Kevin, could you give three minutes? [00:30:44] Speaker 02: Thank you. [00:30:45] Speaker 02: Let me just try to make a few real quick points, and then maybe two broader points. [00:30:49] Speaker 02: So I think Jared just said we're making a facial challenge to a statute. [00:30:54] Speaker 02: Nope, we are not doing that. [00:30:56] Speaker 02: So please don't think I'm making any facial challenge to any statute. [00:30:59] Speaker 02: We're just challenging. [00:31:00] Speaker 02: statutory authority for this particular type of condition. [00:31:05] Speaker 02: On the ground, I hope you all don't think that just rich people make these payments. [00:31:10] Speaker 02: I think, I mean, from just anecdotally, poor folks pay for treatment in Kansas. [00:31:14] Speaker 02: There's a copay system. [00:31:15] Speaker 02: They do. [00:31:16] Speaker 02: That's how I understand it. [00:31:17] Speaker 02: That's why I'm here. [00:31:18] Speaker 02: I represent poor people. [00:31:20] Speaker 02: The reason why 3563B matters is because it's cross-referenced in 3583D. [00:31:26] Speaker 02: That's why we get to 3563B, and that's why I'm talking about 3563B-9. [00:31:34] Speaker 02: On this, so I have not conceded at all, hopefully you know this, I have not conceded that 3672 is the statute you should rely on. [00:31:44] Speaker 02: That's not true. [00:31:45] Speaker 02: I don't think you should. [00:31:47] Speaker 02: My only point was that if you're going to go down the Seventh Circuit's path, [00:31:50] Speaker 02: this particular condition is not consistent with 3672. [00:31:54] Speaker 02: That was my point. [00:31:56] Speaker 02: But there is a difference, and just to be clear, there is a difference between reimbursement and the threat of revocation for the failure to pay. [00:32:04] Speaker 02: What I am saying is that 3672 authorizes reimbursement at some later date, and that could be even after the person is not on supervised release, which is much more likely that they would have money to pay [00:32:17] Speaker 02: when they're further along in their lives post-prison. [00:32:23] Speaker 02: My only point is that they shouldn't be under the threat of revocation for failing to pay. [00:32:29] Speaker 02: And I think that's what all signs point to that when you read the statutes, the relevant statutes, the context, the history. [00:32:39] Speaker 02: All of it points that way. [00:32:41] Speaker 02: On 3583D, with my last minute, [00:32:46] Speaker 02: If that's the provision we're talking about here, this catchall provision, first, we're still in the specific over general problem where we have a specific provision on treatment conditions that does not include payment language. [00:32:57] Speaker 02: We still have the surplusage problem that if you're going to allow a catchall provision, monetary obligation, you still have all of the enumerated monetary obligations that become surplusage. [00:33:08] Speaker 02: And if you look at the 3583 D1 through 3, I just, this idea, you know, the Seventh Circuit relies on this self-evident proposition that people love to pay for things that are ordered. [00:33:20] Speaker 02: Poor people love to pay for things that they're supposed to, that they have to pay for, court tells them to pay for. [00:33:25] Speaker 02: I mean, I don't know why the Seventh Circuit thinks that. [00:33:29] Speaker 02: There are other circuits, I think the Third Circuit, the Ninth Circuit, this is in our briefs on page 36, Eyler and Evans have rejected that reasoning. [00:33:37] Speaker 02: I think you should too, also 3583 D3. [00:33:39] Speaker 02: There is nothing in the guidelines that authorizes payment language. [00:33:46] Speaker 02: And so that doesn't work either. [00:33:47] Speaker 02: Thank you for the extra time. [00:33:49] Speaker 03: You're welcome. [00:33:50] Speaker 03: Thanks for the fine arguments. [00:33:51] Speaker 03: Counselor excused and the case will be submitted.