may please the court my name is greg smith and i'm the appointed counsel representing david byrne yeah in this appeal this case is properly remanded back to the district court as the government has now even conceded at least so that the written judgment can be corrected when you were manned it back on that issue you should also remained it back generally so the other issues we have raised can also be addressable of looking at those issues i want to spend my time on today first you should exercise your supervisory power recognize that you have an error or view us of supervisory power perhaps than certain others on the court and i accept the court your honors views on that that issue that you think supervisory power for is quite limited to come from somewhere finds that the condition is not related to the underlying offense then of course it would never reach the issue of whether the probation office improperly sought it but turning back to judge intel's question when there are problems in another recommendations to the bureau of prisons about what it does in other institutions that are outside the confines of this district but more importantly supervisory power this is squarely in what supervisory power calls for traditional admi this district do we have jurisdiction over the bodies of probation officers in maine such that we can from a due process or any other point says that we can order them to do something when they are coming to this district act asking for changes then yes and that's what happened here nobody asked for it the court didn't the prosecutor didn't consult with questing or his main probation officer if that if the main probation office has its own policy right we won't take anybody on transfer from another district right unless they agree to these requirements and we have any authority to order them to take a transferee with out those require your honor i think you do because is there a case a statute anything like that no your honor i don't know that the issue has arisen before but but when this  of the stiction i should expect uniformity no i can understand how we can direct our own district court as to what the supervisory policy is with respect to computers but can we force a nother do to take the same to which the person is then transfer and i understand if they stay within our district it can be enforced but if they go to another district we have authority to tell the other district you must take the person that's really the question here your honor i think that the federal judiciary has an institutional interest in uniformity and yes i think he should i mean the southern states might have all kinds of restrictions they can place on on receipt of prisoners issued that come from other jurisdictions and i think it's important that no jurisdiction has the ability to veto the receipt of a defendant based on some self appointed condition that they come up with saying we're not going to take someone unless our rules our view of the world should be should be followed so yes i think there's federal sentencing needs to be uniform and the ability of a jurisdiction to refuse to accept the defendant unless changes are made to the senate should never be accepted by th uniform you know thing to the conclusion that we have the authority to impose it is the refusal of any jurisdiction to accept this court's prisoners yes i don't think that this court should should  is a sophie's choice he is if you look at the record if you read his relationship with his mother he had to get back to me he had no choice to get back to maine if he wanted to keep his mother out of a nursing home that was why he got the original of my own choosing if i am able to retain our my our i may ask the court to appoint counsel for me without any cost if i can demonstrate i'm unable to pay well your honor i got the right form the right you do i'm therefore he felt a need to get back so i didn't say he would be released and with could have been released in washington hear this this week has been released to washington but he couldn't take care of his mother in that circumstance that's right well so his his entire goal was to get back to try to keep his mother from me put it in nursing and that put him in a even the district court said that it depends on your definition of duress the knowledge there was pressure being put on him in order to sign the form and it was presented to him on counsel with no one present other than himself by a stranger who told him this is your only ticket home to me when when when was his first recontact with mr kirsch it would have been my understanding it's not clear in the record but it he was released in august and so he didn't get the ability to speak to mr pierce i think until after august and of course the way the process works with the point counsel mr pierce was saying i'm not your counseling more my probation violation discussions began after he had been released in august so would have been probably in september some time that he filed a motion to reconsider this condition in in october and the government didn't say it was untimely they didn't say it was waived and it was a visually decided by the coordinator to keep the condition let me just close by saying present home over time there's also a separate issue an important one over whether there was ineffective assistance of counsel in his his attorney's concession of violations and i think that the court should also remain for ineffectiveness on that issue because of the timeliness question no you made the argument that you shouldn't have to appeal conditions until after there's a revocation but i think the rule is at least the text of the rule is that you have to appeal from an order criminal order to get fourteen days i don't i'm not really sure about the policy argument you make it seems like it would not be a very good idea to impose conditions let the person subject to the conditions to decide whether to violate the conditions and only then challenge seems like once you get conditions you have to follow them and if you don't want to follow them you should appeal well you second set not on the first that he could not get the first set of notes he didn't get notice about the first computer restrictions year it's not clear when he would have gotten that your arm it was imposed without a hearing based on supposed waiver or if he did sign a waiver but he was not present in court and so and he had no counsel so how are you supposed to file a notice of appeal if it's an awful lot to put on a expect that he knows the rule that he supposed to appeal in fourteen days when he has no counsel at all no access to counsel he's in prison all of them and this waiver that he signed then gets imposed on him and he's supposed to know he's supposed to file a notice of appeal and how would he know what to appeal i mean at that point what is it that he's going to are you want to appeal without counsel to help and understand to raise an issue like that main doesn't have the authority to ask for special conditions on the defendants that question as to when he was calls which we don't know the answer to can really resolve i think that this case that you can remand for an evaluation of what it was that he actually got notice of of  the the position and when he had access to counsel but he he did not have to access to counsel for months is my understanding after that condition was imposed that he made an argument that he didn't have notice about the final second to defending the argument that he had violated his the first set of conditions he ever argued that he didn't know he had those conditions before he violated no your honor i  and but i don't think there's anything in the record either way on when he received notice that the can condition had actually been imposed by the tyson was whether he knew during within that window because since it's not jurisdictional window your argument about equitable tolling seems reasonable to question is how much outside the window did he know and did he then after he knew it he appealed and the first violation was and i think from trying to put this together from the briefs and what i have in front of me seems like it around august twenty fourth yesterday and he was notified that he had violated and so if he if he wasn't claiming that he didn't know about the restriction that he must ignore about the restriction before august twenty fourth i think he probably knew sometime in september if not sooner it would have been probably sometime in august and september i think that's that's fair to say that he was aware of the condition at least by august or september his attorney filed a motion to eliminate the condition in october the government did not object to that is untimely or somehow having been weighed because the failure to appeal it prior to that time and in any of it the final judgment of course didn't come until october or any of mediately power notice of appeal thereafter proposition the government cited a number of cases in its pleadings and letter indicating that a defendant has to appeal within fourteen days and will for the modification of conditions of supervised release and appalling waited more than a year or so in the colloquy that you're just having with opposing counsel if the first violation is in august of twenty sensually the same as an appeal he was trying to get out from under the conditions and so they moved in october as additional argument that the government didn't complain to wait  appeal to do well the october opposition was out still outside of the fourteen day window and appellate hasn't indicated any basis for well his argument is he was on call so well his pleadings and i know he's argue that today in corporate his pleading say that he had counsel his reply brief says he wasn't talks about his inability to do to actually speak with counsel but that issue would be one could look at the district during i guess during the summer during the time period before he filed the opposition which is also what he said today he said that counsel that he obtained counsel during the summer so what's your argument government didn't object to the motion as a way to resolve this well the government didn't file anything argument at bottom is that the government is sort of way this argument that raised it on appeal but this was the government's first opportunity to make this argument the government didn't file any pleading in response to opponent's opposition because the monitoring condition had already been implemented so there was nothing for the government to do in the district court it already attained the relief that it wanted which was the monitoring condition and appellant after several months filed in opposition and the discord ruled on it the government never filed anything at that time so it didn't have the opportunity to make that argument because it was didn't file any thing so it made it on appeal which was its first opportunity to make the timeliness argument and in any event i wanted to address some of his our other arguments about probation apologies argued that this court should implement a flat rule that other probation officers can according to him attach conditions supervised release and we've got a number of different arguments on that i didn't read his pleadings to actually ask for a flat rule so i would suggest that's a new argument on in his reply but in any event we have a number of arguments to make about that the probation office does have the authority to make recommendations and the government demonstrated that in its pleadings as a factual matter appellant is incorrect that the main probation office was implementing some sort of policy actually what happened is that the main probation officer visited appellants brother's home which is where palin said he was going to live before palin went to maine and then made the recommendation for the conditions and that is in the appendix at pages fifty nine to sixty during that hearing the probation officer talked about her visit she met with the parents brother she reviewed the file that's also in district court document number thirty nine she did all of those things before making their recommendation i'm so just as a factual matter apologizing correct appellant has wasn't the district of columbia provisional correct so so either that was the result of a main policy or as you're suggesting the result of a home visit it's just the visit occurred before then and i don't know the answer offhand the answer would be another probation officer was asked i think the appendix would say it and if you look at document number thirty nine in the district court's docket it also inserts the question as to when this visit occurred could tell you today right  the i guess said to you other question make about opponents argument about the flat rule one is that i agree with judge tate all of that to the extent there's any question about the imposition of the monitoring condition that's really a statutory question about whether it's reasonably related it's not a question about the authority of the probation office because the probation office does have the authority to make recommendations and main the main district of columbia and then the release from prison there are no restrictions on where they can live he is there restriction on where they can live automatically they have to come back district judge imposed a year probation office they can't do it on their own you know they can request additional conditions which the district court can review in its discretion and impose or not and modify the conditions which is what happened here but i take you to be suggesting that for example of how it would have gone to maine and maine in the main office would say oh and we're going to pose additional conditions no when you have to do that and they can't say you can't come to me unless you agree or conditions they can say that and again this is outside of the briefing because i feel like appellant race this argument out the war what about going to maine could or couldn't a herd it's called courtesy supervision so somebody is in a district and they want to go to a different district and the two off probation office talk and one agrees to buy courtesy to supervise the other person and i court here said no i'm not going to impose these computer requirements but you're free to go to me and continue to be supervised there could mean refuse the district judge here said no computer acquirements are not justified i'm going to keep their requirements just as they are you're released from having to be in the district of columbia you can be  maid in the main probation office saying no we're not going to supervise and i thought that they could by statute roll but i'm not positive there's less we're going to respond yeah that's something we're going to have to but again like my reason for not knowing that is because  this to me seemed like a new argument in the reply making nationwide rule i took appellants pleadings to be arguing that the district court had done something improper by listening to the probation office not that  because i want to ask you about one of his ineffective assistance claims particularly the one where he claims that mr kershaw made concessions during the evidence from hearing even the so as i read the transcript it sounds to me like you did the you know over and over again he he said  that the defendant did thought i was the order and he was making the mitigation argument is that right he did i think there in the course of the hearing he argued that appellant had made certain technical violations but they didn't warrant revoke asians so why isn't why don't we have to send them back to the district court to looking at as to whether that was an authorized concession sure i guess brief and then ultimately there's no need to really because he didn't he didn't object contemporaneously correct well how do we know that we don't know that the way he says he did we'll know it was here it isn't that sort of exactly g there's no need to remain because it's clear there paul wasn't prejudiced there were fourteen violations alleged the court found something like ten violations there was a great deal of evidence there's no indication in the record that anything pages the government presented a bunch of witnesses documentary evidence there was really a lot of evidence indicating that a felon had violated each of the can charge conditions and so the question was just you know to def but relocation isn't warranted and you know i'm saying even if you think that that was deficient that the outcome would have been the same as a mccoy say you don't look at prejudice right of those circumstances y was enough uncertainty about this issue that remained was necessary on this the concession question is there any reason why we should also remain on the question of whether he knew about the april twenty eight always said and everything but i have no recollection of this one and he says well i never got it and the probation office confirms that he's always said he never got it and what would be why not just as  know i don't i mean my answer as to whether remit is warranted is it isn't for the reasons that we said but but if the course question is what we're going to wring the end at on this one point and why would you dress all of these points and i think i agree with that during the hearing the lawyers looked at all that i made a judgment that these weren't either relevant or useful what's more to be done here you have the as one of the circumstances we represented by the same lawyer that you're trying to claim is in effect right that that's the difference that's the that's the problem in the alcohol whether we should essentially testifying against this client so we don't think that that hearing was adequately think you should send it back for more fulsome development facts on the ineffectiveness issue particularly on the issue whether he conceded the points which was not directly addressed below next to just quickly the government said that we had not raised this issue until argument on whether the maine had to get thirty two refused to accept the defendant it's right there in page thirty four of our original brief or we talk about how maine neither maine or any other federal probation officer should office should be able to set their own special preconditions and we ask for the court to exercise its supervisory power requesting that his condition be modified to include the computer monitor and condition it was not based on any facts they found from the home visit based purely on the fact that the initial offense itself they felt require that a conditions based on the instant offense not based on anything she found in the home visit the final point i want to make is that in terms of the waiver of the waiver issue the opposition that was filed by mr b he got counsel did specifically request on page fifty six of the record that the court modified the condition to eliminate the computer monitoring conditions so the government said we didn't have we didn't file anything in response because he wasn't asking for anything we already had what we wanted well here was basically a request that the condition be removed the government never objected never argued that it was untimely and seeking that  while the next group of lawyers ye