the honorable of the united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may give their attendance and they shall be heard god save the united states of america and this court court is in session before we begin the cases today i would like to ask for a moment of silence in memory of our departed colleague judge one teresa who will be missed and will start a moment of silence now thank you and before the st case is called judge chaotic and i would like to welcome judge kasper to the bench today i know you've sat with us before but we are most grateful for your help judge casper you ok dan we are ready today's cases will be called as previously announced and the names will and the times will be as a lot of the counsel the st case today is united states versus one p a case out of the district court of puerto rico where the government is seeking the death penalty because of that local rule one hundred and forty four dollars essay which deals with the point of counsel in capital cases and case management is applicable the provisions of subsection k are what is our what are at issue here today according to subsection k there will be an aggregate one hundred and eighty dollars day period from indictment within which the government must file a notice of intent to seek the death penalty the last thirty days of that one hundred and eighty dollars day period is the time from when the attorney general receives the appropriate paperwork from the government the provision in the local rule says unlike any other part of the rule that it will be strictly enforced and provides a single sanction for next sentence the rule used to be mandatory it used to provide no extensions will be granted and it shall not be a death penalty case that was changed it is now squarely within the court discretion upon a showing of a violation here clearly the notice was not filed within one hundred and eighty dollars days nor within thirty days of the attorney general's receipt of the materials it is  the district court did not understand what its discretion was in this case because the district court as the government in its brief is focusing on one hundred and forty four big which deals with the identification initially that this is a capital case so one hundred and forty four big is concerned with appointment of counsel and says the government must follow suit to figure that death is a possible penalty the sole purpose of that rule as this court in an opinion authored by judge howard recognized in lopez mathias the purpose of one hundred and forty four b is to make sure the learned counsel counsel experience in death penalty cases is appointed in a timely fashion in lopez mathias the government violated that section of the rule the court struck the death penalty as a sanction and the court this court reversed because learned counsel was very promptly appointed and business as usual we deal here with an entirely different section of the rule with entirely different purposes and one which says specifically these timelines will be strictly enforced and if you don't comply the sanction is striking the notice of intent in the court's discretion  i agree with you that the court focused quite a bit on the certificate issue but it seemed to me it did because the parties including the defendant did and i didn't see in the record any argument by the defend any prejudice at all as to the delay in the service of the notice of intent did i miss something well your honor i appreciate that question i'd like to be very clear that in no way did we bury this issue in no way did we try to bait the court into thinking we were talking about one hundred and forty four b when in fact we were concerned one hundred and forty four k our initial motion clearly set out several different ways that what we were talking about was a violation of one hundred and forty four dollars k and an untimely notice of intent we mentioned the failure to file a certificate of death eligible case which the court had had just asked about this case either but our claim our motion was not based on that we just use that as an example i believe if the court reviewed i'm sorry i know the court reviewed the government's brief in this case there are five separate references to no prejudice or no need for an evidentiary hearing because the sole purpose of the rule prompt appointment of learned counsel took place that's not our claim that has nothing to do let me go back to my question if i could just did you make any argument below that your client suffered any prejudice as a result of the delay in serving the notice intent on several places in the motion your honor we asked for an evidentiary hearing to set forth the full facts and circumstances of of why we were entitled to relief and the court itself and this court as well as specifically held that repeated violation of a scheduling water is inherently prejudicial hearing i think i'm hearing you say number of specifics of prejudiced including what the nd circuit had recognized as grave prejudice in the uncertainty of a defendant not knowing whether the government will seek to  certainly as this court is clearly aware the standard now under the local rule for a violation of the filing is it's in the court discretion we believe it would be important for example for the court to know why instead of following the notice within thirty days receiving the material the government took eight months that's not just  oversight or something that should not require an explanation the rule says when in thirty days of getting all of this you must file your notice the government took eight months why if there were a good explanation for that one which the court found credible then that would weigh against the discretionary relief that the rule provides for if the government said hey we just didn't think it was important then that would weigh heavily in favor of the relief that the rule provides for we were prepared to present evidence and we laid this out in the motion showing a chronic and habitual violation of the local rule by the government time and time and time again and i need to be very clear i'm not in any way pointing a finger at mister godfrey who is standing for the government today and is the prosecutor in the case this is something  that extends well beyond him time and time again that the government pays no attention to the requirements of the local rule we believe that's important to  to pitch the government on why it should not seek the death penalty i think that's i think that's correct your honor and the main response to that is as i've said the rule is broken up into different terms that aggregate on one hundred and eighty days the last term is that from the time the proper paperwork is presented thirty days later a notice shall be file so we went up to the department of justice we met with the committee and rather than learning his fate within thirty days as the rule requires our client through absolutely no fault divorce through nothing extension or anything like that sat for eight months every day uncertain whether the government would seek to end his life that's exactly the prejudice that the nd circuit found in dismissing an entire case not simply striking a notice or and that and this court yes or this uncertainty is is is a little odd in a case like this is uncertain for let's assume more than the requisite period of time had the uncertainty been eliminated he would have been told sooner that the government was seeking the death penalty so how does moving him from a state of uncertainty as to perhaps the government will perhaps the governor while to a state where he knows the government is seeking the death penalty how does that cause prejudice i could see the other way they delayed letting someone know that they weren't seeking the death penalty but it's sort of an unusual prejudice i think the court's correct about that and i i certainly want to be responsive to the court's question i will preface that by noting that the court's very valid question is exactly the type of inquiry that the district court in the exercise of its informed discretion would rightfully want to know you know for this court to answer that question i'd have to go well beyond matters that are in the record and talk about the procedural mechanisms that kick in when a notice of intent to seek death is filed so without getting into those specifics unless the court tells me it wants to hear it because it's not in the record when it doesn't intend to file certain things start to happen that don't happen before for example there is what's called a post authorization budget which is presented to the court and then ultimately to the st circuit as to funding matters that were not requested or acquired prior to the attorney general's decision that's simply one aspect that makes it a different set of circumstances then when it's simply pending as and an authorised death eligible case and then i have one of the what you seem to be suggesting that you still have some more cards to play in the court below but the court can give you a hearing and as i understand it you were seeking some affirmative relief from the court below which is a striking of the death notice aren't you obligated in seeking that relief to marshall and come forward and explain to the court certainly everything that's within your knowledge that would support your claim such as an explanation of why your client feels he was prejudiced by the delay and how you account for the delay that you yourself caused notwithstanding your claim that delay prejudices your client well st i don't think that i don't think that the thirty day part of the rule and the eight month as of now on excused delay by the government is in any way a delay that the defense caused or those attributable to us ended a period of uncertainty by pushing back the presentation to the government that's correct but when i when i'm talking about your honor a period of uncertainty we had gone up to washington we had made our presentation and all that was left were for the attorney general to decide and that's the period of uncertainty where the rules very specific thirty days if the court feels it's appropriate to extend that time the court has discretion to do it if hearing the full facts and circumstances the court feels it's  appropriate what we did upon the violation of the rule on the failure to file the notice and dime we filed a motion pursuant to the local rule telling the court or for our asking the court to consider a number of factors in the informed exercise of its discretion and the court so merrily denied all of those grounds save for ordering briefing on the issue of whether the voting rights  issue that is also before the court today would permit it to strike insurance i guess i'm still not understanding what the showing what it did in evidentiary hearing because all of what you're talking about are the things that are a matter of argument in terms of the steps that council may or may not have taken if they'd had sort of earlier notice of the government's decision as a factual matter i guess to follow up on my colleague's question what was barring us from developing those arguments and further before the district court it's not clear to me what factual records you need to make the argument that your client was prejudiced well it's our position that under section k of the local rule that prejudice is already presumed in other words it's a scheduling water as i've said this court and the district court have both recognized that disobedience of a scheduling order is inherently prejudicial to the other side and and the judges of the district court in puerto rico collectively enacted a local rule that says if you violate this scheduling water the sanction in the court's discretion is striking the death penalty so it's our position that a further showing a prejudice is not required however having said that we were prepared to demonstrate what that prejudice was consistent with established case law from this court about prejudice from disregard of scheduling orders from the district court itself who stands as the chief judge of the district about prejudiced from disregard of scheduling orders and about the need for sanctions to put teeth in a local rule all of those things we weren't able to establish we weren't able to establish that there was no good reason for the government still way which is we believe a very important factor in the court's exercise of discretion follow up questions from the court thank you mister pitofsky will hear from if you would mute your video and audio may it please the court yes and just a technical matter i've had some disruption in the connection so at any point you don't hear me just please let me know and i'll  repeat what it right just said one of the questions here before the court is eleven key point here is that abiding by the letter of the one hundred and eighty day local rule would have defense counsel present to the united states attorney and attorney general all mitigating factors the next deadline under the local rules would have been b two thousand and seventeen that's what will be the line for the government to complete the death penalty  case the defense counsel did not file any litigation presentation ninety days in fact filed it or made the presentation three hundred and thirteen dollars days after the indictment which is two hundred and twenty three dollars days after the understand eight months of the delay which they caused to the presentation that still leaves you with another five months of delay that had nothing to do with postponing the meeting yes you want to break that down so there are two other deadlines for the government that we're dealing with is filing the capital notice and yes you are within thirty days of the mitigation presentation or not over the government did not file the notice nonetheless we were under the impression and i would reasonable impression the court was giving us the opportunity to make that decision and we would get that from it june two thousand eight hundred and eighty the time frame passed the thirty day timeframe the government informed the court during a status conference this is docket number four hundred and seventy three there was awaiting a decision from the council committee the court schedule another status conference and notably at that conference the court did not say don't bother issuing a filing a couple noticed understand is off the table notably during a status conference defense counsel did not say we are demanding a status we are demanding a couple notice or the court's right and not just during that meeting in july two thousand to the panel's question as to why the government no leader was under the impression that it had time to issue the decision again it goes back to the fact the government repeatedly sometimes month after month was informing both the court as well as defen counsel of the time frame and that we're only talking about the bulk of the delay for the one hundred and eighty days who will a lot of that rests on the fact that we're awaiting one of medication presentation from defense counsel what would have prevented the district court judge at any of those status conferences from saying well you're way outside the time you've had long enough you're out to the extent that the district court were to do that u finding a prejudice is required so while a court if they were planning actual prejudice could strike the notice in this case there was no such fine and what would have prevented the court at some point along from saying at this point we were i really need the government to do a showing of lack of prejudice or what its reasons are beyond that you're simply waiting you know why why hasn't the attorney general or the committee made its decision which i would say i think is part of what's being argued here is that at some point that burden shifts to you yes i would respectfully disagree that the could say something to that effect but to the extent that the court in addition to that being willing to dismiss the notice we believe that there has to be an affirmative binding prejudice and it doesn't just ship to to the government  so what do you make of counsel's argument that ordinarily with scheduling orders there needs to be cause for the delay for the extension for the continuance which which suggests that in some cases anyway  clearly says that any error irregularity or variance that does not affect substantial rights must be disregarded and this sport invoked is not the us adopted the supreme court's holding in think of nova scotia and apply that to the that a person who has to wait five additional months to learn that the government is not seeking the death penalty is in some meaningful way prejudiced by having to be damocles for an extra five months that he wouldn't have been under had there been no delay you know i don't necessarily believe that to be the case and i don't think that there's any indication that it was the case here contrary i'm not asking here i'm asking about it i'm charged with the death eligible client crime i want to know if my going to be charged as a government going to seek the death penalty or not there's a rule that says they'll tell me in thirty days after the meeting three days go by and i don't hear anything i don't hear anything five months go by and finally the government tells me that they're not seeking the death penalty haven't i been prejudiced by having to go through five additional months of thinking i might be put to death and  possible that that particular defendant the uncertainty of those five months could be could be difficult and then the release or the relief upon finding that the death penalty is not being sought at the same time during those five months that event's going to have an opportunity to better prepare its case and he said the benefit of the council for five additional months so i think it's difficult to make generalizations were to make assumptions and so prejudice either way offered evidence without delay in this case and prejudice from this case but i thought there was also a suggestion about offering evidence of the government's done the way in other cases that it does is an isolated to  this again is something that is well within the position of the event counsel could you spend a minute on the collateral ordered just want to give the court an opportunity to ask questions if it would the u s code that was not a penalty that was an indictment on which the government could have sought the death penalty once the attorney general made up its mind then superseded the with the special findings while question the court asked the government and also to something that mister godfrey brought up i need thirty seconds on each yes thank you after the question about collateral order we cited in our papers the furby in the will cases both of which held that it was proper for in fact a tory review of an order refusing to strike the death notice and this very court in the yellow post assume to be a without deciding but assume that that was a mister godfried said that this court in lopez material held that striking a death notice was tantamount to striking the indictment there is a crucial qualification to the court's holding that i'd like to  to set out your honor in that opinion specifically stated that due to the stakes involved here the death penalty that it was very possible  prejudice was required and then also specifically recognized that the sanction of striking the death penalty is far less draconian or severe than outright dismissal so perhaps even less prejudice is required so i think that is an important distinction in terms of the analysis of prejudice in this case thank you thank you counsel that concludes argument