the notice that was given out here is is not the not correct you contend that our decision in eighty doesn't really decide this case because that case was decided  on st amendment grounds is not really what we're talking about well i think there's two issues to be addressed and i was reaching the st issue which is the adjudication itself of the seventy five dollars she violation but if you'd like to turn st to the notification issue i'm perfectly happy to do so  honor yes absolutely i think you're absolutely correct in the respect that this is a very different case than a the laws that cases as you just indicated your honor recognize that on a case by case basis  it may authorize disclosure that it's not expressly authorized under the terms of the juvenile delinquency act but what that court also or what that case also said was that there must be an interesting countervailing interest on the other side that permits why is  a statute that tells you you've got to take account of victim's interests countervailing interests that have to be taken into account and this record in fact did take into account here well i think that the difference here is that there is a statute of course that provides for victim's rights in a very general sense and that's the victims rights act of course the question here is not whether there is a statute that provides some possible cognizable interest to a victim in any case it's whether there is a right to be asserted here like the right under the st amendment to disclosure and in this case we have the very different such a hold on let me make sure i understand your position your position is unless there was a statute that said victims have a right to be told that they're under threat and it was just that explicit that there is no right that should have been take there's no countervailing interest that should have been taken account here i think you could have is that the position you take is your position that it sounds like what you just said was yes there's a statute and yes it's a board and yes it protects victim's rights but it doesn't say specifically the victims have a right to know they're under threat i think that's what assessing how to treat the juveniles interest in privacy i think it's best read just as you did when speaking of a countervailing interest what this speaking of its interest that it's founded upon a right and that is and the reason it has run and i got the equipment i'm thinking i'm doing in fact i might i might do it sooner i don't know that i i got it i'm going to do it is your position that based on the juvenile act  court had intervened and done something they couldn't the court could say to these people the how explicit the threat was that can save these people look you faced a serious and significant threat from somebody and we just need to let you know that i think i could have two answers on that as to why in that particular circumstance disclosure may be justified and in fact under a hypothetical probably would be in my view and st and foremost perhaps is that the victims rights act actually does provide a ri notification in the senate are your positing and under subsection any of that provision that states that if disclosure is necessary to recently protect the victim or the crime victim then this clear then that is that falls within the victim's rights act that i  a right i tried to move past that i try to move past that by maybe i didn't say express it but it's it's not an emergency situation in the sense that they had to tell him hey get out of the building we're past that they've caught and they got the kid they arrested  the threat was over so take that off the table just you've got a really explicit very direct threat that this kid hates them and wants to do i'm serious damage in that they've got him in custody well i think at that point in time the need for disclosure wouldn't be there at that stage if he's in custody if he's not proposing a threat it doesn't fall within the victim's rights act and it doesn't otherwise provide there's no reason to protect the church itself to actually authorize disclosure that is there's no danger to the which you actually do have to disclose in advance of some point i may not be right then and there it may be at a future date but notification is going to be appropriate again because then you do have that clear present danger to the victim to another individual to the community that justifies disclosure not only as a position so your your view is no one our houses no matter how specific no matter how horrifying the threat is once the once the person's in custody the others of the victim who was certainly the target has no right to know anything about it period that i think there's no statutory right in that circumstance and i think the fundamental issue there is whether you can find another interest in the sense of in that particular circumstance it would be this person is in danger that is a danger to the community that is a danger to the individual and in that circumstance you may have a situation in which there is a compelling enough interest to counterweight privacy interests aborted by the juvenile delinquen far as that danger exists as i said if used in custody if there's no danger and there's no basis for disclosure and again to get back to this case that's precisely the case we have here in which we have a release order from the district court which states quite  about i have a few questions to fall behind one includes that the comment made by the court that you just referenced that i'd like to solve and something judge jordan was asking you if you your position that in a deal we explicitly stated that the interest has to be there in bodies in the statue in the constitution i didn't see that there i saw the court talking about the court's balance of interests and it happened to be that there was a st amendment interest if i did the court indicate in  eighty that it was required to have an interest that we view our bodies in the statute were constitutional provisions so that's my st question certainly not agree with you on your honor that was not said in a d m perhaps i was a little bit too broad and answering ga questions in the sense that when we're speaking about an interest that is founded upon a statutory right and that's what this record purported to do in this case that is under the victim's rights statute then you do have to find to my mind an affirmative right that is conveyed in just the she was in the st amendment if the st amendment does not convey a right to access to a particular proceeding then you don't get to the a p analysis and i think that's what kind of recognizes that is not to say that there may not be other circumstances in which disclosure may not be authorized for instance one circuit case u s versus eric b in which the parents of a brutally murdered teenager came forward and asked to be present at the proceeding and in that circumstance they were compelling enough and that's what the th circuit spoke of compelling enough reasons outside and unrelated to a statutory scheme to allow for it and here those compelling reasons would be kind of in judge jordan's hypothetical if there was a clear and present danger to the church or posed a danger then perhaps you could say telling interests you don't have that here and you don't have any statutory constitutional right and therefore i don't think you have any of the interest that they are to find in a z i think brought ok my next question follow up is on you mentioned during our meeting today as well as you have grief that the interest must be quote compelling close quote necessary and i think that's fall follows necessarily from the court's discussion of the st amendment interest of course the st amendment has long been considered a compelling fundamental right to lovelock's watching that on that description on to the findings of a holdings of eighty into what is necessary to outweigh the juvenile delinquency act i think it does need to be a compelling interest and i think anything less if it's just an ordinary then you would have disclosure available in most any case and that's clearly going against the presumption that records shall be released in response to inquiries from a victim would you agree that a victim could make an inquiry only would only be making inquiry if they knew about the fact that they were the subject of  crime victim of a crime put differently when some notice had to be given or knowledge on the part of the victim in order for them to and then and didn't work for the court to sort of meet its obligations under the even the juvenile act itself problem there that i'm struggling with i think judge works is question is is a great one and deserves an answer how could you possibly make an inquiry if you didn't have some notices of the fact that the statute says know how you wouldn't have been able to inquire if they were given some kind of knowing you wouldn't want to but i think that particular provision is intended to cover situations in which you have a crime of an assault type of a battery type in which you have a situation in which the victim doesn't fact know of the assailant and in that circumstance because they know of the stand when they're going to want to proceed and and actually participate in some form or fashion in the city in the you think congressman to  say juvenile who's clever enough to hide his crime is is in a better posture than a juvenile who's less clever and doesn't hide his crime the juvenile who hides his crime has more rights more privacy rights i think congress was smart enough to provide for notice of obligations when it wanted to do so and in fact this is a fairly carefully crafted statute and in this particular circumstance it's crafted to deal only and allow disclosure only upon inquiry from the victim not to provide that the court should do anything in advance of it certainly not from the statutory expressed exception and i do think it's meant to cover those particular situations in which the victim knows of the assailant and then in that circumstance congress expected an intended that because the is the assailant is no because the victim knows about it the victim necessarily has a greater interest in participating whereas in what's the policy rationale for because you know you are under threat you got better deserving of  knowing about the risk you have been if you weren't to direct you to look your assailant in the face zero i don't have child there i do believe there's a policy rationale but i think it goes back to the basis for the juvenile delinquency act in the st instance there's going to be difficult balance to strike when you're thinking about juveniles and how they should be disclosing how their information concerning their law their potential offenses should be disclosed and i think in this particular circumstance congress decided that the interest in protecting confidentiality outweighs the interest in protecting friends if you want to call it protecting a victim if there's no danger to the victim in that circumstance then the victim has no direct interest in participating because they haven't been directly and proximately injured in fact there really couldn't even they can be considered not a victim in that particular circumstance such as this whereas if you have an assailant assault the st go back to that example if it was in your view the church was a victim here and all i think there's a very good argument to be made that the church wasn't a victim if you look at the victim rights act victim is defined specifically as a person directly and proximately harmed as a result of the offense i'm not sure if you can say that in this particular circumstance but i do think even if it's considered a victim it is a different caliber of victim then for instance in this case in light of what happened in for example charleston if you have let's say dylan roof did not do anything but merely made threats online and lived across the street from the from the church if he were picked up yours are you telling us that the people in that church have no right to know that somebody directly across the street is making a threat to them well i'm not saying that they definitely have no right to know it would depend on what the court's finding in that particular case was again in that circumstance you know the situation where i don't think you could make the finding that dylan riposte no danger to the community or to the church upon release here you have a very different situation in which the difficult made exactly that found that he did not see did not have capability if not have the tent to carry out these threats and in that circumstance when you don't have a danger you don't have any risk to the asserted victim then no i don't believe there's any right there's certainly no right under the victims rights act and i don't think there's a compelling interest in disclosure now again next to this is we just at this point this resource it sounds like you're just arguing with the balancing you're not saying there's no real interest on the other side you just don't like the way the court balance the interest on the other side i mean one of the questions when we get you back on rebuttal will be in your made in the context of his release period being the final disposition so here's my question we are evaluating the exercise of the judge's discretion on making that there were occasions which was in a separate order because you're asking us to consider an observation that was made in the context of something different thank you that that's a good question and i think if they answered it part if not in pylea by the fact that at th district court expressly written while that there was an objection or a new notification requirement that the court expressly readopted the findings that had made early read entered it as part of the supervised release so actually the earlier notification order  been placed outside of the probation context into the supervised release order at that as kind of a matter of where it if i think that's what it should be if that and that was after this particular finding was made so i think you can figure that and i think also if you want to go back actually to the time in which the nail right on the top of the head here on this whole issue and it boils down to the fact that we judge mannion issues here was not a juvenile record disclosure order it was a big notification order the whole point of what the judge did here was to let the leadership of the church know that it was a victim a victim of a threat by no unspecified individual but what that notification would allow the leadership of the church to do is make an application to make an inquiry on to clear this circuit has previously held that the government does not bear the requirement of showing an actual intent to commit the threatened harm we've always clear what we are obligated to show either a purpose to communicate a threat or a knowledge that it was the threat will be perceived by others as a threat and then that's the subject component and the object of component is that a reasonable person would would understand the communication to be a threat and judge mannion wrote that he has the capacity to carry it out there at all on the question of whether a threat is credible yes that and if that's a legitimate inquiry capacity to carry it out and there's a finding that he didn't have the capacity to carry it out is there a conflict or a tension there that is create some difficulty for the for the conviction no and i would say it doesn't create a problem it is relevant capacity is irrelevant whenever you evaluate somebody's mental state their intent what you have to do and what the courts repeal it held it look at the totality of the circumstances and judge minion did that he'd look at the top of the of the circumstances he explores all the evidence to try to gain proper standards the purpose and knowledge standards of subjective components and the reasonable person requirement under the object standard and came away absolutely convinced that these were true threats under eight hundred and seventy five he repeated references over roughly a two and a half day time period five as i pound them specific reference is to that church across the street and that fact that it on a sunday it would be filled with christine's and that there was that they'd care center at the church as well coupled with his expressions of wanting to throw a molotov cocktail onto the church and sabotage your been and wear a special suit to protect him from from his own injury in in the event these are all things that would make any reasonable person believe this person was making a true threat and coupled with his comments about what happened in paris in november of two thousand and fifteen or over one hundred and thirty people were killed in the islamic tax four hundred wounded these are the types of things that this court has even talked about in  doubt you have a good time well that's i think the screw the scrutiny and most the apartheid under the object of standard would a reasonable person perceive what that person said but certainly in the briefing it comes across to clearly that the defense you know which is making that is making the pitch that he talked about you know stuff yeah i'm thinking about it i'm not are you ready to do something i'm not ready to do anything but i'm thinking about this that if he's if he's consistently telling people i'm not ready to do anything i'm not thinking i'm just thinking about it how does that more than once are you ready to act and he says no i'm not i'm thinking about it your honor i reviewed the transcript again this morning and make sure that when the when the f b i confidential human  source got wind of this you can now statements on the islamic state chat room he made contact with him and one of the st questions you asked him after he complimented him on something that he posted are you getting ready to attack soon that was precise question are you ready getting ready to attack soon he wanted to know what this guy was doing and what they're used planing to do anything in the media future  they answer if that question had included the word soon that the legal distinction oh it's the answer that counts is interest no i'm not i'm still preparing and gathering equipment so that was the answer and i think any reasonable person after they saw what this juvenile posted on you saw him state chat room the photograph of him wearing that scar the photograph of him holding the next kid's rifle the things that he said over this three day period about death to america etc and you know i'm going to go after that church and talking about what happened in paris there isn't any person there is not any reasonable person that would perceive these comments to be true threats so the question about the question to bear asked and the one to which he  tell you the circumstances everything that this man this to the now said and did or the seventy two hour time period you can you can't come away with any other conclusion oh yes i got i got your belief as to the defendant's intent that carry out the threat but it doesn't change the fact your honor that this church was a was a victim of threats but it was on the known victim of these threats and all judge mannion did by is victim notification order was let the church know that it was a victim and inquiry if you chose to to find out what happened in the dispositional hearing that's all that was done here there was no violation of the defendant's anonymity what the judge did was fashion in its discretion under this court's ruling in the a v case that it had a balancing of interest to simply to let the know in this unusual circumstance where the victim did not know it was a victim didn't know anything about what happened and that's normally not the situation simply did well in the church a mechanism to find out if it wanted to what was going on and when you that just to both competing interests the dispositional hearing is that already take that's already taken place yes he can notify the church of the final disposition no you know what happened after we  and that was pursued by the defense and while that was being pursued the judge continued the stay so there's been no notification at all to leaders of the church so what no thank you i think in this particular circumstance i would balance the issues involved by taking st there is the balance on the one side of course and i don't mean to say that but if the person confidentiality end of the juvenile act and then on the other side i'd have to find a reasonable accurate and timely notice of a public court proceeding and under a one you do have a right to reasonable protection correct but i don't think going to them sorry no but i think our rights that are out there and it's a very delicate job i almost think of this like sentencing under the sentencing revolution that the judges in the middle of this that judge who and this judge really made great efforts to try to thread the needle in a in  a way that balanced out on a case by case basis the rights and the talking poles of the statutes and in sentencing we give great deference to judges on sentencing now why shouldn't we be great deference to judge man i think i think and i fully agree that he did its best in this particular circumstance i do think though that as a matter of law under a different stance if they did found that there was no st amendment right in that case i don't think we would have had disclosure and that's because there's not a right and a cognizable interest at the same standard applies here there has to be a natural right under the statute none of the rights you just described to a want to actually apply in this case one because it's not a public proceeding to because there's no danger to the individual to the victim so i think again you have to assess start off by saying is there a right conveyed by the statute if not then we look for another interest here there is no other interest and if i may i just to speak very briefly on this is on the on the true threa itself i heard mr daniel indicate that the reference to nobody in response to questions where you attack soon are you planning an attack is somehow a statement that there is going to be an attack and i'm not aware of any case that supports a negative implication of that sort as supporting a serious expression of a true threat and that is because in those circles because in all of the cases you're required to find not only that the person is eager aspirational looking willing to engage in something but they actually say i am going to do this or that i'm going to put the head on a stick and the lowness case something at that that is a direct and specific threat and in this case you don't have anything of the sort quite the contrary as you noted we have a situation in which not only is he speaking only an aspirational terms or and talks about being in the phase of gathering equipment and then speaks of all those things in the context of horrific terrorist attacks elsewhere that he had in his conversation with the undercover informant well i'm not sure well i'll say two things one i think the language used in that and that this is one language that is used in the record is telling and that is want that's b s described it is it there i want to throw molotov cocktail i would like to do this not that again is aspirational that it's not the president intention to cause individual harm that is a desire of some sort or at least a willingness disturbing as it equipment is not present intention to cause a threat or cause physical injury it's thinking about it and he goes on to say i haven't decided on a target i've got a whole lot of stuff i need to choose carefully but he never says he's actually doing something planning something thinking about something thank you very much thank you to both counsel for very well presented argument will take the matter one hundred