the morning your honour's your honour's may please the court stephen make if we have when we're styles when we're styles to me represents something bigger and that is one of the most difficult crucial times that a defense attorney goes through in trying any case state or federal and i say state because as i thought about having a scripted speech preacher your honor is today i thought about a case that i try with my wife  honestly level or would you address and i appreciate what you've got here but i think the one of the issues of these is the speedy trial issue yes your honor would you just address why it's not the case that  the defendant here actually consented to extend that time and why it why is there a violation here the violations would be twofold and there would be mr stiles there was some time that was consented but the record is the void any signature or any on the record statement of mr stiles actually consenting to any time being waved at his initial hearing as initial arraignm he would have consented to that at that point but after april th two thousand and sixteen essentially the record is the void to him consenting to any time after that day specifically in that there was no written waiver following the indictment i do says that your honors consider all of the motions that were made by counsel in regards to the seven the day speedy trial issue of mr stiles actually going to so that issue is twofold prior to indictment and then post indictment there has been some time that has that absolutely was conceded to but absent that st arraignment there were no consent we have cases which say that it doesn't matter if it really is a v interest of justice so it's hard to see that argument the more interesting argument to be has to be  pre indictment one where nothing was claimed in turn but it isn't absolutely clear to be a vet despite whatever circuits have held that there is order yes absolutely your honor and that issue is there's just too many factors here that are still unclear there are too many factors as to what was going on behind the scenes in regards to mr stiles switching counsel what conversations were actually done but essentially if you look at the maximum time that mr stiles would have faced in conjunction with him now being detained for the st time and his family needing him on the outside he was pushing each and every time he could to speed up this process he was constantly pushing his attorneys to continue to basically push as soon as he possibly could your honor so there are what was actually conceded to was never put in writing he expressed those concerns on the record this was post indictment about him never actually having these conversations with counsel and being adequately advised and that he never actually signed any effective way for so i ask that you indictment sanctions provision it says i'm leaving out some extraneous words but if no indictment or information is filed within that time limit such a charge against that individual contained in such complaint shall be dismissed or other was dropped i don't see anything in there that says anything about dismissing an indictment it says in the case of an individual against whom a complaint is filed if there is no indictment within the thirty day time limit as extended the charge in the complaint shall be dismissed so before we even get to the question of waiver by not moving to dismiss the indictment before trial if you say well you have to look only at a want not a two i don't even see where there is a provision for dismissing the indictment it seems to me the remedy is you move to dismiss the complaint on day thirty one and if you don't do that i don't see anything that says you can ever move to dismiss the indictment after the indictment is filed so can you help me out with the language of the statute i think your honour's interpret it correctly and the issue is that counsel did not adequately preserve the record specifically pre indictment and the record was not actually adequately preserved until post indictment that's the issue that essentially has continued throughout this case with mr stiles i mean i'm very puzzled what arguments you're actually raising because you did start out talking about both the thirty day time limit for the indictment and the seventy day time limit for trial but i don't see any argument in your brief that the trial right was denied not not word one about that now you're saying the real problem is ineffective assistance of counsel which also was not raised in your brief as far as i know that is correct your honor that is not raised but specifically that is where there is on the issues are on clear as to exactly what mr stiles was advised and what he actually did consent to it so this entire this entire situation has caused such an issue because of those on clarity but why does why does the consent even show up as an issue when the government's argument is basically that it was waived after the fact by failing to make a motion to dismiss the indictment and again i'm it's an interesting question every circuit that's decided has decided that the waiver provision in two applies to the entire section but i'm not even sure that you even get there under the language of the statute in the u s i'm wondering do you have any argument about  that not specifically i think your honor is interpret the language of the statute correctly and i ask that you your honour's take into consideration each of the the motions that were made by defense counsel to dismiss this case after the indictment and see that each one of those decisions denying those motions was in error so i ask that you consider is that an argument that reversed and the indictment dismissed because it was filed late in violation of the speedy trial now it doesn't say anything about motions made to dismiss the afterwards for failure to grant a speedy trial within the seventy day limit that is known i've just read it's very easy to read reread quickly because it's very short and your argument about the speedy indictment rule and i don't see anything in there that says oh the real problem is that any problem exists with the seventy day period for speedy trials on wondering what am i missing where is that in your honor that is correct i did not have an actual bold point heading addressing this yet what do you have and you tell me where there is a word in a sentence an argument that says so much as in a footnote besides he also didn't get his speedy trial within seventy days that would be page six your honor of my brief starting at starting in the the nd paragraph on july th two thousand and seventeen appellate move to the smiths the indictment claiming his rights were violated as the seventy day time limit for the trial under speedy trial that's that's that is then of what he did and where are you saying there was error i'm saying that him moving and placing it on the record at that time about him never being advised and never actually affecting anyway you for throughout the entire process was his objection that mr stiles put on the record and based on him putting this objection on the record and continuing on to have a quarter of direct address this issue ph seven in my brief that essentially encompasses each of the motions that defense counsel made prior to trial after indictment and prior to trial addressing the seventy day rule so it please the court assistant u s attorney how the united states your honors have captured the speedy indictment issue precisely on its head the fact of the matter is on the factual basis on this record that there were six separate waivers the st one that was oral magistrate judge garfinkel and then five separate waivers signed by mr style himself weaving his right to speak indictment because the parties with the two predecessor counsel the judicial council were trying to work out a disposition that would resolve his criminal liability quickly fortunately that didn't come to pass but as your honor has pointed out the statute says if there is a failure to move before trial in a subsection eight to you wave your right to dismiss and i would commence your honors at is not to be indictment it is to have a speedy trial so i understand that every other circuit has rule that applies to indictment but frankly that's very hard and you argument made by other circuits doesn't make terribly much sense because we talk about the word section but the word section in various part of the statute is very sloppy sometimes it means one thing sometimes it means another so unless we buy the argument that was made that you don't get to that at all because of a dismissal a complaint we have real problems and that like you to address that and also address how it happens clear that it's the defendant's role to spot speedy trial issues and zander was very clear that there should be no encouraging of gamesmanship in which the defense at the last policy i don't have any doubt about that at all and i don't see a difference between one and governor which is why the others are that and maybe we should just go on a policy that these days we are the waiver of the right with respect to the speedy indictment however i would submit to your honor's the best reading of the statute given the language that your honors have really pointed out under this section versus under this paragraph i would say is the best clue of congress pointed out there's no question it's been conceded by brother counsel that there was no motion made to dismiss based on a untimely indictment and in fact i mean there are there is a series of oral and written consents so while why do we even have to get to where you are exactly your honor i think you can short circuit your analysis by getting to that point but let me ask you a question as you are about this separate analysis that was the subject of some back and forth with mr metcalf so if ultimately the speedy indictment provision is violated and the complaint or a claim within the complaint is dismissed what's the government's position with respect to whether the government can then reinstate that claim in a subsequent indictment to think you can look at the language of three thousand one hundred and sixty two dollars a one which provides for this precise eventuality and says exactly the same thing that it says with respect to in eight to with trial claim that the court then determines whether to dismiss the case with or without prejudice and shall consider various factors so the court could say if it was an egregious violation  charges dismissed with prejudice now in the normal practice the complaint typically only has one charge in it i've seen others that don't but that's the typical practice and then presumably anything that isn't lock burgard would not be covered and other counts could be rising from the same transaction could show up in an indictment but that would be the with prejudice but it can also be dismissed without prejudice but again if you read it literally then this motion is only made when the only thing pending is a complaint and so the real benefit to the defended by suppose is he goes free at least for that moment because there's no pending anything against him at that moment the government may pursue other charges or there may be litigation over whether it's with or without prejudice but it's curious and it also goes to judge  you is this really to be solved by how you read the word section that in this instance the exact same language is repeated in both a one and a two which does make it seem all the more peculiar that the language about failure to move for dismissal prior to trial is not repeated in a one hour but these are puzzles and your basic position  i take it is that there is no violation so we don't need to rely on these various waiver arguments because there were proper exclusions of time made by the  judge or wherever was in charge during that interim period yes your honor and based on the defense motion it wasn't even that the government had a dog in that fight it was essentially the government accommodating the defense not opposing that position because we thought at the time we were going to reach a disposition that would obviate the need for an indictment in this case that i am kind of curious as to whether the government is urging us to join essentially to join via other circuits and to read visit statute in a way which is offered but which settles views for a variety of cases or whatever government is pushing us to decide this case on its own narrow facts and what happened here we have now can we check any of the other questions because you know that assuming we agree with you which is not  gaps of the rationale within the body of the six or it's have which have gone that way i don't think you need to extend the circuit's law with respect for the speedy trial act waiver to the speedy and i think you can resolve this case on a factual basis without having to reach that lasted from this it was enough to sixty eight or seven thousand nine hundred and sixty eight and i'd look in the last millennium until now without having to resolve this question because i take it it is very unusual that there is a call or a bold claim of a speedy indictment violation and there minute even be one here i think that the factual for today in this case is that the government's consent to the speedy indictment waivers was essentially a shield used by the defendant at the time because the government was at the time contemplating more serious charges other than the passport fraud case benefited from this he's essentially now an appeal using it as a sword instead of a shield e thank you your honors i ask that we briefly just take a look at my final argument regarding federal rule evidence six o nine and that is essentially where i was going down as the most difficult decision that a defense attorney has to make and that's whether or not to put your client on the stand that inquiry and that back and forth is a brutal process when having to go forward and actually make that decision after the government rested specifically the court stated to mr stiles in sum and substance if you wish to testify will be rigorously cross examined that was it at that point in time for the st time the government then mentioned that they could the word could cross examine mr stiles and ninety three dollars drug conviction the court then did no one alice about the government's position there was no inquiry made there was no further inquiry made there was no ruling there was no limitations there was actually nothing further said so either that or an objection and when the questions were eventually when the questions were eventually asked mr styles himself objected on the stand and i saw that specific inquiry in my brief st the government asked mr styles have you ever sold drugs before specific details about that case mr stiles said way in my past he admitted his conduct making any further inquiry at that point in a simple and we'll also make that argument made by counsel or by mr stiles who seems to have been fairly aggressive on his own behalf maybe did a better job than his lawyer did anybody make any argument that further examination was improper because further details for further details the probative value that the government presumably could establish was outweighed by the prejudice of going into the details now that objection was not me the only objection the weight of the evidence rules and procedures are put in place for a reason he should have had a fair shake at this instead of being a defendant defense table who is then question not only about drug sales i understand that but we do have a harmless error and maybe we shouldn't but we do have it and should we look at this case and yes your honor but under these circumstances when you take in conjunction a nine hundred and ninety three drug sale being divulged and then specifically going into a conviction and then you move on to the inquiry during his cross examination and going to domestic violence from two thousand and eight and uncharged crime mr metcalf could you at least now that your time has run out and address the government's actual argument here you said and i think you're right that these past would not be admissible under rule six own line as impeachment of his credibility the government responds that's not our theory that this was admissible as a direct contradiction of the defendant's testimony because the defendant got on the stand and as far as i can tell did not deny anything with respect to his guilt of this offense but basically made a kind of plea for mercy and nullification because he's such a good guy now that's what the government says that they were entitled to rebut his claim that he's always been an upstanding citizen or non citizen as the case may be so that's their argument is what is your response to that argument mr stiles direct examination did not open up the door to these two inquiries you know that's your answer ok thank thank you very much