my name is tony gallagher i represent rosemarie wise the talent in this matter garners there is relevant here four factors in determining conditions of supervised release and of course  wise as attacking two of the supervised release conditions imposed by the chad before conditions or for factors that we believe are determined if your are the nature and circumstances of the offense the history and characteristics of the defendant affording adequate deterrence to criminal behavior and protecting the public from further crimes of the defendant your honor none of these factors none of them apply to say that is because when you look at united states versus t m and we talk about a gentleman who was convicted of kidnapping child and was installed to criminal behavior for actually convicted criminal behavior it was not helped to apply  public and of the material in the pre sentence report whether it is part of the offense of conviction or not oh if you can even get her to prison time for things they haven't been convicted of and you're required to if you're drugs under the relevant conduct guidelines well that's absolutely true but it doesn't apply here because obviously the law does it doesn't that's true but but i can't find any restriction in the law to the offense of conviction and shaping the conditions oh in that's true there that the factors that i mentioned at the onset of my argument certainly are all the things that the judge can consider and certainly the law of the circuit is that some of those matters could be unrelated to the supervised release conditions but some of the m and in this particular case to answer both judge nelson's question and judge kleinfeld question in this particular case what we have to remember is that any inappropriate behavior with children as far as sex offenses is concerned is at least twelve years beyond the offense of conviction in the time of the sentencing so i don't know about that it seems like it's just going to it's not something that she did once twenty years ago or more like and to yeah it's a continuing course of conduct that my recollection is th the last instance was considerably more recent than that i must respectfully disagree around with regard to sexual conduct sexual misconduct or abuse it's about twelve years ago now there is an alibi usually let me be sure i understand what we're referring to program fifty seven of  investigating allegations wrote my professional evaluation is that rose savage has a hidden agenda of sexual misuse of children and should not be allowed unsupervised visitation with any children is that what you're referring there there is an allegation with regard to her histrionic or narcissistic traits and there's also an allegation unsubstantiated i might add that there has been some physical problems with her current ricky but that doesn't involve sexual offenses or sexual misconduct so what we're talking about here is allegations of sexual misconduct which as you're fisher is pointed out are twelve years old or older so we and ten years after that that is true mark but we're talking now about the sentencing and considerations that the sensibility of map that you've done this that it seems to be an over and over kind of thing rather than one odd moment in her youth  small children and there are no additional allegations of sexual abuse as a matter of fact in savages case she was the one that reported that savage was molesting her children  there isn't and with respect to that i have offered to the court in my opening brief the playing error standard but in reply to the government's brief in my reply are for the court an alternative and that is because we were not given notice of this particular  condition that the tenth circuit suggested perhaps that the abuse of discretion standard should nevertheless apply didn't the treasury cited orally at the sentencing he did isn't that the ordinary notice well given i thought that children on the thing with savage the way you put it in your colloquy with judge nelson it sounded like at she married savage she turned out to be a child molester three women to the cops and of savage honor that that's certainly true but there's facts that we can't deny that are in the record the fact is that she turned him in the fact that she testified against him now she goes back to savage when he's in prison and does in fact do with the courts as he does she does  and that's why this case is so much like what is the evidence that she changed there's no evidence of further contact there's no evidence of further sexual offenses the judge has to the district judge has to have some basis beyond these that may be true but the six court as you pointed out earlier in your question if there is going to be additional special friend sexual offender characteristics they would certainly show up if he she had s has been monitoring this woman for years as the court can tell from the record and there's been no allegation of sexual abuse you are as i see that my times over thank you very much the court abused its discretion in imposing the conditions it did in imposing the restrictions on the ballot access to minor children children under the age of eighteen which is  that would have given the defendant any advance notice or you for that matter that description on trial access or restriction on sexual materials pornographic materials  well i know from reading the rule that what the hell is is entitled to is entitled to comment on any special condition set by the judge and he has that judge that we've read on here we are now left with a record in which we are trying to extrapolate from the p s r and some summary statements about protecting the public as to what was going on and i'm asking you questions about the d p you know the role for social services agency there's precious little or no record of i'm speaking for myself i'm quite troubled that this was sprung on the part of the judge may well have been within  factors and underlying the imposition of the conditions but the judge did refer to the record and say clearly there is it's grounds in the record for the physician of those conditions and when you look at a record i read the record i see it as if the department of health and human services allows her to take the child and she will and then she will be able to i don't see that condition as period i guess yeah i understand your concerns you know and i guess my only response to that would be that the department of health and human services hadn't removed the child from her custody that you say they didn't the judge didn't take the child away he just made the custody subject to department of social services supervision and then i look at our graph nine and it the defendant shall not be allowed to reside in the company of any child under the age of eighteen without prior approval of united states probation that means to me first you get approval then you can be with the kid so custody is over now you have to get approval of probation and you also have to get approval of department of public health and human services and the next sentence and so it looks to me as though paragraph nine does by itself take away custody subject to it being restored by the approval of these two departments i am not clear on what notice whys had beyond the judge reciting the condition at the time of sentencing could you tell us what justification there is in the record for ending the custody subject to it being restored with approval of these two departments and could you tell us what there is in the record that you as prior notice of this condition but yet i can't i can't point to prior notice of the condition there i don't believe there's anything in this so you know that this isn't a judge says it on the bench and then it's the defense lawyers opportunity to say your honor we have a problem with the conditions before sentence is pronounced could use a minimum yes you are and then with with respect to i think your first question i guess i read the condition and that's that's my position ok assuming that that's true could you tell us what justification there is in the record for the judge interfering with the custody of her son i think that the justification comes ancient history that is a continuing pattern of this woman's i guess behavior or condition