honor and may please the court i'd like to reserve two minutes for about all right please be informed that the time sharma clock is your total time remaining thank you your honor all right mr morris appeals his criminal conviction raising constitutional claims under the fourth six amendments to the united states constitution which this court reviews did nova mr morris is first claim is a speedy trial violation mr morris under the twenty one month delay in this case has exceeded the threshold one year to establish the presumption of prejudice the second factor to consider is the reasons for the delay and here the government bears the burden to justify and delay the first period of delay and the bulk of it in this case was from the february nineteenth two thousand and fifteen indictment until the march eighteenth two thousand and sixteen arraignment of morris during that time i think your honor to begin with mr morris was originally arrested and held in state custody until the sixth of february when he posted bond and then what happened and then mr morris absconded from the pretrial he did not show up for his arraignment so how should that be attributed to the government i think your honor because mr morris during that period of time until the april tenth date that he was remanded into custody had no knowledge of the federal indictment in this case and if we don't agree with your counsel what you're saying is he got it from and from the state charges not from the federal charges that's correct if i don't find that persuasive what's your next best argument well your honor about that after the next period time for the prosecution sure ok is that the next chunk yes ok from when mr morris was remanded into custody on april fifteenth at that time there was a federal warrant for his arrest in connection with originally the complaint and later the indictment that warrant actually pre dates the state's warrant and because the state had released mr morris on this pre fifteen until until march of two thousand and sixteen is all we measured at the same way that's correct ok so that's good so on that question again trying to just look at your time here as are do we have a controlling authority about what we do with  period of time attributable to the state prosecution yes your honor because the government is required to justify its delay the court needs to look at the reasons it's sorted that it was going to defer to the state prosecution and in those cases that under just one moment in the fourth and sixth circuits i believe the how about the ninth circuit there is that that issue has not been decided yet in the ninth circuit so we do have a split the circuits the fourth and sixth circuits have found that the peril of prosecution and state court is a sufficient reason in itself to justify the delay by the government what should we do in this case your honor we should require that the in follow the tenth and third circuits that find that that's not sufficient and that that that the that the parallel prosecution itself is not sufficient because there the state had relinquished its primary jurisdiction over the case prosecution is enough when we look specifically at those cases all of the state court proceedings that the federal government was permitted to defer to involves more serious charges than that which the defendant faced in the federal court the south if we disagree with you on that argument do you lose well your honor given the severity of the the penalties in connection with the federal court case him facing fifteen year mandatory minimum to life versus a state court proceedings where he was facing zero to twenty two to ten years based out of the exact same transaction i think the court should conclude but if we disagree with you if we don't conclude the way you want to know you any delay whatsoever and mr morris was prejudiced by this what was the prejudice thank your honor first he lost to legal defenses primarily that he was he was last the opportunity to submit a successful pretrial motion to suppress had he been arraigned in a timely fashion and assigned counsel he could have asked the federal court to suppress evidence resulting from the search warrant and that's basically brought that honor different motion this is a motion based on the the the state agent executing a search warrant and at this period of time from the indictment until the arraignment there was no documentation of the search warrant to justify the search of mr morse's vehicle and because under montana state law we have a heightened right to privacy which disallows the automobile exception to the warrant requirement that we would find otherwise in federal law there was no it had mr morris been appointed counsel and submitted that suppression motion there was no existing search warrant that was in the government's with the they hadn't returned it they didn't they are still had it yes and your honor the defendant was under the impression that they testified that the reason that the state had abandoned its possession with intent to distribute charges was because there was no search warrant for that and the search warrant documents that are in the excerpts of record themselves show that they were not returned to the state district court until march of two thousand and sixteen so we have a legal i mean hypothetically if he had known and brought the motion to suppress they probably would have found the warrant returned it i mean it wasn't lost it was just hadn't been returned to some sort of oversight i understand in this but the state court charges were dismissed because of the missing warrant right that's that's correct and we have that did the site for that and when i say the state charges the state possession charges that's correct your honor if we were to look at i'm i don't want to take it too far fail because your time is ticking i thought you had another prejudiced argument going to the video and that one i don't understand because i didn't see any place in the record where you showed us that the video was ever successfully captured just that it was missing and i don't know how to attribute that the missing video to the delay i think your honor the issue with the delayed distribution or disclosure of the video is twofold first there's a miranda wa that was produced in this case where the officer testified that instead of having the defendant sign the miranda waiver he instead wrote on video the agent did that assuming that the audio accurately curt recorded the conversations among the defendant and so without that recording we were our hands were tied in effectively cross examining we left to speculate about what that would have shown or is there something from your client verifying that or maintaining that something was really lost your honor i think that this is one of those situations where we both have to speculate because there are some things that we can't prove without knowing  time would have told otherwise but also because we have that miranda form itself there's actual evidence that there's a question as to the validity of the miranda waiver in this case which we were not able to challenge on  it please the court my name is tom riddle simon i mean a usa in helena montana and i'd like to begin with a question i believe was raised by judge christian regarding why it was reasonable for the prosecution to initially be done in the state court and there's several reasons for that first is that the state prosecution was initiated first after mr morris was arrested secondly the state had a great interest in prosecuting the case this was the case of a wrong way driver on interstate ninety in the middle of winter in montana and they had significant penalties just to be clear i think you're answering a question i didn't ask not at all but i what i was asking for is do we have authority about what we should do with that period of delay the the i think it's about eleven months attributed to the decision to let the state case go forward just whether we have controlling authority and i think opposing counsel clarify what we do not ok we do not in the ninth proceed with charges first what about the argument that the prejudice argument that because this warrant had not been returned for a very extended period of time that the defendant otherwise could have brought this a motion to dismiss and in fact he did that successfully in the state court he did your honor however the that still doesn't rise to the level of prejudice in the federal case and the district court below looked at that and found no prejudice to the defendant so why why should we agree you should agree because after analyzing the four factors under barker and dog that the the facts haven't changed and the district court billowed so the first factor there is this the opposing counsel is right so that there's a presumption is triggered right yes and so when we got to the other factors one of them is we're looking at prejudice resulting from this delay right and his argument as i understand it is that the the i think it's eleven month period attributed bull to the state prosecution was prejudicial because he wasn't wasn't able to bring a successful motion to dismiss in the federal action yes i mean that was prejudicial analyzed by the district court below who found there was no prejudice yes counsel but now they're on appeal and they're she's asking us to reap visit that and so might my right my question for you is why shouldn't we find it prejudicial you shouldn't find it prejudicial your honor because the three reasons that they look for for prejudice weren't found and they aren't shown by the by any prejudice in the three factors to the defendant so there wasn't oppressive pretrial incarceration there wasn't prejudice to the defense the discovery that they did initially wait for was provided they were able to be represented by counsel after the initiation of the federal charges an  arraignment they did make a number of motions which were denied in the district court below and so those findings of the district court should be affirmed here so again your honor a number of circuits of looked at the the four factors in cases where the delay was much greater than it was in this case among those the fourth circuit the sixth circuit in the seventh circuit all of whom said that it was a good reason for delay were a custodial solver and has possession of the defendant first as it was in this case right thank you if there are any comparable case where there is have been a parallel state proceeding and the delay resulted as it is it did this you can see that there is a successful motion to six suppress on the state side i haven't seen those facts here i haven't either i think it's an interesting question thank you counsel yes so the the court here should find that the the rationale under these cases richardson shereen and thomas should be followed here that it was a good reason or a valid reason for the delay to allow the state proceedings to go first the state of montana was the custodial sovereign and the findings of the district court should be should be affirmed if there are no further questions on that issue i'd like to briefly speak about the second issue  with regard to the search warrant question the this report below conducted an extensive hearing over two days with a number of witnesses made factual determinations regarding whether or not there were issues with the search warrant which were inaccurate and made those questions made those changes to the search warrant and despite the changes that she made still found that within the bounds of the search warrant documenting the affidavit of probable cause to search for abate and so this court should affirm those findings as well specifically  that due to the facts which were found at the scene that we had a number of indications that this was not someone who was just a user of drugs but this was someone who was actively involved in drug trafficking specifically there were reports of him being involved in trafficking from the bucket oil fields in the us to kota through billings to california and back which were recent reports and there were a number of air fresheners as well as a past history of being arrested multiple times and convicted twice for drug offenses even with changes made to the search warrant documents those should be found by this court to be sufficient for there to be probable cause to search and if there are no further questions from the court i'd like to yield the rest of my time it appears not thank you counsel  possession charges because but but that's kind of begging the question so well usually when we talk about prejudice for a delay and forgive me for that misstatement please what typically when we talk about a project assaulting from a delay we're talking about lost evidence or witnesses died or witnesses we can't look at the witness or something like that but here it may well be that the state case was prolonged precisely because they couldn't find that warrant and i've never seen a case where that the cause of the delay then becomes the basis for the kind of motion you're you're making here in other words your it's not the contention that the warrant was you've got to separate frank's issue about that whether the warrant was in for him but in you know in a way what you're saying is because if the word had been present you would be left just with the franks issue right what you're saying not that there would have been sort of a just reason just but it would've been a happenstance because they couldn't find the warrant right if they had gone forward i would have been able to that's his argument i would have been for able to bring a motion since he would not been able to find the warrant that's correct and then he would have been able to benefit from it it seems like a windfall that's bootstrapping in a way that i just haven't seen in any other case your honor i would respectfully submit that it's a tactical advantage the government gained by sitting on this federal prosecutor to gain the advantage they had the warrant they just couldn't find it so what advantage did they gain in that would be comparable to a last witness or a something that where you really couldn't put folks back on a level playing field where the case could be tried on its merits well for example in the munto supreme court case state versus kotor there the state conceded that the w was totally lost perhaps that it could have been found after the or the order from the district court but at the time that the issue was raised there was no documentation for it and because in montana the search a prerequisite to search  vehicle requires or be a search warrant to justify it and there were no such documentation mr morris could have successfully suppressed that and that is a legal but there was a warrant and they found the warrant when they needed the warrant and then you go on to your argument that the warrant was deficient so again you're assuming that had he raises this during that period while he was under state prosecution no one would have made an effort at that point to go find the warrant when when they needed to they did given that there was an ongoing state prosecution where that possession with intent to distribute charge was subsequently dismissed according to mr morris his testimony because there was no warrant i think that does demonstrate that the absence of warrant at that time afforded him a viable and successful defense to the chart looks like counsel here's what i'm getting and i think mike my concern is just a little bit different i think and maybe here's my concern this is that the prejudiced your arguing about it is  different in this way once they found the warrant then your client had the ability to attack it and other words it was the kind of error where people could be and were i think put back in the position they would have been if air hadn't been made in the first place so your client in that sense had all of his rights restored all of his ability to challenge sort of put back on a level playing field as opposed to the war and having been truly lost forever and i don't know of any comparable case i don't either your honor but i would also note that not only did he suffer prejudice in that failure to be able to submit the motion to suppress but he lost the opportunity to file a motion to dismiss under montana law for dual prosecutions arising out of the same transaction and because there was the corrupt audio file and no way to determine whether had the case proceeded earlier there was an uncorrupt version of that he really lost the opportunity to challenge a lot of the issues that came up in the search warrant issue where officer hurt us is testifying that mr morris told him x y and z and since we've seen in the briefing how many obvious  misstatements with reckless disregard to the truth that officer made that video audio recording i think is really critical of mr morris his case to being able to to to cross examine that officer and to demonstrate and prove that those omissions were truly material and just on that issue the canine i think the fact that the united states first perkins has recently sided with favor of the united states versus jacobs a circuit case on the canine sniff also demands reversal on that issue i think you counsel thank you to both counsel a case just argued is that made it for decision by the court