[00:00:00] Speaker 05:
Next case this morning is 25-1034.

[00:00:04] Speaker 05:
Forgive me, counsel, if I mispronounce it, but United States versus COAD?

[00:00:11] Speaker 05:
COAD, yes.

[00:00:12] Speaker 05:
COAD.

[00:00:13] Speaker 05:
Okay.

[00:00:14] Speaker 05:
25-1034.

[00:00:16] Speaker 05:
Counselor Appellant, make your appearance and receive, please.

[00:00:20] Speaker 05:
Thank you.

[00:00:20] Speaker 04:
John RCC from the Federal Defender's Office in Denver, appearing for Appellant John Cote.

[00:00:29] Speaker 04:
Your Honor, after finding Mr. Cote incompetent and unrestorable, the district court aired by ordering him committed for hospitalization under sections 4246A and B for a so-called dangerousness evaluation.

[00:00:44] Speaker 04:
The problem is that 4246 doesn't authorize the court to order such a commitment.

[00:00:50] Speaker 04:
And this is so for three principal reasons.

[00:00:54] Speaker 04:
First, the plain terms of 4246.

[00:00:55] Speaker 04:
They don't provide for a new commitment.

[00:01:01] Speaker 04:
Rather, they tell us that this federal civil commitment procedure is initiated by the filing of a certificate of dangerousness, and that that certificate may be filed on behalf of three categories of people.

[00:01:13] Speaker 04:
who those people are and when is what that 4246A tells us.

[00:01:18] Speaker 04:
That is that the director of a facility in which a defendant is hospitalized can issue a certificate for someone who's serving a sentence that is about to expire, that is someone who's been committed under 4245 from BOP,

[00:01:31] Speaker 04:
Not an issue here.

[00:01:32] Speaker 04:
Someone who is hospitalized, committed under 4241D, which Mr. Code was previously, and someone against whom charges... Where is Mr. Code?

[00:01:44] Speaker 04:
Mr. Code is at the Federal Pretrial Detention Center in Englewood, Colorado.

[00:01:49] Speaker 03:
Okay.

[00:01:50] Speaker 03:
So, one of the problems...

[00:01:53] Speaker 03:
It seems like a practical problem with trying to make all these statutes work is this.

[00:01:59] Speaker 03:
So he's out at the Federal Medical Center and with the charge of see if you can make him competent.

[00:02:07] Speaker 03:
And so the Federal Medical Center makes him competent.

[00:02:15] Speaker 03:
So at the time they make him competent, they're not going to issue a certificate of dangerousness.

[00:02:21] Speaker 03:
They have, in their minds, fixed the problem.

[00:02:24] Speaker 03:
So they send him to Denver.

[00:02:26] Speaker 03:
In route, and while he's there, he quits taking his meds.

[00:02:30] Speaker 03:
He becomes incompetent again, and the court so finds.

[00:02:35] Speaker 03:
How is there ever, in your position as well, they didn't issue a certificate of dangerousness, so he's not going to be committed.

[00:02:43] Speaker 03:
I mean, how's he ever going to get there in this fact pattern?

[00:02:47] Speaker 03:
And maybe your answer is he's never going to get there.

[00:02:50] Speaker 04:
Well, I don't know that he's going to get there at this stage in this fact pattern.

[00:02:54] Speaker 04:
But in many other, if not most, fact patterns, a defendant would be subject to that.

[00:03:00] Speaker 04:
There's a number of different instances, right?

[00:03:02] Speaker 04:
First.

[00:03:05] Speaker 04:
you can issue that certificate under the 4241D commitment.

[00:03:09] Speaker 04:
And we've pointed to two examples in our reply brief of situations where a federal medical center filed the certificate while criminal proceedings were going, abated that civil commitment proceeding, and while the criminal was a case.

[00:03:22] Speaker 03:
Was there any request that they take that action, or did it just happen suespante by the Federal Medical Center?

[00:03:29] Speaker 04:
My understanding is that that's something that happens and can be done, but I don't think there's anything in either of those cases that I'm aware of that indicates that one way or the other.

[00:03:37] Speaker 04:
I think it's good practice, though, because it's consistent with 4246, which is that while someone is committed under 4241D, that is when the facility director is authorized to do that, so they could have done that here.

[00:03:50] Speaker 04:
They also could have sent Mr. Back, Mr. Code, back for further restoration efforts under 4241D2.

[00:03:56] Speaker 03:
Well, the foundy wasn't restoreable.

[00:04:00] Speaker 04:
Well, the district court found he wasn't restoreable, and that's why we're here, because the 4241D process is now over.

[00:04:08] Speaker 05:
And after the time that he was found unrestorable, where was he physically?

[00:04:12] Speaker 05:
I'm just trying to understand.

[00:04:14] Speaker 04:
At the time he was found unrestorable, he was back in Colorado, in the District of Colorado.

[00:04:18] Speaker 04:
He had been evaluated at FMC Devons.

[00:04:21] Speaker 04:
They had found him to be restored, sent him back, had not filed a certificate of dangerousness in the event that the district court disagreed.

[00:04:29] Speaker 04:
It's not the medical director that makes the final determination.

[00:04:32] Speaker 04:
And then he was returned.

[00:04:34] Speaker 02:
And at that moment, when he was found not restorable, he was not hospitalized, right?

[00:04:41] Speaker 04:
I don't think there's any argument that he is hospitalized.

[00:04:45] Speaker 02:
He was not at that moment.

[00:04:46] Speaker 02:
And yet, 4246, one of the requirements is, if the director of the facility in which a person is hospitalized,

[00:04:57] Speaker 02:
And for me, I guess I wonder why that language doesn't mean that the district court in our instance that we just described doesn't have the power to commit the person back for hospitalization and then we start to go through the 4246 procedures.

[00:05:14] Speaker 04:
I just don't think that's what the words mean in 4246.

[00:05:18] Speaker 04:
What do you mean is hospitalized as meaning?

[00:05:21] Speaker 04:
It means that the person is hospitalized, and there are multiple ways in the overall statutory scheme in which a person can be hospitalized, 4241D, which here occurred for a four-month period under 4241D1 for a restoration proceeding.

[00:05:38] Speaker 04:
But then he came out of that.

[00:05:40] Speaker 04:
And if he came out of that, he was no longer hospitalized.

[00:05:42] Speaker 02:
And so you've got to be re-hospitalized if you're going to go under 42, 46.

[00:05:46] Speaker 02:
No.

[00:05:47] Speaker 02:
You could be re-hospitalized under 42, 41, D2.

[00:05:49] Speaker 02:
You could be.

[00:05:51] Speaker 02:
But the court decided not to, as Judge Carson says.

[00:05:55] Speaker 02:
This just isn't going to work out.

[00:05:57] Speaker 02:
And so at that point, you have dangerousness hovering.

[00:06:01] Speaker 02:
And that's a big consideration, you'll agree.

[00:06:04] Speaker 02:
For the person who's threatened in this case, that's about as big as you can get.

[00:06:08] Speaker 02:
And so why do I not read 4241D where it says the provisions of 4246 will then apply.

[00:06:20] Speaker 02:
So I turn to 4246 and I see it has to be hospitalized.

[00:06:24] Speaker 02:
Okay district court, you have the authority to say back to the hospital for this dangerousness evaluation.

[00:06:35] Speaker 04:
Doesn't it just make sense that way?

[00:06:37] Speaker 04:
I don't think it does because I think the statute is, the statutory scheme, right, is narrowly drawn to balance the government's legitimate interests in restoration with the long-standing principle I take about at the Supreme Court that we don't just hold people in indefinite detention because they're mentally ill.

[00:06:54] Speaker 04:
And so there are specific expressly enumerated circumstances throughout the statute that identify when an evaluation can be done

[00:07:02] Speaker 04:
when someone can be committed for hospitalization.

[00:07:05] Speaker 04:
And the express articulation of those instances in the absence of any express articulation here, I think really answers that question.

[00:07:14] Speaker 02:
But I'm not suggesting an indefinite hold without some sort of judicial process.

[00:07:19] Speaker 02:
I'm suggesting that 4246 in tandem with 4241D says, get the person back to the hospitalization.

[00:07:29] Speaker 02:
Now everybody knows what's going on.

[00:07:32] Speaker 02:
The director of the facility looks up and there's Mr. Cote again.

[00:07:35] Speaker 02:
Why are you here?

[00:07:36] Speaker 02:
There's only one answer.

[00:07:37] Speaker 02:
It's because I have to decide as the director if you are dangerous to others.

[00:07:43] Speaker 02:
And so the process kicks and there's a time limit on getting that done.

[00:07:48] Speaker 02:
And if the director determines dangerous and files a certificate, then the court sets a hearing.

[00:07:55] Speaker 02:
At the end of the day, everyone is protected.

[00:07:58] Speaker 02:
The defendant is protected and presumably the defendant doesn't want to get out and harm people.

[00:08:03] Speaker 02:
The defendant has an interest in this as well, but certainly the person who is being threatened or is in danger has a big interest in it.

[00:08:12] Speaker 04:
I would say that that is a statutory scheme that Congress potentially could draw within constitutional limits, but it's not the statutory scheme articulated in 4241 and 4246 because, I'm sorry.

[00:08:26] Speaker 05:
It was my understanding, Willie, the nub of your argument relates to in part the colloquy you're having with Judge Bilch, which is that

[00:08:33] Speaker 05:
it says when in which a person is hospitalized but the question it begs the question how do they get to be hospitalized and at least I understood your position to be and I think rightly so is no small thing to deprive someone of their liberty and put them in the hospital and that there are a variety of things in the statute that explain exactly if you're going to do this thing what you have to do

[00:09:00] Speaker 05:
And that wasn't done here.

[00:09:02] Speaker 04:
It wasn't done here.

[00:09:04] Speaker 04:
And I think, to both your point and to Phillip's concern, 4246 begins that a person is hospitalized.

[00:09:12] Speaker 04:
And so the question is, again, how do they get there?

[00:09:14] Speaker 04:
And 4241 tells us one path to get there.

[00:09:16] Speaker 04:
4245 is another path to get there.

[00:09:19] Speaker 04:
That is, for someone who's already serving a sentence, the BOP can say, we think they should go hospitalized.

[00:09:25] Speaker 04:
And I think what's essentially contemplated here is a parallel process.

[00:09:28] Speaker 04:
And there's nothing unusual about that.

[00:09:30] Speaker 04:
When you're committed under 4241D for a competency restoration, the Bureau of Prisons is always charged with evaluating your dangerousness in the institutional capacity under Harper v. Washington.

[00:09:41] Speaker 04:
It makes perfect sense that they'd be also charged with evaluating you under 4246.

[00:09:46] Speaker 02:
It might make perfect sense, but things can get lost in the gaps.

[00:09:50] Speaker 02:
And so here comes this person for restoration.

[00:09:53] Speaker 02:
A director of a facility might not know, oh, I'm supposed to determine dangerous now as well, because there might be a chance later.

[00:10:02] Speaker 02:
And that's the second point, which is just because you're dangerous at one moment in time doesn't mean that you're going to be dangerous later.

[00:10:09] Speaker 02:
So that early determination of danger may be unfair to the defendant, who no longer is dangerous.

[00:10:17] Speaker 04:
And so if that is the situation, there are multiple avenues to hospitalize someone that are statutorily authorized, whether that's under a continued restoration effort, whether that's under forcible medication under cell, whether it's a continuation of hospitalization under 4241D2.

[00:10:35] Speaker 04:
Now, we're talking a lot about 4241 here.

[00:10:38] Speaker 04:
And that's odd because it's not the basis of the district court's ruling below, which was 4246, because the government disavowed reliance on 4241 below.

[00:10:49] Speaker 04:
If we were having a 4241 argument below, this appeal would look very different, because the outer bounds of an extension or a commitment for hospitalization under 4241 are reasonableness.

[00:11:00] Speaker 04:
And the record that would have been developed below, the legal arguments that would have been made would have been situated around the reasonableness of a 4241 decommitment.

[00:11:10] Speaker 05:
Reasonableness, but the court declared him to be unrestorable.

[00:11:14] Speaker 05:
Correct.

[00:11:15] Speaker 05:
So that essentially terminated the 4241 process, right?

[00:11:19] Speaker 04:
Exactly.

[00:11:20] Speaker 04:
I'm just saying in a hypothetical world in which there was a

[00:11:23] Speaker 04:
a suggestion of another avenue towards recommitment in another case, that would be the discussion and that would be the determination.

[00:11:31] Speaker 04:
Here, he was found unrestorable, 4241D is over.

[00:11:34] Speaker 05:
And going back to this question about what could have happened if he were a prisoner, I mean 4245, that prisoner could have ejected, right?

[00:11:44] Speaker 05:
Yes.

[00:11:45] Speaker 05:
And the way this played out, there was no basis for an ejection.

[00:11:50] Speaker 04:
I mean, the basis for the objection was our position.

[00:11:53] Speaker 05:
But I mean, there's a statutory provision that would have governed whether he could be hospitalized again.

[00:11:58] Speaker 05:
There is no statutory provision for what the district court did here, right?

[00:12:03] Speaker 04:
I don't think there's any statutory provision for that.

[00:12:06] Speaker 04:
And again, I think that there are, again, to the point about what else they could have done and whether the Bureau would have known.

[00:12:14] Speaker 04:
I mean, the statutes have been on the books since 1940, and they were amended in 1984.

[00:12:18] Speaker 04:
I don't think it's realistic to suggest that Bureau prisons wouldn't know what to do or how to do this here, particularly with a man who's been evaluated about a dozen times in as many years, that he wouldn't have been subjected to that.

[00:12:32] Speaker 04:
And particularly, as we pointed out, that there are

[00:12:35] Speaker 04:
There is a path that the Bureau obviously follows in other cases to file a certificate when they think someone is dangerous and have a basis to believe because they don't make the ultimate determination the court does by their recommendation.

[00:12:47] Speaker 04:
In whose custody is he?

[00:12:50] Speaker 04:
Your client.

[00:12:52] Speaker 04:
I don't know that I can answer that on the record because it's not fully developed below.

[00:12:56] Speaker 04:
My personal opinion and assessment of it is that he's in the custody of the marshals at a pre-trial detention center right now because he's been found unrestorable.

[00:13:07] Speaker 04:
Criminal charges have not been dismissed.

[00:13:09] Speaker 04:
And so he'd be essentially detained under the reform act.

[00:13:14] Speaker 03:
I mean, under 4241, though, if he was

[00:13:21] Speaker 03:
sent out to the district court for a competency hearing and he was found to be incompetent.

[00:13:27] Speaker 03:
I mean, doesn't that sort of suggest that he's still in the custody of the attorney general and that all of this time that they had a duty to hospitalize him?

[00:13:34] Speaker 03:
He may be in the custody of the attorney general, but he's certainly not hospitalized.

[00:13:38] Speaker 04:
No, I didn't say he was.

[00:13:39] Speaker 04:
I said he should be, and that they had a duty to do so.

[00:13:42] Speaker 04:
You know, again, if we were having a, if the commitment order was sought below in 4241D, that is something that, you know, a factual development that would have been explored because it would have mattered.

[00:13:52] Speaker 04:
It doesn't matter here whose custody he is.

[00:13:54] Speaker 04:
in under the district court's theory that it can essentially commit him at any point under 4246A and B. And I just want to say that 4246B

[00:14:02] Speaker 04:
clearly has no application to the criminal court authorizing a commitment under these, a commitment for an evaluation of these circumstances.

[00:14:12] Speaker 04:
That statute is, that provision is clearly delineated to the civil commitment process.

[00:14:18] Speaker 03:
I would like to reserve, sorry.

[00:14:20] Speaker 03:
I'm going to go ahead and maybe Judge Holmes will give you a little leeway here, but what do you do with the express reference in

[00:14:28] Speaker 03:
42, 41, 242, 46.

[00:14:30] Speaker 03:
I mean, there's got to be some interplay between these two statutes.

[00:14:34] Speaker 03:
Otherwise, they wouldn't both be referring to each other.

[00:14:38] Speaker 04:
There absolutely is an interplay.

[00:14:40] Speaker 04:
When someone is found to be unrestorable, they're subject to 42, 41.

[00:14:45] Speaker 04:
I mean, excuse me, they're subject to 42, 46.

[00:14:47] Speaker 03:
OK, but that's the problem.

[00:14:49] Speaker 03:
I mean, that's lip service.

[00:14:51] Speaker 03:
But in your current position in the case,

[00:14:54] Speaker 03:
is that he finds he's not restorable.

[00:14:56] Speaker 03:
He's subject to 4246, but there's basically no way to begin the commitment process.

[00:15:02] Speaker 04:
In this particular case, yes.

[00:15:04] Speaker 04:
In most cases, if a certificate has been filed for someone, then you are subject to it and it applies to you.

[00:15:09] Speaker 03:
But that's reading out the possibility that you're going to have someone who is certified over for a hearing as competent by the medical center

[00:15:22] Speaker 03:
And they may not think they're a danger at the time, but by the time they get to the district court and become incompetent again, there are lots of indications that maybe they are a danger.

[00:15:33] Speaker 03:
So the medical center never did have a really fair opportunity to evaluate and file a certificate of dangerousness.

[00:15:47] Speaker 04:
Yeah, same amount of time if I can.

[00:15:48] Speaker 04:
Yes, please.

[00:15:51] Speaker 04:
So I guess there are two quick responses to that.

[00:15:53] Speaker 04:
One is, again, the statutory scheme that Congress created.

[00:15:58] Speaker 04:
does have vehicles for recommitment that would satisfy the standards that are articulated in 4246 under 4241.

[00:16:06] Speaker 04:
The attempt to restoration, continued hospitalization until the proceedings are dismissed.

[00:16:14] Speaker 04:
That's not what was sought here.

[00:16:16] Speaker 04:
And the 4246 commitment simply doesn't apply.

[00:16:22] Speaker 02:
So what if the district court had done this instead?

[00:16:26] Speaker 02:
Here we go.

[00:16:27] Speaker 02:
We've been around once.

[00:16:28] Speaker 02:
We're going to do it again.

[00:16:29] Speaker 02:
I'm sending it back.

[00:16:32] Speaker 02:
Reasonable cause to think that you're incompetent.

[00:16:35] Speaker 02:
We're going to do an evaluation, which everybody knows what that's going to say.

[00:16:39] Speaker 02:
And hey, while you're at a director of the facility, do a certificate of dangerousness if you think this person's dangerous.

[00:16:48] Speaker 02:
Would you be satisfied with that?

[00:16:52] Speaker 04:
I would be satisfied conceptually from the problem that exists in this case, that there is a statutory basis for committing someone under that circumstances.

[00:17:11] Speaker 04:
But the challenges, we would still have a multitude of challenges to a 4241D commitment, whether that is the propriety of doing that under 4241D2 on the record that exists, or D2, the other provisions.

[00:17:27] Speaker 04:
the outer bounds of reasonableness that apply to a 42-41D commitment extension.

[00:17:36] Speaker 05:
But that would be a different fight, and that's the point.

[00:17:39] Speaker 05:
That's not the fight we have now.

[00:17:40] Speaker 05:
And if I understood correctly and

[00:17:44] Speaker 05:
The charges are still pending in this case, are they not?

[00:17:47] Speaker 04:
The government moved to dismiss the charges but the district court didn't grant that motion so they are still pending.

[00:17:53] Speaker 05:
So essentially the cycle in some ways for 4241 is not entirely closed.

[00:17:58] Speaker 05:
I mean, it is closed in one sense, in the sense that there was a determination of unrestorability.

[00:18:04] Speaker 05:
So in some sense, that's terminated, right?

[00:18:07] Speaker 04:
Yeah, I think it is terminated because all of those predicate acts of restoration commitment, extension, have essentially passed.

[00:18:17] Speaker 04:
We found restorability analysis.

[00:18:19] Speaker 04:
We go to the subject 2 language.

[00:18:21] Speaker 04:
Again, to my contradiction with Judge Carson, I think he is subject 2, 4246, but it does not apply to him because the preconditions have not met.

[00:18:29] Speaker 04:
Because you couldn't get him in?

[00:18:31] Speaker 04:
Because no certificate was filed during the time period which it could be, yes.

[00:18:35] Speaker 04:
Okay, thank you.

[00:18:36] Speaker 04:
Thank you.

[00:18:45] Speaker 01:
May it please the court, Bishop Gruwell on behalf of the United States.

[00:18:49] Speaker 01:
This is a sequential statute.

[00:18:50] Speaker 01:
You go through A, B, C, D in 4241, you get to D, it then sends you to 4246.

[00:18:57] Speaker 01:
We are not out of 4241-D yet, certainly not out of the custody and also not out of the hospitalization.

[00:19:04] Speaker 01:
D1 and D2 have to be met to get to that last line that sends you to 4246.

[00:19:11] Speaker 01:
And D2 has not been met in any way.

[00:19:13] Speaker 01:
Either the time period has to become unreasonable,

[00:19:16] Speaker 01:
he has to be restored such that he can the trial can proceed or the charges have to be dismissed well he just declared unrestorable and so why doesn't that terminate the 4241d proceeding because it gets because the way it generally proceeds is once he's determined unrestorable

[00:19:35] Speaker 01:
then you get the dismissal of the charges and that's what moves us out.

[00:19:39] Speaker 01:
That didn't happen here.

[00:19:40] Speaker 01:
That's why below, we didn't argue that in fact he was still in D because we assumed the district court was going to dismiss the charges.

[00:19:47] Speaker 01:
But the district court didn't do that.

[00:19:49] Speaker 01:
It kept him in 4241D and there's nothing inappropriate about that.

[00:19:53] Speaker 01:
In fact, that's why if you go to 4246A, it lists both somebody who's in custody under 4241D

[00:20:00] Speaker 01:
and somebody against who the charges have been dismissed.

[00:20:03] Speaker 02:
Verbatense.

[00:20:04] Speaker 02:
Is that right?

[00:20:04] Speaker 02:
Is it in custody or was it in custody at some point?

[00:20:08] Speaker 02:
It says it was.

[00:20:11] Speaker 01:
Oh, please.

[00:20:12] Speaker 01:
No, fair enough.

[00:20:13] Speaker 01:
But if the dismissal of charges, there's no real reason for the 4241D to be included there then because the dismissal of charges would get you that anyway.

[00:20:23] Speaker 01:
And you could just say dismissal of charges if that's how you're going to put it.

[00:20:27] Speaker 02:
It wouldn't matter here because the charges aren't dismissed.

[00:20:30] Speaker 02:
And yet at one point he was under subject to subsection D, and so even though he's not at this moment, qualifies.

[00:20:38] Speaker 02:
Just wondering if you read it the same way.

[00:20:40] Speaker 01:
I think that's right.

[00:20:42] Speaker 01:
But again, if you look at the plain text of D2, nothing in D2 says, once you're unrestorable, we're out of D2.

[00:20:48] Speaker 01:
Well, it doesn't say that.

[00:20:54] Speaker 05:
The language 42 41 D to a speaks about the notion of the court making a finding that there's a substantial probability additional time will allow for restoration.

[00:21:06] Speaker 05:
or pending charges, whichever is earlier.

[00:21:09] Speaker 05:
Well, the court has made a determination that he's unrestorable.

[00:21:13] Speaker 05:
And so why doesn't that kick you then right to that inherent language of D2, which says, okay, now that you're unrestorable, this is what happens.

[00:21:24] Speaker 05:
The problem here is this is what happened usually happens while he's still hospitalized under 4241D, and that's not where we are in it.

[00:21:35] Speaker 01:
Because A says if his condition is so improved that we may proceed to trial, then A has been satisfied.

[00:21:43] Speaker 01:
You're talking about when A is not, when he hasn't been restored.

[00:21:47] Speaker 01:
So A is not satisfied.

[00:21:49] Speaker 01:
And so the way that you're going to get out of it is through B.

[00:21:52] Speaker 01:
There's been no finding that he's been restored.

[00:21:55] Speaker 01:
That's what gets A triggered.

[00:21:56] Speaker 01:
B being 4246, B?

[00:21:57] Speaker 01:
4241 to A is satisfied when he is restored and we can go to trial.

[00:22:08] Speaker 01:
not when the court finds he's not restored.

[00:22:11] Speaker 01:
That does not satisfy 4241D2A.

[00:22:12] Speaker 05:
A speaks, though, about continued hospitalization if the court makes a substantial probability of determination that this will allow for restoration.

[00:22:30] Speaker 05:
Am I reading that correctly?

[00:22:33] Speaker 01:
That is correct.

[00:22:34] Speaker 05:
The alternative is, which everyone is earlier, the charges are dismissed.

[00:22:42] Speaker 05:
Okay, so the court has not made a determination that continued hospitalization will allow for restoration.

[00:22:50] Speaker 05:
The charges have not been dismissed.

[00:22:52] Speaker 05:
Neither one of those is implicated.

[00:22:54] Speaker 05:
But what is implicated is the fact that the court now has made a determination he is unrestorable, right?

[00:23:00] Speaker 01:
Right, but that's not triggering A. Because A is when he is restorable, you get out of it and you proceed to trial.

[00:23:08] Speaker 01:
And then we end the hospitalization for that.

[00:23:10] Speaker 01:
If he's not restorable, then the way you move forward out of that is by the dismissal of the charges.

[00:23:16] Speaker 01:
Otherwise, whichever earlier of the charges being dismissed would never occur.

[00:23:20] Speaker 01:
Because the court's always going to make that restorability finding before the charges get dismissed.

[00:23:25] Speaker 05:
The dismissal of charges is never going to occur.

[00:23:26] Speaker 05:
OK, the dismissal of charges does not occur.

[00:23:29] Speaker 05:
but the point is the court has said he's unrestorable and and consistent with the argument that we just heard whether you could have whether the government could have been vote

[00:23:39] Speaker 05:
uh... the forty two forty one had to say oh well you know the charges are not dismissed we can try to bring back in again and try again your honor let's try to do it again well that didn't happen here the court accepted the premise that he was unrest i mean the government accepted the premise that he was unrestorable and it seems to me that by that that last language says you're unrestorable you're subject to forty two forty six

[00:24:05] Speaker 05:
The real problem seems to be is the space between saying you're subject to 4246 and how do you get him in the hospital?

[00:24:15] Speaker 01:
So I'll move past and assume that we are somehow out of 4241 D2.

[00:24:20] Speaker 01:
I don't think we are.

[00:24:21] Speaker 01:
But if we aren't, all that ends, first of all, is the mandatory hospitalization.

[00:24:26] Speaker 01:
It does not end the custody of the attorney general.

[00:24:28] Speaker 01:
He is still in the custody of the attorney general.

[00:24:30] Speaker 01:
It just says that that hospitalization should end.

[00:24:33] Speaker 01:
First, he can still be hospitalized just by virtue of the custodial relationship.

[00:24:38] Speaker 01:
BOP, the third one in the category of 4246A, is somebody who's about to be released from BOP.

[00:24:45] Speaker 01:
When they're being released, you can hospitalize them to get that assessment because they're in their custodial relationship.

[00:24:51] Speaker 01:
Here, he's in the Attorney General's custodial relationship.

[00:24:54] Speaker 05:
Well, wait a minute.

[00:24:55] Speaker 05:
4246 speaks of him being in

[00:24:58] Speaker 05:
when the person is hospitalized.

[00:25:02] Speaker 05:
So then if he's about to be released, you can then get your certificate.

[00:25:08] Speaker 05:
It's not saying that if he's in the custody of the Bureau of Prisons and he's about to be released, that you can then put him in the hospital.

[00:25:16] Speaker 01:
I'm just saying that that's an alternative way that

[00:25:20] Speaker 01:
That's not the situation here, but when you're dealing with somebody who's been sentenced to prison for so many years, that's what that provision in 4246A is talking about, is somebody who's in BOP custody.

[00:25:29] Speaker 01:
And there's nothing saying... And that's not what we've got here, right?

[00:25:32] Speaker 01:
No, but it goes to the point of how do you get the hospital analysis for that one?

[00:25:38] Speaker 01:
It's by virtue of the custodial relationship.

[00:25:41] Speaker 01:
We can still do that here.

[00:25:42] Speaker 05:
Why don't you get it by virtue of 4245, where the inmate would then have a right to object, which is not what you have here.

[00:25:51] Speaker 01:
4245 is not talking about when the person's about to be released, necessarily.

[00:25:56] Speaker 01:
It's when you just have somebody who's in prison.

[00:25:58] Speaker 01:
And it says the inmate can't have checked.

[00:26:01] Speaker 01:
If you look to 4245E, it's like, does he still have time?

[00:26:05] Speaker 01:
We'll keep him in prison.

[00:26:06] Speaker 01:
I think it's by virtue of the custody of the relationship.

[00:26:09] Speaker 01:
Nonetheless.

[00:26:10] Speaker 05:
Let me, the thing that puzzles me about that argument, and I know there are multiple arguments here, but the thing that puzzles me about that argument is Congress seems to have gone to great lengths to explain the circumstances under which you can deprive somebody of their liberty to hospitalize them.

[00:26:26] Speaker 05:
You have the cell proceedings.

[00:26:28] Speaker 05:
You have 4241 D. I mean, you have multiple ways that you have to make showings.

[00:26:34] Speaker 05:
You have to get a hearing.

[00:26:36] Speaker 05:
You have to do all this.

[00:26:37] Speaker 05:
How can it be, then, that if I've got somebody sitting in prison or in custody waiting charges, that I can say, oh, attorney general, I just want to put him in prison.

[00:26:49] Speaker 05:
You know he's with me anyway.

[00:26:50] Speaker 05:
I mean, put him in the hospital.

[00:26:52] Speaker 05:
He's with me anyway.

[00:26:53] Speaker 05:
How does that make any sense?

[00:26:54] Speaker 05:
I mean if the Congress has gone through all these pains to create this elaborate procedure where you can deprive somebody of their liberty for hospitalization that you can say just because he's in our custody we can do that.

[00:27:08] Speaker 01:
I think that they're saying

[00:27:10] Speaker 01:
It's again, the notion of we're going to deprive them of their liberty, one, for the mental assessment, whether they're competent or not.

[00:27:17] Speaker 01:
Once you're getting to the dangerousness assessment, I think Congress has said, hey, you then go through this certificate process.

[00:27:24] Speaker 01:
Obviously, it's necessary for them to be hospitalized to do that assessment, and I think Congress has provided for that.

[00:27:30] Speaker 01:
Which I think is the third argument.

[00:27:31] Speaker 05:
Where did Congress provide for that?

[00:27:32] Speaker 05:
Because the Ninth Circuit clearly indicated that it was relying on the logical inference.

[00:27:40] Speaker 05:
There's no statutory provision that says how he gets back in the hospital in this situation.

[00:27:45] Speaker 01:
What is it?

[00:27:46] Speaker 01:
Point it out to me.

[00:27:47] Speaker 01:
I think it's 4246A by implication.

[00:27:49] Speaker 01:
Just like when a recipe says bake at 375, it doesn't have to say turn on the oven.

[00:27:55] Speaker 01:
And here it says that there are two requirements.

[00:27:59] Speaker 01:
One, he has to be hospitalized, which I think both parties agree on, because the language says, is hospitalized when the certificate is issued.

[00:28:05] Speaker 01:
Second, I think the person has to be due for release.

[00:28:08] Speaker 01:
And so the only way that that can happen, that they are hospitalized and they're due for release, is they've been determined to be unrestorable already, or the charges have been dismissed, which again suggests this is sequential, and that we can therefore hospitalize them

[00:28:24] Speaker 01:
after the fact to do that dangerousness assessment.

[00:28:27] Speaker 05:
The argument that opposing counsels made in their brief and here today is that ordinarily there is a mechanism whereby if somebody is unrestorable, that therefore subject to 4246, that they get the certificate.

[00:28:43] Speaker 05:
It's because they're already in the hospital.

[00:28:45] Speaker 05:
In this particular instance,

[00:28:47] Speaker 05:
We end up with this factual pattern in which he's not in the hospital.

[00:28:51] Speaker 05:
And therefore the question arises, can you just infer, can you just infer, as the Ninth Circuit did, that, oh, well, you know, the only way we're going to make 4246 work is if we put him back in the hospital.

[00:29:03] Speaker 05:
Well, what's the statutory basis for that inference?

[00:29:07] Speaker 01:
I think at that point, when they're just in a hospital,

[00:29:10] Speaker 01:
I guess the factual scenario would be at that point they've decided that they're not restorable and that they're going to be due for release.

[00:29:16] Speaker 01:
That they're subject to 42.

[00:29:18] Speaker 05:
Yes, that's 42-46 and then you could then implement the dangerous certificate process

[00:29:25] Speaker 05:
And so there are circumstances in which this works like a well-oiled machine.

[00:29:31] Speaker 05:
The point is, we're sitting here in a circumstance in which it appears that it has not.

[00:29:36] Speaker 05:
And then the question becomes, can we, like the Ninth Circuit, say, oh well, you know, as a matter of logic, you know, the only way we can do a certificate is to put him in the hospital, so we, you know, I have the inherent authority to put him in the hospital.

[00:29:50] Speaker 05:
Why is that okay?

[00:29:51] Speaker 01:
Again, I think the reason is, one, in the situation where they've been found restorable by the hospital, you don't get out of 4241D yet.

[00:30:03] Speaker 01:
You're still in 4241D where they have to be hospitalized.

[00:30:07] Speaker 01:
If you do get out of 4241D,

[00:30:11] Speaker 01:
And that's the reason that they're due for release.

[00:30:15] Speaker 01:
Then it's the fact that you're certifying, again, 4246A says that what you're certifying is, quote, is presently suffering from this condition that as a result of their release,

[00:30:27] Speaker 01:
this risk is going to occur and there are no state facilities that are going to be there.

[00:30:32] Speaker 01:
You're not making that certification that right now, that as a result of their release, that's going to occur and that there are no state facilities that are available unless they're actually going to be released at that point.

[00:30:46] Speaker 01:
And that's not something that the director of the facility can determine, whether they're going to be released at that point or not.

[00:30:52] Speaker 01:
That's something that works through the courts.

[00:30:54] Speaker 01:
And so I think the implication of the fact that 4246 is titled somebody who's due for release, the fact that that certification says they have to be presently, they have to be in a hospital, and they have to be presently suffering from this condition that as a result of their release is going to result in that,

[00:31:08] Speaker 01:
the fact that logically it makes no sense when you're talking about the BOP inmate who's been in prison for, or you're talking about somebody who's going to go to trial and later on you're going to go through that analysis.

[00:31:20] Speaker 01:
It doesn't make sense to do that certification now when years later it might not be valid.

[00:31:26] Speaker 03:
I think all those... The problem is you can't get this guy back in the hospital is what the other side's saying.

[00:31:35] Speaker 03:
You have no mechanism to get him back in the hospital.

[00:31:38] Speaker 01:
I think we could have sent him to the hospital without the court order.

[00:31:41] Speaker 01:
And I think that's from the fact that we're still in 4241D.

[00:31:44] Speaker 01:
It says that we must, that we shall hospitalize him.

[00:31:47] Speaker 01:
He was only released from the hospital because they found him restored and were bringing him back for the hearings that will determine is he in fact restored.

[00:31:55] Speaker 01:
And if you look at 4241E, it actually says that the court doesn't release him from that hospitalization until the court itself finds that he has been restored at that level.

[00:32:07] Speaker 01:
And that did not happen.

[00:32:09] Speaker 01:
He wasn't in the hospital, though, was he?

[00:32:11] Speaker 01:
Because he was out for the hearings about whether his competency had been restored.

[00:32:15] Speaker 03:
Why didn't you move to remand him back to the hospital once the court found that he was not competent to stand trial?

[00:32:25] Speaker 01:
At that point, that is when we said, so we said that the court should send him back to the hospital at that point once we found, we gave a notice that we didn't think he was going to be restorable.

[00:32:35] Speaker 01:
And then they had a hearing.

[00:32:37] Speaker 01:
And our argument was, yep, we don't believe he's going to be restorable.

[00:32:41] Speaker 01:
The court should dismiss the charges and send him back to the hospital for this dangerous assessment.

[00:32:46] Speaker 02:
But you don't, I'm sorry, go ahead.

[00:32:48] Speaker 02:
If you're still in 4241D, how do you ever get out of it?

[00:32:53] Speaker 01:
So if the court chose to dismiss the charges here, which at some point, well, the time period could become unreasonable.

[00:33:00] Speaker 01:
At some point, Mr. Code could say a challenge like, you're still in the D2 period and it's gone on too long.

[00:33:06] Speaker 01:
That's one way.

[00:33:07] Speaker 01:
The court could dismiss the charges.

[00:33:09] Speaker 01:
That's the other way.

[00:33:09] Speaker 01:
Those are the two appropriate ways for us to get out of D1.

[00:33:13] Speaker 01:
And that's what I think will occur after the dangerousness assessment is done, is that the court will dismiss the charges and he will then be committed pursuant to the

[00:33:22] Speaker 01:
to 46A certification if it occurs.

[00:33:25] Speaker 01:
So the district court erred?

[00:33:28] Speaker 01:
I don't think the district court erred because I think it could in fact say I'm not going to dismiss the charges.

[00:33:34] Speaker 01:
I'm going to rely on the 4241D custody period to send him back to hospitalization.

[00:33:41] Speaker 01:
It may have given the wrong reason but I think it still had the authority to do that because the statute says shall be hospitalized and we asked for an order that he shall be hospitalized.

[00:33:49] Speaker 05:
It may have given the wrong reason.

[00:33:52] Speaker 05:
I mean, there's an implication of whether it gave the wrong reason or not.

[00:33:56] Speaker 05:
I mean, if it's going to rely on 4246 as opposed to 4241, and I mean, the argument that opposing counsel made is we'd have a very, very different case if the court had chosen to implicate, and the government had gone along with relying on 4241, but it didn't do that, did it?

[00:34:13] Speaker 01:
Yes, of course.

[00:34:17] Speaker 01:
So the court did not do that.

[00:34:20] Speaker 01:
This court can obviously affirm on any grounds in the record, so that would be the first point.

[00:34:24] Speaker 01:
But if this court were to reverse on this, then we're going to go back.

[00:34:27] Speaker 01:
The charges are going to be dismissed.

[00:34:29] Speaker 01:
And we are now at the period where we say, OK, the charges have been dismissed.

[00:34:32] Speaker 01:
We go to 4246.

[00:34:34] Speaker 01:
And therefore under 4246A, the implications of that is when he's due for release, that the certification that must occur while he's hospitalized occurs, we can now send him back to the hospital.

[00:34:43] Speaker 01:
And then I imagine we will probably be back up here at that point.

[00:34:47] Speaker 01:
Oh, I'm sure you'll be back up here.

[00:34:49] Speaker 05:
And that's okay.

[00:34:50] Speaker 05:
But wait a minute.

[00:34:52] Speaker 05:
Let me play out the scenario.

[00:34:53] Speaker 05:
Let's assume they prevail.

[00:34:55] Speaker 05:
We go back.

[00:34:57] Speaker 05:
The government dismisses the charges.

[00:35:00] Speaker 05:
But in that posture, the language that's subject to 4246 at the end, but he's still out though.

[00:35:08] Speaker 05:
And I mean, if the charges are, it seems to me at that point, aren't in 4241 your only option because he doesn't take his meds and therefore there's a question of competency again?

[00:35:18] Speaker 05:
Because if you dismiss the charges, how are you going to get him in the hospital?

[00:35:22] Speaker 01:
And again, I think the argument would be, one, he's still in the custody of the attorney general because 4241D... When you dismiss the charges?

[00:35:29] Speaker 01:
Yeah, because 4241D says the hospitalization ends, not the custody at that point.

[00:35:34] Speaker 01:
the separate Insanity Defense Reform Act custody of 4241, the preparatory paragraph in D, and I think that's what Judge Traxler said in his concurrence in the Kerbo decision, and I think that's the reason that the Fourth Circuit, Judge Wilkinson said in Barry that even though the charges had been dismissed there,

[00:35:54] Speaker 01:
He didn't have to analyze that because he was still in 4241D custody, even though they've gone on to 4246.

[00:36:00] Speaker 01:
The custody doesn't end.

[00:36:02] Speaker 01:
Only the mandatory hospitalization ends.

[00:36:04] Speaker 01:
And that doesn't mean that permissive hospitalization is not still on the table.

[00:36:10] Speaker 01:
But because he's still in our custody, we can still then argue that under 4246A, the same thing should occur.

[00:36:16] Speaker 01:
That there's this implication that because he has to be in a hospital and because it's when he's due for release,

[00:36:23] Speaker 01:
or the charges have been dismissed, that it can be certified and we can send it to a hospital.

[00:36:29] Speaker 02:
42, 46 A and B, they're separate questions, right?

[00:36:34] Speaker 02:
A being can you send him back for hospitalization so the facility director can determine whether to issue a certificate.

[00:36:41] Speaker 02:
But even if you can, that doesn't mean necessarily that the district court can do as I think it did here and order this

[00:36:51] Speaker 01:
evaluation, psychiatric evaluation under B. You're talking about 4246A and B?

[00:36:57] Speaker 01:
Yes.

[00:36:58] Speaker 01:
I think that Mr. Koch probably has the better argument that B is not how you get there for A. We made that argument because I think in the Perea decision that we cite in our brief from this court, that's how it occurred was through B, and this court didn't question that, although I don't think that argument was necessarily before.

[00:37:13] Speaker 02:
So again, the district court didn't err, but it got it wrong.

[00:37:16] Speaker 01:
Well, but is it an error that shouldn't be affirmed on the grounds that it actually had the authority, but it designated the wrong thing for the authority to do it?

[00:37:26] Speaker 03:
This all just seems so circular to me.

[00:37:31] Speaker 03:
And we've got this idea that we're sort of pretending that he's still hospitalized, but he's not.

[00:37:38] Speaker 03:
And then we've got a district court order that's well-aged at this point ordering him back

[00:37:46] Speaker 03:
to the hospital and it's not been, you know, executed on and he's not been... May I respond to that one point?

[00:37:55] Speaker 01:
So, yes, he should still be hospitalized.

[00:37:59] Speaker 01:
The Godinez decision from the Ninth Circuit says, when you bring him back for the hearing, we're not going to call that as necessarily taking him out of the hospitalization.

[00:38:06] Speaker 01:
When the hearing ended here,

[00:38:07] Speaker 01:
We had the order.

[00:38:09] Speaker 01:
We were sending him back to hospitalization.

[00:38:12] Speaker 01:
And then we, you'd have to take judicial notice of this, but it is in the record below.

[00:38:16] Speaker 01:
Then we agreed to a stay with Mr. Code from that hospitalization for the appeal to proceed.

[00:38:21] Speaker 01:
So this issue could be decided.

[00:38:23] Speaker 01:
But we were moving forward to sending him back to the hospitalization.

[00:38:26] Speaker 01:
And he had only been brought out for the hearing about his restorability.

[00:38:32] Speaker 01:
And I think you have to be able to do that even in the Shal hospitalization.

[00:38:37] Speaker 01:
realm or otherwise, you know, you couldn't put him on the stand for one thing to determine his competency or whether he'd been restored.

[00:38:46] Speaker 01:
I'm well over my time.

[00:38:47] Speaker 05:
No, thank you, counsel.

[00:38:49] Speaker 05:
Thank you for your argument.

[00:38:52] Speaker 01:
Counsel, over three minutes, judges.

[00:38:56] Speaker 05:
Over three minutes.

[00:38:57] Speaker 05:
Give him, please, four minutes.

[00:39:04] Speaker 05:
And if you would start counseled by, I want to understand the implication of a circumstance in which it were to go back and there were a dismissal of the charges.

[00:39:16] Speaker 05:
As I understand it from opposing counsel, in that circumstance, he still could be hospitalized under 42, well that he is, could be hospitalized under 4241 at that juncture.

[00:39:30] Speaker 05:
In other words, at least what, and let me put a finer point on it, what I understood to be the circumstance, perhaps wrongly, was that when the court pronounced, you're not restorable, at that juncture the whole mechanism of 4241 terminated.

[00:39:47] Speaker 05:
What I understand from opposing counsel is that's not right, that essentially

[00:39:52] Speaker 05:
When you look at the language of 4241, it doesn't contemplate the termination of 4241, but the idea of

[00:40:05] Speaker 05:
even the dismissal of the charges doesn't terminate 42-41.

[00:40:08] Speaker 05:
So I just need to try to understand, let's assume you win, how does this play out at that juncture if they dismiss the charges?

[00:40:17] Speaker 05:
So, a couple responses to that I think.

[00:40:22] Speaker 04:
One is, you're reading this right, that

[00:40:28] Speaker 04:
The 4241D period ends is terminated at the juncture of the four-month restorability analysis, or a reasonable extension, or when the pending charges are disposed of.

[00:40:44] Speaker 04:
And then at the end of that time period specified, then we go into the subject 24246 discussion.

[00:40:51] Speaker 04:
And our argument is exactly the same.

[00:40:53] Speaker 04:
So I don't think that is actually right.

[00:40:56] Speaker 04:
There is a provision now in 4246A for someone who is currently hospitalized against two charges are dismissed that the director can file a certificate, but that wouldn't apply here for the reasons we've discussed today.

[00:41:11] Speaker 02:
On the same point and the tail end of 4241D,

[00:41:16] Speaker 02:
where it says, if at the end of the time period specified, it is determined, and so they throw in nice passive verb acts there, could that be the district court determining it, as opposed to the medical facility?

[00:41:30] Speaker 02:
I think it is the district court.

[00:41:32] Speaker 02:
And so if it could be the district court, and the district court is so determined in here, then the baton is passed to 4246 by the rest of that sentence.

[00:41:42] Speaker 04:
No.

[00:41:43] Speaker 02:
Well, then we go to 4246 because it says the defendant is subject to the provisions of 4246.

[00:41:50] Speaker 04:
And he's already been committed under 4241D, so he was already subject to the provisions of 4246 for purposes of certification.

[00:41:58] Speaker 04:
And our argument is exactly the same under that reading.

[00:42:01] Speaker 04:
Now, I think the crux here, though, is that the government

[00:42:06] Speaker 04:
asked the district court to commit Mr. Code for hospitalization under 4246 below.

[00:42:15] Speaker 04:
That's why we're here.

[00:42:17] Speaker 04:
That's what the district court did.

[00:42:18] Speaker 04:
I think very indisputably that was error.

[00:42:22] Speaker 04:
You know, I think on a remand, certainly the court has the authority to issue a broad remand, but I think a query, whether the government invited the error that occurred here,

[00:42:30] Speaker 04:
whether it's appropriate to give them a second bite of the apple or whether the court should be simply send it back into dismissal.

[00:42:37] Speaker 03:
What would your position be if there hadn't been a stay entered in this case and your client was actually hospitalized right now?

[00:42:45] Speaker 04:
We would still, this court still have the authority to walk it back because it was an illegal order that was entered.

[00:42:52] Speaker 04:
And I also think, too, that there was a suggestion about affirmance on a 4241D alternative ground.

[00:43:01] Speaker 04:
That argument is an alternative ground doctrine.

[00:43:04] Speaker 04:
It doesn't appear in the government's answer brief.

[00:43:06] Speaker 04:
And that only applies when an issue is dispositive, indisputable, and appears clearly in the record.

[00:43:11] Speaker 04:
And I think from our discussion today, it's very clear that the 4241D argument does not require further legal and factual development.

[00:43:20] Speaker 04:
And I did just want to say to Judge Carson, in response to your question about custodial status, I think that the fact that the government did affirmatively ask for a recommitment and re-hospitalization under 42-46 is pretty good evidence of whose custody he was in.

[00:43:33] Speaker 04:
And on page 69 of Volume 1, the defense did represent that he was in the custody of the US Marshals, and that was never objected to.

[00:43:40] Speaker 04:
But again, I can't point to something definitively that answers that, but I think it's pretty clear from both of those factors.

[00:43:45] Speaker 04:
That's all I have, unless the court has further questions.

[00:43:48] Speaker 02:
Could I ask you just one, again, a tail end question on the tail end of D. What would it mean for a defendant to be subject to the provisions of 4246 if 4246 doesn't apply?

[00:44:05] Speaker 04:
It means that he's subject to it, and if it applies to him, it applies to him, and if it doesn't apply to him, it doesn't apply to him.

[00:44:13] Speaker 04:
It means he's subjected to it.

[00:44:15] Speaker 03:
Why would you have it?

[00:44:16] Speaker 03:
Wouldn't that be surplusage then?

[00:44:18] Speaker 03:
Well, it doesn't mean, and it means that if he's subject to it, he's subject to it.

[00:44:22] Speaker 03:
If he's not, he's not.

[00:44:25] Speaker 03:
Don't you have to read it to somehow incorporate 4246 into the analysis of 4241?

[00:44:35] Speaker 04:
I don't think so, because it tells you what to do when a district court has found someone restored.

[00:44:39] Speaker 04:
Just as elsewhere in the statute, it tells you what to do.

[00:44:42] Speaker 04:
I'm sorry, when someone is not restored.

[00:44:45] Speaker 04:
Just as elsewhere in the statute, it tells you what to do when a person is restored.

[00:44:49] Speaker 04:
We initiate the criminal proceedings.

[00:44:56] Speaker 05:
Thank you, counsel, for your very fine argument.

[00:44:59] Speaker 05:
The case is submitted.