good morning your honor my name is calling prince and i represent christopher meyer's i will watch the clock and try to reserve four minutes for myself until last week we had three issues to cover  but the decision in united states b vetter office actually solves issues two and three so if i may begin with the speedy trial problem just because a state case exists does not mean the federal government can delay indefinitely without notice to the defendant without notice to the court that is what the third circuit held in battus and that is what the tenth circuit held in seltzer the question before you today is whether that's true and then we look at the totality of the circumstances we we require the government to make a particular that if there is a state case that exists per se the federal government can delay it we look at the circumstances test which is what you're i think you're advocating how does that go for your client well so i think that's where we get to the full barker analysis and i think to say the totality the circumstances i guess i haven't read that the courts are calling it that but i would i would agree because barker says it's an ad hoc case by case test so if you so you will i understand you to be advocating i think this is what judge of good is getting at you don't want to adopt a rule that says the tendency of this case alone is is enough we should look and see how what what the facts and circumstances are exact and so my question is how does that work for your client so moving to the first barker factor here i i think there's not really a dispute here we're at twenty two to twenty four months length of delay we're twice presented why twenty four thousand points it's twenty two months to the actual day when mr meyers came into the initial appearance twenty four months until he moved for his first continuance so the district court actually if you look in there the order actually noted twenty four months i've used twenty two because it's dead clear about when he had his initial and that's enough and that's enough so what about her to his reason for the delay the reason for the delay we i am advocating that this court should adopt the particularized showing that the tenth circuit adopted and that the district court administrative difficulties in safety concerns presented by parallel prosecutions jenner generally justified to lay on the second case so the government points to the normal of having an interference with a does justify a delay that does add apply here how does that apply here i think it brings us to what the tenth circuit said which i think is just common sense we go to an evidentiary hearing the government carries the burden to explain the reason for delay the tenth circuit has just said well you have to explain why there really are logistical problems you have to show why really there's a problem here and the district court held there are no logistical problems i know this gets into the real mechanics of our district  year the tenth circuit held insults or the denial of counsel for six months constituted prejudice so we are now opening up a split where the district court held the denial of counsel was not a problem for a year and the reason denial of counsel was really important in this case is because mr meyers was concerned about aca eligibility when he wrote to the district court on may twentieth two thousand and sixteen what he said was quote if there is a finding of guilty on the state charges the u s government can seek substantially greater punishment on the instant matter what he's worried about is that he pleads if he takes a guilty conviction on first degree on second degree assault he's going to destroy his federal and so it didn't happen so good and correct ok but imagine you are sitting in solitary confinement in a six by nine foot box and you're facing first degree assault which mr meyers did not commit that is intentional not the issue he's being leveraged to take a plea and he finds out he's in state court is being leverage to take a plea they're coming to him and saying plead to first ruth all plead to second degree assault and he's thought forgive me for interrupting but are you saying that he didn't move forward in the state matter of resolving this matter until he got a lawyer on the federal side correct or could identify which what the consequences would be on the federal side yes where do i see that is that just a matter of looking at the chronology and putting that is one twenty three directly wrote that to the district court which is the quote i read to you he testified to that your to ninety nine he was unsure how to proceed this is the fundamental problem is we're talking about concurrently charged cases the nihil of counsel is so essential in these cases that you think that not having a lawyer in that will not moving forward in the federal case means you didn't get a lawyer in the federal case and that delayed resolution of his work that's a question essentially correct if the state the federal prosecutor did not notify him that he'd been indicted did not notify him of a right to counsel didn't rob bring him for an initial appearance on november twenty five fifteen he accidently finds out he's been indicted and he realizes he cannot resolve his state charges because if he pleads to something he doesn't know what the consequences and this is where i get down to it your honor is the district court's order is a problem because it doesn't take the role of defense counsel seriously what we do is not a joke we go in and we tell our clients what the consequences of got a sentence such that he would have done this amount of jail time anyway it's not a case i can envision a case where this would be a big problem if somebody winds up delaying the state case so long everyone's doing more time than a weatherwise have served is your argument that he did a harder time in this pretrial phase because he was on the sixth floor i'm not understanding your argument yes he sits for six months staring at a wall terrified that he can't move forward we're talking actual prejudice my emotions different sorry he didn't do more time i don't think because his these are serious charges in the state court so it's not it's not as though he was going to get a sense and state court of less than twenty two months that's not where you're arguing is it is it that in this trial holding facility he was on the sixth floor in solitary confinement and looking for prejudice he spends at least six months longer on pretrial solitary confinement because he did not have counsel on his federal case and was unable to move related to the delay so why is that i think we finally got now i understand he thinks not having us federal lawyer delayed the resolution of his state case and as long as that state charge was pending he was in  harsher confinement and and those factual assertions reviewed for clear air were aired by the in front of the district court twice the dish a court help two hearings in this matter with regard to the defendant's motion to dismiss one before he was a least three times in the states where that the district was also not happy that the federal government wasn't proceeding that it was not and the federal government also flip flop back and forth about that co but the federal government was consistent with regard to the reason the federal government was not moving forward with mr meyers case was not to interfere with the stake or personally i wouldn't interfere well with the same witnesses if they were essentially going to do their  case interfere interfere if the same witnesses even just to rein him so he gets a lawyer and we was an opportunity as one would expect to do a global resolution except they didn't have a federal lawyer and so i appreciate they didn't do  interference would be we're going to go interview witnesses it could have also gone against the defendant's interests if the government goes out initiated federal prosecution by running him we're also going to go out interviewed the defense witnesses were attempting interview those people that could result in negative inference as for the defendant it could but it seems to me that we're back to your argument is that even the rule that the defense wants us to  this case as applied he would not have a speedy trial because of the facts and circumstances i'm curious about what the government's position is about whether you should be entitled to an absolute rule well the govern proceeding the government is justified in not going forward with a federal proceeding or whether we should be looking at the tennis or hits of the circuit more of a case case by case analysis and if so what would the but you're assuming interference that's the problem yes assuming interfere well what makes a interference per se interference i mean you keep repeating well you don't want to have the federal proceedings going at the same time as the state proceedings but why is that interference just very specifically it's interference because there's collateral overlap between the cases there's factual overlap there's witness or there might be depends on the cases it does and it depends on the witnesses that it does and we've got this blanket rule that's concerning to both of us and maybe all three we don't know yet but you've got a player it's clear indication two of us are concerned so i understand the court's concerns but this is not a case that would have a blanket rule such as that cause problems constitutional problems this is the way it was approx and we're not talking about this case we're asking about the blanket rule again i just want to be clear i understand you to be saying that you shouldn't have to look at the facts of this case that we set up to will this as if there's a state case and ng the federal government doesn't have to go forward i misunderstand your position no i think the government believes that there should be a blanket rule because that there should be comedy between sovereigns this court is also often had concerns when we interfere with the actions of other sovereigns jeopardize their cases interfere with their proceedings that said if the court were not to adopt a blanket rule the district court effectively went through the seltzer prongs the district court analyze why is this case not the same as transcript that sounds like everybody in the room knew what they were talking about about that he was on the sixth floor and that was solitary confinement and i can't tell whether or not he would have been somewhere on a different floor if it hadn't been for these both of these  would still been in the spokane county jail he would have still been facing these assault charges this my understanding from the record that he was he was in this confinement status because of the severity and the nature of the first degree assault charges he was facing with the state so if you've been brought over on a federal think that's his second degree assault statute is not a crime of violence on the elements clause and stoke laying came down saying that the degree of force for a crime of violence is just the minimal amount of force needed to overcome resistance does that require us to revisit our decision in robinson because robinson relied on johnson which said it has to be violent physical force i wish that it did but i can't see a way this you're saying it's not so the state offense in the federal offense where both based on the same incident as i understand they are there based that you're saying that under one hundred one point three they don't constitute relevant conduct i don't they d i why is that when you look at the examples in the application of this classic relevant conduct the application notes are concerned with somebody who is charged with a drug quantity in state court and a drug one of the in federal court and they're related and because of the way they're not group firearm the one b one point three refers to acts that were committed during the commission of the offense of conviction so i understand there were different charges for different offenses but weren't they all didn't they all take place during the commission of the offense of conviction and simultaneously they did takes place they went in this with defendant got essentially got credit for that at the state court level the state court level the state court looked to the federal gun charge and reduce the defendant's exposure by approximately two years accordingly so the defendant essentially in state court was not punished for that same conduct he was punished for in federal court which is not in session or firearm where is that in the record that's in the in the court's or case however i would also note that the government is also in the middle of digested better off right now as that case just came down on friday and and with that limit of the believe it contact are co counsels over here in the western district because of the look up united states v ingram out of the eleventh circuit the district court treated this as in less you show intentional bad faith misconduct by a prosecutor you've got to show actual prejudice missing witnesses or something like that and that's not the law if you look at engram interim as a case of negligence agents simply failed to go to a defendant's house and tell him that he'd been charged in the eleventh circuit held there to twenty four months away very similar here the negligence was very point this case is going to have wide wide ranging of facts on our concurrently charge defendants and if this case doesn't meet a speedy trial by elation we will basically never be able to show one for a concurrently charge