the dismissal of the first case over four thirty to forty three which or became a final order precluded the government from refiling the same charge based on the same why is this conceptually different well i think it's conceptually different because of the way that the facts played out with the court dismissing the case on november fourteenth after denying the government's motion to continue for the reciprocal stated reason of obtaining a superseding indictment so to allow the government to simply rearrested the appellant the next day enough time in a minute dismiss this kind of a speedy trial like period well then what well the i'm not sure because the court here are the dismissal order said that was pursuing to rule forty eight you have long enough i'm just missing something well i guess the if there was a refiling then there would have to be a determination on whether it was with or without prejudice and whether the four factors well i guess then we reevaluate the four factors that the court has to look at and see if it's correct and what's different about what's different about this in principle i think that the factors that would weigh in favor of a dismiss dismissals with prejudice and last of the government has been warned unless all kinds of things have happened that never happened in this case and we have sometime well i think but the problem in this case is the government didn't appeal the dismissal it became a final order of what might i guess our questions are designed to say yes it was a dismissal but so what what kind of argue that it was not warranted in this case the first indictment became a final decision the court the government didn't seek to about not on  that's true but this is one of the narrow exceptions to the normal double jeopardy rule defining on the merits when it's under the court's supervisory powers under rule forty eight when there's a delay and that was the reason for the  if not the court would have granted the government another continuance in order to seek to obtain the superseding indictment in other words it's the fact that we write out the whole concept of dismissal without marriage or my yes certainly additional time thank you good morning your honour's may please the cord christina mccall for the united states just wanted to point out to the court that everything in the record is consistent with the dismissal based upon the recent decision and resendiz ponse case not a dismissal on the merits that a very early stage in this case the defendant through his former counsel filed a number of motions a motion to dismiss based upon a number of grounds they actually presage the decision and reset his pants because one of the motions to dismiss was for failure to the no to allege and essential element namely an overt act in attempted entry into the united states if you remember that the defense attorneys before mr swain requested at least six continuances of the motion hearing day the government attorney actually did request to continuances one end in order to get the audio tape of the deportation which actually led to the defendant filing yet another motion to dismiss the second government request to continue as a result of late filed motions filed by the defendant on page twenty four of the supplemental excerpt of record we see that there was this motion to dismiss that had been on file for many months before the hearing i'm not page twenty five of the supplement reference to undue delay by the government there is no reference to rule forty eight and there is specifically no reference as your honor mentioned to a dismissal with prejudice so your honor also mention the jiang case which you are third which says  rule forty eight b dismissal is only to be used in extreme circumstances in this case none of the extreme circumstances were present there were no findings of prosecutorial misconduct as required by that line of cases rule forty eight in this case it was not dismissed with prejudice there's no evidence of any dismissal as prejudice in the record either in the transcript of the initial motion to dismiss hearing or in the subsequent court orders that were filled out by the insight as to why he dismissed the insight that i had since i was not the original attorney on this case comes from the record and so basically there had been motions on file for i think it was at least eight months by the time of the motion hearing last november and this recent its constitution had just been handed down and basically the defendant was on notice that the government intended simply to refile but the question was why did the judge do it well at that time this motion which had been on file basically the premonition the reason this punch case had become right this case actually section thirty two eighty nine of title eighteen allows the government to refile within six months after a dismissal of the case for any reason which we actually refile the complaints the following day and the indictment two days after this case was  dismissed i would point out to the court rule thirty six which says that the court at any time may correct a clerical error in an order which judge whalen did during the second motion to dismiss hearing and in addition the n f l it cites the case of casting me in that case the government actually moved to dismiss with prejudice the initial case in light of the superseding indictment that had already been filed and actually make any specific correction he just says what he thought he had done right and he was interpreted what he had he wasn't passionately ordering authorisation of the document this record file and you think in some later time some later case he orders becomes magically amended and sort of i go and look at that file and says one thing that it really doesn't because the court is correct that clerical  was october eleventh that was sent a poncy came down there was another court date october twenty fourth the government had superseded by then they were certainly i noticed by almost two weeks the government sought a continuance then the parties show up on november fourteenth and