morning your honour's may please the court my name is david mercer and i represent the of helen gregory thomas in this case this appeal arises from the district court ordering that mr thomas be civilly committed suman to eighteen u s c forty two forty dollars such a civil commitment is in reality a potential lifelong commitment bureau of prisons and the day to day reality of such a commitment is indistinguishable from the criminals and in civil commitments are a serious deprivation of liberty given the dire consequences that flow from such a bet that congress in drafting four thousand two hundred and forty six made sure that such commitments would be based only on a clear convincing evidence close and requiring the government to prove the elements to that level of approved means you have it pursuant to the statute there are two elements that the government has to prove to that level the st element is that the defendant suffers from a mental disease or defect and secondly that the defendant is dangerous to society as a direct result of that mental disease or fact in other words there has to be some possible link between the mental disease and the danger that arises from that this court has previously stated that there must be a direct causal connection between the middle disease and defect and the defendant's dangerousness and there has to be a substantial but the defect has to be a substantial cause of the danger when read together the statutes and cases would require the government to prove those elements were very high level because what's at stake is substantial liberty now in this case the district court made a finding that mr thomas suffers from mental a mental illness and that as a result of that mental illness he's dangerous the standard of review in this case quite frankly gives me an uphill battle the standard review in this case is that i have to show this court that the district thing the corps to do to really adequately phrase the issue before it is whether the district court clearly err error in finding clear and convincing evidence i think that's the most accurate way to state the issue that this court has to resolve in turning to the evidence in this case and two to two elements that are required for civil commitment as to the st element whether mr thomas suffers from a mental these are the fact i don't think there's any question that he does there was before the district or unanimous expert opinion that he does in fact suffer from such a disease or defect and specifically the finding of all experts was that mr thomas suffers from an unspecified neuro cognitive disorder and borderline intellectual function so in terms of the district court's finding as to that st element there is no dispute that that is a proper finding by the district court the conflict however comes in with the findings as to the nd hour which is whether there is direct and substantial evidence that mr thomas's mental disease or defect causes him to be dangerous in looking at the evidence in this case there's many ways to view it there's substantial documentary evidence both at the risk assessed as assessment report that was authored by all the governments experts is before the  dr richard richard near also as an independent expert by a written report with his findings and then there's also about one hundred and sixty page transcript of the evidence that was argued to the  ultimately before the district court for this court to rely on its the law to summarize in terms of a sufficiency of the evidence argument i suppose from my viewpoint the best way of viewing the evidence before the district court is to break it down into discrete time period before the district corps was a time period before mr thomas was indicted in federal court his indictment in federal court occurred in january of two thousand and thirteen and so one of the periods that was examined not only by all the experts but also by the district court was his behavior his actions his circumstances prior to his january of two thousand and thirteen in this time period the experts wrestled with some of the issues that i believe never rose to the level of clear and convincing evidence that mr thomas violent as a result mental illness one of the facts that all the experts looked at looked at was diction that mr thomas suffered for sexual assault government's experts relied on that by assuming that that was violent in nature however under cross examination the government's experts conceded that there really is no evidence as to the specific factual nature of that prior conviction nor is there any evidence that that prior conviction was caused by mr thomas's mental disease or  so the district court was left with an assumption about the nature of it and the invention that occurred about thirty three years prior to the indict and yet the government's experts found that to be highly significant in their finding that he has a history of violence which of course is an important factor in deciding whether he has a future risk of mr thomas also had a two thousand and two  charge that did not result in a conviction and again under cross examination there was no indication that that that had any violent component to it nor was it linked to his mental disease or that there were three things that the experts in the district court relied on in finding that during this pre indictment days that mr thomas had some indicia of violence one is that he had a history of fighting when he was around nine years of age and elementary school  grew up in a really tough disadvantaged environment and not too surprisingly at nine years of age he engaged in fistfights mr thomas then went on to have a twenty year professional career as a  boxer team also found that to be significant in fact they phrase part of their findings as mr thomas would get his desired goals whether it be of winning a boxing match or some other goal by violence and so they considered his in relying on this and i believe the risk assessment team relied on this heavily they did not take into account that mr thomas is presumed to be innocent and he has a right to remain silent on those allegation and in fact it's very interesting in their findings they found him not to be the facilitator of the insta muffins but rather to be passively caused to engage in criminal conduct by his longstanding param or of twenty years  court's question doctor to me or found that he had a potential for being manipulated and that in this specific instance of the allegations of the indictment it is paramount more than if you later him for her criminal  that would be difficult to replicate in the future and so his susceptibility to be nippy lation was very much confined to disrelated unship with this woman and dr de mer did not find that that extended into the future because there's assurance that such a similar relationship with her in the future now that well i don't want you to run out of time without addressing this particular question as i understand  significant question in the case has to do with the court giving more why to the government mental health experts opinions as opposed to doctor to me are right yes and in that regard the thing that sticks out to me a fact that the very conspicuous here in trying to to to weigh the two opinions is that as i understand it dr the mere stated that in fact repeatedly stated that he had not reviewed mr thomas's underlying a fan's conduct and stated that that that information could change his opinion at me as if that and that kind of a really heavy increase he said to begin you have an uphill battle doesn't that increase the slope a little bit that  statement i would disagree with the court on this regard when dr drew we are drafted his written report it is in fact true that he did not have those records however those were supplied to dr b or prior to his testimony and so the court had before it is oral testimony after he had been given the chance to review those records and his testimony at the evidence you're hearing was still that mr thomas was not an edible even after reviewing those rare and so i don't know the government made a big deal out of that in their brief but i think that that potential problem was solved by him reviewing those records prior to his testimony as to the timing issue and i think this is really the core issue of this appeal both the district court and the magistrate's report and recommendation made a direct statement that they discredited dr de meres testimony and credited the government's expert's testimony because the government's experts had substantially more time to be with mr thomas and to observe him i believe that that is an inappropriate and really an unassailable position from the defendant stand the only option i could ever have to combat that reasoning is to ask the court to appoint my expert to reside at the bureau of prisons for six months or more and be with mr thomas at a level that's a minister in with the government's experts and even that wouldn't be satisfactory because any time that my expert would have to do that would also be credited to the time that the government's experts had to observe mister there is absolutely no way going forward from this case that i could ever hire and use and put before the district court an expert that will be viewed on par with the government's experts if that is the standard but i'd like to save a little bit time for a bottle but i  court my name is cindy hyde i'm an assistant united states attorney from springfield i represent the united states in this case i agree with mr mercer that there are two timeframes that are important here and i think that it's important for us to start with the charges that were filed against mr thomas in two thousand and thirteen in the eastern district of ania he himself was charged with twenty one dollars violent offenses which included kidnapping forced labor hate crime fought with a deadly weapon and involuntary servitude of another human being mr thomas and his common law wife as well as other coconspirators are involved in a crime where they kidnapped mentally disabled people and they collected their disability payments mr thomas his role in this conspiracy was to be and in force or he controlled the physical beings that were being kidnapped he put the locks on the doors he nailed the windows and in fact physically beat the people that were not complying with the wishes of the primarily his common law why mr thomas was set to plead guilty in this case as the other sentences but at the hearing or the plea of guilty the district judge became concerned that mr thomas was unable to effectively communicate with were his attorney she ordered that he be sent to springfield for a mental evaluation that was the initial time that mr thomas spent in springfield and in that mental evaluation they found that he was incompetent to stand trial and was not restore able to competent after that finding was made the district torn in pennsylvania then referred him back to springfield bore a four thousand two hundred and forty six mental evaluation that's the nd time period that's important in this case the medical center as you're well aware has experts that work with these individuals test them in the records replete with the tests that were done all the documentation that was reviewed by the experts in the risk assessment an in this case understood that mr thomas did have a mental these are defect and that's the end specified neurocognitive disorder that mr mercer mention this case turns on the fact that the experts disagreed as to the impact on the future behavior of mr tom as you know judge rest held an evidentiary hearing in this case the evidence again is fully set out really by both briefs doctors chavez and brandt testified on behalf of the united states and argued that in fact mr thomas was a danger and should be committed under forty to forty six doctors a mayor as the court has noted did not have all of the information and the written information about the crimes when he evaluated mr tom and it's clear from his report that he knew that what he was charged with because the name did on the front page of his report what he did not have prior to issuing his own report but some of the underlying documentation which included a really lengthy description of the crimes by linda west common law wife and it's a horrific a calles of what happened with these individuals and that is the missing piece of the puzzle that dr the mere admitted he didn't have now as as mr mercer has mentioned it turns on the  mr thomas was manipulated by his common law wife there is no question that all the experts agreed that he could be easily manipulated but where the experts disagreed was that united states experts believed that he's so susceptible to manipulation that if we were to release him he could find himself right back in another similar situation where a person who was really important which makes him also stood up to bowl to the manipulation and the fact that he used violence to solve problems contrary to what mr mercer has said there's actually more evidence of that and the  alleged rape and that type of thing he pled guilty to the rape and whether that was violent rape or not violent rape the panel of experts for the united states was very concerned that he wouldn't acknowledge that he had done it but he had fact guilty to it and his history of violence continued up through the time that he was in being evaluated for the forty to forty six because he was using violence to enforce whatever linda weston wanted the kidnapped individuals lifelong civil commitment is is that the government's position no your honor and i believe that what they are somewhat we are summarizing on page eight was the diagnostic testing that the government experts did it's just one piece of the puzzle i believe on page six we and the emirate that is the historical clinical risks being twenty version three which is found at the joint appendix fifteen to sixteen and so i think that that is and summary of what the risk assessment panel evaluated when they were looking certainly are the fact that he was a professional boxer would not lend itself in an itself to a violent tendency but the fact that he did use violence later on in life with regard to the individuals that he had kidnapped or assisted in kidnapping and keeping them in the home but that's not how it was brief don't i understand your honor i believe that that was and i don't remember what the actual report said but i think this is a summary of it certainly as one factor that we c i did want to mention just briefly the issue that mr mercer mentioned with regard to the time that the risk assessment panel was afforded versus that of dr that near certainly mr mercer his points are well taken that obviously the government's going to have more of an opportunity to spend time with the inmates whether or not they are forty dollars to forty six dollars civil commitments or in the actual committed but i do think that the brief and the argument over the emphasis that was placed on that by the court because when judge rush wrote his report recommendation he did know that the government experts had been significantly more time evaluating mr thomas but then he went nameer himself did not say that dr nameer was also convinced that this man suffered from a neurocognitive his order he just felt like he had a better chance of not being manipulated and the district court disagreed with that position i don't think that clearly of erroneous standard has been met in this case and for that reason we ask that the judgment of the district court be a very briefly iran are going to respond to a couple of things that the government argued i think it's misguided to continue to try to lock dr clear and to his statements in his written report about not having access to the mental record to the criminal records if the court was to look at page two hundred and two thousand two hundred and five the transcript the government asked dr tamir if you have had a chance to look at these records and discovery that support the criminal charges and he said yes and they were asking did it does it change your opinion he said no so he got a full and fair opportunity to look at the discovery in the underlying criminal case and he stuck by his findings and his opinions and conclusions in his  report the nd thing that i want to bring to the court's attention is that i think clearly his experience and profession as being a boxer for twenty years was considered to be a factor at least by the government's experts they very clearly in the risk assessment report indicate that his use of boxing to achieve goals was an indicator that he had a propensity for violence and then last i come back to the issue of time given to the experts to evaluate mr thomas i don't think that this court and i don't think the discrete district court could deny that it put a lot of emphasis on that time disparity in  expressed finding of the district board and the magistrate judge was that it would accord more weight and that's a direct quote from the opinion of the district court in the report recommendation and it would accord more weight to the government's experts because of the time that they were given to observe and lesser other questions by the court i will yield the rest of my time thank you very much thank you thank you counsel for your arguments cases submitted