thank you in may please the court my name is regime and i represent the appellant in this case ryan brown with the court's permission i'd like to reserve five minutes for a bottle when the government forgets about a criminal defendant and as a consequence loses crucial evidence that goes to the heart of a trial inexplicably delayed by more than two years something is amiss under the speedy trial clause yet those are the facts that the court encounters in this appeal and the facts that entitle ryan brown to relief in addressing the brown speedy trial claim this court applies the familiar four factors for barker vs window and i'd like to start with the reason for the delay the government here acknowledges that its efforts at prosecution were atypical and unusual they were also grossly negligent and that's because after the government obtained a warrant for brown's arrest it made no effort whatsoever to locate him it failed to do so even though the government had all the evidence it needed to prosecute him and even though the government knew exactly where to find him the government only resumed its efforts across accused and when by sheer coincidence brown happened to be arrested in connection with a completely unrelated matter the government's culpability in this case compares favorably to her voice a little sure the government's heightened culpability in this case compares favorably to the heightened culpability that this court found in united states versus ferreyra that the eleventh circuit found in united states versus ingram and that the eighth circuit found in united states versus eeriness leaving no i'm sorry it was the last one united states versus arena slew no three eighth circuit and indeed just as in that case the government here let brown slip through the cracks and the government's culpability here when combined with a twenty five but the district court ruling here was no prejudice overwhelming evidence of his guilt so my constructive suggestion would be start with that one and then you got any time left work backwards sure  and let me also say that you start out with the this was i forgot the phrase you used at the very beginning but but this was critical evidence in this particular case that does not appear to be that appears to be perhaps a little hyperbole in when you look at what all the evidence was here sure he confessed we have the testimony of the police officers and admin it minutely the actual video as the and we don't know what it would show is is missing but there's a lot of evidence that you know for sure and let me address that argument directly i think that is the government's main argument is argument that the district court based its decision on and i think it's wrong both as a matter of law and as a matter of fact and the prejudice as a matter of law the prejudice standard under barker does not require any sort of sufficient likelihood that the outcome at trial would have been different this court rejected that sort of standard in the maples case where it refused to infer the defendant's culpability or speculate about what a jury might find similarly in red versus out require i thought the did require an impairment of the defense impairment of the defense so that's that's not just speculation it's it's not as strong as you know brecht or or one of those prejudiced standards but it still does require something fairly specific and in fact you know there's some language on the other side  that this is only to be used in unusual cases but the question would be how did it not just at the edges but impair the core of the defense sure but i think that's undisputed that  was the confidential informant in this case his testimony was critical to the trial and the tapes could have helped by allowing brown to cross examine mears with greater effect  credibility but doesn't ok but obviously that since we don't know what was on the tapes the tapes could have been completely devastating this way you did raises or your side i guess you probably want the trial  the absence of the tapes the inference of in vants you got all of that by saying hey you know that's what he claims but they had the tapes and they lost the plot so i don't think the trial counsel necessarily phrase the argument in those terms he did recognize the both on direct and cross they indicated that they date they made clear that detective dare had lost the tapes but i think inherent in brown's defense at trial was the proposition that the tapes would have helped brown's to fence a trial it was very clearly that was lying and inherent in that defense is the recognition that had the tapes been available they would have helped brown undermine years of credibility and there there are a few ways in which the tapes get out now but you say why is there that presumption why isn't it more simply we don't know if there is not a presumption that mirrors as line rather than he testifies and you've got this extraneous material that might have confirmed him or might not i mean it's just like the cases where the defense tries to test d n a but it turns out th is the defense absolutely and i think that that recognizes the inherent difficulty of proving the content of lost evidence and that's why discord and read versus souders explained that a good faith presumption should in new york to the defendant and that's all we're asking a good faith a good faith presumption read involved a defendant's claim that alibi witnesses had gone missing the government disputed whether those witnesses even existed and this court explained that a good faith presumption should inure to defend and were asked but that's in a circumstance where in effect there's no contradictory evidence the government just says yeah that's what he says and we don't know here we do have contradictory evidence we have the testimony and we have the background of the whole event you do have the other testimony but i think if you use that other testimony to rebut the presumption and read it unfairly  criminal defendants and that is because it's ultimately the jury's role to resolve any conflicts in the evidence so we've never denied that there was other evidence against brown that was certainly the case but it was alternately the jury's role to resolve any conflicts and if you simply say that other evidence proves that missing evidence would have confirmed the defendant's guilt i think would be very hard for a defendant to show actual prejudice in any case of missing evidence because there are very again i would go back to the point that there were gaps in the government's case and the jury could have resolved any conflicts in brown's favor the officers were ultimately there were really any gaps in the one guy's those i'm not sure whether i searched them or the other guys so ok that you could call that again but how are these things that you're calling that all material to the case well those are the gaps would respect the dim memories i was referring to other weaknesses in the government's case namely that the officers when they were witnessing these encounters never actually saw brown in possession of cocaine the officers never recovered the market bills that mears allegedly gave to brown and the government never tested the cocaine or handed over for fingerprints and of course this court need not even reach the question of actual prejudice because i think a presumption of prejudice is warranted in this case and even if this court thinks that the tapes ultimately would not have sufficed to establish actual prejudice i think they are a strong indication that the presumption of  an identifiable prejudice is particularly plausible here a case where the government forgets about a criminal defendant and loses evidence however crucial or not is a case where there is likely a lurk on identifiable evidence of the sort that  underpins the presumption and i think the presumption is far more plausible here than in say ferreyra where as judge kepler's dissent pointed out there was not even a whiff of actual pray yes i see my time's running out of the court has no for the question thank you thank you you'll have your five minutes rebuttal the district court in this case issued a very thorough well reasoned opinion in the state agrees with its ultimate finding no speedy trial violation the district court gave to sugar generously the benefit of starting the speedy trial clock beginning in january of two thousand and six but as noted in our brief the state believes that the clock shouldn't have started until september of two thousand and seven that's when petitioner was arrested and held to answer for for these drug crimes and the period of delay between his second arrest in september of two thousand and seven and his trial in february of two thousand and eight was approximately five months that's not an uncommonly long delay and it wouldn't be sufficient to trigger a review of the remaining five marker factors but even if petitioner is given the benefit of the time between his first arrest and trial and he gets to no review as the district court did in this case there is no speedy trial violation and that's essentially because he can't show prejudice i would like to briefly note that  the reason for the delay in this case the district court did weigh it in petitioners favor but not substantially and that's that's exactly right there is absolutely no evidence that the prosecution in this case was motivated by bad faith to get some kind of tactical advantage in delaying and petitioner admits that there is no evidence of of this in his brief but at most it was simple negligence on the part of the government and i also want to comment on the third factor which is the assertion of the right petitioner in this case did not assert the right and that should weigh heavily against him because when he did have a forum to assert it when he was arrested in september of two thousand and seven and beyond he never asserted it all throughout trial he didn't assert it until three years after a trial in a motion to amend his motion for relief from judgment he claims that he wanted to raise it he has an affidavit that is not in where he claims he wanted to raise it on direct appeal but he could have filed a supplemental brief pro per in the michigan court of appeals to raise it but he didn't and i also wanted to point out that if the court at the docket sheet in this case there were there was a period of time between one and a half to two months beginning in november of zero seven through some point in january of zero eight where petition was asking for adjournments and it totals up to about one and a half to two months and that also indicates that he wasn't concerned with his speedy trial but turning to the prejudice factor which is the most important factor that is very much in the state's favor to stop you there for one second the part about his asking for adjournments when you say he could have raised it i guess i thought the theory would be that that really most of the damage was done by the time he was physically arrested and what he should have done was right then say you know it's been what twenty months eighteen months something like that since these events happened and that's the problem and i want you to dismiss my indictment because of the speedy trial violation in the ne never i mean we have but once that didn't happen the fact that he waited a little bit more for trial probably didn't hurt him additionally well i think barker says that feeling to assert the right when you have an opportunity makes it tougher to show that it was violated and here he did have the opportunity during that entire time and he never raised it until some three years after a trial turning to the prejudice factor that is very much in the state's factor petitioner describes the loss of the tapes as crucial evidence completely speculative wild wildly speculative to assume that they would have helped or proven his innocence in this case and as judge box pointed out the fact that the tapes were missing trial counsel in this case use that to argue reasonable doubt in the case he made it clear to the jury that the tapes were lost any used to petitioners advantage in closing and throughout trial when he was cross examining the  police officers to argue that there was reasonable reasonable doubt in the case nobody had had heard petitioner say anything about it's about selling drugs and so it  used sort of alternative theory about he was just wayne this was that presented to the jury that is did he testify or did they try to argue it even without testimony or is it something that only has come up later on that he was i'm sorry that he was only that as i understood it the theory was well you know he he didn't have the drugs he was into distributing them he was just wayne them for his friend i don't know that that was brought up at trial i think that came up later on at trial the defense was essentially that the attack the credibility of mirza they said that there there was no evidence that anyone had seen any of the transactions and that the recordings were lost and that was problematic for the prosecution and the district court in this case properly found that there was no prejudice  aptly described the evidence against petitioner as extremely strong and exceptionally strong and that's exactly what it was and the most overwhelming evidence against him was his own confession and that was admitted at trial where petitioner in said i did it i got the drugs for him and this happened about four times essential and there were other at other parts to that confession but that was admitted at trial and that was hugely damaging as even trial counsel acknowledged in closing to as it being a compelling piece of evidence but there was in the end no real response to it there was there was nothing that could be done with that you also had mirza's testimony about buying the drugs from petitioner you had police officer spencer's testimony corroborating much of mirza's testimony you had detective bear testifying about how he had searched the car and personally before any of these guys and that rebuts petitioner's claims that it was mirza's cocaine and i just want to point out that the last buy when it was in it was just murders and petitioner in the car and prior bice too but when they ultimately did come in and it was just petitioner in the passenger seat and just in the driver's seat of the car they escort him out of the car in the cocaine is found on the passenger side of the car exactly where petitioner was sitting so the evidence in this case is the district  rt described was exceedingly strong and even if there is somehow a presumption of prejudice by the delay which the state contends there shouldn't be but even if there was a presumption of prejudice the the state trial where the trial court heard the petitioner testify and detective dare testify and specifically found petitioner not credible for some reason i thought this was the case where brown himself says he voluntarily went  the police station and gave a statement well he does wasn't under arrest and he was free to leave he does say that too there is a portion of the record which i believe he attached to either the motion for away from judgment or the amendment where  they were investigating him for a child and he argues the officer said we'll take your children away if you do this he so he he voluntarily went there but at least his argument which was rejected by the trial judge was that there there was this coercive yes yes in the trial courts credibility finding should be given should be given deference in this case the state respectfully asked that the district courts and i'll be affirmed thank you thank you thank you i just like to start with a couple of discreet points before a few more general closing thoughts this dispute about whether or not brown went to the police station voluntarily on the night of january tenth i think the record pretty clearly indicates that he was arrested every officer testified that brown was formally arrested they assembled an arrest team brown himself testified during the pretrial evidentiary hearing that he remembered being arrested on the night of january tenth and the children's protective services document that the government refers to is entirely hearsay it's the government's account of what brown allegedly told them and i respectfully submit that given the other weight of the  evidence concerning the arrest on the night of january tenth it's quite clear that brown was arrested that night with respect to the length of the delay the this court's decision in united states versus brown i think directly resolved that question in that case the defendant had been arrested released the same day charging a complaint a few months later and indicted a few months later still this court held that the delay started upon his first arrest and the facts here are indistinguishable me turn to the over suppose it overwhelming this of the evidence against brown because i think it's quite clear that that's animating the government's argument and the court's concerns about this case and i would simply submit that this is an argument that has been made in prior cases that this court has rejected i think if you look at judge merits dissent in red versus souders his complaint was specifically that there could be no prejudice in that case because the evidence against the defendant was overwhelming and in many cases like maples red dixon in all of those cases the government disputed what the missing evidence would have revealed and whether or not it would help the defendant and this court rejected those arguments in each of those cases the overwhelming this of the evidence precludes a finding of prejudice and i think that this court can write a relatively narrow opinion ruling in brown's favor here the facts here are unique by the government's own admission there are too many cases where the government where missing evidence is present and there are fewer cases still where the government is directly at fault for that missing evidence and those facts inform the reason for the delay the presumption of prejudice and actual prejudice and i think it follows that this court can write a relatively narrow opinion that does not open the door to every defendant with a two year delay being able to come to this court and claim and entitlement to relief and finally i would just point out that i think when you place this case in the context of the relevant precedent cases like red maples dixon arena saloon and ingram i think the facts here compare quite favorably and those cases appear nowhere in the government's response brief the government offers no response to them today and i would simply urge the court to give a fair consideration to those cases and the facts here because i think that the lawful outcome here is t grant brown relief and if there are no further questions thank you counsel and we appreciate you and your firm taking this into the criminal justice act it's a service to our system of justice thank you thank you to the case will be submitted in the