the honorable of the united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may give their attendance and they shall be heard god save the united states of america and this honorable court today's cases will be called  previously announced the times will be as a lot of the council the st case today is united states versus john wayne meyers appeal number two hundred and one thousand one hundred and ninety six good morning i'm chief judge howard judge baron and i are very pleased to welcome judge for the appellant john wayne meyers and judge howard if i may ask for three minutes for rebuttal yes thank you i preached at that judge the questions presented in this appeal on whether the court can enforce a special condition of supervisor released which was that a defendant fully participate in sex offender treatment where a condition of that treatment requires that the defendant admit to the offense or other sexual assault offens and was judge carter's with was judge carter permitted to impose a condition of supervised release for a conviction that occurred twenty one years earlier as it was to temp conviction and in federal court where he was sentenced to a term of two hundred and thirty five months for a firearm structure as part of that conviction he was sentenced to a special supervised release condition which was amended into in two thousand and seventeen which were that he fully participate in sex offender treatment program as directed by his supervising officer mr myers was in full compliance with that condition except that he would not acknowledge that he was a sex offender or that he had committed a sex offense understandably he made minimal understandably he made minimal progress in counseling us to say the least difficult to work with to be clear and because the government intimate that mr meyers did not in fact attend sex offender counseling mr meyers did attend sex offender counseling with g hogan a license how we challenge to that condition timely where the sentence was rendered a very long time ago and indeed he didn't seek to challenge it on appeal until at least six months after even his requests for modification so how was it timely judge there are two issues with that question of time on us number one we're challenging factual overreaching and should not have been should not have been considered by the court in terms of toggling us that's correct he was convicted in two thousand and one that obviously the record clear that condition was not appealed that condition were part of his supervisor that his special conditions a supervisor really so how is i'm sorry i still don't quite understand your response to the question of alternatively the timeliness from the modification of the condition so in terms of the court being able to decide what that condition factually violated i believe the court is there's no modify or request a modification of probation nor does rule three hundred and twenty one provide a limitation on how many times the defendant or the court or the government can modify probation or asked that probation be modified in retrospect i don't understand  still not quite sure what your your responses with respect to the two thousand i guess eighteen action but obviously there was not a timely appeal on that if that's what the court is that would be basing that decision on obviously  that's true for two thousand and one but what i'm trying to say probably inarticulately and i polished it for that is that that he objected to the legitimacy of this condition in recent time in two thousand and twenty and that there is nothing  thirty two point one that prohibits an objection at any point and so what i'm asking the court to do is accept of the objection to the legitimacy of the condition and from the two thousand and twenty objection of the whether there was compliance with the because if i understand it right you concede he never acknowledged or agreed to or admitted that he had committed a sex offense for which he was being given treatment that's correct ok and your contention is that despite that he was in compliance with a condition that required him to i don't know what the exact words were fully participate and that's right th condition did not include a requirement to acknowledge that he was a sex offender that that's right or as i was preparing for this already do you have for that proposition that seems like just a purely legal question about interpret the scope of the condition itself because if the condition did require him to admit that then there's no way to say he was in full compliance with that right so if the if either judge levy or judge carter's condition require that he admit to being a sex offender then you're then you're cracked so that seems to me the critical question is what is the scope of the condition and did it require his admission now how are we supposed to resolve the judge clearly thought it did and he's the one who imposed the condition what is the basis for saying it did not you know perhaps that falls on a policy argument your honor but one of the things in preparing for this was you know trying to think about why didn't he object perhaps to these conditions or why didn't he object to having to admit that he was a sex offender and you know what happens on the on the ground in these cases is he there's a lot of evolution and counseling proceeding and there's a lot of evolution in offices and how counseling is conducted in this case there was no knowledge of st of all his counselor information knew that he was one of the do not it was he that he was approaching his sex offender treatment as a denial individual that was argument you would be saying he just never was subject to the condition that he's not complying with but i guess what is the authority for the conclusion that that text of the condition did not include an obligation to admit it because i have to say just from a common sense one of you it seems a little strange to say that you're in counseling for sex offender treatment which means treatment for being a sex offender and your position in the treatment is i'm not a sex offender it's hard to see why one wouldn't think that the condition of the treatment is going to start from the premise that you have knowledge you have the problem and now we're going to treat it your position seems to be he agreed to the condition on the understanding that the treatment would proceed on the assumption he was not a sex offender that's not very intuitive so judge that i think that is the conflict that's happening you know for people in treatment so it would be like somebody who commits a domestic violence sense or somebody who commits a you know alcohol or drug offense but does not acknowledge with an alcoholic or a drug or drug addict however the the counseling be ordered and certain circumstances should be ordered and then part of that counseling process which is cited in my in my rebuttal brief part of that counseling process is to help in that offender and including sex offenders who are in and help them become aware of certain of the risk behaviors and risk activities so that is part of is it possible to comply with the condition if i take the business from the beginning and make it clear i'm never going to how the people of ministry in the condition are supposed to deal in your theory with somebody who has made it clear no matter what i'm never acknowledging that i was an offender i mean i understand you couldn't just day one maybe say well you're not participating but at a certain point it would seem that the judge is entitled with the the provisions and have said what you're just not complying with the condition that you just judge what that's a really fair point and that is one of the confusing components he has then been cleared of sex offender counseling and so what's confusing here is this is the case that a stark difference there was a more recent episode albeit a long time ago still around two thousand and valving his granddaughter right there was a recent and that they think that they are a sex offender i will have to say that in terms of clarity on that question i do not have a homerun case and i'm not giving up on the  did help to understand that there is a huge conflict and there are significant issues in terms of whether a person is able to be in denial and that they relate to th amendment issues or not and then break out that issue and  really what my research is showing is it's very very undecided and very confusing because you're dealing with the law which i understand your honor like if a counselor says you need to acknowledge that your sex offender enters in sex offender counseling and truthfully it makes sense that you acknowledge that or how it works where a court is imposing that condition and saying look you need to do that because it's better for society and perhaps you that you're in counseling then you have to take on different stripes of that then then you have to look at that individual and what i'm asking this court to do is say if that's the case and the court the lower court is imposing that condition then you really have to have there's not a one design approach that works you can't make everybody admit that they're cannot violate somebody's supervised release and or probation for failing to admit that their sex offender and in this case he was in counseling he was in counseling with a sex offender counselor it understand it wasn't going great i think that there's the record is clear that he's an antisocial personality disorder but he's not a healthy individual so it may never have the junk he insists that he didn't need the counseling so i don't i don't understand how that could that could high position that that kill is simply not timely and then the nd question is whether the revocation itself was proper to the district court probably fine as a factual matter that the defendant had violated the condition and then was told the court that the single reason that mr meyers was revoked was for his underling s admit that he was a sex offender and i would submit to the court that that is really misreading the record here what the record shows in this case is that mr meyers simply never participated in sex offender treatment and that there was testimony both from the clinician and from the probation officer that he never gets sex offender specific treatment i point the court to pages eighty nine and ninety one of sex and one hundred and twelve of the appendix what the record shows getting into more detail is that the defendant yassin gates and counseling with his clinician but it was just mental health counseling the idea was to develop a stumbling block your honor but i would suggest not the only one pre condition i thought he had to sign something so he admitted it and to get to the next stage he had to sign treatment contracts which were labeled adult offender contract and require him to acknowledge that he was a sex offender in some respects but the clinician and the probation officer also testified that they were willing to modify aspects of that treatment plan that aspect of it may not that aspect the title your honor or this after he had to admit the fact that he had to admit i didn't say a thing on the record suggesting that there was a willingness to allow him to proceed on sex with sex offender treatment without having to denial and then the probation officer testified to something similar to one hundred and ten of the appendix so they had to put the cops have to say that i'm in denial is a little different than saying you can go forward the understanding you didn't do it if i'm in denial i think that i did it and i'm not acknowledging it that's very different than going forward on the assumption i didn't do it so i think it's hard to read the record not to understand it to be a precondition that he's going to have to be in counseling on the understanding that he is considered a sex offender well you are right i think i guess those are two distinct questions out they were willing to let them proceed on the it was in denial in other words not accepting responsibility for his conduct the fact of the matter was he has been convicted of a sex offense right no i'm not saying that he's right i just want to understand if the record is that the reason he didn't comply was dependent on his unwillingness to acknowledge that he was a sex offender which is what the your opponents contending and as far as i redirect it's not clear your prison as i'm sorry for an extra year when they're willing to meet with a counselor they just won't say i don't know early on a month then that yeah i did  what i would suggest your honor and couple they st it was not a month and right he st met with mr hogan and may of two thousand and eighteen i believe it was or perhaps even april of two thousand eight hundred to began a psychosexual assessment and that he was not terminated finally until november of two thousand and nineteen so there was you know possibly eighteen months trying in various ways to get mr meyers to comply with this condition second i don't think the record again i understand that the treatment contract requires him to i guess say that he's an adult offender but it doesn't require him to admit to all of the conduct and what the question here is whether he that so the question really is it was not sex offender treatment and what was the treatment for and relatedly was seeing compliance with the condition when he was in free treatment offender treatment with him and this is perhaps a clumsy analogy but it's you know perhaps a kid to a teacher telling a student you need to see a math tutor the student going to see the math tutor but say i'd only willing to be tutored by you and english violation of the sex offender condition yet the way the consent is that respect it was part of the conditions so he was in compliance with the condition not just doing something unrelated to the condition during that whole period you're just saying it was in a later stage of compliance with the condition which he refused to comply with which is what happened when he wouldn't sign the contract and agree to the treatment regimen right i th rate i believe participate in sex offender treatment as directed by the supervising officer so what happened at the compliance hearing is that the court the probation you know made an agreement the court directed him ok you're going to start with mental health counseling and then we'll move you into sex offender specific treatment so i agree that he was doing what was asked of him and they getting the probation officer said meet with mr hogan you're going to stay out of the therapeutic relationship but he didn't so i think the question for the court is on that record as the district court finding that he wasn't in compliance clear error and i submit it can't they when you've had a full hearing the court in essence heard from the expert in treating sex offenders in the expert has said it could go forward the sex offender treatment could go forward on the basis of being a person in denial was that communicated to him in any way is there any anything from the evidentiary hearing that would suggest to us that he knew he could proceed with sex offender treatment without acknowledging that he was a sex offender i am not certain your i know they they said that they were for example willing to modify the treatment contract they gave him time to consult with an attorney before terminating him i know that the record shows that after he refused to sign the contract he had another meeting with the probation officer who had not been there before with mr hogan to see if they could work through it their testimony was that his resistance was selling tracks at that point that they couldn't even discuss with and they were not able to discuss with him modifications to the contract or the treatment plan yes and what i'm struggling with trying to get to here is whether he fully participated or not or whether he could reasonably have been viewed as fully participating or not fully participating whether the gloss on that that might have something to do with anything other than his refusal to acknowledge that he was a sex offender or whether really what is the heart of  this is simply that failure to acknowledge that a refusal to acknowledge that and trying to trying to understand what it is that we're supposed to be deciding here and i can't tell the least so far i can't tell based on the hearing you're at i think what that with the testimony was from hogan and the probation officer and what the court found was that they had spent eighteen months you know slow walking this process that and trying to get him to a question did you judge howard you and i guess i've asked you words like not complying with treatment not cooperating not doing treatment just are alive thing what is at least by me and i think within the focus of judge judge howard's question which is is that because he would not acknowledge that he was a sex offender or is it that even though he knew he could continue with the treatment well not acknowledging it he still refused to continue with it those are two different things the record does not to me make it clear that it was the nd thing that he knew it was made  him if you want to say you're not a sex offender that's fine we'll still treat you or whether the stumbling block was he was insisting he was not an offender and the counsellors were saying well we can't go forward if that's going to be your attitude and they couldn't get past that dispute if it's the if it's the latter thing which is what it looks like to me that's just what it is and then i guess you just need to be an argument that from your perspective legally that's fine he's still not a compl but those are two very different accounts of the record and so i think you kind of need to tell us what position you're taking with respect if it's an either or position that's fine too but it doesn't help me particularly just to keep alive in those distinctions and politics let me see if i can clarify that i think it is an either or position your honor on the on the legal question i think it would be permissible to revoke him after eighteen months when he still wanted myth that he even had sex with conviction and so i think that and the district court found you know he still refusing to even accept or acknowledge that he has this conviction and local four in treatment and i think that would be a permissible basis on this record maybe not in the  but after eighteen months to decide that this is someone who's just not complying on the question of whether he knew he could go forward and not all i would suggest is a court that the record is clear on that i think as francis could be made from offender treatment conditions i can't say for certain whether they use the language fully participate as opposed to just purchase the tapes if that's the fender treatment but certainly this court for example has rejected arguments that that resistance that led him to refuse to engage in a sex offender treatment and i would point out that the clinician terminated him from treatment if the revocation didn't happen until this very experienced sex offender clinician terminated him and said in said i can't treat this person and i agree with a court that a large part of that was that he would not admit that he had this condition although i don't think the record suggests that was the only thing that was going on he was incredibly hostile to this clinic from the very beginning when even you know honestly answer questions on a psychosexual assassin or provide release says or any information that would enable the connection to evaluate him factual matter of the two thousand and twenty probation revocation and i don't think the government wins on on that technicality no if i may i think the judge in your one hundred percent correct the issues that can you violate the defendant for failing to fully comply with sex offender treatment for failing to admit that he is a sex offender that is one hundred percent of the question at issue for today and i think the fear that all the justice of honed in on that issue there want to make the district courts finding that he showed nothing but hostility and was uncompromising in refusing to engage in any interactive process how do you deal with that what is clear from the record your honor is that he did in fact attend and participate in sex offender counseling and to be clear from you know he was engaged in sex offender couns productivity of the counseling is another issue and i understand that for sure the other facet that's clear is that the duane hogan was able to do i think what he referred to as denial counseling with able to do that he that was never offered what duane hogan in the record says that he was that he might be willing to modify on cross examination of determine that he had no ability to and what he meant by modifying is modifying the your that's ok and i guess that yeah but but but but that sounds really bad i get to let me it would be the issue is treatment i think the question is is it required that you get treated certainly that you're in treatment but that you get better if you're an alcoholic you may still be an alcoholic but you're complying if you're a drug addict or a sex offender you may still be a sex offender at the outset it's there's not a requirement that you be cured but i think so i guess two components if there's one is ok if that's your view that that that's an understanding of it doesn't seem to be in the understanding of either the district court or the counselors and the text of the condition on its face doesn't compel that reading of it it's certainly allow the reading that the district court and counts are so what are you suggesting should lead us to the construction that you're saying we'd have to adopt is it that you don't cite  process probably not cite the th the memo you don't cite a notice issue from the perspective i guess i'm just running i don't either some argument out there but i mean on what we have you just have a text of the provision that would allow them to have construed it the way they do in a record showing they construed it that way and then a defendant who in the face of that construction didn't comply with it so i guess the only way i can see them winning is if we say well that was not a permissible construction and  what that tells me i'm in a position where i can reject the district court's view that those words could be read the way they read it if there is something you know we need to know about it but well certainly the law is not helpful in this context and i think it's really a crossover between counseling and a more ever morphing and changing theories of what the fact is and counseling you know one day you know one day it's the best source that somebody's in it and then the next day there are there are opportunities for successful counseling and treatment based on non admission of the senses and so it's an ever more can process what i'm saying is you know that condition is as you said is  not permissible i don't think the th amendment you know it's a forty year old sentence that he's been convicted of and that doesn't apply here for sure that certainly has ramifications for other people there certainly due process requirements  that exist i think i you know that argument was made in my in my mind my challenge to the legitimacy but i'm but on this argument i'm really stuck with you know i have limitations at least in my mind on what i can argue on and on and on this and he was in counseling he was complying with counseling it obviously wasn't going well i'm not going to dispute the fact that shouldn't be the arbiter mean that judges shouldn't say well you're not going you're not you're not improving quickly enough for me and that can't possibly be what a judge should be able to do with the varying people and that's what happened here is he wasn't admitting and that issue is clear agree what is our standard of review here and i don't mean that the plain error standard of review applies to the imposition of the sex offender treatment conditions here right now is based on an unpublished opinion i