case number seventeen dash two one six eight united states of america versus duane barry or organise not to exceed fifteen minutes per side mr dale you may proceed for the   the government is obligated to prove the four requirements for it by the supreme court and the south case by clear and convincing evidence so the government has an uphill battle and in particular authorize ation or involuntary medication in this favored by the courts and what i'd like to do this to be noble review by this court under the court's decision and greying and secondly because i believe this is our strongest argument under the first requirement the government must prove an important governmental interest that is at stake and that involves a two step analysis the government must show that this is a serious crime and if so whether or not there are special circumstances that may happen the importance of that interest the green case from this part of the racks to two objective factors to look to see whether or not the charge that mr berry is facing is a various faced with a crime for which he could receive up to i v years in prison so that on the continuum of possible penalties this particular plot crime is clearly at the low end  is probably the least serious of crimes for which he's an individual could be charged under federal law if we look at mr barry charges relative to others that circuit cases that have dealt with this particular issue when we look at grain green cards with other offenses that because of the quantity  d required a mandatory minimum of ten years up to life much more serious in the paris case in grimsby the court was looking at the defendant who is charged with multiple bank robberies that carries a maximum of twenty years for each offense that could under the law even run consecutive minimum of thirty seven years so we can see that there is a large graph and see twenty in other cases that this court has heard and has affirmed the force medication and mr barry's ca makes that crime not a serious offense that is correct that yes that's their argument so how what would be a serious offense how how how how much time would you need to have at the statutory maximum for the crime to be a serious offense i don't believe there's any bright line distinction that the court can ask draw i can only say that in the other and it depends on the continuum you draw and with the understanding that the federal court maximum penalties usually reign product range from approximately five years all the way up to li i don't think there's any serious dispute that the five year maximum was at the lower end of this continuum of potential crimes so are you arguing that there are factors other than the statutory maximum that should be considered for determining whether or not an offense is serious well under growing the two factors are the statutory maximo and the guideline range those are the only two factors at this circus has agreed important to consider because in green they talk about looking at objective factors rather than what and a judge or any individual might think that under any circumstance a particular crime is serious because they can be very subjective we can have a lot of different opinions and what we believe is serious in terms of threats to the public or individuals so this court this circuit has really limited consideration to those two factors so i can talk for a moment about the guideline range and what i think ultimately is going to happen in this case and this really gets to more of the special factors and it does the seriousness of the crime actually that they overlap to some extent but the guideline range according to the government is thirty to thirty seven months so i might score it is a little bit lower it's twenty seven to thirty three months i don't think that there's a big discrepancy there and but that would be primarily if mister barry were to plead but if we follow through on this case now we get to a critical issue about how much time well barry actually sir before he gets to trial he was arrested on november eighth two thousand and fifteen today on october thirtieth  days short of thirty six months in custody so he is right now at the very top of the guidelines that the government has calculated the list of take a little bit let's say that this court affirmed the district court and issues an opinion to that effect if that happens these are just approximate days the court's opinion would probably be issued within thirty days and then from that point the government would have to have the district court judge enter an order to transport him to a facility for treatment and that's go another thirty day the actual time for transportation of mr barry based on what's happened twice before another thirty days so once he arrives at the facility for treatment th district court orders for treatment for up to four months and they could even come back and ask for thought additional time but let's just use the four month period and that's assume that the treatment that the government  will work work and at that point the district judge will have to set a date for a competency hearing and bring in the witnesses we're talking another thirty to sixty days so mean that the judge agrees that he's not competent and they have to set a schedule promotions and for trial we're looking at probably another sixty days if mr barry decides he wants to assert an insanity defense he's got to be sent back he's got to be sent back for an evaluation for insanity a totally separate issue i mean he's got to be transported back he's got to go back to that facility probably looking at a minimum of ninety days depending on how that comes out either side could ask for an independent evaluation that would probably take at least sixty days he's got to come back to this jurisdictions but he's got to be hired and go see him once all that's done then they can set a trial trial could be at best thirty days out if you got convicted three months for a sentence now out another twenty four month maximum is sixty he's pushing right up against a month by the time we go to trial if he was convicted so here we have a situation that he spent so much time in pretrial detention against this being a serious crime and forced medication but if he doesn't if he's not yet been completed his process in the criminal justice system with ten to five years he w placed on supervised release and that's one of the arguments that the government has made that if he found supervised release he can be treated then as well so that makes this case particularly unique very different than any other case i think that has been presented to this court the only thing i think i want to address in terms of a special circumstances is the ability of of a commitment and the problem that we're having here is that there is no expert opinion this point as to whether or not he meets the statutory requirement for civil commitment that only the director of the facility where he is hospitalized can certify that he is mentally ill and that if he was released he would be a danger to himsel there would be no prosecution no what do you foresee would happen that bob fosse in the government's court they would have to make a decision and they can't proceed against him as long as he's incompetent which he is and it seems likely that in that situation the government would have to move to dismiss and then they would have to decide whether or not they would seek civil commitment that's really a choice  commitment only focused on whether or not mr berry was an interest to others or himself and he clearly is not he's been in general population on both and the federal and state system but the statu addresses damage serious damage to the property of another and i would draw your attention to the come crying that was filed in this case and that's a record on at page id paragraph that there's an allegation in there that mr barry was involved and damaging property that belonged to the bank of america various branches and says that the estimated damage that he did was three hundred thousand dollars which i think we can agree it's serious damage to property they got his license plate number at the a t m branch and and they have a statement by a relative that is just good barry who did this which would be consistent with what he did in this case and the judge actually the district judge actually and that was that i think the district judge actually myth of an important element about civil commitment and whether or not that was a special circumstance that would preclude the government from seeking or medication him outside of the guardian building here in downtown detroit he evoked the fears of terrorism that are very real in our country today and when he did so he also committed a federal offense the prosecution of that crime serves a variety of governmental interests some of which relate directly to mr barry some of which relate to others besides mr barry and this is danger to himself is that a factor as far as being a danger to himself or the public i think that would be a factor under one of the special circumstances that would mitigate against the governmental interest  in the case in other words for civil commitment esther daily as mr daly was just speaking of i think the record is does not have very much information in it that shows that mr berry is a danger to himself or others as far as terms of violence against other people and that's why the government believes in the district court ruled that he was not a good candidate for civil commitment but as far as the first governmental factor in the first factor undersell the seriousness of the governmental interest here it's not that he's a danger to the public that's not the governmental interest at stake as much is first would be as  relates to mr barry is a punishment for the crime he committed which as mr daley has indicated he has served next week it'll be thirty six months that mr very will have been in custody against the guideline range of thirty to thirty seven months and so while there's been he's served most of his guideline range time that's not the only consideration it's not merely a math problem here there's other considerations when we evaluate the cell factor the first cell factor for example the need for a period of supervised release and mr daley suggests his argument that there wouldn't be a period of supervised release because this case would take another two years i don't think there's real evidence of that when mr b comes back if this court were to affirm the district court's order and he would be sent to back to butner to be medicated the court's order is limited to four months worth of treatment so even if there is a period of time for  transporting mr barry within the next four to six months mr barry will be back in detroit either competent and the case can proceed to trial and i'm certain that the district court will want to proceed quickly and or that medication the mr very first malefactor is not whether mr barry is a danger to the community the first cell factor is what is the government interest at stake here and that governmental interest is whether the seriousness of the offense and that is measured by as mr da said the statutory maximum in this case which is five years in custody and as far as deterrence goes that's another factor that underscores the significance of the governmental interest in this case it's not merely specific deterrence as to mr berry in other words putting mr varian a form of punishment for a certain period of time that is not the sum of the governmental interest in this case if it were i would agree with your honor that the government argument is very weak here but the governmental interest goes on beyond merely punishing mr barry for his offense it includes putting mr barry on a period of supervised release that period of supervised release in this case can be up to three years and the government's position in the district court agreed is that it is vital for someone like mr barry who is battling a mental illness to be monitored as he's released into the community because while we don't have evidence in the record that mr barry is a danger to the community community necessarily he's certainly a problem for bank of america and for the courts as he has written countless letter was bank of america should be concerned about mr barry continuing to send threatening and hostile letters to its different branches he has sent mailings even since he's been in prison to the bank of america and obviously when he left this in downtown detroit he did so right outside of a branch of a bank of america there in detroit so that building that he left a bomb out in front of was in front of a bank of america branch his dispute with bank of america as it is is that he believes he owns the bank and so he is taking steps to in his words foreclose on the bank and so from bank of america's perspective as the victim in this case they have concerns about continuing to receive threatening messages from the bury that go beyond property damage but still creel fear in the different branches that have received mailings from threatening mailings from m billy when he left that bomb looking device you know exited his s u v dropped the device and took off in his in his car it's the real fear among the people on the street outside of that bank of america branch and i think that while he hasn't committed acts of violence against individuals that work for bank of america he has certainly ask elated his dispute with bank of america from filing liens to corporation or an individual or group of people or a governmental entity when they would actually did you to do something like commit a crime like mr very did there is a general deterrence that is important governmental interest in this case as well letting like minded individuals know that there will be a consequence and the government will see a prosecution through to the end for an individual who invokes and exploits the fears of terrorism in a dispute that he or she so i think where we draw the line would be a combination of the statutory maximum with an evaluation of the facts of a particular case and so i could foresee a case where a five year statutory maximum would not necessarily meet the first cell factor if that offense was deemed not serious however the courts that have evaluated five years statutory maximum claims both the sixth circuit in an unpublished opinion called still injure as well as its sister circuits in a variety of threats cases have found that in those threat in the threat context a five year statutory maximum to sufficiently serious to meet the first faster and so i think i don't know where the bottom line is and in that way i agree with mister daly that it's it's more than just a math problem it's more than just a period of years but rather a combination of the facts of a particular case plus the statutory maximum and in the threat context the courts that i have says that the cases that are cited by the government show that five year statutory maximum in the threat context is sufficiently serious to meet the threshold of the first cell factor the last part about the first factor of this analysis and frankly this is where this case rises and falls as the first factor undersell and specifically the specific special circumstances that include whether or defendant has served most or all of his time that takes away from the significance of the governmental interests and while we can see that understand that the other governmental interests here go to not only the supervision of the stor very which i spoke of earlier but also the general deterrence and the the victims having their day in court and the justice that's due to them having been victimized by mr barry's conduct and so that's specifically the bank of america and i suppose any person who was on the street cases i think the supreme court has said that the court should consider special circumstances ok and if you're going to reduce it to find if there's not a serious event that's a mitigating circumstance correct exactly right yes and we're arguing at exacerbating circumstances are you correct as we look at the governmental interest at stake that the amount of mitigation that comes from the amount of time a defendant has served so in this case mr various or virtually all of the time called for by the guideline range how mitigating a factor is that under the special circumstances has to be weighed against the facts of the case and you know the ninth circuit's case  that the government cited called no ha you know is a mirror image of mr barry's case in that case the defendant against the fears of terrorism has already served or had already served virtually all of his time called for by the guideline range and you know but still the ninth circuit said that this is the first factor had been met because even though the defendant it served most of his time or virtual i'm sorry all of his time called for by the guidelines the evoking of the fears of terrorism and the need to deter others overcame that special circumstance that mitigating factor of the amount of time served by the defendant in that case and that's our argument here is that the other the seriousness of the other governmental interest know your honor i think you don't make the likes the key point and make was that the amount of time that he was facing in custody was enormous the thirty seven years the mandatory minimum time a life and so he didn't have the argument that mr barry mr a no high had that they had served most of their time he couldn't make that argument instead i think his focus had to be on whether or not he would win an insanity defense or be civilly committed and while he had facts there because he you know he had left a real bomb outside of a building as opposed to a fake bomb and he had more facts to point to to say you know i may in fact be civilly committed mr barry just doesn't have those facts  you know mr daly when he talks about civil commitment this court should look at the mykola case which says it joined its sister circuits six circuit did it joined it sister circuits in holding that the government's interest in prosecution is not diminished if the likelihood of civil commitment is uncertain and that's at page six ninety nine of that case and here that the possibility of civil commitment is uncertain and so it doesn't cut it doesn't diminish the government's  interest in prosecution in this case and so because the offense is serious because the special circumstances don't amount to enough mitigation to take away from that seriousness the  order should be affirmed on the first cell factor rain drops on the question the judge merritt writing about dangerous here's one the one hand the government is saying he's not a danger to the public really going to of three  f the same time i think he doesn't want to really can it because it also goes to the question of civil commitment oh if mr mccall he would say age is a danger then the likelihood of involve people who are mentally ill and i think it's very suspect to think that if mr barry was convicted and word got out which i don't believe a word that people who have these mental problems would be  what mr berry put outside the guardian building was not a device it was not capable it was nothing it at all and so that's that's an important distinction and then when he talks about victims i can tell you that actually and he put packaging to put the white plastic over as i watched my office on the eighth floor technically i guess i would be a victim but i can tell you that i did not have any apprehension and i watched everything that happened it's a little sidebar there it's part of other jurisdictions are concerned and it's reliance on the ninth circuit case