in simply repeating the charge that was alleged in the complaint and simply adding the zone location to avoid doesn't doesn't that make it something else besides simple repetition when you make the charge have a different element or an additional element well if if the test was if an additional element is included and in this case the additional element was simply the protected location if that's going to be the test then the government would be able to wait a day wait a month wait a year wait two years and simply add that protected location element but that's not the test the elements test is not the test the t explicitly stated that the elements test is not the only thing that the court consider can consider and i'm going to just read from the language dismissed because in that case the court found that there had just simply been gilding of the indictment and the pepin case also relied upon another district court case which found  gilding had occurred another new york district court case in this case the government missed the deadline there was no justification for missing the deadline there was no additional evidence that had been obtained from the date of arrest to the filing of the indictment the only thing the only thing that was different was adding of the school's own location but it does create a different charge different crime different charge well i'm going to quote the pepin case again and it says a common sense a common sense comparison of the two documents and the particular circumstances of this case military against an interpretation of the statute that would permit the government to split hairs in this manner and again if this court were to allow the government to do what it did in this case they could wait a day a month a year two years and simply get around the speedy trial act by adding a protected zone location i think the unique facts of this case would go to the a finding in that the government simply missed the deadline and the consequences for missing the deadline pursuant to the hundred ninety four and the reason i ask that is in miller as i understand what our court did there was wasn't exactly the same situation but somewhat similar in that the defendants charged in a complaint with drug distribution they missed the deadline they later file ice an indictment that's on time is as i as i understand it that the gun count was not alleged in the criminal complaint and that obviously survived the the motion to dismiss in our case there are no new what is do you think the distribution which us the subject of the come plight is a lesser included offense of distribution within a protected location i think that a circuit has determined that it is elements then obviously the protect is almost haitian as an additional element but that's not what the courts i think responsibility is to do it's to look at the entire circumstances of the and the one other sons i'm going to read it quote it is not likely that the appellate courts including the second cert circuit in gaskin intended to be understood to say the district court should merely line up the elements of the individual charges and finding some left over in a subsequent pleading determined that the speedy trial act has not been violated that would miss the forest for the trees and i think that's exactly what is happening in this case the government would be allowed in every subsequent case if the court were to adopt the government's position to wait and wait and simply out of protected location and i don't know what the percentage of drug offenses occur within protected locations as a as i cited in my brief it's in urban areas it is an overwhelming majority and  allow the government is really something if for the government to practice such a tactic well it's in any event they miss the deadline as they did in this case they have that insurance gascon case was appropriately relied on by the district court here as an gascon it was a greater included founts and the statutory language involves indicting on such charges and so we think  gascon is consistent with the language of such charges and therefore the judge read correctly relied on gascon also gaskin avoids the pitfalls of some theory of prosecution or a change in the time period or any other additional counts added it makes it more amorphous whereas here under gascon not only is it consistent with the statute but you are looking at was there an additional element regarding the seventy day time period as we noted in our brief of the seventy days began when the defendant appeared on the indictment not when emphasize within a protected location the facts and circumstance of this of fans which was it was thirty three days but because of the weekend actually it should have been filed on a monday was the deadline and the indictment  tuesday so it was a one day later than what would have been the last permissible day that what about that the language in this pretty trial act it doesn't seem to to limit problems to following the same offense but also where there is an offense based on the same condo out or arising from the same criminal episode there's not any new facts for the change it's seems  exact same criminal conduct or this act same conduct was used to create the additional charge and your honor you're referring i'm looking at thirty one sixty one you're referring to deep one one here yes i haven't done a comparison of the circumstances and c and d your honor to determine that different language all right i just thought i'd see if you thought about it yeah i would i would have to know we're thinking about it to look to look at honor on the on the prejudice issue given the short length of the delay and the fact there wasn't bad faith that was a factor that the district court cited and the impact on administration of justice given the fact that the defendant was on pretrial release and the fact that he had no prejudice shown to his ability to present a defense those would all militate in favor of the court's finding alternatively that can we rely upon that finding now if i mean if there was a speedy trial violation don't we have to send it back to the district court judge or judge i think the judge read can make a decision as to whether she's going to dismiss with or without prejudice maybe things have changed now it's now two years the time the time one factor is different now it's time so it's two years maybe maybe it that would factor into your analysis he's already been in jail for almost two  years dismissed without prejudice then you have to decide whether you want to rant bite somebody who's already probably serve the sentence are going to get anyway i mean there i mean there things change and maybe maybe we don't and maybe the same result when a car i think this i think this court would have the discretion to do that i'm not i'm not recalling if it's been cases in the past that has always been don or if that has been done some alternative finding and then the appeals court said it should have been dismissed whether the appeals court nevertheless i'm not i'm not sure what cases were in that posture but i  think that likely would be the case that if this court found that there was a speedy trial act violation that it would it would remain and offered judge reed to decide not to have a minimum if i don't know if it would be maybe i'm not following out i don't know if it would be bootstrapping or not if it was dismissed without prejudice that the same charges would be there and so i think this court could also say that the you know the defense based on the same conduct or arising from the same criminal episode is what the statute states at d one and i think that is what has happened in this case but for the protected zone allegation there is nothing nothing different in terms of judge mores question about if the case was determined to be a violation of the speedy trial act would the case be remanded to the district court to determine whether or not the dismissed with or without prejudice i think that judgment is correct and that it would be returned to the district court for the district court to make that decision you to no address your argument regarding the release condition on gang affiliation the reason i didn't address your i think it's the briefs have clearly put forth all of the arguments on that i think the issue that controls is this a speedy trial if the if the case is dismissed and obviously will we wouldn't get to either the reasonableness of the sentence or two and a half year prison sentence for an ounce and a half of marijuana which i think is completely unreasonable or we will not get to the conditional release