they please court the district court's decision and joining the state court needs to be reversed in this case because the director and the commonwealth have complied with the a v s touch meant entered by th mr wolf was both released from custody of the unconstitutional convictions and sentences and provided a new trial there were no extraordinary circumstances such that the retrial itself would necessarily violate any of his constitutional rights the only circumstances cited by the district court were an exhaustive claims arising after the remained and nothing in fact is preventing a fair retrial from proceeding in the state court of the  of vacating the state conviction separate of its own no you on the but it would have been unable to enter the order as it did unless the convictions were in fact vacated if the convictions were still in force that could not have set trial on the indictment as outstanding it could not have appointed counsel it could not have proceeded forward at all if there were still convictions against mr wolfe as a result of the prior state proceedings in every one of its orders s to the amended read entered by the district court in august really gave the state director of department corrections no choice but to release him once the mandate of this court took place it was not a conventional conditional writ that the more i read it it as the court pointed out stated that the convictions and sentences were vacated and then it went on in the following clause to say that wolf would be provided a new trial within one hundred twenty days or released but once the convictions and sentences were vacated the apartment corrections in virginia had no further authority to maintain his custody that he's still in custody in virginia he is not in custody as a sure makes a difference here and there if there's a separate indictment now with new charges is that right there are more than one there are additional indictments yes and what are the the additional indictments and what do they charge the additional documents charge the operation of a continuing drug enterprise on as a drug title violation there are two charges depending on the amount of the transaction involved there usual charges there is a charge of capital murder as murder occurring at the direction of a principal in the drug enterprise is you know you to is your response to the question i think that initiated this line of questioning that the custody of transportation order was so it to the the new body of indictment now because transportation order entered in september was pursuant to the two thousand and one indictments which were not challenging the hague yes there was no question the validity of the original indictments it was the trial proceedings that were the challenge  the convictions were vacated the indictments were still outstanding and he was arrested on the outs and in two thousand and one indictments in september the new indictments came in october that they supersede  now there they are you know that are just but do would have as a capital murder charge that's a different capital murder charge for a capital murder charge for the capital murder charge different victim same victim many times can you birders of the unit of prosecution under state law under the capital murder statute is the circumstances leading to it that we haven't theory yes there's this so the two thousand one of diaper still pending yes so if you went to trial a new trial would be or two separate murder charges one of their one a different theory than the other a lesser offense or  they're both capital murder charges and both at least potential at this point would carry the death penalty the capital murder charge and died in two thousand and one was capital murder by hire that mr wolf had hired one barber to everybody so in response to the question about the unconditional release explain again why your characterization that he is no longer in custody on the state charges  longer in custody on what this court in the district court found unconstitutional the convictions and sentences that were imposed in two thousand and two those convictions the sentences have been vacated he's in custody on the outstanding indictments that remain intact after the convictions and sentences were set aside and so he's in custody as a as a pretrial defendant the same as anyone who's been indicted by a grand jury and not on any constitutionally infirm action of conviction  sentence that this court and the discord set aside and that's why we contend that it's unconditional there are no continuing conditions consequences or results from the actions that were found to be unconstitutional the conviction sentences in two thousand and two those are gone is only custody is a pretrial defendant if he had qualified for bond he'd be out on bond the state court held a bond hearing found he didn't qualify for bond that's the only thing that's holding him in custody now so that as far as the the purpose of the response for bond because of the murder in a criminal and an ongoing criminal conspiracy there's a presumption of the state statute that conditions of bond would not satisfy depending on capital but under the state statute the court is also required to consider whether that presumption that rebutted consider his flight risk and other characteristics conventional bond hearing is treated them as if they're there de facto going on in a word yes but you are still attempting to retry him on the two thousand and two convictions as well as these the new in reitman's right he's facing i believe there are five from october of last year where the chair drug enterprise that the five knew would say yes to drug enterprise the chapel murder conviction drug and prize a felony murder and related use  the writ in this case it's the director's contention afforded wolf and in fact all the remedy that he could have had an absolute writ once it did in fact vacate the convictions connection of the director that he's also released from any custody the convictions in compliance with the first half of the conditional part of the writ and that the commonwealth has indeed provided him a trial but the critical the which the district court characterized as a conditional writ yes and it does conclude with with language common to most conditional writs to trial release but since it starts with an order that the convictions are vacated it's a little bit unusual as a but the point to this point where the only issue before this court was whether we've complied with that writ is that we have the convictions stand vacated he is released from any custody based on the unconstitutional sure th the order enforcing judge but yes you are relieved and as to that your honor the district court itself acknowledged that if our only error was either not in fact releasing him unconditionally or miscalculate in one hundred twenty days the remedy would be a release subject to rearrest in re trial the only distinction the district court made from that remedy and what it entered was that it found what it called extraordinary circumstances in the conduct of the prosecutor after courts injunction my reading injunction identified only one that the interview on september eleventh wrongly led mr barbour to assert his fifth amendment privileges is there still an ongoing ethics investigation before the virginia bar for the first i think so those of course are confidential all that comes out in public are what the parties may choose to release and what they've released at this point are the responses that have been filed i'm not aware of any resolution of that at this point so i would have to assume it's ongoing but i don't know as a as a matter of fact but there two critical points two well several crow points toward circumstances if i just back up a moment first is that these extraordinary circumstances unlike all the other cases that have been cited here are alleging circumstances that occurred after the mandate had come from this court and circumstances that are not part of the original relief sought in the others extraordinary circumstances cases it's a situation where for one reason or another a but isn't that the best that that under law is what the district court found in the district court was concerned was it not that the interview with mr barber was  to render him unavailable that's what the dischord was concerned about we argue in our brief in here that that's an improper concern both because that's never been part of the hay vs the case it's not a claim that they to affect proceedings going forward but the the critical part of it being a post mandate is not only was it not part of the hades petition was filed but it's never been a matter that the state court has yet weighed in on eleventh i think but levin separate and that is the subject of a motion that mr wolf has filed in the state court the commonwealth attorney special prosecutor has responded to there was some evidence taken on that and the disposition was continued over in part because the circuit court judge this a trial judge found that it was not yet properly before and mr barber had not in fact refused to testify at this point and since then the interview or the meeting or whatever it was that recording and the assertion of fifth amendment in quotes where there was a proper assertion or not as two different things it may be that you said risk of persecution prosecution for perjury and does in fact have a risk that he breached his plea agreement whether he testified falsely in the state trial or the federal court either way he faces those risks and he would have a basis to assert is the limit right it's  never been contended that his assertions the then privilege is is frivolous but your point is that is that's a matter for the state court to deal with in the first instance yesterday action with the seedings and that would only get back to the federal court after a bit exhausted in the state court system exactly but both because of federalism concerns in allowing the state court to make this decision first and because the state court as the trial court has much better arsenal of lased to deal with the problem that the district court felt apparently it's only remedy was to bar prosecution the state specific cases in this case it was a representation on the record by the special prosecutor and the internet entered by order can be reviewed but if there's a statutory system then again i mean that the prosecutor just say i will give it to you but that's but the point with respect to the district court's judgment though is there was no evidence at the time it ruled whether or not he would offer immunity the district court assumed it was i think unlikely was its term that immunity would not be offered as special prosecutor the district court itself did not find that a fair real trial was impossible but the out there was also a statement somewhere that one of these greasers not that i'd get immunity proposal from the prosecutor was going to be contingent upon telling a particular story there probably particular version that favored the prosecution and that's not appropriate for a prosecutor to do is that would not be appropriate that's not what the prosecutor said ok don but he didn't say condition it on giving testimony that the prosecutors thought was true thought it was simply truthful statement i've never known a prosecutor to offer immunity for perjury the trial court judge is enforcement if the trial court judge believes he has perjured himself for example by telling a fourth or fifth story unrelated to anything he said stories told in the district court judge jackson credit their story told in the proud court at the time of the trial the jury credit so you got two different versions of being credited and of course the jury the story that he told of the trial court was before this piece of radio evidence was disclosed that he got that call or nothing too but he has told two different stories under of without question and i and not your thing about the of unity at least what i've i've heard or first few minutes of that interview with mr barber in september two thousand and twelve he reiterated to the former prosecutors that what he had testified to in federal court was the truth and then they went on for two more hours so including statements to mr barber that if the truth is that wolf had nothing to do with it tell us that and he told him that in the first few minutes well he he alluded to his federal testimony he never made a further statement in that interview that i recall exactly what happened he said which which testimony he would repeat but the truthfulness required for the immunity agreement once the agreement was entered would not be under the law to control the special prosecutor the up to the trial judge to determine if mr barber had been truthful or and can slide with the terms of his minute agreement or if he had committed perjury in new so it's not something that the prosecutor can say based on his investigation he believes a certain course events happen mr barbour testified differently so i'm withdrawing immunity once it's entered once it's offered and we have to perish yes your honor thank you your honor actually stars or just from all what might be i think might be helpful with the court's indulgence i'd like to do three things today i'd like to start off making a couple of overarching points that i think will frame the rest of the discussion second i'd like to explain why they did not comply with the conditional writ why more specifically they have not shown that the district court abused its discretion in its interpretation of that writ and lastly why there's no possible way they can actually properly argue that they unconditionally release mr wolf at this point and then lastly your honors i'd like to focus on the extraordinary circumstances i'd like to put that in context but i'd really like to do three things first explain why there is a very close in extra couple nexus here between what's happened in the retrial proceedings and what happened at the hague his judgment second i'd like to address this point that opposing counsel is mad about that the test is in possibility of a new trial even the precedents they cite in their brief do not support that statement and third your honour's i'd like to explain why this argument about immunity does not work i'll get to the gist of that but judge king i would notice that you used the word unconditional immunity but let's all remember they have a different understanding of unconditional than we do here and i'd like to explain how that also applies in the if you don't you have a different understanding than judge jackson i have exactly the same understanding of judge jackson your honor which is that unconditional meant unconditional then have additional really reduced says in this circumstance will not itself generally preclude the government for for that there are two things that judge jackson is doing in the absence of extraordinary circumstances that's the law yes sure let me so there's two things there's one question is what did he mean by unconditional release and earlier in his opinion he says when i meant unconditional i meant absolute you cannot reprosecute but then he gets to the second part of his analysis and says if there's a violation of the order what's the proper remedy and what judge jackson is saying in the passage that you read is that even if there was a violation of the order he did not mean that that would necessarily mean that unconditional release would be appropriate absent further extraordinary circumstances so what he does is he first gives the commonwealth a choice which underscores our reading of why his conditional written makes sense commonwealth you have a choice you can either retry him within one hundred twenty days or nothing else you unconditionally release him the commonwealth has now decided to retry with vacate to addiction your honor he did say that he vacated the convening vacate i've got right your honor this is what i would say lawyers first thing you ought learn you coming up here you'd answer the question your honor the answer is he ordered the convictions vacated but you don't really have power to do that well your honor yes he did but let me make our point that we make in our brief which is that there are two issues that are going on here one question is what could the state court do in light of judge jackson's order and the second question is are there formalities that would require the courts of appeal or the district court to say that he had lost jurisdiction and our point is to the the extent i'm all for once to rely on the formality that there's been a release they also have to take with that the other formalities that are required the sixth circuit has made clear that those formalities are a vacation they could or that occurs at the state court level and that it extinguishes all of the collateral consequences is made clear in this rocky decision that the state has to come forward and bear the burden of showing those collateral consequences have extinguished so your honor to your point i do believe that judge jackson properly ordered that the convictions were vacated but the question is a matter of formality is does that mean that the commonwealth is satisfied by saying that they've released him by transferring him from one subdivision to another the answer to that is no because we're in this world if they think that the six circuit precedent controls we don't think they've are maybe that's a good place to go because i do think it still highlights again why our reading of the order is correct and why judge jackson's reading of the order is correct again step back i think what judge jackson intended in light of the extraordinary circumstances that existed on the first hit haiti was hearing was the said look there is a prisoner here who live a judge to be actually innocent for purposes of close loop there's been extraordinary misconduct lee anderson you throw that out around there a lot to your sorrow one of your brief with that  order to make a gateway showing up for showing open up the other issues your honor the judge needed herrera claim is the actual innocence well your honor there are you're absolutely correct i don't want to waste your time on that but that which i think you're hurt yourself by trying to get into that judge go back and wants to get that hundred twenty days right absolutely your honor and but let me make the point that the district court here issued a specific conditional it was specifically worded in light of the findings that he had made days popped into the middle of this appeal after the case was in divorce or while you're on it what happened is that there was a motion to clarify and it was an amended judgment the commonwealth appealed both and when it came up to the fourth circuit but the amended judgment was the judgment was properly before the court did that's hundred twenty days from the date of this order which was already for the appeal was already pending so in the middle of the of the appeal you interposed one hundred twenty days they got to trying or else as far as you they filed a notice of appeal challenging the first judgment they then there was a motion to clarify as you said we were entitled to do that the district court clarified his judgment you're entitled you got it they filed a new notice of appeal to question what effect of that if your honour's question is does provided mean that it has to be started or whether pretrial proceedings were sufficient i think the answer to that is a couple things one is that this court itself in its decision interpreted provide a new trial to mean retry within one hundred  you're in the opinion that this court issued affirming the heaviest judgment as the court described the requirement it described as the district court directing the commonwealth to retry within one hundred twenty days or unconditionally release and the reason is that the court read it i'm asking was what constitutes providing wolf notice providing will the trial within the allotted yes your honor and the answer that is that they have to set the trial to be fifty they did your honor and then the state came back and made and at that point asked for a continuance recognizing arguments that they've now tried to raise now but they recognized that they needed to comply with one hundred twenty days and they did not make the argument that he was released but what they disputed was whether the one hundred twenty days ran from the time of the mandate or whether it counted the time that had run during the stay and when the state i asked for that continuance if you oppose the continuance of your own we oppose the continuous on the grounds precisely that we thought it violated the the district court's order would you object to the district court taking eighty four of those one hundred twenty days well in the motion you're on or we didn't although i don't think it was so fair to say  the process start to say that the process has to be complete what i'm asking you is are you reading things into that order that specifically your honor i would i would say that the reading that the commonwealth gave to the order which means it needed to start the reading that this court gave to it in its opinion which said it needed to have the retrial within one hundred twenty days the reading the district court gave to it and the reading we give to it all however you say start or complete all preclude the argument only start or complete district court did which is to say that it must mean that there has to at least start or be completed and the district court has discretion on the wire well your honor what it means is that i think it is clear in the district court was very clear i think it's clear because even the usual person might read it that means one hundred e will your honor to think is that if you because and i would have been probably impressed by the fact that this hundred twenty days came up in the middle of the appeal your honor if you wanted to do that you could have written judge jackson's order a lot but your honor entice the they or you all  did raise an issue about it but your honor we had the first appeal absolutely that's right nobody did they were talking about riveted in the first appeal were they were talking about the merits which they had a right to do was their appeal it and your honor they didn't all come about the that but so which is why they would waive their of but judgment they say provided to a trial the reasonable reading of that is you say it means begin to try but a reasonable reading is that the trial has to be completed you're on let me be very clear about what my position is on this one is that the commonwealth itself agreed with us when they went back to the state court that it meant something more than initiate pretrial proceedings because otherwise they would have asked for the continual they they and they and they made some representations to the state court but i think if we could have if we assume you were right on one hundred twenty days what justifies not giving them a trial how can you sustain that the federal court telling us state court that it can't try a criminal case that's about the ultimate exercise of power by a state court that by a federal court trying to stop a state criminal trial your honor i agree and it should only happen in circumstances where there's been a violation of conditional writ which we think we satisfied and when there has been extraordinary circumstances what we were talking about earlier and this which is what you want to get to and i'd like to turn to two but let me emphasize about this case if you take a look at all of the cases that have been cited all the cases cited by the commonwealth all the cases cited by us there has never been a case with this type of misconduct when you take a look at the totality of the circumstances he taking into you have to be taking into consideration trial misconduct your honor i take in the two things i did i'm just i mean it that really was a yes or no question when when you are you yes you're saying that so we're going back and violations that occurred before no but am i saying that there is an in another couple links that my question ok michael you i was asking when you were talking i'm trying also to understand extraordinary circumstances it justifies  federal court telling the state court that they cannot criminally try a citizen yes and you are saying that the extraordinary circumstances that justify include the trial  and your honor i think you are you do you have to go back in order to find extraordinary circumstances your honor you don't have to go back but what i'm what i'm saying i guess i'm making three points here if i may one is that the violations that have occurred the continuing violations are so in ewing violation of your continuing brady violation your honor that was a let me give the easiest example this the district court made a factual finding in his original h judgment that barbara's testimony was false and that provided the predicate for his gig leo and due process violations now the prosecution has gone back to mr barber and that you said you said it was false court that remains a finding of the district court the prosecution has now gone back and attempted to threaten mr barber to do the same testimony that it was found by the district court to be false so you're out of the reason i say that there's a link is that what the  that you thought that there was there were threats there but it does seem to be at best a question open to some to pay you your hundred there may be a debate that we could have as to  how how strong the threats were the one thing we can't have a debate on is that the prosecutions directly or mr barber to testify falsely there's no way of reading the transcript the other way in the sense it's very clear that the prosecution at multiple times says earlier you're it exactly your honor it's that interview combined with the gig leo and brady violations before this if we did it if we didn't combine it with the radio but brady violations before would you still think it's extraordinary how is it still extraordinary standing the line your honor if your question is just the fact that they went down there and threatened to him i think it really is the fact that the district court found the violations before that makes a truly extraordinary in that  question yes and you have can you predicate extraordinary circumstances and i think you're saying no although you keep moving around on what you are and what i'm what i'm saying is that the interview itself is made extraordinary characterize it other than flying itif we could debate as to how aggressive it was or how extreme it was in the context of had there been no violations but once the district court made a finding that barbara's testimony in two thousand and two was false it is extraordinary conduct for prosecutors to urge a witness to engage in exactly the false testimony that he was granted a very back and found it was true that is true you're on but that's why you have a constitutional process i thought the judge said that the really the relief accorded do we measure result of the brady violation was a writ given to try exactly your honor and once they didn't do that the jurors the court had jurisdiction to look at what was happening and what they've done is they've replicated the violations that the hav understand your position but i think it also highlights the difficulty that i'm having and that is it's arguable that mr wolf as we see the relief that he sought which was which i thought was going to be a new trial but now we are looking at the possibility that he won't be retrial friday because of these extraordinary circumstances which is sole interview with barber in which i'm not sure that it's fair to characterize what the prosecution did ask urging him to testify falsely your honor with respect i think when you read the transcript there are several places in the transcript where they specifically ask him to revert to his two thousand and two testimony i don't think there is any way that's arsenal is a said they believed him in two thousand and two i know your honor but once the district court made a factual finding after you have it and they can't disagree with the district court they they can they they they agree with themselves and they agree with the jury but you know i mean your honor with respect to the point of the hague this proceeding was to find that the jury's verdict was not entitled  trial on the basis of the brady violation on the new some report and your honor which which you should he should have been provided with and you're on out and we gave him a new trial and you're up here your hon stretch of that by focusing so called extraordinary circumstances that would preclude a new trial your honor you gave him a new trial on the idea and this is what a conditional writ is supposed to do is give the commonwealth the state an opportunity to correct the trial some proceeding before the state court judge but it has not been exhausted there's such an extent that any issue under the constitution could get into a federal court your honor i disagree with that and the reason is because i don't think process is supposed to be a circular meaningless process if it was different constitutional violations then the un exhausted argument would make sense if it was the fact that we had some claim about ineffective assistance of counsel something different but the problem with the commons position here is that what they have done now is they have gone ahead and as of this trick court said crystallize the violation so what's going to happen is that the state court will either find those constitutional violations to have occurred or not it will go up on federal habeas again another district court will find that the same constitutional violations that occurred the first time have now occurred again but you if you're sure correct i mean you've got confidence in your position a state court virginia is just as capable of resolving those constitutional issues as we are your honor state court is not as competent as this court or that is i'm sorry you're let me finish could raise those constitutional issues in the state trial court if you lose of you raise them in the intermediate quarter of the supreme court  genuine united states your honor i have to you i'm not disagreeing with everything that usually is constitutional has to come through here your honor i'm not disagreeing with you but what i am saying is that the state court is not the same position as this court or the district court in enforcing the district court's order now the once the records order gets the new drop gets him a new trial and ground since all we intended to give him was a new trial you're on with respect this court was not just giving him a new trial it was giving him a new trial to correct the constitutional violations that occurred in the first trial i understand your honor your point that if there were an exhausted claims and that's why i'm saying it is important you know that in the past all hooked back into that but i'm telling you what we found the brady violation we directed to be given to drop your arm so we would like we would like a new trial where we would be able to use the brady information in order to and that's a matter for the that's a matter for the state court to decide what you can use  they don't always do what they say and you put them on the witness stand and the judge gives me unity and they testify for two or three days so they do testify even though they don't want to testify you know are urged the court to look at two decisions and i like one point about immunity first you should take a look at the dump rocio case because in the d'ambrosio case a very similar circumstance happened where because a delay not nowhere near the same misconduct as we have here but because a delay of some vital witness the key witness only to provide direct evidence against the i'm sorry your within the terms of the order were different you're absolutely right your honor but i guess there's two issues here there's one question which is that they violate the order we think we're on solid grounds the second question is do extraordinary circumstances justify proceedings now your honor if you ultimately disagree with the district court you alternately disagree with what the state you insolent disagree with us then we i agree you don't get to external circumstances but i believe if you look at the case law and see what it is you will realize that the only argument that the state actually thought that they were making below was the argument as to when the hundred twenty days run if you take a look at the court's order the hundred twenty days run from his order and the state doesn't do anything to change that so we prevail on the idea there's a violation and then the meat of this case which i really do think which is the difficult part of this case is whether there are stored in our circumstances to justify barring re prosecution we accept the fact that this only should happen in rare circumstances but your honor i will reject the idea that this does not occur i think that the gilliam case the demos your case so a precedence where you can do this and i also would submit to the court that this is an extraordinary case it precisely because the entire context of the case the fact of what happened at the hay vs proceedings in the  extraordinary misconduct that occurred and the fact that the commonwealth has basically continued to thumb its nose at the district court isn't trying to correct these violations it's trying to basically as a district court said crystalized them which is preventing us on any re from actually having a fair trial we will not be able to cross m types of claims the same violations that underscored and the commonwealth is not fixing them but is going on and doing the same violations again then this court has authority because it has to enforce the original order otherwise the whole purpose of the condition violation the brady i was going to fix the other issues you could raise but your honor they have prevented us from fixing it and also even though this court only affirmed on the brady grounds don't forget the district court made other findings that were not reversed on appeal and those are entitled to respect no prosecutor should be able to just go ahead and say there's a district court or i don't like i haven't been able to reverse it so i'm just going to ignore it so with respect aren't we i know that there is a problem in general with suggesting that district court should be the prosecution but in this case i really urge the court to look at what is happening in terms of a finding of false testimony and attempt specifically no matter how you characterize it to induce the witness to testify falsely again a finding of brady avenues under the rules of evidence to huge prior testimony ok so you're on there's a lot of options here your honor to get a trial judge can look at your own two points about those options one is that way if we don't rule on trial evidence rules your honor we particularly those for state court your own we have already called him to the stand he has taken the fifth and the state court has found that he has the fifth that his own lawyer took the stand in the district court and said he will take the fifth year on it was their burden to that doesn't mean he's going to take the fifth honor the position that the that a witness who who's a lawyer going to recommend doing they take a fifth amendment is evidence is lost that's not the way the system works if you're one of the system doesn't if he had just done that on his own initiative different world the system does a large bird out you're out of the concern that we have with the way that your questions are suggesting we are to court to take a look at this again is that i understand if there are other constitutional violations that's for the state courts to proceed on but in this particular case given what has happened it cannot be the case that the hebrews process just leads to a circular process where the first habeas proceeding doesn't count for much and that is why state prosecutors just like anybody else are required to comply with federal court orders there was a previous process that has to mean something and what we would suggest is that it means things in limited circumstances where in the case of d'ambrosio where a key witness becomes unavailable because the state's misconduct here because of extraordinary misconduct  deliberately intended to affect the way the bar was to testify pressure him to testify falsely in a way that the district court has found to be false and then prevent us from using the brady material that this court said we should have been given in the first trial you combine that in the broader context of the findings that the district court has actually made a slip determination here you actually put that in the context of the misconduct that occurred before and this becomes a one of the kind extraordinary case and your honor i don't mean to minimize the court's concerns but i do think that if you look at it through that lens you realize there is no other case that that meets the same extraordinary circumstances but there are other cases with less extraordinary circumstances less evidence of misconduct where the court has granted relief i  that they were not prepared for trial that they were not to speak to mr barber certainly nothing that they were not to address mr barbour the fact that he faced perjury and questions of his breach but there was also nothing in the district court's injunction speculation that they deliberately did anything to cause him to invoke his fifth amendment right that his that the only testify and say that the visit by the prosecutors was the reason he was now going to invoke his fifth amendment testify exactly what his reasons were but he did state that one of the reasons was the fact that he faced re prosecution but he faced re prosecution whether or not they told him that on september eleventh and on the face three prosecution as soon as he testified whatever point you believe mr barber testified truthfully or falsely he has testified both ways now either breached his plea agreement by testifying falsely at trial as judge jackson believed or by testifying falsely in a subsequent proceeding in front of yes so whichever testimony is in fact the truth is reached his plea agreement and he's committed perjury at least actually perjury by testifying opposite ways into sworn proceedings if not common law perjury but these are all matters that are scuse me all matters that are would in the state courts competence to address and decide and control and regulate at trial nothing in the district court's order requires the state court to do anything specific with respect to mr barber it required that he get a new trial the state court is presumed to follow the law in the constitution the prosecutor as we've stated in pleadings and is reflecting the status report has bent over backwards to make brady disclosures in this case there are something over seventeen thousand documents that have been turned over at this point so if the point is that you violate that the state violated the district court order to provide him with a new trial within one hundred twenty days if we assume that then then where are we because you say that the district court can't bar prosecution because these circumstances were an extraordinary enough so what's the district court left with to enforce its order it's left with what it said in its injunction that it would find a violation on him released from the unconstitutional custody subject to rearrest and retrial but that's what the state has already done on february seventh it could enter that order but the state took the step as that's where the state's trying to go now is retry him on the indictments that rearrested him on so if the state has miscalculated the hundred twenty days and i just touch on that briefly it's our position i think the court understands that the hundred twenty days has to run from the mandate if it's exhausted before the appeals even finished in this court but we're left with a kind of arbitrary residue of the hundred twenty days depending on the stays honored and the point of the stay was to give us the benefit of this court's opinion in order to do the retrial but the point of the stay we took was to give us give the commonwealth one hundred twenty days in order to provide a retrial but the reading of the district  that from the time of the stay had what thirty four days or thirty six or thirty days oddly gone or at at the at the time of the hearing on the motion to enforce the district court described it the question of how to calculate the one hundred twenty didn't you all go back after the mandate or something at some point try to clarify what he said that at the at the a no but why did you all go back try to clarify that when to there was a there was obviously disagreement here whether was thirty six days or  hundred twenty days from a time of the mandate and nobody went back and asked the court at that point you waited till after the fact we didn't think it was ambiguous and the prosecutor didn't think it was well you went to the over there own  the special prosecutor agreed to october fifteenth as the date that mr wolf wanted he didn't concede that he had been released he didn't concede that the hundred twenty days ran that way he agreed to a trial date to avoid the issue because it was convenient i  don't i don't know why but he simply agreed to a trial he didn't concede anything about the district court's order to move for continuance for for routine reasons there was additional investigation do some witnesses and mill located there were deadlines for filing reports and so on when mr wolf brought up to the state court that on his reading it took that was more than one hundred twenty days the special prosecutor pointed out that it was less than one hundred twenty days in the mandate and it was set within that time but his argument didn't concede that he had been released or concede a reading of the district court's order that was heard by mr wolf that simply tried to set a trial date with as few legal issues being created as possible thank