treatment that mr grant submit to this mcgrath unable testing polygraph testing and that he take all prescribed medication with respect to the police this mcgrath testing the government can see that in light of united subjected to the same type of requirements that this court requires for put this mcgrath testing in the weather decision much less intrusive what certainly must much less physically intrusive i'm not sure that's necessarily much less intrusive into state of mind and that's certainly what the court talked a lot about in the weather didn't we certainly still have the same problems with abel testing in terms of its unreliability that it's  not universally accepted in the medical community i would bring to the court's attention a case which was not cited the briefs district court case united states versus birdsville through forty three subsecond eleven twenty eight from the district of montana which refused to accept able to asking and any evidence of able to testing goes through a very detailed explanation for how does unreliable and law and gold do you have it i take it that one well it was it was a front ninety seven federal appendix seven twenty one and the side of the cases four to forty three the court went through in discussing able testing and also collected various cases from across the country that have not allowed to able testing to be admitted as evidence in fact it discusses one court which compare background which is not appropriate basis for a supervised release condition and if by i would also know that whether or not this court applies the same type of standards from weber to able to test thing the fact remains the government ha the burden of establishing the necessity of the able to testing as a condition of release they said it had no evidence whatsoever for why abel testing was appropriate in this case in fact the probation officer in response to our objections gave detail to the polygraph testing this course this is an answer lopes really recognizes that's an individual has still has a fifth amendment right in the course of sex offender treatment through refused to answer questions that might tend to specify what those medications might be certainly there is nothing in the records to indicate that he had ever been required to take any type of medications the fact that this has been ordered as part of sex offender treatment raises serious questions as possessing any pornographic materials that the picture describes sexually explicit conduct as described by statute as determined by the district court this was not the original condition proposed by probation and we had objected saying that it was overbroad that it included things like r rated movies anything that had a simulated sex scene and it the court pretty much agreed with us that it was overwrought to that extent and so in an attempt to clarify it's the court indicated that it would she would not judge judge john carter would not violates him for human already movies but he did not amend the conditions to make that clear and certain very possible that mr granting can be supervised in a different district the court also added the term pornographic which this court in fact the article has said is a vague term so the court an attempt to clarify that this should really only appl still uses the term pornographic materials so i think it's it both ways are trying to clarify it but in the end it's not entirely clear and the court itself acknowledged it's not really clear which is why you know i'll just have probation submit something that it thinks might be objectionable to me and i'll make that's terminations but that doesn't give mr grant any notice of what might be objectionable and with that i'll reserve honors my name is richard lee i represent the united states of america i want to begin this morning discussion with sort of a general philosophical view of what the purpose of supervised release commissions are the purpose of surprise release finishings is not to be punitive to the defendant once he's released from prison it's to achieve three goals set forth in the statute deterrence rehabilitation as well as protection of the public and specifically the condition relating to sex offender treatment goes towards the goals of rehabilitation and protection of the public if you believe that a defendant of this nature who commits these sorts of crimes can in fact be rehabilitated the district court has to give the treatment providers the tools that they need in order to achieve that rehabilitation it is seems to me a untenable position to handcuff the treatment providers by not allowing them to have the tools that they need to provide the types of treatment and i think defense position when taken to its logical extreme abandons the notion of rehabilitation under the guise of we need to seek the least restrictive alternative this is the case that deals with a sex offender who victimized an actual fifteen year old girl and i know that during the opening remarks mr libby referred to the fact that his client was not a pedophile and that he's not an admitted pedophile and there's nothing in his background that would be applicable to that but i would take some issue with some of those statements at least the strength of those things and i think that in this case the  purpose of placing him in sex offender treatment along with the conditions of subjecting him to objective testing such as able to sing a polygraph testing as well as medication close towards that ultimate purpose well since this is case was litigated in some sense was imposed we have an open sided webre was decided what would be wrong with just remanded to the district court for reconsideration of those conditions in light of analog and whatever articulated as to their justification in the circuit as long as they are recently related to one of those three goals i mentioned earlier what we really have and weber is a exception to the general rule and that's because it look it's a particularly significant liberty interest in that regard and with regards to analysts i think that this situation is distinguishable from the facts of analog there are a number of reasons for that which are so forth in the government's brief but just to briefly address the court's concerns this isn't a situation like it wasn't an elopement where he refused to answer questions the district court in that speech situation then gave him a penalty for exercising  fifth amendment right we don't have any of those facts here we don't know if that's going to be a situation that's going to arise and so it seems to me and i necessary exercise to ask the district court to clarify both on a more defensible position that's a possible outcome to that's true but i don't think that the district courts position needs to be strengthened because the district court should be given deference to impose those conditions where they don't and a strong reaction in people particularly because of the design of the test and what it measures the duration of the test asked specifically in addressing how significant that in fact is on a person's liberty interest suggest whether it's medically reliable whether the results are are useful they inquiry really is is this the test that impacts a particularly significant liberty interest and if it does then we're going to trigger that exception we're going to trigger that higher scrutiny that's simply not the situation here or a liability that is going to things like i mean you're you're opening where you say we've got to give the t the case that was present for the first time this morning i think that there is literature as at least the weather panel pointed out that goes both ways that address that criticizes the reliability of able to us in addition to other authorities that applaud the use of the able to us so i don't think that's i don't think it should be assumed that people test is called junk science you know that i think what gives me pause and i've not read the case either but if it's in fact a the context of that decision i don't know what the purpose of it is i will say that with regard to sex offenders treatment it is generally insufficient to rely soley on their own self according people trying to minimize their involvement in the offense people tend to just frankly be less than candid about it and you need some of these objective tight measures able to sustain polygraphs to confront these individuals and to get them over that initial hump of denial so to speak to to get them to recognize that there may be some issues here and then address those with with treatment proper treatment methods to teach them avoidance issues to try and get away putting themselves in situations where they of total rehabilitation and i think that is the quote that's cited and in recognizing that these tests and that was briefed to him that these tests have some use to him i think that is the basis in which he made that decision i would like to spend a little time on the medication plantation with regards to the medication this case is a far cry from the facts set forth in williams williams involves a defendant who was in voluntarily medicate with anti psychotic medication pre trial he was sentenced to a term of time served and is supervised release condition was immediately to be imposed which was to continue that involuntary medication but they're not findings here there are no findings here this court can affirm the district court's decision because especially on this particular field with this particular district court judge the states repeatedly throughout the record that you always have an invitation to come back to court and to to tweak the modification to tweak the treatment modality i think he says that that's the excerpt of regular page one sixty three you always you know that you have an open door if you just agree with the treatment modality and this particular statute situation the air if it is in fact air doesn't affect the integrity of the process or the fairness of the process i can't say that it would be plainly erroneous assuming that the medication commission's work in  well and you know this and i want to emphasize that this really is a different case than williams this is a case where you would be asking a district court to anticipate what treatment drugs he may as they got burned of the government but i want to clarify what we're talking about here even though the williams decision discusses psychotropic medication if you limited that definition to strictly anti psychotic drugs and anti seizure epileptic type drugs so how do we know that they won't be impressed crack in this case i think it's more of a notice provision to the defendant that as part of your treatment you are going to have to comply with all aspects of the treatment the objective testing as well as the medication and potential uses like a truck with can we don't know so how do we know we're not going to be doing well what we would do with that particular situation is this is an outpatient procedure operation treatment there is no information treatment here he would be upset prescribe medication he refuses to take it what would happen is they would go to the district court and say he is refusing to take the medication at that point that the a violation of the supervised release at that point and he could be he could be current incarcerated for that sure about the future as you are you know how do we know also i mean you seem to be and judge carter's person great good well i think everybody can put attest to that but we don't we don't judge that based  given under green for any condition that's imposed unless it meets the high standard of williams and whatever that's just simply not true when one reads the written decision what this court said was no justification is needed so long as it is clear from the record why the court imposed a particular condition so if the if this court can look at the entire record and can look at what the probation office recommended and the basis given by the probation officer for that recommendation then this court confirmed without a specific