good afternoon honors please the court my name is allegro class has i represent appellate brian washington enters the court here imposed an additional burden of polygraph testing on mr washington after his sentencing had finished mr washington wasn't present when that happened and because of that it should be removed let me ask you what do you have in mind with the subpoena why what do you think you're going to achieve if you  removing the polygraph testing from the condition of mr washington supervised really wouldn't it be really a reminder to the district court to to cure whatever the problem was no your honor  government hasn't actually asked to have a remained to reimpose the condition and this court has a long line of cases where the condition that was imposed without the person being present is simply removed from the written judgment there are cases starting i believe with mark has and also has a few may it's a common remedy to remove the condition and that's because sentences are final once they've been imposed and mr washington has a right to the violates due process i'm not arguing that here in the circuit hasn't agreed but this circuit has found that it presents a harsh dilemma for people because it forces them to choose sometimes between potentially incriminating themselves or violating a condition of release and this is why if this is such a harsh and interesting or portentous issue why did you not raise it in the district court to which the answer of course will be you were not counseled this object before a judge actually imposes a condition here the judge didn't impose the conditions so counsel had no reason to object are you familiar with what the practice is generally do you have an understanding at least in say eastern and southern districts do judges routinely add the polygraph testing language or are there judges who do not and as to those who do not do you know whether it's actually part of sex offender treatment as ordered in my experience my office is challenging this condition so it's it's not routine when the judge orders it we often do challenge it depending sometimes on the particular person who's being who's being sentenced and it does not have to be a part of sex offender treatment as the probation manual makes clear it's really not about treatment it's about compliance or eliciting confessions it's not the treatment provider that does the polygraph test now is it not the case that the district court relied on the pre sentence report is that right well there was a pre sentence investigation i'm just asking you where the judge daniel's that's daniel's relied and said he was relying upon the reading of the pre sentence investigation report yes your honor it was discussed in the context of the guideline range and what did the yes and the condition that was proposed in the pre sente investigation report includes the following sentence you must abide by all rules requirements and conditions of the sex offender treatment programs including submission to power graft testing i'm missing something in that sentence no your honor but the judge did not say that he was imposing all the conditions in the precentor you think the judge has to say everything that's in the report before he can incorporate the report into the center of this court's case law is clear that the judge needs to say any nonstandard kids if condition particularly those that aren't even in the guidelines at all like polygraph testing yes the judge must say that we're only at sentencing for it to be part of the sentence it's not just a clarification this is a separate condition that as we discussed is moderately controversial that's correct your honor and it's a separate condition that isn't even mentioned in the sentencing guidelines are contemplated as a standard practice well there any other moderate you thank you very much appreciate good afternoon your honour's may please the court my name is jacob warne and i represent the united states in this appeal and i also represent the united states of the people in the proceedings below before the district court allowed to start with just addressing one issue about the polygraph test scene itself the government's position is that it is in fact part of treatment specifically here it's not the standard treatment it is part often part of sex offender treatment and here in the p s r mr washington underwent a psychosexual analysis by dr mccarthy the judge daniels had the benefit of that l y report senate scene and in the p s r this is a paragraph seventy one she actually recommended that mr washington undergo clinical polygraph exams every three months while in treatment you know who does the who does the polygraphs my understanding is contrary to what ms glass has or said that it's actually the treatment provider that has to be in a position to do the polygraph test that is correct your honor and it's actually part of the it's part of the treatment not used but the probation office often recommends it because they have contracts with these treatment providers and it can be a requirement of the treatment providers to undergo polygraph testing release simply because it is one of the rules requirements it could be one of the rules requirements and conditions of participating in an outpatient sex offender treatment program that was in the government's view something else in this record that the friends council should have been aware of or or that in the courtroom have been aware of or was aware of well well your honor in the parties were well aware of this condition in  s r and had opportunities to object to the p s r there was also specifically in the p s r incorporates dr mccarthy's findings in her recommendations after her evaluation of day was because of this sex offender treatment program they mention this in their sentence in submission to the court real reason of course were wrong the street drugs at some point you forget a sentence less than a year yes yes it's three months and yes yes to this imposition the imposition of this sex patient sex offender treatment program as one of the reasons the court could rest assured that mr washington would not see judge daniels again so the part yes your yes your honor has the sentence stands now it needs to washington refused to take a polygraph test when he violated his conditions of parole he i think he would he would violate his conditions of supervise release because he wouldn't i think similar to the other rules and conditions of the outpatient sex offender treatment program if he didn't show up to group sessions or refused to participate or violated some of the other rules that they have set in it still could be a condition just like any other condition of the treatment program yes you are let me ask you about that even rely on the fact that it was recommended in probations recommended supervised release conditions but i'm not sure how much you can rely on that this search you know you're familiar with the search condition of supervised release which is routinely recommended by probation officers and many judges do not impose that condition and no one would argue that that everyone was on notice that probation was recommending it so you could still do a search yes you are i think the the one difference here is that there was this issue was looked at carefully by d mccarthy and a a lengthy evaluation in a lengthy report that she did of mr washington you know finding that he he was a serial offender and that he i think the language that she used is that he  overestimates his his ability to deal with his to deal with his condition so i think here the imposition of that special condition was was well considered by probation and by dr mccarthy but  you can see counsel that this special condition was not imposed in this oral sentencing no question your honor that the the second sentence of the polygraph testing was not imposed by judge daniel other than overlooking it and that what about the opposing counsel's view that the only if if she were to prevail on this argument that the only remedy that we could decree would be striking for ever this requirement is that right is that you have any comments on that well as opposed to reminding for resentencing your review on  well the government's view just to add since in your honor i have a recollection of judge daniels going through the standard conditions and then reading reading reading the first sentence of each of the special conditions  and then clearly clearly he did not read the several sentences of this particular special condition and that's again the government's view here is that those who would reply even even if the court even if even if that is as judge i can already mentioned even if that condition wasn't mentioned in the written judgment there were remain and would give judge daniels an opportunity to consider whether to impose this special condition which he obviously didn't consider the first time around judge daniels also had the benefit of the p s r and and also the the recommendation from a mental health professional  think he did in fact consider yes your honor we don't know and reading the lengthy report submitted by dr mccarthy we just don't know though is that true counsel we just don't know whether he wanted specifically to impose this condition as we've heard from some judges intentionally leave that out and that could have been judge daniels thinking we don't know is that true we we don't know what oral sentencing but we do know that th that and that in the written judgment he included the additional sentences of that same paragraph imposing the special condition common is that for the written something to deviate from the oral statement to some degree i mean i recognize the jurisprudence on the question that it's the oral statement court which which is one that counts as it were but how are there other situations that you can think of would have no objection if we reminded the judge that for consideration of this matter asked at argument whether remained was appropriate when the government had not asked for every man previously and this court said in a footnote that because the government hadn't even briefed that question that remained wasn't the right result the right result was striking the condition and that's the same thing here that this court actually addressed this as well in rosario explaining that the only reason not to just strike the prison the condition would be if there was some uncertainty surrounding what the judge actually imposed that's not the situation here probation may have considered polygraph testing as the government says but the judge didn't if the judge wanted to impose polygraph testing it's very clear how to do that the judge just had to say it on the record orally at sentencing mr washington is now serving his sentence and he has a right not to have additional burdensome conditions added after the fact so the right remedy here is to strike the condition to happen to know whether he is what he's serving his in ok so are you familiar with judge matsumoto in the eastern district and the hearing that she had on adding a polygraph testing condition i am mariner you are familiar with and so what does that tell us if anything about what the background assumption is when you when when that language is not included when polygraph language is not included in a sex offender treatment condition just to make sure i am on the same page with your honor it's the hearing where she then indict did not impose the polygraph right and it's think it's the u langan moran case right in the eastern district and my understanding is not to answer quite my own question for you but my understanding from the public record is that she did a generic condition sex offender treatment condition government came in a year later something and said we want you to add polygraph testing she held a hearing and said no that's so the assumption of everyone was including the government was without polygraph testing language the treatment could not include a mandatory condition of testing as part of the treatment correct did i miss anything you know you did not your honor and i just don't think it's right to suggest that the treatment providers somehow wouldn't provide treatment without the polygraph testing because as your honor has mentioned it is not ordered in every case in the treatment providers do have contracts with probation and i presume follow those contracts as probation asks them to thanks for thank you