procedure the first case united states versus  lombardi the morning may please the court federal defenders in new york for peter lombardi the guidelines section five one point five sets forth two specific requirements that must be met before an occupational restriction can be impos first there must be a recently directed relationship between the defendant offense and defense occupation and second to must be a specific reason to believe that this defendant will reoffend absent an occupational restriction and the reason that there are these two additional requirements for this particular kind of condition in addition to those generally applicable to conditions of supervised release is that occupational restrictions are disfavored and for the obvious reason  bill is a perfect example of how strictly and carefully this court scrutinizes an employee notification condition which qualifies as an occupational restriction and will strike such a condition unless it meets both of these conditions wise or not and reasonably direct relationship between his work and the use of a computer i mean that's one of the arguments in fact is that he has to use a computer that's right and it's one of the government's argument as well as that that because the same instrument as the internet computer with the internet was used to commit a crime and because he might have to use the internet a computer with intimate work therefore there is there are some somehow this is ok but there are t response of the this the first response is simply that just doesn't jibe with the plain language of section five of one point five which requires a relationship between the defendant's crime and the defense occupation not simply that that there was some instrumentality that was similarly used and more directly and related by that i mean i mean i'm just trying to think of an example of an occupation that was connected one involving children supervising children thing like that something i mean the obvious relationship is indo right though was a tax preparer who had whose crime was preparing a false tax return and even and even given that condition had been met this court still struck the condition because there was no reason to believe th back to the to your honor's question this court has explicitly rejected this kind of interim and how based argument to justify a restriction on internet use in soft ski and peterson from the early part of the century in the two thousand and two thousand and one this court said well you know just because somebody used the committed of wire fraud to mail fraud wouldn't would not justify a ban on the restriction on their use of the mail or the phone and this was even more so with something like the internet and even in two thousand and one in peterson this court said that the internet is virtually in the suspense of all in the modern world and obviously that's even more true today i mean is it reasonable for the probation department to want to monitor his computer use the internet that's sort of the how can the probation department do that at at a place of employment unless unless there are some notice given to the employer i understand you're that's sort of the the sort of the real reason they want the employee notification is that they can monitor the can defend its computers and respecting around the simple answer to that is that they just can't that monitoring unless they meet five of one point five monitoring the defendants work a computer would be another occupational restriction right and so we were just back to the same question is the government justified in monitoring the defendant's use of his computer at work and again we run through the same two factors of five one point cases with one v other ways to somebody is as to standard condition six the first one that you object to which is a standard condition about using they're sharing if there isn't that pretty well covered by a recent case you know you're on to the principle condition i'm challenging he's a special can it's special condition guy i know that well you're you challenge all four and i want to know just how how strongly you go the our principal focus is the is on the employer notification condition is the special condition it's essentially an occupational restriction as to the other three you're not going to you know i was relying on these two seventh circuit cases thompson and caps  judge posner and the rest of the seventh circuit expressed i think right for frustration with the side of sort of the this condition creep and supervised release and that there's just so many conditions and more and more intrusive conditions and of course they're there for more and more for jenkins case the genki this was not decided when the district court imposed these conditions was it no i believe not i think there was any plan any seventeen wouldn't it be an appropriate thing for us to do given the worries you have given the jenkins case simply to send it back to the district court for reconsideration in the light of jenkins well you're going to have the government will make an argument about jenkins and baylor and so on and we'll talk about that soon enough but wouldn't that be a better way of doing things and have this be kind of figured out in the first instance in the district court talking about these cases but also having it reconsider what you're in it yes and no so good so no certainly that is not the case regarding the principle condition which challenge appealed this occupational restriction the employee notification condition that the law and that is well settled in one thousand nine hundred six and in all the cases we cite that there's just that is just clearly air erroneous even back in whenever the sentencing was as to sort of these the three standard three other conditions that we didn't  no record of misbehavior with actual children the district court ordered up there's a court ordered evaluation to conclude that he's not a risk to actual children and the district court itself three two separate times at sentencing at one twenty six one thirty seven and one thirty nine the appendix that i have carefully reviewed the record this defendant poses no risk of chill to child actually when their standard conditions yeah and so there was no objection to the standard conditions how would the district judge even know that this was an issue in this case i understand it so we're guarding that the three other conditions perhaps every man for clarification on those is appropriate but regarding again regarding the principle issue we raise on appeal the employee no vacation condition that doesn't come close to  meeting the requirements of section five of one point five and is in is an unlawful you know the internet this court has repeatedly said to go back to your honor's question again this court has repeatedly said that you cannot justify a broad restriction on internet use simply because the crime involved the internet the internet today is the combination of the classroom newspaper public square their first amendment and fourth amendment interest involved even monitoring a defendant's home computer on or even even for someone who's convicted of using he's a computer personal computer to download child pornography even monitoring of his own computer this court has said on a number of occasions that that monitoring has to be very narrowly tailored because of the first and fourth amendment interests involved and so in this case we're talking about a work computer ok which falls under five a one point five which is two specific requirements that are just not met here and so we asked the court to strike that that condition and we think the other three are  unlawful on their face as well but if the court thinks that additional consideration by the district court on the other three is appropriate that's a that's fine as well thank you thank you will hear from  good morning honors in may please the court my name is bradley king and i represent the united states in its opposition to the defendant's appeal challenging values conditions of his supervisor lease this court should affirm the district court's reasonable and limited requirement that a defendant convicted of possessing thousands of images and videos of child pornography notify his employer that he was convicted of an unspecified computer related crime so that the department of probation can properly monitor his internet use at work this requirement is all the more reasonable in light of the fact that the defendant flagrantly violated his bail conditions by using a monitored computer that he was permitted to use for work related purposes to repeatedly search for content involving barely legal teenagers was because i don't understand be legal things are either legal or not i mean there are many things with legal that are yucky but they're legal the main thing is he was not supposed to use his computer for work things but was it a work computer it was a computer that he purchased your honor i made a representation to pretrial services that he would like to use it for work related matters yes yes and granted permission to do so but it was not a computer it was he is a computer for knew him at work no it was not your honor how does a fact that this happened during bail affect the risk i think it goes to the second prong of section five f one point five the sentencing guidelines that is there's reason to believe that absent the restriction imposed by the district court this defendant will continue to engage in conduct similar to that which he was convicted for it is true your honor that there is a difference between the child pornography that he was convicted of and the pornography that he was accessing while on supervised while on pretrial release however that pornography that he accessed was a very close to the line so close that he was reminded i don't understand i mean you know  pornography perhaps unfortunately people are allowed to child pornography is a very serious crime the line is a line of it's been drawn it it may make very little sense to me but an awful lot of a lot of it makes very little of me so i don't quite know what you're saying and i'm saying i'm just a follow up on that one could argue that he was observing a line you know he got on but he he carefully did not cross it well your honor the sentence that was imposed here is designed to do two things first to present recidivism second to rehabilitate the defendant similarly the restrictions that were imposed on him during pretrial release were intended to prevent him from could be meeting additional crimes and to aid in his rehabilitation he violated the conditions he was not allowed to use that computer to look at pornography in any pornography and the court presumably factor that in to the sentence correct your honor and that's why it's a somewhat different inquiry is it not well with respect to the second prong of five f one point five it's whether or not there's reason to believe that absent the restriction this defendant will continue to engage in not the same conduct but to a similar contrast to the first prong what is the connection between his profession as an auto mechanic and his crime possession of child pornography as the defendant concede your honor he claims that his profession will require him to use the internet repeatedly during his daily work it's not one hundred percent clear at this time whether or not the extent of his internet access will allow him to access potentially child pornography and that's why the government's first argument on this appeal is that this issue is not ripe for this court's decision there's no showing nor could there be that he has been offered employment with an employer that has internet that will require him to use the internet and if there were in employment the day we're vet isn't relevant i mean for somebody like me who is technologically deficient it's a problem but i practically there's nothing that you that you can do to dave it doesn't allow you might have access to so in preparing for today's argument i did have a chance to speak to the probation officer who was engaged in a crafting the conditions and if if i could supplement and provide the court some information about that i will cure you can tell us things that aren't on the record i mean very very interesting but i'm not sure you can tell us well your honor it's possible certainly that someone can be employed in a job where they are not required to use the internet this defendant has previously worked is a very odd case for another reason because of a sentence that was given to his fellow was a remarkably low one when the guidelines were way up here ninety seven months minimum  believe you suggested forty eight in the judge went down even below that which says something about a judgment about what the chances for rehabilitation and all sorts of other things that it troubles me if we have somebody who report and you yourselves for was capable of rehabilitation that then impose requirements that make very difficult you know i just wonder what the what's going on here what what this guy is your honor he's someone who knew who was convicted of a great  deal of having a great deal of job we know that but who also your honor has shown that he is unwilling to comply fully with conditions that are imposed on him in order to do two things to prevent him from committing additional crimes and to in his rehabilitation so yes the thirty six month sentence and the seven year supervised release term are relevant here there are exactly why this court's decision in jenkins is an opposite because he was given a term of imprisonment and corresponding supervised release term that will allow for rehabilitation he's not being banned from employment for the rest of his life during a discrete period of time in which he will be required to undergo intensive psychiatric monitoring he is realistical point and yet if he's not allowed to use a computer you're on i think the records suggest that he can get the very same employment that he had he told his employer nine auto mechanics have to be able to use computers these days that's true and no one knows the government does not is not suggesting that he be banned from using the computer what the gov what the condition requires is that the employer be notified that this individual has a computer related offense probation wants to monitor his computers argument his argument is that no employer will hire him once they find out that he was convicted of a computer line yes your honor that's entirely speculative and it didn't occur here he was accused of a computer related offense told his employer and was allowed to remain employed but until he's convicted you can hope there is no offense and had he been fired if i don't say he would have i is a federal thing but there might have been a contract the elation or something of that sort of figure fired him before he was convicted your honor this again i think speaks to the issue of why  this matter is not ripe for the court's decision the question of the weather and who and how he'll be aces you cite for not writing this the ban and case for instance i was own pet and it wasn't right there because vis was something that would take place at the end of a twenty year sentence when a very long sentence i think it was twenty years we're it was linked to  technological change and it was dramatic because of which it was impossible to tell now what would be an appropriate control then and we were it was plenty of time before  person was released for the person to to challenge it had nothing to do with this situation which after all if we don't allow him to challenge now he's going to be challenging it at a time when he's looking for a job and it will already get in the way so that the cases you cite for that don't help in the rightness may be a separate issue but the cases you cite don't help your honor at this time it's unclear what his employment situation is going to be however what is clear is that monitoring of his internet usage is necessary to prevent him from committing additional crimes and to aid in his rehabilitation before you sit down i'd like to ask you for a minute about the individual ised assessment that's required in connection with the child association condition ordinarily i mean the district court here is your adversary points out made specific findings that mr lombardi was not a direct threat to children  invalidate it as similar condition because the defendant had no history of harming or seeking out children and it seems to me your position has got to be that we should presume in all cases of possession of child pornography that there is it could nice a bill risk even absent an individualized finding and therefore allow imposition of this kind of condition that precludes association with children is that your position or is it something else i think the position your honor is that in a case where a defendant does not challenge it it's not unreasonable under the plain our standard to hold that the imposition of the condition was reasonable that that's our position on plain error refuel we require an individualized assessment by the district court in the ordinary course and that seems to be lacking here and in fact we have the contrary kind of finding so you don't believe that's player i do not your honor well one of your finger this of course we didn't challenge it but they didn't  before drinkers and it is jenkins which may make it play their videos before jenkins this might have been more and no jenkins certainly adds i mean whether it is directly on point or not you was sentenced to a seven year term of supervised released jenkins is not applied because the overarching thrust of the opinion was that the defendant was sentenced to twenty five years of supervised release that's that's a vastly different scenario than what's presented here i would like to judge just correct a minor error in our twenty eight jason mission we indicated that the defendant was sentenced to forty eight months of imprisonment of course it was thirty six i apologize for that error thank  you three very quick points on the rightness issue you're in you know it's wrong in the law and i think your honor understands that but what i would like to point out is that even in page three of the sentencing recommendation which is attached the  office itself says that you know he's been an auto mechanic for a long time and this is the feel that he can easily return to you know he has a degree in it he's worked this is his job he's no different than anybody else in this regard regarding the bail conditions again i would your honour's already got that right this is he close to the line is means he's on the right side of the line this is a very clear bright line that he violated the condition he did not have been criminal conduct he wasn't supposed to do even that right yes your honor but you know i have to say that one of the this is a condition if we didn't challenge this condition as a condition of bail and i don't know whether would be lawful as a condition of bail but this condition is not even close to being legal if it were a condition of supervisor police that he couldn't use a personal computer to look at the new york times i mean it's it's clearly way too broad ok so all he did on supervised release was do what millions and millions of americans do every day which is go right up to that very clear bright line that will all draw us and then finally if the court has concerns about you know mr marty missed being monitored there are so many monitoring conditions are part of this condition that we have not challenge there is a search condition there is monitoring of his home computer there is a treatment condition there is of course the registration condition which is required in the new york law and so he will be watched very the fact that all he would need to do is disclose to a potential employer maybe his former employer that it was a computer related crime rather than a child pornographer not a lawyer on a first of all if that makes no difference under five of one point five so it's still illegal for the same reasons and i think it realistically your honor i mean i would be surprising to me that any employer wouldn't ask what kind of computer related of conviction and then because probation just sees this notification as is essentially you know allowing them to open the door to monitor the rich lawyers computer which way does it because that is if i were employing somebody and was told that somebody did crawl into the computer i might well think that these are crimes of invisible men to fix what concerned me as we employ or more directly rather than the public at large and then if the person told me that he had done something which was awful his sentence but which was awful but didn't concern me i'm i think that that is less bad than just this is a computer pro stand your own i mean everybody you know every employer is different some would react probably very viscerally to a child pornography conviction and not want to have anything to it somebody others you're right your honor but again i don't think it matters because either way it's illegal under five of one point five and then just to follow what i was sort of finishing saying was that again probation just thinks of this as a door for them to go in to notify the employer so that they can monitor the defendant swore computer and i would submit that very few employers would want to employ someone if they had to have their computer monitored by the provision office if there are no further questions