[00:00:00] Speaker 02:
Good afternoon Jeffrey Jones for the appellant Brent Houghton.

[00:00:04] Speaker 02:
I would like to reserve two minutes for good, please Regarding the special condition of release number eight It prohibits depicting or just any any materials depicting or describing a

[00:00:21] Speaker 02:
sexually explicit conduct as defined in 18 usc 2256 sub 2 as to children or adults and this this condition is was plain error for the district court to impose it for two separate reasons under this court's this court's cases the first the first The first case is United States versus narky and

[00:00:44] Speaker 03:
But why isn't, with respect to the Gnerki issue, I've already pronounced that, why isn't this case controlled by Daniels?

[00:00:52] Speaker 03:
Because it appears that this condition is the same as the one in Daniels, and Gnerki distinguished Daniels on the grounds that Gnerki was not plain error and it had a patronage

[00:01:06] Speaker 03:
requirement attached to it as well.

[00:01:09] Speaker 03:
Neither of which are true here.

[00:01:11] Speaker 03:
So both of those, this case is like Daniels and not like Grunenke, so why isn't it controlled by Daniels?

[00:01:16] Speaker 03:
In Daniels, the court reviewed for plain error.

[00:01:19] Speaker 02:
As we do here.

[00:01:20] Speaker 02:
As you do here, but NERKE didn't exist at the time of Daniels.

[00:01:22] Speaker 02:
When the district court in Daniels made its decision, there was no NERKE holding.

[00:01:26] Speaker 02:
When the court sentenced Mr. Hooten here, NERKE was controlling case law, and I believe that makes the difference under plain error.

[00:01:33] Speaker 03:
But Gunnerke puts dispositive weight in distinguishing Daniels and Reardon on the fact that there was a patronage place restriction.

[00:01:43] Speaker 03:
That isn't present here.

[00:01:46] Speaker 03:
And also that the district court intended to limit it to what it thought of as pornography.

[00:01:53] Speaker 03:
And so the court thought that it was limiting it in accordance with the district court's intent.

[00:01:57] Speaker 03:
Neither of those two things are true here.

[00:01:59] Speaker 03:
So why doesn't that make this more like Daniels?

[00:02:02] Speaker 03:
In my reading of Gunnerke,

[00:02:03] Speaker 02:
Think that the court does consider those things absolutely But it puts very much weight on the over breadth of the amount of material That would be with this that swept in by the language of this condition The the definition under the statute when you apply that statutory definition that Congress intended for only for Conduct relating to children and when you apply it to adult conduct among adults it

[00:02:29] Speaker 02:
It prohibits a large number, a large amount of material that's far from being pornographic, that's not even intended to be sexually stimulating.

[00:02:39] Speaker 02:
A movie that's PG rated, that sort of thing.

[00:02:41] Speaker 03:
And beyond... How is a movie that's PG rated covered by the language?

[00:02:47] Speaker 02:
Any material, that would be a movie that describes sexual intercourse.

[00:02:52] Speaker 02:
Not explicitly, simply describes sexual intercourse.

[00:02:55] Speaker 02:
It doesn't have to show it, it just has to talk about it.

[00:02:58] Speaker 02:
Under that, under, and that's a, that sounds very broad, but that's what the condition says.

[00:03:07] Speaker 02:
Applied to children, fine, but applied to adults, and beyond NERKE, this also, NERKE and NERKE, the condition didn't prohibit materials describing, it was only materials depicting.

[00:03:18] Speaker 02:
So when you add describing, that's all written material, a novel that,

[00:03:24] Speaker 02:
described sexual intercourse among adults would be Run afoul of this run afoul of this condition And I do think nerky it considers the other things you mentioned But I think the decision also puts quite a bit of weight on the over breath of that

[00:03:40] Speaker 01:
of that condition is there isn't he also sentenced to sex therapy is that part and that's part of the concern here is that part of the therapy was that specifically excluded I mean because there's going to be I assumed the descriptions of

[00:03:56] Speaker 02:
Sexual nature in the sex therapy and he presumably would be banned from doing that was that precluded was that excluded under the Under the condition yeah, then know the condition doesn't say anything about that And I think I think United States versus cope the second case I was going to mention as far as controlling authority under plan air review cope requires that in very narrow carve out just for therapy or if he's doing if he's if he's

[00:04:26] Speaker 02:
doing some kind of litigation on his own behalf.

[00:04:28] Speaker 02:
If he were to collateral attack his conviction, seek clemency, I don't know what that would be.

[00:04:32] Speaker 02:
And it wouldn't be until 2044 when he's released.

[00:04:35] Speaker 02:
But Cope requires carve-outs for those narrow areas.

[00:04:38] Speaker 02:
And there, that's applying.

[00:04:40] Speaker 02:
That doesn't apply to me.

[00:04:40] Speaker 01:
But really, those are two separate arguments.

[00:04:42] Speaker 01:
One is you want the carve-out for that.

[00:04:44] Speaker 01:
And then the other one is you want it not to say anything about describing a prohibition on describing sexual activity.

[00:04:55] Speaker 02:
Yes.

[00:04:56] Speaker 02:
The NERKE narrowing would apply to adult sexual conduct only.

[00:05:01] Speaker 02:
And the COPE carve-out applies to child conduct involving children, obviously, because of the nature of the case, but only in that very narrow carve-out.

[00:05:14] Speaker 03:
Just so I understand your argument, with respect to the NERKE argument, your point relates just to the word describing and not to depicting.

[00:05:25] Speaker 03:
Is that correct?

[00:05:28] Speaker 02:
That's true with the cope argument.

[00:05:30] Speaker 02:
With the NERKE argument, it would be describing and depicting, because you've got a movie depicts, a book describes, and that would be both.

[00:05:38] Speaker 03:
So he has a right, despite his offense, conduct here to watch depictions of sexual conduct?

[00:05:45] Speaker 02:
As narrowed by NERKE, because NERKE doesn't say he can watch any movie or read any book.

[00:05:50] Speaker 02:
It says that the language that what NERKE

[00:05:54] Speaker 02:
found a similar condition over broad and and they narrowed it nerky narrated on appeal and it's explicit among as to adults it's explicit conduct that's intended to be sexually stimulated but they did that in part because the district court

[00:06:08] Speaker 03:
wanted to limit it to what the district court there thought of as pornography.

[00:06:13] Speaker 03:
But are you saying that if you just cannot, because we're plain error here, so you cannot have a condition where you say to a child pornography defendant, you're only going to watch the cleanest movies suitable for kids, so you're not even watching a movie, we can't say that to them?

[00:06:31] Speaker 02:
I don't believe so under the first amendment and obviously you know in a criminal sentence you're restricting all kinds of... Why can't we reform them as we see fit?

[00:06:39] Speaker 02:
I think it's not closely enough related to his crime or to the goals of supervised release into sentencing when you're prohibiting him from watching things that aren't really sexual, they're things you'd see on TV, they're things you'd let a kid watch.

[00:06:56] Speaker 02:
even nakedness or it's nothing lascivious, it's nothing intended to be sexual.

[00:07:01] Speaker 03:
But this doesn't cover, even Generky said, that this kind of a description doesn't kind of just pure nudity.

[00:07:07] Speaker 03:
It has to go beyond nudity to be covered by this.

[00:07:10] Speaker 02:
It would be, you know, of course the probation officer does some interpretation here.

[00:07:17] Speaker 02:
That's a clause in all these instructions as prohibited by the probation officer.

[00:07:21] Speaker 02:
But sexually explicit

[00:07:23] Speaker 02:
Anything explicit and anything sexually stimulating as determined by the parole officer would be prohibited absolutely and I believe that's what no key requires and reading nerky while the it did matter that the district court intended to restrict him from adult you know from adult pornography I think that's The the case still very Spends a lot of discussion on how it's just simply over broad it sweeps in

[00:07:53] Speaker 02:
a huge amount of entertainment and never mind literature under this condition, he wouldn't be able to take an American literature class at a community college.

[00:08:08] Speaker 02:
That would violate his probation under this language.

[00:08:16] Speaker 01:
Do you want a reserve?

[00:08:17] Speaker 01:
Yes.

[00:08:18] Speaker 01:
OK.

[00:08:31] Speaker 00:
Good afternoon, and may it please the court.

[00:08:33] Speaker 00:
My name is Jessica Delaney, and I represent the United States.

[00:08:37] Speaker 00:
During his sentencing hearing, Appellant failed to object to any of the special conditions of supervised release that were adjudged in his sentencing.

[00:08:45] Speaker 00:
For that reason, every single condition that this court reviews today is subject to a plain error standard of review.

[00:08:51] Speaker 03:
The problem is, in cope, we applied plain error.

[00:08:54] Speaker 03:
And Cope was decided in 2008.

[00:08:56] Speaker 03:
And this sentence was imposed 16 years later in 2024.

[00:09:00] Speaker 03:
And it seems to have exactly the language that is condemned in Cope.

[00:09:04] Speaker 03:
How does that happen?

[00:09:06] Speaker 00:
Well, Your Honor, the language in COPE is slightly different.

[00:09:08] Speaker 00:
And I'll note that in COPE, the court explicitly acknowledged that you could have a condition similar to the one in COPE if it were limited, similar to the condition in Reardon, which was actually more closely aligned to the language here, in that it cited sexually explicit conduct and explicitly cited to the statutory code.

[00:09:29] Speaker 00:
COPE was a broader standard of supervised release in that it simply stated child pornography.

[00:09:36] Speaker 03:
But isn't it true that the language here would cover the pre-sentence report in this case?

[00:09:43] Speaker 00:
Your Honor, I don't necessarily know that that is true.

[00:09:46] Speaker 00:
The language here is almost identical to that in Ochoa and Newark.

[00:09:49] Speaker 03:
You must not possess any material describing sexually explicit conduct involving children.

[00:09:58] Speaker 03:
The pre-sentence report in this case contains descriptions of sexually explicit conduct involving children, therefore it seems plainly covered by the language.

[00:10:08] Speaker 03:
So it seems to have a cope problem and I'm just, it's a little troubling that cope is on the books for 16 years and apparently we just have

[00:10:18] Speaker 03:
people just ignoring it and writing conditions that are clearly invalid under it.

[00:10:22] Speaker 00:
Well, Your Honor, that's the reason the United States doesn't oppose this court construing the language in alignment with what it did in New York City and with the almost identical condition in United States versus Ochoa, but that doesn't require

[00:10:36] Speaker 00:
a remand or the district court to reevaluate the condition.

[00:10:39] Speaker 03:
But Koch itself said that we can't make the change necessary to conform that language to what it should be because the carve-out is such an unusual, narrow, reticulated carve-out.

[00:10:51] Speaker 03:
We can't do that from these terms, so we have to send it back.

[00:10:55] Speaker 03:
Aren't we bound by that?

[00:10:57] Speaker 00:
Your Honor, not in light of the fact that in Yerke, which was an abusive discretion case, so even less deference given to the court below, this court was able to construe it in order to be and pass constitutional muster.

[00:11:10] Speaker 00:
Accordingly, this court could do the same thing in this case, to construe it in such a way that is constitutionally valid.

[00:11:16] Speaker 03:
But there's a difference between construing sexually explicit conduct to mean essentially pornography, especially when the district court said that in the oral judgment.

[00:11:25] Speaker 03:
and then saying that the phrase sexually explicit conduct would be understood as not excluding, not including materials that you might need for a collateral challenge or materials that you need to write for your prescribed sexual abuse therapy program.

[00:11:38] Speaker 03:
I mean, those words just don't fall out of the general language of the way that a pornography limitation does.

[00:11:45] Speaker 00:
Correct, Your Honor.

[00:11:45] Speaker 00:
What New York and Ochoa did was they used the, allowing the probation officer to determine whether the material is deemed inappropriate.

[00:11:54] Speaker 00:
And we rely upon probation officers, to some degree, to be reasonable in their interpretation of the conditions of release.

[00:12:02] Speaker 00:
New York City also acknowledges there's a mens rea component to any violation of supervised release.

[00:12:07] Speaker 01:
The bottom line is, it sounds like there's not a lot of disagreement that this needs to be conformed.

[00:12:11] Speaker 01:
The question is, you think we can do it?

[00:12:14] Speaker 01:
And opposing counsel thinks we need to send it back to have it done.

[00:12:21] Speaker 01:
Am I accurate in that I think that's very accurate your honor on number nine I mean I dissented in the Nishida case I you know I don't agree with the outcome in that case, but But Nishida is the law I I didn't think that this was controlled by Nishida so I was somewhat intrigued by the fact that you I

[00:12:45] Speaker 01:
Apparently have agreed that we need to send that one back as well to make clear that outpatient care is not being controlled by the probation officer.

[00:12:56] Speaker 00:
So Your Honor, under a plain error standard of review, it's not the United States position that this court must send it back for that clarification.

[00:13:03] Speaker 00:
The term does not refer to inpatient treatment in any way, and in fact provides some language indicating that the discretion for the probation officer in this case is limited to outpatient treatment.

[00:13:15] Speaker 00:
It refers specifically to things that the sex offender treatment may include, which is

[00:13:21] Speaker 00:
risk assessment, polygraph examination, or visual reaction treatment.

[00:13:25] Speaker 00:
It doesn't provide the probation officer the discretion to determine the intensity, as in the Nishida.

[00:13:33] Speaker 01:
Well, I think I'm agreeing with you.

[00:13:35] Speaker 01:
That's why I'm surprised, as I understand it, maybe you can correct me.

[00:13:38] Speaker 01:
I thought you did not oppose remanding for clarification on that.

[00:13:43] Speaker 00:
That's correct, Your Honor.

[00:13:44] Speaker 00:
We don't oppose that if this court determines that's necessary, based in part on the fact that outside the record,

[00:13:50] Speaker 00:
Just not a basis for decision, of course.

[00:13:51] Speaker 01:
But is it even necessary?

[00:13:52] Speaker 01:
Because I will say, when I read it, I thought, I'm not sure that this is actually necessary under Nishida.

[00:13:58] Speaker 00:
Your Honor, I would agree with that.

[00:13:59] Speaker 00:
I don't believe that remand is necessary.

[00:14:01] Speaker 00:
This condition is distinguishable from Nishida and does not call for inpatient treatment or for the probation officer to make a decision as to whether inpatient or outpatient treatment is appropriate.

[00:14:13] Speaker 00:
I think that portion of our brief is primarily to highlight that if any remand occurs, it should be very limited in scope.

[00:14:21] Speaker 00:
Similarly, the last two conditions also under a plain error review, appellant fails to meet his burden because there is contrary precedent upholding similar language of special conditions of supervised release.

[00:14:35] Speaker 00:
And where there is controlling precedent or at least decisions that contradict one another, there cannot be plain error.

[00:14:41] Speaker 03:
Are both those conditions, five and seven, they're similar to ones that were also at issue in Daniel's?

[00:14:48] Speaker 03:
Am I correct on that?

[00:14:50] Speaker 00:
Your Honor, they are very similar to the ones in Daniels, which on a plain error review, this court found that there was no plain error.

[00:14:57] Speaker 03:
Is there anything post Daniels, you know, that would undermine that in the way that counsel contends that Generky undermines Daniels as to number eight?

[00:15:08] Speaker 00:
No, Your Honor, not that I am aware of.

[00:15:12] Speaker 00:
For special condition number eight, we're in that world of

[00:15:19] Speaker 00:
with the New Yorkie language limiting it.

[00:15:21] Speaker 00:
But outside of New Yorkie, I'm not aware of anything that explicitly overrules Daniels or Reardon or that that controlling precedent is no longer controlling.

[00:15:31] Speaker 00:
And in fact, New Yorkie itself, as Your Honor noted, carved out the distinction from Reardon and the standard of review that was applied.

[00:15:41] Speaker 00:
Barring any further questions from this court, the United States submits on the brief and requests that this honorable court affirm the judgment.

[00:15:48] Speaker 00:
Thank you.

[00:15:58] Speaker 02:
Very briefly with respect to the nerky decision and and plain-error review two cases two cases have applied nerky after More recently and they're both cited in the brief square grower and Ochoa and grower remanded for the for for the Condition to comply with nerky admittedly neither of those are under plain-error review But I'd make the point that when when mr.. Houghton was sentenced nerky had been on the book for nine years and

[00:16:24] Speaker 02:
And both of these cases applying NERKE, one upholding a condition because it complied with NERKE and Guerrero remanding for compliance with NERKE, those were both on the books also.

[00:16:37] Speaker 01:
Daniels, I thought, focused on the describing language.

[00:16:42] Speaker 01:
I mean, do we need to distinguish between describing and depicting?

[00:16:46] Speaker 01:
I mean, you're saying no, but I thought Daniels specifically relied on, maybe I have it backwards, but I thought it was the describing language that was problematic.

[00:16:55] Speaker 02:
I think, I believe, I, my, the position, the appellant's position is that Daniels is, is not on point because it was under plain error review and there was no controlling authority at that time.

[00:17:06] Speaker 02:
And when Mr. Houghton was sentenced, it is plain error because there was controlling authority.

[00:17:12] Speaker 02:
NERC, and a number of cases with the other two cases I mentioned.

[00:17:15] Speaker 02:
There was clearly established law in the books when Mr. Houghton was sentenced, and that's not the case for Daniels.

[00:17:23] Speaker 02:
I'm about out of time.

[00:17:24] Speaker 02:
I could address the Nishida if that's helpful.

[00:17:27] Speaker 01:
If you want to briefly.

[00:17:30] Speaker 02:
It does seem distinguishable.

[00:17:33] Speaker 01:
This does seem distinguishable from Nishida.

[00:17:36] Speaker 01:
You'd think not.

[00:17:37] Speaker 02:
I believe not.

[00:17:37] Speaker 02:
The instruction here was open-ended.

[00:17:40] Speaker 02:
And if we review instructions by their plain meaning, in their literal terms, the instruction here clearly encompasses inpatient or outpatient.

[00:17:48] Speaker 01:
It could allow it.

[00:17:48] Speaker 01:
Your point is it could allow that.

[00:17:50] Speaker 02:
Could allow that.

[00:17:51] Speaker 02:
It encompasses that.

[00:17:51] Speaker 02:
It gives the probation officer that authority, which is an unconstitutional obligation.

[00:17:54] Speaker 03:
But the language in Nishida was much

[00:17:56] Speaker 03:
more susceptible to a reading that it authorized the probation officer to pick inpatient confinement because the phrasing was including the, quote, provider location, modality, duration, and intensity.

[00:18:15] Speaker 03:
Modality and intensity does suggest, you know, if you want to lock them up, you can do it, but we don't really have that kind of language here.

[00:18:23] Speaker 02:
It's true.

[00:18:23] Speaker 02:
And I absolutely concede that.

[00:18:26] Speaker 02:
But I think due to the open-ended nature of this instruction and the principle that the review is for just the plain language of the instruction, and you don't narrow it, you look at it literal terms, numerous cases say that, I'd point the court to United States versus Mike, which is a 10-third circuit decision.

[00:18:46] Speaker 02:
And it's actually cited in Nishida.

[00:18:48] Speaker 02:
And under Mike, the condition is indistinguishable from the one that is at issue here.

[00:18:58] Speaker 02:
The point under Mike being that it takes an open-ended instruction, just like the one here, and the Tenth Circuit decided this is empowering the probation officer to order inpatient therapy.

[00:19:11] Speaker 02:
And that's unconstitutional.

[00:19:15] Speaker ?:
OK.

[00:19:15] Speaker 01:
Thank you.