swing around the morning your honor this is a interesting case really comes in two parts the first part we have to talk about is the question of whether my client was denied due process by the court and by the u s attorney's office and then the second part is assuming there is due process is perhaps more complicated try to figure out an appropriate remedy the seems to me that it's quite clear that there was a failure of the process we have a situation where it's almost five years from the time this court sent back the case and even then it was a long time before the mandate issued before he was finally recent see was recent at that point as i'm sure the court so along that line the the court was not aggressive in getting this thing said it's hard to criticize the court system but this is not the high day of court procedure court is i'm sure the courts were reversed the conviction is on the record hearing and sent it back and then the u s attorney's office i don't know what happened they didn't know what to do with it they didn't want to make a decision they figured my client was in jail it wasn't to make a difference he had a long sentence would just let it sit see what happens and then all of a sudden when the time comes they dismissed the charges it's fair to say that they thought they already had a two hundred thirty five month sentence on one of the counts to gether with a hundred twenty months on end which was to be consecutive on one of the remaining convictions that was through valid some of them you know from their perspective what the suggesting is we didn't think this was a big deal because essentially the same sentence would be imposed again but just visualize the defendant this point he's facing a new trial on very serious counts and he is hard as he worked to try and get this brought that somebody is going to get a long sentence so we don't really like assuming he's probably guilty anyway he's going to be found guilty so why do we need a speedy trial he's going to get a really long sentence so why do we need to rush to adjudicate what his sentence is going to be is really what  y the rico case that you would have had a very good argument that it should be dismissed and even dismissed with prejudice because of the doorway of course then they come back and instead they dismissed those charges  and then and then we proceeded to sentence and when you're asking us to do is to vacate his convictions for crimes that there's no question he committed he was found guilty by a jury fairly and he received a very substantial sentence which he served and so i'm having trouble understanding why that would be inappropriate we've been appropriate remedy to just wash the slate clean for him at this point if we get why should the government get a windfall i mean it's always goes one way no good windfall the government i don't even like to put it this way because it's not the government's when it's justice is when but the government earned it conviction the mr cain was found guilty of these things that conviction was affirmed he was sentenced for it and served a lengthy period in prison  which is the sentence that the judge decided even retroactively was appropriate so what do we i mean there may be you know i'm interested in thinking about what kind of remedy should there be but it's hard for me to see why it should be that he walks out the door with a clean record somehow well your honor the i have spent a lot of time thinking about the remedy in this situation and let's start with the thing that there should be some remedy that there's this situation was  such that his rights were violated should not the government should not be able to do this without some some functioning penalty otherwise in future cases they can to be safe because the big that's wrong and we should tell them is wro how do we do it we can suspend the rest of the sentence we can say that the release that he still has to serve the but is that enough there are cases which say that when it when it there's enough of  so the real it seems to me the significant violation was really from december of two thousand and twelve to for twenty one months thereafter to know eventual he had a lawyer so that twenty one month period is a problem but then i start looking at the question of prejudice for that twenty one month period and the fact is he was convicted of a ten year mandatory minimum and that hadn't even been completed by the twenty one months later so as a result you know frankly he would never have been released during any of that period of time so then you know ultimately get into a question of you know various shorter periods of time and is it really prejudicial to him and it's only prejudicial if you can speculate that a judge or a kero would have given him a little less than one hundred forty four months and that isn't that really all that i could put that to response is one speculation if you ask the man in the street the rico material to up the criminal category and he lost the opportunity to prepare for that in the situation to respond to that is effectively as he might the delays i don't see i don't see how that's the case i mean he had a lawyer and he had more time than he should have had in a sense when you're arguing you should have had less time to prepare for this but it was known long before his sentencing that  that it presented a problem i hear you and all the arguments this is not an easy case to deal with it it seems to me that in summary i see that my time is over but  the government in letting this case it was wrong the courts in not bringing this back were wrong and that some remedy should be fashioned and whether and really this case has most cases i'm here arguing have real consequences in terms of life or otherwise my client this really is a matter of what it's going to do in terms of saying something making a statement about what happened here and responsible for any of this any of the five years almost five year time from the court this court's decision to this i was actually sentenced i don't know that he's responsible for any of it but that there's there's a nuff responsibility to go around to say ok who's responsible for it because in some instances nobody was responsible for it because things were going on in the court some instances somebody was responsible for it the government actually said to the judge at one point well you know we weren't sure what to do so we figured it wouldn't be let's just let it sit and see what happens now if that isn't a statement and overt statement of callous disregard of somebody who is saying if you're  speedy trial and the government is telling the court well for twenty months we just shrugged it off because we didn't care because it was going to hurt us if he sat there in jail wondering if he's going to go to trial and maybe we'd figure out something maybe we decide to try him anyway at the end of the day admit i'm a little disturbed that the government's brief to this court is let's shall we say unapologetic well there is nothing that i see you know in this bowling rock says send the government a message there's nothing that i see that suggests th government your office doesn't need a message the way this case was conducted and then the way it was defended your honor i can say and if the court doesn't doesn't feel that there was we were apologetic at all for any of the period of time that's not the case i would say it would be difficult difficult for me to find a reason in a period when mr  and fourteen there was about a fourteen month period of time things were going on yes the motion for or the request for counsel was misfiled by the district court it went in mr where we should have moved quicker and it's pushing this responsibility and you know judges are busy they lose track of cases and shouldn't happen but it does but in a criminal case i mean i maybe i'm influenced by the fact that i came up as a young prosecutor in the early days of the speedy trial act when the speedy trial act was actually taken somewhat seriously and the you know we were trained that it was our job to make sure that we didn't get cases into a situation where somebody had a speedy trial coming and you know it seems to me that that is a training that needs to be restored a little bit because you know it shouldn't be if the court isn't acting on emotions and particular case was a pro se defendant who is actually i mean he's doing stuff to vindicate his rights but maybe not the most effective things or maybe not what a lawyer would have done on his behalf it seems to me i behooves the government to you know poke the cork with a stick a little bit yes and your honor my office does appreciate that certainly with the decision that the condo decision that came out me the constitutional right to a speedy trial certainly we've redoubled their efforts to make sure that those things are treated in a much more expeditious fashion and i when you break down the time periods of your century talk about a twenty one month period right between between december of two thousand and twelve and then twenty one months after before the defendant got a lawyer that seems to be the bulk of the problem from that point forward it seems to be one sort of small error after another all the sudden a lawyer can't practice in the united states then he gets another lawyer and on the other or as a conflict as roka result they have to get another lawyer and as a result then they're into preparation and significant sentencing hearing so it's really the twenty month period and i'm i'm interested to know whether you respond to judgments is comm n that any of this delay was intentional on the part of the government or just merely neglectful well i would say and i think you're correct judge that in the cases do say that you consider  reasons for the delay not necessarily ok who is responsible for the delay and i think your point is i agree with you judge that a good portion of it there were reasons for the delay count reasons for related to counsel reasons in this court after this court issued its decision where there was dealing with motions for for for rehearing of the other defendants so that all there were good reasons for those periods of delay when you're talking about that period judge that the thing to look at and whether it was neglectful on the part of the government i would probably be hard pressed the same it wasn't in some way whether whether the government gained any tactical advantage from that and certainly there's nothing in this record to say that the government gained any tactical advantage that went when as you say when we started aggressively litigating this the parameters of the recent and saying there is no indication in this record that mr cain was not able to make any arguments that he would could have made at any time after the case came back down from this court and you look at it and the government and his counsel agree did a great job in staving off the government's argument that the sentence should be the same there's still that mail fraud in place that carried with it a two hundred thirty five month sentence and it's it i think there's a requirement of recent unsing in fact is that correct i mean you you essentially reversed on the rico you don't reverse the other three counts those convictions stand this circuit i think suggested that you have to re sentence despite the fact that there was no removal of that conviction and usually correct i'm not to say and this court's mandate said retry on the rico counts if the government chooses to pursue them and to be sentenced on the remaining counts you're absolutely correct judge a recent unsing was required however the government's position was it's not going to be  the recent unsing is not going to be that complicated there's still that two hundred thirty five month which put together with the one hundred twenty months mandatory on the arson count those were vote that was all part of the and the government's position was the same sentence should be imposed here so i'm not saying that that he that he had no right to be resentencing what i'm saying is that under the circumstances of this remained and what was still remaining and what the government chose not to pursue the same sentence certainly was a possibility and was the sentence that the government was advocating for and in  end of the day when he was not sentenced reasons to time served right he was a record one hundred forty four hundred forty four months and in fact while it may be a relatively small amount is it not the case that he served more time than would have been appropriate on one hundred forty four sentence i think mr pauling rock referred to one hundred forty four months and eight days but wouldn't have been entitle to good time credit that would have reduced his actual release date below one hundred forty four months by approximately fifteen percent if you were we sentence one hundred forty four months back if he had been sentenced one hundred forty four months  you when you look well i'm i'm not conversant exactly with how that if you had received one hundred forty four month sentence from day one he surely would have served less than he actually from day one meaning he was censored  forty four months after his first trial and there was no appeal or in over reversal one hundred forty four months one hundred forty four months sentence from that date would have led to less than one hundred forty four months of service i think that's calculations he said look judge he would get this much time for he would get this much good time he would get fifty six or fifty seven days whatever it is per year of good time i do believe that the record bears it out that  that some of that time could have been in a halfway house if it was appropriate for him to be released which he appears to have rehabilitated fairly well in prison but the but i think and i see my time is up but i just to say i think that the prejudice and i met mr mr cain's argument now that it's almost certain that he would have been sentenced to less time is purely speculative and he has not shown prejudice there were reasons for a good amount of the delay that occurred between the between the the decision from this court remanding and the resounding saying and for this