[00:00:00] Speaker 02: Good morning, Your Honours. [00:00:00] Speaker 02: Veena Seelam, Federal Defenders, on behalf of Mr. Sembrano. [00:00:04] Speaker 02: I will aim to reserve two minutes of time, if I may. [00:00:07] Speaker 02: This court should reverse and remand for three reasons. [00:00:10] Speaker 02: First, the district court found that there was no rehabilitation when there had been. [00:00:15] Speaker 02: Second, the gang paraphernalia condition needs to include language that it must be known to Mr. Sembrano, and it should be limited only to his former gang. [00:00:25] Speaker 02: And finally, the district court did not explain why it imposed a suspicionless electronic search condition. [00:00:32] Speaker 02: The district court was wrong when it said that Mr. Sembrano was being irresponsible while on supervised release. [00:00:38] Speaker 02: This went against all evidence of his rehabilitation and his clean record since his daughter's birth. [00:00:44] Speaker 02: The court aired when it said Mr. Sembrano was putting it on the court to allow you to spend time with your daughter when you haven't been taking actions that are responsible so that you can be with your daughter. [00:00:54] Speaker 02: That's at ER 24. [00:00:57] Speaker 02: I'd like to next address this court's holding in bear regarding the electronic search condition, a suspicionless search condition in particular. [00:01:06] Speaker 02: This court held that [00:01:08] Speaker 02: Imposing an electronic search condition, the district court must make a factual finding establishing a nexus between computer use and one of the established goals of supervised release. [00:01:19] Speaker 02: This simply was not done in this case. [00:01:21] Speaker 02: Although there was a discussion in the record about Mr. Sembrano's alleged social media use, the court made no finding about it. [00:01:29] Speaker 02: And it made no finding as to why a suspicionless search condition covering all of Mr. Sembrano's electronic devices [00:01:36] Speaker 02: was necessary to meet one of the goals of supervised release. [00:01:40] Speaker 02: This type of condition substantially limits Mr. Sembrano's Fourth Amendment right to be free from unreasonable searches and seizures and also represents a substantial intrusion upon his personal privacy and dignity. [00:01:53] Speaker 01: So you're trying to get that heightened standard under the significant liberty interest, right? [00:01:58] Speaker 02: That's not the argument I'm making, Your Honor. [00:02:00] Speaker 02: I'm simply noting that there is a distinction between the suspicionless search condition and a more general search condition, which has been, I think, more freely doled out by district courts. [00:02:10] Speaker 01: So if we're not under that heightened standard, then it's just, is there reasoning evident from the record for why the court thought that this was necessary? [00:02:17] Speaker 01: And why wouldn't that be satisfied where here we know from the probation office investigation that social media is a factor in terms of showing whether he's actually [00:02:26] Speaker 01: being compliant with his requirements and acting lawfully. [00:02:30] Speaker 02: Well, your honor, I think this court in bear, it didn't specify that this was under the significant liberty standard, but it did make an explicit holding that [00:02:41] Speaker 02: a factual finding, establishing the nexus between computer use and between one of the goals of supervised release is necessary. [00:02:48] Speaker 01: I'm asking like why isn't that nexus met given what this record showed that the evidence of his, some of his unlawful activity was directly connected to his online activity. [00:02:59] Speaker 02: because under BEHR, the court needs to actually have made a factual finding, which in this case, it did not. [00:03:05] Speaker 02: So there was discussion. [00:03:07] Speaker 02: The probation officer proffered some information about Mr. Cimbrano's alleged social media use, and then defense counsel objected, said, we don't have this information. [00:03:17] Speaker 02: We'd like more time to review it. [00:03:19] Speaker 02: They come back for a second sentencing hearing, and again, [00:03:23] Speaker 02: The social media use is discussed a little bit, but the court does not make a finding adopting one way or another. [00:03:29] Speaker 01: Essentially, probation is... So doctrinally, we have significant liberty interest heightened standard. [00:03:36] Speaker 01: We have not significantly liberty interest, typically just is the reasoning evident on the record? [00:03:42] Speaker 01: And you're advocating for some sort of middle standard? [00:03:45] Speaker 02: Right. [00:03:45] Speaker 02: I'm advocating that Bayer has made a finding that there is a heightened [00:03:53] Speaker 02: liberty interest in this case. [00:03:54] Speaker 02: I don't know. [00:03:55] Speaker 02: It's not clear from the holding in Bayer whether it's applying the same significant liberty interest standard. [00:04:01] Speaker 02: I think it would be reasonable to do so. [00:04:04] Speaker 02: But what is clear from Bayer is that it is required for the court to make the factual finding. [00:04:09] Speaker 02: So in this case, the court not only made no factual finding as to whether there was problematic social media use, but they also, the court made no factual finding as to why [00:04:23] Speaker 02: Electronic search needed to occur suspicionless electronic search needed to occur in order to promote the the goals of supervised release and I think under bear it's clear that that Nexus has to explicitly be stated because in bear it says once a district court meets the nexus requirement outlined above [00:04:43] Speaker 02: which is making a factual finding establishing some nexus between computer use and one of the goals articulated in 3553, then it's not an abuse of discretion for the district court to impose that condition. [00:04:56] Speaker 01: If we were to disagree with you that there is some sort of heightened finding requirement in this context, where does that leave you? [00:05:01] Speaker 02: I believe even based on [00:05:04] Speaker 02: just looking at the record as a whole, it's still, the district court failed to make a finding that Mr. Sembrano actually had been using social media in a problematic way while he was on supervised release. [00:05:16] Speaker 02: And so it would still, this would still need to be remanded for the district court to clarify. [00:05:21] Speaker 02: Was it adopting what probation has proffered or was it believing what defense counsel had proffered that there was no indication that Mr. Sembrano had had access to his electronic [00:05:33] Speaker 02: devices while he was in custody for the past 19 months. [00:05:36] Speaker 02: There's no indication of when these social media posts were made. [00:05:41] Speaker 02: So I think the requisite nexus, even if even not withstanding bear, is not there. [00:05:47] Speaker 02: Moreover, the condition that was imposed is just far too broad. [00:05:53] Speaker 02: What was stated in the record was some posts on social media with an unclear timeline. [00:05:58] Speaker 02: So it's unclear why the district court needed to extend the suspicionless search to all electronic devices, including computers. [00:06:05] Speaker 02: I think there's a way to fashion this condition if the district court believes that probation should be able to look at Mr. Cimbrano's social media. [00:06:13] Speaker 01: Well, reading between the lines, it seems like the district court is thinking one of our sentencing goals or our supervision goals with this guy is to try to get him out of gang life. [00:06:22] Speaker 01: and he communicates with other gang members electronically, and so then we need to be able to monitor those devices so that we can monitor his communication and see if he's actually removing himself from gang life. [00:06:32] Speaker 01: So if that's the thinking, it seems like the nexus is there. [00:06:37] Speaker 02: Well, I think that if that is the thinking, it needs to be made more clear on the record in order to justify such a significant intrusion on Mr. Cimbrano's [00:06:45] Speaker 02: privacy and there is a way that even if that is the court's reasoning that it could be fashioned so that probation could look at text messages phone calls and social media but this it's not clear at all why this has to extend to all electronic devices including computers there's no nexus between [00:07:04] Speaker 02: the offense conduct here between any facts brought up by probation or the government or Mr. Sembrano himself as to his computer use and so I do think that a limitation would be proper and prior to that the district court does need to make the factual finding about what about the nexus in this case. [00:07:24] Speaker 02: The gang paraphernalia condition is also problematic for vagueness and over breath reasons. [00:07:31] Speaker 02: The government argues that [00:07:33] Speaker 02: the knowledge requirement or the scientific requirement can be read into the condition, but I think that still leaves open the question of what is the appropriate mens rea. [00:07:44] Speaker 02: So with the gang paraphernalia condition saying that Mr. Sembrano cannot wear items known [00:07:51] Speaker 02: to be associated with gangs. [00:07:53] Speaker 02: It's problematic because it doesn't specify that that knowledge has to be known to Mr. Sembrano. [00:07:58] Speaker 02: It's also problematic because it doesn't specify that he has to wear the item with the purpose to be affiliated with the gang or to associate with that gang or represent that gang. [00:08:08] Speaker 02: So this condition is overbroad because if Mr. Sembrano is a Chicago Bulls fan and wants to wear a Bulls jersey, the probation officer could say, this is a symbol of your support of the MS-13 gang. [00:08:23] Speaker 02: There's no reason why Mr. Sembrano should be prohibited from wearing a Chicago Bulls jersey when he has no association with the MS-13 gang. [00:08:32] Speaker 02: So it's overbroad, even if a knowledge requirement is read into it that, yes, Mr. Sembrano might know of that association from reading the news, but that doesn't mean that he's wearing that item with the intent to associate with that particular gang. [00:08:47] Speaker 02: And if there are no further questions for now, I'll save my remaining time. [00:09:11] Speaker 00: Good morning your honors may it please the court Dana Siegel for the United States I would like to pick off where most of the questioning was while my colleague Council was speaking to the court It is our position that the standard of review for the supervised release condition imposing a search of the electronic devices Including the computers cell phones etc would fall under [00:09:36] Speaker 00: the ordinary standard of review and because it does not impose a particular significant liberty interest. [00:09:42] Speaker 00: Under Magdaleno and other precedent, it's clear that those particular significant liberty interests, when there does need to be an explicit explanation and a special finding, for example, in Magdaleno it was an intimate relationship, in other cases it might be chemical castration or imposing anti-psychotic medication forcibly onto an individual. [00:10:05] Speaker 00: None of those are met here. [00:10:06] Speaker 00: And actually, in Behr, the court makes kind of a contrary finding, which does establish, or at least infer, that the regular standard would be met. [00:10:17] Speaker 00: The court in BEHR 806 F3D 1011 1017 states, we have on occasion vacated conditions of supervised release, limiting use of computers with access to internet. [00:10:31] Speaker 00: We have not taken such a heavy hand with respect to general conditions of personal computers. [00:10:37] Speaker 00: And what's significant in BEHR is that it's almost exactly identical to the supervised release condition that the court imposed in this case. [00:10:45] Speaker 00: I believe there's maybe one extra word and a couple of the words kind of switch places. [00:10:51] Speaker 00: But so the court already found that this would be a standard review. [00:10:54] Speaker 00: And under bear there does need to be a factual finding establishing some sort of nexus between the computer use and the valid conditions or goals of 3583 or 3553. [00:11:06] Speaker 00: Here that is apparent. [00:11:08] Speaker 00: And in Garcia, although unpublished and not binding, the court did find [00:11:13] Speaker 00: that the nexus can be apparent on the record in a case that was even less factually explicit than this one because there the court simply relied on past conduct and then it says simply adopted the government's position, although I'm not sure it stated what that was. [00:11:30] Speaker 01: Do you agree with me that or maybe is there, was there another nexus that you think the district court was thinking about other than the one that I articulated about he's just wanting to monitor the defendant's gang involvement and seeing if he's actually [00:11:44] Speaker 01: stepping out as he's supposed to be. [00:11:46] Speaker 00: I agree with the court your honor and the reasons for that is because as discussed in the briefing at multiple points in the record it does appear that the only discussion of computers is with regard to the social media. [00:11:58] Speaker 00: Of course social media can be accessed on a computer, a cell phone or any electronic device with internet and the court at multiple places does say [00:12:08] Speaker 00: You know, for example, on ER 60, I accept that as you maintain some sort of social media and otherwise contact with your former, if not former colleagues or your friends in the gang, [00:12:18] Speaker 00: That's a factual finding that would meet even a heightened standard because there is this specific finding by the district court between wanting to monitor the defendant for goals of certainly rehabilitation because the defendant himself stated that he wanted to get out of the gang. [00:12:33] Speaker 00: And it's clear and evident from the record that he did continue his gang associations while on supervised release. [00:12:40] Speaker 00: We know that from the probation proffers, which is why the sentencing was continued once in the first place. [00:12:47] Speaker 00: that he was posting on social media, throwing gang signs, there were FI cards. [00:12:52] Speaker 00: As of the time he was on supervised release, his profile photograph was a picture of a wolf holding a firearm, which appears to be a direct relation to his gang, which is the wolf pack gang. [00:13:05] Speaker 00: And the court did seem especially concerned with that at ER 18 and 19 with that photograph, which was apparent at least from when he was on supervised release. [00:13:15] Speaker 00: So that is a long way of saying, [00:13:17] Speaker 00: No, I agree with the court, your honor, on that. [00:13:20] Speaker 00: With regard to the other issues raised on appeal, none of them were preserved at the district court. [00:13:27] Speaker 00: So, of course, there is plain error review. [00:13:29] Speaker 00: Notably, in the briefing, Somerano does argue that it should be a different standard of review for each because he wasn't given the opportunity to object. [00:13:39] Speaker 00: However, after the court ruled on the second objection and kind of colloquially said that's all, [00:13:44] Speaker 00: The court did stay on the record, and at that point when it stayed on the record, that's when it actually gave the supervised release conditions, of course, which counsel and Sombra and I were already aware, because they were reimposed. [00:13:55] Speaker 00: But that would have been a very good opportunity during the silence of that moment to make further objections. [00:14:02] Speaker 00: We would ask that the court affirm the district court's imposition of sentence, unless the court has any other questions. [00:14:11] Speaker 02: Thank you very much, counsel. [00:14:31] Speaker 02: My colleague mentioned a factual finding made supposedly made by the district court regarding mr. Sembrano social media activity, but I just want to clarify that was at er 60 that was at the initial sentencing hearing and Immediately after the court said I accept that there's been some social media activity defense counsel and [00:14:50] Speaker 02: Objected and said this sounds like it's going to be very important to the court's consideration of the sentence So I want more time to look into this because I'm just finding out about this that was the reason why the sentencing hearing got continued at the final sentencing hearing after both parties had time to consider the information provided by probation there was further argument and that's the key point where the district court did not make a factual finding afterwards and [00:15:15] Speaker 02: It simply said, after hearing argument from both sides, it simply said, all right, and then began pronouncing sentence. [00:15:21] Speaker 02: But it didn't specify whether it believed that there had been problematic social media use. [00:15:27] Speaker 02: And regardless, it didn't connect overall computer use, overall electronic device use to the goals of supervised release. [00:15:36] Speaker 02: And even from what the government has indicated, it sounds like a restriction that would allow probation to only look at [00:15:43] Speaker 02: Mr. Sembrano's social media would be appropriate in this case as opposed to extending to all electronic devices. [00:15:51] Speaker 01: Thank you. [00:15:52] Speaker 01: Thank you very much. [00:15:52] Speaker 02: Both sides your argument. [00:15:54] Speaker 02: The matter is submitted.