jury has found as much as your honor these difficult questions very difficult questions are exactly the kinds of questions that congress attempted to steer off in this context by fixing a bright line of eighteen months limitation on this wants to pull back on the powers of the courts particularly to to run their own business which includes sanctions for ford not a bank the court order then has to be very specifically drawn out lee will not employ from general language in the statute right so the government relies heavily on a canon to be a fact your honor it states and i think it's important to recognize the backhanding applies to a threshold question which is power fixes an eighteen month limitation and it's the contrast that would say rule forty good the rule of civil procedure that offer arises motions to dismiss for lack of prosecution one meeting decision held well that doesn't limit court's authority to dismiss sewer sponte for lack of prosecution and in determining that that that particular role was supplementary rather than restrictive there may be a can in the plays a role but in this case by fixing an eighteen month limitation there simply can be no debate congress intended to limit serious will power the only question is when does that factual choir does it not and the michelson decision which also concerned the right to a jury trial and contempt proceedings for supreme court stated unequivocally that in as much as the intent to limit your usual power is evidence that the words of a statute are to be given they're playing an ordinary meaning and not to be construed supreme right i don't i don't think the distinction i don't think the fact that this proceeding was instituted by a wall forty one search warrant application means it's not a court proceeding it is still a court proceeding congress use terminology that it's hard to imagine could be written any more broadly it said any proceeding before or ancillary to any court or grand jury of the united states it meant to speak of any judicial proceeding federal judicial proceedings and it meant to limits the federal power to confine for civil contempt not criminal contempt but civil contempt and the case of a witness called upon to provide information to eighteen months time how is it a judicial proceeding in this this is a well this is a matter of the contempt power it constituted your dish will proceedings by means of a search warrant out but it doesn't have to be a judicial proceeding prior to the request or a contempt rule now that's exactly language that is certainly nowhere to be found by any means and the statute which simply refers to any proceeding before any courts or grand jury of the united states it says nothing like prior to there is certainly there is absolutely no limitation like that in the statute so i don't understand how when we think of what a warrant is we think of it as accords exercising independent judgment as to whether or not a party the government has made a showing of probable cause sufficient to support the war fights the court is acting as a court and it's a court proceeding that's constituted by a search warrant application that proceeding ultimately comes to an end when the warrant is returned pursuant to rule or you want to have and then filed with the clerk pursuant to forty  surgery their new your definition the court proceeding would be ongoing throughout all of the i would say there in this situation there is first a proceeding on a search warrant application it comes to a conclusion and an adversarial proceeding it was already a judicial proceeding there had been an application to a court for judicial process to issue the government says that this situation of my client having been confined for nearly three and a half years without a jury trial without an indictment should be permitted to continue indefinitely and it's a very troublesome situation i think reflected in the questions right off the bat it's such an unusual case and it's hard to know how to get your hands around it because indeed so congress recognized that it wasn't i thinking about encryption but it was thinking about the contact of civil contempt and persons were confined under orders of civil  titian for release on the basis that it is been demonstrated that the imprisonment has no chance at all of producing the desired information yes i think there is potentially an avenue to really through showing that the environment has lost its course of character because it's simply not going to compel compliance and that determination of whether up one has been reached occasions very very difficult factual determination to be made whether the person is able to comply so in this instance what's in the head of a person whether or not he can remember the passport and whether the person is so resolute and noncompliance that further confinement can i would suggest used to have to do both but if we want to look at it as he's simply being asked to supply the contents of the machines then that is certainly information as well the statute specifically refers to information comma including any documents records or other material and the legislative history says that language was intended to cover electronically stored information one hundred seventy congress about so to my mind he's being asked to supply two kinds will from a nation but if we what she had seen on the east exterior hard drives you might have a better fifth amendment argument but but the prosecution those what you all know hard drives they've had a verbal description from the sister of where she is seen on the hard drive so does information they're simply he's asked to provide the the laptops the computers with this the code entered so that be back in his pocket and we the government has to know and told us that it has no interest in this password back but that's not even with your head also the analogy if we're going to look at it that way would be how in bring your key open the  his freedom was in his pocket maximum it was not content to permit indefinite confinement to stretch on continuously based on the key to his own pocket maxim and judge the boys i bank and his own parents and harris sets out that position involved in his case and chadwick the state court had found that mr chadwick was able to supply the two point five million dollars he was being called upon to transfer to a matrimonial account and the district court also expressed for the record its conclusion that it was persuaded that mr chadwick was able to do that here the district court acquired a burden shifting framework to hold up the government and satisfied its burden  demonstrating that knowledge and that's a lot of the case at this point but there's a distinction that nobody's ever been mooted that they're able it's not i'm contested it is in fact contested the only thing there is not is testimony but there's been a here and see if i can get out some other way but i would not open the computer because of what he's facing so in that if we were going back to the beginning of this case i would say we have a big argument i'm just wondering what are not in that situation this avenue may no longer be available in this case because my client has already been imprisoned her for in half years but if we were starting back at the beginning and this eighteen month limitation had been respected become would have a remedy at that point and that it could bring criminal though we've got a much britain who became adversarial as your honor pointed out earlier when there was an application pursuant to the all writs act and in addition wolf forty one in addition to the fourth amendment structures of proceeding and that it fix the congress says that it can't amid the legislation if it's so desires i don't see it other than stating we mean passwords i don't really see how the legislation doesn't already plainly cover this it speaks of providing information and well if we if we should rule that it does not cover this then it is possible for congress to amend the legislation if they  cap of eighteen months however this case involves images of child pornography in the computer and it would seem to me that if we were to agree with you which should be setting a precedent for anyone charged with if an offense like this so that it would have a convenient lapse of memory regarding impasse where i would rather stay in jail for eighteen months and be facing fifteen years once these images are in the prosecutor  so that's what i'm looking for going to be you could senators fire my conservatives that's what i was trying to do earlier by referring to be availability of a criminal confab sanction so in that situation the person can be civil he can find for eighteen months if he's still haven't the but here mr wells has never been willing to do that with his counsel told the court if this was recent hearing he said mr ross does not wish today even to put on evidence to his lack of recollection of the passwords or to attempt to enter the passwords as i see it those would be two words out of contempt and no he does not wish to avail of self of either option at this time he has the key he has the power in has the ability if it's true to say that  says don't write your password down i didn't i don't remember the password was then what it that's why we have district judges and the district judge will make a decision if that is true then the contempt will be over and he'll be he'll be released on the other you may not be clear evidence as to the age of the person but it looks like you could pull that that's a minor on the telephone wire plaskett the guy is very likely that the government will prosecute if this is the only evidence that we have but as the court well knows we have one opportunity we have to prove our case beyond a reasonable doubt and it's completely appropriate for us to make every effort to gain all the evidence we can if it clear saying you want to hold the guy in prison for having heaven knows how long even though right now  say ok that's past you well two things one is i'm not saying that we have a strong case and we have to consider that but second we don't want to keep him in prison that's never been opposition here we want him to do what he united states district court has ordered him to do and as of now has not been able to it's because of the sophistication of the password the length and complexity of the password that doesn't mean it's not an easy thing for him to remember the phrase or code or whatever that he used but the f b i has not had success despite continuous effort that's why i can tell you as of now my even support his argument if it's if it's a password that you layered several times and involves what it ever might and i don't think this is the i'm happy to argue and i don't know that this is the right forum given the way it's been presented for us to argue whether he were members the password or not there are certainly inferences the commute drawn what we know in this court has said many times in child pornography cases is that these offenders tend to keep this evidence for a very long time it's important material to them it's you can draw inference or from that point material for the government sure b to draw inferences from that that he knows exactly what the password is the now of course he knew it at the time he showed his sister but again i don't know that this is the kind of argue that would be the question here is is the district court correct in holding him in confinement lafe to punish him not to say action him for criminal conduct but to coerce his compliance with a lawful court order  has said this over and over and over again the courts have inherent power to to regulate the proceedings of from the court and the congress certainly can limit that inherent power because the courts after all are creations  proudly interpret the statute that's now it is supreme court has said what has happened in chambers in all these other cases over and over the question the you have a congressional statute that affects the exercise of the  argument is then made congress has preempted the field it's over there's no longer any inherent power left chambers involve sanctioning attorneys for vexatious conduct before the court and so the argument in chambers was that said now that we have a rule there's no place for any other exercise of judicial power and the supreme court has consistently rejected that and said that you know if you look at what congress has done but that's it you don't assume that it has then occupied the field here if you look at this statute it does not talk about a search warrant proceeding and the district court hit the nail on at the what it when this statute says the person is held in confinement for the life of the court proceeding or of the term of the grand jury that bears no relation to what we're dealing with here with the district court correctly said in this specific context section eighteen twenty six cannot apply because the sex trade witness but then you see court proceeding before a court you say ok maybe and then produce information maybe but you look at the statue as a holy get to the part where he's held in confinement for the the life of the court proceeding or the term of the grand jury that's when you start to see this narrow and then if you still have any doubt you apply this interpretive principle which is that we're not to lightly assume the congress has m limited way what harris show it's not this case is not compelling somebody have turned over a password but what harris does it least example five is that eight hundred twenty six there's not preempt the feel if eighteen twenty six were the be all and end all of civil contempt and fine then it would apply it would control hearings as well as everything else so that's a very important statement in harris that eighteen twenty six it has some limit it doesn't apply to every civil contempt and then our position is that it doesn't apply here and this is where we get into the benefit the mr ross is obviously aiming for it doesn't want the government to see what's on the computer because of the potential penalties and what that illustrates is how badly eight hundred twenty six would fit with a criminal investigation that's what we're dealing with here doesn't in fact mr olson control the length of this court proceeding because this is a court proceeding miscellaneous action on a search warrant and until the search warrant is returned so intel he and abel's search warrant proceeding to be completed by producing the unencrypted hart computer the proceeding continues and he holds the key to the end of the witness as eight hundred twenty six says and as i was saying what we're dealing with here is a criminal investigation which doesn't have the same limitation in the ordinary course which has a specific why why was it not for the city of  to testify or produce information in a court proceeding or in a grand jury proceeding and there's no indication here the congress met to further address this to the situation we have here and b what the supreme court has told us is we can't lightly assume that it did the criminal investigation is different trials come to an end grand jury terms come to an end criminal investigations can go as long as the statue of limitations and in fact there is no statue imitations for the crimes that mr brown's may have committed and so as you ask that question very interesting question and so would actually be odd for congress to put this eighteen month limit when it has an active longer statutes of limitations and in this case no statute of limitations at all and so if someone suggested earlier this could be a matter for congress this is a policy debate that we're having but right now it's this court's job to enforce this statute and this statute as does not clearly apply here it should be assumed not to at some point some decision has to be made if mr rolls just hangs in there aren't on this idea that he can't open the computer and maybe situation before no one takes pleasure in this but there have been people before this court and others who've been in custody for this sort of thing and i'm actually passwords but other contempt much longer no one takes pleasure in what this court has said over it then he should be released but that he needs to make that argument to the district court he purposely did not make that argument because of what we're discussing right now his counsel represented to me that i should be released because i just can't on their proof he perp and will respond as we as we see fit but he's never done that so that's not the issue before the court so yes he does in that sense he has the key as well if it's true that he's the unable to comply prove it what inquiry into metaphysics which is what this is someone remember something it is than i was a specific intent to kill i do cases very very different inquiry but this is an issue of knowledge and state of mind and i would suggest that it is a factual testify i couldn't hold that against him under the fifth amendment then we had a whole other kind of fanciful inquiry i don't see it as an unusual proceeding your honor but again it's not before the court because he's never a thought i mean obviously we haven't have to resolve that i do think this would be evidence of consciousness of you know like it would be that the government would seek to introduce at a trial the fact that he refused it despite a court order to produce the password so that statutory construction and i am grateful that the court is grappling with the difficult fifth amendment questions and question a perfect list are also sitting in prison to have review of whether section eight hundred twenty six applies here i found it notable that mr is outright i think and admirable candor conceded that there is a judicial proceeding here and also made plain that the government's construction of the statute relies on a canon and relies on workings of a whole statute and is not very much ground in the t the government refers to the judge rock asked about at the outset of this proceeding is addressed at pages twelve to fifteen of our reply brief i'm not making a novel argument today and i would stress to the court of the comparison between say the michelson decision and the chamber decision that the government drafts chambers did not hold anything about occupying the fields that's a misplaced concept here it held that while sometimes congress might an act a lot of supplement traditional powers and provide a mechanism that's similar to one that already exists when it does that it's not preempting the powers but in this case where congress is fixing an eighteen month when we take on and find it clearly and hands just as this fashion michaelson events  one we are sitting waiting for him having the keys to terminate the court proceeding in his pocket to do so if that's a concern it could be expressed the congress congress at by congress to include implications for a search warrant to my own mind the most persuasive thing in legislative history is the congress repeatedly spoke about information needed to move forward an investigation that has this power the civil contempt power would be exercised when a person was withholding information needed to with to move forward investigation that appears in the senate report which is written by the drafters of the original bill and we cited in our recent so in that sense this is analogous to the situation before a grand jury you need information to move forward in investigation i think it therefore was speaking about the situation where a contender is frustrating a proceeding and congress recognized in