thank you ana good morning michael reece davis on behalf of jason scott jason scott illegally possessed three videos containing child pornography the three had been downloaded and automatically saved from a peer to peer system known as lime wire and it had been automatically saved to a shared folder on mr scott's computer all three downloaded on the same day and all three were only reviewed once there is no indication or no evidence that those three videos were cataloged or organized hidden  see to computer i don't actually know that that wasn't clear i'm assuming that it was because in the undercover operation the agents were able to go on the computer so i would assume yes mr scott did not pay for the videos he didn't trade for the videos he didn't barter for the videos mr scott's computer did not contain any e mails in chats or indications that he was indication that he was trying to converse with children or with other child pornography possessors he didn't bar you mean there was no communication that's correct the system sensually barter because he made his available and the system effect you waited a barter even if the keep question is what was his knowledge of that bartering at that is that basically where we are absolutely correct there's no indication that mr scott was aware that of the file sharing nature of long wire or that he was ever aware that his files had actually been shipped you're absolutely correct so you get two points and handsome and as in in barker right baker if you distribute in the set the guidelines were written in a world where it's like drug distribution an affirmative distribution you get to if you just possess it on your own nothing if you give it to somebody too and then if you give and get the exchange you get five that's basically skate that is  therefore the question is when you get the world of the internet where things are being done for you should you get the five when there is an exchange going on and what is the what burden of proof does the government have to show that's that's where we are and you're saying there was no showing at all that he knew this was happening absolutely that's correct what about his knowledge that he had some computer training in electronic training i believe most of his his training he was going to become a machinist well i i don't know i picked this up somewhere that he went to a technical college and had electronic contraption program and computer and electronic construction program which of course he took on is that correct or do you know if if that's in the pre sentence report that is correct but there's the i'm not aware of any training on internet programming or any type of if it's the there just recording the government would have to point it out but if it's there that's a problem at least under how some circuits interpret this guidelines if you like the inference can be drawn from computer knowledge that it's put don he would know that's just where some courts gone right that would certainly be a step towards proving knowledge circumstantially however that be litigated it's got to be precise and also one thing i would point out there is the timing aspect and that is the videos were downloaded automatically in july of two thousand and ten the agents came along in october of two thousand and ten and so there's no indication of whether there was any trading or anything going on in return for those three videos if that if that makes sense but if you did any evidence he traded any videos that would that would that would be should point for the knowledge of and that would be but there is no such evidence and there's no evidence that when when someone on gets online wire and however that works comes and looks on your computer there's no evidence that the computer owner is notified of that and i give a good example back in the early days of the internet i guess napster was around and a lot of people were going on the napster to get music i think the statute is run so i can say that i did that at least once before i really aware that someone else could come through the the internet and get my music and go back i was doing it simply to get the music and i submit to you that that that's the case that we have we have a case of simple possession of child pornography and i think it's important no no prior convictions no prior charges no history or indication that he was sexually abusive or any predatory actions on mr scott's part the recent decision of the gross case and i believe that the if you look at the the dangerousness of mr gross as compared to mr scott i think the two cases are worlds apart and i and also in  engross i don't remember specifically what the statement but he admitted that he was aware of the file sharing function i think he said something to the effect of well i didn't want people to come get much of my stuff or might say you accept gross is controlling authority you're not asking us to to you just think that it stands for your proposition that the defendant knew he was getting things in exchange that's correct but again in all candor i'm aware that the sentencing commission is considering some changes to t g two point two one of which with regard to the five level imposing a quid pro quo or at least that you need to distribute to another person and we know that that's already in the tax rate you have to get anything of value correct but you think hasten their fight yes the cases don't don't demand a specific quid pro quo i believe the sentencing commission is planning on doing that in this case no quid pro quo but also i think there are planning looking at imposing a requirement that you trade with a specific person not some power sharing peer to peer service and then also on on the two level they're looking at imposing a scienter requirement so that it's it's not this type of peer to peer but we argued at the district court level five level was inappropriate we alternatively argued for the two level and we have to  without getting to the government concession a plane there were vacating the sentence because of errors made by the successor judge that that is our position and i believe that's that's correct  moving on to the the supervised release and the special conditions issues first of all let me apologize to you in advance i didn't get the letter kamil was nice enough this morning to ask me what i planned to focus on and  she showed me the letter and so i apologize if i did my presentation wasn't necessarily directed to that and i just looked up from the officer what happened i really don't know she showed me the letter this morning i a follow on the sword it was probably my mistake and my bad one thing up to i understand the requirement of that there be a contemporaneous objection and i've tried a lot of cases both on both sides of the beat in this case with all their written objections to t g two point two and a paragraph ten of the i walked into sentencing that morning and the court issued a a memorandum ruling overruling my objections sentence and i understand that that now the argument is well i should have interrupted the judge or at the end said they object to whatever he did i just i i  don't believe that's appropriate it just didn't seem appropriate to me to interrupt the judge this she was imposing her sentence she was actually reading and it didn't appear to me that an objective would have done any good but that's i mean that's th only way a district judge can can know that there might be a problem so that's that's what i would you're not the first lawyer who's been in the situation of i do you know you appear before this judge time and time again and you don't want to appear obstreperous i don't understand that we've all we've all been there is just to me though it and i agree with the court and i understand that the the purpose of the contemporaneous objection requirement is to give the judge of character as to correct himself or her so i don't quite see why you have to interrupt the judge in maine after she completes the senate seat me if you could make a record of your objection without being in temple iron somewhere out there there's the futility of it just seems that it wouldn't have done any good it anyway that i think the good the good news and the saving point i believe that we have a strong case for plain error even if the abuse of just discretion does not apply  fortunately for mr scott and unfortunately for me the duke case came out one month after the sentencing and the duke case involved the same judge imposing another lifetime ban supervise release and the duke case involves some pretty strong language of how it would be hard to imagine such a sweeping lifetime ban complying with the narrowly tailored narrowly tailored requirement of thirty five eighty three and so under the the i think we have error i think that i agree with the government that the duke case establishes that that was a pla if you look at it all of the conditions that go with supervised release not just the general conditions such as the right to travel and check in with probation and work requirements and all of those but in this case we also have the special requirements for which we have specifically discussed the lifetime ban on internet usage which in this day and age have kids in school they're checking their grades and they're doing their homework i fear for mr scott's future if if that stands and i believe the government agrees that that needs to to go back to the district court the second lifetime ban is on any unsupervised contact with minors mr scott is in prison he's unmarried he's thirty three years old he wants to get married have kids and that's such a sweeping ban to mavin apply that is unsupervised contact with his future children the third is life time computer to computer monitoring and again that's a very sweeping lifetime ban it if when he gets out he's in his late thirty's that's a thirty or forty year sentence and the final is the lifetime registration as a sex offender which is very very serious under sort of and louisiana state  period would be twenty five years and we agree with the government that that this sentence needs to go back to the district court and that she needs to look closer at this and and hopefully i'll do a better job at the district court in articulate myself better and an object where i need to but course we we have a number of cases that point out that in a situation like like this and to try to can always return to the court to to try to get modified conditions of supervised release for example if you wanted to get married have children or or if he had a particular occupation that demanded some limited use of the internet or or whatever and i think i think our cases have said that that that's a factor that we can consider in determining the harshness of the conditions yes i believe and we cited there's a seventh circuit opinion that that has some language in and i'm picturing it but not remembering saying it that really doesn't allow in the discretion doesn't really address whether the sentence is right and i can tell the court that that relying upon the subjectivity and of the probation officer or judge to lower a license is is not necessarily an easy proposition and i just believe if we have a case of simple possession no indication of a dangerous person  wants to do is time he wants to get on with his life that these a life time sweeping bans there is no way he's going to ever be able to get back to a normal life and i'll save my remaining five minutes for about a thank you thank you  please the court i'm coming up i represent the united states has the lead in this matter beginning first with the enhancement for distribution jacobson as you point out this is you know one of these cases that turns on whether this was something for something and the government also submit that this is governed by krauss and you know gross makes it clear that there doesn't have to be a quid pro quo in the sense of i'm going to give you this now you give me this money or you give me this image right now as in a contemporaneous exchange but as long as it's out there in it's available and perhaps it's good to contrast the opinion written by you in baker baker that was exactly why we applied to points exactly you should doesn't require knowledge but that but we specifically said compare the five points where you do have to be cognizant of the return exactly and that and that's my defendants can fashion to the investigative agents and if you if you read the paragraph in the p s r i think it is paragraph fourteen r o a three thirty well that repeats the can fashion and the confession says he was aware that he was using a long wire and bittorrent open file sharing programs class per ad and then it goes on to say that he admitted that he would use these search terms that are associated with child pornography on the file sharing programs i think the repeated use of sharing suggests that the defendant is aware that there is some sharing distribution you agree does possession doesn't get you five no mr buescher doesn't get you  sharing just means share to someone else you wouldn't get no i would say you want to share i would you share with someone else but get nothing back you don't get a five level an answer i think i think that's accurate i think that's the sum when you rely on paragraph fourteen the government didn't object to any of the p s or now any of the divided paragraph ten in the p s r for the first sentencing say downloaded and traded which would get you five but in the p s or that was revised for the possession only guilty plea the languages downloaded and possessed why did that be a star change i really don't know that's well outside the record oh it's in the record well no i mean there are less and did you notice that change s r that you didn't object to for the wrist when the guilty plea chopped him down to a possession only offense says downloaded and possessed the word traded becomes possessed i meant to say that i wasn't sure the reason behind it i suspect what happened was in the negotiated plea agreement on the lesser charge of possession there was probably a reworking of the factual stipulation and that's why some of that language was taken out i just as no facts to support at least in paragraph ten and it's explicitly modified then the j and c reflects he's convicted of receipt which which is flat wrong correct correct your honor but i think that's could be corrected by the clerk's office i can change the one and i don't want to wait also correct but the clerical error i would suggest it's a clerical error and in any event the oral pronouncements going to control so it's we all agree that it's went were twenty to fifty five i can go into detail i know that was the governor and then the government agrees to reduce the guilty plea and the government's agreeing that the one zero nine zero the receipt the j and c's wrong and the government's agreeing suggesting to us that there is plain error as a supervised release that's correct nonwhite why not back down rule thirty two thing over and someone looks into p s r facts like he went to computer school which under any circuit will would allow you to in for i detailed claim that i don't understand anything about computers it's just that there's sort of insufficient grounds to support the enhancement i do i think that there's enough there without an objection for the district share it kind of implies a back and forth and this defendant you know he knows the authority you've got for a kind of apply back and forth i don't judge right now you want to have anything on that  i guess my point of his position that any time peer to peer is found on a computer that automatically gets five levels is that i think that's what gross sales that is that you the position you're i think it in adopted that wouldn't that conflict directly with other  circuits i don't think so your honor because i think it still requires as you said the availability of the back and forth you didn't discuss any of the other circuit law and you're now what about that so let's do so now what about the eleventh circuit asking are you representing the government urging us to adopt always peer to peer would split with other circuits it would create a direct split i think it would so i'm asking you that's a considered position you're recommend us our our reading of gross gross says when a defendant knowingly uses and so i think what's important is that the defendant knowingly uses file sharing software my position is you know the defendant in a sentencing memo into a lot of detail about how file sharing software works that there's a default to a safe folder and it's the gnutella network my position is the defendant doesn't have to know all of that and i think that that's what gross as gross says the defendant has to knowingly use file sharing software so if that if the defendant let's say someone else installs the line where on his computer and he has no idea that it's there he's not knowingly using a file sharing software and the man said i know i got so much they i think this is the that was the defendant said in gross was i was always made sure i was careful not to let them get too much off of me not because i'm opposed to shop or not a fake but because i didn't want to get caught but i guess my point is i think the question before the court is what it would do is what is gross mean in terms of how much the defendant has to know about the technical capabilities of file sharing software and my sig my reading of gross is that he just has to knowingly use the file sharing software and know that it is file sharing software not that it's some kind of i'm not suggest sting that wire you know keeps track of his computer usage that that's good enough i'm not suggesting that i'm suggesting that he has to knowingly use file sharing software without knowing all the technical details of it because i just think that's beyond the that's an unreasonably high standard that that's taking it a little too high you know you were talking about the three levels nothing to five this would be really taking it to a high level that your average child pornography defendant is not going to have a lot of technical knowledge about how this file sharing software works but they know that is sharing they know that i put my stuff out there i get your stuff and you know look at it this way let's say the defendant well scratch that this is a bad bad hypothetical but my only point is that i think the question before this court in this case is what does it mean to knowingly use file sharing software does it mean that you know it's on there you know that it allows you to get the stuff or you have to know all the technical requirements that's essential none of that was called to the attention of the court in the district or call anything to the attention you've got to stick with it you've got to object and say this is in possession facts this is exchange facts but you didn't do that now i understand that judge but i'm telling you i think what happened in the district court was the government thought what was in the p s r even though the word traded had been taken out that what was in the p s r was still enough because of the reference to line wire file sharing i use these search terms that was in grouse one of the factors the court relied on gross was the use of these search terms that would allow a defendant to find the things that he's looking floor in the file sharing software that would be other people stuff and he knows his own stuff he court but you look at them he was looking for that stuff in other people's files not in his own you know what he had i mean i think that's a fair inference you may know how these peer to peer work certainly isn't in this record i didn't know that what he was in was there file searching that doesn't seem explained anywhere i guess i understand why warner is but this record doesn't show that what's what has to have happened here for these three videos it's easy in another part you say it does show that it is somewhere and now says he's got to draw from it now no i don't mean to suggest that this record is is and all details on that point what the record shows is that he admitted that he used the terms in the file sharing program that a search term in his own file woody and that's my point you're an idiot and that was one of the factors relied upon in grouse was that gross had used not understanding i didn't know even that distinction because when i do a search term i mean the internet called peer to peer if there is not a deity i'll ask my nation of lime wire in the p s r or in the special stipulations beside the stock that it's in a peer to peer file sharing network that allows for the sharing of images i think that's about all stop asking because there may be other questions but legally your position i did it was important to understand because there's no discussion of other circles yet a lot of circuits have different interpretations in the so you are not saying any time to defend where they get the five points well that's not your position now decision is the government's got to prove some nexus a cmdr requirement knowledge of receipt through lime wire and i take it what you're really relying on is t s r statement to the inquiring agents that he knew he was using my minor and searched in line where that's enough in your mind that's correct because that is knowingly using the file sharing problem as opposed to my example and you know so you have to knowingly use the software there so that there is a knowing requirement and that's what gross as gross says a defendant who knowingly uses beyond that engross is the discussion of the particular stocks of the grass  explain this comes up another context of that you kind of understand what the court is facing in the context of immigration appeals from the guy which you're not involved with but sometimes there's a motion to stay a deportation  and the government says i we don't oppose that but nobody provides that the standards are met for a stay in we've said to the government even though you agreed this day we're not going to study english you tell us whe the four elements are satisfied and many times the government has come back and said now the force of war limits are satisfied yet the government doesn't care if there's a stay so here what we're facing in this is not the first case but it's a question of whether the government says well actually in your case you said remain and has required your word as to the two conditions of supervised release but you haven't made any showing particularly as to the fourth problem so you know what the questions are so just go ahead and address that i mean does the department of justice take the position in this case before the problem your status for if so how well let me let me run through your questions and i'll do them in reverse order and with starting with the ones that are easiest to answer the first question is whether the court's ever bound by the government's confession of error absolutely not the case that's most often cited is united states versus clayborne in which the court expressed the refused to accept the government's confession fair and i can certainly provide a twenty eight jail letter with all of these citations and the third question you asked was whether even in light of a confession of error this court has full discretion to do something else the answer to that is absolutely absolutely yes the second question which is sort of related to the third one is what weight should this court does give the governments can fashion of air i found an older s supreme court case in one nine hundred forty two case young versus united states where the supreme court talked about the weight that should be afforded the the government or the states can fashion of error and that case but you know 's not a lot of wiggle room there the court says that we simply cannot imagine a situation in which an absolute lifetime computer ban is going to be permissible and this is something very similar with regard to an absolute errors that would shock the conscience of the common man service a powerful indictment against our system of justice or seriously call into question the competency or integrity of the district talking about lifetime bans and a judge i'm very familiar with your distend an escalade hey ray as where you make a distinction between errors like of statutory interpretation and errors that go to core liberty concerns  you know this court has characterized the right to associate with persons as a liberty interest so so we are talking about lifetime restrictions that would impact at least with regard to minors liberty type concerns and these are lifetime restrictions mr scott is thirty four years old a lifetime restriction for him is a very long one and again i keep going back to the language in duke saying these are never going to be appropriate i'll also mention lifetime term of supervised release to five years and converted the absolute ban on association with minors to a conditional ban where where mr duke could get permission from his probation officer in is he did as well but a u s attorney's office trying to figure out what's the right thing to do we're talking you know this is a timing problem if mr scott had been sentenced you know just a few weeks later after duke had been published i am very confident based on what happened on remand in do that mr scott would not have gotten a lifetime association ban our lifetime ban on computers i mean the bottom line is i'm repeating the question that you're doing a perfectly within the circuit so we're really only talking about the two conditions on which we confessed error and it is the government's position that as today the fourth prong is satisfied we would be abusing our discretion if we did not grant declined to exercise its fourth prong discretion let's say for example where there's an error in a guy like calculation but ultimately these are advisory guidelines and you know the court justified the sentence and the sentence is not you know  so far out of kilter this these are errors that this court in do characterized the these conditions are just not permissible in any circumstance there's one i do actually that the questions interest me to on the rule fifty two clean air a miscarriage so i'm in agreement with judge smith and i appreciate your coming so prepared because one that are you to the government coming prepared and briefing it at least as we have this consultation within the office where we talk about it we decide this is what we need to do and then imam my contact idea james appellate division and they either concur or they tell us and you know sometimes they say no we think you should try they were not accidental we felt there were a lot of mistakes made in the initial yes or no that the with the factual change from the man trading to the man just possessing was a negotiated close there was no real let's put that was an accident pursuant to the reasoning of the court in gross scott by using lime wire and other peer to peer file sharing programs agreed to share the child pornography he gathered and and we submit that's that's error in and of itself that's not enough the court pointed out that to to adopt such reasoning would conflict with that that they pronounce it correctly opinion i would also point to the more recent two thousand and fifteen opinion by the ninth circuit