constitutional rights mr cortez statutory right to a speedy trial within seventy days of his first appearance was violated in this case by the district courts in granting of multiple continuances over his objection the court reset the trial date at least five times and as a result three hundred twenty one days elapsed between mr cortez first appearance and the commencement of his trial that actually proceeded on the merits now the doesn't the time actually start running seventy day period when the last codefendant is brought before the court and requires consideration of all relevant circumstances now here is and isn't it important that what was going on is the couple defendants were indicted in one decides to cooperate so that leads to a minute to the indictment bringing in a third dependent and then that defendant decides to cooperate plead guilty and two more defendants are brought in and that took a period of several months isn't that probably the most appropriate circumstance in which to continue to delay the trial so all the relevant people are going to be there otherwise it's a waste of going to be presented some of the same evidence multiple times and it was a period of what six months or so maybe other defending acts were known to their existence was known within a couple of days of the arrest and well before any indictment was made a these were not entirely and his counsel came in and body ins of justice continuance and the court held that hearing on that into on june the twenty first and enter a written order on june the twenty second granting quote in if the objection is well you can't give me relief you can't this is not an eight six situation your honor don't give don't don't allow him to have an extension and do that that's one thing because right now i guess what i'm getting at is essentially is are you making a different argument blow i mean here than you made below in the sense that now you're challenging this and finding error under eight seven as opposed to eight six that's my question so what i would say is this your honor that the governor you have jackson made at the time was mr cortez wants to go to trial and what we are saying now which i think is the same thing that was said then at least at a conceptual level is you have to take mr court's head right to a speedy trial into consideration mr cortez wants to go to trial but the point but the government i assume i don't remember now that the government had  issued the written order on june twenty second it didn't take mr cortez an individual right to a speedy trial into account which this course precedent makes clear it has to do let me ask  court and why would an eight six continuance have been proper because it's not reasonable under the circumstances of this case that specially by that point in time ok explain to me what those circumstances are they would have rendered it in that way that mr cortez was in custody mandatorily by the way there was no way he could get out due to the do the ice hold that was in place on him that he had asserted that he wanted to go to trial as soon as possible at every circumstance i believe he had appeared on the court at least three times by that point and said i want to go to trial and in addition are these these defendants were beginning to cooperate and mr worthington began the record indicates that he that his cooperation began in g law and given the overall presentation of the case and that these other defendants were mr warner who was also inpatient seeking drug treatment it's not indicative of someone that wants to go to trial mr cortez was asserting that he wanted to go to trial as soon as possible every really get every every situation so i'm not questioning that but you can both call the ninth circuit case in talking about this and i i assumed what you were doing was trying to get at the point that that mr there certainly was mention from his counsel of the potential of at least a plea that may be but this is not the it's not it's not a clean all matter in the sense he's not saying oh i want to you know i want to engage in plea negotiations your honor so give me an eight seven determination of reasonableness under under the factors when you have someone who has been originally charged defendant and when you have a situation that all of these defendants were were known to the government at the outset of the case invoked really every available procedural mechanism to him to assert his right to a speedy trial on every circumstance in every situation let me let me ask you this question you mentioned early on the fact that he could not get out because ice had a hold on him what is i have i have not focused that on that issue what is the what legal import do you derive from that because it is no it would have been a separate issue immigration hold that would have had nothing well presumably had nothing to do with this criminal prosecution so what legal import would you have us take from that i would say this your honor this court's authorities talk about the availability of thirty one sixty four relief on for this for this gentleman for mr cortez thirty one sixty for relief and his release from custody it was not available that's that's that is in the record it went available because they had an ice hole correct and so it as a matter of law then that relief was not available to him and that that should have counseled in his favor to proceed into trial that's one of the many relevant circumstances that are at play here and when it but that's not that but that would not be a function of anything that the government asked prosecution was doing i mean that's a fact he was presumably at a nice hole because he was a legal alien i mean that that has nothing to do with what the government is doing to him right back in and of itself in this prosecution no that the government also had sought his detention the kid the government at the outset of the case filed a motion for his detention was seeking to keep him in custody and was also opposing his request for severance in opposing its request to go for profit so when we when we look at all of the relevant circumstances that are present in this case and everything th cortez did and everything that he asserted then under the under the reasonable analysis we submit that it was error to exclude the word we didn't days weeks we submit that it was error to exclude a significant district court failed to consider when he granted the continuance of the district court failed to consider the impact on your client correct why do you say that when i got it that the court didn't taste it well and this porch authorities make clear that it has to be done on the record or in the written order and when i look at the transcript of that g twenty one hearing and i look at that order of june the twenty second i do not see any consideration or analysis of mr cortez right to go to trial was that raise to the district court you know or was it that your your client argued i should get separate us because speedy trial act for purposes of objecting to the only continuance before the core which was requested under a seven and that if his and his pride in his interest had to be analyzed under both the constitutional and on minimal information they obviously waited until they had of more solid case against them because they had the individuals who originally charged she testified against these circumstance as complex or not you have multiple layers of the hierarchy and you arrest some people who can tell you about the person one level above them their personal knowledge of that they've heard these other two people you have no real evidence against the higher ups until the intermediate level person is willing to cooperate maybe it's not complicated but it's also impossible to prove i say that my time  question i would say this the information about what was alleged to be going on was known to the government prior to the filing of the first indicted mr cortez was the highest up person according to the government's theory that was ever charged and all of these other people were known to be alleged by another codefendant to be involved in distribution before the case was ever filed at all and that is a relevant grant the ends of justice continuance but if the court didn't consider an important factor why does that not preclude her due deference under an abuse of discretion her right that that sort of 's a preference for joint trials that they promote justice they avoided consistent verdicts they they have all had scandals we go back to that first second we go back to the factors the court considers under the third or a mark on factors which are the the continuance of being reasonable under age six it's just a factor but it doesn't overcome the marmont factors in other words so we think that's what the court doesn't that but in any event you know just the fact that i mean just the fact that i mean everybody has complicated schedules and getting getting a trial schedule sort of like herding cats and it's a difficult thing but we have to go back we think we have to go back to the recent illness exclusion eighty six it's there for a reason and it's there to continuous here so the fact that there may be some little thing out there that doesn't sound quite right does not mean that that makes that continuance unreasonable under these expression standards but don't you have to take into consideration didn't the district court have to take into consideration the fact that he was stuck in jail he did and that's one of the more gun factors in a court took that into consideration that was that was known that the defendant was in jail he was subject to an i if we had let him out of jail can't is there somewhere in the record where it looks like the court considered that yes sure there is i would start with the supplement of volume two pages seventy six through seventy eight where the court talked about the first and second marking factors the first factor is whether the defense in custody the court the court found that that pushed back to favor the defendant we don't  favor the defended our fight is over the third factor here whether the court was entitled to get that fact or sixteen days he cited parker for the proposition that this by under the parker factors that this violated the speedy trial right we just like the court to keep in mind that we don't think that the parker factory might trigger under this case because the in another sense it's not completely supported by the record there was a status conference which is in the record a supplemental volume seven and on pages ten and eleven of that record the defendant's counsel at the at the march thirty one two thousand and sixteen women conference told the court that he could not be ready to go to trial on april sixth but he didn't request a continuance so here we have an it's an odd situation where the defense counsel is saying i'm not going to be prepared to go to and and in any event your honor as we've said we submit examining all the relevant circumstances here but it was not the reasonable period of exclusion thanks and so based submitted counts are excused