court robert rainwater behalf of mr low cost i would like to start by addressing the first issue we raised which is the breach of the plea agreement and the issue was first whether or i'm sorry couldn't you agree on the record that there was no breach the plea agreement i don't that i don't think i ever agreed on the record there was no bleaches of pre agreement on page thirty three of the transcript the court asked me if i was waiving my right to appeal the initial pre paragraph yes well they were spaced two paragraphs i didn't see any harm drawing the first paragraph when i'm still arguing in the second paragraph that there was a violation of the police agreement you know i'm i would indicate that in forty years of practice gribble offense i've never had a judge take a recess and call somebody who potentially controls my livelihood as a member of the c j panel to get me to agree to a particular position so i understand i was trying to cut a fine line there because obviously the court made it clear i didn't understand what the court was getting at originally when it when it that i withdrew their step paragraph two and that was my thinking at the time i indicated clearly don't i wasn't giving up any right to appeal the breach that was done when they filed the if you really think there's a breach let's just try the case and that happened how many times a lot of times but that wasn't what we wanted we asked specifically in paragraph two we want to specific performance now the judge made it i understand the course comments but i don't think that's what occurred i think until we were all well i think they you know sublingually least said the words but they didn't give the court any took a completely different tack to our position the whole time was that and it says in the factual statement which i wrote specifically that mr le cost didn't commit any crime until september of two thousand and seven when he began to realize that the company was in physical trouble and then he continued to put out these p p m with these statements that he should have known were in doubt so then the government comes back and just basically says instead of our agreement which have justified a thirty six month sentence basically comes back and said no he defrauded all these people he cheated everybody he's a liar he committed this crime from the very beginning they never intended to have a business and the whole purpose of writing the statement of facts and and getting the government to agree to that was i knew the court would accept a thirty month sentence if that was the case the case was that he intended to start start a business he did that the economy crashed at in two thousand and seven they could no longer get up traditional real estate financing they had no financing they could move forward he continued to hope we would get financing but it didn't happen so you know that's what we argued for and then the government comes in and basically says that didn't interested in me supervised release internet limitation in you know in a generic way it seems to me at this point in the development knology to say somebody can use the internet is like saying they can use telephone  and i don't know if there was any specific justification given for that here but you know that was a surprise there was no recommendation by the probation office and in fact i'm to be honest i didn't even hear it when she said  and she never mentioned anything outside of saying it when she made the terms of supervised release so i don't think there is any discussion of why she decided to make an internet ban outside chess i mean routine use of computers i e setting people that's what i argued i argued it was just transitional related to this crime because there wasn't any specific use of computers outside of we use computers in everyday life the crime involves sending out p p m which were proposals and took to individuals who read them and made a decision whether or not to invest now you know afterwards there was communication by  have to get prior approval from the probation office and then further she said when you finally get out of jail you asked me to revisit this true but those those are true statement yes wouldn't a total ban well i disagree but i think it is a total ban and you know even if it can be addressed later you know without support it should have been imposed and i think we should all out to challenge it without having to go out and violated and come back and challenge it later oh man and she she seemed to be saying that she was she was contemplating was some sort of monitoring system or something later on  morning your honor scott bradford on behalf of united states i'd like to start with the waiver argument the court addressed and defense counsel addressed a moment ago i think it's fairly clear on the record that the defendant through his counsel did waive the breach of the plea agreement argument after the government argued and made its sensing recommendation the defendant said thank the government for making the recommendation and said the government had satisfied the agreement and then withdrew that argument from his sensing memorandum i think what's happening here today may just be mincing words or word smithing a little bit thing was fairly clear to everybody at the hearing even if we were as a matter of fact there was no i agree the district court also agreed if the court looks at each one sixty the district court found that there was no breach and in fact i was the prosecutor handled that sentencing hearing and i made clear to the district court that i disagreed with the p s r findings there's been some mention  government's sensing memorandum in the facts facts alleged in the memorandum and i want to be clear that that was to mitigate rather than aggravate because if the court looks at the offense conduct listed in the p s r it listed a lot of offense conduct that the government simply could not prove and so i wanted to be clear to the district court what the conduct at issue really was and i did copy plagiarised our own work defense counsel's and my work the joint statement of facts is what really there are two limitations or there are two restrictions yes or on of there is the limitation on his internet use and then there is also the post release residency limitation which essentially essentially said  the district court essentially said as listed in the judgment in commitment order that he cannot reside in four central counties here in oregon without prior approval of the probation officer and what was the reason for in the second image and it was more  much for his that is that everybody was to be upset with him and they didn't have to deal with him i believe the district court in the transcript or at the hearing listed a few reasons for that yes your honor for the first part was to deal with the issues created in that small knit community created by this defendant or through this offense conduct as on a community yeah for me that is correct john it is four counties and it's i used to live in eugene and so i say small in the sense that there are some rural aspects to this to those four counties i would note though that the district court also had other facts and evidence in front of her when she made this limitation the fraud was perpetrated in these four counties there are victims who live in these four counties the defendant grew up in albany in linn county one of the four counties he was a coach and a teacher in linn county and he used his stature his stature in those communities they were angry with each other they would be and leverage other prison they are i think it's important to note the standard here that the conditions of supervised release don't necessarily need to be related to the offense of conviction but they have to be related to the purposes of supervised release that is rehabilitation deterrence and protection and if they infringe upon a liberty interest they must be tailored they can't be recently greater than necessary to achieve the goals release and i think judge aiken in during the sensing hearing gave some concern she was worried about the defendant going back to that community and being the same old bad guy with the same old bad behaviors that he needed a fresh start he needed to start a new life somewhere else so she was concerned about those purposes of supervised release the turrets rehabilitation and protection of the public as the court noted there was tension in that courtroom there was palpable tension in in those communities fraud case that used the internet to facilitate the fraud the mail used to followers correct right correct and we're not banning him from the mails in the phones now the court didn't do that the court also did  you tell me what you smell what i think it's we need to be clear here that this is not a condition that's an outright ban of internet use is it subject to prior approval but it also wasn't clear what it was i e whether he has to go back every time he wants to send an e mail to his it to his proposition office where they send this e mail over the internet or what exactly that is true that the procedures weren't specifically outlined through the condition but i think is is in the other cases there were specific i can see that point to the court based on my experience these conditions are institute is such that the defendant cannot use the internet without prior approval the probation officer and then the probation officer in the defendant work that's different from on the telephone in this case well here in this case i think it's important to note that he used the the internet his website to facilitate his fraud he also sent e mails as defense counsel noted putting forth these to telephone the o t as the man he did right so that's why i'm asking you this could you say you can't use the telephone until you and i share your probation officer agrees perhaps she could if there was a sufficient basis your honor i think here in this case the record does support the this area you know began in a time when it was somewhat unusual to be using the internet to do things but at this point you know even the i think one of the main case for a line is from two thousand and eleven that earlier time period with the court comes back to the standard of review here quick district courts are given wide discretion to impose such conditions as long as there is a sufficient basis and i think the record supports that here another might be a disagreement between with the banishment from the you know she talked about internet postings that e r one seventy one there were some postings on the internet that were creating what she felt were or escalating the issues within the community and she talks about those postings as being something that she needed to consider when she was fashioning i believe these conditions of supervised release and that again would go to the purposes of supervision rehabilitation protection deterrence i could see her saying you can't do that anymore but when you start saying you can't use it you can't google she didn't say that your honor what she said was the use the internet unless you get prior correct that's absolute to me but it doesn't mean that the probation officer would deny that privilege but he might and if he does we all know that the defendant then has the right to appeal that to the district court to get specific guidance which is how the cases typically read based on my experience of seeing these conditions come through that the defendant can't use the internet or or something like that without prior approval and as i noted a moment ago typically the defendant and the probation officer better tailored to the situation how about should here i think i think the standard of review here supports the district court's issuance of the supervised this condition of supervised release ok thank ga law's opinion and i argued that and i think there's a clear breach i disagree there was no breach secondly the government indicated there was hostile tension in the courtroom i'd was there i don't know what they're talking about hustle tension there were forty or fifty people there who supported mr the cost there was one person from the community mr martin who testified that was all there wasn't any hostile tension there secondly as the case those people  more than how easily it covers quite a large area marin county by itself as is quite large could salem lane county is somewhat narrow in walang but the point is and also this conduct occurred in other counties including mungo maccallum it incurred in many different counties so i don't see it being related to that particular area either that's the other point i want to make and one other thing the judge walter mentioned posting on the internet t comment the judge made i don't know what she's talking about and that's why i brought up i tried to bring up what other information she had outside of court so i could address it because i don't know anything about postings on the internet i don't know where she got those comments