you double header today right preliminary prognosis reports within forty five days of his rifle by my calculations that would be may tenth what i was supposed to do with mr brown and that's my problem i mean if if everything you say is correct and the government has no right to continue to hold him because they he's never going to get better what do we do we don't want him out on the street again  this probably ends up or should end up in some sort of a civil commitment car so how do we get from here to there well i mean i think that i'm not that familiar with new york if the district court have to do it i don't i don't think so necessarily i mean i think that in most states any way anyone can petition for civil commitment on the ground that you know a person has within the recent past committed an act that is a danger to themselves as a result of the do it some someone has to make that petition and it goes to the state right not the federal government i think that's right except that i will say that in this case they're just procedurally as is and out on this point which is that right now whatever i say here today mr brennan is in fact in on a forty two forty one d commitment which makes him eligible potentially for evaluation pursuant to forty two forty six right so he's been evaluated by by a state doctor but the district court didn't make the finding required under eighty one forty two isn't that correct the district court forty two forty one i'm sorry  the district court has to make the finding that he is mentally incompetent and the impairments are not treatable or likely to approve is not a finding that the court has to make not a doctor  the court that's right the court viewed itself as not being permitted by the statute to make that finding at this juncture it's our contention that the statute as written for somebody like m due process precisely because in this case with the evidence we have there's no way that there is a reasonable relationship between the restoration of valuation commitment and  not likely to improve the state has no argument to haul to correct i don't think the state of new york and the federal government can't howell's him after she makes that finding which is why i suspect this then what happens right after she makes that finding which is mr brown and go well under forty to forty one gee if he's still if he's still at butner at the time then the director at butner or whatever is evaluating him is in a position to say i have concerns about this person's dangerousness you know he poses a serious risk of harm to others or to property and can petition for his domicile state to take custody of him and failing that anybody could refer this to the appropriate authorities in the state of new york free he will be liable to arrest again because he's not going to register as a sex offender partly because he does i remember having offended and he doesn't know about this requirement and he can't keep it in his and so he could be arrested every four months sent for evaluation and start all over again that doesn't seem like any kind of solution that we would be happy with i'm not sure that that i guess i would say two things i'm not sure that that's a little that that problem can be avoided regardless of what is done here i mean a finding of incompetency even  incompetency isn't necessarily i wouldn't think binding on a future court particularly for example a court of a of a different sovereign so conceivably mr browning could get out on conditional release from a civil commitment not register as a sex offender assuming he still has that obligation and end up in exactly the scenario that your honor is just adjusted i don't know that there's anything that we can do here that can avoid that possibility the second thing i would say is that while i appreciate the court's concerns this statutory process of course has a particular purpose in mind which is to determine whether the government's compelling interest in bringing somebody to trial can be met in a particular tastes the fact that me may feel badly for mr brennan or have concerns about mr brown and clearly can't be a reason too broaden that statutory purpose in this case he's also i mean there's also an evaluation showing that at least in the in the eyes of the forensic psychologist that he's not criminally responsible for the for the source of funds because of the lack of memory and yet  defense well i think he would have to have a knowing he would have to knowingly fail to register and if he can't remember that he has the obligation and obviously the omission is and knowing i mean i i suppose that would be the defense that it's not  so i'm not quite sure that i understand the court's question i guess i don't know what is the right thing to do for both the state's interests and this person said sure so i don't know what the right thing to do is i'm going to so while the court sympathy and concern for with regard to what happens to mister brennan personally what happens to him let alone the criminal consequences that command this court i think that at this point the square can't do anything and that's what i tried to say in my brief your honor that at this point the commitment the district court did determine that he is presently incompetent at that time when he was in front of a court and that was a finding which triggered the mandatory commitment to forty two forty one d for a determination of whether or not he could be restored to competency and they have found or at least the doctors found no record that he's not going to be competent or we don't know that that's what the term determination to be made it is right now is have they concluded that the disease he has is degenerative and it gets worse over time not better but that's not that's the whole point your honor that that was a finding that he was presently incompetence of the restoration period is triggered the forty two forty one d triggers the shell shall be committed shall commit and that was that's why this court at this point until this period of restoration or attempted restoration and we don't know i don't know your honor could be exactly right that this is a foregone conclusion that he won't be restored to competency you know but it's not definitely aren't we treading on his constitutional right to be free we're not there and respectfully but there has is not keeping him indefinitely we have a forty five day order in place as my colleague noted we have an interim report was which is a unique circumstance frankly that this judge did the forty five days to mar twenty sixth but was still in that period we are but not very long sort of the beginning of may first week of may may tenth and i've communicated that directly with the with the facility in the cell he's communicated with both  honor's i can refer you are on an excuse me to the district court's order here which took into consideration the concerns with regard to the timing and the length of time of commitment in light of the possibility that he cannot be restored so it's in the record your honour's that peach is eighty one eighty one to one eighty two and so the interim report is due to the district court at that point if then the district court could take some further action and the district court could determine he should be released the district court could determine further evaluation or excuse me if your further treatment might result in restoration of competency so that's what i tried to say at the beginning at the outset of my argument here on ars i'm not really arguing i'm saying l it's our position that this is fundamentally a question of two things statutory construction and constitutional requirements clearly the constitution requires that mr brennan however concern we are about him not be incarcerated if there is if there's adequate evidence that the statutory standard is not going to be met which there is here and the fact that the statutes happen to fall in a particular sequence because of the way congress up to set them up has to go by the wayside if in fact the court were to find that's the case may tend from our point of view  rather extraordinary and limited circumstances mr brennan has a very in my experience kind of unusual medical situation going on the other cases have to do with people who have vascular dementia or who have had portions of their brain surgically removed and so understanding that in the ordinary case the process that your honor is just described in that the statute provides for would be perfectly acceptable and not offensive to due process in a case that is outside the margins like mr brown and more like the people with parts of their brains removed then you do run up against the question of well the evidentiary threshold is impossible to surmount can i come at this person and it's our position that you that under those circumstances infrequent that does a maybe you can't so if we can't commit him we have to take him out of what you call incarceration i would call commitment and leave him out on the street to get worse again so of the statute in the constitution the results of that may or may not be what your honour's to sisc right as i said this case could be remanded to judge will for without him ever setting foot outside of butner judge wil enter the finding that the evidence warrants a conclusion that he's not going to be restored to competency and send directions to partner that at this point they are to you ok so if she does then what then they stop their evaluation and he does then freed no i think under forty to forty six he can then they can then opine you know whether in the toilet would apply it's the director of the facility technically under forty to forty six a who makes the initial dangerous that's his place of residence right and also because of the federalism concerns obviously but as is attorney do you not see any value in letting near complete their evaluation as his attorney i see my yes i that bar my asking you know what's in his best interest his interests as expressed to us are that he doesn't want to be incarcerated we're duty bound to pursue those interests and represent him and try and get him out but do you see any value to letting them complete their evaluation quite and quite honestly on the i don't because because of the unique nature of this case i mean i don't anticipate that we're very likely to get a different result here and i think judge wolford said as much she characterized this case as having a relatively low probability that this individual would be at least one doctor is already concluded that our rights are just looking for some magic pill thank you we'll hear from the government even though i took you out of turn you can have your time what do you recommend counsel well i would just know you're on of that that term that he's at butner right now is not just for evaluation purposes it's for medical treatment so if that addresses the courts in that attempt a restoration of competency isn't just to leave him in a room and see if he figures it out by himself treating his disease which is to well we're told but that and also just to note i understand that the court citing from  a medical opinion in the record but that's not somebody who was qualified to provide there is the glimmer of hope but you could find some treatment well if i'm i'm not to take a bet i just don't need to and i'm not going to i am in the position before this court that we're within the four months provided by the statute let alone the forty five days that the district court shortened it to its report to judge walford and to counsel they both get the report who gets the report i'm sure but you're not standing up again  who you don't know report i believe it is the district court directly your honor and i do believe just to court then in turn because when i talked i was told i wouldn't get it was his counsel know that he has to do something that will be committed to the court has a rip put back i believe there's a report back to it i don't have it but the forty five days is may tenth if we're all agreeing on that and then in due course i'm sure that the district court will be obviously where of this appeal and obviously aware of the fact  all right i could say that we're not going anywhere i thank you both for continuing to discuss this judge winter do you have any other thoughts are questions now all right well  reserve decision and that's the last argument on our counter i will ask the clerk to churn court picture so i have the phone number in there again yes thanks thank