minutes the red light comes on cut it short obviously we can keep you up here longer but you can't keep you up here longer please remember that rebuttal is her about all only as well we always value record science so if you're focused on something in the record if you couldn't give us a record cite we would very much appreciate that and fair warning i have my i pad up here where i can look up the record site so it's helpful if it's accurate so with that we will start the typically the victims with nothing to do with the defendant however this is a unique case it involves a relationship between a defendant in a modern victim whose family believes the relationship is both beneficial and should continue the issues before th revolve around this relationship the plea agreement entered and ultimately the parameters of the district court's authority to prohibit conduct between the minor victim and the defendant during his ten year period of incarceration we submit that the district court exceeded  authority where congress gave it not because the bureau of prisons control excuse me because the attorney general controls all aspects of the bureau of prisons and this is not an extraordinarily rare compelling case which would allow invocation of in here that the court should order as per the judgment of conditions of supervised release that he shall have no contact with the not attempt to contact the victim or the victim's family during his incarceration with a subsequent term of superheroes release i do understand that the court cut him a break on the supervis release but my question is didn't hear greta this yes your honor he did and what did he get in exchange for it oh it was an eleven c one c agreement and so his sentencing guideline range was significantly higher than what it would have been had he sentencing hearing that he expressed some pretty intense gratitude for the police group and did he say he was considering harming himself he did he has always been a reclusive introverted person he described himself  did use the internet as a means of escape to use that and that's how yes but he didn't simply do stuff over the internet he also had contact with this miner wrecked the relationship started off on the internet and he was in the chat room the victim in this case enter that chat room they did strike up a friendship online only after a few months of contacting each other back and forth through the internet and playing games with one another they did move that relationship into either text messaging and which  wound up being in person photos were exchanged yes yes your honor they were the i don't want to get into it of course in open court but photos pretty explicit photos were exchanged there were to be houses of your client absolutely yes your honor there's no question that those pictures works change in the content of those messages was not something that people with eyes that gets into here greed it would be difficult under an abuse of discretion standard to say the district court abused its discretion but the issue that you began with is one that i want to explore a little deeper which is the succeeding authorities so for example you can't agree to subject matter jurisdiction in federal court if it's not there that kind of thing or any court really so isn't that kind of exceeding authority in other words that even if he waived it even if you agreed to it even all of those things that would normally and the appellate issue is it's just something you can't agree to because the judge simply lacks the power to do that you ought to think it's a kind of a complicated issue however if i may try to explain my reasoning behind this at the time of the change of plea plea agreements are contractual in nature at the time of the change of plea based on the prosecution's remarks that it was an option for the victim to initiate contact rather than the defendant to initiate the contact that's what mr darwiche should believe not the sentencing issue kind of unfolded a little bit or you don't care if i lose your client believe that it was only a one way provision that's correct and it doesn't the tx pretty clearly state that it's a bar in both parties in the special condition itself in the plea agreement yes your honor it does again based on the prosecutor's remarks did attempted to accommodate the victim and the families of the victim's families wishes to initiate contact on a one way street it was never intended to be a two way street where times are not seeking to invalidate the understanding to me is it still doesn't answer my question which is regardless of what he agreed to you can't agree to something that a judge lacks authority to do that's correct and therefore does the judge lack  to impose this condition in this case we believe that the district court lacks authority to excuse me to invoke its inherent authority for this no contact special condition we believe that there are two reasons that would support mr darwish his position the first being that there is no federal statute out there that would agree at the district court power to pivot contact in this instance now in the struck the it states that only congress has the judicial power to limit or expand the scope of judicial discretion in sentencing by enacting statutes with the sentencing powers congress did exactly that and they enacted eighteen u s c thirty five eighty two d which is a communication restriction in only two very specific types of cases those being rico case if you like the parties agree this is not a statutory case do you acknowledge that if we were in the ninth circuit this type order would be allowed  your honor based on your son wheeler on we were up a lot of cases well of course of time so we would still disagree with that proposition because in the seventh circuit case which was morris and i believe that's the case that more thorley develop this question than alice as they are about that court was that the special condition in a communication or stricture in case held that the court's inherent authority to protect the administration of justice from abuses of pressure and justice but they rein that power and they said that it can only be exercised with circumspection well wasn't it to protect a witness that's correct yes your honor it's so lightly different facts ok well what if the facts were that the order needed to be in place to protect the victim which is to witness but the victim and those are victim and witness can be almost interchangeable ok so it is ok so you can see that th to issue an order to protect the victim from the defendant in certain circumstances only when the case is rare and compelling well how about homes so how about where the defendant there's evidence the defendant intends to continue the very same conduct with respect to the victim that led to his conviction in the first place we believe the district court would have to use the two prong test that was set forth and judge joe i believe you just reference this case the wheeler case there they took a supreme court case and they use two prong test which stated that in order to sustain this no contact special condition that the court must find that there is a clear and present danger to the victim and that it must be nearly drawn and reasonable alternatives for that no contact to stand we do not believe that that first prong could be met here the sentencing letters in this case corroborate the position of mr darwish that the family in the victim both want to continue this relationship all due respect to the family court with all due respect to the family can the court reach a conclusion based on the evidence that the family is deeply misguided the shorter the district court does have that in the world to do that we would still submit that based on the facts the unique situation that we have here and a really compelling case based on the wheeler we would represent that this case is rare and telling for a completely different reason those ran from telling cases i'm just wondering if the court even knew that this was the analysis that was supposed to be being made because this argument this spin on the argument only came out because we the fifth circuit asked job a follow supplemental briefing on it i mean you all were not even making appropriate arguments so i'm wondering if you weren't making them to us whether there's any reason why the district court would have even known what the path was that needed to be followed and so does it make sense to vacate it and have a court if we're going to have a two part test or whatever that we're going to adopt and say there may be that rare and compelling case where you do have that in there and inherent authority by it's nature in my opinion should be very limited in a federal court but if we say there's a little sliver and we just have to should the district court at least have the opportunity then to his dress that in the first instance we would request that the court do remain the case so that the district court could reanalyze this case under this to protest and determine whether or not it is in chambers they both state that the constitution grants these excuse me the constitution does not define what judicial power is which is the power that is vested in both the supreme court and all of these lower courts created by congress but then here it powers we see them all the time courts do use inherent powers to the manager case loads and sanction the attorneys as we saw in chambers even though there are statutes and bills that are out there we well your honor we would a believe that they kind of coincide with each other in the sense that in chambers one of the lines that you all had requested us of paid sites that we had reviewed stated that because of the very potency these inherent powers must be exercised with restraint and caution and we believe that's how a lot of these cases that the prosecution it cited in its brief kind of also review these cases i don't know wheeler seems pretty broad it says that you can protect a witness after the trial in order to encourage that witness and other potential witnesses to come forward it would seem to be that i would apply and theoretically every criminal case well it yes your honor theoretically every single case that want to just ask us to disagree with  to disagree with wheeler when i found out we were but we know that that would be an option for this court however we you know we still believe that the facts of this case are slightly different from the other cases that are provided mr starr you had started to say there were two reasons that there was no authority one was the lack of a federal statute and in fact there is a federal statute but it's limited to air to two things that don't fit here what was the other the the lack of the district court exceeded its inherent authority while we believe that there is inherent authority that district courts possess we do not believe that in this specific case based on these different standards of or for the rare compelling the significant administration of justice that was i believe stated by morris that none of these proceedings is that the pursuit for the just recording no over and now it's over to the prisons or is it the nature of the of the of the order that's given well first if i may respond to the federal statutory would believe that there are only two instances where that communication could be imposed since at sentencing about the district court or post sentencing upon motion by the director of the bureau of prisons or by the usa as for the inherent authority argument we still believe that because of the facts in this case it is not a rare in compelling case that would warrant this indication of inherent authority it's a very quickly you you said that we should reject wheeler what are here two step process or what is your test if you were writing this opinion what's the test you would wri i guess if i bespoke that on a spoke for wheeler we're not necessarily outright saying that it should be not followed by the fifth circuit we do think that if this court were to incorporate this two part test that was already established applying the facts to we do not believe that the facts of mr darwish this case are the same as morris wheeler posey or any of the other cases that were cited in the prosecution's brief based on the nature of the relationship the request by the family and the lack of desires i had to change a plea explain to the court that i was trying to do something to help the miner and her family if they had if they had followed the course that i think would have been appropriate we wouldn't be here i don't think there would have been a contest because we did a plea agree to it in the pollutant the plea agreement probably is not something that we're going to be able to rely on because of my language of the change of plea last but don't they have to seek to set c one c you are not in is it's written in the absence of the defendant saying look i understood something different and here's why the evidence from the change of plea or what not i think you go with the police right i mean the deal's a deal if you're going to undo the deal then i want to be frank with the court i think that i have probably undercut that position because of the victim's family and what they stated to defense counsel prior to the change of plea so i don't think we can just rely on the police room and so they agreed to this there's an inherent authority just has to be exercised in the in a way that person that ensures due process ensures that it's happening in a way that protects everyone involved i think it said more than that i'm just we have the majority opinion in chambers which obviously took a broader view the court said that the inherent power is what is necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious decision of his position of cases here you're not talking about the court managing its own affairs but the but the affairs of a prison well i don't know that we're men and maybe that's a that's a in there that we've all fallen into especially from us not thinking about these issues in terms of authority but in terms of what i don't think  that the court didn't have power to do this never occurred to me in the kurdi you know i mean the bureau of prisons is very protective of its power over the prisons to the point that as a sentencing judge you have to say i recommend drug treatment i recommend you know see the vill versus this other city i recommend all this stuff because if you dare to say do it oh my gosh you're just traipsing into an area that is there is and that is executive versus but this is a no contact order more it's not it's it with it's we've constructed as a punishment but it's a protective order it's separate and arguably should have been entered as a second separate argument had we anticipated these issues arguments not part of the guess the most logical proceeding for this no contact order to take place is the sentencing but given these concerns probably it should have been entered as a separate order apart from sentencing and then would have been enforced by contempt powers there's a case of that will be argued in the north in the ninth circuit u s versus peyton adams believe there's a name let's get the docket number for you we ar and so that may be and then that's maybe the inherent problem the active orders usually are requested by the victim's one so forth i mean that isn't the procedural posture in which this comes to us that's why i have it almost seems like you're arguing for the point that i made earlier with counsel opposite which is that perhaps it should go back to the district court to consider this in light of the correct  if the court is exercising and i think we can all agree inherent authority has to be constrained in some way for time at a federal court of limited jurisdiction it can't just have and here to thirty out the was you so whatever those limits are don't jin the district court have the opportunity in the first instance to consider those limits and determine whether this falls within those even assuming there is such authority here i think if you look at the cases the seventy seventh circuit months are cases w world except for the victim which the defendant didn't contest would you agree there's a big difference between a district court forbidding contact during the trial versus after the trial you're not and that's a point i made here that there's this huge gap if you think about it prior to trial pretrial services pending sentencing and supervised release the court has authority to restrict access during those time periods if the defendant is sentenced to life in prison then the court has no authority to protect the victim and that's of that seems to me to be a wide gap and something that a court can consider in the circumstances unless it's a rico case right didn't it's a rico unless it's specific i think mafias in the prison in sneaking out notes to the hitman lady children present well unfortunately there are those present to your heart page of one seventy eight of the record and i'm not going to get into it but he discusses what he wants to do let's just stipulate that this be forgetting that it's not as if the bureau of prisons is just having letting prisoners go willy nilly on the internet and wander around attacking victims and whatever i mean the point of the bureau of prisons in part is that they're supposed to run the prisons and they're supposed to have restrictions and actually doing we get pro se litigants all the time who are complaining about how they don't have access to this and they don't have access to that in the magazine subscription was cut off and so on and so forth and the argument always is we're doing that for safety we're doing that for security so it seems that if the prison that weren't allowing this man to reach out by the internet and harass this victim then she can s protective order but in the meantime of the prison already has their own restrictions it's not for the judicial branch to get in the middle of that that's the kind of day to day thing that they deal with and yet i think there is a rule for and  expressed in these other cases and i think there is inherent authority that the question is does it extent i think if you look at the facts the p s r even even the mother of the victim sheet the mother says she acknowledges her daughter's too young to effectively decide to enter into an intimate relationship and the defendant her daughter got into a big rush over she'll support her daughter's decision to be with the senate when she gets older that's not really that it's not us is not victim hide from business associates the fact that he was incarcerated yes that's a little nap one of the two and one of the three of the record and the quotes i have we talk on the phone and almost every day with her parents consent she helps me take care of my business and i says no knows i'm in here but she is the victim is able to keep my relationship with them because i write her what to tell them so he's using the same tools that he's used to entice her to perhaps groom her into this relationship half  images he's using that same tool while he's in prison awaiting sentencing and so i think the court does have a power and does have a responsibility to protect and i think it is one of those rare and unusual circumstances where the court actually went through a fairly detailed explanation of  reasoning this is a rare and unusual case the defendant was afforded due process by the court in her explanation of why this was being imposed and why she decided to say when she's matured as the mother said in the p s r when she's had a chance to think about this get to be twenty five perhaps then she can pursue this but at this point a fifteen year old girl is is awfully susceptible to first love first sex all of these circumstances that the court can take into consideration but at the core know that that's what was being done here dealing with a very limited and rare and compelling bob law even a even a pump spotting the notion of inherent authority here which i'm still struggling with be honest with you but even if i'm spotting that i'm never going to accept that it's some broad just do what you want whatever sounds good i must say it's extremely narrow and the i'm not sure the district court perceived that that's what was being assessed here i think you're probably correct i don't think it was presented to the district court of that matter but i think the court made findings that suffice and actually get to those points that wheeler that morris th the other cases take into consideration it is one of these going to change points or in a row it is exactly right that the district court was not operating on this basis i mean i read the transcript i know with the district court said he would win when he received your concession that well the plead room is not exactly the way it doesn't it doesn't reflect reality i guess in the district court said well then i have some discretion about how to structure this this no contact provision and he said so i'm i'm i'm giving him a break on supervised release of i'm not mistaken and i'm going to keep it in place while he's incarcerated so the district court was under the impression given to him by the parties i think that that he had this discretion that doesn't make it legal but think you're right i don't think the court was presented in this manner and make those kinds of findings i mean that you would make if you thought you were exercising some extremely narrow that's group a cut i think there's also the the idea that makes an error of law or isn't applying a correct law we normally let the district court do that in the first instance and here i'm just i'm very concerned about this traipsing into the field of the pira prisons i'm not again i'm even assuming argumenta there is that power it's a power that needs to be exercised extremely limited because the bureau of prisons needs to be able to have the discretion to run the prisons now we get involved when prisoners who don't don't get proper medical care someone so forth i'm not saying the courts have no role in them at all i'm just saying that they're the experts and they're the executive branch and they run the prison as something we have to realize so that leads me to this question what if there had not been this provision what would the premier prisons do with this guy if he was in fact calling the victim and she didn't want to hear from him what would they do i assume that they would have there would have been a complaint from the victim or from our office and there would have been place to restrict access right they have that the control on the phone they have the control on whatever internet access they might be provided and they have control over visitation obviously so does she she doesn't have to show up at the prison to visit him he's in a prison he can't go out and do things on his own so if there is a problem is there any indication that the prison the bureau of prisons is not doing what they need to do to protect the victim in this circumstance  take the court's role of protecting victims away from them i don't think the court has to say this only has to be a recommendation that's what many cases of the let's take a simpler pathetic role according to wheeler the court can impose this kind of order in order to encourage not only that witness but other potential witnesses from coming forward so do i think the messages come to participate in the justice system and will make sure nobody bothers you after trial  we're about acquittal little let's say the defense acquitted it sounds to me like under this theory the court can still say defendant do not bother to it's this witness because we want to send a message to future witnesses in future cases we will make sure nobody bothers you afterwards i think the court probably could impose it as a no contact order it would have to be enforced by contempt proceedings and i think that's the way that this order would have to be a contempt of court part is separate writing once you assume the validity of the court's order then of course you can to enforce it through contempt the question is is the vote is the order valid on its own and to my mind if you look at cases like chambers it seems to me to do a big difference between administering the trial protecting the providence of the court during trial and after trial which gets more into the federal government regulating private conduct if congress has the support of this i'm not sure where courts get the power to do it i think i think the same principles with in place to protect witnesses after or victims or witnesses after an acquittal as well i think the same ten years could it got much more in part of the bargain was the no contact provision is that your understanding you know that was part of the original plea agreement were i can't stand here and say that work it that i can enforce that enforcement of the plea agreement because of the words i used at the change of plea in that in the sentencing if we vacate the sentencing condition and send it back what happens to the underling deal then i guess what happens with the underlying sentence is not anything on the table i think that the government would probably  maintain the original plea agreement and the cap of the ten years why because i think it was made considering the facts of the case the defendant the victim's family and the victim i think we i think we reached what what i believe is a fair plea agreement the ten years is appropriate for him being a twenty five year old with a prior conviction like you said and putting him in jail for ten years i think is hopefully would protect the victim from that would we have to vacate the entire sentence in order to address this issue if we concluded that there is some very narrow vein of authority but it has to be exercised knowing that that's what you're doing as the charge and not just sort of accidentally doing it when we only remember that condition or do we have to vacate the whole sentence and remain on the whole thing i don't think you have to vacate the entire sentence i think you could do a couple of things one would be a firm obviously which is my hope second would be send it back to the court to make findings about to put words in your mouth i think what you're saying is you would not be seeking a different sentence as core garbus of what happens to the no contact thank you thank you record citations one of the main concerns of the district court was the victim's age at the time of the sentencing i believe at the time of the sentencing she was a proximately fifteen years old maybe sixteen years old but currently she is i've pictures probably a few months after the national contact so she was still a minor at the time team yes rather but if this court would consider sending it back to the district court the district court could take that into account that the minor victim is no longer a minor looked and that was her main concern she does know that however the judge knew that he was going away for ten years and she knew the age of the victim roughly and in ten years somebody who is fourteen even assuming the youngest is going to be twenty four so somewhere along the path of those ten years she knew that that the victim would turn eighteen and yet it seemed that altered the supervised release condition or lack there of but it didn't seem to alter the prison so tarion and that then that was the whole of the reasoning behind eliminating the supervised release portion of the no contact right which but the judge knew that while he was in prison for ten years she was going to turn eighteen early in that time period and even turned twenty one during that time period and neither of those ages that we typically have used to deem maturity in a young person seem to have much impact on the judge these of the incarceration so that doesn't seem to be a factor we could look at a course if we're asking for and if we if we set our own two prong test or adopt somebody else's the judge still would i know look at all of the facts but what age she is now to me in the question just you know kind of all of the facts because she's been forever changed by his conduct that's  victimized perhaps in a way she doesn't even realize this really but made yet ok what else can we hear from you though the one last thing that i would like to respond to mr roberts argument he mentioned th mentioned in the rule twenty eight j he noted that the it dealt with him the issue they're believed to have dealt with a much broader no contact special condition and that history he did not challenge the specifics no contact special condition is to be one of the victims that he had been harassing we just wanted to know that that court did look at the issue from does the district court have inherent authority in general it wasn't necessarily as to the specificity of the victim or the general not terrorism no your honor we have a terrorist in jail and it comes to the attention of the district court during sentencing that the terrorists is going to send out an order to blow up a bridge just to court doesn't have the authority to say to issue an order that forbids that  out so what does the bureau of prisons typically do with these recommendations are they typically follow them your honor i don't know specifically i'd do no work of your prisons but from our experience we do know that when the bureau of prisons gets these recommendations they do take a hard line look at them and if there is it depends on the type of rate just seems to me unlikely that if the court phrased it as a recommendation we're not talking about sega ville versus you know some other place but we're talking about don't have let him have contact with the victim and they're not going to go oh no we want to have contact here have a cell phone and start texting this person i mean it just seems like that's the sort of recommendation that would be readily followed and therefore avoids a lot of this very complex in my view separation of powers challenge in such hello the court did know that there is a regulation twenty eight c f r five forty point a fifteen