affidavit there was nothing to indicate why he did it other than the government wanted to do but again it seems the government have to have a reason that's the whole point of our of our is that whether charge and whether or not to charge or dismiss charges the almost unlimited discretion of the executive branch branch its discretion however the executive branch does not have discretion opportunity to appear at the court make a finding after all of these issues that are here wouldn't you say what what argument would you have made that it's in bad faith or that it's against the public interest i did not argument would be when your client is put back in jeopardy with the new indictment at that point if the if the time the intervening time has caused you to lose evidence evidence training is because of what i understand to be the obligation to rap on what's in the record so i can't make up arguments are now about what i couldn't see it might have said i'm tired of not even at the time just what your prejudice argument to us at the time the case went to trial and i'm looking at the time and that goes to the arguments that are made in the brain with respect to effective assistance of counsel so out reserve at least the one minute raised by the court but otherwise i intend to rest on my briefing in this matter with respect to the dismissal pursuant to rule forty eight i want to be clear about a couple of things that were  record ex parte usually means without specific notice of the other side the other side was provided notice through the e c f filing system that is the notice system that is now being used so we would get an e mail generated when that motion filed and so by state might my reference to it not being ex card today when that notice came out how far in advance of the court ruling on the motion i believe the court ruled the same day jodi's not exactly giving an decide that you waited too long to do this the court came and say that you know unless you can explain why i have to do this when we were going to pick a jury tomorrow i felt that i'm going to deny or i'm not going to grant leave a recommendation and adoption of the district develop an impairment i just well your honor counsel just to be clear mr reed was counsel of record during the motions phase of the nd indictment court in in this forty eight context as i understand with a motion that is that is filed on the eve of trial and the court says why you doing this you were going to trial with the other two defendants what's the reason for this and the government says i don't have to tell you that and the court says fine it's dismissed with prejudice and to me that would be completely within the court's discretion right so i think the i think that the court certainly could have inquired if it had concerns about the reasoning the court the defendant could have had made a motion for  well to the extent that there was any prejudice or any of the barn they were two counties away year later by i think the fact that he filed the motion and the court considered it the court actually offered him an opportunity post motions hearing to brief additional briefing on why he what prejudice he had suffered and why he believed that the nd indictment should be dismissed as a result because the court gave him that opportunity not once but twice to do that very thing i think he did have due process in this case and the court did consider the reasons and the briefing made had unfortunately he did not allege any prejudice separate from the fact that he was retried which is the same prejudice that he has alleged today which obviously is not a barring prejudice because rule forty eight  bottom line is that what the district what what was done when the motion to dismiss the indictment was made after the new indictment the court appeared to shift to the defendant to justify our objection to their motion to dismiss and it was our position that the government should have met the burden of proof with respect to the issues that i raised in the