behalf of mr nixon today and we're here because we're asking the court to review the decision from the district court as to whether mr nixon sixth amendment right to a speedy trial was violated and it's our position that it was obviously the tenth circuit has laid out certain guidelines and we believe that the court following not only the marker test as well as the guidance given in spots are that the court's decision was an error in this particular case mr nixon was in custody in the denver detention center a mere one point four miles from the location of the u s district court just across the street and in that particular case the united states government decided to charge mr nixon with a violation of a previous offender statute and that indictment came down on june seventh two thousand and sixteen it wasn't until may eighth of two thousand and seventeen that the government took any action whatsoever to have mr nixon brought before a magistrate for his initial advisement and that was when the chords or that was when the u attorney on may eighth filed the writ and the court then issued a writ to have mr nixon brought over on may tenth of two thousand and seventeen it wasn't until june fifteenth that mr nixon made an initial appearance and at that initial appearance it was still mr nixon was still without counsel in the record i was there because i was contacted by the office of the public defender who was doing intakes and they contacted me as well as simultaneous to whereby we say we've been contacted if the public defenders have a conflict if there's a reason which would make sure mr nixon gets counsel and ultimately we were appointed to represent mr nixon on that matter but he did not have counsel until that date actually a couple days thereafter when the point was done and he appeared on the twenty second of june two thousand and seventeen for an arraignment tension hearing of that matters of that nature once he had counsel obviously we entered pleas of not guilty matters set before the court and the trial dates were set in accordance with speedy trial act and obviously the six amendment in all criminal cases your to use that one has a right to a speedy and public trial and the burden is on the prosecution to bring the defendant to do the court even the court has some responsibility to that judge daniel who made a comment that his first contact or first knowledge of this case was really pending was when the rivers filed so i think the court knowledge that something was there and something had for lack of a better term gone wrong and so in the barker case mark every window supreme court tells the courts to look at the length of the delay here from the time of indictment to the time he's brought and ultimately a trial date which was that was a year and four months as far as the end date for determining the duration of the delay would we don't do we look at the date that the motion to dismiss based on the on the sixth amendment violation was did not he said cases that's the that is the issue because one proceeds to trial in this particular case i think it's a little unique because it was a conditional plea in this issue it was to be brought up on appeal there's case law out there that seems to indicate that it's really from the date that the trial is set to seventy days from the date of the arraignment and that's for the year and four months comes but even if you go from the date of the indictment to even just initial appearance we're still talking from may tenth of i'm sorry june twenty ninth was the date of june seventh is the date of indictment his first appearance is june fifteenth or twenty seventeen which is still thirteen months from now from the time that that he was indicted and obviously you know when one is indicted that's the united states government telling this individual we're here we're coming to get you and we are ready to proceed and that particular case you you wait ok there's not like mr x was going to walk over to the courthouse on his own and say that he could do that and we look at the reason for the delay and in this particular case the government articulated their reason was simply we didn't want to interfere with mr nixon state case and i think that's a little disingenuous but they did the government has several options at this particular case is the actual impatiens was not running at all they could have waited to see what happened in the state case and then indict mr nixon they didn't they chose on june seventh of two thousand and sixteen to indict him they didn't do anything until may  following year which was the writ and but when they did bring in one of our it he was then in primary federal custody so the say that we don't we don't want to wait we wanted to delay bringing him from the state and when it's in federal custody to go back for the for the trial date so there is really a question at that particular moment where we were actually going to see mr nixon for his trial so what should the government have done the federal government that you had done say they did not  well you know i think what the government should have done was look at the case and the dates and statute of limitations there's a five year statute of limitations in this particular case if they're worried about interfering with a state case or something along those lines which i mean they say that that was their concern but it wasn't because they did interfere by bring it really come back to the federal courts or bring to the federal courts they could have simply waited they could have waited and then gone seek an indictment  state case was over so charging that that's one way they could have delayed their charge yes your honor the simple way i mean they're in control of that mr nixon doesn't get to say you know let's not go just yet they had they made the decision and they're aware that they know there's a five year such limitation there was no rush and so and so what the federal government did do doesn't prejudice your client any more than had it simply delayed appearance it does complicate things because they're now going to meet be maintained in federal custody the once the federal government has an individual they don't like to give them back to the state and frankly it was rather unusual in this particular case the court asked whether well what did you do miss rice did you or represent mr nixon on his state case did you contact the federal government no in my experience if there's been a state case the feds pick it up they merely swoop in and get the individual on that writ and they don't give him back until the federal case is over so even to some point and state cases where speedy trial is ticking doesn't that support the federal government on the second parker factor the reason for delay that it did not want to do well your honor i said if they didn't want to do that then they didn't have to indict when they did it and also had they brought him over immediately we could potentially resolved that case sooner from june seventh date of indictment mr nixon didn't go to trial until august of two thousand and seventeen if he had gone over to the u s district court had been arraigned he would have had his trial within seventy days this was not a case of great complexity or any type of excessive ends of justice would be required or a motion for complexity would have been asked for is a rather straightforward case so even if that had been done that would it could been resolved and normally and if we have companion and and federal cases the goal is to try and get the federal case resolved as expeditiously as possible because of sentencing guidelines you want that federal case resolved first because if there's a conviction state court you have other federal sentencing guideline points in hansen's potential haskins that could come into effect so had he been brought over because it dealt with it we could have you know where there's going to trial or a plea it could've been resolved  expeditiously on or does a matter that this really the federal charge really is a simple one but a simple as they come the felon in possession charge no what is the prejudice there was not evidence lost they were not witnesses no longer available the elements are so straightforward you're a felon you had a gun the gun problem across state lines in here and in this particular case the motion to dismiss was held prior to the  kill area they go to an area which they believe they're suspected activity in individuals either walk away or flee they allege that something was thrown and they believe it was a handgun and they believe that it was mr nixon that at the time the motions were filed yes a very straightforward case they say they have an officer who said they saw mr nixon throw something and when they found it could have been there that particular area possibly but as this case developed  knew that there was this charge looming not knowing your honor when the case was dismissed and in state court it said that the motion to dismiss which is part of the record said that we're dismissing our sta case the feds have picked it up this forthcoming so if you don't like mr nixon never received a copy of the indictment and said we'll come get you when we're ready but he didn't know that there was a forthcoming federal charge he'd been advised of that that by the dismissal of the state court case in favor of the government here how do you how do you have you know with a dog i do i believe that you have to look at the particular  lines so the right to counsel is its fundamental right and and as soon as he made his first appearance council was appointed and they started exercising his rights and yes to say ok i have a right most people don't appreciate or understand most of the rights that they have let alone in my giving it up if i'm doing something much so your way in one way is supposed to do and but as soon as you got counsel and had the federal government picked him up shortly after indictment i'm not saying they had to come that same day or within the next day but within a reasonable time more than fifteen months then he would have been given counsel and he's the type of individual that the courts always regarding prejudice to the defense in frias this court so that prejudice is the most important of the four factors and in fact in that case this court found all the first three all against the government but still since there was no prejudice found that there was no speedy trial problem this court in markheim which is a twenty fourteen decision pointed out that in most circumstances specify prejudice will have this right to claim now the kinds of prejudice or the categories of prejudice which the courts have recognized or three fold in sort of order of importance minimisation that the possibility that delay will hinder the  and in fact this was kid conceived below when the district court was going through the factors and this is volume two pages forty six and forty seven so what's the status of the defense that well he's on a no bond hole in this murder charge in the state and the court said well i guess we don't have oppressive preach trial what about they moved on there was never an objection there was never a hold your horses your honor this is a serious thing so we on that point to the extent that secondly there was discussion in the briefs oh i didn't hear that argument today about good time i'm happy to talk about that time but the key things on this is that it's pretrial incarceration which is which is the concern here not post conviction incarceration and so there's not a good time component to oppressive pretrial incarceration is this par for the course is this just how things work with the u s attorney's office in colorado or elsewhere that this one slipped through the cracks in what respect you're talking about talking about the gap between the the charge and the arraignment yes i think that's a little unusual your honor but i want to i want to be clear on this point you know the defendant was standing trial on was murder one attempted murder one assault with the with a deadly weapon you know there was there was a series of serious state charges that were pending and actually preceded the federal charge and it's not uncommon in the spirit of comedy to let those things play out on the state side and so you know could that could the federal government have in rein him sooner could have yes i think at most this would be a case of benign neglect and i'm not even sure i would put that rush on it would you do it all the same way again  with the benefit of twenty twenty hindsight probably not but again we have the benefit of twenty twenty hindsight so what would you do  a might have monitored the state proceedings a little more closely and seeing if there was an obvious earlier place where he could have been arraigned but let's let's come back around to what went on in the state case nine so it was clear the state murder trial was proceeding how quickly that was proceeding given what was going on is is very much it's a judgment call you know if i'm a state prosecutor do i think i'm going to get this to trial and six months is going to take me a year you sort of don't know two year into it so i thought some of this twenty twenty hindsight thing i think is not really the correct measure  evidence or the un availability of certain witnesses now we don't have that here we don't have a claim of that here really you know the only what we have is if i've been brought over to federal custody sooner i could have invoked my federal speedy trial act right sooner i'm not sure that advances the ball very much because time in state custody awaiting trial is excludable under the federal speedy he comes over is a reign invokes his rights he's still in primary state custody the fact that he's been written over for purposes of arraignment doesn't change the fact that the state has primary custody and has a right under the weeks decision and  so there's no disadvantage to the defense whatsoever in that fact so for sure on this one i think illustrates this point insults are the prejudice of sort of twofold one in that case the government a parte before the magistrate judge while the defendant was still in state custody and secondly and perhaps more important or only his accomplice was brought in and turned on him and cut a deal and that le him seltzer the defendant kind of hanging loose at that point in fact the district court and this is a footnote insults or the district court observer gee i wonder what have been how this might have played out differently if mr seltzer been brought in first rather than his codefendant and so there was how will prejudice in that regard it's frightening as you couple of questions about that the first is there is some discussion in the breeze about whether or not it is a valid or permissible argument for impairment of the defense the inability to invoke a speedy trial clay under seltzer even though it was not the asked the court for speedy trial on his own and asked for counsel once on his own and so we don't presume that defendants don't know that they're sitting in a in a jail cell and nothing's happening and so there's certainly that ability to assert that right even if you're an counseled and again as i as i pointed out in this case this defendant with counsel waived speedy in the state murder trial and so it was well aware what speed he was what happened you know if he had been charged rather than go to that right i'm sorry and you're saying that it you don't know what would have happened if if seltzer had been char had been charged first rather than the codefendant you know one of the things that was that i think markedly separate seltzer from this case and from frias was the fact that the defendant there was being held in state custody after the state had exhausted its remedy for him he was originally found in state custody they the government didn't didn't charge him at that point kind of let it go for a bit because he was serving a state sentence and then they launched a federal attempt to taint her and so after his state sentence had exhausted he tried to the other i thought he had a couple of questions but so one of the questions is on which you had made or this earlier argument that well even if he had it been nixon had been charged earlier so we don't know what would have happened this elsewhere would have been charged first will it that kind of what happened here because you know we don't know what the response would have been to an s t a claim maybe your predecessor in your office would have said well the seventy days you know is extended is excludable times he's already still in state custody or whatever and and mr nixon's lawyer would have maybe argued x we don't know what x would have been we don't know what the district judge would have said i think a lot of what i agree on and i think this i think i don't want to put words in your mouth judge phillips but i thought you said something like this earlier in the argument might with my opponent this underscores why it made sense for the government to wait because the kind of questions you're asking while there's the murder prosecution well down the road now right now we're trying to juggle ok which which one's going to go first and what do you know how we approach it now if we assume that of the ten it would have played out right away again with twenty twenty hindsight maybe it wouldn't have been an issue but i don't think that's what barker versus wing go ask us to do to kind of put it look in the crystal ball and say what if coulda woulda showed you know in a perfect universe and that's why coming all the way back around why even in frias even after the government failed the first three prongs we look at what was the prejudice what was the injury to this defendant as we know it in our twenty eight day he got credit for all of his state time including time for the federal charges even filed so he only spent six weeks in federal custody through some of these other things if we want to armchair quarterback it in the end there's no harm to this defendant and i think that's what speedy trial is intended to do is make sure that a defendant gets promptly as promptly as we can manage from the point of charge to a resolution of the charges with no hindrance to the defense and i think that occurred here couple other points just ten generally on this we had a discussion in the briefs about the activity of the state docket the defense pointed out that well gee there are only seven hearings to look at boy and one of the record of pages seventy one eighty four which has the state docket there were one hundred four other actions in this case thirty six of which were initiated by the defense so is a pretty active docket over the course of about a year and some change i think that only have a minute left if there are no furthe well you know the murk up the prosecution is complex there were a lot there was a lot going on and he says yeah but almost seventeen three and a half months before it was supposed to go to trial they issue you stake or they decided to bring him over at that time so there really undercuts the government's supposed reason for weight well what he wanted to deal with it we're all mindful that there is kind of a one year touchstone here and  obviously you know barker tells us that essentially if it's less than a year there's nothing to talk about and we probably aren't here having this discussion yeah i'm not right about the first double second that the government's reason for the delay oh i well again i i think we were trying not to interfere with the state of the state case but i think at that point after it went to year and you're looking at that being something of a touchstone on the test you bring them over you know should could we done it sooner but a thing i made this point my brief if the government had done this at eleven months twelve months thirteen months fourteen months were satisfying really what speedy trial is about you know that year is operating to force that action like i said it was a done perfectly this case i can't say there was but i think like many many cases in the rough and tumble with two different sovereigns and multiple charges you try to work through it as best you can and bottom line this defendant wasn't prejudiced you can't show any prejudice and we would ask the court to affirm europe our our position is is that mr nixon was prejudiced because once he's indicted you know the general speedy trial attaches when the defendant is either arrested or indicted whichever occurs first and he was indicted and he should been brought before a court and it had an initial appearance and he would been given counsel and counsel of that point can make tactical decisions do we want to wait do we want to go forward the government has like a steamroller it's a little slow to get going sometimes but if it gets rolling you may not want to be stand in front of it oh i have seventy days maybe they're not ready we don't know because he wasn't brought over and given counsel and to say that there is no prejudice when you have a right a fundamental right that would be given to you had you been brought to court and you were denied that you denied counsel that is prejudice well but what about his argument you may have prejudice but what about the argument that funeral or get out for medical reasons supposed to bond he had a bond person and initially try to do that it wasn't as though mr self was going demanding to get me to trial mr seltzer wanted to get out so we can go see his mom before she passed away it was really set i don't think he understood that in federal court you can't go post a surety bond and the reason why he had a state court surety trying to buy a motions and it was stricken because he was a licensed attorney and this particular case