years approximately after a complaint was filed about three years after he was in first encountered by an immigration agent in state prison in two thousand and three and immigration agents found  and interviewed him we get lots of cases like this where agents trawl through the state prisons in county jails interview people who have hispanic surnames and then try to determine whether they've been deported or not my client confessed that he had been deported he obviously has a prior felony conviction because he was in prison and the agent did two things the agents were out of complaint for criminal charges illegal re entry after deportation and the agent place the detainer on my client because of these two  i'm sorry what is that that is my proffer to the court watch to proffer that's correct that's all there is well i requested evidence you're here but that was denied so i proffer is all that we have later the government counsel agreed that that was the case oh also i have another proffer here your honor by the defending himself that's in page forty five of the excerpts of record that he was denied a good time credits hundred twenty three government counsels acknowledgement that that was the case is on page forty eight of the excerpts of record lines twenty one through twenty five continuing on through on page forty nine lines one in two and the district courts acknowledging that fact and taking into consideration at sentencing is on page fifty one of the excerpts of record lines fifteen through nineteen so he served an additional six months in custody because of this delay what happened was the government counsel a government agent found him father detainer filed a complaint and then the government did nothing government counsel matter and that was denied but if you think about it if that were the policy to promptly with them over they would need to detain or detain or was just there so that he won't be released this person was still looking at a lot more time on their sentence no it would lowering the sentence by the amount of good time correct but that doesn't cure the air because the error was complete and the prejudice had been suffered trial before determined to do so is there besides the loss of be but my and my initial point is that he filed this motion pretrial so you're saying well he was the subsequent sentence for a conviction that he had not yet obtained or in that case you know there would be a prejudice in every  work you can't look at the record or how someone was found guilty later to determine whether there was harmless error harmless errors that into the prejudice analysis so for example many speedy trial cases come to us because people have lost evidence there's a delay and people die or evidence is lost so if you looked at the record and said well the evidence of guilt was overwhelming at trial therefore there's no prejudice that doesn't really work because the whole delay is what caused him to lose the evidence in the first place so that you can't if your honor would imagine that rather than being found guilty a trial in federal court he was found not guilty then there would have been six extra months and that's how the posture of the motions was before the district court he was pretrial that was the  that was the problem now if you've been brought over promptly he could have bail there were other things that had been available to him if they had filed an indictment or information rather than merely a complaint he could've stopped relief under the in the interstate agreement  by taking last good time credit into account at sentencing second as a matter of law the supreme court has held that the sixth amendment speedy trial clause right is not implicated into the indictment information or arrest and here because the defendant went to trial three months after he was arrested and indicted there was no speedy trial violation like i think that it probably would be ordinarily the government's practice is when somebody simply serving their state sentenced to rhythm over upon a complaint obviously there was a delay here in this case but the defense is incorrect that the government conceded that there was any prejudice that the defendant in fact lost a tire read them argued there or what i heard them argue was that the government below conceded that he had lost good tone for the whole serving the states and cited the court to that was excerpts of record forty eight and if you look at that what the government is actually saying is that she says i do not know whether or not that was due to the federal detainer that was at the sentencing hearing and at that hearing on the motion to dismiss the government said if the defense is correct that he had to do straight time on his prison sentence because of an immigration detainer then i feel that in the interest of fairness he should be given time to run  appeal no i mean the argument he made about well you know he should be presumed to be almost like like a presumption of innocence argument so i do understand his argument but in fact that is not what he said below if the court looks at credit for some overlap when they should have brought him over would be taken into consideration and deducted from the sentence and the defense says if we get to actual prejudice i think it's within the courts i think the court can handle it that way we're time credit was not precluded by the court's denial of the never to ensure hearing that something that the defendant could have put evidence in without testimony how well it's not in the record but on my own i contacted  d c and tried to find out about the good time credit process and they stated that with the defendant's consent they could release information about requests for good time credit and if that was denied the basis for that  did find that there was no reason to have one here but the government's position was there was no proof of also good well that's the government's we start with a yes or no to that question ye establish that you don't recall of the government objected they did not ask for an opportunity to establish that their request was their issue blow was for kunt current time this was a side matter that was raised their requests for an evid entiary hearing went to the issue of concurrent time probation officer how could be determined how much good time credit might have been lost in the probation officer stated it's really hard to predict there is really no way to tell and excerpts of record forty six the court stated this is all speculation on everyone's part in the end when the court did six tracks six months from the sentence the court stated that will give you some credit for the six months that you may have been cheated out of so to speak there was no factual finding here or do you think  the supreme court settled this issue when it said quote either a formal indictment or information or else the actual restraints imposed fireblast in holding to answer a criminal charge engage the particular protections of the speech trial provision of th amendment now we suggest that the court meant what it said there are a couple of light two lines of cases in this circuit following the marion decision one is the favors case and that was decided approximately one year after marion in favors this cour analyzed marion in detail and it noted that the complaint does not serve the same function as an indictment or information an indictment or information can allow a complaint can simply allow an arrest it cannot allow a trial so even under the principle that the first panel decision should control the first panel decision that post dated marion actually addressed the issue supports the government here and held that six speedy trial right does not attach a complaint just briefly the marion decision never said and that the speedy trial clause rights do not attach with a complaint but the government's arguing is something by absence but in fact the marion decision cites to two pieces by this court the vincent case in the venous case there cited with approval and what those cases say is that it does start with a complaint and in fact benson and venus are the cases that northern relied upon when they said you win this court said that you have consistently held that a speedy trial cla action begins with a complaint so both before and after the marion decision this court has said that a complaint starts the speedy trial clause right and mary decision does not say otherwise in fact the case