time he was arrested in two thousand and eight november october two thousand and eighteen at least six years of that delay is attributable solely to the government's gross negligence and as a court knows under the barker factors the reason for the delay is often critical so let me go directly there and i can backtrack  some of the other issues in the case the government claim of the taking of reasonable diligence is based soley for the six per year period on entering name in its database and while that might be sufficient in some cases it wasn't in this because the government was on notice that there was a problem and did nothing about it why did it when did it  have that notice if at least in two thousand and twelve when the state department issued a visa so they knew he had entered the country in two thousand and thirteen and they discovered that he had flown from germany to san francisco there's a letter in the file and in the appendix that shows that when after having found that in they accept that he entered seven times between tw hundred and twenty two thousand and eighteen without triggering notice on each of those occasions he used his real name the state department had issued a visa he had a valid passport from brazil which is ways that you're saying that they knew in two thousand and twelve that he had traveled under his own name into the united states and that we just said i said it's a warrant i said the state i'm sorry maybe i misspoke the state department had issued him a visa there's no two thousand and thirteen they learned i mean it's a little vague because you have no witness with firsthand knowledge who either prepared a declaration in this case or testified instead they had a supervisory agent from the customs service who was basing his entire opinion on the records but i guess even whatever the evidence was there was any evidence in two thousand and thirteen that they realized it was a problem that the postal inspection service that would be true but i assume i think it's fair to assume responsibility that the state department ice and the customs service is working in conjunction and correct me if i'm wrong i thought the hearing established that they were on the impression even as in january two thousand and fifteen that that it was still going to be captured here's my disagreement when they when they contacted ice in two thousand and fourteen i said and they asked when was the last time a defendant enter the country and they said two thousand and two that was demonstrably false because he had been charged in this case in two thousand and six they also had they also checked finally was two thousand and eighteen that they went back and found and attempted to determine why his name wasn't popping up they had as late as the time of the hearing they had no explanation and as soon as they managed to fix it in some matter but as soon as they did the defendant was arrested and during and i believe used in in two thousand and eighteen so wasn't they didn't enter it but it certainly wasn't alerting them to the fact that he was coming through going through customs with a visa valid passport from brazil not under a false name not to sky's ing it and by the way that's something else i think is relevant what do what is the st day that they were on the postal inspection service learn that was a problem with and c i c i believe two thousand and thirteen but they did nothing about until two thousand i think was no late two thousand and eighteen they don't give exact dates because it's on that with the fact i think that the relevance of the continued entry into the united states on seven occasions between tw country until two thousand and twelve well i don't know that he has the sophistication to know about the statute of limitations and in rivera ventura written by  hears there has to at least an element of the statute of limitations totaling his knowledge that he was fleeing an order or vet and there are two other reasons i will he says that's not even if you haven't been formally charged if you flee in order to avoid the charges that well he just culpable right no because i think there are other reasons so again we don't know the substance of the conversation because the government strays and we said there is no requirement that leave after charges have been filed in order to be considered a fugitive right yes no he's a future to the he can be charged the question is do they make diligent efforts to bring him to justice not that i'm not arguing that he can't be charged one of the fact is whether his flight caused the lame one suggesting to you if someone leaves the day before they're charged for a few days before they're charged the fact that they're not charged as mean they're not culpable for cause ever there the question is whether it is contributing to lose focus on two thousand and twelve to two thousand and eighteen but let me go back because in two thousand and seven the agents called a phone number that they believe belonged to crawl and left a message they said they had some money for him presumably to lure him back he called back poor person identified himself as can call back i think three months later and during that conversation again we don't know the substance of it because the participants warrant they never testified or put in a declaration but we do know it's alleged that he was never told he was wanted so he's speaking to agents in two thousand and seven never to come back and i want to tell him they believe he fled because he thought he was going to be charged they know now he's out of the country they don't tell him that you've been charged has anyone ever come back and they can extradite him well they wouldn't how with a why would they presume that he  going to come back no reason to believe he was because they were totally ignorant at that time as a court brought out that you that he didn't pop in the data system when he did come back eventually so he  had no reason to know that he also said he you know in his original statement they were your checks that were written from spain that were i think bank checks i don't remember the exact term but he said he didn't understand it was illegal now that may have not have been a strong defense but it was something that he said when he voluntarily spoke to the officers they didn't tell him to stay in the country they didn't tell him he was about to be charged they did take his password but there was never any notice that he that he had been was aware of that thank you may please the court jacob fidelman for the united states i'm an assistant united states attorney in the southern district of new york i represented the government in the district court and on this appeal the district court did not abuse its discretion in denying the defend its motion to dismiss  and there was no clear error in its subsidiary factual findings st that the delay was principally caused by the defendant's knowing flight from justice to a country from which you could not be extradited nd that the government acted with reasonable diligence at st in taking a number of steps and investigating the defend its whereabouts and thereafter upon confirming that he had fled to brazil and could not be extradited relying on the n c i c database coupled with periodic continued investigative steps to confirm that that database entry was active and that the defendant had not otherwise appeared in the country let me ask you a few questions if i could along those those line two thousand and fourteen but putting that aside let's say that we we were saying you are you're right that that can be all caused at least the initial delay by returning to brazil and that let's also stipulate for the sake of argument that that the government exhibit exhibited reasonable diligence by isn't working as it should well your honor the the record indicates that the postal inspection service received an indication that he may have received a visa and what they did was they exercise reasonable diligence by following up with immigration and customs enforcement essentially they checked is this true and what they were told and there's no explanation as to why but it appears to be an error by a separate and unrelated law enforcement agency was you know the last time he entered was in two thousand and two which is not inconsistent that's ice i says that in march of two thousand and fourteen that's correct and then the periodic checks  that he had left the country after two thousand and two and therefore knew that he had returned some at some later date ok so let's say we're up we're up to march of two thousand and fourteen and am i not correct that  for over four years u s p i a s essentially takes no further action after the actions taken in march two thousand and fourteen yeah well in january two thousand and fifteen they again confirmed that entry in the n c i c database flagging the defendant as a wanted individual was still valid and active and after that which they already know that they knew the database was not working properly right we're on  side but they did not know that because when they received an indication that he may have entered the country during this period and followed up with immigration and customs enforcement they were told no he had not entered the country because the last time he entered the country was two thousand two which essentially reasonably put them back in a position where they could continue to fairly rely on the n c i c database entry because they were continuing to be told that there was a valid entry in that database and the one time they received an indication that perhaps wasn't working they checked with ice and were told no he didn't enter the country so they were it was entirely reasonable to rely on the database and i think it's important your hono they took a number of significant steps when the defendant st fled and in fact spoke to the defendant and confirmed that he had absent himself you know i don't question that at all when i'm really focusing on is is the so the legal standard is clear that in hindsight the court is not to assess other actions that the government could have taken because there are always an infinite number of actions that a government agency could take in pursuing a fugitive with greater intensity the assessment is whether in light of all the facts and circumstances in the history of the case whether what the government did was reasonably diligent and hundred and forty two thousand and fifteen the government was acting against the backdrop of having confirmed the defendant had fled to brazil knowingly willfully and having periodic lee taken additional steps to investigate whether he had ever returned to the united states and having been consistently reassured that he had not there was a there's a point in the in the history where they received a potential indication that he had flown into san francisco they followed up on that lead they called the hotel that he supposedly had stayed at and was told that nobody by that name had stayed at the hotel so by this time there are several years  that the defendant remained in brazil and that the n c i c database was functioning properly and had a valid and active entry and the government's missed that there's nothing unreasonable after that record has been created for eight or nine years to rely on the n c i c database and there are numerous courts this court has held repeatedly that reliance on the n c i c database coupled with reasonable investigative efforts is sufficient when the defendant is unknowing the years i believe i read that in the record as well right so it wasn't just that they just relied on the database and did nothing else that's correct they they periodically searched various databases driver's license databases of their personal record databases that would indicate pulling from a variety of different sources whether this individual was in the united states taking out loans registering vehicles and things of that nature so so  says he was in san francisco then they would know there's something wrong unless he traveled under a false name but this is just an indication that he may have and if it's true that he may have intended to travel and then they checked and that's that's correct your honor and i submit that that that's further indication why it was reasonable diligence for the postal inspectors to check with ice rather than the state department because ice is the agency that would tell them whether he had in fact entered the country  o i'd like to take a minute and address the question of prejudice because the incorrectly found as a factual matter that there was no prejudice to the defendant here and there was no clear or in that factual determination this was a principle a document based case the documents as the district court said say what they say and in the absence of any concrete and particularized demonstration of how the passage of time impacted the defendant's ability to defend the case the district court correctly balanced all of the factors in determining that there had been no violation of the defendant's right to a speedy trial so unless the so let me respond to the government and several fronts first the government used the word indication i don't know what indication means but either he got visas or didn't get visas i assume the state department keeps records of that and once it discovered that he had received a visa whether he entered or didn't enter it certainly would have been it's not just hindsight to say to the state department let us know if he ever applies again what he played seven other times and they had no indication of that as rude as for ruling on ice ice failed because he didn't enter the united states and a number of occasions whether he ended in two thousand and twelve or two thousand and thirteen or one thousand four hundred and fifteen ice did not notice it as to whether he entered that time movies or the government posits a possibility two thousand and two it didn't leave until two thousand and six well then it would have been an overstay is it entered on a visa and there's no indication that there's an overstay in this case in terms of presumptions anywhere from there are in no case that's if ice fails then and they're responsible for that the law enforcement agency that's trying to check and rely on the system is then not responsible for ice is failure right well they are if they called ice if they thousand and six now he may have overstayed we don't know that with that certainly visas have to i think it's sixty days if i recall correctly but i may be wrong on that but there is a finite time you can stay with the visa ice and then he got other visas  he got it repeatedly he presumably he got four or five other visas they also knew that whether he entered or not that they had information that he had flown from germany to the us in two thousand and twelve they had of tons of flight number so maybe he didn't get on that i don't know but it's a case where the burden the burden is on the government nothing defendant and they will they produce world records that are inconclusive  best and support the defendants position and i think a more supportive of the defendants position and courts including the supreme court have held that there are the presumption of prejudice is available in the  supreme court docket was eight years a delay six of which were the responsibility of the government and there were other cases were cited in the brief where there were three years so you can presume prejudice and the defendant also had said there was another person here in his original statement who assured him it was fine didn't know where he was so there were arguments to be made thank you thank you both for your argument reserve decision