the proceedings the district court this morning in argument i thought i would address two of the arguments in the brief some being from mr baker starting with the violation speech trial act and then if time permits discussing the district court's  constitutional speedy trial argument so i think in this case is an interesting tension that occurred in terms of t the defendant filed a motion to suppress which came on from eventually hearing and then was submitted to a major street judge for a report and recommendation and lingered for nearly six months without any decision and of course as i read the air act once a matter of emotion is submitted to a court for decision there's a thirty day statutory limit while this time is going along a couple of times mr baker felt motions for contingents said i need time to prepare and by the way there's a motion to suppress pending decision the last couple of times in july and decision we'd like a decision so and then the court issued right consider to be essentially wrote findings that the ends of justice outweigh  the speed trial considerations and i think that in this type of a setting it's not appropriate to use this sort of care in variety ends of justice continu to override the court's thirty statutory duty to decide a matter within thirty days for mr baker but request that something like fourteen continuous many continuances i mean contains and certainly there's case law that says if you ask for a continuance you're stuck with it you can't complain about it later sort of like sand being but there's a speech trail act statutor trial continuance hundreds of justice and the government concurs the court still has a duty to consider the motion and determine independently on its own authority whether in fact the the  but i said you know time to prepare for trial and things of that nature is any indication that these reasons given by the court were just not sufficient in my opinion at least i can't really speak to all the earlier motions and the ones after the report recommendation was used on the motion suppressed but there's a couple of crucial ones that i've cited in my reply brief that are in the record july and august and it's very short we're here what's going on or what if the motion in the courts as well ok we'll wait for the decision i don't think that's i mean that's in the setting of the speech where like they argue that that's just not enough sure every case i mean otherwise if your court really says that that's adequate then really the sense of justice exception swallows everything i mean the court does have an independent duty to process cases and there are plenty of cases were very serious criminal charges have been dismissed where there was a long delay kind of not the humans at fault for the delay but the case is just sitting because the court is busy and has own things to go on i mean that i think it's it's it's a hard area because we do have lots of cases where it appears i mean how you reconcile them they're hard to record when when they're hard to recon but i would say this there has to be something that this court can look at and say well based on what was argued to the court or what the court said that that's that's enough and i believe it has to be more than just the defendant saying i'd like a decision on the motion because that's not a statutory only that's not that's not the defendant's job it's the courts the magistrate judge or the district judge the job is to decide the motion within thirty days or give some reason why there's something  here that the court gave reasons but that just that the reasons were in your view to abbreviate it was not sufficiently detailed i guess that your basic argument yeah i think i would i could go i think ones perhaps really august when you're saying it was the court just sort of gave a conclusion did not give a reason every right and that and it is important and i think you know i do think  it's unpleasant to dismiss a criminal case because of an administrator of delay that may be not the fault of any particular person particularly where the defendant is not standing up every month and saying you know i want to dismiss the case for the way but  really how else can you and force compliance with this act i mean that's that's what kind of the bottom line of that and i think you know that case i thought was pretty interesting because although the court a motion to suppress has been pending for five months so we're going to continue i mean it's not going fishing but it's getting there are so turning i've got a minute or two to turn to the motion to suppress  issue it's i'm picking a fight with the discretionary decision not to reopen the motion to suppress and really with the district court's conclusions about witness credibility so we have a late disclosed document that comes to light  says one thing in the suppression hearing it said something totally different another officer another time that comes to the attention of the defense as part of the disclosures on the eve of trial and they want to reopen that mr different times and that really technically that should have been reopened and gone back to ministry just to say in my opinion having still listen to the witness this makes his testimony not believable or doesn't affect my credibility determination that's that's  magistrate's report and recommendation the fact remains that throughout that period the defendant continued to request continuances including on the july twenty third report day he did express and on that july twentieth or the third report that the court excluded time through september seventeenth two thousand and ten the magistrate's report recommendation issued on september thirteenth which at that point of began some other exclusions from the speedy trial that calculation allowed for response objections by the defendant i believe were made on september twenty fourth and the government's response was on october second and then opinion issued november that states that when a defendant consent requests a continuance or consents to a continuance he can't then turn around and try to obtain a dismissal of the case based on that consent  there are a number of cases that use language that can't defend can't sandbag the court and then turn around or he cannot use the speedy trial act as a sword in the shield walling the court and the prosecution of the sense of secur false sense of security and then turning around attempting to use the speedy trial act to to obtain dismissal of this case  claim in the context of the case again there fourteen requests for continuance as part of the speedy trial act then i mean yes part of speedy trial might claim and then once that was resolved the defendant continued right on requesting continuances for i believe there were another six continuances after it was resolved so it's quite clear that this the use of the speedy trial act here it was is not reflective of a genuine interest by the defendant in a speedy trial and then again i'm not saying i'm not saying that's controlling because the act has certain parameters which all weigh in favor of the government but in the larger context to it it's clear that the speedy trial act was was not desired by the  and second point i wanted to address or an additional point i want to dress is the public interest there are certain factors that are in the public public's interest in a speedy trial is implicated by a certain factors in terms of  a need to preserve the means of proving the charge to maximize the term effective prosecution and conviction and to avoid in some cases an extended period of pretrial freedom none of those public interests were implicated here the defendant did not have pretrial freedom the means of proving the charge remained intact during the duration and the gold guilty verdict ensued i'm sorry i'm repeating my brief but as i stated in the br for the defendant to obtain the dismissal and the base the public interest would prefer produce a particularly perverse result here because his conviction was clearly in the public interest and he didn't want to speedy trial  and then finally although it does not need to be addressed at length the defendant has not pointed to any prejudice resulting from the continuance as he requested in the court granted other than he was kept in jail for a was not prejudiced in terms of his identified nope he is not alleged that is prejudice and he is aside from that he has not identified any prejudice with respect to defend the charges against him in terms of a finding of appellant raised in fire of the district court to reopen the motion to support that's correct that that's absolutely correct your honor the and the government's position is that the standard is abuse of discretion that is correct and there was no challenge to the fact that they saw several hand to hand cocaine transaction there was no what i've chosen to look at this series of events and at least three separate stages and those stages being there's first a period of some initial observations where there is that he did make the statement there's some doubt about that but also made the there was an inconsistent statement there is where the inconsistency lies is in the context of these initial observations there is then a stage when the officers are moving closer to the defendant and they make additional observations including removing a plastic bag containing a white rock like substance presumed to be and later confirmed crack cocaine a firearm in his back pocket this is at a you know at a much closer distance as he's walking from their car five to eight feet a very short distance there's no dispute about that point in time and of course the third stage would be with the actual apprehension the arrest and there is no dispute in the record as to that moment in time and the question of terms of the motion to suppress is was there probable cause to arrest and the government's position is yes there was based on the observation prior to arrest of the crack cocaine in addition the firearm in the back pocket and some there was some lack of clarity perhaps in terms of who prepared the report am i correct about that that being prepared to report but it's unclear where he got the information to give rogers and reduce or in some other way and apparently dean could not stay with any conviction that he had gotten the information from those other two officers and so there was this that's accurate larry g and i guess the question is where to go that what there was that may correct on that issue it was about as clear as mud apparently there was a telephone conversation that detective dean had with someone he believed at the time to be officer reason obviously because that's what he wrote although it was later on clear he wasn't certain whether it's research rogers i'm not sure whether it was clear he was certain they were talking about that event or another of their vent events on their taskforce where they're observing people either way there was someone clarity as to who was in the conversation exactly what was said and what person presumably about that event but maybe not but regardless the question is is is reopen and then within the context of that analysis whether the district court clearly clearly entered in its credibility findings and and in finding that the new information did not change motion to reopen and reconsider its of denial for a motion to reopen at this point the district court that heard testimony from all the relevant parties had had an opportunity to evaluate their credibility it had  observed the relevant documents and received poster out briefing on the issue in may of two thousand and twelve and had her post trial arman on the issue and it again rich same finding and found that none of that information would have influenced just this decision as to the outcome of the motion to suppress that's the same judge different job was a different judge your honor judge mays at that time the western district it tennessee had a rotation docket where the first two weeks of each month were were one trials were held and there were certain judge that would sit on the rotation docket and on their schedules and so on and so forth so it was not uncommon for the judge had had the case for  new judge to handle the case at trial separate from the judge would hand it up to that point judge mays had the case up to trial and issued the initial order to nine motion to reopen and then judge anderson heard the trial moss case ruth recurred to my standard review but when i was preparing for oral argument i went back and looked it up again and that's not a case really on all fours with her case but there are some similarities there it was a motion to suppress exxon for ten months and the defendant did object to it up to a point and then court this court actually ended up ordering dismissal with prejudice because of that tape for the way and i think that's because there is a take into consideration i'm just arguing they don't really control and i don't think they can control when it's about a matter that's within the control of the cork the decision on a motion to suppress so effect that if the defendant asked for motion to suppress if that i mean i know yet that would have been hearing that a well i don't you think that's really what was happening here we're here to report it why are we going to trial we're waiting on a decision a motion to to suppress judge so that judge you know why don't you just dismiss this because they're not table man and mr fabian for your arguments today and the table and i know that you are serving today pursuant to the criminal justice act and for that we thank you that's a real service  to the system at large certainly in service to mr baker and i think you've done a fine job today representing both interest so we'd like to thank you and mr fabian of course thank you for