criminal history and his record of violating parole way in favor of finding boat that isn't serious danger to the community and a serious flight risk all the money many factors we in favor of the tension in this case the first factor the seriousness of the charges they suggest that the defendant poses a serious threat to the public both in general and with respect to specific people who might be witnesses in this case defendant and one that he ordered in addition the defendant is charged with witness tampering in witness retaliation all of those crimes indicate that if released this defiant defendant might hurt someone else and indeed the initial continuance was because the government had charge of seeking was and it was seeking the death penalty against two defendants and there was a delay to permit the defendants to present to the department of justice reasons why the government ought not to seek the death penalty then there was a continuance to permit the defense to go through the luminous discovery following that there were series of continuances at least three of which were sought by the defendant himself because of medical reasons he was receiving treatment that made it difficult for him to subpoenas issued to the california department of corrections so all the continuance that had been sought by the defense in this is critical in golf so this court did note that the length of detention could conceivably give rise to a due process concern but the length of the detention has to be considered with the responsibility for the delay in this case the government doesn't bear responsibility for the delay returning back to the the most to many factors second factor in this is a critical factor to set forth in the pretrial services report is the defendant's criminal history it's an extensive when you're on it and it includes violent crimes the defendant was convicted shooting into it welling convicted of shooting into a dwelling then he was convicted of assault with a deadly weapon and then later on in one thousand nine hundred two he was convicted of a crime based upon the the offenses that your honor is describing and that also involved last time this defendant was released on parole which was in two thousand and one the defendant participated with codependent d'anna in a robbery of a woman in which a codefendant deanna took her gestures while the defendant menaced her boyfriend this happened in june of two thousand and one and shortly thereafter he was taken into custody and remained in custody and remains indeed in custody today so the notion that this defendant's criminal history that that can simply be dismissed is something that that  significant factor because the defendant was held under such strict conditions so the defendant's criminal history and his background is certainly pertinent here and the government believes weighs in favor of the chaining this defendant news you want to certainly fit the ties of the defendant has with family it's a factor to consider the government doesn't dispute that but it cannot outweigh the defendant's criminal history and his conduct on parole the defendant has been released and the government believe that both standards have been met here standard your honor it is with deference to factual findings unless the court was clearly erroneous the district court that is it's also an independent determination by this court whether or not the thirty one forty two factors cannot be said to have by clear and convincing evidence any type of safety condition or conditions to insure against continuing danger and whether or not there's any condition or conditions that other part of standard would be able to ensure against flight what the rights of loved her find beyond the fact that his mother loves him and his crimes took place in the past i think wh i scatter his criminal history as part of this criminal history he took into consideration his behavior for the past three years in the city and i find it somewhat disingenuous that the government would argue  and outside the prison walls i certainly think that is something that goes and so the balance and i go into the valance but what i'm getting at is the question you know we have a we look at things a little differently depending on what the decision was in france hatters ultimate decision was to release but the factual findings have underpinned that decision by judge hatter seemed to me to be fairly scam and there is a reason why there was camera because the government did not respond at the district court level to the motion that was made in writing nor did they of the supporting documentation is provided to this court to the problems inherent in the premise elim of the individuals who presented that type of information or instance in their argument grief because they were given some kind of consideration those are the types of facts that are president here because of the way in which this was done did you make a motion to strike the portions of the record which we but also that there are no conditions or combinations of conditions that handle reasonably sure against the continuing danger and the same holds true for continuing the safety concerns and i think that with the specifications with the trucking conditions that were imposed electronic monitoring in combination with g combination with all of the tension in combination with a list of approved contacts by pretrial services minimum of travel that would have to be approved by pre trial services all of those terms and conditions or are they need a gate against and they reasonably assure against continuing danger i cited in my brief a district court case from massachusetts patriarchate in which the court made the very similar stringent with strict the conditions for prefer release and a rico case involving the mafia and highest level of monitoring is certainly from reading that portion of the government's brief and the excerpt of the record which supports it it seems like it was an individual parole officer who does met who does more than minimal contacts we think the family through a sure he's meeting his conditions of parole that's not what we're talking about your your point i guess is that when he's on the loose parole system even though it's my highest level an inconsistency between the government's charges in this case and the defendant's behavior at n b c the conditions under which defendant was held at the time he committed the prison crimes that are charged in this case are quite different from the conditions under which tallahassee state prison my understanding is the defendant was in the general population and had much greater freedom to engage in criminal activities even if the court assumes that the defense is correct and that this defendant could get into some sort of trouble that m d c certainly the fact that this defendant was held under strict conditions he he stayed in a cell by himself he ate into his meals by himself and was in the president or it was in the recreation yard by himself those go a long way to explaining why he hasn't gotten into trouble at m d c second there aren't any courses of the record that were not presented to judge chatted with rest just as question the government by the motion for reconsideration in which it presented all the evidence that is currently before this court the district court judge had denied that motion of the government appealed those both the denial of the motion for reconsideration and the initial bail order so all of that is probably before the court the third point is whether wit government's filing in the night of the third point whether the court can fashion conditions supervision or high a nation of conditions of supervision that would adequately protect the public this dependent was subjected to very close supervision by the martin managed to threaten summer sinclair and both of those are that they are bases for charges in this case and also managed to rob the victim in that incident in june two thousand and one that the government described in its brief it's of even though this defendant has been subjected to close