and i'm a clinical professor at the university of iowa college of law and i'm here today to supervise rachelle vasquez who represents along with me nathan all the appellant thank you welcome proceed the argument when you're ready and that podium does adjust if you want it up or down there's a button down there if you want to your honor may it please the court this case centers around the fact that the district court didn't make the proper individualized findings as required by eighteen u s c thirty five eighty three d prior to modifying mr newell condition additionally these modifications are an abuse of discretion because there is no evidence in the record to support it but this court should vacate them position of both the polygraph and the internet limitation condition and remand to the district court pulmonary matter the standard of review is abuse of discretion and not plain error are you sure it's not not is it clear or you know the difference clearly erroneous like the fact finding you know what i'm referring to the d argue that there were facts found only that it can be discerned from the record under thompson for those reasons abuse of discretion is proper i don't mean to i don't mean to torture you just for fun it took me these cases are decided on the standard of review and on the individual eyes assessment the defendant here didn't ask for individual factors or anything like that right but no your honor that's actually incorrect same document page three in regards to the internet restriction there are two reasons why this intersection is inappropriate in this case first the scope  significantly broader than the existing special condition and is a greater issue action than is recently necessary under eighteen u s c thirty five fifty two in order to justify modification to these conditions the court must make individualized findings and consider  that the demand for an individualized review of the natural extension of the general climate that a condition of of no greater deprivation of liberty was recently necessary so simply by raising those objections it triggers the natural extension to have the individualized review treatment as stated previously the government doesn't argue that the district court made these individuals findings but that it can be discerned from the record the government relies on lack of candor and protection to the public in regard to lack of cand no greater deprivation of liberty even as recently as this very and these two conditions answering truthfully to probation and having the polygraph inside the contacts with actual for new treatment does just that again the district court does argue that this new imposition of the polygraph outside the context of structure and or treatment is just merely spelling it out as can be seen in page ten and twenty five of the transcript but that's simply not the case and eleven his condition stated that the defendant must participate in mental health evaluation or inert and or a treatment program this may include participation in sex offender treatment program or any thoughts in my program offered in the defendant's approved district discretion of united states preparations the probation office as a means to ensure that the defendants in compliance with the requirements of defendants erosion or treatment program now in two thousand and eleven although there was and expressed dating and tour that really were under spewed it in just a lot of ways there's like contact that three separate occasions with minors one of which is can only be described as a willful violation  buying of the cookies from the girl scout you know i mean you get you basically seek out this transaction it's not necessary for anything else so you've got that and then you've got the lack of candor in isn't art  around sex offender treatment and so that's offender treatment with the polygraph testing caught these by these very violations and so i think the imposition of this general investigative pyecraft condition outside the to protection to the public outside the nature and circumstances of the underlying offense there's no evidence to suggest that mr knowles more dangerous now than he was originally charged without any of these conditions and two of the contact m itself furthermore i stated previously when the condition one position of this condition will become more relevant is when mr know had completed his sexual offender treatment and then we could get into the discussion condition and again the government doesn't argue that the district court made the individualized findings but it can be discerned from the record the governor lied on the underlying nature and circumstances of the fence to warrant the internet limitation first none of the violations currently stem from the internet and these two conditions are vastly different and for those reasons we asked this court to vacate these and positions and remain for their findings thank you and you'll have a full minute phenomena arguing this case on behalf of mark trammell who handled it at the district court level and wrote the brief of the government's brief in this matter i first like to address a couple of issues that the court has pinpointed first there were factual findings in this case on the bottom of page thirteen of the revocation hearing transcript and on page fourteen the district court judge finds factually that the defendant violated the three conditions including multiple violations of the no contact condition and the truthfulness condition so those are the factual findings the court ultimately based to the modified conditions on after making those factual findings the district court allowed  the defendant to make legal arguments about why they shouldn't be considered violations but ultimately she did find that all six violation dirs all six violations had occurred the other issue is the government isn't conceding that  the district court failed to make individualized findings the thompson case is a backup an alternate way that this court could affirm affirm the district court here there were the findings that were made the factual findings on page thirteen and then the judge discussed the on page twenty five to twenty six of the revocation hearing the judge discussed why those modify conditions were appropriate it's not the most robust record that has ever been made for conditions but there is discussion in this record and furthermore under thompson there are good i usually a little bit more than that review go back to page twenty three as she talks about the findings of fact and i concede that some of them are  unrelated to the particulars she's argued here today but but there's a clear statement that she's making a reference back to the findings because she starts off by saying i reaffirm all my previous findings and then issue kind of goes through it so if you take it as a whole there's there's a there's a more robust set of facts and then at least what was argued yes roger i would agree and of course this court can look at the entire record which includes the pre sentence report and in this case there are a number of factors that justify both the polygraph the expanded polygraph condition if that's how you want to refer to it as well as the internet restriction cases from this court that have approved these conditions look at a number of factors most of those are present here the defendant's offense with the child pornography involved children as well as sadistic imagery he engaged in file sharing via a peer to peer software called blind wire he had a large number of images three to six hundred is what he was sensing enhanced meant that he received what about the evidence on the polygraph requirements what evidence supports that your honor him monitored more closely but it perhaps even more importantly in this case is the defendant's lack of candor the judge found that two of his violations were lying to his probation officer once she made those factual findings that's a reason in and of itself to require him to enter a polygraph and importantly in this case the two violations the fact that he had had contact with a couple of these minor with these miners on two occasions only came out because of the polygraph showing the importance of this condition and the need for it with this defendant  and finally then on the internet restriction the distribution by this defendant is reason for that restriction the when the nationally sentenced he was given a two level enhancement for distribution showing that the court found that he was engaged in the distribution of child pornography via lime wire so the record in this case is sufficient to support both of these conditions it's important remember the judge did not send this defendant back to prison he modified his conditions and those modifications are supported by the record and by the evidence that this court can consider if there are no further questions i would yield the remainder of my time to thank you very much mr bask is i agree that there were factual findings i misspoke and there were no individual i's findings and it is our position that those findings do not support both the modification of the polygraph and the internet condition in respect to the polygraph the government makes the argument that the threat of the polygraph is how we found these violations and there was which is why then position of a more broader polygraph is sufficient but there is no evidence in the record to support that the threat  polygraph itself is what led mr newell to answer to these violations in fact mr knew all twelve days prior to the polygraph admitted to one of the contacts on march twenty ninth and then the other martin for the brief and in fact if i understand the nature of this appointment it's really of the criminal justice act that is correct well listen thank you that's very nice of you all to do appreciate the argument case number eighteen days twenty sixty six is