next morning morning your arms weinstein for the defendant defendant in this case pled guilty to enticing a minor defendant in this case like guilty to enticing a minor to engage in sexual activity the limited issues on his appeal are two of the special conditions imposed by the court st that he not associate with people under eighteen years old unless freaky obtain pre approval from the probation officer and nd that he not view adult legal pornography we do not challenge  substantively these conditions are challenges when it is procedurally in the way they were imposed i believe there is no dispute between myself and the government on the relevant standards that is it has to be reasonably related to the crime it has to deprive a st in of no more liberty than is necessary it also have still be an individualized assessment by the court and finally unless it is evidence from the record the court must make on the record findings here the court did none of those things he said you said that if it's evident from the record right then the court need not go on at length about the reasons for an imposition so  condition it seemed to me that the grounds possibly were evident in the record mr funk spoke about meeting with j v the minor victim he said he preferred to talk face to face rather than by text he made multiple statements indicating that he wished to have intercourse with j v until his arrest he was residing with his mother and apparently owns and operates a preschool out of her residence why why isn't that sufficient just on its face to  guilty to was in suffolk county new york he was in alaska at the time there were two others they talk about relevant conduct one was in united kingdom and the other was in california so there was the record is very early sparse in terms of what the underlying facts are and i'm certainly not arguing that under no circumstances would this be an appropriate condition it's simply an issue that the court should have made some findings the with the only one despite objection by counsel so obviously was brought to the attention of the court the court's ruling appears on the docket sheet and simply says the night so there's no way of knowing what the court's ruling is so the fact that it's brought to the attention of the court it isn't as if there is a silent record it is explicitly raised by defense counsel and the court response is not to engage in simply say to deny on the docket which is a far cry from you know some reason the point is that this is protected activity on his part that is a free association is certainly a protected activity it can be prohibited if there is a good reason for doing so the government's argument that this is appropriate made in the trial is it's routine in these cases not something specific in this case but that it's routine and that's a kind of generic the way that may be true but i think the court has been clear that generic reasoning is insufficient it has to be individualized and it best this is generic reasoning that is it's routine in all of these condition it would be a standard condition because you're not saying there's anything specific about this case that requires it essentially are saying that in every case of online enticement this is case you did say that if it's evident from the record and i guess we're where maybe finding more evidence from the record that this online behavior here could be tied to recently tied to an association condition protective of the public interest and you're saying that that assumption that presumption is not fair that unaware of it the the as this wasn't a trial is a court knows so this was simply based on a p s r it was based on the i'm simply seeking remand for justification for this and if it's appropriate then it's appropriate and if it isn't it isn't thank you morning your honor smith please the court my name is matthew hagan's represent the united states here today and i represented the government in the case below the sole question before this court is whether the imposition of these two challenge conditions was an abuse of the court the district court's discretion based on the record before the district court it was not and the reason for that is we do not have to dive too deeply into the record to identify the obvious self evident reasons for the imposition where at the time that the sentence was imposed that it was selling skimpy analysis or reasons given for the imposition of we could use a little more i read we could use more reasons than the record so it requires a certain delicacy but it is then we don't find ourselves in a situation like th before the court your are in this instance the district court invited everything on the specific conditions once the defendant noticed notified the judge that they had objections and the defense submitted a complete set of those objections the government responded and the district court issued a ruling like this is the director and the government concedes that this court has made  very much and it has certainly move your honor and i would cite in particular the blow opinion which has i believe two thousand and seventeen which which makes it quite clear that the court is expressing a strong interest in having either orally or in writing articulated reasons for these kinds of special conditions this business of adult pornography which it is illegal to bring all i can draw a they're the types of things he said oh i'm i would like to address the adult pornography prohibition your honor but before i do i just like to complete one of the references to blow it does state that the circuit strong preference for an articulated reason however and this is a quote unless it's self evident in the record and that's the government's contention here turning to the adult pornography  i would cite the court to the broader fact that it's the probation office that's responsible for the supervision of the defendant not whoever this of course they want more but that doesn't but i don't believe that the the court is wrong that that this or court did not articulate that specific element of requiring permissions pre approval but as with any condition that would require provisions pre approval or consent to some action by the defendant that consent cannot be unreasonably with howled and to your honor's hypothetical of a family gathering thanksgiving the government expects absent additional facts that probation would be hard pressed to justify impose an association prohibition in the context of the case that presents director risks to minors and that's what this case presented not i do you with your adversary would say that  individuals the miners who mr frank mr funk contacted were nowhere near him these were all online conversations and there was no indication that he was engaging in any  touching or face to face encounters even so why was it necessary in this context well government argue and as mr funk allocute it to this was a face to face encounter they were not in the same room but they did encounter each right i'll choose not to address age at all this is part of your beloved and indeed your on the government we could see that this type of conduct is not as serious as  say a hands on offense and it is not a hands on offense but it is a direct offense that involved a direct harm to a minor it is distinguishable from the cases in which this court has struck down association prohibitions that are similar to this or the more restrictive cousin a no contact provision typically in those cases those are possession offenses or receipt offenses in which there was no communication of any kind between the defendant question because the record there there was no contest about these significant facts there at there at the top of the iceberg of the record for you are aware of the development of our law and this circuit you were right there in the courtroom when the judge imposed the sentence it was your responsibility to say does the judge want to put on the record some reasons for these conditions and you have to do it in a way that allows you to go back this issue arose the district court announced its intended imposition of sentence including the special conditions and invited the parties to state any objections the defendant began to state their objections a at that point the court said why don't you put it in writing so that if support had not yet turned to the government for its appearance any of these issues i can see that in retrospect the better practice would have been for the government to state the government would respectfully request the court to once the issue has been briefed to issue a written opinion or to have requested that upon the issuance of the docket bounce that the defense could have done that as well which may have set these special conditions hit the defense counsel in this case by surprise when it was imposed she objected at that time a mediately now the court then invited the parties to submit written arguments on the issue now who is self evident from the record you would expect the government to make the argument that it was self evident from the record but that's not what they did they said this is routine in these types of cases they did not point to various parts of the record so this is an argument they're making on appeal if you're entitled to but it was never placed before the district nd the with respect to the adult porn viewing i take your point that you might be able to think of reasons that there's a linkage between that and others that may be distasteful to many people on the other hand at least there is no proffered basis to say there is a linkage factual or by study and at least according to google it is a most popular search on their search engines loads of people search for it and yet as far as i know most of them do not commit this type of crime so there has to be some specific basis for the linkage that the court does it for