i'm not sure what flows from that because the only purpose for of that determination is whether to detain him in other words one could have let him go and still charge him with a crime so the bad thing that happened to him was staying in jail for you know another two days or whatever it turned out to be when he either should have the determination of harbel cost or he should have been out on the street to go to trial but i don't understand how you get from there to saying well never mind about charging him with the crime or convicting him of the crime so i if you could explain to me why even if you're right your remedy to overturn this conviction rather have to go forward in one thousand nine hundred three action for damages or some other remedy for unlawfully holding him for that period of time the challenge in this case is remedy here are because well we can see there wasn't new evidence  presumptively innocent man was held over the weekend when we rely on his united states versus lopez and the triumph red rationales that they use there to provide a remedy to protect additional integrity it's prevent further violations of the law was in the nine hundred eighty three action or an injective action or something like that perfectly adequate to deal with the wrong which was that being held for that extra two days it wasn't wrong to charge him or convict him in these circumstances because as you can see all the evidence happened before or after nothing arose from that extra time except the time itself response the argument that a nice neat reaction would do the first part to provide a remedy  maybe arguably you could pursue that i would see just as a practical matter for a person of limited means like mr one of our guests hailing from you want to mexico he article matter have a difficult time getting an attorney to take his case particularly when he's charged with  that was some sort of an ecstasy this is the state in specific policy in the southern district california it's not limited simply to simply it's aboard a bus cases any person charged with any advance in the southern district california does not get a day period and everything else had been the same everything else would have been the same and and the government was entitled to try him a jury was entitled to convict him so yes i have a hard time seeing why he should right now they use this procedure when they want to defendant is arrested on a weekend after one of us arrest gerstein requires that there be a probable cause determination within forty eight hours in order to comply with that i are three applies to these determinations that is a constitutional ruling in the court specifically recognized that there can be variations in state proceedings what the supreme court said is there has to be a determination of probable cause  would be sufficient for the magistrate judge to make probable cause determination from the five hundred rules do not address the gerstein probable cause determination it require filing of a complaint after a defendant is arrested but the good probable cause determination has to be made within forty eight hours it's a very short time frame and so this procedure allows the the magistrate judge that the agent is frightened is complying with his obligation to tell the truth so there's no constitutional problem grossly says written testimony and that's all that's required right i mean and you come in and just tell the the magistrate something but i mean there would be a question then of whether it's believable i mean the purpose of the owner is to make the person making the statement subject to the penalties of perjury that's  or so most court is any further questions our position is that this facsimile procedure complies with the constitution i mean what's the point of christine was we need to get a magistrate judge involved as early as possible to make the federal rules the criminal procedure so they don't govern this procedure explicitly so they do not forbid it for those reasons we submit the judgment of conviction should be affirmed  thank you i like to try to use my remaining minutes fifty to address three points on the merits as to whether this is constitutional or complies with the fourth amendment first i disagree with the government that gerstein somehow dispenses with the oath requirement and can ratify this procedure held is that the florida district court and later the eleventh circuit was in error in suggesting that a probable cause determination i don't clear the full panoply of rights for a defense counsel particular case secondly the federal rule of gerstein is that it's simply that you don't have a full blown adversarial proceeding it never says that you can dispense with the oath requirement applies to cases other than those under deposition an oath of office or in particular here before specified national and that's specified official for two hundred years has been a magistrate judge under oath for probable cause someone so yes i am willing to be prosecuted for perjury if anything i say is a lie i intend to tell the truth why is that different than an affirmation at least i understand why it's maybe different than oh telling the truth and that they're willing to suffer some consequences if they lie so why isn't this sufficient to do that because the the cases and many of them that i started are out  circuit but it's the act of giving the oath and the act of actually standing and taking an oath it's designed to impress upon the witness the solemnity of the occasion which somehow wouldn't allow anything in writing them really must i mean if still have to be in person think judge porter swear to tell the truth and there's that that's the act i think in the fact that it's more usual i don't understand the principled distinction between those two things because in both cases there's a promise to tell the truth and there's an acknowledgment that there is a serious consequence i e a prosecution for a crime for not telling the truth so what's the principle reason other than because it's always been like that why are those two things can know this is this is the decision that was made unilaterally without any public comments and it's something that the government prevented even defense discovery from determining exactly what is the procedure where is it written down how is it followed and what we suggest to the court is when you're credibility it's weighing the testimony judging the credibility of the witness and they are a witness there wasn't even any suggestion at the district court level that the agents there to demonstrate who they really are