or not the district court made factual findings as to the total amount of non excludable de lay that preceded mr lewis is first trial in that that was appealed the with this one the government apparently concedes i believe that the lower court should have made findings of the about the entire length of non excludable of the way including the period that was not reached by the court in with one which and on that period as and the entire period were important for two reasons one is the length of the non excludable delay was a measure of the seriousness of the original speedy trial violation one hundred seventeen days between january thirteenth and may twenty ninth two thousand the court the district court believe that there was a good faith this understanding of the law by the government which caused that delay we submit that it's clear from the record that the court the district court failed to make the findings about the total hundred seventeen days between january thirteenth and may ninth two thousand make no findings whatsoever about the other period challenged in with one but not reached by the lewis one court the one hundred  thirty seven days between may sixth and september twentieth one thousand nine hundred a point i gather is that if the judge on the record had adverted to the additional delay period that his decision would have been different if the judge had analyzed that hundred thirty seven days i'm not sure whether or not the court would have reached a different assessment of it but at least mr lewis would have had the opportunity to challenge the court's findings because the court made no findings about the one hundred thirty seven days of delay there's nothing to further this court to review and there's nothing for mr lewis to challenge but  the court in the in the sort of intellectual posture of diverting the fact well there's no question but there is a violation of the speed trial act now the question is should the  only it what it did was as a matter of law it limited itself to louis one it said in essence the record in this case is what happened in the with one and in lewis one this court found  hundred seventeen days of delay between january thirteenth and may ninth two thousand to be non excludable all the lewis and that's all it had to because it's over seventy is not directly ok but it didn't ever reach and because of that it was unnecessary to reach the other challenge which was the hundred thirty seven days between and the district court erred by failing to even consider that other delay of the court and clymer made clear when you're suggesting this ford was aware was it not of the fact that this sort of delay was two years and four months and one thousand days or certainly the clerk of the court understood that it did and didn't take that into consideration when it made the delay but not so substantial that he couldn't be retried because the court felt that one hundred seventeen days was the record as they put it and it wasn't going to be on the record so the the mistake that the government made was one hundred seventeen days that brand that that brings me to my next question if the district court had in your view properly analyzed the hundred thirty seven day period what would have caused it to reach a different conclusion with regard to prejudice ok what would have happened what if the court had analyzed the one hundred thirty seven days and mr lewis would have argued a that it was not excludable for the reasons stated in in the brief and the last one if the court had found that agree that it was non excludable then what would have the next question would have been well what was the government's role in that violation what was its fault which is clearly enumerated as one of the factors that you look into in deciding whether to dismiss with or without prejudice and in doing that that period of delay resulted from the fact that the government repeatedly told the court that mr wang who was the who was the main defendant in this case this fellow from malaysia who was trafficking in wildlife i was in mexico and was fighting his extradition and the government repeatedly made charitably inaccurate grossly inaccurate predictions about when mr wong was going to appear so in the interest of judicial economy and then give me some discovery about what the government was doing because i didn't know at that point whether or not it rose to the level of an evidentiary hearing but the but the court foreclosed at two levels first it said i'm not going to look to see whether the hundred thirty seven days was excludable or not then because you can't establish for me that you have a reason to get this discovery because i'm not going to look into the hundred thirty seven days i'm not going to give you the discovery so i'm not sure one what basis  lewis would have been able to ask for an evidentiary hearing i mean i think the court just sent misinterpreted the loss and simply the court felt that one hundred seventeen days with the posture that the case came back in and so it was going to look question whether the period is one hundred seventeen days or two hundred fifty four if i have my math correct i think you do ok can you point to specific prejudice putting the role of government side point to specific prejudice that results are to your client and his ability to put on a defense that resulted from the period whatever it's like the court the court  go to the hague and prosecute war crimes which he had told the court about numerous times the court continued to delay the case and as a result of that he had to leave and you counsel had to be in point it lewis  using a specific prejudice from the two hundred m back yeah that's right on that's what i'm trying to get you say he looked at the hundred seventeen and came to the conclusion dismissed without prejudice case can be retried right if he had looked at one hundred thirty seven and made specific landings as to you know he may well of come to a different conclusion right and i'm searching for the why the prejudiced prong would have come out the same except that under the window of the window supreme court case there's always prejudice associated with pretrial the lag and in this case it was one hundred seventeen days versus one hundred seventeen plus one hundred thirty seven it would have been a longer delay so the prejudice from not having a speedy trial would have been longer because there's a number of cases that say that the   take your rebuttal time now and then we'll hear from the government and then you still have your eight minutes two to use if you wish i had several other issues certainly  good morning your honor may please the court my name is todd a guard representing the united states since mr pike i spent all of his time on the speedy trial act issue i'll go right to that i am of course available to ask and to answer any questions on any of the other issues that have been briefed i think that really this goes to a characterization of the record and in that regard i want to make two points the first is that the findings that mr pike says were lacking were not only made on the record in this case they were made over and over again if you look at pages appellants excerpt of record and i'll read you some specific entries page three hundred eighty this record doesn't reflect that there were improper exclusions of time saving except for what the circuit found in this case page three ninety eight it's very clear on this record the exclusions outside the one hundred seventeen days are justified there's nothing in the record that reflects they are not page three ninety nine from the outset the exclusions of time that were made are justified nothing in this record reflects otherwise h four zero one facts on the record support the exclusions that were made save and except the ones that the ninth circuit didn't feel were justifiable for zero nine there is nothing on this record that indicates that the represent representations that were made and the ninth circuit doesn't reach this that were made with respect to the extradition is erroneous you have the findings that mr pike is asking for now he could have challenged the substance of these findings in his appeal as he did in the last one but he didn't there is nothing in his briefing that challenges any of these other periods of exclusions he's just asking for findings the findings were made now if his quibble is that the district court didn't walk through specific continuances and specific exclusions that's readily understandable the district court had already done that the first time around it before the first trial walked through a great detail and that's what was in the excerpts of record in the littlest ones trial were all the findings that the district court had made this court set aside one of those findings it came back to the district court and mr pike on behalf of mr lewis says we need findings you can understand why the district court didn't walk through them individually but just said globally there are findings the findings are justified the ninth circuit this court only set aside one of them so it's readily understandable why the court referred to them in somewhat more generalized terms than you might otherwise expect the other point that i wanted to that determine existed had a substantial impact on in terms of prejudice on the defendant did not know actually i mean it's a if i can be very specific here what the court found was that the overall pretrial period the two years and four months impacted it prejudiced him causing his counsel to after withdraw from the case mr lewis has readily conceded both in the district court and his in his briefing here that the one hundred seventeen days was not the cause of his counsel having to withdraw and in fact this goes to the other point that i wanted to make your question about the additional one hundred thirty seven days that also did not cause his counsel to withdraw his counsel withdrew after several several months after that entire i think what you said with two hundred fifty four day period had expired so even if you counted the entire one hundred thirty seven and one hundred seventeen days as as just as non exclud the lane had substantial prejudicial effect on the defendant it was the result was deprived of his right to be represented by counsel of his choice right and it took what i'm saying is the court was not distinguishing between the excludable delay and the non  counsel is do you think it was the defendant's burg before the district court to show that there was something more then lewis one found in terms of deciding whether to dismiss with or without prejudice the the pa if i can answer that this way and i hope that this is answer your question the district court actually found that prejudice the loss of his counsel and weighed that among the factors and still found dismissal without prejudice was important mr lewis is not saying that that balancing was an abuse of discretion and so you see he had to go beyond that in so far as his argument is not court failed to balance the factors correctly but that the district court misunderstood how the factors apply all together so yes he had to because he's and i think he frankly he has to make that additional argument because the supreme court's decision in taylor makes clear that it is very very difficult there's a very broad discretion as long as the district court looks at the factors and doesn't make a clearly erroneous factual finding that it's very difficult to set aside the district courts balanced so yes i think he does have to make that additional showing and i don't think that he's done so so as i was saying the district court even though it didn't have to we could have just looked from the prejudiced from the non excludable delay from the violation of the act the prejudice that it described in this case actually went beyond that and by looking at the w this council which wasn't attributable to the violation of the act essentially gave him the prejudiced finding that he wants by trying to expand the scope of the court's analysis and then the only other point i think that i need to make is that  the court actually we did say and a lot the last finding that i read to the court on page four zero nine the district court did actually make a specific finding that the continuance on the basis of the extradition for mr wong was justified in that page for nine is that the court said there is nothing on this record that indicates that the representations were made were that were made with respect to x extra decision is erroneous and that was the basis for the court denying the request for discovery on this issue  seven days because it didn't have to make a finding that's correct and i don't think the district court was trying to say that this court affirmed its decision on the one hundred thirty seven days the court was just saying the record justifies it i already made that very specific you take out for eighty five i guess my question is i don't see where any court has actually rolled on those one hundred thirty seven days and it's an issue we didn't roll transfer of the charges from texas there was a number of different reasons that the court relied on for granting the continuance but you know any of that even if you are right which i with all due respect disagree with what the court did on absolutely clear that the district court made in the original finding pretrial before lewis's first trial as to that one hundred thirty seven day period and so even if the court even if you are right that the court said i'm not going to look at that again what lewis should have done in this appeal is brief what he briefed in the last one which was the district court's findings as to those one hundred thirty seven days were clearly erroneous or an abuse of discretion there was a finding that was made it was in the record that was to second guess the representations that were made but in addition i think you do have to look at the record where she requested this discovery he didn't cite any rule any case i mean anything it was just a one sentence that said i need discovery and it didn't say what hoped to to find through this discovery or what evidence it would take through this discovery it was really a very slim read that he was offering the district counsel there is one other issue that i do have a concern about and obviously mr blake will have a chance to respond to these factual stipulations that were used in the first trial i would have assumed that anything that went on the first trial expired at the end of the trial i mean what why why are the stipulations come again and new life so to speak in a second trial because of the way they were written they were written as open ended ok yes that is true there are no ninth circuit cases one way or the other on this case although i think frankly if you look at the camp case that was a retrial and the court what the court said was that he should be relieved of his stipulation because of a mistake of fact so i think you can imply from that that is fully from system with these other cases that don't look to a cut and dry rule as to new trial new stipulations but look as to the substance of the stipulation and the basis on which that the defendant is trying to withdraw if i can just make two quick points about the stipulation one is that this is an entirely different theory than what he proposed in the district court about the basis for the forcing of the stipulation that in the district court he said he wanted to withdraw from his stipulations because of a mistake of law now he's saying no no no i'm not trying to withdraw the stipulations expired on their own accord the second point that i want to make is and this might give the courts some comfort to the extent that that it's troubled by this issue of enforcement of stipulations is that lewis has not showed any prejudice whatsoever from the enforcement of these stipulations he doesn't say that any of the stipulations were factually inaccurate moreover these were very easy to prove facts and if you look at agent morrison's testimony in the transcript in and around the pages where the the where the stipulations are entered he essentially testifies and has exhibits that support all of this information so really it was almost redundant information most of just going to sort of establishing the structure of these fed ex transactions so the prejudiced him losing his original tribal council was not sufficient to require dismissal with prejudice but so so he gets the defendant gets the detriment of that but he can't have the benefit from successor counsel saying wait a minute i trial counsel both the first trial and the second trial and he executed the stipulations you know it's just up to the counsel who actually thinks the stipulations to specify if they are in any way limited in scope and frankly let's be clear the reason agreement here the somewhat bizarre thing about this whole set of circumstances is that the stipulations for the first trial actually differed some want in their language there were a few stipulations but did say in this case those can be found on pages four sixty eight and four seventy the appellant's excerpts the record those aren't the stipulations that he actually tried to get out of for the second trial those stipulations which can be found at five zero three and five zero five of the appellant's excerpts and as well in our a specific or specific finding as to the other grounds that were we raised in our brief to the ninth circuit in the ones they did not reach the court responded well the ninth circuit made its decision that's the record i'm not looking behind that i'm kind of skipping around in the interest of pretty well i guess i should ask you at least so i would have a record i declined to do so ok ok that was a specific request by mr lew with a specific request that the court make a finding as to the one hundred thirty seven days the court specifically declined to quote to do so so you can cobble together anything you want in the in the transcript to try to justify some kind of finding but the but the problem here is there was nothing to appeal mr lewis isn't in a position to attach some portion of his prior lewis one brief to this brief because there's not there's no record to appeal we don't know why the district court found that to be non excludable time we don't even know frankly that it didn't that it did find that it was non excludable time because the court made absolutely no findings whatsoever what the court said was this case came back to me in a rino and posture i am looking only to lewis won and i'm going to assess whether or not based on what louis one held that there's a perhaps to give me discovery if he believes that it's necessary to allow me to not meet but allow mr lewis to attack the exclusions and if necessary if it goes that far and if he doesn't  prejudice because the court instead of looking at the whole period of delay and trying to assess what the period the entire period non excludable time was as climber instructs the court limited its consideration to louis one and what lewis on point out about the problems with that one hundred thirty seven days and why the government the government's i could suggest some nefarious motives which i'm just suggesting them because i never got that as we never mr lewis never got the discovery one is that the government because this was a multi defendant trial mr wong was the main defendant he was the main target the worst actor in this case did not want to burn its witnesses did not want to burn this discovery by having separate trials another nefarious motive would be that it was in negotiations with mr wong to not only get his fliers but also lowered lower down people and in order to foster these negotiations allow them to go to the end they delayed the trial in the st louis is a speedy trial rights as a is did he withdraw at the end of the one seventeen or at the end of the two fifty four he did not withdraw at the end of the he did not withdraw at the end of the one thirty seven he did not withdraw well ok he did withdraw at the end of the one seventeen in the sense that i think what happened was between january ninth and then some day in may two that the law is that due process requires where a sentencing factor is estimated or ascertained and it's difficult to ascertain or uncertain the defendant gave could be given the benefit of the doubt where there's this close margin of error which in this case was about one percent the government doesn't argue that mr lewis was given the benefit of the doubt what the government said was that the value of these reptiles was the stablish with certainty the problem here is that the court dop did inconsistent and conflicting methodologies to figure out what the value was in which we pointed out in our brief in one instance when they were trying when he was trying to evaluate the braes monitors he said well you don't have any price lists you only have this kind of anecdotal hearsay evidence about what the price is i don't believe that's good enough yet that's sane methodology the know priceless anecdotal  testimony of hearsay of of an identified persons was enough to establish with certainty the price for the spider tortoises did your side offer a specific value for any of these  species i think it was more that we attacked what the government had put forth and that the argument the upshot was that if you adopt a couple of arguments here you're to be under seventy thousand you're not going to go much you're not going to go to the next lower level down but you're certainly going to be under seventy fans and that was the point if i could address the stipulations or if it's not necessary just go ahead what  indictment with a new case number that had to be the originally it was assigned to a different judge judge alston and the government filed a notice of related case they wouldn't have had to do that if that was the same case this was a different case these cases where there's the same indictment or it's on the same complaint in a civil case whether it's on the same complaint or in the criminal cases where it's on the same indictment they're the same case we're not dealing with the same case here we're dealing with a different case the case caption is different and all the so we understand their counsel but you heard mr a guard's argument what's your response to the fact that the stipulations that issue here did not include the limitation for this case only i think that that's self evident from the case caption itself i think it's a question of the expectation of the current like con i think the stipulation is like a contract and that when you stipulate to something that's what the parties actually taishan is are about that stipulation the expectation because this was a case that the prior case the expectation was that this case the stipulation is for lewis one that the case captioned this case not that it's going to continue ad nauseum into every case because i think it would be every single collateral case that could be used in an immigration proceeding if mr lewis were not a legal  the conspiracies were different periods of time the conspiracies alleged different periods of time it was different in more ways than just the case captioned it was really a different case thank you cal so your time has expired the case just argued will be submitted for decision on the court will