this coordinate bill to perform its reasonable this review because it couldn't determine the basis of the court's decision those two issues were one whether or not the government here waived its objection to the non victim status of a manner that has some involvement in this case by not making specific objections to the pre sentence report the other question was whether or not the since it was imposed to reason about a judge was based in some part some finding that y dealt with the waiver issue is a head on the first he didn't address it directly and went on into an analysis of a variety of factors including the victim status or lack of status of the of this ma whatever i just don't remember if if were you you all said hey you know your honor you still haven't dealt with the waivers but we did in our pre hearing syncing memorandum that was filed just before the sentencing here said the very beginning of that sits out the the way the ways that we think the government have failed to protect and preserve that the service issue but i mean i think you had a pretty lengthy foster interaction there was that in the first sentencing hearing the second we  clearly the waiver issue has some impact i have to speculate as to what the nature of that impact was since it was not clearly addressed my main focus is that the judge while he did resolve the question of whether or not he  believed or thought there was proof to support a finding of sexual abuse of this manner and you resolve it in the negative sometimes saying there's no proof sometimes saying i found there was no abuse but there are some issues and questions that he posed that he never resolved and i think to leave the sentence that he did impose totally reliant on speculation as to what its basis was but some the middle district and nationally he also expressed some concern about the changing concept of god lines about a sentencing commission but what he wound up doing was to stablish what he called a mean i believe some information we had submitted to him at the second hearing regarding media instances imposed on child pornography cases both in the middle district and nationally and he determined what his  was and then added a specific twenty four month enhanced meant to that mean based on what he described as psychological harm to this child and the problem is a that the  sources for the same anger that he refers to including a number which had nothing to do with mr quale had to do with the child's upbringing with his the child's family situation the existed prior to mr qualls coming into i'm trying to trace the history of happened just briefly of how this child got involved in this case i mean there was apparently some so but and then the name on the folder was the name of the mater child so when the when the see an investigation is made to determine whether or not the point of graphic images were in fact of this child and then investigation was done i got it we get the syncing hearing objection that the government was going to try to put on proof that to establish that the child was in fact a victim although they had not made that objection in their present report objections child in my class position that would have been substantial proof there was contrary to the findings that court made about no sexual abuse no involvement in sexual child pornography and yet it was something still that was was cooking in the judge's mind that he is a bad person who are children or something but anyway some articulation of what conduct ideas that caused this psychological harm and what the nature and severity of psychological harm are so this possible to measure whether or not twenty four months is a reasonable response to that i don't play the know what you know now there may be some articulation of a theory with which i'd have to hire you that is just his you know his opinion versus my opinion i'd lose that argument but i don't know what that opinion is in this please the court the united states position is that the district court did comply as required with rule thirty two one three b by finding that the united states had not waived its right to claim that the minor was a victim of the court so far the united states position it is that it implied lee did so because the entire almost the entire recent thing was dedicated to this specific issue and that also consistent with the district court just looking where the argument our position is that it is not because he was struggling on multiple occasions as we've mentioned in our brief at least ten occasions he was trying to  articulate whether this minor victim was in fact a victim for purposes of psychological harm his entertainment of that to such extent was showing that he was allowing that and in our twenty eight jail letter united states versus templeton whether we waived it or not the court could even raise it to a sponte on its own so the united states position is that it wasn't waived the court by ruling on it entertaining it and raising it for such an extensive amount of time was showing that it the after this you have sort of all over the place discussion of psychological and during the part of the senate saying we're at the end where mr martin is his various bostic objections the court wanders back into he did have a nude photograph of this victim whether the victim saw it or not is unclear  and that gives me the question makes me question whether even though the district court had been talking about psychological are whether he didn't believe that that psychological where there he didn't base that on just in the run yes fact of what he had to say about that at first start with the district court in making its findings and it reasons for those findings nowhere mentioned the fact of pornographic or nude photographs of this minor child well lisa is that the very understanding understand but the point is he i mean it sentencing there was some discussion about the photographs that were contained within this folder that the victim or the minor was in various states of undress he had was shirtless and in a couple of them i guess i'm not a asking whether there was a basis based on discussion at some point in the cab for the district court to have been confused about that the problem for me is that he still can feel used after he's impose the nude photograph the victim mr martin says that and indeed i don't see a place where you said your honor you indicated there was a nude photograph  the court kept clear of the psychological harm to the minor victim as a result of the defendant based on the psychologist that's in the record when the united states was trying to tell the court that we have these other factors to look at we have spoiled or the court specifically says that goes to the defendant's state of mind that goes to the defendant so we're looking at the psychological the the possession of the pornographic images  pornographic images and then my son devon folder and the record one sixty one the recent saying pages twelve ninety to twelve ninety one the court specifically states to me when i'm making this argument that that goes to the defendant's state of mind so my position is that the court kept those separate and when he was looking at psychological harm to the victim he was looking at the statements made to the psychologist the things that the minor child suffered through his relationship with this defendant that would be the united states response to that is that is sufficiently clear in the record that the court was keeping those two things separate so whether he thought there was a nude photograph or not he was not attributing that to the psychological harm the defend the cost to the minor victim do it again be more clear because things change as they did in the first recent thing that we had it then became the defendant has had issues in custody the defendant doesn't understand yes your honor and that's a disadvantage as far as we're concerned even on a limited remain and the united states believes that it is a sufficiently clear record and we've cited case law that says there doesn't have to be a specific finding that waiver was made or not waived and in through all of this the court has went to great pains to make sure that this didn't come back on appeal the second time and have issues with it it read the opinion we addressed the opinion and he tried to cover all of his bases distracted by this what about the just the degree of specificity that should be required of district judges with respect to explaining this i will with a degree of clarity is that and some of these issues as addressed by judge kaplan wasn't raised by the defense attorney bostic in the in the second here i'm not sure that it's too reasonable to expect the defense attorney i mean there best we could to make sure that the record was clear and at the end we were trying to make that in fact the united states asked for purposes of the halfway house senates that the law requires that the judge specifically state why he's doing what he's doing and he and he did it so the united states position is that it is a it is a messy record but the united states and the court both tried to make sure that it was a clear record and the court sufficiently did what specific causes this huge psychological harm the united states response to that is that the  psychological harm that the judge was finding was and as a mentioned i believe that it's clear in the record it takes you know going through the entire record to find this but it's clear throughout that the judge took the psychologist's testimony into consideration and the findings that he made based on the statements that the victim was saying about the defend the what conduct you tell me from this record what conduct was a judge or for and specifically their relationship their relationship that why doesn't this make sense the relationship as i understand it was not inappropriate was it welcome after some point why isn't it doesn't it make sense to say that there's no indication that the relationship was sexual in nature or not sufficient evidence on which to base that the any psychological harm to the it which is unrelated to the thing it just has to be disregarded for purposes of instant offenses just has to be disregarded for sentencing purposes i mean probably you know our relationship to the human relationships is  sometimes people cause psychological harm to us and we probably cause psychological harm to other people we hope it's not of the serious nature but now but it isn't shown to be related to the offenses why should it be a basis for sentencing it all it is our position that it is related to the instant offense and the psychologists testimony about the anger and hostility and didn't mention this earlier but also the victim saying i don't know i don't remember i don't want to talk about that in specifically trying to address with the victim his relationship the specific instances of whether there was sexual misconduct or not and there was some discussion about the timing of that i believe is on cross examination by mr martin that the timing so in january of two thousand chaney were two thousand and ten is when the mother took this minor victim to go see the psychologist and it wasn't until october of that year that these pictures came into play about this minor victim so for that ten month period of time that's in their record at the first senate saying record one twenty nine page eighty eight it wasn't until that entire period of time had lapse that the  these and the psychological harm to which he is referring i think the district court was trying to resolve that but didn't believe it had sufficient evidence to make a sexual connection of abuse there but that it was making a connection that there was sufficient evidence making the connection of psychological harm based on the relationship because of the statements made by the victim to the psychologist the united states unless your honour's have any further questions thank of sexual conduct there was substantial proof at the original sensing hearing that the relationship was encouraged by the mother authorised by the mother known by the y m c a in retrospect it was a mistaken relationship but not it psychologist proof without saying how troubled he was about misinformation that the psychologist received in any party and so that it's not clear that the judge allowed on the for for anything other than the report to the kid that it appeared to be angry  unless the other part of the problem the district judge is even today the government has never articulated a clear theory about what the harm harmful conduct was engaged in by mr quayle when it occurred and how and to what degree it impacted on consider the case carefully