second case of the day the united states versus arm may please the court counsel my name is daniel horowitz and with the federal public defender's office and i represent mr charles armor he raises three issues on appeal first the district court erred by relying on information that was not alleged in the petition to revoke mr armor supervised release the information was instead contained in a violation memorandum and according to the violation memorandum mr armor left his residence lied about having a third party custodian and tested positive for marijuana but those were not allegations that were included in the petition and there was no reliable information presented to support the those allegations proof that was ever presented to say that he did those things the violation memory mid south maybe you should start with that there was not a valid basis to create the violation memorandum much less submit it to the district court there's nothing in rule thirty two point one allows it and so i don't see how going to the races how about section thirty six sixty one no limitation should be placed on the information concerning the background character and conduct of a person convicted of an offense which a court of the united states may receive an consider for the purpose of imposing an appropriate sims why shouldn't that apply to revocation of supervised release i believe that is designed to apply at the sentencing for a criminal conviction not pursue provisos release were my first is really any difference i mean for these purpose yes well of course there is because we cannot import everything from a criminal context into a revocation kind that those could do that for a jury trial does the defendant does the defendant have a right to put on mitigating information revocation hearing yes sure it's not relevant to whether he committed the violation but it's relevant to decide in the appropriate disposition why isn't aggravating information  information be a character of a different sort it would be something that if is used to increase the person sentence if it's a basis for a violation it should be included in the petition it shouldn't come in some document prepared by some answer it why isn't it any fish and wait for the probation officer to update the judge on the person status one and defense has a right to object yes right yes but may answer further  efficiency is not the issue it's due process it's rule thirty two point one but in that no i mean he's got it he's got the defense has has it sees it has a chance to object can put on evidence to the contrary in demand that the government provide more than what's in that violation we're going to be faced similar circumstance in jordan we didn't lobby please before jordan there was an objection yes we don't think that makes a difference oh i think that it makes a difference but of a different sort because we have no basis to create the violation memorandum here we have a basis to create the police report in jordan but if i may putting the probation officer as the witness is the solution to the problem we don't need the memorandum did you call it was not my case i did not call  mr armorer at the time you say none of this is true right your honor if the information is adverse it should not be our burden to call the adverse witness to present adverse testimony would never do that that would make no sense should not be through the form of the written documentation the support across borders and the court counsel can consider a police report if there is no objection to it right yes and here there was no objection except one trivial factual issue  it mission to it either there was nothing to establish its validity surely there was no doubt the district court thought it was relevant in the district court i don't believe i ever had the thought that the material couldn't be considered and right reference counting never suggested yes and there's still no factual dispute on any of these things so i still inconsistent with rule thirty two point one and due process for the preparation of it honor if this is an ongoing practice that's been present for decades it would seem normal and we wouldn't object to it like we wouldn't for standard conditions supervised at least once upon a time but when shine the light of day on the practice the real real that it's something that shouldn't be done it shouldn't continue on and it makes little difference if he did not seem willing to have it so and now for the next case where this kind of violation memorandum is filed there can be an objection and the court can swear in the address the issue yes or the better practice is to stop writing them in the first place present the witness in accordance with rule thirty two point one in due process why should we allow this to go on and require some need computers jack to something the balance point it hasn't been objected to and so i mean just because i mean there are a lot of well at whatever point different theories come to defense counsel at various points in the whole system objections are made for the first time in the court gets to actually look at them it doesn't matter how long the practice of been going on but they're saying it's unfair to the district judge to hold a district judge to some you know inquiry the district judge should have made when it wasn't brought to the judge's attention i can do is objected if it and i did represent mr armor as an initial phase of these proceedings but i just think that it's something that it in retrospect it should be objected to it shouldn't be done then but i'm not suggesting you have the probation officer yes well and best practices as you would suggest should be followed here wouldn't you want and the ability to cross examine any any work product that was produced so wouldn't this memo have surfaced in the normal course of your requiring that of the probation officer i would object to the preparation the memo and it sort of preparation even yes i don't think it should be prepared or submitted a probation officer should just represent based on recollection of what what he or she considers of i always if the are if the disclosures to be made on the rule twenty six point two the probation officer has to be called before i can trigger that obligation right so i'm in a better position not having an adverse witness take the take the stand but when the probation officer dies i would then ask for the work product i would ask for an adjournment so i can consider anything writing to this so why not get it in advance so that i can study for the cross examination i mean i don't so i don't think i like your position here is that the less anybody knows about this case the better the last bad information anybody ever knows about my clients the better ok but i mean it is a district judge i got to say it would make a big difference to me for example whether the you know if we've if we've got drug tests that are mandatory revocation or example it would make a huge difference to me  whether the fella has been resisting supervision from the get go or has basically been cooperative in this is the revocation is required because of kind of a first screw up that makes a huge difference just as parallel information would in an ordinary sense and you're saying that may not be presented to the court know it can be presented but through like testimony even if there's no objection ok well maybe you may want to talk about some other issues so yeah so on this on this side of the language to judge you some language of fifty five thirty five fifty three eight but isn't it clear the judge was really troubled by the beating of the eight year old son can consider by way of factors but nevertheless the predominant factor should not be the one that the district court relied on but that would be a basis to vacate and there is a stronger basis to vacate and if i may address that and that is the failure to justify the length of supervised release under this court's jurisprudence and thompson failure to justify the one year period of supervised release and there's no justification is nothing in the records nothing the government cited to that is a requirement under thompson that would lead to the reversal the vacation of the sentence here and then the district court can state what are the appropriate factors and i think if it's going to go back any way it would be appropriate to consider whether or not the violation memorandum should have been considered and yes judge hamilton do essential a do over here so the process could be correct and then it was all became valid speaking of doers mr hill as this revocation hearing was held about two months after the thompson decision came out  there are some references in the briefing to defendant having objected to quote all discretionary conditions what was the objection because looking for some specific indication to yes it's a blanket protection so that the ordinarily ordinarily you have to state a ground for an objection to put the court on notice what was the object of the substance of the objection well it was more particular lies in the filings by trial counsel and he did specify about why he thought a particular condition was invalid but the practice where do we find those while there is a written filing but the the it would at least preserve the issues that we have raised to just say i object yes you think that's enough and a discretionary condition has to be justified by the court in the first instance i think that the practice of counsel this case was adequate to two months after thompson came out do you think well let me just ask why should we not apply our usual rules of plain error and waiver because he objected i don't think that we could say that it was waived as per plane air i think that the appropriate standard of review is abuse of discretion and a lack of thirty five eighty three d findings here would be an abuse of discretion and if i may also move on to the begun overbroad conditions those can't be valid even under pla definitions in the badly judge i read that definition i don't find it helpful or dispositive if you ever seen somebody revoked for sitting on a chair as opposed to swing it in somebodies head i wouldn't want to troubled that the conditions exist in the first place if you're restrictions on my client's freedom the better the less we have as a basis for him to wind up in prison we understand ahead but we also understand he's a convicted federal offender who is then committed more crimes and violated the conditions of a supervised release so his rights are limited yes but they should also be clearly spelled out to him so he knows what his restrictions are in the conditions don't do that the dangerous weapon prohibition don't think whole mess is easily avoided by having condition the prohibits him from committing another crime which we have that's six that's a mandatory condition so it's not that he has a chair it's what he does with it and that's what the watts dangerous weapons condition that would be satisfactory that it should just be encompassed and not commit another crime so language like no use of a dangerous weapon that would be it wouldn't be good enough and there has to be an explanation and under capi thompson that would be our support it has to be clearly defined in the hoffman estates case from the supreme court supports this is well on that if they want to condition make the condition of valid one by clearly explaining what is prohibited that is not done here so the condition already available in the case law it is that he's the criminal offense has been charged and doesn't have to be proven beyond a reasonable doubt has been proved proven by preponderance of the evidence and so back to the chair example if you strike somebody with the chair it is the mens rea i thr the conduct that makes it a crime and whatever he uses is almost irrelevant for the purposes of that that's why i fall back on what the mandatory condition is and why it is with the c enter requirement that we have a solution to this problem and then you bet but the actual definition in this case is lacking and so the conditions invalid can i ask you briefly to address your objection to the requirement that a supervisor you report contact with law enforcement yes it's a link in a causal chain perhaps and so i think we relied on highball and hoffman in that case which is you produce you just in your brief that the probation officer should simply be relegated to check in the n c i c on everybody that the supervised probation get the information about winds but not through a compulsory disclosure from my client could you address minnesota against murphy then which seems to suggest that somebody on probation or parole or supervised release can be required to report just as a witness can be subpoenaed to require to answer questions truthfully you know i would draw the distinction that it's not probation or parole it's supervised release and so the context is different need to respond to some specifics i appreciate true strongly feel about the specific i'm doing my best but in any event minnesota versus murphy also your honor it didn't contemplate the fifth amendment issue that we are now specifically raising i mean it addressed it in a different context i guess i'm sure to explain that but the presumption was just as a civilian can be subpoenaed and expected to answer questions without having to be given a fifteen minute warning yes somebody on probation or parole can be and i don't see the difference except the language of the conditions talks about it being no greater restriction on their liberties as is necessary so we have an alternative now we have n c i c problem solved we don't have to get a few my clients we've got you know law enforcement  if you may please the court jason mr phillips mr armor took made intentional choices in the district court on how to pursue his supervised release and those intentional choices have consequences to his appeal here one of those intentional choices was not to challenge the violation memorandum and it's standard practice in the central district of illinois regarded as efficient judge williams and even on appeal on that that in their reply brief it's on page nine footnote one they asked that if this goes back that quote all communication should be done via written materials which are provided to the release cvs that's exactly what the violation memorandum is it's ironic to say the least to say on the one hand the violation memorandum is inappropriate and then on the other hand say but when you go back please do exactly what we're saying was inappropriate in the first regard when you don't object to the facts in this in the violation memorandum there's no need for the district judge to say that when government call your first witness to prove up the undisputed facts there's no reason to treat this any different the conduct of the supervised release ian really what this would do is prohibit the very duties that the probation officer has there's no reason to prohibit it especially when it's provided in advance he can object to what's contained in it he can put on mitigating evidence and there was an analogy to trial and how this is different than sentencing in the first place because there's a trial well aggravating sentencing information challenges to the violation memorandum he did wages hamilton you asked about the conditions of supervised release in their sentencing commentary it's record sixty one in this case they make this blanket we object to all discretionary conditions but they say if the court imposes supervised release with regard to two of the conditions they say no additional objection that is waiver with regard to those two supervised release conditions you  can't make a blanket objection to supervised release and keep everything alive when you say no objection the district court can adopt the un objected to portions of a p s r and she was appropriate to adopt the un objected to portions of the violation memorandum including those conditions is it correct that all of the conditions imposed were part of the violation memorandum no the they were all a part of it except for the dangerous weapon ban  that was that however we believe is still readily anticipated it was imposed on him twice before on his first term a supervisor at least while he was on bond and it's provided for in both the statute in the guidelines so we still believe playin applicable to that condition because there was no objection to it which is an easily into subpoenaed objection we suggest to go for that instead of saying a person can't be with convicted felons to try to get to the conduct so to say that he can't be with persons and gaging in their planning and gauging criminal activity is that really the heart of the government's concern that's true but i don't think still the judge and i think you're there's an important distinction here previously there was you can't be with felons there was no c enter requirement it was just strict liability you can't be with a felon so if your coffee is handed to you through the window by a felon you violate a supervised release the difference here is that he has to know their felons and when they he knows they're felons all he has to do is go to his probation officer and say i'm going to church with this felon and get permission doesn't prohibit him from contact with felons it requires him to reported to the probation officer and get approval for that's different than just a strict liability you can't be with felons and i think that would save the condition under the standard of review here many of the points i was prepared to address have already been discussed so i'd be happy to answer any further questions at the panel might have not thanks you say almost use all your time but i got a lot of questions  couple of minutes we used all your time for simon i know you must have some comments that you'd like to hear about even use my time productively so appreciate that and support what i have to say in response footnote one of the government refers to we are talking there about criticism that we have a concern that we have about a sentencing council practice ex parte communications and so we don't we don't want that sort of ex part what he's going to say in advance yes if if you know how are you going to get that without the memorandum because once they take the stand i'm going to ask for all that rule twenty six point two disclosures and then i'm going to know everything that i need to know much more than him coming in the way that they do right now with the memorandum now also say that when going up to the objection that made the supervised release it was clearly phrased in the alternative we oppose all conditions of supervised release but alternatively if the conditions are to be imposed and then there's an argument made about those and then in respect to also footnote one part of what we are concerned about too is not just the export to communications but we don't get everything that we'd like to get from probation and we'd like to get the recommendation about the length of imprisonment that probation officer is recommending and why and united states versus peterson this court discussed the salutary practice making that sort of disclosure but we don't get that material we would like to get everything in court in the open if they want to provide jus materials before the adverse witness testifies rule twenty six point two material we'd love to have those if they don't give them to us in advance we then ask for the german which would be entitled to be a longer proceeding so i think the better practices that have full disclosure but present the person so they're subject to the cross enough and obviously are too vague and my position and i won't speak for the office on this is start with the mandatory ones and work your way up from there because conditions are restrictions and the life better lead is with fewer and fewer constrictions in conditions of supervised release that is also accordance with statute the statute talks about conditions that can be imposed not that they all should be in the requisite findings need to be made if you look at the length of the statute its own risk and yet it slipped by  long and we don't look to either not just about fines need be made but they need to be made in the conjunctive well i understand your your concerns because this is an area that obviously interests me and i and i respect your advocacy but well unwarranted restrictions clearly are not appropriate would you agree it is a benevolent side to supervise release that the conditions are to help guide someone in that situation i know that they may be abused by various law enforcement or probation officers but but is there not built into supervised release some sense of guidance for the individual absolutely but i'd rather that does not that carrot doesn't come with the stick let it be the individual's choice i don't hold a cloud over probation or law enforcement i would rather my clients though not be subject to things that have penal consequences and that's what's at play here so the conditions if they need to be imposed by news need to be made but i'd start with zero and work my way up from there and start the mandatory ones work my way up from there but the practice is instead been start with all or put your arms around as many as possible and then leave it to us to fight our way out of them in people go to prison in the bargain that's what i try to avoid thank you with thank you case taken under