good morning ladies and gentlemen we're well we're pleased to be with you this morning on this final day of our sitting this week judge nelson and i would again like to acknowledge the contributions of our colleague judge eugene seiler from the th circuit i have sat with this court  for many many many times and we are grateful to him for his continued service to this court and to the united states thank you we have three cases on the calendar that have been ordered submitted on the briefs that will be singing versus  united states versus rady and myers versus czech smart financial l l c that leaves us three matters on the oral argument calendar which we will hear in the order in which they appear beginning with united states versus  sentence in its response that a filed in regards to classes and the memorandum nd independent of the breach this court should review the supervise release conditions because they're unconstitutionally overbroad and vague and therefore not waiver with i'd like you to spend some time on the st one just with respect to that sort of housecleaning on the on the nd one isn't there an opportunity once he gets out of out of jail to have to have this review is that i mean that we're sort of in process of sort of ongoing review of supervisory conditions there are developments and if there were further developments while he's in while he's in prison he would certainly get the benefit of those i'm can't all of this just be cleaned up a little later what does this have to go back now yes your honor does have to go back now because this is an issue well it depends if this court finds that there's a breach it doesn't necessarily need to review the condition and understood but if the court decides that there is no breach in this instance then yes it should still go and further it's important for the defendant to understand the extent of which when he would be in violation which is why we're  twos so i'd like to go back to breach if i may this court's held in witney that when the government makes statements indicating a preference for a higher sentence than the one agreed to the plea agreement that is breach and that's exactly what happened in this case in this case the government and defense counsel agreed in the plea agreement explicitly not to seek any additional enhanced minutes and that language that you are one of five but then the government filed a response to classes and memorandum in which it made statements that quote the enhancement did not arise out of thin air and quote the enhancement was overlooked and that's it you are four thousand three hundred and forty one is the government expected to comment on this is the government asked any questions by the by the  by the by the probation office no your honor the government was not asked me questions and i believe it makes that statement in the response itself because judge jones says look they've got an obligation to act to answer truthfully if and they didn't they didn't recommend anything other than the forty one they are there simply they're simply commenting on evidence that the probation office found that's correct your honor they're commenting on evidence probation office found which was improper because they cannot bolster the recommendation by probation and saying that probations investigation was thorough and that this enhanced it was overlooked because one it's not providing any new information for the court there's a statement in one of the e mails from from the usa saying you know unless i've missed something i didn't i didn't see and i didn't see an s and m problem here that's correct that is what the e mail says your honor however we know that there was no mistake in regards to the nd report because probation explains that at sentencing hearing and i can give you your cite for that i think it's forty three or forty one the probation officer explains that there were these two reports there was the st report that was done during the investigation phase of this directed against the government that's what should the government do recommend something other than forty one months no your honor the government cannot inflame the court as it did in this instance by implying that the court should not so it has to with it has to withdraw any comments on  r and that's going to get you a different sentence from judge jones given the piece given the p s r finds that there is that there was less than i am here so st stating the requisite number of forty one months at sentencing is not enough to cure the breach in this instance but that's what this court case law says that there was a downward departure wasn't yet on the guideline and that's what's a little odd here is you're complaining about the government's position which was actually requesting leniency you wanted them to be more lenient in what they said to the judge no your honor we didn't want them to be more lenient we wanted them to follow the plea agreement to defend mr costin not at the bargain for which he struck because the government implied in the sense the memorandum that the district court should not apply the guideline calculations in the the government implied that the court should follow the guideline calculation that probation recommended which included this four level sensing enhancement which was improper that's breach so the concern is not necessarily what happened at sentencing because everything that took place after the time in which the response was filed was tainted we can't look to you want this sent to another judge yes your honor we do and you're willing to take your chances with another judge yes or you may you may get a worse sentence than what you got here that's all of this was out on the table it's all very very obvious to judge jones you know what the government's position was what had been negotiated what continue to recommend what the what the p s are said but the government didn't didn't pour gas on that fire it just sort of confirmed it was there it's our position that the government did inflame the court based on the language in the response and stating that essentially the court should consider the plea agreements guideline calculation  parties that there was no sadistic masochistic conduct the government says quote that is not possible the government is essentially saying in this response that the guideline calculations of the plea agreement should not be followed is not permitted to offer statements that inflame the court or suggest a harsher sentence which is what this did in saying that the guideline calculation the program was was should not be followed or was inaccurate in any way  and then continued on to make statements to remind the court that whatever the court ultimately determines the political guideline range is what the government will stick to but the problem with this language is that it's it's advocating for a harsher sentence and that he read me that the offending sentence one more time but the best the best one you've got i'd say it's two fold so that this is a this was a written statement not an oral statement to the court is that correct that's  response to the sense and this isn't a this isn't a written letter or an e mail or something this is a written response ok and in this response the government makes two offending statements that i think are probably the most important although when read as a whole i think the breach however the most important statement is that probation is determination of the enhancement did not arise out of thin air the nd most offending statement is that quote it is the government's view that the enhancement was overlooked this is incorrect the enhancement was not overlooked the parties had contemplated the enhancement and considered it and we know that based on the e mail that was provided by defense counsel at sentencing which stated that the the the  the judge get that look at it or what happened so we're requesting that we go back to four resounded saying so at that point that e mail would probably not be admitted into evidence because there would have been no breach the purpose for admitting that e mail was to show that the parties have contemplated this enhanced meant and found that the enhancement shouldn't be applied based on the fact that the nd report that dealt with the evidence that was he's from the home the evidence that was in his possession didn't contain these images and so it's important and i see your honor that i'm actually running out of time but i just want to explain quickly that the there was no error in this in this case that needed to be corrected the government cannot provide any new information in its response because all of this information was in the p s r and therefore the only purpose for this response was to inflame the court and provide language insisting a harsher good morning your honor stands he also been appearing for the united states may it please the court mr class just pointed to two sentences that he states are the offending sentences that constitute breach in this case i'm going to address both of those the st is that the government said the s and m images mentioned in the police report were overlooked the nd is that the government pointed out that probations conclusion that two images existed was not out of thin air both of those statements are true and i'll explain why the e mail that the defense submitted at the sentencing hearing shows that this was overlooked because if you look at the text of the e mail the e mail references know s and m based on the one hundred and ninety five images and this is straight out of a forensic report and so what that means is after the search warrant was conducted a review was done of all the images that were captured through the search warrant but that's different than the initial images that came through google cyber tips that tipped the authorities o so just because those images were on his computer anymore in early twenty thousand by the time the search warrant was executed does not negate those images in mid two thousand and seventeen that came to the cyber tips does the e mail create an agreement would is that how this works were no so what was in the actual agreement was or was or any recommendation for for this man's when you know the agreement did not contain this enhanced man and so if you look at the enhanced mi that were in there it's things like use of a computer a total of one hundred and ninety five dollars images things like that and so when we say that so your position the government's position would be there could have been a breach or anyway because we never agree well you know you did know your honor if we if we left it out of the agreement and then we said oh by the way we'd like to request it now and that would soraya right but the e u is ok but that's based on that's based on the agreement not on the email plea agreement but then you did suggest it to the judge so what do we do with that no i don't think it was suggested to the judge i think if you look at the government's response what it was trying to do was say look the parties plea to go she asians are one thing probations independent investigation isn't separate thing and the court of course has final discretion to say a sentence and so in that response we didn't say anything like in fact it does apply and here's why i'll point you to the two images and i'll point you to the police report and so on we didn't introduce any factual information like that we were trying to delineate what was going on between negotiations on the one hand what probation did on the other hand and saying of course probation is allowed to do its job and if you look to the content of the sentencing hearing itself it further illustrates no breach because no fewer than four times did the government say that the forty one months that the parties had essentially agreed to should be applied no fewer than five times did it say the enhancement should not be applied and of course going on here and if you look at judge jones comments he said twelve different times under no certain circumstances is the government going to be heard to somehow argue for this enhanced meant so is your position that because the government said the enhancement doesn't apply we recommend that it doesn't apply there's no prohibition on what else they could have said well you know if it i mean there are certainly are other comments the government could have made that were breached even if they'd said well the it just doesn't apply here for example let's say we brought this images to sentencing and we said your honor we're going to show you these really horrific images the penetration involving small children that probably would have been breached because that would have been inflammatory it would have been really driving the point home about why this as an enhancement needed to apply in the st place and was it just were not part of the original one hundred and ninety five no so what happened was google scans for child pornography just as a general matter and if they get any hits that they think is illegal is child porn images delaware authorities and so in those original hits is where these s and m images came from there were two defendant doesn't really contest that those existed he's just arguing about a breach so we know that they existed but what happened was when the parties were negotiating only looking at that final forensic report when you see initial tip images and things that you get before the search warrant of course content can change over time and the tips were made two thousand and seventeen the search on was early twenty he deleted the images apparently so no one's really contesting that those existed back then it's just that i was part of the one hundred and eighty five dollars that's correct they were not what do we do with just part just part six f paragraph f called additional sensing information does that have any bearing on this it does here at address it directly it does dress address it directly so there's three reasons why what the government did was appropriate one is six f so it says we're allowed to provide correct information in addition to the court probation i did it doesn't is that correct information is this additional information regarding rape the nature scope extent of the defendant's criminal conduct and any aggravating or mitigating factor circumstance that's right and i used the word correct just as illustrate what was trying to the point what was going on here which is to say we were just trying to make the record clear we're not trying to say your honor please don't apply the s and m enhancement because there is in fact no s and m we were saying something was overlooked and we're not seeking the enhancement but we can't stand before you judge jones and claim to you that there is in fact no s and m that would've been a false statement that would have been entirely inappropriate for the government to do that there's a difference between a clarification and saying a mistake was made the government said two times at sentencing i'm sorry one time in its response and one time at sentencing that mistake falls on us we stand by the lack of enhancement we argued for the forty one months and that was actually an additional benefit to defendant because the police remit said we would recommend low end of the guidelines as calculated by the court we recommend a low end as if the mistake hadn't happened so we recommended forty one months notwithstanding the court's low in sixty three calculation and so in addition to your point judge nelson about to jones very downward we also requested four different times that the court stick with that forty one months now a standing request downward departure you just quest at the low end of what you calculated and i am guidelines to be at the time yes and it's kind of one in the same it's a down a variance from what judge jones calculated but it's also what you just said which is the low end of what we thought it would be when we made that to your earlier question judge maybe i think that this can the court is well familiar with the fact that these conditions change all the time especially in a child pornography context if you look at the place restriction about not going where children are likely to be that once been changed multiple times just in the recent years most recently in the gibson case that was cited in the twenty a letter if that one is sent back now in all likelihood it could need to be modified again and it's been modified in different ways conjunction with number four number three is about not having contact with minors it has a provision that said this is incidental contact during ordinary daily activities in public places is excluded so if three is going to operate with four i think you have to really apply that same common sense reading a four which is to say of course you can go to the grocery store of course you can be out and about in public because the conditions aren't meant to exclude him from being in society and i don't think if we said that for needs to be sent back do you thinks three needs to be revised as well no i don't i just think if you read three and four together and apply common so he could if we're sending about you agree that we need to send seven back right i think that judge jones comments on seven were somewhat murky and so we would not oppose that ok i think it actually is easier to get a fix now than later probably isn't it it's probably easier from the sense that it would be more recent in everyone's memories i don't think it would necessarily fo case that's been longstanding one circuit law for i think ten years and also there was a recent unpublished decision in the whole vs case that approved that exact same condition ten and eleven it's about monitoring his computer specifically to make sure that he's not downloading child pornography in the future so it is specific as to how probation is going to be allowed to do that and the tools they can use the conditions red together say if you're going to have a new computer probation we'll do one check at the beginning and make sure that it's clean and then once that's done it's just ongoing monitoring which is a automated thing through the capabilities of the software and then in addition check from time to time that it's not he's not trying to circumvent it so  this is very similar to the quins on case that mr klaus cited it's not like sales which is a counterfeiting case had nothing to do with this and also no similar language so i think five hundred and ten and eleven stand as they are this was not new information and we know that because the parties had contemplated in the e mail whether or not to applies enhanced it but what's important is that the government could not have found these images after another  your honor because there was this wasn't additional information the course not additional information it's not because the government in the response is only repeating what's in the p s r this wasn't additional information and we know based on what probation stated at sentencing hearing at ers and i think this is a very important site your forty through forty one explain that defense was correct these images were not in the nd report and that's what the parties relied upon in order to come to this factual basis that this enhanced it should not be applied there was no need for the government to provide to file this response because the information that the court needed was all in the p s r there was no additional information the government was providing and further we know based on what probation represented a sense in hearing that these images were in the final report and defense counsel never stated on the record that there were no way no images to support the announcement whatsoever defense counsel simply stated that they followed the conclusions based on the final report on the supervisor conditions which ones need to go back requesting that all of them go back except for a place condition  before it's our position that place condition the place restriction condition which is number four should be stricken number five the warrantless search condition were question that be vacated the special conditions ten and eleven the unlimited computer monitoring condition requesting that those be remain with instructions because these extend to any device used by the defendant for work or personal purposes whether or not the defendant owns that device which is very problematic and then number