the next case on for argument is united states versus my nee treatment and their parmeet that he submit to computerized voice stress analysis would also raise concern with the district courts the terminations that could not establish different conditions of supervision for every defendant in requesting that you of vacate the judgment in remand the case to the district court for reconsideration of these conditions i'd like to st clarify one thing that we're not doing we're not challenging the requirement that he participate in sex offender treatment mr mcgee's currently is going through treatment he's participating in it and we are not saying that he shouldn't be our concern deals with impertinent part of the requirement that the probation officer will supervise the details of the defendant's participation in the program including the selection of the provider and schedule our concern is what is not enumerated within the details that are being delegated to the probation office i'm not quite understanding that i mean i thought we said in peterson that you can leave and i think this is a quote leave a variety of details including the selection of provider and schedule to the probation officer so you want the details specified were trying to find out some of the details because there are questions that come up as to what the probation officer can do as to whether or not there are details or whether they're actually intruding into the treatment program itself questions that we officer read material that our clients have to prepare for treatment and if you'll give me a little leeway i can give you some examples to show you how intrusive that this can be in these have actually  pertain to my client in this case mr mcgee's is required to keep a masturbation journal as part of his treatment program as the probation officer gains access to the file the probation officer questioning him about things in this journal starts asking him questions about how often he masturbates and this actually can start to impinge on the effectiveness of treatment the treatment provider has not found anything in the journal that would say that he's violating any of his conditions of supervision that he's violating any of the law but the probation officer is asking him him about it in the current treatment program my client is permitted to view legal adult pornography while it's recognized as a trigger in the program they say that it's fine that he can do this yet the probation officer starts asking him about his the types of pornography is viewing why he's viewing it and what he's doing with it these become intrusive into the effectiveness of the program and will actually defeat the purposes of having him in treatment if he cannot honestly talk about in foresee about the problems that killen it rise as opposed to you if something terrible happens during supervised release dealing with it then i'm not sure how much you're saying that the court should force see an question mine too i mean it seems just to elaborate on it seems very difficult for the district court judge to specify all the things that the probation officer can do and can't do and it seems like you're asking the district court judge to write a code in advance and my gloss on this is the court says in your view or on your wish list that i shall participate in your treatment  says what it is what why is it inappropriate for the probation officer supervising your client on release to ask about what's going on it's one thing for the treatment provide for your provider to inform the probation officer that the client is participating in treatment that the client may not be participating in treatment or even under the under new york law as is required that the our  would be posing a danger to someone in the community or to the community at large those would be appropriate things to report to give full access to the file to give the probation officer the opportunity to sit in on treatment sessions and we've seen that in our district as well in another case altogether that that we've had one of our clients violated on where the true the probation officer was sitting in on treatment and did not like things that he heard there even though the district lisette there was no violation so this is what starts in becoming problematic what is a supervisor what is it what are the details that should be supervised versus what is becoming overly intrusive and these are the court why we started raising these questions in this case and this is our concern as to the watch what should this look like what order should be entered by the district or who because you told us in centering because you told us you're not challenging that your client is it's appropriate to and we'll give you a little more time so don't worry about that we're not we're not challenging that it you are saying we're not challenging that it's appropriate for our client or inappropriate for applied to be unsupervised release that's not the story in treatment yes it why don't we want what is the district court say what is that sentencing court say that gives guidance to the probation officer who has a job to do in supervising the releases we had requested in mr mcgee says case actually that the original condition be reimposed the original condition imposed that set forth in the judgment in some ways is a little clearer and you know it doesn't go into the whole question of including it talks about the defendant is to enroll a tenant participate in mental health treatment specifically designed for the treatment of sexual offenders as approved by the probation officer defendants to comply with the mandates of the treatment program it's not in is not to leave such treatment will discharge is agreed to by the probation officer and the treating agency so in this way that the probation office is supervising it is showing that he's in the treatment program but it doesn't open up the door to all of these other concerns that we have i'm not sure what why it doesn't if you say the current one does why doesn't that one because it seems to be that once the the district decided to rewrite this condition and include language from peterson that we don't believe this court ever in the panel in peterson ever intended to in lewd we think that open the door to all these other issues starting to come into play when the panel listed that including the including scheduling and supervision i don't think they were saying that this was the condition that you should impose but ultimately that's what the district decided to do when they rewrote this condition itself i have a question at the other part of your challenge about the voice analyzer yes thank you ron it sounds to me it was supposed to be an oar and you didn't have to do both so from that point of view would it have to be sent back to get corrected or can we just assume can we fix the or that's one concern that we have but we also have the concern about the  boisterous i'm asking you about the st part we'll get to the reliability next i want to know what you say about that yes that that could be faked that could easily be fixed yes your honor now what what should the court have done with record with regards to  analyzer thing either not impose it at all or at least hold a dahlberg hearing so that we can actually consider whether or not this is a any way a reliable diagnostic tool studies have shown that really using a voice stress analyzers no better than flipping a coin and you put that before the district court i mean for the the sentencing court we requested a dahlberg hearing on this to address this yes your honor ok so that in the court to denied o documents you didn't submit it improper them to the court i do not recall whether or not we cited some of these studies at that time your honor because i was not the attorney on the hearing but we did request a dahlberg hearing we did raise the issue as to the reliability and whether or not they should be included given given the studies that exist and we cite we cited them in our brief here it shows that it's no better than flipping a coin that when they've actually been able to determine whether or not someone is lying based upon drug use and using the voice stress analyzer to determine that they were only able to determine that a per find eight percent of the people tested were lying about their drug use and in fact many people who did not come up with drug use using the voice stress analyzer they determined that there were lies being taken place about they're not doing it even though in fact they were so i think this become name is tiffany lee and i represent the united states as mr avi has framed this case it really falls on these two conditions of supervised release with respect to the condition dealing with  sex offender treatment the language chair really tracked not tracks peterson and i was affirmed later by this court and united states forces young what the argument confuses here what defendants argument confuses here are the rules and laws governing imposition of a sentence versus those dealing with execution of a sentence and this court and united states versus  assuming he she is not participating in the treatment sessions or observing them as a as an eye witness from asking the defendant about what's going on in the treatment program i don't think there is necessarily anything necessarily prohibit prohibiting the probation officer officer from asking the defendant himself  under the conditions that the defendant is asking for here that is go back to the original can call in the original i think the problem with the original which was decision about and roll meant whether to participate or not that decision making function fell within probation as interpreted by a panel of this court and water and so that was an impermissible delegation of judicial authority here what we're saying is you have to go to treatment the court is telling you it is the court's order you must participate in treatment so that any put in the impact on your liberty rights is set that's that's where it's at he doesn't have the offender doesn't have the choice too to say i'm not going to participate in treatment i'm not having a good day or whatever by the wording of the current supervised release condition the defender the defendant must participate in treatment now in terms of how which which provider you're going to the details of that suit the details of that treatment will be supervised by probation so probation is not the one making the decision whether or not a defendant is going to participate in treatment i think his argument is that the language we used in peterson which you're you're stating absolutely accurately we're going to make it clear that the district court itself has to say treatment is mandatory but you can leave up to probation all this the details by using that language we have encouraged and intended lee encourage probation to engage in a whole bunch of inappropriate interventions into the treatment itself and that's impairing treatment and that we need to go back to we need to come up with some other language in order to avoid that is he wrong about that i think he some other mechanism other than us revising the language again i think i think he is wrong about that because of the fact that you know probation is relied upon to be the eyes and ears of the court so there is you know in that supervised release condition pertaining to mandated sex offense treatment is that the offender is  following the rules and regulations of whatever treatment provider program that they are participating in so if we again it would be very difficult for any court to come up with an exhaust e list of what the probation officer can or cannot do here basically it provides the mechanism that what the probation officer is to do is just to supervise the details and make sure that there is a treatment provider in effect and to know the schedule of participation with respect to the offender in that program turning to the defendant's argument here appellant's argument here though is putting words in his mouth as i understand it is but when the probation officer can become so involved in what you're asking about the treatment and looking at the various components of what goes on in the treatment that effectively obliterates the treatment or or makes it ineffective i guess it's difficult to articulate you know the impact of that those factors because they're not before in this case you know so the question in valuating the standard of review in evaluating this condition of release is did the district court abuse its discretion and here there were you know there were no facts in terms of that were are you at sentencing that no don't do this because i know that this probation officer has sat and has done this has really interfered with x y and z and you know the mechanism is there not a let's let's fast forward and assume that there is too much interference by the probation officer such that the treatment is impaired correct  it can be brought back to the court or act so to the extent let's say the probation officer violates an offender based on treatment allegations or you know not following the rules and procedures of treatment at that juncture certainly you know the defendant can say wait a minute you know you went far beyond the pale you're listening to things that are beyond the scope and then we also have testimony of the treatment provider that was saying this guy was doing the best that he can but as like it's difficult to posit all this if it details in which the district court must kind of oversee in terms of how supervision is to be executed and that's why you know that's why in the in the framework of this case and the question that's before you the question is does this a condition pose a non permissible delegation of judicial authority the government's answer is no it does not and this court's answer in both peterson and young is that it does not and then the nd is wasn't of the use of discretion to impose this condition on this on mr mcgee's and the answer is no it was not an abuse of discretion with respect to computer voice stress analyzer this it was not fully litigated at sentencing all the counsel basically stated was i have an issue with the reliability of computer voice stress  analyzer and therefore you know i think that should be deleted along with the deletion that she did get from the original proposed supervised release condition or other means or methods of  testing and again the question is was an abuse of discretion and the government summits know this is an individual who had a history of violations and prior to this one there was  might be a reasonable condition if it has any induced reliability but you didn't put on anything and he didn't put on anything he asked for the two had to be addressed and then it kind of ended there i think it ended there only because of the fact that the probation officer at sentencing had noted that it had been used in the northern district of new york for a few years and actually in united states versus p see this court did not squarely address the reliability of computer voice stress analyzer figured it was both but it the condition was worded as both a lie detector test and computer voice stress and  both i think there was there was a war or the condition was probably framed as an or but both were discussed in paree see just as it as in the way that this court affirmed the modification to that individual's  supervised release conditions and said that those were ok they were reasonably related to the offense so ultimately again looking at abuse of discretion there is no evidence that the district court abused its discretion and mandating both polygraph and computer voice stress analyzer and the government's myths that the court should affirm the sentence thank you ms thank you interpretation of parisite in preseason the court has not addressed whether the voice stress on allies or is a valid tool the issue in peru c was dealt with whether or not the district court could modify  condition at the time and the court had had put in a new condition requiring the defendant to have participate in a polygraph or computerized voice stress analyzer know where she was raised whether or not the voice stress analyzer was a good tool a valid tool a reliable tool just whether or not the court could modify the condition so this is this is a completely different question that the court had to address parisite i think you're understanding my argument to regarding the sex offender treatment and the probation officers role it's really a question of how intrusive the probation officer can become into the treatment the supreme court and jaffe redmon has recognized that it's important that there be confidences between a treatment provider and a patient and i think what we're seeing here is problems that arise when you have a rd party starting to get involved within the treatment itself looking at the file sitting in on treatment sessions we're not saying that there shouldn't be any communication between the treatment provider and the probation officer of course there has to be some but it doesn't mean that the probation officer has to interfere with every aspect of the treatment has a full access to a and offenders file and to be questioning an offender on permissible activities just what principle we articulate that supports your position of that condition on the program i think you need to recognize that there are some privacy interests which our liberty interests that a offender has in their sex offender treatment and their mental health treatment