which are in excess of forty to forty one's clear four month limit the section forty two forty one commitment order was violated when it expired on march twenty first two thousand and fourteen and was never properly it's let me  certificate so what happened is there was the four to forty six evaluation court order we received a letter and a copy of the evaluation the letter said pursuant to this court order we completed the evaluation and that was also sent to the court in missouri and so as of right now there is a court case in missouri there is a judge assigned and a public defender assigned but there's no hearing set for the forty to forty six petition i do know the public defender either was going to or has filed a motion to dismiss that petition so what did the what was what was the evaluation do you know that was he was in fact found interesting ok so when it happens next there in springfield  what the public defender told me was that usually by now they would have held a hearing and at that hearing they would have started to start the process about you know whether or not the court was going to find him dangerous because of this appeal and because of the issues raised there and the public defender has taken a different route has made the court there aware of this appeal is trying to see if there's any way he can attack not the order he doesn't think you can attack the order but the petition so that's what's going on there so by now there usually would have been a court date to begin t forty two forty six hearing on the petition but because of the situation the case is not going the norm in the normal course no date no schedule no nothing nothing scheduled so sorry so what are you attacking here and i'm attacking both orders the forty two forty one commitment order it's both the violation of that order as well as the de facto extension without any of the proper findings as well as the forty to forty six commitment order so what really do you want here i would like this court to vacate both orders and order mr vegas immediately released but how can we do that given that there's been a finding of dangers snus by the institution now everything that's happened in this case has happened as a result of the original violation of the forty two forty one order and so if that order was violated it was invalid it was improperly extended that a forty to forty six order should never have been issued but even so the forty to forty six order was improperly issued in violation of the statue first order you're saying was improper because i mean he was held for more than four months and the issue there is whether or not the time runs from the date of hospitalisation versus the date that the order was issued right c order and the second problem with that is that even looking from the date of hospitalisation he was held longer than than the four month period even if we look at let me answer that there's two levels to that what the statute says what the language of the statute says is that when a defendant has been found incompetent the court shall order them into the custody of the attorney general and the next sentence is that the attorney general shall take that person into his custody and so even if the clock even has that one hundred twenty days in the second sentence you were to find that that that begins when the person arrives then that that statutory command has now been violated that the attorney general shall take that person into custody into custody excuse me  but then the second problem would be and so that would be a violation from that from the beginning from november twenty second if he was he was the transfer to missouri was the light of the violation of your honor i would not call this  a delay in transfer of this wasn't a martial issue this was a situation where very purposefully mr vegas was left in a local detention facility not receiving i was being in custody the attorney general i hope the government can answer that but my understanding is that because they have so many mentally incompetent defendants right now there is just they don't have enough federal medical facilities they do not have enough beds and so they quite purposefully leave these people in local detention facilities where they are not being treated and till the attorney general sees fit to python the attorney general controlled the detention facility that's correct your honor i think that the government has a lot of options here they could open more federal medical facilities attorney general when somebody is ordered for treatment pursuant to section forty two forty one the point is that they are there we are supposed to treat them to see if they can be restored for the purpose of going to trial when someone sitting in a local tension facility they're not being treated so is your point so that's your point is that he was sitting in a local the local facility without any treatment that's part of it your honor is it was he being medicated when he was there when you say he wasn't getting any treatment what does it mean what this court has said in making what happened in this case is springfield to at the medical facilities they have more options they can do hearings about involuntary medication they can request a cell hearing but let me things automatically that's correct so let me see if i can understand your argument so you're saying the violation was of the second sentence because it says the court shall commit the defendant to the attorney general and the next sentence says the attorney general shall hospitalized the defendant for treatment in a suitable facility and you're saying that's a one hundred and twenty day cap for the purposes of restoration and that it can be ended early if that if the evaluation and early but that is a cap and to extend that cap there has to be some information from the medical facilit to justify an extension saying that there is a substantial probability the person could be restored this strikes me when and number of situations we have with our government having insufficient resources to  do you agree with that i do your honor i agree with that wholeheartedly and i think that the government has a lot of options but the only option it doesn't have is to take that out on criminal defendants and and force their case to sit there to be unable to go forward to be not able to get treatment that's not a solution so since since the statute doesn't just his says he turning general is shall take him into custody doesn't say immediately and you know it's not going to happen instantaneously right because not everybody is right next to springfield so if you if you're going to take at least a couple of days so you're reading a word into the statute that is there is here's my question why isn't the real remedy in this speedy trial another words you convince the judge to not exclude the time that the person is being held in the in the local backward knowing what you know now i'm talking about looking forward no question that just because a criminal defendant has a similar rights under two different statutes doesn't mean that they can exert their rights separately and so it will always be perhaps if someone until somebody gets around with doing something seems to me it's a self defeating argument well no your honor because what i explained to the district judge at that final hearing was that under the statute he was still there the criminal charges have been dismissed because of reasons of mental  competency and under the statute the federal medical facility the director had the right at that point to issue the certificate and if we look at the timeline because mr of us had never left there was a ton of time that he was sitting there not being evaluated in which the evaluation could have been is that the district judge only ordered mr godin as artie's back to the facility so that the facility could decide if it wanted to do an evaluation if appropriate and gave a specific amount of time forty five days for the facility to make that decision that wasn't what happened in this case in this case the district judge appeared to agree with me well go ahead go ahead mr vegas never left the facility and her order didn't say if appropriate conduct this evaluation you have forty five days and i thought  was not competent to stand trial and they and that he needed medication and they wanted the and suggested the district court do it so hurry because he wouldn't take his medication and so they wanted force or an order forcing a district court judge supposed to do i made my arguments about the what was it director supposed to do back and i mean are you asking me what would have happened if she had not ordered an evaluation of the you're saying that the district judge didn't have any jurisdiction at that point so what should the district judge done when the government came back as it were dismissing the case which the district judge had done at that point if the district judge had done what i thought she was going to do which w reasons of incompetency and at that point the question would have been you know was this appeal nude and was now everything out in the western district of missouri the logic of your position is that the answer would be yes right because you say that the district judge didn't have any jurisdiction district judge should just dismiss the case that means there's no case in the southern district of california anymore but if it just occurred to smith's the case he should have been released because at that point there was no determination of danger right i think that's what likely would have happened at the federal medical facility since at that point they hadn't decided to do a forty to sixty six evaluation even though they had the time and the authority to do so but because four days later so she issued the order for  four days after that four days after that well guess what how did she have authority to do their thing she didn't have jurisdiction anymore to dismiss the case i called the court to ask for a hearing about the order to put forth all of these arguments and i didn't put them forth at the original not sure i didn't have you didn't expect that order to come in other words it was included in at the hearing that you had on the dismissal but absolutely not at the at the final hearing she said that she seemed she said sounds good to me she seemed to agree with my argument that she didn't have to do anything for i was only have one last question for  you hadn't issued that forty two forty six order and he still back in missouri could the director back there could the facility back there go ahead and do on their own go ahead and do a forty  forty two forty six determination under the statute the director had multiple reasons why he could have because the client was there originally for forty to forty one he could have because the case was dismissed purely for reasons of incompetency under the statute he could have he had plenty of authority to do so and he also had plenty of time previously to do so so then what's wrong with with his certification were because we do know that he did it exclusively because of the order that that my district judge issued and he said so courts should be aware which is this is when i was preparing for today's oral argument i i was looking at the docket for the question discriminatory and found that a motion to dismiss had actually already been filed and i have copies of those if your honor for like to say i had a public defender there by the public defender there that the government's opposition is due on december first so there is a timeline that's in this just happened to zeke we looked within the last day and couldn't see anything like the motion to dismiss was filed on the twentieth of this month everything was under seal which is also why it took me a little runners are reviewing that as you'll see a lot of the same issues that are addressed in this before this court are being taken up with the western district of missouri to it looks like it raises the jurisdictional issue about whether the district judge had the authority to do the forty it does raise the jurisdictional issue but but what i will say is to that point is for purposes of this appeal we can assume that me assuming arguing to that whatever the district judge here was improper let's assume for argument that she had no jurisdiction and that she couldn't do anything once that honor and there's a statement that the judge made in that i don't think you're sensitive but she said it in a in the context of a sealed order so they can't discuss it unless we have sealed but what i can do your honor is simply refer the court to the twenty two but the important point here is that this was sort of an advisory request the director didn't needed and it was all it was almost a comfort order by springfield to ask this district district judge issue a request for an examination will it certainly wasn't necessary so the defense counsel says that the medical director the medical facility acted only because there had been this sort of from the judge so if the judge didn't have jurisdiction if you take that of the mix what should we assume would have happened i think that that is an assumption that's that's speculation frankly with respectfully i think one of what has happened is that had the judge said i can't do anything here point the only reason forced him to have medication right correct they were waiting to see if that was going to happen correct in that way and i went back to san diego that's well that is definitely one of the things i could found him not competent to determine problem was and they said well he needs medication i take it to force the senate back to san diego for the for his own hearing among other things i think there was also in that request for in the individuals who have been deemed incompetent so what are they doing with them in some certain sense instances the detainers are being lifted and individuals are released in their communities but that's also why we have this backstop of forty to forty six to say wait a minute something like that shouldn't happen there may be a gap period between to determine that some of the determination that somebody is not restorable and the actual certificate it is then determining somebody to be dangerous but that's why we have the forty to forty six remedies so it's very general policy and that is the practice that's going on here the government's acting in accordance with on what one i don't want to speak to the policy just was typically unless i'm absolutely certain what i'm talking about here but i can say that good dean is the ninth circuit opinion good team as are cheese does specifically give that off the reservation for the detention of individuals in that gap period between the finding of non restore ability and the determination of dangerousness so to the extent your honour's asking you know sort of what the policy is i think the policy was to follow go d which says it is appropriate to hold somebody it for an interim period in turn the until the determination is made so in the in the communication back to the trial judge where the director of the medical facility had suggested so hearing the director also made some reference to forty to forty six the term honor and i'm looking at the you know i have it here there is that there is that suggestion but that seems to that seems to suggest that they were expecting a court order why would they do that when they when the statute gives in their own authority to  conduct a forty to forty six determination i don't speculate in your honor but i would say comfort and that had the district judge not acted they still would've you know i mean there's nothing in the record to suggest that they would have done not acted for acted otherwise but what is clear is we do now have a petition that was filed as of october first in the western district of missouri where there has been a determination of danger in a sense under forty to forty six files that petition the united states f if the court decides to ditch the district judge and have determined discretion to issue the order i think it's sort of without effect because forty two forty six would allow them to have done acted regardless of the issue and remember the order here is only  order for an examination i want to be very clear that the examination itself is not even necessary under forty two forty six if we look at forty two forty six the language there is a separate provision under  subsection b which says prior to the date of the hearing an examination can occur but it is absolutely not necessary to direct or could have done this with or without any and even an examination paper say fact is he did pursue it perhaps the district court judge didn't defendant's been committed under forty to forty one d now that's good enough i would say yes but i would also rely on the next phrase which is critical here or against whom our criminal charges have been dismissed so we for the reasons related to the mental condition of that person so it assumes that we have cases where individuals the case that the criminal charges have been dropped based on this issue just like happened here then what happens we have somebody that the criminal case does not exist and we still have the authority under forty two forty six to hold somebody and create this  determination how about now to move forward a little bit to the forty to forty one where he was held at a local facility for about three months just over three much before he was transferred to missouri now that's a fairly significant amount of time that is what do we do with the issue your honor it's no doubt that it is a significant amount of time and the remedy here is well first of all that's an issue that's not directly before this court but there are cases in the united states submitted a request for judicial notice of where that particular issue will become ripe and before the court and then at that point they did to do court will be required to do i think that he was in front of because her argument is assume is that the the forty four month period began to run as soon as the district court in her disorder committed to the order commits the defendant to the custody of the attorney general for purposes of a forty to forty one evaluation i respectfully disagree that that's the issue the issue here is forty two forty one d and whether quote unquote hospitalization begins at the time of the entry of the original order or the time of actual hospitalization what happens during pregnancy should begin you know begin should begin to run at the time of the order so that the problem is we're conflating are conflating issues because when you look at the speedy trial act there are actually two particular provisions that haven't been at all briefed by other side in this case as to whether time should be excluded and during that part bring up or period i need i have to go back to you forty two forty six if they think there is a problem with your reading and that full the full sentence because sense about to expire committed to the custody percent to forty to forty wendy or against him all criminal charges have been dismissed and one of those categories solely for the reasons was mental condition so if they say if he certifie that that person and then you go to the next cause is presently suffering from a mental disease or defect as a result of which is released we create a substantial risk of injury to another person for serious damage that's th gives that the director there already to hold him after during the period time after the criminal charges have been shot and before doesn't doesn't forty two forty seven put time limits on when all of this is supposed to happen once the certifications issued it does once the certification is issued but that's why we also have the the hippias relief in the event that the court's concern is nothing's happening during that gap period there's a habeas relief but here something has happened there has been a petition on october first and there's been a motion to  it's forty forty two forty seven b which is essentially the procedure says that if you have one of these forty to forty six orders the court may commit the person to be examined for a period of it's either thirty or forty five days and then there's somewhere else in that statute there's an overall time something about one hundred eighty days of nothing to happen within one hundred eighty days you can come in and ask to be released i think it's later on it's like forty to forty seven h or something like that so it's not like it's not like he would be sitting there ind y there's there's some statutory control over the length of time obviously you know somebody have to be acting on his behalf but he's going to have a public defender yes your honor i'm looking at forty to forty seven each which confirms that i guess not to be shifting around too much but returning back to forty to forty one i guess your point isn't the speedy trial at that period of time that in this instance thirty plus days i guess under all the circumstances the district court judge could find good cause to exclude that time well i forty thirty one sixty one subsection four specifically says any period of delay relate resulting from the fact that the defendant is mentally incompetent or physically unable to stand trial is exclude years before sending him i got agree that you're going to mind my argument certainly isn't the four years and it's certainly not an indefinite amount of time but there are cases that have held that six months is appropriate we don't have that here we have just over three months and but again this is a this and we said for months for good during that for the first part of the forty to forty one detention that's for the hospitalisation serial the congress seems to have you know four months seems to be out i just wanted to point out that the language in the letter on the forty two forty one evaluation that talks about a cell hearing are possible forty to forty six evaluation if you compare that letter to the letter in mr morality his case which was submitted it's exactly the same letter it's a form letter so there is nothing particular i was just to mr vegas about that letter and about the necessity for forty to forty six valuation the other thing that i would say about the speedy trial issue i maintain that it has to be parallel timelines to separate rights because now you're talking about people who may never be restored and that's very similar to what happened in jackson but the second thing is that at the district court level the government are is arguing that none of that is excludable under speedy trial anyway making it impossible for criminal defendants to ever bring any kind of are not impossible that for them to argue but basically saying that that's not a viable argument so they're saying it's not excludable under speedy trial it's not relevant under this statute is you know that's not what they're arguing at the district trial level they're arguing that it's