it's as i read this record to district judge didn't get there because he found to do it was partially your client's fault and the government have been doing it but if you were to prevail here what should we send it back to the district had demonstrated that it was your client's fault or sufficient diligence when the appropriate remedy be to send you back to the district judge to determine whether or not have to government could overcome the presumption of prejudice i would prefer good or you know i know i know you you prefer that we dismiss the environment but i'm asking in terms of that's a factual that would be a determination based on some showing that we don't have an record in front of us right that is correct and i'm not here to argue with the  corporate persuade court so but i understand what the court is saying and i understand it to remain in order in those circumstances if the court has not ruled on prejudice would be legitimate except for the fact i think  in speedy trial cases in which because of the length of the lake which the court knew about and the court made a determination that delay was you know significant and for the entire name your period then i think th court could determine that the prejudice has been established without their having to be ruled by the district court has q one other question about the district judges holdings in this case you said we review did novo but the district made a number of factual determination that the government had acted with diligence that the measured measures it undertook were reasonable i don't we review those for abuse of discretion or for clear guess the court would do that but because the overall standard is unknowable i'm not sure that the court needs to do that i'm sure the court can decide on its own on the on the wreck well what the judge found i think is a matter of fact that put aside for a second with your claim knew he was being prosecuted that's the issue you focused on in your briefs but as to the other issues other components of the speedy trial analysis the judge found that the measures that the government under to various efforts over this time period reasonable diligence aren't we don't we have to defer to that on here like i don't believe so because the court's going to review it and office of the court to look at all those fac certainly going to defer deferred i'm just i'm just thinking out loud here but but i thought that when it's the noble review under these circumstances and the court can review the facts and make its own determination so for example there you know there is this issue about whether or not on august seventeenth when the agents went to the house for the purposes of the search there is a finding by the court that they were there to arrest him and the government in its brief page two talks about the fact that they were there to arrest him on that date but that's not what the record shows were saying those were saying those declaration talks only about the search warrant he incorporates his police report that he prepared at the time that only talks about a search warrant it does not mention arrest at all and then when he's called to testify on july twent he does not mention anything about being there for the purposes of arresting mr leverett so i think that this court can make its own determine what you're saying is this certain findings are supported by the record as originally arrested crossing the border they filed a complaint against him he was incarcerated he went before the court the district court the magistrate court dismissed the complaint against him he was released from federal custody he was then transported to state court on pending state charges he was exonerated of those state charges and then he was then taken to immigration to two or three different locations and then alternately released so at that point in time what he knew was there were no charges pending against him there had not been an indictment but even if we if we find this evidence was appropriately met him he knew there at the house looking for but he doesn't have to get involved in his sister's business he doesn't know the narcos are there for him why would he want to get back in that situation in which he was earlier arrested and then going to be incarcerated and then going to be put through deportation proceedings and be incarcerated in an image on immigration hall for a period of time only to be released again she didn't tell him that because a jibber say no didn't tell her the police are here they have an arrest warrant for you they are they indictment two days before hand they want to talk to you and arrest you at that point in time he would then if he fled to mexico be not be you know avoiding prosecution but that's not what happened here she never told him those those material items in the cases and these brown and hash women talk about that difference between knowing about arresting the one individual i can't remember the exact facts of the case with the one individual is being watched how he leaves his house runs gets into a car and makes a getaway drive away from the f b i what difference does indictment and that wasn't the case and when they went to when they went to that house on august seventeenth an arrest warrant had not been issued it wasn't issued into september twenty seventh over a month later so the only purpose that they were there is to search his sister's house by the way they search and they find absolutely no contraband so he wouldn't be alerted to the fact that he was in trouble because they went into the house they searched the house and they found a pad a pound of pure methamphetamine or you know whatever else there were no there was no fruits of that search that would have alerted him to the fact that he was even in any way subject to prosecution subject to arrest subject even detainment so given the fact that he had earlier been through these proceedings and it's been released and he was then told that the  neighbor or by his sister indirectly or whatever it was is known or not there has to be him being told that there was an indictment and then there has to be you know the second part of this is the morning your honor christopher branwen for the united states i want to go right to something defense defense appellants counsel said repeatedly in his argument and that is that the government was required to notify the defendant that he had been indicted the cases don't say that the actual holding that the cases that the government has cited in the actual holding in the language from mendoza is quote that the government has again a sub quote some obligation to pursue a defendant and bring him to justice if the government fulfills that obligation by pursuing a defendant with reasonable diligence the defendant does not have a speedy trial act claim and that is complete on our cases suggest that one of the i think it's four factors there we consider whether the defendant absentees himself knowing that he was being pursu of course your honor and that is in effect the second line of inquiry that if the courts in assessing this issue of the speedy trial act evaluation a giri corona of a bar in san talk about has the government met its obligation to pursue with reasonable diligence in the conclusion that is if the government has there is no speedy trial likely and then second if the defendant has affirmatively fled absented himself attempted to avoid prosecution then again second tier he doesn't have a speedy trial so me and me understand your position let's assume that the defendant has no reason to believe he's be can't but he's not he's not fled with any guilty knowledge if you will is it your position that under that circumstance the presumption is not triggered the perception is different but it is the answer to the court's question is yes if the court in a just reading from the holding that the ninth circuit is repeatedly made in mendoza curies and of all that if the government has met its obligation by pursuing a defendant with reasonable diligence it does not have a say so so let me ask you a morse precise question then your mind it makes no difference whether or not the defendant in this case knew the norco's were at his sister's house it it doesn't make a difference because the court could find on that basis that the government having pursued him with reasonable diligence has met its obligation did the court to district court find so you think a district court found that only apart from his knowledge  there was no speedy trial filing yes your honor because the court specifically found and i'll read the court's ruling the district court found that agents quote went to his home where he had been one day earlier when they discovered he was there they instructed his sister to call him and ask him to return this is significantly more effort than the government made in mendoza and that's in the court's order so the only apart from what he may have said to his sister when she talked to him you think you've demonstrated enough here yes your honor and then the court went further to recite that the government the government's efforts to arrest the defendant after that date after august right you know and i want to put those aside for a second i just want to focus on whether or not his knowledge of the song was it was integral to your case it was an integral it was theirs the court could decide on as it did on that under the speedy trial act is reviewed to know of all the factual basis are reviewed under the death or until standard of clear air so the fact finding that there was reasonable diligence and pursuing is revealed under the deferential that it acted diligently in attempting to apprehend the defendant while he was abroad their efforts exceeded those of the agents in mendoza and in the court also said and the ninth circuit has found reasonable diligence where the last was done and that's in the court order at page twenty i believe it's in the in the record at page twenty seven the court specifically cited to corona virg garra noting that in that case what the government agents had done is they had entered the defendant's information into the n c i c system into the same system used i believe was used here and border can afford a computer system in the a gary case where the where the ninth circuit also found that the government had met its obligation to pursue the defendant with diligence the agents actually learned that the defendant was in england and they entered his information in databases law enforcement databases but just second counsel you say that independent of whether they were that i was trying to escape to twenty seven which you just mentioned it says in short quote the reason for the delay in this case rests squarely on the shoulders of defend so that reading that it seems like  saying that the escape to mexico was the reason why the long delay occurred there i'm saying that the to mexico knew he would knowing he was being chased and the government thereafter did all the reasonable things and i think that that is consistent with the cases well as in my you said you cite mendoza and one of the difficulties  mendoza he was under indictment that was one of the considerations but it wasn't what the court said was actually legal requirement for diligence and certainly that would make it would make no sense that the law holds that you prosecution and the courts in addressing that have said both things have said as the court did here that is the government pursues him with reasonable diligence the government has met its obligation apart from that if the defendant has fled and he himself has caused the delay he can't they are after bring a speedy trial act claim so yes the court discusses you know believe made findings on both issues and both points and both arguments they either one of them is fatal to the have you have you can look at it a number of ways that the president sense the court analyzed the statements from the sister to the agent under present sense impression analysis exception of the rule against  hearsay i think the court's analysis is is correct on that the findings court made are correct on that even apart from that the defendant's statements to the agents agent that the agent said she heard him say norco's that's that's a separate analysis and that would come in and as an admission of a party opponent well why didn't he just come in if it's double hearsay now the word you still got to get her statement right the agent specifically testified that she heard right but her statement is hearsay agent's statements about the just a minute hearsay the agent statement the agent testified in the agent statement of what she heard the defendant say over the phone is not hearsay really that is that the agent testified that he's testifying about her and her conversation with her brother understand sure the agent is testifying i understand that his statement is a i can point you to the at the because when it's done it's a party admission and you don't need to hear six at the excerpts of record three or four to three or five that's in the reporter's transcript of twenty three to twenty four the age testified that she heard right and i know i know that i my question is did the district court find that she heard i believe that is in the court's order now ok now before you left your time is up what with your question but no no no no but assume assume we don't agree with you should be remanded no because the presumption the court specifically found that the defendant had done nothing to show prejudice in this case find that the government was at fault is the presumption your rebuttal i would expect it would be rebuttable but there was no and i don't want to repeat myself but there was the court repeatedly found that the defendant had made no effort to show prejudice in this case thank you very much thank you all right the case of the united states versus germany little will be submitted thank you very much