on i don't even know how many times about supervised release conditions and that's what this case is about as well the government i are in agreement on on many of the points the recent piece perm addresses the government's waiver mr poole on the has requested that remedy in this case to deal with the conditions that he specifically is concerned about and also the conditions that thompson and capice were concerned about the thirteenth standard conditions my reading of the government's brief in the government can certainly correct me is that the government has agreed that the thirteen get additional save the alcohol ban should go back for reconsideration by the district court because they are based on language that was struck down in the sports various opinions and stand you wary of the remaining three issues that really were at contention are about the alcohol ban the overlapping treatment provisions and the no contact provision with minors the alcohol ban was primarily based on one statement and our psychological report of mr full and that he dealt with stress by drinking alcohol and taking prescription medications and that in two thousand and six which is now nearly ten years ago he was diagnosed with an alcohol dependency the court didn't acknowledge is that again this was ten years ago mr pullen was twenty one years old and he was going through a divorce and a lot has changed since then he had not had a problem with alcohol  thousand and six and receiving treatment for that showing that he has a minimal treatment for alcohol abuse you also the psychologist indicated that there was no indication that he missed used alcohol or misuse prescription drugs and that he dealt with stress the way a lot of people deal with stress they may drink and they may use prescription medication to deal with anxiety in the overlapping treatment provisions  a concept that came from siegel which acknowledges the fact that you have three different types of treatment for mr poole one psychological treatment alcohol and substance abuse treatment and sex offender treatment is a very difficult situation to put him in when he also needs to work he was working continuously prior to his arrest in this case and i only can assume he will continue to work it would be very difficult to defendant was can interview during a clinical interview while at the bureau of prisons in the congressional summer he indicated that he handle stress by consuming alcohol and taking prescription medication so when was this down to some extent people's you know self control ability to avoid questionable behavior well i have two answers i don't think that all drinking alcohol to relieve stress is problem drinking i think there are probably some people in this room who might drink to relieve stress without it being a problem and if it does lead i don't think you're right about that i don't it's one of the people who drink you know they like the taste or they like you know makes them feel more better or something like that but actually be under stress and drinking to relieve your stress and that's quite dangerous i would agree if that's your only way of coping with stress yes that you're only working the other way is the prescription medication that makes a great combination prediction i agree your honor i don't want to point any fingers in the courtroom but i'm saying that it was it certainly surprised that's true and i think that's certainly true of all these cases that modification is possible particularly when we're talking about the treatment provisions that if it is too burdensome he has from a small town which is just within the area of the quad cities and i'm not sure how close treatment is for him it is very close and it can be done maybe on the same treatment provider then that would be workable but without any findings about how that it's kind of hard for us on appeal and the second part of your original question was whether this leads him to view a child pornography mr killen was not a molester he was simply downloading and viewing child pornography ok i'm sorry so there is that distinction that moves to the no contact order as well as that he was not diagnosed with pedophilia he had never had a contact or founds the fact you had no prior criminal history whatsoever so  she was she was seven at the time the present report was written and there was no indication from anybody living in that home that they thought that mr poole in was a danger one of the situations we find ourselves as in when people come out of prison they need a stable home be at and this seems like a stable home for him to be at and i think he is welcome to return there so he needs to be able to find that home without this provision that the probation officer constantly has to be informing people who might be in contact with him at that home like i said the government has essentially agreed if the waiver situation is no longer because of perm that the case should go back three sentencing just record can have a chance to address these issues again every sentencing perhaps narrowly tailored them perhaps because mr her arms are mr poole and is going to be released in the near future hold off on some of these until he's released from prison good morning your honor some may please the court my name is greg walters and i represent the united states in this case if i could just briefly address a statement by did he did the judge did the judge light of thompson if i could bring this court back to the time frame as we have somewhat of an intervening decision by the district court here that i think it followed this course decision in good manner other cases that it was months before the thompson capice line of cases concerning that really addressed standard conditions and and making it clear that those have to be announced so yes that was improper  to know what's in or what's out i mean are you saying that this needs to be reminded because there were a lot you know before we got your twenty jay letter i think it said that because now the ones that you claim were waved they can now be reconsidered so like what and what are we disputing in terms of condition that you say doesn't need to go back to be redone your honor i mean i would say what we are disputing is the alcohol ban that only thing the no contact provisionals the one she identified so you know and then remit the three treatment conditions ok so that's it ok what i would disagree respectfully with counsel are our recognition of per him wasn't necessarily recognition that every condition she challenges this bank some may not be supported by findings when talking about standard conditions but this court has held that every one of those thirteen standard conditions is back many of them are and so what we're saying with regard to the standard conditions is since it does have to go back in light of thompson capice and now per i'm saying there can't be waiver under the circumstances even those conditions that are veg the court will have a chance to make appropriate could then address thank you your honor addressed the conditions that we are still asking the court to uphold it may sound somewhat i'm not wasting trying to waste court's time by addressing alcohol prohibition since the standard conditions are going back but i think it's important that that condition in maine that it doesn't have to be on the table going back because as the court noted judge posner when you were reading the psychiatric examination  the defendant stated that he deals with stress by using alcohol and prescription pills and alcohol dependency diagnosis in two thousand and six even with treatment my understanding of alcohol dependency is another term the alleged offense the diagnostic compression was quote alcohol abuse and then he stated in his sanity examination quote his judgment may have also been adversely impacted at that time due to the use of alcohol so whether we're looking at history and characteristics that that are offense pacific or history and characteristics that based on his alcohol dependency under either circumstance that alcohol treatment condition is appropriate which leads to our our next point concerning the three different conditions your honor i recognize we recognize and siegel this court question united states versus eagle this court question is there any evidence that there's any slight slightest effect of such stuff on people's sexual you know impulses i think we're dealing with a difficult area treatment to what danger if any a a possessor an user of child pornography poses as far as a contact offense we have there's data on both sides that i'm not an expert to say that  you could convert homosexuals and heterosexuals by talking to them and so on all that's been dropped and i don't know if there's any evidence at all that you can alter people's sexual desires it may not be to alter the desires your honor but in the same way as with alcoholism but man or a means of controlling those desires in a more effective approach viewing a masturbating to child pornography and so you can for bid the child pornography you can forbid people to drink but that's not what this sex offender treatment it's some sort of psychological you know what it is well yes it would be a side effect it's a big waste of everybody's time and money that i again i don't think that we have a desire to give up on a defendant and leave him to his own devices that his sexual fantasies would remain contained to his imagination your honor it's particularly dealing with children and so what we have is of as a district judge to used his judgment to impose that condition and parent then but importantly explicitly from the defendant stating quote no objection to that interested in the efficacy of these conditions or they're just you know opposed because you know there's a list code of federal regulations  but i think the justice department would be interested in the efficacy of a lot of what's done or not on it but to say that everything has been studied or determined by the justice department i would be lying to the court i'm an aware of any study by the justice do you know move on to the last condition the other challenge condition but what i would like to state is there there is a waiver issue still with regard to the three treatment conditions not based on not having been raised before but when when  defendant is explicitly asked in sentencing do you have an objection to this condition and they state no i think i did i did i believe that's waiver that's not just plain weird and even if it were plain that in spite of that that common sense in siegel about imposing a number of treatment conditions in the problems that could occur there is yet to be any holding stating that would be improper and the facts of this case are such that you do have a unique defendant that suffers from mental health issues that does have for lack of a better term a sexual deviancy issue and then does have a history of alcohol abuse so with that and i to turn t judge didn't didn't it was almost like a cunningham type argument that judge man didn't address his principal arguments were that he's not a pedophile with with a history of no contact with any with any minor and secondly that it restricts him from contact with his stepsister half sister and i agree it's not clear from the record i think after rereading it it may be a half step sister instead of a stepsister first to  address the lack of diagnosis of pedophilia and no contact that rule out diagnosis by dr may bring is far from a ringing endorsement that the defendant is not a pedophile what dr neighboring state it was there was insufficient evidence based on one the age of the children because the defendant reported that he had a sexual interest in pyu bess and minors and to the amount of time that he had that interest which requires at least six months und pedophilia diagnosis but what we do know at is actually this defendant based on his own search terms on his computer had an interest in other than teenage pornography when you use a search term such as quote  preteen you were not looking for a peep vasant child pornography in his collection would show that that wasn't the case so even though there was a quote rule out diagnoses i think the proper reading of that diagnos was actually something not considered or actually reached by by dr neighboring and judge men explicitly considered the fact that there was a rule out diagnoses and what we're what we have even in the face of that is a concern by experienced district judge that this defendant who again we acknowledge there is no evidence of him acting out on a on a young female physically but a concern that again his sexualized fantasies would remain contained to just his imagination and i think within the wide discretion given to the judge that he can impose this condition and notably he even considered the defendant's statement or concern about not having unsupervised contact with his stepsister half sister and the court even brought this up he said i see an issue with that if you get out and that is where he is going to live within his mother's home the judge said he was willing to reconsider that condition and i think that that shows wisdom on a part of a judge and so and i think just ultimately that the court's  position of this condition under a circumstance in which the defendant is known to have a sexual attraction to children and have gratification through physically manipulating or masturbating himself to those videos that that the judge is rightly eleven years old and counsel can correct me if i'm wrong i believe ten if he gets out two years from now with good time credit and she'd still be a child she'll still be ten year on her so aside from our one of the one of the search terms he used on his computer is quote a pre teen and then if we look at the videos that are described in the p s are specially the one paragraph thirteen a the compilation video of terror that last for thirty five minutes that's an eight year old child being an only raped over and over through different means and so i would say yes there is it's not just confined to a few bass and we and the defendant stated in his  change of plea hearing that he downloaded teenage pornography forensically it shows that it went to preteens impute creepy vasant and so we have a range basically from the ages of five up to the defendant stated eighteen which obviously that would be illegal so absent further questions from the court and based on our concessions you're asking that that court would otherwise affirm those conditions dealing with the alcohol prohibition the treatment and then the no contact provision  not being an informer those we have not contested i think part of our concern with the treatment is exactly as you pointed out that sex offender treatment is essentially mental health treatment focused on sex offense behavior most people who are convicted go through some sort of mental health treatment either in prison or out of prison is essentially the same thing except it's focused on their criminal behavior which is viewing downloading child pornography so there is an overlap from a treatment providers perspective i can't imagine that someone who's providing treatment to sex offenders wouldn't also consider themselves providing treatment for mental health treatment and if alcohol does play a part or perks prescription drugs does play a part it also becomes drug treatment it becomes an overarching thing to three separate provisions are not necessary i believe the court you know did not address the thirty five thirty three a factors and thirty five eighty three d sexual tapes i would agree with that i think if it's in the d s m the diagnostic statistical manual and homosexually homosexuality used to be in the d s m it's been removed maybe there will well i think that there are people that would say that in order to take someone's life deliberately you are not completely mentally capable i i think that that can be  sexual taboos whether they're destructive or weird or what have you or products of mental illness all i can say opposed to you know something in the bernie that means it could very well be present in the brain and i think our problem globally with these issues is we don't know a lot about how this works and how treatment works and as far as the no contact was the evidence that any of these treatments  effect there there is some empirical studies that say the government cited them in their brief the sentencing commission has done some that say that that sex offender treatment for a non what we would call non toucher is for people who view child pornography is important to keep them from re offending there's there's empirical studies on the other side that sex offender treatment is not effective that and there are some studies that suggest some sort of biological treatment narrow search terms that might have been something that he was interested in that day i don't know how that's protecting the public if we say well it's only this group or it's only this group you know there are people as you say that have many weird interests and i can envision a provision that says you can't have contact with asian girls ages thirteen to fourteen that the thought police comes down  and kind of we're getting into a round that i don't believe we're capable of understanding totally so that i understand you you would say there's no basis in this record to impose any you know contract provision i think the i think i've seen stronger basis in other case i'm hesitant to say that now having no no contact position her vision would be appropriate in this case and the reason i say that is that i doubt that probation officers would be very happy with me and because they have to supervise mr pullen and others so you would want more teal or one in this sense i think more tailored i think with input from people who perhaps are not  lawyers his treatment providers really to get to know him and evaluate him and see a if he still has these issues after sex offender treatment in prison because he has been attending the entire time i believe is an f b i elkton which is a specialized prison they have a specialized unit for sex offenders if he still needs that kind of oversight is similar with alcoholics is that at the beginning of treatment you may need more structured treatment as people and i say i'm certainly not be done i not favor it anymore when this christian if if there was a hearing where some expert testimony was was provide benefit from a no contact i think that's possible what i was in visioning because he's relatively close to release is having judgment and perhaps propose an evaluation upon release to determine whether those provisions are necessary and then at that hearing have someone who you know recently has met with him say how the judge could be faulted who said she should he should not be allowed to live in the same house with a ten year old girl i'm not sure that judgment actually said that specifically i think that might be the effect of the provision but i think he was willing to reconsider if mr pool think most people would be concerned but if we're rehabilitate tating people in ice and look i don't buy that rehabilitation i don't see any evidence that talking to people is going to change their sexual desires i think i'd have to agree with the government not change but perhaps control i think that's what we have right now with the psychological science that's out there well you didn't control it before you knew that this downloading and so on of pornography was it legal why do you think yes why i think he's going to change because some people talk to some people talk to him in prison or after the prisoner and they say should we do this i think they teach him