so i will try my best i was hoping very much to address one matter that i think is over a lot of this case the government has asserted to this court many places that mr marrow did not make a motion to dismiss the indictment in the district court that is simply in again yesterday in a twenty eight jail letter they make the assertion yet again and you say there was had some early point a motion yes there was that would and also it seems it was resubmitted again after the comedy's competency determination on april first two thousand and fourteen that is that docket number one thirty two i guess one of my questions about that is that mr romero was represented by counsel and this was a pro se final i don't ordinarily our court follows this practice and most courts do that when someone is represented by counsel process are received but not filed or they are simply not acted upon because a person is represented a particularly in light of the fact that at least at the time of the first filing in october it appears that that was covered by a period when your client had been found to be incompetent so  what what effect should that set of circumstances have in our now judge graber at the october the finally go that motion there was no finding of incompetence yet he had been when he represented he was represented so hobbs yes i have kapil i have had intimate suggested that he was very competent and then there was a hearing shortly after the just so there really are two factors here one if you're still very popular or potentially so at that time but more significantly he was represented so what do we do about the well i think i think it's what this court has done in this in cases like this is both the government sites and their brief and i cite in my brief is the whole case this is very similar to the hall case where a person was represented by coun whether you know having to make the motion to dismiss the indictment whether that waived it in front of this court it seems quite precisely and haul ass here there was a dismiss fire represent an exam and the court also said because this is the at this is the objection i think was being raised to twenty challenger that that continued forward believe for purposes of that in terms of waiver the filing of the motion by the pro se client to get out of the waiver category that's the first holding in all even though he was represented the second holding is because the court did not act upon that that it continued forward in included all time periods up to the trial the government as they got response or our views or tries to distinguish fall in this case by saying that in those cases and hall and i think lawyers that the counsel's motivation was in a different was different and should we consider that i mean it was not was counter the interest maybe of the defendant and here there's no evidence of that should we consider that as a well as possible way to distinguish i certainly think you know whenever any client in any attorney have a conflict about the way to proceed and that would certainly be true and hall as it would be true here and so i think they're very very similar cases your honor but i do think that the apparent conflict that the  referring to and also to some extent another case that the government cited the lloyd case that's the kind of conflict i think that where you know i think that this is how we proceed should proceed i think this is how we should i'm not sure you answered my question because i went here is there any evidence that that and that the counsel who was representing him the attorney had counter interests or motivations other than the best interest of the defendant well not not making a motion when you dismiss i mean it seems that this attorney just didn't want to dive into that i'm not saying the attorney was negligent i'm not saying the attorney was ineffective i'm just saying that they're rich period to be a difference in strategy but let's assume we get beyond the the waiver what's your best argument with respect to the actual merits here well here i think that we've offered a construction of thirty one sixty one h in its v know that was prepared by them and they're pleading paper and signed by the district court in essentially you know the district court made findings that thirty one sixty one thirty one sixty one h excluded large periods of time that we largely jew notch have a problem with the main problem that we have is a problem from the time in which mr mero was declared incompetent by the court when  finding was entered on march nineteenth to a time period when he was finally transported to the federal medical center in springfield often your first argument i understand is a doesn't apply because that person had been completely and we know from her on start with i question if that's a fact that the districts are dead alive for i mean that we don't look at for or we do looking for well i certainly think that you can affirm things your rights and so do you agree that age four was a reason well i agree that another way to read this statute is to apply the transportation provision which i think is much more specific and is consistent  incompetent well he was going to get transported to springfield or to some other facility to a hospital and it's a yes or no do i agree yes i know but for sense of so for what applied so do we say no i mean and i'm trying figure out what you're asking for sure is do you want a dismissal of the indictment because the district court judge didn't check the right provision or the right box will know what i what we're saying is the age provision which it did not invoke in its order you know is the reason why the attorney general has authority to transport them but when the attorney general doesn't you know that that's what i think the rule in the construction that we're urging is a better rule well why wouldn't we apply our of the same analysis that the supreme court applied in oakland berg and say that it was automatic  want to understand why we wouldn't follow that analysis well to go over it is talking about thirty one sixty one h a through h one a through in they talk about those as automatic exclusions these are other sections of the statute that don't necessarily have to be automatic exclusions and i bet you're going to say but the language  very similar so why wouldn't we apply it as a different section and i actually think our construction makes more sense why because the analysis of the reason for why they decided to an automatic i think would apply here determinations for every time it's just i don't know it seems like the analysis and team clipper specially based on the language would apply well what i would say to that is having a district court in an incentive izing the parties to come say where in this transportation where is this person in the pipeline is actually desirable in the delays in this time i had to send it first they just never sent him off to me the billing changes i just incompetent cause it could be tried as who is mentally incompetent and that's what i'm saying i'm sorry what you're saying well i believe in this case it's the same thing it applies in the same way and what i'm saying is and it seems to me even if you looked at a causation issue that his mental incompetence was a cause although transportation may have been another cause  right it's an interesting and important issue and then what i'm saying is i don't think i think the construction were urging especially for a person who's been declared incompetent you want them to be moved along and you can read thirty one sixty one h f in conjunction with forty to forty one they both talk about hospitalization if we're only talking about pretrial proceedings before competence had been determined if that's all that we were doing in thirty one sixty one h one f then hospitalization seems to be a surplus term to me see you're saying the fs implicitly although not explicitly about these the court till miller on behalf of the united states there's an important distinction with hall the place was meant to may be a factual distinction but the question is there had seem to be any distinction or at least i don't see one with regard to the actual the lawyer not making the claim it's not just a factual distinction your honor it's a it's a distinction as to what section of the speedy trial act is at issue in hall it was an ns of justice continuance that was at issue and a district court is required to make precise the claim was because it has to be brought in front of the court because the court isn't going to autumn doesn't need to make a finding under its full exactly so therefore i suppress report not the precise claim emain i mean you're now telling us that we could was never presented to the court by you your honor i'm telling you not for for two reasons that's right we never argued each for below it would have been better area why does it matter when he argued there's a difference because there's a statutory waiver provision with respect to his a matter of law they ducked i respectfully disagree your honor and if i could explain why the thirty one's sixty to a two says that that if the defendant bears the burden of proof i must make a motion to dismiss or the claim is waived and think wynberg says that the provisions that don't have a reasonable she requirement apply automatically and the effect of those three statutory and legal principles together mean that when a defendant does not bring a specific contention before the court in a motion to dismiss its waves and mean that when there's an automatic provision that might apply because the defendant has the exit their case in the supreme court has has the burden of spotting speedy trial issues the failure to do so doesn't mean they can't apply because the government didn't raise them so hello th graber suggested we don't think the court had an obligation to consider but i'll turn about in a minute but even if you assume that the only motion to dismiss in this case applied he was complaining about ends of justice continuances that were granted in february and may of twenty her teen long before the relevant period here he never raised an argument that there was a speedy trial violation under h one  directly on them well your honor but the district court did not consider the the relevant period on the arguments that mr romero is now making what the district court said was i found him to be incompetent on march nineteenth twenty fourteen and what should have happened here what would your view in light of what you know now how should this work because you gave you gave the judge the or that's right what should happen is what the district court for the first stage that the district court took which of every within a district court's discretion to treat a defendant who is represented by counsel to always also allow him to bring motions also within the district court's discretion not to do so and when the district court said to council bring a motion if you believe you had been that's what the district court was doing she was exercising her discretion and saying if your counsel thinks you have such emotion i'll hear from them and that made sense in this context because he'd been declared incompetent and his right to represent himself had been cut off explicitly and so let's to soon though that she could consider that motion that he filed originally because it was never ruled on or that that gives him the ability to argue now when there are let's say the lawyer had piled it on his behalf what should the district court have done in your view what the district court should have done is looked at the motion and the content of the motion was that the two continuances that have already happened were unwarranted i'm answering what the discourse was on when it received this motion which was long before december twenty fourth team was when which is when the district court made the ultimate ruling so when the district received this motion which is dated october fifth or into my thirteenth what she should have said is he's represented by counsel and i have already made a finding under age seven that the continuance in february of twenty thirteen and a continuance of may have twenty thirteen which is what he appears to be challenging in this motion were warranted under aged up and then he never renewed the motion and the events occurred long afterwards i recognize that hall says the motion was continuing but that motion was about the same subject here what he's trying to challenge is a different subject he's trying to challenge and at a delay he says was unreasonable under a transportation delay which he says was unreasonable under h one s do you want to nineteenth twenty fourteen and the statutory provision is clear it says any period of delay resulting from incompetency and that's precisely what is that issue here if the if the defendant had made this motion had made a motion that articulated the argument he's making now what the district court should have done would have been to cite each for and say you're incompetent you can't be tried this is a situation in which the just the defendant had a constitutional right not to be tried while he was incompetent and a statutory right to a speedy trial and the statutory right gave way under h for the fresh rewrite actually has a carve out and exclusion for periods of incompetency recognizing that an incompetent defendant cannot be tried what about the defense argument that the more specific provision is the ten day has to be transported within trends ten days ago of each whatever well this is another reason why i think the waiver principle is important here he never brought this motion so there is no development in the record here with regard to why it took from march one thousand nine hundred fourteen but you might do you have an african reason if there weren't bits and the case law which just looked at exactly that you know no never mind the transportation provision is the one that applies and no beds and the part reason well your honor there are also some court of appeals decisions dealing with the interplay between h one a and h one  when a defendant is being transported for evaluation i'm not aware of any court of appeals decisions about the interplay between h four and h one f but it's for the standalone provision and i don't think it's correct to say the transportation periods that the transportation provision would apply would be about transportation with regard to competencies or pray competence determinations republican policy conference restoration well there's a part to figure out when else would apply i'm not sure i understand the question if the court is asking whether the ninety one day period between march nineteenth and june nineteenth was a trumping it we would also presumably read it's one the the other provision about competency i don't think you have to i actually think that because they're in the same subsection they both have to do with proceedings and some courts have said there's no proceedings ongoing if all that's happening is that you're waiting for transportation but h four isn't isn't a subsection about proceedings it's about a period of incompetency and so there is a distinction to be drawn between h one a and its relationship to h seven and h four but i wouldn't render the transportation superfluous i mean why would i have that and it wouldn't your honor because there are the taylor decision from the court as an example of a application of the transportation provision when someone's being moved from one district to another and as as your question earlier suggested sometimes the defendants are moved for an examination that doesn't have to do  it can take a very short period of time whereas under forty to forty one which is the provision of eighteen u s c forty two forty twenty which regards competency proceedings if it's mandatory that the defendant who has been found  incompetent is transferred to the custody of the attorney general and then goes through restoration proceedings now those can be relatively short if it's if it's quickly determined that the defendant can't be restored to competency but it isn't the same as the proceedings under h one a where it might result in a finding of not competency have no further questions i just want to emphasize that under the waiver provision is is is there for a reason and it's that when the record isn't developed we don't really know what happened in this case you're right that we posited that another opportunity to argue something when he didn't make this motion and certainly didn't raise the specific issue well contrary to the but it's also true that the just to cry can invoke suppression of your narrow line not so it seems to me as such a continuance granted that's right and i mean aside from everything else that wasn't a continuing scramble there had been continuance granted then to the extent the motion he's depending on is a motion of the object into ends of justice continuances i do think the district court was ruling on his motion prior to trial i also think that the district court was when mr misremember would have to show that there was some prejudice to him that the district court's order didn't cite age four and he cannot do that and for that reason every man is unwarranted and he can't do that because the to clamber on the clear language of the statute if there are no further questions we asked t in the alternative a re man for findings on the reasonability yes or no ok thank you very much thank you very much ok the case of the united states versus