thank you your honor may it please the court i am representing mr f t l motus in this matter and the essence of the matter before the court this morning to which i'm going to devote my time is the violation of the speedy trial act in this case we have other arguments submitted in our briefed if the court has questions about those remaining arguments i would be happy to answer those but will devote most of my time to the speedy trial act violation in this case because the speedy trial act was filed weighted the kids should be dismissed with prejudice in this case the jury draw should not be considered the commencement of the case because there was an impermissible start and stop plan enacted by the district court in this particular tastes the district court recognized on september th that there were thirty one d trial clock the district court enacted a plan to to set a jury draw on october rd in order to be within the time frame speedy trial clock and at the same time the court advised the parties that the earliest the presentation of evidence could commence due to the court's schedule that hearing on september th when the court granted the defendant motion for new counsel the defendant nonetheless made clear to the court that despite his request he was not agreeing to toll time on the speedy trial clock the court acknowledged that the defendant was not agreeing to that and agreed not to exclude time the defense counsel clarified in other words the clock would begin ticking again today meaning september th the corporate spon it would at no point in two time the defendants new council request an exclusion of time under the speedy trial act for preparation or was a one day maybe one and a half day trial so it was by by no means a lengthy or complicated trial and as stated the fence counsel neither defense counsel nor defendant at any time requested an exclusion from the speedy trial clock begins in this case the defense was constrained by the by the other principle that the defendant is not to make its motion to dismiss the indictment st for speedy trial act purposes and till the speedy trial poc has expired so she or her at the time of the jury draw it had not expired the clock expired between the time of the jury trial and the presentation of the button thus the motion in this have this period of delay and it and the reasoning for the period of delay between the jury draw and the presentation of the evidence was that the court schedule that is not a sufficient reason in addition after the defendant made his motion to dismiss the indictment for the speedy trial act violation th and october rd from the speedy trial hot however that retroactive attempt to justify the violation should not be allowed in accordance with this order which said that the court would not excluding time from that point forward issue to violation then becomes  whether the court once there is a violation should dismiss the case with or without prejudice and we submit to a statutory factors unable this court to determine that the dismiss scholz should be with prejudice in the st instance for example most importantly in looking at the seriousness of the sun here we're talking about an airman flying without a license there is no evidence that he was engaged in smuggling contraband as part of this offense there is no evidence  that the reason he didn't have a license had anything to do with his ability to fly safely this offense clearly seems to be at the less serious and on the spectrum of offense it's not a also with a speedy trial issue in this case the defendant s to me otto's received a speedy trial no matter how the clock is calculated and whether or not the court's continuance which was granted in august of that year is given credit jury selection on october rd happened before the expiration of the speedy trial period as this court has recognized that is the beginning of the trial and if fell within the speedy trial act now the defense challenges this case claiming that the delay between jury selection and the start of evidence created an impermissible stop and start plan that itself results in a violation but your honor that doesn't or you look at the actual time frames and the structuring of this case the actual timeframe between the expiration of the true period if we were to exclude the jury draw a day with only eight days that's well within the time frame a start that this court has approved before carol so i have a question about your calculation of the speedy trial act in your brief you originally say there were thirty four days left on the clock on september  and then later you say there were thirty four days left on the clock on october rd isn't isn't the st statement correct so that your calculation of the the discrepancy between your calculation and the defense's calculation is the result of that is that mistake well your honor i think that the issue is whether anything changed at that september th hearing it's the government's position and i think it's supported by the docket entries in this case a continuance of the speedy trial act was issued in august before that september hearing defense had moved to continue the trial date from september th the court for the reasons of having additional time to prepare and the court granted that motion now there was no formal order entered the court requested an order that was not submitted by defense counsel presumably because of the change in counsel at that time but at the time the parties appeared on september th that continu e from the august rant of the motion to the jan drew draw was already in place so i think the correct position would be that the same number of days existed on the truck was at the time of the september  th hearing as remained at the time of the jury's wroth that's where we're getting that thirty four number from i however and so that is that is assuming the nunc protonic order is effective also yes it does your honor but  government would also suggest that the validity of that august th order does not turn only on the not protons explanation i believe the case law says that it's important that findings are made by the court before the time of the motion honor and i think there is there is some confusion there and it's important to look at the context st what we have is the court agreeing to a statement from the defense is not the court's word the client against picking the defense proposes that the judge says yes in light of the fact and already been granted i think the most logical way to understand it is that the court is agreeing no additional time would come off the clock because of the order she made that day to replace counsel's so the existing exclusion remains in place any other time does not come off the clock and the clock would start running i think that is borne out both by the later explanation in the not protons order but also if we look at how the court interacted with defense on november th during that hearing the court specifically asked the defense if it understands that when the original turny filed a motion to continue that it was granted and at that time mr aftah me out of his travel counsel agreed yes he understood that there had been a motion that was granted and that explains his challenge is simply that the order was not sufficiently fulsome so i think if we look at what happened on september th in the context of how the parties discussed it there after a while the wording is obviously less than ideal i think it appears that what the court meant to communicate to the defense is that there would be no further continuance is not that somehow by making a comment in court she was undoing the previously can i have one other question about the calculation of the speedy trial act both counsel is so that the speedy trial act calculation starts with the date of the indictment but the statute says the later of the indictment or quote the date the defendant has appeared before a judicial officer of the court in which such charges pending here there was an arraignment on may th and the defendant sign waiver of rain meant i believe there's case law not in this circuit but outside the circuit is treating a waiver of a rainman as tantamount to a st appearance is that the government's position that the speedy trial act time starts from the indictment when a defendant doesn't personally appear for the arraignment by virtue of a waiver of arraignment no your honor i think we would agree that the arraignment could be the period considered in this case although there was a change in the provision of the statute between the complete and the indictment because there had been a complaint prior to this indictment on which the defendant had appeared that is why the government started with the indictment date as the start of a speedy walk but i'm not following that what do you why what statutory provision are you relying on to tracks a complaint as opposed to the indictment i believe we're looking at this you tell it provision saying it runs from the st appearance on the the indictment since the defendant had appeared on what was essentially the same charge a different subsection but essentially the same charge we started on the date of the indictment your honor could be correct that that's actually an error in the defense favor in this case and the clock should have started with the arraignment time and what are we to make of the defendant's argument that the real reason for the delay here was court congestion with the email from the courtroom deputies saying that the earliest the court could try this case would be november th well i think there are there to factors at play your honor i think there's no question that the court did have any other trials jeju old and that's part of why the court was looking at the december timeframe but i think the record also shows the court had great concern initially expressed during the september th hearing about the amount of time necessary for a defense attorney to be ready for trial while i grieve that the case law would suggest if the continuance were only for the benefit of the court calendar that would not be sufficient but i think here the underlying reason supporting supporting the timeframe allowed in this case was preparation of the defense and that's really borne out as i think the judge jacobs alluded to in his question by how the time was used between wazir and the start of evidence the defense filed motions for released from custody  there were there was ultimately what was in fact a suppression motion that even defense counsel admitted could have been filed with no investigation much earlier in the case that was filed during that time period so many of the things we would think would normally be part of pretrial preparation actually took place during this window that the court had allowed essentially in a compromise by allowing the trial to start keeping the defendant satisfied that things were moving promptly while still giving counsel time to prepare and file necessary motions day because the courts initial response was unclear as to what she intended therefore defense counsel asked another words the caulk would be did ticking again today the court responded it would so the record is clear that on september th the court amended her order if one in fact existed prior to that to rich a clue time which there was nothing on the record adjusting it but if if one had existed she amended that effect of september th and clearly stated the time would begin checking  again that day furthermore the told the defense coach told a new defense counsel of course vigorously defended the defendant right up until the time  prior to the jury drawn on october rd if the defense knew that the court had the defense didn't know that the court had set trial to start sixty three days later if the defense believe that absent speedy trial like findings this violated the speedy trial act why didn't the defense alert the court to this issue your honor i think the nd circuit takes law it's clear that it is not the job of the defendant to alert the court to this issue it's not the job of the defendant to police this issue it is the job of the court to police this issue and the prosecutors can probably if this issue is not the defendant's  responsibility and they have no affirmative obligation to do so and what are we to make of the e mails in the record that when the court when deputies suggest the date and they november th defense counsel says perfect for me defense counsel explains that in the record and it's really so thick explanatory perfect for me meaning that it suited his availability between jury draw and the present titian of evidence would not be in the impermissible start and stop plan any of those periods of time would have been sufficient for defense counsel to prepare for what is really a day a day and a half long trial it just not a particularly complicated matter in fact defense coach told made absolutely no objection to proceeding to jury crawl in early october i do believe that my time is up so what the court has further questions i will