our final case for today is united states against kenneth rain even obligated to list he could not stomach lines he could not make a relevance objection to go anywhere since the rules of evidence don't apply and will eleven or one be three i think is the rule of evidence on that point but we have more primary problem with the court's analysis that's one where we're to go because as a matter of due process you do have to have notice in the petition about what is being alleged as the violation morsi is very clear on that rule thirty two point one is very clear on that so we'd have a constitutional problem as well as your wheelbase problem if the district court were to go in a different direction and say there's additional evidence that would allow me to revoke you beyond what's alleged in the petition in the particular bases th particular bases were well stated here it was here's my issue with that if the hearing had come and gone with no mention of the monthly reports i think mr rayney would have the very strong notice ba argument but it's my impression looking at the hearing that the monthly reports do come out and there are discussed and he's aware that the government is saying you know on top of everything else you lied and several of these two or three of these monthly reports and that at least was an affirmative written lie i understand your point about the other things that you know the polygraph examiner isn't the probation officer and in fact he had the report in two days earlier and it's not his problem the probation officer didn't read the reports that he submitted to maybe it wasn't a lie at all and when he's sitting there in the car with the phone on bluetooth who has to say something should the probation officer have said is anybody else in the car with you at which point we would have had a different situation or was this idea of lies by omission something there but putting that to one side to the reports come up in the hearing so it looks to me like he has the chance to respond if that report shouldn't come up in the hearing but they did and he is there he has an opportunity to need me never says hey what are you talking about these reports least it seems to me the arguments being made here that that is not an objection that should have alerted anybody to the argument that you're now making about that i would disagree in so far as whenever there is an objection that raises a constitutional issue and he not able to confront himself you know as the person who wrote the report and lie in the report they are part and i was unclear then on your honor's question about what information and which report is all reports if he were to affirmatively included information  is never less than not the basis for the revocation i think the petition was clear it's not about what he said in those reports it's about his responses to the probation officers questions and there was no question and therefore there is no basis to find that he could have we can't look at the report the government in their brief and i understand from your reply brief you're saying too little too late you shouldn't be changing your theory that the government sa reports are actual why have you seen have you been with any children no that wasn't right i think it would be a definite problem we would do little good for due process today if we were to look beyond what the alleged basis was for the violation and say we can instead look at something else even if he doesn't know what that something else is there is a matter of notice in the district court looked at a petition and held a hearing based on the allegations in the petition consistent with due process and rule thirty point one requirements would limit the inquiry of the court to those matters so be incumbent on him to say anything i think it's a problem for the government they would have to make a second petition they would have to come up with a different theory show a violation that should lead to his revocation supervised release let's not forget mr rayney is subject conditions that a court drafted and if they've not been drafted well that's a problem if they're not being applied well that's a problem but those are problems that are his responsibility and so far as we're doing here that it is what the government burton in didn't need and again the government has not shown anything that would say that he violated standard condition number three in the district court's order after the hearing the judge court's statements during the hearing none of establishes anything other than people are unhappy about what happened in therefore they're putting mr rainy back in prison well they're unhappy because at some level maybe not a level that we can reach but definitely he's being dishonest with them he's he's well aware that he's required to report such things as camping trips with children and when he's sitting in the car in the probation officers talking about you know that he needs to be a scored and even to use the restroom facilities he's not he's just sitting there were giving much credence then to conditions that are currently under attack and things that have been just excuse me again discredited to a large degree these absolute no contact type of conditions that affect a person's liberties those are serious questions in any that they are not something that the district court established through the conduct in this petition to  violation such that mr rayney could have been imprisoned for it if i can move briefly to the other topics which i hope won't be at issue if we are to limit what it was that the basis for the revocation was and the government but if i can get also that there's a due process problem in my purse tissue as well but as for the third issue and i need to state this that my clients currently out and so i do not want him to be at risk of recession seeing if there is a issues it's the government's position that with respect to the hearsay issue the defendant does continue to ignore the proper standard view he continues to assert a noble he did not raise a proper objection below here is his  his objection below was a expert witness objection to the reliability of polygraph test results which aren't even really at issue here and so he's under pioneer review and under plain arrow he just cannot prevail here an objection there was there was the defendant never raised any objection to his monthly reports and in fact you know the defendant raise sort of a smattering of issues it was kind of hard to figure out what his position was we had a full preliminary examination and the statement he makes to the polygraph examiner right that he had already said something about his relationship with jackie he had filed that report two days before and it certainly there was no reason he had to believe that they just got stuck at the bottom of a pile of pieces of paper and never looked at he had in fact preach is closed as of that time that the troublesome thing about the reports which is what you i believe are now primarily relying on is misrepresentations otherwise in  contact with children or whether he's dating somebody maybe maybe the first thing isn't to date maybe just a bunch of people but a time comes when he's actually dating her well and you know if this evidence or hearing was contact continued from not only those you trap but all the way up to the hearing the two camping trips you're doing out trips right and then there was a trip to a fish restaurant i think but in any event as good as the hearing preceded the fact that he's having contact with these children while reporting on the monthly reports he's not becomes more and more significant as more contacts are disclosed and he actually is checking a box on these monthly reports saying or writing  s make abundantly clear that he has a duty to tell the probation officer he has if he has any contact with children period and he did it and you know the government the defendant is right in the sense that in the violation report the twelve c the probation officer doesn't notice up each of the monthly reports but the monthly reports are a violation of the same standard condition the whole point of  what did the deceptive undisclosed or not disclose and when did he disclose how but i wouldn't go quite so quickly to where he just went oh there's a revocation notice and there's a whole process that's supposed to be followed and he didn't receive the full benefit of this process there are things identified in that revocation notice that i do have some problems with because if he's not himself making a misrepresentation to the probation officer he's sitting there in the car silently he's saying i'm going to the zoo with you know judge williams and i don't have to mention that i'm also going with joe drove in or have i actually live and if i'm really provide misleading information to the probation officer as long as he volunteers it i think it just it well i know you're going down this path of misrepresentation by omission right and i'm nervous about that given that are criminal incarceration consequences to it i'm not sure that that's what the statute or the conditions say and i'm troubled by the fact that there was really no finding of reliability with respect to the polygraph report of the individual he you know the polygraph examiner and the fact that there was no balancing under thirty to one b to c which the board is supposed to balance in terms of the confrontation and you know and admissibilit i mean it was not as you know an ideal hearing because the court didn't make those kind of finding you're right the jordan adjoining balancing test was not done right by it wasn't done in that that's important it's important that that process be well it is certainly you know if you read the sentencing transcript the irritation just jumps all of us yeah just jumps off the pages but it was the third this right so i guess here's here's what i would offer in response to that your honor if you played out what would have happened ok so the only statement of issue and that polygraph test was that the defendant said my probation officer already knows of the relationship ok so the cross examination at the hearing would have been had approached had the polygraph examiner been there are you assure my client said that isn't it true he didn't say that and the polygraph examiner would have said yes or no i mean there is absolutely no evidence that that would have had any impact and i think the mostly case in particular makes clear that what the court can do here is a firm by simply saying look the other evidence was trying to i mean what cases what do you have you know whether it defendant is required doesn't use and given notice and required to sell some personal property as an additional condition i know there is this issue and you are saying i here and one is you know the notice issue and i think the probation officers concerns about the r v were actually brought up in terms of it being a moving residence and being very difficult to monitor se probation officer testified she was extremely concerned about him getting a star in this context because he was going to be difficult to monitor at the preliminary examination so that was out there now in hindsight i  will be a bad day for due process when you can allege one violation a litany of information a policy and then be told that a revocation hearing we're going to revoke you in here is wise and it doesn't match what the alleged violation is let's consider what an indictment is it's an elemental approach to whether the government has established the bases for a violation that leads somebody to have a criminal conviction it should be the same in a revocation petition that didn't happen here these revocation proceeds from the proceedings are too fast to use more needs to be done to make sure that we are giving people notice an opportunity to respond that didn't happen with the r b it didn't specially happen with all the other facts that trickled their way and certainly as to the polygraph ministre it or the government can speculate with the polygraph ministre to what is sad and try to convince the court of that harmless error the problem was there was a constitutional violation it was a violation panel thirty two point one the government could have put together a supplemental petition about any other allegations it did not that's on the government also as a final matter page eighty eight at the end of the appendix it gives me something caused cause to do something i've never done before but i asked this court to apply circuit rule thirty six because the judge said any violation i will send you back i won't hesitate to send you back to two additional years in prison i don't think that's an appropriate thing to have hanging over mr rayney as he goes back i think it should be for the court