states versus machado please the court counsel for the government in morning my name is albert levin i represent the appellant nelson machado jr i also represented mr machado at the trial level the inability of a defendant to adequately prepare a defense strikes right to the heart of our criminal justice system in this case mr machado was deprived of that right because of a failure to bring him to trial in a speedy fashion are alleging a constitutional violation pursuant to the sixth amendment of his right to a speedy trial factually mr machado was investigated and in or about november of two thousand and nine a special agent from a florida joint task force working along with the f b i went to visit him essentially they were investigating activities that had taken place in september of two thousand  they went to see him in two thousand and nine they went and made contact with his parents initially ultimately they made contact with him telephonically he explained to them that he spoke very little english and that he was then advised by the agent and this is where the lower court erred he was then advised by the agent that the agent would get back to him after he had procured the services of a portuguese translator the agent never got back to him in april of two thousand ten he was indicted he had planned to move back to brazil back in two thousand and seven and did just that during the early part of two thousand and ten in april he was indicted it was uncontroverted that he knew nothing about the existing indictment and did not become aware of the indictment until he was arrested in january of two thousand and sixteen coming off of a plane from brazil the argument essentially when you apply the four pronged barker vs wing go test comes down really just one factor did the government exercise due diligence in locating mr machado we submit that they did not and or this concert what is it that the government didn't do that they were legally obliged to do that yields a reversible reversal in this case the only thing that they did was i don't want to cation when the agent went to go arrest mr machado with the indictment and he could not locate him he then went to the church to locate him and that was it what they could have done was they could have they could have interviewed church members he was with a church thought they went to the church i thought and correct me if i have the facts wrong i thought that the agent in fact did go to the church did speak to his secretary of the church did i ask her where machado was and he was told by the secretary that machado had left the country and gone to brazil is that accurate as accurate  an or what they did not do was they did not inquire any further because they easily could have made contact with mr machado in brazil they got no information from them as to where or how to contact him they inquired nothing along those lines of any family member that still remained in the breynton florida area and they merely were informed and did not act upon the fact that they were told that he had gone to brazil that did not relieve them of any obligate they have a legal obligation to try and extradite him after they seem to suggest that they had a legal extra legal obligation to attempt to procure his return to the united states which would include extradition has any case ever held that the failure of the united states to seek extradition from a foreign sovereign of a defendant who's left the country voluntarily amounts to reversible error on that borrow your honor not reason i raise the question is that extradition is a tricky thing and it depends on the nature of the chargers and it depends on the extradition treaties if any with different foreign sovereigns and there are a whole bunch of places where you can get extra dition for murder rape assault armed robbery drugs but you cannot get extradition for a crime so fraud tax fraud and the like is there any indication that if they had tried to extradite machado from brazil that they could have succeeded in doing that respectfully that is not the analysis the analysis is what after all but i'm just asking a different question is there any do we know from the record whether brazil would even extradite him for these charges there is nothing in the record that discusses extradition other than the court the lower court saying that the government had no obligation to try to bring him back from a foreign country now curiously the warrant that's large to in the n c i c system talks about extradition that is that they would be seeking extradition if he were located and it doesn't it doesn't matter whether he's extraditable or not the issue is what efforts they make to locate him let me ask you this question yes yesterday was it seems to me that what the government did in this case is comparable to the government then registered it in with the national databases all of which happened here and in addition here in the district go it found and they is evidence of g it that agent wagner checked from time to time monitor to the databases and they kohut in baghdad hailed that there was a reasonable effort to locate him we had that that was not clearly erroneous it seems to me that that case is case is it controlled it may even be more diligent here  bragger case they went to the defendant's residence and went to speak to his parents they didn't do any of that here well they went to the residence and then they went to the church resp respectfully that they went to the residence to locate him he wasn't there was another couple that was living there but talking to the congressman who knew the address it been then correspondence by talking to the consulate all but talking to ins in other words they were ways that they could have found the address  air and the same thing that i mean he could have asked the people at that restaurant exactly the same thing is the charge in this case and what we said about that is that  leaving under the month after the special agent helped him you're out of it respectfully the record in this case shows that he had been planning to go back to brazil some two years prior to the agent's initial contact with him and that in fact during the period of time between two thousand and ten and two thousand and sixteen actually had come back to the united states on two occasions and it spent approximately three and a half months here with regard to the agent doing his due diligence in the bragg a case based on what the court is relating to me the agent in that case actually handled the data aspect himself had actually gone through the records had gone through had checked out all this case is allocated that task to an analyst to do that and only on one occasion did he know and we have a final report that we have a finding of fact by the district co that the databases were monitored from time to time do we not that is the finding of the district court it was not monitored by the agent that testified his testimony was that he had allocated that to certain analysts and the only documented report was when he learned that mr machado had applied for a driver's license a credit card  and open a bank account per se difficulty you have is the district judge made a number of findings of fact among the other findings of fact the district court made was that he believed wagner when wagner said he had no recollection of machado calling him in february two thousand and ten or giving him contact information in brazil and beyond that he is the district judge finds as a fact that the government proceeded in good faith that's a fact finding isn't it is so you you've got a tall order you've got to show that that was clear error but i want to go back to just see if i have an accurate recitation of what the agent did do one he went to the house and said he wanted to talk in an attempt to arrest him i take it that was after the charges had been lodged yes that's correct and true yes true but someone else was living in the house and that person thought machado move back to brazil a least what the agent was told true through three wagner then went to machado was church soon after going to the house to see if he could find him there because he had served as a pastor at the church machado was not there and the church employee told him that she thought machado had moved back to brazil through for wagner then contacted homeland security and was told that machado left the united states in march of two thousand and ten wrote five thereafter wagner periodical he shocked different databases to see if had renewed his driver's license including going to the officials in georgia right clarified by special agent aguilar cross examination that he personally had not done that but an analyst might say he had someone at his  that and also sought to check whether maybe through this analyst machado i'd gotten a job in the united states that's true too right yes it is six he confirmed that the arrest warrant for machado was entered into the n c i c system soon after the april two thousand and ten indictment through and then the database checks did not include checking for bank accounts or credit cards and then the february two thousand and fourteen check revealed nothing to indicate that machado had returned to the united states  but he had no recollection of machado calling him twice in february of ten no recollection of machado giving him contact information in brazil with that be a fair statement of the record and you say that finding by the trial judge was clearer i do and the record to me is clear that in november when he did have contact when he did have a conversation with mr machado he unequivocally told him i'll get a porked words to this effect of course i'll get a portuguese translator and i'll get back to you and never got back to him so from that point machado had absolutely no knowledge that anybody was looking for him with regard to this matter right there's no there's no proof that he knew he was under indictment that's clear yes the real the only question his is whether the government had made a diligent good faith effort to find the defendant and bring him the trial they didn't have they exhaust all possible remedies but they had to be diligent and proceed in good faith and diligence your honor most respectfully to me would have been going to speak to his parents leaving a message with his parents speaking to them saying hey your son is wanted here in the united states or we'd like to speak to him speaking of the pastor of the church the pastor that had taken over near where his house was and bring yes they and they had been to the parents house and other special agent wagner had been to the parents house previously and did nothing that made no attempt to go make contact with the parents again or attempt to locate his whereabouts in brazil which is our the crux of our how is how we would have been more diligent in how he once he obliged to go forward and find the whereabouts and so what is it the agent should have done in brazil that he didn't do he worked for an organization called the assembly of god you know and today with today's technology if you google the assembly of god you would have found some contact information in brazil for this entity he could have spoken to the pastor that had taken over for him to at least find out who your employer was there any record evidence that they were assembly of  outlets in brazil that was presented to the trial court indirectly based upon the fact that mr machado was a pastor that worked with this domination the assembly of god and that they did have outlets in brazil there was nothing specific with regard to where he might have pastored in brazil but it was clear from the record that the assemblies of god was an entity a viable entity that could that there could have been more investigation of the locate mr machado and that's where the lack of due diligence comes in with regard to our argument thanks very much your viewers are five minutes for your rep that that's the same thing as a finding of due diligence being reviewed only for clear or maybe i'm wrong about that in villa rio the court discusses how there's sort of two standards this court has used to determine in reviewing the district court's determination of reasonable diligence and it says that in some cases the review for clear error such as in the baggage case and in other cases reviewed under what is the it that's being reviewed if there is a determination that the speedy trial act was or was not violated under the finding that the united states has recently diligent he said in bill real the court did say that there are some cases that have applied the clear standard there are some cases that post dog that have applied a considerable  but regardless of the standard if you look at it from a considerable deference reviewing his discourse determination from a considerable different standard or clear air the result would be the same but i would also point out th considered whether or not he had shown actual prejudice under a clear error standard and it wouldn't seem consistent to say that that is reviewed for clear air but reasonable diligence is reviewed under different standards but again the facts in this case are almost completely analogous to baguio as judge anderson pointed out the united states is under no requirement in every circumstance to look to try to locate a defendant who is living freely in another country and bring them back the i c c is only required to be recently diligent and here in the united states was recently diligent but they knew where he was and in brazil wouldn't they have suggested they should call him there that would be a different factual circumstance and i think that that probably would be a more no more negligent of them to not follow up on that that we would it be due diligence and for an agent after securing an indictment for a grand jury and learning from multiple people that he had gone back to brazil from whence he came if you knew where he was in brazil you made no effort to notify him in brazil that he was under indictment or to secure his appearance in any other way would that be due diligence it would depend on the facts and circumstances of the case because if the agent had a good reason for he did not want to publicly alert him to the fact that he was under indictment because that would deter him from coming back there's new evidence in this case but there also is no evidence in this case that the agent knew where brazil this person was located and machado is just asking this court to speculate that had they asked these people at his church or in the bridge and community that they would have somehow pointed to him in the direction of mr machar's location in brazil but as of course in a bag of the united states isn't required to pursue every lead on the off chance that somebody might have this information and especially in this case where there's no evidence in the record that any of these people did have that information with the united states did was recently diligent and that in line with that with the babby case and other cases that say you put it in the database and say see database you make reasonable efforts to check other databases follow up on leads and in this case they caught him on the third time that he came back into the united states in the entire period of time that he was living in brazil he only came back to the united states for three months he didn't come to breed in ten where he had been living before  went to his sister in law's house in orlando there was no reason for that in the back a case that was a case it seems to me of complete innocence on the part of the defend that he he left back left because his wife had a nervous breakdown in india do we not have to assume and our case that and so i think we can actually look at everything that happened and making the determination of the reasonable diligence and machado's knowledge but also like to point out that i agree with you that the district court did not based solely on the fact that the united states was diligent in pursuing because as the court said in dog a dog i'm sorry if the united states reasonably pursues a defendant from indictment to arrest the a speedy trial violation will not be found a showing of prejudice so the court has recognized that when the united states is recently diligent that weighs very heavily against the defendant in the analysis but what the district court did consider his analysis was and the asia went to mr machado's house to talk to him left a card with his parents machado called him back spoke and they just poked his wife and he said we want to talk to you about some properties in lee county at the that point in time those properties they believe it already gone into foreclosure and so and the agent says i'm going to push the translator and i'll get back to you but lesson about a month after that machado left the country and went back to brazil and he didn't contact the agency hey i know you're planning to get back in touch with me but i'm leaving the country here's how to get back in touch with me or when he came back into the country in orlando for brief periods of time he didn't call the agent and say you suggest and that is this little evidence from which the judge could end for some culpability on the part of this defendant correct and statement in the record that in his findings that machado left the country never contacted the agency i'm looking at the order and the district court does say in its fact findings were all there is no evidence the defendant knew he had been indicted he did know agent wagner wanted to talk with him about realistic ok to the county and he came back three times and never went back to his residence or correct and he knew the agent now whether that means he's totally innocent or not innocent it's all one big u s i think it just factors into the whole analysis of what whether what the united states it was reasonable and to get had try to come back into the united states and contacted the agent and the agent hadn't followed up on with him that would have been more negligent would've weighed more heavily against the government but the absence of those facts show how reasonable seems to me haven't let me ask just one question that we didn't talk about earlier was there any prejudices specific concrete prejudice that you can point us to and that you pointed the district court to with regard to his inability to prepare a complete defense of presenting the delay etc other the fact that by your lights the government was not diligent in ascertaining his whereabouts and securing his presence for trial essentially just what i stated previously about failing to contact people that would have known where he was and if we are talking about this defendant state of mind you know i guess what i'm what i'm simply asking is there any particular evidence that you otherwise could not have ascertained or obtained because of the delay that you would have gotten and would have been able to use to exculpate your client if they had proceeded in a prompt way there are forty exhibits your honor that i tried to introduce into evidence which the court did not allow me to introduce because i did not have a proper custodian of record this mortgage company had gone out of business and because of the delay i was not able to procure an appropriate witness to introduce some forty exhibits which contained arguably the forged signature of my client mr machado their defense was essentially that he was duped by this  montero who is the mortgage broker am i correct or wrong that this mortgage company had gone out of business even before the agent went the first time to talk to your client but told that is absolutely correct i ever year  haven't shut down they have closed and in fact disappeared the government was prosecuting people that were related to that entity in two thousand and eleven they did go out of business in or about two thousand and nine which certainly was much closer in time than two thousand and seventeen when this case or two thousand and sixteen rather when this case went to trial so if i had had the opportunity in two thousand and eleven to try this case it certainly would seem logical would have been two years after th mortgage company went out of business and that would been two years sooner or two years it's a lot sooner than the six years that had elapsed by the time or seven years but is there any and he reason to believe based on anything in the record that you could have been any more successful if the gap was only two years rather than six if i had been able to introduce those forty exhibits which were precluded yeah i know i understand that but that assumes what i'm asking is there any reason to believe that you would have been any more successful in finding a cause sto deal with miss if he had been secured two years after r sex there were there were names on the documents other than the individual that we were alleging was had set my client up if you will that had i been able to procure their attendance at trial i might have been able to be able to have them authenticate these documents that would have made a difference and this is a case where essentially the government proved its case based on documents it's very difficult to cross examine paper as you all know anything the record that tells us  was not able to introduce as i was left with basically putting on a character defense i believe had i been given an opportunity to present but the crucial evidence that was you couldn't get because of those authenticated documents th presented by the defendant himself in my view would have been had far greater impact on this jury that it obviously head i mean it well it didn't have any impact as i was able to introduce them but also  rejected out of relevance grounds we felt that it was something with respect that you did get and evidence that he was investigated did you not we did