makes this case different from the other case and why this case fits into what i would call a t m model and not the johnson case before you get to share before you get the merits counsel of this course is a little unusual in the sense that we have  applied in this case i don't think so i don't think it serves any purpose he absconded several i don't know i i'm not sure of what happened this last time i read the most recent probation report on this and they only indicate he have done it once but it's my belief you originally got out in december december twenty eighth of this year he obscure he was sent absconded then he turned himself in again i understand they placed him in a placement i don't know what happened then whether there was a violation or not and then he abscond again obviously he has a serious alcohol problem what happens is he this case should that have any bearing if we get to the merits on what was appropriate to impose on him in this case the fact that he's doing the crack cocaine that he feels free to take off when ever livery wants to well i don't see how over the late stu the two the conditions we have in this case obviously it's an issue the court can consider it's my understanding that the current recommendation is for his hearing next week is to terminate probation but that's an issue of see what the judge does so i don't see what it has to do with these conditions particularly i would like to point out the differences in this case first of all assessment leads in that direction but he can challenge the sufficiency of the recommendation for treatment i don't think that's true because the the order provides susman and if recommended to go ahead with treatment well let no order to come back to court or need know nobody but there's not an order to come back to court but isn't it possible for him to come back and and argue that the assessment was inadequate or that it was misunderstood or whatever well i think that's still more onerous than the other case where to do that he would have the beijing would depart would have to go back to court and get an order in this case there's no requirement that he would have to go back and challenge it so i think it's more restrictive in that sense it's also more restrictive in that it order periodic polygraph testing in this case which is different than the other cases secondly it's different from johnson in that this case involved an attempted bank robbery where he was so intoxicated the teller basically told him to get lost and it involved nothing to do with any sex offense and it did not involve like in johnson he used a weapon similar to what he did in his prior sex offense so in here i think there's no relation the offense the conditions are more restrictive and i would point out that in this case there since it was first imposed in two thousand and thirteen there's been plenty of time to do an assessment and apparently probation doesn't think it's important to do an assessment they haven't even bothered to do one he hasn't well if they had i suppose the appeal would be moot so i mean not sure where that well i think it i think it goes to the fact that it's really unnecessary and even but just because probation did it doesn't mean the district court was wrong it may mean that probation is over burdened or something but i don't understand how that bears on understand what the court is saying and not but i also think that it's important to point out that not only is it relevant the government's argument seems to indicate that he's only been out forty eight hours in or since his conviction but i would point out he's been out at times for years after his rape conviction i think he was out for almost ten years with no further convictions and i would like to talk more about the  the paragraph eighty six or eighty seven that's in the probation report i think those are the kinds of inferences that the court in t m found were speculative in for says that couldn't count against him you're talking about the polygraph where he failed questions about forcing women exactly and restraining women for sex and exact raping where you have what speculative about because there's no time on that i don't know when that happened he has in the probation report it says he has a prior arrest for a rape in the seventy's i don't know if he's talking about that or something different we have no what the reporting is dated december eighth two thousand and eleven yes and that's when that the questions were asked by the question didn't say when did you have these fantasies or when did you do these things that could have been told i don't i did we don't know we don't have any reference to go on there well he was found deceptive in his answers concerning committing new sex crimes as of twenty eleven that's what one of the things that paragraph eighty seven cents so it sounds like at least his mental life then no but i took that to mean that his plans for committing new crimes well i would point out that i don't think polygraphs are liable in this case we have no idea whether this is some prison guard is that an argument that you made in your brief his his a behavior in check regard to alcoholism what makes us think that will hold his behavior in check with regard to his sex problems because and wouldn't and assessment reasonably be related to that issue  i don't see how that's related you know he has an alcohol problem that's that's is probably his problem for the last thirty years but you know he hasn't asked what he had his sexual fantasies i don't think that there's no indication that alcoholism has anything to do with the sexual fantasies in fact i think it prohibits that i think somebody who's perpetually drunk can't have sex or have sexual images i think that's probably the case and i don't see any relation in fact it diminishes it to meet and i think that you know we don't have any indication of who the polygraph examiner was what reliability it was and when he had those fantasies if now since then or whatever but i don't see that as being relevant and i reserve the rest of my time for rebuttal flaky do that thank you may please the court good morning my name is tom radcliffe i represent the united states government in this matter judge smith regarding your question about the fugitive disentanglement doctrine i think that the issue you were getting at there dovetails with the issue that judge  getting at which is the behavior at issue and how his scan dating at least twice during the pendency of this appeal fits in with his impulse control problems and his alcohol problem the district court judge in this case very experienced district court judge had this defendant before him on four separate occasions the first was for the sentencing on the underlying bank robbery that as the panel knows and has just been discussed that bank robbery occurred while the defendant was visibly intoxicated and smelled like alcohol the second time that the district court judge had the defendant before him was on the first supervised release violation hearing in march of two thousand and seventeen there was another supervised release violation hearing in april of two thousand and seventeen and then finally the supervised release revocation hearing where revocation actually was ordered and seventeen and that is of course where the conditions were imposed which led to this appeal i mention all this because the district court judge as recognize or as as indicated in the sentencing hearing transcript from the supervised release violation hearing noted that the defendant has a profound alcohol problem a problem that the district court judge described as a almost a medical issue not quote some other failing that gave the court and  gives the government concern that the defendant because of his inability to go as a district court judge said in june of two thousand and seventeen really more than forty eight hours without going out and drinking but can also alcoholism without some other connection to being a sex offender doesn't support a special condition of this kind i mean if you're if you're the bank robber and you have no sexual violence history this would be entirely inappropriate even if you were an alcoholic so what's the connection your honor i don't dispute that i'm i'm sorry that my long and here is is taken a while to get to the point my point is that the district court judge i believe was aware that the defendant because he has this alcohol problem because he committed the previous the bank robbery while intoxicated is going to be would be at risk for having his inhibitions and his ability to abide by the law reduced by his alcoholism you combine that then with the record that shows that the defendant was in two thousand and eleven describing admitting not even as part of the polygraph but just admitting as part of this polygraph test interview that he followed a woman around and wanted to rape her those urges but you know am takes opposing counsel spring that paragraph eighty seven does not describe the time during which those events occurred it could refer back to the one nine hundred eighty six conviction or it could refer to something that happened when he was you know nineteen it doesn't except for that tag again where it talks about wanting to commit new crimes i'm not sure it's all that helpful in terms of connecti up chronologically that's correct your honor we don't have in the record an indication of the time frame of the events to which the defendant admitted that were then published in that december two thousand and eleven report by the organ department of corrections what what we have your honor of course he is the admittedly less reliable than the defendant's own admission but still concerning information that he failed a polygraph questions about whether he forced a woman for sexual contact whether he restrained a woman for sex and whether he whether he had as the court noted any quote new rapes your honor those that concern that red flag that is just fluttering in the wind there for the district court judge when the defendant was before him for the fourth time makes it we believe entirely reasonable for the court to have ordered the minimal intrusion within the wide latitude that the district court had the minimal intrusion of a sex offender assessment what is your response to counsel's argument that polygraphs are not reliable so that twenty eleven results should be discounted we're on that's not an issue that we that the government  briefed i recognize there are limitations to the reliability of polygraphs i don't know how to draw that line but because of the context of that and because of the fact that those three questions is not really evidence of the raises the question and then together with the other factors that we've talked about it seems to me that makes it reasonable for the for ordering the special assessment the real issue as i see it is there has to be a nexus between the evidence considered by the district judge and the imposition of the special condition case law really old convictions are disfavored to atten and the question before us seems to be based on the polygraph based upon his statements even if they were two thousand and eleven the reality is there is evidence dealing with his sexual statements and proclivities that gave the nexus for imposing this condition is that a reasonable reading of what happened here i think it is your honor i think that the polygraph combined with the admission hung a lan hundred six conviction i recognize that it's very old and i recognize that at the time that the defendant was sentenced on the supervised release violation at issue in this appeal that his two thousand and eleven admissions again undated were five and a half years old but those two things together combined with the defendant's problems with impulse control we think made it a particularly safe choice and the kind of choice that we the government would hope at least that district court judges would make in deciding to impose an assessment to get more information to determine whether the public is at risk to determine whether it's necessary then to order a sex offender treatment program if it isn't quite th does that make any difference judge i still think that the tripwire here is the assessment and everything else flows from the assessment i recognise as my colleague mr potter said that it's entirely possible that the defendant in this case if an assessment had been if an assessment had been conducted and recommended treatment it's entirely possible that the defendant could petition the court then to narrow the confines of the of the assessment of the treatment excuse me or to dispute the findings of the assessment and we just don't know yet because that hasn't happened we have to go does it make any difference to our analysis that it's been a long time since the court order this condition and that you suspend has not been done which is one of counsel's concerns well your honor the defendant in this case has only been on supervised release for some period of time during twenty seventeen i can't tell you exactly how many days he's been on supervised release certainly there was the imposition of a twelve months and one day sentence last june he was furloughed from that the record below shows in late december and that's when he failed to report to the emergency housing center and he was arrested then in january in portland there's been a time since then that he's been apparently under those conditions of supervised release and as the court noted if an assessment had been done i think we would have heard about that the government does not have any reason to believe that an assessment has been done and then of course there was the of scotland in april and his reporting i believe it was in april and his reporting back into custody in late may so i don't know how many months that the that the defendant has been in a position to even have an assessment but he also recognizes the court indicated that the probation department and the services that are available may not be completely lined up to do it immediately and that this it is after all a a multi year term of well i think it's a twenty three month term of supervised release and that there is more time and i just want to point out a couple things one is the government tries to link control and alcohol to the sexual problems i would note that the court that just record itself never articulated that it only talked about his impulse control in terms of alcoholism and never related that or had a concern about how about related to any sexual offenses council ken and this court you know the district court didn't articulate can we can we take into account your client's impulse control problem and applying the nexus of the most recent statements that we have any way into the polygraph in our evaluation of whether the district court abused his discretion in imposing this condition i don't think so i think this court is reviewing its discretion and interviewing his discretion it's to review what the district court had to say and if the district court didn't make the correct findings and and abused his discretion so i didn't have the district court would have had to articulate this position if we were to consider it as correct i think so yes secondly i would like to point out to the judge graber particularly that i did object to the polygraph it's on page nine  brief and the government the last thing is the government pointed out that apparently hasn't been able to be analyzed are assessed for the last few years but this condition has been there since two thousand and thirteen not since the last violation in fact the hearing the court said well isn't this condition already on there and the probation said yeah but we have to reinstate it every time he's violated supervised release so they've had since two thousand and thirteen to do an