parker wrong with i don't know this number two reasonable diligence correct a serious effort a reasonable diligence and how this i mean i agree i mean i think we all agree  a case by case decision as to what reasonable diligence is and how do we do you speak up a little bit maybe that might sound like that lou on my so i'm trying is that better that's better thank you and i mean what with it's a case by case analysis what's the blueprint in this particular case for what reasonable diligence should be the marshals sent a subsequent supplemental request to the los angeles with a list of things that appear to be in my opinion reasonable diligence six addresses and names of relatives etc correct they sent into all five they said the same thing in two thousand and eleven in two thousand and five it's clear when somebody went on vacation or left the marshal's office they fumbled the ball they didn't know that all they did was run i dated check on n c i c actually that's all they did for five and a half years well let's let me ask you to start with that to talk about the standard of review docket talks about considerable deference what does that mean mr considerable deference to whether or not it was diligence correct that's that's the statement that says we are to review the district court's decision about government diligence with considerable deference and here the district court says it was enough it was factual component of that i guess on yes is not a this is not a rhetorical question really i'm curious to know what you think the words considerable deference mean it's not a typical way of phrasing a standard of review and and  deference to the district court's decision about government diligence so what are we to make of that language i suppose that assuming there was no error in the factual interpretation we could consider a considerable of deference i mean if assuming he says n c i c is all you need to do for five and a half years and this guy and he says that's enough is this court determining that's all we have to do is wait for a guy to be arrested and that's the kind of diligence that you should give them that kind of research respect to well because if that's the case then any time they make a due diligence as to i checked n c i c once have you have you left out some background facts are they they go when they are in at the outset and they try to check out the one street address they think they've got they don't find anybody there and so evidently the government agents choose to do something less aggressive to find him and tell new information ops at least judge the boy he seems to say that's not a given this guy's lack of roots that's not unreasonable for them to wait for something to kind of pop up on the grid before they send people out on stakeouts what's what's because they don't want to learn then when they do send a supplemental request as a martial things that's reasonable of diligence he says the judge says i may draw an inference that that's reasonable that they did it because he ran an n c i c check but i as i know there's an argument against that would be would you comment on judge voiced view that your client  was there's an inference that he was evading by using a post office etc because this is a balancing test and we have to look at the factors so he clearly weighed that the cause of the delay in part i guess your client let me let me respond to that i mean the people in los angeles go from apartment to apartment and how many of them i don't know the same of philadelphia because i don't live here but many of them including me with residence as our parents house our brother's house and then did his mother and brother live at that woodland residence yes it where did he live we know he lived in an apartment i mean the problem i have is he didn't leave in the same apartment every year for five years so you're saying a post office box is not necessarily age post office box is almost common occurrence in l a not only for businesses for people bu for businesses and for many people because their home address is the one they used for d m v they use for immigration they use for all these federal and state agencies the council isn't it a fact that even as late as two thousand and ten or two thousand and eleven he was putting on official documents an address that in fact was not his address it's not where he was living so it isn't that in isn't that confirmed by the record he was playing on his home residence address i e where his family was but he wasn't living there i agree but earlier earlier efforts to locate him and to locate him at that address were futile they made one and i agree with you that he used that as his residence which is not uncommon even if with my children in california what they will what he did do is have the same p o box all that period of time the d m v with immigration i mean think about a guy trying to evade because he used that as a sole factor of abating i believe you're missing the boat because if you take a look at what we say we're missing the boat part of what we're dealing with here is asking the question through the lens of quote considerable deference on i hear whether or not it was just off the mark for the district court to look at the fact that your client kept using an address where  went to hospitals with his kids he he fingerprints that immigration i hear you about the rest of us i can't say i don't like saying there's a range there's a range of behavior it's true he wasn't as invisible as some covert operative perhaps but the district court said something which sort of feels like it as a factual finding about he was trying not to be found he said the district court said you know i don't have to go all the way and say that but it sure looks like he was trying not to be found do we have to give that some credence and some deference like i believe the case you  is that due diligence the deference that you indicated and not i mean i don't believe you have to give you that kind of deference to whether he was trans under the law if a defendant is being evasive that counts heavily in the government's favor and dealing with cases like this is it your view that the judge came close enough to making them and the basis of this finding that we should factor it into our analysis no i don't believe you should factor in your analysis because i believe he didn't make that base a finding for two reasons one someone to have a set doesn't go to the federal government respond of course he was a green card holder that entire period of time he had to report to immigration all the time as a green card holder he had to have it wasn't like he was going under a fake name or if a green car was like they pulled a green card holder has to report and he did and and i mean he also i mean that this is someone is someone with using the same name as a green green card has a bank account i understand that he says is close to it being because of the peel box and the house that's the one quickly your latest on but would you comment on the nature of prejudice if we were to find that there weren't there was not reasonable diligence i assume it would be your position that due to the passage of time the great passage of time here that  government can muster is an occasional and i see paying the this and that trouble you a little bit well certainly they could they could have done more in this period but the reason that that is not problematic in this case is because as judge boys found and as the two thousand and ten and two thousand and eleven investigation confirms even if they took additional steps in that period of time between two thousand and five and two thousand and ten they were not going to locate the defendant because of his basically and then how can you say that they knew they had evidence from his codefendant that he frequent a certain bar that they go to the bar they knew an address where his mother and brother live where they interviewed they had talked to his lawyer did they go back to talk to his lawyer i mean i'm bothered more by the numerous things they could have done that that weren't done and somebody eventually i mean two thousand and eleven  state got the post office ok staked out whatever i mean i don't know how you can say for sure that they wouldn't of found and what have how can you say that in terms of the things they did not do in terms of the things they did not do many of those things were done and two thousand tend to think anyone ever talked to his mother no one talked to the mother but your honor that's not unreasonable experienced investigators and it's you see this in some of the cases where there was testimony that that's how this defendant was driven to tell which was pretty much under the grip tell us what facts give rise to a finding of diligence diligence what we have there are i think that there's not much dispute that the efforts between august two thousand and five collapse requests since a lot of uncertainty about what exactly was done by the authorities california there were i think the information sent out of their record five or six addresses creation the record that they were never there was never any attempt to go to those aggressors to try to determine whether the defendant was there when there was no evidence as to what efforts the l they authorities did if anything and the judge the boys recognize that he said but it was something that i mean i'm sorry to interrupt but you say there was no evidence that your opposing counsel in opening brief pages and quotes the deputy begin saying that dominguez finally did the things when you leaven the that they were finally doing stuff that he'd asked them to do in two thousand and five i mean isn't that evidence that they were asked to do things and they didn't well the things your honor that was in cross examination and that was the series of questions about wasn't it appropriate that they took that step then there's no question that was appropriate right but i think you miss an imp were my question so let me try again whether it's a cross examination or not one of the deputy marshal says when things finally happened in two thousand and eleven then they were doing things that i've asked them to do in two thousand and five is that not evidence that they in fact didn't do things for a whole long period of time that they had been asked to do they did not follow up but we don't have evidence that anyone visited those addresses or spoke to the mother the brother had already been talked to there was there was a good reason not to go back to the brother  house we don't know what transpired during that interview that they conducted but we you know there was a reason for that it's an interview we have evidence that someone went and asked if he lived there and then there's countervailing evidence that all they did was say are that the occupants were interviewed that four people were found there and they were interviewed he doesn't say what those results were when agent who dreamed testified he said they went to the house and they didn't find him there that you know they asked for but there was no there was no elaboration on what that discussion was but even leaving that aside yes there is no question that that things were not done in that timeframe but we have to go back to the bigger picture here because what is reasonable diligence it is one way of looking at whether who's apprehension or he lived in a way that it made it as this is just that judge the boy's funny he lived in a way that made it very difficult to locate him throughout then where did he live that made it difficult we don't know hasn't stopped let's stick with what judge the boy said all right that's what we're reviewing he walked up to that but he didn't say you were trying or i don't have to say that get their mail in a post office box my sister gets her mail in a post office box and people who you know use a different address they don't want to be harassed or whatever they want people to figure out where they are and that's up to them but they have a motor vehicle license they have a green heard no paper trail that when they go into less nexis in two thousand and ten they can't find any new evidence that any new information here is that everybody has paper trails i mean i think probably twenty percent of the country has actual bank accounts i mean a lot of people live in a way that you know is not what perhaps the way you and i live and you have to say that they're invading is well they are living in a manner to fly under the efforts are have to counsel now you're you seem to be begging the question the question that's been put to you is if he doesn't have an obligation to live quote openly in the tories solely and i think you've acknowledged he doesn't how does it help you to keep going back to that and saying he was living openly in a tory sleaze the burden here appears to be on the government to show some reasonable diligence so the question is what is reasonable about the behavior of government agents going to want to dress once and then doing nothing but checking the n c i c database annually for five years that's the question i have the answer right yes ok so explain to us how that amounts to being reasonable and as you do i want you to pay attention to this line from the supreme court from doggett condoning prolonged an unjustifiable delays and prosecution would both penalize made if it's for the state's fault and simply encourage the government to gamble with the interests of criminal suspects assigned a low prosecutorial priority that's that's one which i guess we have to have in mind so with that in the background what was reasonable my our my point is that the reasonableness of the government's efforts have to be viewed through the prism of what information was available out there about this individual and there wasn't much and there was nothing that tied him to a specific location despite even in two thousand and ten or two thousand and eleven they didn't make any headway in figuring out where this nie and was it in that sense the two thousand and ten two thousand and eleven investigation shows that even with reasonable and additional investigative steps they couldn't find that's not really true he he went to that post office they said the people that said oh yeah we know this guy comes in here all the time they said oh regularly and they couldn't describe they didn't give any other information the other statement that i have to date you don't think if they take that post of his out for several days they might have had to be there for two weeks your honor we don't know what regularly really needs in this context so  and there needs to be an investigation and until that time in two thousand and eleven there really wasn't any investigate there were no affirmative steps taken and even the  requests to california no evidence that anything was done or that anybody checked on it so we have up until we have up until two thousand and eleven really when nothing between the member of two thousand and five and november of two thousand and ten the only evidence in the record is that authorities periodically check the n c i c i think it's not and that's not diligence is it that really can't be diligence or else everybody just be pushing a button and then speedy trial ten years well it's it may not be diligence in that timeframe but my point is that the later investigation confirm that even had they taken notes that you seem to be in your position seems to be that in two thousand and five they were recently diligent and then there was this period of six years and seven months where they do virtually nothing other than the sale track and then two thousand and ten two thousand and eleven they are really engaged and again there's a more active search you seem to be taking that because of what happened in two thousand and five and then later in two thousand and ten two thousand and eleven that establishes the more appropriate focus is the real issue is who's responsible for the delay who is more responsible right the defendant or the government that is and the judge effectively concluded that it was it was really more the responsibility of the defendant because he talks about their inability to locate them he stresses that in the two thousand and ten two thousand and eleven time and that's not you know a reasonable conclusion  talk the way or they know that evidently that the lawyer is in touch with the last question and yet the indictment comes down and they don't even call the lawyer do we draw anything from them i don't i don't believe so your honor and it represented by your honor i mean my point is he retained a lawyer to contact the government to find out what was going on in philadelphia there are discussions that occur between august third when the complaint or whenever it was the complaint weren't with fact if you know you have you know you have a source who is in touch with mr of alaska us and you have a significant development in the case like the return of an indictment what's the excuse for not reaching out to that known source of contact and saying this is what's out there now you should talk to your client how about you bring him in i mean there's nothing yes your honor and i don't know exactly what transpired in those conversations  don't know whether there was some discussion about well we're going to have two indictments and i have no idea so yes perhaps that would have been a better course but the bottom line is mr mr police was well aware that he was not only under  he didn't know that i'm not suggesting that he did not know he was wanted i am suggesting that if we're asking the question about what's reasonably diligent is a failure to reach out to a known contact the matter it should weigh heavily certainly because if there was communication and there was a back and forth discussion certainly it was i'm sure understood that there would be charges that arose from this  question on prejudice prejudice as it obviously if we were to find there was not reasonable diligence with there not and given the delay here would we not find that general prejudice as per dog well dog it says that if the government if the delay attributable to government negligence then there's a presumption of prejudice however that presumption is rebuttable and in this case i think this is one of those rare cases where the government hadn't rebut that prejudice this is a case where all of the crucial this presumption of general prejudice by putting the burden on the defense but just to show specific projects that seems to be what you know your honor the standard in that was in the dog footnote for says if the government can show that the defendant defense was not impaired in this is one of those cases by the way the defense is not impaired by the delay the main codefendant testified already the other codefendant testified to the trial their testimony is memorialized they can't they really can't there's impeachment evidence and they can't a fabrication you evidence and also the evidence itself in the investigation everything that was critical was recorded they recorded the meeting where he agreed to deliver nine kil prejudice will carry the day but we think it shouldn't do so in this case thank you thank you very much to happen i mean the idea that six years seven months they did nothing but check and see i see and then the argument is but even if we did something we win the found them argument which the government raises at this point as i please should raise with the court and that that argument i mean number one in two thousand and eleven they were hot on his heels he happened to get hot somewhere else they were hot and as he also knew it's going to immigration immigration didn't want to deal with him i don't know why i mean i think they've changed their tune now homeland security would be different today well but they were they closing the net sure nobody suggests that there couldn't in the government admits more could have been done but the question of more could have been done is really the issue that question is was what was done enough in the in asking the question was what was done enough isn't it fair to consider the likelihood of success of an investigative step before you take it in other words if they go early in the stage and they look for the man and they can't find him and the and the trail appears to these investigators to be pretty cold what's unreasonable about them saying let's wait we'll check periodic leave the databases and we'll see if something pops because that'll that's our best way to find this guy next instead of staking out a random street corner and hope and we find him or staying at the post office for three weeks which we can't really afford to do with our manpower what's unreasonable about the government making resource allocation decisions in that fashion but they didn't make a resource allocation that fashion fact they send a supplemental request that they did nothing on it wasn't a plan what they did is they drafted a document that say here is what will it looks like go do this well when you say when they post one of those warrant notifications and  c that's that's affectively a statement to the entire law enforcement community in the united states of america this is a guy we're looking for if you if you come across him we want to talk to him that's a that's a pretty powerful broadcast isn't it well it's only if you get stopped by the police because the problem with the nancy i see it doesn't say go to this house and talk to him go to go to this house and talk to her ghost  this as if you're stopped by the police come and pick me up well would you agree though that results or expected results are a fear factor for government investigators to take into account when they're deciding what should we do without a doubt they have to take in what kind of scale what kind of investigation would be best suited for this case so when i say based on their initial investigation our best move now given resources is to wait a bit used the databases see if something moves on the the out there that that shows us or where he might be you know if that was what they testified to and if that was the game plan to wait six months wait three months wait nine months at some point though to get into a point where you say i'll wait six years seven months to see what's best is that that point a little prejudice to the defendant because this isn't the speedy trial right effect that i mean when do you want to wait can you wait thirty years sure you're you're definitely moving to the question of  prejudice let's leave that aside and try to focus on judge the voices and statement that under the circumstances here he thought it was enough and trying to get you to respond to that but now that that that was their game plan they didn't intentionally say i'm just doing and c i c they fumbled the ball for six years until someone picked it up they thought their strategy was away three months wait six months but what i say in the judge boy said that was enough with the n c i c but it wasn't their strategy it wasn't diligent they knew would kill it it was they had a blueprint what they had in two thousand and eleven was the same  and they were all hot on his heels but in the blueprint got lost and what and and should we in hindsight say the blueprint they decided not to do it but that's not what happened in this case if you if their game plan is to wait six years or seven months before they do the supplemental to do that investigation don't we run into the speedy trial at some point doesn't that answer the question as to wasn't intentional that they did not go and do the supplemental things in two thousand and five could you address the issue of prejudice i mean i believe i believe so i have to cross examine a cross examine the other players here my client when remember everything they will remember everything remember there's other players here there is agents here there's a lot of things to cross examin in a trial and one of the things that i think parker in docket say it's the memories of people i mean there's certain no one wants to try for a case twenty years old i've tried and they're very difficult because no one seems  six year seven months old i've tried those two they're very difficult because no one seems to know what happened and that's what these cases are just as more prejudicial of the government has tapes that are clear and everything else