on why the distinction between with prejudice and without prejudice has any bearing on the particular relief you're seeking which goes to the presence or not so that's that the article three cases others i understand that cloud of accusations question but in the end of his opinion the district judge said i'm not addressing here any motion to expunge only addressing with or without prejudice and what's at stake with the distinction between with prejudice and without prejudice is the susceptibility or not to be trial to be indictment to be indictment and here if there's a time bar there's no risk of brain dead man and even if there were that immunity without prejudice dismissal could be because of want probabl cause with prejudice dismissal could be for reasons other than a want to probably cause so it just seems to me that the causation or addressability are missing here or that's it that's an argument i guess i'm asking you are they or if they're too but that's contrary to the government's admissions which is we got all of them so sorry your eat you are challenging the probable cause determination by the grand jury on saying is that the government by continuing this case after a crater in new york in two thousand and seven eight great evader moved to new york and finish cratering that that was but they continue to pursue the united states drug dealer that's not in the record but that's of them it's the stigmatizing effect of the grand jury indictment which we can't do anything about plus the pursuit for some arrogant is the government should not be allowed to smell so easily they misled the poor in asking to dismiss the case that they misled the court in barbados in two thousand and eight on words so but that's the civil case so are they in you and if not let's talk about money that's the civil case i don't know how we get past that second hurdle maybe we can maybe we can't there's theories that one can raise but if we can love to get money but i would think of the three tiers that i described for the civil case this is this case because the first year which is did the government do wrong so if there were a timely trial re indictment  quibble however is not a finding that there was never probable cause in the first place well it depends on which what you're acquitted or again but it isn't it just isn't a finding that there was no probable cause in the first place unless there was also some determination that the evidence was false in which case the court would have to go over and above the acquittal and move toward some kind of expungement of harassed or indict right additional relief following a course decision on a motion on with prejudice without prejudice the court will address that request i didn't find any such motion in the record you make such a motion we have feel this and we've been waiting for that result and good morning that please the court the jewish anger for the united states your honour's my colleague's own argument makes clear why it is that his current intitled to the relief they see as he put it they see exoneration and as your own to recognize that's not what even a dismissal with prejudice provides defense the grade really on the on the question of jurisdiction do you think this is more appropriately there is a second indictment and the courts analysis of finality is premised on the pendency of the second indictment and they say the dismissal of the first one is  case is going on through the second one we don't have that here just dismissal is final at least in the intuitive sense that it leaves the district court with no further judicial labor snuffing else he has to of that statute would have to contemplate an appeal by the government from the dismissal of an indictment which would then told the statute of limitations but here we have an appeal from the defense by the defendants from  denial of the motion to alter the dismissal of the indictment so i do think it gets a little complicated i think for our purposes the government would reckon with would essentially acknowledge that the statue of limitations ran in two thousand between twelve minute other than twelve ninety one and an indictment word use midst for some reason you think use completely indefensible or is it really your position that the government couldn't appeal that through twelve t if there were is no very secondary war and i think it's probably fair to say that that would not be a final judging i mean that's the very purpose that covers an active thirty seven thirty one situation otherwise the government would have no recourse if there they receive a favorable decision of the only way they would have recourse to an appeal here is if they were then retried or tried convicted and sentenced and then they would have an opportunity to challenge the dismissal but there  s precedent not in the circuit but precedent and reasoning that an indictment that is dismissed without prejudice in some cases pressured be dismissed with prejudice as a sanction for prosecutorial misconduct and if a defendant were in that position and the limitations period had run so that there wasn't going to be the par you know subsequent proceedings to final judgment sentence is it your position that there would be no finality there from which a defendant could take an appeal there wouldn't be here on earth if the if the defendant moved to dismiss such a challenge the dismissal and argue for dismissal with prejudice and the district court denied that i mean that's essentially where we are now  but there would be by hypothesis and again it's not our precedent but to the extent that if one were to accept a precedent that says sometimes a with prejudice dismissal is the appropriate sanction you're saying well that would no longer be government from repulse future case i'm not sure it does anything it certainly doesn't do what my colleague is asking for it to do which is exonerate his clients it doesn't do that any more than dismissal without prejudice films to exonerate lawyers what about for purposes of precedent and closing the books in a correct manner there's a constitutional violation and prosecutorial misconduct and the district judge just blinked and didn't find that it was so and the court looking at that said that's just that's just error and the defendant looking at that says i'm it's not about me basing for the prosecution it's what happened in this case and how that should be reflected also be symbolic in the sense that you know as here a dismissal without prejudice the government is learns from its mistakes thankfully and looks at the situations where we prosecute this you know we now much more serious you're still you still think that there's no finality if for malady for purposes of correcting the record on that there's not really because the record that would be sought to be corrected in that instance is of the reputational injury that you contemplate in that hypothetical i don't think could be addressed by a district court in a dismissal even a dismissal with prejudice and that's because again the injury has already found probable cause tonight in the supreme court  of nova scotia situation where the defendant has argued that the indictment was obtained through for example perjured testimony the district court would that have to determine whether in the absence of that her testimony there was still probable cause today we don't have that situation here short of that the fact of reputational injury that results from a grand jury's properly constituted grand jury's finding probable cause simply cannot be raised by the district court even if the district court wanted to dismiss indictment with prejudice that's caylee be that as it may what the case i'm thinking of is the fifth circuit case in salinas six ninety three second three forty eight where the court of appeals reverse court's dismissal of an indictment without prejudice because it became clear that the reason that the government stopped the dismissal without prejudice was because in like the jury they got impound and the that the district court said without prejudice the court of appeal said no no that is not ok and the sanction there was just for the court of appeals to say that's going to be dismissed with prejudice and the question is is it your view that in the posture that we have here we could not make that kind of determination in order to make clear that that is a showstopper and that kind of conduct by a prosecutor is a showstopper you could make that period on it but you could only do it after the defendant has been convicted and sentenced and then appeals from following final judgment appeals from the district court's denial i'm sorry dismissal with prejudice as opposed and we set them for their case i'm sorry our brief misconduct by the government and a desire to harass the defendant all those reasons we set forth the question is if the district court declines to do that and dismisses without prejudice is that if you view the first indictment in isolation the problem is petitioner has not been agreed paragraph to if you view the two together is a single prosecution no phonology yes you're  t and i would think judge edwards is absolutely right as to the second piece of it which let's just leave you you're standing or injury or your honor i think i think these are wrapped up together twelve and i i don't see the defendants having sought expungement of her record and the arrest here to place in barbados not the united states or any expansion of an arrest record would have to take place in barbados  court and that's exactly what the supreme court's and kaylie to erase the fact of an indictment on probable cause by properly constituted thinking expunge the record out not to raise the fact but to say the record of that is causing harm we're not going to go into its merits but for reasons orthogonal to its merits having to do with perhaps you know misconduct the judge things that it's a medial question in terms of future looking harm something that is not even an indictment on its face i mean if you've got somebody who's imposing i'm sorry posing as a prosecutor and you know is falsely obtaining an indictment from a grand jury i think that's not an indictment and the jury does credit those people and they do under the process he set up i'm just wondering what your position is on where there has to be some remedy for the harm that might flow from that there is i'm just wondering there that would false and made up i think a district court would have to find that in the absence of that evidence there should not have been an indictment but if the district court finds the opposite that as to why that indictment was still properly return scotia then we have it properly returned indictment and that is an existence of fact that can and can't you race it would have to be a dismissal of the indictment with prejudice with the reasons given that it was because the evidence and then the defendant goes to the district court and asks for the relief to pillory suggesting and says i want this expunged with the defendant have article three standing to make that request just based on both this reputational harm from both the fact of the aband you know a little bit hard to get around but that the cases make clear kaley makes clear a district court can't raise the fact of an indictment and the finding of probable cause that supports that indictment by a properly constituted grand jury grand jury is while i apologize if i did that you may have others misunderstood your question the question is that at this point defend its return to the district court and say everything that was presented to the grand jury was perjury and falls and so i want the fact of the indictment or i think that at that point the district court would have to conduct it again i'm not sure exactly what the mechanism would be the motion would be styled as i would have to think about that but i think regardless the district court would have to conduct some sort of bank of nova scotia analysis and if it's so so the defendant in my circumstance would have article three standing to seek that relief before the district court i guess that that's probably right ok so now why if for article three purposes why would the defendant have a sufficient andrey to seek that relief before the district court threw that sort of motion but not have injury not have standing to appeal your honor second injuries the same but we have not made a pure article three lack of and does not have charges pending against him has not been agreed has received a favorable ruling from the district court and has not been agreed to for purposes of appellate standing which is a slightly different concept from your constitutional standing in the thought that when you were responding to my earlier question that you had said that if a prosecutor had presented false evidence that the remedy for the defendant and it was a situation like this where after the indictment was dismissed the limitations he was going to run so there was no car prospect of retrial but there's false evidence and the defendant and or the court the court of appeals thinks that it is in the interests of justice to have the lack of support for the the grand jury did made clear on the record i thought your answer to me was there would be a dismissal of the indictment and the court could give the reasons that would fix that problem by saying you know i grant the rule for your motion to dismiss indictment because the evidence presented by the government was false that right yes that's appropriate it seems to me that the same thing could be true when the indictment is dismissed without prejudice that actually you could say when this prosecutor presented false evidence but this defendant may still be a criminal so i'm going to dismiss this without prejudice with that reason and let the government get its act together get a new prosecutor on the case and within the time period go after this by the lack of articulation of reasons that redress his complaint and whether they asked for that appropriately is a separate question but i just in terms of this question not analyse and agree the ball in the aggrieved sense for the defendant with respect to any relief that he or she might seek tangible relief that he or she whether without prejudice regret and with respect to waving this document around and saying there was never any probable cause to indict me in the first place unless we have a ruling where the district court said the conduct of the bank of nova scotia analysis and in the absence of the false or perjured testimony there was no evidence to support the grand jury's probable cause that's the situation which the fact can do that and i appreciate understand the court's questions and in all of these contexts i will of course will use the group right and i think that the news then and i don't recall them using standing i might be subject to being corrected on that you know yes i'm sorry standing to have how we think about the scam read a case which is the one your own cites for the proposition that a prevailing party often or sometimes has standing to appeal and the court in the course of analyzing that seems to say there's an article three limits on a prevailing party standing to appeal and then above and beyond that there is what the court describes as rules as a matter of practice and prudence on specific way on appellate standing is is that the box that you're trying to fit your is one more question at least for me so if a district judge in receiving a record in a case and a rule for your motion thought that there were in the reliability of the evidence that became apparent after the grand jury acted would it be appropriate for that district judge to say to dismiss this indictment with or without prejudice because defects in the record arising after the indictment make me believe that there is at least a serious question whether there was probable cause to support it so it's sort of i mean now it doesn't limit to civil dismissal a complaint without prejudice complaint you show me doesn't doesn't state a claim i'm not saying you couldn't so could could the district in fact wouldn't be good practice for a district court to specify that what the court understands to be the reliable record as of the time of the government's motion to dismiss doesn't add up well your honor of course there's a i think there is a question of whether evidence that has arisen outside of potentially after the grand jury presentment bears on the question of whether the grand jury has sufficient evidence before it to determine that there is probable cause to believe the defendants committed it might not just bracketing the grand jury what it did after time the court could say it's transpired since that and therefore as we go forward we need a valid indictment the government recognizes that government's going to dismiss asked to dismiss this indictment but just to guide everybody and sort of make clear what the state of play is i the district judge think that you don't have enough if you were going to just bring that same case tomorrow to a new grand jury no your honor that wouldn't i mean that would not i don't think that would be permissible and here's what really not be that would not be the most good indictments are generally dismissed for legal insufficiency right because otherwise i mean the government once an indictment has been returned has the right to bring its case before the jury and that has now the district court has to wait until that happens before the term in that there is insufficient evidence to actually find the defendants guilty beyond a reasonable doubt if the diff if the district court is determining pretrial the indictment was sufficient insufficient to find the defendants guilty beyond a reasonable doubt that's an inappropriate use of will twenty nine if on the other hand as i understand it hypothetical the district court is concluding pretrial that there is insufficient evidence to support the in the indictment then again i'm not sure what sort of evidence is pouring that finding by the district court if there are some motion again going back to something i've said many times by the defendants that there was false or perjured testimony before the grand jury then the district work we have to look at that look at what was presented to the grand jury and determine whether if you excise the false or perjured testimony there was nonetheless sufficient evidence to indict the defendant's obviously the district court at that point could find no one to excise all of the false or perjured testimony there is insufficient there was insufficient evidence to indict these i didn't i'm sorry i didn't get in your question that there was an actual claim of a claim of false and perjured testimony before the grand jury and a finding by the district court that in the absence of that testimony there was no there was insufficient i'm sorry i wasn't clear that's exactly what i was posit and couldn't couldn't and in fact shouldn't the district judge so specify that that the result of what we found out since the indictment is that there wasn't enough it didn't add up to in order to  would have to be some non fossil but i'm not sure that i'm sorry this is where i'm getting i'm resisting who it's only for this reason and hopefully is this to assist you i'm not sure how that would be based on anything would be found out that leads the court to conclude that in the absence of that impropriety the grand jury would not have been indicted and then under bank of nova scotia examining my situation fascinating so typically dismissal whether with or without prejudice is something of a black box but it doesn't have to be and in fact sometimes it can be explained and sometimes that explanation can guide and mitigate potential harms that might flow from don't i hate to be yeah that's right i have to to fight with you i'm not trying to i don't think we can make that final step i don't think we can i don't think the defendant can walk around with a document that says there were improprieties before the grand jury and therefore actually innocent i mean someone or a bit of these offenses and that's the defendants here are the law says the defendant can't do if a properly constituted grand jury found probable cause to issue an indictment that means count one wasn't these guys they said we got all the other people that they did count on the j f k in addition when they said this case is only about count two that was not with respect to these defendants will did count one they're only charged with count one they didn't do it do you have any precedent for a court of appeals issuing any kind of declaratory really even close to waves any precedent for that  cannot just take you back to jurisdiction we we've asked some tough questions on the other side but my question for you is we do have this supreme court opinion par and it does seem to set the first half of the opinion seems to say if you assume only one indictment that's been dismissed without prejudice an appeal will not live because the titian or has not been agreed so far as petitioner standing to appeal is concerned it makes no difference whether the dismissal leaves him up and a verb across fusion he has to wait until reprosecute and convicted and only then will you've been agreed to and that might or might not be consistent with other lines of cases and theories of standing and such that have evolved l and your cases on reputational standing and so on but the holding of the supreme court so how do we get around that are alleging injuries that mr hard in the lead and he was trying to get out of something and yes they they divided it up but i had to go back and look at the declaration that was admitted are but he didn't say like it's a pretty categorical statement that agreement agreement doesn't happen until reprosecute sion and conviction so i mean in terms of agreement with respect to prosecution it doesn't happen until the prosecution not to the extent that what your clients are asserting is an accompanying harm that has to do with reasons that's what i try to say yes i you know i would i'm really not seeing in the record notwithstanding the district judges invitation any motion for to the nature of what the grandeur if i may are certainly getting that so we are we appeal because i mean we won't get to know the school should we have to we will move from his mind if we have to but we think we've got all we need right employment and also with mr gaskin there's and there's an integration consequence and that but that flows from the prosecution like the fact that they were indicted and then  of the law allowing of cases on reputational injury which say that sometimes it qualifies as an article three injury but not when the reputational harm flows from an otherwise moot aspect of a case so just to make that less abstract right the defendant who is harmed by a statute that remains on the books that brands the defendant a child abuser can challenge the statute right but it's still on the books or the judge who is harmed a misconduct finding that's on the public record can challenge the misconduct finding that seems different from what we have here where you say your client is harmed by an indictment and or prosecution that's that's been abandoned and is dead is dead can be i thought your your two examples  defendant comes in and says well yes but i want to declaratory judgment that it was a bill of attainder because i still have this harm of having been labeled a child molester and we would not allow that i think that reg i don't know forgive that seems analogy but you're the prosecution has been abandoned now but but it's still illegal if you will drugs and the government still said these guys did it and then the government later admitted they didn't do it in there fighting it for some reason in a prosecution that's no longer pending but it's the shadow of it still lingers in barbados i don't know if it should but it does