court there are three different timelines that are look at all in this case one is the fact that major fact that the hands on a fan speed child molestation charge in this case which was the basis of first prong of the forty two forty eight  it's not there and that's important and we go to a hearing in his almost a quarter of a century later and that child molestation conviction is is an essential part of this case the second for the time line please the court is that he gets sort of fod he just happens to be in federal prison and he sort of followed on the last day if he's to be there they were a night two thousand and seven and four years privilege basic public policy concerns that we want people to feel comfortable and that they can express things cop confidentially even in a treatment program in prison and one nine hundred ninety seven  nine years before adam walsh is adopted by congress and at that time i do not believe anyone could foresee that adam walsh was coming down the pike i don't believe there was any type of movement in that area in terms of retained expert by the government it was not on the government payroll dr christopher north from the state of california followed our report with the court under seal which is in volume two of the appendix on information that was confidential place or in was part of that privilege and that information was clearly in the report of the s o t p the sex offender treatment program notes from bottom and statements that can work tributed to mr boat landed or in that report and that happened before mr ball lands or had any knowledge it was no ordered to please the court to participate with dr north and as part of rule thirty five he was ordered to speak to his expert and knowing that anything that he said to his expert would be available as part of the report yes he knew that but the point judge is that the damage in this case the problems in this case all happened before the alleged waivers that are documented and the briefs of the government and that is what is troublesome in this case in the words the government can go out and take documents which you believe are confidential protected that you made in a protected environment consistent with the united states this situation in this specific situation under this specific civil commitment statute where the law was fluid you're up this court was working trying to keep up with what was going on litigation decisions were being announced that it came in this specific situation the injury abolishing of the privilege happened way before anything else happened in terms of the case and that violation was something that cannot be repaired or changed it it happened and it was going to come into evidence they did have a patient physician relationship when this information was given he did at that time with the  bank is five years free yes or and he did fail in treatment and there's no question that mr boll lander's behavior back in ninety seven ninety eight at butler did not help him in terms of of his status at the hearing there's no question about that i mean hands up on that there's no question but the issue the issue is what does that privilege mean to someone who gets promised that i ma confidential confidentiality what i'm telling you industry my program will be protected at all times nine years before adam walsh right but he's also told in that confidentiality agreement or he also acknowledged as i understand that agencies yes i think they can bind themselves to those or agencies write their probation d o j federal bureau of prisons but the point of the matter is is they took the information and shipped it out as part of preparation for pretrial hearing they shipped it out in california to someone to build their case for that purpose to make their case stronger against mr bowen and is that abolishment jaffe yes and what's the appropriate remedy there the only remedy there is to take that out and say you can't do that and this hearing is tainted and he's entitled to a new hearing because of that error that the disclosure is the problem in the case in terms of doctrine or the end of testimony and a case and his access to things that are sealed up and protected in the district court press reports i was no application to us all where anybody applied or mission to get released of persons reports in a doctor nor nothing of that nature none of that happens in this case and it is like it just grows from that point mattress direction and specifically in that berry specific situation that information is it just tanks the hearing and the privilege is think that and it's not a cut and i know it's a rule of court and i know it's in the federal rules about it so and five or one and all all those issues and then jaffe build something on top of that but in a brawl sense whatever we do in these courtroom studies have some constitutional basis to due process and specifically specifically in the green that is is there and then the jack the rule is there comes out a year or so before he signs this agreement that the the issue is the government was using this and getting around this why you are and doing this to build  cation of and the tension of like a ball landed and that is the problem with with the situation as i said before it appears clear that the only to grant him a new hearing with out the testimony of dr norton and that's basically the position and that timeline again and again and in the courts right ninety six ninety  the policy behind disclosure the policy behind someone being free even in a prison as a federal inmate and not then as a civil committee someone waiting for a certification hearing for almost five years the policy rehabilitation process the government did twisted on its head and then used it to build its case against mr bowen the other issues the issue about conditions of confinement i would argue living circumstances is connections with the world and how he was treated as a inmate even though he was in a status for four years eleven months or so as a waiting  court without granting in a district court without granting a hearing summarily denied that no notice nothing and then the next week the sort of creation hearing is conducted so that basically is is that time line the other timeline please the court is the general fairness and going back and taking a conviction twenty five years old and usenet as a basis to hold somebody and sort of  but the point is judge and and they're all seriously yes but the issue is they are and this is important the issue is there yes champ child pornography there but it's not child molestation and was a child pornography as a substitute or another mechanism for someone to deal with those types of urges one in the same yes he did child pornography but the record is full as dr warren testified that is replete that or the years that he was out of prison michael bohl lander did not engag child molestation we have won hands on offense twenty five years ago and that is in my mind at least a court not sufficient for him to be in his status that he is today  good morning your honors my name is edward graham an assistant united states attorney in the eastern district of north carolina and i represent the apple in this case united states with regard to the argument what i will do is i will address the fourth issue raised by the  his brief and then turn to the first issue with regard to privilege we feel and will stand on our brief with regard to the second and third issues feeling that circuit precedent as an adequate adequately addressed those issues particularly with respect to the court's  holdings with regard to the fourth prong to the fourth argument there is plenty of information within the record to support a finding of sexual dangerousness not only do we have the testimony of two evaluators who had an opportunity to see mr bell and her on a day to behavior but was a current condition a pedophilia that was so strong it led mr boland or to state to dr north and i in an interview his feelings that they idea of pedophilia is more of a sexual orientation as opposed to a criminal act it is as a result of those sort of statements that dr denby was able to say that what mr boehner was describing was what she called the four p's and j a page  fifty one and i'm going to paraphrase it the precocious persistent and constantly pushy prepubescent who is the type of person that mr boll lander on several occasions would describe his victims as there ample evidence within the record to indicate that at the time of civil commitment and at the current time mr bowen and or clearly was going to have serious difficulty refraining from child molestation if he is released by his own views by as own statements in his own determinations with regard to the privilege this circuit has held on several occasions that when it comes to a privilege there's a sensually three things that need to be done the privilege needs to be asserted needs to be clearly identified it needs to be assert j one forty eight the waiver document which judge again and you identify it said that the government could use it to share this information and provide it to others for evaluation but there's also an extensive history of implied waiver throughout the course of this hearing there was no objection to the use of this medical information within the p s r that was the basis of his original sentence there was no objection raised to the use of any of this information when dr her initial report to the court and april of two thousand and eleven still there was no objection lauch by mr ball and her six four months afterwards when he identified his own expert who was going to be using the same information to provide information with regard to his overall mental status there was no objection raised when there was a motion by the government to ask the court to order that mr boehner to go through a court ordered examination to determine his mental status it wasn't until that it wasn't until the summer of two thousand and seven that the first objection is made but this is after this information has already been considered by dr denby who in his brief they do not object the use of that information by dr worn through as their court appointed was their selected examiner and they don't object to the use of that information by him by dr north and repeatedly within the p r so we're talking about numerous instances in which mr boehner will have waived this overall privilege and that's not including us testimony at trial or his testimony and deposition during the course of the litigation ultimately when we're talking about mr bowen are we clearly haven't expressed waiver as well as an implied waiver but let's take a look at the overall impact of the argument that the respondent is that mr boll landers raising in this case alternately as this court is very well aware the issue when it comes to an adam walsh case with particularly with regard to civil commitment is the question of i is the court getting sufficient information in order to make this extremely important decision this the situation is not simply about  the safety of society but it's also about the possible deprivation it's a civil liberties by the respondent and it's imperative that the courts be allowed to consider as much information as possible with regard to determining  respondants mental condition it is necessary that a person's past treatment come into consideration by the court and it's imperative that that consideration by the court also be made by the experts who are using their knowledge to help inform the court as what the current mental status is of a responded if we take a look at the information in this case there is information that comes from his past medical treatment that is negative for instance the fact that he had stolen  pedophile like materials from the task at aero state hospital and used that as mass to pretoria stimulus while he was incarcerated that was noted within his medical records and that's clearly something that's a negative for however there is other information that shows that he did progress in treatment for instance his participation in group treatment projects and that is something that should be considered by the court and isn't necessarily a negative so when we start talking about the issue of the patient  and patient provider privilege particularly with respect to these sort of cases it's important to understand that we're not only balancing the privacy concerns of the petitioner in this case which needs to be zealously guarded at all times but we're also talking about the fundamental nugget of jaffee where the supreme court said occasionally this privilege has to give way for public problem for for the greater good and in this case the greater good is not only the protection of the respond in this case mr boehner but also a fair evaluation by the court your honor with regard to the issues that were raised in him points to in three of the brief we feel very strongly that those issues have been resolved by the court what with regard to temps and its other past precedents with regard to sufficiency of the wait to determine whether or not mr boll lander suffered from pedophilia and whether or not there was sufficient evidence presented during the hearing for the court to make of the terminations that he in fact suffered from a serious mental illness abnormality or disorder and as a result of which would have serious difficulty refraining was also adequately as i to quickly show and we feel that the court's recent presidents with regards shown in united states versus wooden and united states versus calorie count ralph support those support the findings of the district court unless there's any questions from the court that concludes my arguments privacy he went and he signed a document that did have exceptions but said nothing about disclosure that there were parties and in that police the court eat there was a commitment by the united states of america that we will protect your privacy and by mr ball land or receiving that that commitment you will honor that and so i can talk freely with you and participate with you but you talk about the program in jaffe doesn't same thing about what that means in the end that language gives what and the issue is whether public policy and in terms of supporting a patient psychiatric or psychotherapist  is is greater than giving way and this situation when the government is obviously building a case they're building a case and they're getting ready to go forward sort of i mean to hearing after sort cation situation's situation where we have a stake will case or federal criminal case were some issue about that type of issue which is come up with someone talking to a therapist in the past that's not it and the issue is you know depriving this person of their liberty after they've served criminal sentences and they're supposed to be on supervised release and isn't i still context and and what does give way mean and i would argue to the court that it does not mean in this waive though so why aren't we i mean we really have to take a close look at that language yes if that waiver yes but the waiver in the end please chorus reason to talk about a timeline on the disclosures made the damage has been done the cat's out of the you know the barn and situation is clear that there's nothing left to be done but to you know try to stop dr north from being a witness and at that point  time we were under court rules to comply with respect to meetings with dr north and with respect or on how does not warrant testify without meeting his clot and so basically in this specific situation  believe that jackie was violated and specifically the contract that mr ball land or the privilege agreement that he had with the government was and i it's a very significant issue to him and you know he's locked up in a civil