the district court's determination that the statute of limitations ran on the criminal case against mr ortega arriaga charging him with a violation of title eight united states code section thirteen twenty six sen actually being found in the united states have to having previously been removed from the united states the facts are generally not in dispute mr ortega area as an alley and back in the one nine hundred ninety s he was removed from the united states  subsequent to that he came back unlawfully and became involved in criminal proceedings in the city of new york which resulted in a court appearance in january of two thousand and ten when mr ortega ari failed to appear again in connection with those unrelated state charges the n y p d first obtained a bench warrant from a store to arias failure to appear and later after he mr ortega arietta was indicted obtain a warrant based on that indictment that warrant was obtained in late two thousand and ten but not entered into the  c database until december of two thousand and eleven when that occurs of the department of homeland security of which ice is a part their database automatically sweeps or captures if you will entries that are made into the n c i c database and the d h as database document that would have appeared in that database is in the appendix a nineteen in response to mr ortega aria it is motion to dismiss the indictment judge heard erroneous lee concluded it was not just the fact that an arrest warrant had been issued in new york city but that somehow or address information associated with that arrest more had been swept up into the d h database there's nothing in the record to support that conclusion and it is directly contradicted by the two affidavits submitted by the border patrol agent stephen glass the government moved for reconsideration of the court's dismissal order i should back up saying when the district court made that determination that address information was provided to the federal immigration authorities it determined that that was the point the latest point at which mr ortega arietta was found in the united states under the statute there was no dispute in there remains no dispute that the government is aware that mr ortega aria is presence in the united states is unlawful the second half of the test the government moved for reconsideration explaining to the district court that  there was nothing in the record to show that the federal immigration authorities had the address information that the court believed it did i'm just looking at one thousand nine hundred which you provided which was the query result that homeland security would have at the time that the arrest warrant information was included so is it the case that whenever an arrest warrant is issued in that information is uploaded into this and cia's database that it never includes address information or is it your business or they didn't do it in this case with what is with the record does reflect that i've spoken to a number of people trying to ascertain more about the mechanics of this i really can't answer that question but in your position then is any time arrest warrant for mation is entered into the n c i use database  even though the arrest warrant underlying arrest war itself may contain address information that that information is not possession in the for for these purposes under some of the we williams test yes at least in this case so it really almost doesn't matter if address information had been entered and c i c because the mechanics of the system resulting in a nineteen or a document that reflects that that would have been there at the time does not capture the address information well let me let me clarify some other things why understand a nineteen is this is a document that was created for purposes of this litigation by someone at i or at the u s attorney's office directly querying the database and asking what they had on mr ortega arietta that's correct so what happens with the n c i c it essentially generates rap sheet type information is that a fair assessment that it contains information about i have no doubt that mr ortega ari had his address would be there because when you make a query of the database you're going to capture all of the information that's been put in at various times but that's a separate inquiry as to what happens when d h s s sweeps the u s to exactly this is the document a nineteen with or without addresses is the result of someone asking the computer tell us what the database has on this particular individual is that what a nineteen is yes so when the data is swept essentially what happens is the n c i c data is carried over into a federal database with that database have i mean is there any record information or any public information about how many documents and individuals might have entries in the  c or ice database there's all the information that i'm aware of not new information in this court's williams decision i believe it was williams there was a reference to the fact that there were some two hundred eighty thousand entries in that federal i was going to estimate several hundred thousand so i guess that's so what's happening is all the information about various people who are wanted for various things all over the country at a minimum and maybe other information about i'm not sure about whether  i think your position is that doesn't mean that the government knows the federal government knows in quotes that were taken arietta is even in the database and it's only if you have some reason to look for this individual were to look for information about this of the many people that ice might be interested in some way would be in the database that you would ever get anything like a nineteen let alone go behind t see what they see there's a warrant to find out what information might be on the warrant i agree with that proposition your honor i have not pressed it because there was a lack of precision in the way the government presented its case in the district court indicating that we knew of the arrest seen it in that kind of context that would be further questions as to what that what the significance of that is in terms of cross referencing does anybody there's a person who's a dater if there were such a person have any access to the information that would say oh this is a guy that we deported years ago and that's that's kind of the problem with this and not misspeaking but i think in williams that actually occurred where an analyst noted the fact of an arrest warrant little odd that if for example someone had thought to get an indictment and just said dave this guy if we had any information that he was back in the country and he was indicted within immediately and no statute of haitians problem united states against dog it would say that the government has a due diligence obligation and denies him his vitro rights if they don't try to catch him hard enough in this circumstance there's not even a do do it if the government was negligent and i'm not suggesting we represented in the district court i think that's true i think it would be totally unreasonable to say that the government has actual knowledge of these hundreds of you know actual not that i'm just i'm just a question i'm just trying to figure out when what that means the possession of reliable information the whereabouts of the individual is it it is is that information in a database or is it someone knowing this information database having looked at the database and designed it not to do anything about it or is it you need to actually have th address i'm trying to figure with what's the level that we get to we get to the whims then i don't think you have to answer that question in this case because even if someone in a position of authority let's say knew of the specific information in the federal database it would not have provided address information so i don't think you need to resolve to what extent the department of homeland security can be held responsible for knowing what's there because your position is what someone would have had who actually looked in the database is a nineteen which does not have an address and that person would then have to say oh but it says there's a warrant i bet on a new york warrant there would be information about a person's address at least as of the time the warrant was issued or whenever the police knew was an address or thought was an address let's call up that warrant and that step you're saying would be either due diligence or extraordinary diligence but either way even if that's what a reasonable officer might have done he doesn't have to under to satisfy the wm standard yes and if the address information was in this database then i think the court would have to decide is that chargeable to the department of homeland security but because we know it was not there and never was there you need not resolve that question w h you know you know just just one last question so do we know who in this particular database what types of information would be entered i mean what are the circumstances when they were generally would put address information into the database as i'm trying to figure out because if you're saying that putting in a document information that the underlying document may have address information is insufficient i'm just trying to figure what are the circumstances when you might put a dress informations of the dress information is there so there is  possession of the knowledge my understanding your honor is that the department of homeland security database will sweep all of the information in the n c i entry and it's up to the officer or civilian sitting at a typewriter who's putting in the information that will determine what information is swept into the federal database person at the n y p d and we're entering the warrant yes because you're saying that that there would be a place in the basis for that understanding is my belief based on this record that the federal database sweeps all of the information in the n c i c entry so it's federal public defender's office we don't have access access to those types of documents and i think if the court were to look closely at the affidavits and the record that was produced by the government you would see that they had tiptoed around the bounds of specific information as to how the d h s s uses that information once it is acquired and how the database the e a a are and the different types of databases  functions with to use that information operate we do have a nineteen which as judge lynch pointed out does demonstrate that the federal authorities were in possession of significant information that could have led to and reliable information that pointed out that mr ortega arietta had been in new york city so was in the country in two thousand and ten in two thousand  presumably eleven was illegally here that he had an f b i number he had an n c i number he had a warrant that had issued from the n y p d so it some point he had interacted with the d and there was a telephone number to contact within a nineteen and under that it said to contact them immediately in reference to extradition how is that different from williams it's not different  not so different from williams that's our problem isn't it i mean i understand if this were a case of first impression i would say at least if there was any evidence that anyone had seen this record that  well what person who knew who were tell you are you know was and knew that he had been deported who then saw that he had a warrant outstanding from new york wouldn't least make a phone call actually and isn't that isn't that what it's occurring now but you know what that ammunition is being tracked down it's being pulled up and tracked down and in williams it was because of an outstanding parking ticket that that the federal authorities of teams the actual physical address it wasn't through the validation procedure which was a procedure that the d h s s i just i said time was going to get into it and that but the question is have we not held that the agency has no due diligence obligation that even if a reasonable police officer who was interested in catching people who had returned after deportation who of this record would have made that phone call that the failure to make that phone call does not affect the question of whether the federal authorities had found or ariana in the united states that's whether or not that that's a different case because here they had reliable information no no no no they had reliable information that if they followed up on it they had information that if they had followed up on it might have led to reliable information about his address but they didn't follow up on it is the problem indeed it's pretty clear that they didn't even know about a nineteen is not something that somebody saw contemporaneously it's something that someone created by punching the gentleman's name into the database which no one would have had any occasion to do unless you imagine or and i don't think that you'd want the federal government to be doing this maybe they do do it now to punch daly the name of everybody who's ever been deported into this database just to see whether they've turned up somewhere in the united states and they could do that  no but i mean that's what would have to happen for someone to actually see a nineteen let alone to have the problem of following up on it well the record doesn't demonstrate what the functioning is within the t h s once an arrest warrant is uploaded from or swept into the t h s that that is what's lacking from the record unfortunately and that's not information that the to vend in could have been in possession of that is only information that could have been presented by the government and it wasn't asked during war for further exploration of the affidavits that the government had submitted so the government in response to the  six he indicates that the warrant information is updated is uploaded into n c i c by the n y p d warrant squad and that information the information is collected from the arrest report so the presumption is that information was updated and uploaded into the n c i c by the n y p d arrest warrant unit now to get back to your other point i'm sorry i want to get back to nineteen what how does a nine thousand get into the record i thought that a nineteen is supposed to represent what a person would see about were taken from the d h as data bases suggesting that's not true that there's more material it would be we don't know i don't know what the query was to generate a nineteen other then an indication at the top of the page that says and see i see but what is the evidentiary foundation for admitting thousand into the record at all as this is what in one thousand is and what is it that that person says nine hundred was provided in discovery to the federal public defender office as having been a query that was generated at some point after mr ortega was arrested in two thousand and seventeen was this not then in the record that's before the district judge it was in front of the record before the district judge it was exhibit d two defendants motion to   contradicted facts that one was that the n y p d uploaded that warrant that that information was uploaded and more specific information was uploaded into the n c i c according to reynolds  affidavit in support of a motion for reconsideration that that information from n c i c was swept up into g h s as was indicated by both affidavits from agent glen in that that information was resulted in f b i number being generated so the f b i authorities knew you know had that information d h s s had that information and you know we don't know what information are you not talking about out there is a computer somewhere that has something on the order of three hundred thousand individual persons records in it right that's what you're talking about and someone would have whatever where they were query would have to be input some query would have to be made of that database for anyone to find any of the information in that record at it's correct so so what you're suggesting is that so long as information is in that database somewhere the federal government is charged with the knowledge of that information such that even if no one ever asked for it no one ever saw it no one ever looked at it they because if someone had gone into the database in some way which would have to involve looking for either that address or that warrant or that name they would the federal government therefore knows where m knows not could find out with due diligence but knows is that the proposition that your legal proposition that we would have to adopt in order to affirm the district court the legal proposition or is it not that what the federal government needs to know in order to know someone's whereabouts is that lurking in a computer somewhere there is a warrant input by the n y p d that contains the person's address a computer that is accessible to the federal government that well the problem with the record is that that would have to be what we would ask you to adopt and according to williams there was there were procedures or have been procedures with immigration authorities where they do regularly look at information that is uploaded or provided to them to determine whether or not there are individuals that need to be reviewed it's called the validation process now that was not discussed and not entered into the you know into the record in this case unfortunately for mr ortega arietta not fully developed the defendant here is you know between a rock and a hard place the more facts that he tries to put in dispute the more likely it is for him that he's going to have to go to trial to argue that based on the fact that a motion just missed can't be decided when factual to be a factual dispute is brought forward the information that he had was that the federal authorities were in possession of reliable information that demonstrated where he was it just wasn't that one you are saying that therefore the indictment should be dismissed on a motion to dismiss because the face of the because what i mean it's not the face of the indictment doesn't say anything here you're saying you you don't want to develop a factual record that might show what the government actually does know and so you're rested on the record that we've got and say on the basis of that there should be a finding that the federal government knew his whereabouts now the basis for the motion just miss in the information that was presented demonstrated that federal authorities had the information now whether or not one please my question has been from the beginning had the information when you say that means that it was somewhere in a database accessible to a federal agent yes and you're saying that once you've established that the fact that it is excessive to a federal agent means that the federal government knew his whereabouts for the purpose of williams yes exactly ok and that's the proposition that you're that yes effectively we would have to the government yes that the federal authorities were on notice that he was here ok thank you mr mr silver your honour's i think i've covered what i need to say i really have nothing to say in rebuttal unless the court has additional questions i think thank you thank you both will