look our yawn patterson's twenty thirteen motion to dismiss what is the evidence that patterson with vigorously demanding trial other than questioning relation to his competency proceeding during that time and therefore by reason of the issues repeatedly before the court defense counsel was essentially things now if medical staff are to blame for certain delays are those delays automatically chargeable to the government in this case of almost four years that have passed between the time of his indictment and his trial the evidence against mr patterson in this case really rests on the testimony of the six and a videotape in fact only two all the witnesses testified in relation to the video as to what happened outside that one meeting the details were left to the testimony of the witnesses and given the passage of long time the presumption of fading memory is not repaired and in unite us this versus stark it's the supreme court has said that that a defendant is not required to offer affirmative proof or  to prove because what have been standing trial cardless hiver the fact that she was simply left in jail and doing nothing for six months this period of delay and should not be should be charged to the government because well he could not have been trying he said in confidence yes how did how do you think that factor see it is true that he was incompetent during this period  reasonable foreseeability standard requires an objective test and although mr patterson concedes that he committed to this crime he was committed to this crime the video evidence it never shows it demonstrates that mr patterson was committed to greater than the amount of kilograms of cocaine the government the government this particular was even really committed to the cocaine and all his commitment was more toward the cash with him yesterday that's exactly correct his commitment was the the the conversation of the entire meeting from the mark that he gets in there about the twenty five minute mark to the very end of the video footage the evidence shows that he is committed to things his focus is on cash which is what he was under the impression that that the crime was for as well as this is the alleged mexican drug cartel armed guards the hidden gun and this mystery man that he has shifted the conversation to be the undercover agent as well shift this discussion  this point and that is the entire discussion of the meeting revolves around armed guards and hidden gunmen and puffery essentially to to assert his status that he's up to this task is there any reason it would not be acceptable for us to presume that he was listening to the conversations taking place around him at the planning meeting even if he was not  point that he was actively engaged or tracking as to the gravity of the situation of the gravity of the conversation in fact point fact even asked the one time that he does ask the direct question of how much did you pick up last time at the thirty seven fifty nine mark in the video the undercover response ten and prior to that the undercover says six then later on a few minutes later the undercover again for a third or a she says ten the conversation briefly drifts towards the amount of twenty but then for the rest of the video the rest of the evidence it shows the conversation skips around to armed guards there were there were mentions where they're not of the possibility of twenty kilograms of cocaine with him present there was one at the forty minute mark and then there was another that was hypothetically brought up by a coconspirator mr english but mr patterson specifically never actively engaged in that part of the conversation nor did he appear to understand in fact at certain points he drifted to conversations of the war had sent me here to do this to guide you into the future which was symptomatic of something that he was later diagnosed for delusional disorder from for s where the your cover almost comes exasperated that that there is no cash there but that's not part of the plan it's appears that it's for lack of better work this or patterson's on the same page with the rest of the party members and in fact it appears that he even states i want that cash now not the dough so it to patterson's council effort to listen on cross examination that there were numerous other meetings at which patterson was not government ever stablish that there's more than ten it above the mere brief mention of floating conjecture by the undercover agent simply just does not establish that there was an agreed apart agreed upon mounds and this is what breaks this case away from so many other cases u s b kendall mckenzie for all these other similar cases where there's an agreed apart amount and there's consistent meetings two three four meeting for they talk about twenty or thirty kilograms in this case were nowhere near that point interesting leading curiously the undercover pulls back somewhere between the forty minute mark and the hour mark it's by saying i'm not sure i may have to sleep on it indicating that either a you want them to believe this is bigger than it actually is or be that they are simply not taking the bait and what's maybe involved more people if you can get them to come later on but ultimately this is this is a case that drives the point home with the  we've heard a lot in the speedy trial act about the interplay between h one h one f which the government would agree is an interesting question however it's not relevant to this case because h for controls at any point in time when a defendant is incompetent and we've heard today that defendant was incompetent over this bulk of time so if you look his her he was adjudicator found incompetent september the fourteenth two thousand and twelve and at least was incompetent and so october ninth two thousand and fourteen which one hundred seventy eight days so in need delay or allege delay about the treatment or transportation is irrelevant because h for controls that and there is as good or over pointed out there is no possibility that he could be tried at that point in time so there's no reason for this court to even get to the h one a versus h one f interplay which the circuits are split on that but age four controls this case that any time when a defendant is incompetent delay is caused by the government i mean there what there was delay in there now some of that delay again was because to mr patterson refused treatment but and there is no bad faith but that being said the other but far factors if you look at even within that that barker factor about who caused by the way the incompetence has to be a major factor there as well and as you mentioned in the opening part of this argument mr patterson requested eleven continuance motions so it's really it's difficult for him  that he was being denied his right to trial when he was not filing motions for a speedy trial but finally continuances to delay the trial himself and as far as the motions to dismiss he didn't file want to till two years and the next one was a year and a half later so again i mean to step back the government would agree that some of the delay is a factor it's just not and cannot be a factor in this to trial it only as a factor and one of the part of her sixth amendment context factors  so i think that clearly isn't compassed by h one a that's not delay in transportation when h one f might come into effect any any time for medical proceeding is counted under age w under and back now moving on to the sixth amendment even if this was a delay i think it's difficult to say it was a delay that someone didn't sign the diagnosis quick enough i know that i write briefs and don't automatically file them i like to can medical symptoms are certainly but i think that take reflecting seeing how mr patterson changed in that time period very well might have been a diagnosed diagnostic tool even still i'm going under the act sixth amendment context i think that would be acceptable for the problem is even within that barker prong you have defendants eleven continuance motions and the bulk of the time we're talking about a month or so mr patterson was incompetent or i mean well over at at minimum sit over a year so the bulk of the delay still would be mr patterson and again there's a chunk in there where he sought and interlocutory appeal which of course is his right to do but he can't come back to the district  was going to transition to be our part rocker's i'm i've i want to to transition whether there was any evidence that the that the members of the conspiracy were reporting back to paterson on the content of the meetings t place without him well your honor to be certainly had to at least one time because after the meeting adjourned they were then reconvened at the day they were going to commit the robbery and mr patterson was there he was arrested with them with all the other at the time and place where they were planning to start the robbery that doesn't mean that they told him twenty kilos as well that the twenty kilos is clearly expressed in the conversation where mr patterson was that there is no reason to when you say clearly council  there was a six to ten reference at first right six to ten kilos then the usa said ten kilos that he got himself and it looked like there may have been something equal to that then he said twenty there may be more it was a lot there and then english said something about twenty but there it wasn't amount that was is all speculative it was all even during that conversation speculative anyway but during that conversation so i guess how do you distinguish or how does mackenzie it's different with mackenzie here isn't it i mean not kinsey was mentioned twenty was the only number mentioned it was mentioned multiple times  ten so the twenty was never how many he delivered but he said there is usually at least ten that much on a table and he said there are so there could be twenty and there might be more in the back room so there was that would be so there clearly and there might be yes certainly i mean we're in the again  land of speculation we agree but twenty was in a mood i'm out by by poll two of the parties there in english and the undercover agent so two of the four people there specifically discussed twenty english discussed twenty in the context of how much money that was and the fact that there was that much would be that much cocaine the people there would would shoot to protect it so they make contingency plans for that and i would add to that i don't let me ask you this do you think that they wouldn't of had shooting and amounts of the this is i think was a part of the reason there was no objection is because all the parties agreed that there was an agreement for twenty kilograms now i think again we have to step back into this is plainer view there is no objection  this is so first of all we have a wing of evidence by the district court i think it's difficult to say that any district court if has clearly erred finding that twenty kilograms which was discussed by the parties wasn't the number that they had discussed for the robbery it certainly is difficult to say that that questions the integrity of the judicial system i mean if the district court would have said fifty or hunger maybe that would question the integrity of the judicial system but while many miss your rights look the tribe quantity determination is a real problem with these dictatorships stash house cases i mean what's the limit on the government what's a limit on the government mentioning any quantity of can cocaine that they feel like you know in order to ratchet up the teacher defendant sentence based on nothing more than the wind not the agent involved we agree and i think if i could take a step back and answer that institutionally we have tried to be responsive to this court's concerns and criticism of the fictitious stash stash house cases we actually do not my understanding is we do not take them any more this case however so two points on that this case is residual because that's the way he spoke at this meeting both of the other two people at the meeting were looking at him i was wrong with you there is no cash here and that's all he talked about so from that point we do there was something off here and then the say well he had to know affirmatively that there was twenty that was the agreement it's sort of like you're head trying to have it both ways i don't i don't think the case well is he had to know a primary had to have a reasonable probability to believe and he did because the twenty w discussed there now that he wanted money i think it should be unsurprising that he wanted money because the reason you rob drugs to sell and to get money i'm talking about the reaction of the other two people in the room including you a to him when they were telling him  real argument that it couldn't and i'm so sorry i really want to turn back to the institutional points of the second but i want to make this isn't the the broad concern the fictitious stash house cases are is the government agents will go to people that maybe don't have evidence that he had ever before distributed cocaine or that he had some mechanism in place to sell and so my answer might be an answer was going to get to that so i will get to that just give me a couple sentences for either actually answer so this was not the sort of entrapment of this court of concern but this was a standing robbery crew right these did this crew was already robbing people in bloomington for this the the police infiltrated it that's the reason we have this this was not a created crime this was the police being reactive to try to pray it's from happening so we know they found out that english was maybe the leader of this game they didn't know the other people so when they set up this meeting english contacted paterson and he said this is my guy we're professionals this is who i trust to go in and do it so i think there is certainly evidence from that that you could that we can imply that the reason english shot out patterson and then said we're professionals this is the guy trust is because they had done this before now moving on mr patterson did make plans to sell or to stash the cocaine once he stole it that's a guess it supplemental appendix thirty one so he while he was agreed focus more on the money he discussed what he would do with the cocaine once it was stolen so there is reason to suspect that one patterson and already done this was a member of this crew that was terrorizing the local community and then reason to suspect that he believed her because they're the t there is no clear error that there certainly was not playing air for a standing robbery crew to discuss what they were going to rob and the parties agree i mean it would maybe this isn't a contract where it's written down but we can't really expect curious question how many charges were there and what was he acquitted of so well total or fifteen he was charged with five things he was acquitted of a gun charge and further and drug trafficking he was charged for conspiracy or attempt to possess cocaine and conspiracy or attempt to possess the cocaine and then conspiracy to commit robbery and then he was convicted of conspiracy to the what was he he was acquitted of did the jury take that into consideration that they were because he wasn't there i think it's very possible i mean he was tried by himself but i think it's very possible that they were a little concerned that he was maybe not the lead person and that's the reason thank you thank you how much mr english mr patterson we were attribute that to me or puffery to show that he was up for this task we're in this particular case we're not arguing about entrapment and to your point that you brought up earlier about how outrageous it would be and how far you could go with fifty to one hundred kilograms of cocaine the limit is is going forseeable at this point it's got what's possibly foreseeable it's what's reasonably foreseeable and in this particular case it's curious that the government consistently places it at twenty which just so happens to come up with a reasonable estimate are now saying that he agreed to ten she or he was definitely more present and a part of that conversation i would say your are of that based on his presence of mind at that point in the video evidence that he was aware of no more than ten because of what was discussed when he asked a direct question how much did you pick up last time and under cover said ten and produced that he said six and then a third time and on the cover says time that that is what based off of his body language in your responses that's what mr or mr patterson could go off at that point and the fact that as we mentioned earlier throughout this trip this meeting that he his focus was on guns and defending himself and protecting himself as well as patterson or discussion is what is attributed mr patterson what he believes what he was aware of and based off of the video evidence which is what the government's arguing you can attribute anything more than that by arbitrarily placed you know not greater than fifteen just just to do so as there's an issue for it to set about precedence because it's it's what's recently foreseeable there was no consistent agreement similar to mackenzie where on three different meetings they talked about twenty to was involved in just one meeting with him biggest conversation that hopped around from armed guards and hidden gunman and how much cash was going to be stolen for those reasons it just it just it just doesn't rise to the level from which mr are you seniors so the court thank you very very much for the aid i think that you have given us and the court also always thanks the government because i asked you know