ok i'll say good morning may it please the court kara hartzler federal defenders on behalf of mr sanchez martinez for five months mr sanchez sat in jail and waited for the prosecutor to turn over discovery so his case could go forward every error here stemmed from that delay but i'd like to start with the question of whether the june eighth indictment in  this issue is controlled by a pure legal question when did the district court's dismissal order legally take effect and the answer is simple the government asked for a state's genine the court granted a stay to two nine and the just got it dismissal order legally took effect that wasn't the purpose for the stay just make sure that the defendant would be available for drywall that he wouldn't be released by the prison well your honor the district court's statement doesn't reflect that i'll read from e r six forty nine where the prosecutor says i could probably get into the grand jury this wednesday can your honor stay the dismissal order until the ninth this friday district court yes all state until the ninth there was no discussion whatsoever there that it was supposed to be stayed for one reason and not for another even if they had discussed it in that moment i think it would be very questionable for a court to be able to say well i will stay this in a way that benefits the prosecutor but not the defense but not the defendant well the counsel counsel to be frank the time is ticking and this strikes me as your weakest argument so i want to be very candid with you about that i read the record the way judge marshall does the district court's intent seems to me to be very clear and it's tough for you to argue that this wasn't to benefit your client when after all what was happening it's so unusual to be sure but of course the condition of all of this was that the mandatory tenure minimum wasn't going to appear in the new indictment so this is a really tough argument for you  i'll then turn to my first argument your honor and that argument is first of all we would say that the district court here didn't meet the high standard that is required for explanation in terms of the speedy trial act in the tail of the supreme court specifically said that in the context of the speedy trial act statute district courts have to start reviewing courts have to undertake a more substantial scrutiny and what happened here is that the district court didn't even mention these factors by name basically is the district court focused primarily on the issue of was there prejudice in the form of the mandatory minimum and that doesn't get selections or is briefing forgive me for interrupting there's that i want to be sure i'm right about there that there was a briefing on this issue generally and that the judge said at that hearing number one you haven't identified the statutory factors for me and then a supplemental brief was filed by defense that did exactly that so if that's right and i guess that is a baked in question because i want to be corrected i've got that wrong but should we not understand that the judge have those factors right in front of him and was is from his other comments he's certainly aware of them so it's certainly that was discussed in briefing your honor but the problem is that under this cape course case law that's not enough so for instance in the case  white which we mentioned in our briefing the district court essentially said i have julie considered all the statutory factors and we didn't even get that here we didn't even get the court saying i have considered the impact of the reprosecute on the facts and circumstances and the seriousness of the offense so the on the seriousness of the offense that seemed to me to the elephant in the room because your client was charged with bringing a ton of marijuana literally into the country and that was the basis for the mandatory minimum the ten mandatory minimum and that one seems to me to just be manifest a part of the of both hearings i'm more concerned with what the district court thought about one way or another about the extent to which the purpose of the speech would be undermined if an exception were made here and he says at one point in the transcript as i would like to know what the ninth circuit thinks about this five month delay so what do we do about that well i think certainly one thing the court could do is is remained and say look we need you to explain these factors more but i think another thing that is really at the heart of this case is did the government do the right thing here in other words should they be allowed to have this kind of delay for five months and then not even give us a good reason as to why there was a delay and should they then be allowed to essentially just not suffer any consequences for that and i think that's a really well arguably they suffered a consequence because the ten year mandatory minimum went away and the district court i think makes a comment where he's trying to get back to reset where he certainly didn't make any excuses for the government's failure here for five months it was an extraordinary delay without any excuse and yet the reset is this what i refer earlier it's the unusual re indictments of the ten year mandatory minimum didn't appear what about is it is that a sufficient sanction no i don't think it is and the reason is your honor because first of all there was some other shenanigans in this case not only was there this five attorney who is assigned to the case that is correct but your honor as we pointed out in our briefing there's also been at essentially four more to four times more many speedy trial act motions granted in the southern district of california in the last several years than there has been in any other california district or in arizona not only that your honor but there's also been unfortunately the by the by the u s attorney's office in the southern district there has been this trend of essentially relying on arguments that are foreclosed by this court's case law in sutter the last time he did that this court called it a disingenuous argument but then they use that same argument here in other words what i'm concerned about and why we think that this is this needs to be dismissed with prejudice is because if you don't this pattern is going to continue because they will know that all they need to do is just reenter i and then the problem will go away but the speedy trial act at the speedy trial act is not just about a defendant's right as the supreme court has said it's also about the right of society it's that the right of society to essentially have people brought to trial expeditiously and less this court takes action in cases like this there is going to be no consequence and there's going to be no change in behavior by either the prosecutor in this case or the u s attorney's office or even the district court who wasn't who was allowing this just to go through and i take your honour's point that well perhaps it took them back to the same place they were before but the problem is that if you just do that then there's no incentive to do anything different in the future or did you plan to come in on the evidence that was introduced and receive that trial and yes track that and i think that's another was missing right and i think that's an at the at the entire tape itself and i think the problem there is because when you didn't have that whole tape what the government then did during trial is they relied on those small snippets without having the the complete tape and they relied on them a lot at least three times during the trial the jury was shown this video they made a lot of it when they went through the direct examination they showed it again when the prosecutor was doing the closing argument and then the jury asked to see it a third time during deliberations so it's simply not the case that you can say that this isn't in consequential part of the trial that the tape didn't show who was driving the truck it didn't it alone didn't even show which truck it was and the person who selected the snippets if we can call them that i think that's what we mean testified it was subject to cross examination about the extent to which he chose those just those why just those and he said there there weren't other there wasn't other footage that captured the images and the jury heard all of that so how do we get to prejudice well the problem is that the the truck owner also said that there was a time difference in that the tape was they weren't sure whether it was an hour off or not and that hour off could have affected it because it could have shown that our client actually did bring the truck back within the time period that he said he did so there was a big credibility issue that came about as a result of that and with the court's permission i'll say the remainder of my time thank you we took you over we'll put two minutes on the clock when you come back good morning may it please the court nicole reflux for united states the central question the court is asked to review here is whether the district court abused its discretion in determining that the proper remedy for the speedy trial act violation in this case dismissal without prejudice and that in order to reverse the district court this court would need to find that that was the logical or impossible or without support in the record and the court would be hard pressed to find that here i'd like to address this question about the for discovery for the majority of that time period the speedy trial clock act was told the defense counsel filed a discovery motion on july twenty first with the express purpose of tolling the speedy trial act from july first through october twenty sixth while defense counsel is supposedly waiting for this discovery she doesn't come to or is there some reason she's not waiting for i think it's understood that she was waiting for discovery of course i polish i didn't mean to represent she was not waiting for discovery she was waiting for discovery however she had it motion hearing on and on the calendar on september twenty sixth and when she came to court she did not say we're not receiving the discovery and i've called the prosecutor we have a problem she said i have a discovery motion on file and continued the hearing and in any event that period it was told under the speedy trial act so there is no connection between this the five month delay and the violation that o the violation that occurred occurs in the third the third row of the table eighty three days of the of the clock running was attributable to defense counsel coming to court or e mailing the courtroom deputy and asking for a continu majority of that time with after everyone agrees defense counsel had all the discovery counsel hears that hears about but it's really judge marshall's question we don't often see transcripts like this and the judge who's much closer to this than we are talks i think very candidly and he was trying to be i think very diplomatic and very professional in saying at the same time there's a real problem do you want to address the problem he was concerned about this wasn't the first time you've read and i'm sure you're  the district court had that case in mind and cited that case i had a case a few months ago with this prosecutor and there was a delay and the prosecutor came in and clarified actually yes there was a delay but there was no discovery violation here and essentially the court corrected it with a continuance and the court struck the comments and said you know i probably said that off the top of my head without remembering all of the facts so so as an initial matter those comments regarding the original prosecutor i would submit are not part of the record however to the extent that the district court is thinking of the prosecutor in any history those are facts that the district court had in mind and considered and nevertheless determined that a dismissal without prejudice with appropriate so long as the united states agreed to withdraw that mandatory minimum close encounters argument and again also presented you know very professional weight is that we've got comments here by the district court saying you know i'd like to know what the ninth circuit things about this delay and he's i think very clearly citing to the history can you tell us what is your response to that again i would point the court to that eighty three days where the speedy trial clock act that the speedy trial clock was running was because defense counsel was e mailing the courtroom deputy and saying i'd like a continuance because they need to prepare my subs my substantive motions she had all of the discovery now it was incumbent on us and we accept responsibility for our contribution to the speedy trial like violation it was on on us to respond and ask the district court to make it and of justice finding on the record we did not do that and we are training our attorneys we every new attorney who comes to our office is now receiving training on the speedy trial act and the importance of making that record because often what happens in our district with such a heavy volume of discovery motion is filed it's given a motion hearing trial setting date and the parties continue the case while they're filing substantive motions and essentially a way that motion hearing date is continued and is tolling the clock and at a certain point something else happens and that motion hearing turns into something else from the clock it's no longer told and so what we are training our attorneys to do is to make sure that each of those times we don't rely on that discovery motion even though there is often a date certain and it does comply with that or to told the time to say let's also make sure that the defense counsel is articulating the reason for the continuance and the district court making and the justice finding because at the end of the day this violation was a result the district court the prosecutor defense counsel failing to get that and of justice exclusion on the record it's a failure to make the record it's not a failure to bring to bring the defendant to trial within the time he wanted to be propped defense counsel came into court  the those tapes again early on so that we wouldn't have the problem that we have now that the tapes have been taken over or some have to absolutely your honor those videoclip should have been turned over much sooner than they were and we are except that however it doesn't have to argue that there's four times as many speedy trial violations of this particular office is that right there are there are two decisions by this court finding those same two sort of technical violations one is the crew's case where it was it concerned about this is absolutely absolutely your honor the answer and the answer is twofold one this failure to get these findings on the record is something that we are training our attorneys to do and the district court defense attorneys and the prosecutors are all at fault here we are going to do better but the second answer is that the district court was aware of all of these facts of the supposed history let's say the history is what the district court thought it was and decided that nonetheless an appropriate remedy was to say to the united states you can't proceed on that mandatory minimum you can't you cannot keep it that mandatory minimum charge that was warranted by the amount of drugs that were in the truck and instead you need to go back and get a new indictment without that in the district court in its discretion determined that that was the appropriate sanction and i don't think even if this court considers the history and even if this court considers the comments that the district court struck from the record that those findings were implausible or a logical one i don't have or you can you give me the dates and he says how  honor we certainly applaud the u s attorney's office and their efforts to do training and and we think that's a great step a step in the right direction but one of the things that the prosecutors tell our clients all the time is that you have to be accountable for your actions and the s attorney's office needs to be accountable for their actions in this case and that's as simple as it gets counsel why should we decide that the district court held them accountable and that's why there wasn't a ten year mandatory minimum because all the district court essentially did is put the parties back in the place that they would have been if this delay hadn't happened if this delay hadn't happened then they would have done the ten year mandatory minimum because that was something that came about as a result of of the new administration and a change in policy so honestly it doesn't really do anything for the arguably it does exactly that it it sets a time that it comes as close as it is the judge of court could to turning back the hands of time doesn't it that's correct but one of the things that i think the united states supreme court said in taylor is that district courts aren't actually free to fashion an equitable remedy that's not what they're allowed to do their job is to go through the factors and even if they think it would be a good idea to oh well i can i can put this person back in this position that's not their job their job is to go through the factors and decide prejudice and what happened here is that the district court said well because of this remedy that i'm really not supposed to fashion under the supreme court law then i don't need to look at these factors and that's not true taylor said that's not true and because of that we think that at a minimum this court needs to remain on for a for the district court to make those findings to apply the factors but we think the better remedy here given this history by this prosecutor by the u s attorney's office and i would point out that the district of arizona hasn't had similar violations and they have just as high of a volume but because of those violations and because they are pattern and a practice we would ask for this