morning runners matt campbell on behalf of mr springs and i will be attempting to reserve three minutes for rebuttal ok in this case the district court erred in ordering force medication pursuant to sell  and thereby impinging on mr spring's fundamental liberty interest of his own physical autonomy i'd like to focus my arguments primarily on the first cell factor which is whether the government has proven by clear and convincing evidence that there is an important governmental interest you know this was a tough one because the threat is to murder federal judges and you're asking a federal judge to decide whether or not that's an important interest and we all should recuse ourselves but we i think it's important to recognize several things under the cell framework number one that the government must carry these various factors by clear and convincing evidence and number two that this is not a balancing test that in fact if anyone fails then the government has not made out its case as an initial matter in looking at whether the government is showing important governmental interest i do want to comment perhaps on what judge fletcher was just referring to understandably under case  i think this crime could be considered a serious offense we make no bones about that but where i think in a sense the court the district court perhaps erred is simply saying that this offense generally is a serious offense because that would be true of virtually any case that is prosecuted in the federal courts and the case law has said that crimes against persons can be considered serious offenses crimes against property can be considered serious offenses there is really no distinction there and the vast majority of cases at least in the us and just of washington that are prosecuted are felony offenses so i'm not sure that simply saying this is a serious offense carries the day  but what this court pointed to in part in the hernandez vasquez case was that one could look to the guidelines and the guidelines then you really care a cash there's just a little bit it just is not formulated about whether this is a serious offense the test is formulated in terms of whether or not important governmental interests are at stake correct which is i think overlapping with seriousness of the offense but it's not exactly the same thing and i would ask you to respond to the argument well the importance here may be something like preserving our instruments of justice from threat that may be an important governmental interest understood and i think in addressing that i would probably have to separate responses number one looking at the circumstances of this event the facts are in essence it's alleged that while at a cellular phone company mr springs made certain statements about threatening to kill certain federal judges and certainly we want federal judges to be able to make their decisions free from coercion and the like but i think in looking at these particular circumstances the alleged threat was never conveyed to those federal judges mr springs was not standing at the courthouse door about to make these threats nor was there any proof of any likelihood that the threats would be carried out so i think we can look i think we can look to that second i think we can look in part to this court's decision in ruiz i may be off on the pronunciation but one of the things that it's that that decision discussed is that in if the offense was the result of a mental disorder that circumstance might render it less important that the government prosecute the particular defendant and i think everyone would have to concede that if we accept the facts as alleged any threat resulted from the delusional disorder that all experts agree that mr springs has so when looking at the net the need for the government to punish here i think we have to consider those issues that frankly if this case were to proceed toward trial mr springs would have an excellent defense and this offense if it occurred at all only occurred because of delusions i don't think anybody would contest that counsel does the government have an interest in trying to convict your client as a deterrent to to other people generally from threatening federal judge just ruled i would say that as a general matter the government may have there may be a deterrent benefit to convicting people who are guilty of certain offenses as a general matter but under the specific facts of this case i don't think the government has it would generate interest in convicting people who are delusional and likely not guilty of the  on that i suppose the government could make that argument i'm not sure that i would accept in every case that the government has an interest in preventing people from having handguns if that's sort of the and that they are trying to achieve and again i think in under the facts of our case here where it's clear that someone suffers from mental illness where it's clear that the offensive committed stemmed solely from that interest that the government's interest generally speaking in prosecuting her less and i also think we can't ignore the fact that in this case regardless of which guideline range we look to when the court has said that's a relevant factor in assessing government interesting in force medication even by the government's numbers the guideline range is twenty one to twenty seven months mr springs is coming up on his thirty three years in custody you know have i believe will hit the three year mark on april twenty eighth of this year so he's by all accounts over served his guideline his guideline range while the experts have said that it may take approximately four to five months to restore him to competency there's no guarantee have you explored the possibility with your client in his i'm afraid current delusional state or i mean it's a current medicated state that he simply plead guilty because that may really make let me get released right away i think i'm picking up on the point you just made because if we continue in this fashion he's going to be incarcerated in the best of circumstances for quite a lot longer i think that's yes i agree with your honor factual predictions as to where this will go and that's where i was headed which is even if we get a report back four months from now that says he's now confident that doesn't end the inquiry then we go to trial i mean he's going to be he's go incarcerate for a good long time whereas if you plead he's probably out now he'll be subject to some form supervised release which may or may not be a good thing sometimes is a good thing maybe for your client would be well i think there's a lot of hypotheticals i there which is what i would say is even if we got a competency report that four months from now that said he was competent that doesn't end that inquiry it may very well be that the defense doesn't agree that mr springs is competent and that  only makes my point all the stronger but i think there's some way to end this well unfortunately i think to get back to the question the court had asked and i can't obviously disclose attorney client privilege information but i think there's an ethical issue if at this point we have five experts who have said that mr springs is not competent and if he's not competent he's not competent to plead guilty so i think we just we're we're stuck how they did of those reports i mean if they want to be a competency hearing today might the results be different today than when those reports really read the reports or the reports are somewhat dated but what i would what i would offer is there's certainly no evidence that things have changed delusional disorder typically is a disorder that's difficult to treat and doesn't doesn't go away as opposed to say a drug induced psychosis or something along those lines so there's no reason to think that we're in a different posture today and i agree with judge fletcher's comments that it's unlikely on this posture that this is going to resolve anytime soon but i think the answer to that question is since he has so over served his time and will continue to go past that that's what decreases the government's interest in punishment and as the case law holds there is always the possibility of civil commitment d well i think that presupposes the notion the notion that he's guilty which is certainly a concession that we can't make the government could have that interest but again and under the facts as  forth i think adequately in the record mr springs it's not likely to be convicted of these offenses so while the government may have an interest generally speaking in supervised release terms for people who are judged guilty i think that's a leap that we can't necessarily make in this case and to the extent that the government tries to claim an interest in some sort of supervision in general there are other ways to get there tell me again in a mr wise not likely to be convicted because whether it's the defense doctors or whether it's the government's doctors every doctor has said that he is incompetent and delusional there is no basis from the evidence to conclude that he was not in that dangerousness of mr springs that's really not an issue that's considered in the cell hearing setting and in fact it was already discussed earlier at the condition of his confinement where as you can find and under what circumstance he is at the butner facility medical facility in butner north carolina he is there he has some pretty time he is not being medicated right now so he's just awaiting this ruling on this case for us to proceed further so i'm sorry i just want to see the practicalities of it because i guess he would be found not guilty by reason of a lack of mental capacity because everybody agrees that he did not have the well the government does have important interests as is pointed out what part of all this is a serious crime a conviction on this case is going to result in a conviction which prohibits him from having firearms in the future he's also going to be on supervised release her three year period which also protects the public get it to your maximum supervised release that attaches to this particular it is on this charges your head but the fact that it's not likely to be convicted at all i'm not going to concede he's not there we're not able to convict him we think there's a strong possibility that he will i don't understand the how do you overcome the enormous amount of medical testimony that says he was the company and a guest is a different standard under the criminal law but as a practical matter don't you have a difficult time in the are certainly ways that we're going to be able to prove what we don't have is evidence that that mental defect defense is going to work that he was of such a condition at the time that he didn't know what he was doing so you're successful with this criminal prosecution because of the different standards to be applied here i guess and then you get a conviction and you think it's important to have that conviction because of the fact that he would be prohibited from carrying a gun i don't know if he has a permit but how would he get a permit to carry a gun i mean why are you concerned about the have is that a religion to be concerned that he would have a weapon if he's not convicted it is a real concern this is a man who has spent four years as a navy seal twenty six years as a police officer and was a court security officer at the court where the federal judges are so he may have already permission to have a weapon is what you say he may be lawfully entitled to have a weapon if not for the  and the other the other interest here and what happens is mr springs is not getting better and that's the evidence that was a deuced by the medical professionals that testified once he starts on this medication all the doctors agreed he will have a lot more insight into his condition we think that's an important consideration going forward because once he realizes that he may be willing to voluntarily stay on that medication once he realizes what his condition is the bureau of prisons was very close to having him voluntarily take this medication but it right at the last moment because he had agreed to do this initially he said you know there's nothing wrong with me i'm not taking your medication he take the medication for some period of time and show some improvement and benefits from it he did several years before this incident happened he was diagnosed with bipolar disorder he was on this very medication abilify which is the trade name for era proposal he was on it and mr springs himself testified at these hearings that he saw improvement that he didn't have these side effects that concerns some of the that occur in some of these cases and so that just gives you insight that this is a drug that's probably going to work in this condition on his condition this specific  condition we also ask you the government's asking that you take a look at the the record or the opinion that the district judge wrote because i believe it's one of the most robust position opinions that's out there when you look at gilling water or some of those other cases this district judge was very thorough in documenting each of the four cell factors meticulous in walking through those and discussing those factors and where they are in the record do factor but about the government's interest but the other findings about necessity have whether it's medically appropriate so yes or no we have to prove those by clear commencing evidence of the last three cell factors and we believe that we've done that if you look not only at the opinion that was written but at the evidence that was produced and at the cell hearing itself we had dr bell dr williams d on those factors but this point given the findings that were made doesn't the appellant and it's really more a question for the appellant don't they have to show a clear air around those them i believe they do have to show that and i don't think they're able to because the record is so robust in this case that the record that we produced in a cell hearing which which happened over two different days was very strong in terms of the medical evidence regarding that he would be restored competency regarding these side effects the medical necessity and that it would be medically appropriate we think that that was very strongly established  at the hearing in the judge's judge's opinion reflects those photos that presentation i think i quite agree with you as to factors two three and four slightly difficult factors of course the one with which mr campbell began which is to say what's the nature of the government interest here yes and that's a mildly complicated question because there are all kinds of things going on here i think as in the abstract a threat to our system justice not just that judges but more broadly is that it is not really just a question of the seriousness of the crime i mean there are awful lot worse crimes than a than a threat by a crazy man  there may be a sickly factual propositions judge crack and bush i think is absolutely fine on all of those help me understand more why this is an important government interest to prosecute him to go to medicate him now after all this time i been karsh waiting for i think the likely period of his incarceration if he's convicted already so why do why you medicate him now so we can prolong this process for another couple of years for a possibility of a conviction well first of all because the conviction itself is an important government interest he has committed what i think there's no argument that this is a very serious crime and maybe he's committed and maybe hasn't we don't have a guilty verdict yet made a threat against federal judges yes the crime itself is serious we have to prove he did it eventually but you say that the first factor would be satisfied in every case we're dealing with prosecution and do criminal statute you want to get a conviction so that either way the other way you know we don't believe that's sufficient that the supreme court's waited and the appellate courts after that have discussed the factors or the elements of this particular first factor and not only is that conviction but the chance of the supervisor least and not having the ability to possess a firearm the fact that this was an important one because the supreme court case that says it's sufficient to get a criminal conviction that satisfies the first element just a way of that i don't believe there's a case that says that that is sufficient in and of itself there's of these other considerations that i've talked about and i want to address when the counsel brought up which is that the nature of the mental illness is intertwined with the crime and he said counsel indicated and i think it was well maybe that lessens the government interest but if you look at killing water to this panel or this court said that's not the case it actually strengthens the government's interest because you have a mental condition that suddenly is not being treated so whenever mr springs gets released that condition is still there and it is the condition that led to him the delusion that led to him wanting to go how does that if we strip this case from any supervisory lease and the prohibition  carrying a weapon or you had is an abject criminal conviction is that your argument that that would be sufficient to satisfy the first element well stripping away the two you said there's still there's a deterrence effect the still out there you saying that the criminal conviction itself satisfies the first element in all cases no not in all cases but there are these other situations you're not saying that for all crimes you're saying that for the crime that was charged here  the be some crimes that are not considered serious at all they still may be felonies under the federal code but that may not reach the level of seriousness here this is we considered a very serious offense i think one of things not reflected in the sense in guidelines is that there were twelve potential victims here i mean we didn't want to overcharge twelve counts of this that that seemed a little bit overreaching the criminal conviction is a deterrent and that's what you think satisfies the first they had it is a part of what itself it's a deterrent against other people making threats against brooklyn judges right it is part of that consideration yes your honor ok thank you thank you but let's put a minute on the clock i do want to address this notion of the interest in firearms if we look to eighteen u s c nine twenty two g four that prohibits the possession of a firearm and they use the term mental defective or someone who's been committed to a mental institution so i think it's entirely likely that under the facts that we have here that the government if they found mr springs in the future with a firearm would charge him and he would be they already have a permit he was a navy seal i guess they would have to take it away from him right well i think nine twenty two g four would supersede any permit that he has it would be a felony right now if mr springs are on the street under the government's theory for him to have a firearm so i don't think the idea that he needs that we need a conviction to prevent him from having firearms is true the statutes on the books already do that in all likelihood secondly the gun the government has talked about having an interest in treating mr springs or that he gets better he may realize and then go for with treatment that's a post conviction interest that's not a pretrial interest not point to the decisions that we cited in demaris and how verson for that the interest that the government has is in ensuring that he goes to trial ensuring that he shows up they don't have an interest in treatment at this point that's not a pretrial interest that's recognized by the court this may sound like a silly question but i want to ask a least one is silly question everything becomes you sit in the ninth circuit and you haven't done  think i think the court has explained the consequences of his decision but i don't think that that is the mind set that he was using when he made his decision and i do think the fundamental liberty interest in physical autonomy is break in the racial decision and even at this particular time is what you say i think i would say he made the decision that he thought was in his best interest the one last thing i did want to point out very  briefly is we would refer to our briefing in regard to the other factors i agree with the standard review as was discussed but nonetheless i think what's instructive here is that judge quackenbush largely talked about the benefits of the medication without talking about the side effects several of which as we pointed out in our brief are permanent and could affect both a fair trial and could affect mr spring's life going forward thank you thank you for your game and thank you because united states versus springs now submitted for decision the last case on the