First case, United States versus Congress, Mr. Beck. Thank you, Your Honor. Thank you Judge Duncan, Judge Kenan, Judge Diaz. I rise today to argue that it's improper in a case such as Mr. Conrad's to delay for 96 months his psychological evaluation and competency here. The statute 42.43C contemplates that the hearing will happen within a 40-day period. Indeed, the statute is the mandatory word, shall, because it wants that hearing to happen properly. The reason that Congress and the IDRA was consistent on a prompt hearing is because of the history which gets put forward in the various provisions of the IDRA, namely that we need to have these hearings so that it can have prompt government oversight so that if somebody is mentally ill, that they can get treatment, that they can recover, and then upon recovery they can be discharged from the insanity
. Why do you assume that your client wouldn't be able to get treatment even absent this commitment hearing? Well, the client may or may not be able to get treatment absent the commitment hearing. The purpose of the statute is to provide oversight to... Do you think the Congress really contemplated this very peculiar scenario when it drafted this statute? This is a peculiar scenario. I don't think quite frankly anybody contemplated the problem. That is a problem. Then the question becomes, what do we do with the statutes of Congress? I think the answer is we enforce the best we can, and in this case, enforcing the best we can would be to insist upon a prompt hearing, evaluate.
.. Well, but if the policy goal of the statute is to... It's to full, both to ensure proper treatment, but also to protect the community from someone who is in need of treatment and might be a danger to society, what purpose does it serve to have a commitment hearing while your client is incarcerated? It serves a following purpose. There's a separate statutory provision under 4246 that protects the public, shouldn't Mr. Conrad be determined to be safe and dischargeable from the insanity case during the term of his incarceration? And then 4246 says that the burden then shifts to the government to prove upon his release. What Mr. Conrad wants is an opportunity to show that he's no longer mentally ill and safe and so that the government would be required to meet the burden at the end period of his incarceration rather than shifting the burden back to him
. I'm sorry. How long ago was it Mr. Conrad's adjudication what, seven years ago? It occurred in 2007, you're on. And hasn't he pled guilty at least a couple of times since then? He pled initially to in the insanity proceedings and then there was a separate, well, if you want to count the state court case, there was a state court plea and then there was followed by the federal plea in which he received the 96-month sentence. Isn't it somewhat anomalous that he is now interested in a prompt adjudication? Well, Your Honor, after the remand from the fourth circuit, he asked the district court for a prompt adjudication and was told no because of, because the criminal case was then pending. And that, pendency of the criminal case essentially, prevented him from having the prompt hearing that he desired. Thank you. Mr. Beck, it seems to me though that your argument runs flat up against the language or the statute because section 42, 43 sets out as the defendant's burden of proof that his release would not create a substantial risk of bodily injury due to a present mental disease or defect
. So how could he prove years before his release that his release would not create a substantial risk of bodily injury due to a present mental disease or defect? There's no way that he could or that any expert could opine us to that. I think, Your Honor, when you have an anomalous situation like this, I think the question that we're really asking in this anomalous situation is, would his present release pose a danger to the public? And if the answer to that is no, it would not, then he should be taken off the insanity status and be put into the status of a normal, normal prisoner. This is important. And then what happens right before his, you're saying then right before his release, there's no re-evaluation of his mental status. The government would then under 42, 46 have the ability if the director of a facility in which he was housed. Remember the Bureau of Prison that any time it wants can place him in a facility. If it places him in a facility, he could then object and the government would then have the burden to show that he at that time would impose a danger to the public. And that would be the manner that the statute contemplates to protect the public. Moving on with my argument, Your Honor, I think it's not only 42, 43, but there are several provisions of the IDRA, which are negatively impacted by the delay
. One provision is, are the provisions in 42, 47. The Congress when it adopted the IDRA specifically contemplated that the Harmon procedures would be adopted. The Harmon procedures are the procedures for annual evaluation and motion filing if the defendant has recovered. Those procedures cannot be followed when there is an eight-year delay in the evaluation and hearing. Moreover, not only did Congress implement the Harmon procedures in 42, 47, Congress also implemented that habeas corpus was provided for because if those evaluations that the Bureau of Prisons would be doing on an annual basis, if those evaluations showed that somebody had recovered and that they should be released, then the Director of the facility would put that into their report and presumably the defendant would file a motion for his release. And the court would then be required to evaluate the evidence and if it appeared that his release would not pose danger to the public, it would then so order. These procedures are important for a variety of reasons. As I've said, the placement in a given facility is something because the Supreme Court and Vitech persons, the gentleman said that a mental health placement is different than a normal prison placement. The prisoner has a liberty interest in not having that kind of placement
. Also, the burden shifting that we're talking about in between Mr. Conrad at the initial 42, 43 having the burden and under 42, 46, the government having the burden because of the Supreme Court's decisions and such cases is adding to that is important because we don't want to apply the wrong standards and the wrong procedures at the wrong points in time. Also, I would note that the cases that the government cited for delay, obviously neither took all of the Tucker considered a state custody case that was in one way similar. It was different in the respect that you had an individual who is not in the custody of the BOP. So the BOP at the time did not have the custody of the defendant for the purpose of treatment and the petitioning for that hearing wouldn't have been something practical given the federal government's comedy to the state government. And the other case, the cited Bowie was just a short delay, not the 96 months that is sought in this case. I would note that the reference to the Harmon procedures and also the reference to to Vitac versus Jones in the legislative history shows that when Congress was providing for these various procedures that Congress was at that time interested in the district court having a looking at the condition of the defendant looking at whether he was receiving the mental health care that he needed. And also if the care was not being provided adequately making different and separate orders because as Congress put in the legislative history, this was not a matter that they felt comfortable with just assigning it to the court. The Bureau of Prisons without judicial oversight
. All of these reasons that support, I believe, a understanding of the law wherein Mr. Conrad will have a prompt hearing where the district court can evaluate. And if he doesn't have mental illness, let him free of the insanity case and then serve out his period of incarceration. If at the end of his period of incarceration, he does present a danger to the community than 42, 46 is the provision that allows the remedy. That provision allows the government and the by through the director of the the O.K. facility to file a notice and then for the parties to present evidence with the government bearing burden of proof as opposed to Mr. Conrad bearing burden of proof. So that put him in a better position by virtue of the intervening felony than an individual who was not so incarcerated on another offense after the not guilty by reason of insanity adjudication
. Your Honor is of course asking about the conditional release order that was vacated because of the Baker error. It does place him in a better position, but it was at the time that the criminal conduct happened. Mr. Conrad did not believe that his conditional release order was going to be vacated. So it's not like this scenario presented itself to Mr. Conrad and gave him a reason for engaging in criminal behavior, which he otherwise would not have engaged it. It's just not a situation where there where he was motivated to violate the law in a way that he wouldn't otherwise have been motivated to do. And since the district court judges have the reasoning in Baker, it's also a situation which the district court can avoid in the future by simply following Baker and not entering conditional release orders without the indefinite commitment. Those are all my comments for now
. I'd reserve the rest of my time. You have some time reserved. Thank you very much. This is a. Thank you. Good morning. Excuse me. It is clear that the intent of the statute in 4243 establishes a protocol for release of a defendant found not guilty by reason of insanity only. The court cannot release a person prior to a finding that he would not create a risk due to a mental disease or defect
. Thus the threshold question before the court in these circumstances is not just whether the defendant is dangerous at the outset. The question is whether the individual can be released based on whether the defendant can show that his release would not pose a risk or danger to the person or property of another. So I set out that threshold question because I think our summary really position is that when Conrad here is subject to a term of imprisonment as a matter of fact that the outset I think is the court has noted he's just not eligible for release. He cannot be released and therefore anything any action that the court takes at this point regarding a hearing or an order that he might enter after hearing would be a novelty. It would be an order that could have no effect when the defendant can't be released the court then would be making a decision about whether or not to release a defendant or to commit a defendant or to conditionally release a defendant. Based on evidence that is current today knowing at the outset when the defendant walks in the door for that hearing or at the moment the order is entered that the evidence is already stale. And the government doesn't think that the statute should be interpreted in a way that would require a court to enter an order that can have no effect. If the court sees the state of affairs in the government's view Mr. Conrad is in the same position really a better position at the end of his sentence to be able to present his arguments as to why his release would then not present a danger. The public is in a better position and and for those reasons we think that. That this court should affirm the district courts order what about the correct. Is your argument a statutory one or a policy one. I think they're both I think our argument is that under the statute the the statute should not be interpreted again in a way that. That would require a court to to enter an order now that can have no effect. But I think that our argument is absolutely consistent with the with the wording in the statute for example. Mr. Beck and his brief argues that that the statute should not apply to Mr. Conrad because he is not an acquitted person
. The public is in a better position and and for those reasons we think that. That this court should affirm the district courts order what about the correct. Is your argument a statutory one or a policy one. I think they're both I think our argument is that under the statute the the statute should not be interpreted again in a way that. That would require a court to to enter an order now that can have no effect. But I think that our argument is absolutely consistent with the with the wording in the statute for example. Mr. Beck and his brief argues that that the statute should not apply to Mr. Conrad because he is not an acquitted person. But I think that an acquitted person has to be interpreted in context of the statutory language which says that a person is covered by that statute if they have been found not guilty of the offense. And it is the offense charge so I think clearly under the statutory language that does apply to him the court turning to a 42 43 C the district court. I think there's some. Back and forth in the record even in the district courts view but. The district court had the initial 40 day hearing. Within 40 days he he entered the initial commitment order he had the hearing so I think the argument is that the record of the case reflects that the court did comport with the statutory language in that regard. We're just now as the court noted at the outset in a situation that I don't think anybody contemplated under the statute. The 43 43 E does simply say if after the hearing. The court fails to find that a defendant's release would not create a risk then the court shall commit the defendant
. But I think that an acquitted person has to be interpreted in context of the statutory language which says that a person is covered by that statute if they have been found not guilty of the offense. And it is the offense charge so I think clearly under the statutory language that does apply to him the court turning to a 42 43 C the district court. I think there's some. Back and forth in the record even in the district courts view but. The district court had the initial 40 day hearing. Within 40 days he he entered the initial commitment order he had the hearing so I think the argument is that the record of the case reflects that the court did comport with the statutory language in that regard. We're just now as the court noted at the outset in a situation that I don't think anybody contemplated under the statute. The 43 43 E does simply say if after the hearing. The court fails to find that a defendant's release would not create a risk then the court shall commit the defendant. And I suppose we could make an argument that again within the confines of the statutory language having had the hearing initially within the 40 day period. It is now after and it will be still after the hearing eight years from now. I don't know that that's our strong story. You're arguing with those cuts both ways I guess because the fact that the court can't release this defendant because he's serving a term of imprisonment suggests that the statute this particular. Statutory provisions should not apply to him and as Mr. Beck argues there's another provision 42 46 which is better suited to this defendant at the end of his release term. Why doesn't that work? Well, I think 42 46 if I'm not mistaken applies and I think Mr. Beck acknowledged this in his argument that 42 46 applies to a person who is hospitalized. So it presumes that the institution in which Mr
. And I suppose we could make an argument that again within the confines of the statutory language having had the hearing initially within the 40 day period. It is now after and it will be still after the hearing eight years from now. I don't know that that's our strong story. You're arguing with those cuts both ways I guess because the fact that the court can't release this defendant because he's serving a term of imprisonment suggests that the statute this particular. Statutory provisions should not apply to him and as Mr. Beck argues there's another provision 42 46 which is better suited to this defendant at the end of his release term. Why doesn't that work? Well, I think 42 46 if I'm not mistaken applies and I think Mr. Beck acknowledged this in his argument that 42 46 applies to a person who is hospitalized. So it presumes that the institution in which Mr. Conrad is incarcerated had at some point in the eight year. What's the term of incarceration decided for some other independent reason based on his incarceration needed to be hospitalized and had already placed him there that may or may not happen. You know, nobody has a crystal ball and that brings me right back to the problem that I think Mr. Beck's argument has is that it really requires the court if the court were to act now. It requires the court to sort of look out into the future and suppose yes or predict whether after incarceration Mr. Conrad's release would pose a risk to the community. Nobody knows that Mr. Mr. Conrad may be in a worse position when he finishes his term of incarceration his he or he may have been subject to taking his medications as the earliest psychological evaluation we had suggested that he needs
. Conrad is incarcerated had at some point in the eight year. What's the term of incarceration decided for some other independent reason based on his incarceration needed to be hospitalized and had already placed him there that may or may not happen. You know, nobody has a crystal ball and that brings me right back to the problem that I think Mr. Beck's argument has is that it really requires the court if the court were to act now. It requires the court to sort of look out into the future and suppose yes or predict whether after incarceration Mr. Conrad's release would pose a risk to the community. Nobody knows that Mr. Mr. Conrad may be in a worse position when he finishes his term of incarceration his he or he may have been subject to taking his medications as the earliest psychological evaluation we had suggested that he needs. He's dangerous if he's not in a structured environment. It may be that during the course of his term of incarceration and that very structured environment and taking his medications that he comes out at the end of that. Where he could immediately prove that his release would not pose a risk to anyone so we think that causing the defendant to come in the door today. With the burden of proving that his release would not pose a risk when that can't happen for eight years but it's the defendant in a terrible position. How can he do that? The court might find if we proceeded today under the under the statutory language first that the defendant can't possibly meet his burden of showing that his release would not cause a risk for starters because he can't be released. The court could find alternatively that the defendant can't meet his burden because the defendant's evidence is stale when he walks in the door. The court could just find I'm not saying the court would find that but I'm just saying that to proceed now and to suggest that that puts the defendant in a better position to the government is counter intuitive. I think the defendant has the best chance of proving whether he should be released because he doesn't pose a risk at the end of that term of incarceration. As Mr
. He's dangerous if he's not in a structured environment. It may be that during the course of his term of incarceration and that very structured environment and taking his medications that he comes out at the end of that. Where he could immediately prove that his release would not pose a risk to anyone so we think that causing the defendant to come in the door today. With the burden of proving that his release would not pose a risk when that can't happen for eight years but it's the defendant in a terrible position. How can he do that? The court might find if we proceeded today under the under the statutory language first that the defendant can't possibly meet his burden of showing that his release would not cause a risk for starters because he can't be released. The court could find alternatively that the defendant can't meet his burden because the defendant's evidence is stale when he walks in the door. The court could just find I'm not saying the court would find that but I'm just saying that to proceed now and to suggest that that puts the defendant in a better position to the government is counter intuitive. I think the defendant has the best chance of proving whether he should be released because he doesn't pose a risk at the end of that term of incarceration. As Mr. Beck argued earlier in some of the proceedings in the district court by himself. So for those reasons we would ask the court to affirm the decision of the district court unless there is a question. Thank you. The government argues argument presupposes that somehow it's doing Mr. Conrad a favor by delaying his hearing till the end of his period of incarceration. I don't believe that's true. Do you believe it might be doing the public a favor because isn't at bottom that the purpose of a proceeding it's primarily directed toward protecting the public from precisely the kind of circumstance that occurred during Mr. Conrad's conditional release. I believe that the public is best served by following the statutes of Congress particularly want when when the idea array has built mechanisms to protect the public and to protect Mr
. Beck argued earlier in some of the proceedings in the district court by himself. So for those reasons we would ask the court to affirm the decision of the district court unless there is a question. Thank you. The government argues argument presupposes that somehow it's doing Mr. Conrad a favor by delaying his hearing till the end of his period of incarceration. I don't believe that's true. Do you believe it might be doing the public a favor because isn't at bottom that the purpose of a proceeding it's primarily directed toward protecting the public from precisely the kind of circumstance that occurred during Mr. Conrad's conditional release. I believe that the public is best served by following the statutes of Congress particularly want when when the idea array has built mechanisms to protect the public and to protect Mr. Conrad. And how would that but how do they play out? Let me suggest how they play out the wording of 42 43 it has in mind somebody who's subject to release at the time of the insanity acquittal that therefore that statute asked the question not what somebody's condition is going to be at the end of a period of incarceration. But what is their present condition? Do they presently have a mental health disease and does that present mental health disease make them dangerous to the public if those are the conditions then they then they remain committed. If those are not the conditions then they're not subject to commitment a prisoner when they're in the department of corrections has a right to under Vitac versus Jones to protest their mental health placement but Mr. Conrad is not getting those rights. And in terms of the public's future right for Congress for saw this very scenario which is why 42 46 was written with different statutory procedure. I don't know the Congress for saw this scenario but and the I guess the other problem is that Ms. Hudson brought up is that under her reading of the statute your client would actually have to have been committed or hospitalized in advance of any application of 42 46. That right
. Conrad. And how would that but how do they play out? Let me suggest how they play out the wording of 42 43 it has in mind somebody who's subject to release at the time of the insanity acquittal that therefore that statute asked the question not what somebody's condition is going to be at the end of a period of incarceration. But what is their present condition? Do they presently have a mental health disease and does that present mental health disease make them dangerous to the public if those are the conditions then they then they remain committed. If those are not the conditions then they're not subject to commitment a prisoner when they're in the department of corrections has a right to under Vitac versus Jones to protest their mental health placement but Mr. Conrad is not getting those rights. And in terms of the public's future right for Congress for saw this very scenario which is why 42 46 was written with different statutory procedure. I don't know the Congress for saw this scenario but and the I guess the other problem is that Ms. Hudson brought up is that under her reading of the statute your client would actually have to have been committed or hospitalized in advance of any application of 42 46. That right. That's right he's presently at FMC Lexington which would which would count even though and he's objected to the delay and the government has not moved for a 42 46 hearing so if he's going to get his rights his rights to habeas his rights to evaluation his rights to challenge what the government is doing within the bureaucratism. He best have the procedures that were designed by Congress to allow him to make those challenges. He's not saying he's going to win I don't know what will happen if the evaluation and hearing happens maybe he will win maybe he will lose but he should be given that opportunity and he should be given that opportunity in the manner that Congress said which is that if the bureaucratism keeps denying him that he will have a right every 181 days to make a new showing upon the change of the law. He changes in his condition and although this is definitely work for the district court and definitely work for the government it is work that is should be required given the protections that are in the statute for the benefit of Mr. Conrad and it can be done so consistent with public safety. Thank you very much. We will come down.
. That's right he's presently at FMC Lexington which would which would count even though and he's objected to the delay and the government has not moved for a 42 46 hearing so if he's going to get his rights his rights to habeas his rights to evaluation his rights to challenge what the government is doing within the bureaucratism. He best have the procedures that were designed by Congress to allow him to make those challenges. He's not saying he's going to win I don't know what will happen if the evaluation and hearing happens maybe he will win maybe he will lose but he should be given that opportunity and he should be given that opportunity in the manner that Congress said which is that if the bureaucratism keeps denying him that he will have a right every 181 days to make a new showing upon the change of the law. He changes in his condition and although this is definitely work for the district court and definitely work for the government it is work that is should be required given the protections that are in the statute for the benefit of Mr. Conrad and it can be done so consistent with public safety. Thank you very much. We will come down.
First case, United States versus Congress, Mr. Beck. Thank you, Your Honor. Thank you Judge Duncan, Judge Kenan, Judge Diaz. I rise today to argue that it's improper in a case such as Mr. Conrad's to delay for 96 months his psychological evaluation and competency here. The statute 42.43C contemplates that the hearing will happen within a 40-day period. Indeed, the statute is the mandatory word, shall, because it wants that hearing to happen properly. The reason that Congress and the IDRA was consistent on a prompt hearing is because of the history which gets put forward in the various provisions of the IDRA, namely that we need to have these hearings so that it can have prompt government oversight so that if somebody is mentally ill, that they can get treatment, that they can recover, and then upon recovery they can be discharged from the insanity. Why do you assume that your client wouldn't be able to get treatment even absent this commitment hearing? Well, the client may or may not be able to get treatment absent the commitment hearing. The purpose of the statute is to provide oversight to... Do you think the Congress really contemplated this very peculiar scenario when it drafted this statute? This is a peculiar scenario. I don't think quite frankly anybody contemplated the problem. That is a problem. Then the question becomes, what do we do with the statutes of Congress? I think the answer is we enforce the best we can, and in this case, enforcing the best we can would be to insist upon a prompt hearing, evaluate... Well, but if the policy goal of the statute is to... It's to full, both to ensure proper treatment, but also to protect the community from someone who is in need of treatment and might be a danger to society, what purpose does it serve to have a commitment hearing while your client is incarcerated? It serves a following purpose. There's a separate statutory provision under 4246 that protects the public, shouldn't Mr. Conrad be determined to be safe and dischargeable from the insanity case during the term of his incarceration? And then 4246 says that the burden then shifts to the government to prove upon his release. What Mr. Conrad wants is an opportunity to show that he's no longer mentally ill and safe and so that the government would be required to meet the burden at the end period of his incarceration rather than shifting the burden back to him. I'm sorry. How long ago was it Mr. Conrad's adjudication what, seven years ago? It occurred in 2007, you're on. And hasn't he pled guilty at least a couple of times since then? He pled initially to in the insanity proceedings and then there was a separate, well, if you want to count the state court case, there was a state court plea and then there was followed by the federal plea in which he received the 96-month sentence. Isn't it somewhat anomalous that he is now interested in a prompt adjudication? Well, Your Honor, after the remand from the fourth circuit, he asked the district court for a prompt adjudication and was told no because of, because the criminal case was then pending. And that, pendency of the criminal case essentially, prevented him from having the prompt hearing that he desired. Thank you. Mr. Beck, it seems to me though that your argument runs flat up against the language or the statute because section 42, 43 sets out as the defendant's burden of proof that his release would not create a substantial risk of bodily injury due to a present mental disease or defect. So how could he prove years before his release that his release would not create a substantial risk of bodily injury due to a present mental disease or defect? There's no way that he could or that any expert could opine us to that. I think, Your Honor, when you have an anomalous situation like this, I think the question that we're really asking in this anomalous situation is, would his present release pose a danger to the public? And if the answer to that is no, it would not, then he should be taken off the insanity status and be put into the status of a normal, normal prisoner. This is important. And then what happens right before his, you're saying then right before his release, there's no re-evaluation of his mental status. The government would then under 42, 46 have the ability if the director of a facility in which he was housed. Remember the Bureau of Prison that any time it wants can place him in a facility. If it places him in a facility, he could then object and the government would then have the burden to show that he at that time would impose a danger to the public. And that would be the manner that the statute contemplates to protect the public. Moving on with my argument, Your Honor, I think it's not only 42, 43, but there are several provisions of the IDRA, which are negatively impacted by the delay. One provision is, are the provisions in 42, 47. The Congress when it adopted the IDRA specifically contemplated that the Harmon procedures would be adopted. The Harmon procedures are the procedures for annual evaluation and motion filing if the defendant has recovered. Those procedures cannot be followed when there is an eight-year delay in the evaluation and hearing. Moreover, not only did Congress implement the Harmon procedures in 42, 47, Congress also implemented that habeas corpus was provided for because if those evaluations that the Bureau of Prisons would be doing on an annual basis, if those evaluations showed that somebody had recovered and that they should be released, then the Director of the facility would put that into their report and presumably the defendant would file a motion for his release. And the court would then be required to evaluate the evidence and if it appeared that his release would not pose danger to the public, it would then so order. These procedures are important for a variety of reasons. As I've said, the placement in a given facility is something because the Supreme Court and Vitech persons, the gentleman said that a mental health placement is different than a normal prison placement. The prisoner has a liberty interest in not having that kind of placement. Also, the burden shifting that we're talking about in between Mr. Conrad at the initial 42, 43 having the burden and under 42, 46, the government having the burden because of the Supreme Court's decisions and such cases is adding to that is important because we don't want to apply the wrong standards and the wrong procedures at the wrong points in time. Also, I would note that the cases that the government cited for delay, obviously neither took all of the Tucker considered a state custody case that was in one way similar. It was different in the respect that you had an individual who is not in the custody of the BOP. So the BOP at the time did not have the custody of the defendant for the purpose of treatment and the petitioning for that hearing wouldn't have been something practical given the federal government's comedy to the state government. And the other case, the cited Bowie was just a short delay, not the 96 months that is sought in this case. I would note that the reference to the Harmon procedures and also the reference to to Vitac versus Jones in the legislative history shows that when Congress was providing for these various procedures that Congress was at that time interested in the district court having a looking at the condition of the defendant looking at whether he was receiving the mental health care that he needed. And also if the care was not being provided adequately making different and separate orders because as Congress put in the legislative history, this was not a matter that they felt comfortable with just assigning it to the court. The Bureau of Prisons without judicial oversight. All of these reasons that support, I believe, a understanding of the law wherein Mr. Conrad will have a prompt hearing where the district court can evaluate. And if he doesn't have mental illness, let him free of the insanity case and then serve out his period of incarceration. If at the end of his period of incarceration, he does present a danger to the community than 42, 46 is the provision that allows the remedy. That provision allows the government and the by through the director of the the O.K. facility to file a notice and then for the parties to present evidence with the government bearing burden of proof as opposed to Mr. Conrad bearing burden of proof. So that put him in a better position by virtue of the intervening felony than an individual who was not so incarcerated on another offense after the not guilty by reason of insanity adjudication. Your Honor is of course asking about the conditional release order that was vacated because of the Baker error. It does place him in a better position, but it was at the time that the criminal conduct happened. Mr. Conrad did not believe that his conditional release order was going to be vacated. So it's not like this scenario presented itself to Mr. Conrad and gave him a reason for engaging in criminal behavior, which he otherwise would not have engaged it. It's just not a situation where there where he was motivated to violate the law in a way that he wouldn't otherwise have been motivated to do. And since the district court judges have the reasoning in Baker, it's also a situation which the district court can avoid in the future by simply following Baker and not entering conditional release orders without the indefinite commitment. Those are all my comments for now. I'd reserve the rest of my time. You have some time reserved. Thank you very much. This is a. Thank you. Good morning. Excuse me. It is clear that the intent of the statute in 4243 establishes a protocol for release of a defendant found not guilty by reason of insanity only. The court cannot release a person prior to a finding that he would not create a risk due to a mental disease or defect. Thus the threshold question before the court in these circumstances is not just whether the defendant is dangerous at the outset. The question is whether the individual can be released based on whether the defendant can show that his release would not pose a risk or danger to the person or property of another. So I set out that threshold question because I think our summary really position is that when Conrad here is subject to a term of imprisonment as a matter of fact that the outset I think is the court has noted he's just not eligible for release. He cannot be released and therefore anything any action that the court takes at this point regarding a hearing or an order that he might enter after hearing would be a novelty. It would be an order that could have no effect when the defendant can't be released the court then would be making a decision about whether or not to release a defendant or to commit a defendant or to conditionally release a defendant. Based on evidence that is current today knowing at the outset when the defendant walks in the door for that hearing or at the moment the order is entered that the evidence is already stale. And the government doesn't think that the statute should be interpreted in a way that would require a court to enter an order that can have no effect. If the court sees the state of affairs in the government's view Mr. Conrad is in the same position really a better position at the end of his sentence to be able to present his arguments as to why his release would then not present a danger. The public is in a better position and and for those reasons we think that. That this court should affirm the district courts order what about the correct. Is your argument a statutory one or a policy one. I think they're both I think our argument is that under the statute the the statute should not be interpreted again in a way that. That would require a court to to enter an order now that can have no effect. But I think that our argument is absolutely consistent with the with the wording in the statute for example. Mr. Beck and his brief argues that that the statute should not apply to Mr. Conrad because he is not an acquitted person. But I think that an acquitted person has to be interpreted in context of the statutory language which says that a person is covered by that statute if they have been found not guilty of the offense. And it is the offense charge so I think clearly under the statutory language that does apply to him the court turning to a 42 43 C the district court. I think there's some. Back and forth in the record even in the district courts view but. The district court had the initial 40 day hearing. Within 40 days he he entered the initial commitment order he had the hearing so I think the argument is that the record of the case reflects that the court did comport with the statutory language in that regard. We're just now as the court noted at the outset in a situation that I don't think anybody contemplated under the statute. The 43 43 E does simply say if after the hearing. The court fails to find that a defendant's release would not create a risk then the court shall commit the defendant. And I suppose we could make an argument that again within the confines of the statutory language having had the hearing initially within the 40 day period. It is now after and it will be still after the hearing eight years from now. I don't know that that's our strong story. You're arguing with those cuts both ways I guess because the fact that the court can't release this defendant because he's serving a term of imprisonment suggests that the statute this particular. Statutory provisions should not apply to him and as Mr. Beck argues there's another provision 42 46 which is better suited to this defendant at the end of his release term. Why doesn't that work? Well, I think 42 46 if I'm not mistaken applies and I think Mr. Beck acknowledged this in his argument that 42 46 applies to a person who is hospitalized. So it presumes that the institution in which Mr. Conrad is incarcerated had at some point in the eight year. What's the term of incarceration decided for some other independent reason based on his incarceration needed to be hospitalized and had already placed him there that may or may not happen. You know, nobody has a crystal ball and that brings me right back to the problem that I think Mr. Beck's argument has is that it really requires the court if the court were to act now. It requires the court to sort of look out into the future and suppose yes or predict whether after incarceration Mr. Conrad's release would pose a risk to the community. Nobody knows that Mr. Mr. Conrad may be in a worse position when he finishes his term of incarceration his he or he may have been subject to taking his medications as the earliest psychological evaluation we had suggested that he needs. He's dangerous if he's not in a structured environment. It may be that during the course of his term of incarceration and that very structured environment and taking his medications that he comes out at the end of that. Where he could immediately prove that his release would not pose a risk to anyone so we think that causing the defendant to come in the door today. With the burden of proving that his release would not pose a risk when that can't happen for eight years but it's the defendant in a terrible position. How can he do that? The court might find if we proceeded today under the under the statutory language first that the defendant can't possibly meet his burden of showing that his release would not cause a risk for starters because he can't be released. The court could find alternatively that the defendant can't meet his burden because the defendant's evidence is stale when he walks in the door. The court could just find I'm not saying the court would find that but I'm just saying that to proceed now and to suggest that that puts the defendant in a better position to the government is counter intuitive. I think the defendant has the best chance of proving whether he should be released because he doesn't pose a risk at the end of that term of incarceration. As Mr. Beck argued earlier in some of the proceedings in the district court by himself. So for those reasons we would ask the court to affirm the decision of the district court unless there is a question. Thank you. The government argues argument presupposes that somehow it's doing Mr. Conrad a favor by delaying his hearing till the end of his period of incarceration. I don't believe that's true. Do you believe it might be doing the public a favor because isn't at bottom that the purpose of a proceeding it's primarily directed toward protecting the public from precisely the kind of circumstance that occurred during Mr. Conrad's conditional release. I believe that the public is best served by following the statutes of Congress particularly want when when the idea array has built mechanisms to protect the public and to protect Mr. Conrad. And how would that but how do they play out? Let me suggest how they play out the wording of 42 43 it has in mind somebody who's subject to release at the time of the insanity acquittal that therefore that statute asked the question not what somebody's condition is going to be at the end of a period of incarceration. But what is their present condition? Do they presently have a mental health disease and does that present mental health disease make them dangerous to the public if those are the conditions then they then they remain committed. If those are not the conditions then they're not subject to commitment a prisoner when they're in the department of corrections has a right to under Vitac versus Jones to protest their mental health placement but Mr. Conrad is not getting those rights. And in terms of the public's future right for Congress for saw this very scenario which is why 42 46 was written with different statutory procedure. I don't know the Congress for saw this scenario but and the I guess the other problem is that Ms. Hudson brought up is that under her reading of the statute your client would actually have to have been committed or hospitalized in advance of any application of 42 46. That right. That's right he's presently at FMC Lexington which would which would count even though and he's objected to the delay and the government has not moved for a 42 46 hearing so if he's going to get his rights his rights to habeas his rights to evaluation his rights to challenge what the government is doing within the bureaucratism. He best have the procedures that were designed by Congress to allow him to make those challenges. He's not saying he's going to win I don't know what will happen if the evaluation and hearing happens maybe he will win maybe he will lose but he should be given that opportunity and he should be given that opportunity in the manner that Congress said which is that if the bureaucratism keeps denying him that he will have a right every 181 days to make a new showing upon the change of the law. He changes in his condition and although this is definitely work for the district court and definitely work for the government it is work that is should be required given the protections that are in the statute for the benefit of Mr. Conrad and it can be done so consistent with public safety. Thank you very much. We will come down