well good morning welcome to the six circuit before we start judge keith and i would like to thank george black for joining us today and it's a privilege for both of us to serve with you and thank you for taking this on top of all  good morning your honor smart davis on behalf of robert schultes may it please the court the government has all but conceded that condition six as written is fake that to solely ban deviant sexual arous or materials to be used for that does not address the specificity of mr scholtes is particularly history and his offense is conditioned sex can be fixed by simply tacking on deviant sexual arousal in children  while it is sort of obvious everybody knows that that's what we're talking about that's not what's written and that's not how his supervisory probation officer is going to approach to give it in their own construction you know week we give a statute snaring constructions to avoid constitutional problems and that's between branches here it would be the same branch narrowing the words of a district court judge i certainly would not object to this court doing that and i think you are able both in your general authority and in sort of that approach of judicial economy that if we all agree that adding in children to this phrase will fix the phrase as far as constitutional questions then by all means we should do that do you have  language of this particular condition so that's it comes out of time but the eastern district of tennessee yes and is it do you know the history of it maybe maybe your friend on the other side can help us with that but i mean is are there other districts i think what happens is you get this you get a pattern of that start you get a bit of a groove everyone starts using the same early supervised release conditions in fact in this case no one even objected to these earlier because every everyone's in that groove where did this come from is this unique it is not completely unique there has been similar conditions in other districts this specific language the just the four deviant sexual arousal may be unique to the eastern district  tennessee rule eighty three point ten b local rule is still on the books checked yesterday still on the books as written but now courts are taking a closer look at each condition and at least in the case of condition six are mostly adding deviant sexual arousal in chips with children or regarding children something along those lines i do not know the history of eighty three point ten b i know it was on the books when i started with the federal defender in two thousand and nine and i think at that time we start the judges know what they're doing they wouldn't violate any laws by creating this local rule base of you to think and you know this court in lanson inman's said no let's take a look at these conditions let's make sure these conditions are tailored to the specific defendant to his office and it's just that the language right now is we're talking conditioned sixto right yes as material that he may use for the purpose of deviant sexual arousal so as far as you're concerned clear enough to probation officers and to supervise these about what is prohibited and did does not unduly restrict their first amendment rights in regards to other materials that may not be normal for instance you know i had somebody on supervision who was ordered to get his premium cable channels taken off his television set within forty eight hours because there's racy stuff on late at night and had he not done that he would have been violated there would've been a violation petition filed or couldn't the court simply take the pro approach that we're going to take a commonsense reading of the condition and indicate that it covers only material designed to produce city of chicago versus morality addresses that your honor that even if we all know sitting back what this really means you need a statute or you need a condition to specifically say what it means because it needs to let the probation officer know what sort of things to be on guard for to be looking out for in regards to their supervisor and it also needs to give the supervisor he's clear notice about what is prohibited what their probation officer is going to consider is prohibited rather than being frightened of going back to jail and restricting their first amendment activities to blandest of possible activities in the hopes to not offend their probation officer or if it says what it says whatever it says and it gives rise to a common sense reading that it's only covers material designed to produce deviant sexual arousal why isn't that sufficient because we know in practice it does not and at least in the district court they can't the probation office in that handles the offenders out of knoxville and the example i gave of you have to take the premium channels off your t v was not chosen picked out of clear air that is something that was told to a supervisor be that probation officers interpret without the modifier of an children they interpret that broadly and it's a method of control to say you can't go you can't have these channels on your t v set you can't go to this bar but you can go to this other bar so this court needs to reverse remand and rewrite rather than simply issue an opinion that the commonsense reading of this gives rise to the interpretation i spoke of correct your honor because your opinion is not necessarily going to make it to the probation officer and to get in when we're looking at i'm not sure i'm prepared to accept t that as it may be that as it may i think either amending the language of condition six here in this court or sending it back to have it amended is the best possible way to proceed and that way we will have an amended amended judgement that is clear that it's not all you know a wink and a nod we know what this really means we need to say what we mean and mean what we say that's what the  chicago versus morale is said that we know this statute is to just monitor gang activity but people aren't clear on what that really means but you know that case is you know doesn't deal with the problems was beach related to sex which is you know just very very difficult right i mean wouldn't you agree that this is not an easy thing to write it is not an easy thing to write and that's why the courts have struggled with it however courts of appeals and other circuits have held that if you know whatever the descriptor is for inappropriate materials if you make clear that it's concerning children then that gives the probation officer sufficient guid by what do you mean by respect to children what would that actually mean in this case in this case obviously it's illegal for to possess child pornography however this would allow the probation officer to monitor supervise the fo r what's called child erotica you can't have the sears catalog with just the kids in bathing suits you can't you know if there's evidence that your collecting children's d v d s of children's t v shows of the album with the person is that this interest is you can't say that it they have an interest in children they have an interest in adults and in fact the adult interest sometimes lead to the children problem and that's why we have in our the strange to them that it just a one when they're they really work together which i'm no expert on this but i'm going to guess they do work together part of therapy though is about encouraging normal behavior whatever what however you want to define normal sexual interests and that it's not illegal for somebody to possess adult pornography it's not prohibited to have adult erotica why is that so bad i'm just not getting why i mean you're you could stay in jail that's the other option for the client so this is good for the client to start to rehabilitate arguably it's good for society who would like to get people back rehabilitated so why why that i mean i don't understand i get the chilling effect issue that you usually get in normal for some of the cases that does seem to me a little different the constitutional protections by a little differently when it's a form of probation and the other alternative is to stay in jail what's so bad about saying listen you just shouldn't be having adult or child pornography just is not healthy for you without evidence that adult pornography played a role in their accessing child pornography then there is not a reason to prohibit them from having adult pornography or adult erotica  that case the case that says you know you you can't have a supervisor release condition when you have a child pornography problem the court can't say hey just know pornography period with this is not good for you you're on i would need to check my brief again there was a case where that there was a ban on adult pornography in addition to child however the person on supervision had was on supervision for having produced child pornography and they were able to show an interest in ship at the sentencing hearing apparently evan interrelationship between their adult pornography and their child pornography but that court reverse that says you're saying the court reversed so first it wasn't a six circuit case i think it was out of i didn't check but that a ban on adult pornography was reasonable and it was related enough to his offense that it pass constitutional muster however a ban on adult erotica was not and that was deemed too broad and i will certainly check that and address that  when i have my rebuttal but the design with judge black was saying if you modify it with designed for deviant sexual arousal that gets you out of the erotica world right you know because you can have  that somebody would deem deviant but does that's the boy why designed is critical i would have thought if it's not pornography it's hard to say is designed to produce deviant sexual arousal what am i missing i mean you just you can look at me and say you're clueless here's why maybe don't use that word but what i'm missing because it covers all types of what a probation officer would consider deviant that it's not just in children it can be especially given your all reveal an initial polygraph they know every little thing that you're into and that when you modifier of deviant sexual arousal in children anything that's purely adult oriented that that's a completely different thing should not be banned but this condition leaves open the potential for it to be banned thank you warning may please the court my name is look mcclaren and i'm here in behalf of the united states the supervisor release conditions imposed in this case should be affirmed for three reasons first the defendant has waived his ability to challenge these conditions by it's really the district court's job to try and police this a little bit that the court of appeals is not setting down a rule that's meant to sort of restrict what the district court wants to in its discretion consider but the defendant has the obligation to raise any arguments about the sent me a case that contradicts the point i made they're allowed to you obviously agree they can forfeit arguments i'm assuming you think in general the government can forfeit argument yes that's correct or so why is it that the government can't forfeit a for certainly can't in our story that's what happened or didn't raise this in front of the judge you didn't say to the judge hey they didn't argue this at the first sentencing right that's correct that's helpful to bring to the district judge attention issues you intend to raise on appeal that's a forfeiture certainly well then excepting that point judge will move on to the you know you don't have to accept the just tell me why it's wrong well i think that the case law here it makes it someone ambiguous as to what an attorney is supposed to do because on the one hand the district court is supposed to be able to consider any issues that it deems relevant and if you look at the sentencing hearing and give it to the trial lawyers not sure what to do i'm not sure i understand the problem with this advice if you think in a prior hearing someone didn't raise something that should have raised them and you think it's something you're going to want to tell the court of appeals  should always give the district court judge a first shot at it district judges don't like having a case reinvented at the court of appeals give them the first shot of correcting the problem and they can say i don't think it is a forfeiture here's why or they can say good point they should have races before the law the case and but i it's very bizarre to me to think that there's a rule out there that the government or either side raises things for the first time at the court of appeals without giving the district court a shot at it that just is beyond me well a lot of the arguments we're seeing today are being raised for the first time on behalf of the fed and here at the court of appeals a lot of the arguments that were made below with regard to be special conditions were simply throwaway lines of w think it's big without any explanation of why it's ackley so it was your job or someone's job in your office to tell the district court their reinventing the case six circuit senate back for this reason it doesn't allow them to ask you to revisit all of the supervised release conditions those are the law of the case it's really easy and the court can agree with you in the second sense income becomes really easy and the appeal even easier or it can say well i hear what you're saying but i have some discretion as we all know you do with forfeiture we're going to reach it well i can't give a specific reason as to why the attorney who is handling this case below didn't raise this issue but excepting that the issue that the court remember is that this is being what the district judge did is being reviewed for abuse of discretion and i think when you're considering all of the case law that's out there the conditions that this judge imposed weren't really an abuse of discretion given that this defendant's history and i want to jump right to this condition six there's been a lot of discussion about the vagueness of this alleged vagueness of this word deviant sexual arousal as you launch on that the district court judge does not have the discretion to violate the constitution certainly certainly but i think that it speak to condition six the this court in talking about conditions like this has talked about a spectrum if you look at the zobel case that's probably the most useful case on this point it talks spectrum of the kinds of things that are permissible in terms of restrictions in the kinds of things that are for example the court said that that restricting pornography or restricting access to sexually deviant material would be ok but restricting access to sexually suggestive material wouldn't because that strikes too broadly our position that is that deviant sexual arousal is trying to get material that is even narrower than pornography that if it  made a lot about this word deviant as not not having much meaning and that you need to add a clarifier for children what we think that that's contained within the word when you look at the definition of deviant in you know black's law dictionary it says departing from the established or more custom and emitted lete norms and customs about sexual matters in twenty first century america are fairly broad and we think that there are and evolving certainly evolving but we think that even among that there are at least three categories of  sexual interests that are by any standard considered deviant and that is sexual interest in children sexual activity with children at all of any kind of a sexual activity with children sexual activity with the animals and sexual activity with non consenting or vulnerable adults such as adults with mental disabilities and we think that that gives content to this were deviant that when you see your theory is deviance fine as long as i can find three really obvious areas it covers and as long as there's a really obvious criminal offense lies really don't worry even though implicit in what you're saying is there are some less obvious sexual activities covered by deviance what i'm saying is that deviant must be understood to cover those areas and only those three those yes only those areas that are obvious yes we've given given the wide range of sexual mores what are the obvious areas just the three you mention you just you're just making those up i mean i think we sat here for a while we could come up with some others i mean i'm not that interested in detailing them but i certainly think the court could come up with others but what i'm trying to suggest is that this this word has a certain amount of content that it's not just giving the probation officer some sort of unfettered discretion to determine what kind of materials are allowed what kind of art and i think  you have to read the condition as a whole it says that the it's trying to present prevent him present from possessing materials that he may use for the purpose of deviant sexual arousal and i think the whole point is that the focus of this condition as with all supervised release conditions is on rehabilitation of this specific defendant and upon protection of individuals from this defendant the probation officer is going to be working with this defendant the probation officer is going to know what kinds of materials arouse this particular defendant deviant sexual interest in children and so you're saying the way this works is that you get to use that that word and then off probation officers that he or she gets in the defendant gets to decide well we're going to limit this just stuff about children or children and animals and that's the way you think in this award no no i'm saying the the word deviant has a content that gives the probation officer a standard to apply and how that standard applies to the particular defendant as to which materials are important for that defendant not to business are going to be i mean ok you just said the same thing you said before which prompts the question how does this work are you saying the probation officer gets to say all right show me what you're interested in this is good this is that this is not going to work he says that what you're imagining no i'm saying what the standard prohibits is materials that are going to arouse this defendant's deviant sexual interests the probation officer as well that as well as the defendant have knowledge have an understanding of what those materials are my point is that was that was the defendant here know it was that means in this case what's that mean for  this case in this case schultz knows the things that mean just stuff related to child porn is that what you think is go in this particular case it appears that the deviant sexual and arousal that the category that he has most interest in is the one in children so why wouldn't it be a good idea to accept the offer of shelters lawyer that we narrow the construction that we either asked a district court to modify the language or we narrow it ourselves for  of the term deviant is in the context of child porn conviction and why isn't the commonsense interpretation that when we speak to deviancy we're talking about child pornography that's exactly my point just  wouldn't object to the clarification but i believe that that phrase for children would simply be a redundancy in this case so are redundant of the word yes so that our position is that there's no clarification this necessary but if the court feels that that that clarification is essential for purposes of constitutional ones we would not object to clarifying the condition us a very interesting question earlier judge sutton about whether the court this court has the authority to sort of clarify that as a matter of interpretation there's not a really easy answer to that question but i you know since it seems to be a topic you're interested in i wanted to make sure you got any answer i would say that the court probably doesn't that really the district court is the one that's supposed to be in the position to craft the language and consider all these things about the defendant and that issue court is the one that should be allowed to clarify its own language that said this court has clarified the meaning of the language the district courts have used in the past so this court has engaged in that very practice most notably or in the worse or even the way this works since it's the same branch of government and they've already got quite a bit of authority even if the court of appeals gives this clarifying limit construction is that right that both sides can always see a modification supervised release conditions so absolutely judge holds the trump card absolutely and that's i think the the key here with regard to the probation officer in exercising their discretion if at some point mr schultz seems to think that the probation officer is not following this clearly set for standard of deviant sexual arousal he has the opportunity to go back to the shore court and say wait a minute the probation officer is not following the standard that you set out in the special conditions and that issue can be addressed by that is your court who is going to have full knowledge of the situation the individual lives with these visions maybe you were just saying this and i was and following it but they can be ratchet up and ratchet it down certainly they can be more restrictive and less restrictive yes and the whole point is you want to allow the district court the opportunity to tailor the condition as necessary to achieve those two goals rehabilitation of a question  condition for just out of curiosity why why give the probation officer authority with respect to one part of it but not you might argue the the broader part of it i mean so you have the second sentence in addition can't visit you know parts anywhere were children under eighteen might be i mean that that covers a lot of locations so i just can't quite understand why having just acknowledged the expert in the role of the expert in deciding to give him permission to do this but not that why would he wouldn't do the same with you know going to mcdonald's going to this park that's near his neighborhood why wouldn't they do  that i can't speak as to what the district court's mentality was as to why i didn't and then i sure from my i mean is there a history to this to me that you give probation officer authority for letting the individual do these types of visits but not the others  just i'm sure there is a history i don't know the precisely how it will justify this or do you think or do you think implicit it does say in addition is it possible implicit in the second sentence is that the probation officer has authority to approve some of those visits i think there's an argument to me that there is an implicit ability of the probation officer to make certain exceptions in cases when it's you know going to be needed for the defendant's rehabilitation for him to visit certain places or frequent certain places but i think the understanding as to why that that language might not be in the second part is because i think the second part is a little bit clearer and the other reason is because the second part doesn't implicate certain fundamental interests quite a strongly there was a discussion on the defendant's brief in our brief about this interest in familial association and i think that that's what that that carve out in that first part of the condition allows is some amount of tailoring on the part of the probation officer that you know if we're dealing with a situation where it's genuinely not going to be a danger for this individual to be around family members who are his own children or grandchildren then there can be an exception that's made and that's because of i think the importance of that regard to that that important interest in children in the court there said yes that is an important interest but we also need to protect these children and because most sexual abuse occurs at the hands of family members creating a just sort of general carve your honor asked me earlier about cases regarding modifiers on conditions for deviant sexual content this court in lantz struck down a condition because it was not limited to pornographic depictions of minors or minors in sexual situations so it did address the you did not narrowly tailored this condition to address the needs of rehabilitation and protecting the public the case i was thinking of earlier was out of the second circuit where there was a defendant convicted of producing child pornography and was banned from possessing pornography however the court ruled that possession of matter that depicts or alludes to sexual activity were depicts minors under the age of eighteen was too broad the third circuit has also weighed in on this in her that adult pornography the ban on that does not necessarily address the issues of the defendant who is caught with child pornography that without some evidence that there's a link with this defendant between his viewing of adult pornography or reading adult erotica or anything like that as a connection to his use and collection of child pornography it's not narrowly tailored and we do have first amendment rights in what we read what we view what you know materials print materials especially that we have at hand a curiosity i thought about this of today another says scott vs pennsylvania parole board case where remembering correctly i think the principles right but i think it says you know as a condition of probation you give up the right to search you know random searches without if we're going to release you we're going to ask you to waive first amendment rights and here's what they are you know it's your choice are they allowed to do that i would think that any waiver especially constitutional rights must be knowing involuntary and it's not voluntary if we say we're not going to let you out of jail until you sign this waiver of your rights and that's something this court has looked very closely at in terms of appellate waivers  and how make ensuring that during the plea colloquy the court adequately addresses with the defendant do you understand you're giving up this right that in other pleas colloquy making sure defendant understands by entering into this plea that they're giving up their fifth amendment right to remain silent their other rights regard to life while at the same that scott though that's the same situation it's just as involuntary saying you can't you can't leave unless you leave on the condition that there can be random particular i searches of your house and you but they have an alternative available for instance with the trial that you have the alternative of with the pleas you have the alternative to go to trial with parole as opposed to probation parole is discretionary within the probation parole system we don't have a right we don't have a constitutional right to parole we have a constitutional right to be let out at the end of our sentence but to get out early is something that it's more discretionary in pennsylvania you are given and a range sentence a forty eight years if we're going to let you out at four years we can ask you to waive some rights people do that when they go on supervision and the difference between supervised release and probation basically is what this turns thank you on our thanks to both of you for your helpful oral arguments and briefs we appreciate it work our way through the