r good morning in may please the court is randall unger and i represent mr brodeur on this case we submit that the government failed to prove by verified facts that the defendant violated the terms of his supervised release the first specification was based on his alleged refusal to permit monitoring of a computer however at the hearing conducted on the violation there was no evidence that the defendant ever used the laptop computer that he had presented to his probation officer there was no evidence that he continued to possess that computer after he raised an objection to the manner of the monitoring and the fact that when the probation officer conducted a search of his home she observed certain excess or ease that might be used to be connected to a computer didn't establish certainly the sufficient standard of evidence required that those accessories had actually been used in connection with the laptop computer in fact what the defendant had stated was that he had borrowed the computer from somebody and when he saw what the monitoring would consist of he simply gave it back to that person no longer possessed it so the violation was based upon something that he didn't even have possession of at the time the violation was filed the second specification which pertains to his alleged refusal to enroll in a sex offender treatment program was not proven either the contract which he was presented with by the probation department pretty hibbett him from having contact with children and didn't exempt his own biological children now this in effect forced special conditions of supervised release  children that's correct and that's the point the judgment of the district court itself excluded his own biological children from the requirement that he obtained the approval of the department of probation or from his  treatment group the contract that he is offered by the probation officer does not exclude his children as the judgment did so in effect what's happening is the probation department is assuming more authority patient officer specific lee said that he showed his biological children would be excluded from that provision yes but she conditioned that in effect she was saying i would have given my approval if the defendant had simply requested having contact with his own children why isn't that enough well i think because the the judgment itself that he was subject to didn't require him to seek approval from the probation department so the department was actually taking on greater authority than they possessed in other words the defendant should not have to seek approval for something that the district court itself didn't require him to seek approval for so while we understand that had the defendant made of a request of his probation officer may i see my own children she likely would have said of course he shouldn't have been required to even make such a request and the fact that he was being required to do so we submit was implicating a fundamental liberty interest that being a  citizen's right to have contact with his own children so while we understand that the probation department would have likely been reasonable in such a request and likely would have granted it mr browder should not have had to  his probation officer of course and they never had that discussion is that right well they had some discussions but i think what happened was mr browder he's the type of individual who takes  very technical view of the conditions and rightfully so he's entitled to do so of course in this case it got him into trouble but i think he's the type of individual who stands on principle and he's saying look i'm not playing games with the probation department i'm willing to comply with all reasonable conditions subject to the district court's judgment in this case  but i'm not going to agree to what i consider to be unreasonable and overly broad conditions and if it gets him into trouble that got him into trouble subsequent to this case and if i  understand what type of individual he is it will probably be recurring but he has an absolute right to make these challenges and i believe he was it was appropriate for him to do so if if my recollection what was his professional background i had a vocation over leaves he might have had an engineering background and a fairly educated man i think his personal life was was a different matter the crime of which he was convicted with this the first offense it was the first serious type of offense i think he had some minor scrapes with the law prior to this but this was certainly the first major it pleases the court good morning my name is brian cowen ahead on the special assistant united states attorney with us tony's office in buffalo and i'm representing the government here in this case i have not been in this building in about eighteen years and this is my first argument before the courts i thank you for having me i think there might be a move this issue your honor samantha at the time of the briefing of this matter there was a second violation that had been ongoing in a twenty two fifty five that have been pending in the district court had decided the twenty to fifty five and then just back on april the twelfth had decided  the second violation finding that mr browder had it had violated the condition again of his supervised release he was given a sentence of time served on april twelfth and infill been in a position of ten years supervised released was to progress from that think your honor that the court were to grant what the defendant is asking for today and that is an order that was to revoke the finding that he had violated supervised release and dismissed the petition that that wouldn't have any bearing on his current so you know that he want to appeal the other he has he's put in and also appeal of that but at this point and i'm i'm arguing that it may be moot but it's only moot if he is unsuccessful in his second appeal but it wouldn't let me ask you about that because the terms of his supervision are set forth at eight twenty and that sets forth the term of supervision relating to his compliance with the computer monitoring as part of the judgment and so if you look at a twenty it references specifically the policies they're set forth and at a one twenty two and one twenty three those will be in place irrespective of the timeframe of whether or not he's restarting his supervision or is under an older violation i take it that hasn't changed those two things haven't changed has not ok so if we then look at the eight twenty which references the policies at a one twenty  and we if we were to find that the policies had a one twenty are overbroad under licious wouldn't that still make it a lot of controversy and in particular i would reference you to paragraph six of a one twenty it will join twenty two sorry it w counsel it indicated that there was no evidence of use of a computer as the record will indicate that the probation officer testified that she met with the defendant prior to his release from state prison in december of two thousand and fifteen and explain the conditions to him after he was released on december twenty fourth two thousand and fifteen she met with him on december twenty eighth two thousand and fifteen and explained the monitoring conditions it was on march second that the defendant offered to her i have a computer that will that i plan on using and he was to bring that into probation when he brought that into probation after going over the monitoring conditions of it he said no no no i don't want this anymore and it's what the district court felt was hide the computer or gamesmanship on behalf of the defendant so it was at that point when when counsel mentions that there was an evidence of use the defendant brought the computer to the probation intending on using it that's why he brought it to them and if i may the defendant didn't testify at the hearing but as you can see in the appendix page a one twenty four he did write a letter to the probation officer and if i may his objections were as follows one problem is that refraining from willful contact with anyone under the age of seventeen years old is so vague as to be impracticable i cannot check id or get your permission before giving someone directions or before checking out at a grocery store more important is that the restriction grants you authority to deny me any contact with my own children and even by birthday card the court  convey that authority to you it cannot convey authority it does not possess i will not be compelled to grant that authority that was largely why i could not sign that's the defendant addressing the issue of his it in his children but also through the testimony of probation officer we learned that his main objection to the computer monitor and was that probation an entity of the government would have access to his appeal paperwork his pending twenty two fifty five his appeal paperwork that have a hysterectomy feel that this court of previously denied and any other appeal that work the probation officer testified in assured him that under lucia's they're only looking for child pornography so i think that the probation monitoring condition is in compliance with lifshitz and it's a let me just want to sort of pause on that and just go back to then the tracing through from a twenty seven a twenty says that the computer monitoring condition is set forth in the policy and it references that specifically the monitoring consistent with the u s probation office is policy the policy which the probation officer testified she didn't have particular familiarity with what that would entail or not entail under lipschitz how it would be interpreted under lipschitz the policy it is far broader than what the testimony was so how do we reconcile the testimony which i agree with you on the one hand from probation is relatively limited  and may comply with lifshitz that's the testimony but the policy that's contained in the actual terms of supervision that policy is far broader so how do we reconcile those two i think the district court did that for the court on page a one zero nine three page a one ten the district court having heard the testimony of the probation officer and the district court having reviewed the computer monitoring program participant agreement at a one twenty two the district court specifically references lipschitz and makes the drug in urine analysis and notes that i believe the district court was reasonable in his assertion and his assessment of the policy based on the monitor agreement and the testimony of the probation officer that it was in compliance with li those pages one o nine to one ten he lays out the reasons why he believed that that the probation officer conditions in computer model program was in compliance with lipschitz let me ask you about the second percolating appeal  how different is it only would it be at the end of the day from what we're considering now are there other issues that are just that are raised in the second proceeding the second issue was did not have anything to do with computer monitoring the second issue was a violation where he would not he was screened out and would not attend sex offender treatment he didn't feel that he needed to admit that he was a sex offender to go into sex offender treatment so it's it's akin to this in that it involved the condition involving sex offender treatment but it's a different issue with regard to why he didn't want to attend the second to have clinical concerns should that appeal be consolidated with this one how far along is that appeal  district court was was not reasonably satisfied and the government didn't prove their case beyond a preponderance of the evidence i think that the conditions of supervised released were reasonable i think that it was reasonable for the district court at sentencing to impose the conditions that they sentence that or that the judge set and i think it was reasonable for the district court to impose the sex offender conditions for an individual who had been collecting illegally child pornography and because he had collected on his computer i think the computer monitor conditions were  reasonable i think that it was unreasonable for the defendant to come in with a computer and then hide the computer and claim play games and as the district court noted and i think it was unreasonable for him with regard to the conditions of entering treatment knowing full well that the probation allowed him to access to his children and that the the conditions upon which he was to enter treatment allowed him subject to information officers approval to access children under the age of seventeen so i think that the just a few matters now the government stated a little while ago that was to browder intended to use a laptop that's absolutely true but there's no evidence in the record that he ever actually used it and in fact when he was met he met with the probation officer and was informed of the various monitoring conditions that were going to be imposed he simply declined and stated ok i'm not going to agree to this and there's no evidence whatsoever that he ever use the computer and in fact he made a statement to the court i gave the computer back to the person who had given it to me when they did the search of home no computers now the government characterizes that as him hiding the computer there's no indication other than conjecture that he actually was hiding the computer the government presented no evidence to refute his statement i gave the computer back because i didn't want to be subject to these conditions and i don't want to tell the probation department who i gave it back to because i've been dealing with the probation department for a while now that they're troublesome and i don't want to have any body who would lend me a computer have the same type of trouble that i'm having with these people so sorry i just don't want to tell you who i gave it back to the point being i don't have it that better than anybody he spent several months in jail as a result of the most recent violation he was in jail for about a week and a half or two on this violation you know we may not like him personally i may not agree with his style but he acts on principle and he's going to continue to and i believe this for the a mind if i call one of my kids today it's her birthday he could do that certainly he chooses not to because he believes that's not required of him it's difficult but that's his princip