president certainly neither judge kaplan or counsel pre shared i did any for either of you think either two judges jointly presiding over the same criminal case or at least two judges having the right t hey may choose that the case go forward one who has the faith of the th and the other behind the scenes is the president a judge wants to keep his own criminal contempt case he has the right to do that  he has the right to do that but unlike all of the cases cited by judge kaplan in his brief press conferences and anyone he arranges for a colleague to be the face of the case meanwhile at the very st opportunity serve discovery demands on the judge so no one tells the defendant that there are in fact two judges presiding over this case no way of finding out and in fact the way we found out is and so he didn't tell anyone precisely to avoid the motion it's peak says i as i read to the court in my motion of yesterday it speaks to his appointment of seward and as we explain in our motion of yesterday we have strong reason to believe that judge to dissemble about the supercharger on attorney client relationship or back in december early january when i specifically asked for additional inquiry and evidence every century hearing into the relationship changed from august in october two thousand and nineteen when the hearing was adjourned on each of those occasions because of the criminal case until december when it wasn't and the hearing began the only thing that changed most respectfully w impatience that by december it appears that mr danziger would fight the charges that it would not be disposed of the case would not be disposed of quickly and it was it was magistrate larry bird not me not mr dancer who would august in october two thousand that there are common questions underlying these two things the hearing in the criminal case that article's answers to questions on cross could well be relevant to questions in a criminal contempt hearing addressing his fail judge john newman our colleague was originally assigned to this panel and he has recused himself from consideration of this matter and thus we are proceeding with the two remaining members of the panel under the nd circuit internal operating procedures and relevant relevant case law of the circuit ok so judge won't have any question prior to the hearing that it let me back up that happened tonight to further a german i believe on december th of december th and then on december th that was the day to be hearing we attempted to get an emergency stay at the hearing before it started that morning and we put the paperwork and it's on the docket but we had the minutes serial things to do mr johnson and i went to judge magistrate judge larry bird courtroom to let him know that you know we were what we were trying to do but we were unable to leave he  began the hearing he ruled on the th amendment motion that is chevron's motion and limited to preclude assertion of the th amendment and then he just proceeded with the hearing with principally with chevron expert witness the direct of severance forensic expert court recognizes sometimes the need to stay collateral civil cases that is previewing the defense beyond rule sixteen allowing the adversary to be a stalking horse for the prosecutor and in addition we're magistrate lerberghe or stop with before we state and is there a schedule and this will be my last question of honest and mr frank is there a schedule sat for the criminal contempt hearing yet to the following until unless she changed her mind and revisit it and of course one of our concerns apart from not knowing what we're having a month from now to the extent the trial goes forward obviously there are circumstances that bring us to the phone that might might as opposed to in person that might change that but of course as we as we pointed out yesterday and previously this is a misdemeanor and mr dunn figure remains for ten months on home confinement then electronic monitoring on that charge on the criminal contempt charge correct thank you i have nothing further thank you judge brown is here though i have i have a question or three to follow up on judge hall's inquiry as you indicated that from the manner in which judge press and judge kaplan dealt with the steward relationship to sever on that is there is reason to believe that total judge kaplan about the attorney current client relationship with chevron in july before relevant to findings of civil contempt one of which if i remember correctly perfect before the criminal charge i was filed and won after those that from judge kaplan finding a civil conte t are pending and those are relevant to the charges of criminal contempt and those are not before this motions that those are simply pending in the in the court of appeals as of civil very shortly another addition based on the subject matter of what we had in our motion of yesterday ok so how many appeals or do you have a docket number of line a chance at hand i been consolidated with your assumption is that they are consolidated or should be consolidated right for act i believe they are but correct yes and this putative rd appeal as you just indicated having to do with the matter of this proceeding you're going to formulate that into a civil appeal a separate civil appeal is that right it would be in the nature of man da cap and impressed and two disqualification of steward at the privately appointed prosecutor right ok i think we have a sense of what's before us and let's hear from opposing counsel and i invite them to clarify it to the extent they think appropriate the clerical situation what is it that is spending and what is that where we're considering today impending appeal or mandamus or whatever it's going to be but i would just note that that's actually that's a separate case the criminal case is a separate case with a separate docket before a separate judge involving separate parties and so as we've s in opposition to that motion it makes no sense whatsoever to combine that very distinct case with a very distinct set of issues as as opposing counsel counsel just articulated with a very straightforward issue that is before the court in this mandamus proceeding  which has already delayed the civil proceedings or a number of months and we submit should be decided forthwith and the just to back up a bit notwithstanding close quote that's that's the issue before the court in the mandamus proceeding and mr downs are can't possibly establish the requisite clear and indisputable entitle meant to that relief that he would have to with a stablish in order to obtain mandamus which is a drastic and extraordinary remedy under any circumstances but particularly doubly so here because issuance of a stay is itself an extraordinary remedy that is rarely if ever required as this court said in the  case mandamus is just not an appropriate remedy or a mechanism to nd guess the district courts exercise its broad discretion to weigh the relevant circumstances in deciding whether to grant a stay or not and that's particularly true when as here the petition is part of a larger pattern of overall delay and obfuscation as the district court has repeatedly found mr dunn's eager shouldn't be permitted to transform the pendency of criminal proceedings into a free pass allowing him to continue flouting his civil discovery obligations and defying the district court's orders in the civil case the the  we make clear that the principle consideration in assessing a stay request like this one is the extent to which continuing the civil proceeding would undoubtedly burden the defendant's exercise of his rights under the th amendment but there is no such burden here at all for two reasons st mr don's leg or waived his th amendment rights to the extent that might have been implicated by the civil purge hearing by voluntarily submitting declarations under oath testifying to the very question at issue in the civil case whether or not he has come into compliance with paragraph four of the forensic inspection protocol so he's waived whatever th amendment rights he might have had if any on that question and in any event there are no th amendment rights that steak for the separate reason that there's no meaningful overlap between the question pending in the civil case and the issues in the criminal case and you have one more minute thank you with disqualify judge kaplan and both rule forty two and binding precedent confirm that charging a party with civil contempt for violating court orders is not a basis for each use will and the district court rules expressly permitted the transfer of the criminal proceeding strategy of endless delay and there is no reason to consolidate it with any further proceedings or not to proceed immediately to deny it which we asked the court to do matters that is and that of the town the three hearing and a perspective petition that will be filing very shortly both go to judge kaplan's right to make rulings now whether he does it under the guise of the civil case or he does it under the guise of the criminal case to make ruling that affect the criminal case what's different here from any other case that we can find is that judge kaplan had the right to keep the civil case but he didn't press and then didn't tell us that his position was that he wasn't  you that he had the right to make rulings either in the civil case or the criminal case that relate to the criminal case it is for that reason that after he filed the response to the petition we teed up a motion to recuse judge kaplan on the thanks very much we'll reserve the surgeons on the pending of the two pending motions