must confess and all tell you so you can address it you a couple of times in your brief you said there was a ten year gap of offending conduct and so at that prompted me i said that doesn't mean consistent with the record that i read so i went back and found that he had however you define molesting he had molested children virtually within months of every time he was in jail he was never out of jail more than ten months and he had a and his adult life in two thousand and three two thousand and four again in two thousand and four again in two thousand and four then he went to jail he was released two thousand and ten another incident and then he was rearrested in two thousand and ten and it's been in jail sense now all the incidents sure may not have been they were prosecuted it not all of them may have been crimes but they were one was stalking others were basically going up to kids and masturbating in front of them years you said there was a gap in offending conduct and every opportunity he got he was out there i counted at least six or seven incidents and that probably more and so that it doesn't advance the ball because all the experts focused on this conduct just to clarify on its head and a half year gap it's between exposure incidents so that is the last was in prison he was in prison for all but ten months of that time so how does that get you much benefit in other words as soon as he gets out in the public he was out about a total of ten months off and on that's right yeah and during these ten months all of those conduct occurred that i just listed to you in two thousand and four he was out three incidents in two thousand and four alone and but i'm just so correct your argument i'm taken back by the notion that you trying to suggest that the government didn't have any basis to do what it did in this case because he was innocent his there was a gap in his conduct it's much more productive for the argument if you face all his adverse facts or relied on and then address them and say that's not enough i understand you're ok there are therefore exposure senses in mr bell's adult life you know you need them occurred when he was eighteen or nineteen years there is a lot of that word offenses i mean there was a stalking time keyed to you remember and then and there was it was never charged nobody really formally complained he admitted to these there were times when  is only in the record at all because of his own disclosure to treatment promote growth no question about there are several of those there are several of those you get the benefit out of the fact you are and we're not measuring how many times he was convicted or how many times he was charge we're talking about whether this man should be out in public or should be held until he can be treated for his pedia feel you're under the adam walsh act at some very specific question which is as a result of a serious mental illness erroneous correct yes what what tell me one fact that you think is clearly iranis at joint appendix three seventy nine the district court relies on its belief that kaylan bell admitted as revocation hearing that he threatened and followed the to the facts and the reason he didn't raise any question about the stick incident where he threatened to show that these us asserted to the little boys i thought he said i didn't i didn't want to object to it because my lawyer told me then that would never come but wouldn't be part of it is that not correct he never admitted it in the i didn't say it i mean it's really i didn't say admitted i said there's some issue this way on their facts in this record on which the judge could to be very targeted toward a very specific subset of individuals as the court the supreme court held in the kansas can speak rainy kansas be hundreds civil commitment is significantly different than it's a typical criminal punish i don't think you're right and your understanding of what the factual record is there was testimony before this judge from the probation officer she said she told them what had happened didn't she she testified to the that point and go we don't know because the district court never resolved the credibility issue because he believed that this conduct was admitted and because it wasn't its for the district court in the first instance it would be impossible for this court to make a credibility determination having not seen any of these women or about the about what happened at all no you say there's no factual basis in the in this record to say this was molestation or a sexually pornography or child prostitution so that it's a very targeted and very serious crime that is sufficient to if if an adult brings a child into the bedroom and says watch me and then he exposed himself any suggestion that he threatened the boys or that he followed them with very much contests not it well he he it's uncontested that he masturbate in front of the kids he invited them to come over he showed the kids a wallop with some cash they started throwing stones at him that's all thing and he picked up a stick and they ended up separating and some adult had to come up and tell him to put his stuff away in his pants or whatever it was and left and they the truck and they were so disturbing hailed a truck used his cell phone and called police and he was arrested i think dr that is that that that those are the facts that ensoul right best in his favor my understanding from the facts is that he had already covered himself before the adult arrived that would be the one factual content maker i know but i think it's important to look at dr barnett's previous evaluations are leaves i want to i want to go back to the fact one second if in if the facts or in this record are which we can decide you don't agree with that but if we can does that make him no sexual molestation as the probation officer testified i think it could be sexually violent conduct if there was a threat why don't we want to address why do you  ducking sexual molestation your greed but if i were an adult took a child into a bedroom and much masturbate in front of the child that's sexual molestation here he goes to a schoolyard he goes almost the same schoolyard he he and  gets kids and they're twenty feet away and he starts masturbating and inviting them to come over and touch they don't do it they're repulsed by it all but and then he offers some on healthy offers and he opens his billfold show some cash to the kids and that's not just acrimonious station if the threats and following north threats no threat or no threat he invited them to participate and he got sexually gratified by masturbating in front of the children if he directed them to probation officer testified to that it if you accept those facts and i know you do not accept them in this record but if those are the facts i'm asking you do you think that qualifies as molestation yes and even if it even if it does though i think it's important to recognize that however imperfectly in light of his borderline personality disorder and borderline intellectual functioning mr bell has endeavored since the age of fourteen when he last inappropriately touched a child i got think you need to be more specific on so the factual question will resolve that as to whether or not we can give that i think we understand your position you say dr barnett testimony is no good now that's correct it was it was good two times before when it was favorable to you but it's and where he agreed to it i mean that he disputed the that there's a dispute about the stick set that aside i think the sticks almost nothing what the problem was that he went in front of children who are only fifteen to twenty feet away and masturbated in front of them and engaged them in something i thought of his testimony i thought was undisputed that he said that come on over a come here and they refused or you want to touch or something like children yeah that's the record i think everything is relying on what is not right but she talks about she goes and she go she said his conduct is escalating and now i see a different she may not like the distinction but she drawls and she goes he is now precisely my point your honor is that she's relying exclusively on this escalating conduct and the conduct is only escalating if you did in fact follow the boys and did in fact what he she believed there what does she believe the probation officer because she also never never had the opportunity to make credibility terminations it's not in her expertise to be do you might say there's a problem with her methodology but she every doctor had a reason for changing your big argument she's inconsistent in the third report that's going to i found  just to the contrary it reflected her honesty and the first to pour she said he does not need to be committed and this girl report pushes her over the line and in the first two reports he already had a static ninety nine are score of ten he already had the prior and his attorney was giving him the benefit of the doubt and this incident after the two thousand and fifteen incident she couldn't give him the benefit of the doubt anymore which she concluded in her twenty fourteen opinion that even if he were to refund it would be an act of exhibitionism and not individual and doctor plied testified that they don't that research doesn't put a lot of stock in they don't challenge you say then he was he has and is guilty of child molestation he is that's what you admit no your honor we do not because we don't believe that the distro whatever the three of the three you contested on of the last one you know the fact the illness and future dangerousness what do you we are only challenging on the third prong and the third only to individuals who have a serious difficulty refraining from two particular types of conduct sexually violent conduct and child molestation we can see that when he was fourteen years old in a juvenile himself he did commit an offense of child molestation that's undisputed in the record you know i must say i'm having trouble following your argument i thought you agreed that masturbating in front of children for sexual gratification is child molestation using the children know your own honor only if they're directed to watch the evidence in prior instances and we believe in this most recent offense is simply that not it just let's not forget the facts i want to argue the law and i see you mean if he goes off in the schoolyard and he has a please the court my name is michael anderson and i represent the united states the question before this court as the court has pointed out is whether masturbating in front of children while seeking or soliciting sexual contact from them is child molestation under the a and it absolutely is the definition of child molestation is broad it includes any unlawful conduct of a sexual nature with of the sexual exploits a test case for us to find that definition or do we just use common honor and i think that plays out in and what cases that we have about your honor i don't think that the average on a case from the district of why the turner case from the eastern district of north carolina in the revelent case from the eastern district of north carolina all of those sent out that distinction in ever gonna further damage while the sanction are you saying simple exposure is molestation your honor i'm not sure if simple just simple exposure would be child molestation i'm talking about the exposure of one's genitals coupled with sexual stimulation directed at children for the respondents gratification i believe i don't know what all that means to take quite frankly i don't see this i don't know that we have to decide this point do you have a view on whether or not simple exposure to children when when one does that for one's own sexual gratification is that enough to be molestation out of the statute i believe so your honor again the definition of child molestation the regulatory definition  broad it includes any unlawful conduct of a sexual nature with of the sexual urge you but you think that is molestation but you think we don't have to decide that in this case because you think you have more you just say you wou have us decided on just the exposure with the desire for gratification so i think of it let me clarify my my point your honor the just the simple exposure what i colloquially called the man with the trench coat by the court doesn't you decide whether that this child will stay the issue before this court is mr bell's conduct where he has exposed himself ten fifteen maybe twenty feet away from children and masturbated in front of those children for his own sexual gratification how do we get that factually you heard the discussion that we have with the other side did you how do we get there factually in this case let me talk about those facts let me start with may two thousand and four in may two thousand and four mr bell went to a field that was across the street from the elementary school he stood ten to fifteen feet away from the children and then when the children didn't do that the police report show us exactly what mr bell you think any one of those prior incidents he has would qualify for the four absolutely are absolutely and you know we seem to be focusing on the most recent incident that's right and stay away and toto from the incident at the park or number one the february twenty fifteen answer for well for verse althing prong one i think absolutely the court can stay away from that fairly late twenty fifteen when we get to problem three whether he would have serious difficulty i think the court needs to take that into account but even let's even assume that mr bell do not chase those boys let's assume that he didn't threaten those boys in february twenty fifteen his conduct is still an escalation all they did was exposed themselves that's what he says only that they didn't say that all of it was exposed so he says that he he exposed his penis and began playing with it i was the testimony at trial i think that's enough to be exposure and masturbation  when i asked him at trial whether he showed those boys money his testimony was i might have yeah and even even with those facts set aside that the conduct that that day in february twenty fifteen was escalation just given the sheer speed of his offending he responded within thirteen days of this and we take into account the reaction by the voice in other words if the boys had seen him it was just a casual observation at a distance again there is a de there is a distinction to be drawn between what i again call the man of the trenchcoat maybe somebody who's kind of off in the well if you don't do that let's just talk about if you want to talk about escalation sir let's talk about what he did that's right because wasn't barn tt and the third time she testified the first time she testified phoneme third time she testifies against him a she said based i'm changing my opinion because now his conduct is escalating she said i can't remember the exact words i could find about he approached the boers absolutely and that to me is a very bad thing because i'm paraphrasing because that concerns me if he's going after these children and by the way that testimony is he may have been a wild ways away from  but he closed to within at least five feet in that testimony that's the statement from the boys that he got within five feet and he wouldn't back up the boys did they actually throw rocks they actually they threw rocks at him to try to get him to stop correct and then they said we got a we're going to shoot you that's and that didn't stop him that's right it was only when another adult male i think was a male but another adult showed up and said to him that and that could get out if it's not there that's right and i think that the fact that mr bell pursued those boys so vigorously isn't that what barnett was talking about is absolutely what she's talking about and that shows just how it how compelled by his deviance he wanted there was nothing those boys would have actually you know i asked the other side that she said the dr barnett didn't have an idea they didn't have an opportunity to us that ability of those boys i guess all the probation officer what about that that week how do we get to the point that the court is allowed and we are allowed to look at those facts when you are those facts were in evidence before the court of the probation officer kelly showed up at the scene she spoke to those boys and she testified about what they taught you know what i know i know what she testified to i think we all do with dr barnett just some of those acts as every expert does you assume a set of facts and conclusion that's absolutely right and it necessarily is on a dry record when the experts look at it they're not going out and interviewing all these witnesses that's just how this process i agree with i do that not this point well taken but did you hear the other side's argument they go he did it the judge didn't buy and own the probation is up office is testimony he just said is based on her client's admitting it and she said my client never admitted it so that's where she finds the error and clearly erroneous factual division and i disagree with that reading of the court's order so the court in its order laid out expressly what evidence it thought supported the threat and the evidence included probation officer kelly's testimony the court then laid out expressly mr bell's disagreements with that testimony or with what that evidence and then later in its opinion the court did say that mr bell admitted to those facts in a supervised release hearing but the court also said that the record shows that in twenty fifteen mr bell threatened those boys well what  technical point but on the factual record i thought that he did admit to those facts at that hearing and i think he did your honor so provisional state didn't object we don't just take a second walk through that shark probation officer kelly testified that at that revocation proceeding the district court read that the petition to mr bell in the factual basis that reported the threat and asked mr bell directly if anything in that factual petition was incorrect if you disputed any of it if you disagreed with any of it that was mr bell's opportunity to say i didn't threaten he didn't do that they did not do that he tried to explain it away later by saying that one will be used against me so i didn't go it was actually i think the stick but quite right it was about the threat involving the stick right but what it has revocation proceeding was simply no that he didn't disagree that he didn't dispute i respectfully i think that is an admission but there was other evidence to support the fact that this threat was made the fact that mr bell chased these boys the boys repeatedly and independently reported the chasing and the threat to police they reported to probation officer kelly who testified that she believed the boys in fact the only evidence presented at trial that mr bell did not make that threat or that he did not chase those boys was mr bell's own statement from the witness stand but if this court noted in the record much of that testimony mr bell simply couldn't remember and i think i know the answer why when he was arrested for the february twenty fifteen offense he blew eight point one four six his blood alcohol content was point one four six and point one four nine given that level of intoxication with all due respect to him he is not a credible witness as to what happened that day and it is his testimony as this i can't remember did barnett coast i think two experts said that he would be dangerous once said that he would not say yes or was any basis of her opinion or change an opinion and anything to do with his dreams or fantasies about raping and killing throats of children was that included in the escalation has been having those all along so he had those in state prison again those preceded the february twenty fifth tina geyser but when dr barnett wrote her opinions in twenty thirteen and twenty fourteen bell had not committed any of sexual offense at all in the one that he had been convicted of at least since two thousand and four by that was his last conviction for a sexual offense that was almost a decade before she wrote her opinion twenty thirteen he also face conditions of super supervision if he were released conditions that he had not tested and dr barnett thought that when you combine those two things that there were sufficient protective factors such that mr bell would not have serious difficulty refraining but his february twenty a fence in which he ripped he referring to sexually with prepared dozen boys despite nearly daily contact with the united states probation he was meeting with probation on the officer almost every single day and in fact had a scheduled meeting on the day that he got drunk and went to that park where he had seen elementary school children before and responded sexually with them the fact that no he was it was variations that had the g p s monitor all fam was i mean throughout his supervision he was but the g p s monitor was still on him in february twenty fifth i didn't say that it was known him but i said he wanted it all for that he actually wanted often the point that i was trying to make to the corollary to that is he didn't get off he was still wearing it when he went to the park he skipped a meeting with probation and while a g p s went to a park where he had seen elementary school children somebody could have showed up at any point what if any row does the testimony by the probation officer play here maybe didn't play any when she said i've been supervising such offenders for twenty years and this defendant has the least amount of control over his in both those of anybody i've ever seen and she said i've talked to people in my office and their greed is that that that does that play any role in our decision i think that does play a role in the person who is supervising mr bell in the community a person who is meeting with him nearly every single day and is an expert and and supervision of sexual offenders correct who had twenty years of experience as a probation officer both at the state and federal level who had talked to her colleagues at united states probation office in idaho they believe that mr bell had of all of the sex offenders that they had ever supervised had the least control over sexual impulses and the facts presented at trial bore that out and i think that's important too as an adult mr bell has spent less than three years in the community as an adult since he turned eighteen less than three then it the dr barnett rely on that at all but that's what the probation she did not because she didn't have well she didn't in her in her opinion your honor she didn't have that testimony in front of her at the time that she wrote her report i don't remember whether she said in her testimony that she specifically relied on that but certainly dr barnett was in that courtroom for all of her son needed structure and she said that her son need a structure that he needed help and that he needed placement in a secure facility because he couldn't stop himself from her job which she she loves her son and she doesn't and so she said the mother she may not be an expert in a lot of ways but she knows her son and she said testified for the government that she thought he needed to be and an institution that's right she was very concerned about what happened she was very concerned knew that her son needed help because she knew that children need to be safe in the community from well is he there forever your honor it's not a life sentence he can under the the treatment and they can have revaluations can absolutely can have revaluations he can go through society does not it have an opportunity at some point i'm not saying if you'll meet those conditions but this isn't he a one time is over if you're confined that's it that's absolutely right he has an opportunity to to go through treatment to learn to control  just that at this point he hasn't he he doesn't he indicated he needs help he did your honor and he indicated that he needs help which which in a way is it a mission that he has a sexual problem and that he needs help controlling it and he's never meaningfully pursued that help he testified at trial that he has always want to sex offender treatment but when he gets into sex offender treatment he never meaningfully pursues it in two thousand and three he cheated his way through treatment it was the only sex offender treatment that he had ever completed number of ways he himself is torn it i read the record he looks like he knows he has a problem he knows maybe he can't control it but he also meant to have some freedom he won't some you know he wanted a relationship with candy that's right and another person which maybe you should or should have had but he he's torn him self i think all this do you think that i think he is a record absolutely and i think he  recognizes that he can't control his behavior in fact he's admitted that repeatedly to in two thousand and twelve the sex offender treatment providers and twenty thirteen to dr barnett while being evaluated for civil commitment he admitted it again in two thousand and fifteen to his federal probation officer and again in twenty fifteen to his mother and here is a a very important line that he said he said in my sexual behaviors are beyond my control he wrote that in a letter to his mother my behaviors are beyond my control there are some other movement inside of me did you think the fact that testified that he should not be confined twice previously strengthen her testimony in your case that now he should be absolutely dr just like probation officer kelly dr barnett gave mr bell every single opportunity he could to get out in the community to show growth to demonstrate maturation to show some level of control and when he got to february twenty fifteen even though he had been referred for civil commitment twice even though he had participated in in sex offender treatment at ages seventeen eighteen twenty seven twenty eight twenty nine even though he had been incarcerated for his prior conduct when he knows that he's under the microscope and he knows that there are serious consequences not only criminally but potentially civil commitment within thirteen days of his release he skips a scheduled meeting with probation he goes to a park he gets drunk he referenced actually would prefer a dozen children despite all of the conditions despite all of that history the fact that he still couldn't control himself shows that he would have serious difficulty refraining from sexually violent conduct or child know the government had the burden on this issue and did not present a transcript of the supervised release revocation they did not call the boys to testify and the petition to which mr bell said he had no objection is and j a four seventy one which merely notes the victims maintain that certain things occurred i would note that three of the cases that the government points the court to opera gonna turner and revel and share one thing which is that all of those respondents were released because the court concluded that in spite of their behavior which was in fact much worse than mr bell's they would not have serious difficulty refraining from sexually violent conduct or child molestation in mr albritton his case he had a three year relationship with a twelve to sixteen year old boy in mr turner's case he was was frequently sending she suggestive pictures with young girls soliciting them for sexual activity including the daughters of his girlfriend i would note that my colleague's argument explains precisely how pervasive the district court's factual error was dr barnett dr hastings and the district court all relied in almost exclusive part on this quote escalation of conduct which relied on the threats and the following that they believe mr bell did in the twenty fifteen incident i also want to clarify we're not challenging prongs one or two this is all with respect to the forward looking into about mr bell's serious difficulty refraining and for these reasons we've asked the court  and then we'll come back and i understand that in this context in the law school we will participate in a question answer session we won't decide your cases from the bench but take  under consideration as everyone knows oral argument is just one phase of the process we will this morning go back in conference a case and express our opinions to each other a sign that writing assignment