case we have this warning is number seventeen dash twenty four eighty four united states versus r first was the courts to a spontaneous order delaying the case from october twenty fourth to december fifth that's a total of forty two days at that point fifty non excludable days that already passed so that continue takes us past the seventy day limit and that's a that finding is required under this court's law under the speedy trial act time was never excluded from the seventy day when it there was no finding that it was for the end of justice so on that ground alone it violated the end of the council agree was that it worked out well for well that's the second problem with that with the delay the first problem is that it was never excluded was never found to be in the hands of justice the second problem is that it was you can accordance with the court's calendar and if the court looks at the appendix on page seventy you can see the exchange the first thing the district apologize for this because i can't try to case until february twenty second so it's clearly the court's calendar that's the impetus for the lack and i'm mr don draper said was there were twenty second will work for me i'm just really bad in december in january myself but mr dunn great didn't request this delay he said he was busy he agreed with the court but the court is the one who said the court said from the off the bat i need to delay this case until february twenty second because i'm dizzy and that's that's what the court said and mr nontrivial was sort of just agreeing with the court what what's the prejudice to  of the dependent could have made there i'm not sure that the record shows that all he was doing was agreeing with the court but there's no prejudice required to show a speedy trial act violation not because it doesn't just to protect the defendant but also protect the public the public has an interest in so prejudice has nothing to do with this with this analysis no you have a clear view mr doug mr recess to show an effect on his substantial rights when in effect on substantial rights means and this is from the supreme court and we know martinez has a reasonable probability violation but i do understand your substantial right going on in any case you would say by the violation i've missed an opportunity to move for dismissal it's got to be more than that from does the supreme court case not substantially correct and and i understand but then you said what he missed out on here the opportunity to dismiss because time had not been excluded improperly then a speedy trial act would have been breached and that's the effect it has substantial right but isn't if you've got the first second set of attempt at a say circuits say that the court was on notice that mystery said had renewed his motion and you know it's clear i think from the whole context of the exchange that mr ace was doing what the judge asked him to do was relating affidavit to the order that he denied his motion and that it was a renewed request for new authority as is proper but we cite few cases in our brief blackledge and mullins where the attorney said they were capable of representing the defendant and that they went forward and the court of appeal found that that was a clear error because even if an attorney says they're capable of representing the defendant doesn't mean that they're having the kind of civil conversations or cooperation that's necessary for defendant have his right to choice counsel we have to like i said to him person meetings that turn into shouted arguments and insults other than that  they don't seem to reflect that kind antipathy that this cure of the psyche so the e mail communications we have are from prior to october two thousand and sixteen and the relationship seems to have gotten especially better in acrimonious from october two thousand and sixteen until the trial in february two thousand and seventeen and between those few dates there's a critical dates leading up to trial we have two bad in person meetings and two brief bridge communication but other than that the record doesn't show anything in this one hundred didn't dispute any of that w reese for three years after his release from prison is barred from any employment in which he would have control over money finances or engage in financial transactions i mean conceivably that control over money involved practically every job from a waiter to a parking lot attendan if attorneys get a pretty in when they go to conferences so it's extremely broad of ours mr reese and pretty much any service industry work to be qualified for and it's also very big because it's hard to understand what is the what is control over money media how much control is necessary is it a job or he'd be writing checks like he if it is earlier job worth in any job where he touched currency and because it's both overbroad and b if i like the process and the government is fully aware that the second specifically says that continuances will not be granted for that reason however it was granted and there was no objection to that continu been in all likelihood in a great likelihood a dismissal without prejudice because this was the courts this was through no fault of the government and the government would have been punished for what was essentially the courts and that's an interesting equ the defendant bears the burden of showing that his essential rights were affected in this case if the if there was a dismissal there was a motion to dismiss which was granted been done would have been dismissed this this case would have later on it never got us and then on november tenth it gets worse there's no reason given whatsoever there's no check a box there's no anything and it seems when you look at that the only thing that you really have to go on is if you can latch yourself on to other circuits decisions and say well if you're jack to a speedy trial you've got to give a time period but here the time period are so well understood it's all the time going forward from the bumper temps of the time of error because of the the violation to speak trial act and in that case is the burden on the defendant to show that his substantial lights were affected by this error that but for this error the outcome in the district court would have been different and he can't do that if you tell me where it says that basis for excluding a toy which is supposed to do or using language that invokes the act like the ends of justice but the way caused by to continue with is not excluded and the district court cannot exclude the time of hindsight that's a precedent of our court i mean absent going in bank i don't know how to get around that either i agree that it is that is it certainly a president of the court your honor and it was clear error and again his reputation is being damaged if he'd been deprived of a livelihood in that period of time and if there is some kind of bad pain on the part of the parties that is causing the file ations of the speedy trial act none of which are are in place or this is a defendant who is free and living in the in arkansas until we before the trial for you but not in custody there was no damage to his his he was not let in preventing him from making a living and he was far removed from the situation and he was not out there are asserting his rights i want to trial in fact on the week before the trial begins because in effect asking for continuance so and i think i don't believe he has  criminal case that you can articulate today in which if there was a dismissal of the indictment you could make the public back hard right because no matter the the criminal charge the public is adversely affected so that can't be like a good argument to bleier right because that would be available in every case so i think that's an issue in every case i think that on balance in this case because it was a court error and because there was no back pain involved in depriving the defendant of his right to a speedy trial under the act and because there were real victims here  hundreds of thousands of dollars you gave him in a fraud and because of the speed at which the government could have moved at that point it really would not have a tremendous impact on balance on the public reputation of the court of justice we say what he prejudiced what's the harm if he wasn't prejudiced then it's harm less and the court is saying you don't do that kind of analysis with regard to this particular statute i believe getting back to come into play in terms of the governmentally presenting to the grand jury i think that part of the equation is the seriousness of the event i think part of the equation is a privately retained counsel he could have fired him at any point in time he did not need the court's permission to do that when he instead what this defendant did was he came to court on the eve of trial in the permission of the court to do that or thereafter he could have hired another attorney or he could have he could have the motion the corporate appointment of counsel and the court would have told him you need to prove indigent in order to receive an attorney he didn't do that instead  gerth talked about there was no evidence of irreconcilable conflict with him with the lawyer i think those two seem to be self evident that they would want that the defendant talked about the lack of communication with his attorney  go to trial i want hard for them i will doubtlessly represent them that's what i've been doing for thirty five years so i think it's not uncommon for defense attorneys and defendants to disagree on strategy to disagree on and stevenson is that dismissal of the indictment even without prejudice is not a toothless sanction because it does impose a burden on the government to go back to the grand jury and try to indict the defendant not a guaranteed outcome and what this court said is that it matters  we have the right to try to do that and they could but it wouldn't be a pyrrhic victory because it's not not a guaranteed outcome there could be a statute of limitations question hanging on the timing maybe the government would decide that it's not worth its resources the prosecutor again so long after in fact  it's important to enforce the speedy trial act here because it's not just about mr reste it's also about the public and speaking of the public you know the government says sort of alluding to the fourth prong of plane air that there was no harm to the judiciary's reputation with th one also the point of information the remedy here would not be an automatic not a new trial it would be remand to the district court to consider whether or not dismissal of the indictment should be whipped or without prejudice that's a multi factor analysis i'm not sure we can predict the outcome of that just yet if the court doesn't have any other questions on a speedy trial i just like that just quickly the trace of counsel issue i think the government's wrong to say that mr reese was complaining about issues that were all prior to november m hundred had not been communicating them with him in the months leading up to trial and you detail for the court there to explosive arguments in november and in february you detailed the few exchanges they've had about the case and between those times i don't think there's any indication contrary to what the government said that this was suggestive of a bad faith intend to let mr reese was in prison he had nothing to gain from the language case and it was his first request for new counsel and he'd been complaining about mr don't care for a long time  finally this is more than just a disagreement about strategy about a case sure lawyers and clients can disagree about strategy but when they can't have a conversation about the case without screaming at each other and mr don graham telling mr reese that nobody cares about his fancy dress