true despite the fact that they were hearsay despite the fact that mr party contested their veracity in reliability and despite the fact that mr party had never had an opportunity in any forum much less this instant hearing to confront in our brief we acknowledge that we are on plain air though i would say this this is not a case where either mr party or counsel simply let these statements pass on challenge she counsel and mr party both denied the that's correct your honor and we don't think that the admission of the p s r was erroneous in toto there were clearly purposes for which the p s r could have been used properly and parts of the p s r that were not hearsay and as we discussed in our brief it would have been inappropriate at that time to seek the complete exclusion of the p s r it was only the court's use of certain selected parts of hearsay i was trying to figure out what are the judges didn't use very  asking a question about it in other words you know that the government certainly could question mr party about it but that doesn't allow the the court then to use that on the basis of that questioning as substantive evidence and he says it's not it's not impeach at all in the record other than this is scription in the p s r about the content of that video the government counsel never saw the video the doctors never saw the video mr pardee had seen the video fifteen years and certainly most importantly the court had never seen the video no one knows what was on videos especially but also the description of the the pictures seized in two thousand and two as central to the case the government spent eight pages talking questioning mr party about it was this one plane error if you though is there anything about those pictures or that video as described in the p s or that was then shown to be inaccurate by mr pardee and what it seems to me that the main argument that he was making was was not contesting the accuracy of those well and if we're on plane air review doesn't that create a problem for you you are it would create a problem the if he had endorser accepted the characterization in the p s r but i don't think that that's a fair reading of the record especially in regards to the company picnic videos the government and the previous are makes it sound as if these were totally inappropriate creepy sort of voyeuristic videos  and the way they described him by him shooting pictures down children shirts in an inappropriately focusing on body parts and so on and so forth mr party flatly denied that he did any of that he said the media was completely innocent he was just the video by the experts is a well recognized appropriate use for an expert in order formulate his testimony what is inappropriate is to then sort of bootstrap the expert use in order formulate his expert opinion sort then import otherwise inadmissible evidence for use as substantive evidence that the court can rely on independently to make its findings certainly there would be no problem for the court to say based on everything these x perception can have considered including the r which is hearsay i have credit his testimony because i think he he you know gave a good account of what actually is happening what the court can't do is bootstrap off of that and any import otherwise inadmissible hearsay in order to make a factual finding which is exactly what the court did hear now it it may sound like a fine line but it's a very important line because otherwise it would if we were if we were to hold otherwise it would sanction the wholesale importation of a hearsay evidence and into these cases and it would frankly gut the defendant's ability to confront and cross examine witnesses against him because the government or any party in fact would be able to insulate a party from cross examination simply by filtering it have lost all the problem with hearsay because now we know these video exists he took the video and the video wasn't allegedly dr eat what he does explain the video that he was taken at a picnic and it not even hearsay that's not and it's not it's not impeachment it's not nobody's questioning there's a lot he's just confirming the evidence that is real evidence and well i think i think there's an important distinction between confirming the existence of the video which i think is undisputed no one disputes that a video existed in a video was seized what is very much in dispute and which is i would submit clearly hearsay is the content of that video because the only testified he did not testify the content except to deny the description as contained in the p s r but but this case wasn't about the video i mean the court was talking about the expert witnesses about this man's cocaine and alcohol dependencies and the fact  that in part because of those he gauged in grooming behavior here den if i had to sanction all families families with minor children and then groom those children and the court was concerned and this was the the essence of the court concern not about him doing the video but that he had this pattern of going after dysfunctional families he admitted himself at the hearing that he was still sexually attracted to young children and that  that so the court was much more concerned about this totally dysfunctional individual not the fact he was just maybe shooting a video i mean this is a life pattern of drug use and and grooming behavior are though i would submit that the court was very much concerned the video for the very reasons that you just pointed out and in this is why the the as you correctly point out the essence of this case boils down to delish no problem of forty to forty eight whether or not he would refrain from engaging sexual dangerous activity if you were to be released the essence of mr parties defense was look i have not had a hands on offense in twenty years including five years in the community and the reason why i haven't had this why i've had this contact free period is because i  honor and this is why the video is of paramount importance because the government attacked mr parties defense that he had the reason for his contact for the period was because of the sex between program and the court adopted the government's argument because the video showed that that was not true if you believe the descriptions contained in the p s r of the videos your honor they described the very type of grooming voyeuristic inappropriate contact with children that mr pardee was constat was was asserting he no longer in gage then and it was only because the quote was it was explicit she said and i must talk about the videos and i must note that they took place after the sex offender treatment program and i must say that this shows to me that mr party is continuing to engage in inappropriate and risky behavior it went straight to the heart of mr party's defense which was that look i may have had this problem once i don't have it now i won't have trouble determined here is conduct that goes or and decides whether there's a risk in society right so so so imagine if the p s r had discussed the videos but simply said mr partied during his course compliant with hunt would industries also took videos of the company picnics and they were completely innocent they look like any other video that any other normal person might have taken there seem to be nothing untoward about them that would be that would be as are was part of a sentence that was actually entered and we can't go behind and it's the beginning point or the sex offender sex crimes and what words we're not talking about retrying that case whether that occurred or whether the videos read he was convicted but the videos had nothing to do with his conviction he was convicted of possessing well photographs there are not but whatever is in the video whatever's in the p s are related to something that happened what thirteen years ago why this evidence is important because this was in fact a very close case the the experts were split on to whether as to whether mr party met the criteria for commit but the court didn't see it as a close case in terms of the experts the court court did say did she not that far more credence wasn't that her time she did it she did but and she also was worried about his failure to complete the butner program she was worried about dissipation was minimal that he had dropped out after six months and that  gave her continuing concern about his ability to her brain and she was worried about several things but she also recognized that there was other evidence on the other side and including the fact that he had successfully completed a sex offender treatment in the past that he had this theory that was twenty years earlier right but that he had also had periods in the community with no contact that he had he had been that he had volunteered for treatment which is a good sign and so this wasn't a slam dunk  case and all i can say your honour's is i think at the time at the hearing the parties viewed the significance of the videos very differently in the arena than perhaps this court is looking at it now it was the subject of much questioning much debate much consideration every party mentioned it in their opening in their questioning in their closing in the court's order committing mr hardee the very first thing she discussed were the nature of the pictures and later on the the existence of the videos and the significance of the videos as to mr party's defense which was look i now know enough that i'm not going to engage in this grooming voyeuristic type of behavior and based primarily and i would say significantly on the description the hearsay unconfronted scription of these videos in the p s r which we have no idea are accurate or not because no one in this court and no one at the hearing it ever seen them but by accepting them as true she says that really pokes a hole that really blows a hole in your claim that you have changed and that is significant to my ultimate determination to commit and i think that evidence should not of been considered for its truth mr party has a right as this court has recognized and baker to confront and cross examine the witnesses against him this was not only unconfronted testimony it was testimony that we don't even know who made these descriptions was it the probation officer who wrote the report was it some police officer what sort of bias might they have been operating  under you know it's one thing to look at this video if you known it been made by a known sex offender versus been made by great aunt sally you might you might view these things in through a very different prism so there is fertile ground for cross examination fertile ground for confrontation and absent the ability for anyone in the court to actually see the video is to simply rely on this sort of uncorroborated hearsay unconfronted description and then later use it to commit the mr party i think violated mr party's right to d this morning your honour's mine is michael james and i represent the united states in this matter your honor let me be first begin by referencing some problems made by appellants council first you are correct in regards to the description of the video mr party did not dispute that he stated i believe in the joint appendix beginning at around one thirty to one thirty three that references the talk about the actual description of the video is deny that the descriptions contained in the piece are correct he was saying i was downloading it i wasn't really looking at it he doesn't deny the accuracy of the description in the videos with regard to the videos of the office picnic from one thousand nine hundred nine to two thousand and one i believe he doesn't deny that that's what the the description the p s r is correct as to what is shown he's saying though that's not his intent i'm not focusing on the on the girl's chest i'm focusing in the kids are picking up things from the straw and that's where the focuses on the night the actual accuracy of it now our first point however because this is on  a plane error standard review as you mentioned keenan he has waived that he has waived that because in the amended patrol order as mentioned by you judge how to and he did not object mr party had three competent attorneys working with him in this case and there was no objection from any of the three and his attorneys usually p s r in their direct examination and the cross examination that's you were just downloading i'm paraphrasing now of course your honor you were just downloading these things but you were really interested in the the painful aspects of the depictions in the videos and he said that's correct he was not turned on by that and i believe likewise point and that's not your say any more than bringing in thought judicial record or testimony to explain that and that's just thousand to two thousand and one whenever it occurred that occurred  that's correct and so and that was never an issue he didn't challenge at sentencing either in his criminal case and so that was not an issue with regard to what the court's focus was appel counsel makes it out as if this was the end all be all that if the descriptions were not there then there's absolutely no evidence basically which you can really find that he didn't meet the third prong which is the only problem that's in dispute respondents exact expert witness was far less credible than the expert witnesses that the government put on in particular if as you recall mr hardee he supervision was revoked because of using drugs and part of his offense unlike offense has always been drugs and alcohol his expert witness downplayed that that connection between the drugs and alcohol and i believe  judge judge flying in mention that in in her order at about three eighty eight and three ninety two of the joint appendix and what the judge also found of particular interest to the court and worrisome was parties thinking errors and that's a joint appendix three eighty seven and so the the quote was from was concerned about far more than just the description videotape which mr party did not can test what was actually describe thank your honour's real quick you know i understand your point about this but in regards to the pictures that form the basis for this are parties conviction in two thousand and two and perhaps you know you can survive but those hearsay statements out of court statements offered for their truth and to the extent that they've they were important i just want to quote you know the district judge on appendix three ninety one certainly there was other things that played into her opinion but this was something that was of significance she talks about the nature of the videos and focusing on prepubescent females and camera pointed out of from the church and then she goes on to say and this is after the respondent completed that ther in washington in the end goes on to say and this is exactly the age in type of child that he admitted a particular attraction to blond young females ok so this goes to the heart of mister hardy's defense but it is based on allegations that no one can say he was questioned about ok here's the picture of the girl in the haystack yeah i took that but that was not intentional that here's a picture of this  and that is he's the only person i can testify to the purpose of the but i don't think that that's a fair characterization of mr party's testimony he quit he was questioned about it and this was he's testified this is a video he took fifteen years ago and that he had never looked of those pictures he basically said that's what i took but that was not the purpose and here i was i want to seem to remember the haystack he says he says your video is focused on a previous a female as she was looking for very different if if i'm taking a picture of this company picnic whether or not i might have happened to catch a glimpse of this girl versus the characterization in the p s r tent but that's where the court to assess how he got  explained it it's not your say and it's not the pre sentence report is just describing accurately what he can talk it's not as if the video was being launched on to him and it was actually taken by somebody else he says that's my video i took it i didn't have any purpose of going after young girls it was just part of the activity and your honor i think short of anyone seeing that picture and having a chance to cross examine the person who made that description we cannot cross examine you look at the picture but no one did look at the picture he confirms that there are i think he can also confirm the one shooting down the front as i recall i think what he did is he just said i don't know i may have been there was taking pictures of everyone report was part of the pre sentence report and that's in the pre sentence report and he had a chance to jack he didn't object i just don't understand what the issue is that it's this is not a classic hearsay question this is a question he's been convicted of child pornography and the question now after twelve years since that is dangerous to society now back then that it's been taken care of we're not really litigate that the question is the assessment now and what he photographed then is what he's doing now his argument is that not that was inaccurate his argument is i'm reform right and i've changed and some other court had th and i see my time is about i would just leave on this note go ahead make your point but my my my my my my point is this is that just in general information m p s ours is recognizing case after case as containing he information that is not a controversial statement now it's admissible at sentencing because hearsay is it miscible at sentencing but the issue is not that the allegations are not hearsay is that they are otherwise admissible in that particular type of proceeding in this case i don't think i would disagree with your honor that the descriptions of the p s are made by some unknown prefer proponent about the content of the video is not hearsay now contribute he was a he was a child pornography he was a sex offender and that occurred back then that's correct that is irrelevant to his dangerousness now and in your i guess that my only response would be that the district court felt that the content of the video was significant relevant because she did make it part of her decision and in