and this is the conditions of probation thank you good morning your honour's my name is matt schindler i'm the attorney representing can man of bach who's here today i'm pleased to have a chance to speak with you about the conditions of supervision the mr men bar has been subjected  to those conditions represent i think an interesting intersection between the responsibilities of a district court to supervise those individuals who are convicted and to acknowledge that those individuals despite their conviction retained some constitutional rights can so we have a review for abuse of discretion do we not certainly ok so specifically which conditions you continue and are an abuse of discretion and all the circumstances and why the conditions that i've specifically asked the court to address today are the restriction that limits mr mann bach to travel or to remaining within this judicial district without permission from the government that's one condition the second condition would be the requirement that mr men bark direct any petition  correspondence that he might make to the government to law enforcement and then the third condition would be a condition that prevents mr mann bach from going into or entering or driving through the parking on or entering the lobby of a specific designated government offices in view of the recalcitrance of your client historically in terms of h repeated violations and his failure to follow instructions previously why are these within the district courts broad discretion to fashion conditions lead because they don't do anything to really address the nature of the underlying violations i mean his violation was going to a federal criminal trial without permission the issue isn't a history of violations that relate to the conditions that were imposed upon him he's not someone who flees jurisdictions so what is it about the district of oregon that makes us safer or makes or a response to his criminal conduct and if he can go let me ask you something has your client ever ask for permission to leave the jurisdiction to visit is to attend the trial and about absolutely and he was given permission one he was given permission in both instances but that doesn't mean he's given permission in every instance or stand but as he ever been as he ever asked for anything in connection with these limitations where his request was denied well his request was denied which is what brought us down to the courthouse too in the first instance he went to nevada because his request was denied ok well let me ask you this do you have any case law that you can refer us to that indicates that the items if you've listed are on lawful for a district court to impose words could have court impose these conditions so no i don't know it's let's go back to one of the things you've objected to is that he cannot leave the jurisdiction without the consent of the court the court of the gorgon only has over the district of order is a reason for the limitation my question to you is do you have any case law that indicates that for a district court to limit the ability of someone in your client lacks jurisdiction to do something to a probation or go somewhere else i mean they arrested him in nevada literally within hours of him calling of his probation officer calling him so the notion that a district court here in oregon if is if a person walks across the border to washington has no power it isn't fair isn't a another line promise that exists in this case the district court had no problem reaching him into that and so my question is then what's the rational basis for restricting him to the district of oregon why are we safer why is it in if the judge wants to do that is bad the judge explained to me as he's just been he's that the criterion do we independently that's why i asked you about the the abuse of discretion standard was within the wide range of discretionary decisions that are allowed to him in making this restriction or condition so and i'm not aware again of a case that says that the only rationale is safety and i'm not i'm not suggesting that the only rational safety what i'm suggesting is that there has to be a rationale is that somewhere along the line you don't get to impose punishments on people without some reason and i don't i never heard a reason from judgment shane during the course of those conversations in fact it was never discussed it's a standard condition it's done without thought and without reason and this is an example of well the rationale it that that apparently the district court excepted so well are those factually incorrect in your view absolutely i mean i don't think there's any slight circumstances under which quoting the second amendment to someone in the government is a threat that's the constitution that's what it says that's all we did he wrote a letter saying you can't do what you're doing to the forest in grant county and i mean to me that's fundamental to what a person has a right to do one of the first amendment if it was threatening they would council it seems to me quite clear in our case law that even fundamental rights and first amendment rights can be constrained by conditions of probation i mean this is obviously a different situation than what  see ample that's very common is someone who has engaged in child pornography who is not allowed to have certain kinds of materials or speak to certain kinds of people so there is not a blanket rule that  first amendment that otherwise applies trumps every possible condition of probation so i'm not suggesting that of course there are legitimate conditions of probation that should be  view of the recommendation of probation that the practices that your client having gauged in previously would justify these kinds of restrictions why is that an abuse of discretion by the users or because  condition of restructuring has traveled to the state of oregon or directing correspondence to law enforcement does not address those it so it doesn't respond to any of the concerns that they had if he could go to of an anti government rally in salem oregon at without permission without talking to anyone why can't he go to an anti government rally and why we could california what how does that how is that within a court's discretion to make those decisions because that's essentially the way may appease the court briana swift on behalf of the united states there are three reasons why this court affirmed first the challenge conditions appropriately accounted for the defendant's history and characteristics the nature and circumstances of the offense and second the conditions are reasonably related to the a political sentencing factors and third the conditions are narrowly drawn so as to not overly burden the defendant while also providing sufficient oversight to fulfill the a political sentencing factors and just to address few points but my colleague on the other side the defendant the defendant was never denied any requests to travel outside the district of oregon and that's apparent at ten through eleven does that matter in terms of the reasonableness of the condition itself i mean suppose that someone was told they have to have permission every time they went to a starbucks to have a cup of coffee and they were always allowed but is that a reasonable condition i don't really understand how the permissions given later make the condition oh well this court in watson specified that whether the defendant can obtain permission at all does go to whether it's reasonably necessary and that's the second prong of the three five six b factors and how does that answer your question well kind of but i think it would be more helpful if you talked about why conditions are reasonable without looking to how they've been applied short was the district court explained at the probation violation hearing and this is that you are twenty four the courts rationale is that our jurisdiction is within this district sort of reflecting what judge smith said this is where we can supervise him if he's going to leave the supervisory boundary of the district of oregon asking him to get permission and make sure we know where he is isn't asking a whole lot especially when he's going to be given permission for reasonable thing for state offenders can you give an example will the state offenders or would that apply here at all it is not my understanding that it does apply here so that we should not consider that as a rationale not under the interstate compact for adult offender supervision however there are some requirements in various states that defendants be given permission before they enter just based off of their history so probation officers do you contact states when they are notified that a defendant is leaving the jurisdiction to make sure th road with respect to three very long standing general conditions that the sentencing commission determined were not adequately explained that people would know what they're supposed to do and we struck them down is this a situation that should be similar were this is perhaps stretch too far the travel condition you know your honor i think that it's clear and from other circuits that that have addressed this issue head on that this condition is an administrative requirement that's necessary for supervision and that goes directly to what the court explained here that this condition is necessary for the defendant supervision and this makes sense because only if the district court and the probation officer know where the defendant is can they adequately supervise him and as this court recognized in blinken stop and to reno which we cite in our brief the purpose of probation the purpose of supervision is deterrence public protection and rehabilitation couple three five six three be factors that apply to probation conditions here so in other words to respond to your opposing counsel's comment what's the problem if you can go to an anti government rally in salem or were he indicated in oregon what's the difference between that and going to one in nevada your answer i assume would be that he's going for that it's the fact that you don't have probation officers there that can supervise is that give consent they can make arrangements with counterparts in other places so for example when he went to visit his son i think they would know where his son live they could make arrangements there when he went to the trial i think it was a las vegas but i may be wrong  they would know that but it was all arranged so that they would know where he was and could make appropriate arrangements is that correct that's correct and it also fulfills the statutory duty of the probation officer to keep informed of the defendant's conduct and condition and to  probationer in bringing about improvements in his conduct and condition and as this court recognize we do a substantial deference to the district court and as we cite in our brief with the case of sim's we owe deference to the district court's judgment about which conditions are needed to ensure the successful supervision of the defendant moreover the district court's explanation that this condition is necessary for supervision provides a reasonable nexus and is supported by the defendant's history the defendant has proven difficult to supervise at the per the probation but the probation violation hearing was based on the defendant's violation of this very condition and i think that supports its need moreover during pretrial release the defendant violated the condition that he not enter federal lands when he occupied them out here wildlife refuge additionally the defendant has prior prior convictions for federal land violations that occurred in the district of washington there's more federal land outside the district of oregon and it's reasonable for the court to believe that the defendant may leave and committed an offense outside the district on federal lands that's not in oregon and i gather the government would indicate that it is very history that underlying  ys rather just records rationale for imposing these conditions absolutely additionally the conditions do not impose a greater burden than reasonably necessary their narrowly drawn and for instance they're not a complete ban they allow him to get permission and they are limited in duration only extending the can the period of probation the district courts explanation was adequate much longer the period of super  i believe it's probation your honor but he was first put on probation in august of two thousand and sixteen and it's a five year probationary term so twenty twenty one ok the district court explanation makes that the condition is not overly burdensome it's not asking a whole lot and he's going to be given permission for reasonable things as he has and the record shows that he's never been denied any requests that he's made the the  these law enforcement officers know the defendant they know his probation officer and if they are given information that is concerning they can directly report that to the court and they can address his conduct and condition in an effort to aid in his improvement as is the purpose of probation and there's nothing to suggest that that his his letters will simply be thrown it makes sense because it also allows notification to people at those two agencies this is only only in regards to the b l m and forest service that allows those those agents to notify the employees and put them on notice and not cause any unnecessary anguish by his presence there offices and was seen driving through the parking lots of these offices he also has as a court mentioned a history of using intimidation practices for instance the district court said the probation violation hearing that the letter sounds like a bunch of this is that you are forty two that sounds like a bunch of guys are going to grab some guns and come down to the office and that makes people nervous he went on to say that it makes people nervous when the defendant testified at trial that he knowingly placed himself near armed militia who had a pretty negative view of the government to act as a security force for him so is this answer in part in council to comment about reference to the second amendment that those who received that comment given the history could reasonably construe those as a threat to use firearms yes and i think that they record makes clear that these employees were skittish by the defendant's presence and his history unique history that they knew about again these conditions involve no greater deprivation of liberty they're limited in duration and he can still go in person to these agencies and i see that i'm out of time we would unless there's further questions i don't believe some of the conditions imposed are reasonable and within the district courts discretion and we ask the court affirm thank you thank you mr schumer you have  think there are conditions besides the conditions we're discussing here today that applied to mr mudd ball and so every single issue that they have raised in terms of responding to this man's you know threat of a criminality or addressed with elsewhere and so these aren't about responding to those issues how do you know that well first of all because that isn't what the judge said i mean nobody said anything about this travel condition no one no one says anything just do it counsel you're obviously any advocates had some experience when you're talking about general conditions particularly when they are limited in time  how many times have you seen a district judge go through those one by one and explain them but truth be told you are it was the first time i ever thought about it exactly because it is it's not something that comes up frequently this is the first time i've ever thought about  big was because mr mann box said i wanted to go to an event in why reka and so i called my probation officer and i left a message with my probation officer and said i'd like to request probation permission permission was not denied to him it was just never   part of my argument is that it's not enough that people say yes as you duly pointed out it's the question of whether and what things were appropriate to have to get the approval nearly unreviewable approval in many cases of the government functionary and in terms of threats again you have the letter the letters in the record and it's not a threat it is a statement of const of the constitution of the second amendment counsel respectfully when you read the total record of this case and your defendants shall i say longstanding concerns about the government and its practices are you saying that it is unreasonable for the district judge to take into account some of the things that your client has done and said with respect to government officials and government land in imposing these conditions of course it's reasonable for him to consider someone's history in the star doesn't but that doesn't justify the onerous level of conditions applied to this man given the conviction that he suffered but there's not a child pornography i understand but again this is as my colleague and i both indicated this is we review this for abuse of discretion i think you've indicated candidly that given the background that there was there were bases that the court could rely upon these are standard conditions people usually don't talk about them this is first time i remember anybody bringing these up kind of a unique situation but it's hard to see how we could find the district judge abused discretion given the history involved here well what i would point to again is the presence of conditions that make perfect sense like you're responsible for disclosing a residence to your probation officer where you live you have to disclose travel is necessarily a momentary experience but to go  a day to go see your son and not be able to do that because you can't get a hold of your probation officer is not fair and that didn't happen it didn't happen this time though we are supposed to speculate that it might happen in the future you have to look at a condition based on how it's going to be applied not based on how it was applied what could they do they could say i'm not picking up the phone today so you don't can see your soul that's what could happen and so that's why we're here thank you counsel did you see did your time and we understand your position the case just