speedy trial prosecutor vindictiveness and a prosecutor misconduct and also towards the end of the case after every man of six from this court the issue with regard to getting a new trial or having the plea agreement set aside and this really i think it's important no mr ross he was originally charged in may of two thousand and twelve were in early two thousand and twelve he was out on pretrial conditions for a period of a year it's clear on the record prior to our involvement in the case that he got a little sideways with his trial counsel sought to second a second opinion and as a result of that affidavit regarding an incident that occurred in the hallway in september of sixteenth of two thousand and thirteen actually september eighteenth two thousand and thirteen he had a conversation with the assistant u s attorney christopher whether it should preclude future that is that the issue you're talking about on that is and i'm sorry to make that clear when you make that clear yes he was originally graduate level we just go through the factors then they'd go to that kind of a determination and see whether they apply well that's what i was leading up to so what i'll do is i'll change a little bit obviously the issue with regard to the pretrial the six of them an argument it was granted on a three one six one hundred three one six one but we were denied the ability to argue or were denied the and originally i agree with the core originally it was a pretrial issue i mean it was a a statutory violation and i think if it was just a statutory violation i would not be able to be here to argue whether prejudice attached or not but i think in this particular case but to he also acknowledged that we thought we had a speedy trial issue out in the hall which is the reason why mr hancock's a part of the affidavit to the court because we felt and he felt at the time that was a bit disingenuous to say hey look we want to have a mental evaluation and we also want him to be taking into custody for that mental evaluation and we want him to be sent away for that mental evaluation all the while while we recognize that there is likely a spee violation judge states and i mean that mr offseason agreement that there's a speedy trial violation so why are you not meant mentioning that issue but ignoring that issue going to the court and say look we think he's got a mentally issue we want to him we want to  press for a mental evaluation we want to take him into custody and so what did the court do when presented with a hancock affidavit well we outlined in a brief and then it was presented to the court the court granted based upon the  judge yes when it appears on the record it appears that the district court was just not going to rule on the speedy trial issue even though the magistrate made the recommendations and it could continued on in perpetuity in perpetuity until the evaluation was done well after the recommendation by the magistrate and then once he arrived in january of two thousand and fourteen yet two thousand and three was actually two thousand and yeah it was two thousand and fourteen he rise back from that competency hearing on the same day he arrives back with this report says i want to drop the fines a recommendation find a speedy trial to a speedy trial violation did occur but i'm going to deny that there was any prejudice so what is the prejudice that's so the question that i have the prejudice is the hundred twenty five days that he spent in custody at a mental evaluation when the court was provided information that the likelihood of that they had a meritorious speedy trial that they couldn't have done a competency evaluation if the speedy trial motion had been granted and the new indictment been filed and then the competency evaluation but i think that it had been appropriate that point in time but i think that when you raise  i think that the sixth i think that the rule and the sixth amendment requires that court once that prime facia case is made with regard to the speedy trial issue i think that takes precedent over mental evaluation i think hearing should be held i think that the issue should be resolved the delay the unnecessary delay because we're talking about a speedy trial violation under the statute that was only seventy seven days long according the judge klaxon who was the magistrate on that case ok that's interesting but what's more interesting is they sent him off after  the steak the government concedes after the magistrate acknowledges that there's a likely violation none of that takes and none of that takes precedent over we're going to get into a mental evaluation i thought if they thought that he was not co don't they need to find out before they decide what they're going to do that wasn't the issue though the issue that was in the record prior involved in the case was that he may have had a mental a mental issue with regard to possible suicide or whatever else and dr mr hancock refer  for references that no record but there was no issue no one made the allegation that we have a competency issue or we have a fitness prison issue it was just he had a mental episode we want to get more information on that and the affidavit out in the hall as t chris crago saying we think he's my lingering well that's not a good basis to go get a mental evaluation counsel out i'm sorry but i get lost because he raised a number of issues which is entirely appropriate but if i'm not sure which issue you're talking about it's not to me there and i know you have to respond to questions which may relate to other issues right and well but the first issue let's do the first one first maybe you're done with it i don't know i thought the first issue had to do with whether the speedy trial leave that issue ok with the first issue has to do with prejudice or not doesn't the statute provide the criteria for making that determination that seriousness of the offense the facts and circumstances of the case not where you harmed by the delay but was the impact of the reprocessed what is the impact of the reprosecute on the administration of the chapter and the administration of justice so that sounds like what kind of prejudice did this d asking how do you route how do you that presumably the district court looked at this and ruled against you on that issue i not only did i was the district court wrong when it ruled that if you balance the seriousness of the offense the facts of the case and the impact on mr hancock prepared an affidavit outlining the government's position that is we believe his mullingar that have an impact was does that tell us how serious the offense was well no i don't but what about the impact of a pre prosecution on justice there are several issues that have been raised by by the defense and i know that my pundit spent the bulk of time discussing that the first speedy trial issue it's our intention to rely on the brief as to the very speedy trial issues i don't want to spend some time talking about the district courts proper denial of the motion dismissed for vindictive prosecution as well as the denial of the motion to dismiss for the brady claims and also the procedural posture that we find ourselves and and of course of the court has any questions as to the speedy trial  and here it was a proper exercise of the court's discretion to add to dismiss the to deny the motion to dismiss for been to conduct a prosecution that the two issues that had been raised were that protected rights that had been exercised were a motion for pale as well as the of the motion to dismiss for speedy trial which we had just been hearing a little bit about importantly neither one of those were dispositive and as a result the stake that the prosecution had in deterring or in in punishing the defendant for filing this motions simply wasn't there and that's that's an issue that was not the protected rights that was alleged to have been at issue was the filing of that first motion to dismiss for speedy trial so that's where the where the overlap is there however in that case it was it was not dispositive on the case because it was a it was it was dismissed without prejudice and ultimately the stake for the government were based on this with prejudice it would hard to mount a vindictive prosecution subsequently your honor it would be and it would potentially be a different situation because i think then we might be a little bit closer to this court's opinion in united states versus widow where in the once there was a there was a dispositive motion effectively ended the prosecution then that raised the stakes but this case is different from united states disparate versus window because we're in a different procedure posture they are there actually were findings from the district court as to the various elements for making out a prosecution claim and we don't have that here we have in fact the complete opposite and and little really is illustrated of the difference that is given to the district court's findings on abuse of discretion review moreover as  noted that was a dispositive motion were his here the speedy trial motion was not dispositive because it was dismissed without prejudice second third the issue of the the bail motion again that was not something that had an effect on the case generally of the united states versus andrews does contemplate that that there could be a stake in it in a bill proceeding it didn't say that there was a person a rule then necessarily the stake that the prosecution has in the exercise of those motions needs to be looked at closely and hear that that has not made out so that claim should fail in addition as we said on the brief there were the the additional information that was the and the defendant's brief and it's notable because there's certain allegations were made as to already violations but once there was an evidentiary hearing and once the court actually looked at what the alleged pretty violations were the court properly determined that there were not any brady violations that occurred at all and it's our position that that was that was a correct determination namely there were two issues that were presented by by the defendant one was that there was an alleged undisclosed agreement between jeffrey colbert who was a cooperating witness and had in the united states  regarding his cooperation in that case that resulted in favorable treatment by the state of arkansas in his prosecution notably though once we had the adventure hearing after  court actually heard from the prosecutor who handled the case who advised that he handle it he was aware that they called bertha cooperated but that he had made that decision as to what the appropriate senate should be in that case without any sort of interaction or interference with federal authorities why wasn't this disclosed your honor the the transcript itself wasn't in existence at the time of the sentencing hearing the fact that he received a ten year probation sentence certainly was disclosed and he was cross examined on that at the original sentencing hearing as well the allegation was that there were something more that had not been disclosed that there was some sort of interaction between the federal government that attained that favorable result for four culbreath but the results of the of denture hearing showed that that didn't happen and so it's one thing to look at that transcript in isolation and you know certainly looks like maybe there was something but once the the record was actually developed as to what happened the district court appropriately determined that there was no violation of the second century it wasn't disclosed because it didn't happen yes that the second issue was a had an additional conviction from pollock breath and as to that united states conceded that there was a two thousand and fourteen conviction that had not been provided  found it and credited public testimony that there was confusion as to when the most recent conviction was the allegation stemmed from whether  question that she thought the question was asking about her most recent conviction that resulted in course aeration which was that two thousand and ten this report also noted that the nature of the questioning in the  itself rather than rather confusing and therefore determined that it wasn't a willful misstatement by miss cobra but at the end of the day mr rossi failed to show that he was prejudiced b brady material in any event had had there been any prejudice it was cured by the fact that we did have a remain and we did have an evidentiary hearing where in the district court could be presented with these additional  documents and make a determination as to whether it affected the prior credibility findings that have been made during the sentencing hearing so it's our position that that the court should firm  that the district court has to answer those issues now finally i want to spend a little bit of time talking about this issue of whether what the what the remaining and what the purpose of the raymond was and the procedural aspect of resentencing hearing after the remains and sir position that our case here just distinguishable from from all of this of this case is because the panel never reached the merits the case was never briefed and it was this reminded by by motion by consent of the parties so that we could reopen the record supplement the the sentencing proceedings and allow the court to determine if there was you know any issues related to these allegations of the propriety if there had been any developments in the interim between when the original sentencing occurred and when the reset and singing or could the defendant have raised those developments as hypothetical developments during that period yes your honor had it been determined that there was a brady violation and up even separate from that suppose the law had changed or if suppose he had suddenly become a good person or he had suddenly become a horrible person all sorts of different hypos about what could have happened in addition to you know what you're basically saying is there's no brady problem and the issue that we  do with brady but what if other things had happened in the interim could that this cup court have considered them if they were presented to him or her i think i think the answer to that is yes and but i don't think that that the concepts of a general versus a limited remained a really a political in a situation like this where the where the panel had not reached the merits in the first instance i think certainly in you know going back to the radio stations had there been brady allegations and then there there that could have potentially affected the credibility findings and therefore could have affected the guideline calculation then certainly a reason to sing would have been appropriate there it's important to note that the court had invited parties to submit evidence as to the brady issues on the motion to dismiss as well as any any information related to sentencing and the only things that were submitted to the court was were the motion to dismiss  around in the district court yes your honor so did the defendant at any time after our remey and ask for something specific to be considered by the district court other than the brady issue  was there were there there were briefs filed in the district court and was there an act for a hearing in the district court yes your honor so and i guess i do want to clarify because my my same and your most recent question there no other information was submitted as to the sentencing i think there were inquiries that were made to the district court about whether there would be an additional hearing however at no point did did mr rossi say what that would be about or or make any sort of  specific request to revisit issues in light of the new information that had been provided to the court so did the part did the two sides submit sentencing memorandum to the district court the reset and saying no your honor  the court invited the both both sides to submit anything online on the sensing issues that was that was that was not done but the but there is a well developed sensing record there was a thirty five  analysis that was done there was an opportunity for the defendant allocute all of that was done in that in the context of the initial sensing hearing our position that was that presented to us now because you've just told us that the first panel didn't consider that i for these reasons we asked the court to affirm the district court thank you real quick i want to touch on the new sentencing hearing we were advised by this court that we are getting a new sentencing hearing where were you advised we were advised by the by the order that was granted the joint work that they are that mr austin was to receive a new sentencing hearing and although we did do that in addition to that we also raise the issues with regard to brady but there was no indication and i disagree i disagree with mr erskine where you sit where where you know this is a one page order from that least if i'm reading the right order from the circuit july twenty ninth two thousand and fifteen i don't see where you say you were granted by the sixth circuit in the sentencing hearing can you tell me where it is there was a matter that was our understanding i can't say specifically but bar standing was it was  that but but there was the there was the impression that we were going to get another sentencing hearing there were inquiries mr scott was correct about that we were on operating under the belief that we not only were getting the hearing with regard to the brady issues but also we're going to be able address those issues that we sense and for the reasons that you  out so did you raise those issues in front of the district court then not those are not issues specifically as the sentencing as we thought we were getting a sense in hearing we just got an order one day saying that sensing these would be incentives we never got the sensing hearing that we thought we were going to be specifically would judge false but with the prosecution from the time that mr hancock outlined in his affidavit what the conversation was out in the hall the government was very upset about it in their pleadings they accuse us of lying consistently regarding th the that conversation there was no lying about it and they never offered and never reported the affidavit asmita by mr hancock from that point on i remember mr rossi got twenty seven year term he wasn't a career founder he was not an armed career offender he had no priors he got twenty seven years out of the box on a first time offense so when we filed our affidavit in the case was dismissed we went back in there because clearly the government to alleging the allegations that were in the original indictment also added a conspiracy charge in then on top of that went after all of mr ross these assets something that was not done in the first petition which is the reason why we started researching the issue with regard to vindictiveness because everything was getting amped up the ante was being amped up and that's exactly what the case law that so we have then after that we get relief the indictment comes down we go in front of  judge magistrate judge lets him out says get rid give you conditions and mediately the government father an appeal from that to jug spokes get it back into judge folks now remember there was no pretrial or bench hearing he was remanded into custody in order to do the complete the competency well now the government had a new position with regard to whether he should be out or not out and they filed papers to explore that issue with regard to the tension but joe discover who was a magistrate was going to let him out and then after that we find out that the government attorney didn't give all the information a judge to scott will accept tell that to the chest and decide that she didn't he felt that she was in a grant or deny our request for detention or deny requests for on conditions of release and so therefore he didn't give up he didn't give any information a judge of a scholar that was relevant to the issue held it close to the vest and then goes back and then says the judge folks and then says here's what we're going to offer but what was interesting about that too is that now we're getting we're getting new information information it was never provided presented to us in front of the magistrate now we're getting new information but there's an outline of all sorts of facts leading up to what was more allegations with regard to what it is that mr ross he did dating back to two thousand and thirteen information that they already had and i just think that the record is very clear with regard to the incidents that were taking place in between those two times i mean asking for a leav banker that you were appointed sorry i've lost my voice here you were appointed pursuant to the criminal justice act we want to thank you for your service and we thank you both for your argument the case will be submitted