good morning and may actually travel for the united states if this truck were that there could not be a civil commitment hearing in this case in the certification wasn't till june th teen sixteen months later or if we look at when the court found that he could not be restored to competency that was december reasonableness of the time it takes to determine competency depends on the facts of the case and in this case every period of time with use either by the government to evaluate the defendant and to determine i be on competency which the government did within the four month time period prescribed by statute it but the statute also provides for time for weta to build his case on competency so after the  four months the government experts at butner they told the court that wedo was competent that he could proceed with his criminal trial so if the court had made its final competency determination at that time we wouldn't be here there wouldn't be any need for a civil commitment proceeding instead of the criminal proceeding but way that disagreed with the government experts so his counsel yes you're right what happened that seen when the civil commitment was finally determined what happened that made that six months reasonable so that period of time i had the government experts an opportunity to evaluate the defendant for sexual dangerousness so the question of whether the defendant is sexually dangerous under the adam walsh act is a very different question than whether he is competent to at that point nobody disputes that in this case judge russell issued an order committing breda to the custody of the attorney general and that's fine page sixty four dollars of the joint appendix and nobody disputes that judge russell didn't issue a subsequent order ending this commitment period now this report case judge boyle thought that the continued custody of we a was improper for unreasonable the judge boyle did not have the authority to reveal to the proceedings in the criminal case before a judge russell that's what this case said and wel on when a civil commitment order can be issued sounds like there is no limit i asked you about reasonable time and you said it depends on the fac of the case and not doubt six months apparently the government was evaluating him in that only response to judge floyd's question it seems like even after the charges are dismissed then the government could pick and and issue the commitment orders that time i just don't understand the limited your honor i think that the adam walsh act does provide protections for  situations where the guard is acting reasonably right though the that test of the statute says the hospitalization can continue for an additional reasonable period of time and there are plenty of avenues for a respondents who doesn't think his commitment is reasonable to make those arguments but the correct place the correct court in which he should make this argument is before the court that  entered the order committing him to the custody of the attorney general in the st place and that court was the criminal court with judge russell just oil had no authority to collaterally review the action of the criminal court before a judge russell and i can give you a couple of examples from the joint appendix that show that latest counsel is criminal proceedings has multiple opportunities to raise these arguments and chose not to do so st turning to j sixty six and sixty eight after the st competency proceeding before judge russell judge russell asked the parties to propose a schedule for resolving competency issues so weighted council could have argued that and his appeal things have taken too long that and his view the courts should have made a determination on competency with russell who could have issued an order ending the commitment or through a habeas petition the point is that he didn't do any of these things instead what latest counsel did was he asked judge russell for could hear from the experts who had different opinions on weight of competency so what is perfectly entitled to take time to build his case on competency yes or other so going back to government's expert was evaluating weta for six months to determine whether he was sexually dangerous or not part of the time period plato was under active evaluation by the government expert and then when that time period of evaluation concluded they got and experts were writing the expert reports and i guess i mean did the evaluation conclude have to check my notes or honor but my recollection is that there was an initial forty five dollars day evaluation period and that time period start record all the evidence on the case and to write a thank the uncomplicated report that then gets certified and sent a judge to the court yes around during this council was doing that made it unreasonable least that was my interpretation judge floyd can correct me that's right i understand your honor i guess the point i was craned to make is that no one is months give you two weeks to get into but there that's three months to do the evaluation so then it took ideas three months to write this report i've seen these reports not s should take three months certification evaluation and a reasonable and typically law when its argument now is that his commitment to the custody of the attorney general should have ended four months after court is required to end the custody the judge russell issued an order which is on page sixty four dollars of the joint appendix committing waited to the custody of the attorney general and judge russell have to issue another order ending this commitment it doesn't and just automatically or you know by way of law there needs to be action taken by the court and and to give your honor the specific certificate and he could address questions as to whether the certificate was filed as someone who could be properly our side of the adam walsh act but there is a limit as to what kinds of questions are properly addressed in this context so he is for buckets of things like was actually committed the custody of the attorney general and there is yes there is an order committing him to the trial the government has the responsibility to only person to a criminal trial against a defendant who is competent to participate in those proceedings and after that st competency hearing judge russell agree it that we had a was incompetent so it it was not a perfect it to continue with the criminal process at that time that's argued that he wasn't the st competency hearing no because at that time the government asked for it agreed that wedo is not competent to go to trial and that's why judge russell committed him to the custody of the it for months evaluation of weta under four thousand two hundred and forty one dollars to determine whether there is a substantial probability of his recovery so that he could proceed with trial the government medical experts found that at that point weta had gotten better that at that point was competent and that is criminal proceedings should continue and that's exactly what the government told judge russell at that point was completed counsel that competency proceeding so we just counsel contributed to this still lay in the competency proceedings that his new counsel now takes issue with so this is the way wasn't because the government was trying to prevent weta from getting the criminal process that he was due and it wasn't because they were trying to get a civil commitment that was improper it's  had retained an expert to conduct a separate evaluation of weta which took time but that we had a with incompetent and should not go to trial so judge russell held a hearing to hear from both the evidence from both sides and make his competency determination and he concluded that we had our remained incompetent but that there was a substantial probability that he could not regain competency to continue with the trial and good morning here on earth can you hear me all right i was having some audio issues certainly a thank you good morning i think the court's questions are appropriately focused on what congress was focused on which is the fact that we are dealing in the mental health chapter with congress and scripts and lines and these statutes reflect a concerted effort to focus the court the party is everyone involved on an expeditious disposition of these issues and that's not what happened here it was counsel so what are we to do with that my understanding your honor is there was only one request by mr wade as criminal counsel for we three week period to review some records and we believe that the extension as is necessary to determine whether there's a substantial probability someone can be restored to competency had already run at that time that was april of two thousand and seventeen judge russell did ultimately make a substantial prob they're out the fact that you're right these periods of commitment lasted beyond the four months each time so what about the fact that you waited didn't object to those continuing confinements at the time because your honor i think it has a trap context there are two issues that play well at the length of the forty one dollars d period the other is the bell reformats provision of detention pretrial and so until someone is deemed incompetent and restorable there is some debate about whether there would be a basis for seeking release at any given time what is more the question of whether someone is actually certifiable under forty two and it was never before gently russell and was never something that was addressed by the parties so the length of the forty one and the period strictly speaking was not before the on that civil commitment the sexually dangerous civil commitment order so that that could could have been addressed there is that right that's correct and i also think it's important to consider what the government could have been doing and i believe under the statute should have been doing during this lengthy period of pretrial detention of mr weta mr wade and particular was actually sent to butner which is where the prefer to keep shows for forty to forty eight proceedings are conducted for the entire nation so it cannot be said that the doctors were not present or available i've never heard that argument from the government in this case and i think what congress contemplates is that during this period of determining whether someone time text there are three statutory questions that must be answered before someone may be committed and at the time that the forty one the period begins the st two questions already have a presumptive answer because the government and the bureau of prisons both have access to an accused prior criminal history they know certainly of the charges that they've brought in this case so they have a sense already if they believe that a person has committed previous acts of sexually crowded they also at that point have evaluated the accused for competency so a psychologist has sat down has evaluated and completed their report which would presumably include any diagnosis of what they believe might be a serious mental illness or disorder so the four month period under forty dollars to forty one dollars d could appear short except for the fact that the only thing that needs to happen during that period is for the court to determine whether this person as medical or not and whether they can be restored to competency through some regimen of medication because there are certain disorders like severe intellectual disability they cannot be medicated and that cannot that the that person would not be restorable in any event so i think during that four month period it's not at all unreasonable to ask that the government also statute and that routinely happens in these forty to forty civil commitment cases after the certification has been filed so we believe that congress contemplates and requires that for those who are going to be incompeten with transport back and forth and various evaluation period starting again and again yes i have two questions for a normal one whose custody is it is he in them and number two do you believe that it takes a court order to take the defendant out of the custody of the attorney general as to the st question we believe that mr wade is only in custody pursuant to the district court statements order which state his his really is pending disposition of his appeal i don't believe that the forty one d period requires a court order to end and that's because if the opposite were true the government would hold sole control over the length of the forty one dollars deep eery and i don't believe that that is what congress intended under the government's theory someone who had ever in their life then committed under forty w and therefore certifiable for that reason one of the charges have been dismissed presumably for an endless period the government believes that someone could be certified under that provision and we don't think that's what congress intended  and that's why congress did not specify that someone could be certify that they're under the custody of the attorney general generally the ordinary pretrial detainees are not subject t congress in passing forty to forty eight thought it necessary to specify that it was speaking only to this very particular period in time when someone is being evaluated under four thousand two hundred and forty one dollars d and this is not a statutory construction that we alone hold this is something that we have found in cases like hardy did not baker and white which we say did in our opening and replies reach and contrary to the government's assertion i believe that welsh actually supports our argument the welsh case was about the time of certification and the court in that case confirms that it is the time of certification that nineteen and on that date we believe that the government has far outstripped all of the deadlines and four thousand two hundred and forty one the i believe that the government's reading of the statute reads out the substantial probability finding th congress thought important enough to mention twice this is a finding that must be made by the court in order to extend the period of detention that are forty dollars to forty one dollars the use for reasonable time and it makes sense that that is the triggering  nt because forty dollars to forty one dollars was enacted in response to jackson the indiana which was concerned with endless pretrial detention of incompetent persons and how that due process requires that continued detention pre trial be tied to efforts to restore competency as because that finding was not timely made in this case and in any event judge russell agreed that mr winter was not restorable on disk in december in context of the rest of the mental health chapter that form of period he seems short but this actually is the longest provided by congress in the mental health chapter it is the only one that i'm aware of that does not allow for any exceptions or extensions when an initial competency determination is being made that is the shorter timeframe but the bureau of prisons is empowered to ask the court for additional time is more is necessary the same is not true of the four month period congress was clear that period is not to exceed four months and we believe that this that congress is focused throughout the mental health chapter and specifically in for you wendy is in addressing these issues  expeditiously and getting someone either to trial to commit if a certificate has been d filed or released if that is appropriate as soon as practicable and we believe that the government's conduct in this case requires dismissal of the certificate so we would ask this court to affirm the sound judgment of the district court i would also like to know just briefly in terms of what would happen to mr weta we had some difficulty obtaining the documents in the chalet but we have confirmed there is there are two pending cases against mr wade one in pennsylvania and one in delaware we're going to change one of those detainers and have confirmation of the other he still is active so it is our belief that mr wade would be transferred to one of those detainers so the court need not be concerned about release to the community in this case and i believe that a published opinion from this court would go a long way in speaking to courts parties the bureau of prisons the marshals all involved to understand that these deadlines are important that they are mandatory and that there are serious consequences if they are violated so we again would ask this court to affirm and happy to answer any questions of the suggest that the government isn't required to do an evaluation for sexual dangerousness under the adam walsh act at the same time the government is evaluating weta for competency but those are a very different question and that's not what the statute requires the statute gives the government four months to determine why there is competent or can be made competent to stand trial that's what the statute says only when the court has made a final finding that way to is incompetent and on restorable well the government do that great evaluation to determine whether sexual assault isn't part of determining whether someone is competent to stand trial discussing with them the nature of their charges and whether they're able to assist their coun consider a different case now when in your earlier argument uses it a reasonable time period depends on the facts of each case which is why i'm asking you about the facts of this case i guess not conduct an evaluation of vangelis that or sexual dangerousness until it's clear that the criminal proceedings will not continue and it's only when the court makes the final finding of incompetence and that it's clear that the criminal trial cannot go forward otherwise the government would be certifying individuals that the government thinks should go to trial and the government would be put in the position of a less short circuiting criminal proceedings and trying to switch to civil commitment too early in the process so the commitment is only who is in lieu of the criminal proceeding it's not something that starts in the middle of criminal proceedings  understand i guess i'm just stuck on trying to determine what was reasonable here dangerousness as two parts are on or the st is whether the defendant has engaged and sexual misconduct or child molestation and then the nd part is whether the defendant suffered from a mental disease or defect that would make it difficult for him to refrain from participating in child molestation or sexual misconduct if it were to be released so it is that it is a two part inquiry and that sort of inquiry is separate from the question of whether the defendant is competent to go to trial and i point the court to the language at the end of four thousand two hundred and forty one dollars d that says only if at the end if the defendant rema he is incompetent and will not be going to his criminal trial only then will the government start the evaluation for certification under civil commitment and turning to another point there was a and i want to clarify that it's not just the three week delay where awaited counsel ask for more time to review the records from buckner so i can give the specific date but the general point is that after each competency order from judge russell committing weta to the custody of the attorney general for evaluation the government did its part within the four month window provided by statute so the government evaluated for wait after four months and then afterwards both times we did counsel to additional time to evaluate the defendant and to produce a defense expert report at point that takes two months and only until way to has had time to build his case on competency and he gives that report to judge russell this judge russell schedule a nd competency hearing to take evidence from both sides and there are periods in this provocative period of competency determinations where judge russell takes five months to make a ruling that there's no provision of that chute that puts a deadline on the court rushed the court to make this important decision with any any particular amount of time the court was reviewing competing expert determinations on whether weight of his competence and the court was perfectly entitled to take the time needed to make this important decision and finally we're not saying that an individual can be certified for civil commitment at any time in his life after he has been committed to the custody if the attorney general we're not saying that someone out on the street can be hauled back in for civil commitment the point here is that the civil commitment period hadn't ended because the statute says it only and if one of two things happen either he gets better and goes to his criminal trial or the charges are dismissed and it's undisputed that neither of those things happened in this case and for that reason way to was properly three because the charges had been dismissed but again this isn't saying that any time after the charges had been dismissed for the rest of his life the government can haul him back in and certify him percival commitment rather courts have re again a reasonable period of time after the charges have been dismissed for the government to evaluate the defendant for possible civil commitment and i'll give the court one citation to support this so the cases go because the point is that the government had nothing to gain from any delay in the competency proceedings the government would have had opportunities to certify waited for civil commitment either way what happened here is exactly what is supposed to happen according to the statute and this is how courts have long interpreted the statute the government is now facing several motions to dismiss four thousand two hundred and forty six dollars cases based on judge boyle's reasoning about timing so we would ask this court to correct judge boils in credit rating of the statute and to reverse if there are no further questions