the honorable judges of the united states court of appeals for the four circuit oh yea oh yea oh yea all persons having any manner or form of fitness before the honorable the united states court of appeals for the  it please the court this is krista libby appearing this morning on behalf of paula glynn hamilton jr mr hamilton argued in his appeal that certain special condition attached to supervise release term upon completing a one hundred and twenty month prison sentence are overly restrictive overly broad and mr hamilton challenges three special conditions the physically a restriction on employment for his low life time a restriction on argument for each one tell me your complained about the fact that the way in which the conditions are framed or a complaint about the fact that it delegates too much discretion to a probation officer which one is for each of these we do believe that  the discretion is entirely placed in the probation officer at noon and there's there's no clue for mr hamilton as to what activities the probation officer or multiple legitimate there's very little d question your problem then is the way in which the special conditions are framed that it's good it's that is too broad yes you're right well let me ask you this let's just take the employment restriction certainly how would you make that more explicit government makes the point that we can't go to listing job by job by job of what you can do and what you can do so tell me how you would make the employment restriction more could apply into jobs where he would come into contact with members of the general public for example if the courts concerned were making sure that he were not able to  ry on children which i think is the concern here then when a perspective job could potentially involve interaction with children that would be one way to to you know carve out the restriction restriction was overbought would need some guidance because surely i think is your last answer indicated you agree that there are employment restrictions that are valid such as being in contact with children but i would also think any job that gave him access to information about children would be covered how specifically would you write an employment restriction that you think would be appropriate here let me back up he would need prior approval from his probation officer for a position that might involve him encountering children what about it what about if we flip that around and instead of giving him the ability to make that threshold determination what if the restriction that he could not entail employment without approval from  information about them that would then with that be sufficient yes your honor that a further explanation is the sort of thing we're looking for and so you what you really say is it be fine to have it but you just need some guidance to the probation officer i just spent we all know that's what the probation officer would do anyway but you just you believe it needs to be spelled out yet your hon the probation officer that he happened to be assigned at the time you know refused to allow him to work in a manufacturing facility where there were no indications the children would be president or there was information about children available  working down at the plant so i have that that release is still available to him right yet he can ask the court to modify the terms  can seek modification does it require some kind of unforeseen circumstance or can it be any going to be any decision on the part of the probation and my view my understanding of the situation is that there has to be some sort of change in circumstances that lead in a parent to be able to modify our petition the court to modify the terms of his supervision can't have the judge micromanaging all of the supervisory loose conditions because that's what probation officer look for so let's suppose the special condition is reasonably framed facially especially reasonable and bud you have an issue with restriction applied do you have a judicial recourse in your view for as applied challenges to a restriction or are your are your to to impose these conditions in order to protect the public well what about protecting the public in this case that makes that separate this case from others  is not the degree of the discretion that the probation officer enjoys which it seems to me is part and parcel of any kind of supervised release regimen your you you've addressed the employment restriction but there are two others is what's wrong with that well that in my view the lifetime restriction internet is is also really broad and i believe that he may have st amendment concerns as well again here we have no idea what activities the probation officers might qualify as legitimate there's there's things like him wanting to read about current events or communicate with family members who maybe ar restriction the internet restriction clearly has a vexes to ascribes here because he relied very heavily on the internet to perpetrate the offenses that he did  so you've got a very clear tie to a restrictive use and unless you've got some specific example of pal this could and should d be  modified i'm not sure how you could prevent him if he has access to access to the internet from just doing again what he did before my time has run out your honor but if if i quickly there's also a restriction in place that allows for computer monitoring and if he was accessing the internet using and accessing his victims using only social networking th provision supervised release would prevent him from being able to access social networking websites not simply preventing him from using the internet  entirely could you speak of modification of that over time let's suppose there is a three you know a five year period of good behavior and good you go back honor i don't know what social networking is going to look like in ten years when mr hamilton is released from incarceration if that's indeed when he eventually does get out of jail protective order use the internet to pursue the victim even after the protective order had been issued so it almost  there's a determination here that sort of defies determines i mean i know there are a lot of there are a lot of court decisions out there that do not  say that of internet restriction is overly broad but they didn't involve quite the facts of this one where a fourteen year old girl was kidnapped and  the internet was used for more than a year to communicate with her and she was essentially raped repeatedly a new organ in your age and you had quite a collection of all nude photographs and sexually explicit videos and and not only was the internet the instrument of this crime explicit videos and to solicit nude videos i mean it was like the internet was his whole modus operandi instrument of of  there's almost an addiction to using the internet in this fashion and the me of one of the one of the chief goes of supervise release is to protect the public and that's got to be are a major factor in the conditions on supervised release why don't we just sort figure back on the judge ages point why isn't this why isn't this reasonable in a district court has to have some disks some discretion we can't we can't squeeze discretion out of the system i can see a different set of circumstances where the internet restriction would be overly broad and overly onerous but the problem you have here of of the fashion of what he what he did in those other cases don't have a powerful  that this one does that's a that's a problem that i'm having with this particular condition maybe you could comment on that i would like to your honor thank you i believe that our argument was that the interment issue specifically would be different if he had not been given a lifetime of supervised release your honor internet for this purpose i mean isn't there the possibility of modification over those circumstances yes your honor and i i also think there is a definite possibility that he could receive them programming in some therapy while he is incarcerated to help him with with this issue the sickly i also think that there's there that there is a like a blanket interment than is  problematic because you know if it appears in this case it's going to appear in other cases to where it might if there were it might not you know i don't believe that this is a clear cut case is that a definitely clear cut that this is  is not overly restrictive but i think that that there's other cases where it certainly will be and will be arguing and wasting the court's time and asking for a modification after modification the only point i'm making is that if if if i were mr hamilton i think what i would do is i would enroll in a fair r p course or undergo some kind of you can do this while incarcerated you can do it while on supervised release and  roll in a particular course of treatment and therapy and stay out of trouble and then after a certain number of years go to the probation officer who would have the who has the permission to allow him to to actually use it and if that doesn't work out maybe you could go to the court but what i'm saying is doesn't a certain amount of responsibility lie with him to prove to the probation officer and the court that he actually could be a responsible user of it and i just wonder whether the responsibility doesn't lie with him was initially to show some bona fide is rather than us sort of overturning this without any demonstration  that there's been a change of behavior or a change of heart deterrence protecting the public providing training and treatment and we believe that the they call is no greater deprivation of liberty than is recently necessary  looking at it and i understand the port spent considerable time talking about the employment provision i know that the court did an individualized assessment of the a post within a considerable time in this case discussing his history and characteristics as well as the need to protect the public from for the crimes i know that judge wilkinson spent some time talking about the facts being powerful in this case the determination of the opponent powerful in this case i think that driving factor for the court particularly when it looked at employment and looked at the computer use restriction and the court didn't know that it would have a difficult time i think the way the court phrased it was it would she would be also a judge richardson made a very good point at the beginning of the argument is why don't you turn it around and say the probation officer show approved that doesn't involve a job by job listing but it would be something that's more explicit than what we have it present if we if we simply tied the permission and say yeah you approve of this unless the job involves regular all private contact with the children because one of the purposes of be become a bridge between for scale incarceration and an unrestricted freedom and so you have to balance those two purposes am bomb if you just have a blanket him on the road to become a responsible citizen there is that dimension of supervised release and that is if you want your wanted to assist the transition to responsible citizenship and i'm not sure how you do that if you're just have a blanket restriction willy nilly on on any on any kind of employment or at least subject to comment at the beginning of this discussion and i wonder why you would you resist that kind of that kind of formulation i will admit your honor that i was not offended at all by judge richardson suggest discussion with a poem about the concern for contact with children and i don't know that given the facts of this case our concern should be limited to just interaction with children looking at or looking at the appellant's work history and his vocational skills one of the things that was of note was that he has a history of inappropriate sexual behaviors to include touching by female peers  sexual manner and he also initiated inappropriate sexual interaction with school years and staff being the associated he enters never initiated interaction with his with his with adults and his peers that's right as well as when the phone dumps were done as part of the forensics in this case there was evidence found of communication he was having with a with an adult who was of low intellectual functioning they're found judge richardson suggestion to be instructive but i think the concern for the government would be that the restrictions would only be tailored towards also people in the peer group it did not that was just part of the vocational history that was included in the p s r and a note from his parents that suggest that they had great concerns he would he would have difficulty living successfully within the community i agree with you judge richardson i think a very crucial part of supervised release is the bridge between incarceration and civic responsibility being out in the community being productive and yet it's important that is a very important role that probation plays in assisting them in that regard but i even though we recognize that this provision that this condition got there d is that might be a reasonable sort of conclusion and you give a pretty good explanation of some of those details but when i read the judge's explanation and including non children maybe maybe not right but the challenge i've got is i don't see that sort of specificity tied to this restriction in the explanation that the court ga explanation but it least we would have to say there's not enough explanation for this kind of brought on on the record that we've got below it help me understand why that is wrong or that you know maybe you maybe don't fine but it seems like to me to work history the court described is actually the condition actually imposed you're right your honor she doesn't put a negative spin on that at all she is she's noting that he's been independent but i think when you look at the work at three obviously she's she's noted work history when she made that finding she would of being that he's a nun skilled labor he's only had deployment in the food industry applebee's mcdonald's burger king c c s and looking at that work history particularly as it relates to the children he is likely to continue to interact with victims that potential victims that fall into the category as i'm making for the court right now the court has a bailable to this record so as your honour's also do it was part of the p s r court refused and this record you have brought discretion and and if you're heavy employment restriction at broad d themes like there's well almost no job you could get  because you would you would say well he has this particular weakness and i'm proclivity and you know what what i'm worried about is is it is a restriction could be so so broad once we leave the focus on children that it could prevent this man from getting any any kind of work and you know maybe there's an evidence sherry basis for something that's a minor and you know that unfortunately in these sex offended in the sex offender cases the sickness  tends to relate to child pornography and that is the kind of thing that congress has expressed special concern with and so i have some nervousness about broadening it because they would keep him out of work altogether and it wanders a bit far from the  because it's better that i have more information rather than less so i don't object to the use of the p s r in formulating conditions or supervise release but  not i'm just not sure i want to based on the record that i have i'm not sure that of a blanket restriction  also something that is subject has no guidance on the probation officer has discretion that seems to me to go pretty far your honor eleven thing i noted in my comments was that  i was intrigued by judge richardson's suggestion of leaving the condition in place and adding probation shall approve employment unless there is and i think perhaps one of the ways to keep it restrictive and continue to allow the appellant to have some interaction with probation and making that determination is that any employment for him that involves interaction with minors vulnerable members of society and i wouldn't i would say that that would include lower intellectual functioning elderly individuals who are vulnerable and not capable necessarily of  protecting themselves or employment with access to computers and that for information relative to children is a way to achieve the goal obviously we want the public to be able to work but we also want to reduce risk to reset as recidivism and we want to protect the public those are equally important goals of supervised release not just you know the bridge to success but keeping the public safe while we preach that success lady has some rebuttal time so i would be pleased to hear from her supervisor at least he would have to receive permission from his probation officer in order to work for his father he wouldn't come into contact with any other members of the community and he'd also be that the mirror mirror idea that you can come up with some thing that a probation officer who was malicious and arbitrary could do is sufficient to invalidate a condition honor i don't believe that under the current i mean there will be nothing malicious on the part of the probation officer but under the current terms of the supervisor at least it's an employment that he'd have to get permission for i don't  i mean you know regardless of mr hamilton's relationship with the probation officer or the probation officer position towards mr hamilton it's employment and he must ask for being monitored by a foster father and you know away from every every other person in the community but that is an employment you have to get permission