well start my watch ok thank you case with record requiring a credibly complicated discovery an awful lot of time for the defense and the prosecution in the plenty of bad faith would suggest to me where i was concerned but that's not the case and that was that  the term of course in the statute is to exercise diligence even good faith managerial failures by the government that might occasion delay do not justify excluding time because any delay is prejudicial both to the defense and to the public interest but the prejudice analysis actually does not figure in on the statutory fines either if there is a hard and fast rule a sevent congress said was intended to grab the government by the scruff of the neck and say you must bring people to trial within this amount of time so to go back to the sequences your honor heard to i the time that june twenty seven thousand dollars rolled around the district court was so fed up with the discovery delays and failures let's call them mean it's the district court actually imposed sanctions your honor is no it is just to go back to the sequence so when she and the court imposes sanctions because the discovery violations had just gone on to long and gone beyond then an organized the government says books your honor we need a conference we actually just defendant asserts his speedy trial from a statutory perspective your honor there is no question that when the defendant stands up and says that the continuance required by this violation will violate the seventy day rule the statute does not contain exceptions for prejudice or good faith or anything else it is essentially a strict liability statute what the district court does is to say the defendant is not ready for trial but that is not accurate your honor the district court also made a finding that before the discovery by a leash and came to light the defense was ready for trial if the court were e what the court would be doing would be essentially immunizing the government for discovery violations and let me just give an analogy your honour's all it has absolutely nothing to do with the speedy trial statutory analysis but let's just say for example that on the eve of trial some rogue prosecutor were to kneecap defense counsel and put defense counsel in the hospital and then walk into court and say well the time the defense counsel needs to recuperate is excludable time because the defense isn't ready for trial that is of course not what happened here this is not an intentional the latest not an intentional the happening of defense counsel but as a practical matter is your your honour's what occasioned the delay was the discovery it was not the defense's need to prepare because as the district court found the defense was ready before that violation came to light and all of this material should have been produced at the time because the government had access to it was able to produce it and the defense had no access to it during that time so your honour's when we look at the speedy trial statutory issue we recognize that the government's argument really is trying to right out of the statute congress is expressed prohibit bishan on ends of justice continuances that are prompted by the government's lack of diligent preparation now they make an argument that diligent preparation actually means ready for trial that they were ready for trial i think your honour's understand will sixteen obligations are in fact a key component of the government's trial cooperation troubling that they would say that they could be ready for trial at the time that they stand in massive breach of their discovery up occasions but more importantly again when the when the court looks back to the purpose of the spee congress grappled expressed league with these issues and said at the end of the day the purpose here is to insist upon the government effectively marshalling its resources and  recognize the burden on the system even from good faith failures to comply with discovery so the statutory issue your honor is does not take into account the prejudice issue or the government's undoubted good faith  efforts here meeting with the commission if there are no other questions asked it's one i do have a question you said that the the final continuance was not mr mr she looks request what are saying that the standard you're saying that the standard that congress is set is not as hard as vets that it is congress explicitly as chewed a bad faith standard your honor and they are overlapping motions there are all sorts of other factors congress permitted as a basis for excluding crime and with those factors in play this comes up extremely as is an extreme case your hon even the courts that use the chronic violation what clearly recognized the facts here as wanted by at least there is one case in which there was an isolated discovery failure and the court when died on the same we had a court that finally in chin imposed sanctions and then in august urged the government to dismiss its are not or your honor my friend is methods and always makes persuasive arguments and i will do my best to respond because i do believe that we have the correct position here i will address a speedy trial issue i would also like to address it kelly issue that the court sent a letter regarding and of course i'll answer any other questions that the court has with regard to the speedy trial issue the government according to the district court made a mistake in slowly producing discovery  we respectfully did not fully agree with that but that is the filing of the court and the government paid across the as appropriate a rule sixteen district court considered what sections to impose and directed that the government could not introduce any precluded by the court's order from using it but they didn't get it in time to be true or not with anything in there that was going to be helpful to the repaired so the court accommodated that as well as it's required to do under rule sixteen and it created that file that final continu now let's talk about the timeline here because this is important the at the outset of the case in october of two thousand and sixty the court entered a complex case order that was unopposed and it set trial dates eventually  of one year later of october th those continuances that led to october of two thousand and seventeen were based on a request by the defense based on this massive discovery this is an enormous discovery case so the only continuous that we're really talking about is the last continue which is from october th the to april th and that was exactly to accommodate the defense to allow it to be able to consider all of the evidence in the meantime the government as i said is paying a significant price in this map isn't in her very persuasive arguments and i quote that if this court allows this to happen you will be quote immunizing that the government for this conduct that's hardly the case the government made a mistake did not know about this document server and turned it over in august of two thousand and seventeen i think there were about a one million pages there the government was not allowed a significant penalty because the district court appropriately applied rule sixty if this court owes further and says that the discovery violations leads to a speedy trial of violation as well that is a profoundly discovery discovery mistakes are common people make mistakes it's not uncommon that the government finds a documentary or a significant report and produces this late if you open the door and you say know we all know that the district court has full discretion under rule sixteen to accommodate their situation to grass to continue to exclude evidence to impose sanctions but if you add to that that this means that the government was prepared for trial and therefore time is in the excluded when you current that continuance that's necessary you're opening this to an untold number of cases that's never happened because it's long been settled that there is that bad lt decisions but the circuits have been consistent in recognizing that you don't have a speedy trial problem unless there's a chronic and she said and i quote that there were there were quote undoubted good faith efforts here by the government and more importantly the district court found that there was no bad faith here if you change that if you say that the government's failure to timely produce discovery which is going to happen as hard as we try if you say that that by itself is a lack of preparation and is excluded are not excluded just be trial you have opened the floodgates i don't think that's an exaggeration to say that because we already have district dealing with rule sixteen matters in numerous cases the courts of appeals got it right that if there is bad faith yes that's a concern and that's of failure by the government it should count against it in a speedy trial like violation is subject to rule sixteen and it's not just by itself a failure of preparation by the government because these ordinary mistakes happen and here i'm not going to say it was ordinary because this actually was not an ordinary in a massive investigation and a significant mistake was unfortunately made that one server was recorded in the f b i under one case number not the other case number that's the mistake that ultimately happen led to the final six month continuous it was not indefinite miss mathewson says well we could go out and kneecap the defense attorney yes that would be bad faith to put it mildly if something like that happened  intending to use that to rebut the summary testimony of mr agri testified for the government it seems to me one testimony was terribly relevant to  was expert testimony was that clearly distinguished from agent hates testimony ancient hate added up the numbers he added up who were the employees and how much was paid to in order to argue that the that the school had actually spent the two million dollars that was paid to it by the school district of philadelphia mr hamilton went in a totally different direction he had a theory that you needed to apply the costs paid to other people who did not work at the school that you needed to take the cost of all of delaware valley's employees and then use a percentage of that as attributable to the southwest haven't now and then to do that further he had another criteria which is it depended on the number of students the delaware valley had at the different schools the that is expert testimony that is taking a developing a formula and applying a formula in order to reach a different result that is not simply adding up numbers the defense however throw any light on it what you're saying that's expert testimony but the way i look at it's a very you were rare of the existence and welcomes of all but the case because actually later testified at the sentencing hearing as a matter of fact but it seems to me even though you you call this theory it was a theory that tributed some of the funds and funneled into the question of misapplication so i just don't see how i don't see how the government was prejudiced when you had at least three weeks when the court determined there was expert testimony to be a response to your own or everything i just said that whole formula and that whole theory was not disclosed to the government that's the problem here the they said he would be a separate witness we asked for a disclosure of his testimony and his theories they did not give that to us they put him on the stand without us knowing what i just said the they started to qualify in terms that i support no they proposed to put him on the stand you know they they've you know they've literally put him on the stand they started to qualify him as an expert and that's when the government objected to say what is happening here they told us he's not an expert and i thought he would if i thought you received a notice three days before jury selection we received notice of who he was and that he would testify and that he would testify about the calculation but what i've said about the assignment of numbers in the number of students and the employees elsewhere none of that was disclosed the government none of are i'll check the record again so that i need to be stand corrected but that is my clear recollection of the record the when we learned about it actually was at sentencing because the court precluded him from testifying as an expert so he did not testify to these facts of the trial at sentencing he shows up and starts to testify about it and has this binder that is working and so the government took a lunch break and during the lunch break is when the prosecutors were able to they say he's assigning thirty four percent of the costs from other employees he's adding up students as if they're full time students when they're half time students the prosecutors there identify what is the reason are and what the bases are they come back into court they cross examine him the district court finds all of that incredible and dismisses all of that because the theories are rather absurd this of course could support a harmless error and if there was something a trial because fundamentally what is now what's interesting is he then does testify at trial and what's given to the jury are just are actually similar to what age which is similar simply adding up numbers  mr hamilton adds up what is actually spent at the southwest school by delaware valley so he's not allowed to say you know give us a portion of the cost of principals and other schools and all these other things that he's trying to do to get the number up to two million dollars he does testify that he that he added up the numbers and they of what's literally spent on the employee is on the computer isn't that and everything else and that exhibit is give n to the jury i believe it's page five thousand and two of the appendix and that list there where he's literally adding up numbers doing what hate us is giving to the jury and it adds up to a little less than one million two  other words it proves the government's case that they took two million dollars from the school district of philadelphia and spent about sixty percent of the rest of it went to fatah county and recruiting in but county and all these other things that surely it was doing with the stolen money what the what hamilton was not permitted to testify about is what the government was never told about until sentencing which is that you should take the principle of kelly drive and take thirty four percent of what that person's paid and attributed to southwest school or even though that person never set foot in southwest school all the things that the district court rejected as incredible so there is a harmless error in here because it's rather a sort of testimony it's what they have because they need to get that number two million dollars and there's no way to make the sky green which is what they're trying to do here the they took two million dollars from the school district of philadelphia and spent about half of that and didn't hire the counselors and didn't pay the teachers what they promised they would pay them and didn't have the security guards so they put it in sure looking for tough pockets elsewhere so i respectfully disagree that there was any of discretion by the district court here the government was not told the theories that he wanted to produce he was allowed to do what haig which is add up numbers and present to the jury what was spent at the southwest school and that evidence was damning evidence with convicted mr schiller just as the government's presentation the there was some simply put a failure to disclose the expert advance  is right on point there the expert disclosure didn't happen until three business days before trial and they just required excluded the experts here there literally was no disclosure and tell the sentence and here misapply funds under section sixty sets it can't and if you misapply those funds to the benefit of the victim that that is not misapplication and she says he stands for it kelly doesn't address misapplication  order to mess with the people in fort lee new jersey and holds that that was a regulatory decision that was not the use of properly there was simply government officials deciding to move the traffic cones from one place to another and that if there was any cost involved with the employees who set up that lane change that's what the supreme court called an incidental expense not what the property fraud was about not this case law this case does not involve regulatory discretion this case involves money the purest form of property under section sixty six dollars the school district of philadelphia paid two million dollars for the operation of this southwest score the  and they took half of that money and they put him in there they made a specific promise to the school district in the contract of exactly what they would spend the money on and the contract specifically provided that they were required to follow the by in the contract pay teachers a certain amount potter counsellors etc and they did this has nothing whatsoever to do with the kelly decision and again if the court wishes for their grieving we're happy to provide th was that the government's conduct here was inexcusable desultory inadequate unacceptable careless and in breach of any reasonable interpretation of the rules of federal law were independent to say to you those are quotes remains but regardless the history here your honor is not limited to the adjectives i just quoted but simply means viewing the sequence here that led to sanctions in june a suggestion to dismiss in august and then eventually what the government's position amounts to is an invitation to request that this court actually exclude discovery violations from the speedy trial act and limit them to rule sixteen as the remedy the point is that the court needs to assess the speedy trial act impact of remedies for bull sixteen violations and if the court were to write it out of the speedy trial act it would be rewriting the definition of  complex case it would be saying that case complexity includes discovery i only sions and it would be ignoring congress express prohibit bishan on continuances granted for lack of diligent preparation trial then what happened was that the defense heard when was there that if there is no expert in remember the exact sequence your honor but it was prior to trial something like a couple of weeks and what the government had was his calculations and the government would know from the face of the calculations that they represented more than direct expenditures because the government knew what the numbers are i tracked expenditures the only thing the government didn't know until the day of his testimony m believe it is improper to allocate costs for people who do work on the school but are not their full time he made a judgment that it's improper to that prompted the defense to say if a summary witness can make that judgment that it's improper to include them a summary witness can make a judgment but it is proper to include them to be clear your honour's we take no position on appeal whether it was summary or expert the abuse of discretion that we highlight is treating the two of them differently now during a colloquy on hamilton's testimony but the offense disclosed the basis for his allocation what happened your honour's was that the defense committed that yes we are offering him a summary witness and the contemporaneous transcript reflects this offered as a summary witness began questioning him the government objected to the allocation testimony everyone went to sidebar and defense counsel said very clearly i believe this is summary testimony because it's the same as hague's the court said no that's expert testimony at that point the defen reprosecute him as an expert now they had just closed they disclosed in connection with that that he was basing the allocation on the number of students the government had already put enrollment figures into the record they said in their briefing that they couldn't have possibly read this down  and where it ties as judge fisher observed to the misapplication issue is the following when the court weighed that many pack years that govern whether to admit let's call it at this point disclosed expert testimony court viewed the question of the complete expenditures on southwest to be irrelevant because the court still believes that any deviation from the  established misapplication and the court still believes that using funds for the victims benefit is a misstep and so the court denigrated the importance of hamilton's testimony misters as mark does the same here and he tells the court that it's harmless because essentially the government wasn't persuaded by the district court wasn't persuaded by it later at sentencing therefore there is really no point to letting the jury separate this is a theme that recurs throughout the government's brief when they insist sheldrake could have been convicted of conversion and they insist that the jury could have found that he was an agent the reality is your honour's that we are unconstitutional harmless ever here because the exclusion of this evidence on the agency element on the authorization in good faith elements which includes hamilton's testimony the courts and valuation of all of that in fact even including its evaluation of prejudice on the constitutional speedy trial issue was infected by the courts belief that deviating from a contract budget is going criminal misapplication early your honour's is important because it simply confirms statutory analysis that in our full body brief when congress the government admits that when congress enacted section six hundred and sixty six in one thousand nine hundred or it used the traditional definition of property fraud and that definition of property fraud makes mist application and example one theory of a conversion based offense it does not and then the government's theory then is that when congress reorder clauses two years later in amendments that congress actually called expressly merely had to quit but somehow congress discarded a definition of property fraud that was more than one hundred years old it discarded the charged here and the jury in cali was instructed on a misapplication theory in virtually the same immaterial difference as terms as misapplication was charged here to the jury the supreme court accepted as given in cali that government funds had been put to an authorized to use mr hauser says money was not an issue that's true with respect to the lanes the lanes where no question supreme court so is given that that government property the equivalent of money was put to him and authorized to use it was in this in the government's view here mis applied if one accepts that misapplication is simply be an authorized unjustified or wrongful use of awkward but the supreme court said that that was insufficient to sustain a property fraud conviction equated the property fraud element under six hundred and sixty six with the element under thirteen three the wire fraud statute and therefore invoked one hundred years of ma