the honorable united states court of appeals for the st circuit is now in session all persons having anything as nest before this honorable court make it their attendance and they shall be heard god save the united states of america and this honorable court i will be addressing this morning the issues of speedy trial and lengthy trial which at their heart i'm sure the court is aware are issues a fair trial and due process and when this court considers those most fundamental pillars of the criminal justice its systems the conclusion that must be drawn from this process and this trial is that the trial should not have taken more than five years to begin the trial should not have taken over almost eighteen months and one hundred and twenty eight dollars trial days to conclude and by the way the defense should not have been sentenced more than two years after that so that they spent almost a decade of between indictment arrest and there and their sentencing hearing and and that's the that's the conclusion your honour's it's not a question so much of the precise line that this court needs to draw only that for both the speedy trial and the lengthy trial arguments should be the framework that was put forth in by the supreme court in parker versus window the very familiar four pronged framework the length of the delay or the length of the  protraction the reasons which this court has called the focal inquiry for that delay or protraction the assertion of the right whether it was a asserted whether the defendants now accounts did assert their right and finally the prejudice which i think has has really gone to the heart of what is the real reason and what are the real reasons for this delay and for the protection of the of the trial the st and foremost they really weren't caused by the defendant but the real reasons  that this court has alluded to is that the government the prosecution chose to charge this as what we call in shorthand a make a case a case with dozens of defendants charging general usually drug conspirac sometimes drug conspiracies involving guns and that's a choice from the book by the by the prosecution but we assert your honor how do how do we get around that the government can't have it both ways they can't charge these mega cases and claim that that is a matter of judicial economy and judicial officials see that we will have these enormous cases everybody tried together and charged together and to continue if any i think there were my client moved to continue twice once in two thousand and ten which is roughly a year after the case began and i apologise for not knowing the exact month and once dispose of their cases so it's so early on that my client moved for to continue the case and there were if i could just and in for the sake of completeness there were two i would say substantive were substantial treated matters of pretrial litigation with respect to the defendants that went to trial because motions to continue your honor can be granted by the court can be denied by the court can be trial schedules can be adjusted because of them but this litigation needed to take place and that was a suppression issue and there was there were issues involving joelle regatta alejandro's counsel so those were matters that needed to be resolved by the court certainly however they didn't need to take five years and two months to resolve and then to get your client ever heard of to change counsel my client did not and i don't think only only i think only of the people that went to trial only should we sort of subside subtract that time from the sixty two months well we're we're again we're not in the speedy trial act circumstance or in the constitution step brightest just in thinking for example comparing this case to cost us which was forty one months right i mean it every week every case has its own circumstances and in this case the motions to continue early on were could could certainly be seen by this court as as reasonable motions by twenty thousand one hundred and thirty two years later there defendants were asserting their their right to a speedy a constitutional right to a speedy trial i went to directly answer your question digest the discovery has enough time been given already to digest the discovery if the reasons are that there is a scheduling conflict or a trip of some kind or i mean that serious going to an conflict and then the trial should be scheduled after the if if he switches counsel what are we to do that if your code effect you have to to defend on someone moves to switch counsel on that slows things down by sixty seven months for things down your honor i one of the primary issues had to do with looking at the government and whether it was acting in bad faith when you answered judge chaotic question about well suppose one defendant moves for a continuance they answer you gave was sort of well it depends on whether there was a good reason for that motion which bring many motions they may not be obviously meritorious from the outset but they have a good reason to bring so i don't think you've given us a a exceptions for abuse by the government of saying well yes if there are only two defendants yes you can consider a motion to consider by the other defendant i'm trying to think structurally about how all of this operates well we're structurally we're looking at  there really was no reason for the government to charge over fifty defend and say and one case and so subject to all of you who to the various motions made by different people is that your lead argument i don't i don't i'm not asking this court at this time to outlaw the mic and he says as i two key issues from your point of view in the case awat are you measuring from are you saying it took eighteen months after the last filing or eighteen months from the i'm sorry attorney brill the court really can't hear right now could i ask you to mute your video and just try and repeat what you were saying for the last minute or so are you still not getting your can you hear asked for the transcripts of the four cooperating witnesses that the four cooperated witnesses in compass twenty six trial based on direct and cross examination there were only five of those days were transcribed twenty of those days would have to have been read back by then by the court reporter the jury was told that they would have to sit in the courtroom and listen to the read that they could not get a transcript and intimidating looks and we've met and mr castro lang please we're not going to nd guess the jurors reaction your argument sets up a situation where defense counsel cad glare at the jury make them feel uncomfortable and to obtain a mistrial there after there is no possible way the law is going to develop and that direction so you did have another argument about the well you're a coup and care i get why when this is reported to defense counsel and defense counsel and still says gosh i have no intention of doing any such thing and i won't i'll be careful not to have that impression and that gets reported to the juror and the jurors says  that the jurors are watching everyone they're trying to get the good impression on them sometimes they do sometimes they go but isn't it fundamentally different than some information coming into the jury from outside the trial well i think the issue is whether she should have been wired yawner that's the problem the lack of inquiry we have that occurring in this situation then we have a nd situation with making closing argument to jurors as a whole since no questing from the judge to ensure the defendants on bill and family members did not leave at the same it was to avoid encounters which were occurring on a daily basis again this had not occurred at all during the whole trial which lasted over a year and at the last prosecution team didn't have a problem with the prosecution team leaving with them only the thin thems again we have an issue here of a complete on  been really post the judge asked a question the juror said i've sat here for twelve months and i've listened to how many people this guy is murdered and the other answers very compelling and he's got his compatriots are in the courtroom to just make sure that you know we're not left alone with them so what that well your honor again in  or not said and that's the problem nothing was done no record development and that's an easy way of a judge preventing a defendant from being able to stylist prejudice can we step back you would agree wouldn't you that the family members and cohorts of the defendants should not be in the presence of the jurors as they are it and the hair and assumption that defense counsel as well as the prosecution will make that clear i would have thought that did not need to be stated the problem is that the jury brown it under own wallops law was ending without any incident occurring that would justify all of the sudden them saying we don't want them to leave at the same time we are leaving so again it's a reflection of a possible bias and oh i'm saying is the judge should have been wired further then we have under the the incident of the policeman that lied lie during jury selection did not mention the fact that he since two thousand and thirteen was playing twice a week basketball you know court that was located at a police station so he had a definite time with the police and had he been truthful he would have either been stricken well disqualified for sure by defense counsel so his lying prejudice to defense pursuant to french week goes to a police basketball court and plays basketball with them for years and if it hadn't been for one of the policeman that recognized them and told the court look i know this person it would have never been found on so you try to stick with my question just seconds so here you know mansur is that us tim do you have any relationship with the governor and he said no and you're saying it's a lie because he should interpret your question to a close they played basketball regularly with some people who were police officers well that  any relationship that could create some form by or through favoritism or you believing policeman more than the fence and certainly seems to me that a police person be a little bit more specific i mean what's your question did the juror have a relationship with the government or was the question it that your i have a relationship with any police officers well as it can be interpreted in different ways you see of course but what the hood that took policemen were witnesses in the case and the question was asked if there's anything that would lead you to give the police more credibility than other witnesses and none of that was answered and there was clearly a strong time and again i emphasize had he been truthful he would have been removed or recuse so cut that statement in what passed muster taking into account the prejudice that was caused by his not being truthful when you add to this your honor then three incidents where do defendants complained about the jurors seeing them in chakales think testified the government presented no evidence then the judge looking only  testimony by three defendants that the jurors were looking at them and shackles it should have at least provoke some form of juror inquiry it's the history isn't this the video that where perhaps it's a different video but i thought the judge looked at the video and said no i've looked at it i've considered the angle site such considered the period of time say they didn't see it and then she said and even if there was some very short sighted it's not sufficient to caus let's put it this way her statements are contradictory on the record and one she admits the video inflected that they were looking at the defendants all go for various short amount of time but if you see it you think been shackled for two seconds it doesn't make that much difference if she had seen him chuckle for a minute he she saw the juror saw the defendant that in order for the notes to have been considered for the limited none here sir we're not here sic purpose to show association the identity of the right wire of the notes must be he had with any of the defendants the court heard when it how it could be used to show association what makes it worse is that the prosecutor in closing argument specifically used the names deeds are the same defendants that means that the notes are being used to establish that they are in fact the defendants that are being raided and did testified about many people involved in the conspiracy not only the defendants of trial so you have at the end of the testimony the prosecutors meeting with this witness with their materials and  force the end of the trial a year and a half until it i would say about a year and three months ok and so your are your position alternately is that once the judge heard that they may have seen some of the defendants in shackles that she should have enquired towards the end of declaring a mistrial which would have started the entire trial all over again yes yes i believe that consider it and balancing because starting the trial all over again would cause exact would exacerbate exactly the type of prejudice the one of your colleagues most brutal was talking about or to be in this argument which is nearly the right to have her trial goes beyond above every other thing you know you must have a perp problem if at least give them up for trial it was a scheduling issues of the attorneys why did despite the case stretch out for so long is stretched out for so long because from the perth witness on the  few trial days a month was it just scheduling problems for so many attorneys in the court where you were i i couldn't tell you psyche about all court jam learmonth for the united states i'd like to focus just on a few issues that were raised here today if you want to get that speedy trial issue which i know took up a lot of the court's attention but before that i want to address just a couple of the fair trial arguments that were made here this morning johansen why the trial took so long yes your honor the trial took so long because the were granted seventy one continuances during the trial so everyone continuances up into a certain part of the trial probably granted about ninety or so of the seventy one that it granted at the time of the motion filed fifty one of those were for medical reasons so suing for example requested it to two and a half months continuance after complications from a pregnancy the defendants and not object to multiple instances in which various defendants had to go to the hospital or the prison doctor jurors were ill the judge was  there are lots of requests for continuances and the defendants did not object to any of those cases so all of the ladies were for legitimate reasons and the defendants did not object to any of those delays and so th case here the court even denied a couple of defense requests for delay so for example defense counsel requested a three month continuous so that they could attend some sort of drag competition they just heard reject it but when  continuously without interruption for the duration so that's i think to answer your honor's questions about the reasons for the length of the trial and those were the primary reasons for the length of the trial there are other why does it move expeditious here so to start with the basketball situation your honor just to clarify part of the record it wasn't officer who brought the matter to the court's attention it was the juror who brought the matter the court's attention  did so when he saw the police officer testify because that was the st time at which he recognized the police officer the judge conducted an extensive warrant here just solicited place from defense counsel asked him what questions they would ask the church he asked the jury questions and then he even the next day returned and so that's on day conducted a separate independent war here he even asked sure why he did not initially state or year before trial that he knew the police officer this is an issue that joel was family whether they had a drink whether they regard him as a friend or a social connection there gerson no to all of that he didn't know the guy outside the context of this game and as soon as he saw him he said he brought the matter to the court's attention the co conducted an extensive inquiry and at the end of the day decided that there was no basis to believe that that sure would be partial so i wanted to so that was not an abuse of discretion but i wanted to clarify the record that a the juror did not lie to the court and the court made a find extensive b t o evidence and photographic so when joe's counsel says that the government didn't introduce any evidence to fit the parties introduced the evidence in the courts was spontaneous requested from the marshals office surveillance videos from four different cameras on one occasion and literally pieced together the videos to determine whether or not it was physically possible for the jurors to have seen the fat the court concluded that it was not physically possible to do so that was not the er and the defendant show no reason here today that the government offered no explanation for the meeting and i just wanted to make clear that it did the record reflects because the court asked the prosecutors who inform the court that they they went to the door of the room where the witness was that they did there i think that some people for a binder and they didn't enter the witness room and they went there at you and keesha and to address the witnesses health condition they wanted to ask him one about the surgery that he had planned and one that was and they wanted to ask him on another time whether it's eating lunch because he's a diabetic and they just wanted to make sure that you know his house was taking care of the court credited that testimony and found expressly that there was no indication that the prosecution tampered with the witnesses testimony which is that allegation that the defendants made below they said that the witness was unable to identify and delhi before the alleged meeting and then was able to identify her afterwards and therefore the they wanted to cross examine the witness about that meeting in order to show that the prosecutors tampered with the testimony the court made the factual finding that the prosecutor did not tamper with the testimony and none of the defendants dispute that on appeal  t does mention that she wanted to cross examine the witness about his ability to identify her and why he was able to identify her at one point and not the other but the court afforded her the opportunity to do just that she cross examine looking as one that was rejected by the court and that was not in abuse of discretion in any event any error here was harmless with respect to the limitation on cross examination as weeks later be guilty what about t prosecutors told me i don't want to push back a little your honor because the court found that it wasn't false because the court found that there was no i think court needing to speak because the lawyers didn't enter the room and that he didn't discuss anything with she on the other counsel had the opportunity to cross examine this witness and others about their harassing i mean they did so on several occasions about whether they lied to investigators whether they lied to cops whether they sold drugs where they spent their money so you know the test is whether the custodian for purposes of inventing the entire record as a business record and in his testimony he said that it was the practice of the employees to write down the names of people associated with phones when they  if they called and spoke with the employee or if they came into the office i tend to directly answer your question i'm not sure we know the name of the employee who wrote the who wrote the notes we might but i don't particularly recall and i and so i don't want to make any statement here but the point is that the reason for this practice as testified to by the custodian and business owner here what's lots of consequence or scanners get lost or you want to change something or upgrade and it's useful to the allowed the handwritten notes were time sorry counsel i apologize judge just for interrupting the sistan one of the attorneys who rachel brill who argued in the beginning of the case she accidentally left the case and she's coming back  ask him to summarize his response and then get to judge thompson commented that the district court did not admit it as a business record go would argue your honor that that just goes to the weight of the evidence i mean i think it was joe well but i could be mistaken who who made the point that in other cases it was often you know one of the co defendants themselves who either wrote it were it was found in their this codefendant necessarily wrote that and we find those are accurate what the court said is that it lists a few st meetings not last names and the jurors allowed to make the inference that by virtue of those names being listed together it could suggest that those people were associated with each other but did not happen here isn't there a critical difference between it being found in the defendant's possession and i think that's a different that goes with the weight of the evidence was ever authenticated who wrote those names it was just by virtue of the fact that those names were there and listed several of the coconspirators together using the nicknames that you know were used throughout the trial the jury was found  it was just a letter that the four defendants names at least together in the address line and the jury was allowed to infer that those people were related i don't believe in that case they knew who sent the letter i could be wrong but i just wanted to be clear that the principle th hearsay principle which is the principal at issue here whether it should have been made it over here say objection just goes to whether or not he's admitted to the truth of the matter asserted it or for some other purpose but if your honor is concerned i mean there's plenty of direct evidence linking that answer satisfies your honor speedy trial claim focusing on the th amendment right to a speedy trial we already tried the length of the trial itself with respect to the pretrial indictment as i believe mentioned earlier this is not a key in which there isn't deliberate attempt by the government to delay trial or any that the by the government or even negligence by the government rather the delay was justified by legitimate reasons this is a larger more take offended is therefore just like casas where the delay was due in large part to the court resolution of pretrial motions concerning the defendants that neal let me ask you something about that because i'm just trying to follow the law if we keep pursuing that logic and say sixty months is ok it seemed to say one that the government can one of the government things one of these mega cases it seems you've got two choices one is the court devote an extraordinary amount of resources to it so that it moves along in a normal course very fast while the other choices the defendant spend years in jail before ever getting to trial that's right robert and that latter thing is rather unappealing we presume that people who until they're tried are innocent we realize sometimes bail can't be granted but to sit in jail for sixteen months before you even get to be tried there's got to be something that is very worrisome about that so why don't we say that if the government insists on grouping together rather than breaking down into manageable components if the government really feels they have to do that and the court system needs to devote some extra magistrates and extra resources so that people aren't sitting in prison for years very close to before the trial and again his argument was he wanted to delay his trial he said that he was the team stateside he wanted his lawyer to sufficient time in for the rico to prepare for the case with his client there and therefore move sever on the ground that he wanted a leader trial just to sort of address this sort of mega trial issue here i just wanted to point out that none of the defendants moved to sever on that ground and to the extent that they did move to separate it was usually to virtue of the fact that they entered into what is unquestionably a large conspiracy there's no dispute that this was a large conspiracy and that these fifty five people were part of the conspiracy and so it would you know i understand that there's a tension there but there are efficiencies to trying them together less precise about what you just said what you just said to be precise is that if you are accused of being in a large conspiracy then you're out of luck and you're going to spend years in jail even before you see a and thirteen which was four years after the st indictment so they waited four years even mention the speedy trial argument and in those four years they followed hundreds and hundreds of motions including suppression motions withdraw motions and of her concerns these mega trials we have justified by saying it has built and efficiency this obviously is not the case in this particular situation what i'm trying to figure out is whether this case is an anomaly and that the mega trials that you usually have are wrapped up in a speedy fashion because suggesting to the court why don't we do twenty and twenty and twenty because i would presume that if they were broken up it would have some more efficiency than what we see here yes  than five hundred dollars and you still have the trials it's not going to be the struggles themselves would have happened any quicker so you don't still have a lengthy trial for each of the sets of the twenty defendants i'm not sure defendants forty to sixty would necessarily have started or ended their trial at the same time but obviously that's that's hypothetical i mean to your to your honor's question it is true that the prosecutor did choose to indict this is a fifty five percent increase but you know there is no evidence that  so out of bad faith or to delay the trial or to you know prevent defendants from art you know gathering witnesses or to allow witnesses to die or anything like that were to somehow create a conflict among the defense only such things directly could arise but there is no be you're you're saying it's reasonable for this trial to have lasted that long because there were fifty five people that's one of your most points you make in your brave yeah well so it's i would think a prosecutor would know  that the beginning if it was reasonable so they know they were doing there and they didn't you know just wake up this morning and start trying cases they knew that it put them in a position where they could sa and get four years or prove yourself innocent and spend six years in jail waiting to do that that's a tremendous leverage for the prosecution played negotiation well i'm not sure your honor whether all the defendants here were in jail for that period  is sort of an outlier or not these concerns which may well be concerns that apply to all our species generally is not a basis to find i believe a violation of the defendant's th amendment rights here because the reasons were justified government and has now routinely especially in puerto rico brought mega cases and well they're maggot cases and they take three to five years as to  resources being available to the court system that's up to congress that's not a decision that judges can take to apply more resources so here we're faced with a situation where and i will add the government is entitled to prosecutorial discretion  a number of case is says tell us that courts can't it interfere with that nonetheless we are left with this very troubling scenario which seems to be growing in this circuit it is not just puerto rico mega cases have been brought in massachusetts as well and judge thompson is suggesting well maybe there will be some loss of a fish and sea but you could have divided this up there were different drug points involved that was a sensible way of dividing i albeit you do charge an overall could spira say there are advantages to the government as judge chaotic just said your ability to extract plea bargains if there had been three trials well some of them would perhaps have taken five years but they would have been sequential and some of them would have come to trial probably a lot faster so this is a systemic problem i don't know quite what the answer is or well there's obviously no clear answer and the parker case did not really involve these choices by the united states to prosecute many many defendants at once it is true as you say that the nature of the crime involves many many defendants but it does sort of strike me that there needs to be some sort of solution to this problem and maybe it comes from the department of justice some recognition of the fact that many people are going to sit in jail cell support a long time out of these choices to bring maggot trials true as too many of them the time will be credited against longer sentences if they are convicted but the departure of justice you know is supposed to be concerned about justice including the th amendment rights of defendants so what the average day outcome of this case i think it would be appropriate for you to convey a sense of ease that all three judges court have expressed to you about this situation that is resulting from these mega trial choices made by the prosecution  i understand your honest concern well i can represent that we will discuss terms to address those concerns and determine whether there are ways to address them on the ground and i just want to the concerns i mean i joke with my folks that i can't remember what i had yesterday for breakfast we're talking about asking witnesses five years down the road and and that's from the indictment that's not even from the incidents themselves we're asking them to remember specific details about what they did years ago that's the stricter owner and i preach it that concern this quarter and the doesn't argue for example that is that he was prejudiced that his defense was prejudiced he does suggest that he suffered some anxiety during the tension but this court has generally said that general anxiety is not sufficient so he didn't make a particular as claim that his defense offered and as we noted with respect to the trial itself this court and others have looked to the fact that when a jury issues a does you know discriminating verdict you know quitting some dependence on some charge is not another's it shows at least that the jury was  able to to handle the case i understand your next question goes to witnesses recollections and the like but this was this was a case of many witnesses there were you know very few cases where the witnesses were unable to recall something when they were that was that's a little bit disingenuous we know that waiting five years to test fire about advance memories are not going to be quite  federal courts do you have a concern that we get to the truth of the matters we believe the adversary system is the best way of getting to the truth of the matters and is judge thompson has said in addition to the th amendment rights at issue here there are sheer concerns about the accuracy of the outcome in the cases caused by this delay so i appreciate that you've said you will convey that message to the department of justice be sure you include judge thompson's point over again will try to once you bring one of these cases and one of the defendants comes forward right at the beginning in the st month and says look i'm innocent i want to be tried i'm not going to move for any continuances and i want to get trial in a year please give me some assurance that i'll have my right to freedom judicature by a jury within a year what are we to say what's the district court what's the government you know stated reasons for seeking either severance or a quicker trial but my only point is that they didn't do that here they didn't move to several not round they didn't challenge the mega nature that he said any point to the trial and there you know and they didn't raise ok i think the points have been made unless my colleagues have any further questions i believe you may be at the end of your thank you judge we have attorney pro for one minute might i suggest that she leaves her video awful she participates because she may have a better audio connection if she does that if she is willing to do that that's fine with me for important discussion about the systemic problem and judge lynch was very clear about the systemic problem but this particular case raises huge issues as well and huge problems and  cases several different judges not only the judges that are known to move big quickly but each does and in the court the the the that were raised by the defendant  handled much more quickly pretrial the trial did not move expeditiously there were bench conferences that took out several men not just because of written orders