so this case is about whether a person can be prosecuted for criminal contempt where the court did not have the power to issue the order that forms the basis for the contempt in the first place why prescribes the very limited circumstances a district court judge or korg can limit the communications of a sentenced prisoner mr adams was sentenced on a supervised release violation on the date that he was sentence he was now in b o p custody under thirty five eighty two d it specifically says that a court can limit the communications with specified persons upon a motion by the us attorney or by b o p going to the court and showing by probable cause that specific person should be not contacted by a defendant serving a sentence in cases where contacting contacting that person would promote a criminal enterprise we did not have that here mr adams was not under that under thirty five eighty two d it limits communications of people possession therefore his communications while he was serving the sentence are controlled and regulated by the bureau of prisons the judge by issuing this order issued an illegal order after consulting with his attorney he withdrew the appeal there's nothing in the record to indicate that that order was the basis of why the notice of appeal was filed but i don't know that he had the opportunity to do that and he did and he correctly he clearly did and so why isn't that a way for it's not a waiver because if he wasn't even that looked at all occurred in november two thousand and fifteen he wasn't indicted on the criminal contempt and till may two thousand and sixteen just before his release on the supervised release violation it was in the knowing and intelligent waiver the right because he didn't even there was no evidence in the record suggesting that the u s attorney was going to prosecute him for criminal contempt for whatever communications he had in jail  according to you that they order the judge couldn't issue that water and that was certainly something he knew he could have appealed at that time that's not in the record your honour's there's nothing in the record in fact that's part of the problem here there ways in the record it's we have to start doing i have to know that what he talked to his lawyer about i mean that seems rather curious that we would have to know what he talked to his lawyer about in order for any waiver to be valid it seems like he filed a declaration in which he stated that he had decided to waive any right to appeal the sentence after consulting what does then attorney why isn't that enough well because that doesn't encomp that the challenge to the order as a legal and in fact your honour's the reason why well what you're saying that we can't reach shouldn't have to know what were the communications between the attorney and the client i agree with that but we should the former girlfriend are not part of a criminal enterprise yes your honor so let me ask you why why that is what is it your position that well i a california statute dealing with criminal terrorist threats penal code section four twenty two in fact there is a federal statute that criminalizes interstate communications of threat in what our challenge is what we think was inappropriate here your mind was that this is the basis of a criminal can have prosecution but the why couldn't why couldn't the the judge here child they were saying that the time you're on his special so especially while unsupervised at least adam's assault it's undisputed he assaulted this girlfriend the same person and so it was on violating his supervised release on that's specific for that specific reason and he's told you not to post to have contact because he's been violating the act that rule and yet he continues i think he calls her and threatens her over fifty types while he's in custody is that correct that's correct your honor so i guess i'm trying to understand i'm sorry to interrupt at school but i wanted to put additional detail on that why did the court not have inher authority to issue the no contact order because your honor says that that leads to a different question ok it's clearly that the order contravened congressional mandate under thirty five eighty two d because he was justice or to protect witnesses then we should but the court didn't make any specific findings about that didn't make a finding that she was a witness well she wasn't a witness your honor she didn't testify in the supervised release violated because she didn't show up she was ted been the victim of the assault that's correct your honor but she wasn't a witness and secondly the case was over it's unlike the case of united states versus morris where the court did issue and make the particular findings that the court should have made in this case saying that well there's going to be a retrial the victim is a potential witness impending the reach trial we're going to issue this order preventing the defendant from communicating from the victim but that and the district court here didn't rule on its inherent authority correct it relied on the collateral the collateral borrow and what and so why isn't nontrivial concerns about the legitimacy of this order the district court rested on the collateral bar brawl but the collateral bar rule doesn't apply when there's an attack on personal or subject matter just jurisdiction and this is an issue of subject matter jurisdiction because congress is carved out that district courts are not supposed to regulate communications of a sentence prisoner and so because it wasn't addressed by the district court because it's a matter for jurisdiction very limited your honor said that was a judicially created rule in wheeler and in fact insert tello what the court recommends when the court issues that it came before so tell us where the defendant did appeal and so tell remanded and told the district court that we're you should construe your order as a recommendation and that's another way that this court could harmonize district court order by cons recommendation if it's a recommendation then mr adams is not in contempt of the court's order but i guess i'm trying to understand it seems that the basis for your subject matter jurisdiction argument is that the court h contact order in in this case which again is an argument the collateral bar roleplaying really seems to prohibit and the basis of your subject matter jurisdiction argument is not that the court simply lacked the authority to issue the no contact order in this case which would i guess fit more squarely within the subject matter jurisdiction exception to the collateral bar role because you concede that courts have the authority to issue no contact orders but just in a very limited circumstances that right well i think well i can see that your honor because the ninth circuit is ruled out way but that's a judicially created rule that was made in we are to to get around the clear subject matter that congress has dictated to the court in its laws that district court is not supposed to regulate communications that sentence prisoner so they carved out a very limited situation i still think i would submit your honor said still is a matter of subject matter jurisdiction and if you don't meet the specific findings if you don't find on the record that's for the purpose of contact and therefore they just have to let them continue to do those numbers if the want to they can prosecute them for a bunch of separate crimes no no he's in prisons custody the court did in i would also argue to the court i did put i do argue that it's really a condition of supervised release and that the order is very ambiguous and if you read the transcript if you read the specific written order it says that he sentenced to sixteen months in prison and as a condition of supervised release he cannot contact the the victim that your honor i think i if you read my i'm sure you've read my briefs ip outlined in there several instances where the district court judge says i can order it i'm making a recommendation  if it's clear in the oral then he's he's bound by what happened in oral but even if he wasn't clear it was also in the written order i would ask the court to look at at the written order it's comes under the provisions of where he's talking about supervised release but anyone reading that understands that when you're in prison you're not on supervisor lisa it was just misplaced in the order her act well i would say pretty clear a condition of supervised release if someone's reading that they could reasonably conclude i'm not on supervised release i'm in prison this does not buying me so i can continue with communications  not that he can continue to does violate the law as i've said in other respects your honor you're correct but as far as we're talking about here he got sentenced to twenty months for criminal contempt under criminal contempt there is no statutory maximum if if someone in criminal contempt commits a crime under broussard it's guided by the sensing guidelines a person who violates criminal contempt with no statutory maximum can face a life sentence and so very serious if we're going to hold people responsible for can criminal contempt then i would say at the least the court should be very clear in its orders and it shouldn't be on the defendant to divine exactly what the district court manit the district court should just be clear and it just didn't occur here your so you think the defendant thought that it was ok to make these phone calls from prison and it didn't violate an order of the judge no your honor we don't make that argument your honor but we have to look at what's reasonable  objective based on the court did order it's not up for us to put the defendant responsibility to divine what the district court meant yes obviously common sense dictates that you shouldn't be threatening any person in this objection to the whole plan a plea of other criminal violations and i would just say one other thing on the waiver your honor because you did raise that i was doing research yesterday there is a case united states versus gra appeal that the supervised release condition was illegal and the court said we also reject the government's contention that brehm waive the right to appeal the conditions of a supervised release because you wait until after you've violated the conditions before you challenge them ok thank you thank you must be obeyed until and unless they are properly challenged that did not happen here what happened here was that the defendant violated a very clear no contact order prohibiting him from contacting the victim whom he had assaulted you'd seems like you never weighs the raver argument in the district court so i guess first let me just ask oh i have you not forfeited that argument here on appeal your honor i believe that the weaver argument collapses with the collateral bar rule in this respect the government did argue at the district court that these the defendants contentions about at the district courts with the defendant claimed improperly imposing a no contact order should have been resolved in this waiver and then there's the collateral bar are you saying that's the same thing defendant waive their rights by not appealing orders properly and the way that the law requires them to do so without respect i wouldn't say that the government is for fitting that argument because it is in substance the issue as to whether the no contact order was properly imposed or whether the district court made the appropriate findings and that is because of the collateral bar will if the district court did not mean the re findings to impose that no contact order which the government believes was properly imposed that was what the defendant should have raised in direct appeal or even in the twenty two fifty five mr mclean is saying that there's that the district court didn't have the subject matter jurisdiction for the bar rule to take effect can he respond to that yes and that would be the second response i think based on reading the law of criminal contempt and the quantum of our rule there is a significant recognized all three but under the subject matter under the jurisdictional exception the defendant must show that the court didn't have subject matter jurisdiction or personal jurisdiction over the controversy not necessarily the power at the power to make a certain order the way the courts analyze that is whether the district court had subject matter jurisdiction to have the case at which the order emanated and here the district court had subject matter jurisdiction there was a criminal case and the defendant was supervised by this court on supervised release so the district court had subject matter jurisdiction the defendant cannot tape in an or and see that the order because it purportedly was unauthorized to the district court didn't have power to impose that order and convert that into a subject matter jurisdictional defect the defendant has provided that conflates those two concepts and in fact the government has pointed to a case with this distinction is very clear and that is in re nowak that is from a different circuit but in that case the district court had ordered a nonparty to participate in this i believe it was the insurer to participate in a settlement conference the circuit court in reno back in analyzing whether the jurisdictional exception was met look to see whether there was subject matter jurisdiction over that case and in that case the circuit court eventually did hold that the district court didn't have the power to order in nonparty to participate in the settlement conference but that still was not enough to overcome the collateral bar and in fact even in holding that the district court didn't have that power thereby making that order invalid the circuit court nevertheless up held the criminal mine workers case even then when the supreme court had held that the north with already acted in the fight of the federal government and therefore arguably there is an issue of jurisdiction that was an issue of power and whether the district court could have issued that certain injunction and even then the supreme court had held even if the injunction was invalid the communal contempt convictions stand so that would be the government's response to what the defendant argues today is that a lot of the defendants arguments the defendant concedes that the district court had the power to issue this no contact order that is one that is with this court has vested district courts to do to impose no contact orders to protect the administration of justice what was being protected here there are the record shows that there are multiple interests that remain protected here one was to prevent further domestic violence the second is the record supports of would support that what was being protected was protecting the witness and that was the victim and doesn't have to be tied to a criminal enterprise because i think that's what mr mclean was arguing  section thirty five eighty two i'm sorry that specific statue is not coming to mind but if i can see that judy i think isn't yes that statute is a is to protect to prevent further crimes from happening in a criminal enterprise in rico cases the government does not contend that that statute applies here the authority for the district court to impose the no contact order and the needed soley from its inherent authority as as encapsulated by the district court never addressed this correct whether it had inheritance already if you know with ability of the order it it rested on the collateral bar rule that yes and so if we don't then therefore examine the propriety of that no contact order the government first would say that the record supports the propriety of that order and that the facts that support that would be that the defendant had violated to no contact orders while unsupervised release and one south dakota state court where this occurred and then once an interim no contact order that the district court had imposed and so and based on the calls that were elicited at the hearing the defendant continued to twer meant abuse torture and intimidate that victim and so why not file another charge regarding the terrorist threats over the phone or whatever charges you have at the state or federal level might go after this person through a criminal contempt proceeding the only one respect this is what this is what the defendant at some point this is a different this is to highlight and he's charged held accountable for what he did as well the district court judge acknowledged at the time of the sentencing i'm going to issue this no contact order while you're in prison while but he did make a comment to i don't know that i can make the bureau of prisons you know enforce this but i mean it anyway so i guess there's some acknowledgement by the district court that the importunate was going to be somewhat you know certainty which with respect to that especially with respect to the prison being able to enforce it or he knew the prison would not be able to force it so i'm just to prevent inmate whether it be how they use the phone how they access accounts so that explains that aspect the second aspect is why this criminal contempt charge that is the government's responsibility in deciding which charges to bring  i would represent to the court that the criminal contempt charges here best cover in one respect what the defendant was doing forthright and that was violating that drench court order which is particularly just after having violated that same district court's order in the revocation proceedings and another court's order to not contact that same victim while in state custody before you conclude i just have one other question so it seems like  mr palmer is asserting two arguments here on appeal one it appears that he's challenging the validity of the you know that was not valid or the strict court didn't have the authority to do this but then he also challenged that it was ambiguous and so i guess that sort of challenging the because of the confusing nature of it that it was improper or should be enforced and what's your noted that it was clear on the defendant that he was not to contact that victim while in custody and as was pointed out by the panel earlier that was clear in the oral transcripts which controls and even to the extent there larger point at there this argument could equally have been pursued on appeal and it could also have been pursued on a twenty two fifty five if that was appropriate and even to this date no motion in that matter under twenty two fifty five had ever been made defense counsel in the disappoint below conceded that if he was the attorney he would have appealed it and so therefore that possibility existed then it existed on twenty fifty five and it was never pursued thank you your school do you have any other questions no questions here now thank you thank your honour's i'll give you a minute let you go over seven i minutes violated you can still challenge the village to the the regulation even though you violated first which i think is directly the situation here secondly i would say the clear this order was clear as mud and i would just asked your honour's to read the transcript of the supervised release violation hearing even the district court in its written order on the motion to dismiss said defendant counsel raises  we can challenge it based on the collateral bar doctrine so i would say even the district court knew that there was proper order was very problematic and if we're going to subject someone to a criminal contempt prosecution the district court order should very clear and the third thing i would say is that you know there's a real debate and confusion as to what the collateral bar rule means and what it says all i would say to you is this the b o p control  prisoners are treated and supervised in prison the courts regulate cre sentence because they're in martial custody and they can issue orders concerning conditions there and i would say that is the definition of what subject matter jurisdiction is and therefore it can be attacked laterally thank you thank you both very much for your our argument presentations here today the united states of america versus paintings from our adam's case