please the court good morning and my name is michael burke and i represent mr norio in this appeal i will watch my time in attempt to reserve two minutes of my time for rebuttal and thank you with the court's permission i would like to discuss with the court today the primary issue in our brief specifically whether the district court in this case committed plain error when it imposed a condition of supervised release requiring mr norio to quote participate in a mental health program as directed by the probation officer which may involve taking prescribed medication and quote and he did so without first making the on the record findings required by this court's opinion in united states versus williams the important part of this court's decision in williams is in the summary where the court says before a mandatory medication condition can be imposed at sentencing the district court must make on the record medically grounded findings that court ordered medication is one necessary to accomplish one or more of the factors listed in section thirty five eighty three d and involves no greater deprivation of liberty than is reasonably necessary the district court in this case made neither of those findings before he imposed this condition of supervised release on mr we are dealing with a post williams what exactly is the condition here that we're talking about when you read it yes it is on page twenty four of the e r it is you shall participate in a mental health program as directed by the probation officer which may include taking prescribed medication and i know are not my understanding that's government's argument here and that the co pay somewhat confusingly on the one hand does remain and for the explanation at the same time says but if there isn't one we're going to understand that it did make that statement but then they did remand for the district court to make these specific findings but i think the difference i think between this and cope is that the cope condition was not linked to mental health issues correct excuse me any and all medications that's correct and argument here is that even if you want to rely on that saving gloss that was placed on williams in cope it wouldn't apply in this case because it the condition here applies directly to mental health mental health program and we do argue and i would does that necessarily is your point that any drug in a mental health program would be have liberty implications yes your honor i said i would say yes i cannot think of a medication that would be prescribed well let me state back i frankly think that requiring a supervise supervisee to take any medication implicates a significant liberty interest and that's not what williams said right so that would be not something we could really do on plain there are no absolutely not so let's let's assume were within williams and then i mean i'm not a doctor so maybe you're right  is that right how do we know that like an anti depressant or something that might be in a mental health program is necessarily one of these drugs that effects liberty your honor that was the reason in williams the court required that there be on the record medical findings i guess would be helpful for me to know why you care about this or do you really care about it that is if you can go back at the time that a drug has prescribe and say you know this is not a permissible drug thing at the same ruling from the same judge what's the difference exactly well the defendant has an independent due process right to know in advance what actions we may subject him to further incarceration and the way the cases have been turned out to give you some a blow maybe i'm missing something but i would thought that if the probation officer says are the mental health practitioner says you have to take this drug he could go to the judge before you know at that point and not have to risk a violation now he could he certainly couldn't sell it so what the difference whether he goes when we can deal with the specifics all whether any we deal with this abstraction because it places the burden on mr to norio who when th happens will not be sitting next to his attorney at the time he will be meeting with his probation officer who will be relying on the condition that was imposed and you'll have mr norton on his probation officer and not i was more likely probation officer can't prescribe it has to be the mental the doctor right not the condition that was stated by the judge well that may be and may be unclear about it but i gather that really it can't who prescribe well will certainly that wouldn't be accepted by any pharmacy that i would know of so i think it would be although it reasonably prescribes for who decides whether he has to take it or not sorry go ahead it raises another issue too with regard to compares comparing the specifics of any individual case with williams williams was a very specific case but guarding a client was significant mental health issues who had already been treated with anti psychotics in this case it's difficult to imagine a case in which a court could find that the taking of an s s r i an antidepressant was necessary to further a goal i mean a doctor's presumably would say we recommend that an antidepressant would help mr oriel would help us defend but for it to be necessary to further the goal of supervised release seems quite remarkable well the lies my question for you which is how would a judge make these findings before he even knows what's going to be prescribed or might in an undiagnosed situation how could the trial court decide this is going to impinge on his liberty interests one doesn't even know what prescription what what kind of drug we're talking about here could be tylenol extra exactly your honor and what coincidentally in trying to find an example of how we could make this work without completely removing the condition and i had a decision cited in the briefs and i'm happy to submit a twenty a j it's an unpublished decision from the fifth circuit concerning actually the whist western district of texas and in that case the judge gave the gave the condition that i believe actually works it talks about mental health training scuse me a mental health program and it says however the defendant's refusal to take anti psychotic or psychotropic medication prescribed by such a treatment provider shall not be a violation of supervised release unless the court after affording the defendant due process determines and orders that the defendant shall be compelled to take some medication and the defendant thereafter violates the court's order so in that way it isn't that already the law is so what you're saying is that that language has to be included so that the and the  supervisee understands what medications he has to take or not take and that i understand what his or her rights are your honor and you believe that that somehow clarifies for because i believe your whole argument here is that he doesn't know what he can or cannot do then that for you clarifies he's going to know this is an anti psychotic drug that falls within that whole explanation that's added on and that's going to clarify he's going to know that he has the right to challenge it so we can put that in our opinion i mean it's i mean this all seems kind of not very substantive so my my question was somewhere to judge from before about like why do you care what what i'm wondering is if the saving construction in cope is given so because there weren't findings we say or we make the district court say that because there were no findings he can't have to take anti psychotic medications why is that worse for you i mean why are you fighting the saving construction of coke i'm fighting this this i'm sorry i was unclear about that i'm finding the way that the saving construction is used in unpubli decisions from this court which say no need to worry supervisee you can challenge it if you need to that isn't a realistic answer to the you know what if the what if the the because they didn't do the findings there is a clarification in the supervised release conditions that says there was no finding so you can't have liberty affecting drugs be forced on you is that a problem though that is not a problem i think that that does not exist in this case is that is the problem but would that be i mean is it better for you to have the judge to have a remained where the judge actually makes some findings and says these can be ordered or is it better for you to just adopt the saving construction i'm wondering like what your client prefers to happen here well it's clear from the record that my client wants to be well and wants to be treated it's not an attempt to avoid medication it's an attempt to to acknowledge that he has due process rights so in the candid difference between the cold for sure and the version that you read from the western gist of texas is just who goes first i mean essentially that the defendant in that instance can refuse to take the drugs but he still the same problem you have some doctor you know he  still has to affirmatively do something i e refuse to take a medication and the difference is that then it's the government that has to go to court rather than him yes but i think the more the significance is more more more basic than that because mr turner oriel will know when the time comes that he has a right not to take the medication mr to norio does not want to go back to prison if he's told he has to take medication and his that's not like a western district condition that you read as a model says it says if we are fuses to take it then there has to be a court order but it doesn't say that he has a right not to take you has the right to refuse now that challenge would be a better way to say he has the right to challenge my concern is mr norio and what doesn't he have a right to challenge and under the precedent in the ninth circuit i know that we do know that from the president in the night circuit but we're talking about people who are under supervision day in and day out who are not familiar with unpublished decisions from the ninth circuit or publishers that we can pray flee to the you talked you could have a challenge to  based on the notion that that the condition to be right is allowing the the officer to select medications right yes your honor and i and i think there may be something in that because the notion what exactly does that condition say is the ok oral version what does it say it says it's the same condition that you had before you shell participate in a mental health program as directed by the probation officer which may include taking prescribed medication and so so i am in the government's notion is that doesn't that means it's the program that prescribe some medication but i don't think it says that i don't think so either your honor and i think it's very similar to the language that this court noted in williams and footnote three as potentially problematic but it didn't have to reach it because that was the written version and williams which was not applied ok so here china said thank you very much please the court i'm peter cause i know it's from the u s attorney's office in phoenix the defendant in this case did not object to the conditions of supervised release but affirmatively embrace the opportunity to get a violates he goes back to jail is a bit of a difference there i don't i don't see how it's connected ok well in looking at the sentencing record and the numerous statements that the defendant and his counsel made in connection with supervised release we think that the defense emphasized over and over again that they wanted the shorter in custody sense so that he could get the treatment that he believed and understood and agreed that he needed but he never says i know i have a right to have this court right now make findings about my mental health and whether it's necessary for me to be have drugs forced upon me and i am giving up that right he never said anything like that isn't that what he would need to say for your argument to condition can be imposed and with a woman in construction that he won't be forced to take anything that would likely infringe upon a significant but it happens very different  generic medical condition not linked to mental health this when it was specifically linked to mental health the likelihood that the metal that that you know taking you know  identical or nearly so to the condition and issue here and blatchford the condition read that this is an unpublished opinion rights of what is this going to help us with all right but it shows how how  court has has thought about these issues here and really they both dealt with the identical condition and they both found that in light of the limiting construction of cope and daniels in a it's clear now we can assume that district courts understand the law and know the law and apply it correctly and there's no reason to remain and in that situation and both blatchford and cast in a doubt recognised this this notion that i think is similar to the fifth circuit notion that was mentioned before which is that the defendant will not be prejudiced if the defendant has a good faith belief that he or she is then prescribed a drug that is likely to infringe if they do show at least have some panels of the court have but so look at this if that's the government's position then is there any problem with clarifying it i mean could we add to the fifth circuit language to the supervised release order without be a problem for the government i just i don't think it's necessary here because you know it's a matter of back up from it yes it seems to me it is this condition has and other problems anyway and says shall participate in a mental health problem  right if i'm understanding your question that the what the way the condition has been construed in cases and the circuit is that it's not the probation officer who has any well i don't know why it says that either i mean a mental health program and is it doesn't say an independent middle mental health mental health program are in a medically supervised mental health program as far as one can tell the probation officer can say here's your mental health problem tag and i'm going to get you a prescription for x and you should take it but that's that's not the way this identical in which has been viewed in other cases and again oh my how is that to go back to the same problem has to know that i mean the problem is that this is all at the risk of somebody going back to prison for a violation right so suppose you read it one way it is i mean do you agree with me that it doesn't say what you were what you're saying assess it doesn't say that i mean you're reading into mental health program some official discrete independent entity respectfully though the way this this this goes to the sort of delegation argument in the opening brief the notion that this delegates too much to the probation officer when it comes and the way this court has approached the delegation issue in case after case in stevens rewritten blatchfor in our sorrow as explained in our answering brief pages twenty one or twenty two is that these types of delegations have been repeatedly upheld by this court as reflecting the delegation of mere administrative duties on the selection of what kind of mental health program but not treatment decisions about prescribing medicine or courses of treatment and so forth and i don't understand why it says that it's that let me ask what you know is that because the probation department has for example contracts with certain mental health is because the whole provision is pretty loose so if i mean it seems to me there is an argument for simply getting it stated to mean what it's meat what you're saying it means rather than what somebody what you're saying has been read into it in both respects both with regard to what it means to have a mental health program  well on that point in particular on or a point that coke makes very clear is that the government does have the burden of justifying the prescription of a medication that infringes doesn't say i did not understand call but if you think this is what companies we can write an opinion saying that's what it means that he can or he doesn't have to go to court and say i don't want to take this he can simply refuse to take it and he can't be charged with a violation unless the government no records that you're understanding right that's right and that one cup says i'm sorry it's not that and cope well what cope says that page nine fifty five is that it's the government that has the burden if the government wishes to have medication that would infringe a significant liberty interest the government has to go to the district court and obtain the necessary findings from william so and unless and until that happens the defendant can't be compelled to take such a medication  i'm just so baffled by this if that's what means like you can't do this unless the government comes later then why did coke remained at the time right well so coke i mean this was sort of a new issue at the time and i believe it was also in the hope that there were other reasons three men as well that the defendant may not have had notice and some of the other conditions but it was it was new ground at the time but since then we've had a decade of case law that has this question of who goes first is addressed so it's page nine fifty five i believe and there's discussion there about how if the government wishes to impose the condition it has the burden of going there i can pull the decision but i believe that is that my understanding is that that is a discussion as to the prior condition and the statement that we're going to o the way that cope is then subsequently been interpreted particularly in the blast for it in the in the cast anita case is that the government has the burden always has the burden and the defendant cannot be you know held in violation of supervised release if there is a bonafide objection to taking that medication as to who goes first you know from a practical perspective the defendant would probably contact his probation officer or maybe his mental health professional would and they may informally try to resolve the issue but if it but if it becomes an issue it's the burden is really on the government it does seem like basically says the same thing the fifth circuit has said so i like to ask my question again about whether the government cares i mean you're saying because cason ada says it we don't need to say it explicitly but is there any problem with remaining for the court to say it explicitly here well i think in this scenario we really have it's a very speculative situation we have a defendant who never actually got medication when he was in prison he saw psychiatry six times a year he's now been on supervised release for nine months there's no indication in the record that he's had any real issue with any of these supervised release conditions nothing's been brought up before the district court even when i this answer is making no sense to me so so if we re man for the district court to amend the condition to add these things that the fifth circuit has said and it never comes up what's the problem with that it sounds like you're saying this is never going to come up but ok that is just a little bit of waste of time but not much right so right so from from the perspective of you know judicial efficient use of judicial resources it's really just not necessary to address right now it hasn't been an issue at all oh it has been not as an unpublished opinion so yes it's far as we can tell so far as i can tell if somebody prescribes don or something to him and next year and he refuses to take it is there a nicer case that would prevent him from being sent to prison for not having i think coke with your honor because coke makes clear that the government has to establish the heightened williams warnings before he can be compelled to take a medication that would infringe his liberty it seems like the government is conceding that so what's the problem with someone saying it i mean it seems like we should say that if that's what you think means that you're saying that's the right thing to say and it's the same thing with the circuit says that maybe we should say that is there any problem with that well once again your honor i don't think there's anything wrong with making that clear you know here in this there is just it just there's a somewhat you know hard to figure out disagreement about what piece of paper should say this thing that you're saying is the truth and that is is the rule and why where are all sitting here in arguing about this a little hard to figure out anyway thank you and i well and i would submit that you know in light of all that it's clearly not a plain error scenario i mean there is that there's enough case law on the books to indicate that the district