so we would respectfully submit that a reversal is required in this case on the following grounds first of all the district court lacked jurisdiction over unsupported by a sworn oath or affirmation there is a note or affirmation right in the middle of it and so you're just saying because it's not at the end of it that therefore that invalidates the whole thing well it's not that were without an oath or affirmation it's just a question about its placement right yes your honor i guess that's the argument that's been made by the government and what we would submit is that for example in the  their own requirements and what we're saying is that in this particular case the facts that were submitted in support of the no bill warrant were not sworn by karl is there any evidence that it wasn't that that document d was not sworn and i think that's a major difference in this particular case if we were to go the way of saying well as long as it's in one package then what's to prevent anything in the record if it was filed in the same day or contemporaneously or or even within the period of a month from being used to say well somebody made a sworn statement somewhere and therefore that should justify our overlooking the fourth amendment finding some other it you have to have a comply with the fourth amendment and then he then went into the interpretation of that particular statute which says that the supervised release revocation  after the end of the supervision period which goes beyond what what might otherwise be the case and then he said it well in that particular case judge the sheema specifically considered schmidt and found that it was not applicable and in fact schmidt as i recall was overruled on other ground well i guess it would be fact specific but in this particular case where there is a war that was involved in the war and procedures have to be followed i think the cases that you're referring to are the ones in which maybe there was a warrantless arrest or something of that nature where there was probable cause that the time to rest someone on the spot here we have a situation where a probation officer is saying that someone did something and not actually seen something occur before him he sits dating specific incidents that occurred that he believed requires a finding of probable cause and in this particular case it was  to address the statute which extended the revocation period piece to the bottom line it's the facts are not exactly the statements of my ass so what you're saying is if we did apply it it would be an extension i just heard the word the reason for this is because first of all in the original super bowl conditions of supervised release there was something about drug testing and when the court imposed that judgment in this particular case it simply said think i think the court still is intitled to find plane error in this particular case especially where it is clear on the record that there was no history of drug abuse and also because it's a very awkward question in general i have a kneejerk reaction to that as a prosecutor but did the short answer is no i'm not conceding that the warrant was illegal as your honor has pointed out there was an oath or affirmation here the only question i guess is its placement within the document it came right before the judge's signature which was presented as part of i believe a package to judge gilmore for her issuance of the no bill warrant but your honor without even getting to that issue i would submit that the court has jurisdiction irrespective of the validity of the arrest warrant i stand before the court in light of the recent vacation of or to know he read off which i advise the court of by virtue of the twenty eight j letter dated monday i stand here to basically urge the rather un remarkable proposition that a district court has jurisdiction to conduct revocation hearings during an unexpired term  supervision if the court were to find otherwise it would seem to turn the statute on its head thirty five eighty three three gives the court general jurisdiction to modify to handle any kind of revocation proceedings during the term of supervision there is nothing in the language of the statute that conditions that jurisdiction upon the humans of a valid arrest warrant supported by an oath or affirmation i might point out that even in the absence of or to know  upon a violation of supervised release if this court were to extend vargas in the way that my friend asked the court to do in essence it would make thirty six zero six meaningless because what you would have is a situation where a probation officer could make a warrantless arrest but then the court would be powerless to act upon the violation supported that arrest i think the statutory scheme contemplates that during a period of supervision the court has jurisdiction vargas someone is an exception to that general rule because in that unique circumstance the term of supervised release had expired and in order to bring the defendant before the court  the court relied upon the subsection of thirty five eighty three that allowed for jurisdiction in quote delayed revocation here it's that is not our case here i was saying that we don't need to reach the issue of the but that the court simply has jurisdiction and i would ask this court still to find on the drug issue he are doesn't appear to be any evidence from the record that he's ever abused drugs he's not he i don't know his exact age but he has an adult daughter appears to be probably middle aged  just works a lot of different jobs and he can be tested up to eight times a month why wouldn't you know how do you justify that well first off your honor i  your view i think it's inappropriate to reach back to a sentencing that i think occurred three or four years ago and incorporate the objection i would suggest that since he was explicitly asked do you have any objection to the condition about to impose and he said no then obviously we look at plainer now applying that standard first off there is a statutory requirement that mandates the imposition of drug testing and that is i believe thirty five eighty three  the court is empowered to waive that upon a finding that such a condition is unnecessary it is not required to waive that condition and in fact in two cases the jackson in the quarter case decided by the circuit this court upheld the imposition of drug testing even in the absence of evidence of drug usage and in crimes not involving drugs and i believe judge nelson was on the panel of the carter case i think the same trial saw him at other proceedings imposed mental health counseling as one of the original conditions of supervision i believe that was reimposed on the second term of supervised release if your honour's look at the record here approach showing deference to the lower court it's very clear what's going on here is part of it is a mental situation with the defendant an attitude towards supervision an attitude towards paying his financial obligations i don't know but how does that into you know he there's no indication he's ever used drugs you know so making him go into ice a week when we want him to pay restitution that could technically being a little disruptive that you are first off if i  correct one item it does not require that he go in twice a week it requires that there be drug testing at the direction i believe in the probation officer in an amount not to exceed eight times a month that is the standard in our district now in tested you know since it's a mandatory condition that the court could have waived he never objected it's a plainer review the eight doesn't mean that there was a and probably more fundamentally assuming this court finds a district court continues to interfering with my work and you know you want me to pay restitution so and i've shown for two months in a row at this that i don't have a problem yes your honor that's certainly a remedy but i have great faith in the system and i think if that happened they would stop drug testing i don't think it would require a hearing and contested arguments but my point being i don't think that is an appropriate issue to be raised in this forum particularly on a plane or small districts like oh i know when i come what about this no he's complaining about another thing he's complaining about having only one bank account and it seems to me like that might be a pretty reasonable thing if you want to monitor his since he seems to have a problem about other people's money that it would be reasonable and if the case is way to monitor him to get it all into one bank account where you could keep an eye on i wondered i would agree entirely with your honor given his history of dealing with other people's money in the underlying bank fraud case and his problem in accounting for his payments and making restitution i think it's reasonably related to the purpose of not only unfounded and again that was not objected to at the time of the imposition of the commission i would suggest that all of the financial conditions in fact are reasonably related to the need for deterrence for example the tax condition s given this defendant's history of dealing with other people's money i apologize i have lost my train of thought but i believe i was just arguing that the financial conditions given his history are reasonably related the probation officer suggested and the court found that he was over withholding to the point where no taxes were being withheld he was already behind and restitution it was likely that he would be in arrears on tax purposes and fall into further trouble i see that my time is up i don't want to go into an overtime penalty argument please the court do three things first of all with respect to review a case that was clearly limited to its facts and the be found in the particular case had already been arrested at the border he was so the solution was whether or not condition is not helpful and in fact is from left field which it appears to be then why have it because basically what it does is again so it's up to defend and for failure a drug drug tests that were imposed would not only and i guess my point would simply be why have it if it's not necessary and just clog up the record but again if the probation officer wanted to really set the defendant up for failure would be very easy to do that by simply start from hawaii to san francisco