you your honor emmett please the court benjamin schultz on behalf of the united states as the government explained in its brief in this case which was filed before mr springer's latest offenses and violations the district court decision must be reversed and remanded because the district court failed to account for substantial contrary evidence in the record the need for remand is only reinforced by mr springer's latest actions which further illustrate that his difficulties with impulse control difficulties following instructions in complying with supervision and indeed that when he testified in this case that he would be able to comply with supervision that that testimony was suspect to what extent we consider the new york court saxon's in its case well at the very least your honor it's something that the court can take judicial notice of these are official judicial records but it in addition i think it just sort of is a backdrop that illustrates that there are fundamental problems with what the district court did in this case and that mr springer among other things someone whose credibility is very much in question in the district court we're going to find him credible it needed to more concretely analyze his credibility instead of just declaring that it found him credible it also shows i think to a large degree that the district court placed too much reliance on mr springer supervision that just a mere two months after being released in this case mr springer went out and repeatedly violated his supervision so he didn't wait very long before that the bureau of prisons expects to in february determine whether or not it's going to recertify mr springer if it does at that point perhaps we could revisit whether the case is moot at this point in the proceedings we are that we anticipate that the certification will be made next month and indeed or at least the evaluation for the certification will be made next month and indeed b o p understands that this court would obviously be interested in that and will try to take this relations or will you honor the certifications or are typically done before the individual is released but how can we decide the issue of serious difficulty refraining from future conduct when we don't i mean all of the expert witnesses in this case their testimony was predicated on mr springer's record you know staying quote out of trouble for a period of years now we've got this information obviously their expert opinion is no longer how can we even weigh the determine whether there was a clear and convincing evidence in the case when we know that the absolute foundation for their opinion has has at least arguably been affected you know that's absolutely right we do think that this is new evidence that is is very much relevant to the question of mr springer very least we think that that is the case but in any event if this case was that after after his release that he began to research the sex of the record doesn't explain that clearly but it's no more than approximately two months the two month period was from his date of release from prison to the date finding him in violation of the all that activity had to take place within sixty days the petition for revocation was filed on december fourteenth and it said that on five different occasions he had done these things and since some of things he had done was not residing in any given group home on certain nights presumably at the very least we know the first violation was on december ninth so that would have been  within sixty days of his release i mean would i mean why wouldn't we want the district court to weigh in because it's pretty pretty significant that the government agrees wholeheartedly that this is significant evidence and we very much think that this is evidence that should be before the district court whether the most appropriate way to do that is in this proceeding or whether it's in some future proceeding were he to be certified is something that i suppose is a more difficult question at this point given the state of where we are we are not asking the court to dismiss it is moot and we think that the appropriate remedy is we are not asking the court at this point evidence only further shows problems with the district court's reasoning and one of the one of the key things i think it goes to in addition to mr springer's failure to comply with our supervision and and going to the lines at the district court placed on supervision but i think also goes to mr springer's credibility because this is someone who testified yes i understand the consequences of violating my supervision and i'm going to abide by my conditions and then very quickly thereafter he didn't do that and he didn't do that on multiple occasions so the district court who had just wholeheartedly credit credited mr spears testimony i think would very much need to consider that in addition to the other problems that we have identified in our brief is we don't have a position at this point whether or not the case is moot but we do think that the moon is determination could be informed perhaps to a significant degree by a future certification by the bureau of prisons and is important evidence that something like what your honor is talking about is appropriate and it may well be that perhaps the more appropriate venue for that would be in a new certification proceeding about a final order in this case and that's correct it's our position just independent of the new evidence that the case should be remanded for the reason that we've identified it or we would well it of course one thing the court could do is it could agree with the position that we've taken in our brief which is that the district court in this case failed to account for numerous pieces of substantial contrary evidence and that because its decision was not adequately reasoned remained as necessary but even beyond that if the court is asking what additional vehicle  i see some skepticism from the panel if your honor finds that skeptical perhaps that is a reason why this court should wait until february when we believe the v o p will make a determination as to whether or not to certify mr springer and we hope at that point some of these procedural question a little bit clear i'd be happy to address the underlying arguments that we made in our brief if the court is still interested and i do want to take a least a bit of time to explain why the district court in this case failed to consider substantial contrary evidence and why we think that was clear air certainly honor and the first place that that starts has to do with the district court's conclusion that mr springer was not did not suffer from pedophilia and we think where the court should have started and indeed need to start needed to start was from the clear proposition that mr spooner suffered from pedophilia at least until two thousand that was clear by his own admission and that was clear from his repeated contact with repeated sexual basons over a lengthy period of time and that contact met the d s m as criteria for pedophilia so given that mr spooner suffered from pedophilia at least until two thousand the only question was whether he continued to suffer from pedophilia at the time that the district court ruled and in that regard as we've explained in our brief the district court failed to account for numerous important pieces of evidence one of which was mr springer's testimony which placed a great deal of reliance on what mr just said that's exactly the opinion that dr paul offered but that seemed to buy it of the court did say that it credited dr paul's testimony but one of the main problems with dr paul's testimony was that it seemed to be premised on the idea that mr springer had never suffered from pedophilia that was why altered the alternate explanation that these earlier acts were not in fact symptomatic of someone who has sexual urges towards children they were and had a feeling exactly pedophile or behavior but he said it was not pedophilia and that's why he was able to offer the alternate conclusion that you know if if this wasn't pedophilia it was said something else it was him acting out based on his lack of sexual maturity so because we think it's clear that mr turner suffered from pedophilia that we believe is sufficient reason to show why dr pod's analysis was internally inconsistent and indeed dr plod needed to do what pedophile like x do you suggest he committed and we are not saying that he committed pedophile like actions two thousand but there was evidence of continued urges and that among other things was mr smithers testimony on the stand when asked when you were last out in the community did you have difficulty refraining from contact with young children he said yes he had difficulty and if this is someone who doesn't have sexual but there was testimony that he spent four years in the community without incident without incident correct he did not as far as we as far as the evidence shows he's not friend but that doesn't mean that he wasn't having these urges and indeed if he no what i mean is if it's a certain point in time you you get into a situation where you're punishing people for their thoughts of thought into action that the statute seems to address is serious difficulty in refraining from sexually violent crime doctor or child molestation yeah right i see my time is up but with the court well let me ask you new  whether or not he suffers from a serious mental condition and we believe the thoughts and urges are evidence of that serious mental condition there would enable you to believe it has to cause serious difficulty in refraining from violent conduct or child wall did he or didn't he in the last four years the question is as a result of his mental condition would he have serious difficulty and among the other pieces of evidence we heard testimony the not just that mr springer suffers from pedophilia but that he has also suffers from various serious personality disorders which caused him great problems with impulse control there was with impulse control and that interacts with his pedophilia to give him difficulty and indeed just the language of the statute if we could abstract it for a moment the statute isn't saying that you can only be committed if you have committed these offenses in the last x number of years the question under the statute is whether you would have serious difficulty now that it may be that a person has managed despite serious difficulty for a short period of time to successfully avoid re offense but that doesn't mean that he's not going to have serious difficulty in the future and indeed as we've explained in our brief and as far as the government's experts further explain there are a lot of reasons in this case to think that going forward mr springer would continue to have serious difficulty and there is you've got to fight for your honor we don't shy from that and we can easily pretty much  substantial evidence in the record that the district court ignored and that substantial evidence called into question very much question a lot of dr paul's testimony a lot of the evidence the district relied on i thank you sir you have some thank you your honor may it please the court he's right it's the statute and the statute tells us to look at two places in time whether mr springer currently at the time of the hearing has a mental illness and whether mr springer in the future will commit sexually violent acts in child molestation the government's entire case was based in the district court on the past on these horrific ac mr springer committed those acts in the past are certainly relevant evidence evidence that the district court considered just as it considered the expert opinions just as it considered the d s m but  opinion which put mr springer's past in a larger more nuanced context he was not simply checking the boxes of the dx the d s m he was looking and saying in the context of his life what caused these pedophile attacks look at the age he was when he committed these acts look at the fact that he started with this seven year old this young child but his actual interest or in post to best in individuals evidence with respect to the us whether the government has satisfied its burden on the statutory standard the first the district judge made to separate findings and i don't think the government would allege you know if this court agrees that the government cannot prove clear error with respect to the finding that it did not meet by clear and convincing evidence pedophilia revocation statutory standard because of the violations of the conditions of supervised release some of them there weren't any additional crimes committed  were what i would call violations to moderate violations but why should the district court just be able to take those into account and to take into account whatever progress mr springer would make during the thirteen months i mean i don't understand what is harm by waiting until all the information comes and after the next thirteen months understanding then at that point whether the government's going to seek to recommit him you just have the district court hold this thing in abeyance until the conclusion of the revocation sentence because nobody's rights are going to be affected in the meantime if he's if he is incarcerated and we the district court would get a good conduct if your honor respectfully there is a big difference between someone who is incarcerated under a criminal sentence someone who is certified and waiting for their hearing waiting in the queue in the eastern district of north carolina and someone who's actually committed if this court were to remain and on the merits of the government's argument say and agree that the district court committed clear air and the district we wouldn't have to remain on the merits of the government's argument we wouldn't have to say the district court we're just being a factor what we're dealing with is a predictive evaluation the host statute as you pointed out asks us to look to the future but then  is wrong with holding or tell you some advance information relevant information comes because your honor the relevant information the government presented its case this case was closed the district court issued an opinion that opinion has important collateral estoppel consequences let's say this court were to affirm at that point we would have a determination made a judicially binding determination that say at the date of the hearing mr springer did not suffer from a serious mental illness now in thirteen months based on this revocation conduct based on whatever he does or doesn't do does the government choose to recertify it may it may not if it does that second certification will be based in part on you know the findings made in this sort of you know there wouldn't be a finding that he has or doesn't have serious difficulty the finding that w make it your case or they just report would be affirmed would be that the government failed to meet its burden that there was not the government failed to meet a clear and convincing burden of proof so there would be nothing established as a matter of fact on which you could rely for the next hearing there iran or the district court would have found that the government did not meet under the relevant standard that in i'm talking only about the second prong say gry the third prong about a future prediction which can change at any point but at that point mr springer would not there would be a finding that the government didn't prove he was suffering from a mental illness and you know could that mental illness that develop from arguing and that would preclude the government in our view from arguing that he had as it's trying to argue and argue here and ongoing pedophilia that started when he was a teenager and continues to this day the government could certainly argue in a second hearing that he has have ophelia and have ophelia's a serious mental illness it could argue that the personality disorder should qualify as a serious mental illness it could make those arguments what it could not do is make the argument that the party spent a lot of time and money litigating in the district court very carefully considered which was what whether mr springer don't rely on everything side of here yes the district court may if this court were to remain and rely on its previous findings if this court affirms and it's a final judicial determination this district judge or any district judge of the government recertify is there's you know no chance i mean it may or may not end up in front of the same district judge would actually be collaterally a stopped race judicata or they would be findings that that judge would don't know that would be fruit if you say collaterally will stop but we're not here on a collateral attack i mean the we're here on a direct appeal and there's a whole lot of difference in the procedural posture of a direct appeal in the collateral which because the supreme court if intervening in case law circumstances comes up in the course of a direct appeal there remained it until you know you're position would have so much more would be so much more persuasive if this were if this were in this if the government were trying to attack this collaterally or something of that nature but on direct appeal we don't you know  apologize your honor i was talking about the difference between this court holding the case in long term abeyance verses you know having this judicial determination be final i would say your honors in terms of you know you point out that this was no criminal conduct mr springer started an adult relationship with someone who was a felon in violation of sitting with a sex offender that individual that he met you know some of the only individuals he's at actually able to meet not sex right he he was in violation of associating with the felon and he spent the night at his mom's house and not in the shelter those were both neither of were criminal con again look at frederick springer he hasn't done this in over a decade what he started was an adult sexual relationship with another individual an individual he met in group therapy the only people he's meeting in his  he was a sex offender when he started the relationship there i i do not know your honor but certainly if you meet someone in a sex offender group therapy there's probably a fair assumption but you know one thing i'll say this this conduct if this court were to agree with the district court on prong two and i actually think and prong three leaving this revocation conduct aside is actually an even stronger case but if this court agrees that the district court correctly found that mr springer was not a pedophile this revocation conduct has nothing to do with that and there would actually be no reason to remain and to hold this case in abeyance and it is speaking frankly perhaps i'm a bit personally sensitive coming from the eastern district we've had these forty eight cases the word abeyance these cases were held in long term abeyance pending comstock and the like and there's i have a sense where the government presented its case we presented our case the judge made a determination that this person did not meet the criteria for commitment and yes there was subsequent non criminal non sexual conduct that's not yet another reason to give us another thirteen month the bay it's another blackhole another situation where somebody is sitting there not sure about their legal status if the district court did not clearly  transpire between trial and appeal that's basic there are many many cases that become moot on appeal we really learn jurisdictional facts many many cases are live on traverses at trial and then additional facts come out during the pendency of appeal and their mood and what you're trying to do is sort of schlamme the and i don't understand it and your honor i'm i am not slamming the door nor i am saying am i saying that this court cannot take notice of facts or subsequent legal developments what i'm asking is for this court in its discretion that not just that he did it in this instance but that it suggests a pattern of behavior because he's done it before your honor we submit that this has nothing to do again with the second pro arguably this conduct and we would certainly say this wouldn't change a district court opinion but yet respectfully when we're talking about the control someone's ability to follow directions or not follow directions can be a relevant fa but respectfully your honor though this is conduct to get revoked for conduct he shouldn't have done it doesn't get to the question as to his actual attraction to preview better than children that it doesn't get i mean serious stuff you know that in this case when you have a case like this from our office you know when you have facts where not just that you know somebody was out in the community for six months and didn't get caught and you know here's a situation where the government expert who looked at all the relevant evidence including the two thousand and four non confronted statement the government talked about who looked at all of that evidence and said those children if you would only use children if we if you're really really wanted that first that's pretty scary isn't it well it was certainly not scary enough and important enough to the government to mention it in it it because your honor they want to do it three reasons first it wasn't evidence it wasn't presented to the district court there was no opportunity for us if it was so important they could have presented it itself to get to the other point dr hastings reviewed none of us have seen this dr hastings saw it dr hastings saw the word children in context which can certainly mean anyone under eighteen dr hastings who saw this who had his professional reputation on the line stating that mr springer was a pedophile you can look at his report he saw this and he said i see no indication of any pedophile it thoughts or x if this two thousand and four allegation was something that actually could jump off the page and really did get to head a philip behavior as opposed to attraction to teenagers you know the government would have presented it it would have put it in its proposed findings of fact and dr hastings when mr craven cross examine him would have said yes yes there's a pedophile it thoughts he has you know what this two thousand and four report that i read where he was talking about prepubescent children he didn't say that you know this is a case where the government carefully went through the record and found again what i would say was an actual evidence and you know pulled that out and on appeal spins it to make it look like something that it's not we're not even arguing here about whether it's admissible we're arguing about whether the district court committed reversible error throughout mentioning you know by the way that one sentence allegation in the p s r doesn't change the overall thrust of my opinion  your honour's can affirm on either or both prongs and in the capper l a case this court indicated that for judicial judicial efficiency it should you know if it can affirm on one prong ss the second prong is even if he did give the credit to the government's witnesses this is where he would go with it which deals with evolutional control but he says that that evidence does not directly affect the court's consideration of carefully at the statute the statute asked if this individual would have serious difficulty from refraining it's a child molestation if released so the statute that third prong is sort of a two step inquiry we first look at this volitional control this comes from kansas fee crane that's what congress intended when it wrote the statute district court made that determination and said he does not the government is not proven by clear and convincing evidence ok but the statute also says to look at what happens if he's released so i am as a district court allowed i am arguably obligated to look at the situation into which he's going to be released and that buttresses my opinion and in fact i would argue in this case the supervised release had the desired effect he was caught before he committed not that we would argue he would commit and i think based on this record we'd say he probably would mr shows so how do you deal with mr springer so argument that it was no control doesn't really matter to prove that he's a pedophile and that the evidence is an echo poisoned whether however i want to make clear first of all we think that the new evidence in addition to going to the last prong about delusional control also does bear on the pedophilia and one of the main reasons for that is because if you look at what the district court was doing when it concluded that mr revocation onda relevant to determining whether he has a mental illness we believe it is because it bears on his credibility and if i could just walk the court through that mr springer testified in this case that he understood his conditions of them we think that determination will be mentally ill certainly what we think it directly impacts is mr smith credibility is one more piece of evidence in addition to the numerous pieces of evidence that we discussed in our brief and i'd be happy to walk the court through them but it's one additional piece of evidence that it really it other than credibility i don't think it directly relates and so in that regard we would agree that perhaps it's more it's what is that it has more bearing in this particular case one of the key things that the district court relied on in concluding the mr springer doesn't suffer from pedophilia is mr springer's testimony when he said i no longer have the sexual urges i don't have sexual urges towards pre pubescent and the district court  explained in our brief just said that as a credibility finding without addressing in any way the numerous problems with mr springer's credibility such as this admitted this revocation hearing his credibility on his sexual urges it we don't know what so she is doing the probation violation said that he had met another man in sex offender treatment and that they had began a relationship and so on repeated occasions he spent time with this other individual  relationship that's what the violation report says yes but if i could be clear on her we're not just saying that one little piece of evidence is what shows the reports problem if you look back to our brief what we are saying is that this is an individual who on testified on the stand that he lies under oath when it serves his interests this is an individual who boasted to the experts about how he committed fraud on thirty to forty different occasions and he enjoys and indeed he gets a thrill out of committing fraud this isn't just that good it goes to his credibility and the district court's decision to credit without any hesitation whatsoever even begin to consider th respectfully your honor when the district court says i credit mr springer's testimony that he has matured past his past offenses it's our position that in a case like this a district court has to at least consider the very substantial evidence in this case showing the mr sp was not a credible witness we're not saying it could not have credited him but we are saying it needed to account for that other evidence like mr springer's admitted willingness to lie under oath when it serves as interest and his long history of mendacity and fraud which we outlined in our brief one beyond this case you know i see my time is up but i'd very much like to answer that question but in other cases the honor we are not here saying that the district court could not have found mr springer credible that is not our position what our position is is that if the district court newly discovered evidence were specially on her i bring in and a motion for newly discovered evidence then you want to bring it back in to the process of this because you haven't said he's found anything wrong with what he's  the hearing itself in terms of his credibility you've got this other evidence and then you take it in an indirect way it's you don't have the right sexual conduct and nothing that that speaks to the illness itself so then you use th could go you know i've apologized if i confuse the court but let me make very clear what our position is we are not saying that the violation in and of itself ignoring everything else in this case would in and of itself be a grounds to remain and on the pedophilia prob that is not our position what our position is is that there are numerous very substantial pieces of evidence in the district court record that the district court should have considered because they bear on mr springer's credibility mr gore did not consider those very substantial pieces of evidence that no one i review without regard to the other it does but i stand that aspect of it but we give deference to the district court judge on that and of course we can go as you say if you didn't just only would it maybe some basis for but if it's credibility determination it's a very high burden of the government to deal with a district court judge a position he sees this witness he knows what's going on out there it is difficult for us now to go back and say judge you just really