the appellant robert mcculloch in this case i'd like to reserve one minute for rebuttal please yes thank your honour's the supervised release conditions contested here impose a greater deprivation of mr mcculloch's liberty than is reasonably necessary to comply with the purposes and goals of sentencing specifically the contest of conditions six and nine implicated not merely adult pornography but adult content full stop large swaths of primetime network television programming and movies and this categorical ban was imposed where there's not a single mention in the record below of adult content ever being viewed by mr mcculloch much less in a way that contributed to any offense at any time in his record mr alerted the district court and the government to the problem with an adult content banned by written memo in advance of the hearing and then again during an argument at the violation hearing itself if the government astaire kelly the government says that th challenge you're making is that the district court did not adequately explain its reasons for imposition of these conditions which had been recommended i think in the p s r am by the government and that you get nothing to alert the district court to the fact that you thought he had not said not add if you had that there would be more on this record so we should not treat them as and then tiredly preserved issue as if the objection is an adequate explanation that's a different situation than did you raise it in your objections to the p s r you follow rolls mr kelly can you hear us ok i t please pause the stream for us i'm sorry judge yes thank you again adequately explain his reasons for him opposing these two conditions the government has said that means that you really didn't preserve the argument and so i was going to give us a chance very that's quite an old case actually so let's move on to the substantive objection yes so your client as i understand the record raped children and he was convicted of that they were quite of a young age and during that time period and indeed after he had been arrested he was found in possession of a great deal of child pornography now the thing that got him into trouble more recently was a logical for the district court to sink given that he's now moved his target from children to adult females that a restriction of this sort might be helpful especially when it's recommended by the probation office one doesn't know whether he was watching adult pornography or soft porn and that has contributed in some way to the caca on his girlfriend but it's devices so i would say in response to that the the record was that the there is no nothing in the record below that in any way shape or form pornography was utilized and i would say again going back to charges from that strikes me as being very difficult for it to meet and in any event that's not the standard of review for the reasonableness of the substance of the restriction that the district court chose to impose terror just in response i would just say that the records in the violation report clearly states upon computers world recovered and i think the lack of any mention of a connection between the child pornography offense and the child molestation of funds in terms of history i think that that is something that's not borne out by the record as you know there is a lot of literature out there are drawing sociological literature drawing a direct connection yes your honor and i would say that that is something that was rejected in the do not the government in the do you know that there was an inference with general that there was a general he that he can't he cannot be charged with a violation if he just happens to be in a crowd where there are children under eighteen that that he has to  that there still needs to be something in the record that that broad probation is necessary where here there is evidence in the record that the band can be very targeted and with respect to the knowing contact with people in public and the exception there i think it still sucks up a minefield for an individual investor mcculloch's position with how to grapple with those interactions whether that's going to be considered knowing or not whether he needs to report it to his probation officer or not and if he doesn't report it whether he risk being accused of trying to hide something and if he reports every interaction that he have whether he's going to be considered as protesting too much and therefore suspicion issue and the key point here is that there's really only one logical point to make an objection concerning the addict was they have the district courts reasoning or explanation and that's after the explanation is actually given a prior objection you know prior to the sentencing hearing or even at the hearing itself to a certain sentencing issue whether it be an enhanced mint or a conditional supervised release can't possibly preserve an objection to the ad will say of the explanation which can only be brought into focus after the explanation is in and here l the breadth of the condition that they were being contested contested in in the very terms that they're now being contested here all the people so the district court understood that this was very much in dispute despite that the district court imposed these conditions and offered no explanation as i understand it for for this condition knowing this report judges are supposed to provide an explanation so i don't i'm a little troubled by the notion that in the face of a clearly articulated objection clearly stated principles in our case all the judges are supposed to provide an explanation for the or i think we're talking about two different things here so you can assume for the sake of argument that the district court's explanation was obviously inadequate for purposes of the nd plane error wrong but we know from cases like gilman that the rd prong looms large in this context so that even if i mean and certainly you are correct that judges should give adequate explanations it's it's required and even assuming that the explanation here was clearly or obviously in adequate gillman still presupposes that the defense counsel will object in the wake of the explanation and that a failure to do so while it may not help the government on prongs one in two does then tee up prong three which concerns whether there's a there was no objection in the wake of that explanation and a prior objection on substance doesn't substitute for an objection to the adequacy if defense counsel here had judge young in the wake of his explanation judge you haven't connected the dots you know we don't understand your rationale for the adult pornography ban judge young might very well have expanded on his reasoning now i think i understand the peasants point that that he should have done that to begin with but all that means is that if he fail to do it the defendant gets passed perhaps prongs one  but there is gilman says there is still the rd prong in the analysis so i guess i'm taking issue with the notion that merely preserving an argument as to substance and we agree they did  it preserves an argument as the procedural point we submit that injection to that should be lodged in the wake of the of the explanation and that if it's not  them the defendant has the burden under prong three even if the explanation was clearly inadequate but i'd like to turn to substance because i think that five minutes remaining that the and in some ways the more  important point here we agree that as a substance the defense attorney here preserved an objection to condition six and nine that review is for abuse of discretion there and our response on substance is to point you to the record primarily and there are a couple key points in that regard number one is judge lynch mentioned we know that the defendant was involved in to child molestation offenses as part of which he raped a five year old girl and in the same time period he was engaged in the file sharing pornography child pornography which depicted essentially the same basic type of thing going on adult men raping young girls now so we can see their connection between his criminal conduct the molestation offenses and the child pornography offenses the his collecting in the wake of is sexual misconduct against the two little girls is we submit on the record a bit far fetched in any event how does that get us to the adult pornography  band we would submit that the connection between the child the fences and the child pornography is clear and when we fast forward to two thousand and seventeen and the defendant is engaged in a very violent sexual assault against his adult girlfriend we can take it to the bank that he is interested not just in children but also in adult women and we can also infer that the  the record supports that of inference so that's our point on substance and if there are no questions about conditions six and nine i could turn briefly to condition twelve condition twelve if contested on several grounds but the idea that the ban in conditioned twelve  incidental contact with children is just one on the condition itself applies to knowing and direct contact with children so that's that that part is just incorrect  nd point the defense raised was that it applies to boys and not just to girls again the three year old brother of the five year old girl the defendant raped was a victim in in the sense that he witnessed that crime and children but the fact that he's engaged in a violent sexual d assault against his own adult girlfriend tells you that his sexual misconduct extends along the continuum from child to adult and there's no reason to think that somehow there's a a little island of our age group where he is not somehow sexually interested i thought we have case law this is just it's not an answer d concerns about the breath of a condition to say that well if you if you're uncertain you can go to probation and sort of get a kind of an opinion whether that would or would not you know i just want to understand exactly what you are getting there what we're not holding that out as a freestanding basis for affirming that that condition it's it's it is a factor however that the court has noted in sustaining other supervised conditions the release conditions in general has expired or had he would not say that just that he cures the whole the entire problem there is also the avenue of applying to the judge for modification of supervised release  yes i am i'm sorry about that that's ok we're ready to go i'm sorry mr kelly go ahead yes thank you again mr kelly for mr mcculloch but just want to be clear about the timeline of events with respect until some eighteen months later that the german police download pornography in the end of june two thousand and one so i think that the letter accurately is that there is nothing to substantiate  disconnect from the hearing at this time