heather williams and brian rodham are on behalf of t m reversed and remanded three words that apparently can cause as much trouble as all do it i love you and i'll have dessert we decided be reassigned in that case that did not happen lindy had three different cases and since court of appeal judges are wordsmiths your careers are in communication are invalid because they're not reasonably related and then you go on to go ahead and say we sent back however for further proceedings or for further consideration condition three conditions fourteen but nothing about what we would call the sex offender conditions well you can if there were some room for reconsideration there was what was the showing a man which might of permitted the trial to reconsider those when new information let's that we don't think there's any new information there was certainly a lot of documents which were presented to the court and there was testimony testimony from stocker stephen grey who didn't evaluation back in one thousand nine hundred nine and from say that with regard to dr gray's report if the court will recall dr grey had ordered a polygraph which was done by his wife who is in practice with and because mr minnick moved his hand it didn't take it was considered  that he had not fantasized and had not had any sexual contact with children in the previous twenty years when mr graham dr grey was asked about that in the hearing he had not considered it before his testimony and it supported what his previous conclusions were and that was that mr minnick was a medium to low risk to re offend another matter which was not before the court previously was the clip this mcgrath and the police and this mcgrath which was conducted court previously but dr grey had not had the opportunity to review it so there wasn't anything more there wasn't any evidence that there had been a new offense there wasn't anything that showed t m had lied to his probation officer close inspection in the record reveals that his in his polygraph he said that he had fantasized about relations with young girls for the past three years not the past ten or twenty did you know what i'm talking by now the footnote that you're talking about and we feel that that was a misunderstanding and we hope we had clarified it before and the misunderstanding was this when the polygraph questions were initially asked there was some concern that t m was not answering truthfully and it turned out it was the wording of the question with regard to have you had any sexual contact with children without limiting the amount of time involved in the question we're not sure how the court district court interpreted that as being within the previous three years except that's when the polygraph was and so the district court we think had m polygraph was in the previous three years but he answered questionably because the question had not been limited in time to make it post one thousand nine hundred eighty one conviction  that that's where the misinterpretation happened once the polygamy for asked the question and narrowed it down to the previous twenty years so that it was post one nine hundred eighty one offense then the polygraph conclusion truthful in saying that he had not had any contact with minors in the last twenty years but all he was asked regarding fantasizing about it was the last three years correct but ok but then you're saying that's even that's wrong and our reading of the polygraph report is that once the scope was narrowed to include the previous three years by just generalized and asking of twenty years that the response was truthful that he had not fantasised and had not had contact with him it's not unlike the matthews case because matthews as does catarina says that the district court henri man can go ahead and take into account any matters that may be relevant to the sentence and matthews goes on to narrow that in saying there are exceptions to that we can limit evidence if for instance there's been a governmental deception an obstruction or some kind of inappropriate conduct by the government none of which we are suggesting even happened here or if the other side has had the full and fair opportunity to go ahead and present evidence what happened the first time in the disposition hearing was that the government was not the government agreed essentially with the defense that there should not be sex offender conditions the government had the opportunity the first time the disposition came around to go ahead increase then whatever evidence it was necessary to address the issue of sex offender conditions and certainly the district court has the power  ahead and order records and disclosure to help flesh out the questions it has in fact the district court in this case before the disposition hearing on the second probation revocation did exactly that it was the district court that the psychosexual evaluation even happened and so not only did the government have a thorough and fair opportunity previously to go ahead and present whatever evidence it felt was important for imposing sex offender conditions but the district a motion to reimpose these conditions coming from the government were what's the genesis of their being reinstitute what happens after the mandate issued the district the matter for sentencing then the district court continued the sentencing then the district court continued of hearing but said it for what's known as a status conference and not a re disposition hearing and about that time the court issued an order saying it expected to parties to address certain questions and to answer certain points of the law for instance there were questions that the district court had to address whether or not t m was a truth l reporter whether or not he knew that heard like a was a convicted sex offender and there were three other questions it directed both parties to be prepared to address before read disposition happened and also wanted the parties to go ahead and it felt it indeed could go ahead and take new evidence new information a new argument on those issues in light of what this court's mandate was and essentially that's what happened and so we set the matter for evidentiary hearing second circuit the statute says that supervised release begins when someone is released from prison the imprisonment portion of t m sentence the twenty four months was not touched by this court it was not changed by the district court except as may apply to the hundred twenty eight hundred eighty days which was supposed to be the home confinement but the twenty four months that he actually was in prison w changed by anyone and he was released from that in august when he was released in august he reported to his probation officer and while initially the hold on quote sex offender conditions were not imposed we clarified i think it was in the september hearing that indeed he was on supervised release and those were the conditions that he was to follow come november way before the regis position hearing the court added yet another condition and that was the no contact with females under the age of eighteen so for the next several months until read this position he followed that condition as well so for about ten months he continued to comply with the conditions of supervised release and yet the court reporting despite the fact that the same conditions everybody else on supervised release were followed plus the one after november that he should not get credit for any of that time but the johnson case the baresi case and the lawman act case all say that supervised release begins when somebody leaves custody furthermore roman asks says that it may be a violation of due process not to give credit for any of that time because when minix first but in the drug case he was and february of two thousand and one which they cannot quote polygraph status mr minutes completed a confirmation polygraph on january fourth two thousand and one with floyd lawrence results indicated he answered relevant questions truthfully when from floyd lawrence which is found in the record from pages three fourteen to three seventeen it reflects that initially the defendant did show was deceptive to the poor questions which were as an adult and other than the two minors you have told me about do you remember specter sexually touching any other minor child to as an adult have you masturbated to sexual thoughts or fantasies regarding minor children three have you used forceful in gauging in any other sexual contact and for in the past primarily because up until he was approximately forty years old he drank frequently and picked up young females some of them could have been as young as sixteen he never asked their ages and was not sure how old they were he advised that it was very possible that some of them were minors been occasions when he thought about sexual interaction with younger females and aster being that the questions were then rephrased to create in the past twenty years have you masturbated to sexual fantasies regarding minors and within the past twenty years have you by this aren't we dealing with the marijuana distribution conviction here is not the underlying conviction yesterday was it was it was he ever prosecuted for any sex by the federal what is the record show in terms of his what i asked conviction for a sex related crime is last conviction for sexually related crime was the january twenty third nine hundred eighty one incident where he was convicted  information that the court had and had incidentally who is sort of the moving party on this is this the government's position of the government's motion  district judge to reimpose the same conditions even in the absence of facts after the initial sentencing i would say not in the absence of facts after sentencing will be reading actually were brought out mack can i say that there is any evidence that mr minnick or t m act out sexually inappropriate way after the federal conviction no but what i can tell the court you know that the district court had more information about the in this case and this time around the court had the opportunity of a treating sex offender therapist who's been in the profession for well over twenty years who developed the sex offender treatment program for the arizona department of corrections who could come in who could look at the records who could the that i'm thinking of the kind of case that we get on appeal all the time the sentencing case and we say the interviewing in this case we find that  district court is and free to say well you know i i really think the more i think about that obstruction of justice the more i really think that he did obstruct justice and so i'm going to put another i want to put it back  and maybe get some additional reasons having to do with whatever it was that caused them to put an obstruction of justice adjustment in the first place that we're going to be having  did in treatment and i think i think that in some ways having the reports and a cold record is not dissimilar from going to a doctor having medical tests taken and only having their results to look at without the interpretation by other treating experts in the area the benefit that judge will have this time was the testimony of dr gray when he was asked specific questions for example with regard to the imposition of the ban on pornography and sexually explicit or special name look absurd based on a twenty year break does or anything in dr gray's report that refers to activity or testing or anything that report couldn't have been generated when the defendant was in front of the district court the first time at the time for example of the original sentencing on the marijuana conviction a time and i would think new material would be required would be after the sentencing that was appeal to previously and that was the sentencing upon revocation of supervised release on the conviction from marijuana and that's why i'm understanding so that sentence is the one that imposed the sexual offender conditions for the first was appealed the first time yesterday but i guess and then our mandate referred to that sentencing and it seems to me that if if there's any reason to deviate from our mandate that reason would have to have something to do with the activities or conduct of the defendant after that sentencing i would be what five six years the last six years testified there's no evidence that he's cured number one there's no evidence that he's treated number two that he still presents us being sexually interested in pre adolescent girls between the ages of eight and ten can i say that there's no risk that that ten month period there was any violation of those conditions assuming they were still on their conditions or bare minimum reporting months from now on there's no allegation that he has done thank you i miss hanson brought up the issue that mr minnick in the polygraph report told the public or for that up until he was about forty years old he had a drinking problem and during that time period he may have picked up children who were minors  and had thoughts about them mr minnick is now sixty nine years old so that means that happened in the one nine hundred seventy s before the one nine hundred eighty one offense the court also asked about new information especially in the form of stud are he recalled a study that said after twenty five to thirty years if somebody had not and it's actually there was a one percent or less chance every offending in that regard d o j came out with a study following offender since one nine hundred ninety four the study came out in november of last year and said that actually their estimations of recidivism among sexual offenders was much lower than they had previously predicted mr hanson who's up in canada also has come out with some new a year old girl walking along the road and picked her up if he had been sophisticated he wouldn't have needed to go by the kmart and buy a camera or buy clothing for the girl as a sort of a bribe he would have been much more sophisticated in prepared and thought advance and that's an indication that it really was more spur of the moment and a very unsophisticated defense and we're dealing now with a man who's almost seventy years old and the realities of life are that that kind of interest may decrease and like given those records to review before his testimony he did not have that information before he testified and that is in the record as well even though the court itself was given copies of those records and while they provided additional information about the  from back at the initial p s r in this case the p s r assumed the worst that there was penetration that certainly there was kidnapping and bringing to a hotel room isolated from anyone that this was a stranger abduction  i mean even though there may have been a slapping and offer of alcohol and those are ugly facts for sure but they don't make a difference in saying that this defendant is more likely to reoffend and in fact when dr kay was questioned after all the quibbling you know with their penetration was there a touching or was it just on the buttocks in the fries dr gray said you know it wouldn't matter in terms of treatment and it didn't matter in terms of his evaluation of the medium to low risk to reoffend so these kinds of minuscule facts do not change the ultimate conclusion the doctor in this case i does not true that mr minnick did not cooperate with regard to being retested the court never ordered mr minnick to undergo an additional psychosexual evaluation what he did say when probation wanted him to sign authorizations for the release of the records a said that without a reality reevaluation he could not say at what level mr minnick was then when disposition happened earlier this year as a risk to reoffend he did concede that without any offenses in the past twenty years that is quite possible that mimic has successfully self treated and he said that again it didn't matter whether or not all the things that he wanted mimic to say yes there was a penetration did not matter in terms of the type of treatment that he would be recommending for him so what is the record tell us about who retain the doctor group for this evaluation dr gray as my understanding is on the list of approved psycho sexual evaluation described and now this probation revocation happened his probation was revoked the twenty four months plus supervised release with sex offender conditions happened no additional cycle special evaluations happened in