a court in this job like me i'm a federal defender's office in madison wisconsin and i resent mr warren there are three issues here on appeal the second and third issues when i ask you to stake out a new law we're quite simply asking this court to appl precedent last night this is pretty embarrassing i prepare for argument as any water should and every red caps it was is not the seminal decision but a very thorough decision from this court and there's a line in there that i didn't quote my brief but that actually controls the polygraph question so i'd like to begin with that there this court in response to the defendant's objections that you know that this condition could allow for the probation office to cast a defendant twenty times a year this court wrote however we read this condition is delegating to probation the selection of the treatment provider only the treatment providers authorized to select the types and amounts of test that's actually been our position throughout the whole case the tribune provider if they say go get the polygraph mr warren goes and gets a polygraph but it can't be that the probation office can under the guise of treatment or some softness treat to that end makes that polygraph just part of its monitoring that not only violates siegel and the statements made there but clearly violates capice and thankfully i did cite for that statement in the briefs and kept in the district court and the same applies to actually the other the second condition the no contact condition this court spoke very clearly inc in thompson and then again in capek's that the no contact provision is actually a substantial burden it's not a small thing to put on somebody it can only be done under certain circumstances and capice the jergens also is the consolidated case with that give a very clear line in those cases are very troubling facts one guy said look if i'm not around seventy year olds then i am to worry you know you have to worry about me and the other guy stole panties and kept them for twenty years i was photographing kids in the pool there's nothing even close to that here mr warren's case now that's to say nothing of the choice loose that worries me it does it does but look it's been thirteen years since his offense he's done everything a man can do to transform so i think that's reflected not just in the p s r but also the sense that this report gave you know this is out in california this is just after poker that for years after booker it was before you know people were really departing too far from the guidelines his guidelines their one fifty one to one eighty eight and then just given sixty months i mean it shows a sincere change i everybody else now one that violates thirty five b three a day that says in this particular circumstance one judge said he doesn't needed but we want to be like everybody else so that's exactly what this court said not to do in thompson and the second reason your honor is i think that the short of the sentence goes also to the duration of supervised release he got a fair amount to supervise release and the strictures that are put on him we're not asking that he have not we're asking that he just have a walk we're asking that those be tailored to his circumstances and be faithful this court's precedent but there is the real interesting issue in the ones that were you know pushing here it policy the first cases the travel conditions well that's trivial but worry about the travel and this well yes to do is his his life or to this lead then he'll then he'll file with the with the church say you know relieve me from this condition or at least from this progression officer and hundreds of cases i've never seen that happen most people suck it up and eat it is for the same reason that they eat all the other conditions that until two years ago people started challenging because a lot easier to go along to get along but when this court says look we're go unfriend somebody to rights you have absolute right to trap you a constitutional right to do that and we're going to infringe upon it it's got to be circumspect it can't be all right will be gets too bad if you couldn't go to the springsteen concert but you could go to the berg game that's not that unreasonable is now i've had clients who had denial of travel to go to vacations and signaled look don't make a big deal out of it you've got to take a knee being a federal supervision often means taking a knee and it shouldn't be that way if there's a reason that someone shouldn't be allowed to travel outside the district then it should be stated you know worried about this guy because of his past you know what he's going to go but this is hard to decide an issue like this abstractly without knowing what you know what one of the probation officer or the or the government lawyer say about  they both want it and i know they give a reason no did it just that every of the same ones are repeated in the district court but is he in the district court's order for the same reasons or stated there it's easier to keep tabs on we have certain jurisdiction in the western district of wisconsin usually refer to the fact that this is a sex offender yes well that's the type of person you want to keep tabs on and you're allowed to keep tabs on him it's just to get one the way of keeping tabs is to have the person  for permission if he lives the district in another way is to give no to test him you know where you go on trips in the condition to give notice if the condition was you must give notice any time you're leaving the jurisdiction the same thing is accomplished but in right what authority would you have to not let you go come on what's the point of the notice so he can be followed by the probation officer it's the same point if you want to keep tabs on it that's ferrie and persuasive but let me move to another another argument that or so the other reason that you want to do this is actually not just for mr warren but for everybody else what is a standard that's going to guide that's the key to thompson and siegel if there's a standard this condition if we have to look back we have nothing that will guide what probation  one probation officer from another there needs to be a stand as you city got a short sentence and that justifies you know more in the way of conditions of supervised release and  the radar three it was in a different circuit it's not anything a part of the persuasion now there might be a case where you make that tradeoff shorter sentence more probation and much tougher conditions but that wasn't what was happening in this case and it's wrong to impute that kind of logic into this case there's nothing in mr warner other than the fact of conviction this is a big fact it is a big fact but it has to be balanced against every other part of its characteristics you know you turn to probation officers about sex offenders voluntary choice to have sex with little girls or something that i don't that's that's that's a deep rooted psychiatric problem and so you know the government probation service bends over backwards to look for the night and you have something like the illinois law you do wisconsin does about how after a sex offender sentence he can be tried by a civil jury and said to treatment they call that treatment and detention center for the rest of his life you know restrictions which seem right now this kind of something that would be a minor annoyance in a person's life it could be a minor annoyance but it well the first the polygraph condition and the no contact those are minor annoyances those are actually just when they violate this court's precedent but they're also to the point where they cripple a man and what he can do you know it depends how if the lie detector test is given every day yes but it has given once a month you know what's the big deal is if it's hard to project a test for ten minutes or something what's the i don't need there ten minutes long but also the treatment provider asked for it then that's one thing if it's another thing if it's just a matter of let's just keep tabs on him let's just have compliance keeping tabs on someone who's got short prison sentence for serious criminal conduct sounds sensible to me then we just become like it's pretty embarrassing the other is a money line in a case you've cited most of the really good cases your insight to that case and then you fail to cite the really great language that contradicts the whole district court's opinion so that's why i lead with that i don't think those are really too dispute i think if you faithfully apply siegel thompson and capice i win on those latter two the real one where i'm pushing the envelope that's travel and travel is one where like is the unsympathetic no you know like is the reason to keep tabs on him clearly but this condition has problems there's there is no standard for what about a white collar guy let's say a white collar person will you know it when can you travel to chicago when can you go over to see the locks on the mississippi they have there's nothing in there that guides what's going to be allowed by probation this is something that has to change this is a kind of case that it could change and if it doesn't you have no trouble shoot this money would you have limited ever as a condition and only you ever indeed be in two parts one the first one it comes from congress in the probation status of fifty five sixty three of a but i don't need this court to do that unless he said it was violate begging is so so you you think we just have to create standards for trouble a group that you one yes and i think you have to create the standards i didn't make that facial or started at it being as applied challenge but also the one that mr warren is guided by that comes from the guidelines so this court could do that so they could travel doesn't really except for the really bad people i mean we started to hinds flag which was like a multi state you know fraud ring that you really want to keep tabs on that person and the other guy good and who does a multi state kind of crime spree i represent one guy right now i can clearly see why they want to have a no travel condition but for most people it's there's this great area and the travel is really a huge restriction if you're be i'm told you know all you can't go on vacation you're being told no you can't go to a per game well no you're part of the judiciary they're not part of the department of justice part of is everybody's nice article three judges you know every last of their jokes everybody puts on the best face when you're the fender that has to appear before them every day that has to go there and deal with that it's a different face now other great probation officers yes i'm most of my balanced just quality human beings were very reasonable no question but we don't assume that at all times every probation officer is going to be reasonable that's what we set standard that's what we asked the court to enforce standards and once those are delegated those standards are there clear then everybody can operate but if there is no standard on what can be said yes to and what can be said no to that trouble and that's the real problem it's the same problem that this over and over what is going to be allowed who are your associates who's going to make a determination if there's no guidance on those points then really we just have to trust and this one of those things that it doesn't have to be a matter of trust when you can be very  it comes to i think you should give notice i mean notice rather than permission he still keeps tabs on somebody the other one i believe that when it comes to sex offenders i think of three days three days implies a sorta soreness as you know if you move somewhere for three days you have to give  you're going to be somewhere that puts it within that tangle of where you're going to be three days it isn't up it's is like if you want that day trip to milwaukee that day trip the schomburg go for it but if you're really going to be somewhere else and we really need to keep tabs on you three days allows for that and it puts a kind of a governor upon both the probation officer and upon the fender says look you know there needs to be communication that's what at the heart everybody wants we want there to be communication between the offender in the probation officer so  we keep tabs but we don't want to be the infringement upon his rights too much so he can't go into those day trips to three days if you're going to be either this or for more than three days you got to give us you you have to ask permission if it's going to be another trip shorter than three days you have to give notice just tell us where you're going to be that's it but we're not going to deny that now of course he's going to say i'm going to go to more walk you go buy a computer so i can go you know look you're not allowed to have a computer right that's then you can't do that but that would violate other wisconsin so we're here to discuss the three conditions of supervise release and the government's position is that there's no procedural error here so the review would be for substantive error which is an abus discretion and judge family this district court judge in this matter gave very specific reasons and took into consideration this court's guidance in imposing all of the conditions was a very detailed opinion by the court and in contrary to what mr bug me said judge didn't say we want to be like everyone else very specific reasons for every condition including the three tailored this at the court has instructed our district court judges to do for travel outside the district he said this is necessary because this is a child sex offense that he has access to resources he's a fairly wealthy businessman and he could travel on his own and he had the resources to do that he needs to be tracked in control because of the nature of his offense we need to protect the public we need to turn specific and general and that probation statutory duty is to monitor these people as far as the minors he said no contact with minors except for he could have contact with minors if you have permission of the guardian or the incidental exception of course if it's a restaurant or six flags or something judge kindly put that into place because he said this defendant encourage others to create new child pornography he led a board and said i want new images which is encouraging new abuse he also said he'd been found to be looking at websites where he did you learn how to drug women and there was pictures on his camera of unconscious or sleeping women and was your on this weird it was the website was shut down i believe so you know it was a very short period of time how he created this website is this group he created a team managed day he organized the pictures he who actually knew him and i can't give you a date as to when those were created and this was all things that happened in california well before he was involved with artistically i don't have further details but as far as the polygraph condition mr bug me argues that this is a free standing condition imposed by croatian it's not it's tied to treatment and the polygraph will be while rescheduled by probation so that they can do the administrative part of the polygraph it's tied to treatment the polygraph results will be provided to the treatment provider to facilitate treatment now one thing that mr buckley has objected to was the initial psychosexual evaluation and polygraph that's already happened so that's moot however now you've got into that i'm going to polygraphs that's strictly tied to treatment and therefore it violate what this circuit has said in judge crowley specifically said in his reasons that i know the seventh circuit is concerned about the treatment implications of polygraphs and therefore that's why i'm doing this specific condition that the government feels that judge calmly gave specific reasons and we stand on that in an abuse of discretion there can be a differing of opinion but we feel the court did not abuse its discretion if this court feels that it did and would like to remain and we don't have any position on that just ask the court to give greater direction on exactly what you want and i'd be happy to take any questions thank just address two points one no treatment providers are asked for the polygraph test so it's very clearly this is just a euphemism for monitoring mr warren the wisdom of that that's that's up to debate but no one's ever asked for this is part of treatment and a court abuses discretion when this court speaks very clearly on a topic and gives exactly what it exactly says is no that comes from the treatment provider and then does the opposite that's envious of discretion to judge  no i think that every thirty days every sixty days i think it's not a thing you know you're just trying to work hard are trying if you are trying to place the individual in a frame in a in a mindset that he or she is being monitored you know it's like the ankle bracelet you're i mean we could put that on everybody right there but we don't know so the probation farm is trying to strike some balance i'm just we have a lot of these cases and you know and i'm generally like all of my colleagues concerned about where the balance should be so i'm that i did that's why i raised the hypothetical could be if we just had a you know in the cloud supervision of so to speak of the polygraph periodically cia officers have to undergo it every five years or whatever with sex sex offenders maybe we ought to do a lot more frequently i'm just trying to  get to an area where defense counsel understandably want to protect the rights of defendants but we have some public interest that we're trying to also address and i don't think that's a legitimate concern i think you have the balancing is what everybody's afraid of are the little slip ups you know that we cited to one in our where somebody gets revoked for we cited one in wisconsin case where the guy was in the bathroom with a kid no nothing happened but he forgot to report that well that became the violation  what for ten years that's probably not having happening in federal court but that's always the fear and when you deal with that once you've had one or two guys who got revoke and got extended some pretty harsh terms as we noticed justifies not on the bench anymore but we can still have some pretty harsh terms of violations of going back to prison well we don't want to for those but somehow we want to protect everybody and how do we find that balance well and i think the guy's only kept us in jurgens yeah you can't be around kids those guys are what are really scary but on the spectrum of sex offenders you know warrant it maybe had the most innocuous but he's clearly not the guys who are really creeping us out and now we have to keep behind bars or as as judge posner said the sexual commit now where the balance strikes with that i don't think it's one that we have to strap everybody into the lie detector you know it then it just becomes a euphemism for like are really going to check on your part of it is people fail for lots of reasons to develop standards by taking objection to probation officer you for each one and you do have a lot of tension and he you know you said on the district court bench you know that like you sit there and there are so many times that you have to put your client on this is your ultimate goal what's your ultimate goal right now i want to discharge without going to prison and i don't want this guy to jam me up on something little right at the ad and so you know like i am not going to do that even the guy who i talked about earlier couldn't go on vacation he was a white collar guy who did one year and his wife was very upset about it but he's like look i just want this one year to go away i'll do whatever they tell me for that one year now those are the types of things we're out what are you going to see if you're the district court every day and then we you know do have an evidentiary hearing that this report already pretty bird i think that if we just take the wisdom they came from taylor and siegel is like look tailor them and make sure that they're clear and make sure that you acquire court's precedent capice we can all live that way well we pretty much say try to tailor every case it's just you know it's pretty difficult to say more than taylor if you know i don't eat or no no i get it i don't know if it really is though because think about this capice you guys spoke so clearly all  who's the treatment provider it's a woman i don't know her name but i see issues where he goes to her i think once every two weeks for for different sessions but she hasn't requested a polygraph and that was part of our argument said look if she asked for it will do it