honor and may it please the court jason smith for the united states the district court erred by dismissing this case on speedy trial grounds a speedy trial clause of the constitution protects a defendant's interest in a prompt trial and in the nine years before this case was dismissed duran gomez never asserted his right to a proper trial he never sought a proper trial by asking to have one schedule he never objected to another party's continuance instead of a during that nine year period mr duran gomez requested six continuances which wound up delaying his trial by four years and more than four months he agreed to seven of his co defendants continuances which continued trial for another two years and two months and he submitted joint scheduling orders would delay the trial almost another four years in light of those facts the nd and rd parker factors weigh overwhelmingly against a correct your honor the parties had met mr durango most vast for essential another two year extension of the trial the government was only willing to go one year the parties compromise on that and that's how we wound up with a march  twenty one trial date in the last joint process clause which the supreme court has said is the governing authority for pre indictment de lay like to see the trial act it's in applicable correct to the pre enlightenment period and there must be some sort of bad fa correct correct under the do under the that the due process clause correct correct to obtain dismissal based on pre engagement delay under this court's opinion and golly the defendant has to show both that the government delayed in fighting in bad faith and actual substantial prejudice and durango mo that if your court seems to relied substantially on to the point that there were some sort of immigration charges and that these were also some sort of capital charges or something in and in two thousand and six that's not there's no basis in the record for that is there correct your honor there is no basis the district court clearly erred as we explain in our brief in finding that duran gomez was criminally arrested in two thousand and six with a record abundant as you understand there to be any other basis for the alleged bad faith in the pre indictment area and in the district court's order i think that one of the bases is the idea that duran gomez was arrested and held without charges or was arrested on the the government had improperly used his cooperation and you have to think correctly because there is no cooperation agreement could is there any other bassists in the pre indictment part that you want to talk about i'm just trying to move methodically through this is that if there had custody until eleven the summer of six following the forty summer six guilty plea to obstruction by defendant what if anything ever happened to the immigration charges for which he was arrested the civil immigration proceeding number one there is a lot of detail about that in the record because it didn't proceed in light of is being criminally prosecuted my understanding is that that civil immigration proceeding sat awaiting further action and for instance when the district court dismissed this case a detainer from the immigration proceeding remained pending and so if this court had stayed the dismissal and released order what would have happened was durango mez would have gone back to immigration custody for those civil immigration proceedings to opinion says that there were no immigration charges we think about immigration charges like illegal reentry the smuggling aliens are these to these would be are these days might be related but that's not what he was picked up on he was picked up only for a ministry in a straight a plea because he wasn't supposed to be in the country correct correct that is correct your honor there were no immigration charges per se but he was not criminally charged with immigration violations in november of two thousand and six there but it was an administrative arrest according to the go correct your honor it was he was then taken before a senior supervisory official immigration officials who determined that he was in fact in the country illegally and determined that he should be held without bail because it was mandatory under those circumstances pending the outcome of the immigration proceedings and he was held by a simple he was transferred after he pleaded guilty to obstruction of justice it wasn't and so her so it wasn't until he pleaded guilty your honor it was complaint happens on december th of two thousand and six i believe your honor i think that same day he is transferred to criminal custody he's arrested on that complaint and then held criminally for the obstruction offense he committed while he was in immigration custody and he remains in criminal custody the obstruction indictment is returned december th of two thousand and six and he pleads guilty in may of two thousand and seven  allegation case i know where we want to go pre and post indictment but this over laos what was the reason for all the continuances of sentencing on the obstruction charge that overlapped until he was finally sentenced on the obstruction charge after the st indictment the record is thin on that your honor there is not a ton of explanation what i can tell you is the st ten months of continuances after the guilty plea in the obstruction case the st seven months of that come from requests by the probation department looking to extend the time to prepare the p s r the next three months of that time come from requests from duran gomez his defense attorney looking to extend his time to file objections to the p s r and that's after the p s r comes out detailing duran gomez's participation and responsibility for among other things these murders after that point after that st ten months is when motions filed by the government start to extend the time the st of those motions is an  all of the following motions are joint motions there is an all or judge miller moderate or correct your honor there isn't a lot of explanation in those motions and  i don't know what the reason is for that i do know that there was ongoing investigation during that time and i know that after those motions are done the remaining time before  is accounted for either by durango meses counsel seeking further continuance as of sentencing sometimes to prepare more and also because of scheduling conflicts and then there also seem to have been some s day changes in the schedule by judge miller for his own scheduling so that mr durand gomez agreed to some of the some of them he saw himself and the one motion that wasn't a joint motion with the government with mr grant gomez from the government was an unopposed motion and there was no we're not dealing at all with any issue that somehow that case was delayed didn't have a speedy trial or didn't have anything guarding the resolution of that case and no proceedings were brought in that case saying it was taking to law correct your honor no appeal there was at one point i believe mr duran gomez submitted a pro se letter asking to speed up his sentence in complaining that his sins and singh had been delayed too long but that was a pro se filing just in the trial analysis as the supreme court has held and will waskow just isn't relevant the pre indictment period is governed by the due process clause so turning to the post indictment period the speedy trial prompt trial or opposing another party's continuance it would really take extraordinary circumstances to find a violation of the defendant's right to a speedy trial and those extraordinary circumstances just aren't present here as we laid out in our brief throughout this case there have been multiple opportunities where the district court has specifically referred to the fact that this case has been going on a long time doesn't want to have speedy trial problems and on none of those occasions did durango mazur's counsel speak up and indicate in any way that he was interested in a prompt trial well with the exception of the status conference enough to get the day where the judge said he said i'm going to be filing some motions and the judge made some are including i'm just paraphrasing out including a prompt trial or something like that he said yes but he never filed anything is that correct may says that they intend to file some motions and the district court says is one of those motions going to be says regarding whether you can get a fair trial after the time that has passed and durango  counsel says essentially yes that conversation happens in two thousand and twelve that motion is never filed even if a motion had been following this tough to know exactly what kind of motion that would have been presumably it would have been a motion to dismiss claiming that during gomez couldn't get a fair trial this court has specifically set a motion to dismiss is not an assertion of the speedy trial so agreeing with the court that you might file a motion similar to a motion to dismiss surely isn't an assertion of a speedy trial right there been in numerable opportunities if mr grant gomez actually wanted a prompt trial for him to have either requested a prompt trial oppose another party's continuance or sought a severance the district court has explicitly invited mr duran gomez on numerous occasions to sever his trial from rodriguez mendoza 's trial at the point fairly late in these proceedings after the request from rodriguez mendoza to withdraw the seek to withdraw the notice of intent on him so he could plead guilty to a cooperation agreement after that plea agreement is rejected by the attorney general the district court turned to durango moses counsel and said are we at the point now where we can sever this and try your case and grant gomez responded that he needed more time to record abundantly shows that he has never been interested in a prompt trial and that is fatal to his  also can you talk about the delay with getting the test you know certified for the from the from the attorney general's point to the lie that and there was a several ken your honor just if i can back up to give an overview of that process which i realize i didn't do in my briefs i apologize for that it's a very deliberate process obviously because the death penalty is a very serious thing and before the attorney general who makes the final decision about whether to see or not see in all capital cases we want to give an opportunity to prove things to be fully investigated fully vetted and to allow defense counsel to participate at every stage and it's essentially a three stage process st the u s attorney's office that's doing the prosecution comes up with its recommendation that recommendation goes to a committee d o j committee in washington d c that committee then looks at all the facts and circumstances and makes a recommendation to the attorney general who makes the final decision in all capital cases about whether the government is going to seek the death penalty at each of those st two stages defense counsel has the opportunity to participate not do on this case but in cases where you do budgeting you have to know if they're actually serious about it or not because if they are then you have to approve all these mitigate next birds and all these other people early on in the process for them to go and give their zero dollars two cents worth or they're not zero dollars two cents worth but they're very able assistance on these issues so so that's why you want to make sure that you're actually serious about it so you don't have to hire two or three x are experts on this early on in the case when you're doing budgeting and cases so so but that's not my question my question was there was a big lol after this was done in this case and what was  think i think what the court's referring to is the sikh process with respect to the codefendant mr rodriguez mendoza not with respect to mr durango mez the one more time on to delay that i know of in the duran process is on the front end after the charges initially come down in july of two thousand and ten there's a five month the way up until december of two thousand and ten before mr durango mez submit budget request to the court for those kinds of experts that you were describing judge so that's the the one most time on ths delay and on to in courts of my fingers here that i know of in the durango miles process with respect to rodriguez mendoza the main thing that i know of that caused the long length of time there with respect to ultimately coming out with the seat decision is that it's a rodriguez mendoza claim to have an intellectual disability that precluded imposing the death penalty on him when he st presented that claim to be a u s attorney's office the u s attorney's office requested thought it would be appropriate to get adaptive function testing to confirm that claim of intellectual disability or rodriguez mendoza's counsel was reluctant to undertake that additional test they thought that they had enough with just their expert report as it existed and ultimately after some back and forth on that the u s attorney at that st stage in the process made its recommendation the office made its recommendation to the d o j committee without getting that adaptive function testing then when rodriguez mendoza gets up to that next stage in the process the committee says what is kind of predictable at this point we really need that adaptive functioning testing to be able to assess your claim of intellectual disability and there is then extra time for that to happen now later in the process that entails mr rodriguez mendoza getting additional funding entails the additional testing happening the report of those results to the government and then the government's opportunity to investigate those results from the extra testing with its own experts so that the intellectual disability claim released is responsible for a lot of the time involved in rodriguez mendoza seat decision one point i want to make about that though is that's rodriguez mendoza's seek decision and throughout this time  chooses to wait out the result of that decision instead of going to trial and he does that for strategic reasons that make a lot of sense he thinks that it will be to his for t g good vantage to know the answer to that question to know whether robbery gives mendoza is facing the death penalty but that's a choice that is one of the strategic choices that in the st instance sits in the defendant's hands the defendant can choose you know in any case is it more to my benefit to rush to trial or is it one of my benefit to wait and marshal particular evidence and here during gomez chose that nd path he thought it was more in his interests to wait and gather that information for what the speedy trial was doesn't let you do is come back and say you know what i changed my mind i really i really wish i had gotten a speedy trial and also doesn't let i ask you question  is running out about the discovery now brad makes it difficult to have appellate case on discovery because you're that's to the been a fit to give the discovery of or the defendant but  did the government the government have this open file process or all of the documents that were bait stamped were they always available in the gulf in the in the office s attorney's office yes your honor what they are not new documents that were hidden or anything like that they are not what the record reflects is that when a new prosecutor came on the case frankly the record keeping was not what it should have been so knowing precisely which things had been hand the liberty and which things had just been made available was tough and so she made copies of everything that was in the office everything that had previously been available for counsel to come review and provided those documents to the defense was the service to number and label and send everything over to correct your honor there may have been because it was the what was referred to as an open file policy and because investigation keeps going throughout all cases frankly all the way up through trial new things get generated so there would have been things that were getting added to those materials available for review there might have been  while the record doesn't reflect you need any requests like that mr smith before your time runs out you began your early in your argument wanting out that specific due process claim isn't made for the pre and by period perhaps that's understanding of why they're not pursuing the specific due process charge and instead just lumping it all in the speedy trial and i'm going to run out of time ad leave to finish this answer  yes that is my understanding of their position that position is inconsistent with the supreme court case law and this court's case law in marion the supreme court talked about how these the trial right or before you start i know you're europe an assistant federal public defender in maryland europe but all public defender is also on the brief when we are brought into the case i believe we this paperwork i mean i don't believe you cited to us the record of deportable in the miscible alien which clearly says why he was failed in administrative proceeding because of these two prior things exclusive reason for holding him was that he was facing criminal charges but i think these the circumstances running as red make it very clear that the at least the primary purpose for holding him was this were these these murders into a indications that the murders are the took place after he was transferred into the custody did only take place for two weeks the bruce because he was then transferred pursuant to the other crime that he allegedly committed or actually was found guilty of  federal court in texas don't know what an open file process is because that's the routine method in both harris county and in this this u s attorney's office and the what do you base on we didn't understand when they said we have an open policy we don't have to go to their office is that in the record there is no statement where anyone says on thank you now i find it interesting that you and  the federal public defender in maryland were brought in at the end of twenty eight dollars team and slam bam a motion to dismiss was filed in may after nothing of that sort had been solved in this case until then is there anything of the on in the record i don't want outside of the record is there anything in the record as to this being urged by the two new warriors from maryland in the record and then less than a month later twenty six august rand moves to dismiss the charges it just seems very coincidental that this is all after counsel for maryland is brought in at the end of  authorized i'm sorry mom and you answer that question again i was frozen no there's nothing in the records you explain why it took so long to get a tree of both both parties ordered my understanding is both parties or  that what you're our law you know your honor we're we don't have any heavy skin it's not this it's just the just the trial office just trying to figure out what precipitated they had two lawyers already in the i'm sorry go ahead i'm sorry under the i mean in this case that you know the government chose to indict all six co defendants in a single indictment notwithstanding that two of them were large there is nothing in the records it other than putting up a warrant which is you know that is what the government did in the fog of what else was their base they put out a warrant farm and then they fortunately come back into the country and they're arrested continuance or you agreed to somebody else's continuance on some of those occasions explicitly saying that fairness to your client liber choir a delay so my question is is there reason why any of those moments you could not have moved to speedy trial violation obviously a dismissal would be a total victory why not ask your honor i don't know i say i realize it was before you were involved but you can understand why we're asking this question it's troubling don't to wait this long and then all of a sudden to get this request when you by all accounts that have made its quest and in fact of the opposite over a dozen times we certainly could have made the request sooner something that you know this course is taught in particular for a nd what is there a practical reason that we need to be aware of that you could not have made this argument that would have been detrimental to your client it would be a bad strategy at least you know give me a story  why this was not a good idea to ask for earlier even though you want it to be honest your honor i don't know i mean i think the longer the delay goes on obviously the stronger the argument is i mean this because even at the end you were still wanting more time than the government wanted well so we were we were trying to operate on two tracks which is once you make motion but not the motion built be prepared for trial and you know we have to do both and i get that you know your view is well you know meetings so as i said earlier there's no there's no point in the record where d the defense council says we don't realize it doesn't file policy means we have to go to the u s attorney's office but if you look at the course of interaction between the two sides i think it's clear that the understanding was that when the government had discovered that it was available for the fence they would let the defense know that that is about it to get up what would be transmitted that's based on st the electronics mission was two months after the discovery of them the district court asked the government why are you only now dumping all these new documents on the fence and you know if the if the answer had been the truthful answer because then all the defense knew all along they could have come and so then surely that would have been the st thing the government said and that would have diffused and that would have answered the question entirely and there would be no issue to talk about the government didn't say that and similarly in our motion to dismiss we said that part of the reason th  the government's pledge while possible as not done so and then two months later mr packer but once again that gets in the debate of who has the burden once the government said we have an open file i can picture an open file sitting used repeatedly legal jargon that it still depends on what parties understood i mean open file is open file and then about this been practicing criminal law maybe twenty five minutes understands that have judicial notice of there respectfully are i disagree and i think that you've never heard of open file before you going to use them yes i have but i think you can have a number of meanings and effect different manning of open file then the file is here come look through it at your pleasure it can mean that whatever whatever information the government as will be made available this this court cases i think make you know make that point so two points on that st is that the supreme court said monday morning now from  and and it made a pretty mean that the government had essentially violated brady by using a huge document dump in that discovery and this court rejected  was being sent to the defendants are princeton's well that that that points directly to the question i was going to ask you why you didn't bring up ready claim during this litigation since twenty t or in your power in your view twenty two thousand and six so i don't know how you can say what i'm thinking was before you came into this case and i don't know your honor but i'm saying i don't think brady motion you know would have gone anywhere they've filed one that point because you know again it's brady depends last sentence or whatever to wrap up i have a question for you do that you know one only when we have one of these cases we go through and we segregate out the amount of time trying to figure out what was the delay or segregate the amount  amount of time where the the defend the criminal defendant is asking for more time and that doesn't count against the deadlines and you know we usually use when is the time that a delay is all on the government or all on the court and it's not at all on the defendant and it's really hard to do that in this case because not didn't oppose in november two thousand and ten move to continue in march ringback single like every three months or so it appears that your client is either joining or moving for some sort of continue what's so what is the period of time or you're saying since the arrest in two thousand and six is the amount of time or what is the realistic period of time where your client is not the one asking for continuance and it's the delay is really on somebody else again using our case law that normally pars like that so your honor i may start with you that it's a little difficult to parse out in this case especially the last you know year or two before these missile it gets messy but i think you know most the others do not you know do not express the urgency in same terms but they certainly request money and we did not follow up several times with the district court filing status report saying you know we're waiting for the money so client is clearly on someone else other than your client you started telling me about a circumstance which is not circumstance the just report used in its analysis and its opinion at all but so can you just tell me what the time period deeper can you point is that you know there was as i said the reasons i just said no no real alternative i mean i don't understand your point that you're just making about seven i know we need to wrap it up and i'm gonna give you five extra minutes if we take and could have chosen to go to trial without waiting and and need you know if i don't know what that means but i think what the government is saying is that you know if we were concerned about the delay you could have moved for a severance on that basis and therefore gone actually before mr  for separate trial and the judge seemed to be somewhat amenable to the idea that several times he was your honor but the point is that you know under this court's case law speedy trial concerns are not a basis for someone if it's a loser i mean that's what i thought you were going to be filing the motion because you didn't know whether he was up for the death penalty that's a different ground there was in the start of case it is but i but i think my point is i think with the government i as possible yes you're right but those people have already been found guilty in the case and that's that's not true of someone who doesn't come to trial and i'm not and i'm not suggesting people facing a death sentence don't have a right to speedy trial of course they do the point is you can understand why somebody in that situation i'm saying you know i don't think you know i don't think it's you can assume that the way is mr durham wants benefit was not an employer might assume it's just it is interesting to hear all these arguments made now and not at any point during these previous no worse he would like this to be over sooner rather than later is something in the record that says that your client's number one goal at least early on was to not go back to el and then if you were to be successful and i am not or shadowing i'm just giving the possibilities if you were to be successful then he would no longer be bedroll that type of custody he would be to the immigration custody at that time ok thank you mr smith yes your honor thank you briefly as want to address the severance question the question of whether a severance motion would be legally valid or not is a little bit beside the point what this court has to assess is did mr grant gomez actually want a prompt trial and he could have asserted that by moving for a severance maybe that motion would prevail maybe you wouldn't but the fact that it might even assuming for the sake of argument here that it's a legal longshot strand gomez has made a lot of legal longshot arguments right he moved to dismiss on speedy trial grounds having never over more than a decade sought to have the death penalty struck on speedy trial grounds when the supreme court has said the only remedy for a speedy trial violation is dismissal of the indictment so looking at the fact that he never moved for a se someone's right so the th question is really probative of if not dispositive of whether mr durango mazz actually wanted a speedy trial and the fact that he never moved for a severance shows that he never did want a speedy trial mr macbeth had focused a bit on what evidence there is or isn't in the record in terms of the government diligently pursuing the co defendants i want to make a couple of points on that number one that stems from the defense's attempt to impose on the government a duty to be seeking co defendants diligently with respect to mr duran gomez's speedy trial rights and none of the case law were arrested this wasn't the only delay related to those arrests no one comes after the arrests themselves and number two at the request of mr duran gomez because he wants to know what's going on with defendants before preparing for trial and again that's a strategic choice he can make but there's a tradeoff there it's like a defendant strategic choice to testify or not testify you can exercise your right to testify  exercise your right not to testify if they both have pluses and minuses that's the same kind of balance that's going on here that her question about whether these defendants were charged in the same indictment i  think is a bit of a red herring even if the government had charged durango mez rodriguez mendoza bonus garza in three separate indictments it is a safe bet that if those other two men those coconspirators had been arrested and even in the context of a separate trials were going through the sea or no seek process mr grant gomez likely still would have wanted to know whether they were going to be testifying in his case whether they were going to be facing the death penalty in their cases if they're prosecuted in a separate trial because it's the same crux of fact at the council what do you do with the fact that he's opposing counsel says seven years not like seven years the six and a half years of this is really on or i don't think that can be squared with the record your honor is in terms of your questions about how do we call our out the time that isn't attributable to requests that during gomez either made or agreed to there is no time since the indictment in this case that that isn't covered by one of those those timeframe that isn't covered by either his continuance request or request that he joined in from someone else that the delay that might be attributable to e saying that somehow that seventeen thousand dollars difference cause anough delay here and enough prejudice to warrant dismissal at this point is is it best i think speculative and really hard to support on the record here when the record shows if there were in new mobile other reasons why mr grant gomez wanted to delay he wanted to seek the opportunity to plead guilty he wanted the opportunity to litigate additional motions all of which are lost if he rushes to trial and is then in the situation of having likely been convicted and facing a kim and didn't mention the period of november of six up to february th him which they claim he was arrested on a couple charges back and also that you do have any understanding of why he might be believing that period the free indictment period i don't your honor i assume it was just a bit of a misstatement in the haste of argument my understanding is that they are looking to to have the speedy trial right attach in two thousand  contrary to this court's case law contrary of supreme court case law and leads to this absurd situation where a defendant has a right to a speedy trial on charges that won't be brought for years to come  any charges that might arise from the investigation that's going on during that time period as we point out in our brief if that's a viking charge in one hundred and twenty four dollars c charge under their theory of when the speedy trial right attaches  because it is if the court doesn't have any further questions or rests on our briefs we ask that this court reversed the district court's dismissal order reversed its findings that the government acted in bad faith and remand this case for trial thank you thank you ca