the arrest by mr cherry the arrest of mr cherry by federal marshals and his indictment the parties agree that two of those days are excludable time under subsection h of section thirty one sixty one the dispute as to exclusion centers on april fifth which was the day between the preliminary i'm sorry the initial appearance and the detention hearing this court's cases including both right at ninety five second one forty seven and left  tenant both hold that to days of the actual hearing so the initial appearance and the tension hearing are excludable as an other perceiving under each one neither of those cases excluded the days between the two hearing is to be raised or drawn i happy to address the waiver issue first if your honor would prefer i think sir ok so as we've argued extensively in our brief the waiver sentence in section thirty one sixty two a only appears in the remedy provision dealing with speedy trial speedy trial act violations and not speedy indictment speedy trial act violations if you look sort of sentence by sentence section thirty one sixty two  one and a two and you compare them the two actually have a number of differences that suggest that they are read separately and so the first difference and the most obvious difference in this case of course is the existence of a sentence about waiver at all which is the fourth good deal of reason to have these claims raised earlier rather than later number one it leads to a more prompt vindication of the defendant's rights certainly are going to tell you whether it's a motion to suppress or challenge to a conviction or whatever you can't just it waste everyone's time to sort of wait and see if you're  read it or played and i'm looking at a verbatim or any other i'd like to point out another difference between a one and a two which is that but that's not going to that's not going to respond no i'm certainly not arguing that me to dress differently that's that's absolutely correct but it doesn't address the fact that they are part of this section so what you would need to do to help me is to explain to me why they're not a part of this section thirty one sixty again your honor i cannot dispute that the language of thirty one sixty to eighty two includes the phrase the last two words of the of that paragraph says the section that's cracked but if you look at the sentence before that sentence which is the third sentence of a two it's the it's the factors that a district judge looks at in determining whether or not to dismiss the indictment with or without prejudice that sentence appears both in eighty two and in a one and it appears in each sentence verbatim so it is the second sentence of a one and it is the third sentence of a two and those two sentences are identical under the government's argument there is no reason to repeat those two sentences if it's supposed to just apply to the whole section there's no reason to repeat those sentences verbatim in both a one and a two it's just another reason that in the requirement of the motion of the defendant i was have one of the plain language of the point is your honor that if everything is supposed to apply equally to a one in a two there is no reason to repeat one and not the other so the factors for dismiss with or without prejudice is repeated in a one in a two where the waiver her sentence is not repeated in a one in a two there's no reason to do one of those things one way and the other one the other way it's congress well case the in those cases in specific lee and gamble and lewis which are the eighth and ninth circuit cases the defendant does not appear to have argued that this waiver sentence applies only to speedy trial act violations assistant counsel somewhere i'm sure that my i feel certain that's coming if if this case doesn't come especially as last year but i'm not sure that speedy trial is it because of the way in which it was presented just intuitively it seems like you kind of missed the boat it's less than at the key differences between those two provisions i would also note that as i was saying to judge when two of the three cases cited by the government for this proposition did not actually analyze the argument we're making about the lack of the waiver provision in subsection a one of the second one forty seven one forty eight no one actually declines to consider whether a motion was pending during the initial appearance in the detention phase and also declines to decide that issue because the government failed to meet it burden to show that it was that was in footnote one i would add that here there is no evidence on the docket of this case that there was a motion pending on april fifth on april fourth there was an initial appearance the government requested detention and mr cherry was held there was then a nobel reform act detention hearing on the sixth at which point mr terry was also held but there's no motion on the docket if you look at j three pending between those two dates and then left  there was actually a number of days between the two hearings and in excluding time under thirty one sixty one age this court did not exclude the days between the issue wasn't addressed so i don't know if it was raised but this court excluded many dozens of days and left when it went through  and extensive thirty one sixty one h analysis and it excluded under right the day of the initial appearance and the day of the detention hearing in that case my recollection is that the first date was on the twenty eighth and the second date was on the fourth so there are at her question if there's at least five days between those two numbers in left handed this court did not exclude those days by assuming that there was some kind of motion pending on those days and again if you look at the docket on j three in this case there is no indication  it does affect mr terry a substantial right i mean again if i thirty one entitles you to an individual the word individually is in rule thirty one poll of the jury and in this case judge tomorrow like in appropriately revealed details of mr terry's criminal history to the jury now my position is that even if he had waited until the verdict was final it would be inappropriate regardless at that point it's less of an objection but i mean just her charges should not tell juries that they approve of a guilty verdict i appreciate thanking jurors for their service but there's a difference between saying thank you for your or be happy to address them as in a national matter it is clear in all of the cases including this court's decision and carter from one thousand nine hundred five that the right to poll the jury individually is absolute and it's important and if you read offered no explanation or would your location the presence of firearms in our products it's a strong strong case you know your honor and then and the end of it i mean in addition  i guess it was a nine twenty two g count and there was already a stipulation that he was had been convicted of possession of a firearm by a convicted felon and  given the strength of the case and given the stipulation and given the collective affirmation of the verdict has there been a miscarriage of justice here i mean i don't  we also agree with the courts analysis that the threshold question is whether he moved for this dismissal of the appropriate time and he did not judge him are very carefully went through his logic and his reasoning in deciding that under this statute thirty one sixty two the there requirement that the defendant move for dismissal wasn't met and i think his in his plain language he said you can't have your cake and eat it too clearly  if he had to move for dismissal i think the united states would have perhaps behaved differently or if we agreed that there was an issue which we don't we could have moved for dismissal without prejudice and re indicted so on that issue we believe that the defendant should fail on the second blind argument is that the indictment was untimely because according to the defendant's argument those days  those intervening days between the time that we moved for detention and when the detention hearing was held should not be excluded your honor defense or appellate counsel said that there is no evidence in the record that  there was a hearing pending during that time i would dispute that document six in the docket report is an order of temporary detention pending hearing pursuant to the bail reform act and it specifically says upon motion of the united states detention hearing is set for april sixth so there clearly was a motion pending between the fourth and the sixth and we would argue your honor that i hope the court received the two cases that we cited in a twenty eight a letter from the fifth  it in the eighth circuit from the fifth circuit and moses from the eighth circuit which are on all fours on this point almost exact set of facts in terms of a motion being made for detention and then being held two days later because under the statute thirty one forty two f you have three days to have a hearing the in solace rodriguez case out of the fifth circuit is if the court has questions about the fact that it's about a truck driver going over the border in texas with a load of grapefruits and three hundred pounds of meth  he was arrested had a an initial appearance on the thirty first of january and then two days later had a a another appearance and a motion for detention was made and the hearing was held two days later and the fifth circuit s that case the four day period between february second and fifth which is the exact same set of facts we have except for a different date was time consumed in placing the district court in a position to dispose of the government's motion detain the defendant pending trial th moses case from the eighth circuit also very similar i think we understand all gifts are going to be over the third issue is about it wasn't addressed specifically but the the willful case and we would argue that the court can decide this case on the first two premises without even reaching the will the case and that is that he failed to move for dismissal and also that the exclusion of that time was because a motion was pending under thirty one sixty one age with respect to the second issue which is the comments made in between the verdict and the polling of the jury i would agree with your honor's that it was not the most beneficial thing however the judge did i would argue that we are in plain air and also i understand the court's argument that when when a judge hears a jackson he can cure what happened if he's given the opportunity and that was not done here  correct i would argue that the judge did make the comments about the defense prior record but as the court noted they had already had evidence that he was prior to park a conviction for a felony and also that he had been arrested amongst the jurors and no discord or no evidence of that and interestingly rule thirty one d was amended or changed to include that phrase individually that they should be pulled individual i found a lot of case law that was pre the change where we had had  we certainly didn't get to that i mean what the judge was talking about was arguably some for a for be so and generally it when that it kind of evidence gets admitted there's an admonition of the jury not to consider for the improper purposes and he kind of use some of that language and what he was saying so i think fundamental interests at stake and i think as of that fourth prong its judicial reputation and the reputation of judicial proceedings in the public that is the most compelling thing in this case as an as a side note i'd like to note that comments about mr terry's criminal record were affirmation but not an individual poll your honor and that goes to you know all the cases sanctioning this court's decision and carter that polling is about having every individual church have a chance in open court to express doubt in their verdict if they have any and also to ensure that there is no coercion or undue influence being exerted on them in the jury room and the existence of multiple notes and questions in this case your honor goes the fact that at one point at least not all of the jurors were convinced of mr cherry's guilt they asked specifically if another person was president point but then at the end of it he doesn't make an objection so there's several points where the objections good should have been made it was understood well you know but at the end you still could make a judgment on war and then beyond that you can ask the judge to give an inch not sure i would argue your honor that at this point and i just think if the jury an opportunity because basically your concern is that you're really telling what they felt because you've got other people who were in that room somebody get up and says it was my verdict everybody else knows it wasn't i mean as a problem but i mean that's a whole different issue but you just don't get that opportunity to do something about this era that i mean to preserve the record but assuming that does go into play in europe but in response to your comment that this evidence was not a slam dunk i don't know i think the evidence was pretty overwhelming to police officers this tale testimony about his activities at the traffic stop the scene from the which the gun and drugs were recovered was corroborated by a recording the only opposing evidence the notes shows that it wasn't a slam dunk for the government and i think that's analogous to this court's decision in perception just to go to that the potential for a cure if the point is to allow jurors to express doubt once a district judge with has a promise or of impartiality and credibility has