good morning your honour's my name is john anthony and i represent the defendant calvin l this case comes to you today with two main issues that i'd like to articulate the first years and that's happened on the constitutionality a condition of mandatory supervised release that we believe mirrors the circumstances and condition that was articulate about this quarter united states versus thanks and which mr ellis was prohibited from associating with persons having a felony conviction in addition your honour's if i do have time i will also be addressing in my argument this morning the imposition since that was given to mr ellison this particular case which was four months to run consecutively in each of the circumstances are each of the cases that he acknowledged responsibility and then the additional imposition of additional conditions of supervised release in this particular instance mr ellison two thousand and five in two thousand and six was sentenced to a number of different sentences for violating federal statutes ultimately ultimately the longest of which sentenced to forty four months in the department he completed that time and in two thousand and fourteen began serving his time of mandatory supervised release on april twenty sixth of twenty seventeen a picture captured mr ellis sitting at a table with a person that he now for thirty to forty years mr oliver hamilton mr hamilton twenty days before that particular encounter had been found guilty of a felony crime that are all crimes and had been h and had been found guilty but not yet sent to the very next day on april twenty seventh united states file it petition to were vote his medical providers will exist and i do believe that it is important in this particular instance to really prey i mentioned pay close attention to the circumstances under which mr ellis found himself are you look at arguing against this condition of mandatory supervised release because at the district court level counsel did raise an issue with regards to whether or not that particular condition was constitutional ultimately the district court at that time indicated that there were two reasons why it did not believe that the safety or strict liability concerns that this court articulated in capes and were also applied are needed were view with regards to mr ellis at that time the dish of course indicated that the condition as apply does not raise the shrink liability concerns mentioned in case because ellis was allowed incidental contact with felons and as evidence by his monthly report and we could seek permission for the above incidents of conflict obviously if it were longer one of the reasons why i want to pay a close attention to that particular articulation of the district court is because first of all incidental contact itself is supervised release proceeding you've got to attack it on direct appeal or our earlier your honor i will articulate that i don't believe that the circumstances here are the same that arise in precisely with regard to what happened in priestly priestly was articulating that the evidence that was presented against him was not sufficient to have found that the particular condition in which he was alleged to have violated was sufficient and in addition to that i believe that is dis e from this case because and at best this court has already articulated that there are constitutional issues are strict liability concerns that exist and i believe that this court can review that strict liability issue and whether or not it is it was applied or whether or not it was applied against mr ellis in an unconstitutional way under our plan sander the reason precisely did address the merits of the question but also said initially that the main problem with the argument raised in that case about the unconstitutional condition is that the challenge was untimely that it needed to be  brought as an argument on direct appeal and i am not collateral attack on the underlying condition at the time of a supervised release revocation hearing i would add addition to my it was it was available it was available to anybody who wished to make it just because it didn't get traction until capice doesn't mean the argument was unavailable surely available i'd argue your constitutional infirmity in one of the conditions of supervised release your honor i would have i would indicate that i for mr ellis particular position that the constitutional concerns should circumvent or trump the the waiver the the way the normal waiver that exists because in this particular case there was a directive that had been placed or least an articulation that the district court was aware of that there was issues with that that also put a an imposition on the district court today and be aware that there was a constitutional issue that existed with regards to a blanket condition that were acquired that a person not associate with the film and i do think that that does this thing will should will because in other circumstances the district court would not have been in the position where it could have or instructed or re articulated a condition to a defender and that was all meant a story supervised release because at the time the district court also knew that that condition imposed a strict liability standard so i distinguish mr ellis circumstance as a concern concerns from that because this directive would have given the district court an opportunity to at some point articulate to him that the strict liability concerns are are to really articulate or to give a directive to mr ellis that incorporated or encompass the what i would consider more liberal more appropriate condition of supervised release that he not associate with a felon by either articulating a knowledge requirement or ensuring that some of the safeguards that were articulated that were suggested in united states versus douglas or thompson with him being there and this particular case none of those circumstances existed mr ellis essential he walks into a hardee's sees a person that he's now for the last thirty to forty years who's not yet been sentenced to the federal who who has not yet been sentenced and the end ultimately the next day a a violation or a petition for mandatory supervised release filed against him in addition to that the dish report argue that the reason why the strict liability concerns strict liability concerns as addressed in capice were not a political to mr ellis was because he had an opportunity to report incidental contact and in this particular case that is an error because mr ellis did not have the opportunity to take advantage of reporting incidental contact he was violated the very next day and his recording was not due until nine days later and incidentally he did report that contact this incident the government alleges know where this the amount of time that they believe transpired when mr ellis and mr hamilton actually encountered each other on that day nor do they allege what is necessary for a person to take in consideration when going from an incidence of contact to one of associating with a person known to be a felon mr ellis had in previous occasions because he is a minister we don't know whether or not he happened to see them at a football game and engaged in dialogue but when he did have what he perceived to be incidents of contact he reported that incidental contact and no one ever went back and told him that conversation or circumstances that may have gone outside of what the purview of the government believe with incidental contact would have risen to the level of a days before all over hamilton had in fact been sentence not crucial to the issues but he in fact had been sentenced to sixty months and it came up to this court and was affirmed and others of the way it is being taken into custody as it was happens like this so we've got two things as far as the due process challenge facial is applied to all defendants out there in the universe and then as it has applied to kill vanilla specifically now the problem is the council failed to raise at the district court level the as applied so that was waived and the judge specifically found that for one reference in the case so five dash three zero zero one zero document eighty six starting on page three then the court specifically found that based on the evidence submitted to the court even if calvin elbows had made a noise as a enough in looking at other circuits i think that she could have at least married and as applied argument that would not have been waived you can make an ass apply argument if the statute is not facially fake not the other way around actually it was found to be facially begun one circumstance on direct appeal i don't that's that's how i understand capice well in that particular well i get that part that is it correct to read capice as a facial ruling about this condition of associating with felons or is it correct to recap us as an ass apply i'm finding of unconstitutionality in the context  that case because of the way it's been described in other cases including douglas i was as ok so you were send your statement a few moments ago but it was a facial ruling  i do your honor only to the extent that it is been applied by other courts to apply to other defendants and so i viewed it as applying to future tenants but as applied to the particular defend given that mr ellis had been working under mr hamilton supervision for some time i'm no secrets about any of the situation a dell damages we don't know it's that it's so they're dressed up at the time they're with a lady who was recently elected to district one eighty nine it looks like a play and event they don't casually just run into each other and say hi and go their separate ways so they sit down this is i maybe i'm not getting something here with this but i have never seen this level of convictions he did a bribery extortion got twenty one months yes the news he was released he became director director of regulatory affairs of the single of these three convictions were while he was direct yes the zero five three zero zero one one including you're trying to kill a confidential informant the and the three to five yes three zero zero four four was for conspiracy to commit election fraud as a precinct committeemen and while he was still director of regulatory affairs he was on the radar of the f b i so when they brought the circumstance to me i quickly tried to do some research to see whether he had violated th condition in the past found out that he was trying to do a focal lacked a convicted felon for state run while he was had this condition in place and numerous other times where he clearly knowingly violated this is not a strict liability concern is because you cannot violate a condition of supervised release unless you do so knowing me in this particular case he admitted the violation so i think that kind of in thank you for your honors i do appreciate that i want to know that mr ellis is a minister and every occasion i've ever seen him he's wearing a suit so that articulation that for some reason that when they go into this hardee's it was planned and they in the government can prove that it was planned simply because he's wearing a suit and this other gentleman who is also close to seventy years old is wearing a suit is not prohibitive information this picture made this way to the front page of the  shall we do with the fact that the violation is admitted i would say this mr ellis and it is found in the record indicated that he did not intend to violate the condition where because of the articulation of the district court with regards to whether or not there was any way to impose our impute or whether or not even the court the district court had any thoughts were guarding  knowledge mr ellis decided to acknowledge that the government could prove what they believed and that was he was present at a hearty with a person who had been convicted and so mr ellis though at the time did indicate your honor it was not my intention to violate a condition of supervised release or its harm of probation mr ellis had been on probation and was sentenced to mandatory supervise release for three years he was that two years and ten months and at the district court level the government did attempt to wage a number of other circumstances where they allege that he had violated this particular condition but had no previous violations that had been filed with the court if mr ellis had been in violation of these conditions how was he supposed to monitor our regulate his own behavior if his probation officer had never made known to him that particular