preponderance of the evidence that mr poignant failed to participate in his sex offender treatment program and that turns on the definition of the word participate the second issue before the court is whether the district court defined participate participation to mean compliance thereby finding mr poignant guilty of something he was not charged with and had no opportunity to defend against the petition for supervised release violation charge that mr poignant failed to participate in his sex offender treatment program as evidenced by the april twenty third letter of unsuccessful discharge but the government did not introduce that letter at the evidentiary hearing before the magistrate judge or the final hearing before the district judge at the conclusion of the evidentiary hearing the magistrate judge discuss the problems that she was having with the government's presentation of the evidence then the district court read out loud from the latter during the hearing the revocation hearing he basic i r c read the latter there were a couple of words that weren't quite judge that she was struggling with the government's proof because she said that obviously he was discharged due to unsuccessful compliance based on the things the doctor described but at the same time the doctor testified that he was in an intensive program he was going twice a week to group twice a week to individual he was disclosing maybe not fully disclosing taking polygraphs participating she said it doesn't say complying it doesn't say successfully complying but i'm struggling with the condition being failure to participate and it sounds like he was participating ironically that is exactly what he was doing when he got kicked out of the group session on april sixteenth and he was sitting in his car talking to his probation officer waiting for the next group session to begin when dr gahl or the therapist told him if he didn't leave the premises she would call the police the magistrate judge was not the only one struggling with whether the charge had been proven the district court after reading the report and recommendation and the objections the report and recommendation was unclear as to whether the charge had been substantiated so he ordered a copy of the transcript he was still unclear because as he said the allegation references a letter of discharge but i didn't have a letter of discharge as part of the record then he said only after reading the noncompliance letter and frankly not until then did it become apparent that the violation was proved by a preponderance of the evidence but no one had relied on the letter or its contents the government did not introduce it at either hearing defense letters in the record maybe you read from it and read the letter a in the record so what we know new allegations in the letter she did testify about the polygraphs and she did testify about that he had become verbally aggressive to her but with regard to the other she testified about her he got loud played in the last session group session he got angry and yes but that she testified about all that yeah but she didn't she didn't testify about his poor emotional regulation that he he did not come prepared with his weekly assignments that within the treating so within the treatment setting he has poor effective regulation and decision making those those three things were not discussed during the eviden final hearing or the first hearing the final hearing no he wasn't given an opportunity to when you look at the record on at the one fifty two five the district court comes in he reads he says that stuff about that he was unclear so he ordered the transcript and not until he got the letter did he realize the violation has been proven he reads the letter and he says ok you're guilty let's proceed to sentencing so  obviously this letter was not part of the record until then did anyone object at that point no did not and it was that letter  the magistrate was saying that she she didn't have a role she would have said he's not charged with complying it doesn't say successfully complying but that is exactly what the letter said that he is being discharged for his failure to comply with treatment and then that letter like i told judge hole listed the five areas of noncompliance three of which were new to this hearing is your argument that he was actually in compliance or that the government didn't appropriately prove that he wasn't and compliance because those are two different arguments of or in government did an appropriate proof that he was in compliance he was not charged with compliance he was charged with participation and there's two different definitions of participation and compliance isn't participation something that the judge could interpret and different ways and there's a large scale of that right he could  he went to the first session for five minutes you could say well i participated and some people might think that was enough or others might require that he participated cross every t and dot every i the entire time to conclude that participation isn't this something where the discretion of the district court has a lot of relevance yes you're correct with that but when you there is no definition of participation really when you look at the there's a case from the middle district which we know what we know what participation isn't we know that it's not passive attendance at counseling sessions or mere submission to treatment that's from the herd versus crosby case which is clearly not mr poignant who was going to his individual sessions twice a month group sessions twice a week taking polygraphs actually trying to participate when he got kicked out and we also know that it's not like the tenth circuit's  where that defendant decided to stop participating on his own and he just didn't show up right before the end of his treatment session because we don't have a definition of participant participation we courts look to the plain ordinary meaning we can look into a dictionary to see that participate means to take part in gauge well what if he in fact violated several requirements of the participation agreement which he had signed wouldn't that be sufficient if the government had alleged well i thought and you can help me if i've got this wrong that among the violations the record established record established yes was one he went for rides on the beach which was a self identified risky environment he did not to do that they told him to stay away from the beach for a variety of reasons too you failed to control his anger at the meeting became verbal the aggressive three he remained in the parking lot after he was directed to leave for he was deceptive in his polygraph examinations regarding viewing adult pornography  five he lied about access to the internet i thought those were alleged and those were established at least to the satisfaction of the district court if that's the case why would there not have been a sufficient foundation for the court to have done what it did well i think that the last one was not established the access to the internet that was not it was not charged and there was no ruling that he had an x that he had improper access to the internet because he was allowed to access the internet with the permission of his probation officer the what was that all the evidence that came out of that he accessed some adult pornography sites on the from the computer they'd gotten it from his girlfriend was not part of this record just help me with the facts well i don't think that was part of this violation it was part of the last two violations which was in two thousand and eleven and two thousand and fifty but what about  contracting in the agreement to avoid risky areas like the beaches and bars avoiding adult and child pornography failing to follow the contact information and stuff like that when you mean contact information why wasn't he supposed to wasn't he supposed to well there was a three step strategy to control anger what about all of those facts weren't they evident in this record not the child pornography there was nothing about and i didn't see a child that's adult pornography he there was no evidence of stablished with regard to this violation that he actually viewed adult pornography on the internet there was no evidence with that the evidence was that he was deceptive with regard to whether he had viewed it on on the polygraph he but there was not about actually avoiding risky areas like the not controlling the anger being aggressive at the meetings etc the only time he became aggressive and cursed was when the treatment provider told him to leave that established by the record as as far as controlling his i'm sure you're correct but that's why he was there to begin with to learn to control his anger that's why he would think the claim that she made was that he didn't that he didn't control i i don't misunderstand what i'm saying i might have viewed it differently as a trial judge i'm simply asking whether or not there's enough record evidence to support the the trial court's determination here obviously i'm going to say no well i want you to tell me why not he wasn't supposed to go to the beaches he did that right that's a square violation of the agreement wasn't it right we know that if you go over testified that he told her that i mean he has his own statements to go far right but he went there once they don't have any evidence that he ever went there after she cautioned him not to go back there if you know what your answer is it violated the agreement on one occasion and boy that's kind and i might agree with you but the district judge didn't i know but you know how do i say this error in that finding because the charge violation failure to participate was not proven what what they proved perhaps was failure to comply with the conditions but it's there's two different doesn't that ignore that has participated in there was and i t p contract that set forth what the the contract correct yes which is new and it had various conditions that he had used a three part strategy in the sessions to manage the anger he did not use the three parts  session because that was when his mother it was the end of what we understand why we're talking about whether he and your terms this is all about participation or compliance and it seems like the contours of participation here were set forth in the contract that was a participation contract right yes but it was never introduced into evidence and that's well but that she talked about exactly what it thing that there's no evidence well in if they are to participate seems not right to me i would say insufficient evidence to prove that he violated the terms of his participation staircase just or go back to that first second at the tenth circuit which is the only circuit that i could find said that the participation does not have to be one hundred percent it should be substantial so morning your honour's nutria hofmann on behalf of the united states summons that was issued in this case the violation reads that the defendant specifically failing to purchase paid in a sex offender treatment program and then it incorporates directly by reference on or about april twenty third two thousand and eighteen the defendant was six unsuccessfully discharged by reach full title as evidenced by a letter of unsuccessful discharge from treatment of that same date so the letter of the of noncompliance scuse me the letter of noncompliance of april twenty third of two thousand and eighteen was directly incorporated into the notice  letter i'm not about the destroyed letter it is not clear how the district when the district court got it it is clear that all parties had it before the hearing in may as is evidenced on page fifty seven when defense counsel recognizes that he had read the letter and he gives his description of the of what occurred in the letter the district court clearly didn't reason i raise it is you need that letter and i want you seen the letter it became apparent that the government met its burden the district court said quote if this charge did not make reference to the destroyed letter then i would agree with you this is what he's saying to counsel for the defendant but if you take the charge and you look at the letter which is referenced in the charge that it became and frankly not until then it became apparent to me that the violation was the letter so at least as far as the district judge was concerned that letter was pivotal i would agree with that's a fair statement isn't it i think it is a fair statement you're out of the district court found the letter to be extremely persuasive on its face particularly when corroborated by as judge paul has described the extensive testimony because i said in the defense counsel pointed out that it was in possession of the discharge letter but did not have the letter at the time of the r revocation he must have misspoken because in the magistrate judge is hearing at page fifty seven forty six fifty six and fifty seven you can see the defense counsel had it because he gave a different characterization of what that letter is he wanted that letter to be interpreted as a summary of copy was not filed with the district court right correct so the only time it comes into the record physically is when it was filed on to seal in this court physically a copy of the whole letter yes rather than the read as than reading it to the regular page six of that is they read the whole letter or just a piece of it then that left out the court did not read the last sentence roughly which is a summary sentence about maladaptive behaviors adding to the risky circumstances that can create a future failure by this defendant so that sentence did not get read into the record your honor and there is as judge hall recognized a small word changes as the court read it it didn't read it literally verbatim but it read every one of the allegations are correctly read by the court and the court amplified in the middle of it because the court had already expressed concerns about the fact that there'd been three deceptive polygraphs between two thousand and seventeen in two thousand and eighteen and so the court referenced that his prior discussion of his concern as he was reading it so he interacted something in the middle of it but other than that it was right in now when you take the the court court gave at the after the discussion that defense counsel reviewed with this court about the magistrate's court its concerns when it issued its our in our the magister judge gave a definition of participation that included more than mere presence or more than passive presence or mere submission and said that come participation required complying with the rules of the program that you have been it he administered to and in this case those rules come out in two different ways comes out in the i t p which this defendant signed and it comes out in the handbook with this which this defendant was given and the rules are designed specifically for this defendant to control his his urge control issues his  maladaptive behaviors as they've described a number of times and his anger management issues as well as all of the various slippery slope issues on the sex offender program itself this defendant it's undisputed that this defendant had multiple deceptive polygraphs that he went to places that he personally had self identified when judge a dr gahl or talks at the original hearing and she gives the summary of vulnerable victims and why the beaches and bars and these sorts of things are risky or dangerous issues for this defendant she's reading his own words from his step five portion of his i t p contract and this defendant himself a den of five these places as his setups or his red flags or his triggers depending on which one of the words you want to use for starting on his often cycle and as d explained often cycles are connected if the defendant gets away with inappropriate behaviors a particular sex offending defending gets away with inappropriate behaviors in one component it emboldens him to keep trying inappropriate behaviors in other areas i emboldens them to fantasies to things that are even farther afield and so that's why this risky behaviors issue is so critical is there something illegal about going to a bar no not per se but in this case for this defendant with two prior violations for all of the same behaviors including is that judge marcus noted the computer access in which there's significant deception between his in the information provided and to the probation officer the story changes through out for what the kind of computer access is as dr collar testified truthfulness and self awareness are critical components to complaining and participating in a sex offender treatment program and this defendant willfully chose to do neither as far as doctor dollars concerned he's away or of the choices that he's making and consciously making the wrong choices and for those reasons that qualifies as not participating in the program designed to stand it his projected release date is april twentieth is that correct i'd miss ferris confirmed to me this morning that he is due to get out in approximately a month from that got added to the calendar because the release date yes ma'am what the sentence was ten months in prison and a supervised release term of twenty years yes sir if there are any further questions that i could amplify for the court i would be happy to a couple of corrections it is disputed reference the polygraphs there were no three deceptive polygraph there was one in april two thousand and seventeen and there was one in april two thousand and eighteen that was two not three the district court did not have the letter until as he said a few days ago which was a few days before june two thousand and six when he had the evidentiary hearing  on page fifty seven of the evidentiary hearing he referenced as a letter i can't say that that is the same letter because the letter was never introduced by the government at either hearing and when specifically asked him did you have a copy of the of that letter he said i have a copy but i didn't have it at the evidentiary hearing so i'm just a cold record counsel assuming i buy from the record itself it would that inference that they were talking about that letter rather than something else it references a letter i don't know if it's the same letter but you could assume maybe that it is but in in any regard the letter itself does not even mention anything at all about him getting kicked out of the program or you know from the group session or anything like that it doesn't mention that at all and with regard to the new  violations the defendant has a right to notice and a hearing on each violation and to present contrary evidence the government was not proceeding on three of those allegations that were in the letter and yet he was found guilty of it so we just ask that since he was found guilty of something that he was not charged with and had no opportunity to defend against that you would break the district court order and allow him out for his one remaining month thank you very much thank you counsel and we'll move on to