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Case number 12-3032, United States of America versus Brandon J. Rock, appellant.

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Mr. Jeffries for the appellant, Ms.

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Seifert for the appellee.

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May I please report?

[00:00:16] Speaker 01:
Good morning.

[00:00:16] Speaker 01:
I'd like to reserve three minutes for a bundle.

[00:00:21] Speaker 01:
Thank you.

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I'd like to address the procedural errors with respect to the length of the sentence first and then turn to the special conditions of supervised release.

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On the issue of this sentence itself, this court's opinion in United States v. Lemon states that appellate courts must be concerned not merely when a sentencing judge has relied on demonstrably false information, but when the sentencing process created a significant possibility that misinformation infected the decision.

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And this court relied on Lemmon just earlier this year in United States versus Capote, where the court vacated the defendant's sentence and remanded for resentencing, where an allegation regarding the defendant's participation in a gunfight had not been sufficiently proven in order for the district court to consider its sentencing and increasing the defendant's sentence.

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Here, the government has essentially conceded on appeal

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that the government mischaracterized the state of the evidence to the district court.

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On page 23 of the government's brief, they characterized the record about why Mr. Rock failed to continue in his communications with Detective Palachek as ambiguous.

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That's here before this court.

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And that's a candid admission that I think the government counsel has correctly made on appeal.

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But it's a far cry from how government counsel characterized the evidence before the district court at Mr. Rock's sentencing.

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Where did the district court rely on the camera show issue?

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Well, I'm sorry.

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Where in the district court's sentencing announcement of the sentence did she rely on this camera show and what caused it to be avoided?

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Right.

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And I think that's the issue is that the district court never sufficiently addressed the issue.

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Right.

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I mean, I think both parties, and I think, you know, it makes sense that this issue would have been significant to what sentence Mr. Rock should receive within the 11C1C range.

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We can't require district courts to stake out a position on every single dispute between the government and the defendant.

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And when you look at what the district court was relying on here, which was the volume of child pornographic materials that had been accessed online, traded, the videotaping,

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the emailing, sharing of the videotapes of his, not stepdaughter, I guess his girlfriend's

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the debate about what happened in that last 48 hours just wasn't going to be a material dispute to her sentence.

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What is your answer to that concern?

[00:03:11] Speaker 01:
Well, I think under Rita and under the law regarding the procedural requirements in sentencing, when the parties emphasize something, when one party emphasizes something in mitigation, which I think common sense would be important to deciding where Mr. Rock should be sentenced within the range, which is whether

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He is the kind of offender who either in this case or generally would attempt a contact offense, which I think...

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it creates another set of concerns here that could increase the sentence to the maximum of the range.

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So when that's at issue, and when the government also devotes significant attention to addressing that argument, and this is both in the pleadings, the sentencing memorandum filed ahead of time, but then also at the actual sentencing hearing, the district court doesn't have to find it significant, but I think the district court, it's incumbent on the district court to state that.

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Don't you have to show some prejudice, though, that somehow it would have made a difference, point to something in the decision that suggests that it would have made a difference?

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Given, again, what she was focused on, and the current concerns that she had, and the fact there's a dispute there, the ambiguities surrounding the circumstances mean that

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It wasn't going to be clear cut either way.

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Right.

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And so we don't know, right?

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And then that's the problem.

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I mean, if the district court had said, look, I don't care about this.

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It's not material to my sentencing.

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Whether he was going to do this or not, I can't tell.

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So it's not going to be a factor in my sentencing.

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I think that would have handled this issue.

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But we don't know.

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You wouldn't be here arguing if she had done that.

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But we can't require it.

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There has to be a limitation on when we require judges to answer every dispute back and forth between the parties.

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You could have been disputing about whether the Earth is

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splatter around, and she said, look, it doesn't matter to me.

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And that's certainly implicit in the decision here, is it not?

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I think it is.

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But I think what Rita says in the other cases I've taken from that is that when something is emphasized to this extent by a party or by both parties, it's at least incumbent on the district court to engage in what is not a very onerous exercise of stating, that's not something that's affecting my sentence.

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Take that issue off the table.

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I mean logically.

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I'm sorry

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Logically, this is something that would be sort of reported.

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And the fact that the district court, I mean, the fact that the government.

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Why?

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I mean, the other thing I'm going to ask is, what is so mitigating about not responding to an email?

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Well, I think because, I'm sorry, I'm referring to.

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36 hours or something, 48, I can't remember.

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I'm referring to the larger issue about whether Mr. Rockwood crossed the line between looking, and there's a hidden camera component of this, and actually gauging into contact.

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All right, but to the extent that's the point.

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That's the point.

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It was already on the record that even if he was not seeking to have sex with a child, he was paying someone else to rape her on video for his viewing pleasure.

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He was going to watch his entertainment.

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That's what the agreement was.

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And he made the down payment for it.

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And he also exposed himself to the daughter, left the vibrating egg in the room.

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All of these things, again, you get the sense from the district court's opinion when you read it, that this was not going to be a determination that he was just looking at pictures online.

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Well, if those were going to be important factors, then I think, again, it's incumbent on the district court to say, look, I'm finding that this is what he's been engaging in.

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Because when the time came for that actual thing to happen, and when the officer- No, but you did talk about, look, you're right there in the house videotaping this child.

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That's right.

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Being around her.

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I thought she referenced the exposure.

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And it was undisputed that there was at least this agreement between your client

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and that the down payment of video images, including of his girlfriend's daughter, had been made.

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And if the government had stopped with that, I think we certainly wouldn't be here.

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But that's not how the government stopped.

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Then you're back to saying that the point is she didn't resolve the factual dispute about the signification or not of

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uh... him not having responded to an email but i thought you said what really is going on here is that you're trying to divide the world into contact non-contact and this just doesn't fit

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that division, even if she agreed with you, you still weren't going to be in a pure looking at images online situation so much more.

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He'd already crossed that line in other findings or undisputed facts.

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In other respects, but in terms of whether he would have picked up and traveled down to Washington DC.

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And the government must have had its reasons for so aggressively pursuing that argument, right?

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Because they thought that it would lead the district court to impose the higher sentence that she basically imposed.

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And so, you know, they had their reasons, but in doing so, they did not characterize the evidence the way Your Honor just did, which is an accurate characterization.

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They took it one step further than that.

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And they said that his arrest was the but-for cause of him not traveling to Washington, D.C.

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And that was not an accurate characterization.

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Is that really a misstatement of evidence, or simply a characterization of evidence in legitimate order?

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When did the lawyer ever get up in court and say this evidence is ambiguous Judge?

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The lawyers typically, I mean, most things have changed a lot since my day.

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Lawyers typically get up and characterize the evidence in the program of the judge in the way most favorable to their side.

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He didn't misstate evidence.

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He didn't say the evidence is and set out something that didn't happen.

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He said there is no evidence when there was evidence.

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He characterized the evidence in the way that lawyers do in the Oregonian.

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Isn't that what happened?

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I would say he took it too far.

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He characterized it in a way that would lead one to believe the underlying evidence was not what it was, which shows that Mr. Rock had basically gone dark on them and stopped communicating with them prior to both the date for when he would travel and the webcam.

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So I mean, he had either backed out or for some reason was not good.

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Oh, look, there's a very short time.

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And the government's argument was

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travel per se, but that they needed to get, that but for their intervention, a child would have been harmed.

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That's their argument.

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And that's crystal clear.

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Is it not?

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He'd been videotaping this child in his house, in his girlfriend's house, for quite some time, had said, she'll be back Friday.

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And the undisputed facts are there was an agreement that he was going to owe the second half of that payment

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of horrific images of Detective Palchak on Saturday.

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Their argument went beyond that.

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No, no, no.

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But that was the powerful fact, at least as I read it, was that whether or not a child was going to be harmed.

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And a child most certainly was.

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Well, he never showed up for the time of the webcam, so I would say, but.

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No, it's the video taken in the house.

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Oh, no.

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Yeah, but I know that was conceded.

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I think we were all arguing about that, and that's what the argument should have been about.

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But they took it beyond that to focus specifically on what his plans were with respect to this fictitious child that the detective had.

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I mean, they said his failure to meet with Detective Palchek and the child was, quote, not due to any lack of effort on the defendant's part, which is false.

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And then they said again.

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False or is it a matter for disagreement?

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part of the prosecution.

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It's that we give it the best shade for their sentence.

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I think it takes a step beyond that.

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Because it doesn't say the evidence in it.

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The fact that you think it takes a step beyond is not our standard.

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Well, here's the second thing they said.

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The defense attorneys usually think it takes a step beyond.

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Here's the second thing they said.

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They said, and it's true, that the defendant never traveled to the District of Columbia.

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So this is specifically on the travel offense, not the webcam, not what happened up in Pennsylvania.

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And it's true that the defendant never traveled to District Columbia.

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The defendant never followed through on that, but there's a reason for that is because he was arrested for it.

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That's just not an accurate characterization.

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Why would the fact that he didn't travel be mitigating when the concern was that

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their intervention stopped harm to a child.

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That's going to be relevant whether he himself had backed away from harm or the government had had to stop him from inflicting more harm.

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One can see how that's relevant.

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And if either the government had said it the way your honor just did or... No, no, I'm just asking what is... he didn't travel to D.C.

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when the concern was harming children here.

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I don't think... and if it's an internet offense you can harm them pretty powerfully from wherever he was.

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Yes, but I think a hidden camera offense is quite different from

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traveling to Washington to engage in hands-on contact.

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It's different for a number of reasons.

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But he was never going to engage in the hands-on contact.

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What's that?

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He wasn't going to engage in the hands-on contact.

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The government suggested very strongly, I think they said directly, that he was going to come here and molest this fictitious child that the detective was offering him.

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And just the evidentiary basis for that was not there.

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And that's the whole problem with the sentencing.

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I read the harm to a child they were talking about is that the young lady returning to the house in which

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They're directly saying that he never traveled to the District of Columbia, and he never followed through on that, because that's clearly for a meeting with this fictitious child.

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I mean, the government focused very heavily on that.

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Why?

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I don't know.

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And whether it influenced the district court judge, we can't tell, because the district court judge never saw it.

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I think we can tell, because we take the district court at its words for the reasons it gave for the sentence.

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I thought your argument was that the district court is not that we can't tell.

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It's that the district court had this whole other factor it had to address.

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I'm sorry, am I wrong about that?

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I'm sorry.

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The district court judge never addressed this argument.

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Never said, I'm not considering it.

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Right.

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And I do think when... Well, the district judge can't possibly list all the things she's not considering.

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No, but this was a main point of contention between the parties.

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And Rita and what the other cases say, basically when something is emphasized to this extent, it is incumbent on the district court judge to at least address it, to say something about it.

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And the district court judge can say, this doesn't matter to you.

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I'm not considering this.

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It's too speculative.

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Whatever.

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Or I am considering.

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But I think for the purpose of this exercise, among other things, we need to know what the district court's reasons were.

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And we didn't really get those from this year.

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I mean, this was a well-developed argument.

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I mean, I would say the same thing about the recidivism.

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I mean, I just, you know, at a very fundamental level, I don't think it's correct that we can go in and have a district court judge say, you know, basically, I mean, let's take another context, say, I think all income tax offenders are very greedy people who are going to go out and do it again.

[00:14:00] Speaker 01:
The recidivism is extraordinarily high, so I'm going to give you a sense of the top of the range.

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And if that turns out to be completely wrong... All right, Mr. Jefferson, how about addressing the supervised release conditions?

[00:14:13] Speaker 01:
On that, you know, again, probation, and it's now in the record, the probation and the government do not request these conditions, the challenge conditions.

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We've only challenged certain ones.

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And the probation and the government do not request these conditions.

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I just want to clear up one thing.

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Did they still request them at the time of the sentencing?

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Was this a post-sentencing?

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I'm sorry.

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Was that a post-sentencing development?

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Or was it even at the time of the sentencing they were no longer requesting those things?

[00:14:38] Speaker 01:
I think it was a post-sentencing development.

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So this was in 2012.

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But they've evolved over time in light of the case law and other circuits and in this circuit.

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And so do we evaluate?

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the legitimacy of these conditions based on the state of law and the record before the just recorded time of sentencing or what authority lets us say that might have been fine then but there's been this intervening factual development and so

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in terms of the... Do we on appellate court look at the state of the law and record, law and facts now?

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I think what I would say, it's very clear that it should be, I mean, plain error, whatever error is assessed at the time of the decision.

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So in terms of, insofar as probation and the government are not asking for these for legal reasons, and the legal reasons are out there, it's assessed in terms of all the intervening laws.

[00:15:30] Speaker 02:
So it's assessed as a... Right, plain error is assessed as the state of law, but I'm not sure this is all

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law development, you've sort of offered a factual consideration.

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So that's why I'm trying to figure out how to factor that in.

[00:15:44] Speaker 01:
I probably should have said, I think probation and the government have based these decisions not to ask for these things based on an intervening law.

[00:15:51] Speaker 04:
Nonetheless, other than the romantic relationship and nation, every one of

[00:16:00] Speaker 01:
uh... where this the law is very well is evolving obviously especially something other than the one about romantic relationship every one of those well with respect to the penile plasma graph i mean that's been struck down as unconstitutional even a judge of this court has said that he believes that judge Kavanaugh has said that he believes that even Judge Kavanaugh however that's one that we don't know what is ever going to come in anyway

[00:16:31] Speaker 04:
That's not, I mean, again, I don't think- We can strike that one and it doesn't change anything happening right now.

[00:16:37] Speaker 01:
I don't think it's assessed that rightness is the proper argument for the government to be stated in our brief.

[00:16:43] Speaker 01:
But I think the government's asking the court to basically create multiple circuit splits on these issues and delve into issues that are constitutional in nature and very important in nature for things that wouldn't be requested today.

[00:16:54] Speaker 02:
Aren't they all subject to plain error review except for the relationship condition?

[00:16:59] Speaker 01:
You know, we made an objection to all of the conditions.

[00:17:02] Speaker 01:
The district court then expressly stated.

[00:17:04] Speaker 01:
You just said we generally object.

[00:17:07] Speaker 01:
to the conditions.

[00:17:08] Speaker 01:
The district court expressly stated your objections.

[00:17:10] Speaker 01:
I understand.

[00:17:11] Speaker 02:
The same thing happened in our love case, and we said, that's not enough.

[00:17:14] Speaker 02:
So how is your situation different?

[00:17:16] Speaker 01:
Well, in that case, the district court did not expressly state your objections, so all of these are preserved, and then further reviewed the romantic relationship.

[00:17:25] Speaker 01:
I mean, so I think that, I mean, for the district court to say your objections were expressly stated, your objections were all expressly

[00:17:31] Speaker 01:
I mean, they're all preserved.

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I think the court would be hard pressed to then overrule that and say, oh, no.

[00:17:36] Speaker 02:
How did she know what she was preserving?

[00:17:38] Speaker 01:
To objections to the special conditions of supervised release.

[00:17:42] Speaker 02:
I mean, what?

[00:17:44] Speaker 02:
What is your objection?

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How does she know what she's preserving?

[00:17:46] Speaker 02:
A constitutional one?

[00:17:48] Speaker 02:
A factual one?

[00:17:49] Speaker 02:
A legal one?

[00:17:49] Speaker 02:
How does she know what she's preserving?

[00:17:51] Speaker 02:
How do we know?

[00:17:52] Speaker 01:
I don't know.

[00:17:53] Speaker 01:
We don't know.

[00:17:53] Speaker 02:
That's the problem with the general objection.

[00:17:55] Speaker 02:
I get that she said that, although I think it's vague whether she thought it was unarticulated objections or the collection of objections made at that point too.

[00:18:04] Speaker 02:
contact with children.

[00:18:05] Speaker 02:
That's the immediate precedent for her statement and for the attorney's statement about the objections generally.

[00:18:11] Speaker 02:
But even if we give that, she may think it was preserved for her purposes, but she can't preserve things for our purposes.

[00:18:20] Speaker 02:
given our precedent and our rules, because we don't have any idea.

[00:18:23] Speaker 02:
It makes us the court of first view rather than review.

[00:18:26] Speaker 01:
I would say just two things quickly.

[00:18:28] Speaker 01:
One is that, for the reasons you said earlier, that they're assessed on the plainness of the error now.

[00:18:33] Speaker 01:
So even a 400-year plain error, these just don't make it.

[00:18:35] Speaker 01:
And that's what the government's saying.

[00:18:36] Speaker 01:
And just because another circuit has upheld them at some point in time, maybe quite a while ago or something like that, I think Judge Garland is saying, in cases here, that doesn't inoculate the error from plain error review before this.

[00:18:50] Speaker 02:
Can you just take a minute and talk about the significant, because that one you did object to about the significant relationship.

[00:18:55] Speaker 01:
And so on this one, the government's basically asking the court to create a circuit split with the Second Circuit's decision in McLaurin.

[00:19:01] Speaker 01:
And then also on whether the other, whether that is vague, whether it makes any sense to apply in a case where

[00:19:09] Speaker 01:
you know, the significant partner does not have children.

[00:19:14] Speaker 01:
And the government's only justification for this is that, like, look, everybody should know about this man's offense so they can make a decision about whether to, you know, for becoming a relationship with him, knowing what he might do in the future.

[00:19:24] Speaker 01:
That's far too, I think, speculative and far removed from

[00:19:29] Speaker 04:
You know, the narrow tailoring requirement that they have to, the courts have to... We agree with you, but that's the only thing we found wrong.

[00:19:37] Speaker 01:
We need to vacate and send back or can we simply strike that one condition and otherwise... I think in terms of the remedy, the court could do, could refashion the conditions or order the district court to refashion the conditions.

[00:19:49] Speaker 01:
Yes.

[00:19:50] Speaker 01:
Thank you, counsel.

[00:19:51] Speaker 01:
Thank you.

[00:19:55] Speaker 03:
Ms.

[00:19:56] Speaker 03:
Seifert, good morning.

[00:19:58] Speaker 05:
Good morning, Your Honor.

[00:19:59] Speaker 05:
Karen Seifert for the United States.

[00:20:01] Speaker 05:
Appellant's counsel states that we need to know what the district court's reasons are for the sentence.

[00:20:07] Speaker 05:
And this court does know those reasons, because the district court was very clear about what her basis was for imposing this sentence.

[00:20:14] Speaker 05:
And a careful review of the record reveals that there are five reasons that she gave for this sentence.

[00:20:19] Speaker 05:
One was the severity of the crime, and that is the predominant reason here.

[00:20:23] Speaker 05:
This is multiple crimes, really, that the court was concerned about.

[00:20:28] Speaker 05:
One, the young girl in the next room.

[00:20:30] Speaker 05:
Two, the massive collection of over 600 child pornographic photos on the defendant's computer.

[00:20:37] Speaker 05:
and three, the transmittal of child pornography from the defendant to the undercover.

[00:20:43] Speaker 05:
Those were the crimes that the court was worried about and the real victims involved in those crimes.

[00:20:48] Speaker 05:
That's the second thing that she really focused on, that there are real live victims here that the defendant was hurting.

[00:20:54] Speaker 02:
Well, I think their point on the camera show or traveling to DC argument is not that she didn't say what she said about those things, but there is this mitigating factor here, and that is that this guy who had been hesitant about crossing lines in the first place was backing off.

[00:21:14] Speaker 02:
When Bush came to shove, backed off, was doing his best to educate.

[00:21:18] Speaker 02:
Now, that's their version of the record.

[00:21:20] Speaker 02:
You had a competing version of the record, which was

[00:21:24] Speaker 02:
No, this is a case about things that would have gone still worse had we not intervened Why didn't the district court have to grapple with that?

[00:21:35] Speaker 02:
debate as to what for them was an important potential mitigating factor.

[00:21:42] Speaker 05:
I think, Your Honor, she did grapple with it.

[00:21:44] Speaker 05:
And if you look at her exchange with counsel on page 18 of the transcript, counsel specifically states that his client refused the repeated invitations to come down.

[00:21:54] Speaker 05:
And she replies, I would agree.

[00:21:57] Speaker 05:
So she agrees that Detective Palachek is being aggressive.

[00:22:02] Speaker 05:
But then she says, in his own court, without Detective Palachek having anything to do with it, Mr. Rock was doing.

[00:22:10] Speaker 05:
Now whether he was successfully obtaining what he was going for is a different issue.

[00:22:14] Speaker 05:
I have no idea whether he succeeded or not, but he was doing.

[00:22:18] Speaker 05:
And that's what her concern is.

[00:22:21] Speaker 05:
She doesn't even mention Detective Palchak when it comes down to pronouncing the sentence.

[00:22:26] Speaker 05:
She doesn't mention the undercover operation.

[00:22:28] Speaker 05:
What she talks about is the real-life victims.

[00:22:31] Speaker 05:
The girl in the room next door who is being groomed by this defendant who has exposed himself, well aroused,

[00:22:39] Speaker 05:
to this young girl who has placed a vibrating egg in her room for her to find to kind of test the waters.

[00:22:46] Speaker 05:
That's what the judge is worried about here.

[00:22:48] Speaker 05:
And she's worried about the real life children in the 600 plus images, which she says are very disturbing.

[00:22:55] Speaker 05:
And she had reviewed those images that are found on the defendant's computer.

[00:22:59] Speaker 02:
When she actually imposes the sentence, the only mitigation she references is, I'm going to knock some time off because of his risk in prison, to abuse in prison, but then doesn't come back and mention this.

[00:23:13] Speaker 02:
Is that something we need to worry about?

[00:23:14] Speaker 05:
Well, no, Your Honor, because I think she's already dealt with it in the exchanges with counsel.

[00:23:19] Speaker 05:
And Rita doesn't require her to say, I understand that the parties are disputing the facts about what was in the defendant's head when he failed to respond on June 15th to the detective's message.

[00:23:32] Speaker 05:
And I find that he was thinking X or Y. Rita doesn't require that.

[00:23:36] Speaker 05:
All Rita requires is that she is fully aware of the arguments and that she fully considers the evidence that supports it.

[00:23:42] Speaker 05:
And the record is replete with those discussions that she had with counsel where she tests this issue and these arguments.

[00:23:50] Speaker 05:
And that's what they are, as Judge Santel pointed out.

[00:23:53] Speaker 05:
They are arguments about the facts.

[00:23:55] Speaker 05:
And I would point out to the court that the government here made no attempt to mislead.

[00:24:00] Speaker 05:
The government, in fact, in its memorandum and native sentencing submitted the entirety of these internet chats, every single one to the court.

[00:24:09] Speaker 05:
So the court had the very facts before it that the government was arguing about and that defense was arguing about.

[00:24:15] Speaker 05:
And the court could read all of those.

[00:24:17] Speaker 05:
It's very clear she was very familiar with what transpired between

[00:24:22] Speaker 05:
the defendant and Detective Palchak and she just didn't think that that was significant here.

[00:24:27] Speaker 05:
That the more significant elements of this case are the defendant's own conduct with the girl next door, with the collection of pornography, and with the transmittal of child pornography.

[00:24:39] Speaker 05:
That's the court's primary concern and that is what she talks about at sentencing and that is why when

[00:24:45] Speaker 05:
defendant's counsel repeatedly brings up this argument about whether or not defendant was really going to go through with anything with Detective Palachek, she says, yeah, I agree.

[00:24:56] Speaker 05:
Detective Palachek is very aggressive, but it doesn't matter because it's his conduct I'm looking at.

[00:25:02] Speaker 05:
That's the import of her statements.

[00:25:04] Speaker 05:
And fairly read by this court, there's no error here because she hasn't relied upon any misstatements by the government or any erroneous facts about recidivism.

[00:25:14] Speaker 05:
And if I might just briefly address the recidivism aspect here on appeal, Appellant has picked one line out of the very beginning of this sentence and sort of hung his hat on that line, which is where the...

[00:25:29] Speaker 05:
which is where the court says, historically recidivism has not been easy to avoid.

[00:25:34] Speaker 05:
But then, defense counsel challenges the court on that, and there's an ongoing debate between the court and defense counsel.

[00:25:41] Speaker 05:
And so by the end of this sentencing hearing, the court makes very nuanced statements like, it's hard to know about this crime and easy to do again, and recidivism in this area is very hard to predict.

[00:25:53] Speaker 05:
So, defense counsel was an excellent advocate for his client and the court recognized that and then chose to say things that were more appropriate with what the court was thinking at that time.

[00:26:04] Speaker 05:
And I think the other thing to note here is it's not just a rate of recidivism that the court is worried about.

[00:26:10] Speaker 05:
It's the fact that this is a very serious crime.

[00:26:13] Speaker 05:
And she says that repeatedly.

[00:26:14] Speaker 05:
It's a very scary and serious crime.

[00:26:17] Speaker 05:
So even if the resentment rate is low, it's irrelevant to her because...

[00:26:33] Speaker 05:
Well, I don't think it is vague.

[00:26:35] Speaker 04:
I think that... It's been a long time removed from the world of singles, but I'm not even sure that there's always unanimity between the two parties involved.

[00:26:46] Speaker 05:
I think as Judge Kavanaugh states in his dissent in Malania, it's certainly a condition that if the defendant is concerned about what it means, he can talk with his probation officer to receive clarification.

[00:26:57] Speaker 04:
He shouldn't condition to be such that a defendant can conform

[00:27:06] Speaker 05:
Well, I think that this court could offer a limiting instruction, as other courts have, where they think conditions are vague.

[00:27:12] Speaker 05:
But I don't think it's so overly vague that in this case, it would be one in which that the court would need to strike down.

[00:27:19] Speaker 02:
Is it identical to what was struck down by this circuit in Millennia?

[00:27:23] Speaker 05:
No.

[00:27:23] Speaker 02:
Well, I think Millennia is a different case, Your Honor.

[00:27:25] Speaker 02:
I understand the facts are different.

[00:27:26] Speaker 02:
I'm asking, are the terms of the condition identical to what was held to be improper in circuit precedent?

[00:27:33] Speaker 05:
I don't believe that that condition was expressed or was discussed at length in Melania.

[00:27:42] Speaker 05:
But the premise of Melania is that the standard conditions for sex offenders are not relevant

[00:27:50] Speaker 05:
to that case.

[00:27:50] Speaker 02:
It may have been the premise, but there's a holding striking down the identical relationship condition because of the vagueness of the language and sweeping in situations that bear no relationship to the criminal conduct at issue.

[00:28:01] Speaker 02:
And that's the difference.

[00:28:02] Speaker 02:
No, it may not.

[00:28:03] Speaker 02:
And you've got to get past the vagueness of the language before we know if you're sweeping in stuff that's farther than the relationship here.

[00:28:10] Speaker 02:
Well, I think that

[00:28:13] Speaker 05:
That argument was not as fleshed out in millennia as I think it could be.

[00:28:18] Speaker 05:
I don't know that here, where we're talking about a significant romantic relationship, that that's not.

[00:28:23] Speaker 04:
How do you define significant?

[00:28:24] Speaker 04:
How is it placed out here?

[00:28:25] Speaker 05:
I'm sorry?

[00:28:25] Speaker 04:
How is it placed out here?

[00:28:28] Speaker 04:
It says a significant romantic relationship.

[00:28:30] Speaker 04:
And that is what it said in millennia, didn't it?

[00:28:33] Speaker 05:
I think that the issue in millennia, what the court was focused on, and I will give it.

[00:28:38] Speaker 04:
Never mind what the court was focused on.

[00:28:40] Speaker 04:
Did the court strike exactly the same condition in millennia?

[00:28:43] Speaker 05:
My understanding was that the basis for striking that condition was different than what is being advocated here.

[00:28:51] Speaker 05:
Yes, but for a different reason.

[00:28:52] Speaker 02:
No, didn't they talk about the vagueness of the language?

[00:28:56] Speaker 05:
They did talk about the vagueness of the language, but they also talked about the fact that it's an ill-fit for that case.

[00:29:02] Speaker 02:
Okay, so they had two prongs.

[00:29:05] Speaker 02:
On the vagueness of the language, can you tell me, can you give me your definition of significant romantic relationship?

[00:29:11] Speaker 02:
Well, for instance, if one were calling... For instance, I need a definition, not an example.

[00:29:16] Speaker 05:
a girlfriend or a boyfriend relationship would be a significant romantic relationship.

[00:29:20] Speaker 02:
Okay, so I have a teenager, okay?

[00:29:23] Speaker 02:
And when she thinks the guy is a boyfriend and when that boyfriend thinks he's a boyfriend, they're not the same thing at all.

[00:29:30] Speaker 05:
Did he work the other way?

[00:29:32] Speaker 05:
Well, here it applies to the defendant, so I think that it's his own view of what is a significant romantic relationship.

[00:29:38] Speaker 05:
It's his own view?

[00:29:39] Speaker 05:
If he's saying, that's my girlfriend, he's presenting someone as his girlfriend, then he thinks that's a significant romantic relationship.

[00:29:46] Speaker 02:
And if she says, no, I'm not, then is he in trouble?

[00:29:49] Speaker 02:
Has he violated his condition or not?

[00:29:51] Speaker 02:
Well, it's what he holds that person to be.

[00:29:54] Speaker 02:
So as long as he says, I don't think we're, they could be living together.

[00:29:59] Speaker 02:
And he could say, but I don't think we're monogamous.

[00:30:02] Speaker 02:
I'm not calling you my girlfriend.

[00:30:03] Speaker 02:
Surely you don't mean that.

[00:30:05] Speaker 02:
Surely it's not his own subjective view that the probation office is going to give license to.

[00:30:09] Speaker 05:
Well, Your Honor, I would note that

[00:30:11] Speaker 05:
For this specific condition, you know, to the extent that the court is concerned about vagueness, the same conduct is covered elsewhere in the conditions that the defendant... So then we don't need this one.

[00:30:21] Speaker 04:
Well, that is something that I think... So you can say that we can strike that condition?

[00:30:25] Speaker 05:
I'm not agreeing that you should strike this condition, Your Honor, but I would note that... And that's the point of the fact, the point of the assertion that it's covered other places.

[00:30:32] Speaker 04:
I'm sorry, Your Honor?

[00:30:33] Speaker 04:
And what is your point when you say it's covered other places?

[00:30:35] Speaker 05:
I'm saying that in the standard conditions that are applied for all defendants, this is number 13, it's on page 235 of the record, that defendants must notify third parties of the risks that are occasioned by their criminal record and permit their probation officer to make such notifications.

[00:30:52] Speaker 05:
So it is very similar to the, you know, that's actually a broader condition than the one that we're talking about here, that defendant has not and did not object to you below.

[00:31:02] Speaker 05:
And so ultimately, you know, that's the same issue as encompassed here.

[00:31:07] Speaker 02:
It's your burden to show that these things are no greater than necessary.

[00:31:13] Speaker 02:
And so if you're telling me we didn't actually need it, I'm having trouble understanding how you met the no greater than necessary standard.

[00:31:20] Speaker 05:
I think the concern here is that if the defendant used his romantic relationship, which no one questions was a significant romantic relationship, one where he lived with this woman to prey on a child, and the concern that the court had... I get that.

[00:31:36] Speaker 02:
I get that's a huge concern, but I thought you just assured me that other conditions

[00:31:41] Speaker 02:
would already protect against that, that don't have the same vague language.

[00:31:45] Speaker 05:
Well, the concern is that here the court wanted the defendant to be required to inform and communicate with his probation officer about when he's in these relationships so the probation officer can make the necessary notification either under provision 13 or under the special condition.

[00:32:01] Speaker 05:
And that is why I believe the court put that in there and she goes at length to describe why, when defendant objects to this condition, why she thinks that's necessary.

[00:32:10] Speaker 02:
I think it was at length.

[00:32:11] Speaker 02:
I think she said, well, you used a relationship to harm this child.

[00:32:16] Speaker 02:
But she doesn't explain what she means by the term significant romantic relationship.

[00:32:21] Speaker 05:
And if the court is concerned with the vagueness of that, it could certainly remand for the district court to define for the defendant when it needs to make such a notification.

[00:32:31] Speaker 05:
But certainly under the facts of this case, that is a reasonable condition of probation

[00:32:37] Speaker 05:
by the court's own discussion of why it was appropriate in this case.

[00:32:41] Speaker 04:
If it is vague to the point where you cannot know whether to conform your conduct, how could it ever be a reasonable condition?

[00:32:50] Speaker 05:
The government disputes that it's vague to that point, Your Honor, and I would reference the... Define it for me.

[00:32:55] Speaker 05:
Well, I would just reference to the court the opinion in Pennington from the Fifth Circuit that has a similar... Forgive you if there's ever been an opinion.

[00:33:08] Speaker 05:
Well, one, I'm not sure that this court is required to define something of that terms, because as you described... Two, you are required to answer my question.

[00:33:21] Speaker 05:
Yes.

[00:33:22] Speaker 05:
Well, Your Honor, I think the point is it's going to be different for every person, what a significant romantic relationship is.

[00:33:28] Speaker 04:
That's exactly the point.

[00:33:29] Speaker 04:
How can it not be major?

[00:33:31] Speaker 04:
It's going to be different for every person.

[00:33:34] Speaker 04:
user of the English language.

[00:33:36] Speaker 04:
We have asked you repeatedly to find it.

[00:33:38] Speaker 04:
You can't.

[00:33:39] Speaker 05:
I would define it as a relationship in which one is romantic with the other person and it goes beyond a cat beyond casual dating to the point where we're holding each other out as being in a relationship.

[00:33:51] Speaker 05:
That would be a significant romantic relationship.

[00:33:55] Speaker 05:
I'm sorry.

[00:33:55] Speaker 04:
You said anything just then it wasn't vague except for the whole thing out for it.

[00:34:01] Speaker 05:
Well, certainly if you are holding out another person as your girlfriend or boyfriend after living with them, that's significant.

[00:34:09] Speaker 02:
Here's what I'm told, because I'm now a flighty-dutty parent.

[00:34:12] Speaker 02:
And that is that the younger generation doesn't even use girlfriend, boyfriend anymore.

[00:34:18] Speaker 02:
They hook up.

[00:34:21] Speaker 02:
And it's not even meant to be come with obligations.

[00:34:26] Speaker 02:
It is just hanging out together

[00:34:30] Speaker 02:
in a more progressive way, a further progressive way than

[00:34:36] Speaker 02:
hanging out with friends in a non-romantic or sexual way would be.

[00:34:42] Speaker 02:
So is a hookup one weekend a significant romantic relationship?

[00:34:45] Speaker 02:
I don't think that it would be, Your Honor, and I think that doesn't... How about two weekends?

[00:34:49] Speaker 02:
I'm sorry.

[00:34:49] Speaker 02:
Two days and a half, Saturday and Sunday.

[00:34:51] Speaker 05:
Well, again, I don't think it would, because the concern the Court is worried about here is the utilizing of that relationship to prey on children, right?

[00:34:58] Speaker 04:
And so if you're just with them two days... If the Court is saying you won't use a relationship to prey on children, we would have a condition we could understand.

[00:35:05] Speaker 02:
If the relationship puts you into contact with children.

[00:35:10] Speaker 04:
Notify.

[00:35:10] Speaker 05:
Well, I think the other issue is all relationships are going to put you in contact with people who are known to the person you're dating or the person you're in this significant romantic relationship with your girlfriend.

[00:35:22] Speaker 05:
You're going to know her family, her friends, her children if she has them.

[00:35:26] Speaker 05:
And the concern the court has is the utilizing of that connection that comes from the trust that is gained by saying, this is my boyfriend, this is my fiance, this is my living.

[00:35:36] Speaker 04:
All that sounds pretty good.

[00:35:49] Speaker 05:
I think that the use of the word significant is intended to take it from just any hookup any one date to where there is a relationship that is significant.

[00:36:04] Speaker 02:
Can I ask you something about process here because there's talk in the papers your papers about

[00:36:11] Speaker 02:
with the computer conditions and all the things, we'll work this out later.

[00:36:17] Speaker 02:
That's why I give the discretion.

[00:36:18] Speaker 02:
And I just confess that I don't know exactly how this process works.

[00:36:23] Speaker 02:
So if it's however many decades from now and Mr. Rock is

[00:36:29] Speaker 02:
within a year of release and computers have taken over the world and he wants to challenge the computer internet access limitation because at that point you really can't do anything in society without doing it through a computer.

[00:36:49] Speaker 02:
Is there a process before he's released to challenge, it's a real viable one, a meaningful one where things sometimes happen

[00:36:58] Speaker 02:
Either with the probation office or with the court, or does he have to wait and go out?

[00:37:04] Speaker 02:
and then just ask his officer to fix it, or what, is there a formal process for addressing this?

[00:37:09] Speaker 05:
I believe he's at liberty to move to modify the release conditions.

[00:37:12] Speaker 05:
Move the court.

[00:37:13] Speaker 05:
At any time, move the district court to modify those.

[00:37:15] Speaker 02:
You don't ask the probation office, do you ask the probation office first or not?

[00:37:18] Speaker 05:
No, I believe his counsel can file a motion to modify, and could have in this case, and ask for a more kind of recent set up.

[00:37:24] Speaker 02:
No, but there's a lot of talk about, well, the probation office will figure out what to do if this internet access problem is

[00:37:31] Speaker 02:
suffocating.

[00:37:33] Speaker 02:
So that's why I was curious when opinions including from this this circuit have said the flexibility we give the probation office will take care of any concerns we have now about how this is going to work.

[00:37:44] Speaker 02:
So how does that flexibility work?

[00:37:46] Speaker 05:
Well, putting aside the court process, specifically with probation, it would depend on where he's being supervised.

[00:37:54] Speaker 05:
And this is not in the record, Your Honor, but my representation from probation is, for instance, this defendant was sentenced in DC but lived in Pennsylvania, that when he moves, if he asked to move to Pennsylvania, which I think is probably likely, he'll receive actually a whole new set of conditions from Pennsylvania that he will have to accept.

[00:38:11] Speaker 05:
And those will be the current conditions in Pennsylvania.

[00:38:14] Speaker 02:
From a court in Pennsylvania?

[00:38:15] Speaker 05:
from the probation in Pennsylvania.

[00:38:20] Speaker 05:
Well, it frankly ends up replacing the conditions because he's being supervised over there, so he'll get the current conditions that are being, that probation imposes in that place.

[00:38:37] Speaker 04:
Otherwise, why is she bothering him?

[00:38:39] Speaker 05:
Well, because we don't know if he'll move back to Pennsylvania.

[00:38:43] Speaker 05:
These are the conditions that are in place.

[00:38:45] Speaker 05:
If he wants to change the conditions imposed by the district court here in DC, he can move to modify.

[00:38:51] Speaker 05:
If he moves to a different jurisdiction, he has to accept the probation conditions there.

[00:38:55] Speaker 02:
Well, how does he challenge those there?

[00:38:57] Speaker 05:
Well, if he wants to go there, it ends up almost being contractual.

[00:39:01] Speaker 05:
Those are the conditions that are available there.

[00:39:03] Speaker 02:
Well, this can't be a fairly negotiated contract.

[00:39:06] Speaker 04:
Yes, he can move to modify this court as soon as he's released or even before to say the conditions that are imposed are not are not.

[00:39:31] Speaker 05:
You can't do it before.

[00:39:32] Speaker 05:
Well, I think he can actually do it at any time.

[00:39:34] Speaker 02:
I mean, apart from the court process, because in our decision in leg, in other cases as well, we said, look, we're upholding these internet and computer restrictions for now, but the probation office, not the court can modify it, the probation office has the flexibility to deal with it because

[00:39:53] Speaker 02:
You have to have the permission of the probation office to go online under this condition.

[00:39:58] Speaker 02:
That's correct.

[00:39:59] Speaker 02:
But if he doesn't, if they're saying no, imagine his probation officer is saying no all the time.

[00:40:05] Speaker 02:
So what you have in effect is the categorical prohibition on internet access that we struck down in Russell.

[00:40:12] Speaker 05:
How does he challenge that?

[00:40:14] Speaker 05:
I think he comes to the court and says, this is unreasonable and I want the condition to be modified because the way it's not only the way it's written but the way it's applied to me is unreasonable.

[00:40:24] Speaker 05:
And the court can then either remove the condition or seek to have a condition that's more liberal applied.

[00:40:30] Speaker 05:
And so the court remains an advocate for the defendant to bring this claim.

[00:40:35] Speaker 02:
There's no way administratively to challenge the individual probation officer decision.

[00:40:39] Speaker 02:
I don't know the answer to that, Your Honor.

[00:40:42] Speaker 05:
But I do know that, as is evidenced by our footnote in this case, that probation continues to update these conditions as they think is appropriate, which I think is a good sign to this court that they are cognizant about changes of technology.

[00:40:55] Speaker 05:
And as Your Honor referenced in leg, the court is not intended to be an oracle of technology, is what the court said there.

[00:41:01] Speaker 05:
And it will be difficult to know in 2024.

[00:41:05] Speaker 05:
how any of these conditions will be applied and that is part of the difficulty of bringing this this posture of this client case to this court at this time and asking the court to sit basically and and kind of opine on things that may never come to be and frankly

[00:41:21] Speaker 05:
And so, you know, the government's position is

[00:41:40] Speaker 05:
They're either upheld on plain error review by this court or by other courts.

[00:41:46] Speaker 05:
And with respect to the PPG testing condition, there is a circuit split.

[00:41:49] Speaker 03:
Can I ask you about that?

[00:41:51] Speaker 03:
What's the point of that?

[00:41:53] Speaker 03:
I mean, if he reacts a certain way, is he then given some sort of medicine?

[00:42:02] Speaker 03:
Is there some sort of procedure performed on him?

[00:42:08] Speaker 05:
do you know?

[00:42:09] Speaker 05:
And this is not in the record, Your Honor, because this wasn't fleshed out below.

[00:42:11] Speaker 05:
But from the other cases that we cite in our brief, my understanding is that as part of a more holistic testing, that this test is meant to see how the treatment is working and whether additional treatment may be needed.

[00:42:22] Speaker 05:
And there are, again, this is not in the record, but probation represents there are now also newer tests that they are adding to the treatment, like rapid eye movement tests, things of that nature.

[00:42:35] Speaker 04:
Obviously, you know, the concern is that we don't even know if he'll have this problem by the time he comes out.

[00:42:41] Speaker 05:
Yes.

[00:42:42] Speaker 05:
Well, and frankly, this particular condition is conditional.

[00:42:46] Speaker 05:
So as your honor points out, it may never be imposed on this defendant at all.

[00:42:51] Speaker 02:
Well, you said his first impression, but that's not accurate.

[00:42:55] Speaker 02:
we struck in millennia, it was listed and identified as one of the conditions and they were all vacated.

[00:43:02] Speaker 02:
And then Judge Kavanaugh said, that's the one part I'm joining, is that part.

[00:43:07] Speaker 02:
So in fact, we have precedent.

[00:43:09] Speaker 02:
It doesn't say ripeness.

[00:43:11] Speaker 02:
It doesn't make it a ripeness problem.

[00:43:13] Speaker 02:
It strikes it down.

[00:43:15] Speaker 02:
in advance, so aren't we bound by Molina?

[00:43:17] Speaker 05:
I reviewed this Court's opinion in Molina with respect to this question, Your Honor, and I don't see any discussion in Molina's panel opinion with respect to the fact that that is unconstitutional.

[00:43:25] Speaker 02:
I don't, but I see them all vacating because they say the District Court did not, who just sort of put them on, did the same thing, did no individualized analysis or consideration of that factor, and they said you didn't apply the right test.

[00:43:38] Speaker 02:
They're all vacated.

[00:43:39] Speaker 02:
But not for constitutional grounds, which is what?

[00:43:42] Speaker 02:
There was nothing in this case where the district court made any individualized finding.

[00:43:47] Speaker 02:
And the so-called science behind this thing is highly questionable.

[00:43:54] Speaker 02:
And it's an extraordinary, as Judge Kavanaugh said, an extraordinary intrusion on liberty.

[00:44:00] Speaker 02:
It's hanging over his head now.

[00:44:01] Speaker 02:
The sentence is imposed.

[00:44:03] Speaker 02:
I think it meets any Article III constitutional rightness.

[00:44:06] Speaker 02:
Maybe you have a prudential right in this thing, but you don't get to impose conditions that hang like the sword of Damocles over someone's head and just say, yeah, well, we're hoping they never do it.

[00:44:16] Speaker 02:
We never have to confront this.

[00:44:18] Speaker 02:
Why don't you just say, it's not valid now.

[00:44:20] Speaker 02:
And if there's great testing in 20 or 30 years, then the government can move to modify his condition and add that in.

[00:44:27] Speaker 05:
I don't think that it's not valid for under these circumstances.

[00:44:32] Speaker 05:
I think that the court in millennia was saying that none of the conditions that are the additional conditions for pedophiles or sex offenders were relevant in that case, and the court agreed with that and said... Well, the court said you didn't make the explanation that the law requires, and you have to go back and comply with the type of

[00:44:53] Speaker 02:
analysis that's required and we don't have any individualized discussion here either by the district court.

[00:45:00] Speaker 02:
And have the district court focused on this?

[00:45:03] Speaker 05:
And didn't because the defendant didn't object to it.

[00:45:05] Speaker 05:
So that's under plain error review.

[00:45:06] Speaker 05:
The question is whether

[00:45:08] Speaker 02:
Well, now that it's been struck down by Melania, then it's maybe plain, given what Melania said, it's plain error here.

[00:45:14] Speaker 05:
Well, I think it was the fair reading of Melania from the government's view is that it was struck down in that case because it was an ill fit for that defendant.

[00:45:21] Speaker 05:
Here, we do have a defendant who, in fact, is a child porn user, distributor, a person who was into pedophilia.

[00:45:34] Speaker 05:
And so this is a case where he's in the appropriate set of people for these additional supervised release conditions.

[00:45:41] Speaker 05:
And the government's position is there's no plain error because, as this court has said in its other cases, there is no plain error on these release conditions where the circuits are split about whether or not something is an appropriate condition relief for pedophiles and sex offenders.

[00:45:57] Speaker 03:
All right, I think we have enough to get to the heart of it.

[00:46:01] Speaker 03:
Does Mr. Jeffries have any time left?

[00:46:04] Speaker 03:
All right, why don't you take two minutes?

[00:46:06] Speaker 03:
We would ask that you affirm the judgment.

[00:46:08] Speaker 03:
Thank you.

[00:46:09] Speaker 01:
Thank you.

[00:46:09] Speaker 01:
Just very briefly on the last set of concerns that Your Honor's raised regarding how this actually plays out in practice with the probation officer and the procedures, especially the situation of the indigent defendant who does not have a lawyer.

[00:46:19] Speaker 01:
So the probation officer says, okay, I'm going to pull you in and I'm going to hook you up, you know, for the plasma graph.

[00:46:24] Speaker 01:
I'm going to, we're going to attach all these things to you and do this thing.

[00:46:27] Speaker 01:
He hasn't had a right to counsel at this point.

[00:46:32] Speaker 01:
For the indigent defendant, he doesn't have the ability to afford counsel.

[00:46:35] Speaker 01:
He's in an incredibly power relationship that is incredibly imbalanced, where you've got this person who could send you back to prison and has a tremendous amount of control over your life.

[00:46:45] Speaker 01:
And the amount of coercion that is present there on that defendant to just accept whatever his probation officer tells him, it's incredibly powerful.

[00:46:55] Speaker 01:
And this process cannot work that he would have to, if it would take an incredibly resolute person, and you see this in practice all the time,

[00:47:07] Speaker 01:
It's very rare that he will come to the federal public defender or whatever and say, listen, this guy is never letting me use the internet, or this guy is going to do this plasma graph, or is ordering me to do this, and I need counsel because I'm going to fight this all the way.

[00:47:21] Speaker 01:
That's the exceptional defendant.

[00:47:22] Speaker 01:
And so the process can't be structured that way.

[00:47:25] Speaker 01:
Because probation officers will, in many cases, take the course that's safest for them and never let these people use the internet.

[00:47:32] Speaker 01:
always insist on the most invasive procedures to determine risk.

[00:47:36] Speaker 01:
And so as long as, and there's also, if they violate them for not doing this, there's a presumption of detention.

[00:47:43] Speaker 01:
So I mean, I think right now, the way this plays out in practice is just not built for that kind of thing.

[00:47:48] Speaker 01:
Thank you.

[00:47:48] Speaker 01:
Thank you.

[00:47:49] Speaker 01:
Next case.