our first case is united states of america versus james bailey s what i thought of secor i get a good morning your honor my name is brandon wright story and i am here representing james bailey snyder in this matter i have two main issues that were included in the brief but one has been could you reserve time for oh thank you for reminding me i reserve three minutes for a bottle very well thank you ron there were two main issues in the brief the first is involving well settled speedy trial issue which is the issue of first impression the circuit mr bailey snyder while awaiting the f b i s determination and the united states government to terminate but whether to indict him spent nearly eleven months in administrative detention in his that period that he is requesting the court considered her speedy trial rights time the defense or a speedy trial rights attach speedy trial rights attach when one is accused and q all right in the nature of an arrest in this case we're asking the court to look to the factors in marion marion the broad language in included the word for more strain and i think the other circuits that looked at this issue and have decided against this position well he's necessarily restrained in person all they want really can't just use formal restraint you have to do something it's a little bit more procedural thing and not well in this matter we're asking the court to allow us to go back and develop the factual record your honor so we can look at whether he had lost employment did he work in the laundry was he no longer able to do that did he subject himself to obloquy for the prison goes let's go back to your first definition accused he was really segregate so there could be an investigation he really wasn't accused was he and i have to use that language because that's what the speedy trial right in the constitution where you have staff but you tell me how he was accused at the point he was referred to  internal policies of the bureau of prisons can move somebody to administrative detention pending an investigation and at that point the f b i whether they complete their investigation in six months one year or five years i would be in charge of how long he's in administrative detention their ability to demonstrate that in a record i would like i can't say that i have these facts before your honor and i think the issue that's squarely before this court is whether as a matter of law is a legal conclusion is somebody that's in administrative detention in the bureau of prisons able to claim speedy trial rights the district court here  forty three consider this a legal conclusion and the opinion reflects that and i think that's what why i'm here arguing that we should have a factual determination to explore some of the issues you're just asking questions about did do the standards really fit to the ones that you just mentioned before do they really fit for somebody who's incarcerated well the public he's not in public so there are cases that say this is a very private this maybe is a private matter this is something between the jail and mr bailey but if you go back and look at some of the other language that talks about what in parker the concerns are in marion the concerns of leaving somebody for a long time in pretrial detention you talk about they talked about the poor bill conditions for a lengthy period of time where somebody may be there when someone's in administrative detention your honor he's in a could be a twenty three hour lockdown pending trial in this case mr bailey i have to also concede he took a year and a half to get to trial once he was indicted so he was in twenty three hour lockdown for two and a half years before he got to trial once i was a point i took the matter to trial within three months but one of the considerations i asked the court to look at is also his ability to prepare for the case mentally it's difficult for somebody to endure that and it may be it's not the thirty six years that we saw on johnson versus whetsel the look at the people trial factors here does this mean that everyone who's placed into the special housing unit the speedy trial act clock begins to run for each person the soon as they're placed into the shoe everybody should be able to make that argument yes some arguments we have very bad there were some arguments that would fail because you're in for ten days you're in for ninety days if somebody was in the shoe for five years there may be poor and a half years the statute of limitations may not have run yet they've maintained this twenty three hour about down within the statute of limitations because the f b i decided that they are not decided sometimes the f b i s busy and in this case agent jones was in alabama throughout through the fall and it took him some time six months to get to the jail where he was going to interview mr badly but by the time trial came around two half years later he had yet to interview any of the guards that were involved in the matter so if it's a timing issue that i mean it sounds like you're making a conditions of confinement or you live in ether men or human getting back to moved from the general population to the shoes that constitutes quote at a rest for purposes of this trial purposes of the sixth amendment speedy speedy trial claims yes and that is not the seventy days that's the maybe it's one year maybe it's more and i think it is important to make that distinction because otherwise i'm sending a very short cough and the u s government doesn't know someone's been placed in the shoe it's not there but if you look in this case there's an e mail correspondence that was sent when he was placed in the chute of the f b i so there is fairly rapid notification these are administrators passivity is that should be able to work with sets of rules and if the rules encourage them to move their cases forward people like mr bailey will remain that long and twenty three are a box down that well exceeds the ninety days that he could have been placed there for disciplinary segregation because there's both administrative detention and there's disciplinary segregation and these are set for of federal regulations and that's what that in the policies are all that we have to look at because we didn't have the facts here that gave this could give this court a full chance to develop the rector that even some of the other courts have looked at and the case relied on carty there's also evidence your hearings held hearings are they to determine whether there's been an arrest or an accusation or are they to determine once there has been an arrest accusation and determine it's a speedy trial the at one of the and i don't recall the case there was a call somebody who was able to testify for the government that the  government had to the defendant was not placed in the shu because of anything having to do with the government that would be a factor the government could rely on i could cross examine that person and i could suggest to them that was there any other reason other than the pending f b i investigation that he was placed in the shoe was he placed there for disciplinary reasons was he placed there for security in other cases your honor there were detention orders that were entered in the record we had has to do with after there is an arrest but did the speedy trial rights attach really and i just don't know how and that would enter a record is going to decide the issue of whether he was arrested or accused if the issue whether he's arrested or accused again it's a threshold issue i need to establish or arrest if the court wishes to decide that somebody in administrative detention can never be arrested can never be subject to the speedy trial rights act that may and i think at the invitation of the district court here i believe this court's opinion in that case may create a split between the other circuits that had allowed for an interview hearings they could maybe it's how i read their evidentiary hearing your honor maybe i'm looking at them incorrectly i wasn't at the center hearings but it appears to me develop that there was some scheme occurring in whatever area this was the was going to allow our encourage officers to be crooked there was quote wild speculation by the defense in that case at the same time the u attorney's office did a good job it establishes that there was a discipline that could be imposed when considering promotions in this case through cross examination of the correctional officers i have asked about promotional incentives you know do you really think this would happen and i wish that it would that fall under it and if i did response i believe because it was based on the record on like in weatherly where it was looked like wild speculation and the government in this case had no factual basis for the discipline to say somebody as an weatherly would lose their job does this sound like common sense sounds like common sense somebody could lose their job if a lie under oath but we ask that their facts of record in a jury trial mr bailey snyder is not entitled to perfect jury trial but would like to give him the best jury trial we can so i was attempting to protect his rights best we can with regard to evidence in a very difficult  i'm sorry i don't know if you've responded to why as in weatherly reasonable response to allegations your allegations that they had an incentive why wouldn't it be a reasonable response to that believe it's it isn't reasonable because it would not be based on the record in weatherly it was your own and weatherly there was the development of the sanctions and i apologize for not answering your i maybe i'm not believing and i may not understood your answer and am i correct there was no administrative hearing after the shank was there correct as to the shank there were seventy five days of discipline imposed unrelated to this because mr bailey snyder had found himself in trouble for blocking a door and a disappearing in order then the hearings that were it looks like based on the piece of paper the government gave me the hearings that that's all the hearings were so he's never brought before the d h oh and there are procedures that again i could try to develop a record somehow i'm trying to trying to find a starting point for the arrest or accusation if the starting point i think has to be that when he was moved over to the shoe and i'm stuck with that it's not a that under this court's really under newbie i believe that the bureau prisons can do that without risking a double jeopardy violation there's no harm in doing that it would create some clear rules for people pending trial within the prison is in fact arrest we argue it's not it's an administrative proceeding completely different and independent of the prosecution of this matter there are a couple ways to look at would be that and the rest is a public act that may seriously interfere with various things such as a defense liberty it would disrupt his employment during financial resources curtail to us that a change from his location in prison from one area to another would trigger any of those at to any degree that would require the court to find out as in the last can prosecutors or law enforcement order that into the shoe i've never done so and i'm not sure that we can as far as you know it's strictly a decision by the bureau of prisons that it's it according the ministry of rules so as i understand it what happens if an inmate is found let's say in possession of a shank which is a violation prison rules he'll be put into the shu a incident report will be courses completely independent of the prosecution of course there was that triggering event he was written up and placed in the shu he was there for excuse was he not i'm sorry he was there for accused was he not of having had the shank i mean you had to be long that's not much of a life well i guess the question is whether it's that policeman issue is triggering anything in the prosecution and it's not as an independen what he's in there under the administrative procedures for the bureau of prisons and he has that recourse you can go that direction but it's unlike a normal prosecution where you know maybe there's an investigation doesn't like the fact that they're being investigated but they're out free there's no due process problem there but when he's put into a very adverse circumstances for a length of time true  again our position he's in federal prison to begin with he just moved from one area to to another the far right and being in the show is much different from being in a regular population is and i can see that yes now that i've was responding to the allegations made by the defense that there are some improper more the four of the guards that they had more or less planted or that he planted the seed for half the guards  jury that the testimony from the correctional officers that one of them had found only two shanks during the past year she wanted describe the testimony of us because the question officers  type of profession that's compared to just conjecture i think there's a distinction there and if it's such an assurance or the prosecutor's saying listen and of trust me no one's going to you know people in that position are going to do it prosecutor alone or was that valid comment only because of mr bailey snyder's counsel's argument that he wouldn't buy a home on the word of the two officers closing about that and saying why did these correctional officers take this person to a private area and no one else could see what happens happening using the cane that doesn't make sense in that particular statement so it's a re  what was done here but that's what i'm trying to get out i'm trying to get out whether this was valjean at all is sort of the prototypical vouching i think would be the prosecutor or the defense or saying something like  i believe he's guilty and you should too right that's sort of the obvious vouching right there are other types of elegy that are quite so obvious is this vouching that it's permissible because it's a response constitutes an assurance by a prosecutor tourney of the credibility of a government witness through personal knowledge or by other information outside the testimony of the jury this kind of legal standard put my position is it's commonly this common sense if someone comes in and lives to jury plants shake but the possibility someone's going to lose their career so strictly speaking i'm not sure it is bulging for that reason if it is vouching i think is a reasonable response to what's been brought to the attention to the jury some improper more of of allegations that were hearing within seven days and he can be present did i are you sure that that took place i'm not sure that took place and if it did take place it has nothing whatsoever to do the prosecution or not prosecution decisions are and to conflate the two having could be a problem what would he i mean if he if he didn't get a hearing what would he would it titian he would ask for administrative review of the fact i believe there's a ministry of relief available to your argument is that whatever happens in the middle administrative realm that's a parallel track that is not term meaning to the question of whether the speedy trial act clock begins to run because that is our position yes let's talk for me about harmless error this is a short trial and sort of depended upon the word of the two officers if we were to find that the closing argument was improper vouching how could that be harmless in light of the gravity of the trial in the paucity of witnesses because i think that there's even though   so but if the officers are not to be believed because they're trying to get a promotion and every time they find a shank they get a notch in their belt i mean i possible if the jury was swayed by that and said you know surge they play planet well true but i'm cross examination the correction officers indicated that it's their overall performance so result to promote everybody would say that but the jury might have bought the idea that you know like the defense counsel brought out this fact they might have said hey you know i know what the kind of a free pass if it is an invited response or don't we still have to look at exactly what the invited response said i think that's correct i think it's not an open book you can just go into any theory  and here i think it was fairly narrow we argued and i think it's a good response to that that was raised which is there's an allegation that there's misconduct by the guards for some type of promotional reason if you have no further questions thank you for your time thank you  we're going to follow them we're not bound obviously but what's wrong with with their opinions in those cases were they didn't go either they sort of comes when you get that many circuits it comes with sort of a mild presumption of correctness book i'm eager to hear you know if you can point to what's wrong with those opinions of me here i think you're honor if you look at maybe the dissent in one of the opinions where and i believe it was wearing there was one of the judges have asked for a preference for further factual development i think that the there really is a need for factual developing of these issues it's something that has to be looked at more closely can't be just simply adopted some of the court's not this courts but some of the other courts i think that have reached this conclusion the briefs i'm pretty bare records this but here's here's not here's my my trouble with that it's in it it's a fair argument but i think you told us the knish alee that the clock starts running as soon as anyone is put in the shoe and that's a categorical argument as you said in response to judge circus question it's that mr ball it's clean it has the virtue of clarity and predictability but it's for the analysis that's the trigger for the analysis of what was the shoe like for that person how did it deprived them of their employment of their finances in the jail have subject them to was there any other restraints on them that interfered with their rights or to prejudice and prejudice is difficult that's part of the second test as well but i didn't mean it to be a clear line for the entire test but rather something i need to concede that the that has to at least occur it's part of the analysis i do step one is seek to correct and i don't know that the other circuits have gone into all those details so that might be also one distinction and washington if findings were made on all those factors and there were negative correct then it would be the statute of limitations you could keep in the future maybe five years pending the f b i getting busy with some other things where people aren't just simply kept an issue for a long time and the bureau of prisons has no policy to really protect anyone against that at least i think ninety days after ninety days of disciplinary segregation there would have been some rights either be transferred or have a regional review so that's why in this case of the records not there i don't believe that there was a discipline narry sanction post in this matter i feel pretty competent since asserting that i don't take that assertion lightly i don't have the record for but that would be my basis for that thank you ok thank you council court appreciates the argument will take them