good morning my name's deans hindered and i'm here for there's only one issue in this case that has to do with condition a supervised release to the district court imposed a condition that required mr malone to take any medication he's prescribe during the course of mental health treatment on supervised release that condition intrudes on mr malone's right turn to right not be forced to take on wanted psychotropic medication so to impose the condition a court had to make particularized findings that there was a compelling need for it the district court didn't make those findings in this court should therefore vacate the condition and remained that's the essence of our argument and and i would like to are well there's a dispute about that between the parties i admit robin error of there was an objection the government argues that there was a waiver so an intentional relinquishment of a known right as it's supposed to just excusable neglect that's based soley on the fact that the court said i'm going to impose the conditions in part b at the priests in its report and counsel said he had no objection that doesn't amount to a waiver of this issue because it isn't even shown awareness on counsel's part of the need for additional findings all it yours this is such an interesting situation where both of you essentially agree well if if if it were narrowly interpreted or if it had to modify this condition it would have been without objection the district judge would have presumably excluded the possibility of so i could probably medication instead of having an appeal that and i don't mean that critically well gee koreas i mean maybe that could have happened at the district court level you know my office of course got this case on appeal there is some dispute between the parties on whether or not the condition can be narrowed i'm not sure i mean i don't want to speak for mr brown but i'm not sure he would agree even to i mean it doesn't sound like any way from his briefs i remained for the court to correct it it wants this court to kind of narrow it on appeal without reforming the judgment itself i mean we  personally think that the the written judgment should be amended and you're right the district court could do that it could do that henri man maybe he could do it in a motion to modify it if the government would agree to that but a decision from this court just narrowing it or just saying it's you know reading the psychotropic medication piece out of it really isn't adequate to protect mr miller's interests we do think the judge has to be rewritten but i take your point that there are two ways to get to the same place but i'm just not sure the parties are in agreement mr brown i'm sure can speak to that as to whether or not he would accept that remedy that would be fine with us it accomplishes the same things exactly as you said you disagree and waiver we disagree on waiver how does that is that it's a disagreement but just going a little further with this maybe it be helpful for us said earlier when there may be some disagreement on their own where is the remaining disagreement after we get past waiver at where the two sides and conflict are tension or potential conflict i think it's i think it's on the relief it's on the release what we want is it to be sent back for the district court to strike out the medication thing make clear it's not psychotropic whereas the government thinks it's enough for this court to do that in a narrowing construction an opinion we don't think that's sufficient because we don't think that's sufficient guides for the probation officer when he's back on supervised release relation officers go by the written judgment the conditions there written by the court and if those aren't changed you know and an appellate decision you know is it's the book what the law is but a probation officer is not necessarily going to know what to do with that because any medication includes psychotropic medication this is part of a mental health condition it speaks about mental health medication i'm not a doctor but i'm pretty sure most women talk most mental health medication is psychotropic medication in nature i'm not sure i see anything more ambiguous any ambiguity mr berger submit to a sex offender mental health assessment in a program of sex offender mental health treatment as directed by the probation officer until  treatment they can take place under the umbrella of sex offender treatment so for example this mcgruff testing he set up i don't want this condition requires me to take put this mcgruff testing and this course that well not on its face it doesn't it's a sex offender treatment maybe that require it maybe it does and that is an ambiguity because we don't know this condition is different because it says any medication and his mental health medication so i think there is a far greater degree of specificity here when in bar that the treatment that they were really complaining about wasn't even written into the condition it's just something that sometimes happens in the course of the overall treatment program that was imposed by the court but i've got another question go right ahead of course the least are you this but i was just a little bit curious about it what about the constitutional avoidance doctor now there you're talking about interpreting a statute but you know we have cases you know a lot of cases that booker would i suppose would be wise where the supreme court is said well we've got a statute it's broad and in order to prevent it from having caught unconstitutional ramifications we're going to construe that narrow in without language about really any ambiguity in the stanch is this is your argument about the require some ambiguity i think the statute is written that clearly are constitutional way to court either as to strike it down or how to strike it down i do think there's an ambiguity requirement the same way there is per se the rule of lenity or something like that to the extent that i'm wrong about that and certainly could be that but but but you know bear says for these conditions what is required for that for the narrow requirement you know that's part of this court case law so you know whether or not it's required for constitutional avoidance i think is fundamentally beside the point because the case while the strictly on point in this context does require ambiguity for an airing construction can be done ok you'll have five and a half minutes good morning your honor james brown for the united states your honors i'd like to i'd like to stark with the merits of with the merits and then of circle back to the waiver issue if i may on the merits the defendant has proposed a remedy of a clerical amendment to the judgment to make clear that the defendant cannot be forced to take psychotropic medication that he doesn't want to take he proposed that remedy in his in his reply brief and we would not object to that remedy it's just a clerical  to make a clerical change to the judgment what we do oppose is a remit to the district court for any further consideration of the issue and the reason is because our remain and we always get it's what happens in the district court is nobody ever complies with the mandate rule and nobody ever complies with the remained and you get tons of other issues that you sprout up like florida will bring so just a clerical really i mean all the time ok it's interesting it's true and for example i just had a case where the court room in it for a simple thing and then the defendant decided quality jail that he was a sovereign citizen raised jurisdictional issues raised the th amendment not a council issue and so we have a whole new can and it can in and i don't doubt that this panel would do that but in in many cases the mandate is drafted in in sort of a way that permits some interpretation and if there's any window of interpretation a new issue is going to write so we don't object but unless it's absolutely crystal clear and absolutely limiting new issues  use so you're saying is really that you do not object to us entering into water we are remaining for the district or to a to a man the conditions release on the on this provision psychotropic medication if that issue has not been waived would you not object to that and on the condition of the result if we if we apply a plain error you're saying you don't have an objection that's correct that's correct and we just asked that the order be extremely the mandate is the mandate be crystal clear and if the court even uses the terms other proceedings as may be appropriate that's that's going to give give rise to all sorts of new issues and what would be your position if the if this condition were left in place by imposing on the district court a requirement to make the specific findings that would be necessary for the condition what about something like that as opposed to a two and narrowing or clerical change well the court the court could do that we've not we've not requested that the defendant has not requested that and we're not saying that the good the findings that it should be remanded for additional or new findings we want the case to end and we think that it can in imposed and so i tried to wonder is this is is this a stock condition that's been used to these days it at st i thought maybe this was something tailored to this case but now i'm wondering if this is something that the courts more routinely using i think it's a stock condition it's been used for a long time but now you have a new challenge that condition and this is the new challenge in you know that the trend for the past few years is to challenge the conditions of supervise release and that this may be part of that trend but it's been a stock condition well it is it isn't it i mean maybe this is or isn't the case to clarify that it's an improper condition but it's not just that there this due way of defense attorneys general enjoying supervised release conditions we now have the aftermath of united states versus cell which the supreme court has been unequivocal in saying that it is a significant unwarranted intrusion into one's really interest to involuntarily medicate someone for the purpose of restoring competency and here we have a standard edition that is presumably being used in virtually all i positions of supervised release to say you can do it just if if if if if the psychologist gives you the strongest psychotropic medication possible is a bit you know you have to take it  he's not going to have a right to have to answer so if we don't have this they're prevented and forgive what the probation officer says to defend it i mean this is a this is an important issue and it's an important problem and it's exacerbated by the fact that it is it's not a special commission it's a standard so i don't know what question is for that but i suppose it is isn't it that the court can make at a sentencing hearing knowing that supervised release will actually be conditions will be come into play several years down the line saying i'm authorizing this in advance these psych administration  without any due process so we understand that if the court wants to make that statement or to make that statement we don't know that this is the case we just think the judgment can be amended but there as as judge matheson said there's we have another case i have another case the united states case where the same condition is an issue in and we're going to have to come up with a response or else the government's going to have to alert people to the fact that this is a problem and either get the fines or not asked for the condition is it fair to say that you can acknowledge that the defendant has accepted as a significant liberty interest at stake and we do acknowledge that just imposing a condition of supervised release to two that would that would deprive defendant or impinge upon that liberty interest at some indeterminate time in the future probably doesn't meet constitutional standards but i don't think we're prepared to make a concession in that regard today are anti depressant and anti anxiety drugs well as my colleague my calling them talked about the deaf i had the same question because they're really not the same thing and i said kadok drugs are much more powerful than a lot of things that come with in high depressant if that's what's included in side right and i wish i could i i'm not a doctor obviously i wish i could speak to that i can't my colleague spoke to that a little bit i had no reason to question what he said about that for example somebody t that just something it's you it's an item something but it's not an anti psychotic right so so you know we're not we're not we're not really sure where to draw the line on that is but we think that in this case we just don't have the findings for for that there need to be order to impose that that condition so that's where we're coming from on that like to touch on the waiver issue if i may move to that it's  was there the court said it intends to pose the condition referencing the special conditions of supervision and that included the condition we have here that you must take prescribe medications directed the court set forth its reasons talked about the nature of the fence in the history of p s r and then the court asked any objections and the defendant's counsel said no that actually don't we have to know that the defendant was aware of this particular liberty interest problem and then determine not to go forward with it for it to be a waiver as opposed to four which are well that's that's really what what what what the question comes down to and stated that way recurs where party deliberately considers an issue and makes an intentional decision to forego it as the cruise record gets case hero indication here that he considered the issue potential violation of liberty interest from some medication a might be prescribed that is true however there is an indication that he knew he that he knew he was giving up the issue of taking medic prescribed medications as directed it was it was set forth in the pre sentence report he knew that issue was there and he way that issue and that issue necessarily includes the issue that the court reference so the question becomes for a waiver how specific do you have to get the have to get to this subsidiary issue to the subsidiary issue to the subsidiary issue or you can can you just weigh the main issue and thereby weigh the subsidiary issues so and i will acknowledge that the defendant does raise a case the figaro a brought a case in his reply you know where the court's reasonings does seem to say that that th even an obvious objection where the waiver doctrine should be applied shouldn't be applied so maybe we're just asking for a little clarity how specific do you really have to get but here he did weigh a condition that says that he has to take medications that are prescribed hysterectomy and and medications includes all medications and as prescribed is directed includes prescribing medications it would seem to be that he had notice of the issue and made an intentional decision independent it will number one that was a drug quantity case drug quantity finding case and and this issue was the issue was raised to defense counsel knew about the issue the government adverted to keep defense counsel to the issue and defense counsel chose not to object so he was aware of the issue and then he didn't object and then the court said there's still not a waiver so that would tell us that you know does it does the waiver up when you apply the way we're doctrine if you don't apply it there so that's really hard to distinguish that i suppose the court would say that in the in the figural of the broader case this court found that the the district court had an independent duty to make the drug quantity findings t the findings in that case but then the defendant could say well in this case the district court had an independent duty to make adequate findings justify the condition so you can go both ways but this court's precedents this court's cases sort of bind us dream because what looks like an obvious waiver is really no way for it all which raises the question what do you have to what do you have to what's obvious about this waiver that there's a reference to section b but there's there's nothing to put the specific condition there's nothing to put the specific condition in front of counsel other than just some incorporation by reference section d well in the end we wonder why and incorporation by that what isn't that what we are actually being asked to do as a practical matter was there an intentional relinquishment of this objection to the specific condition there was this and who's got the burden on well we think the defendant had deliberately considered the issue and who has the burden to show waiver yeah i probably the government well there's some question then what even if you read the pre sentence report here you wouldn't come up with this issue you would just see that he was required to take is medications right right right which which goes back to the question how how how deep in the strata do you have to get to get to the layer to the issue i mean like we say an issue is is starts at the top there's lots of subsidiary issues and here we drill down to section two or three in and that wasn't weighed in if that's going to be the court's law then almost not there's going to be a way to get around the way we will every time so we understand that we're basically bound by that reasoning and figure on the rock we just wanted to bring up our point for the court's consideration we think that we're for doing  i have nothing further and i will yield the remainder of the permission and thank you thank you like three quick points the st goes to one of your questions just see more about anti psychotics versus i can tropics antidepressants xanax those are not anti psychotic drugs and that's not what our argument is the right extends beyond anti psychotics are probably a subset of that they're all included within the right the nd point goes to the stock conditioned questions this was a special conditions not one of the standard ones the cyclist in the guidelines or anything but it is u docs special condition in the sense that when the mental health condition is imposed we have a we've seen a few cases out of kansas it has this exact same language so you know there's this defendant by defendant choice about whether to impose the condition but when it's imposed it's always this condition and we've seen it crop up in colorado to so i guess this goes to one of your questions judge bacharach about whether the couric should say something about this because if you do think it's a problem we have a sleeping it's a problem it's a problem that's more widespread than this one case it would be there would be some benefit to saying something more public about it this rd and this is my final thing is the  question about like opening up the whole rat's nest on lehman and we're totally fine with just a narrow mandate is just to fix the clerical error we're not asking for a reset and seeing do novo we don't have any other issues and as far as i know you know under the the court does a limited remain and the district courts are stuck to just do you just to fix what the court of appeals reminded for so i just wanted to make that clear to see the rest of my time thank you thank you cancel thanks to both of you for your