moment and ask you to bring this up to date because that is as i understand it there was an emergency order entered or the doctors in missouri acted and i believe it was august who medicate your client separate and apart from the matters pending before us on the dangerous this grounds and as a review the discussion that took place this trick or hearing which i think was october everyone seemed to assume that that that had gone on but there was no explicit discussion of exactly or that i picked up on exactly what happened is the court enter its order our panel declined to study it so presumably he's been medicated at least on occasion s of missouri first factual has anything happened in the western district in missouri you know so everything this is here but i didn't really find a direct challenge to that round in cells tells pretty specifically tells us go to that issue before you get to the issue of of restoring confidence for trial right so i'm a little lost as to why why we're here if the dangerousness ground was entered in august as far as you know remains in place the date supreme court tells us do that first is there any issue about the restoring confidence the trial for us to entertain at this point of his being medicated on dangerousness and i believe so because what we did with the restoring confidence to trial as a stand trial and you may well be right saying that look look at that look at the administrative regulations and they didn't comply with the requirements but that's not the argument i think i read when i prepared for this case so i am sort of adrift as to how are we supposed to pick up that i dangerousness finding that's incorrect and you are entitled to be in the district court and say look we haven't followed the right procedures we are in the regular stiction we want to stop this being that i'm dangerous on the basis of dangerousness not on the basis of getting them ready for the trial and that you don't reach the second issue of getting ready for the trial if it's being done and then through scrap are we really isn't our job now to decide first your issue of whether the there's an error in any respect and what's before us with respect to the administration of the drugs on the basis of dangerousness and if we say yes there  is then we say there's not it's perfectly fine that's the end of it and if we say yes there is an error on the ground of dangerousness that they didn't follow procedures or you didn't get a hearing or whatever then we would should we just remained on that issue and not reach the cell issue i guess i would agree with the court if the government were seeking force medication on on dangerous government to you have any information or have your reports come from springfield with regard to your client's current condition so this i mean i'm medicated for like four or five months now has he been restored to competence summit is he not  that you have no information  and then we'd be right back where we started where the government is trying to render the content and competent to stand trial and for that reason i think the court does need to address the cell issue and in a sense ignore the governor standing is that that medication does continue but there's been no instruction to the bureau of prisons and bureau prisons of not it's not attempted to determine whether or not to defend it could become competent to stand trial because frankly we don't want to gauge run around this court and use emergency medication that was deemed necessary in this case as as just simply a means to get the job done under forty to forty one to determine whether the fennec can become competent we want to do the appropriate way and i think the appropriate way is to address the issue which is the pending buys in time he had a cell order since october which are our court elected not to say district court didn't state we didn't state it has a van and a medication given to a stand trial the supreme court in two thousand and three in the case of solvers as united states so forth the controlling for factor test and it's persuasive that the district judge does judge jones apply in this case and he did  that to try to determine whether her contempt hour which whether she could order the defender power contempt to take her medication and she found it that would not suffice and finally whether or not the medications medically appropriate we have a significant record on that i believe that the doctors in springfield who are very knowledgeable about these things and don't prescribe just one medication for every defendant except the defendant to try to find the appropriate medications that the alternative drugs that might be used and i understand the process you try something a certain dosage and see what happens and you make your decisions from there defending argues that he didn't really have an opportunity to speak to that because had it had to the fans had something like two weeks or slightly less than that notice from when they learned about this until they the hearing occurred and did not have specific notice of what drug treatment in particular might be proposed did not have the opportunity under the circumstances to retain an expert to speak to that and there was no expert testimony as i understand it offered by the fans and at the evidentiary hearing that took place  during now nearly a year ago of course at that time you didn't expect to be dealing with this here a year later but here has passed since then and there was not but when the evidentiary hearing was requested before the district court that request was denied you look at selwyn self discusses what happened there and seems to contemplate in testimony on behalf of an expert witness for defendant speaking specifically to the particular drug treatment being proposed was there a fair opportunity for that here from the fountain under the circumstances this unfolded just listen there were myriad opportunities for depended to raise this as early as october thirtieth two thousand and three that's initially after doctors over and at the federal pension center in san you're a court and at that point the magistrate judge judge porter apprised the parties that the doctors were specifically requesting permission to voluntarily medicate the defendant and at that hearing february counsel requested thirteen the thirteen days until the february nineteenth hearing i believe that magistrate judge porter wanted to put it on earlier defense counsel request some additional time she indicated she was in trial and that's time was granted and presumably because she saw what she was up against there that she at that point requested an opportunity to bring in some expert testimony of her own something she could have done previously could have done the day the hearing because she had thirteen days advance the question was bringing him to trial what was the urgency to bring the crowd once he was incarcerated anyway so that you couldn't allow the other side to present an expert because what was the prejudice to the government didn't see any in the record your honor the reason i think is there it is that the defendant that abundant opportunities to to bring forth expert testimony and to this day they still have have that right to do that it has not been now i mean they they requested never venture a hearing when i got back to the district court in the fall and that was denied the judge wouldn't take articles as such and understand that  or a grounds but when i first went to the district court it went on appeal and i'm not familiar with the practice in the southern district of california but it's not to my knowledge common to submit evidence or to expect the opportunity presented witnesses when you're in the district court entertaining an appeal for a magistrate's order which is what it was last spring and by the time it comes back in the fall it appears that and maybe in the request was was was focused on the free to have a new evidentiary hearing or he could simply apply the appropriate standard review it in overall review and pass on the facts that were presently before there was no hope the latter is what occurred that is correct your hon missed and the panel's opinion i'm not seeking to criticize that or are simply setting out alternatives the passage of time by itself and the intervention of an additional factor which cell tells seems to tell the court to entertain first the court elected not to and i can only infer it's because the court didn't think it had authority plans for a prisoner at that time was in springfield no longer within the geographical area of the southern district but there wasn't an evidentiary hearing and so we're still looking at a record where the only evidence you're hearing was something that took place february i forgotten the date the very early on in the process at least from the perspective of a year later  expected to be here a year later i understand that but that is where we are and so when you say well they could have submitted evidence you know i'm just not sure when the opportunity was there for them to submit evidence or when when the district court was receptive to it your honor i see my time has expired i would on the defense counsel again requested a continuance for an evidence you're hearing and that was also tonight in october now i would like to just briefly address the fact that the government cannot because it reflects the kind of calculations that would go into sentencing under the possibly still existing sentencing regime and sentencing guidelines reflecting of his prior convictions according to the government he could face anywhere  sell however i think that's the inappropriate test and because it totally ignores the language and its force medication should only be applied in rare circumstances otherwise may be rare  like right