[00:00:00] Speaker 00: Case number 22 to 3087, United States of America versus Troy Anthony Smock, also known as Kenneth Harris, also known as Tony Sanders, also known as Vincent Shelton, also known as Troy Perez at balance. [00:00:14] Speaker 00: Ms. [00:00:14] Speaker 00: Wright for the balance, Ms. [00:00:16] Speaker 00: Flemming for the epilogue. [00:00:18] Speaker 01: Good morning, Ms. [00:00:18] Speaker 01: Wright. [00:00:20] Speaker 01: Good morning, may I please the court? [00:00:21] Speaker 01: Please the right for Mr. Smocks. [00:00:23] Speaker 01: I'd like to reserve two minutes for rebuttal. [00:00:26] Speaker 01: The district court here aired in modifying Mr smocks is supervised release condition to add a forced installation of computer monitoring software without properly weighing the public's interests against the deprivation of Mr smocks is liberty. [00:00:38] Speaker 01: Some brief background, the original PSR mentioned computer monitoring slash search, but didn't have any reference to any software. [00:00:48] Speaker 01: Um, the software reference first appeared in the probation officer's sentencing format. [00:00:52] Speaker 01: It's not clear. [00:00:53] Speaker 01: Defense counsel saw that. [00:00:54] Speaker 01: At sentencing court read the sentencing format. [00:00:59] Speaker 05: And should we assume that defense counsel didn't read the pre sentencing? [00:01:04] Speaker 01: Another recent report, the sentencing format that comes at the back of the. [00:01:09] Speaker 01: Probation officers recommendation. [00:01:11] Speaker 01: It's my understanding that Council doesn't always get that. [00:01:14] Speaker 01: I notice it's not. [00:01:16] Speaker 01: It doesn't have a number on the docket to even click on, so I think that means. [00:01:21] Speaker 01: That it may have been inaccessible. [00:01:23] Speaker 01: even to counsel. [00:01:25] Speaker 01: I'm not sure. [00:01:26] Speaker 01: And so what the court read really was a little bit nonsensical at sentencing. [00:01:33] Speaker 01: Of course, there was no appeal. [00:01:34] Speaker 01: He waived his appeal. [00:01:36] Speaker 01: So that was that. [00:01:38] Speaker 01: He finished his 14-month sentence a few months later. [00:01:40] Speaker 01: And then six months after that, probation came to him and advised him that he had the right to a hearing before any, quote, unfavorable change in his release conditions, asked him to waive that, and he declined. [00:01:52] Speaker 01: probation petition to modify and add the software installation requirement, which the court did over counsel's objection that the 3583 D standard had not been met. [00:02:04] Speaker 01: And this appeal is of that modification order. [00:02:10] Speaker 01: The district court was required to weigh the deprivation of Mr. Spock's liberty against the need for deterrence and public safety. [00:02:16] Speaker 01: and to choose the least restrictive alternative to accomplish those goals. [00:02:20] Speaker 01: And millennia requires a narrow tailoring to the purposes of the restriction. [00:02:24] Speaker 01: And the court here purported to weigh in balance and choose the least intrusive means. [00:02:29] Speaker 01: But that evaluation was really impossible because the court didn't identify the scope and target. [00:02:35] Speaker 01: There was no restriction that the monitoring was enforcing or any description or thought as to how. [00:02:43] Speaker 01: the monitoring would take place, it seems that the nature of the monitoring wasn't really considered and that the monitoring condition seemed to just be presented to the court as a less restrictive alternative to a computer ban or an internet ban or a restriction, but not what monitoring options might be and whether the monitoring option that was being ordered. [00:03:05] Speaker 05: Where did the defense attorney say, this is how we think that this should be restricted [00:03:12] Speaker 05: you know, this and not this. [00:03:14] Speaker 05: I don't see that was ever said to the district court. [00:03:20] Speaker 01: Well, he was objecting generally to this deprivation of liberty. [00:03:24] Speaker 05: I mean, that's my point. [00:03:26] Speaker 05: But that seems to be a different argument than the argument that you're making, which is that even if the software could have been [00:03:36] Speaker 05: loaded, it should have had some restriction than just to monitor everything. [00:03:43] Speaker 01: I guess the way I'm thinking of it is something was ordered and that's something which, frankly, we don't know what the reality of it is. [00:03:51] Speaker 01: The weighing was never done on that something because the something wasn't specified and nor was there a specification of what it was looking for. [00:04:02] Speaker 01: And most of these cases, of course, are like child porn cases where [00:04:05] Speaker 01: It's very few cases that aren't, that you could find that aren't child born cases. [00:04:09] Speaker 01: And so they're obviously, they're looking for images, they're looking for certain things and you can put in like filtering software and that's been upheld many times, but it's unclear here. [00:04:19] Speaker 01: This was just looking for crime, criminal speech, it sounds like. [00:04:25] Speaker 01: And, but yet it wasn't even said that it wasn't said, don't say this, don't do this, don't look here, don't post there. [00:04:32] Speaker 01: and we're gonna monitor you to enforce that. [00:04:34] Speaker 01: It wasn't paired with anything. [00:04:35] Speaker 01: And I would point to the Albertson case where they said that, that's the third circuit where they said that software is generally acceptable if the internet restriction to which it applies is narrowly tailored. [00:04:50] Speaker 01: And that reasonable method of monitoring and filtering can be reasonable methods of enforcing a more targeted restriction [00:04:58] Speaker 01: and there's no problem with the monitoring if it's paired with a narrowly tailored restriction, but here there was like a free floating. [00:05:05] Speaker 05: I'm trying to make sure I understand your argument. [00:05:07] Speaker 05: Are you saying that at the time of sentencing, Mr. Smocks and his counsel were not on notice that the monitoring that would be done was going to be done using software? [00:05:26] Speaker 01: I mean, they were told that at the sentencing, possibly they saw the format ahead of time, but I mean, they saw the word software. [00:05:32] Speaker 01: That's the first time it came up, but the monitoring. [00:05:35] Speaker 05: So, I mean, so they knew that it was going to be software and he waived appeal of supervised [00:05:50] Speaker 05: release conditions as part of waiving appeal to the sentence unless it was an illegal sentence. [00:06:00] Speaker 05: So I'm trying to understand then if he waived appeal of supervised release conditions and he knew at least as of the time of sentencing that that meant that that would include [00:06:18] Speaker 05: software used to monitor how is it that it's properly before us to essentially revisit whether or not it's appropriate just to load any software on the computer at all. [00:06:40] Speaker 01: Well, I now understand the question. [00:06:43] Speaker 01: We disagree with the premise that he knew there was going to be software. [00:06:48] Speaker 01: Because what this special condition just says, you must submit your computers or other electronic devices to a search. [00:07:01] Speaker 01: Wait a minute. [00:07:02] Speaker 01: I'm sorry, I'm in the wrong place. [00:07:04] Speaker 01: Sorry. [00:07:05] Speaker 01: To ensure compliance with the computer monitoring condition, you must [00:07:10] Speaker 01: allow periodic searches, and then is in that reference to software. [00:07:15] Speaker 01: But if you just read this or you're just listening to this, you think, OK, compliance with the computer monitoring condition. [00:07:22] Speaker 01: But you're like, what computer monitoring condition? [00:07:25] Speaker 01: They forgot to put that in there, essentially. [00:07:27] Speaker 01: They just have a heading that says computer monitoring slash search. [00:07:30] Speaker 01: They don't say you are going to be subject. [00:07:33] Speaker 01: First of all, they don't say you can't do such and such on your computer. [00:07:37] Speaker 01: and we're going to subject you to a computer monitoring condition and then say to comply. [00:07:41] Speaker 01: So it's not clear that this whole condition has any relevance to him at that point. [00:07:47] Speaker 01: And he's not objecting to it. [00:07:48] Speaker 01: He doesn't have a right to appeal it. [00:07:50] Speaker 01: And it doesn't appear that it's even going to be a problem. [00:07:53] Speaker 01: In fact, it isn't a problem for like six months when they come to him and they are the ones that say, we want to change. [00:07:58] Speaker 05: They come to him because he's getting out of prison at that point. [00:08:02] Speaker 01: Well, he'd been out for at least six or seven months at that point when they came to him. [00:08:07] Speaker 01: He got out, I think, in January. [00:08:09] Speaker 01: And they came to him end of July. [00:08:11] Speaker 01: And then they petitioned early September to have it put in. [00:08:14] Speaker 01: And they're the ones that said, this isn't covered. [00:08:18] Speaker 01: This hasn't been ordered. [00:08:20] Speaker 01: This is new. [00:08:21] Speaker 01: We're unable. [00:08:23] Speaker 01: I think they say the current condition does not allow us to do it. [00:08:27] Speaker 01: And we're unable to install it without. [00:08:29] Speaker 01: That's what it says in the petition. [00:08:31] Speaker 04: When the modifications took place, what was his objection in the district court? [00:08:41] Speaker 04: What was the basis for the objection? [00:08:43] Speaker 01: Well, he said several things, but his overall objection, and he quoted the statute in full. [00:08:47] Speaker 01: He said that it had to be the, if you wrote 3583, let me just find that. [00:08:54] Speaker 04: I ask that because, as I recall, the government says that [00:09:00] Speaker 04: a good deal of the argument that you're presenting to us was not presented to the district. [00:09:04] Speaker 01: Yes. [00:09:05] Speaker 01: Well, he called the soft. [00:09:07] Speaker 01: First of all, he quoted 3583 in full, which says, um, sorry, says that, uh, the language about cannot has to be a deprivation, no greater than reasonably necessary. [00:09:21] Speaker 01: He called the software quote unnecessary and overbroad. [00:09:24] Speaker 01: And he argued that the, quote, deprivation, including these privacy and interference with his legal work interests, were, quote, not reasonably necessary under the law. [00:09:34] Speaker 01: So he made a very broad challenge. [00:09:35] Speaker 04: There was no objection on the basis that the terms of the monitoring were contradictory. [00:09:45] Speaker 01: Right. [00:09:46] Speaker 01: I mean, right. [00:09:48] Speaker 01: That's right. [00:09:48] Speaker 01: But that's not really what we're saying now. [00:09:51] Speaker 01: the same broad objection that he made at the re hearing. [00:09:56] Speaker 03: Um, that's right. [00:09:57] Speaker 03: If we, if we understand, um, the modification to really be a kind of a clarification of the terms, would the appeal waiver cover that? [00:10:07] Speaker 01: Uh, no. [00:10:08] Speaker 01: Um, I think the third and the 10th circuits have both said that first, of course, the appeal waivers are construed against draft or against the government. [00:10:17] Speaker 01: And this court has done that and construed them narrowly. [00:10:20] Speaker 01: And the 3rd Intent Circuit held that appeal waivers don't cover post-sentencing modifications of supervisor. [00:10:26] Speaker 03: Well, modification, but what if it was a clarification? [00:10:28] Speaker 03: Would a clarification be covered by the appeal waiver? [00:10:31] Speaker 03: Well, again, I... I understand that the district court called it a modification and you take it to be a modification. [00:10:39] Speaker 03: Yeah. [00:10:39] Speaker 03: Assuming that I thought it was a clarification, would the appeal waiver cover that? [00:10:46] Speaker 03: Because then it would be part of the sentence in this case, wouldn't it? [00:10:51] Speaker 01: I guess, yeah, arguably so. [00:10:53] Speaker 01: I'm not conceding that. [00:10:55] Speaker 01: But here, probation characterized it as a change, an unfavorable change. [00:11:00] Speaker 01: They don't work, considering it to be a clarification. [00:11:03] Speaker 03: And are we bound by the formalism of that label? [00:11:08] Speaker 01: Well, I mean, you can just read it, and it doesn't authorize it. [00:11:15] Speaker 01: Probation didn't think it authorized it. [00:11:19] Speaker 01: I mean, it didn't authorize it. [00:11:21] Speaker 01: It doesn't authorize it. [00:11:22] Speaker 01: In fact, it's just sort of nonsensical. [00:11:24] Speaker 01: It talks about to enforce the computer monitoring condition. [00:11:29] Speaker 01: And when I first picked up this file and I knew it had been, you know, I just was told like, this is a computer monitoring condition. [00:11:35] Speaker 01: I looked at the old JNC as the first thing I looked at it and I read the thing and I was like, what computer monitoring condition? [00:11:41] Speaker 01: I mean, that's what you think when you read it. [00:11:43] Speaker 01: And yeah, I mean, it is, [00:11:48] Speaker 01: I guess I'm not saying you're bound by what probation said, but it certainly, they don't think their own terms and they clearly do have terms to choose from. [00:11:56] Speaker 01: They just like didn't put them in. [00:11:58] Speaker 01: I mean, they have recommended language and they opt for like sort of the compliance thing instead of the actual imposition. [00:12:08] Speaker 01: And again, they didn't care it with any kind of, it's like a free floating. [00:12:14] Speaker 01: monitoring, which in this outside of the foreign context, it's really like, I don't know how anyone would be impossible to evaluate it. [00:12:23] Speaker 01: And I think what happened here is the court compared it to a ban and said that's less restrictive than a ban. [00:12:35] Speaker 01: But they didn't compare it to any other kind of monitoring. [00:12:39] Speaker 05: Well, what did the government say [00:12:41] Speaker 05: that the monitoring would accomplish. [00:12:44] Speaker 05: The government? [00:12:45] Speaker 05: Probation, prosecutor, anybody. [00:12:50] Speaker 05: What did they say that the monitoring would deter? [00:12:53] Speaker 05: And what would it flag for? [00:12:58] Speaker 01: Well, they certainly weren't specific. [00:13:01] Speaker 01: They just said it would deter future criminal conduct, basically. [00:13:05] Speaker 01: And the judge, when he complained it was going to interfere with the First Amendment, [00:13:10] Speaker 01: The court said, well, this is only looking at criminal speech, so it seemed like they were saying, don't commit any crimes, and we're gonna be randomly looking through your computer. [00:13:17] Speaker 01: I mean, we don't know what they're doing with the computer, but to just look for crime in general. [00:13:23] Speaker 05: The court said that- Well, I guess what I'm trying to get at is, is there evidence in the record that the monitoring software was going to allow someone in the probation office [00:13:36] Speaker 05: to watch his every keystroke and to look at every email and to look at every web page that he visited, or is the evidence that they would be able to, software would allow them to kind of go back [00:13:57] Speaker 05: And if there was something concerning, they would be able to find it because the software was there that was essentially kind of capturing what he was doing and they could kind of use that software to search for something. [00:14:13] Speaker 01: Absolutely nothing in the record about that. [00:14:15] Speaker 01: And that's our point. [00:14:16] Speaker 01: Like that is our point that like if the court doesn't know what it's ordering, it can't wait. [00:14:23] Speaker 05: Um, it said that it was, but, but if the court, if like those points weren't like directly made to the district court, then how's the district court airing in like what I just said, I don't see where the defense lawyer said that. [00:14:48] Speaker 01: Well, because the court has an obligation to weigh and the [00:14:53] Speaker 01: said that we said this doesn't balance doesn't allow this and the judge has to then the judge has this independent thing it's not like have to ask for each little thing you're saying way this and if the judge doesn't do that I can't [00:15:08] Speaker 01: do that because of they don't know what they're ordering exactly. [00:15:12] Speaker 01: There's no specification. [00:15:13] Speaker 01: It's covered by the objection, I guess, is what I would say. [00:15:17] Speaker 01: And the court also said the monitoring condition was, quote, limited to balance Mr. Smock's interests with the public's. [00:15:27] Speaker 01: But there was no limiting. [00:15:29] Speaker 01: The monitoring restriction wasn't limiting at all. [00:15:31] Speaker 01: It just said monitoring and filtering. [00:15:37] Speaker 01: Again, we point to Albertson, and I guess our overall argument is that when the court has to be the one that narrowly tailors it, there has to be guidelines. [00:15:55] Speaker 01: Maybe probation can work out the fine points, but the court has to tell them what they're supposed to look for. [00:16:03] Speaker 01: like what scope of places they can look. [00:16:05] Speaker 01: And if they don't know that, then that's not weighing that the doing the weighing that we objected didn't satisfy what couldn't be satisfied. [00:16:15] Speaker 01: You just aren't doing the right weighing that we asked for. [00:16:19] Speaker 05: And where's kind of like your best citation in the record for the argument that you just made having been made to the district court. [00:16:29] Speaker 01: Um, so, um, [00:16:33] Speaker 01: didn't put the page site there. [00:16:35] Speaker 01: It is on, just quickly find that. [00:16:37] Speaker 01: It's at the modification hearing. [00:16:41] Speaker 01: No, no, it's in the, it's in the opposition to the petition and it's on page, pages like 94 or 93 and 94. [00:16:53] Speaker 05: Of your appendix? [00:16:56] Speaker 01: Yes, of my appendix where he quotes the court may order [00:17:02] Speaker 01: Condition of supervised release to the extent it involves no greater deprivation of liberty than is reasonably necessary for the purposes and quoting the statute. [00:17:09] Speaker 01: And then he says that it's unnecessary and overbroad and unnecessarily, it's not reasonably necessary under the law, necessarily overseeing communications. [00:17:23] Speaker 01: So that's what I would say. [00:17:26] Speaker 01: So we would ask for these reasons that the software installation order be vacated in the case would be remanded for the acquired 3583 D inquiry. [00:17:36] Speaker 05: Thank you. [00:17:42] Speaker 05: Miss Fleming. [00:17:43] Speaker 02: Good morning, may it please the court, Mary Fleming for the United States. [00:17:48] Speaker 02: The software installation condition is part of the original condition of computer monitoring, which Smocks did not object to to blow and is not challenging on appeal. [00:17:58] Speaker 02: And because the installation is part of the original condition, the appeal waiver bars this appeal. [00:18:04] Speaker 02: And regardless, the district court did not err in ordering the installation of monitoring software. [00:18:09] Speaker 03: So why did the government seek a modification that was part of the original terms of supervised release? [00:18:14] Speaker 02: The probation office saw a modification. [00:18:17] Speaker 02: The government actually didn't really oppose, but said that they didn't think it was necessary. [00:18:22] Speaker 02: I don't think the court should read too much into whether probation thought that a modification or clarification was necessary. [00:18:29] Speaker 02: They have an interest in making sure that all the i's are dotted and t's are crossed. [00:18:34] Speaker 05: But the district court found that it was a modification or granted a modification, right? [00:18:40] Speaker 02: Right. [00:18:41] Speaker 02: The court also said that [00:18:43] Speaker 02: The court didn't think that it was really necessary. [00:18:47] Speaker 02: It was a clarification that the installation was heavily implied in the original condition. [00:18:54] Speaker 02: But it seems that everyone just kind of thought, what's the harm? [00:18:59] Speaker 03: And having treated it as a modification, why wouldn't it be covered by the appeal waiver? [00:19:06] Speaker 02: If it's a true modification, we don't view it as a true modification. [00:19:11] Speaker 02: Even if it is introducing something slightly new, it's clearly contemplated by the original condition of supervised release. [00:19:20] Speaker 03: Well, but so if we have a rule that says, I mean, if we were to decide that the appeal waiver bars this appeal, what about modifications that were more substantial? [00:19:31] Speaker 02: That's a harder question. [00:19:33] Speaker 02: We're not pressing that argument if it was an entirely new modification, whether the appeal waiver. [00:19:39] Speaker 03: So you think an entirely new modification would not be covered by the appeal waiver? [00:19:43] Speaker 02: Possibly. [00:19:45] Speaker 02: We haven't. [00:19:48] Speaker 02: air that argument fully. [00:19:50] Speaker 02: I think that is a hard question. [00:19:52] Speaker 02: Here, the waiver is very broad and covers. [00:19:55] Speaker 03: So what would be the rule then? [00:19:57] Speaker 03: The rule is like, if the court feels like something is a clarification instead of a modification. [00:20:03] Speaker 03: I think. [00:20:04] Speaker 03: I mean, the district court said, I'm granting a modification. [00:20:10] Speaker 03: Use that term. [00:20:11] Speaker 03: It's a statutory term. [00:20:13] Speaker 03: So I feel like either modifications are covered by the appeal waiver or they're not covered by the appeal waiver. [00:20:18] Speaker 03: But I'm not sure how we're supposed to sort out whether it was substantial modification or not. [00:20:24] Speaker 03: That doesn't seem to have any statutory basis or any basis in the appeal waiver. [00:20:29] Speaker 02: Here, the original condition referred three times to the installation of monitoring software, this was [00:20:37] Speaker 02: part and parcel of the original condition. [00:20:39] Speaker 02: And if we get into a world where any sort of clarification is not covered by an appeal waiver, that could really got appeal waivers effectiveness and discourage probation or the court or even the government from agreeing to these clarifications, which doesn't seem to be in the interest of defendants. [00:20:59] Speaker 03: Well, Mr. Smocks council suggests that a clarification [00:21:03] Speaker 03: you know, might be covered by the appeal waiver, but we don't have a clarification here. [00:21:07] Speaker 03: We have a modification or something that was labeled a modification. [00:21:12] Speaker 02: We would ask the court to look at the substance over the form. [00:21:15] Speaker 02: Again, the original condition requires installation of monitoring software. [00:21:21] Speaker 02: It refers to that three times. [00:21:23] Speaker 02: The majority of the condition is about the monitoring software and making sure it's functioning effectively. [00:21:29] Speaker 02: It really can't reasonably be read any other way. [00:21:33] Speaker 02: And in light of case law, that [00:21:36] Speaker 02: Supervised release conditions are in a common sense way with the plain meaning, with the district court's intent in mind. [00:21:44] Speaker 02: In light of all of that, this is properly characterized as a clarification. [00:21:48] Speaker 04: Is this monitoring software on 24 hours a day? [00:21:53] Speaker 02: That's not in the record, but that's my understanding that it is. [00:21:56] Speaker 04: And so what happens is the, how does probation utilize it? [00:22:03] Speaker 02: I'm happy to answer the question. [00:22:05] Speaker 02: It's not in the record. [00:22:06] Speaker 02: My understanding from talking with probation is that it does have continuous monitoring. [00:22:12] Speaker 02: And then probation, occasionally on a periodic basis, will go in and review that. [00:22:17] Speaker 04: They can sit in front of the screen here in Washington, DC, and monitor everything that's going on on the computer? [00:22:29] Speaker 04: See, the reason I'm asking this question is that the condition [00:22:33] Speaker 04: that was imposed was in two parts. [00:22:38] Speaker 04: This is after the original sentencing. [00:22:41] Speaker 04: One was installed as monitoring computer software, but the second was that it can't be, basically it can't be used unless there's reasonable suspicion that there's a violation of a condition of supervision and that the computer or device contains evidence of that. [00:23:04] Speaker 04: Is that what's going on here? [00:23:08] Speaker 04: I mean, you have a constant monitoring, but you can't use it unless you have evidence and reasonable suspicion that there's been a violation of the terms and conditions of the supervised release. [00:23:25] Speaker 02: That's not how the conditions work. [00:23:28] Speaker 02: So the monitoring is an ongoing monitoring that probation can look at on a periodic basis. [00:23:35] Speaker 02: The reasonable search condition in probation and the court setting. [00:23:39] Speaker 02: Isn't that a search? [00:23:40] Speaker 02: Yes. [00:23:41] Speaker 04: If they're monitoring all the time, then that's a search. [00:23:45] Speaker 04: Right. [00:23:47] Speaker 04: Right. [00:23:47] Speaker 04: Right. [00:23:48] Speaker 04: The next condition says you can only conduct the search if you have reasonable suspicion that there's evidence there. [00:23:56] Speaker 02: That condition, as the court said, was aimed at ensuring that probation can search computers that are not reported to the probation office. [00:24:05] Speaker 02: And that's what probation said when they asked for that condition as well. [00:24:10] Speaker 02: The two conditions are aimed at different things. [00:24:13] Speaker 04: I just don't understand how the two can stand together. [00:24:17] Speaker 02: Also, that wasn't objective to you below. [00:24:20] Speaker 02: So that argument is for plain error. [00:24:23] Speaker 02: But again, the reasonable suspicion searches. [00:24:27] Speaker 04: Yeah, but it sounds to me like a plain error. [00:24:29] Speaker 02: Well, the reasonable suspicion searches are really aimed at computers that were not reported to probation. [00:24:35] Speaker 02: The monitoring is for the computers that are subject to the monitoring. [00:24:41] Speaker 02: There might be some overlap there, but they're not inconsistent. [00:24:46] Speaker 05: So help me understand whether or not the district court thought that a modification was really needed. [00:25:02] Speaker 05: The fact of the matter is that we are reviewing an order that is saying that it is modifying the conditions of lease. [00:25:15] Speaker 05: So why shouldn't we treat this? [00:25:20] Speaker 05: I mean, how can we just say this is a clarification and not a modification when the order says that it is a modification? [00:25:31] Speaker 05: What authority do you have for that proposition? [00:25:34] Speaker 02: Looking at the substance of the courts, original order and the substance of the later clarification. [00:25:42] Speaker 02: And also, I point this court. [00:25:46] Speaker 04: They're not necessarily different. [00:25:52] Speaker 04: A clarification can be a modification, okay? [00:25:56] Speaker 04: And a modification can be a clarification. [00:26:00] Speaker 04: You say, well, this is just a clarification. [00:26:02] Speaker 04: That does not exclude [00:26:04] Speaker 04: the distinct possibility that it was also a modification of the terms. [00:26:10] Speaker 04: This far and no further, or one exception or another, they're all clarifications, but they're also modifications, aren't they? [00:26:18] Speaker 02: Well, in light of the original order that talks extensively about installation of monitoring software, [00:26:26] Speaker 02: that this condition was part and parcel of the original condition. [00:26:30] Speaker 02: And in love, this court said that it looked to the district court's intent in trying to parse out this distinction. [00:26:37] Speaker 02: And there was some discrepancy between the oral pronouncement of the court and the written judgment. [00:26:42] Speaker 02: And the court there said, we're not going to remand for the district court to do this over where the written judgment was merely clarifying the original order. [00:26:52] Speaker 02: Under that analysis, there is a distinction and the core is not found by formalistic distinctions. [00:26:59] Speaker 05: So let's suppose that you have a situation where the original judgment, you know, is clear that installation of the software is permitted. [00:27:22] Speaker 05: And the way that this was worded is that way that this judgment was worded. [00:27:33] Speaker 05: It just says, um, computer subject to computer monitoring, but it didn't really define of like what computers those were. [00:27:45] Speaker 05: So let's suppose the defendant got a job [00:27:51] Speaker 05: in an office and there are a hundred people and they all had computers and probation said, well, we think that since you could access any of those hundred computers, we should be able to install this software on all of those hundred computers in the office [00:28:15] Speaker 05: you to continue working there and you know you should notify these people that their computers are subject to monitoring but essentially you have to allow that to happen or you can't continue working there or will will consider the violation of your supervised release conditions for you to continue working there if we're not allowed to [00:28:43] Speaker 05: install the software and the employer says no, we're not gonna let that happen. [00:28:48] Speaker 05: So we're gonna have to let Mr Smocks go. [00:28:52] Speaker 05: Um, we'd love to have him stay, but we're just not going to allow probation to monitor all of our computers. [00:28:59] Speaker 05: Is that covered by a waiver? [00:29:03] Speaker 02: Is if there I'm sorry is [00:29:08] Speaker 05: So Mr Smocks says, I want to the district court. [00:29:13] Speaker 05: He challenges that in the district court. [00:29:15] Speaker 05: The district court says that's perfectly fine. [00:29:18] Speaker 05: That's, you know, that's a reasonable modification. [00:29:22] Speaker 05: You've waived everything. [00:29:25] Speaker 05: You're going to come here and you're going to say he he's waived waived the right to appeal that [00:29:33] Speaker 02: But that's an extreme example. [00:29:36] Speaker 02: I do think that under the terms of the condition, it does cover computers that he uses. [00:29:43] Speaker 02: That doesn't strike me as a modification. [00:29:46] Speaker 02: But this court also does presume, and this is- So it would be Wade. [00:29:51] Speaker 02: I believe so. [00:29:53] Speaker 02: But probation could always unreasonably implement conditions. [00:29:56] Speaker 02: There's a lot of discretion afforded to probation offices. [00:30:00] Speaker 02: And that works because courts assume and presume that that discretion will be exercised reasonably. [00:30:07] Speaker 02: And if he went back to the court and the court said that's what I ordered, then conceivably that would be waived. [00:30:16] Speaker 02: I don't know if the government would choose to enforce the appeal waiver in that instance. [00:30:21] Speaker 02: That doesn't strike me as a modification under the language that we have here. [00:30:24] Speaker 04: This order also applies not just to computers, does it? [00:30:30] Speaker 04: It's not just confined to computers. [00:30:33] Speaker 02: It uses computers as it's defined. [00:30:35] Speaker 02: Computers are defined broadly under the statute, so it extends itself out. [00:30:39] Speaker 04: But it also says computers or other electronic communications. [00:30:45] Speaker 04: Now, it would seem to me that [00:30:47] Speaker 04: An electronic communication would include telephones and cell phones. [00:30:54] Speaker 04: And you have to allow, the defendant has to allow searches of that. [00:31:02] Speaker 04: Does that mean that the probation office can put a wiretap on his phone and then pull up whatever they want if they have some reasonable suspicion? [00:31:14] Speaker 02: That's part of the computer search. [00:31:15] Speaker 02: That's not under the purview of the monitoring software. [00:31:19] Speaker 02: All right, I know. [00:31:22] Speaker 04: It's not computers. [00:31:23] Speaker 04: This is broader. [00:31:25] Speaker 04: It says, or other electronic communications. [00:31:27] Speaker 04: What do you think that entails? [00:31:29] Speaker 02: Right. [00:31:30] Speaker 02: I agree that that's broad. [00:31:31] Speaker 02: The burden there is higher. [00:31:33] Speaker 02: There has to be reasonable suspicion of a supervised release violation. [00:31:40] Speaker 02: more along the lines of an ordinary search upon reasonable suspicion, which is permitted in the supervised release year probation context. [00:31:50] Speaker 02: But I agree that that is broad. [00:31:57] Speaker 05: I don't. [00:31:59] Speaker 05: I guess. [00:32:00] Speaker 05: I'm not sure to follow up on Judge Randolph's questions. [00:32:07] Speaker 05: What is the meaning of the word search in the modified order that's at A196? [00:32:16] Speaker 02: So how the search would actually be conducted? [00:32:22] Speaker 05: Yeah. [00:32:22] Speaker 05: I mean, why search seems to be something that's different than just the installation of the monitoring software and the monitoring software [00:32:34] Speaker 05: just operating normally. [00:32:38] Speaker 05: Search seems to be something different than that. [00:32:41] Speaker 05: Am I misunderstanding this? [00:32:45] Speaker 02: Again, this isn't exactly in the record. [00:32:48] Speaker 02: My understanding is that a search, it could be conducted, it could be a physical search looking through [00:32:53] Speaker 02: computer it could also be a search through forensic software that is installed on the computer which is how searches are often done and electronic devices that that but it's it's different than this ongoing monitoring condition that's in the original order. [00:33:12] Speaker 05: So help me understand what the district court [00:33:24] Speaker 05: knew that it was ordering at the time that it made this modification or clarification. [00:33:35] Speaker 05: Help me understand what the district court, what was in the record that the district court knew how this software would operate, what it would do, how probation would use it, et cetera. [00:33:50] Speaker 02: The record shows that Smocks understood this software to be broad. [00:33:56] Speaker 02: He said that it would cover his third party communications. [00:34:00] Speaker 02: He argued that he has a privacy interest in the contents of his devices, that it would monitor his private affairs. [00:34:07] Speaker 02: And his argument was that the monitoring software should not be imposed at all because that would violate his First Amendment rights. [00:34:16] Speaker 02: and his general right to privacy. [00:34:18] Speaker 02: The court evaluated those arguments and rejected them. [00:34:22] Speaker 02: And that's why the court weighed monitoring software versus an alternative like a computer ban. [00:34:29] Speaker 02: But the intricacies of the monitoring wasn't directly raised. [00:34:34] Speaker 02: It seems from the record that everyone understood that this would be broad. [00:34:41] Speaker 05: I mean, he says at one point in his pleading, right, this is going to monitor everything that I do on the internet, right? [00:34:50] Speaker 05: Doesn't he make that argument? [00:34:54] Speaker 05: Yes. [00:34:54] Speaker 05: And there's no kind of pushback on the other side. [00:35:00] Speaker 05: No, that's not what the software does. [00:35:02] Speaker 05: Correct. [00:35:04] Speaker 05: So we should assume that that's what the software does. [00:35:09] Speaker 02: I think that is supported by the record. [00:35:12] Speaker 02: It wasn't raised below and under plain error. [00:35:16] Speaker 05: What do you mean it wasn't raised below? [00:35:18] Speaker 02: The intricacies of how the software works, whether the district court was required to delve into the details of this. [00:35:24] Speaker 02: The argument was much more general than that and under love and objection that's [00:35:30] Speaker 02: raised generally is not enough to put the court on notice of more specific arguments. [00:35:37] Speaker 02: And it wasn't plain or obvious that the court was required to get into those details, especially because courts often do delegate task probation. [00:35:45] Speaker 02: For example, in the internet ban context, probation is allowed to decide exceptions to that. [00:35:51] Speaker 02: And here, the monitoring is not even preventing smocks from doing anything. [00:35:55] Speaker 02: It's a monitor. [00:35:55] Speaker 04: Didn't the sentence report itself [00:35:57] Speaker 04: equate computer monitoring with a search. [00:36:02] Speaker 04: The pre-sentence report says that. [00:36:05] Speaker 02: Right. [00:36:05] Speaker 02: We agree that it's a search. [00:36:07] Speaker 02: Oh. [00:36:07] Speaker 02: Right. [00:36:11] Speaker 02: So under plain error review at a minimum, the district court's delegation of this to the probation office was not an error. [00:36:21] Speaker 05: So give me your best argument as to why, in this case, [00:36:28] Speaker 05: it would be appropriate for probation to have 24-7 monitoring ability of everything that this defendant does on his computer. [00:36:47] Speaker 02: The underlying crime was transmitting threats using a computer. [00:36:51] Speaker 02: The computer was instrumentality of the crime. [00:36:56] Speaker 02: And the court recognized that he had used computers in the past to commit crimes. [00:37:03] Speaker 02: The court found that there was a need for deterrence, especially because at the original sentencing, Smocks did not exhibit remorse and had a history of supervised release conditions. [00:37:15] Speaker 02: And the court found continued deception. [00:37:19] Speaker 02: In light of all of that, the computer monitoring was reasonably related. [00:37:26] Speaker 02: And Smock's now on appeal is not actually challenging the monitoring itself. [00:37:33] Speaker 02: That was in the original order, which he's not challenging. [00:37:36] Speaker 02: It's more about how the monitoring is implemented. [00:37:45] Speaker 05: All right, thank you. [00:37:46] Speaker 02: Thank you. [00:37:50] Speaker 05: Ms. [00:37:50] Speaker 05: Wright, you were out of time, but we'll give you the, I think, two minutes you requested for your time. [00:37:57] Speaker 01: Thank you. [00:37:58] Speaker 01: To be clear, when I say that a clarification might be arguably covered by the waiver, I'm thinking of a situation where there's like almost like a clerical correction or clarification. [00:38:08] Speaker 01: That wasn't nothing substantive. [00:38:11] Speaker 01: I just want to be clear about that because I could see like there are, it's like [00:38:15] Speaker 01: clerical corrections are different. [00:38:17] Speaker 01: And the fact is that here, before the order, before the modification, the software couldn't be installed. [00:38:26] Speaker 01: And afterwards, it could. [00:38:27] Speaker 01: So it's clearly substantive. [00:38:29] Speaker 01: I want to point out the rule 11 colleague, we didn't actually incorporate in the waiver the, quote, conditions of supervised release. [00:38:36] Speaker 01: And the court has looked at that sort of thing as far as when it's construing the waiver and whether it's going to be construed against it or after and how strictly. [00:38:45] Speaker 01: I'm not aware of an issue with defendants appealing a bunch of modifications in like, you know, my 30 years at the FPD. [00:38:53] Speaker 01: I don't think I've ever seen one until this one. [00:38:56] Speaker 01: So it's not like something that's just giant. [00:38:59] Speaker 01: gaping hole in the waiver that they couldn't possibly have meant to exclude that. [00:39:03] Speaker 05: What are we to take from the original judgment that said A-60 says to ensure compliance with the computer monitoring condition [00:39:18] Speaker 05: The defendant must allow probation officer to conduct initial and periodic unannounced searches of any computers subject to computer monitoring. [00:39:28] Speaker 05: And then it says that the searches shall be conducted to determine among other things, whether I'm adding among other things, whether the computer contains any prohibited data prior to installation of the monitoring software. [00:39:47] Speaker 05: So what else could that mean other than monitoring software is going to be installed as part of this condition? [00:39:55] Speaker 01: I guess it could mean like if you were subject to installation, and it's possible that there are conditions that don't always necessarily apply in every respect to a person. [00:40:04] Speaker 01: So if you're standing there hearing this be read, and you're saying this is to ensure compliance with community monitoring condition, you could be thinking, well, she hasn't imposed a computer monitoring condition, so this stuff is just like boilerplate. [00:40:16] Speaker 01: I guess that's what I would say. [00:40:17] Speaker 04: The condition in the second go-round that you can't conduct the search probation off until unless you have reasonable suspicion, that's actually favorable to your client, isn't it? [00:40:34] Speaker 04: You're not attacking that, are you? [00:40:36] Speaker 01: Right. [00:40:36] Speaker 01: I mean, but it does show the nonsensical nature of the [00:40:42] Speaker 01: conditions as a whole, and I think that's relevant to whether the court could weigh it. [00:40:47] Speaker 01: That's the kind of the point. [00:40:48] Speaker 01: If it doesn't make sense, how could it have been properly weighed, the deprivation, if it's not clear what it even means. [00:40:57] Speaker 01: And I just want to say one more thing. [00:40:58] Speaker 01: The Volcker case, this is really analogous to the it's impossible to evaluate. [00:41:04] Speaker 01: The minor contact ban, the limits on the ban aren't clear. [00:41:07] Speaker 01: I just want to say one more thing about just going a little more about the scope of the waiver. [00:41:14] Speaker 01: We obviously have the circuit courts that have said it doesn't cover this. [00:41:23] Speaker 01: But if you look at the waiver itself, paragraph D [00:41:27] Speaker 01: waives the right to appeal a sentence, quote, imposed. [00:41:32] Speaker 01: And it seems to me that it's clear that it's talking about an appeal. [00:41:36] Speaker 01: The appeal is a waiver of a direct appeal because it excludes appeal on the basis of ineffective assistance of counsel. [00:41:42] Speaker 01: And then it has a separate subsection excluding ineffective assistance of counsel from waiver under 2255 collateral tax. [00:41:50] Speaker 01: So the fact that they put that in there twice, it seems like that first paragraph has got to be referring to the direct appeal. [00:41:58] Speaker 01: And if an appeal of a modification sentence imposed was forbidden, it would say so. [00:42:03] Speaker 01: But really, this is clearly directed to the appeal that you're about to make, that you would have to make within the 14 days of the judgment. [00:42:11] Speaker 01: And I think the court said this was limited, but there was no limit. [00:42:20] Speaker 01: Just on the preservation that the Mister smocks objected to breath and breath that put the court on notice that there was a need to limit it and the court said it was limiting it, but there was no limit at all. [00:42:31] Speaker 01: The search. [00:42:32] Speaker 01: was limited, there had to be reasonable suspicion, it had to be a reasonable time and manner, but the monitoring had no limit. [00:42:38] Speaker 01: And the last point is that government says the computer is the instrumentality of the crime, and that's why we get to look all through it 24 seven, I guess. [00:42:48] Speaker 01: But if the threat had been over the phone, could there be a wire tap to just list everything he says over the phone? [00:42:55] Speaker 01: And Melania made that point when it said that [00:42:59] Speaker 01: If the defendant in that case had met his trafficking victim through a classified ad in the paper, could you ban him from reading all newspapers? [00:43:07] Speaker 01: So we would say that's analogous and ask the court to vacate the condition and remand for a balancing 3583 D. Thank you, Miss Frank. [00:43:16] Speaker 01: Thank you. [00:43:18] Speaker 05: We'll take the case under submission.