to make a diligent good faith effort to locate and apprehend a defendant after he's been indicted in this case the government made no effort for two years to attempt to apprehend the two defendants twenty three twenty three months right well it was twenty three months but this court's case law tells us that it's the twenty three months plus the time it takes to post indictment delay you're not really concerned about the pre indictment yes and delay is something that can be considered but i think it's in order that within the meaning of our case law here that i'm trying to figure out whether this is really a twenty four month case nearly for your case well i think the thirty four month case based on the from the time the indictment to the time of the resolution of the speed trial ok motion that's the time that i think is the most important now then your briefs you were really arguing that this was that the relevant time frame was between the time of the indictment the time of the arrest well that's the part where the government did absolutely nothing but this court case law tells us that when you're looking at the total length of  lay you go all the way to to the time the resolution of the speedy trial and that it is your contention that the last ten months will call it between the arrest in the resolution of the speedy trial motion that the risks some dilatory conduct no i over one year i think that agree i think it's also agreed that the issue was raised timely so i think that's off the table because it was raised the first appropriate time the question then there is reason for delay which we take the position that the finding of gross negligence by the district court is pretty close to a finding of lack of diligence and the place where the district court went wrong here is the district court required a lack of diligence plus bad faith in order for there to be to have the the reason for the delay ground count heavily against the government that not in the case law and in fact it's directly contradicted by ingrown because in ingram there was a finding that there was good faith on the part of the officer in looking for the defend it but that his action was wasn't diligent and that lack of diligence was the problem i thought the big difference between ingram in this case is that in ingram we said this guy the officers knew that he was the only law enforcement agent responsible for arresting the defendant and then in  maybe three really key distinctions between clarke and anger first there's a finding in in our case of gross negligence clark was mere negligence so and the gross negligence finding here is we've been calling it an utter lack of diligence the district court called it gross negligence i think they're pretty much the same thing when you start reading the way they were talking so we've got a more extreme finding governmental in action then we had in clark and probably even in anger but without respect to labels gross negligence mere negligence whatever i mean isn't the underlying misconduct mix up whatever you want to call it the same here as in clark i mean there was this i mean it's  almost identical this state law officer whose task to a federal agency thinks that they do it in the that the feds do it the way the steak or the state prosecutors do it seems like almost identical to clark well i think it is superficially it's similar marshall's responsibility marshal responsibility we have a local police officer in clark as opposed to a federal task force that a deputized federal agent here on top of that we have a record in our case that assistant united states attorney did nothing a simple phone call to case agent donnelly saying hey why haven't these guys been arrested donnelly says well the marshals haven't done it the u s attorney says no that's your job i mean that's a that's a thirty day maybe delay at some point the u s attorney has to take responsibility for this and so but then we had we couple that with the coworker thompson  also a federal agent who actually thompson knew that donnelly did not understand the situation he thought the marshals had to arrest thompson called the marshals found out no do wrong it's the f b i is obligation and at least according to his testimony he did not go back and tell thompson or so i didn't go back and tell donnelly thompson's knowledge that that collective knowledge there puts us beyond where we were in clark with just some local police officer sitting out on his own it in fact it seems to me it's dilatory for thompson not to tell  riding on an actual prejudice theory if we could show actual prejudiced we wouldn't be here i think if we showed actual prejudice in the court below it's over but what the case law says is we don't have to show heavily against the government it is correct and it's and so i think the lower court held that those two factors weighed against the government but not heavily against the improperly did not weigh the reason for the delay factor heavily against the government because it thought it required the defendants to show bad faith on the part of the government we know from interim that that was just wrong it should have weighed heavily and what the case law says when you have those factors weighing heavily against the government you can presume presidents it's kind of like a chronic situation where we can't think that this could court said there was no god fine there's no bad faith on the part of the government right is that a finding  fact to which we apply a clearly erroneous standard i would believe bad faith is probably well i mean i we don't disagree that there is no bad fate i think that it but it's a legal error that the court that and i don't think i don't think there's any issue that the delay was for the purpose of trying to gain a strategic advantage that would be bad faith this record reflects negligence on the part of the governor well i disagree this record reflects the finding which is entitle to clearly erroneous standard requires growth finds gross negligence and remember gross negligence we're talking about you know the lack of diligence that even a careless person is accustomed to exercising so even the definition of gross negligence we're all the way over on the end that gets the weighs heavily against the government even without the specific finding that they intentionally did this in order to gain a strategic advantage how does it play into your analysis that and i think this is undisputed that a soon as donnelly realized his mistake and you can see it on the face of the record he was like holy cow i'm gonna fix this asap and did it i mean doesn't that reflect not just good faith but i mean isn't that doesn't that bear on the degree of negligence that we're dealing with here well i think it does bear on the degree of negligence that we're dealing here because it shows that the defendants could have been arrested within two weeks of this happening it didn't have to wait for that i guess you know my point is that as between on the spectrum between clark and ingram i mean doesn't it show that this was an honest mix up mistake and really nothing more soon as he realized that he thought oh my gosh success right well i mean it probably was clients or even in the northern district of georgia they're not within the geography of the district one was in new york and one in miami that's correct but i don't think that's really relevant to the inquiry in that they the the driver's licenses of both they knew exactly where they were it took no time to find and i mean you got to lump all the all the different facts together to see what the situation is every situation is different don't you agree of course and this is the this but the fact that they're living in different places even if they know they know where they are so i don't think that makes even if it's a factor to be considered i don't think it's a very compelling factor and i see my lights are this case the magistrate judge in fact found that the government was grossly negligent in this case what happened here never should have happened and hopefully it will never happen again in the u s attorney's office now that being said the questions that are before us today rely on or turn on a legal test for which the government has to pass through which it can prevail the first is if this court agrees with the district court that the length of delay does not weigh heavily against the government and in that instance this court should affirm the district court and the second independent of that is if the this court determines that  reason for a delay does not weigh heavily against the government and in that instance once again this court should affirm the district court so there to pass through which this court may affirm and there's only one path through which the court may be reversed which will require finding that both of those barker factors lead to delay and reason for delay both weigh heavily against the government and in this case the fact finding that has been conducted by the district court essentially forecloses a finding  it forecloses arguing either lead to delay or reason reason for delay on the factual front the fact finding forecloses the defense from now arguing that the district court erred and like to start first later on we would if we look at this record and determine that there is bad faith on the part of the government i mean there was there are obviously an assistant united states attorney assigned to the case from the very beginning it's hard for me to believe and that there was two years of bad faith i believe that this would be a different case and it is possible that the district court could have ruled in favor of the defense and found that the reason for delay weighed heavily against the government along with the length of delay but that's that information to the michael donnelly why isn't the your honor i think want to take a step back in order to reach that in or to go down that path the court first would have to determine that the district court clearly erred in concluding that there was no bad faith and to do so this court would have to also decide that there's not too permissible of use of the evidence that in this instance it is so obviously bad faith that it is not conceivable that  district court could've determined that there was no bad faith so it's a very high standard to begin with to go down the clearly erroneous route and i got i mean i guess i don't mind throw you off your stride but i mean i guess it's pretty clear right from the record that the district court was pretty well ticked benefit of seeing both donnelly and thompson testify and came to the findings that she came to noted that it was inexplicable noted that defied logic and even found that the government was grossly negligent now all that being said the magistrate judge did not say that the agents had acted in bad faith and there is no dispute from the facts that donnelly was simply mistaken about the procedure and that's what the district court said in its decision after the r and r was issued the district court made clear that donnelly had just made a mistake and that mistake while while bad was not one that was born out of bad faith and in fact as your honor noted previously when donnelly determined that he had made a mistake he moved very quickly to address the mistake that he had made in advance the case at that point this precourt could have come through a contrary conclusion or a look at i understand that this report came to a contrary conclusion and you know we defer to the determination by the district court but there are a lot i mean there's a lot of things that took place  honor i totally agree and i do think that there is a portion of the testimony from the evidentiary hearings where the both testified they just couldn't recall what had happened because so much time had elapsed so you task force this was he was made the sole investigator but apparently this is the first time media overacted for the f b i how many people were in this task force and who was supervising the task force early somebody was hearing however there's there's no nothing in the record about how many other people were on the task force so i don't have an answer for that question right now your honor well you just get the impression that there was nobody in charge i think that the facts in this case show that donnelly was working the case independently and that there came a point approximately twenty three months after the investigation was opened when during a case review the the t f was informed that he was responsible for executing his own address and that certainly should have been made clear to him earlier than that da your honor but there's more you mentioned at the outset you said this was an egregious mistake never should have happened we hope it never happens again i'm not really sure how relevant to our analysis but just for our own peace of mind what sorts of procedures have we put in place to ensure that this doesn't happen your honor there is no official procedures that i can speak about here i can say that this is an unusual event and to my knowledge it hasn't occurred previously in our district th usa who left the office and so with the usa leaving the office and with the ts being unaware of his duties this did there was a delay in us discovering that this case had been sitting out there with an arrest warrant and speaking of delay i think that they're setting aside the reason for a delay the the length of delay here that inquiry i think is pretty clearly established to be a factor that does not weigh heavily  against the government in this instance as your honour's know there is a threshold inquiry for length of delay and that's twelve months or more that is certainly satisfied here but after that point there is a question of how far beyond that first twelve months did this delay continue and in this instance mr mendelsohn has mentioned that there was he now says a thirty four month delay and i'd like to know for the record that the delay the time that elapsed from the point of the defendant's arraignment which was on that number six two thousand and fifteen approximately a month later on december eleventh two thousand and fifteen the first p d trial motion was filed by mr mendelsohn and from december eleventh two thousand and fifteen and tell november third two thousand and sixteen so approximately eleven months went on when this issue was being litigated and after those eleven months elapsed  the issue was decided and both the defendants your anger and believe both pleaded guilty in january so the extra time the thirty four months i think doesn't give any credit to the fact that this issue was being litigated essentially that entire time frame so looking at the twenty three month delay that's less than two times what what would be considered presumptively prejudicial and in the clarke case the court noted that that was meaningful and when you look at the other cases that have been decided on this matter you'll see instances where the want to delay weighs heavily against the government or instances where it's four or five times as long of a delay of the presumptive delay that being cases like our current da get where there is a five year delay and barker an eight year delay in doggett and then on the other side there are cases which have been cited in the briefing certain of villa reale which is a three and a half year delay that did not weigh heavily against the government jackson which is a twenty two month  beam and twenty month delay the ingram case excuse me the court case talks about another case from the eleventh circuit called robinson which was a fourteen and a half month delay this case falls more closely in line with those cases where the courts the term in that it that the delay did not weigh heavily against the government and it seems today there's there's not really a question about the complexity of the investigation and that there was no inordinate pre n di delay which means we're looking at a twenty three month delay in which there was no prejudice against the defendants and given that given the fact that undisputed that there is no prejudice and that this delay falls in line with with clark in terms of blent the delay seventeen months versus twenty three months and the fact that clarke and this case both have the same reason for why the delay occurred which was that mistaken belief that the officer responsible for the arrest  was not actually responsible for the arrests a mistake that they're arresting officer had made makes this fall squarely in line with clarke and based on that independent of any other analysis on reason for delay this court could and should  based soley on the fact that the length of the lay does not weigh heavily against the government because without that the defendants cannot succeed in a claim under bark of the window turning to the reason for  the the district court i think was correct in concluding that this case was more like clarke and i've kind of talked about it already previously but clarke is a case in which it is hard to say one cannot say that there was a lack of diligence where the task that one was supposed to do is not known so the officer didn't have an opportunity to lack diligence because he didn't know that there was a responsibility for him to do something and that's the exact same thing that occurred here in this case and that i think separates clark in this case from all the other cases that are discussed in the briefing and all the other cases that defense counsel has identified and i think that that's enough to  district court and support the district court's finding that the reason for delay is does not weigh heavily against the government and your honor there was some discussion about the fact finding that occurred in the district court there is no it doesn't there doesn't appear to be any true challenges in the briefing about whether those facts are correct so there hasn't been a strong attack on the fact finding and without that with the facts that the district court found in this case the the district court should be more for how do you how do you distinguish gross gross negligence from a lack of  it's difficult to pull them apart when you have a multi factor balancing test in which at least some of the precedent provides language that says provide language that was cited by the district court about a failure to pursue a defendant diligently will weigh against will weigh against the government more or less heavily depending on if the government acted in good or bad faith and that discussion has happened in connection with negligence  i don't think that you can really pick those two apart i think it's more important to look at kind of holistically what occurred in that case and not rely on those labels as much and look at all the facts and see which case this lines up with more rather than say  this case is a case of negligence therefore it is always a neutral reason and there therefore it's neutral and way slightly against the government in every instance i just i don't think that the cases support that reasoning it just happens to be that the cases have language like that because each case has been examined on its own facts so i wouldn't claim too tightly to the question of having to resolve negligence versus lack of due diligence i think that cases like ingram your honor where the court talks about me ingram is an example where there is negligence and the court says that the negligence of so egregious that that the that the that the dischord erred in finding that there was no speedy trial violation so i think that shows you that these labels don't necessarily control where the case should fall within the case law in this case is more like clark i think the supreme court case doggedly tells us that these labels do actually matter because what he thought it was a negligence case and what this and what the supreme court said is negligence is on the wrong side of the line it weighs against the government and there's a spectrum as you go toward the government doing an intentional act to gain a strategic advantage that's at the end of the spectrum good religion efforts that's on the other end of the spectrum the negligence on the wrong side but as you get closer to the the one end of the spectrum the better end of the spectrum the length of time that the delay happens that you need to have a speedy trial violation goes down and so you know cases like clarke you've got a negligence case that's close to the closer to the center but on the wrong side here we have a gross negligence case in which they've equated gross that we equate quote gross negligence to a lack of diligence that puts us closer to the bad end of the spectrum which in turn brings down the length of time that's required in order shows problems so that's why you have to focus on the reasons right of course of course so how does that balance out on that same spectrum well here the reasons given i didn't know i thought the marshals were going to do it is not a particularly good reason compelling reason given the collective knowledge of thompson the u s attorney's office and everyone else who did task force who you can say that he he knew the procedures right i mean he was a newcomer to this business true but we should expect more federal agents he is a deputized federal agent he could ask right of course and he should have asked and there's a supervisor who if this is the case where we have somebody who he thinks doesn't know what's going on the supervisor should have been there monitoring in addition the u s attorney has an obligation to them presumably the supervisor and we did a case review two years into this and a it was the first time we did a case review together and that's how we discovered so we didn't have a supervisor in for our evidentiary hearing so there's really no record on that and to address judge newsome your question about what procedures are there that would ensure this doesn't happen again there are procedures out there but the way we ensure it doesn't happen again is this court publishes an opinion reversing telling every law enforce nation every task force member that it's no excuse to blame the marshals or think the marshals this is your obligation we know it's your obligation and if you don't do it there are consequences that's what the speedy trial act is or the speedy trial protection is all about finally you know the government has talked about see reason for the delay issue in the district where it took the position that this was gross negligence and that the court equated the gross negligence to that ingram i think the government's bound by that and to the extent that any kind of argument here is different i think the case in the waiver case law as we cited in our reply brief would preclude the government from making that