stephen dean with the university of miami federal public clinic and the federal public defender's office several of the students from the clinic are in the court yards in this case the district court arbitrarily imposed conditions of supervise release that were supported only by unsubstantiated allegations how much of an objection was lodged to the imposition of those conditions of release there was just a blanket objection right jack well your honor that's correct the the assistant federal defender abigail becker stood up and said i object to the conditions regarding the computers the search condition and the sex offender treatment condition and nothing more than that well your honor i think under the circumstances the the objection was more than sufficient because the test is whether the objection is sufficient to alert the district court rule of civil criminal procedure thirty two point one b two all say there's a procedure to be followed at supervised release hearings so even if this is plane air we satisfy all three prongs of the plane air standard and we only need one we have a supreme court decision we have an eleventh circuit decision and we have a statute right on us now bush plain error if you can establish that the facts upon which the court relied upon to impose these special conditions of release are not false your honor that is a very good question and that is the crux of the government's argument the government believes that it can shift the burden of proof to the defense unconstitutionally because the plain error standard might apply but the error here is not the substance of the conditions error here is procedural it's relying on unreliable triple or quadruple hearsay to do something in other words the relief we're seeking is a remained for a proper hearing so the condition may or may not be valid at the end of the day but there needs to be evidence in the record and we do not have the burden mr dean has no burden in that regard the government needed to a duce evidence true it is true that there exists a police report that contains triple or quadruple hearsay right but that doesn't mean that the substance of that is true in other words there was no reason for the federal public defender to say  by the way those unproven dismissed allegations that the state of florida did not pursue and said there was not enough evidence to pursue that in fact didn't happen there's in other words nothing in government no that a a of the day we're going to object to that was how can you ask him to have to put on evidence to something that you hadn't objected to the government didn't seek the special condition and the probation officer didn't recommend the special condition this is this is all those questions are perfectly valid your honor if we had any reason to know that this unreliable hearsay was going to be used in violation of binding precedent united states v frazier says you that just because the federal rules of evidence don't apply a supervised release that doesn't mean it's a lawless proceeding where spurious and unsubstantiated allegations can all of a sudden be converted into facts if the defendant doesn't prove his innocence that's not the law when the federal rules of evidence don't apply the common law applies and unreliable hearsay is inadmissible in any federal court act common law so there is no reason in the world for the for the federal public defender to say well i better make sure that a judge of many years experience doesn't all of a sudden decide to impose conditions based on a police report that's triple or quadruple hearsay even though that would blatantly violate united states versus frazier let me make sure that i'm prepared for that that's an unreasonable burden to put on the defense attorney who was busy arguing a completely different issue which is what the entire hearing was spent on the entire hearing was spent on whether this guideline book or that guideline book applied and then at the end of the hearing the judge surprised everybody by announcing these conditions this isn't something the government asked for isn't something the probation officer asked for this really came out of left field and so it's really unfair to say well the district judge can just do anything even to violate established precedent morsi fraser copeland federal m permitted you know in moran the defendant had in fact been convicted of sex offenses in it when you're issues notice the the question is what does in marine allow big the imposition of conditions without this specific notice my issue is not only notice your honor no i don't believe it does my issue is that none of the six requirements of due process were met in this case notice as just one of them moran says that you can rely on facts and we don't have a problem with that but there is a big difference between allegations and facts there is no case that the government has identified and i don't know of any where  supervised release condition has been upheld on unsubstantiated triple or quadruple hearsay moran had two convictions or had admitted his prior crimes that's the unpublished case the government sites on page twenty one of their brief and bull had an extensive history of domestic violence including two convictions so those are all cases where the supervised release condition related to a prior crime that was proven with actual evidence that was reliable this case is a massive expansion of everything we understand about adversarial adjudication where the government has the burden of showing that some deprivation of liberty is reasonable and rational then the report and recommendation were there facts in there that demonstrated that the man had a history of sexually abusing children no your honor there was nothing in the report recommendation upon which the reminder make that conclusion not constitutionally the reported recommendation describes a police report that relates one incident that the state of florida did not pursue because it could not prove it so the underlying premise of the government's brief here is a concern the state sent forward i guess was that they didn't want to have a twelve year old be forced to testify when they were going to when he was going to be willing to plead to a lesser count and that is one side of the story the probation officer says what i said but it's the story that the right and you've said the other side of the story well no the probation officer didn't seek the other side of the story the probation officer didn't contact the state defense lawyer and all the other side of the story i think is what he just said which is they couldn't prove it what we don't know see there's this sort of underlying premise that little children don't lie but that's not the law the supreme court  recognized in many cases that little children sometimes do lie especially when they're influenced by adults who may have problems with each other tome versus united states is the classic example where a little five year old girl was potentially the court implies brainwashed by her mother to say things about her father so that the mother would get custody and the supreme court said you can't just take the little girl's word for it because you plead guilty though to i mean it was a lesser count but he did plead guilty to having done something with the little believe or don't believe a little girl who didn't even testify but there must have been something that happened there i think that he's and we have no problem with that all we're saying is if you're going to impose punishment for something that has not been proven then you're going to have to bring evidence for that we had mr dean came into court and said i admit that there was an altercation with a child but it wasn't sexual it was just child abuse and the state of florida accepted that so that's all we know for sure and if and i don't think it's fair to as the government seeks reverse the burden of proof and force mr dean to prove he's innocent just because the victim is a small child i understand that that provokes emotions and you know needs to be cautious and protect children but wouldn't the thing to have done  would have been after i mean i understand all of your arguments but even assuming all of them have merit and that it was appropriate for for the lawyer who was defending mr dean not to make any objection to the to the statements that were in the report and recommendation by the probation officer even assuming all that to be the case at the end of the day when he was asked if there were any objections the attorney said simply yes you know we object to the conditions and didn't say any basis whatsoever didn't say we didn't have notice we didn't you know there was hearsay that was relied upon in order to present these conditions or there was nothing further there i mean wasn't there some obligation on the part of the attorney to express some kind of problems more specifically you know to again i think that ms becker did under the circumstances were no one in the courtroom saw this coming as far as the record shows i think ms becker did as well or better than any lawyer would and to require a defense attorney who's been who has her mind on a completely different issue to suddenly it was instead of a general objection the law in this circuit is pretty clear that you have to say why you're objecting and look i understand and it's not an easy thing to be standing where you're standing room as backers was standing or anything like that but i mean the law is new circuit you have to specify what your objection is there's no specification whatsoever here the law in this circuit is that the district judge has to know what the objection is and i think under the circumstances given the clarity of morsi and the federal rules that any district judge would know that you have to afford the defendant an opportunity to be heard and that your rulings need to be based on competent evidence that's not a high standard that's not too much to expect from a federal district judge that your rulings be based on actual evidence and not third or fourth level hearsay but in any event your honor because of morsi because of copeland and because of federal rule thirty two point one we need plain error there is no way this proceeding comported with due process any one of those six violations requires vacate her and remained and then we could have notice we could have a hearing the defense would have time to investigate maybe two hundred investigator to talk to the girl or her mother or the brother or the police or the defense attorney from state then we could have an orderly hearing where the little girl's allegations are discussed and evaluated and if he did it he did it but if he didn't he didn't we don't know thank you coun because i think it makes all of your past a bit easier i think i think i don't want to speak on behalf of my clients but i don't think there's really much controversy here the plane or apply and i will move on also as the court special conditions of supervised release to address a defendant's proclivity for sexual misconduct but what about what about counsel's argument that in this case the only basis for imposing those conditions was a report of a police report is provided by the reporting recommendation and that you know counsel had no way of knowing that the court was even going to consider a lying on something like that and i think the record somewhat belies that contention first his probation report was three pages long one and a half of those pages detailed all of the allegations underlying that aggravated child abuse conviction and went into detail about dean's conduct i that probation report five months before a supervised release revocation and his subsequent sentencing but how much but let me ask it to this way if if the whole basis for the conditions being imposed was a police report that was summarized by a report and recommendation then would it matter how much time there was that he had to review that particular report and recommendation that included the discussion of the police report i mean what why does it why does it matter in this case if as counsel is arguing of course he admitted to the report and recommendation as it summarized because that's what the police report said there was no question that the police report said that i mean is it your position that by not objecting to what was in the report and recommendation and how it summarized the police report that he was also admitting to the underlying facts of great except i guess my question is he's saying yes i agree with that and i admit that there's a police report that says that but that doesn't mean that i admit the facts as alleged in the police report that is summarized and do you have a specific response to that i mean it's the twofold response that the first is i think this is typical of all probation reports but they generally are a recitation especially in the section on charge conduct and acquitted conduct which again this court can consider charge conduct acquitted conduct and hearsay so long as it hasn't a share of reliability in the defendant has an opportunity to rebut the evidence at sentencing and that is one piece of this is my posing counsel is somewhat conflating through constitutional and evidentiary requirements of a supervis revocation and a subsequent sentencing for example in a supervisor who is for a vacation there is a qualified right to confront witnesses whereas in sentencing there is not a confrontation right in sentencing due process satisfied where the hearsay has an indication of reliability and here there are several in the shower for liability in this probation report i think one piece of it is that during the sentencing hearing the defendant himself admits that as part of state sentence he has been ordered to attend treatment at the that the facts of the case had not changed but they allowed that plea to protect to protect the victim and you can continue to consider those two things which again he did not object to considering the reliability of that hearsay in addition he talks about how there was not meaningful opportunity to be heard and how he was blindsided and if there are a few things in the record that belie that contention the first is that indians britain objections to the report recommendation he does spend the majority of time discussing which sentencing guidelines manual to use but at the conclusion of that he says that he will address the thirty five fifty three a factors at the final revocation hearing which indicated that he knew his history and characteristics which include the allegations that he molested young child will be consider at invited him to prevent any objections deemed present in an objection but not to the details facts it was aggravated child abuse conviction and the allegation anymore us that the trout the government then argued quote there is an identifiable victim it was a child and he committed an unspeakable act and people who commit those types of offenses are predisposed to engage in that type of activity again dean had a lengthy exchange with the court during which he did not contest that he molested a child or that he was predisposed to be recidivists because he was a committed to child sexual offense during that exchange the district court noted i think the activism of punish for in the state is a horrible act and dean did not challenge that government and in arguing that a thirty month sentence and additional supervision w fact he didn't object to notice he never said i'm surprised that you consider it was in the report i need more time i need a continuance is that he just objected sir for purposes of preserving a code review the imposition of the sex offender treatment and of the court an opportunity consider his arguments to consider his thoughts he said nothing which is why we are on plan our view here and so i am going to your honor's what about this i guess the the third condition of relates all of these conditions of release have to be reasonably related to at least one of the thirty five fifty three factors right back yes there are tell me how that how this one is i mean this one is pretty intrusive periodic searches of his home his person and his computer based on reasonable suspicion unannounced that's pretty good for someone who's not a registered sex versus moran where there was no child pornography there was no evidence that the defendant had been using the computer to meet his victims this court upheld a supervised release condition prohibiting the defendant from using the internet entirely by name that was reasonably related t having defendants with a history of committing sex offenses from accessing computers or using the internet for the duration of the super about this release because this court is explaining the internet in particular provides an area for people who have committed have a propensity for these child sexual may be the only the only basis with this condition correct yes this is and that's part of it's i think it goes in tandem with that first special condition which for sixteen is contact with minors this helps to enforce that condition by permitting his probation contact with his victim or with other minors then the probation officer can go and look at his computer and look at his e mail and determine whether or not he has been finding small children again or he has been harassing his victim who he knows because it is the niece of his ex girlfriend who certainly knows how to find her and i think that's what this condition is going is to try to protect this victim and try and protect other children from dean seeking them out one other point i wanted to make is my posing counsel reference the application release revocation and supervised release sentencing because that doesn't exist anywhere in the law and their brief doesn't cite any authority for that frazier repeatedly refers to supervised release revocation hearings that's all one proceeding supervision gets revoked and a sentences imposed right away this isn't like there's a trial and then there's a separate sentencing there is no trial there's usually no witnesses like in this case and the entire point of the proceeding is just to figure out what the penalty is going to be indeed in this case that was the only issue mr dean came in and said i committed child abuse under florida law i admit that then there was a long discussion about which guidelines book applies and then the punishment was imposed so this whole like attempt to slice this onion into like rice paper is not supported by any legal authority supervised release hearings are one thing and frazier treats them as one thing the fifth amendment applies to them entirely so that whole idea is novel and represents a drastic departure from precedent that's been on the books since  as for councils attempt to explain how these conditions might be reasonably related you know she may be right she may be wrong we don't know it's speculation the reason we don't know is because  district judge didn't explain himself the district judge just said i'm going to do this because i read that there is a police report out there that says that this guy might be a sex offender and that's good enough for me that is just a fundamental basic due process violation even under plain error it is not too much to ask if you're going to take away important constitutional rights like mr dean's ability to communicate with his three  children that we have a hearing where the evidence can be discussed in an orderly fashion that's all we're asking for this isn't we're not asking that mr being deceptive mr dean be set free or be allowed to run a daycare center we just saying we'd like a hearing where the evidence can be weighed in a civilized orderly proceeding the points in the transcript that the united states  attorney's office mentioned are interesting because nobody ever mentioned sex everybody says unspeakable act terrible thing horrifying yes because he pled guilty to aggravated child abuse that is an unspeakable act it would be very bizarre to expect ms becker to say judge unspeakable horrible are you sure he committed aggravated child abuse and admitted it the only issue here is whether all the unsubstantiated allegations could be relied upon in deciding on what his supervision would be like and there's no authority for what the district court did in this case it's it would have been no trouble at all to say at the end of the discussion on the sentencing manuals to mr dean's counsel as a district court judge i'm considering this condition would you like to say anything about that instead he surprised  who then made whatever objection she made and i understand that the court thinks it's not enough that's fine we still win under plane air instead of doing it the way that he did it you know it wouldn't have been any trouble at all to just say would you like to be heard on that which is what judges traditionally do after all this isn't we're not looking for some innovative departure from the uk but there are two points in time here one is when the report a recommendation is presented and there is no objection now debt that will be subject to plain error now we do have a fool we do have a hearing on the matter and then at the end of the hearing then the judge asked would probably a procedural on reasonableness question which is now the we have had the hearing do you have any objections to the findings of fact of the manner in which the sentence was pronounced and that's when ms becker raises this question of sex offender treatment now is this another opportunity to to to make that objection and that's what we have been discussing in my question to you is how do we treat the second objection do i conflated with the first one or do we treat it separately i think the fair way to read the record and i wasn't there i'm just but the way i read the record the way i think it's most fair to read the record is the reported recommendation didn't ask for any sex offender conditions and the united states attorney's office didn't ask for anything like that so if i'm the defense attorney i tell my client look they're not asking for anything too terrible so let's just admit this and call it a day and that's what you advise your client to do but then you get the and at the end of the hearing all of a sudden the judge imposes something that nobody asked for and you stammer out whatever objection occurs to you in the moment and you know case closed but that's what i think is the most fair reading of the record you tell your client look they're not looking to do anything too terrible to you here they have to file this petition they have to do something because the law requires it and it looks to me like you're getting a fair shake so let's just go in there admit everything and be done but then lo and behold we're going to check your computers we're go make you go to sex offender treatment and pay for it none of this was talked about before there's this is like a complete surprise and so all we're asking for is a remain and to do it the right way that's not that's not a crazy ask i think that especially given that morrissey copeland and the federal rules all spell out what the right way to do it is and there's no dispute this wasn't on the right way there's not a single case in which anybody's been punished for being a sex offender where there wasn't either an admission on the record like lesnar where the defendant says yes i did that or moran two convictions or bull two domestic violence convictions and so yes pesher conditions need to relate to the facts but we don't know the facts of this