st there was a condition the drug testing condition that wasn't justified on this record that issues for the case specific second there were overly broad sex offender and computer conditions and those are areas that i think this court is seen before where i think probation officers are sort of still getting used to what's allowed and what isn't allowed i'll start with the case pacific drug testing condition unless the court prefers me to go another place on that one there with i think i described three layers of error in the court imposing it st there was a problem there was a prior finding at the original sentencing that there was no risk of substance abuse and that does two things st to the extent that there's a burden on the defendant under three thousand five hundred and eighty three dollars d to produce evidence that there's no risk to overcome the sort of presumption that creates that shows the burden w carry nd i think that carries weight under the law the case dr i mean that's basically the law of the case that at least at that point in time there was a reliable evidence showing no risk of substance abuse well counsel how ca supervise willy's conditions when the very purpose of imposing the conditions is to take account of the circumstances that exist when the offender is before the defense is before the court at the later point at the later point in time says that law of the case applies in the context of applying supervised release conditions when the offender is before the court for violation of those conditions or subsequent circumstance whether there's a risk at that time and i think that fits very nicely with the law of the case principle that you can look at changed circumstances so where there changed circumstances here that gets to the nd layer of air there was absolutely nothing at the time of the new sentencing revocation to suggest a risk of drugs i thought that there was some evidence or there was something in the probation officers report that he had been on medication well he was taking prescription medication thefts pretty significant you know and the judge is trying to fashion based on the probation officers report recommendation is trying to impose conditions that he believes are warranted under the circumstances i don't i don't see why he stuck with the law the case well i think he had there have to be sent there to be some thing suggesting there's a risk of drug abuse i don't think taking prescription medication  talking about say something like oxycontin where of course you know there's all the publicity about potential you know drug abuse spinning out of that but the vast majority of prescription medications there's no no no no it's reason to think that's going to lead to drug abuse and so that's not enough the mere fact of committing some non drug non violent type of crime like embezzlement is not enough there is absolutely nothing in anywhere to suggest that mr brown posed a risk of substance abuse there's also a rd layer of area here and that is did the court have any reason your honor i'm sorry was there any evidence as to whether or not the blood pressure medication could be abused  let me step back st of all there was actually no evidence it was blood pressure medication oh i thought that's what you said i was that was a possibility ok what do we know what the medicaid no evidence about what the medication was well should not have been developed if you want to rely upon i think it had to be developed by the probation officer of the probation officer wanted to rely on it as change circumstances you know if you have the original finding that there's no risk of substance abuse of the original sentencing i think then there has to be some evidence in the record suggesting there's a reason to find a risk of drug abuse but what is there has to be some evidence of drug use in the record in order to oppose this and i thought  simply found there was no plane there now jackson the problem with jackson which did analyze was it was addressing really a different issue about whether the new statute was an ex violated an ex post facto  prohibition in jackson at the very least the tests that were ordered with a minimum one test within fifteen days and to test their after there's an additional problem here of the court going even farther than the minimum that's required by th same page there's footnote three that says assuming without concluding that it was an error to order and that's not a number all right well then then we then i should get relief here on the number if not the basic and did well ok so are you seeing the point no conditions a little bit but i see him getting short on time well the government made some concessions regarding the computer conditions correct they did make some concessions yes so in terms of use of computer with access to the internet the government agreed that it should be limited to devices capable of accessing the internet let that be amenable would you be amenable to that no because because if you can't well if you can have a device capable of assessing the internet there's two problems at st that goes to my rd argument about whether they can prohibit internet use nd if you're talking about the monitoring you have to not only limit it to computers that can access the internet but limit the monitoring of those computers to internet activity right which is a little bit so we've done in other cases right you did it in cannes known i think the only case but you did it we just read another sense in the same condition which there isn't here the nd problem might suggest that the court is especially when you're talking about what kind of monitoring possibilities are out there and that kind of thing i think frankly it's a better use of resources for the district court in the probation officer in the attorneys to be in court to hash out those details than it is to have to try to this have this court do it without i mean when you're concerned about those that he might be subject to some sort of revocation or some sort of punishment whatever for violating the terms and conditions but if we in our in our disposition if we make it clear that that condition is limited to internet activity what's the problem actually understand if the probation officer put some sort of monitoring on there that he endorsed attorney doesn't think should be on there and that st of all he's got to decide whether to take on his probation officer in court with some defendants are going to be a little loath to do and nervous for one month or two months or however long it is before you back into court so frankly i think it makes more sense for the district court to hash that out especially if you're sending it to action after seeing several of these cases is that the probation officers throughout the circuit are sort of beginning to modify the language and to come into compliance with what we've said in our case law and it's not going to happen overnight but they do meet they do get to get certain they do discuss our cases and they and they make appropriate and the problem is your honour's are up here sort of setting a condition or trying to articulate a limit without probation officers and attorneys who've gone out there and researched everything that's available and are presenting that to a judge saying here are the options judge here's how it could work and that kind of thing so you're not operating with the same sort of breath of information that came be presented back home early we have it in the record i mean we're pretty to what i presented to the district court judges then and the district court judges are down to follow our strictures so why is that a problem well it never got presented in this record because the judge just said no and of course it was back to the original sentencing that the objection was made the judge says no i'm not going to change the condition so there was never any discussion about what types of monitoring were available cetera et cetera ok thank you mr van we'll give you a protection of the public and rehabilitation of brown for the district court to impose all of the conditions to which brown did not object prior to sentencing brown has not met the plain error standard for four of the conditions that he has challenged on appeal nor has he demonstrated that the district court abused its discretion by not waiving the mandatory drug testing condition and this is especially true considering bro it's prior history that includes a conviction related to possessing child pornography on a work computer in new jersey and being connected to a personal computer in arizona that contained child pornography and here in the courts questions it is obvious that the court has read the briefs and has focused on the issues and it is true that the statute mandates drug testing the defendant has approached this issue as though it were a discretionary call and that it was an abuse of discretion by the district court in fact it is mandatory and then the statute provides that drug testing may be either ameliorated or waived if there is a basis for that here the probation officer had a concern that that if it was taking medication the record is not as well developed as it might be because this objection was not raised obligation was it to more fully develop the record that you say is not fully developed the defendant was on notice the discussion was proposed the probation office had suggested it to the court there was no objection prior to it had there been an objection prior to sentencing the record could have been more fully developed as it was it was left to the district court to then respond to the concern and ask the probation office for its input so are you saying it could have been your obligation or your burden and he objected to it well i think that the colloquy that came up was in the context of changed circumstances so it's true in the case law that if there is a question of change circumstances then potentially that does shift something to the probation office and to the government but in this situation at the time when the condition was being proposed and imposed the burden would have been on the defendant to raise the objection prior to sensing and at that point that the district court could have developed the record further so we don't have answers to some of the questions of what were the medications what was the amount exactly so you know the way it is u with district with room eastern district of california so usually the procedure is that when the peroration officer issues is the recommendation list the conditions that he's recommending the usual procedure is that there's a written object there written objections if there if there's if the defendant's going to object was that did that take place here that there were not there was no written objection to the drug test outs of this condition so that this was a rebel in this instance there was a complete revocation of supervised release right correct what's the significance of that in terms of i mean so i this like a new sort of like a new new perceive i mean there's a new judgment that was issued it's called a judgment in a criminal case and it says that the court r kes and then it goes through and provides for imprisonment mandatory conditions which is drug this is where we find the drug testing correct right correct so this was like at the new proceeding the district judge was starting out with the notion that he had to impose drug condition unless he determined that there was no reason to correct  and we disagree for the reasons in the brief that the law of the case dr and applies here st of all there was no log no legal principle that the district court initially decided and that was a fact specific decision an exercise of discretion by the district court judge in two thousand and ten based on the factual record before it and there were changed circumstances an intervening period of nine years there was a new district court judge a new probation officer and defendant had committed theft for at least the course of a year stealing ten dollars to fifty thousand dollars from his employer and that relationship between the supervising officer who had been monitoring brown for the time you've been on supervision for approximately two years that trust has undermined by the acknowledgement by brown that he had been stealing all the while that he had been representing that he was in compliance by a bang all laws and not committing another state or local of that so it was the probation office that had got the concern and wanted the authority to task brown and as the court has noted this is not a situation where he's been subjected to a number of tasks and that's you know in his opinion be just record allowed probation to test up to four times per month would you say about the excessiveness that is not excessive in the government's view this court has found that up to eight times per month of random testing is not error and so this is half of that amount and it is cases such as that has there been a history of abuse in the case where there was up to eight months eight times per month yet i don't know that there was necessarily a history of abuse but i think putting this in the context of the drug testing condition this court has held that even to impose that condition there does not necessarily have to be a documented history of substance abuse and it is but we're going to the next level the frequency correct as the the court has noted in the argument today if the defendant believes that it becomes excessive then he has the opportunity go back to the district court and challenge the number but in our view the number of four times per month is not excessive that's not an abuse of discretion it's simply authority vested in the probation correct because we believe that there is a sufficient nexus between his crimes and the use of a computer for instance to justify the imposition of the search condition for devices that are connected to the internet same for monitoring now the court has noted that if there were any concern on that issue the government has suggested that this court might because we are in the context of plain error and we're looking at the  potential fairness and integrity of the judicial process as well as to certain extent conservation of resources this court to the extent that there would be a concern on the monitoring condition could limit the monitoring condition to devices connected to the internet that's exactly what this court did in queens on similar they this court took that action and god are to limit it this defendant is not shot he's not afraid to step up and challenge directly and or through the attorneys that have potentially subject to a broader interpretation of the panel in erkki decided that the more appropriate reading would be not to read into it in an overbroad interpretation that it should be limited to the condition to be read so that it was no greater restriction on his liberty than recently necessary and so that language was proposed in the decision and nervy and this language in this condition that this probation officer proposed in the district court imposed tracks almost verbatim the language that was suggested by the panel and nervy so as judge pius has noted that probation office does take note of the developments in the law tries implemented those and in this situation did exactly that so we don't believe that it is a problem and to the extent that it is as the th circuit did in the my case in the th circuit  what do you have to say about that murky decision effectively changing things i don't think what nerk e focused on is the definition of sexually explicit and how you couldn't use the child porn definition for adult materials it didn't focus on the problem of including writings such as you needed for your case or such as you needed for the treatment murky i don't believe address that at all nor he was talking about the sexually explicit material definition you put on top of whatever the defendant couldn't have so ne dealing with a different part of that issue and not the part that we're complaining about here the years you guesting if you get  o play near impediments and it does require remained for that to be revised right in her bring it around the problem is not sufficient i think so and and on all these things i frankly think a mark makes more sense to send it back to district court so the district court can have some back and forth with the attorneys and the probation officer about what the possibilities are and sort of hash those out i think that's more effective than this court going back in chambers and judging with the best last i didn't want to make one other point about the drug testing if the court's not inclined to go with me on the general no drug testing at all that really all the government has to hang its hat on here up to four drug tests a month goes too far when there's no evidence of drug abuse and i would submit that the fact he has some sort of prescription medication without knowing about it being a particularly dangerous type of prescription medication like  available yet to think your honor st of all there's nothing for a supervised release revocation there's no procedural requirement of a written objection before the court appearance nd of all the objection was made here at the have said well what's that got to do with anything because as i understand cholesterol medication there's no risk of abuse from that so and then if there really was some question about whether that was an abuse prone type of medication then the judge could put it off and come back but there was an objection here and there's no procedural unlike the original sentence in context where there's a rule thirty two dollars for procedural objections with time frames and so on there's not in this context so the objection at the time was enough ok thank you