good morning or ours i mean as michael phillips said and i represent the united states in the appellants action your honour's four days before jury selection in this matter one of the five defendants filed a speedy trial motion the others then joined in with that motion but do not follow their own during the course of this three month trial that with and has been complaining now your honor about the delay no your honor i don't believe that there has been a sufficient record shown  with respect to the sixth amendment issue when does a sixth amendment right to a speedy trial attach do you know the legal standard for that my understanding is that when the individual has been accused of the crime ok so the supersede or with respect to the harper counts and let's just focus on the harper counts brought a kidnapping charge into firearms offenses that had not been previously charged right that's correct so when does the sixth amendment right with respect to those counts in the superseding indictment attach the these six men right as to those counts attaches at the accusation which was in december of two thousand and fourteen when the superseding indictment was filed ok and why doesn't your brief on appeal make that point i don't believe that that was raised in the in the response by the defendants that after our it wasn't raised in our briefing it wasn't raised in the reply but i also don't think it was raised in the response your honor well did you raise a below yes it was raised in  judge scrutiny you you raise the issue of when the sixth amendment right attaches to those new counts i don't think it was specifically crystallized in a way that your honor just asked the question but it was referenced in there that that's when in laying out that the timeframe of when the charges were laid that that's when those charges were laid in the december two thousand and fourteen superseding indictment and that the section on the claim s of those rights then should have started from the filing of that indictment from the correct ok now you make this you have in the western district of new york sadly other cases raising these same kinds of issues including the panic decision issue or did you work on that at all no your honor ok and in that recently geisha in in the western district of new york the sixth member detachment issue was pacifically raised by the government yes ok and specifically addressed by the district court in that decision judge our car correct so with respect to the time after the supersede or was filed let's just put the framework here that supersede or brings charges with respect to a new crime all together and it adds two new defendants harper counts for which there was a hung jury ok but if there had been a conviction with respect to the new defendants or with respect to the other crime the singer crime when would the speedy trial claim begin attach with respect to those and of course i'm asking you the obvious it attaches at the time the supersede years filed yesterday i think that's an even easier answer as to the right this is so different from the prior case that this court decided in to gano or in panic the tactical decision here as to when the file the claim i think is  defense said that they were waiting for the alleged violation to have ripened and that's that this was opportunistic this was not sincere the court as expressed caution and winning this the defendant's fault that the government took two years to try and get a decision from a justice on whether to seek the death penalty was said but judge this the death penalty decision had nothing to do with the delay in this case whatsoever but in talking didn't delay the first two years of this case not not at all overestimated or misapprehended what the law was into gano into get away with what you're being asked you were asked about the government's two years to decide about whether this is the capital case and you said i believe that has nothing to do with the judge there's two reasons why does it didn't the defendants say then we need time we need an extension of time to respond to motions because we don't yet know if this is a death that there was to their sure reasons why it doesn't matter if they say that yes at the very beginning there was and was there an extension granted the cause the government told the judge we we need time to decide about that i think that's what the the ask the request was from the defense that they wanted some additional time but that was and was that was that request made because the government said we the government need more time to decide about  reasons why the defendants requested the briefer german for the scheduling where he has had the government indeed in so informed the court that it needed more time no judge it had not no in fact i want to never tell that the court we need more time to do it never that that's not what took place or say to the court the matter of death penalty is under advisement in the department of justice what happened here judge if they do that what happened here your honor is that the government say yes i'm sorry the government tell the district court that the issue of whether this is a death penalty case is either under advisement or being considered or similar verbs in the department of justice that was stated by the prosecutor it was stated yes it was and is it so that that you that the district judge part of the district judge's reasoning in this case for deeming while a sion is that there was anxiety created by the tendency and uncertain of whether they would be death penalty that's that's what was stated in the decision yes and does in your brief say there should be there's no doubt no and saya the because we had not yet filed charges that's correct and is it the government's position that when the department of justice says we are considering subjecting you to death that does not create any anxiety on the part of the defendant no but that's not what was stated in court judge this is is that what was stated in your brief tell the court the department was considering the death that's not what we said your honor well what the government said is that there is quote a likelihood of additional charges down the road what the government attorney is guilty of here is being too frank and to forthright he said at the magistrate judge level immediately upon arraignment your honor i want to advise the court this is when you said additional charges did you identify what they might be know but this was well known this was discussed this was discussed they charges that carry the death penalty yes that's what was discussed to the go when you said well that way when you said to the court there may be additional charges and it was as you just said well known that those charges carry the death penalty are you still saying we did not tell the court we're considering the death penalty that's correct judge really yes judge if i think you followed that sequence of i mean i think use you i'm not confuse i found it very clear carefully your honor i told the court we're considering charges the court understood those charges carry the death penalty so for sure and your third step is but we didn't tell the court we're considering that a judge what that right judge if i with what the government attorneys cite is look this is a robbery that these gentlemen are charged in and that's robbery it ended with the victim being executed with two gunshot wounds to head so he was putting the court on notice there is a possibility if not a likelihood of additional charges down the road or in the death penalty if those charges are filed for an n one twenty four j for discharge or the government did advise the court you were considering that the panel no all the all the prosecutor saying you honor was saying if this char if these charges are brought if this well may i may i see if i can help you here under d o j process if you file a charge that has that is called death eligible sure there is a mandatory d o j review process with respect to the decision of whether or not the government will choose actually to seek the death penalty that's correct and pursuant to their process there's either a no seek decision or a seek decision that's right and many local districts do not actually except in the rarest of circumstances ever advised the department of justice that they as a local prosecutor's office seek the death penalty with respect to a death eligible offense as absolutely correct and that's what's going on here all the prosecutor is doing is saying i would recommend that the court appoint experience counsel because this is a serious matter this isn't a simple hobbs act robbery this is a hobbs act robbery that ends with an execution and i just want to for foreshadow to the court there is a possibility that this indictment could change down the road and if it does experience counsel would be advisable and so the court in this district court then uses that as an opportunity to look back and say there was two years and ten months when all of these defendants were under the scepter of death and that's just not what took place he said anxiety because of the possibility of facing the death penalty but your honor that's so any american is under the possibility of facing the death penalty if charges are brought but there were no charges brought in that regard there were no charges brought until december of two thousand and fourteen and this you don't think that raises any anxiety about that that i think the defendants knew immediately upon being charged judge that they were charging a hobbs act robbery where the victim was executed they always were aware of the fact that a grand jury could return a superseding indictment charging that the government did not say we're considering the death penalty the government stated very clearly there is a possibility of potential charges down the road related to the death of the government also stated but we should not hold matters up we should not stall this case are ready and able to proceed and the defense attorneys themselves stated early on when when did you first approach the argument about the death and of the eligible things that's not before us on the record your honor i don't i can't state to the court with clarity as to what the specific date was that it was submitted can you give me an approximation i believe it was and i know this is not in the record by i believe it was the government brought got final approval from the department at around the time of the indictment because it was thirty two days later when the government told defense counsel that well you were in touch with the department about whether there should be a death eligible case there was some communication prior to that obviously when you is noted is that the department can't really make a determination as to death penalty eligibility until the charges have been abroad and these charges weren't brought for reasons stated in the record that we didn't have the necessary witness our cooperating witness  until well into two thousand and fourteen that's when the superseding indictment was sought that's when the department made their decision for no seek and we immediately notified council within thirty two days of the accusation how long did the department to decide whether this is case i don't know from what point after the the the plea of the cooperating witness that the government had its evidence and was proceeding to grand jury for superseding at what point during that stage that apartment had what they needed but it would have been some time between the plea in february of two thousand and fourteen and the actual superseding indictment in december of two thousand and fourteen when during this period did the photo array get lost be found in the offices as judge the photo array issue i'd like to address there were nine photo race in this case and there were only three that were of issue it was with one witness miss sabrina mack and exist all three of these defendants she had identified individuals in the photo arrays and in the government at the time that the photo rays were shown to her memos were drawn up by the police detective particular lising the manner in which the arrays were shown what the witness said it cetera those were all turned over early on in discovery a year before the hearing was held as to the identification issues the government was informed that the buffalo police detective could not find ord misplaced those three photo rays so the detective then went and was able to recreate the original raise from the computer system they just didn't have the markings of the witness mismatch but in all other respects they were identical those were what were used at the hearing a year later and so the defense had the opportunity to of notice of the id to move against the id to litigate the id and approximately two months after the hearing identification was the defense but there were as i stated nine identifications and two of the defendants to the witnesses the government called were cooperated defendants were charged with this with these defendants are you have two minutes for about a we'll hear from the three defendant i was involved in the case throughout below mr green for one first demanded a speedy trial on the date he was arraigned after that other defendants at various times made independent requests and either forli or in writing throughout the course of this case made those requests this court noted into gyno that not everyone is mr to gyno and that's not expected of anyone as far as the assertion of the right you know it's you don't have to be to  adequately assert the right or they were in pretrial detention for more than five years they were and they as noted i think in panic and into ghana was well we don't have a federal detention facility in western district of new so it makes it difficult they remain in local jails or their house in ohio or their house in virginia which creates problems for access by counsel for one thing it created problems in this case for the government in producing the defendants where were they  mr black for one was housed in chautauqua county he was housed in niagara county he was housed in northeast ohio he was housed in northern neck jail which is in warsaw virginia  was housed in should talk or excuse me cata ragas county for a brief time and he was housed in the monreal county jail as well did you ever ask the government to bring him to a your seat of court during the days you needed to consult with yes judge if you review the record in this case i filed a rather vociferous series of motions with the court to have mr black returned to the district so that we could have access to him to prepare for trial and what happened that i was unsuccessful with all of those motions many of them was that to bring in there from the time of your motion until trial or was that to bring in there for a specific conference you wished that i would have settle for either one but we needed to do trial preparation at that time he happened to be in ohio he happened to be in a special housing unit in ohio because mr rodriguez was also there and there was a no contact order between them is still was that motion they up they opposed the first one or two after that they rested on the court's discretion the court's position was i can't facility from the bureau of prisons perspective i'm a little surprised that there is no pretrial detention facility at all near the court to the western district or is it there there is no pretrial detention facility that is secure enough for that classification of defendant you should not be surprised judge there is no federal facility in the western district of new well that we use a lot of contract facilities down here too but i'm trying to understand ok well the local jails that they use have these contracts and they have x number of slots for federal inmates so you know mr black much to his  detriment is mouthy they don't like so you know if they get fed up with mr black they'll say well ok we're not going to take him send him on to the next facility wherever that may be so then he would go to the next facility and he would go on so that that's how that work if i could if i could clarify just a couple of points that were raised during mr felicitous argument judge newman with respect to the question of whether the government advised that this would be a death penalty case at arraignment of mr rodriguez the first on the indictment the u s attorney said it could be a death penalty eligible case i would just urge the court to appoint experienced counsel that's a government appendix one zero two so from the very day of arraignment that's good practice right defense counsel want the government to put put them on notice that learned counsel may be required as early as possible that's actually what we want the government to do right actually  beyond that with the c g a plan in the western district requires that the court inquire if this is a capital eligible case as to whether the government intends to proceed in that fashion in unless the government says no then the court is required to appoint capital counsel here the government affirmatively said yes it wasn't just we're looking it potential other charges it was we're looking at capital prosecution from the very date of arraignment these defendants were on notice of the specter if you will of  prosecution so the with respect to the delay in the filing of the superseding indictment if i could just clarify that briefly the mr felicita indicated that you know that the superseding indictment was not able to be brought into the cooperating witness engaged in a an agreement with the government in telling came forward with further information the first time that was ever mentioned was in the motion for re argument after judge threatening had dismissed these charges on speedy trial grounds i was never in the record prior to this and i don't know that it's adequately in the record now it's just an on affirmed assertion of counsel in the motion papers in any event mr callahan had nothing to do with the singer charges which were also included in the second indictment and which were filed just shy of the expiration of the statute of limitations although the singer incident took place some three weeks after the harper incident the government waited almost five years before filing those charges mr callahan not had nothing to say about those charges so that can explain the delay in the superseding indictment either i see that my time is up so may i ask which is if i could extend to ask  well i mean i think this case is a good contrast with the pena case in panic for example there were a number of motions by the government to decide motions because in the government's view the judge was not moving quickly enough and i think this court acknowledged that to be the case the government also filed a number of motions to set a trial date just to make sure i understand that point you just made yes do you think it the government's failure to file motions before the district court after this supersede or was filed urging the court to act faster that's that's one thing you would say well yes because the government is charged with institutional delay so to the extent that that institutional delay is accruing whether it's occurring because of the court's actions or the government's actions they're going to be charged with that so yeah i think they should they should follow up on that it they it is this court noted into goneril they have an affirmative obligation to press the case to trial you know i think it's clear that didn't happen here they didn't they never made a motion to set a trial date so i think even after the superseding indictment there is a decent amount of eligible that's correct we were assigned myself included i've been involved wasn't a surprise to you given the fact that there was a murder and everyone knew there was a murder but it was personally was a complete surprise to me as i just got a phone call a couple hours earlier apologize yes i know it was a brand new case here my client was picked up the day before i got a phone call i was on the list we have a short c j list we have a much shorter death eligible list so then the government immediately said two things eligible case number two is that this indictment is going to be superseded they take out that would likely to be superseded but we knew it was going to be superseded and they said for the next few months including when we sought for a german it's the government themselves right in the papers that they filed this right in the transcripts they kept saying we're expecting a decision on the death within sixty days they kept saying that repeatedly now to judge newman's question you know  what's the significance of sixty days while judge you're the first person that i believe got an answer out of the government as to when they actually made their application for dad as to a decision and i believe mr felos that i think for the first time now has acknowledged that that decision was not even sought for about two more years they didn't even ask d o j did you put in to make that nation package no we're waiting to we we know what the process was we know the procedure was because we had prior coun herbert greenman had gone through this process so i was for million or for another defendant no for an unrelated defendant so this case no snow in another case so we knew but i knew that at some point the government would make the mitigation would make their application for death eligibility a decision from main justice that we would be given an opportunity to file mitigating documents we had we had got a sought an expert to help us with that we had thought that that was the process we're going through we never went through that process in this case mr fellside is now for the first time acknowledging it took them for about two years we just waited the government kept saying we're waiting sixty days sixty sixty days now for the few together humid geisha package we were prepared to we were never given a deadline we were never told that the government actually made application this is the first time we're being told today in this courtroom i believe that the government waited two years to even seek a decision that is contrary to what  s attorney at the time had been representing to the court and to us back in march of two thousand and twelve throughout two thousand and twelve throughout two thousand and thirteen council the u s attorney's office that was representing the government this case had kept saying we're waiting for a decision as a matter of fact i point the courts to our docket entreat sixty seven which is a decision on my belly application my pretrial detention application dated april two of two thousand and thirteen so about a year after the initial arraignment in a footnote denying my request to have my client released judge magistrate judge scott said the government has commented in court since this case began that death is eligible for death penalty prosecution subject to approval from the partner of justice for purposes of the pending bail motion the government will ignore the government's the court will ignore the government's comments and admonishes the government to resolve that issue one way or the other as quickly as possible so you find out that they hadn't even applied they have to apply for another year there representing to judge scott and us that they're waiting sixty days what do you mean by sixty days sixty days implies you mean the application of june ninth of two thousand and fourteen so this is about twenty three months i'm sorry june a little over two years after the arraignment judge scott in another order denying my client's release and pretrial detention this time says because we're arguing about the fact of fire having finally found the original photo array he says and we're reopening the motion argument he says a reopening would add months of delay to this already to your case on top of the catastrophic delay that could occur if the government does decide to seek the death penalty after all we're still waiting for a decision from the government government at that point had not yet decided that's what we know now we're just finding out that they've now they had made their application just around by then the date of that is document number one thirty four dated june ninth two thousand and fourteen so mr felicita is now seated stating that it appears that they finally made the application a few months before this all the government in this case and luckily it was not my esteemed colleague mr mr felicita who sits here the government in this case treated the original indictment like a placeholder like a phony complaint they had our clients rounded up they ha sit in jail they oppose pretrial detention and they set on their thumbs for about two years and we didn't get a death decision for about two years in ten months may i ask are you still on the c j panel i am  is it still the practice in the western district in to have magistrate judges supervising criminal cases before trial yes up until the they issue their decisions they report recommendations and then the district court judge takes over the case the government because they waited two years and eleven months to finally remove the placeholder prior indictment and put a superseding indictment in with two new defendants and additional charges relating to the same hobbs act now my client was not charged in the  singer murder so my client should not have been anyway had to sit there for two years and ten months and wait for the indictment to be superseded on unrelated charges for an unrelated kidnapping and robbery but in any event then for the next while not only after the superseding indictment was put in place but also right about the same time the government suddenly miraculously found the original photo array at the detectives house that was before that supersede it was but at that point we were moving as we were arguing as to whether we need to reopen all the hearings because we had conducted the hearings without the original without the ridge of the witnesses original notes on the photo arrays so now we're asking whether to read reopen it and we did end up reopening it now the litigation that occurred after the superseding indictment because there were new how object charges as the as the court noted earlier and because there were new defendant and because there were new unrelated charges as to the toko defendants and not my client we now had to sit through another year or two of motion practice in additional hearings that my client had to sit back i'm sorry for severance yes yes we did in raising your severance argument a speedy trial argument we did not because the because the judge scott had already been warning the government we'd route we raised it previously and the judge was already telling the government you got to make a decision on death so when when we when we were raising additional issues we didn't think we had to use talismanic language again my client by the way is still after seventy eight months now you had about seventy two months where he was in jail and the government never did get him can commit to anything at the trial he's now been home confinement with g p s he's basically incarcerated but within his own home can't go yard can't go to his front yard so we've got about seventy eight months where all of our pretrial detention motions were were were denied our post jury missed trial was based was granted but he's still on home confinement release at all and now he was released but on home detention with g p s which absolutely is better than being in jail without a doubt but it is still a form of incarceration is a huge loss of liberty it's seventy eight months after the first place holder indictment was was put in place in this case and i really would urge the court i don't want be presumptive but i don't want to go no where the court knew what its ruling was going to be early on before it gave a written decision to follow the same type of a green with respect to the government's actually let me restart with respect to judge cody's questions about its coat oh excuse me i'm so by apologize is a great way to start my first a pet's ok  with respect to j not the first one i'm sure with respect to your questions about the attachment of the sixth amendment and supersedes or the lower court in penick found that some of the delay in that case which was so detrimental to the defense was in part because of the government's decision to twice supersede the indictment a finding which this court did not find was an error did not reject in any way and i  would say is part of that court's decision so in that sense while the sixth amendment right might attach in a technical sense as soon as there's a formal accusation the government's tactical decision to supersede the indictment can of course prolong the period of time that the defendant spends while legally n s and in pretrial detention and can therefore i think add to a finding of prejudice under the speedy trial rub as to the government's claim that the timing of the defense's filing of this motion was opportunistic or that it was in some way an attempt to gain a tactical advantage over the government first of all speedy trial can't be waived to the defense could bring it in the time that doesn't necessarily inoculate the defense from a charge of bringing the claim in bad faith but i would argue that as we pointed out in our motion we came late to this case i was admitted as an attorney in january of twenty seventeen was hired as an associate in september mr harrington and i decided to write this motion and this is after mr harrington has come on after the death of mr green second attorney we've just become familiar with the case as soon as i finish writing the motion we filed and trial begins i think to greene was complaining about speedy trial from the very beginning that's right your honor and what it was very that's right both at the arraignment and also in later occasions in the government tries to argue that somehow because he also in some of those situations asks for severance that it doesn't count although as i've cited in our in our brief if you look at the transcript he very curly associates the two things in his mind he says i want severance because this case is going on for so long i want to move forward the government opposed severance in each case whenever it was such a motion was made yes i believe so your honor so as to the standard of review this is something i'll just offer briefly before i conclude  the government says that the standard of review for cases like this approach is de novo and of course this is a mix question of fact of law the factual findings by the district court are entitle to plain error scrutiny of the legal determinations the the barker balancing test is entitle to abuse of discretion review but the two cases that the government cites to say that the standard of review therefore approaches de novo in that this district or excuse me the circuit court is in  worse a position than the district court to do the balancing in those cases the panel's both said that actually discretion in this sense is that is is something of a term of art and that in reality some deference in fact a great deal of difference is due to a lower court's determination the government tries to to raise this challenge as a an error in the balancing but then spends the majority of their brief challenging the district courts factual determination so in my mind it's sort of a bootstrapping intent you know to to challenge the factual findings which are entitled to greater deference while saying well this is we're really attacking the legal determinations based on i think if if the government looks more closely at the cases it cites it will see that in reality the district courts determination is entitled to a greater degree of difference is it fair to say we've been little government waited two years before making the submission to me justice no no your honor no judge that's a stretch of what i said i did not say to this court did you make the when did you make the application i don't know judge and i what i say is that in the record because it's the process of discussing the no seek with department of justice simple you file papers papers why are those papers in the record it's a matter of confidentiality that the department of justice does not publicly issue i understand that that i a private process right but at some point you say dear main justice we want to the death penalty in this case we wanted to answer that is in writing when did that happen well it starts as a conversation and finishes with a memo on a decision but what i'm saying to the court  reiterate what i said before was that when the conversation began in two thousand and twelve as stated on the record by the assistant united states attorney but the department of justice would have necessarily had to have the cooperating witness was wasn't secure till february of two thousand said we need you know the sixty days that was not truthful because you needed forever until you got the new witness know what the assistant later said and that's in the record as he said judge i obviously was not very good in my predictions of when the department would be able to make this decision but it wouldn't necessarily have at that apartment necessarily had to have that witness and the government would have been ready to go to superseding indictment sixty days what do you tell the court sixty days if it really turns on when you can find  i just think the prosecutor was mistaken as to understand his understanding of the process that it is sixty days generally from the time that you have all of the evidence that's generally what the process is sixty days and he said it you didn't have the witness well the witness had testified at that point grand jury so the prosecutor mistakenly believe that he had it all but it's not when they testify in grand jury it's when they secure a guilty plea and say ok i'll cooperate with the government and we didn't have that til two thousand and fourteen so  days measure i believe the prosecutor was mistaken he thought that the sixty days would would be triggered from when the witness would have testified but that's not what those sixty days is from and then he repeated that error a couple of times no it was never  mr covert said it was repeated six days six days that was that happened one time and at a later date the prosecutor says i was mistaken but we are not going to hold this case up for a death penalty decision that may never come because we may never have a superseding indictment he acknowledged that defense counsel was  by the bedford judge analysis we don't want to wait up we want to press ahead and they did they filed a motion after motion everything was litigated judge this was not to go no this was not adam it consistent and explicit frequent or vociferous invocation of the right this was infrequent inconsistent and doubtful the right yes but just just consider defender green who the court who your honor pointed out defended green early onset i want to speedy trial and i want to go pro se and the medical records are you sure about that you really want to go pro se and subsequent to that he then gets new counsel and he comes in files a whole robust new omnibus motion with lots of different parts that needed to be litigated so while he says on the one hand i want to speak trial on the other hand he's telling everybody it benefits me and that's exactly what he did and with regards to severance judge no severance motion was ever filed as a speedy trial and it one point in fact judge scott the medicine judge warned in caution the attorneys and said listen you just file the whole slew of b motions because you're saying the detentions going on too long i direct you to file your severance motions would the district court judge if that's appropriate they filed severance but not for this reason they filed it because of spillover they filed it because they didn't want to be tried with their speech trial if they had the government would have responded in a much different manner than we did with the response if it was based upon an illegitimate and sincere desire to get to trial immediately we would have said we would have granted that or we would that severance and proceed to trial but we didn't because none of these defendants wanted to be tried a loan and none of them wanted a speedy trial always have an overarching responsibility to provide a speedy trial to they have to say it for you to know that when they carcer and in pretrial detention for more than two years you have an obligation to do something no judge but the difference between what happened in panic and to gano was those were institutional delays and mr townson referred to that here today that's what judge scrutiny charges with institutional delays these are not institutional delays helms you couldn't produce the defendants but if it was the delay in that in producing their fairness was around the holiday season in two thousand and twelve it was a matter of thirty or sixty games that's an institutional delay as we accept that in our brief but they're charging us with the phone or i was in some offices house that was an institution but that didn't prevent it was a neutral the labor didn't prevent them from being able to litigate or attack and nothing changed and that's my point all of this that's what i would submit to this court if the a persistent united states attorney hadn't been forthright hadn't been open and candid and even mentioned the word death penalty if he hadn't done that what would have changed in this case if you fired as coach pointed out he's in a bun it's in abundance of caution he's he's alerting the court the parties that experience counsel should be appointed but assuming he had said nothing assuming it said nothing and the court just proceeded with a hobbs act robbery nothing would have changed in terms of when this case went to trial because the defendants are the ones who institute all the delay they're the ones who filed the motions they're the ones who took almost two years to file their objections well they were waiting once you mentioned this they waited for an answer that's what counsel just told them no judge the objections took them their objections took them and we started objecting to this in two thousand and fifteen it had docket if you look at the special appendix filed mr rodriguez one sixty six a foot no one the government started objecting in two thousand and fifteen and yet they keep asking for the delays for the objections to be filed we're not asking for it that's not like what happened in panic where the court sat on the motion for thirty months that's not like what happened into gano where the institutional delays with the marshal service the stenographers the two magistrates that were used none of these are political here at six months to get one of the can we at least agree it's whatever it is it's not a no yes not a no and we can see to that in a reply brief that's not what we intend to do is it's also not abuse of discretion right judge what i think it's the  the standard of review that we addressed in the reply brief this was in regards to the case in two thousand and thirteen that although it's a standard of abuse of discretion that's the courts it is really viewed as a matter truly left to discretion that's a term of art and it counsel answered my question and said that their client defend had a sincere desire for a speedy trial and made that known to the government it was insincere when you see speedy trial out of one side of your mouth and then immediately file multiple onto this motions on the other side and what this court said into gano you stated we do not mean to suggest that the word speedy trial ought to function is a magical incantation that guarantees an immediate trial to any defendant who so wishes so it may have been raised early it was not raised often and it was not recent serially and they want to now look back and say that there was some true desire for this as if it's a magical incantation that then gives them all the time chargeable to us suggesting that we should decide that the law is that every time a defendant goes into court he or she has to say i want a speedy trial rights absolutely not judge and we don't at no point as a government ever suggested that what i'm suggesting the court is when a defendant says i want to speedy trial and then days or weeks later files multiple levels of motion that require litigation and they delay in getting their objections to those report recommendations that belies their request not identical but it's hard to imagine a court finding a sixth amendment violation because of the time taken up to decide it for that because the defendants asked for some motion practice right but i understand but if mr green is saying or actually that's sort of what happened here there is there is no motion there was no motion i believe in advance of the trial suggesting there was a violation of the speedy trial act that's correct there w there was so much excludable time under the act that's right and there was nothing the trigger that if one of the defendants had said speedy trial or severance for speedy trial this would be a totally different discussion instead they file for days before jury selection get a hung jury and then two weeks after look back and say it was the scepter of the death penalty that caused these delays that was your honor that was not proper analysis the law or the facts in this case and it's a miscarriage of justice it's not right that this case was decided instead of a jury of his of twelve people unanimously a jury the jury didn't convict well they were unanimous but we're talking about somebody who was executed and they ought to be decided that way and he post trial indication of the jury  it's a matter for the court that i'm not asking the court to consider that and it's germination what i would ask the court to ask yourselves is was this the countless small choices of subtle neglect into gano or was this instead the defendants having very experienced coun attacking the government's every evidence at every turn were they were required to then proceed to each and every one of those or germans to defend our case and then at the end for them to look back and say we said speedy trial at one moment magical incantation