united states versus panic  am sorry go ahead and morning in may it please the court names elizabeth malaria i'm an assistant united states attorney in the western district of new york in buffalo this court should reverse the district court's decision to dismiss counts one in two of the indictment unconstitutional speedy trial grounds respectfully the district court abused its discretion when it balanced the four parker factors here admittedly the first factor the length of delay is presumptively prejudicial to six years we agree we're past that factor but the remaining three factors here favor the government the reason for delay yours is a really long time this is not it is your honor it is a very long time do we do we give more weight to this factor because of the length of time i think that that came into the district courts and can come into your consideration or the fourth factor the prejudice as where a lengthy incarceration and here you have a fifty four month incarceration followed by some time on home incarceration that can adversely affect a defendant's  psychological and emotional state and this is the district court found that that was the the supporting factor for prejudice or any case that rejects a speedy trial motion where the length of time is in the ballpark of six years absolutely judge there  this court found no constitutional violation because the cause of the delay was the fact that the codefendant became a fugitive and in that case the defendant was willing to wait and consented to wait in the hope that the government wouldn't prosecute him if the codefendant  wanted to prosecute first was never in a case where you can put the delay on to the defendant well that's quite different the you know i was trying to figure out who is causing the delay here and let me like the government put aside the issue of whether it pushed the district court enough was responsible for about three quarters of a year less than a year the defendant himself was probably read responsible for about two and a third years in the district court for three point five years and i didn't find great guidance on what i'm supposed to do about a district court it seemed and causing the delay there were cases that indicated that you didn't push the district court enough you're stuck with with that you know and you know me out here this is a lot of delay and most of it's some of it's the defendant but at least three and a half years is the court and you a little bit and you a lot except in the context of this case yes judge and our position the government's position on this is that there the delay that's attributable to the district court is unfortunate and the government maybe could have done more to poke the court sooner however the government did file multiple motions to adjudicate motions and motions for it to set a trial date where the defendant didn't and i think here is motion to set the trial date was in two thousand and fifteen was and yes in the first motion to adjudicate motions was in two thousand and fourteen so it is there's already a three year delay by the time the first one of those motions happens and i think government all should file to superseding indictment both times change the case dramatic well judge i i don't know that i would agree with that i think the first superseding  indictment counts for mr panic remain the same the difference in the first superseding indictment is that it adds ten new defendants it goes from ten defendants in the continuing criminal enterprise to twenty and so there might be it changes additional acts  that when the initial discovery on the wire taps was disclosed to the defendants in that case you're correct mr panix attorneys were not told that he was that he was on the wires he was they weren't told until april of two thousand and twelve when the u s attorneys began preparing for trial that had been set in june of two thousand and twelve in the context of that preparation they discovered that mr panic was on the tapes and they made the appropriate disclosures to soon as they realized however there's also indication in the government's response on the severance motion that this was included that that you could infer at least from the charges in the criminal complaint that there were you know one one could look at the different factors and debate which way but we're here on abuse of discretion review so why is this abuse of discretion i mean this is the judge who's run through this for six the defendant while at the same time using a motion to dismiss the indictment is sort of as a shot a sword and a shield there's no bad faith here by the government there's no deliberate acts or tactical advantage that's tried to be sought in fact the crawl court wasn't so here where there were four counsel over the course of the length of this case that represented this defendant and so each counsel made adjournment requests to get up to speed and to hold that against sort of the government it's it's a difficult position for the government where defense counsel is requesting time to get up to speed and saying we need this to be effective for the government to then say well you know we have to object and get a speedy trial we face a possible ineffective assistance of counsel motion we might be back here before your hon so it's a delicate balance i think interim importantly this defendant had the chance to go to trial in june two thousand and twelve this case was set for trial the district court made clear that that date was set in stone there were twenty defendants at that time some had s said i can't try this case i'm new to the case although he was new in march of two thousand and twelve so he did have more than two months two and a half months to prepare and so he filed a motion for severance saying i can't try this case in june i need more time to get up to speed and i want to discretion counts one and two get tossed what happens to the case the case will go forward on the substantive acts that were charged in the second superseding indictment the government would like to have the continuing criminal enterprise and the conspiracy charge i think it of judge i see that my time is expired and  underlying acts for the umbrella counts one and two which we can tell the government filed when it was apparent that there were going to be speedy trial problems with count one and two there's not going to have been the government at all in the proof that they're able to present evidence any any way that would impact his fence case what's the scope but there's no indication in his record judge that he did in the the district court was not interested in hearing about that essentially  everything everybody else has joined with him a debt point there's no motions to sever at that point so the trial date for everyone at that point you're right you're right penick scoundrel his third counsel at that point had been in as of that court appearance where the trial date said he'd been in th case a week it had been disclosed to him at that point that for the first time despite repeated government denials there's title three evidence and it's extensive with respect to mr panic and prior counsel had filed no motions at all much less motions challenging any title three evidence because he didn't know it existed so all along with his severance motion new counsel filed motions challenging the title three evidence and then shortly thereafter he files objections to the report and recommendation both of those things take place in june of two thousand and twelve now there are he doesn't stop working he keeps doing things filing motions asking for extensions replying to government motions things like that but for all practical purposes in june of two thousand and twelve the case is frozen because he gets the severance order joining him with a fugitive changes counsel well mr pettigrew changed his first lawyer who shortly thereafter took a position with the federal public defender's office then within weeks he retained new counsel he became dissatisfied with new counsel and fired him apparently for good reason because new counsel was subsequently suspended from the practice of law within weeks again after he fired second counsel he retains third counsel third counsel is the one that discovers the title three information and between second and third counsel the government has superseded the indictment third counsel who is a canadian citizen then is restricted from reentering the country the government then in february of tw fifteen moves for determination of mr panix representation status because apparently his third counsel is not going to be able to reenter the country during that period of time and either even before that determination mr peni is making attempts to retain for counsel and does so and then proceed forward but by two thousand and fifteen the case is frozen and has been frozen for three years already he's joined with one tribal fugitive and the seen that in any other case other than this one i put the blame as the district court did primarily if not soley on the district court the you know the other thing the court could have done is granted i consider the reporting recommendation he did do that i mean there's no prohibition in granting those extensions or as many as you think you need to come up with a careful consideration of the issues and particularly how it doesn't help with the big picture giving majority of those extensions take place after june of two thousand and twelve when the case is frozen so whatever he asked for in a way of extensions is i mean it's now it's like a concurrent extension or  probably there were there were there were three by third counsel each of them including the motion for severance each of them noting the disclosure for the first time of the title three information so that's correct i don't previous counsel to that second counsel didn't do much of anything moshe suppressing april or the original trial or was that the suppress work the motion to suppress in yeah that would have been the first motion to suppress the wiretap evidence because it was disclosed in march that there was wiretap evidence for the first days like two and a half years into the case at that point or a little forward and we'll continue to litigate those counts we'd better rule quickly either way write it it would be good mr pena continues to be held in custody so he's interested in moving forward on these charges as well as released back in he he had been released he was about five years into the case he was released to home confinement he had violations of the home confinement release and he was taken back into custody based on those violations so he is back in custody at this rate of the other the fugitive mr pennock is the last man standing in this indictment so as of today the charges have been pending initial pretrial motion practice so it was two full years from the time that he was charged incarcerated to when motions were actually finally filed in november of two thousand and eleven so nearly two years twenty three months after he was arrested and those were by choosing to appeal the case has been delayed on the other you know the government feels very strongly in this case and against this defendant while the reason that this defendant is back in custody the violations that he committed while he was unharmed home incarceration the cases now eight years old want to construct such it is a concern of ours as well we would like to get this moving as well thank you thank you