we are ready to hear argument and the first bill motion this is united states versus romero that it's you mr bacharach and i'm in a good mood this morning you're going to have a minute thank you very much your honor i appreciate that your honor the question before this court is a very simple one did this district court clearly err in denying bail without a hearing based ok no we were not those are it's just about the hearing it is really about the hearing i know in the initial paperwork i talked about the broader question but in fairness to this court i don't think your honor is really it's would be fair for me to ask your honour's to rule on the broader question of whether bail is warranted based upon the simple fact that it's the district court judge in the first instance that has to make that determination based upon a hearing and i'd be asking you to skip that point if you're honest would like to of course grant bail i wouldn't argue it but yes i am focusing on the bail to terminate the lack of a hearing because that is where unquestionably clearly the court did err eighteen u s c thirty four one forty two f requires additional officer shell hold a hearing to determine whether any condition of combination of conditions will reasonably assure the appearance of such person and the safety of an any other person in the community arguing about whether you waive that right by saying well if you have any hearing let me know  as opposed to i need a hearing and well your honor is what i want to do yes i guess you could put it that way and i don't think there's any question that there is no waiver and i don't believe you can waive something that has it which you have a statutory right to have express without an express waiver which there wasn't here quite the contrary the government was aware prior to that prior to the submission the briefs that a report that a hearing would be expected it would have been discussed with them in scheduling i was quite shocked to see in the government's response brief this contention that i could have somehow responded put in a reply brief reply briefs obviously are never required but additionally i was on vacation in the government and the court were both aware that i was on vacation only returning the evening before the decision in this case there was no opportunity to put in a reply and the court and quite frankly both the government and defense counsel expected upon coming to court that day that we would either be having the hearing in court or would be scheduling the hearing in court at that status conference but none of that occurred because instead an hour before the court appearance the court issues an order to nine bail once and not once bill is denied the issue was is complete for practical consideration what would you be doing at this hearing presenting medical evidence to show that the medical conditions that he's been under have not been sufficient and also been in to in order to establish that his current mental state  physical and mental state is one that he no longer presents a risk of flight or a danger to the community mr remeron is blah and has lost one eye entirely and there is of course more that i put under seal as far as the specifics of those medical conditions there is that is what would be presented a hearing so the court could evaluate with the defendant present with the defendant present whether or not in fact these problem i proffer as to whether or not he would not be a would not be a risk of flight or dangers community would be accurate let me ask you what effect does it have that there's a presumption no bail on his case well it's a presumption but it's a robot of a presumption answer a a presumption that's very easily accomplished i only have a burden of persuasion and the burden of persuasion is simply it can be easily overcome by simply establishing facts that would give rise to the belief that in fact this defendant would not be a risk of flight or danger community that can be done simply by presenting his medical conditions in night states versus troy young it's not a published opinion although it is cited in my brief as a docket docket opinion i mean that case i represented a defendant mr younger earlier this year before judge cibo a defendant who was charged with capital offenses a defendant who at that point unlike mr america was still facing the possibility of a death penalty because the court because the attorney general had not yet decided and judge them about granted  after consideration his medical conditions you agree that a hearing under thirty one forty two and the particular subsection of the you point us to can be done without live testimony without live testimony and yes of course ok so one of these you said was that you need some explicit waiver in order to forego leave you during with a lot of testimony with them to to waive a hearing i didn't say hearing without live testimony obviously at a hearing the you could present evidence based upon proffers were simply handing it off as you often do in a bail hearing you don't need to call a witness at a bail hearing to actually present evidence a bail hearing oftentimes the defense counsel or the government will mark an exhibit and hand it up to the court and it will be except in that form it's short of testimony but it is still evidence that's being submitted to the court that that's just i'm not i'm i will acknowledge you don't have to required and a full blown evidentiary hearing certainly is more than simply a discussion on the papers and eight and thirty one forty two f actually officers told me that thirty one forty two doesn't require it a hearing with live testimony which is what you're asking for i'm asking your honor for a hearing with argument and the ability to call live testimony if i want it thirty one forty two doesn't specify whether or not it can be live testimony testimony by desp deposition doesn't specify whether it's presenting at presenting exhibits or simply proffers what it specifies that you get a hearing where you present evidence the terms of what type of evidence is not clear from the statute the supreme court says a full blown evidence of full blown hearing adverse or hearings with the language they use again they don't talk they specify and list examples the second circuit has as well and united states forces davis listed examples that includes cross examination but it's  these are ores these are it's not a it's not a b c and it's a b c orgy but the point is you still get that hearing to present evidence in which ever form is appropriate thank you and you've reserved your minute thank you  ruling judge prescott reviewed some missions from both parties which represent which presented the district court with sufficient information to rule on the defendant's bail request the way your opponent seizes is there's a motion and he doesn't have to anticipate everything you would say and therefore put in the evidence he wants to up front he puts in this motion you oppose it and then it's as if the issue is joined and then the court decides on the hearing i think that's how your opponent sees this developing the way i think you see that developing is he supposed to put all his stuff in his motion and then you rebut it and then that can that can be the end of it yes i believe that that is how we view the case was conducted in this case the defendant which is to claim that and hearing didn't happen because as he said as an in his reply brief no hearing was held because there was no oral argument there were no witnesses and no exhibits but it's important to recognize that the statute does not require any of these items but his view is correct then all that has happened is there's been a motion there's been an opposition and where's the hearing it's like there's no hearing it's the question's been joy it's been raised it's there and where's the hearings i think you're still saying he has to put all his all his stuff up front before he knows what you're going to say i think i think what i'm trying to say is at a hearing hearing is for the presentation of facts if the defendant witnesses he wants to call exhibits he wants to introduce or if he wants to testify on his own behalf that is what a hearing is for a hearing is not an op is not necessarily an opportunity just for oral argument that's not required and that's not and that doesn't necessarily transform an appearance into a hearing in this case it's particularly relevant because even to this day the defendant has not set forth what facts he would have proffered had an evidentiary hearing take place he has not identified affidavits he would have submitted facts he would have proffered exhibits he would have presented or witnesses he would have called by his own recognition he was waiting to obtain certain medical records for his client and in his brief he states at page seventeen paragraph forty two that nder thirty one forty two provide up front all of the information that they intend to elicit during a what i gather is a full blown hearing if that's what the request i don't believe so your honor what are you saying i think there needs to be some indication to the court that there is that they intend to produce any sort of evidence and what i'm highlighting for the court is that in this instance not only down below before the district court did the defendant not identify any pieces of information or so so here's here's the letter to the court to the district court i would like a hearing under thirty one forty two is that enough and what is a full blown hearing your honor i think that's that's a tougher question well that's why i'm asking it i believe in that instance  i think the district court would be perfectly within its province to ask what type of information do you intend to present at such a here and what's the difference between that and what  the way that i've read it is he contemplated that there would be some form of hearing and said i'm going to be on vacation what's the difference between i would like a hearing and i contemplate that there will be a hearing i'm going to be on vacation on these days please do not scheduled a hearing on these days i think in this instance the way it was presented to the court is i have put forth my arguments and the facts underlying my arguments for the court to consider the government had an opportunity to respond to those arguments and proffered facts of his own its own and when this was presented to the court there was no additional indication to the court that additional facts were forthcoming and so the court was in the district court was in a position where it could rule based on the facts that had been presented to the court there was no additional and disha that there were other facts that the court was unaware of and to this date the defendant has state that he himself will testify but i think that if we have to disclose that to the court that he may or something in order to preserve the right to get a hearing i think i think the defendant should notify the court that it has any facts that it wants to produce either by proffer or by affidavit or by winning it's almost like a suppression motion where you would require the defendant to put up or shut up by way of an affidavit in order to trigger a suppression hearing you're saying that the same thing same requirement exists for under thirty one forty two for detention hearing if we ever said that no and maybe i've misunderstood your argument because i'm not getting you right now right and i'm sorry if i've being unclear i don't think i'm going that far i don't think it's necessary that the that the defendant needs to up front proffer all of his all of the the information that it desires to present to the court but in needs to provide the court with an indication that it doesn't tend to provide additional if it just says here's all the information i have i think the court will be pull perfectly within its right to rule on what it what the defendant has presented so if defendant were to appear and say here are here are the facts and and the government said yeah we agreed those are the facts that are presented to the court all we have are arguments based on those facts i don't think an evidentiary hearing where witnesses or affidavits or additional coffers of evidence need to happen put in his motion with what he had that day right he doesn't know what you're going to say so we don't and we don't have a statement from him after you've said your piece that i don't have anything else to do here i mean if you had done that then i would i would i would probably call that an express waiver because if he had said hey i've seen his stuff i've done my plate and i have anything else to do but he didn't that's not how this played out in this case th different right that's correct your honor but at the same time the defendant also didn't express that there were there was any additional and very you think he has an affirmative burden to come forward with  some description to the district court of what he's going to do it hearing absolutely if if if you want to present proof he should let the court know that he has additional at facts that i am with you perhaps in part with respect to a proof which is from a sore any source other than the defendant himself will be present at the hearing and we've all tried enough cases in criminal court not sure about judge or astonied but the rest of us here have ha ok in which defense counsel sits there and then makes a judgment call with his client or her client or am i going to put you on the stand to address certain limited things relevant to the issue before the court and you don't do that at least i don't think good defense counsel does that until she sees how the evidence has come in and whether the judge appears to be having a problem with what's going on and needs that one little bump perhaps to rule in favor of the defendant and i don't think defense counsel i don't think the defendant has to say and i'm going to take the stand yes you agree i agree so all i want to hearing and well you're not going to have any hearing well my client doesn't even then get a chance to add that one little bump to whatever i have pro indicated that i am going to put it i think my response will be similar to the want to provided to me which is that in that instance the government in this case the government had already put forth all of the information that attend intended to pro those there was there was going to be no additional proffer of evidence they were going to call additional witnesses they were going to put in additional affidavits so at that point all the information is before the court from the government's perspective if the defendant had at that point having read the government's brief desired an opportunity to present additional facts from his own mouth then he could have asked the court or advised the court that he would like to introduce new evidence is there  notice provided before the denial but if you're asking whether the court announced that it intended to rule on a certain day you know i don't believe so court has no additional questions with the still wrestling mr johnson thank you very much mr background you get a minute for the last word just very briefly your honor while again the statute is very clear statute says the court shall hold a hearing that's not a discretionary issue that's it's unlike suppression where the court does then make a determination whether or not a hearing is warranted and can actually decide on suppression motion without a hearing the statute here is very different the statute here clearly states shall hold a hearing and also states that only after hearing can the court deny bail that's is that's a significant amount of why not  you agreed at the beginning of this oral argument that you don't need live testimony in order to fulfill the shell hold a hearing requirement under thirty one forty two  and you could under circumstances that is the district court under certain circumstances could satisfy that standard in the way that it happened so you would you could waive you could have waived and that would have been ok under thirty one forty two so why not have a rule or why not read a requirement into thirty one forty two that the defendant provides some threshold information or maybe your answer is you did that and that a an appropriate way to read thirty one forty two two points one your honor i do believe i did make it clear i did i think i did reach that that low hurdle second your honor and very importantly we have a defense a mission and a government's mission with contest of facts to having the hearing is necessary to determine which of the proffers should be should be should be viewed what are some of the contested facts well for starters whether or not he was getting sufficient medical care at the m d c we had argued below and actually in our papers here that the m d c had been mismanaged hating him specifically what they had been doing was grinding up his anti seizure medications so that he couldn't pocket it they wanted to make sure that he was actually taking the medications so they would grind it up and hand it to him that way he would have to swallow it immediately problem is that their time to release pills so because the m d c is grinding up the pills they are the medication isn't working properly and he is seizing consistently so he has a considerable amount of seizures because of the way their mis medicating him initially they eventually do fix that but that was going on for some time they also mistreated mishandled him in the way they treated his met his seizures when he was seizing on at least one occasion they handcuffed him with his hands behind his back and put him face down while he's having a compulsive seizure that is not the way you treat a defendant or any individual i should say who is in the midst of a caesar yes my question is are those contested well well you're all going to those facts the government with the government says is that he was getting proper care because he went to the because he was seen by staff i think it was ten or twelve times by medical staff so their argument is that he was getting sufficient medical care at the m d c and that argument is what judge prescott also found that based upon the number of times he went to you know their infirmary that meant that he was getting can he was getting sufficient medical care but it wasn't because the government in an address in georgia prosecuted an address or specific allegation it's not the number of it's not the quantity of care it's the quality of care are no further questions around us thank you thank you very much thank you both we'll reserve decision and get back to you both as quickly as we can