good morning i'm john rhodes from the federal defenders of montana in the missoula office i represent tony bronson the supervised release condition prohibiting mr bronson from possessing obscene materials is unconstitutional in two regards first it's vague because it lets the probation office determine obscenities it's also an impermissible delegation of the district courts judicial authority bronson both from his jail cell as well as from his residence when the child pornography investigation searched his house and when the government was asking the judge to forfeit those drawings the judge said i don't think it's right for me to say whether it's obscene or not maybe that's a legal conclusion it seems to me that you're confusing the constitutionality of the statute with the nature of a forfeiture proceeding and as i read judge m comments what he was saying is i don't have any evidence before me here we're not conducting an evidentiary hearing on whether or not this is obscene i need i need some evidence here in order to make that determination and that proceeding is going to have to take place at some other time so i'm not ruling on whether or not he gets his drawings back did i misread the record that's how i understood what he was saying ultimately he said he wasn't going to adjudicate the forfeiture issue absent a separate hearing he did have the evidence of the drawings those were submitted in camera under seal to him and when before he got to his ultimate ruling he was discussing or non here were dealing with the supervised release condition of incidence of district court in essence incorporate the definition of sexually explicit conduct under four hundred sixty six a and then couple that with the supreme court's decision in miller to  define as best he could what conduct was prohibited under the special conditions that's fourteen sixty six eight your honor was expressly incorporated into the condition but the big difference here is that fourteen sixty six a prohibits obscenity possessed produced with intent to distribute and that's a critical distinction because here there is no intent to distribute drawings that are sexually explicit as defined in four hundred sixty six a and i'm going to apply the standards of obscenity under the supreme court's miller decision and i don't what more could the district court say in terms of defining the contours of this special condition over supervised release that gets back to the district courts frustration with trying to provide guidance regarding obscenity because the court even said with respect to the c s drawings is that obscene well we'd have to ask the community and lack the judge ultimately is going to make as you put it i think a legal decision is that correct the district court judge sometimes called it a legal determination sometimes called a factual determination but ultimately yes it's a legal determination and that's the problem with having the probation office determine it well but that gets to my point that i'm not sure i completely understand your argument that the probation office would be determining it because ultimately all the probation officer gets to do is is to bring it to the attention through a revocation and the probation officer doesn't make the decision the judge does that right but the beginning of that process is a petition to revoke supervision the judge and that's like somebody arresting somebody on the street they don't get to decide if the arrest is legal so you haven't delegated that authority i mean all kinds of law enforcement personnel are part and parcel aspects of the system but your argument is that somehow there's been an abdication or a delegation and you know i look at near key in some of our other cases and i'm just trying to figure out maybe your argument is different than that what's your best case for saying that there is a an inappropriate delegation use the critical word arrest so the probation office can go and ask for an arrest warrant and that's obviously a major event in individual's life to be subject to an arrest warrant lose their liberty and go to jail so this goes back to the question from judge tallman regarding the shales case the supreme court decision in miller and shales which relies on the supreme court decision that williams all say the key to preventing obscenity from being a vague concept is the jury trial because you had jurors determining what the jury trial and prove beyond a reasonable doubt that's what i think the just record judge was struggling with and if you look again at the shales decision it says just that that that could there never be a probation condition possessing of scene of materials alone is legal under stanley fi georget it's the intent to distribute that makes it a crime and again what cheers the vagueness in this is expressly stated in shales relying on williams and the right to jury trial on the importance of the jurors determining what the average person in the community would believe appeals to clearing his action of child pornography in and of itself be a separate criminal offense that would be a violation of those conditions a supervised re yes that's a separate condition that's what he was alleged to be drawing was in council it's not child pornography if it does not involve a real person that's why i believe the district court came up with this novel condition because if he was what he was drawing was child pornography it's in the possession of the government i think we'd have a separate prosecution and i'd like to reserve my remaining two minutes th good morning your owners made please a court i'm leave johnson for the united states let me start with the constitutional standard here the vagueness standard the same constitutional test for vagueness that applies in the  applies to conditions of release this court has held that in united states versus hugs and that holding also relies on the third circuit's case united states versus boy i bring that up because the test is whether or not the either the condition or the statute is in so indefinite that a person an ordinary person cannot understand what is prohibited and it is subject to arbitrary enforcement and that's really what we're arguing here is this condition the obscenity condition that's been approved in the statutory context shales is somehow in the in the condition of release context so indefinite that it is subject to arbitrary enforcement by the probation office procedurally how would you see it playing out if the probation officer felt that the senate was in the possession of obscene material and the defendant was of the do you know this is not obscene material how would that dispute be resolved in the probation context in essentially the same way as the statutory context in the sense that you would have a probable cause officer which is the probation officer who would under his statutory duty bring notice to the court that he's found a violation the court would then apply the proper standard of proof and make findings of fact and essentially be the finder of fact that the jury is in the criminal context and so what we see is a quote pornography in the court said you know here that term is still indefinite that what it does is is a probation or doesn't know what's prohibited but also the probation officer doesn't know and so he's going to be  applying whatever he feels is titillating to himself to satisfy that condition and the court said that's unlawful because the only way the probation or learns what's prohibited is by repeating the repeatedly going before the court and being revoked and that's the problem that all of a conditions have either in a statutory context or in the conditions context it's the same problem and that problem is demonstrably not present with obscenity and as the court  made very clear and as this court made clear in the gagliardi zero decision obscenity is different than pornography i mean the supreme court has gone you know out of its way in many many cases to explain what it means to apply the community standard to the prairie and interest what it means to be patently offensive sexual conduct and those are the elements of the miller test and taken together as this court held in shales they are  definite statement of what is prohibited now there are indications here that the defendant in fact doesn't understand what that means is he stated at page forty seven of the record that he was adjusting his contacts and his conduct to take genitalia out of his drawings that obviously indicates that he is somehow aware of where the line between acceptable conduct and where senate he begins i raise that because we think at the end of the day the shales decision really does control this case and when you combine shields with hugs and in you acknowledged the same a test applies in both cases there's no question that the probation officer has a difficult job here but it's not a job of that is subject to arbitrary and discriminatory enforcement it's a difficult job of defining where where the defendant has crossed the line and that job is just as difficult in the statutory context for a jury as it is for the judge in the context of a condition a revocation right i mean and as the court stated it shales and i think the court ought to look to this language at the end of shelby said look the difficulty does not make it unconstitutionally vague it's the lack of definiteness that does and now my friend my friend on the other side has as stated well you know the court relied on a jury finding to sort of reduce  that problem in the statutory context but i think he's overreading shales on that point i mean i think if you take shales in proper context the statutory context the court is saying look there is one question of vagueness that's definiteness that leads to arbitrary enforcement and there's another question of difficulty and everybody acknowledges that the obscenity test is difficult i mean it's got three standards they're applied by the community and  that is a line that sort of we don't marks the outer boundaries of acceptable conduct but i don't understand maybe this is a question for mr rhodes what's different about the district court sitting as the trier of fact in a probate in a park provides release revocation proceeding i mean i suppose it could impanel a just an advisory jury if it thought that would be necessary to establish prevailing community standards and in missoula but i just don't see how this is any different from the district court's role and responsibility to make findings of fact when there's a contest about the evidence of whether or not the condition was violated we agree the finder of fact in a criminal case you know could be the court with the defendant's agreement obviously so here the court is applying the appropriate standard of proof to the evidence that's brought to him it's the same there delegation issue outside of this sort of arbitrary enforcement problem that's raised under due process this court has in some of its cases in some of our site in our recent discussed delegation in a statutory context this case doesn't raise those problems and that delegation issue is whether a probation officer you know extends beyond his duties as set forth in eighteen u s c these three zero six three i think it is in this case those duties clearly include notifying the court of a potential violation so the fact that a probation officer has to bring to the court what it feels is a violation given the standards that are this the probation officer is supposed to bring violations of sexually explicit conduct that it deems appropriate in other words there is always a value judgment made by the probation officers in these cases there has to be  that that the probation officers discretion then becomes completely arbitrary and subjects the probation or to this sort of arbitrary enforcement regime that i discuss so to say we think that the shales case ought to be applied thank you your honor the government began its argument by saying that in the revocation proceeding the trier of fact which is a single person the judge would apply the proper standard of proof which is preponderance of the evidence and that goes back to the shales decision where in terms of wrestling with the vagueness of obscenity the court says the problem that poses is addressed not by the doctrine of vagueness but by the that as a alone exception to the fact finding role of the district court in determining any other violation of the condition of supervised release and it goes to the  obscenity where in miller the supreme court adopted this community standards so you know helen that you don't think a district judge if he heard testimony let's say from expert witnesses at the probation revocation excuse me the supervised release revocation hearing the district judge wouldn't be competent to make that determination not under miller because miller seized upon the importance of the jury to make the standard you know what what if he the community of lying and what's your best to support that argument or this statement in in shales miller williams shales and the district court judge here even said and i'm quoting right from the transcript is that obscene well we'd have to ask the community in the community is the jury so in this very unique context of obscenity law you cannot have this condition determined by in the first instance the probation officer in the sex a second instance a district court judge sitting as a trier of fact under the preponderance of evidence standard if you have or heard of an advisory jury being impaneled in a probation revocation proceeding no and probably like yourself your honor i've been in dozens dozens and hundreds i've never heard of it but i think it goes the uniqueness of obscenity law which has again been a real thorny issue for the courts for decades thank you thank you your honor sir thank to you both for your