that the court has a sufficient record at this point to not have to and also for the reasons that court just alluded to that the court has sufficient evidence to direct the court to actually  district court to find a speedy trial violations particularly i'm going to argue with respect to two particular time exclusions that were not handled by the district court opinion those  with or without prejudice i think that that is that would generally be the case we have a somewhat of a unique situation here where you have more dance record with respect to i guess the factors that the court would need to consider with respect to whether or not to dismiss it with the president is is granted those three factors that the court would need to to to deal with in terms of the circumstances that led up to the dismissal the circumstances the facts of the case of the seriousness of the case as as well as how this would affect this administration of speedy trial lack the last one being most on point here where someone pled guilty while they were awaiting a ruling on on him for several months on a motion to dismiss and then got credit for time served as the sentence i think the administration of the speedy trial act in his particular instance first of all the seriousness of the case was addressed by this person already has done his time and has already has a conviction on his record so really what's at issue is whether he's got the ongoing stain of this conviction or whether that's released right that that as well as yet as well as what as well as the the conviction is this an endemic problem with some a i'm in this situation was obviously complicated by the mental health issues yes is this an endemic problem that you perceive here with other clients or remoteness of the virgin islands or combination or can you identify the first delay comes in in terms of getting that for some reason there seems to be a recurring problem with getting the order from this court from from the courthouse to the marshals i don't know why that occurs but that occurs over and over again whereas the district the clerk's office is we we we sent them we have no order the marshals office says we never got the order and unless we and the district court even that next the witness well did you inquire as to why that was a daily she said yes i inquired to the courtroom clerk as to why i was the lead and he said he'd get back on me and it was left at that the government didn't go any further in the record to find out in the court didn't go this record didn't go any further to find out well the what did happen i mean this is court personnel this is the marshal's office all who are answerable to the government all who answerable to the public and all who answered to the district court and but obviously they're not answerable to mr williams and that's who was deprived here and that's the that's the fatal heart of this that that is it's why impels the court at this point to grant dismissal but what about the second bucket of delays so when you say the second bucket of delays i think you're talking about the delays under rule twelve any notice of mental insanity or anything like that and you also have further evidence that you have this issue that had already or risen with respect to the still lay  transportation before this happened and the government is over here where you have this point as to whether or not the speedy trial act clock is is running so how should we write this i mean what would that what would it look like in terms of the tim the i think the in terms of the timing the court would have to say based on a number of factors mostly coming from the district court with the decide what did after that most and did and did after the government filed this motion on december second and the defense filed a motion to dismiss on december eighteenth the district court had called for hearing on the motion to dismiss the district court called on the government had the government respond to the defense's sixth amendment argument the district court also then had the hearing and question the witness and ha argument from counsel then the district court once again acts for another response with respect to a supplement that was filed all of these things are difficult did the district court never raise anything about this motion in limine the until eleven days after we took a writ of mandamus to this court so what you're do you go back to what you had said earlier i guess for you citing citing the henderson case it's a question of when to go under advisement you know under the under the statute that under latin e a proper motion in limine a tolls the speedy trial act yet you're saying you can't call this a motion limit is it was mislabeled or yes your honor it shouldn't be given  that it should be treated as a motion women even though that's what it was call at best it was a no mip perhaps it was a notice similar to the type of notices that were filed in the d c circuit cases that hey if this issue you know we're going to we're to be doing this at trial i mean it looks like a standard motion eliminate they were trying to preclude any evidence regarding competency right i mean that's motion in motions in limine they are about evidentiary disputes typically aren't  that you know what can command of what's going to command and what isn't going to come in yet evidence and here they're saying we don't think any evidence regarding competency should come in that seems like a garden variety motion and eliminate yeah well not when the issue of competency is not even only with the issue of competency could be at play if the defense had filed a notice well i think they were being preemptive right i guess they were trying to you know preempt you from doing that under that circumstance is the government can always say we're following a motion in limine a because we don't want well and you can respond the next day saying you know cover when the government falls emotions saying no evidence regarding competency you could follow a response that says no problem judge we're not putting competency an issue and then the matter is closed and then the speedy and then judge enters an order in the speedy trial clarke begins to run again and under the sane kid line of cases that we rely the defense and this was in the harris case that they cited to both tapley and marshall when the defense files a response then the defense is response may therefore be considered a a motion that would stop the speedy trial that's what i was going to let's assume we don't agree with we let's let's assume we do dina to be a motion limit and then what your argument well attention and within a few days after that the court ordered the defendant to be evaluated interestingly enough even though the court order evaluation it would appear we came up to a hearing on april fourteenth the defense counsel for the first time informed the court that is lance's misusing to participate in any evaluation the moment mr potter i'm not sure these facts really bear on the question of how many days of non excludable time passed and by my calculation if we assume the motion of a woman a is a true motion and women a you've still got eighty three days of non excludable time how am i wrong on that i think you've already conceded the fifty i guess fifty three you care to comment on the issues transporting people to where they need to be for complex evaluations so generally i was only in this case this case involving that but i think that's an important point that helps us get to the nub of this problem if i hear you you're agreeing with my understanding that travel delays to a competency exam over ten days yes but you're saying well it wasn't malicious it wasn't intentional it was a an honest mistake yes and right but where where in the law can this court say that the statute passed by congress granting defendants speedy trial rights which go as mr duper said not only for the benefit of the defendant him or herself but also for the benefit of the public how can this court countermand those statutory timelines on grounds of honest mistake that it's not even that honest mistake if the issue was that the mo matters whether it's the marshals the clerk the judge that's the government if you're the defendant you know you're on one side of the v everyone else on the other side of the v if you're the defendant you don't care who on the other side of the v up you just know that you're sitting there sort of you know running away with your speedy trial advice rights being violated but it's to some extent i don't agree that though that think doesn't it i mean it i think that goes to remedy right is it dismissed with prejudice or without but anyway either way this case has to go back right  may be willing to give it that is about we need to have a clear indication from the court it's reasoning and if we do more than that we do remain and it for the for the district court to determine whether with prejudice or without prejudice appropriate do we need to provide some guidance here is is there a systemic i think all three of us i think are concerned that to the extent there is a systemic problem here with mental health evaluations we'd like to try to alleviate that systemic problem is there something that we can say or write on that or does the government need help from this court or from the district court to make sure this sort of thing doesn't happen in the future are other cases where that is the same issue communication between all that the transport and the marshes receive in the order i don't know of any other case  occurred now the issue maybe was the courts must be the marshal service the season or given the transportation issues it may be difficult for them to begin that the second circuit them have a different view on why the majority you circuits wrong down on this side of the defendant the side of the speedy trial but i think the house also have to look at the purpose the purpose why public needs to be a witness have a record show and you speak to the seriousness of the offense because i remember thinking the the offense i think dig into the the factual details of how the offen was alleged to have been committed but it seemed like the sentence didn't reflect a particularly serious crime right the defendant was in a grocery store he had a l because the governor is concerned about the speech while issues no well i think the issue that's that's what i took you me to mean by the posture of the case and quite frankly when i was trying to make sense of this sentence would seem really lenient for shooting somebody i thought well maybe it was a bargain because they were afraid they're going to have the whole thing tossed out on speedy trial grounds you know the government position was even if if this court found speech elevation that there would there are two things i really need to clarify very quickly number one mr williams the offense of conviction was not relate was not for the offense that the government counsel just explain mr williams pled guilty to possessing a firearm when he was arrested five days after that offense so this conviction that we are actually was a felon in possession it was a it was a of fire on within within the realm of the school when he was arrested and that was five days after the incident the alleged incident that the government just talked about so that that's not what he pled guilty to that's not the offense of conviction here government never proved that with regard to the events that occurred on december twenty fourth this was december twenty ninth the other thing the government may started off talking about this was post finding this travel delay occurred after there was a finding of incompetency which in that case age four would apply dealing with one the defendant is incompetent but  one and the so parts that follow relate to proceedings the fifty in the initial thirty one days of delay in this case that followed his a run mint thirty eight if you take our other argument with thirty one which is more than enough related to before there was a finding of incompetency was after the government moved for incompetency so that relates to the h one h one they didn't even argue today they're citing to america and other cases as well as even even some of these this certain cases wouldn't apply the age the travel delay doesn't apply record about the general car but the fence raise the issue in its pleadings so the court the district court of the government could have responded to the it at that time the district court chose not to go into whether or not this w any further as to whether or not this was a systemic problem even though the fence cited two specific cases out of this district where this has occurred and when i say it is occur it doesn't necessarily it'll occur to the extent that motion to dismiss as well is the second second i believe in the second motion to dismiss as well you say individual cases we cited individual cases out of this district where this there were delays yet they  were travel delays but you know you can look at the record just in this case and even half the problems brought forth this still where travel delays that were basically just even though even though they don't count for speedy trial delays in this case this even the ones that were done after a finding of incompetency while they don't affect the speedy trial that they give this court enough evidence to show that this is a systemic problem because it