[00:00:00] Speaker 03:
Case number 20-3080, United States of America versus Mark Wayne Russell at balance.

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Mr. Axum for the balance.

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Mr. Hansberg for the appellate.

[00:00:12] Speaker 05:
Good morning, counsel.

[00:00:14] Speaker 00:
Good morning.

[00:00:16] Speaker 05:
Counsel for appellant, you may proceed.

[00:00:19] Speaker 00:
May it please the court, counsel.

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Tony Axum representing appellant Mark Russell.

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I'd like to reserve three minutes for rebuttal.

[00:00:27] Speaker 05:
All right.

[00:00:28] Speaker 00:
The GPS condition in this case involves a greater deprivation of liberty than reasonably necessary to satisfy the statutory purposes of supervised release.

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Under this course precedent, if the district court wanted to impose a condition to monitor Mr. Russell's location around the clock, it had to identify the purpose served by such monitoring and make sure that the condition involved no greater deprivation of liberty

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than reasonably necessary to achieve that purpose.

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The court has said that what is reasonably necessary is the least restrictive alternative to achieve the purpose at issue.

[00:01:10] Speaker 05:
How would you define that?

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How would I define the least restrictive alternative in this case?

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Yes.

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One example would be something that the court did impose and imposed before, which was if the purpose is to deter or to protect the public,

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it would be to place Mr Russell in sex offender treatment where he undergoes regular polygraphs that that would both deter.

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And for 10 years, we know that he didn't have any violations.

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Um, so it protected the public as well.

[00:02:01] Speaker 01:
Why?

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Why is that a deterrent?

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I guess I'm not sure I understand why is so.

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So

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Yes, sex offender treatment relates to the offense and his ability to commit it and his desire to commit it.

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But first of all, the fact that he previously underwent sex offender treatment and yet reoffended suggests to me that that condition didn't work.

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So to the extent that you're now suggesting that that was what the court should have done and that alone,

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I think the facts of this case actually undermine that contention.

[00:02:43] Speaker 00:
Well, I'm not saying that that and that alone.

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I'm saying that that's a... Judge Rogers asked what a least restrictive condition would be, but I disagree with... What you said, what were you going to say?

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I'm sorry.

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I disagree that it did not work.

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It did work for 10 years.

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at about 10 years, he stopped sex offender treatment.

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But I should note that sex offender treatment involves routine polygraph exams.

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And the polygraph exams in themselves are a deterrent because they ask questions about who he has been with, what he has been doing, his sexual activity, and

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he would be deterred from engaging in unlawful behavior because it would be revealed through the polygraph.

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So the sex offender treatment, I guess you could separate out polygraph from sex offender treatment, but they are part and parcel.

[00:03:51] Speaker 05:
And- Well, but the point, I think, and do acknowledge, is it worked for 10 years and then it didn't work because he stopped.

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So the judge knew that.

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So what was the judge to do?

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I'm not sure why it stopped, but I am sure that the judge could have ordered it to initiate again.

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But there are other conditions.

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I mean, the computer monitoring restriction is also a least restrictive condition that deters and protects the public.

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Even in the context of GPS, the court could have imposed a GPS condition that pinged when he was at certain locations or at certain times, but this is a very broad GPS condition.

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And I should note, I mean, the court would still have to have identified locations where crime would be more likely or times where crime would be more likely.

[00:05:01] Speaker 05:
Well, that's asking the district court to look into the future.

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And I don't think that's required in all fairness.

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And I guess what I'm concerned about here is I thought you were focusing perhaps more narrowly

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on the question of, for example, was it necessary for him to wear the ankle bracelet within his home?

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I'm certainly concerned about that, but my concern is much broader than that.

[00:05:45] Speaker 05:
Oh, I understand that.

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But I mean, given our standard of review here,

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It seems to me that you have a very difficult burden given this man's behavior and the concern that yes, it's computer related, but it's also the revocation travel related.

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What I would say about travel is that travel is

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not inherently criminal.

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And as the district judge said himself, in imposing this condition, he said, so even though he'll be subject to GPS monitoring, as long as he's having interaction with adults, there's no prohibition and no restriction on his movement.

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GPS does not tell the court what Mr. Russell is doing or who he is with.

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But shouldn't we view the district court statement as acknowledging not that travel is illegal, but given this man's behavior, how do we handle travel

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without simply saying he cannot leave his home without, I don't know, a law enforcement officer or a probation officer.

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Your Honor, I would have to strongly disagree that travel is the hallmark of the crime.

[00:07:31] Speaker 05:
I agree.

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I'm not suggesting that.

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But I am suggesting that as a result of travel and what happened before,

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He's now where he is.

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And the district court can't ignore that.

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And I didn't understand you really to be suggesting that.

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And that's why I went to this very more limited issue about which I thought was one of your arguments.

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And I know you have a broader argument.

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I'm not suggesting that by mentioning lesser

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issue, you are in a sense waving your broader arguments.

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But what about within the home?

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Well, we do take issue with the GPS tracking his movements, even in the more narrow confines of the home.

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But I have to be frank.

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my understanding of the degree to which GPS, the logistics of installing the device and whether there is technically a technical way for monitoring within the home to be more limited.

[00:09:03] Speaker 05:
That- Well, you take the bracelet off.

[00:09:10] Speaker 00:
That seems to make sense.

[00:09:14] Speaker 05:
Can I ask a question, Mr. Axum?

[00:09:16] Speaker 05:
Let's finish this one, and then I'm happy to be quiet.

[00:09:24] Speaker 05:
Well, go ahead.

[00:09:25] Speaker 05:
I sort of lost my track.

[00:09:26] Speaker 01:
I apologize.

[00:09:27] Speaker 01:
That's all right.

[00:09:30] Speaker 01:
Mr. Axum, what I can't quite figure out is the fact that GPS doesn't tell the court what he's doing or where he's going.

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I don't know, sorry, it tells him where he's going, but not who he's with or what he's doing.

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I think that's what you were saying before.

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And I don't know if that helps you or hurts you in a certain way.

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And that is because I'm trying to understand what is the deprivation or restriction

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that is occurring as a result of this GPS.

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He wears the bracelet, he goes to and from.

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I understood Judge Walton's statement, as you quoted it, to be related to this kind of thing, which is this is not really that big an imposition.

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So can you say a little bit more about that?

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In other words, you suggested least restrictive means, lesser restrictive means would be things like computer restrictions or polygraph testing.

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And I would think that some people might find those to be more restrictive.

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than just wearing the ankle bracelet and going to and from your work or doing whatever else you would ordinarily do.

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So why do you think that this is a really restrictive condition?

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Well, if you're only thinking of it as wearing a bracelet like wearing a watch,

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I suppose it wouldn't be restrictive at all.

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But what we're talking about is a privacy interest here.

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The liberty interest at stake is a privacy interest.

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And the GPS is literally recording thousands of data points per day.

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And it's aggregating those data points.

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That is, it is an invasion of privacy.

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And it's not a video, Mr. Axum.

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It's recording data points about where you're going.

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So even if he's inside the home, and I don't understand it to be at the level of he's in the bathroom now, he's in the kitchen now.

[00:11:25] Speaker 01:
I mean, it just says he's inside his home or he's at his office or he's not three hours away in Maryland at a place that we can't account for potentially soliciting sexual activity with minors, right?

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So what's really the big deal of the GPS?

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Presumably, if he has traveled even three hours away, the GPS would not identify whether he is with a minor or not.

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I mean, if the court is only concerned with him traveling great distances, then GPS might measure that.

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That's not the only question that the court had to answer.

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It had to answer to what end does this monitoring him wherever he travels, to what end does it serve?

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What purpose does it serve?

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And what I'm saying is the value of that monitoring is minimal because

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The GPS is capturing again, thousands of points of innocent behavior, behavior that the court has said is permitted himself in the hope that there is some potentially unlawful behavior.

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I mean, unless the court didn't say it shall ping every time you're three hours away from your home jurisdiction.

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that would be a less restrictive condition that yes, you wear GPS and the GPS is going to stop you from going three hours outside.

[00:13:14] Speaker 00:
That's not what we have here.

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We have only surveillance.

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We have only GPS that is telling the probation office where he is at each moment of the day.

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It's virtually useless information if

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If the probation office doesn't know what he's doing there or who he's with or that it's criminal activity, it has to serve a purpose.

[00:13:41] Speaker 01:
How does this argument not swallow and ruin any GPS surveillance?

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Couldn't you say the same thing about drug cases, about any case in which the court has ordinarily or routinely authorized GPS?

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Because precisely because it is not at the level of detail of telling you who they're talking to or exactly what they're doing, it's just surveillance, as you've said.

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So shouldn't we have a concern that if we accept your argument, that's the end of GPS monitoring?

[00:14:18] Speaker 00:
You absolutely should not have that concern because 3583 accounts for that by requiring that the condition be narrowly tailored.

[00:14:28] Speaker 00:
So in the case of

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a drug case, a case before this court, USV Hunt.

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There was a GPS condition because there was also a stay away condition from a drug corner where the defendant had been arrested selling drugs.

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That is narrowly tailored.

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That is not what we have here.

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What we have here is just a broad open-ended GPS.

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We're gonna look at every single place he goes.

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And that you can look at every single place he goes.

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But what I'm saying is, to what end?

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To what purpose?

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What is that serving?

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It is not serving.

[00:15:08] Speaker 00:
The court didn't articulate how that is helpful.

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It didn't articulate like what all the only thing that is happening is the deprivation of privacy.

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That's all that's happening.

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There's no end result because we don't know what the GPS, as you said, is not looking.

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It's not a video camera.

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What is it doing except telling probation, he's here, here, here.

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I suppose the court could have said, and if you're three hours away, that's gonna be a violation and we want to know that because that's suspicious to us.

[00:16:01] Speaker 00:
I take issue with whether that is suspicious because in the same breath, the court is saying you are allowed to travel.

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Travel is not the problem here.

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The problem is criminal conduct.

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trap every person as you say, every person has to travel a necessary condition of the criminal conduct.

[00:16:26] Speaker 02:
At least it was a necessary condition.

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It was a necessary condition of the three hour trip to in Maryland for

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I think that I take issue with that too.

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I think that's an unfair assumption.

[00:16:45] Speaker 02:
Travel was a necessary condition of his re-offense.

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After the fact, we know that he traveled, but we do not know prospectively, we do not know whether travel was a necessary condition.

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He didn't arrange for the child to come to him, right?

[00:17:05] Speaker 02:
That's correct.

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He didn't.

[00:17:07] Speaker 02:
then how was travel not a necessary condition?

[00:17:11] Speaker 00:
I guess I'm not understanding what a necessary condition is.

[00:17:15] Speaker 00:
I mean, it was a necessary condition to him being caught, but is it a necessary condition for the crime?

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Is it an element of the crime?

[00:17:22] Speaker 02:
I mean, I'm not talking about either.

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I'm not talking about him being caught for the re-offense.

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I'm talking about the re-offense itself.

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And if he had not traveled,

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three hours to meet the child, then he would not have committed that re-offense.

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That re-offense, that particular re-offense would have been, would not have happened.

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Isn't that correct?

[00:17:57] Speaker 00:
That is correct.

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I still don't think that travel is the but for cause of the offense because

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The harm that you're protecting against is the sexual assault of a child.

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And you do not need travel for that to occur.

[00:18:13] Speaker 02:
I thought it's in his travel and maybe I'm just remembering, but his travel a part of the statute.

[00:18:20] Speaker 00:
The Maryland offense, I do not believe that it was he was he was charged with with attempted

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sexual contact with a child.

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In the federal offense, travel is a jurisdictional component.

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But again, it's still not a but for cause of the offense.

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I mean, that's... Let me ask... Sorry, I lost sound hearing.

[00:18:49] Speaker 00:
I can't hear you.

[00:18:52] Speaker ?:
Sorry, my bad.

[00:18:55] Speaker 02:
I'm sorry, go ahead.

[00:18:58] Speaker 00:
I'm sorry.

[00:18:59] Speaker 00:
I didn't hear the question.

[00:19:03] Speaker ?:
Yes.

[00:19:03] Speaker 02:
Can you hear me?

[00:19:04] Speaker 00:
Yes.

[00:19:05] Speaker 02:
I'm sorry about that.

[00:19:06] Speaker 02:
My apologies.

[00:19:08] Speaker 02:
This question is going to, I think a candid answer will be a bit against interest.

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But if this GPS condition had been in place, do you think it's

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more or less likely that he would have re-offended?

[00:19:33] Speaker 00:
I genuinely don't know the answer to that.

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I understand that the easy answer is it's less likely that he would have re-offended.

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And that feels like the easy answer because it feels like GPS will

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does more than it actually does.

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And by that, I mean, it feels there's a psychological impact.

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I don't deny that there is a psychological impact to being monitored 24 hours a day.

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That's the privacy interests that I'm talking about.

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I mean, that is what is being infringed.

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So I think

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but whether realistically the GPS would have aided law enforcement in protecting the public or stopped the offense or realistically would have been an actual deterrent, I don't think it would have given that it still would not say

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who he's with or what he's doing.

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And a rational actor, an impulsive actor, yes.

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And I accept that many criminal defendants are impulsive actors and have not thought through.

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But if we are distilling out rationally, logically, whether GPS can tell law enforcement anything prospectively,

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It cannot when it is only measuring location.

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When you combine it with something else that that location is prohibited, or that location is where criminal activity is occurring.

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it then takes on added significance.

[00:21:25] Speaker 00:
But that's my problem with this GPS condition.

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It is a standalone GPS condition.

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It does not restrict locations where criminal activity or time or anything else.

[00:21:38] Speaker 00:
It certainly would, after the fact, could serve as an investigative tool.

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but an after the fact investigative tool is not one of the purposes allowed under 3583.

[00:21:55] Speaker 00:
Again, 3583 cabins the court's discretion to impose a condition of supervised release.

[00:22:04] Speaker 00:
And I should say in this case, although we are talking about deterrence right now, the district court was very clear.

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The district court did not utter deterrence.

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The district court was very clear that this was to protect the public.

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And that, I think there is...

[00:22:24] Speaker 00:
very little benefit to be gained from a standalone GPS condition.

[00:22:32] Speaker 01:
Mr. Axum, I'm mindful of your time and I have a slightly different set of questions that I'm hoping you can get to really quickly before you're done.

[00:22:42] Speaker 01:
You have an alternative argument or maybe an addition.

[00:22:46] Speaker 01:
At the very least, you say we should send back

[00:22:48] Speaker 01:
this case for Judge Walton to conform the judgment to his statements about giving your client credit for time served on supervised release.

[00:23:01] Speaker 01:
Yes.

[00:23:02] Speaker 01:
I am a little confused by that because I had not understood that getting credit for previous periods of supervised release is sort of typically what's done.

[00:23:13] Speaker 01:
in terms of supervised release.

[00:23:15] Speaker 01:
I've not seen it before, and it's not actually consistent with my understanding of how supervised release works, that supervised release is prospective, that you're trying to determine what amount of time is necessary for the person to be supervised in order to be rehabilitated.

[00:23:33] Speaker 01:
And it really doesn't have anything to do with whether they had previously had a term of supervised release that was, in this case, unsuccessful.

[00:23:42] Speaker 01:
because he was revoked.

[00:23:44] Speaker 01:
So I am wondering whether the judgment actually states Judge Walton's true intention that he may have misspoke on the bench when he said, time served.

[00:23:56] Speaker 01:
And so if we're sending it back, is the idea that he needs to clarify what he actually meant?

[00:24:04] Speaker 01:
I don't know that we can just say this was clearly a typo, so just

[00:24:08] Speaker 01:
say time served.

[00:24:10] Speaker 01:
Do you understand my concern?

[00:24:12] Speaker 00:
I do understand your concern.

[00:24:14] Speaker 01:
What would be your reaction to that?

[00:24:16] Speaker 00:
Well, my initial reaction would be there was a time, I know that the supervised release statute was amended sometime within the past

[00:24:25] Speaker 00:
I want to say seven years and forgive me for not knowing exactly, but there was a time when supervised release was the time that you had served or the time that you were given as a revocation was routinely subtracted from the time remaining on your supervised release.

[00:24:43] Speaker 00:
The supervised release statute was amended, and I understand that that is not normally the practice now, but there is nothing that prohibits it.

[00:24:52] Speaker 01:
Yeah, but that's not what he says.

[00:24:54] Speaker 01:
So the statute previously said that if you get a revocation term, if you're revoked and the court gives you 24 months of imprisonment,

[00:25:04] Speaker 01:
then if you get another period of supervised release, you subtract the 24 months.

[00:25:10] Speaker 01:
It's the term of imprisonment that was imposed, that was subtracted from the subsequent term of supervised release.

[00:25:17] Speaker 01:
Here, that's not what Judge Walton says.

[00:25:19] Speaker 01:
He says, obviously, he's given credit for the time he's already been on supervised release.

[00:25:25] Speaker 01:
That I've never seen, and it doesn't really make sense in a way.

[00:25:30] Speaker 01:
So what I'm asking you is when you say send it back,

[00:25:34] Speaker 01:
Is it your understanding that Judge Walton actually intended for him to have 20 years because he'd already spent 10 years on supervised release?

[00:25:41] Speaker 01:
Is that what you're asking the remand to be about?

[00:25:46] Speaker 00:
Yes.

[00:25:48] Speaker 00:
To be frank, I am not sure what Judge Walton intended.

[00:25:56] Speaker 00:
And as all criminal defendants, I can only proceed based on what the judge said.

[00:26:02] Speaker 00:
And he said that my client would receive a credit for time served on supervised release.

[00:26:08] Speaker 00:
I should note that these very lengthy terms of supervised release overlap with the time that I'm talking about when the supervised release statute was amended.

[00:26:21] Speaker 00:
There was a time when the maximum term of supervised release was five years.

[00:26:26] Speaker 00:
I understand that that time has since passed but.

[00:26:31] Speaker 00:
courts have not frequently been in the position of having a 30-year-old lifetime term of supervised release.

[00:26:40] Speaker 01:
In sex cases, that's the standard.

[00:26:42] Speaker 01:
In sex cases, you're very, very lengthy.

[00:26:47] Speaker 01:
And I understand this is helpful.

[00:26:48] Speaker 01:
I'm sorry, I didn't mean to sidetrack.

[00:26:50] Speaker 01:
So if there is an ambiguity, if we don't really understand what Judge Walton meant, the sendback wouldn't just be

[00:26:57] Speaker 01:
conform to what you said, it would be you need to clarify what the term of supervised release is that you intended, right?

[00:27:08] Speaker 00:
I'm not sure that I can agree with that.

[00:27:10] Speaker 00:
I mean, the judgment should say 30 years supervised release with credit for time served.

[00:27:20] Speaker 01:
I understand there's at least two other circuits that have reached the conclusion that you cannot get credit

[00:27:26] Speaker 01:
for time served for supervised release.

[00:27:29] Speaker 01:
We have not reached that issue.

[00:27:30] Speaker 01:
But I feel like that's like an outstanding legal question that we would have to decide.

[00:27:35] Speaker 01:
And we couldn't order him to do something that may well be inconsistent with the statutes and the law.

[00:27:41] Speaker 01:
And I don't know how that gets resolved because we haven't really briefed it or talked about it in depth.

[00:27:47] Speaker 05:
But why don't we hear from the government and we'll give you some time on our rebuttal.

[00:27:53] Speaker 04:
Thank you, Your Honor.

[00:27:56] Speaker 05:
All right, council for Appley.

[00:27:59] Speaker 04:
Good morning and may it please the court, Eric Hansford for the United States.

[00:28:04] Speaker 04:
I want to emphasize four points here illustrating why the district court didn't abuse its discretion in deciding to put the defendant on GPS for the first two years of supervised release.

[00:28:18] Speaker 04:
First, the defendant is his underlying offense is a travel sex offense, making it especially sensible to monitor his movements during supervision.

[00:28:29] Speaker 04:
Second, the defendant is now a repeat offender in committing these sorts of offenses, justifying and necessitating more close supervision the second time around.

[00:28:41] Speaker 04:
Third, this court has repeatedly upheld a very similar condition, a monitoring condition, which is computer monitoring in these sorts of cases.

[00:28:52] Speaker 04:
And that poses almost identical privacy considerations to what we've been talking about with travel, but this court has repeatedly upheld that as we go through on our brief on pages 32 to 33.

[00:29:06] Speaker 04:
And finally, other circuits have consistently upheld GPS monitoring for sex offenses involving children, even when those offenses don't involve travel.

[00:29:16] Speaker 04:
And so where you have someone like the defendant, where he has a travel sex offense, and he has repeatedly traveled significant distances in attempts to sexually abuse minors, it is within the district court's wide discretion to impose GPS monitoring.

[00:29:37] Speaker 04:
I do think that it's worth looking at those computer monitoring cases because I think the concerns about privacy that would relate to movement monitoring would be basically parallel for computer monitoring.

[00:29:53] Speaker 04:
But this court has upheld computer monitoring, has not seemed to see computer monitoring as a difficult issue.

[00:30:00] Speaker 05:
Do you see no difference between wearing an ankle bracelet 24 hours a day

[00:30:07] Speaker 05:
and saying you can't turn on your computer and use it for certain reasons?

[00:30:14] Speaker 04:
I think under the Supreme Court's case law, the computer monitoring is the more invasive condition, the more invasion of an expectation of privacy if you look at a case like Riley.

[00:30:26] Speaker 04:
Whereas the Supreme Court, obviously this court has the Maynard case, but the Supreme Court has never said that

[00:30:33] Speaker 04:
kind of monitoring of public movements is a violation.

[00:30:38] Speaker 04:
But I think I take it that they may be comparable invasions of the privacy.

[00:30:45] Speaker 01:
What is the exact computer restriction?

[00:30:47] Speaker 01:
Is it that you can't go to certain sites or what exactly is being restricted?

[00:30:54] Speaker 04:
So in those cases, I think there's a package of restrictions.

[00:30:58] Speaker 04:
So often, first of all, in those cases, including in this case, there is a ban on using computers except for with permission of probation.

[00:31:07] Speaker 04:
And then even when you can use a computer, monitoring software is installed on the computer.

[00:31:13] Speaker 04:
You have to make your computer available, and this includes cell phones.

[00:31:17] Speaker 04:
or internet connected devices available for inspection by the probation officer.

[00:31:24] Speaker 04:
There's a mandatory or an approved condition under the Adam Walsh Act in the same subject section 3583D that says that police officers can do searches of houses, computers,

[00:31:40] Speaker 04:
Cars with reasonable suspicion, and that probation officers can do those sorts of searches in carrying out their supervision duties.

[00:31:53] Speaker 04:
So, so I think it is, there are many ways that you can monitor anything that the defendant is doing online, and this court has routinely upheld those sorts of conditions.

[00:32:06] Speaker 04:
This court is also upheld in the lorries case.

[00:32:13] Speaker 04:
personal internet connected device in order to facilitate computer monitoring saying that that makes it more cost effective for probation and therefore it's a reasonable restriction.

[00:32:24] Speaker 04:
So I do think the computer monitoring cases really are parallel to the GPS concerns in this case.

[00:32:34] Speaker 04:
Judge Rogers was asking some questions about possibly not having monitoring in the house or allowing the defendant to remove his GPS monitor in the house.

[00:32:47] Speaker 04:
I don't think there's been any argument or any showing that that is something that's feasible.

[00:32:53] Speaker 04:
And I think it runs into the problem that the Supreme Court discussed in Samson at 855 of when you tell someone that they're not going to be subject to a search at some specific time, then that

[00:33:15] Speaker 04:
Planned random searches would allow people to anticipate when the searches happen.

[00:33:19] Speaker 04:
So in other words, I'm not aware of a way to say the defendant, as long as he's in his house, wouldn't have to use the GPS device.

[00:33:27] Speaker 04:
How would you be able to verify that he's in his house if he's not wearing the GPS device, if he's allowed to take it off?

[00:33:34] Speaker 05:
I thought you were going to answer that.

[00:33:36] Speaker 05:
In other words, he would invite

[00:33:43] Speaker 05:
the person to come to him rather than he go to the person.

[00:33:48] Speaker 04:
I mean, I think that's a concern, though I'm not sure it's one that would be directly addressed by GPS.

[00:33:56] Speaker 04:
But I just don't know practically how you would be able to have a condition that would allow you to take off your GPS device.

[00:34:05] Speaker 05:
So the answer is you don't know.

[00:34:07] Speaker 05:
I just want to be clear about this because we're talking in such generalities here.

[00:34:13] Speaker 05:
I've never worn an ankle bracelet.

[00:34:16] Speaker 05:
But if I had to wear it 24 hours a day, even when I'm in my home, at least to me, it seems different than, well, I can't turn on the computer.

[00:34:27] Speaker 05:
And if I do, I have to go certain places and I cannot go other places.

[00:34:38] Speaker 04:
Let me say a couple of things.

[00:34:40] Speaker 04:
First is, I think the defendant's objection, both in the district court and at least in the opening brief, is solely focused on the invasion of privacy caused by the GPS monitoring.

[00:34:51] Speaker 05:
Well, it's based on a statutory provision.

[00:34:56] Speaker 05:
All right?

[00:34:57] Speaker 05:
So let's start there.

[00:34:59] Speaker 05:
And the argument first is this

[00:35:06] Speaker 05:
At large as it were, GPS is not the least restrictive necessary.

[00:35:13] Speaker 05:
And I think Judge Walker's questions we're trying to get at in the context of this case, is that a reasonable basis on which this court could say it was an abuse of discretion for the district court to impose the standalone GPS requirement?

[00:35:35] Speaker 04:
Sure.

[00:35:36] Speaker 04:
So the statutory condition is reasonably necessary.

[00:35:42] Speaker 04:
This court has said in one case that it's a least restrictive means test, which I think in isolation almost sounds like a strict scrutiny test.

[00:35:52] Speaker 04:
But what this court has done in practice before and since Malinia is uphold conditions as long as they're reasonable, strike down conditions that are unreasonable.

[00:36:02] Speaker 05:
Well, that's the question.

[00:36:04] Speaker 05:
Is it reasonably related to the underlying offense?

[00:36:09] Speaker 05:
And it seemed to me that one hurdle for the defendant here was the offense, in part, involved travel.

[00:36:20] Speaker 03:
Right.

[00:36:21] Speaker 03:
We agree with that.

[00:36:22] Speaker 05:
And that was outside his home.

[00:36:26] Speaker 05:
And if he's in his home,

[00:36:28] Speaker 05:
and you always know when he leaves this home, doesn't that address the travel concern?

[00:36:36] Speaker 05:
And I think you're telling me you simply don't know and the defendant hasn't offered any evidence to show that a GPS has this capability.

[00:36:49] Speaker 04:
So I am not answering, I don't know.

[00:36:51] Speaker 04:
I am answering, I don't think it's possible.

[00:36:55] Speaker 05:
Well, that's the same thing, isn't it?

[00:36:57] Speaker 05:
You don't know if it were possible for him not to be wearing it in the house because he'd be in the house.

[00:37:07] Speaker 05:
But if he left the house, bells and whistles would ring and he'd have to go back in and put it on in order to be in compliance with the order.

[00:37:22] Speaker 04:
But I think that would still mean GPS monitoring.

[00:37:25] Speaker 04:
I mean, that still means GPS, he's somehow being monitored so that you know if he's leaving the house.

[00:37:32] Speaker 04:
It is not possible as far as I understand to have something where he'd be able to remove the GPS monitor and nonetheless be able to tell if he's traveling outside the house.

[00:37:44] Speaker 05:
So your understanding is once the district court imposes a GPS,

[00:37:50] Speaker 05:
requirement, it's a 24 hour every day of the year obligation to wear it.

[00:37:59] Speaker 05:
And it probably is put on in a way that the defendant can't take it off without some government assistance.

[00:38:07] Speaker 04:
That's correct.

[00:38:08] Speaker 04:
And I think there are times when you wouldn't always be monitoring it, such as if you have a curfew condition.

[00:38:15] Speaker 04:
So in that case, you might only be monitoring the GPS data.

[00:38:20] Speaker 05:
Yeah, but the defendant has no control over that.

[00:38:24] Speaker 04:
That's correct.

[00:38:25] Speaker 04:
And that wouldn't apply in this case, where the defendant could obviously travel at any time.

[00:38:34] Speaker 04:
anytime the defendant would be traveling would be a concern.

[00:38:38] Speaker 04:
There's no like time of night when we could say we wouldn't have a concern about that.

[00:38:43] Speaker 04:
And so that's why the district court imposed this sort of condition.

[00:38:46] Speaker 04:
I will say this is a pretty standard.

[00:38:48] Speaker 04:
GPS monitoring is not an unusual condition.

[00:38:52] Speaker 05:
In fact, it's a mandatory- So in drug cases, I'm thinking of the Supreme Court, the evidence offered

[00:39:03] Speaker 05:
was that this was a repeat seller.

[00:39:08] Speaker 05:
He was a supplier.

[00:39:10] Speaker 05:
The police had monitored him before.

[00:39:14] Speaker 05:
And so when they put a monitoring on his car, tire somewhere, he was going to sell drugs.

[00:39:32] Speaker 05:
That was what he did.

[00:39:33] Speaker 05:
So I thought the situation was more encompassing, and the government tried to make that clear.

[00:39:44] Speaker 05:
And so the only question I had in this case is, given this statutory provision, was there anything else that the district court was required to find or to

[00:40:04] Speaker 03:
condition.

[00:40:07] Speaker 04:
So I think it's just the that it's reasonably related to the offense, which I think everyone agrees it's a travel offense.

[00:40:15] Speaker 04:
And so monitoring his movements is reasonably related.

[00:40:20] Speaker 05:
Council for appellant doesn't agree with that.

[00:40:23] Speaker 04:
I think that's true that in his opening brief, he disagreed with that.

[00:40:27] Speaker 01:
That hasn't come up.

[00:40:28] Speaker 01:
Mr. Hansford, maybe I'm thinking about this.

[00:40:33] Speaker 01:
in a different way.

[00:40:35] Speaker 01:
But I understood, first of all, that there could be different kinds of GPS that is used by law enforcement, probation, et cetera.

[00:40:44] Speaker 01:
So that in cases in which we're talking about the police attaching a GPS device to someone's car or bicycle or whatever,

[00:40:54] Speaker 01:
That is like a totally different animal because in that situation they are investigating criminal activity.

[00:41:01] Speaker 01:
They are surveilling people for the purpose of determining whether they're engaged in criminal activity.

[00:41:07] Speaker 01:
That's like a different thing than a situation here.

[00:41:12] Speaker 01:
where GPS is being imposed as a condition of supervision after someone has already been convicted of a crime in order to deter or protect the public or something else.

[00:41:27] Speaker 01:
It's sort of like the goal of the GPS might help us to understand what its scope is, allowable scope and the need for it.

[00:41:36] Speaker 01:
All right, so separating those two out.

[00:41:38] Speaker 01:
Separating those two out.

[00:41:40] Speaker 01:
This is not the put it on the bicycle or put it on the car to figure out if he's committing a crime case.

[00:41:46] Speaker 01:
This is the latter.

[00:41:48] Speaker 01:
I understand Mr. Axum's point or the defense counsel's point to be in a situation in which you are attempting to impose the GPS as a condition of supervision.

[00:42:04] Speaker 01:
The court is doing that in order to ensure compliance with some other condition.

[00:42:11] Speaker 01:
So in the typical scenario, if you were to say, even in a drug situation, a person is convicted of a drug crime and you have a stay away order, don't go on, you know, the 15th block of G Street or whatever, because that's where you used to hang out with all these people.

[00:42:31] Speaker 01:
And there's a drug house there or whatever.

[00:42:34] Speaker 01:
That's the thing that the court wants you not to do.

[00:42:38] Speaker 01:
And GPS monitoring is imposed in order to ensure that you are complying with that condition.

[00:42:46] Speaker 01:
So Mr. Axum says, what is the restriction on his client that GPS is being imposed to

[00:42:56] Speaker 01:
right, to make sure that he is not violating.

[00:43:00] Speaker 01:
He says this is a standalone GPS.

[00:43:02] Speaker 01:
This is just monitoring my guy's movements everywhere he goes.

[00:43:07] Speaker 01:
And I don't understand why that's consistent with the way we normally think about GPS being imposed in this context.

[00:43:14] Speaker 01:
So what's your reaction to that?

[00:43:16] Speaker 04:
So I think preliminarily, I don't think it's correct that GPS has to be imposed to monitor other conditions.

[00:43:24] Speaker 04:
GPS itself provides direct deterrence as the seventh circuit discusses in the Baloo case, as other circuits have consistently found as the study that the Baloo case sites discusses from the Institute of Justice,

[00:43:42] Speaker 04:
So there's the study from the Institute of Justice, it's of high risk, the Seventh Circuit cites this study and we cite the Seventh Circuit citing the study, but I think it's worth looking at the study.

[00:43:53] Speaker 04:
It's a study of high risk sex offenders in California who are on parole, and it finds, even when they ex ante have similar risks of recidivism, when you put

[00:44:04] Speaker 04:
half of offenders on GPS and leave half under normal parole conditions, they're three times less likely to have sex-related violations, and two times less likely to be rearrested.

[00:44:18] Speaker 04:
So I think that's something I should have cited directly in the brief as opposed to citing the Seventh Circuit, but there is that sort of direct deterrence value, and I think that's a lot more robust

[00:44:28] Speaker 01:
showing of deterrence than you get with a lot of other supervision provision, especially perhaps in this case because we have prior evidence of travel.

[00:44:38] Speaker 01:
So I suppose if this was a defendant who had sex crime offenses in his local neighborhood,

[00:44:47] Speaker 01:
and Judge Walton had imposed a GPS monitoring, one might say, oh, you know, is that really relevant?

[00:44:55] Speaker 01:
But here we have a situation in which a person has been convicted repeatedly of traveling long distances in order to engage in this crime.

[00:45:05] Speaker 04:
Right.

[00:45:06] Speaker 04:
And then the seventh circuit also says this is kind of an intuitive point that if you know you're being monitored, you're less likely to go out and commit sex offenses, where you would be easily identified afterwards, but then circling back to your questions about the other conditions that

[00:45:22] Speaker 04:
would be implemented through GPS monitoring.

[00:45:26] Speaker 04:
I think there are three significant conditions where GPS monitoring helps.

[00:45:31] Speaker 04:
One is just directly monitoring the travel condition.

[00:45:34] Speaker 04:
The defendant is not allowed to leave his jurisdiction without permission and the district court noted the original underlying offense required interstate travel

[00:45:45] Speaker 04:
traveling from Maryland to the district, which is what the defendant did in that case.

[00:45:50] Speaker 04:
And so it monitors that travel restriction.

[00:45:54] Speaker 01:
Yeah, I'm sorry, just to be clear, there was a travel restriction in this case.

[00:45:58] Speaker 04:
Correct.

[00:45:59] Speaker 04:
That's correct.

[00:46:01] Speaker 04:
Then there's also a restriction on his having contact with minors.

[00:46:07] Speaker 04:
Now, minors are obviously everywhere, so the GPS can't, you know, beat every time he's near a minor.

[00:46:14] Speaker 04:
But if the GPS shows him spending significant time near a high school, or even spending significant time at an unfamiliar location, the probation officer can then take that GPS information

[00:46:26] Speaker 04:
and go investigate what the defendant is doing.

[00:46:29] Speaker 04:
And the Ninth Circuit in Lopez cited that sort of rationale for upholding GPS monitoring for someone who was convicted of sex offenses involving children.

[00:46:43] Speaker 04:
The third condition that's being implemented here is the computer monitoring condition.

[00:46:49] Speaker 04:
The computer monitoring condition failed to

[00:46:55] Speaker 04:
prevent his re-offense, which again involved him seeking out children on the internet.

[00:47:02] Speaker 04:
The probation petition.

[00:47:04] Speaker 01:
How does GPS monitor that?

[00:47:07] Speaker 04:
He was using an unapproved device to commit this new crime, according to the probation petition.

[00:47:15] Speaker 04:
And so if the GPS shows him spending significant time at the library,

[00:47:20] Speaker 04:
or shows him spending time at an internet cafe, again, the probation officer would be able to investigate at that point.

[00:47:29] Speaker 04:
So we do think these come as a package and again, are very much parallel to the computer monitoring.

[00:47:37] Speaker 04:
Why you would want computer monitoring in these sorts of cases is also why you would want travel monitoring in these sorts of cases.

[00:47:45] Speaker 05:
Anything further?

[00:47:48] Speaker 04:
If Judge Jackson wanted

[00:47:50] Speaker 04:
to talk about the issue with the sentencing, with whether or not to remand on- Yes, why don't you respond to our discussion?

[00:48:02] Speaker 04:
Sure.

[00:48:03] Speaker 04:
So I guess we did, it is the case that the district court could have imposed 30 years of supervised release, could have imposed lifetime supervised release.

[00:48:16] Speaker 04:
We read the transcript to say that the district court, perhaps due to a misunderstanding of law, but the district court was saying that the defendant was going to be given for time previously spent on supervised release.

[00:48:31] Speaker 04:
That's certainly not mandatory, as we cite in those circuit decisions, but I think it is up to the district court upon resentencing how long to impose for supervised release.

[00:48:43] Speaker 04:
So we do think it's at the very least appropriate to remand for the district court to clarify.

[00:48:48] Speaker 04:
in that case.

[00:48:50] Speaker 04:
And I think whether or not it's a clarification or whether or not the district court's bound by its oral pronouncement has to do with whether or not this court's love decision goes through this, but whether or not there's an ambiguity, this court views it as an ambiguity or this court views it as inconsistent with the oral pronouncement.

[00:49:09] Speaker 04:
But the oral pronouncement does control in terms of what the judgment in the case is.

[00:49:14] Speaker 01:
And what results if we were to research it and determine

[00:49:17] Speaker 01:
that you cannot give credit for time served for supervised release as a district judge.

[00:49:24] Speaker 01:
And he said that's what he was doing.

[00:49:26] Speaker 01:
Does that change what it is that this court would do or say in remanding it?

[00:49:32] Speaker 04:
Yes, I think that would change it.

[00:49:34] Speaker 04:
It's not that is not my understanding of the law.

[00:49:37] Speaker 04:
Perhaps I I missed something, but my understanding is not briefed either.

[00:49:43] Speaker 04:
Right.

[00:49:43] Speaker 04:
But my understanding, we did cite the circuit cases in our brief that say the district court doesn't have to.

[00:49:51] Speaker 05:
No, no, no.

[00:49:52] Speaker 05:
But you agreed with what the defendant was asking for in your brief.

[00:49:58] Speaker 05:
That's correct.

[00:50:00] Speaker 05:
Which was clerical error almost.

[00:50:04] Speaker 05:
All right.

[00:50:05] Speaker 05:
So let's hear from counsel for appellant.

[00:50:14] Speaker 03:
Mr. Axum, you're on mute.

[00:50:17] Speaker 00:
OK, thank you.

[00:50:18] Speaker 00:
I'd like to address really quickly, the computer monitoring is not similar to GPS monitoring here.

[00:50:29] Speaker 00:
Because computer monitoring, as the government said, they place software on your computer that monitors websites that you visit, and it pings to the probation office when you go to certain websites.

[00:50:43] Speaker 00:
So it's not monitoring software that is sending up to date, like second by second information about what you are searching.

[00:50:54] Speaker 00:
I mean, there are prohibitions.

[00:50:57] Speaker 00:
And all I'm suggesting with GPS monitoring is when they're not prohibitions, all you are doing is

[00:51:04] Speaker 00:
looking at every single place the person is and retrospectively perhaps using that information as an investigative tool.

[00:51:17] Speaker 05:
Do you want to respond to the study cited by the Seventh Circuit at all?

[00:51:24] Speaker 00:
I wish that I had seen the study.

[00:51:28] Speaker 00:
I have not.

[00:51:30] Speaker 00:
So I think that's not properly before the court.

[00:51:34] Speaker 00:
What's not?

[00:51:34] Speaker 00:
There are probably many studies that I could take a contrary view.

[00:51:40] Speaker 05:
But you do know the Seventh Circuit has taken a contrary view.

[00:51:44] Speaker 00:
Yes, I'm aware that they have cited a study, but there's there's not even a discussion of it in the case.

[00:51:49] Speaker 00:
I mean, it's right.

[00:51:50] Speaker 00:
Yeah.

[00:51:51] Speaker 00:
Conclusory approach to the citation.

[00:51:54] Speaker 05:
Yeah.

[00:51:54] Speaker 00:
Yeah.

[00:51:56] Speaker 00:
I'd like to say something really about travel, because that seems to be a focus as though travel is once travel is included in a statute, once it's an element that somehow

[00:52:13] Speaker 00:
GPS has more force.

[00:52:17] Speaker 01:
It's not that the travel was included in a statute.

[00:52:21] Speaker 01:
According to Mr. Hansford and the documents, there was a travel condition in this case.

[00:52:27] Speaker 01:
And so doesn't that totally change your argument that the court is imposing GPS in order to implement and make sure that Mr. Russell is complying with the travel condition

[00:52:43] Speaker 00:
in this case, that's pretty standard, isn't it?

[00:52:46] Speaker 00:
It would be standard.

[00:52:47] Speaker 00:
And if that, if it were, travel is a standard condition of supervised release.

[00:52:52] Speaker 00:
The first thing that I'll say about that is the court did not say that was the reason that it was imposing GPS in this case.

[00:52:57] Speaker 00:
It said it was imposing GPS to protect children, not to enforce another condition.

[00:53:01] Speaker 00:
But it is a standard condition of supervised release.

[00:53:04] Speaker 00:
And if all you need is that standard condition,

[00:53:08] Speaker 00:
which our record is silent as to why the standard condition exists.

[00:53:13] Speaker 00:
I suggest to the court that it exists for easier supervision by probation.

[00:53:18] Speaker 00:
It does not exist specifically to prohibit Mr. Russell from going great distances or to- You need to prohibit him from doing that in this case.

[00:53:32] Speaker 01:
This is what Judge Walker points out.

[00:53:34] Speaker 01:
In this case, there's evidence that indicates that he traveled in order to commit this crime.

[00:53:41] Speaker 01:
So it's not a situation in which there's a standard travel condition that has no bearing on anything that a particular defendant has done.

[00:53:49] Speaker 00:
I don't think that the record bears that out.

[00:53:51] Speaker 00:
I think that the record demonstrates that it is

[00:53:58] Speaker 00:
is a standard condition of supervised release.

[00:54:03] Speaker 00:
It is not a special condition of supervised release.

[00:54:06] Speaker 00:
The standard conditions of supervised release apply to every single person placed on supervised release in the District of Columbia.

[00:54:14] Speaker 00:
If that is the case, then GPS monitoring by similar logic,

[00:54:25] Speaker 00:
would be allowed for every single person with a travel condition.

[00:54:31] Speaker 00:
And that's what I want to say about travel, is that there's no offense that you can commit, or I should say, there are very few offenses that you can commit without traveling outside your home, without traveling somewhere.

[00:54:47] Speaker 00:
we're making a point that he traveled in Maryland, but there's no allegation that his travel three hours within Maryland was in violation of this condition.

[00:54:58] Speaker 00:
So you're saying that travel is important, but for Mr. Russell, for his specific circumstances, we do not have a situation where he violated that condition and therefore the court had to take some extra measure to make sure that he did not violate that condition.

[00:55:17] Speaker 05:
All right, I think we have your argument.

[00:55:18] Speaker 03:
Anything else you want to say?

[00:55:20] Speaker 03:
No, we'd submit.

[00:55:27] Speaker 03:
Thank you.

[00:55:28] Speaker 03:
We'll take the case under advisement.