trial act rests on two very flawed theories the first is that the speedy trial act was told in definitely by a process a motion made by julio cheney died in august of two thousand and fourteen and that the flaw in that is that mr trinidad and his son young so were not co defendants spent section thirty one sixty one six only applies where code they are in fact co defendants the federal rules of criminal procedure give the government two ways of making defendants co defendants one is rule eight be they can be joined in the same ind the other is rule thirteen if they're in separate indictments the government can move to consolidate the two indictments the government says as a practical matter everyone knew they were co defendants they had been treated as such he was at least one joint status a conference in which counsel for mr trinidad attended and that is it it's unduly formalistic to look for that kind of joint or they said that they were going to indict everyone on the fact that they didn't indict them all together never should really be of no import by my eyes that ron well because you're out of the the informal understanding that may have been prevalent is not a substitute for the federal rules of criminal procedure and the procedures that are available to make defendants co defendants in fact at the pretrial conference is there is no clear determination and they couldn't have been that there would be a joint trial because there had been no time for making motions yet and therefore there was no opportunity for motions to sever there was there were multiple defendants in some of the indictments my client i was assigned after the first to trial conferences your honor so i wasn't there and i wasn't party to any understanding and therefore that's another example of why it's not just formalistic in order for me as incoming counsel to understand what the status of these various seventeen different indictments are there should be queerer court orders to determine who's in and who's not it and they weren't there were no such clear orders and how many people were indicted in the end under seventeen and will never seventeen seventeen and i believe that's correct and there were there with any of the other defendants now and so and certainly not with my client but i don't think with any of the other clients any of the other defendants either so that's the first basis on which the government argues there was no speedy trial act violation the second is that the thirty day rule set forth in section thirty one sixty one h one age never was triggered because the motion my client's motion for a bill of particulars was quote never under taken under advisement which your honor frankly is is frivolous because judge what decided the motion how could she have decided the motion without taking it under advisement the fact of the matter is that in february of two thousand and fifteen the case was for the motions not just miss some yentas but the other motions were fully briefed before judge would she issued a decision in october of two thousand and fifteen and in that period of time the speedy trial act started running again after the thirty day time period in thirty one sixty one h one h and it expired before the decision on those motions the other issue your honor is what is the proof the appropriate remedy with what result with with what result on the motions expiration yes i would i submit that the motion the speedy trial clock spee trial time expired in july of two thousand and fifteen you have about three months before the decisions therefore and therefore the judge should have dismissed the indictment now we can talk about whether it should have been a dismissal with or without prejudice to do as for that yes i asked for a dismissal with prejudice the judge denied dismissal at all and i would submit that did not properly consider the issue of whether it should be dismissed with prejudice because she did not consider the effect the seriousness of the offense is a significant factor in determining whether to dismiss with or without prejudice here the judge would consider it not the conduct and the offense charge against my client but the overall scheme of what she was a very small part and therefore by determining that the millions of dollars several million dollars work tain in the fraud and therefore it was a serious charge she did not look at the fact that my client had a very small part of that it did do you have a go ahead motion for severance that no your honor and i'll tell you why was it i did not make a much i mean a motion with other defendants mood for severance i did not move to severance because the defendants in the indictment with my client were pleading guilty and therefore there was nothing to sever they i had intice a pated a possible motion for severance for severance and i actually discussed this with counsel for the defendant was a defendant who was named only as the only defendant in in the indictment in which he was indicted and i argued that she had no basis for making a motion for severance because she wasn't joined with any other defendant in the same way i could not make i do in my view could not make a motion to sever the case from my client's case for mr trinidad because my case was an her case was not joined with mr trinidad  contemplated a motion to sever counts of the indictment in which that related to a part of the case in which my client was not and involved in some of the other defendants in that indictment were but in my view i did not have a basis for moving to sever my client from the people with whom she was not joint and joint pretrial conference i did after the motions at the first pretrial conference that i tendered your honor was after the motion was did the motion judge would apparently took a different view that then my view that my client was never joined with mr trinidad and trinidad didn't go to trial actually michael my right and i write that there was only one  the second one i believe is the one that was attended was not i again was not yet assigned i was assigned at the conference i was not at the conference personally because i had been notified that i was being assigned but the  that i believe was the only conference in october of two thousand and fourteen where mr trinidad and ms so i mean we're both present your i see that my time is up i do want to therefore thirty one sixty one six did apply and you want to see before you two of the yes you're right i just wanted to address the issue of even assuming that a dismissal without prejudice is the remedy dismissal without prejudice i would submit that there is a basis for this missile with prejudice i think that as i said judge would deny consider the seriousness of the fenced with which my client was charged but in any event was no speedy trial violation as judge would found in a written decision she made numerous findings relevant to the issues on appeal she found that the time was properly excluded because both a co defendants motion that's trinidad's motion and the defendant's own motion were pending and they were not yet fully briefed and she was still awaiting further briefing and contemplating a hearing given the pendency of those motions  appropriately treated as a codefendant my understanding is he was not the prosecutions were consolidated they were never indicted together there was your brief argues that as a practical matter and i believe indicted himself but failed to join them what why is that don't we need some kind of bright line to look at to determine who's actually codefendant who isn't i agree a bright line is helpful here there are actually several bright lines out codefendant do all of this is just that the first of numerous is considerations the judge would took into account so first they were all they were all defendants charged in the same case before judge would although they were charged in separate indictments they were all they all appeared before you for her in the same broad case they received the same discovery they were charged in the same scheme and then to remove any conceivable doubt that may have persisted judge would found  at multiple conferences conferences attended by all of the defendants that were charged at the time in the case she found that they were that they would be jointly tried so at the first conference in january of two thousand and fourteen your honor that found that there was she ordered she ordered that there would be a joint trial date in february on february twenty third two thousand and fifteen and accordingly excluded time for all defendants then in july of two thousand and fourteen at a subsequent conference  by that point defendant trinidad had been charged as well in the case that conference was attended by both sarmiento and trinidad as well as all of the other co defendants in the case and at that conference judge wood found she ordered again that that february twenty third two thousand and fifteen trial date would apply to all defendants she would not entertain motions for adjournments for any of the newly charged defendants and again she reiterate that time was excluded for all defendants believe sixteen defendants in the case charge at various points the plan ultimately is that obviously the government anticipated that most of the defendants would plead would plead out before any trial the plan all along in this was made clear at the very first conference the plan all along was that ultimately when it came time for trial and all the parties in the court were aware of which defendants would actually go to trial the plan was to to supersede with what colloquially called a trial indictment so an indictment that only includes the women defendants only includes those relevant allegations again that was the plan from the beginning and that's why a judge would ordered a joint trial date all along since from that first january two thousand fourteen conference and the government stated its intention to do that at multiple conferences there was never any objection by any any defendant any defense counsel about the nature of this procedure that ha he was kind of off in a different path entirely he didn't want to have counsel he was indicted in s l eleven and then the government we charged but didn't include him and they re in the new indictment there was never a consolidation motion there was only one joint status conference that he attended with everybody else i i find it difficult to just look to the number of the case because i find no basis for that in the federal rules to find that they were actually co defendants for speedy trial act purposes so why is that wrong i'd like to make two points first again we're not relying solely on the docket number but again judge would eliminated any doubt by ordering a joint trial date including at a conference where both for me and two in trinidad were present with their counsel the reason why trinidad was not charged in one of these group indictments there were some there were some unique aspects to his case principally the fact that he was also facing pending charges in two other federal districts and the government anticipated that he would ultimately plead guilty in the case here as he had pled guilty in in one of the other cases in one of the other districts and so ultimately at the time for making the this is a proceeding indictment of july two thousand and fourteen at that time he wasn't included in light of those considerations however despite that there was still a joint after after that group indictment that did not include trinidad judge would still held a joint pretrial conference with all of the group defendants as well as with trinidad and i was at that conference in which which one is that this is the july seventeenth two thousand and fourteen con my notes suggest that's the only one in which sammy and two in trinidad both attended that's right your honor so that's my point is that even though by that point there had been a superseding group indictment that did not with all of those defendants president including trinidad she said if we're having a joint trial in january for inappropriate for mr mann to move to sever that wouldn't that would have been an option and that's exactly what another  in this case where of that but there was a lot of discussion about whether that was premature because they weren't actually co defendants and so it was unclear that that actually qualified one could move to sever if you're not formally asked in a consolidated or indictment situation by i think it was appropriate for a couple of reasons one your honor as a judge would found she reached the merits of the severance motion that was made by to steal because there was similarly situated to trinidad in the sense that she still was on again on a solo indictment and yet made that motion to sever from all of the other defendants in the case judge would entertain that motion on the merits a second reason why trinidad could have made the motion is that in order to invoke the reasonableness requirement of the codefendant exclusion under the speedy trial act one has to make a motion to sever and so a defendant and his counsel who are in a position to wish to make a claim under the speedy trial act and to dispute fourteen says you can move for relief from prejudicial joinder if you've been joined in an indictment and information or consolidation for trial none of those things have happened that's what judge would have done by ordering a february twenty third joint trial date at at least two conferences think we should look at functionally what was going on as opposed to formally there had been no motion to consolidate and she had not ordered consolidation but she was acting as if they were well i mean by ordering age by ordering a trial date for all defendants she effectively ordered a joint trial date and so whether one whether one views it as functionally a functional analysis or whether one views that order of a trial date as effectively consolidation order either way that gets you to the same place which is that a judge would order a joint trial for all defendants including sarmiento and trinidad everyone was operating under that understanding and then for so first army had to  was never cleared to claim that the this was never supposed to be a joint trial that's just completely incompatible with the facts with the record in this case when you say you know it was a plan i knew you were going ryle a joint  when trinidad's counsel i believe it was also mentioned at the july two thousand and fourteen conference which was docket one eighty your honor would be what you call a trial a trial indictment a trial indictment and of defendant's run knows that's my recollection and i don't have it in front of it that's my recollection your honor but again your honor we i would encourage the court to look at the entire record not just that one conference although that was the that was the conference where both trinidad and sarmiento were present i think it's reasonable to expect defense counsel to to understand what happens at prior court proceedings in the case so even though trinidad first appeared at the july two thousand and fourteen conference once he appears in the case and his counsel appears in that case it's a reasonable expectation that defense counsel would confer either with the other counsel in the case with the government perhaps raise a question at with the court at the conference if it's unclear it's reasonable to expect that new counsel in the case will understand the prior proceedings including that prior january conference where again judge would ordered a join trial and so again i would look again i would encourage the court to look at the entire proceeding and again no question was ever raised about this procedure until the speedy trial motion no one ever said hey this doesn't fly with the under rule later thirteen hey we're confused what's going on here and no question was ever raised and for that to be raised in the context of that motion made after the fact at a time when it could not be cured where the remedy  times that the speedy trial act is not meant to be there as a tool for defense counsel to use to the tall timidly ensnare the government or the court this court said that multiple times it's not meant there to be a strategic tool for defense counsel's use it's meant it's meant to be something that all parties understand and operate under and again here everyone is operating on the same page that there was going to be a joint trial and therefore it's not unreasonable to expect that everyone understood that the codefendant exclusion would apply here thanks  choi about the confusion that was caused by the multiple indictments in this case and judge would could not have ordered a joint trial at the january two thousand and fourteen  july two thousand and fourteen or the october two thousand and fourteen pretrial conference is without prejudging the motions that had been made yet she sent a motion schedule one of the motions that was made by other defendant was motion to seve a joint trial can only take place if you already have decided against those motions which hadn't been made yet so the fact that she was setting a target date which never was which was not achieved did not mean she had decided that all of the dependents would be tried together because defendants were going contemplating and ultimately at least one made a severance motion so in less you think the judge would prejudge those motions she did not make a decision that they would be a joint trial in february in either the january to july or the october pretrial conferences and why can a judge say there's going to be a joint trial and if any of you want to move to get out at that point the defendants who were whose motion whose documents would have been subject to consolidation could object and it's the reverse of the motion to sever and that was frankly what i thought at some point was going to be  the way that we would approach it that when he we had seventeen different indictments my client was not in the motion in the indictment with his studio was not in the indictment with trinidad and that but once the judge says there's going to be a joint trial including your client that happened right i don't i don't believe that it was expressed in that fashion your honor there was a joint a trial date that was was the the goal and i think that it may have been expressed in a way that those defendants who were going to be tried together will be tried in that on that date but i don't think that she prejudged subpoena sanction for can anything i'm just suggesting as i think you all agree there came a point where she set a trial take her representation of saying there's going to be a joint trial for your honor she can only say that if she's already decided not to sever or why you can if a consolidation i don't get why can't she set a joint trial date and then anyone who's unhappy about that makes a motion to get out of it while you're on it that's exactly what the procedural posture is when you have defendants all named in the same indictment then you move to seven if the government  not moved to consult with so many indictments there are you could everybody who was tall there's a joint trial and make a motion to say judge let me out of that joint i clarified my understanding that in january twenty four thousand the district court before trinidad was indicted the district court sent a joint trial date of february twenty third three twenty fifteen direct and thereafter at the beginning of because the motions were pending the government at that point could have asked the judge to make an interest of justice exclusion but they did the judgment that the judge did not acknowledge an exclusion in her order joining that quote joint trial that among other reasons it would be apparent that there were motions to sever so that i mean the i don't think she had ultimately decided that it would be a joint trial because it was premature to make that motion she was giving a target date of february twenty three if all could be tried together that would be the way it would go but if in fact there were reasons why not that would have to be decided through normal procedure under the rules of criminal procedure and that's either a motion by the government to consolidate the indictments so that the defendants who don't want to be jointly triad can oppose it and say we shouldn't be in that trial with all of those other defendants for the following reasons or with respect to those indicted those defendants who are in an indictment with other defendants they can say i want to be severed from those defendants or i want certain towns severed but to have an  informal understanding of what the government would like to do wishin and hopin doesn't get you there your honor the there are procedures that allow for the setting of trial dates there are procedures that make defendants co this is not a case where any traps were set for the government your honor the government it's created the situation the government had several opportunities to remedy it the possibility of age and mr mr sh just said that they didn't want to join trinidad in the in the same indictment because he had other cases pending they didn't want him as a codefendant they didn't want him as a codefendant because they were concerned it might interfere with their preference for a february trial there so therefore they can't turn around and say he was a codefendant because we wanted him to be if he was going to trial that's that's wishing and hoping is not a substitute for following the federal rules of criminal procedure thank you