there are two things that went wrong in this case the first was the nearly two year delay between mr bell's indictment and eventual trial the second was the use of illegally obtained habitants at that trial and your honor i'd like to turn first  the speedy trial issues the district court committed it playing in error when it excluded time from the speedy trial act clocked at the january twenty seven thousand pretrial hearing on the grounds that mark turner was an unavailable witness statute specifies exactly when a witness is unavailable for the purposes of time calculation under the statute and it says that when a witness his whereabouts are unknown he can only be held unavailable when his presence for trial cannot be obtained by the governments to diligence let's have a look you're arguing plain narrow review for that isn't that enough for that particular calculation it normally would be your honor  motion so the typical consequence of failing to make the requisite argument in the district court is forfeiture in which case the legal conclusion would be reviewed for plain error and are you arguing that for your sixth amendment claim your speed on speedy trial act claim are both were arguing in plain error if least under the statutory claim the government has also argued that the constitutional claim is waived says he will be a logistical nightmare and i cannot cross examine the government's key witness factor if we don't delay the trial so we can bring him here in person what's he supposed to do those might be circumstances that would support and since justice finding your honor but that's not what the district courts did it relied on an automatic exclusion of time under the speedy trial act and that's thirty one sixty one  is automatic but it also provides a very specific definition for when it's triggered and that's that it's the government's burden to show that a witness on his presence for trial cannot be obtained by the government students what's missing showing a prison under quarantine right she was under quarantine your honor however the government told the court that it could obtain mr turner but that's the when is a question i could obtain mr turner's presence for trial by the schedule trial date by video talk conference and i offered to do that but wasn't there an issue as to whether or not he could be cross examined with the exhibits to fully right mr so huge tone that was mr bell's attorney at the time did express a preference for cross examining in a really strong preference right he did your honor but that's not relevant to the inquiry under thirty one sixty one h three and that's an automatic exclusion of time and why wouldn't that be relevant to his presence it depresses for purposes of testifying including being cross examined because it's the government's that there is no person that would be particularly over the objection of the defense counsel it was over the objection of defense counsel your honor i will note that mr ball orally protested throughout this hearing that he objected to any further continuance as under the speedy trial act and there is no per se rule that says no witness can ever testify in court by video teleconference and the government offered given the situation that mr turner wasn't quarantine that they were willing to procure his presence for trial and in the sense of video rights that's correct your honor and the statute itself at thirty one sixty two eight two says it's the government's burden to show that they cannot obtain witnesses presents by their own due diligence so it is but again it's the president's point is presence by videotape where you may not be able to effectively cross examine someone sufficient it is sufficient your honor particularly in the context of the second to defeat a claim for ineffective assistance of counsel later on no your honor mr bell if there was any crawford claim or anything like that that would have been relevant to an ineffective assistance of counsel mr bell's oral protests would have constituted waiver of that right so there was a plain error when the government didn't even attempt to meet its burden under thirty one this is especially true in the context of the nine twenty two g conviction because everybody agrees that at the very least fifty seven days of on excludable time had already elapsed that one twenty two g conviction so either of the two exclusions of time that were challenging him were more than thirteen days long so if this court finds that either of those two exclusions were in error at the very minimum that requires that the one twenty two g conviction be dismissed you're not arguing that the initial time period up to fifty six or fifty seven days would apply to the counts ever at it in the superseding indictment after that initial time period are you the government more or less argued that there was a single speedy trial clock that said that the court did not rely on that and the government has since withdrawn that my question to you is are you relying on that argument are you saying that the counts that were added in the superseding indictment that were not pending during that initial fifty six or fifty seven day period depending on how you calculate it that those  or fifty seven days should still apply to the newly added accounts we should we it is our position that there is a single speedy trial clock running because in the government's opposition to mr be treated it as if there were a single speedy trial clock but even if the court doesn't agree with that interpretation between both there is no lot that i have seen that would support that interpretation while there is the doctrine of judicial stoppel which was discus where some of the government prevails in a single position and that argues another one subsequently basically can't have it both ways but even if the court doesn't agree with that there were two improper exclusions and together th exclusions themselves are well over seventy days so the speedy trial clock what a lapse on all those counts but particularly this one to two g cal which already accumulated at the very minimum fifty seven days your honor i see my time is running short i'd like to turn briefly to the fourth amendment issues in this case i think it's important to note first that the district court was correct in ruling that there was an initial illegal search that took place in this case the problem was if you have to open the phone your honor you have to sort of look for it it's a plug for your honor and that is important because officer sinks that was the person who the district court ruled illegally searched this phony he had to physically honor but that's not what officer thinks did he open the phone physically manipulated it to get this photograph and then showed it to mr boult elicit a statement from him that was later suppressed but the photograph itself wasn't and the government relies on two subsequent search contain the results of this illegal search does it matter if they also establish probable cause without the results of that search it does your honor but these two weren't applications with out this information from  he was credible and you know bring mr turner in before the issuing judges so that the issue judges could assess his credibility and this court and united states versus united states versus glover in united states versus musgrave morning your honour's may it please the court my name is katherine boyle on behalf of the united states the defendant in mind to have multiple trial challenges multiple speedy trial challenges and challenges to the april and october two thousand and fifteen search warrant affidavits are without merit under the speedy trial act mr bell's failure to file a motion to dismiss the specific remaining time periods the challenges amounts to a waiver of those claims but even if this court were to consider each of the four time periods mr bell grazes on appeal on the merits because there was a a large chunk of time that went by yes your action was there ever a request to exclude that time not that i'm aware of your honor i believe that those the government is conceding that those fifty seven days between april to april twenty first arraignment and then whether failure to grant a continuance would result in a miscarriage of justice and also whether they are to grant a continuance would deny counsel for the defendant or for the government reasonable time necessary for a fact of preparation taking into account the exercise of due diligence this is exactly what judge shadid has done here judge shadid looked at numerous factors including the fact that the united states had just that morning turned over a thousand pages of discovery and eight hours of audio and video recording it's true that the defense attorney at  at that time said that her client wanted to go to trial but she also said she might need to continue based on the discovery she noted the difficulty in meeting with her client and i also would note that this was a wednesday before a monday jury trial that district  judge is about to call jurors in from all over the central district of illinois and has a defense attorney here in the will not commit to whether she will definitely be ready for trial on monday and if anything seems to by my reading of the transcript be sort of signaling to the district court judge that there may be some issues and finally i'd just like to respond briefly to counsel's point that the a district court judge accepted the government's position regarding the speedy trial act judge saini i think you correctly noted that the district  judge did not accept that which was made clear both at the hearing when he made the interest of justice and told the government if you're comfortable going ahead that's fine but i will consider potentially any defense motion on a speedy trial issue  and then in the later order very clear that this was an interest of justice trial got a different attorney for sentencing so i would support total but three before the trial occurred and is there anything in the record other than the fact that he had three trials at the point of trial that he had three attorneys is there anything in the record he would like her to withdraw and then the second attorney was charles shyer and i believe that the july twenty first twenty seventeen status conference mr shier indicated that mr it and then the third attorney had mr toner did take him through the speedy through through the trial and brought up there once the trial period it may have been in part due to the motion for a new trial that was later filed that he switched to a fourth attorney i'm not sure the exact reason for the post trial attorneys which discovery and i would also note that the pretrial motions had been filed at that point either and in this case there actually was a pretrial motion that was partially successful regarding officer sings the search so that's another reason that it seems pretty clear that nobody was prepared to go to trial on the twenty seventh of july and twenty fifteen and it seems that the defense counsel may have decided to no longer challenge based on statements in court today that you need to fifteen twenty sixteen august twenty sixth twenty f thirty first twenty sixteen time period that the government would maintain the pretrial motions for kinder during that period and therefore the speedy trial act explosion was appropriate and then regarding unavailable he's a witness i think your honour's have really hit on the salient point here which is is an appearance by video conference really does that make him an available witness especially in a case like this where a large part of the case does depend on who was at the time a confidential source but now has been identified as mark turner testimony can you have that person who's cross examination is that that as mrs mr toner identified mr bell's attorney is the bulk of your defense can you have that person appearing via video conference from a jail how would you show them the firearms from his coworker at that point there is arctic robbery of turner story first of all it's against his interest to say that he's stolen virus from his coworker even during a proper and although i'm sure he's hoping to get some sort of credit for it but second we are he had in that instance mr turner's coworker had identified him as a potential suspect so the story is already following through and in terms of privation for the sale of the firearms to balance talking about how it's some sort of russian a k we know that the gun that was stolen from the coworkers house was missing a magazine which is sort of a term used interchangeably with clips in these transcripts and essentially they have mr turner talking to mr bell about how he knows a source that could get mr pal clips are magazines for the sake a forty seven rifle so it's very clear what they're talking about and then you also have the added provocation of you can hear on the video you can see from the transcript and hear on the audio and video that mr battle is showing mr turner something on his phone mr turner is giving mr bell his cell phone number and this appears to be a picture of a k forty seven implication by defense counsel that agent nixon is just making this up and not getting confirmation from mr turner is entirely untrue we see an exchange of phone numbers going on we see a discussion of the a k forty seven and it was certainly reasonable if agent our position on inevitable discovery is that because agent next and had known at the time of this february twenty fifth teen audio and video controlled bias that there was a photograph of an a k forty seven on mr  noted that the confidential source confessed that he had brought the firearms and pellet gun to peoria and sold them to a drug dealer by the name of j for money in cocaine finally and that he had stolen them in the first place yes yes i'm just going to say that i didn't mean to gloss over that  additionally it goes over his agreement with law enforcement to assist in locating at the fact the a k forty seven to that and it details his cooperation during the february twenty fifth one controlled by it talks about an inmate at the local jails identification of the individual pictured during the spies as to my table or the nickname tag and it also says that the confidential source identified a law enforcement photo without identifiers this individual as may please the court i'm quoting fetes continuing from mr bell and all of us the speedy trial like in the fourth amendment issues in my time under the speedy trial act it doesn't matter whether there's any kind of comparative fault for the delays that are caused the only question is whether seventy days of an excluded time have elapsed here because mr turner was not in unavailable witness under the definition of the provision and because the government didn't meet their burden of proof to establish that the time that was excluded under that provision was improperly excluded in a push to talk over seventy days at least with regards to count three witnesses appear by video conference all the time even witnesses who are currently incarcerated they can interact with trial exhibits if those exhibits are sent to the prison the head of time they may appear in civil cases all the time but in criminal cases where the defendant has a right to confront a right to cross examine they don't appear by theo all the time and that's the concern is a video appearance going to be able to satisfy those confrontation rights and if not is the witness then unavailable no your honor and that's because this confrontation rights are way before and it's clear from m with the district court that he was not concerned with whether or not mark turner would appear live in person he was interested in having his trial in a timely speedy fashion but you would agree that mr turner was probably the most important witness for the government and i would because mark turner wasn't unavailable by the definition of the statute the only question here is whether or not mr bell has completely waived this argument on appeal waiver is an incredibly harsh sanctions for a defendant like mr bell under common law it's to mean is that a harsh sanction when he and his lawyer are asking the district judge to do different things it's a harsh sanction because it extinguishes his right to raise this now the facts of this case are remarkable partly because he and his lawyer were asserting to the district court two different things the district court chose to engage in a colloquy with mr bell and through that colloquy became aware that mr bell's priority were his speedy trial rights he moved to dismiss this case and speedy trial grounds prior to the unavailable witness exclusion but orally he was raising those rights again and again and again and so for him to now be unavailable unable to raise that issue on appeal seems remarkably unfair how do you get around the circuits opinion in o'connor is that your opinion that we'd have rule from the d c circuit case would be unfair and finally in o'connor this court's reasoning relied partly on the fact that the speedy trial activity places the burden of proof on the defendant but the unavailable witness provision is the exception in the speedy tr portion that places the burden of proof on the government but if they had not been able to show turner the videotape or show him the exhibits including the transcripts of the audio tapes which i think you would key here does that change your analysis it could it could that would certainly make the video conference a less appealing option i think the affection the record to support that that was the case here that again this is a period of video conferences is very common whether or not mark turner could appear in person and i would like to turn to the fourth amendment issues here mr nixon was able to corroborate that mr bell had a criminal history he was able to corroborate that mr turner had participated in a burglary but he was not able to corroborate anything they're talking about a picture of the firearm on a cell phone there he's giving him his cell phone number and then he shows the agent what he says was sent via text why isn't that perfect  for no your honor but it is the role of the issuing judge to look at the facts of the case and draw those inferences by making those inferences himself what inference could be drawn by the fact that bell said on the video that he had a picture of this and then turner gave him his cell phone number after they were talking about texting the picture to turner i understand that you're saying agent nixon to the inference that it was texted so take out agent nixon this information we don't know from the affidavit that mr nixon submitted whether or not mark turner and mr bell had any kind of a contentious relationship or a past history where mr turner would want to implicate mr bell but that's a separate issue than what was actually said on the on the tape the other plausible inference i think that could be drawn is that mr turner had that photograph on his cell phone of a gun that he had taken in his own possession that that was mr turner photo of mr turner's gun and that he was using the controlled by as a way of implicating mr bell by suggesting that this photograph had been texted to him regardless of what we think that it's the issue in the judge's job to look at the actual facts of the case and determine whether or not they add up to probable cause and tree or agent nixon you can usurp that role