[00:00:00] Speaker 03:
We'll hear the other cases in the order in which they appear on the calendar the first is United States versus Kessler 23-4353 each side will have 50 or sorry 10 minutes each side will have 10 minutes Good morning Faye Arthur appearing remotely for mr.. Kessler may it please the court and

[00:00:26] Speaker 04:
I wanted to focus on the three.

[00:00:30] Speaker 03:
Yeah, it's a little quiet.

[00:00:31] Speaker 03:
Can we make it louder?

[00:00:34] Speaker 03:
Yes.

[00:00:36] Speaker 03:
We might be able to do that on our end.

[00:00:37] Speaker 03:
I'm not sure.

[00:00:38] Speaker 02:
Also, we can't really see that well.

[00:00:45] Speaker 04:
Can you hear me now?

[00:00:47] Speaker 01:
Yes.

[00:00:48] Speaker 04:
I turned it up a little on the microphone.

[00:00:51] Speaker 04:
Okay, good morning.

[00:00:53] Speaker 04:
They are appearing on behalf of Mr. Kessler, may it please the court.

[00:01:00] Speaker 04:
We're here because we take issue with three conditions of probation that the court imposed in this case.

[00:01:10] Speaker 04:
The court imposed a total of 45 conditions, right?

[00:01:15] Speaker 04:
22 special conditions and 13 standard conditions.

[00:01:18] Speaker 01:
Can you start with the special condition 11?

[00:01:21] Speaker 01:
Why do you think that loitering is, the word loitering is ambiguous or was ambiguous for him given the fact that he was the one that proposed that language?

[00:01:34] Speaker 04:
I don't think he personally proposed it, and then there's a question of whether he can object or he needs to object to the unconstitutionality of a condition.

[00:01:46] Speaker 04:
Now, the term loitering is very overbroad.

[00:01:49] Speaker 04:
Okay, you have to loiter.

[00:01:51] Speaker 02:
But his lawyer specifically asked for it instead of something else.

[00:01:56] Speaker 04:
Well, that's why I know it was probably on the spur of the moment because a lot of times there was an objection and then they decided on loitering.

[00:02:07] Speaker 04:
But we still don't know what loitering is.

[00:02:11] Speaker 04:
If you're just standing around.

[00:02:12] Speaker 03:
Why isn't it invited error?

[00:02:13] Speaker 03:
Even if it's vague, it's invited because you asked for that word.

[00:02:17] Speaker 04:
Well, I don't think

[00:02:19] Speaker 04:
that you can invite a constitutional heir.

[00:02:22] Speaker 04:
And not only that, it wasn't him, it was his lawyer.

[00:02:25] Speaker 04:
Okay, so then we're getting into ineffective assistance of counsel.

[00:02:30] Speaker 04:
But he just agreed to the conditions.

[00:02:33] Speaker 04:
I'm not sure that he invited them.

[00:02:35] Speaker 02:
But it now says, let's assume that the, as the government has conceded it, that the changed language and the judgment is not the language.

[00:02:48] Speaker 02:
loitering in the restroom, right?

[00:02:52] Speaker 02:
Not near the restroom, but in the restroom.

[00:02:56] Speaker 02:
Okay.

[00:02:58] Speaker 02:
So that was what was said orally, right?

[00:03:03] Speaker 02:
Yes.

[00:03:04] Speaker 02:
All right.

[00:03:05] Speaker 02:
So what's vague about it?

[00:03:09] Speaker 02:
Well, I know the word loitering in certain circumstances has been held unconsciously fake, but in others not.

[00:03:15] Speaker 02:
I mean, in California, similar language has been upheld in certain circumstances.

[00:03:25] Speaker 04:
Yes, but you have to have a state of mind.

[00:03:28] Speaker 04:
They have to be able to show something because loitering is just standing around.

[00:03:33] Speaker 02:
Well, that's exactly what they said he can't do.

[00:03:36] Speaker 02:
In the bathroom, not in general.

[00:03:39] Speaker 04:
Well, what does that mean?

[00:03:41] Speaker 04:
What if he's waiting for a bathroom stall?

[00:03:45] Speaker 04:
Then he's not just standing around.

[00:03:47] Speaker 04:
But it's so vague.

[00:03:49] Speaker 04:
That means anytime he goes into a bathroom, they could find him that he violated probation by loitering.

[00:03:55] Speaker 04:
A loitering, there are at least three United States Supreme Court cases holding the term loitering to be vague.

[00:04:06] Speaker 04:
Okay?

[00:04:06] Speaker 04:
Not only that, you don't even need it because under – he's ordered not to violate any state or federal laws, so that would include any loitering statute in California.

[00:04:19] Speaker 02:
Exactly, because they're not unconstitutionally vague, so it's – you're making an argument that's inconsistent with itself.

[00:04:25] Speaker 04:
Well, but in California, it's – they've held that particular loitering with a specific intent to be

[00:04:34] Speaker 04:
Um, constitutional, but just the term loitering, you can't loiter.

[00:04:40] Speaker 04:
I mean, that means that you could pick them up for anything.

[00:04:44] Speaker 04:
And that's what the courts have held in the past.

[00:04:46] Speaker 04:
You just can't pick.

[00:04:48] Speaker 04:
You have to have.

[00:04:50] Speaker 04:
some more guidance as to the term.

[00:04:53] Speaker 04:
Okay.

[00:04:53] Speaker 01:
Counsel, I guess I want to come back to something that you said, because you said that this was perhaps a spur of the moment kind of thing where the defendant just agreed to this, but that wasn't the case.

[00:05:04] Speaker 01:
I thought that this was a product of negotiations between the government and the defendant.

[00:05:11] Speaker 01:
I thought that that's what had happened.

[00:05:13] Speaker 01:
Is that wrong?

[00:05:15] Speaker 04:
Well, I'm not sure the defendant had a lot to do with it.

[00:05:18] Speaker 02:
That doesn't matter.

[00:05:19] Speaker 02:
He's represented by the lawyer.

[00:05:20] Speaker 02:
If there's an ineffective assistance issue, that's a different issue.

[00:05:24] Speaker 02:
It's not this for us now.

[00:05:26] Speaker 04:
Well, then it would be the lawyer who has to be responsible for that.

[00:05:31] Speaker 04:
But I think that in the context of what the defense counsel said was that loitering has been defined in several other statutes.

[00:05:43] Speaker 04:
So the fact that it's been defined in several other statutes, maybe she should have said loitering as defined in other statutes.

[00:05:58] Speaker 04:
But that was what she was referring to.

[00:06:01] Speaker 04:
I don't think she really meant loitering alone.

[00:06:04] Speaker 04:
I think she said, look, we know what loitering is.

[00:06:07] Speaker 02:
I thought she agreed to specific language.

[00:06:09] Speaker 02:
Pardon me?

[00:06:10] Speaker 02:
I thought she agreed to specific language.

[00:06:13] Speaker 04:
Well, I believe she agreed to it because there are statutes that describe loitering, that actually define loitering.

[00:06:27] Speaker 04:
So I think she was referring to the statutes that define loitering.

[00:06:32] Speaker 04:
So you already have obey all laws and statutes.

[00:06:36] Speaker 04:
So I don't know why you need the term loitering.

[00:06:38] Speaker 04:
Then I don't even know.

[00:06:39] Speaker 03:
Can I ask?

[00:06:40] Speaker 03:
I don't really understand that argument because if it's already illegal, then why is this a problem?

[00:06:45] Speaker 03:
His liberty isn't any more restricted than it would be anyway.

[00:06:49] Speaker 04:
Well, because there's no parameters on it.

[00:06:51] Speaker 04:
There's no restrictions on the term loitering.

[00:06:55] Speaker 04:
So if it were to say loitering under any state or federal law,

[00:07:02] Speaker 04:
That would be more defined.

[00:07:07] Speaker 02:
What about the other condition that you're challenging, the credit lines?

[00:07:13] Speaker 04:
Pardon me?

[00:07:13] Speaker 04:
The credit lines?

[00:07:16] Speaker 04:
Well, the credit lines have nothing to do with his charges at all.

[00:07:20] Speaker 04:
And today, everybody uses credit cards for everything.

[00:07:24] Speaker 03:
Is a credit line a credit card?

[00:07:25] Speaker 03:
I thought a credit line was sort of a separate kind of credit.

[00:07:31] Speaker 04:
Even so, this was not a financial crime at all.

[00:07:36] Speaker 04:
So why would he be restricted in his credit line or credit card?

[00:07:42] Speaker 04:
I'm looking at the condition.

[00:07:45] Speaker 04:
Why would he have to submit to that?

[00:07:48] Speaker 01:
I think the argument that the government has proposed is that to prevent him from going out and getting computers and phones and things like that.

[00:07:58] Speaker 01:
I think that's the argument that they have forwarded.

[00:08:01] Speaker 04:
Well, he can do that without a credit line.

[00:08:04] Speaker 04:
But I think that in... Without a new credit line?

[00:08:07] Speaker 02:
I mean, they specifically took out the provision and said he couldn't use a credit card.

[00:08:11] Speaker 02:
So apparently he can use a credit card, but he can't get a credit line.

[00:08:14] Speaker 02:
I assume the only thing I can understand that that means is a new credit card, a different credit card.

[00:08:20] Speaker 02:
But it does seem a little disconnected from what he did.

[00:08:23] Speaker 04:
Yeah, but credit cards are connected to everything and credit lines are connected to everything.

[00:08:28] Speaker 04:
The question is, is there a reasonable relationship between a restriction on credit cards or credit lines to what he did?

[00:08:36] Speaker 04:
So I think that there was reaching.

[00:08:40] Speaker 04:
reaching to get something, okay, we'll just do that.

[00:08:44] Speaker 04:
We'll add, we'll restrict credit cards because somewhere along the line, he may be using a telephone or something like that or whatever.

[00:08:54] Speaker 04:
So it's just not related to what he's doing.

[00:08:57] Speaker 04:
If he uses the credit card... Did you want to save time for rebuttal?

[00:09:00] Speaker 03:
I want to make sure you have some time off.

[00:09:01] Speaker 03:
Yes, I do.

[00:09:01] Speaker 04:
I'm sorry.

[00:09:02] Speaker 04:
Yes.

[00:09:02] Speaker 04:
Thank you.

[00:09:03] Speaker 04:
Okay.

[00:09:03] Speaker 04:
Thank you.

[00:09:04] Speaker 03:
Let's hear from the government.

[00:09:14] Speaker 00:
Good morning, Your Honors.

[00:09:16] Speaker 00:
AUSA Kristen Scott on behalf of the United States.

[00:09:21] Speaker 00:
If Your Honors are so inclined, I will start with the loitering provision.

[00:09:24] Speaker 03:
Actually, could you start with the credit line?

[00:09:27] Speaker 00:
Certainly.

[00:09:29] Speaker 00:
The credit line condition is reasonable.

[00:09:31] Speaker 02:
First of all, what is a credit line?

[00:09:32] Speaker 02:
What does it mean?

[00:09:34] Speaker 02:
Does it mean a new credit card?

[00:09:35] Speaker 02:
What does it mean?

[00:09:36] Speaker 00:
It's a line of credit.

[00:09:38] Speaker 02:
Well, I mean, has he ever had a line of credit?

[00:09:41] Speaker 02:
I mean, where did he get a line of credit?

[00:09:42] Speaker 00:
That's not in the record, whether he's had prior lines of credit before.

[00:09:46] Speaker 02:
Doesn't mean a credit card.

[00:09:48] Speaker 02:
Even a new credit card.

[00:09:49] Speaker 00:
A new credit card, a new home equity loan perhaps, any sort of loan line of credit that he can draw funds from.

[00:09:56] Speaker 00:
But it doesn't mean using a credit card he already had.

[00:09:59] Speaker 01:
Correct your honor, but how I guess I don't understand if he's already required to provide financial Disclosures, he's already required to do that why then have this other special condition about the credit line.

[00:10:11] Speaker 00:
I guess I didn't understand the relation He was already required to provide the financial disclosures as part of his original terms of supervised release He went out he committed these violations.

[00:10:24] Speaker 00:
He was able to obtain the tools to facilitate these violations and

[00:10:27] Speaker 01:
So did he do that through a credit line?

[00:10:30] Speaker 01:
Is that what happened?

[00:10:31] Speaker 00:
It's unclear from the record, but this is giving the probation officer simply one more tool in her tool belt to monitor.

[00:10:38] Speaker 00:
All right.

[00:10:38] Speaker 01:
Well, if it's unclear, then it's not, it's not really, it can't be part of the rationale here then.

[00:10:44] Speaker 00:
The court has considered the entirety of the record.

[00:10:48] Speaker 00:
What I meant by unclear in the record is it's not clear whether he actually bought the car, the screwdrivers to drill the holes in the bathroom walls, et cetera.

[00:10:56] Speaker 00:
with a credit card.

[00:10:58] Speaker 00:
But looking at the case as a whole, we know that he was able to obtain a computer in the underlying offense.

[00:11:04] Speaker 00:
He was able to buy a cell phone while on supervised release, which he did use to view images.

[00:11:09] Speaker 02:
But on top of everything else, this one's stopping him from doing that, as long as he did it with a credit card he already had, as opposed to a new one.

[00:11:16] Speaker 00:
That is true, Your Honor.

[00:11:17] Speaker 00:
He is required to report there's financial disclosure.

[00:11:20] Speaker 00:
So we have no new lines of credit.

[00:11:22] Speaker 00:
We also have probation being able to inquire

[00:11:25] Speaker 00:
about his finances.

[00:11:26] Speaker 00:
So hand in hand, they sort of lock down a little more than just inquiring about his current finances.

[00:11:32] Speaker 03:
But if the real goal you were starting to say is the phone and the computer to view images, there are also all these other provisions, like 17, which is that internet must be approved, and 18, that you can search his data, and 19, that's internet connected devices, and 20, which is no new phones.

[00:11:50] Speaker 03:
So why do you need this credit line thing?

[00:11:53] Speaker 00:
Those conditions I believe were originally part of his original terms of supervised release and yet He was still able to go out and facilitate these violations both exposing himself at restrooms Obtaining the tools and the gas and the vehicle to go to these you can see that maybe you really didn't need this Do you really I mean are you gonna?

[00:12:15] Speaker 01:
die on this hill

[00:12:18] Speaker 00:
Your honor, probation requested it, probation indicated that it was something that they enforced through credit lines, not necessarily credit purchases.

[00:12:28] Speaker 00:
The condition was rationally tailored.

[00:12:31] Speaker 00:
to not be intrusive into the defendant's finances.

[00:12:35] Speaker 00:
We're not asking him to report every single purchase, purchase at Walmart of a bottle of water or a bag of chips.

[00:12:41] Speaker 00:
We're simply asking no new lines.

[00:12:43] Speaker 03:
But you would need that to get a screwdriver or hammer, whatever the tool was.

[00:12:47] Speaker 03:
I mean, the credit line is not going to stop him from drilling a hole in a bathroom wall, and you already have all of these computer restrictions, so it's very hard to understand what this is doing.

[00:12:57] Speaker 00:
It is again providing probation with just another tool to sort of monitor him and lock him down And this was the district court thoughtfully and carefully crafting the conditions it discussed the condition on the record with Mr.. Kessler's council it removed the portion of the condition that Mr.. Kessler's council objected to and

[00:13:18] Speaker 00:
And the focus of their memo objecting to the condition and the focus of the sentencing hearing objection orally.

[00:13:26] Speaker 02:
But particularly by removing what he removed, which was new credit card charges, new credit charges, it made the whole thing even more pointless.

[00:13:36] Speaker 02:
Because as I say, it didn't stop him from using his credit card to buy things.

[00:13:44] Speaker 00:
That is true, Your Honor.

[00:13:45] Speaker 00:
It did not.

[00:13:46] Speaker 03:
And you started to explain that this credit line would stop him from getting a home loan.

[00:13:50] Speaker 03:
So is there any rationale for stopping him from getting a home loan?

[00:13:54] Speaker 00:
I would submit that a home loan is a type of a line of credit.

[00:13:58] Speaker 02:
Yes, but is there any reason that is connected to his crime that would justify stopping him from getting a home loan?

[00:14:05] Speaker 00:
We're looking at the crime as the totality of the circumstances, the case in whole, going all the way back to his original offense.

[00:14:12] Speaker 00:
him purchasing a computer secretly, him continuing to go on to AOL secretly.

[00:14:17] Speaker 02:
Right, but you just explained that this would stop him from getting a home loan.

[00:14:21] Speaker 02:
And there's no reason to do that.

[00:14:23] Speaker 00:
That I'm not currently aware of his personal situation, personal financial situation.

[00:14:31] Speaker 02:
But there's nothing connected to his crime that would make it appropriate to stop him from getting a home loan.

[00:14:36] Speaker 00:
That is simply one line of credit.

[00:14:38] Speaker 00:
I was using that as an example.

[00:14:41] Speaker 00:
I'm sorry, what?

[00:14:42] Speaker 00:
That's simply one example of a line of credit.

[00:14:44] Speaker 02:
Right, exactly.

[00:14:44] Speaker 02:
So this would stop them from getting a home loan.

[00:14:48] Speaker 00:
I believe the condition, if I refer to the record, it looks like it was originally without, he cannot get a home loan with a probation.

[00:14:59] Speaker 00:
So if he feels that the condition is too onerous, if he's looking to get a home loan, he has reasonable redress through the court where he can petition the court and seek clarity from the court and permission from the court if he feels that probation is being unreasonable and preventing him from getting a home loan.

[00:15:20] Speaker 00:
If there are no further questions on that would your honors like me to address the loitering condition?

[00:15:26] Speaker 02:
Yes.

[00:15:28] Speaker 00:
Thank you.

[00:15:30] Speaker 00:
We're asking the court to take a common sense, practical, and reasonable point of view here in the imposition of this condition.

[00:15:38] Speaker 00:
It is common lexicon, the word loitering at this point.

[00:15:43] Speaker 00:
A reasonable person would know what loitering means, right?

[00:15:47] Speaker 00:
We talked, you just talked with Ms.

[00:15:49] Speaker 00:
Arfa about

[00:15:50] Speaker 00:
him standing in line to go to the restroom, him being in the restroom, right, using the restroom.

[00:15:56] Speaker 00:
That's not loitering.

[00:15:57] Speaker 00:
We concede to that.

[00:15:59] Speaker 00:
What loitering is, is hanging out in a restroom with no intent or purpose, and I believe in my brief I submitted the definition under Black's Law Dictionary.

[00:16:09] Speaker 00:
There's also the California Penal Code definition of loitering.

[00:16:12] Speaker 01:
What do we do with the fact that he didn't object to the loitering language?

[00:16:16] Speaker 00:
He did not object.

[00:16:17] Speaker 00:
So that is where the government argues first and foremost that he is barred from contesting it under invited error.

[00:16:23] Speaker 00:
He proposed or his attorney proposed the word loitering.

[00:16:29] Speaker 00:
It was actually discussed at a meet and confer with the council prior to the sentencing hearing.

[00:16:34] Speaker 00:
It was included in the United States dispositional memo, I believe, where the United States proposed two different

[00:16:42] Speaker 00:
terms after discussing with defense counsel what may be appropriate and one of those was no loitering at public restrooms.

[00:16:50] Speaker 00:
That was the term ultimately that the court went with and that defense ultimately conceded to.

[00:16:56] Speaker 00:
On ER 14, actually, the defense says the term loitering is clear and her client can understand it.

[00:17:04] Speaker 00:
So where he introduced the term, where he put this into motion, he now challenges that very term.

[00:17:10] Speaker 00:
And we asked the court to bar that challenge on invited error.

[00:17:14] Speaker 03:
If he now thinks that's an effective assistance of counsel, how would he raise that?

[00:17:19] Speaker 00:
He's not raised that yet, and he did have a plea agreement where he had a waiver of collateral attack, which included ineffective assistance of counsel.

[00:17:30] Speaker 00:
I believe that is part of the record.

[00:17:34] Speaker 02:
But you agree that the actual judgment should be reversed, because he put additional words in which might, in fact, aside from not being what the language was, they may in fact be problematic.

[00:17:47] Speaker 00:
We do concede that, and that is why we agree with the defense that the judgment should at least be remanded to the district court to clarify, make its written judgment in line with its oral pronouncement.

[00:17:58] Speaker 00:
Yes, so there is no confusion.

[00:18:00] Speaker 02:
Could the district court change it again on remand, or is the remand simply to implement what he said orally?

[00:18:11] Speaker 00:
I believe it would be limited to this issue of reconciling the oral pronouncement with the written judgment.

[00:18:23] Speaker 00:
If there are no further questions, Your Honors, the United States would submit on its filings.

[00:18:29] Speaker 03:
Thank you, Counsel.

[00:18:30] Speaker 03:
Thank you.

[00:18:30] Speaker 03:
I think we have a little more than a minute for rebuttal.

[00:18:33] Speaker 04:
Yes, I just wanted to point out that number one,

[00:18:37] Speaker 04:
There's really no relation.

[00:18:38] Speaker 04:
It's very remote, the credit card condition, credit line of credit condition to what happened.

[00:18:45] Speaker 04:
It's very remote.

[00:18:46] Speaker 04:
Like I said, he has 45 conditions of probation that he has to deal with.

[00:18:52] Speaker 04:
And then secondly, as far as the loitering is, I'm just saying suppose, suppose he just needs a place to stay in a bathroom.

[00:19:03] Speaker 02:
That's what I can't do.

[00:19:05] Speaker 02:
Pardon me?

[00:19:06] Speaker 02:
That is what he cannot do.

[00:19:07] Speaker 04:
Well, what if he just wants to, he needs a shelter or something and he needs to go in there and hang out and eventually going to go to the bathroom.

[00:19:15] Speaker 04:
I don't, I don't know, but, but he wasn't loitering.

[00:19:19] Speaker 04:
He was in the facts of the probation violation is he was in there doing something wrong.

[00:19:25] Speaker 04:
That's what got him in trouble.

[00:19:26] Speaker 04:
It wasn't standing there.

[00:19:28] Speaker 04:
Um, loitering, even if we know what loitering is, loitering alone is not a crime.

[00:19:36] Speaker 04:
You can loiter, you loiter on the street.

[00:19:38] Speaker 04:
And I think there are all these Supreme Court cases that say that it's unconstitutional just to criminalize loitering, because then you can arrest anybody for doing anything.

[00:19:49] Speaker 04:
So let's say he just walks in the bathroom.

[00:19:50] Speaker 02:
But given his history of doing things in bathrooms that one shouldn't do in bathrooms of various kinds, keeping him out of the bathroom, except when he has to go to the bathroom, seems fairly benign.

[00:20:03] Speaker 02:
Including to sleep or anything else.

[00:20:07] Speaker 04:
Well, but the point is, it's too vague.

[00:20:12] Speaker 04:
They could arrest him.

[00:20:13] Speaker 04:
So it's essentially saying you can't go into a public restroom.

[00:20:19] Speaker 04:
Then we don't even know what a public restroom is.

[00:20:21] Speaker 04:
I mean, is it a public restroom if it's on private property?

[00:20:24] Speaker 04:
Is it a public restroom if it's open to the public?

[00:20:28] Speaker 04:
I don't know.

[00:20:29] Speaker 04:
It's just very confusing condition.

[00:20:33] Speaker 04:
They will get him if he's in the bathroom.

[00:20:35] Speaker 03:
Sorry, you're over your time.

[00:20:38] Speaker 03:
Thank you.

[00:20:38] Speaker 03:
I think we have your argument.

[00:20:40] Speaker 03:
Thank you both sides for the helpful arguments.

[00:20:42] Speaker 04:
Thank you.

[00:20:42] Speaker 03:
This case is submitted.

[00:20:44] Speaker 03:
Thank you.

[00:20:45] Speaker 03:
Bye bye.