lay here in this case between indictment and west of nearly five years and this is a case that involved over seventy defendants and as far as we know now one of these defendants have raised a speedy trial playing after the indictment mr perez the government did not forget about this case nor did it slip through the cracks what the government did during these five years was gathered guilty pleas cooperation agreements and other things related to this particular case yet they made no effort whatsoever pervez who was in plain sight he was living in new york he was working it for five years he had abandoned his whole life of criminality in favor of taking care of his family facts in the record do we have to support beyond that they didn't arrest him well that is that i think the fact that speaks for itself because there are no facts to bolster any government claiming that would justify this four and a half year delay i think that we can presume from the facts which are conceded by the government in fact that this guy was not hiding there was just no reason to out west in fact the government in this court claims well maybe we can presume negligence and not deliberate misconduct and failing to rest mr perez sooner however on this  well your honor yes you're absolutely correct the speedy trial issue was not raised in the court below but it was not raise because counsel was totally ineffective in failing to graze this issue in other words he was not raising this issue deprived of the effective assistance of counsel and what we are submitting to this court is that the government and  permit the piggybacking one file ation of a constitutional right to sustain a clear violation of another constitutional right now i know that in various cases before counsel to help him in this regard he is going against the whole complex of very well trained government attorneys now i would submit to this court if this court finds that counsel had no reason or there is really no explanation for failing to raise this issue or not raising this issue and this court and it has been held in other cases that it is not written in stone that this court cannot remain on the case back for a hearing to determine home the facts and we assert that this is  suck and i would ask when the government gets up to argue which case to present to this court an argument saying well what was the downside what was the strategic reason and not prosecution that caused a six year delay one year more in this case and the second circuit said it doesn't matter it is still too long all the cases presents the burden on the government to explain just why there was a particular delay now the government also asserts well what is the prejudice the defendant can't prove prejudice in this case and we assert yes  is very real the prejudice first of all is that this is a man who's been leading up standing life he had a steady job but most important it's not about the emotional impact upon him it's the emotional impact upon his severely disabled son who depended upon him for care and taking him to the doctor lifting him up at eight years of age etc and that is all facts that are related in the pre stated that she had called him right there was no follow up nothing the government didn't ask the defendant a single question as to his whereabouts these last five years ok so so my position is now he didn't know and even if he didn't know what your position is which that he did not know and this would bear out with a theory and even if he did know and even if he didn't know it's not his responsibility without a lawyer to turn himself then or to do anything it's the government's responsibility since they knew where he was or should have known where he was to apprehend him as they did with other defendants and one  sorry she spoke with the defendant over the phone and told him quote that he was in the indictment so at that points two weeks after the indictment was handed down the defendant knew that there was a federal criminal charge pending against him related to his dru did that was because counsel had stated that her client did not know so i wanted to clarify that point but as the panel recognized to start out playing our standard of your replies on top of this the defendant acknowledges that the defendant had never raise plane error standard of review here in which he bears the burden to demonstrate the balancing of those parker versus wango those four factors in a clear and obvious way you have first  there is no record on this because the defendant himself did not raise a suggestion for the district court and as a result that this court cannot presume any responsibility on behalf of the governments at this juncture on clean air or standard review even if this factors and you have the third factor which is as i was mentioning to start is the most important factor in terms of this inquiry which is that the defendant knew that he had been charged in this case based on the testimony of one of his good friends at trial on the deck on objected to testimony and at that point this court's case was clear that the defendant bears some responsibility to procure a speedy trial the defendant himself writes in his brief that he feared being arrested there would be no gre tonic to absolve that fear than to have approached the authorities and tried to seek timely disposition of this case at the time the defendant was living in new york and there is no evidence to rebut his assertion that he had moved to new york soon after or his brother had been killed in february of two thousand and nine but this was a conspiracy that took place entirely in puerto rico there were many defendants involved in this case we don't know why the government was not able to track down the defendants over the course of the years after the indictments but again the reason for that is is the defendant failed to raise the suggestion and finally rogers of the fourth and final parker factors prejudice and as chief judge howard's questions indicated the only prejudice defendant has alleged is anxiety or an emotional impact he doesn't it up but he doesn't argue that there were witnesses or any other evidence he could have presented in his case that would have affected the jury's ultimate verdict and under the plane are sinners he bears that responsibility to prove that there would have been some sort of effect on the verdict in this case as as we wrote extensively in our brief the evidence in this case is overwhelming of the defendant participation in this conspiracy there were three cooperators who testified all drum point owners like the defendant who said odd that the defendant worked his way up from two thousand and six up until he last in february of two thousand  starting out as first a lookout and then he became someone actually selling the drugs to the point where he was actually within the leadership of this organization running a drug point there was a video of the defendants and october of two government witnesses and from cooperators about the substantial weights and amounts of the drugs that were distributed quite frankly runners the evidence was overwhelming so there cannot be any indication that there was or i don't know the recent testimony or something that went over look your there was there is a big discrepancy in the record s whether or not a certain witness should have to testify or there could be some sort of record all saying rogers on the record here there is no evidence whatsoever that there was any negligence or bad behavior on the part of the governments that the defendant made any effort to seek a speedy and highly disposition of this case or that there was a substantial effect even under a dyno review of the barker factors and then laid on top of that you have the additional plain error standard review and counsel mention there's no explanation for why trial counsel should have done that's how it was ineffective the explanation could be simple which is that this is  that there was a long delay in this case but there wasn't satisfaction of any of the other factors and therefore counsel didn't believe that it was meritorious that is just as plausible as the argument that house was ineffective and one additional thing i'd like to say about ineffectiveness and a fifty three says that there need to be clear markers of deficient performance and potential markers of prejudice in order to remain and for an inquiry into ineffective assistance rather than pursue the normal course that this court has repeatedly recognize honor thank you your honor for the two minutes frankly i think it's relevant i would submit that for the purposes of this case it's irrelevant whether the defendant knew about the indictment or did not know about the indictment that the record is very thin as to evidence that he did know about the enticement but one thing is clear is that the government knew about the indictment because the government is the one who pursued this particular case now my opposing counsel gets up and says well we don't know what the government knew at the time or why it didn't bring the charges well the government was arguing before this court so i don't think that that's really a fair argument to make the fact of the matter is the government does not mention piggybacking on the grounds of an ineffective assistance of counsel claim to deny a speedy trial claim and that is precisely what is happening the government presumes that there was no prejudice but in this case you could also presume absolutely the opposite other than the items that i talked about in my direct argument in this case a defendant took the stand and says he wasn't even living in the project and by the way we also raised an ineffective assistance of counsel argument regarding withdraw from the conspiracy which i don't have time to go into but counsel did say gotten these witnesses there is really an appearance and possibility of prejudice in this case and i would say in this court if this court presumptively finds that a four and a half year in delay is not articulate what the question this was i mean it is very difficult for a lame and this is the reason i guess that by most hate his petitions are denied because the defendants aren't represented by counsel and i think that in this particular case given the totality of the circumstances that defendant should at least have the right to raise this issue and induce him to have the facts i think this is all