Legal Case Summary

I know what I can't see the light. The next case, I'll argument as US versus Vernon Dale Wood, Mr. Todd. May it please the court, Mr. Wood, along with his trial council, Ms. Catherine Chey, Ms. Cindy Bembury and I ask this court to reverse the district court's 42-48 commitment determination. There are two grounds for this request. First is the fact that the categorical prescription on any type of communications with the respondent selected examiner contradicts due process and is contrary to 42-47. Let me interrupt you right there. Mr. Wood could have appointed a non-testifying expert to assist his council and him with preparation of that defense. Why didn't he appoint that non-testifying expert? He could have, but the point of our contention is that the government always has one person, the OPE expert who has access to the respondent. I understand it, and that was the psychiatrist I take it from FCI button. Yes, Your Honor. Well, it goes directly back to my question again. Why didn't he appoint a non-testifying expert to consult with him and his attorney in preparation of his defense? The first of all, I don't know that he in fact did not. There's nothing in the record to indicate that they did consult with a non-testifying expert. Why they did not request the court for one? I think the point was that they wanted Dr. Seila, who was going to be able to testify, who was going to be able to present evidence, or Mr. Wood's behalf, to be the one that they could consult with so that they could adequately prepare not only so that Dr. Seila could effectively present his opinion. But they could consult with him, couldn't they? They could not. They were barred by the standing order. Sure about that. Yes, Your Honor

. Both sides were. Yes, Your Honor. No. There's a categorical bar. I thought there was an ex-parte consultation that was barred. Yes, Your Honor. That's correct. That was my question. I said they could consult with him. Well, the only thing they were allowed to do was have a deposition at which government council was present. Right. So, in your argument, the ex-parte consultation or communication is not allowed. Isn't that correct? That's the standing order's categorical. Is that your argument, though? You don't argue, you can't talk to him. You can talk to the witness in a deposition on the presence of the government lawyer, couldn't you? Yes. So, your argument isn't that you could not consult with him. Your argument is you could not consult with him ex-parte. That's right. Well, that's part of the argument. What else is the argument? Well, the argument is that currently the categorical bar on ex-parte communication with the respondent selected examiner creates a skewed plane field in every case. That's the result of your argument about the rule, though. You're... I'm surprised

. I'm surprised by my question. I thought your argument is the prohibition on an ex-parte communication with that person. Isn't that your argument? That puts you at a disadvantage. The lack of ex-parte communication. Well, that's part of it. The other part of it is the fact that in every 42-48 case, because the BOP expert is not subject to any of the limitations on the standing order, the government has one person that can do all three. Are you entitled... Are you entitled to the appointment of a person a testifying witness that you can consult with? Were you entitled to that? In a 42-48 arena, we would say yes, Your Honor, for the reason stated in our brief, because of what is at stake? Under the Constitution, I ask. Yes, Your Honor. Under the rule, under the Constitution, are you entitled to the appointment of a witness that you can consult with? Yes, Your Honor. And that's the argument in our brief. First of all, is the fact that as it's played out in the Eastern District of North Carolina, which is where all of the 42-48 commitments and determinations are made at this point, the standing order, which basically puts aside previous practice under the rules of civil procedure, and imposes this categorical bar on any type of ex-parte communications with someone who can examine the respondent and testify at court. The standing order applies equally to you and to the government, correct? To the extent they want to talk with the respondent selected or the court selected examiner. That's what we're talking about. Well, what creates the skewed playing field is the fact that the BLP expert can always do all three. And as the government conceives in their brief, the BLP expert is not subject to the ban on ex-parte communications with either the court appointed or that creates a skewed playing field for many reasons. That's why it's not solely the limitation on ex-parte communications. We would say that's contrary to practice, at least in the Eastern District. Anitheal evidence from Mr. Dubois on down, everybody that's done 42-46 practice in the Eastern District, which 18 U.S.C. 42-47 applies to both 46 and 48

. Everybody on both sides was always free to pick up the phone, call the BLP expert, whomever, just to ask questions, to probe things, the standing order changes that. And my question is... I don't want to harp on this. I don't want you to concentrate on it, but the playing field would have been leveled had he appointed a non-testifying expert. It would not for that reason alone, you're on it, because it's non-testifying. And the standing order, which applied up until the amended one, which was just filed on the 21st, you had three different people. You had to respond and select an examiner, which you could not talk with, except in the deposition or trial. You had a non-testifying expert. Who could not testify in front of the District Court trial? But that non-testifying expert could consult with the attorneys and help prepare the case. It could, you're on it, but for purposes of the commitment here, and you want somebody on the stand, that's testifying that the judge is going to rely upon to make a determination. For instance, in this particular case, consultation with Dr. Sala could have helped... In the real world, why is it important? Why is it important for the defense council to talk to the testifying independent expert? Exparte. Why is that critical? You can talk to him or her, but why is it critical for the defense lawyer to be able to talk to that testifying witness, exparte? Well, I would ask the same question of... You have to answer that first, but why is it critical? Because this system, your honor, and the Supreme Court has said... I know it's an adversarial system, but why? In the real world, why is it that you talking to them in the presence of the government won't suffice? Tell me why that so. Because the decision at issue, which is a disrecourse determination of whether a particular diagnosis and whether a particular predilection should require indefinite commitment

... I know all that. Why is it critical? What is it that a defense lawyer wants to ask? Talk about what is it that can't be done except exparte is what I'm asking. Because that's the way we litigate things in the civil arena. And if this is a civil arena, which we contest it's not, but if it is, the same way any other civil litigant would prepare his or her case is the way it should be done here. And part of that is... That's true deposition. Beforehand, this examiner was to be a neutral examiner for the court. Well, we would say that under the statute 4247 is a respondent selected examiner and as Judge Gertner from a district of Massachusetts said, the designation of a respondent selected examiner under 4247 strongly implies that that examiner should be under the control of the respondent, or at least more so than the court appointed examiner. So we would say that the statute itself would not necessarily support saying it's the court's expert. But if you don't have... Just go with me on this first part of this question. If you don't have a constitutional right to an appointment of such a testifying witness that you can export a... If you don't have a right to it, such a witness, constitutional right, then how is this a due process violation? Well, I mean, the constitutional right comes from the application of procedural due process to the way in which... I know, but if you don't have.

.. You think procedural due process under the Constitution guarantees the right of such appointment of a witness to help you in this case. Yes, Your Honor. Given the fact, once again, given the fact in the 4248 commitments here in the Eastern District, given the categorical bar that doesn't abide a 46... What the rule does in light of the constitutional requirement. I said, if there... First, my first question is, do you think there's just a... Forget the procedure, forget that rule about appointment of... The appointment, standing order, anything about appointment of experts. If there was no such rule, do you think the Constitution guarantees your client under due process the appointment of an examiner to test the bottom hand? Yes, Your Honor. If the Constitution doesn't, then you don't have a due process violation. Well, we have a due process. We were sent to the rules of civil procedure under the statute. The fact that the... By the way, let me have to take you back to this stackless question

. And answering her question, your response was that this witness really isn't neutral. That's what you suggested some judge somewhere said. By neutral, I mean, first of all, she... She said, her question was, I'm a paraphrasing to allow me, this is supposed to be a neutral examiner appointed by the court. And she also suggested, and you can talk to that person in deposition. So what's wrong with that? Your answer was this person, I took it was, maybe I misunderstood you, that some judge in Massachusetts has said this witness really isn't neutral. It wouldn't that your answer? No, I mean, to correctly say Judge Gertner, she says 42-47 can be read to mean that there's... Okay, well then, take that back from your answer. Now answer, just thanks, question. This is appointed as a neutral witness. What's wrong with saying neither side, neither side may export the neutral witness. Because I want everything done above board, and in the open with my court witness. What's wrong with that? Well, first of all, it can be a neutral witness in that it's an expert who's going to come up with his opinion based on his expertise. There's nothing to worry that's going to say to that person that's going to change that. But once the opinion is issued and it's favorable to the respondent, we would say that the fact that it's a respondent selected, you know, it's the acknowledgement that yes, the respondent is the one that's facing this determination which stigmatized and puts them in prison like conditions for the rest of his life. That person needs someone to help the prepare to have a meaningful opportunity to prepare for and present his case. I know that. That's just how much of a question you have. You can get a witness. Not a person can get an expert that you can use to prepare. That address is that

. Didn't you still have an answer just thank us first? What's wrong with the court having a neutral witness that the court wants to hear from. So the court in the real world, people can find experts to say a lot of things. And the court finds someone to court a point as to help the court and says to both sides, I don't basically look. I don't want either one of you trying to influence this person at all. I want to know what this person wants to say. You can both talk to him together, but no private conversations with him. Don't get your own expert to help you if you want to. But this is somebody that's neutral and I want to help me. What is wrong with that? Well, first of all, I know. By the way, I just, I'm thinking, but you mean I like it, but what's wrong with that? Well, it's contrary to the way we litigate cases in this country and as well as civil procedure. And secondly, did you object to the appointment of the expert for the your client? The respondents select. Did we object to that? No, we asked the court for the opportunity to consult with that person prior to that person. I understand that's defied. But under section 42, 47, B, the district court designates an example chosen by the respondent. Yes, Your Honor. So apparently, if I understand that directly, you didn't have any or your client or you didn't have any objections to the examiner that was appointed by the court to represent the respondent. No, we, we, in fact, we wanted to consult with that person before that person to understand. But answer my question. We did not have we did not object to the appointment of that expert. No, what we objected to was the refusal by the court to allow us to talk. I assume that you were satisfied with the expert that the court appointed for the respondent. Yes, Your Honor. What we're not satisfied was the ability to prepare with that. The plan on the expert's committee to understand. It would also say the same question to the government, you know, if they're willing to say their BOP expert cannot testify in court

. So so it's it is an evil plane, equal plane field. And we're not asking for the only one for exparte communications. They can call up the respondent selected. They can call up the court appointed. But they must see a benefit to having a three and one expert. Well, in the issue this much, isn't that that doesn't seem to me that that's the violation of due process. It seems to me that's the violation out of violation, but the rules of economics. The government has resources. The government's going on a point with us. The government's going to do that. And that's part of our approach. And you know, by the way, you can do it too. You can do it too. Well, in the age of sequestration is becoming more difficult for the federal defenders to do that. But there's no constitutional bar. Are you doing that? That is the component of our due process argument, judicial efficiency and efficiency use of resources. There's no constitutional bar to you appointing somebody that you can call as a witness. And you can export or export aim all you want. But that person under the standing order could not examine our client. That's why the standing order made three separate people. A time that's defining control. You think that you say the standing order prohibits you from getting your own expert. It prohibits us from getting a three and one expert that can examine our client that can salt with us and can testify at court. Now the standing order you pay for yourself. You can't have that

. Well, maybe that's why I submitted. No, I'm just asking you that question. It appears that the client has the money. Is that rule bar what I'm talking about? That you have the money. You have the money. You hire your client. You client has an expert that expert examines him. You as a lawyer can then export to that expert. Are you saying that expert cannot testify under the old standing order. That's what the old standing order prohibit it. Now the amended standing order that came out on October 21st does allow that rule 26, three and one expert. But under the old standing order, Mr. Wood went through. It did not. You could not have had your own resources. Not any expert on the rules of paid for by the government paid for by yourself. You couldn't have such a testifying witness. Not that could do all three once again like the BOP expert can. And that was that's sort of why it was a ski playing field. I only have 26 seconds. I did want to basically say that the main reason for vacating this conviction. I don't know that you have 26 seconds. You may be over. Oh, I'm sorry. I'm really backwards

. Sorry, Your Honor. But you have three minutes. Then I have 39 seconds less on the bottle. Thank you for telling us. Okay. No, you have you. We'll give you three minutes when you come back. Mr. James. Good morning, again, Your Honor. My name is Michael James. I'm an assistant United States attorney. And I represent the United States in this matter. Judges, let me first answer a couple of queries that you made. You made two counsel. First, let me begin with you, Judge. You asked counsel initially. I'm sorry, Judge Hamilton. Judge Hamilton, you asked counsel initially if they had the opportunity to consult with a rule 26 B4D expert. And they did. And counsel's response was that would be the non-testifying expert that is correct. They had that opportunity. Now, counsel stated he didn't know whether or not they in fact had done so. The record is not clear. If they had in fact done so. And they chose not to move the court to have that person a examine Mr. Wood and be testifying a trial. That was on them. So they could have done that. They could have done that. They could have had someone that could do all three. They absolutely could have done that. They had moved the court. Absolutely. And in fact, I'm assuming that was granted. Assuming that and in the practice and I've tried a number of these 42 48 cases. It would it and all I could would have been granted. And the practice and that practice as delineated in the new standing order. If I may just quote it here, it was filed as a part of the supplemental. Quite frankly, I think the other side said their experience or practice or understanding of the rule is that. I think you're wrong about that. Well, person could not do that under the old. Interation of that rule. If I may quote from the. The amended standing order from the district court judge, he would address us that. It says in addition to another chair you on there. This is your honor. This is this is this was filed on the 28th. It's on the first page, second paragraph. It begins in addition

. And they chose not to move the court to have that person a examine Mr. Wood and be testifying a trial. That was on them. So they could have done that. They could have done that. They could have had someone that could do all three. They absolutely could have done that. They had moved the court. Absolutely. And in fact, I'm assuming that was granted. Assuming that and in the practice and I've tried a number of these 42 48 cases. It would it and all I could would have been granted. And the practice and that practice as delineated in the new standing order. If I may just quote it here, it was filed as a part of the supplemental. Quite frankly, I think the other side said their experience or practice or understanding of the rule is that. I think you're wrong about that. Well, person could not do that under the old. Interation of that rule. If I may quote from the. The amended standing order from the district court judge, he would address us that. It says in addition to another chair you on there. This is your honor. This is this is this was filed on the 28th. It's on the first page, second paragraph. It begins in addition. The court is adding two sentences at the end of paragraph 5D. That's the section that we're talking about the rule 26 type expert delineating the right. The respondent already enjoys. Understanding order 11 so for the designate as testifying expert witnesses. Examiner's initially retained as non testifying experts. Resuant to federal rule superseded 26 b4d and to have substantive exparte communication with such examiners. The court points out it sites United States versus coil. And in the United States versus coil decision. In that case that the court. That the standing order reiterates what was stated in the coil decision that this is a right that both parties have. With regard to rule 26 type experts. They can retain those experts. They can move the court to have those experts. Conduct. I mean, the government pays for them. Or they retain them privately. Well, the under the we have in our. Which is it? I'm just asking you. The use saying is the court. I mean, it's the government paid for witness that can. I believe that would come out of on the respondent side out of CJA funds. Would that be government paid for? Yes. Yes. Is it more than one government paying for this? Well, I think so. I mean, we's your honor, but in the standing order makes reference to the go go

. The court is adding two sentences at the end of paragraph 5D. That's the section that we're talking about the rule 26 type expert delineating the right. The respondent already enjoys. Understanding order 11 so for the designate as testifying expert witnesses. Examiner's initially retained as non testifying experts. Resuant to federal rule superseded 26 b4d and to have substantive exparte communication with such examiners. The court points out it sites United States versus coil. And in the United States versus coil decision. In that case that the court. That the standing order reiterates what was stated in the coil decision that this is a right that both parties have. With regard to rule 26 type experts. They can retain those experts. They can move the court to have those experts. Conduct. I mean, the government pays for them. Or they retain them privately. Well, the under the we have in our. Which is it? I'm just asking you. The use saying is the court. I mean, it's the government paid for witness that can. I believe that would come out of on the respondent side out of CJA funds. Would that be government paid for? Yes. Yes. Is it more than one government paying for this? Well, I think so. I mean, we's your honor, but in the standing order makes reference to the go go. Shay. And that case talks about DOJ funds versus CJA funds. That's my point. Listen, I'm making a distinction. I'm making a distinction between something that the defendant would have to pay for criminal. But have to pay for himself. No, he was. It would not. That's the distinction. And I guarantee you this. You say you do this in the real world. I bet you that defendant that much care. DOJ pays for homeland security pays for. They don't. CJA. They don't care. I mean, we've got a reason that they just don't have to pay for themselves. Yes. I understand that. And that is correct, Ramna. And so that is my first point. The second point that I want to emphasize is that. Pellets council has referred to the BOP expert as a Stokeo 3 and 1 expert who can write interview. Have access. And in this case

. Shay. And that case talks about DOJ funds versus CJA funds. That's my point. Listen, I'm making a distinction. I'm making a distinction between something that the defendant would have to pay for criminal. But have to pay for himself. No, he was. It would not. That's the distinction. And I guarantee you this. You say you do this in the real world. I bet you that defendant that much care. DOJ pays for homeland security pays for. They don't. CJA. They don't care. I mean, we've got a reason that they just don't have to pay for themselves. Yes. I understand that. And that is correct, Ramna. And so that is my first point. The second point that I want to emphasize is that. Pellets council has referred to the BOP expert as a Stokeo 3 and 1 expert who can write interview. Have access. And in this case. Dr. Cunick who was the BOP expert, she never. The absent this rule is here constitutional requirement of the appointment of such of such a witness. No, you're on. And in fact, with regard to procedural due process, this was stated out in in Baker United States versus Baker at 843 and 844. His right for procedural due process as also reiterated in and Vitic versus Jones a hearing notice of that hearing to be heard to present documentary evidence to call witnesses to have an independent decision maker to have a reason decision and to have an independent advisor not even an attorney. And that's United States versus Baker laying out from Vitic versus Jones procedural due process. And that's procedural due process that he's an absolute entitled to, which he has, of course, not only under the constitution, the statute and the setting order provides. Whatever the standard general standard of due process is that it's lessened in this context. No, your conviction is that lessened or not. So I'm just wondering your mind. Well, the due process of promise on the same all the time at every proceeding all that. No, I would not say I would not say that it does, but what I would state that with regard to Baker was a civil commitment proceeding. And that's why I was just asked about the general rule. No rule is I think that it's less is required to do process of hearing like this than just absolute due process. But is your argument if no witnesses required then a witness, but one you can't talk to and testify even if their view is right that can't possibly violate due process. I'm not. I'm saying if you're not entitled to a witness at all, can a witness with some limitations on it being provided? Can that be a violation of due process? No, you're on it. That's not violation of due process. And in fact, the other point I was going to make your honor is that Dr. Salem, Dr. Holman, our court examiners. And that's the point I'm getting from the court here. These are court examiners. What appellant what the appellant seems to want to have is the ability to not only select an examiner, but to control a direct examiner as if you're turning a court examiner into rule 26 before the consultant

. Dr. Cunick who was the BOP expert, she never. The absent this rule is here constitutional requirement of the appointment of such of such a witness. No, you're on. And in fact, with regard to procedural due process, this was stated out in in Baker United States versus Baker at 843 and 844. His right for procedural due process as also reiterated in and Vitic versus Jones a hearing notice of that hearing to be heard to present documentary evidence to call witnesses to have an independent decision maker to have a reason decision and to have an independent advisor not even an attorney. And that's United States versus Baker laying out from Vitic versus Jones procedural due process. And that's procedural due process that he's an absolute entitled to, which he has, of course, not only under the constitution, the statute and the setting order provides. Whatever the standard general standard of due process is that it's lessened in this context. No, your conviction is that lessened or not. So I'm just wondering your mind. Well, the due process of promise on the same all the time at every proceeding all that. No, I would not say I would not say that it does, but what I would state that with regard to Baker was a civil commitment proceeding. And that's why I was just asked about the general rule. No rule is I think that it's less is required to do process of hearing like this than just absolute due process. But is your argument if no witnesses required then a witness, but one you can't talk to and testify even if their view is right that can't possibly violate due process. I'm not. I'm saying if you're not entitled to a witness at all, can a witness with some limitations on it being provided? Can that be a violation of due process? No, you're on it. That's not violation of due process. And in fact, the other point I was going to make your honor is that Dr. Salem, Dr. Holman, our court examiners. And that's the point I'm getting from the court here. These are court examiners. What appellant what the appellant seems to want to have is the ability to not only select an examiner, but to control a direct examiner as if you're turning a court examiner into rule 26 before the consultant. And that's not the purpose of it. And I in reviewing the recently submitted supplementary joint appendix which size the coil case. The court in coil makes an in rotation and coil is at the 2013 West Law 5508358 at three. I'm referring to now it talks about the potential liability that a rule 26 for 26 for B. It's 26 for the expert has as opposed to a court examiner. A court examiner is the court's witness, whether it is the initial court examiner or Dr. Salem. I'm going to take you back to what you said earlier. You said under the operation of the old rule, and I guess you pointed that language in the amended rule saying which respondent is always enjoyed. That's correct. That the third witness that could be appointed or provided to consult with export, take communications with the respondent could testify. That's correct. They could they could they had an opportunity to have this person. But in this case, the record doesn't indicate that such a third expert was utilized and the court refused to let that person testify. That's correct. There's no evidence of that in this case. And to judge Hamilton's query with regard to Dr. Salem, Dr. Salem was the court, a court examiner that was selected by the respondent. In fact, they moved for the appointment of Dr. Salem. And as a year on a judge's shed stated, they had an opportunity to consult with Dr. Salem. It just wasn't exparte. That was part of what the mandatory judge ruled when they filed the initial motion to clarify the examiner's role

. And that's not the purpose of it. And I in reviewing the recently submitted supplementary joint appendix which size the coil case. The court in coil makes an in rotation and coil is at the 2013 West Law 5508358 at three. I'm referring to now it talks about the potential liability that a rule 26 for 26 for B. It's 26 for the expert has as opposed to a court examiner. A court examiner is the court's witness, whether it is the initial court examiner or Dr. Salem. I'm going to take you back to what you said earlier. You said under the operation of the old rule, and I guess you pointed that language in the amended rule saying which respondent is always enjoyed. That's correct. That the third witness that could be appointed or provided to consult with export, take communications with the respondent could testify. That's correct. They could they could they had an opportunity to have this person. But in this case, the record doesn't indicate that such a third expert was utilized and the court refused to let that person testify. That's correct. There's no evidence of that in this case. And to judge Hamilton's query with regard to Dr. Salem, Dr. Salem was the court, a court examiner that was selected by the respondent. In fact, they moved for the appointment of Dr. Salem. And as a year on a judge's shed stated, they had an opportunity to consult with Dr. Salem. It just wasn't exparte. That was part of what the mandatory judge ruled when they filed the initial motion to clarify the examiner's role. But it obviously couldn't be by deposition. Oh, yes. Yes. Even in a part from the rule 26, if the if the purpose of this really is to just help you formulate questions to conduct an examination, the other civil rules, interrogatories, the deposition, they could have they had Dr. Cunick's report. They could have deposed Dr. Cunick found out that the theories behind her, the basis for her opinions, formulated their questions that way. So I mean, if the purpose of this is to in fact help you design your questions for your examination, the. Is there any bar in that rule to the government and the defense lawyer talking to that expert short of a deposition as long as they were both present? Well, they are under the rule if they want to talk to the court examiner, they are going to have to move the court to allow that. And because it doesn't have to be a deposition. No, it does not have to be deposition. They could just say your honor. We'd like to have a phone call just to go over a couple of things with them both sides make a joint motion. That's correct. There'd be a deposition. That's correct. You could be that the opportunities are presented for for each side to talk to that court expert, but it's just both sides have to be present when that's done. That is correct. It just bars the exparte communication. And now I believe that council also did make another argument with regard to the courts use of. It's my time expired. No, no, no. Okay. We can barely see the lights on that thing in front of you. 15 minutes

. But it obviously couldn't be by deposition. Oh, yes. Yes. Even in a part from the rule 26, if the if the purpose of this really is to just help you formulate questions to conduct an examination, the other civil rules, interrogatories, the deposition, they could have they had Dr. Cunick's report. They could have deposed Dr. Cunick found out that the theories behind her, the basis for her opinions, formulated their questions that way. So I mean, if the purpose of this is to in fact help you design your questions for your examination, the. Is there any bar in that rule to the government and the defense lawyer talking to that expert short of a deposition as long as they were both present? Well, they are under the rule if they want to talk to the court examiner, they are going to have to move the court to allow that. And because it doesn't have to be a deposition. No, it does not have to be deposition. They could just say your honor. We'd like to have a phone call just to go over a couple of things with them both sides make a joint motion. That's correct. There'd be a deposition. That's correct. You could be that the opportunities are presented for for each side to talk to that court expert, but it's just both sides have to be present when that's done. That is correct. It just bars the exparte communication. And now I believe that council also did make another argument with regard to the courts use of. It's my time expired. No, no, no. Okay. We can barely see the lights on that thing in front of you. 15 minutes. Oh, okay. You wish it expired. Sometimes it goes slowly, then. Sometimes it does go slower than you would think. With regard to the second argument judge, the district court did not abuse the discretion in allowing the testimony, 11th, based on the untouched conduct, the district court judge. Well, first, they made a constitutional argument that was never raised before the district court just to allow that district court judge to in fact rule on it. That argument, therefore we would argue that is waived. Second, the all the witnesses, Dr. Salah, the court appointed examiner that they selected made extensive use of that same sort of evidence at 237 in the joint and the joint appendix and 242 to 243 talking about distinguishing. About the untouched crimes as well. And short, we believe the district court did not abuse the discretion. We ask that you will firm district court's order. Thank you. Thank you very much. Just thought you get a full three minutes. I have his tenure on it. We'll be right to our argument that the district court improperly used inadmissible hearsay as substantive evidence and relied upon that. In admissible hearsay treated it as substantive evidence and used that to make his decision. I quote from the court's final determination when Miss Shay says this entire case turns on whether or not the court credits the most recent allegations in 2003 and 2004 and how stringently the court wants to apply the hearing convincing standard. That's from J.A. 299 to 300. The court's response. Miss Shay has hit it right on the head that just about everything in my decision is going to turn on those other what you say are allegations and what the government says are approved and how far that goes towards meeting the clearing convincing standard. That was erroneous as a matter of law for the judge to use otherwise inadmissible hearsay

. Oh, okay. You wish it expired. Sometimes it goes slowly, then. Sometimes it does go slower than you would think. With regard to the second argument judge, the district court did not abuse the discretion in allowing the testimony, 11th, based on the untouched conduct, the district court judge. Well, first, they made a constitutional argument that was never raised before the district court just to allow that district court judge to in fact rule on it. That argument, therefore we would argue that is waived. Second, the all the witnesses, Dr. Salah, the court appointed examiner that they selected made extensive use of that same sort of evidence at 237 in the joint and the joint appendix and 242 to 243 talking about distinguishing. About the untouched crimes as well. And short, we believe the district court did not abuse the discretion. We ask that you will firm district court's order. Thank you. Thank you very much. Just thought you get a full three minutes. I have his tenure on it. We'll be right to our argument that the district court improperly used inadmissible hearsay as substantive evidence and relied upon that. In admissible hearsay treated it as substantive evidence and used that to make his decision. I quote from the court's final determination when Miss Shay says this entire case turns on whether or not the court credits the most recent allegations in 2003 and 2004 and how stringently the court wants to apply the hearing convincing standard. That's from J.A. 299 to 300. The court's response. Miss Shay has hit it right on the head that just about everything in my decision is going to turn on those other what you say are allegations and what the government says are approved and how far that goes towards meeting the clearing convincing standard. That was erroneous as a matter of law for the judge to use otherwise inadmissible hearsay. Regardless of whether it can provide basis evidence for an opinion to take that treat that as substantively true as substantive evidence and the entire decision commitment decision by the judge's own words hinged on that impermissible use. That we say is legal or not just abuse of discretion that requires a vacation of what page are you reading from when you read that. I have a page 301. Well, in fact, going to your hearsay argument. I think it fails to acknowledge that Dr. Saley, the responders selected examiner also use the same hearsay information contained in a police report to conclude that would did not did not engage in repetitive acts of child molestation. molestation against a 10 year old child, but committed only a single act. And it's further weakened by the argument threatened we can buy the PSR which would did not object to or seek to qualify in any manner and it contained much of the challenge. Statements that are that you say are hearsay. But if I may quickly your honor Dr. Saley pointed out that it would be malpractice for him to rely upon that hearsay. That's why he cited that hearsay because he as an expert could not reason rely on that. Well, was there any objection to the PSR? Yes, Your Honor. In fact, the supplemental J.A. that the government presented from the PSR back from Iowa. There's a whole list of defendant objections and then there he denies the allegations. Your Honor, we would have 20 seconds. The government has the. Well, I would only suggest to you that the hearsay was admissible under rule 702 and 703. It would be admissible to rely upon as basis evidence for the opinion. Neither the expert nor the court has permitted the treated as substantive evidence. 702 only permits it as a basis, but you cannot treat it as factually true. And especially in this case, the court cannot do that. That's just basic violation of how you can and cannot use hearsay

. Regardless of whether it can provide basis evidence for an opinion to take that treat that as substantively true as substantive evidence and the entire decision commitment decision by the judge's own words hinged on that impermissible use. That we say is legal or not just abuse of discretion that requires a vacation of what page are you reading from when you read that. I have a page 301. Well, in fact, going to your hearsay argument. I think it fails to acknowledge that Dr. Saley, the responders selected examiner also use the same hearsay information contained in a police report to conclude that would did not did not engage in repetitive acts of child molestation. molestation against a 10 year old child, but committed only a single act. And it's further weakened by the argument threatened we can buy the PSR which would did not object to or seek to qualify in any manner and it contained much of the challenge. Statements that are that you say are hearsay. But if I may quickly your honor Dr. Saley pointed out that it would be malpractice for him to rely upon that hearsay. That's why he cited that hearsay because he as an expert could not reason rely on that. Well, was there any objection to the PSR? Yes, Your Honor. In fact, the supplemental J.A. that the government presented from the PSR back from Iowa. There's a whole list of defendant objections and then there he denies the allegations. Your Honor, we would have 20 seconds. The government has the. Well, I would only suggest to you that the hearsay was admissible under rule 702 and 703. It would be admissible to rely upon as basis evidence for the opinion. Neither the expert nor the court has permitted the treated as substantive evidence. 702 only permits it as a basis, but you cannot treat it as factually true. And especially in this case, the court cannot do that. That's just basic violation of how you can and cannot use hearsay. The government had the burden. I see my time is up here. Thank you. Thank you. Your Honor, Mr. Wood faced indefinite commitment in prison-like conditions, stigmatized for life based on this determination. The government had the burden to prove all three elements, not with a piece of paper, but with real, competent evidence. They could have brought the accuser in the accusers in as they did in Burkart, the case cited in Embarko. They could have bought the investigator in. They didn't, Your Honor. And the court therefore erred. We asked this, the honor to vacate the commitment order and remand solely on the existing record, limiting the judges' use of an admissible hearsay. Thank you. Thank you very much. We'll step down. Great Council and go to the right to the third argument.

I know what I can't see the light. The next case, I'll argument as US versus Vernon Dale Wood, Mr. Todd. May it please the court, Mr. Wood, along with his trial council, Ms. Catherine Chey, Ms. Cindy Bembury and I ask this court to reverse the district court's 42-48 commitment determination. There are two grounds for this request. First is the fact that the categorical prescription on any type of communications with the respondent selected examiner contradicts due process and is contrary to 42-47. Let me interrupt you right there. Mr. Wood could have appointed a non-testifying expert to assist his council and him with preparation of that defense. Why didn't he appoint that non-testifying expert? He could have, but the point of our contention is that the government always has one person, the OPE expert who has access to the respondent. I understand it, and that was the psychiatrist I take it from FCI button. Yes, Your Honor. Well, it goes directly back to my question again. Why didn't he appoint a non-testifying expert to consult with him and his attorney in preparation of his defense? The first of all, I don't know that he in fact did not. There's nothing in the record to indicate that they did consult with a non-testifying expert. Why they did not request the court for one? I think the point was that they wanted Dr. Seila, who was going to be able to testify, who was going to be able to present evidence, or Mr. Wood's behalf, to be the one that they could consult with so that they could adequately prepare not only so that Dr. Seila could effectively present his opinion. But they could consult with him, couldn't they? They could not. They were barred by the standing order. Sure about that. Yes, Your Honor. Both sides were. Yes, Your Honor. No. There's a categorical bar. I thought there was an ex-parte consultation that was barred. Yes, Your Honor. That's correct. That was my question. I said they could consult with him. Well, the only thing they were allowed to do was have a deposition at which government council was present. Right. So, in your argument, the ex-parte consultation or communication is not allowed. Isn't that correct? That's the standing order's categorical. Is that your argument, though? You don't argue, you can't talk to him. You can talk to the witness in a deposition on the presence of the government lawyer, couldn't you? Yes. So, your argument isn't that you could not consult with him. Your argument is you could not consult with him ex-parte. That's right. Well, that's part of the argument. What else is the argument? Well, the argument is that currently the categorical bar on ex-parte communication with the respondent selected examiner creates a skewed plane field in every case. That's the result of your argument about the rule, though. You're... I'm surprised. I'm surprised by my question. I thought your argument is the prohibition on an ex-parte communication with that person. Isn't that your argument? That puts you at a disadvantage. The lack of ex-parte communication. Well, that's part of it. The other part of it is the fact that in every 42-48 case, because the BOP expert is not subject to any of the limitations on the standing order, the government has one person that can do all three. Are you entitled... Are you entitled to the appointment of a person a testifying witness that you can consult with? Were you entitled to that? In a 42-48 arena, we would say yes, Your Honor, for the reason stated in our brief, because of what is at stake? Under the Constitution, I ask. Yes, Your Honor. Under the rule, under the Constitution, are you entitled to the appointment of a witness that you can consult with? Yes, Your Honor. And that's the argument in our brief. First of all, is the fact that as it's played out in the Eastern District of North Carolina, which is where all of the 42-48 commitments and determinations are made at this point, the standing order, which basically puts aside previous practice under the rules of civil procedure, and imposes this categorical bar on any type of ex-parte communications with someone who can examine the respondent and testify at court. The standing order applies equally to you and to the government, correct? To the extent they want to talk with the respondent selected or the court selected examiner. That's what we're talking about. Well, what creates the skewed playing field is the fact that the BLP expert can always do all three. And as the government conceives in their brief, the BLP expert is not subject to the ban on ex-parte communications with either the court appointed or that creates a skewed playing field for many reasons. That's why it's not solely the limitation on ex-parte communications. We would say that's contrary to practice, at least in the Eastern District. Anitheal evidence from Mr. Dubois on down, everybody that's done 42-46 practice in the Eastern District, which 18 U.S.C. 42-47 applies to both 46 and 48. Everybody on both sides was always free to pick up the phone, call the BLP expert, whomever, just to ask questions, to probe things, the standing order changes that. And my question is... I don't want to harp on this. I don't want you to concentrate on it, but the playing field would have been leveled had he appointed a non-testifying expert. It would not for that reason alone, you're on it, because it's non-testifying. And the standing order, which applied up until the amended one, which was just filed on the 21st, you had three different people. You had to respond and select an examiner, which you could not talk with, except in the deposition or trial. You had a non-testifying expert. Who could not testify in front of the District Court trial? But that non-testifying expert could consult with the attorneys and help prepare the case. It could, you're on it, but for purposes of the commitment here, and you want somebody on the stand, that's testifying that the judge is going to rely upon to make a determination. For instance, in this particular case, consultation with Dr. Sala could have helped... In the real world, why is it important? Why is it important for the defense council to talk to the testifying independent expert? Exparte. Why is that critical? You can talk to him or her, but why is it critical for the defense lawyer to be able to talk to that testifying witness, exparte? Well, I would ask the same question of... You have to answer that first, but why is it critical? Because this system, your honor, and the Supreme Court has said... I know it's an adversarial system, but why? In the real world, why is it that you talking to them in the presence of the government won't suffice? Tell me why that so. Because the decision at issue, which is a disrecourse determination of whether a particular diagnosis and whether a particular predilection should require indefinite commitment... I know all that. Why is it critical? What is it that a defense lawyer wants to ask? Talk about what is it that can't be done except exparte is what I'm asking. Because that's the way we litigate things in the civil arena. And if this is a civil arena, which we contest it's not, but if it is, the same way any other civil litigant would prepare his or her case is the way it should be done here. And part of that is... That's true deposition. Beforehand, this examiner was to be a neutral examiner for the court. Well, we would say that under the statute 4247 is a respondent selected examiner and as Judge Gertner from a district of Massachusetts said, the designation of a respondent selected examiner under 4247 strongly implies that that examiner should be under the control of the respondent, or at least more so than the court appointed examiner. So we would say that the statute itself would not necessarily support saying it's the court's expert. But if you don't have... Just go with me on this first part of this question. If you don't have a constitutional right to an appointment of such a testifying witness that you can export a... If you don't have a right to it, such a witness, constitutional right, then how is this a due process violation? Well, I mean, the constitutional right comes from the application of procedural due process to the way in which... I know, but if you don't have... You think procedural due process under the Constitution guarantees the right of such appointment of a witness to help you in this case. Yes, Your Honor. Given the fact, once again, given the fact in the 4248 commitments here in the Eastern District, given the categorical bar that doesn't abide a 46... What the rule does in light of the constitutional requirement. I said, if there... First, my first question is, do you think there's just a... Forget the procedure, forget that rule about appointment of... The appointment, standing order, anything about appointment of experts. If there was no such rule, do you think the Constitution guarantees your client under due process the appointment of an examiner to test the bottom hand? Yes, Your Honor. If the Constitution doesn't, then you don't have a due process violation. Well, we have a due process. We were sent to the rules of civil procedure under the statute. The fact that the... By the way, let me have to take you back to this stackless question. And answering her question, your response was that this witness really isn't neutral. That's what you suggested some judge somewhere said. By neutral, I mean, first of all, she... She said, her question was, I'm a paraphrasing to allow me, this is supposed to be a neutral examiner appointed by the court. And she also suggested, and you can talk to that person in deposition. So what's wrong with that? Your answer was this person, I took it was, maybe I misunderstood you, that some judge in Massachusetts has said this witness really isn't neutral. It wouldn't that your answer? No, I mean, to correctly say Judge Gertner, she says 42-47 can be read to mean that there's... Okay, well then, take that back from your answer. Now answer, just thanks, question. This is appointed as a neutral witness. What's wrong with saying neither side, neither side may export the neutral witness. Because I want everything done above board, and in the open with my court witness. What's wrong with that? Well, first of all, it can be a neutral witness in that it's an expert who's going to come up with his opinion based on his expertise. There's nothing to worry that's going to say to that person that's going to change that. But once the opinion is issued and it's favorable to the respondent, we would say that the fact that it's a respondent selected, you know, it's the acknowledgement that yes, the respondent is the one that's facing this determination which stigmatized and puts them in prison like conditions for the rest of his life. That person needs someone to help the prepare to have a meaningful opportunity to prepare for and present his case. I know that. That's just how much of a question you have. You can get a witness. Not a person can get an expert that you can use to prepare. That address is that. Didn't you still have an answer just thank us first? What's wrong with the court having a neutral witness that the court wants to hear from. So the court in the real world, people can find experts to say a lot of things. And the court finds someone to court a point as to help the court and says to both sides, I don't basically look. I don't want either one of you trying to influence this person at all. I want to know what this person wants to say. You can both talk to him together, but no private conversations with him. Don't get your own expert to help you if you want to. But this is somebody that's neutral and I want to help me. What is wrong with that? Well, first of all, I know. By the way, I just, I'm thinking, but you mean I like it, but what's wrong with that? Well, it's contrary to the way we litigate cases in this country and as well as civil procedure. And secondly, did you object to the appointment of the expert for the your client? The respondents select. Did we object to that? No, we asked the court for the opportunity to consult with that person prior to that person. I understand that's defied. But under section 42, 47, B, the district court designates an example chosen by the respondent. Yes, Your Honor. So apparently, if I understand that directly, you didn't have any or your client or you didn't have any objections to the examiner that was appointed by the court to represent the respondent. No, we, we, in fact, we wanted to consult with that person before that person to understand. But answer my question. We did not have we did not object to the appointment of that expert. No, what we objected to was the refusal by the court to allow us to talk. I assume that you were satisfied with the expert that the court appointed for the respondent. Yes, Your Honor. What we're not satisfied was the ability to prepare with that. The plan on the expert's committee to understand. It would also say the same question to the government, you know, if they're willing to say their BOP expert cannot testify in court. So so it's it is an evil plane, equal plane field. And we're not asking for the only one for exparte communications. They can call up the respondent selected. They can call up the court appointed. But they must see a benefit to having a three and one expert. Well, in the issue this much, isn't that that doesn't seem to me that that's the violation of due process. It seems to me that's the violation out of violation, but the rules of economics. The government has resources. The government's going on a point with us. The government's going to do that. And that's part of our approach. And you know, by the way, you can do it too. You can do it too. Well, in the age of sequestration is becoming more difficult for the federal defenders to do that. But there's no constitutional bar. Are you doing that? That is the component of our due process argument, judicial efficiency and efficiency use of resources. There's no constitutional bar to you appointing somebody that you can call as a witness. And you can export or export aim all you want. But that person under the standing order could not examine our client. That's why the standing order made three separate people. A time that's defining control. You think that you say the standing order prohibits you from getting your own expert. It prohibits us from getting a three and one expert that can examine our client that can salt with us and can testify at court. Now the standing order you pay for yourself. You can't have that. Well, maybe that's why I submitted. No, I'm just asking you that question. It appears that the client has the money. Is that rule bar what I'm talking about? That you have the money. You have the money. You hire your client. You client has an expert that expert examines him. You as a lawyer can then export to that expert. Are you saying that expert cannot testify under the old standing order. That's what the old standing order prohibit it. Now the amended standing order that came out on October 21st does allow that rule 26, three and one expert. But under the old standing order, Mr. Wood went through. It did not. You could not have had your own resources. Not any expert on the rules of paid for by the government paid for by yourself. You couldn't have such a testifying witness. Not that could do all three once again like the BOP expert can. And that was that's sort of why it was a ski playing field. I only have 26 seconds. I did want to basically say that the main reason for vacating this conviction. I don't know that you have 26 seconds. You may be over. Oh, I'm sorry. I'm really backwards. Sorry, Your Honor. But you have three minutes. Then I have 39 seconds less on the bottle. Thank you for telling us. Okay. No, you have you. We'll give you three minutes when you come back. Mr. James. Good morning, again, Your Honor. My name is Michael James. I'm an assistant United States attorney. And I represent the United States in this matter. Judges, let me first answer a couple of queries that you made. You made two counsel. First, let me begin with you, Judge. You asked counsel initially. I'm sorry, Judge Hamilton. Judge Hamilton, you asked counsel initially if they had the opportunity to consult with a rule 26 B4D expert. And they did. And counsel's response was that would be the non-testifying expert that is correct. They had that opportunity. Now, counsel stated he didn't know whether or not they in fact had done so. The record is not clear. If they had in fact done so. And they chose not to move the court to have that person a examine Mr. Wood and be testifying a trial. That was on them. So they could have done that. They could have done that. They could have had someone that could do all three. They absolutely could have done that. They had moved the court. Absolutely. And in fact, I'm assuming that was granted. Assuming that and in the practice and I've tried a number of these 42 48 cases. It would it and all I could would have been granted. And the practice and that practice as delineated in the new standing order. If I may just quote it here, it was filed as a part of the supplemental. Quite frankly, I think the other side said their experience or practice or understanding of the rule is that. I think you're wrong about that. Well, person could not do that under the old. Interation of that rule. If I may quote from the. The amended standing order from the district court judge, he would address us that. It says in addition to another chair you on there. This is your honor. This is this is this was filed on the 28th. It's on the first page, second paragraph. It begins in addition. The court is adding two sentences at the end of paragraph 5D. That's the section that we're talking about the rule 26 type expert delineating the right. The respondent already enjoys. Understanding order 11 so for the designate as testifying expert witnesses. Examiner's initially retained as non testifying experts. Resuant to federal rule superseded 26 b4d and to have substantive exparte communication with such examiners. The court points out it sites United States versus coil. And in the United States versus coil decision. In that case that the court. That the standing order reiterates what was stated in the coil decision that this is a right that both parties have. With regard to rule 26 type experts. They can retain those experts. They can move the court to have those experts. Conduct. I mean, the government pays for them. Or they retain them privately. Well, the under the we have in our. Which is it? I'm just asking you. The use saying is the court. I mean, it's the government paid for witness that can. I believe that would come out of on the respondent side out of CJA funds. Would that be government paid for? Yes. Yes. Is it more than one government paying for this? Well, I think so. I mean, we's your honor, but in the standing order makes reference to the go go. Shay. And that case talks about DOJ funds versus CJA funds. That's my point. Listen, I'm making a distinction. I'm making a distinction between something that the defendant would have to pay for criminal. But have to pay for himself. No, he was. It would not. That's the distinction. And I guarantee you this. You say you do this in the real world. I bet you that defendant that much care. DOJ pays for homeland security pays for. They don't. CJA. They don't care. I mean, we've got a reason that they just don't have to pay for themselves. Yes. I understand that. And that is correct, Ramna. And so that is my first point. The second point that I want to emphasize is that. Pellets council has referred to the BOP expert as a Stokeo 3 and 1 expert who can write interview. Have access. And in this case. Dr. Cunick who was the BOP expert, she never. The absent this rule is here constitutional requirement of the appointment of such of such a witness. No, you're on. And in fact, with regard to procedural due process, this was stated out in in Baker United States versus Baker at 843 and 844. His right for procedural due process as also reiterated in and Vitic versus Jones a hearing notice of that hearing to be heard to present documentary evidence to call witnesses to have an independent decision maker to have a reason decision and to have an independent advisor not even an attorney. And that's United States versus Baker laying out from Vitic versus Jones procedural due process. And that's procedural due process that he's an absolute entitled to, which he has, of course, not only under the constitution, the statute and the setting order provides. Whatever the standard general standard of due process is that it's lessened in this context. No, your conviction is that lessened or not. So I'm just wondering your mind. Well, the due process of promise on the same all the time at every proceeding all that. No, I would not say I would not say that it does, but what I would state that with regard to Baker was a civil commitment proceeding. And that's why I was just asked about the general rule. No rule is I think that it's less is required to do process of hearing like this than just absolute due process. But is your argument if no witnesses required then a witness, but one you can't talk to and testify even if their view is right that can't possibly violate due process. I'm not. I'm saying if you're not entitled to a witness at all, can a witness with some limitations on it being provided? Can that be a violation of due process? No, you're on it. That's not violation of due process. And in fact, the other point I was going to make your honor is that Dr. Salem, Dr. Holman, our court examiners. And that's the point I'm getting from the court here. These are court examiners. What appellant what the appellant seems to want to have is the ability to not only select an examiner, but to control a direct examiner as if you're turning a court examiner into rule 26 before the consultant. And that's not the purpose of it. And I in reviewing the recently submitted supplementary joint appendix which size the coil case. The court in coil makes an in rotation and coil is at the 2013 West Law 5508358 at three. I'm referring to now it talks about the potential liability that a rule 26 for 26 for B. It's 26 for the expert has as opposed to a court examiner. A court examiner is the court's witness, whether it is the initial court examiner or Dr. Salem. I'm going to take you back to what you said earlier. You said under the operation of the old rule, and I guess you pointed that language in the amended rule saying which respondent is always enjoyed. That's correct. That the third witness that could be appointed or provided to consult with export, take communications with the respondent could testify. That's correct. They could they could they had an opportunity to have this person. But in this case, the record doesn't indicate that such a third expert was utilized and the court refused to let that person testify. That's correct. There's no evidence of that in this case. And to judge Hamilton's query with regard to Dr. Salem, Dr. Salem was the court, a court examiner that was selected by the respondent. In fact, they moved for the appointment of Dr. Salem. And as a year on a judge's shed stated, they had an opportunity to consult with Dr. Salem. It just wasn't exparte. That was part of what the mandatory judge ruled when they filed the initial motion to clarify the examiner's role. But it obviously couldn't be by deposition. Oh, yes. Yes. Even in a part from the rule 26, if the if the purpose of this really is to just help you formulate questions to conduct an examination, the other civil rules, interrogatories, the deposition, they could have they had Dr. Cunick's report. They could have deposed Dr. Cunick found out that the theories behind her, the basis for her opinions, formulated their questions that way. So I mean, if the purpose of this is to in fact help you design your questions for your examination, the. Is there any bar in that rule to the government and the defense lawyer talking to that expert short of a deposition as long as they were both present? Well, they are under the rule if they want to talk to the court examiner, they are going to have to move the court to allow that. And because it doesn't have to be a deposition. No, it does not have to be deposition. They could just say your honor. We'd like to have a phone call just to go over a couple of things with them both sides make a joint motion. That's correct. There'd be a deposition. That's correct. You could be that the opportunities are presented for for each side to talk to that court expert, but it's just both sides have to be present when that's done. That is correct. It just bars the exparte communication. And now I believe that council also did make another argument with regard to the courts use of. It's my time expired. No, no, no. Okay. We can barely see the lights on that thing in front of you. 15 minutes. Oh, okay. You wish it expired. Sometimes it goes slowly, then. Sometimes it does go slower than you would think. With regard to the second argument judge, the district court did not abuse the discretion in allowing the testimony, 11th, based on the untouched conduct, the district court judge. Well, first, they made a constitutional argument that was never raised before the district court just to allow that district court judge to in fact rule on it. That argument, therefore we would argue that is waived. Second, the all the witnesses, Dr. Salah, the court appointed examiner that they selected made extensive use of that same sort of evidence at 237 in the joint and the joint appendix and 242 to 243 talking about distinguishing. About the untouched crimes as well. And short, we believe the district court did not abuse the discretion. We ask that you will firm district court's order. Thank you. Thank you very much. Just thought you get a full three minutes. I have his tenure on it. We'll be right to our argument that the district court improperly used inadmissible hearsay as substantive evidence and relied upon that. In admissible hearsay treated it as substantive evidence and used that to make his decision. I quote from the court's final determination when Miss Shay says this entire case turns on whether or not the court credits the most recent allegations in 2003 and 2004 and how stringently the court wants to apply the hearing convincing standard. That's from J.A. 299 to 300. The court's response. Miss Shay has hit it right on the head that just about everything in my decision is going to turn on those other what you say are allegations and what the government says are approved and how far that goes towards meeting the clearing convincing standard. That was erroneous as a matter of law for the judge to use otherwise inadmissible hearsay. Regardless of whether it can provide basis evidence for an opinion to take that treat that as substantively true as substantive evidence and the entire decision commitment decision by the judge's own words hinged on that impermissible use. That we say is legal or not just abuse of discretion that requires a vacation of what page are you reading from when you read that. I have a page 301. Well, in fact, going to your hearsay argument. I think it fails to acknowledge that Dr. Saley, the responders selected examiner also use the same hearsay information contained in a police report to conclude that would did not did not engage in repetitive acts of child molestation. molestation against a 10 year old child, but committed only a single act. And it's further weakened by the argument threatened we can buy the PSR which would did not object to or seek to qualify in any manner and it contained much of the challenge. Statements that are that you say are hearsay. But if I may quickly your honor Dr. Saley pointed out that it would be malpractice for him to rely upon that hearsay. That's why he cited that hearsay because he as an expert could not reason rely on that. Well, was there any objection to the PSR? Yes, Your Honor. In fact, the supplemental J.A. that the government presented from the PSR back from Iowa. There's a whole list of defendant objections and then there he denies the allegations. Your Honor, we would have 20 seconds. The government has the. Well, I would only suggest to you that the hearsay was admissible under rule 702 and 703. It would be admissible to rely upon as basis evidence for the opinion. Neither the expert nor the court has permitted the treated as substantive evidence. 702 only permits it as a basis, but you cannot treat it as factually true. And especially in this case, the court cannot do that. That's just basic violation of how you can and cannot use hearsay. The government had the burden. I see my time is up here. Thank you. Thank you. Your Honor, Mr. Wood faced indefinite commitment in prison-like conditions, stigmatized for life based on this determination. The government had the burden to prove all three elements, not with a piece of paper, but with real, competent evidence. They could have brought the accuser in the accusers in as they did in Burkart, the case cited in Embarko. They could have bought the investigator in. They didn't, Your Honor. And the court therefore erred. We asked this, the honor to vacate the commitment order and remand solely on the existing record, limiting the judges' use of an admissible hearsay. Thank you. Thank you very much. We'll step down. Great Council and go to the right to the third argument