distribution of heroin causing death excuse me pursuant to twenty one u s c eight forty one a one the central issue in this case is whether there is a statute of limitations defense which  should have been raised by trial counsel and before starting or that the key dates they were going to be talking about are off against a date alleged in the indictment of january ninth two thousand  an information filed on january ninth two thousand and six in an indictment filed on january tenth two thousand and six district court as you know found that the indictment was timely under thirty two eighty two a and pursuant to rule forty five the application of rule forty five it seems pretty clear that the authority would suggest that that's not the case assuming that the of en state was january ninth two thousand and one and i think the very clearly the government conceded that point in their brief before filing the rule twenty eight j letter which they appear to have revoked that concession but i think it's it is clear that if the often state is january ninth two thousand and one that there is complete agreement by the government and point that the government is making there and again i believe it's a new argument and i don't believe it's a proper rule twenty eight j letter and i've said all that out and all that you know i agree it is is not a proper twenty a j letter but it is good that we built the law that so i think whether it comes in properly or we find it on our own i think you should address it well i think really that you're right it's in agreement so immaterial so so i'm going to brush over the authorities i've cited for on the issue of whether it's a proper twenty a j letter and whether or not it can be raised for the first time on appeal although i do not i do not agree with the government that that those laws apply only to a authority obviously that they apply to apple lease but the bottom line here is that in that circumstance what we have is we have some evidence that was presented at trial which is equivocal on the point of when the death occurred in obviously we haven't fully briefed that but i have looked at a number of items of evidence including the testimony of mr quaid and the girl whose name i'm forgetting that saw him just before midnight who says that she last saw him around midnight and then says she has her purse and she's ready to leave it alone forty five and he's being escorted i think at that point into the bedroom if i'm reading it right the problem evidence for us is the medical examiner's report which contains a finding or an allegation i should say that he was last seen alive at two am by quaid so i just wanted knowledge that's in there that's very clearly there and there's nothing i can do about it but quaid did testify and he didn't say  that the biggest problem for the government though is that the judgment itself recites the off chance date ended july ninth two thousand and one and all throughout these proceedings that's exactly the date that everyone has assumed applied do we know when he and just at the heroin we do know that that was the night the evening of the night what time of the off the top of my head i'm not completely sure the reason i ask is you know i've seen a number of these cases now and it's my understanding that heroin overdose deaths occur rather rapidly not you know i'm not into tainio story but usually if if you survive a heroin overdose for a couple hours you're probably going to live you're going to die in the first hour or two we're probably going to win that maybe i'm not an expert but that seems to be kind of what i've observed but i don't know i don't know and i do have the medical examiner's report back there so i can probably answer the question exactly when i come back up but right now i'm sort of thinking it's like nine thirty to ten o'clock or something somewhere in there well our  suggesting it directly or we make it directly that you want to do supplemental briefing to our court on this number one about the record but also about the possibility needs to go back and have further evidentiary findings by the district court or you asking for supplemental briefing on the issue raised in the rule twenty eight j letter absolutely we are i think we've got to flush that out well unless we just independently decided on the information pran we could independent it has the word or a lhari in there so we could independently decide on the information probably right yeah you could if i mean  you're if you decide consistent with burdick's data that the information is instituted when it's filed and that would be dispositive of the case regardless of the issues raised in the rule twenty eight j letter and that's the next big big issue and obviously we've cited a number of cases which are opposite authority to burnet burdick's data and i think we're particularly interested in the mikado case because of the discussion in it now granted it's a it's a district court case and you've got a seventh circuit case but it is a discussion about an issue which is unsettled and it is very persuasive in my opinion the said it defies logic and reason that the court may accept information without waiver for the purpose of applying the statute of limitations when the same document is nene english for the purpose of subject matter jurisdiction and a kind of thinking through this thing and really institute is capable of only two interpretations that i can think of one is institute  equals the filing all by itself the other is that the you institute proceeding with an information when you file it with a waiver of indictment and the first filing alone confers no subject matter jurisdiction you can't commence the prosecution it's a unilateral act there's no probable cause requirement it's nothing more then you know the u s attorney signature on a document stating the charge whereas with option number two you are the prosecution commences so option two filing with a waiver exactly equal to an indictment i'm sorry filing with a waiver of indictment the information then equates to an indictment and that makes all the sense in the world also i know you know congress used the term institute they didn't say filing they could have said filing and then we know that option number one was what congress meant but they didn't well didn't more fundamentally what about the constitution don't know someone in the room surely as i don't know right off the top so i had but many don't either so i don't feel too bad in any of it and i think it was very persuasive on that point and the reason is because you if you if you require the waiver then  sentially the information with the waiver is exactly equal to an indictment and i discussed in in my reply brief the three different ways you can help somebody into a court or start a proceeding and  you have an indictment of course confers jurisdiction you can arrest and bring that person before the court a criminal complaint is not the same as an indictment but you can arrest the person and bring bring that person sell settled in our circuit in almost unique why is it ineffective assistance of counsel that the council did not bring it up well assume you're right about everything here obviously well i cited content hosts obviously content a stands for the proposition that failing to recognise an assert a statue of limitations defense i'm sure you know in the standard case i'm talking about this is not the standard case well but my point my point they're starting with content ows is that this issue was apparent right there they won on the indictment the indictment recites the date of january ninth two thousand and one indictment is filed the next day i'm sorry five years and one day later they mean it should have been obvious to anybody that there's a statute issue there and if you then see that you immediately are going to it's so apparent that there's an issue there now you've got to research it and and you've got to raise that to argue it i agree with all of that but it's clear right from the indictment that it's there the other issue that i note is the effect of thirty two eighty eight and there briefly is the issue is whether or not thirty two eighty eight applies and it certainly appears to apply and but bernick's dana said it does apply and it seems to me apparent that when thirty to eight applies if the statute contemplates that you first dismiss the information and and file the indictment well in the burdick's case though the indictment had not been dismissed had it at the time you mean the information yes i'm sorry the information had not been dismissed yet it's exactly the same as the situation here now the court in burdick's didn't mention that at all didn't know the lid it was mentioned it was i mean didn't didn't compare it to the literal language of thirty two eighty eight because yours is a technical literal but they did and so while they note the issue they say we do not have to reach that issue i'm going to try and reserve my two minutes of unless you have questions ok thank you thank you rosenberg have a couple of answers to the court's questions that i was fortunate enough to be able to look up how in the courthouse mr rosenberg the fifth amendment says no person shall be held to answer for a capital or otherwise infamous crime unless on a present meant or indictment of a injury and it goes on from there in addition government exhibit five that was received in evidence trial the medical examiner's report it lists the onset of illness simply on january ninth between does based on the transcript the evidence dana cona sec testified this isn't volume two of the trial transcript she was there from about seven o'clock till midnight and dorian raglan was there at that time and and judge riley you addressed this are ready that is not necessarily where the statue of limitations was violated expression if this court makes new law in this circuit saying that you know section thirty two eighty eight requires that the indictment be you know the information  dismissed before the indictment because this court is held in the past that clay novel claims based on unsettle areas of law that counts not in effect or necessarily for failing to have the term novel lenat justice o'connor has a paragraph shouting about the claims we're not going to worry about strategic after investigation is the word novel in that paragraph you know counsel your honor i'm not sure if novels and there i know i know this court post strickland has had cases to talk about novel claims that when you look at in fact the only case is really the machado case a district court out of massachusetts that found that information was not instituted when it was filed the government believes that those two bases here to find the statue of limitations has not violated that the information was timely instituted and that the indictment was timely found now what happened with the twenty eight j letter the government certainly acknowledges and judge i think this was your exact quot now change the fact just because you found one document in the record that may support a different fine you don't i mean it seems to me be very unfair the defendant has he may have been able to call dr harris or he may have been able to call this person because because what you're saying is really based on hearsay it's hearsay within acceptable hearsay it's dr harris saying that it occurred that somebody told him something i mean don't we have to have a better record we're going to first of all actually issue we would not oppose a man for that issue if if the court thinks that the information was not timely instituted if the information is timely instituted it doesn't need to decide this  however i think the record is clear and first of all the government i don't think ever necessarily conceded that the death occurred on january ninth it was always clear i think to both parties that the death occurred on the tenth but what was conceded was that the  elements of courage and the parties were focusing instead on the actress writes the distribution occurred on january ninth and that's what everyone has has all along thought of as the date the offense occurred because all this case interprets this last sentence of the statute  limitations thirty to eighty two within five years next after such offense shall have been committed in the gonzales case as what is committed well committed to each and every element has occurred and that's when  so i think when you look at the three elements here that the government had to prove and what you actually said in doing ragland's direct appeal in this case in two thousand and nine the intentional transfer of heroin and the defendant knew it was heroin and that heroin at that time the third elements heroin contributed to the victims death and i think the records are already clear that that third element didn't occur until january tenth now there's been no finding by the district court and if this court wants to remain for a finding we would have no objection to that well if we go to the ineffective assistance of counsel i assume that your say if you really had an effective defense counsel they would have realized the law even though the government did and would realize that that the sta begin to run until the death we believe that your argument today are human is there can be no prejudice if the law is that the statute limitations are not violated and the standard in effect a census counsel is an objective standard so we don't need to necessarily know why that specific attorney might have point as maybe you were wrong the district court was wrong i mean the government wrong defense because they all went this way but a really effective counsel would have known that there was not a stench a limitation probably last element didn't occur until the tip is that would you say i think that i'm not sure if the attorney would have seen that but i think that if as a matter of law the argued at the time of the case the gonzalez case was in two thousand and seven it wasn't a new case it was one that just no one no one was focusing on the beginning date of the statue of limitations that was really the issue everyone was looking at the the end date you know lawyer was ineffective because he could see that the offense shows up because the ninth sees that the filings the temp it should have immediately known there was a statue limitations issue and what we look at when you look at thirty two eighty two a plain reading of that it talks such charge charging documents specific unless indictments found or the information is and situated now what's important there if you look at it doesn't say  doesn't distinguish between a felony information and a misdemeanor information for misdemeanor information is under rule seven b of the rules of criminal procedure you don't have to have a waiver of indictment to proceed and there's nothing in thirty two eighty two eighty that would would say you should interpret thirty two eighty two a differently if it's a felony or if it's a misdemeanor but clearly if it's a misdemeanor information it has to be referring to the filing because there's nothing else that could possibly even happen in the case  quote so i think you're right proceed and the main argument against this is a policy argument that the government could in essence file an information and extend the statute of limitations indefinitely or as long as they want or they continue to gather evidence to the defendant's detriment i think there's a few responses in the burdick's dana court and some a circuit got him first is that's an issue for congress of congress wanted to require that information have a waiver of indictment in order to trigger the statue limitations they could have said that you know when i was discussing how the information it doesn't say in information charging a felony or charging a misdemeanor when you look at thirty two eighty eight it does say that it says whenever an indictment or information charging a felony so congress knows how to distinguish between the two and they want to so i think the fact that they didn't enter thirty to eighty two a indicates that it should apply equally to whether it's a misdemeanor or felony information and because a misdemeanor information doesn't need a waiver of indictment  the courts do not interpret this to say that a felony information does in order to charge a statue of limitations finally moving on to the argument about even if the information is timely instituted is still invalid because it was  returned before the dismissal of the indictment when you look at section thirty two eighty eight essentially just a six month extension of the statue of limitations is written in the permissive language you said nicely essentially because technically the other side's reading of this it says whenever any information is dismissed then a new indictment may be returned and i think the literal meaning of it right if you look at literally it clearly contemplates this situation well i think the statu doesn't contemplate since you ation where there's a pending charge at the time of the dismissal and that pending charge is the exact same charge as the charge that was timely filed because in that situation like situation here there's no need to file a further proceed with the the charge burdick's dana thanks that thirty two eighty eight comes into play necessarily do you really believe it comes into play or you just think you are ignored i don't think it necessarily comes into play you're for ignoring it i'm for ignoring it if the court thinks does come into play though i want to note a couple of words in thirty two eighty eight it's a permissive statute it says whenever an indictment or information is dismissed for any reason  then it goes on to say a new indictment may be returned within six calendar months of the day dismissal after the dismissal yes your honor but i think to read this as being a restrictive statute to restrict the statute limitations would be improper because it's clearly written with the goal of extending the statute of limitations you think of this and i kind of a good analogy this situation to the situation where there's a superseding indictment that you know perhaps the original timely filed indictment had some sort of error in it superseding indictment or superseding information occurs there a statute that applies to superseding indictment i'm not aware of one as far as relating to the statute limitations you think they're authorized by statute where they come from don't know the stock question i don't know you're either on or have apologized my basis for talking about it was just kind of a similar situation what we have here where it's the same charge being brought again rather than a different charge and i think th situation is fairly rare i think that's why the statute doesn't contemplate it but i don't think reading thirty two eighty eight in that manner is appropriate and even if this court decides that that's the case counsel should not be ineffective for anticipating that you know six or eight years later this court would create a new precedent in the circuit to read thirty two eighty eight that way we would argue that you should affirm the district court here thank you thank you mr rosenberg you have a few minutes  thank you and i want to mention the we also filed a motion to expand the mandate relating to the burrage issue and i didn't know whether anyone talked about that or not but i think i guess i have one well i two real quick questions one is any court ruled on that issue or whether you can bring up birds on the twenty to fifty five and i can only i know if you've been around long enough but this is very similar to what happened at nine twenty four c and i just thought of that so i haven't researched it i want to what we did with nine twenty four c when when the supreme court changed what everybody thought to be the law i want to go back and look at that the answer is i don't i don't i don't have any answer for you on the on the specific question i just want to do alert you to the fact that it's out there and i think in my in my motion i stated that i'm not aware when i filed the thing any authority that would support in ineffect assistance of counsel claim for failing to challenge then controlling authority so that's there's an issue there but i certainly wanted to mr burr i'm sorry mr mr raghav raised it very effectively in his petition now that the supreme court has ruled it's maybe something we want to look at and particularly if you're going to remain for further briefing going back to thirty two eighty eight which is i think the key here i say so a superseding indictment is a completely different animal because ordinarily the original indictment is not dismissed and in any event you can't bring at an additional time barred claim the superseding indictment it's got to relate back take it under advisement