charles burnham on behalf of the appellant and may please the court the defendant in this case frank chapman is a thirty three year old man with a history of acute mental illness currently charged with a nonviolent drug trafficking offense the government in this case we submit without valid justification as held mr chapman in solitary confinement which is twenty three hour a day voc down in a ten by ten cell for most of the last two and a half years doing such damage in the process to his mental health that today he is incompetent to go to trial he's unable to assist counsel his defense or understand the nature of the proceedings against him the government now seeks from this court is that you are you saying that the record reflects that the government's holding this person that all of your prisoners i guess hold in solitary confinement called the middle condition yes your honor as evidence in the record that the government calls it well not caused it but greatly exacerbated i'll answer your honor's question that way the authorities we cite in our brief both legal cases and the underlying sociological studies that those cases are based on very clearly support the well known psychological fact that solitary confinement of the type that occurred here has an absolutely disastrous effect even on mentally healthy individuals in many cases i do matter with respect to the sell  order your honor because one of the one of the cell factors the government must prove by clear and convincing evidence is that there are that that less intrusive means are unlikely to succeed they're going to jump right  me but i would be interested to hear about the forcible medication order and why you don't think it should be sustained certainly your honor there's two reasons and i'll start with with so prong one in then the government the united states supreme court in the original cell decision authorized the use of force medication only in cases that that very decision described as rare and they went on to describe it as an exceptional remedy so it's not something that should well we may have in this case this may be one of those cases we know what the cell case is do you have an argument why your client doesn't fit within the cell parameters certainly your honor there are you go get to that is on point certainly there's two reasons first because this court or no no court in this district has ever approved the use of force medication in a nonviolent drug trafficking offense this is the first time that issue has been presented so this should play in this that is not a serious and therefore there's no important governmental interest at stake is that that's the first part of it the second part of it is that even if there is an important governmental interest it's take this particular circumstances of mr chapman's case serve to outweigh crack that's over the statutory threshold facing a mandatory minimum of twenty years imprisonment if it's convicted how can that not be recreating a circuit conflict and sort of flying in the face of congress s designation of penalties if we were somehow no problem i think your honor i understand yours i think your honor raises two points there one is the the what weight should be given to the penalties into was what other circuits have done and not only answer them both as to other circuits there's only one case that i'm aware of that authorized force medication the drug of in a case of a drug offense and in that case there was a formal allegation in the indictment that the defendant resort particularly fond of it because it has a totalitarian association with me but what could what other things could have been done to restore him to confidence preferred factors judge mavs puts it i want you to zero in on that because that's the source of my interest certainly ron i believe there are three things that could have been done that were not done one mr chapman could have been given the chance to participate in either one the competency restoration group which partner has or to the group silent psychotherapy which put her also has to they could have been engaged in some simple discussion when they had the opportunity mr chapman with mr chapman to educate him a little further on the choices he was facing or three they could have declined to keep in solitary confinement understand your honor may be skeptical of that claim but we do believe it's important and i don't believe your honor has to rely on the social logical sociological studies we cited we can rely simply on the facts of this very case as testified to by the government says x point he's been restored to the general population as made to the general prison population not as we stand here today at one point when he was in boston or when the evaluation was being completed he had been that's right i thought in your brain if you had suggested another alternative and it was the alternative that was mentioned by the supreme court in cell itself that's absolutely right t i don't know why you would choose not to raise that in oral argument your own is referring to the contempt sanction yes that's that's precisely correct in courts that you have to do that isn't altered that's an alternative that has to be exhausted and your orders correct absolutely should mention that that actually those  unless we also by the fact that he was the government must make these do is explore these other alternatives in any event the district court has to make some finding that the other alternatives have been explored i think that's actually that's absolutely right if the record doesn't disclose some finding as to why the contemp sanction would have been effective if that wasn't explored by looking at him after this and i found this argument little bit distressing because every time you start off on your own you hit a dead end street and you use your argument only i think only changes and becomes relevant when we suggest to you to take another street now can you tell me why that's the case did you just assess all your arguments and start with what you thought were legally in fact were the best arguments or why i had to arrange a argument i don't understand i want to have some confidence in your argument but you are just marcia says she a question and you just didn't say you will get going to get to that but you happen to agree with her when it comes as no shock that a lawyer would agree with judge matsch most i'm out to the know what they're doing but why is it your argument seems to be completely lost in my missing something why don't i just i don't understand you i don't get my point is listen i don't want to stay in your game you got up and started talking about solitary confinement that's not the key point here unless it plays into some factor now of all the fed you started going down the list and you named three points th judge must suggest it might be another one of you quick to jump on a go that is critically important what's the most important point in your unit and i have really straightforward in about one sentence what's the how much you make others what's the most important point you make about why this man should not be medicated it's so it's very confining as you're on in i understand maybe some disagree mattera confinement issue or what but what part what part about that you just generally don't like solitary confinement was like tie to a factor right now we believe maybe a little too literal and i think you are trying to go in fairness i think you are trying to go down the cell factors in the order in which the supreme court talked about them that's real but in response to judge you said you think the third fact is most important that's correct is that right it's clear that the easiest way for you to win the easiest way for there to be a reversal and what are the basis is the only basis you're offering for that the solitary confinement because you just said that in response to him that that was your most important i thought she did maybe that's correct or energy we believe that's the most that's the that's the most important fact of this case is that the government had the burden to prove that there was no other way than had to be undertaken as a matter of last resort less intrusive alternatives were simply out of the not exactly your honor with the district court said was when we put this in the brief is that no less intrusive alternatives were quote unquote showing to be available which is not exactly the standard that the so court sets forth the government had the burden to into those less intrusive he didn't your honor he didn't address any of the solitary confinement or other ideas were i'm proposing now to the court and that's one of the issues really did he say look this alternative this alternative this alternative is not going to work for the following reasons you know you're this is necessary because nothing else would do the job considering more intrusive methods i guess if i've been you had a kind of wrap myself in that that's what seems to me a pretty clear directive from the supreme court and i absolutely agree understand i think that what you're trying to do is to tell us in your beginning discussion how terrible this is been for this man and this final thing of being forced to get medication would be more terrible still but that doesn't really get you home others are there any facts in this record which lead you to believe there might be some all the way to improve your client's medical condition oh absolutely or others don't tell me what they are there is the testimony of samantha to me so that when mr chapman was transferred to normal prison conditions his condition dramatically improved including being able to respond to redirection that's one there's the testimony of samantha dimmy said that group therapy of various kinds was available at but want absolutely think so your honor the record discloses that as long as he's not kept in solitary confinement he can converse pretty effectively with psychological professionals and if there'd been an opportunity for him to actually have discussed his options in terms of medical record lots of less drastic alternatives don't have anything in particular to do with ok i think that's right and i think one of the things the district court didn't make a finding on was the fact that some of the things  mentioned already but also the fact that there was never any serious attempt to discuss with mr chapman ways that he might be amenable to take the medication that was being proposed the record shows that the only possible attempt at that was one twenty minute conversation with the psychiatrist that was working on the case dr lucking when he was during the point that he was in the general prison population was why was he removed from the general prison it's a little bit hard to tell from the record what answer to that question was there was a form that he ought to have signed upon arrival at butner north carolina that he didn't because he suffers from paranoia and that for some reason we couldn't quite tell he ended up signing it later we don't know what the form was but he signed it at some point and then as a result of that he was moved into the general prison population no you're out of the the evaluation was fundamentally complete by that point he continued to be visited on a regular basis by psychological professionals during the bout two to three week period that he was in the general prison population but the first thing to keep in mind when evaluating this pronk of course is the standard of review and so we're looking at the district court's finding question and then you plainly want absolutely the last question  the district court made one single finding that there were not less restrictive alternatives they were it was plainly stated there was no rationale or do that were the different alternative not in the district court's holding now i don't think it's necessary when the record is quite clear and when essentially the government's evidence on that point was on rebutted by the defendant the defendant know what he would do with response to a court order we just don't know that's trying to prove anything one way or the other because it's just an unknown fact that's right so the government you know i think as far as these alternatives go the only one that we  certain that it just record must consider before giving a fell but whatever it is order is the one that the supreme court talked about i disagree your honor ok why is this think we can just we're going to the supreme court i do not think that we should ever disregard the supreme court but in this case i think what they were doing is merely making a suggestion of the type of alternatives that might be available for example or league is you don't think that we would then look at that example i think it cordial look at that example i think it would be a perfectly reasonable thing to do to explore contempt but the be better just it would be just as good not to look at that example that example was not contempt was not an option that was explored by the district court in white or in bush or in avon's and as we now in bush and in evans this court upheld the forcible medication order there was never a district court over backed by contempt in those cases so it's not necessary alternatives not available to the conclusion doesn't that far when you're talking about something that is this sensitive i mean this is this is sensitive stuff i hope that the government is the first recognize that this is sensitive stuff and we are also not enthusiastic about the prospect of forcibly medicating a defendant but this is a case that calls for it and in this case though the government's the district court's findings were brief they  were on top of a well developed a well developed record on this particular issue isn't there evidence in this record that at least two different treatments are incarceration style he responded positively and that right he got better when he was put in general population not disputed it is not disputed that he got better in general population however it is also clear that he began to get better when he was in solitary confinement the whole reason they took him out of solitary confinement was because they went in this added ham but that didn't help your case that hurts your case that hershey case it looks like it's not even that he has to go in general population to is the expert opinion is say this have about this what if we want to look at the undisputed facts in the record i think we should obviously look at the end us what i actually want to do is under speeded evidence and this record that he improved his condition improved to some extent short of medication isn't that correct yes the jimmy so was asked about this and at the joint appendix at one fifty eight she noted that there is a big difference between the noted improvements in his condition i e that he was going out for exercise he was interested in working in the kitchen and the core issue of competency here nowhere but doesn't that suggest logically that if you change his confinement conditions and he improves that there should be border sometime all those laws should be explored as another way as a way to continue that improvement before you medicate that it seems to me make some alternative plainly complain loaded his analysis on that point was what based on the record i don't know what what not what was it based on what was his analysis there was no analysis so you don't know what he thought about that point do you i do not know what he thought about that point i can tell you i don't know so then what should we do when there appears to be i was asking what should we do where there appears to be on this scant record a point and contradicted evidence that something causes this this defend it to get better but the court did it i don't know if the court was away of that or not by the way i was a district court for a long time people said just because they put in the record out in this area realize it was there so i don't know about all that but i don't know that he even knew it he didn't assess it why should we just want to wash it and we demand that at least we have evidence that he considered and assess that he's gotten better yes although again he began to improve in solitary so as to what causes it we don't know just what you missed in the point you exactly right we don't know what causes it but we do know the fact that there's improvement that's the critical point we also know that to me says stated pretty emphatically just because someone becomes better able to manage their behavior does not necessarily indicate that he is competent it's not surprising that he writing you have to when you have good for you and knowledge that all we has is this conclusory statement that there are no less intrusive but it hasn't done the consideration that it's required to do by the supreme court  become a moment where they come to medicate him and certainly if he says i agree to be medicated then there's no need for forcible medication at that point he will simply be medicated another important thing to note with regard to the particular treatment regime that is suggested for mr chapman is this how it all is a is a death it's a slow release shot which means that at the outset he gets one two week dosage it slow release is for that two weeks and then he would get another two week dosage after that point it would be every four weeks that he was treated now certainly because what the doctors have said is that the drugs will treat the exact symptoms that are causing him to refuse to be treated it is i would think logically category of a child and you say to the child you threaten the child and say we're going to you are going to go to bed right now does that make the child more likely to go to bed if the child has been screaming or yelling and the child all of a sudden say yes you know i think you're right but it just doesn't work that way in the real world if you're held down and forcibly injected and then two weeks later they come in are you going to enthusiastic about  don't know and i am not sure use fund that tail and we don't know and i don't know what that and i and forcible is necessary sometimes but it seems to me it is so it's so against what we believe that we have to really follow the procedures the supreme court said and i agreed to be termed it that there is no less restrictive alternative and i think it's important for the court to keep in mind when evaluating what the doctors have done in this case and in  fact what the district court indorsed the doctors in doing because scant to know the record is as to his findings he endorsed the government's witnesses and the evidence that the government put on and in our web page that you  i think we can look to the record and assure ourselves certainly that the district court did more than just say oh yeah yeah let's medicate him ok we had depositions taken in this case we had extensive forensic examinations completed those were compiled into separate nine and twenty two page reports which were reviewed by the court and argued extensively by the government there were pages upon pages of briefs from both sides i get your point judge said that we're not certain whether the district court read those things or not but but there's a reason he asked for depositions there's a reason that the forensic examinations were submitted into the record and and those are the basis of his conclusion and certainly that conclusion is not clearly erroneous under the standard that sol had and it's progeny in this circuit have set forth and if your honor is interested i can also talk a little bit about the important interests that the government has in this case and drug cases generally i i think i have a pretty clear idea of where the the court is how the court is viewing this case if there are any further questions i'll be happy to address them if not i have one point i want to miss one question but when you know when to i think it is mr mason and her testimony for all the stuff that he did improve and all that she says at one eighty six i do not believe that mr chapman would be restored to cop and say without medication that  what do we make of that we sort of parsing what she said but she and the conclusion so is he had to be medicated that's correct but i think that statement has to be considered alongside another statement of hers were counsel for the government asked her if once his improvements began did he become competent and her answer was i don't know he was never really evaluated so in other words she specifically left open the possibility that he may have become competent at that point though she did say that she didn't know if he had or was or was not that's not positive evidence of anything but she says affirmatively i do not believe that mr chapman would be restored to competency without medication can't be clearer than that that's correct when considered alongside the statement i mentioned i think there's some ambiguity there and what i think the court would want to see there's a reason why the district court credited one statement over the other and that's what as as the court pointed out we don't have in this case and that's actually your honour's question is the one i was going to get to is that and so