good morning do you want to may please the court my name is kathleen williams and i'm here from the district of arizona in tucson and i'm representing mr juan this morning there's really only one primary issue in this case that's so compelling that i don't think the court really needs to ultimately address the unreliable hearsay issue that we raised in terms of saying or the procedural errors that we discussed in the brief the the primary issue is whether or not the sex offender or or valuation condition that was imposed upon mr juan at the sentencing whether or not it's reasonably related to protecting the public and preventing recidivism in light of mr once history and i'm basically almost quoting that basically out of of the t m case because this rests very strongly on the t m case the i was trying to figure out why the court even wanted to hear from me this morning because it seemed so compelling of all the cases and every viewed and it's been across the districts whether they've been vacated or affirmed i haven't seen such a de minimis nexus if and excuse you don't i'm trying to find a case that's on point the crime in that case is not a sex crime just like here correct or so the only difference between that case and this case because the age of the convictions is about the same is that the conviction that your client has  for sex offense conviction your client has isn't for a violent offense at least it doesn't appear to be a violent offense one of their so is so distinct so don't say of the cases or go the other way johnson really cuts in favor of the government tell how you get out of johnny distinguished johnson and it's radically different you have to completely decontextualized my case to say that johnson applies to this because we're looking for is whether or not the condition reasonably  related to the goals of three five five three johnson was a multiple rapist he his history is so egregious as adults cannot understand that the history is worse and so i want to know why i want to know why judge jorgensen abused her discretion because your client has a history of of inappropriate acts with children are the best way to put it one conviction and and several other incidents that you don't challenge in the p s r so tell me why because those are not violent the judge abuses her discretion simply by ordering an assessment she imposes no conditions she just orders an assessment well and in the one case or our first of all it's point twenty seven years remote it's the most remote conviction of all the  ones that i can find second of all it's not really a conviction it's a juvenile adjudication for something that happened when mr one was twelve years old again nonviolent non penetration basically kid stuff and at the time the government didn't deem him seriously a risk to society enough to even prosecute him for another five years after that so obviously this twelve year old was not a huge risk and at that sentencing the government didn't take a position at sentencing the government presented no burden of proof and what's different about this from all the other cases is that a month before mr one was arrested on this possession with intent to distribute marijuana he was released on supervised release in another possession with intent to distribute marijuana before judge says judge collins his failure to impose this condition prevent judge jorgensen from imposing that's one factor to be considered because you have to look at the totality of all the circumstances under all the case law that i looked at here had to at least two rape convictions one was a fourteen year old girl with a gun point where the earlier rate was at knifepoint and the particular crime involved in johnson had to do with a weapon so so there was a nexus between a condition in the sense that the crimes he committed earlier which absolutely there was a nexus and in fact the only time that he's not committing these kind of acts is when he's in prison he does ten years for the first offense and he does thirteen years for the second offense so i mean i thought that the judge was incredibly lenient only asking for an assessment in that case instead of really strict rules that t m would if you'd say the case this case i know others may disagree with your it's a johnson was a far cry from this one is what would absolutely and also if you look at the simmons my guy is twelve years old when he has this indiscretion then the judge mentioned something as an aside that that in a polygraph he admitted to having three victims well obviously that juvenile did not use that information about polygraphs right right nobody objected to that's true about her and that's my error because i just it didn't jump out at me because after twenty seven years because the government didn't ask for this i'm going to have anything probation didn't ask for anything the prior case a month before he was arrested on this one from the judge collins the same charges possession of marijuana didn't it wasn't a flag it was never a flag and then all the years if you look at his criminal history he's got all kinds of drug and alcohol related problems and he's been monitored abundantly throwing his adult life there's never a single sex red flag at all can you tell me tell me what's the prejudice from an assessment of the words it's now on the public record that your client has this history whether it's a good bet or a different what's the what's the prejudice to him from an assessment i can see how we might later say it was abuse of discretion to impose additional condition but what's the prejudice from the assessment well first of all i don't think anybody in this room wants to have one of these sex of value assessments no matter how clean their life has been it's a very personal you're going into the most personal private aspects of somebody's life and you're demanding that they tell the truth about all this so first of you've got the antelope case and fit the memory problems answer the questions claiming the fifth amendment and the supreme court said that they would really it falls under almost a caste are issue that he can't he can't be forced and so he can't see that so he could it wasn't advice they said that's not a violation of his conditions of release to not answer so that's why i don't understand your fifth amendment violation argument he can he can at the assessment refuse to admit any offenses correct exactly but so does not a fifth amendment right that implies that these are very intrusive these tests are very intrusive and very personal it's humiliating it's shaming he's already suffered the government's treatment five years later for a twelve year old indiscretion five years later they do this to him and then he did a year waiting to go into a halfway house imprisonment as a juvenile for the twelve year old indiscretion and then when he violated probation looks like i'm running at a time when he violated probation judge bilby just gave me course aeration he didn't give me any more sex offender treatment he did get seven months sex offender treatment he got four months private counseling also it's he's not represented at that time and once once you get into supervised release and they start modifying conditions and so forth i haven't seen a case in thirty years where to turn has been called into those things so it's can be twenty fourteen another district those cases are very similar to what's happened here but this case has it's basically zero nexus and so i think that it's substantively unreasonable and abuse of discretion and i hope that you'll vacate that condition the morning my name is sarah houston i'm from the u s attorney's office in tucson arizona may it please the court your honour's the sole issue for you is whether judge jorgensen abused her discretion when she ordered that the defendant in this case undergo a sex offender evaluation as a term of supervised release and as the court in its questioning has indicated this is most similar to the two thousand and twelve johnson case out of this circuit well i we didn't all win and all the green on that the issue is whether it is or is not an alan johnson solved i did my mind your age problem because i'm not sure that twenty is different or twenty seven the question is how does that solve your nexus problem well i don't want recognizing to be fair to the government two decades is a difference a big difference especially when you consider as people get older less likely they are to commit crimes so i just i don't even understand why you're defending this at this point well your honor it's an abuse of discretion standard in the government's position is that while we didn't request this particular condition of supervised release it is an appropriate condition and it comports with the legal requirements and while it seems like the government's position is like well of the district court imposed it then we're going to defend it because it's not going to be an abuse of discretion well i think our position is that the sentence that he received is a legal sentence and th there's nothing legally wrong with this condition and therefore it should but we're in a strange situation here we have somebody who says i'd like this condition removed you don't care i mean you're defending it because the district judge did it and i applaud you for that but you don't care isn't there some way we can get this settled for two of you simply agree that to get additional can be removed well your honor honestly i think settling this would require judge jorgensen oh yes i think we can we can say the parties having agreed that the condition should be removed it is here by ordered so can you agree with with your colleague that the condition should be removed no your honor i do think it is appropriate while we didn't ask for it i there is a sufficient seem so arbitrary in this case well and i disagree on i don't think it is arbitrary and i believe that judge jorgensen laid out her explanations for why it is appropriate and i think that a lot of that stems with the defendant never completed a sex offender treatment and well your honor you pointed out that sometimes as people age they're less likely to commit offenses but i think when it comes to sex offender characteristics those if untreated may not disappear with age but do we have any evidence that there's been any sex offense by this offense this defendant in twenty seven years even the stuff he admits to his childhood stuff is now it's unclear but it seems to be close in time to normally that's the way it happens but if you saw a basis for imposing a condition you could impose it as a district judge i've done it on occasion but that's not really the issue the issue is even though she had discretion to impose a condition if the factors were there which would suggest it and she had been judged by abuse of discretion and that's what she's been judged by the question is whether you know if we allow this to happen are there any real limits on what a district judge can do relative to to imposing these kinds of conditions because johnson involves a guy who was convicted although it was thirty two years earlier for twice raping a woman it got and i point in twenty two years earlier for raping a fourteen year old girl at gunpoint and then now he has a conviction which involves possession of a firearm and a firearm have been used in previous conviction doesn't sound like our case doesn't sound like a case i think the nexus is closer in johnson but i don't think that that's the final factor what we have in this case that we didn't have in johnson was an extensive history of substance abuse that's ongoing and additional ongoing criminal behavior that's related to that that also involves assaultive behavior in domestic violence conditions whether sauce drug we had taken drugs and so for th this or are we just now supposing why she might have been posted as i read the record she didn't say well here's the nexus as i see it she just said i'm going to impose this do you have an objection you want to continue into the other side said no no no we don't want it but we're how does the record demonstrated nexus for us or are we just trying to she doesn't call the nexus out of the record she doesn't use the term nexus but she does say i would want to impose this condition because of the substance abuse history and the assault of and domestic violence issues from his arrest and criminal history because of the prior adjudication for the sex offense and because he never completed treatment and those were the reasons that she expressed on the record as why she wanted a sex offender evaluation so that she could get additional information and would know whether it would be appropriate to pose to impose any other conditions she did impose other conditions and i take it this evaluation if allowed would occur after he completed whatever term of imprisonment he was given yes if he if she were to impose additional conduction conditions  could mr want to appeal those to us i'm sorry your argument so much assuming she has it he asked as an evaluation yes and the district judge says ok now i'm going to say you can't be within thirty feet of children or something like that would that be an appealable with the addition of that condition be appealable yes and we would presume that judge jorgensen would follow the statutory requirements and there would be notice and a hearing on it where the defendant through his attorney could contest those allegat the contest the imposition of those additional conditions and that could be litigated not just at the trial court level but then if they were imposed he could appeal them again because they would be an imposition  justify evaluation for sex offender treatment i mean you could do that and almost i mean there are a lot of cases so i don't see see the nexus on that i think if if there's nexus has to be tied to the prior sex sex offenses well your honor i think this case involves more than that because it doesn't bother the prior sex offense and treatment was never completed before so i agree if it was only assault behavior and substance abuse problems that alone wouldn't justify a sex offender evaluation but because this involves the prior sex offense and incomplete treatment the assaultive behavior and the ongoing substance abuse that collectively would justify having the evaluation and the evaluation is less of an imposition on liberty than the sex offender conditions which the judge didn't impose but you could have on this record creature i think it would be probably not know and the treatment that he didn't complete back to the earlier period when he was he was convicted in the federal court  now violation for the sex offense and because he didn't complete the treatment he went ahead and sorry he served some months imprisonment for that for valley is his probation and ways yes that was one of his probation violations if that he didn't participate in from that time for until the time in this case there was no there was no sex offense that we know about no there's nothing in the record on that but i again i don't think that that's determination to impose conditions for treatment yes but for to just ask for an evaluation to see what's going on i think that wasn't an abuse of discretion in the best way for judge jorgensen to ensure that she is protecting the public rehabilitating the defendant and providing  those purposes and so it's not as strong of a nexus as johnson but i think it's strong enough for an abuse of discretion standard and that it doesn't impose on the defendant's liberty any more than necessary in order to do that conditions apply substance abuse and conditions apply but under this if you had like three duis the judge could order a sex offender conditions there's nothing here he's a baby when this thing happens it's not violent and over all those years all the monitoring that he's had there's never been a single red flag