case fifteen seventeen eighty two james sylvester jr versus usa argument not to exceed fifteen minutes per side mr shakur you may proceed for the the morning your honour's may please the court i'm daniel sugar the court appointed counsel for the appellant james roy sylvester jr and i have requested three minutes for rebuttal this case is about a man who speedy trial rights were violated and whose trial an appellate counsel repeatedly failed to protect those rights during the two and a half years before sylvester's trial the act was violated twice the government and then the district court plainly infringed the act everyone but the government now concedes the act was violated so that's just trying to tell council had many opportunities to correct those violations before trial or on appeal before this court but they missed all of them before trial his counsel failed to identify a speedy trial at violation either before or after two key witnesses died separately on direct appeal before this court because counsel again failed to identify the violations despite extensive prompting from of the panel this court how does counsel raised the violation or agreement that there was only a violation of the are really you can look at three key time periods the first two are before trial and the third is on appeal and the first time period is essentially the time from when these violations occurred they both curd in july of two thousand and three and when the two key witnesses passed away which is in july of two thousand and four for so lester's grandfather and september of two thousand and four for mr wooden the second period of course is after the dismissed the indictment for without prejudice the government were us re indicted your madam and then the facts my conviction wouldn't be any prejudice so what do you say to that so i would say first the government still contests fourteen years later he refuses to confess that there was any error or any speed trout violation in this case according to his prepared for this court or the way i would say to look at prejudice here so in that first time period before the witnesses died if there had been a recognition there been a motion under thirty one sixty to eighty two by sylvester's trial counsel to dismiss the indictments as the district court said you know finally realized in twenty fifteen the indictment would have been dismissed now had that happened earlier on there would have been say that they're after the mother was indicted so that would be an element of prejudice no one wants his mother  and the mother had not been indicted during the period that was open or a speedy trial and what about anything thereafter like the sentence in this case  months so yes so i think there's separately there's the different kinds of prejudice that were suffered and also the specific sentencing issue here there were a number of enhancements that were applied during the sentencing phase there was a leadership an obstruction and handsome and the court basically found that since mr sylvester did testify on his own behalf in this case and the jury of course found against him that there is an obstruction has meant that was to be added there to now the count three is worth noting because count three which is possession of a firearm in furtherance of a drug trafficking crime requires a mandatory five year consecutive sentence so the rest of these counts rand can concurrently there is a thirty year sort of  highest amount of any of these both counts one and two and then there are others for lesser and some indication of the firearm would not have been included if speedy trial actually had been observed so there yes i think there are many superseding indictment which included after the qur'an so that would have been included that charge count three there is a violation for that specific charge there are other ones like the prescription pill counts which came afterward and then we really have to go further into the hypothetical analysis that strickland asked the courts to do without prejudice about what would have happened had these witnesses  prejudice or a timely objection on this we then the government could have included these other counsel leadership unhandsome of the far in the real and i also i think that gets to a point you know we had as i mentioned in the trial phase separately of the there's many different times when counsel could have reasonably as a matter of strickland performance could have reasonably moved for dismissal under the speedy trial act everyone can now see in retrospect the later there had been a motion to dismiss under thirty one sixty to eighty two to dismiss the indictment in this case the more prejudice would have accumulated to celestron the more likely it would have been that the district cou dismissed with prejudice we can look at the three statutory factors here no one contests the seriousness of the charges as this court said and mohsen other cases drug charges categorically serious doubt the other two factors however factor to under thirty one sixty to eighty two factor to ask us to look at the facts and circumstances that led to the dismissal one of the things the courts can often do consider here is whether there is a as the supreme court said in taylor a pattern of neglect or a truly neglectful attitude or is this court said in ma myers excusing a pattern of negligence on the part of the government to have the district court discovered say two years into this prosecution to begin with the drug start running again and there is superseding indictment which everybody now agrees is not the case so apparently that's what happened five and this court noted that under this seventy day provision in the speedy trial act the government is not entitled to a reset when a superseding indictment is filed and in this case you know when  dismissal with prejudice third factor being the impact on the administration of justice and and it would have to look to whether or not there what we would have to look to the degree of prejudice yes make a determination and a lower court has found that the particular absence of the witnesses rely on did not res in substantial prejudice or prejudice significant prejudice to me so the lower court i think it's a little bit confusing at the lower court looked at this under the speedy trial clause argument which is not at issue here it please the court gets for the united states the defendant here cannot demonstrate stricklin prejudice the district court here found that it would not have remedied any of the alleged speedy trial act violations by dismissing any of the challenge counts with prejudice the finding forecloses the defendant here from demonstrating strictly prejudice and this court's analysis should begin and and on that point it looks like them there is no way to enforce the statute looks like you're withdrawing any real method after the fact of enforcing the speedy trial act that's not true judge marathon trip for two reasons first i think the key word in your question there is after the fact it would be enforced if race contemporaneously now when raised ten twelve years later it becomes more difficult because it has to call a way being raised then has to overcome you know provide cause and prejudice why wasn't race at the time there's a default problem where but they've overcome that in a sense ineffective assistance of counsel which is normally a way of overcoming default but what i'm saying is in that context here we are years twelve years after the fact if that is not a way you can raise it after the fact there is no way to raise it right because you've defaulted to it and you've got no way you've got no way to show ever show prejudice that's not true judge merrick to get to the first point part of your question that cause and produce analysis would dovetail with the ineffective assistance analysis and then if ineffective assistance analysis could be met by a defendant who showed not only that his counsel performed efficiently  failing to move for dismissal but also showed that the indictment would have been dismissed with prejudice so he if he had been able to show here contrary to what judge lawson found that the indictment would have been dismissed with prejudice he would have propelled prevailed even now ten years later that's why this case really turns it rises and falls on whether or not judge lawson abused his discretion or clearly erred in finding that he would not have dismissed this indictment with prejudice at the time had defense counsel made this motion and it's not just me saying this judge merit it's every court of appeals including this one to decide this type of claim in  twenty two fifty five context we've cited a couple of those cases in our brief make all of which is unpublished held that this was the exact type of analysis that applied here campbell which is published require the defendant to not only show deficient the trial judge would not have dismissed the indictment with prejudice even though it may be twenty years later  assistance claims where you look back in retrospect and you see an error the defendant still has to show prejudice i mean one of the reasons that burden is so high is not the indictment of the mother after the fact this man's mother i mean most people would say if you cause that to happen that's prejudice they indict your mother what's wrong with saying that's prejudice well there are a couple of reasons a couple responses that one judge the mother indictment was not tied in any way to his indictment she was indicted in the same taste but on entirely different counts and two this is an after the speedy trial acted run and they couldn't  forward with they could not go forward with a superseding indictment under the speedy trial act and they did and they indicted his mother and you're saying that is not prejudice it's not prejudice judge america and again there's sort of two reasons here one is that had let's say let's say they had moved for dismissal early in the case and those first couple indictments were dismissed without prejudice the government would have been reinvited and then later after the d n a results that's the second argument response your question after those d n a results came back could have indicted the mother on those separate counts if you want to look at the record and i apologize and dieted her separately but not in this case indicted or separately or in this case i mean keep in mind how can they indict her in this case if the speedy trial act is right because the indictment would have been dismissed without prejudice and the government could have indicted the case and that's the whole essence of this missile without prejudice is the government can re indict and so if the government re indicts then it can add the mother later when the d n a results come back and that's actually the the key point in answer their question that they want to make it seem like there's some insidious motive for the government delaying indicting the mother the government delayed indicting the mother because the d n a results on some of the items seized from the house didn't come back until year later this was two thousand and three technology has evolved quite a bit were there were i will say in judge lawson found this in his order here as well the reason this happened in the way it did was because the government arrested this defendant on the date the virtually the same day it indicted him when he came to the bus stop and picked up the bags it was a reactive case it had been in the works for more than a day and so after they did that they had to go interview coconspirators and cooperators in california there were two of them in california had to get the other cooperating witnesses on board had to test all the drugs had to test all the guns had to test all the d n a had to get the phone records the western union records all the corroborating evidence that was present in the trial if you look at the way the government's that by its actions with the series of superseding indictment because the superseding indictment comes and there are new claims that the parties that puts the defense in the position in some instances and i think all of those who attribute to the government's actions but it does kind of put the government in the position basically of driving this whole process and really misses the pay to a lot of the delay that that did not really pretrial motions from both from multiple defendants this is defendant who changed his attorneys i want to say four maybe five times filed grievances against two of them that also extended the time quite a bit i mean if we look at the time period when the violations occurred here that was in two thousand and three assuming there were violations that does talk i'm sorry what those are on his own activity asking for more because if the judge makes the end of justice findings the tolls the clock and usually the judge would and that gets to another point for why the district court here did not would not have dismissed the case with prejudice the district court found at worst a one day and a fifteen day violation of the speedy trial act one day and a fifteen day violation and those occurred at the same time the defendant was firing and then finally trial right now in two thousand and three he couldn't his attorney could not have gone forward they were there was an irreconcilable dispute it he was in the process of firing him so the district judge not only wouldn't have scheduled trial but time but couldn't have scheduled trial at that time what about something like that i don't see how after the fact where the district judge doesn't know how the speedy trial act works how the government counsel paranoid and the defense counsel don't know how it works and think that it's going to be reset every time you have a new indictment i don't see how you can ever under the way you're handling it have any prejudice because the judge is naturally going to say well i didn't know myself that this was could be done that way is going to tend to exonerate himself as well as everybody else in the case by saying that there is no prejudice you follow what i'm saying the instinct of judges just like the instinct of other human beings it's too if you don't know about it lawyers don't know about its own you're going to tend to say well there's no fault here and i'm going to say no prejudice but if that is the course of human nature then you got you always got no remedy after the fact follow additional work afterwards for the judge if the judge hears that i would have dismissed counts one through three with prejudice only has to do is vacate those counts it doesn't require anything else for him if you're says i would dismiss them without prejudice or i would have dismissed them without prejudice which is what he did here still the same thing it requires very little additional effort now your point i think judge merit was that the judge is going to be reluctant to admit he made a mistake to the judge yet the judge the judge here did admit he made a mistake that goes more towards  deficient performance oh but he admitted it was prejudicial as well well that's why this court reviews whether or not the district judge would have dismissed it with or without prejudice and whether or not to credit the district court's reasoning and here the district court someone extensively explained his reasoning and described why he would have dismissed the case without prejudice they were serious charges as we go through the list in thirty second a lot of some of it had to do with for this drug crime here and there's no way to know exactly what would have occurred if the law had been complied with right i'm not sure that's true your honor i don't agree with that we know what would have happened the government would not have given up in a case of this magnitude were filed eight superseding indictments and given up if he had the judge had dismissed without prejudice to your point about sentencing judge merit this was a thirty five year sentence and it is a very significant sentence one of the things that drove this sentence was the defendant's criminal history he was convicted of second degree murder and while on parole for that which he had originally given been given a life sentence he committed fraud that increased his criminal history to category five as far as the enhancements at sentencing counsel here is only partially correct about that obstruction and handsome and it wasn't just because of his testimony at trial and i'll direct you to pages two to one four to two to one five with the record it was because this defendant called up one of the witnesses in this case while he was in jail and told her to testify invasively the district court found that that also supported the obstruction handsome so there was a reason for the stiff sentence for this defendant judge merit the other thing i would add in response to your question on sentencing their best remedy here is vacating counts one through three they haven't argued that the speedy trial act ran as to any other counts so their best remedy is to vacate counts one through three and count thirteen is the drug conspiracy count he got thirty years i count thirteen the guy the range for count thirteen would remain the same today so even under his best case scenario here judge america he would get five years off it's what about what   he confessed to the crime of importing the cocaine from california the district court here found twice over that neither of those witnesses would have made a difference this court found under rect appeal albeit under a slightly different but the question i'd also note that there was a witness who testified at trial that the defendant and made it to him that this supposed used car business was just a front to launder drug proceeds that's at page one six one nine three one six two zero  the guns even if they were alone to him even if the that witness had come in had waived his fifth amendment rights and said yes i gave this stolen gun to a drug dealer in exchange for money i owed him the odds of that happening are slim but let's say he did the gun was found loaded next to drug sales in one thousand pills they simply it simply would not have made a difference you're in the you're as i like to run through a few points quickly if if i can so first of all as a springboard said in barker when witnesses die the prejudice is obvious but of course we are looking into facts specific reasons as well i'd like to make that point second the district court in this case did say you know looking back what it would have done would have been to dismiss without prejudice however if you take a look at the record look at page eleven seventy eight to seventy nine during the motion to dismiss hearing in two thousand and five the court is in passing a century indicates he's unsure what would happen and says it would quote probably be helpful if counsel submitted a briefing on this they did not because the actual motion to dismiss the dates of not get very far but the district court indicated at the time he was unsure and actually further down in the transcript the court also indicated some amount of impatience with the number of superseding indictment and asked you know are you finished with the indictments we're not looking at another one our way and i would say also even then because this is trying to fifty five of the district courts remark about what it would have done hypothetically see no reason to fault the magistrate judges analysis and by the way no witnesses died and there's no claim of that i would also add you know that the government is really as was discussed during the previous conversation restart the clock and mr jacobs the trial attorney for mr sylvester was retained and made an appearance in november of two thousand and three that is nearly two years before this trial took place now there is a twenty six month period where matter how long the delay is supreme court said in the shall be dismissed requirement and the shall be brought to trial in seventy days requirement is an equivocal it is a binary requirement we're not in constitutional barker struction of justice and therefore reasonably a judge is not going to say that there is no prejudice and dismissed case he makes that point and several different ways where you say to that overall i would say are that we don't convict defendants on sort of broad brush theories of is he generally guilty or not as the brief briefs here make clear you really need to look at the specific counsel to count three in mr was and look at the counts with intent to distribute and sylvester's grandfather we have to look at specific counts here and actually that brings to mind one other thing the government did say about that other count thirteen  the matter is now submit it mr shocker we see that you are appointed under the sea rules we want to thank you for your representation it serves the ministration of justice and we are grateful for your service thank you you