and not to pander to judge wardle in the virgin decision but i believe that that decision that was pointed out by the court is helps us in that that's a positive aspect of the mountainous question that the government has raised the burden was not moot and the factually he had completed his prison sentence but had just started his supervised release period his in his first year of a three year term of of supervised release the sentence challenge in that case was to an enhancement which could affect the sentence and this court has always ruled that the sentence is both the period of incarceration as well as the period of supervised release just like mr hoon was in the court in verdun points to spencer  palombo and in both of those cases they found that the issue was moot and in both of those cases the individual had completed the prison term and in spencer completed his period of paul and then palumbo finished his supervise release at the time of the appeal is sent so in this case what mr hewitt is arguing is still problematic for him he has an ongoing issue with his sex offender treatment program and the protocols and the way that the probation department deals with that so i do believe that the not miss issue verdian settles that for us because there is on knowing an issue of  continued supervision you honors the government i disagree with the standard of review in those cases as you may have noticed the government believes this is an abuse of discretion and if we were just arguing to the revocation of his supervised release the government would be right it would be abuse of discretion but what we're arguing here is that for a dyno for a review which obviously benefits my client but more so we had challenges to what gets us to the supervised release violation first of all we are kind of arguing there's a constitutional challenge with the fifth amendment we're trying to argue that antelope controls there what mr hewitt is required to do in his supervised release he has to go to his sex offender treatment program yes to sign up for it and apparently there's a contract with that i don't know what that contract says but i know some of the results of it are he couldn't go to the mall that was a violation of his soup sex offender treatment protocols he couldn't have a relationship with a scenting adult woman that was a violation also so what ends up happening is he was required to truthfully talk to his sex offender therapist and isn't that an important part of therapy i think it's essential part of therapy a so what real serious danger of self incrimination is there from his talking to his therapist and telling the truth to is there a post well there is no there is no constitutional question if that information stays with the therapist now if mr you know stop that that's not the question i asked what real danger of self incrimination does he face in what he said the real consequence is that the information he gave which was violations of his sex offender treatment program but not by elations of his supervisor these were then he was then forced to write those violations down he was then forced on friday april twenty first to call his probation officer and confess those twenty two things that he did and what future prosecution did that lead to it did not and it didn't interest so who didn't face any serious danger of self incrimination did he in less here than antelopes case or as in bars case now an envelope the first face prosecution in the future for crimes he does he committed there's none of that here no not in this particular case since so the antelope standard doesn't seem to help you what is the real danger of self incrimination well the real danger is that then the therapist kicks them out of the program ok it was a violation of his supervisor that's not well how does that get covered because because murphy tells us the revocation of probation is not something that the fifth amendment privilege applies to right but your honor you just said so i'm waiting to find out what's the prosecution he fears where's the prosecution i don't see it ok the prosecution the fuel and is afraid of at the time is continue to prosecute prosecute in his mind he thought he could go back to prison for a failure to complete his supervised release that was his fear but the truth is if anybody is caught it is having a conversation with their sex offender therapist and they do have to admit to all prior past crimes or if they're doing something currently so it's a asking the court i'm writing for reference to marijuana right so so somebody tried to prosecute him for possession of marijuana maybe there's a fifth amendment privilege that would prevent that from being used against him certainly would be but nothing else here seems to trigger the fifth amendment so i'm not sure what basis there is for for his complaint maybe somebody else in some other case going to play on a low but i haven't heard from you why he should be allowed to apply and that's one of the problems of my argument is that he was not prosecuted for things and in fact and if you can see it as as the supreme court's decision a murphy seems to say that there revocation isn't something where the privilege applies then i don't see his his argument that's fair i understand let me ask counsel related question the murphy case is a very important case for this case and there's that footnote seven which is really bad for you yes it has put on the table as a bad footnote for you i want to give you a chance to explain to us if you have an explanation maybe you don't why footnote seven doesn't apply in this case how can we navigate around footnote seven to get to where you want to go sex offender therapy and one of the goals of sex offender therapy has to be that whatever issues you're facing you can come up with some tools some mechanisms to overcome those so that you are not  think is the goal of sex offender therapy which is also the goal of supervised release and serve as you've sorted you later what is what is the long term he goes back he says i told my therapist the things that on a lot in two months i mean he's only been out for two months and he had a lot to report but that's not a bad thing except that he gets tossed out of therapy because he's not responding to their program that's a well other problem the problem we have here right over factually what happens is he was released from prison in january and it takes is there's a process to signing it up he's actually not signed up for sex offender therapy until the end of february he doesn't get the there's a program that goes on to your phone or your computer to monitor the things so his violations actually occur for the most part prior to his actually being into the therapy and having the guardian eyes or or whatever the the the program is he is well into his therapy i'm sure he's well into a supervised release before use into a stay or appeal the therapy he's about a month into it and he has realized he is doing all these things that are incorrect and then he makes the confession on the friday the april twenty first on the letter goes out kicking him out on saturday i assume that the probation department gets that letter on monday because they file the violations on tuesday that only include the twenty two things he's confessed to  morning may please the court john sullivan for the united states i'd like to start just with the movements issue before we get going into the merits i don't think burden in this case compels the same result because in verdun he was only challenging the two level enhancement for his obstruction of justice that had this court reversed on that issue he would have faced a lower guideline range and potentially a lower term of supervised release or a shorter term of supervised release isn't that the case here release again as you did in the original burton i think would be more analogous if mr verdant challenge not only that you know wine to the p s r writer about his true name constitute obstruction but that had he also attempted to escape from custody pre sentencing and then he went up on appeal and only challenge the fact that he is lying to his probation officer and p s r writer constituted obstruction but then left out there on challenge to convict i don't understand your argument i mean as i understand the facts he you previously was on supervised release you there oh you served was it six months and then continued supervised release and the new period a supervisor released extends longer than the old period letter so he'd be on supervised release for some period of months beyond when it would have ended before that's correct and now why does that and the question why does not give a mistake that justifies him being able to pursue this well that would be true moodiness but we also don't know that for sure because we're not the district court and everybody agreed that the one that counted the most was the one that we're talking about here certainly and i think the harmless error overlaps with the movement's argument and so th third violation that mr hewitt has taken issue with that everybody agreed was the most important violation of the terms of a supervised release he didn't contest that at the district court either he may have taken issue with the fact that his sex offender treatment provider had compelled him to write down all of these violations of the terms of his sex offender treatment but the end of the day he admitted that he was terminated from sex offender treatment and that's really the violation that's important here and so i think that does make it moot in this case but also it makes it harmless is it now because he had two other violations that he didn't contest or he's not contesting on appeal both of which would have justified his revocation of supervised release under thirty five even three three so even though those other two are not the significant violations that we're talking about here it was still not an abuse of discretion for the district court to revoke him on those grounds and judge clifton you're exactly right that the fifth amendment doesn't apply to these admissions of non criminal conduct mr human never faced a real and appreciable threat of prosecution for it may but he went to the mall like mr merchant just or that he went to a party where there was alcohol being served those are things that even if they are the therapist the truth about what they're doing and start working on their issues and then the campus turns around and keep those i'm out of the program for having done these things and that constitutes the violation it burdens of the consequences of the violation conditions treatment and frankly before the court right now we just have those three violations and oftentimes when people are coming from sex offender treatment or terminated from there drug  the power of thumbs up or thumbs down i mean suppose the therapist said i don't like your looks i'm kicking you out here is that a basis for sending the person back to jail because the therapist on some basis that the court couldn't couldn't base a decision on decides that i don't like you and so you're out of here and at what level is the therapist decision or if you will by the court well mr hewitt certainly can challenge that at the district court and instead of it by instead of admitting violation number three he could deny that violation put the government to its burden to prove by a preponderance that he had been kicked out for a legitimate reason from his sex offender treatment we heard today that most of the episodes that were on this list that triggered his expulsion from the program are things that actually happened before the therapy program began so it wasn't like a a betrayal or may not have been a betrayal of the therapy program but things that he did before he really got into therapy and and maybe the court could decide ok the therapist decision was premature i don't know what of the therapy programs are available but at some point it does seem  that is as important as it is to encourage candor and therapy that handing over the authority to the therapist to make the decision in the end isn't right i totally agree with you and i think the place to challenge that and to flesh out the record would have been at the district court so instead of violating that allegation mr human could have denied it and force the government to call mr lewis as a witness at the revocation hearing where we really could have fleshed out the record in that respect and i don't believe the record is clear that all of the violations occurred prior to the beginning of his treatment if you look at excerpts of records seventy two and seventy three mr he was describing how he came to mr lewis and said i want to talk about the things that i had done that i knew i wasn't supposed to do he acknowledges that he knew those things were wrong and that he came to mr lewis to describe them and only at that stage did mr lewis say ok well i want you to write all of your violations down and that's what we see  excerpts of record fifty five i take a counsel that in this case were to go back to the district order from us or just because he's still on supervised release he could always file petition for modification with a district court that's important to change some of his conditions  certainly could and he would have to go before the court and make a reason that would compel the court to do that but in this case to the extent that he's challenging the constitutional violations that underlie that third violation in the government's view he's essentially waived the constitutional violations are not before the courts because he moved following his initial appearance to excise out or to strike all those violations that he admitted to mr lewis and in response the united states probation office did exactly that and they removed all of those violations from his final petition and so that second amended petition he admitted outright all three of them and there is a conceptual difference in terms of what the underlying violations are and what the final end result is and being terminated from supervisors and so for example judge ward laws concerns about this is your therapist but it's actually in a sense an agent for the probation office which is a very awkward position for a therapist to be and that is something as far as you're concerned that they could raise that with the district court says the court has jurisdiction over this case they could raise that very point asked for a modification on that absolutely and so at the end of the day in the government's view the fifth amendment does not apply to these compelled admissions of non criminal conduct the district court did not abuse its discretion in revoking mr hewitt given the three admissions of the supervised release and unless there are further and further questions thank you just so that yes i get this i'm sequencing correct mr sullivan is actually absolutely correct what happens is the probation department files their a original supervised release violation one business day after he confesses to this therapist is then arrested we have the original petition about two weeks later the the probation department adds they amend their supervised release adding of being kicked out of sex offender therapy we have an issue over discovery that goes on for about a month that we ask for the records those are never turned over then i filed a motion to strike the twenty two allegations and it's not the government that dismisses those allegations it's the probation department files a second amended petition and at that time they take everything out but the truth is he had been kicked out of sex offender therapist the basis of that we disagree with but the truth is he was kicked out he hadn't acknowledged in mid that i don't think there's any district court judge in the ninth circuit in the united states who would send somebody to prison for getting a better job and for not paying their one hundred dollars special assessment he went to prison because he got kicked out of sex offender he kicked out a sex offender therapy because sex offender therapist said so and the probation department followed suit that's what this case is about thank you very much for honors thank you counsel both for your argument this matter submitted