why eighteen u s c forty two forty one d i should be deemed unconstitutional on this to be gays cases is this extremely striking in the sense that he was a person who was found by the court of the federal court in arizona to not be a danger to the community not to be a flight risk and he was allowed to return to the navajo reservation in his role community into lived on as he had been living prior to the charges being filed against him but when the district court concluded that he was incompetent felt that it had no choice but to take him into custody and to commit him for restoration treatment and your argument is not that the statute doesn't say that your argument is the case the supreme court went out of its way to say that what created the unconstitutionality was the indefiniteness and it seemed to blessed with approval the part of the statute that provided for several not whether once they're in custody the length of commitment is reasonable whether it even take a minute how do you tell if they're incompetent to stand trial without taking them into custody and examining them and that letting it go on for a while after the examination because then you agree with the court's implication which is that committing somebody to an institution is one alternative way of determining whether someone is competent or not traditionally deals with mental health issues have dealt with this issue and if the court looks to the statutes as i've cited in my brief in some of the cases the states permit if not require outpatient treatment unless the is to get a better look at the individual to you know make and determination are they ever going to regain their competency you know what sort of treatment because obviously in this case much to the surprise of everyone they sen not provided supplemental greets the butner officials did not necessarily find him competent they found that he was from a practical standpoint incompetent but was not did not satisfy the t basis for the state of arizona who could have examined mr big a locally and reached the same conclusion in the theory that the people at butner three thousand miles away reached expense aren't but i thought you were conceding that the statute says that they have to be incarcerated for this you're just claiming that it's one constitute that's unconstitutional if you're saying there's another way that you can do it i that's kind of apples and oranges to me here here the statute says that's what they have to do that's what the judge did and  institutional reasons why you can get a better look at someone why they're in custody you can't keep them for the rest of your life there's a sunset on it and there are review places in place so i see it as a natural i sat of bias or however  unconstitutional as i said just now what how could it i'm looking at this language in jacksonville indiana where the u s supreme court says cannot be held more than the reasonable time necessary to determine whether there is a substantial probability that he will obtain that capacity in the foreseeable future to me that carries a negative pregnant plainly implying that a person can be held for a reasonable time necessary to determine whether there's a substantial probability even if he's incompetent to stand trial now that he will be in the forseeable future and as far as i can tell three other circuits have so held and no circuit has held your way i don't see how we could do anything else your honor even the jackson case itself that page seven thirty five expressed doubt as to the presumption that the statute creates a page seven thirty five the jackson court  indicated that the initial commitment based on premise that that's the only means of accomplishing the government's compelling interest of restoration is subject to doubt given the way mental institutions archidamus and even philippi case that the government relies on let's see what is the language at seven thirty five that you're relying on what to say you want to give me one second i don't have it you just paraphrase you don't have to look it up i'm missing something about jackson i want to know if the court really related to these statistics are substantial gouts about whether the rationale for pretrial commitment that cure or treatment  well i think that that's fine but i don't you know it certainly seems like it's just that it's coming right back at us he's not even though the institution is returning to court saying he's competent there's still a hearing and i think anyone that's had you know having been a four former trial judge people go in and out i mean it's not uncommon if that in the middle of trial a lot of times things get suspended again and they get sent back so  you know while that may be a nice way to go i could see it recurring in this particular trial and very easily i can certainly agree  just suggest to the court that include men in determining whether or not this court should take this type of issue interlocutor orally that the court relied on the second case of gold and quoted from the judge the author of that opinion i believe the counsel for the government referred to the quote from goldman and if my memory serves me that quote relates to the situation where the defendant is convicted and then on keel raises the issue and the judge that wrote that statement indicated that at that point in time the issue would be moot and we would concede that that would be correct the difference here is this is an inter utory appeal and the issue was presented to the court in a timely fashion and mr big a took all necessary steps to try to expedite the review and it was rejected his request for a stay was that this case could never be reviewed this issue in this court if the clerk statement is correct will never ever be addressed by this court unless the people at butner and the federal  decides to keep the incompetent individual in custody for a year or so ok start again i mean if he let's say he's found competent then during the trial and if suspended again and can't he go out again for another hundred twenty days yes he starts again he can i do and according to the interpretation or the reading of the statute forty two forty one the district court would have no choice but to send him back to boston or to some federal facility thank you you thank