and particular in this case this court to address the level and type of proof necessary beyond an admission to establish the commission of a crime when that crime contains an element requiring proof of a fact that is not only susceptible to mistake or confusion but the subject of intentional obfuscation by people who produce images  i suppose the real question framed within the modern corporation will is whether the government offered substantial independent evidence to establish the trustworthiness of the alleged statement why would we this is not a case it seems to me and correct me if i'm wrong we're a probation or parole they are supervised release see walks in does relation officers officers as i did a bad thing yesterday lock me up here's what i did i looked at child pornography i'm so sorry arrest me right that's not what happened here kareen this is a case where there was first of all this is not just any old guy who happens to have suddenly encountered child pornography he's something of an expert witness in his own right is he not i mean that's curious i mean that not to be flip but i mean is the government going to call him as a witness to it is well we can't call him as a witness industry unfortunately we've seen how broad it can be if someone marry person says oh my god this is child pornography given the technical definition they might well be wrong but your client is quite precise in his admissions he says well this image was not child pornography as far as i'm concerned because it wasn't explicit enough and that image wasn't child pornography because in my view these people were like eighteen or nineteen probably but if this one is the one where these are thirteen year olds that's that's not just somebody who could be confused about the law or the meaning of the terms or misled he's someone with extensive experience with this kind of material who's saying quite precisely these images qualify in my experience unlike so that if i may that's mischaracterization that's that's built on the government's brief in fact horton identifies five classes of images only two of which are found he never specifies which are child pornography beyond that th ranging sixteen to twenty in his estimation the one that's found is not does not meet that definition the government is confusing it is confused about what's what's said and what's recovery understand the one that's recovered doesn't meet his description but there are others that and then we have there is my point is he is making explicit correct legally correct distinctions where he's right about the facts of these images or not he's making precisely the distinctions that the statute makes th people might not appreciate they might just think well as children and it's sexy it's child pornography he doesn't think that were very clear about the fact that he knows that some images are not going to be problematic because they're older people he says these are these are sixteen to twenty these on the other hand he says are thirteen so he may he can i'm we're not contesting the there are two components potentially at play one is the age one is whether it meets the definition of sexual explicit conduct on a twenty fifty six we're not arguing that sort of can see that whatever expertise he has applies to that definition he knows it when he sees it right but the age is a different question because the age in this case involves teenagers not toddlers not young children pre teen children but as teenagers about which there is inherent confusion whether they're thirteen or eighteen and he gives no other detail about the image that would allow it to ten or type assessment that is where you compare children for whatever reason but but it is something that happens for them or it's not even clear that he is identifying an actual person as a person to have a computer generated a point that was pressed more below but certainly it is arguments certainly of the issue is is it proven beyond a reasonable doubt i think you have a tremendous argument and even at a preponderance standard these are very good issues for the fact finder but you're saying you have to be saying i think that on this record there is not sufficient evidence for reasonable judge to say by a preponderance of the evidence that he did what he absolutely intended to do there's no question about that  searching for child pornography he thinks he's found it and he's explaining what it is that he found and that's but that's not enough to say it's more likely than not that this was dropped on our group and because there are no greater details given about the image and the images like we've said inherently says that his assessment is inherently unreliable had he said it were pods or or even a preteen very young child would be a different case obviously we can see that but it please the court michael barnett for the united states of america your honors a confession in the supervised release context need not be corroborated a summary decision of a panel of the circuit so held in two thousand and twelve it's so held in the sentencing context in sasso in one thousand nine hundred five decision and furthermore in his persuasive ninth circuit decision from two thousand and thirteen involving a supervisee assessment of the ages of people he wasn't supposed to be meeting with the court there found that in that context corroboration of a confession was not required and these cases also show your honour's that we're not dealing with a unique situation here in helder the supervisee was prohibited from having contact with minors he admitted to his probation officer that he had such contact with minors there was no evidence other than that in mission and a polygraph examination which failed at his final revocation hearing he actually tried to retract his confession something that's not happened here and the court there  confession looked at the facts in surrounding circumstances and said that the judge was within his or her discretion to violate the supervisee based on his confession alone so we are not dealing here with a unique set of facts and as judge lynch noted we're not dealing here with a defendant who is speaking of something he knows nothing about he provided a detailed confession here that he  possessed saved and deleted images on his cell phone depicting thirteen and fourteen year old boys with their legs and with their penises erect and he didn't just say that's child pornography he provided that description and we have orbiting facts facts and circumstances that show that confession is reliable first of all the appellant has extensive knowledge of child pornography as by conviction in a pre sentence investigation report submitted in connection with that conviction the did not have images of child pornography had images that came fairly close to the line and had images of new children it wasn't pornographic in nature but that those images while not pornographic in themselves or honors shows that the appellant simply just wasn't making things up there was a phone it did have images it didn't have the images that he said he deleted but it had certain images and the court could have inferred that the fact that certain images more than there was because those were the most egregious and the appellant took extra steps to hide the very incriminating evidence that would have gotten him in the most trouble  phone and access the internet without telling his probation officer beforehand and the court can infer from that that the reason he did not tell his probation officers about what he was doing is because he was regressing back into the very same conduct that got him in trouble in the first place furthermore the appellant here accurately described images that were found on his phone again they were not child pornography images but he accurately described to his probation he was looking for child pornography there were child pornography roid search terms and that he wasn't just making this up if he said i did this and the probation officer never found a phone and any hint that he was again regre into the same criminal conduct as before i think this would be a different case but that's not this case and the appellant is wrong to claim in in the brief and here that somehow he described everything on his phone as child pornography that is not what the record says in fact the record shows that he was very discriminating in terms of the the ages of the people depicted in the photos and he never conclusory said everything is child pornography you actually said there's an consequence you know what are we fighting about here really is the idea that if this particular specification were overturned it would go back to the district court to reassess the lifetime supervised release is the that's what this is really about your honor that would be one thing another thing would be the minimum term of imprisonment under thirty five eighty three k which has a mandatory term of imprisonment of five years notwithstanding the about how old the kids were in the photos or maybe they were virtual children we are very upfront that we cannot exclude the possibility that there were virtual true but that he was mistaken about the age the issue here on a preponderance of the evidence standard and you know there are cases even in the criminal context your honor where the images are not before the court they're not before the jury and that's enough even to sustain a guilty beyond a reasonable doubt verdict in united states versus o'connor and sakho from from our district northern district of new york and i'm sorry john in our brief but six fifty third eight three nine case involving child pornography  production the pornographic images were never located the victim testified so that obviously established her age it established the sexual conduct but the whole charge the whole reason you're in federal court is child pornography production and the images w never recovered this is the maximum sentence that the judge could impose on this offensive this is violation of supervised release your honor actually it's the minimum term of imprisonment because thirty five eighty three says that if someone who has to register anderson commits a violation commits a criminal offense under part one ten of title eighteen the minimum term of imprisonment on a supervised release revocation shall not be less than five years that's in prison so congress in two thousand and six added this provision that specifically speaks to what happens if a supervisor we see who has to register under sort re offends in a way that violates certain parts of the very quickly it could also take into account the fact that in the p s a are from the underlying conviction the appellant admitted to fondling children in two thousand and one and he also signaled that he could not distinguish between consensual sex and child rape he said something and i'm paraphrasing here before the court but he said something to the effect of well if a one or two year old is not resisting i don't know if that's rape or not so based on those  facts and circumstances and based on the quick quick nature in which he refunded that wife term of supervised release was reasonable and this court has upheld such terms on the underlying conviction and here we have a ten year initial term imposed in two thousand and seven and what judge sharp looked at was someone who quickly read fended and i think it was within his discretion to say that a life term of supervised release was dealing with the selection of a sentence or with the what is appropriate to the supervision of someone who is in a rehabilitative mode on supervised release or probation  but is in fact being prosecuted for something that will require the judge to impose not just a minimum sentence but a minimum sentence that is greater than the sentence that would be available for any ordinary violation of supervised release your honor i have two responses that first thirty five eighty three k has to be read to harmonize with thirty five eighty three he three and in fact thirty five eighty three k references crowd ration than just admission the government again argues that i think mistakenly that somehow horton identify these help whenever he did not he did not say that these are the