honest let me ask you something about that one it looks like it didn't like the judge wasn't even talking about bets when he imposed that he was made a public defender's office because they're telling all their clients don't talk to the probation officer about growth throughout the whole so he said long as you do that i'm putting the burden on the defendants to show they don't need a drug and alcohol condition like that if i remember this right of yes i agree i think throughout the judge's comments he he treats the condition as a punishment now that's generally and there's two questions about it first of all what citation is best for saying the judge can't sentence on the basis of bureaucratic concerns like that he has to sentence on the basis of whether the individual needs the condition and that's the second question i have is that what case says what the burden of proof is for a restriction to no alcohol or something similar with regard to the first question i would say the best case because directly on point is the sixth circuit case in u said that silent is not enough to give the district court carte blanche to impose any circumstances i'm used to so condition if you want i guess that implies an answer to my second question about burden of proof but if you have another cite you want to point out all this korten weber talked about the burden of proof for supervised release for showing the supervised release the conditions are reasonably necessary to serve the purposes of supervised release that burden goes to the government there's actually nothing in that case to talk about what the burden is but i believe that from looking from other cases that the burden is the preponderance of the evidence with this guy it looks pretty clear that he's a crook but i didn't see any evidence at all that he had an alcohol problem is that true that's absolutely true your ok takes care of my question and i go to that based on my own experience and i'm sure the courts experienced maybe similar where in cases where there is a true drug problem that's in the record and it's and record clearly i don't like you i don't think you're appealing that drug condition r us i mean the drug condition says you can't use illegal drugs well no you know i am saying i want to use illegal drugs no i'm not going to take you can abuse prescription drugs he's not saying i want to abuse prescription drugs that's correct what were the what do we care about the drug well the point that i was trying to make was that that there isn't that the very the concern of the court and the concern of the government that's really important we get him to talk about this otherwise the system breaks down just isn't real because in the cases where there's really a drug problem it's all over the place in the present reports and the current  job relationships and so so there's plenty of evidence in real cases to get that without having the defendant speak and even if that were not so is the law on your side on that in terms of burden of proof ye all i do have one third question restitution what's the best cite for saying that the judge can't delegate as much as he did in this case on restitution us versus gunning this court's decision in that case  next case the court dealt with another subsection of thirty six sixty four not really sure which one it was but it was this that subsection the talks about the initial setting of the restitution payment schedule and this court found that that is a responsibility that is put firmly in front of the district court judge and that that responsibility cannot be delegated to a probation officer a euro prisons unit or anybody else am i right in understanding that although we have good six circuit precedent and we have one third precedent that implies that we do not yet have one third precedent that says you can impose a no alcohol condition on somebody where there's future in the residence of an alcohol problem that's correct no case law on point yet there are the cases here i'd be satisfied with the condition if i said i wanted to drunk driving convictions or any number of other things that would suggest an alcoholic right justified the condition so far the six of the eight circuits are the only ones to have addressed cases where there was not evidence of that and they very easily and quickly struck down the conditions i'd pas  your restitution is fifty dollars per month but if you get a windfall that's also got to go into your restitution and to implement that i'm saying that the probation officer you know can clear that up in other words do we do we view the windfall issue as one that the district court was delegating to the probation officer or did the district court or stand it the rest that there was a lot of damage from this scheme and the fraud and the restitution order is you know a million dollars or close to that and meanwhile th procedure is for the ct community to fight about the change when economic circumstances and then for the court to take action i disagree with you your honor that the condition can be interpreted in the way that you suggest which is the cour i wasn't i wasn't saying it could be asking you if it could then i don't i don't think it can because i think that there are two problems with that one the language itself basically leaves it to the probation officer to decide you know whether he's going to have to pay and how much he's going to have to pay have to pay towards restitution it's not just he will have to pay whatever it gets but the bigger problem is and this again goes to the problem with not following the procedures set forth in section thirty six sixty four k when a court is notified of a defendant's change in economic circumstances which result in his ability to pay more  the the answer isn't simply he must give that all over to the restitution judgment the district court has to consider in the interests of justice and decide whether those support either modifying the rest payment schedule or making order the or completely pay the restitution judgment counsel there's a gap there that troubles me and maybe you can allay my concern the judge doesn't know when the defendant has inherited some money year one being go or whatever and it usually takes the probation officer who's closer to the situation finding out and then he file something with the clerk's office a petition in order to get the judge to do something about it and basically it's likely to be a six week process at least that's how i remember it from district court before the district judge actually sits on the bench and has the defendant there and makes a decision i would think that most criminals who got a windfall would have long since spent it and it wouldn't be available for restitution anymore what do three thousand dollars that i fortunately just got to a bunch of people that i ripped off or would i rather take my wife and i fake ation i think most people's preferences would not be that hard to guess very well your honor but let me  your question i don't think that that there is any problem with following the procedures that are laid out in statute and in the guidelines and the standard conditions standard conditions require mr the soonest he is aware of any material change in of his financial position that affects the villa to pay restitution he must go to the probation officer he must go to court you must go to the government yet that a skilled enervation officer about it but the probation officer can't do anything about it by himself and you know he can't and and but i do think law i've never seen a case where this is a who came up i do think that there are enough quivers in the legal arsenal that  the probation officer of an active probation officer could take steps to get some sort of whatever judge or whatever is does he have in his quiver so that the money doesn't all go to some dinner with the stars that are an expensive hollywood restaurant or something instead of the crime victims i think that the court the the once the probation officer knows of the circumstances or if the courts notified directly which is another provision of the statute  they can take steps to act very quickly they don't have what steps what do you do they could you know issue a an order a provision form twelve order or some other order that requires mr best to come in you know the next day or the day after and that or presumably the there be nothing stopping the drugs for a month so it's time for me to spend a few thousand dollars right but the problem is and this is your hon kind of point you have to the justifications the district court and the government made for this to be a lot easier for me to go with you if i could be confident that the money would be there till the judge decided where it would go i think though the same problem exists margulis of whether you follow the proper procedures or if you ignore them and allow the a delegation of the probation officer because these gaps are going to exist no matter when that how it happens and and presumably unless thats is going to be the honest one who goes and notifies the court about this change of circumstances it's unlikely the others will find out we have presumed that the defendant is the one who goes in and say i have the software tell me it makes no condition that isn't served just as well by the standard condition and following thirty six sixty four k i can promise you it'll work out perfectly but i don't think adding that condition h understand the argument that's very helpful thanks i understand what you said i counsel on that issue of the windfall could the court as a condition or having not thought about it i can't say exactly but i would guess would be no objection to that presumably but if it was worded right to what defined what such a windfall condition exactly was through for example the condition reads now than any tax refund is considered you know a windfall like two hundred dollars i think there is something like that that could be imposed that might offer the kind of protection that the judge kleinfeld was worried about tell a defendant you can't have a drink of alcohol as a condition without any evidence of an alcohol problem and where the judge himself says that his reason for doing it is essentially a bureaucratic tiff between less public defender's office it's true the judge carter made reference to his belief that the public defender's policy of not having clients answer those questions with the bad publicity but he also said my problem here is you know you've left me in a sense defenseless you have some case law that says it's the defendant's burden to show that he doesn't have an alcohol problem now in fact as as counsel pointed out the weber case which was decided three months after the sentencing hearing made it clear that it's the government's for but i think we can meet that burden here your honor because by not answering the probation officers questions the defendant let judge carter in the position of saying look by your refusal to answer these that troubles me i don't know whether you have a problem or not but by your refusal to answer the probation officers questions you don't leave me with any other choice but to conclude that there is something there while life why else wouldn't you answer the question that's essentially what judge carter said why else wouldn't you answer the probation officers question about drug abuse substance abuse for alcohol abuse other than that would provide me some information upon which to see i can think of all kinds of reasons one is it's a combined question and it includes things that would be a crime like using illegal drugs another is you don't know what this other person's attitude is about alcohol some are teetotallers and they think any use of alcohol is sinful another is he just don't feel like it you feel like it's an invasion of your privacy in your privacy he's been invaded enough and another is your lawyer told you not to and you don't know why but that's what your lawyer said all kinds of reasons besides being lush well that may be your honor but i think what judge carter looked at when he had this to finish before have is i have to decide whether to impose this alcohol condition but you still have the requirement that's and whenever that the government has the to show the region a particular limitation is imposing the supposed to have the minimum possible impact on the person's liberty you're talking about what judge carter is considering but what did the government do to meet its burden in this case but you know the government's in a difficult position here we don't have the ability to talk to the defendant we don't have the ability to collect information from the defendant i mean essentially the the avenue for getting information about this kind of problem is a defendant's interview with the courts agency the probation office where he goes and provides information to the probation office about who he is what he does what is he what you have that same kind of a thing in almost any criminal case where you're not going to be able to talk with the defendant he's going to be dealing with his or her attorney they're going to invoke the attorney client privilege you still have the burden to show beyond a reasonable doubt someone's guilty of a crime and i guess what i'm seeing here is that i appreciate your difficulty but the fact is the government had really come forward with anything as far as i can see to show that this defendant used alcohol i would also ask if you're familiar with these even though we don't cite these as precedent that it was an abuse of discretion or plain error where there was no evidence to suggest that a person had not used alcohol that such a condition be imposed you have any comment on that i'm not familiar with so that they are as you pointed out unpublished opinions and right now i  stand i stand legally they're not there but i'm simply giving you a sense as to what our court has felt about these things we need some i for one would appreciate any suggestion you can give us just a why there is any reason that we are to uphold the alcohol requirement in this particular case doesn't seem like the government has made any successful effort to meet its burden well your honor you go back to how this all came out of court the probation do this with all defendants no he doesn't he doesn't know that's what i've read that's i think there's an allegation of that with respect to a different condition and we can turn to that one if you'd like but he doesn't do that with all defendants i think the probation officer it wouldn't be improper to draw an adverse inference from islands in response to a question do you drink or what's your history that's an interesting question your honor and i couldn't find an answer to statute protect the public deter both the defendant and other defendants and to assist in defendant's rehabilitation and the really and i think this is you can read from the from the transcript of the fencing proceeding this is that the rut of what judge carter's problem was yes from counsel do you have any citations that will help us to what i mean i understand the general false offical point that you were getting at but well your adversary said that the six  circuit have cases right on point on the alcohol condition and they say no dice our court has already held that the burden of proof is on the government it's not on the defendant to show that he doesn't need the condition and our court has already prohibited similar delegation to the probation office with regard to conditions of restitution payment as frankly that looked right to me i had noted the eighth circuit not the six circuit case  weber and granting myself to answer anything on the other side let me address those i think you're you're now making two point one about the you know all condition was number you're running at a time so you want to get to the point where you're talking more generally the mode in a case which is the sixth circuit case you referenced us kleinfeld inactivate as i read it the district judge in that case simply made no finding to articulate his reason for imposing the alcohol the no alcohol provision here we did have a district judge interview of the defendant to prepare a pre sentence report turning to the rest to sion condition the government understands that pursuant to gunning and the going through the cases the different court could not delegate to the probation office the power to set payment schedules for restitution and not make sense what the just for court is doing in that context is looking to the defendant income looking at his expenditures and determining determining what he can pay what he can afford that's a discretionary function that's not what's going on here what's going on here is a district court think i've done that i've looked at what this guy makes i've looked at what he spends he can pay fifty dollars a month but if he comes across another pot of money i want that going to the victims that's the effect of this order i think up a little bit what judge your honor just kleinfeld i'm just glad we're getting out earlier that's the effect of the order here that if this guy stumbles across an income tax refund or inheritance or collect on some sort of judgment some sort of windfall that needs to go to the victims of this offense and there's nothing contradictory in that the language of that order with three six six four k there's nothing about that language that is contradictory and i think what judge carter identified at the sentencing hearing some of the concerns that you've identified judge kleinfeld what's going to happen i don't want this guy holding on to this money if it's fifty thousand dollars or five thousand dollars while these victims are getting repaid and that is going through the process of of getting to me and we have to look out of the cetera et cetera et cetera on the alcohol i don't actually see what the government's problem or the court's problem is in figuring out whether a defendant has an alcohol problem if he doesn't show usually see it in their rap sheet they've got some drunk driving convictions from domestic violence where they were drunk  sometimes they urinated in public and got in public indecency conviction the alcoholic's that states are usually like flashing red lights i think that's correct in many and you know it's there's nothing else i can say other than you can look at the record of the transcript and the judge was very troubled by this defendant's refusal to answer that question thank you can hear our thank you very much