the question in this case is what does it mean under the speedy trial act as interpreted by the supreme court in this court for a hearing to be required so as to give rise to excludable time under thirty one sixty one each one d from the filing of a motion through any hearing or and also what does it mean for a hearing to be necessary is as it has been used in the massachusetts plan for the prompt this position of criminal case discussed two different types of motions motions that required hearing and motions that required no hearing and this question is an important one because if no hearing is required then the time excludable under the speedy trial act is limited to thirty days after the after the motions have been filed in the cases under advisement if the if a hearing is required then any a sort of violation alleging that the sort of statute was unconstitutional in the first paragraph of that motion trial counsel said i recognize that the court of appeals court has already decided these issues that i'm raising are not factual issues they're legal issues i realize the first circuit has decided them i am raising them to preserve it for further review there was no request for a hearing and under local rule seven if a hearing is required is required it has to be a request the government filed in opposition saying that the district court can do nothing but then i the government's motion because the defendant was correct the first circuit has ruled on these issues and the district court is bound by them again the government did not request a hearing the case then sat that was in february of two thousand and fourteen nothing happened in october of two thousand and fourteen defense counsel sent an email to the district court clerk asking when a ruling could be expected and the case sat still it was not until december when defense counsel filed a motion to dismiss for a violation of the speedy trial and may i ask  i'm trying to figure out the incentives here why did defense counsel wait until this summer to file your your client is in custody on these charges his interest is in getting out you've taken the position and the score is that no hearing was required therefore it is the trial act there may have been countervailing factors i don't have the answer to that question i was proud and there's nothing in the record ok all right but but but the question is what  that require some factual determination and this this motion and it and i think that that makes a difference i don't think that a categorical approach is appropriate i think well but you see where that takes you that that means that that gets us into a situation we hear two defendants who file identical motions before two different district judges for an objective standard cuts both ways here one of the ways you have just articulated they couldn't do anything that objective lee could be concluded the other way is to say the know the clearest way to get an objective standard that is going to be followed the same way by two or more judges in the same situation is a categorical proof and why should we should we  guard list of their nature will be deemed to require a hearing or as procedural motions well not it is not perhaps the best way of addressing those interests if i filed a motion continue thank i filed a motion to dismiss saying that the indictment should be dismissed on due process grounds because the grand jury did not find proof beyond a reasonable doubt i mean i it's a motion to dismiss you got this same question i just heard use to miss my eyes mary the government also has an interest in avoiding speedy trial act motions and yet you didn't try to gather resolution of this motion or did you try to move anything along your own right there isn't anything in the record about any efforts that you their counsel made to do that i think probably the better course of action would have been for one or both of the parties to try to get the time excluded promptly to bring it to the judge's attention more promptly there was an approximately ten month delay in this case  t so happened that the amount of time that mr ibrahim had already served coincided with the low end of the guidelines so this is a situation where luckily the timing was consistent but there are other cases where the time in which the alleged speedy trial act violation came to the court's attention was much longer for example in solomonic you it took two years for the defendant to raise a speedy trial act motion and even after the defendant made that motion it took another six months for the court to schedule a hearing on the initial motion in that case i think it was a motion to reconsider should we have an objective standard is substantive procedural the correct dividing line yes your honor but first i just want to mention that i was only making that argument about the two years to show that that the issue of sumter fusion whether there is subterfuge first of all that hasn't been alleged in this case but in other cases the time has been much longer as a judge so his question i'm not sure that there should be a categorical approach and that there should be those right lines as far as i can tell the only case in which this court has said that a specific type of motion need not have a hearing is in barns and in that case this court said that for motions that request mere administrative things such as scheduling a date those types of motions typically wouldn't require a hearing and should be dealt with within thirty days in this case it is shrew that this court's precedent for close to the decision for judge will but he could have developed factual issues or factual matters that's essentially how case law evolves rights creative defense counsel bring up new facts and try to push the court to apply the law to a different set of facts and that's what we're hearing i would consider that a least i'm not sure that's right your honor because although rule seven point one suggests that the parties ask for our hearing when they want to hearing that issue is not dispositive it's really up to the district court judge to decide if a hearing needs to be held so just because the parties didn't specifically requested hearing doesn't mean that that decides the issue in this case for example neither i or i wouldn't go too far into the argument you made conceivably there could have been something that came up otherwise i think where this court would need to go is this court will then need to say that in any case where the issue or the motion is made solely for preservation purposes then a hearing is not required but it's within the court's discretion to determine why you're suggesting that when judge wolf said sometimes i'd like to comment on think that's the only reason your honor i just meant that some factual development is another possible reason yes but he can rely on that and it's sort of unseemly for the government to be doing that when there's no that that was what was the issue here i don't think that was at issue at the hearing i'm suggesting that it could be at issue in other cases which is why it shouldn't be up to this court to decide whether a hearing is required and that's all that no predictability you can get completely different results depending on the performances of the individual judge this court gets to review that discretion and determine whether the discretion was used and here judge wolf said that it was his regular practice to hold hearings on substantive motions especially motions raising constitutional issues and this court found that where it's or it's regular practice to hold hearings on motions that that is tantamount to a hearing being required but doesn't don't don't you simply plan your honor and you look at the plain language of the swedish will act if you if you look at the plan it's it's adding a word that does not appear within the plain language of the speedy trial and and and that simply is law there for one i'm sorry your honor i assume there was a violation of the local rule but not not necessarily the statu answer the question yes human the speedy trial act doesn't use them or work required but to the extent that this court either based on the plan or something else is going to read that word into the statute it is within the district court's judge sound discretion to determine whether a hearing is required and this court's only role is to review the district court's decision for an abuse of discretion and because this was judge walls regular practice to hold hearings he did not use his discretion in doing so i don't believe that the local rule local plan is inconsistent with the speedy trial act first of all as construed in henderson there is a just the court has made a distinction between required and not up to the district court to make an initial determination of whether a hearing is required if that is done under an objective standard it is up then to this court should there be a question about the propriet of the district court's finding or conclusion of law that this court would then resolve those differences as it does with any kind of difference about how you apply the fourth amendment for example what would be the bases here to find an abuse of discretion is it that there was no action for ten months when all that was needed was the signature motion denied that could have been angered many months earlier is it the nature of the setting that because this court had already decided the issues whether or not judge walther wanted to comment on our cases it was not necessary for him to comment on our cases in order to resolve think i think that whether a hearing is required to determine whether a hearing is required you look at the nature of the motion the relief requested and the facts and circumstances surrounding that motion what is necessary what is needed to resolve the issue because the purpose of filing the motion is to get an answer you're trying it's being filed to resolve an issue so the question is is a hearing under the facts and circumstances of that particular case necessary or required to reach a resolution of the issue or is it not