for the second case on our list this morning u s forces mar good morning honors may please the court my name is kimberly bronson and i represent the appellant charles murray in these consolidated cases before this court but the court's permission i would like to raise or three minutes for about all right thank you your honors we ask this court to use these consolidate cases to formative lee hold that a district court may modify reduce or enlarge conditions of supervised release when there exists a new or unforeseen circumstance because it's a week before we get to that substan question are i'm confused procedurally about what happened here and how it happened ok you're on it my understanding and it from looking at  that there was problem unary approval by the district judge of conditions that had been proposed by the probation office that he that he  approved the probation office the exclusion of can of conditions one through four but then he reinstated them in a subsequent order and then he denied your offices motion for consider the second one simply wanted to add the probation officer in what was termed a supplemental petition on suppression least wanted to include language which was inadvertently excluded from of those conditions so still all nine conditions were before the court the probation a second supplemental petition seeking to withdraw essentially the first four conditions and only proceed with five and judge lancaster to prove that the did you referring to is the twenty second of july there's an order dated july twenty second two thousand and eleven in which the district court granted the petitions he granted the he amended his order to include the second supplemental petition writers so i have something out also confused as is judge smith and i'm going to it was i usually am for you it's unusual here's the here's the thing both both sides both you ms he would seem to have been proceeding on the assumption that all nine of those conditions are in play isn't it the fact that by granting the second petition what we're what was left in place was conditions five through nine that's why i believe that's what defense counsel in the district court was that's the belief that they were operating under its time the hearing then of course as you know that the court denied our motion to reconsider which perhaps in retrospect i'm better than i do and then request denied us move or even we should hold a motion for clarification we didn't do that i can say although it's not in the record that ms he would not actually discuss this very of this morning and i talked to the defense counsel in district court who told me that he is being subjected to at least polygraph testing which is one of the first conditions but that doesn't tell us what the court's order means to me tell us that they're doing something they should be doing but i don't know how to read the granting of the second amendment fission without understanding but the court has agreed with the probation office that the first four should be off the table it's that's true but the probation office wanted for conditions taken that something that is correct but the judge completely ignored that and just signed an order that included those four that is correct but then subsequently problem and part of a jurisdictional problem because the notice of appeal is a notice of appeal as to the granting of the first edition and they asked the nihil of the motion for reconsideration but if there was outstanding a second petition yet to be ruled on and you didn't appeal that was a ruling on the first question and on the motion for reconsideration actually or are those final orders are we well are we looking at supplemental petition which i agree with you would we would assume only meant that the last five conditions were on the table but the same time he denied without explanation whatsoever three days later a motion to reconsider which asked the court which pointed out the strange sequence of events and the fact that no one was even presented evidence at the hearing with regard to the first four conditions or at least there was no discussion because certainly defense counsel that time very clearly how to mended its order in a way that would only conditions five through nine in place is it accurate to say that the on behalf of the defendant you are only contesting  number nine no i mean we're contesting of course the entire procedure on which mr murray was brought before the court the fact that the court did not we still believe that there should be a finding of a changed or unforseen circumstances consistent with the principles finality of this court's prior president let me a different way mr bronson it is number nine the only one which you view as a substantive difference and therefore problematic as far as if one for one for off the page now i can't say that that's true your honor because although i think the words that were used in a district court was that they were largely to click into the conditions we're talking about the use of the computer the seizure hardware storage and under your analysis i would assume that mr murray had no interest in the language that was used in the conditions of his supervised release when he was first sentence and as we all know words mean things generally speaking i don't believe it's a practical to make things clearer by adding a lot of extra language and i would also note that the district court included added these conditions but did not eliminate any of that he had already been subjected to in the eastern district or the district of new jersey those conditions themselves incorporated the what was called the time the standard conditions within those courts so now mr murray is in a position where he has this additional language the original language in the eastern district the language in the district of new jersey which incorporated and those courts what was called standard language you know at the hearing the probation officer is present but no as she was not to the looser and miller you're you've read those case to say there has to be a fine dish and so i'm wondering what the language is relying on in this case for well back up  under thirty five eighty three to would you agree that there's no language in that statute that says there has to be change commission i would agree there is no language right so you're in the  on what you understand to be the implications of cyrano right in addition to smith was also case that's correct your honor ok what's the those cases indicate that change conditions can lead to a change in the conditions of supervised release what do you rely on it can point to language where they say that it has there has to be well your honor in smith for instance this court stated the offer of employment presented a new unforeseen circumstance allowing modification but nowhere did we hold either in the text or from some other source th which this court as well as the ny circuit in miller look to changed circumstances and i agree there is not a holding that says you must show a strange circumstance but if you look at the implications of contrary holding that there is no need for any change circumstance any unforeseen or or different circumstance first of all the statute which grants the authority thirty five eighty three c two states that a district court may extend that there must be something more than that there must be something that triggers the thirty five fifty three a factors well you know the reason the judge did it was because he wanted to make mr murray or have his supervised release conform with all of the other people who were charged with the same offense so his interest was in uniformity what's wrong with that but you know i'm out of time if i may be pleasing you first of all whatever  the what the district court was doing the sacrificing for anality for the sake of uniformity and that's what the probation officer was seeking as well if that is the case there's nothing to prevent a defendant from first thought the transfer was not enough itself putting mr murray in a position where only he would be a person subject to the jurisdiction that's interesting to pennsylvania convicted of a sex offense who is not subject to these conditions and he party any sex offender who had been sentenced in the western district prior to the board of judges adoption of this model language would not be subject to the same conditions so we know that the party i mean how do we know that how we know i mean there's nothing in the record to indicate that this isn't something that is being consistently  he decided i'm going to pittsburgh he was going to abide by the restrictions of that court that asked to manage these kinds of cases we're on it there certainly are people who were sentenced prior in the western this to pennsylvania prior to the board of judges adoption of this language and there's no events that you have it was to assume that there's a difference in the  pollsters there was the only difference we know about is that the way things operate at least now and for all we know with amended orders in those past cases is this is the way these sort of sex offenders are handled when they show up for supervised release and he gets into the same category with the rest of the money abides by just like the rest is that not a is that not an interest that is satisfactory under the statute and is not this isn't moved to the western well first of all if it doesn't it's a fact that their uniform conditions are there they're called standard conditions it's a little bit of a misnomer they're not standard there's nothing in the statute that requires these to be stamped they are just staying there and therefore the western their standard for the western transylvania but they're discretionary and that doesn't eliminate a district court's duty under the statute it's statutory duty to do an individual as thirty five fifty three a inquiry and it's evidence in fact by the fact that one of these so called standard conditions that the defendant shall not possess actually oriented appropriate but you know we don't have the benefit of it we don't and we don't even have a record of the probation officer did not testify that there was any ambiguity that there was any need that her ability to supervise mr murray was in any way compromised was in any way that she needed an struck language in order to clarify any conditions in fact the only the government attempted to to demonstrate the hearing that this language is needed so that the probation officer could force mr murray to bring his computer to could you speak to that last point about the judge's statutory requirement that the judge consider thirty five fifty three factors in reassessing in terms of supervisory release and that the judge did not do the skins well your honor the judge stated that he did consider the thirty five fifty three factors to do any more than he did not but he he did state that he considered them and there's no reason to think he didn't take it and we need to take it not take him at his word that he considered these factors  that the conditions would be affirmed if there is there exists a basis in the record for them here what you have with regard to mr murray i mean clearly he was a child predator he used the internet to meet a young boy on a chat room and molested him and then light of the particular circumstances of that case which are matters of record this court could clearly understand that that the need for the supervision and pickard to his computer and again it was actually to the district court's rol no i don't think it's a separation it's just a recognition that this court has said in volcker that even if there aren't specific reasons given for every special condition but that these conditions if there's if it's apparent for the record their reasons for th careful in our three five fifty three review well i think there are two separate questions in terms of the confusion about the district court july twenty second order i do recognize that it's confusing because while the follow up here i would like ask on the subject of confusion because respectfully i'm confused by the government's position as i read the record it looked to me as if the government was condition would not be an appropriate condition but i don't why i should want to enforce given what your position was before the court ridge well there were a reasonable interpretation of the memo memorandum opinion that followed our submission to the court and followed the hearing the the district court stated it was going to include those conditions you know the memorandum order basically adopted one through nine were conceding number three is not a valid condition then the order that followed well first of all our position is under the plain language of thirty five eighty three eighty two you do not need to have a change of circumstance for a modification of supervisor police conditions took her the only two sets that have actually had expressly address question gay from the tenth circuit and davies from a separate have concluded that in light of the plain language there is no requirement of a change circumstances now obviously a chance circumstance could be a basis for modification but there are simply no requirements and congress in fact if you look at any one any three when you talk about revocation interrogation congress knew how to add conditions when they wanted to with regard to determination of supervised release early there is a specific requirement that you have to find it's in the interest of condition to be not greater than necessary to support the interests of supervised release which are deterrence protection of the public as well as rehabilitation and you also thirty five fifty three two which is the section at issue provides for for you have to do an analysis of thirty five fifty three and you also have to you know you have to comply with the federals of criminal procedure thirty one would have a hearing and have a notice to the defendant so there their discretion is certainly cabin bounded by that this statute you can't just have irrational conditions put forth and then there's also the potential for appeal so the extent that there is an abuse of discretion a defendant has the ability to file a not one through four you know i can't i have to concede that we were we were proceeding on their assumption that the the judge was going to rule on the second petition but with it when the judge issued its memorandum of opinion in order and release in addition to rehabilitation is another purpose is the protection of the public and mr murray has a job you know there are it's a requirement but it's a requirement in the interest of not allowing someone who has a history of abusing the internet to have potential access to a computer that could you know so there dot there are reasons why it's a legitimate requirement that computers can be monitored away from the actual computer but not not a computer at the workplace for instance the monitoring equipment is put on put on mr murray's equipment at his home but if he's going to someone's house as a home health aide and would have access to a computer there should that the notice requirement is not an unreasonable one or not a greater deprivation of his liberty than necessary to support the conditions of supervision and the purposes of supervision and i'd also note with regard to that claim that he and he has a and unlimited right to travel  thirty six o five provides that the western district pennsylvania has a right to refuse on implicitly there's a right to a feud refuse his transfer because the transfer only happens when there's consent of the jurisdiction consent but to extent that there's a rule that we you know this district or any district cannot impose conditions that are committed with their districts it couldn't fact actually have a contrary effect of impeding someone's ability thank you your honor so i'll be very brief one thing i want to point out is miss haywood stated that after mr murray was convicted eighteen u s c thirty five eighty three was amended to include a condition that a person submit his person property house residence vehicles papers and whatnot to a search the condition which was imposed to mr murray's case goes further it includes a condition that he permit without definition of limitation his place employment that is not found in the statute and that's putting aside of course an ex post facto issues which might come up with sentencing someone afterward in fact now i believe he would be subject to a term of suppression lease of life but i don't think anyone would legitimately argue that you could bring him back before the court now impose a sentence of supervised release of life because that's more appropriate or congress's determine that from here on out people should get an academic point right because we're not we're not dealing with no we're not not that you're on it but i just wanted to show the analogy also the district court did not go any further than to say that it considered the thirty five fifty three factors i know there's some discussion that there was allegedly a need to clarify but there's absolutely no evidence again that there was any need for clarification or any reason to to change the existing conditions i would so it is the defendant's position that there's nothing that the judge could say  now assuming of course that there is no need for a new or changed circumstance or that the move was sufficient i think with i can't argue that if there was a legitimate in depth thirty five fifty three inquiry as well as tailoring so that there is any conditions to not reach that apply would apply equally to both defendants and the government as these cases show defendants also come before a district court and ask for conditions to be modified if there's no need for any change circumstance or new circumstance both the government and the defendant could repeatedly petition district courts to change conditions of supervised release you keep defendants from using this procedure to gets its defendants you know i think if there's no requirement for a new or for unforeseen circumstance i'm not sure there is anything to prevent that i mean in fact if you know for me is a concern a defendant who was sentenced today to a term of supervised release which may consider which may include he would consider to be here she very onerous conditions could come back in six months and say that somebody else was was sentenced to for the same crime and receive supervised release conditions which are less onerous and therefore it for the sake of uniformity i request that you modify my there's no change circumstance requirement as that kind of this one point three five three  very different to say well refuse it or to make someone's transfer contingent upon their accepting certain conditions then to accept it and then pulled them before the court and there's been no allegation of anybody lation or no need shown specifics that defendant that there's a