with the speedy trial act it's our position that there are really two errors here the st i would characterize it as more procedural and then a nd substantive we believe that both are grounds for gs itself were insufficient it never addressed the relevant standard in that case which is the reasonable standard that is set forth in cases like whole and master it simply preceded  honor however master makes clear that a motion to sever is not is not required in you know frankly the the objections one a defendant is objecting saying that he wants his trial on a speedy trial under the act and the others at least some of the continuances and not all the counsel for mister henry objected that is at the same time said i need more time i'm not ready protect your honor i what is the judge to do when confronted with seemingly inconsistent requests i didn't want to comment on one aspect of what the what the lawyer did but i do think that there wants more time but this but the actual defendant doesn't want to assert his rights the judge just posted a how the hearing and figure out what's going on on you know is there are there accommodations that can be made to  trial lawyer never signed any of the stipulations that continued mister henry ford if the government did make representations in in the in the stipulations of not mister henry's trial turn he's on a schedule and things like that but the lawyer himself never signed the stipulation and i again want to pursue problems in his case in ways that this out in a reply brief is that some of the representations i would characterize them as wall at the very least they were misleading for example the government said in one of the stipulations that the lawyer had a trial scheduled for a particular date the lawyer was relieved from that case and wasn't even a lawyer on it has yet been relieved two months earlier so the representations were you know at least in that one particular stipulation were false if not misleading and that's the point of having a hearing is the court is supposed to inquire can we can we move trials around what really is yours does what you really need this time how what on the papers for a relatively brief continuance of the trial but when you're talking about the genuine the trial out well past the seven days this trial been in the curve for approximately a year later and when there's a when when one of the a procedural error which we think requires a reversal because you because you cannot after the fact make the requisite findings and conduct the requisite hearings we think on the merits it was unreasonable to continue his case over mister henry objection and i think the really three main factors here as to why it was not a reasonable one is not as i just mentioned the length of the delay this was a fairly lengthy continue when it wasn't just over the seventy days it these number two the fact that mister henry was detained in a master for example the defendants weren't even detained they were out of cars here we have to detain defendants and then number three the prejudice and this is supported by the whole case on the government was able to obtain perhaps up to three cooperating witnesses to testify against mister hall during this alleged they had a codefendant santos who the they were able to get his testimony during th significant prejudice a to mister henry and when you take those three factors the length of the delay the fact that he was detained and the fact that there was significant prejudice here we think it was unreasonable under the master and whole line of cases and in fact if they were able to find three witnesses and even and even if now ask the question mr cohen i'm sorry to interrupt you but it bears on exactly what you're saying does the government's purpose in getting the additional time have to be in order to obtain a cooperating defendant's testimony or is it is that not a necessary element of a finding for us to france of rel that you're seeking i don't believe in some necessary finding i mean i think both hall and nasser say that it's a totality of the circumstances that that may be something that be a factor that the court may want to consider in the whole mix of the analysis but i still think that when you to talk about the length of the delay the fact that he was detained the economy that way and that he did suffer prejudice whether it was based on the government's purpose or not he still does not prejudice and when you look at all those factors together on there is no required finding is the totality of the circumstances has and when you look at those that somehow the circumstances i don't think that that that i think my position is that this case is actually worse than whole and history given the given the length of the delay is detention and there are three witnesses that we're talking about the old testified against him on as a result of the last so for all those reasons we believe that there should be a reversal of the typical rule in this in this circuit is that the determination of dismissal without prejudice is made by the district court the st instance and we think that would be the appropriate course in violence contact after davis before i do that i just want to make one general statement which is that pinkerton has received a fair amount of criticism over the years but in fairness to pinker's him i think it's because  or any case that ever allowed that type of liability of a courts have gone ahead and allowed fingers a lot of not even for offense subsumes offenses that aren't the object of the conspiracy and that and that's just not what tankards him was designed to do well i do agree that there are there are lots of jesus is that have applied thinkers to non objects without really considering the issue i don't think any of them actually rolled up their sleeves and said well let's take a look at this  that was involved was the object of the conspiracy i don't think any court has done that and in that the government has led any prepaying courts case that ever ever did there is no common law history of all seeing people accountable u their conspiracy theory of liability for offenses that were not the object of the conspiracy that's just something that the courts so pinkerton and ran with the lower courts without any justification that a lot of that a lot of case law has built up over the years that said it's not exactly a new authority oh absolutely i mean i agree that there are there and enjoyed a lot for us there including monster detainees and that do that i just think they've done that without existence a crime of violence the defendant has to have the intent to use the violent force and pinkerton doesn't require that type of thing that just requires reasonable force the ability  know there's not i believe this is an issue of st impression i mean davis is only about eight years old and there's not a lot of law out there on it was davis but that the  it stands right now because the residual cost is no longer in existence there needs to be downtown requirements of pinkerton he cannot apply i only only understand why davis has anything to do with what we're talking about the defendant  personally engaged in that as well i guess i don't see why the why davis is coming along affects in any way the analysis that we it's our position that if that is the analysis then then there are no federal crimes of mine because every crime of violence you look for in a categorical approach you look at accessible reliability and then for every crime of violence if you can be convicted under a pinkerton theory then no no decided that was not sufficient and to to grant a continuance on that basis here we have a much more detail talking about the problem in lloyd was that there were representations made about the on the bill that will be ok now who did not themselves defendant's counsel reps and he had a trial on a particular date and then that date changed and ultimately i think i don't think there's any reason for an inquiry at all i don't think there's any reason for the courts believe that representation was false and even won the case and froze and needed time to get up to speed so i think even if the courts have concerns there is no need to inquire further because it gets still determined the continuances for reasonable and i think that's well supported by the record in this case use the word anchored in liability it's not about conspiracy and it's not even about the elements clause exactly and your honor i think defendant's argument he's trying to infer tension by arguing that  liability and ultimately the holding in that case is that if someone's going to be held liable as a major veteran or under ninety four stephen and they need to have advance knowledge of the firearm they can't be held liable when they're sort of it and unexpected firearm that's old out birth in the way that you're advocating again i i don't think they diverge i think this is something that the seven circuits recognize this sort of brings them together and if it needs to be reasonable forseeable that a firearm is going to be used and if and it's going to have you know some liability have taken different paths and figure liability as the supreme court has has announced that it only requires reasonable forsee ability and i don't think that's something this court has the power to overrule and again i do think this this i don't think there's a lot of daylight it's reasonable for see availability and advance knowledge of a firearm and what this report was also getting at rosemont is that you don't why it's someone to be held liable when there's an unexpected ease for firearm and the reason w here and really none of the cases the same for the objects of conspiracy as you're on a recognized that's certainly never been the line under anchored and and there's a lot of president of the phrase i don't think this court you know and again this was this was a case where there's no real unfairness with this rule the defendant knew there was going to be armed robberies so i would push back on the notion that this is sort of an unfair application and i do see the amount of times of there any further questions i have to answer the last will will smith in our priest representations of mister henry's attorney were just flat out not true i mean it was they needed a trial of the case that he was no longer even the lawyer of record and when you take all those factors you take him being detained the three cooperate witnesses to testify against mister henry not that makes the fatality the circumstances here particularly prejudicial and we would ask the court to reverse that ok very good thank you both for the arguments kids just