good morning if it pleases the court i am michael bouchard the appellant in this case my case presents free speech begins claims against the defendants and their individual capacities they retaliated against me with respect to a letter that i sent to attorney general holder seeking his assistance i also posted that letter on my website and i  letter of the press releases and due to the defendants engaged in an ongoing campaign of continuous free speech retaliation against me their message was clear stop exercising your freedom of speech or else so st what happened is they made an out of court electronic communication to my defense counsel demanding that i pull the letter down from my website and my lawyer said to me they are man about it and they want the letter to come down so by raising the hammer up against me i felt threatened and i  capitulated to that threat and i pulled the letter down from my website after that they hammered me by advising the probation officer that they wanted to have an obstruction of just in their sentencing memorandum and then finally at sentencing defendant thompson hammered at me again she attacked me for defending myself and she indicated or she discussed my you videos and my letter to mr holder that was posted online and then incorporated those things into a request for the court to impose a sentence on me that demonstrated to me the seriousness of my alleged indicated that acknowledged the government's request for it and i believe left it up to the judge to make that determination then the judge ultimately declined not to not to go with obstruction of justice enhanced i don't know if he did or not setting aside for a moment the conversation between your lawyer and the prosecutors at trial why or why don't you have a problem here that the problems with the conduct is that the the st instance where they made the st threat against me that was an extra judicial event it was an electronic communication to my attorney out of court during the proceedings of the during the time period of that case but totally unrelated to that case and they said we want that letter to come down from your website and my lawyer conveyed to me the fact that they were angry about it so you don't deny that you were made aware of that request that time that the prosecutors made it happened almost simultaneously we were driving home from syracuse and he contacted me on my cell phone and that you also don't deny that it was not until several years later that you thought that action brought this action based on that common at least in part well that was the initial beginning of the threats and then the the instances of the free speech violations were connected to that st instance so i'm arguing that it is a continuing violation of my st amendment with four different events all the four instances of the chilling effect on my free speech the supreme court had made it clear in the case of hartmann be more that when a vengeful federal officer violates free speech that person is subject context i don't believe it is but even if it is a new context there are no alternative remedial measures that i can see and there are no special factors counseling hesitation and recognition of this begins claim for me it's damages under bivins or nothing at all to address the statute of limitations concern we request about the removing a they raise the hammer against me i decided i'll capitulate i'm going to pull that down from my website i abided by their request and thereafter they continued to go after me regarding that letter so for example the demand for the obstruction of justice that actually is into finance of the judicial branch the sentencing commission was created by congress as an independent agency of the judiciary and the commentaries for the obstruction of justice enhanced meant that they saw specifically says quote this provision is not intended to punish a defendant for the exercise of a constitutional right so the other instances related to obstruction of justice all fall within the statute of limitations and they're connected to that st action wherein they threaten me and what was the most recent act at the sentencing where the prosecutor again mentioned my youtube videos and my letter that was posted online despite the fact that i had already pulled the letter down from my website so i'd like to just address the nd circuit's case called dovi philips in that case this court ruled that want to prosecute or violates the freedom of religion clause within the  amendment he loses his shield of immunity and according to the distinguished i mean in that case as i understand it the prosecutor agreed to drop charges if the defendant participated in a religious ceremony and acts that were really distinctly outside of the realm in here you might have something of that argument with regard to the conversation at the time of the trial but every other action of the prosecutors does seem to be distinctly in the realm of what prosecutors do well i don't believe that it's within the i don't believe it's in the role of a prosecutor to defy the judicial branch by seeking  obstruction of justice enhanced meant that is specifically prohibited by the sentencing guidelines with respect to your question about the distinguish sting wishing dough from this case the supreme court makes it clear that freedom of speech occupies the highest wrong of st amendment values so if a prosecutor can lose the shield of immunity for violating the freedom of religion clause in the st amendment a prosecutor can certainly case are clearly covered by absolute immunity however this court may not even reach that issue because no bivins remedy should be in pa under the facts and circumstances of this case circuit on the flip side only six courts all district courts have allowed a bit of an action to proceed alleging st amendment retaliation it is clearly a new context the supreme court made that clear in my adversary a more straightforward and breaking this new ground to consider immunity aspects of this case rather than the constitutional protection of constitutional rights if those are available now here and there's a statu limitations argument we've just seen alluded to about a continuing course of conduct and so on and but the actions that are complained of to my colleague suggested seem to be quite essential prosecut that that pressed his restriction is st amendment rights understood your honor so in terms of absolute immunity for the prosecutors here there are four distinct acts alleged three of them are within the sentencing context on the letter but there were also allegations of false testimony and improper communication with witnesses during the trial the district court in fact deny the any huntsman and mr bouchard got a blow guideline sentence what the rationale was but it is quite clear from the stablished case law that communications with the process between prosecutors and probation filings with the court relating to sentencing and arguing at sentencing hearing are core essential prosecutorial function and for which the prosecutor regardless of the mode of as absolutely i mean is there a document that makes clear that the court rejected the proposed obstruction of justice and hence meant or you're just looking at what the court did providing below guidelines sentence there's no discussion of it in the sentencing hearing ultimately there was a guideline sentence had there been an enhancement it would have been documented in the statement of reasons  the communications the earlier communications about the letter during the trial we would submit that those communications between a federal prosecutor and a criminal defense attorney during an ongoing criminal trial are intimately associated with the criminal judicial process as we indicated in our brief and i do recognize this was not argued but i as is a purely legal matter it's part by the statute of limitations it is also if you it's either heart of the ongoing contact conduct or it's an independent act if it's an independent act it's not only barred by the statute of limitations but it's not a retaliatory act the allegation there is that the prosecutor said to his attorney that they were quote mad about the letter and quote wanted it taken down there was no threat that something bad is going to happen if you don't take it down there was no it didn't even say they asked for it to come down they just said they were upset about it and wanted it off their website  well there are what brad apart from for instance i don't case where the prosecutor says if you go into court and swear on a bible as to your innocence this all not prosecute you are all dismissed actual conversation was between the prosecutors and defense counsel that's not in the record but just what was communicated to mr starr from his attorney was simply that they were upset about the letter and they what they wanted off the website there was an an retaliatory acts or the threat of a retaliatory act associated with that but again these communications clearly occurred between prosecutor and defense counsel within the context of an ongoing criminal trial and the prosecutors would be absolutely immune for that conduct so with respect to the conduct of the defendants being prosecutorial functions in the lower court i posed the question in my opposition papers what is a prosecutorial function the lower court never performed the functional approach that's required by the supreme court under forced or be white so if we see what a prosecutorial function is or relates to what cases to bring that would be deciding to with value wait whether or not to pursue an indictment and then the nd aspect of it would be how to prosecute the case that's already been brought so if you're alleging a b and c within an indictment at trial your actions must relate to prosecuting a b and c everything that the government did the four connected instances of violating my free speech had nothing to do with the indictment and had sentencing and that contacts are not limited to the facts that were used to trial at sentencing the prosecutors can ask the judge to look at your entire life and take everything that you've done i consideration that is true it's why there's an interview for the p s r report but the one thing i indicated in my reply brief is that the p s r report on fortunately my defense counsel made no objections to that but the fact that the sentencing involved a really really a reiteration of the letter that i did take down from my website and it never went back up on my website and it involves punishing me for with an obstruction of justice enhanced meant that is strictly prohibited by the sentencing guidelines so no matter what the government cannot seek that obstruction of justice and hanson and in all instances might my speech was totally silenced even after i capitulated to the st demand they still came after me three more times