you're the next case on the calendar saunders jackson i'm sorry jackson prior panels that are that may be addressing the very issues that we we have before us and in the in the normal course we will we will see what they do because if they though i did inadvertently leave off a case that will be argued next month that as one of its issues also raises this question though there are other questions in that case as well where we would be prior to that pass i believe so your hon last friday mr jackson was released from b o p custody he has now begun his two year term of supervised release one of the conditions that was imposed on him at the time he was sentenced was standard condition twel condition however after this court handed down its decision last january united states believe the bowls that condition was amended to try to take into account the court's rejection of the language in the condition however the condition as amended which the government in other cases has recognized would apply to mr jackson as well as some of these other cases the probation officer is still given unfettered discretion in determining whether or not and a path the  mr jackson should be required to notify someone of the risk is that a realistic interpretation and suppose we took the exact same words that are in the amended standing order and just put them in a different order and said the probation officer may require you to notify the person about the risk and you must comply with that instruction in the court so it proves if the court determines that it's necessary to do that wouldn't it where's the discretion in the way i imagine this happening in real life is the probation officer that identifies something that he or she perceives as a risk and  the person to notify the affected individual or company they have to go to the court and say here's our evidence here's our reasoning this is why we think there's a risk this is why we think that notification should happen as sounds right to me i agree yes you may take three giant steps no you were saying that that means that the probation officer is now has unfettered discretion to not do what the officer went to all the trouble of compiling that record making the application going to the court and asking leave of the court to do at that point it wouldn't be a the probation officer may require you at that point yes you may because i think you're the action that you propose to take is reasonable so we're very concerned now at this point that the british an officer has unfettered discretion not to do what she came to the court to ask for leave to do as written we are not seeing the probation officer being required to go to the court to do this we're seeing the probation officer on its own taking that action based upon the the court the court's judgment whether or not there is a risk involved and the question becomes whether or not this will become and a hinderance to employment for clients or a hindrance to relationships with other people and understand that it may be very troubling to have this notification have to happen but the notification is only going to happen is it not after a judge determines that based on the various factors there is a risk yes the and if you give me a little leeway for a moment and just let me reference my twenty eight j letter and pointing out the cases one of the purposes of doing that besides reminding the court that the issue is pending is that there are different approaches that are being taken and some of those questions that are being raised though i have not raised it here deals with how the could be our clients are notified of that this is even being done whether or not this becomes a due process violation whether or not this should even be a standard condition or whether it should be a special condition of supervision and when this determination should be made as written and is raised in a couple of the determining at the point that after the fact rather than before to see whether or not there is a risk it should be applied and thus it should be a special condition now i did not make that argument here  y that is being raised in other cases and it probably should be taken into consideration as to how the it's being done and whether or not this becomes a violation of the defendant's due process rights as to what he  knows he is prohibited from doing or what he is required to be doing where as you say those aren't the arguments that you're making and those are not the organism making i'm i my arguments are the more basic is to this becomes a violation because it's giving the discretion to the probation officer to determine whether or not he should notify somebody it's not that the court is saying that someone should be notified it's the probation officer who's making the determination based on the standard condition as applied why isn't why isn't the for the fact that the the the district court is as has st nate a determination of a risk why why doesn't that confine the discretion of the probation officer because the language still says may require it's not saying that if the if the court finds that there is a risk you will be required to notify the person at risk and the probation officer can check on you so it's not saying that the probation officer is going to just administer it the probation officer is the one who's going to tell you whether or not you actually have to notify someone but isn't that the right below ration that the judge determines that there's a risk to person a and that gives two options to the probation office one is to require the defendant to notify as to which the judge has made the determination of risk which is what we're really talking about and enabled the probation officer to exercise his a require the notification or the probation officer if he has discretion in all and i take it he has firm is only to do something favorable to the defendant that is not to notify so what's the home because we  don't know how this is actually going to be applied and how broadly this is going to be read does this become an employment restriction where as a probation officer will determine based on the offense that because a client may be working with funds may be working as let's say a cashier at a st fast food restaurant and that this offense that he was my client was convicted of involved funds in some fashion that there is a risk and so there should be some cannot interfere cation or i understand that so that then becomes an employment restriction order for the probation officer to have any authority to do anything along these lines under the amended standing order they have to be st a determination by the judge that the risk of a risk exists to someone now i could surely imagine and i've had the situation myself many times that there's a discussion at that point about well much the risk and the person is going to be a cashier the person is going to be digging ditches two totally different cases for somebody who's been convicted of property crime right  now if i'm operating under this order and the probation officer comes in and says to me and you guys working as a cashier and he's got to investment convictions i'm going to say there's a risk and then probation officer is then given has been given the instructions that notification should be made you know no i think determined there's a risk i mean this is the way this thing works on anyway i don't know what happens in buffalo but having been there for a long time but in any case the judge will have made the call about the wrist and the probation the defendant aggrieved because the defendant still doesn't know how this is going to be applied to him the defendant may not even know that that that there's been this discussion between information officer i'm sure i understand that notified that this is under contemplation and then this decision of the court makes in consultation with the probation officer needs to have come after a hearing something like that if the court decides that it's out and if the court decides that to reject that argument and says this is fine on that ground one way or another we may have to resolve the issue that you've actually put to us which is the one of the unguided discretion or do i understand correctly that your argument is that the key defect here is that after the judge decides assuming for our purposes that the judge's decision complied with due process that the officer may require that notification of the fact that the officer also has the opportunity to say you know what not just one self reconsideration not really worth doing i'm not going to require that counsel mentioned this brief does not raise some of the constitutional or due process or vegas things that were raised in some of the other briefs here and the only question is whether it is an improper delegation to the probation office and it's our position that the western district standing order strikes the right balance between ensuring a probation officer does not become a judge and ensuring the judges are not probation officers micro managing the defendants here you know just well what what why looking at that the reading of the the language and why isn't the natural reading of the phrase may require why isn't that why does not mean that once the court has made a determination of risk that that then the probation officer has this court discretion whether to require notification the ultimate decision making authority over the defendant's liberty interest or means of the court and that comes from the very st cause which is if the court determines that you pose a risk of committing for the crimes and it's limited you can see even just with the wording the  that reading what is may require me to you may require it mean and require means you don't have to do it means may your honor it means you're correct it means may or may not however some delegation is permitted as as i mentioned if the judge has to go as i understand this amended standing order to require to the trouble of considering with a probation officer whether there is a risk to a particular person much the big deal it's not micromanaging anything that that might be best practice your honor respectfully you know the western district drafted this language you know the u s attorney's office did not our position is that some delegation is permissible and while that may be best practice if it was that clear it's not necessary under the case law that i'm still having problems or standing that this is any kind of real issue in any kind of real universe because the judge isn't making this decision on her own and in some mystical way conceiving that maybe it's worth my thinking about whether there is a risk to somebody this is only going happen when the probation officer comes in and asks for permission right and then the probation officer goes to the court and says basically i want to require this person to notify his employer of z and the judge says really why do you want that and the officer lays out the case for doing it the judge considers and then gives permission now i suppose the fact that the judge gives permission rather than a direct order means that at some level the judges authorizing some exercise discretion but we wouldn't be there if the rotation officer hadn't come and specifically ask for that permission to require this notification at this time of this person and if in one hundred thousand dollars cases when the officer goes and talks to the probation or who then makes  heartfelt plea and explains how he really needs this job and he's really determined to reform itself in the formation of the ok i'll give you one shot maybe even against my better judgment i'm not going to require you to give that notification that's what we're worried about that the creation of us here is going to do that once in a while and that makes the whole system unconstitutional or in violation of that it just makes me have totally weird in real life as to what's going to happen and  that that kind of consultation of probation is obviously contemplated by the language in that very st sentence that the court determines in consultation with your probation officer judge you're correct that that's exactly what the district court is contemplating will happen we're really worried about something else suppose the probation officer goes to the judge and says judge this defendant has been convicted of embezzle meant twice and more authority to notify any future employer who would employ him in a position that would give him access to cash or to a checking account or result in his being intrusted with this positive power in respect of money does that ever happen in the west i can't speak to whether it ever happens i don't know the entire universe of cases however i can say that under the new language the district court is the one determining whether you pose coming for the crimes against another person right and then the probation officer may require each notify the person not any not any person not all persons but is against another person and then the notification is authorized with respect to as you say person so the this is i would read this language it does not authorize the provision of see go to the judge and say the day after this standard condition is applied by the way i want to standing for a mission to  require that information or to notify anybody who falls within some very broad category whenever i think it's appropriate that's correct your honor and i know how much i love grammar but i'm just looking at the article i think it's this this standing order regarding the recent occasion doesn't give that kind of unfettered discretion which is the concern balls to the probation officer it's just not there again the ultimate decision making authority here resides with the district court and some details over and over again are left to probation officers for example picking an approved program drug treatment program at a health program off a list certain execution of the conditions over reporting this cortisol that that kind of discretion scuse me that kind of delegation is permissible if it's becomes a problem when there is a significant liberty interest at stake such as the probation officer having discretion over whether the defendant has to go into an inpatient treatment program like the case and i believe that might have been peterson but here there is no significant liberty interest that the probation officer has authority over under this new language the court is making those determination i must the panel has any further questions to try to answer your question that you initially posed during the government's argument and i think the answer to that really goes to the question the reason some of these other quick other cases particularly result as to why there are not this should be a special condition or a standard condition and i think the real question becomes if the court starts looking at this as a special condition that they have to consider taking into the three thousand five hundred and fifty three factors at the time that they were imposing the condition i think we wouldn't have any problems and then then it would become very clear to the defendant as to what that if found it must  comply with the condition and would eliminate any problems that arose with the language giving it discretion the probation officers role but i'm puzzled you saying that if it were determined that this condition could only be imposed as a special condition that this very language would no longer be problematic if it was imposed as a special condition with respect to defendant jones who is thought to be potentially a general threat to anyone or to someone well i think once the court is making this determination as a special condition we start to remove this language of the probation hours it's on supervised release is to it minister the court's orders to make sure that the client is following in complying with the directions of the court it's not supposed to be the probation officer on its own making distinctions and then determining whether or not the client must comply and that's how we start to see the way this standard condition reads and you even example can you give us examples in your experience where has lived in some sort of uncertainty where there's some sort of harm going back to judge kaplan's question i know that we had a problem in peterson in peterson was one of our clients going back and the condition there was  for that i think of the what you're saying is that with respect to judge kaplan's earlier question that the only possible option that the rim asian officer has the option not to do what the court has authorized is benevolent is that benevolent or not if you put the broom ation officer in the position where the probation officer is making the ultimate decision then the probation officer has a power over the probation or th next iteration of this court strikes down this version of special condition assuming it's even become a special condition should say if the after consultation judge decides the risk the court may direct the probation officer to require the person to notify i think if it starts if it goes to the point where this becomes a special condition then it would become much clearer as to whether or not we are challenging this now what's become interesting is asked before that it's a special condition but it's still this condition then the judge has made a prior determination that this particular person not just all probationers of supervised release is should be subject to this condition but then it's still this condition whether it's somebody as to whom it was decided that it's appropriate to have this condition or not and i take it you told me before that your position at least would still be that this condition as  written should not be imposed on anyone as sessional or as general feel needs to be amended and the amendment would be to say that if the judge decides there's a risk the judge may direct notification yes and then the probation officer with then measure just the messenger to bring the the word to the supervised release see that the judge has decided you have to notify your manager at mcdonald's about this correct yes now what's interesting is that since bowles and since we started raising these questions there have been instances where the judges decided not to impose this condition so some cases they have they have rejected