was the magistrate had issued his report and recommendation we had filed our objection to the second part of the report recommendation we of course were in agreement as to the first part of the report recommendation finding that the u the way i've always seen it done and the problem that i have with this case is the judge although obviously the written order does say that he conducted charts and conducted it and over rebuke you but he started off the hearing by saying you know this is highly unusual  i'm only doing this because i respect you lawyers but this is highly irregular and then somebody says well judge we'd like you to go ahead and conduct a review and he said well my hands essentially are tied he said something like that in the record and that's really the back conclusions done adopts them directly after that review court the court i have done that but it pretty much precludes me from making any changes what does that mean ah i think that what that means is that we're asking the district court to adopt the findings of the magistrate really you can ask all you want but then it's up to the judge independently review the report and decide for themselves whether or not there's any object any merit to the motion and the point of it is to let him do so so that we're not in the first instance being required to to do this with by the court and it's that language that causes me concern that it sounded like you guys were and i don't want to talk and would have thought that he's not a shrinking violet and strike me as someone who's is easily intimidated but it sounds like whatever reason he thought he couldn't actually independently review this may be a hypothetical imagine the government and the defendant very openly and transparently entered into a written agreement and it it says the district court we agree and we're i can't change it it's like an eleven c one c right except it's not supported by the rules but otherwise it's like that where they say you can either go up or you go down but that's the only option judge hudson you have all in order to plea that you can reject all of this and do something else but those are the options now if if you all had done that and i'm a senior but had you done that would you agree that that would have been improper  that forced him into a position where the only option he had was up or down right there's no need to change this ronnie to do additional fact finding i need to put him in a box that is why i can let him see well you could but then there's harm to my client who is to be released in june of this year and so by that point he's already out of constancy and so then we are obviously i guess he's always suffering the harm in that we could i'm do a conviction i mean the idea not have to conduct a de novo hearing and in fact they can in fact issue an order based solely upon the record created by the magistrate and quite frankly the case nonsense again it's an unpublished opinion by the school or that absent an affirmative showing that the district court did not conduct a de novo review it is presumed that the district court did conduct it de novo review because the presumption  that he that he says i'm taking this course with great reservation this is the page to thirty two of the j and it's only because i have a tremendous amount of respect for both the lawyers what was he talking about there indicate that my client was in fact clean from justice all the parties agree in this case that my client was found in the united states you dress that the threshold question actual legal question of whether this is a continuing  because i read smith and blizzard from this court to suggest the this looks like a continuing offense right so it's two different parts entering doesn't seem continuing at all but being found i think the government has waived that argument and so that's why i'm focusing on the fleeing aspect of this because my understanding from the record before this court is that we are in agreement that my client was found in the united states in two thousand and seven and so therefore under thirteen twenty six was completed in two thousand and seven when he was found here i ice he was known to chesterfield authorities he was known by ice to be here and so therefore the crime before this court as i understand this record is whether or not there is an exception to the statute of limitations under thirty to ninety whether or not he was a fugitive and under thirty to ninety the government has the burden by a preponderance of evidence to demonstrate that the person was intentionally fleeing and concealing themselves in order to get the statute of limitations to run and on this record the government chose not to do so any evidence make a court appearance and what d c circuit said in singleton was that was what the government was arguing that somehow there was some burden on the defendant and in fact the burden is on the government to prove by proponents of evidence at intent to flee and conceal himself from justice and in that instance in singleton the court found that the government had not met their burden because over the five year period the u s marshals had just gone to the address on two occasions and so i believe that we need we can't do but it was because it was understood based on your opening brief that at finding had been made by the magistrate without objection by the government so we were proceeding on the assumption that everyone was in agreement and so quite frankly we were a little shocked to see that argument being made in their response because the record supports the fact that everyone was an agreement that my client was found in two thousand and seven and that was not nobody doubts that he was found in two thousand and seven the question is what's the nature of the legal question i get the the factual finding was there but the legal question of whether this is a continuing offense or not the government raises that issue in this response brief and you don't sort of claim waiver and i don't to get into the waiver of a waiver of circumstances there and we laid this out in our supplemental response but specifically addressing the questions that were raised by mr mcguire the plea agreement and the structure that was presented there i didn't have any problem with that because there we were presented with a problem of would there be enough time going through the whole process to get a fair review and a fair appeal and so that expedited the process as as i started the guilt plea well i'm all for expedition but not of the costs of complying with the process and not porn process of making sure that the judge actually conducted a noble review so i guess what i want answers through is what was judge hudson concerned about what reservations that he have that were overcome by your stellar reputations that said he could he could proceed well there's a circumstance here is that obviously the statute only requires de novo review limited to the objections that are filed by the believe you know judge hudson was my u s attorney in the eighty's and i have knowledge if a personal privilege point i suppose is that i know how thorough he is and how directed he is and how he is reluctant when parties are waving their shoes so what was what was being waved here well when when as part of the agreement the defense agrees that the objections will be over well for purposes of objections there were effectively waived that is exactly what i said and when i got to the guilty plea hearing as a sit down in the transcript i raised that with the judge and he said well i've already done the review and i bent over the order  defendant we're to look to i'm not it's not that i'm at all questioning your representation i just want to understand i guess the implication of what happened but is that actually in the record somewhere that i can look at that agreement and then i'll add to the second question to make it hard to follow is if the defendant agreeing should we look at that as a waiver of the objections i mean one possible remedy not necessarily advocating is that  of the objections by the defendant mad seems odd given the conditional guilty plea but you know generally if a party says i agree that these are going to be overruled at that starts to look like a waiver  the first answer is to where it's in the record is what i say to the court in the first two pages of the guilty plea where i say we understand and what happened here was we reached an agreement the court was advised through chambers that there would not need to be a hearing on on those objections because they were going to be agreed to be over wolf i would not call that a waiver because the whole understanding here was that the defense wanted to expedite so it could get a full appeal done why why why was there a presumption the judge hudson couldn't independently review this and come to a conclusion that might be favorable to the defense there is none so why not let him do that he well answered answering the last point his hands were not tied and that's why i was trying to start the plea agreement by making sure where we were procedurally and i say i said earlier that the green it was that the defendant's objections would be overruled in other words he would not get any relief he would have to come up to us to get and really wrecked i'm i'm having trouble understanding how that amounts to an independent the novo review if the decision is already preordained because when we get to the point of the implementation of the agreement of the guilt plea the judge says i have done the review and i have been there or is it i don't care what you guys are like and i'm going to do what i'm going to what i need to do you know he really did do that in a nice way i mean he he said i've already done the review and i better the order in the judges ruled and and procedurally we're good at that point for the conditional play and the preservation of an appeal on the decision as to whether or not the prosecution was barred by statu like oh why do you did it then we can oppress the basis of why and as the case law that i look to for making sure my understanding of this was properly procedurally is all the court has to do is say that it did the didn't over review there is as as defense has pointed out here a presumption that it's done because just reports you know the rules and there are multiple firman says of review questions where i remember one question was the second circuit said a terse one line statement that it had done the review was sufficient i didn't find any case law anywhere or even any suggestion of the case law that the district court has to lay out its reasons for the next objection want to jets into it jepson three i never found a case or even a suggestion that the blanket statement of the district court that it did the review as required if it was required in that case was not satisfied by simply saying he did it so jantsch your question directly i do not believe  suggested that this seemed like a one off scenario for her you've obviously been around for a little bit is this a common occurrence and right oblique more than a little bit i finished thirty five years in april  tell you look quite young i got a twenty here thank you yeah the question you ask is a good one and i can tell you that practice in my knowledge is limited to the richmond divisions practical matter but you would not have had this referred to a magistrate in the eighty's and ninety's that just wouldn't happen and the judge marriage used to sit where judge win is now city would not have any of that it changed in specify i can think in the mid to think first decade of two thousand and two five six seven when we got one more than one magistra can't exactly recall when that happened but when the judge locke became magistrate and more things started getting referred and if you want history of that i think it was judge paine's doing and so things like suppression hearings and evidentiary hearings on that sort of thing started going more too so i don't think it's a one off to your term it's been done more and more and we're we're blessed here and i'm a child in the apple do and do you have a hearing do you have as judge with women is asking for some implied requirement of a detail memorandum opinion resolving  but was there discussion about that and is that an issue that you think is preserved for our review the answer your second question is yes it's preserved why be it's a legal question sir you didn't  was tween factual conclusions and legal issues legal issues or course to nova review here and factual or or clear or determinations you know there are no published decisions entering the ultimate question here  of how the continuing offense doctrine applies directly to the statue of limitations there are certainly suggestions and someone mentioned the smith case comes to mind certainly suggests that if that continue with continuing accent and therefore continuing offense so you can make an argument that says basically that because it's fence the found it's a shifting target target date  case as set out in evidence there are eleven in disha of intent to flee by this defendant in this case and if those are not sufficient to toll the statue of limitations i do not believe i'm there we're going to see a case of tolling here i do not disagree that the government got information as to the defendant's presence in two thousand and seven we know that because the u s marshals got a warrant on a supervise release violation that was filed at that time by the u s probation office there there was also the disputed issue as to communication between chesterfield and someone at the ice office but the bottom line is and i and that the i could stand here and say it's factually wrong i mean said that though you do have a lebanon dish yeah i think that that show that this defendant did have an intent to flee and i would put it to you this way to two thousand and eighteen it's been a consistent pick pattern of behavior and that's really the substance here and talk to us just for a second about the one issue i think it will raise this earlier about the use of sort of every day and it's and maybe not every day anymore no there really is i mean when we evaluate the intake level of the case coming in and you look at what happened before the event what happened after in this case you know before the then is the two thousand and five conviction for counterfeit immigration documents why is that relevant here because when he's arrested by chesterfield in two thousand and seven what does he do he presents in mexican identification in a fake name that's another killer if that document he's still doing it after the federal conviction in two thousand and five and that's in violation of the supervised release terms that's in violation of the long as he's already been convicted and if that does not show his intent from the get go i don't know also have he didn't turn himself in with a probation officer he didn't answer for their supervised release and there was an outstanding supervised release warrant issued at that point that remained outstanding and the u s marshal correct and that that's not unusual to get a warrant and then put it on n c i c we only have so many officers and aides your honor and there's nothing in the law that says statute of limitations applies if the head of the u s marshal's office here in richmond or wherever i doesn't say let loose the hounds send everyone out to go or find mr dale i mean there's a middle ground let loose one hound go go to his house the the the issue of adequacy of law enforcement effort is a question if you had a thorough law enforcement effort and i participated in those specially you know murderers who flee to the virgin islands was marshall's but from a boat it was really funny in any event you begin to do the serious question  if you do a full investigation and you can't find him that clearly is proof that the earth certainly indicative basis that the defendant is intending to flee but the converse is not necessarily true if there is not a thorough or adequate or bigger as law enforcement effort does not mean that he is not intending to flee you look and see if there's other evidence that can prove that the law enforcement effort is just one form of proof i would submit   i just have two very brief things to say about the de novo review and then i'll obviously just submit that to the court but in addition to the order on two fifty five you also have in the plea agreement j to fifty nine  is on the government to prove by a preponderance of evidence that the defendant fled and this record is absolutely silent with the exception of what is found in j one twenty four which is a series of e mails and are exchanged between the u s marshal service the detective in chesterfield who mentions that he has spoken to levy aims at ice that is the extent of any law enforcement effort to locate mr daly on  therefore i do not believe that the government has met its burden by pondering the evidence to demonstrate that my client was fleeing justice as this court has already recognized my client was out on ont in chesterfield with a bail bondsman listed on his that certainly you can look to what the defendant does as to whether or not they are taking actions to in tension only hide themselves but in this instance we have a silent record as to what if any efforts were done by law enforcement between two thousand and seven and twenty sixteen to find my client the only evidence we have of any steps that they took was this exchange of e mails in two thousand and seven found it j one twenty four and so if the court is to look at the cases that we cited where this issue has come up right this the cases that come down on the side saying that somebody is filling in the cases that come down on the side saying that the government just hasn't made it urgent that the person is fleeing and you know it's our position that in cases like grieve or out of the sixth circuit where they find that the government made efforts i mean they searched the person in the database sixteen times they went to appear in two thousand and seven which we've already discussed he was given the wrong date so obviously i don't think that he counted the only other thing relied on in terms of failing to appear was the twenty sixteen failure to appear which is outside the statute you just heard you heard judge stockmen case bears on his intent later on and i also think the concern you have then is that any time somebody is an undocumented person in america they are going to be considered a fugitive simply because they use a different name and i don't think that that's a precedent that you want to set we need to remember that the fugitive tolling ak is an exception to the statute of limitations argument and so that that's why there is a government burden there and that's why i don't believe that i