arrest i can't reconcile it with this court's opinion in the in harmon in harvey we will view waldron which is the two ten thirty one thousand eight two thousand case which of course you know who wins that failure to reconcile didn't occur when the ninth circuit rendered its decision well that's correct your honor so what you're talking about is not go back and and focus exactly on what you sad when did the elements accrue when were all the elements in place of fraud in fact the government in arguing the motion for the hyde amendment fees which was which was filed a couple months after a month literally thirty days after the in the same series of events occurred wouldn't any malicious prosecution relate to that second indictment i don't know the answer is that your honor i would i would have my guts my gut instinct would be that if he were that there would be two separate prosecutions for the one who would be the first prosecution one would be if you was rea doesn't the fact that you would have to do that throwing logically from our case law means that your argument that you can wait five years until you're completely out of jeopardy doesn't that wash  away well there's really two there's really two sides to that argument i don't and i disagree respectfully that that that does wash it away because there's only two there's two ways to go one is to determine whether the tolling or determination when a claim accrues it's when the claim accrues not when a party can prove or or successfully demonstrating court whatever it needs to prove to win a case well there's a there's a yes and no answer to that you dismissal without prejudice may or may not the stablished factual innocence of the charges and in those cases where it's a dismissal with the prosecution saying we can't prove the case maybe there maybe they don't scuse me maybe they don't like other way the evidence is shaping up maybe they are concerned as in this case that there's a reasonable doubt standard of proof that they can't meet beyond reasonable excuse me government's argument in response to our motion for attorneys be the high demand that the government actually sillies out the fact that they claim that it's not available terminations on the merits and the reason i bring the second issue of probable cause negates any possibility that mr bronstein could show the second element of a malicious prosecution case that a probable lacking probable cause is factually impossible while that ruling is pending to establish that there was a lack of probable cause when you have a finding from the federal judge saying hey it was substantially justified and b was not provost which is the standard for a general proposition the fact that you can't prove something doesn't hold the statute of limitations well you can have a context where you've got an adverse decision set on the scene of some kind that has issue preclusion effects in your state i mean until you do something about that which can affect the the cause of action so what you have here is a situation where up until a judge streams ruling there's a question about that they will termination on the merits element number one of a malicious prosecution case and shortly after the strand ruling and then moving to stay here pending the ninth circuit resolution of the high malicious prosecution action and ask the district court might have even been assigned a judge strand off the random real to stay the action pending the determination of the high claim by the ninth circuit right favorable termination of the merits in terms of the hyde amendment which is a different standard so i think that while it is possible to a file and then filed a motion to stay that pending a ruling in the ninth circuit i think that that's not a that's not it shouldn't be a requirement and it shouldn't be a practical requirement either because if you take a look at the case was in arizona and i think in other areas relating to malicious prosecution there's a concern about having to file things circuit rules and as you know and that takes time i mean the ninth circuit rarely decides a case i thought other than an emergency in less than a year so what you really want by adopting a rule requiring protective filings w statute may not have run at all and there are these other issues which we've already discussed you end up requiring more effort in the courts more filings in the court room that are that may or may not even be necessary a better rule in the rule i think that's recognized in arizona and it is this is to wait until post trial motions are resolved through people to determine whether or not such a pilot is necessary that has to add that has to admirable bac the second admirable public policy reason for not requiring those types to protect the funds is simply the load on the court and the clerk's office there is no reason to have to file more cases and encourage more filings in a very busy circuit when these issues will be resolved on appeal you're down to about twenty seconds and i would like to reserve that twenty seconds to thank you without prosecution or rather dismissed without prejudice the criminal prosecution argued are alternatively the claim crewed when the statute of limitations expired five years later i take it and correct finding and his decision which is now under review by this court that even if there was tolling the period of time in between i tobar two thousand when judge strand issue decision and february two thousand and two when this court issue stated it does not appear that the government can sustain its burden of proof beyond a reasonable doubt that stated in the motion to dismiss the government also stated in the motion to dismiss a quote therefore there is no reasonable likelihood of conviction  that constituted a favorable to terminate determination on the merits of the criminal prosecution why would a bright line rule be a lot better and we should have a cast on the statute of limitations of crew or look to the nuances of what you say in your papers  prejudice you know there was no need for it and evidentiary hearing and we're not seeing that that there was a need to examine closely what i've heard i think what you're saying is if you hadn't included that statement in your motion that this would  you don't seem to be taking a position one way or the other on whether it's a maybe i misinterpreting your position of whether or not it it accrues upon a dismissal without prejudice we we did say cases in our brief indicating that it does accrue at that point in time but i think the facts here are even more strongly in the government's favor to show that it accrued at that point in time and the facts here show that the government conceded in its motion to dismiss that it didn't have the facts they didn't have you evidence to reasonably result in a conviction and under those circumstances here that was a fair will determine they will terminations on the merits for purposes of a malicious prosecution playing hundred nine when the criminal prosecution against him was dismissed he knew all of those facts at that time and he knew at that time that he was injured in fact his counsel submitted a twenty two page letter to the u s attorney's office in september of one thousand nine hundred seventy explaining in great detail why the case should be dismissed he had been aware for years that there was no basis for that in his opinion there was there was no basis to go forward with the in both of those cases not from the circuit both of those cases the court said that that the decision on the hyde amendment motion didn't have any issue preclude to the fact there was no collateral estoppel effect said that in fact federal officials are in favor of having cases filed in an earlier point in time because of the interest in determining whether they whether there has been terminations he could have moved to the district court to enter a dismissal with prejudice he could have opposed the government's motion to dismiss without prejudice and argued that it should be dismissed with prejudice he didn't do either of those things that would have that would have been the opportunity for him to obtain the finality they need so that he could if there was a question as to whether or not he could go forward with the malicious prosecution cl but he didn't take either of those steps much sure that i understand how that helps you because that suggests there's still an open question as to whether there's been a favorable terminations as of that point well if there hasn't been a favorable turn terminations at that point there there was certainly a favorable favorable terminations when the statue of limitations expired in the case and as we set forth in our brief that point time was august of two thousand and one and  the time it was filed it had been filed at least as of august of two thousand and three and it wasn't filed until the statute had expired  god so i think given the context that we're in here the motion to dismiss i think that takes care of that issue even if even if it were to go that direction second is the point that mr johnson made about going about the statue of limitations running in august of two ok thank you very much your honor thank you both for coming down today the creationist argue will be submitted to the decision and we'll turn to the last case on the argument calendar this morning which is the pyramid like by you versus last