the next case on the calendar is united states browser health provider selected by the probation department and to be interviewed in fact he was interviewed on on three occasions he was prepared to participate in the program but the program refused to admit admitted in the it pled guilty he was sentenced to a possession of child pornography the point of issue was whether he had to had it for sexual gratification for some sort of gratification but he couldn't determine whether it was sexual or this compulsive gratification crime that he had been convicted of did not require did not require that his possession of the materials have been for sexual he had to say was i just like to look at it well if you're referring to the set of the section in the questioning that that the judge spoke to included in his decision which i believe it to me if i tell you that i have looked at child pornography but that i'm not a realist by it i just like to look at it do i qualify and he's asking about qualify for the program yes so all i have to admit is that i intentionally view child pornography correct the district court made inquiry to make sure that the that the program the person from the program was saying that if you admitted just to intentionally looking at it he would have been admitted to the program but he did admit to looking at it right i was looking or what we're all hearing whether he violated his condition by not participating in treatment his response was well they wouldn't be there the response of probation is they wouldn't admit him because he wouldn't admit that he possessed intentionally possessed the pornography and i thought your response to that was no no they wanted him to admit that he purposes of or of arousal you show and a page but let's go back now we now were pointing you to parts of the record where the facility witness said he didn't have to admit arou would you admit into your program is yes the critical term here your own is today this was proceedings that took place over an extended period of time there were hearings have started back in  this representative of the provider was educated and weak but at one point but at the beginning point she was definitely saying he would not be admitted because he would not at mit that he possess through twenty two i'm looking for the language which he said that at the time it had been for sexual gratification she uses the term sexually   behavior that's that's your statement that i mean it's not disputed isn't it that your client denied at the time he was being questioned for the program he denied ever intentionally seeking out child pornography he suggested if he and he was not in excepted into the program because he would just denying he that he acts had a for a sexual purpose peculiarly and it was the issue was whether or not there was sexual gratification and he denied having a woman from the program was all over the place in her testimony she testified numerous different ways at times she said he had to admit that that he possess for deviant sexual purposes at times she said he had to admit that he in order to be admitted to the program he had to admit that he viewed it for purposes of sexual arousal at one point she  said that he had to admit that he viewed the the but but none of that not even view is part of the charge that he pleaded guilty to that's correct charge that he pleaded guilty to is simply that he possessed or not if it and i don't understand it and i i don't think that she i don't think she ever said that she would have admitted him merely for acknowledgement of possession or that there was evidence that she presented that question to him do you admit that you possess possess child pornography at the time that she was interviewing she did not she did not i think it's very clear that she wouldn't have it that she wasn't admitting him because he would not admit that he had if was sexually going to just use the closest she came i think to to what was within the terms of what of the crime was requiring him to admit that he viewed it and the judge said something to the effect well how do you know that it was child pornography if he hadn't viewed it which is not a logical proposition because one can know from other sources one can know because it's been represented to you by someone else that this is child pornography someone has told you it's child pornography one can possess it possessed child pornography and know that one possesses child pornography without viewing it so i don't really understand i don't understand how there was a legitimate basis how it is a huge and the basis for saying it was his fault that he wasn't admitted to the program and because he refused to admit something that he was compelled by judge by the district judge but it wasn't what you saying he asked if you do if you went out today would you admit him today back at the time that she conducted the interview and evidence it seems to me rather strongly shows that that the reason that she in fact didn't admit him was his refusal to acknowledge that he possessed it for purposes of sexual arousal or to with knowledge of the possessed it for deviant questioned by the prosecutor and he asks what do you what is your understanding of the term sexually deviant behavior and she responds it's an illegal sexual behavior that someone  question no doubt here that your client was not even intentional possession right at ultimately he did but then at the beginning he went through three have you here before when he was being considered for for admission to this program he would not admit intentional possession correct then there was a point in time which he would not admit where to be admitted before they rejected him where did  he he couldn't sat he refused to satisfy even that threshold requirement right and since you point tonight and the question of why the district court is whether he's in good faith comply with the requirement that he participate in treatment and there's no doubt that even if he wouldn't have been admitted unless he said it was deviant sexual gratification he certainly wasn't going to be say that he intentionally possessed the pornography right interviews on the question of whether he would be admitted to the program that's what i believe and i'm going to look for that page reference he certainly admitted during his guilty plea i understand the problem is whether he was withdrawing that mission to the  the court douglas penrose on behalf of the united states i'll pick off pick up where defense counsel left off mr browder did plead guilty to knowing possession of child pornography during his and there's further evidence that that possession was in fact knowing indeed that he sought out child pornography during the sentencing hearing an innocent thing submit a submission he did not at any point while being evaluated by the counselor a then to knowing possession and he repeatedly stated that he had not and never engaged in knowing possession of child pornography that's correct and i would point the court specifically to several references in the record st as contacts to count with counsel who said that she was doing when she was evaluating the defendant is and i quote they were charged with something and they pled to something but are they saying that they actually did it and that's it eighty five appendix page eighty five following on that the counts are stated and i quote stated he never intentionally sought out child pornography now that alone is in france they can be drawn that he admitted it here is why was he compelled to admit anything more than the crime he was charged with and your honor i don't think he was i think he needed to admit knowing possession of child pornography well here at the the closest i don't think you do not i that that numerous times during the testimony the woman said that he needed to admit sexual arousal or he needed to admit deviant deviant sexual deviant sexual conduct in connection with his fans and numerous times she said that it was his failure to seventy line twenty so let me ask you this if mr brown are left here today went to your office and said yes i intentionally v you do child pornography didn't say it was for sexual purposes said i intentionally view the child pornography which you admitted to the program to which she said yes but viewed is not an element of the offense i don't think there's any point at which she said he would be admitted viewed it if that's not an element of the event and i don't think he was compelled so if i if i might with the beginning of your question about the terminology that was used there's a single instance where the counselor references sexual arousal and then later disavows it or at least broadens it but she does use the term sexually deviant behavior illegal sexual behavior and i would agree with your honor that terminology is not consistent throughout a precise throughout however it's very inconsistent it is not consistent i agree with your honor but i would point the court to several instances where the district court cut through all of this so the st instance is during the hearings that took place in july and this is it supplemental appendix page seventy three dollars in the court as does the charge in your supplemental appendix page seventy three  charge knowing possession of child pornography constitute sexually deviant behavior that was a question posed by the district court to which the councilor answered yes and then again and this is now in during counselor says yes and at this point she also draws a distinction between what's necessary for admission and will constitute sexually deviant behavior implying perhaps that the criteria for admission is perhaps and then finally again she's questioned by the court and this is the court that your honor reference earlier if i walk out of here today and look at child pornography is that enough later when the court is making its findings the court does say how do you know we're really not unintentionally not accidentally how do you knowingly possess something without looking at it so the court at least is not only has he has a court directly asked whether possession is enough to which the counselor says yes  also directly asked whether where does it say possession is enough this is again going back to supplemental tonics page seventy three of the july hearings and that's i'm sorry and what line what you're saying is that she said desertion of child pornography is sexually deviant behavior that is correct or that's so and so i mean so you're saying all she meant by sexually deviant behavior she asked him do you admit sexually deviant behavior and he said no and then later and at that bar at him he later says well sexually deviant behavior is possession of child pornography knowing possession possession correct and your on line reference is it's not i mean it is st of all that really doesn't make sense and i would acknowledge that in the vast majority of cases of people who knowingly possess child pornography that involves sexuality on their part but there are instances it is possible to knowingly possess child pornography now having any kind of sexual motivation at all other than perhaps to study it i mean there are people who are who are lawyers lawyers who possess it because they represent clients whose cases involve it there because we've you were sociologist there are psychiatrists who study these things for medical purposes and to to say that that knowing the session of child pornography necessarily is sexual deviation is simply doesn't hold any water but even if it did all she's talking about is when i said to him you had to when we do you admit to sexually deviant behavior what i really meant is do you admit to possessing child pornography because they're one in the same as far as i'm concerned your honor two points not regard that your honor is correct that you can knowingly possess child pornography without there being a sexual component and a number of reasons and you can only possess it without having looked at it i suppose that is true go to if you go to work to a two to let's say somebody in your office wants to make a study of of child pornography cases and comes to you and says and says do you have any exhibits from cases that you have of child pornography can you lend them to me so i can study them and you you give him files from this case that person then knowingly has possession of child pornography may never have looked at it have may return it to you later without ever having opened it but if for a time possesses child pornography without having looked at and your honor again the defendant admitted that he collected child pornography and indeed at the sentencing the district because one of the explanations that was proffered was an obsessive need to collect things regardless of what they are and the sentencing court rejected this and so called urge to collect i don't stand that you know i have it's just that you know everybody hates people who are involved with child pornography but it still seems to me that the law is the law and you have to have appropriate legal reasons to inflict punishment on people and the to the the fact that this person he was lying if he i have no problem with the fact that he was probably lying in these answers that he gave and it and in part he's arguing now acknowledging in a way that he was because he had a petition to overturn his conviction pending but nonetheless i don't see that there's any direc he was rejected from the program because of his refusal to acknowledge something which he was compelled to acknowledge because he was convicted of this offense all that would be would not be knowing possession of child pornography and i don't think you can i mean i would be interested if you can point to it i might stand corrected but i don't think this record shows that that that this person who was the gatekeeper to admission to program that in fact it can be derived from this record that he was not admitted the program because of refusal to admit that he possessed child pornography is the way she described it again and again she put these different questions to him that were going beyond what was in the charge and the closest she came to acknowledging that she would meet him on a proper basis was when she said  other references is enough to show that he was refusing to admit knowing possession and so i don't think this court can conclude that the record as a whole problem i mean one problem with what you're saying is that she says reengage in the behavior that he was charged with but but it was clear from her from from all of her explanations of what she asked him and what he answered and what she meant by those words that that that she views the possession of child pornography as deviant sexual behavior and if she says to you if he says you do acknowledge that you can gauge in deviant sexual behavior and you said no she would understand that to mean you were you you were refusing to acknowledge possession of child pornography is there one in the same thing and your own i don't think the record is clear enough to be able to say that she did not ask you doesn't shouldn't the record be pretty clear that he shouldn't the record be pretty clear before imposing an additional prison term on him i think it should be ended something wrong and i think it should be and i think it is and i think the thing he did wrong was denying the offense conduct and i think the record as a whole well is that he gave inaccurate he denied the defense conduct he gave an accurate answers in order to avoid being admitted into the program correct correct and i don't think that record does have i'm just trying to make sure i understand the record is held there are repeated instances in the record where he where she testifies that he did precisely that he told me all along that he's never committed the crime he was denying that he intentionally sought out any child pornography he admitted to possibly having the possession of it and it unintentionally having possession of the images he did not intentionally seek out the images for sexual purposes when asked to discuss his deviant behavior that he was planning on taking ownership for he reported i don't have any and that was a substantial basis setting at the moment you have to look at them both together but setting a moment aside what the the program required for its parameters of that mission how she expressed then he repeatedly denied engaging in the offense conduct during the interview according to her testimony and my understanding that correct your understanding that correctly and again i think the question then becomes does the record as a whole acknowledging inconsistencies that your honor doesn't value that you've raised doesn't leave this court with a definite and firm conviction that a mistake has been made that's that clearly erroneous standard and i don't think it's been met in this case indicates that ronnie was informed in order to meet the criteria for sexual offender treatment he must having been sexually deviant behavior and he says when asked about the crime motivation and motivation to participate in the treatment he reported so you're saying i need to lie to be admitted and further stated there's no state truth to this charge  kept saying he was challenging the connection yes you are and that he she says that but he also says right do you have to have one of able to answer the question for me where where your client ever admitted  today ninety nine where he says he says at the very bottom of the page line twenty three dollars i would say that he admitted to possibly having the possession but unintentionally having concession of the images that's the whole i didn't realize i had  moment that he wouldn't have been admitted to the program unless unless he meant it that he had possession for personal sexual gratification and knowledge that possibility the st step with your client would have had to admit knowing possession then we would have gotten into the reasons for his knowing possession but if he didn't admit knowing possession if he was denying that why was the district court in you why i mean if that was only step one and he would have had to admit more things just the fact that he wouldn't admit that why wasn't the district court able to say this is not somebody complying in good faith with the condition of treatment to i don't think that you stop at the point should that wasn't the disc she was there was a full assessment here there was an interview and the interview went beyond that step the interview went into was he admitting having a in error in saying i have someone who's not complying with this condition well you want to i mean i don't mind repeating myself on this the reason is that that wasn't the condition in other words if if she had asked him the question that the judge the way the judge posed it at a one hundred and nine a where he says if he shows up today and he says i looked at this would you admit him and he had said no and at that point that's come down and there's a different program that but he is not there's no violation of him this was the last notice of violation he had the st one which was the st case he had in this court and then the had t the nd one a couple months later and that's well back in ninety in two thousand and sixteen and as far as i know in the last four years there's been there's a new probation officer and there hasn't been some of the the animosity that that went on discuss this issue with him because she knew he had the appeal pending and was concerned about affecting his his rights as a poet rights if he was if you forced him to admit to something that was inconsistent with the litigation he was otherwise engaged  i believe the record is he admitted to the possession and he was not all admitted because he would not admit of some a sexually deviant purpose which de off which the misconduct so equated with sexual harassment arous