september th two thousand and seventeen when this johnson made her st appearance on the matter was set for a three day jury trial everybody agrees that thirty nine days passed under the act before there was but the rd continuance well under the ends of justice was to reschedule the trial from three days to ten days due to some discovery issues an initially they thought three days would be sufficient ultimately after they got into all the documents they realized they were going to need ten days so if you look at it docket number forty after the clerk's rd order to reschedule the court scheduled this matter for a ten day jury trial starting on august th two thousand and eighteen so for the purposes of my argument there were thirty nine days under the speedy trial act there was a triggering event and final continuance the rd the rationale for the rd is is not i believe relevant taking the facts in the in the best way possible for the government there were thirty nine days in which he rescheduled the trial for beyond the time allowed with the speedy trial that so the question that is before this court is was obviously the court had the discretion to reschedule the trial the question is whether or not the time between august th two thousand and eighteen and the start of the trial d in october whether that time should be excluded for computing speedy trial seventy days i think is undisputed that if that force order for a continuance if the time after august th is not excluded then there has been a violation of the speedy trial act and under the law then the this court would have to reverse and either send it back to the direction for the trial judge to determine whether the dismissal is with prejudice or was out prejudice or exercise discretion and sent it back with direction to dismiss with prejudice so the question really is why and what the judge hug and say on the record concerning the source continu e in the judge's order the judge can do case that quote scheduling conflicts have a risen involving other obligations and as part of the subsequent order on m johnson's motion to dismiss the judge problem again indicated there were scheduling conflicts and this is what the next line is what the government hangs its had on which is based on request or extended date became got closer and closer the court rescheduled the case again and it all only rationale besides general congestion is a reference back to what justified reasons given for a speedy trial continuance need to be the actual reasons and if the court looks out judge hubbell wins on the record comments at the trial judge hogan is very candid he tells the parties that when that ten day trial date got closer he had several other matters that were scheduled and that he could not find another judge to take on this matter and that he made a decision to try case that had been pending longer then trying this case and this is the exact general congestion t is because of the shortage of judicial resources in the district but there isn't a finding of how that is not a general is not general congestion and that that's kind of the position of the government's taking in this matter is that the court this court should adopt a separate standard other than general congestion and that there should be some their standard for congestion caused by a judicial emergency of course as we no brief that almost half i think of the districts in the country are under judicial emergency due to resources the entire purpose of the speedy trial act is to make the court and the government to focus on the resources available and make choices as to which cases should go forward and which cases shouldn't and in this case at the trial the government was candid when this issue came up and said that we could dismiss this without prejudice and take it up again but we're not going to do that we're going to proceed in and see if we get a conviction and then see how this appeal turns out and that's exactly what the speedy trial act witnesses were not available and then responding to that request for a continuance judge hogland his order does not address the correct subdivision under the statute so we think that's another d grounds of air and then ultimately the rd continues was father sed because of the government's discovery problems in this matter and if you look through the brief mr not in the trial counsel had all kinds of trouble getting from the government various discovery materials one point to government represented to mr not even in the court that everything had been provided and then subsequently had with knowledge that there were boxes of documents that had not been provided and because of that that was a cas question i told you i'm talking mark or we're now your surgeon which wraps up in the prejudice is that there was one thousand two hundred and seventy five days before she was and i did try to find out when that started so i can put it in in his statements on the record in this order that it was not due to general poor congestion he had at that particular time and at that particular time he was almost one full year  typically has two title three judges in one senior judge handling the trial elders and a docket judge hogan was hamley the entire docket for the state or the district a period of time for eleven months had been going as as posing counsel said you are doing not asking for a new standard you are asking for the court to potentially at some point here maybe even look at the things that an exception to the general congestion is not in principle but nobody has ever defined general congestion and that's what the work we're potentially asking this court to do is say what is general congestion and i know what point do we surpass general assist or that august th time period you have in case something i think everyone would be sympathetic to judge how one's position they're obviously very difficult being  from the from the circuit i can only assume that the or believe that there would be enough assistance coming in with visiting judges and you know throughout that time period however that wasn't the case in this particular matter when august  is probably was going to the judge reach go try to find ten people and trying to find somebody to come in for ten days but eventually is almost impossible you know especially on anything short of you know probably four or five months notice the parties request a ten days because it turns out don't tell us what she said on the phone conversation if it's not unheard of appeal well we're going all going to do is i question was why didn't the government  before the th continue on the th continuance issue came up we're we're here to try to case in three days if that's all the court has upheld just because a that that point time when we have to talk conference today i did not believe that we could do it in three days us to dismissed without prejudice and come back and try to find a date with the court before filing a new indictment in that particular matter it was just a judicial even more expedient to continue on with the dates of it or was able to find a but further on beyond that judge you i'm asking what you consider potentially that there has to be some thing that president sends beyond the terminology of general congestion there has to be something that that allows the court to say well this court was under judicial duress to an extent that he could not possibly be held to a standard that that is being applied a nation can seem like i could understand that a standard like that if it involves something other than congestion if it was the pandemic something that is perhaps an emergency apart from the fact that there are more cases than time and that's what this seems like it just seems like there was just too much going on based on the limitation of judicial resource them went away with continuances or joint continuances motions by about parties or they were disposed of by plea agreement it did come down to essentially i believe that that time to two cases and that at the case i went to trial was the this was beyond that this was extraordinary this was a shortened arrest but there's got to be a scenario where horton harass has some sort of ability to order some some ability for the circle look and say look this is a different scenario this is not your run of the mill general ingested this goes beyond that it's going beyond what congress even discussed and in the legislative comments that i looked at the in a referred to in my breed the legislature did talk about there may be scenarios where each case targets at the very beginning of this investigation before the investigation is even remotely complete if there are defined as a target there's an opportunity there to offer them the opportunity cooperate a particular matter in this particular case  going through the testimony of a tom urban inspector urban from the trial transcripts witnesses were being interviewed well into two thousand and sixteen on this particular matter there was four different pieces kind of circumstance this is a situation where the government is over charging or charging were criminal matters d and that the court system can accommodate and in all of the cases that we say in the briefs based on general congestion is the exact same specific issue d which is the trial judge can't try to cases that want so i mean this is not an unusual situation in space one hundred percent on judicial resources and that  government is failing to understand is that the government use attorney's office they have an obligation to follow the act as well this isn't just the judiciary that has this responsibility that the u s attorney's office has this responsibility and part of what the act assigned to do is to focus the u s attorney's attention to those matters which are the most important and here that was not done and that was one of the reasons why there was a delay  concern is if the court looks at justice scalia's concurring opinion and u s c taylor i mean he indicates that the statute is not ambiguous there's no no need to go to the legislative history not the words in the statute mean what they that point i think the court creates a lot of confusion where congress did not intend for there to be that kind of confusion our view is that this matter should be dismissed based on a violation of speedy trial act that the act has in fact then violated and then the question becomes whether or not it should be dismissed with prejudice or without prejudice and we believe in this situation it should be dismissed with case and the impact on the administration of the act and the state of justice and clearly it is counsel the decision who are the dismissal to be with or without prejudice is that the decision for this quarter for the