university of michigan law student luke shammal who argue this appeal on behalf of our client jason brown this motion isthmus constituted ineffective since the counsel and this issue is what i would like to focus mark do not say this motion was both object beyond reasonable and it this case is almost identical to on this court's prior case and yes the crane the only difference between this case and crane is that in crane crane's counsel was not object the unreasonable in follow motion  seven a day cut off for speedy trial purposes even the of these facts indicate that there was a speedy trial act violation mand so that the lower court can at minimum decide whether or not there was a speech in the first instance so is that if this whole thing gets very confusing going down the path you're saying that by not filing the motion to dismiss on speedy trial grounds after the seventy day deadline there is i see but doesn't that depend on whether filing the motion if it had been done would succeed on the merits in other words don't we have to get to the merits of whether there really was a speedy trial act violation on almost your honor which i think we can get to the merits on that i think that we can conclude based on the record that it's very clear that speech relation but don't we have to do that because if there wasn't a speedy trial violation what the council didn't filed a motion to dismiss what will only all we need to show is that there was a reasonable probability that motion would be granted right so even if there was a disagreement or there's any sort of hesitation that there was a violation which we do not claim violation the district judge seems to think that the supposedly unavailable philips was enough to warrant delaying the actual trial until september twenty second past the seventy  day why why shouldn't we defer to that finding of the district judge that there was a reasonable reason for saying phillips was unavailable to reason your honor first is that the witness mr phillips was least partly its own fault that the witness was not able to attend on a scheduled trial date because he waited to less than a week before the start of the trial to contact a witness and realize that there was a there was a scheduling conflict the scheduling conflict was a mere inconvenience which again the government state grief this was a convenient that's the government said it was an inconvenience to the witness but never stated or claimed in any way that the that the witness could not or would not attend trial on the day the district judge make a factual finding that we would need to say was clear error on that score at the get witness was unavailable pursuant to the requirements of the speedy trial act yes your honor i think that it's quite clear that was erroneous and that that is not meet the session would take precedence over a second session of court exactly your honor at the training session does not trump mr brown speedy trial rights especially when any conflict that would have occurred based on this training was based on the government spending over two weeks that on so it through before the start of trial the government knew of the trial date and waited two weeks before it contacted the witness to deceive their home about the actual trial date and the witness actually said that he had training on the first and third day of trial  could be on the second day and the court even initially post several options to allow the witness to be there to accommodate the court try to accommodate with the original trial schedule but the witness still was not on available for the spee would that mean then ins of justice justification of stopping the clock that's actually the second point to judge moore's first question which is the core on the record very clearly stated on september third in a pretrial teleconference that it was provisionally granting a motion based on the reason stated in the government's motion because the witness was unavailable and as i just argued with us was not on a bill for the statute at that time when the motion was being granted the government did not the government and the court did not state the unavailable pretextual arguments of to justify something but why is this pretextual and in fact one attorney's child was going to have an operation on the day of the fifteenth i think and the other council had another case in state court scheduled the next part of the court can't do is grant a continuance for one reason and then later say that the continuance creates schooltime for a different reason and that's what the court does here because otherwise what the court would be able to do is any time a speedy trial violation where it says look you have to file your speedy tract violation prior to you can't follow it prior to the end of the seventy days that you have to follow it seventy one days or later right and you can save your client didn't do that because you lawyer didn't do it but it is so based on share you're out the window right if you don't have this ineffective assistance of counsel kline would you agree that yes your honor but only to an extent because the the court was designing a plan that was making it so that mr brown could not assert speech on like a name because if the court is right that dear stop the clock what the court did was move why dear in order to stop the clock ok so you're climbing the the merits you did everything that you could and should have done and therefore you should win on the speedy trial act claim on the merits but if you don't win then inapplicable here and you did everything you could and therefore we should decide on the merits of the speedy trial act claim and you could win on that basis in the alternative yes i think that this court could construe sure to actually support a spee eighth was the last available time to make a clear objection and the court ruled magic action that's what my question was why couldn't you your i know you weren't the one but why couldn't your clients lawyer at the time have reiterated the speedy trial act claim or made the speedy trial a claim on day seventy one under the counting that the defendant wants to use he should he should have you are that and that is the i probably aren't as in effect  violation it was a simple motion that clear case present in this court supports had he filed a motion this case would be indistinguishable from crane and it would have been dismissed at the time or clearly just missed on appeal assuming the hype was up your honor thank you let me ask you one thing is is your argument that the record is so clear regarding the ineffective assistance of counsel claim that  and actually a reasonable performance so i think the record is fully developed and clear on this issue all right thank you thank you please the court my name is near edge group there for the united states i'd like to just if i can make one point that addresses some of the questions that were asked and that's a point about the facts of the trial began on september eighth that was when jury selection took place the seventy day clock ended on september fifteenth and the trial was continued until september twenty second  eighth september fifteenth and september twenty second this issue of whether the witness was available or whether the witness was necessary or essential was that first week september eighth through september fifteenth that's within the seventy day period and therefore any continuance or extension or exclusion during that period was not an exclusion under the speedy trial act it was within the seventy days as part of the trial court schedul was the is to temper fifteenth until september twenty second that extended or continued the seventy days and that was where the district court needed to find an exclusion under the speedy trial act but you really are presenting a compound question so if you want to i have addressed them separately there'd be five second question and it's i think it's raised for the first time or at least most sharply on mr brown's reply brief which question i thought you were asking so i'll answer that that where you reframe the question so i had the refrain i want to answer your question and i'll try to hear the record is clearer than i think it was portrayed and we can talk about that but the key documents to read but on the september third teleconference and the september fourth teleconference it's all of these issues are raised and discussed about councils on availability during the week of september fifteenth the september twenty second and and therefore it was clear to everybody that that was an excludable period of the speedy trial teleconference where the judge says we're going to start this proceeding on september eighth and then recess until september twenty second ask and ask the defense attorney would your client have any objection to that and there was discussion so that's the that's the confusing part about the docket that the dates on the docket are a little bit missed numbered but the september you're discussing the september third teleconference where one plus one one scheduling plan was discussed which was to continue the entire trial it  september twenty second and that was never actually done that was the that was the first telephone conversation but which the scheduling issues came up the judge had not calculated the seventy days no decision was made it was just a general discussion but on september fourth when this decision was made to start so that was a term or third that i just described was the first conversation the next day there's a teleconference september fourth and if that comes that was when the judge decided to start the trial of september eighth and then recessed a subpoena for twenty second he asked the defense attorney would your client have any objection about the defense attorney said he couldn't he couldn't possibly because the trial is starting on september eighth which is within the seventy days that's a week before the seventy days and as your point that this is a binding commitment by the defense attorney at that time that the defendant cannot get out of is that the point or is there some other point that you're making my point was that this was an ineffective for the the defense attorney not to object or move to dismiss because that a there was no violation that there's no violation if you're accepting the premise that having the word year on september eighth starts the trial and that a district judge can delay two weeks for reasons that are totally questionable put a value judgment on it because of the training of a government witness and because of the  statements by defense and government counsel that it's really inconvenient for them to show up before the september fifteenth deadline i would agree with all of that except for the final part which is even laden with the value judgments you you invented which have a final part which is remember the the suppose there's a difference in those two weeks as two weeks are not interchangeable the first week was within the seventy days the second week was outside of the seventy days and it wasn't that it was inconvenient to counsel between september fifteenth and september twenty second and that was one of the things i wanted to make comments i wanted to make there was a wreck there were findings on september third in the teleconference in september fourth in the teleconference and september eighth in the pretrial conference and then in september tenth in a written order that counsel was unavailable at seven that's seven september fifteenth until september twenty second week standard but i guess i guess the question you know i think we're getting off the basic point that your opponent is making that either there is i see on the part of the defense counsel for failing to object properly or the alternative argument would be that the defense counsel did actually not waive under the share case did not waive and and  objected sufficiently to preserve the speedy trial violation claim and that his client wins on the merits of the speedy trial violation clean so if you could get to sort of guts in the merits of this why shouldn't your opponent win on one of those two alternative arguments that there was i see or on the merits there was a speedy trial is right that does seem to put the defendant the bind except that here the facts are that those aren't the only two possibilities that there was a waiver or an ineffective assistance because there was no violation of the speedy trial that the you're saying on the merits there is no spee that's correct i'm a little worried about because he the posture of this case is is that is an ineffective assistance of counsel claim because the speedy trial act rights were where were waived by not moving to dismiss so given that it's an ineffective assistance of counsel claim we need to analyze is was this an under reasonable decision and would it have made a difference and it was not an a reasonable decision not to move to that's relevant but what shearer says is it clarifies the statute thirty one sixty two eight two well assess what the statute says what we already know what the statute says if we have additional factual the development our case regarding the circumstances of plying and enforcing the statute itself which would seem to differentiate our case factually from on the facts and sure i don't think it is a relevant difference what sherer says is that the motion to dismiss needs to be made it's just with thirty one sixty two eight two says but it just clarifies it the motion to dismiss needs to be made and it's completely logical when you think i mean the defendant wants his speedy trial rice asserted of the record below would sing the indicate that but if he if if it's if his lawyer doesn't do that and doesn't make the motion is to be filed and that's an argument i wanted to make before but i thought you weren't asking that question which is that it's not ineffective for the lawyer not to make to not to make a frivolous motion  just because the defendant might want the lawyer to make a motion or make an objection which not in effect and reveal was when the when the the the defense lawyer is begrudgingly admitting that he is the necessarily agree with the delays that the district supposing well there would have been frivolous because the trial began for two reasons two separate reasons the trial began on september eighth which was one week before the seventy days ended on september fifteenth and because the trial the seventy days it's themselves were extended in this belt and suspenders redundant abundance of caution approach that the trial judge took that seventy days was also extended until september twenty second which is for one reason only which is the on availability of counsel and again the record on that is clear in september the september fourth teleconference the september eighth pretrial conference and there's a temper temper order and it was initially discussed in that september third teleconference before sit down i want to give you those record numbers and i point that i've been circling around that i'm not sure if you're asking is are clear for ineffective assistance that the the defendant's defense the defendant has the right to make his lawyer do four things we have a jury trial have him testify make a plea or make an appeal just because the the defendant wanted his lawyer to become a motion or make it objection doesn't make doesn't de facto or necessarily make the lawyer ineffective and reasonable to some extent was client was wrong his in the in the in the defense lawyer acknowledged that in the september fourth teleconference and then didn't disagree at the september eighth pretrial conference that the not have been wrong had been wrong but on the september fourth teleconference the judge said i'm going to start the trial on september eighth and then i'm going to have a recess until september twenty second i'm going to extend between september fifteenth and september twenty second the seventy days because under ends of justice exclusion because of an availability of counsel and i would like to address one another thing this case a quick question what is your  government's position to share controlling are not controlling in this case well it's a two step process one was this speedy trial right waived because the motion to dismiss was not made before the seventy days ended or after the seventy days ended before the trial began so here would have the motion to dismiss would have had to have been made before september eighth or as you pointed out before september twenty second it wasn't so it's waived so the analysis is was it ineffective assistance not to make that motion but are you arguing out of two sides of your mouth well the trial started on september eighth when the jury was picked but you had to have made the motion to dismiss after seven days which was after september fifteenth i think we've disagreed on the before it's not it isn't it is an either or because there was no violate that that presumes that there must be some remedy to a violation but the defendant must have a remedy to the violation either they must be able to make the objection or they must be able to claim ineffective ineffective assistance but there's a third possibility which is that there was no violation at all in which case it makes perfect sense that under the rules of thirty one sixty thirty one sixty one thirty one sixty two there's no objection to be made because the seventy days hadn't ended yet and the trial had begun on september eighth wouldn't your position allow the district judge hypothetically to delay a trial for a year after picking the jury while the cases addressed that in the briefs address that which is that at but they don't address it directly with a rule or a test and what they say is that you keep the trial begins when the when the jury selection of order takes place and then it can be extended but not which says that a twenty three month recess is too long here there was a a two week or one week recess depending on how you think about it and your red light is on so you should come to conclusion your answer my question and then the  questions for you your time is up ok out the the point in the state in case that was made was that the recess must be justified under the speedy trial act that the speedy trial that just because a district court starts the war dear the jury selection doesn't even rise them from any speedy trial act claims any recess must take place within the speech thanks very much i think the government's essentially begging the question with claiming that wired years stop the clock therefore no one affects the council by stating that it's essentially removing any possibility for a later motion which is exactly what in crane the court can do when the delay is not justifiable under the speedy trial the delay from september eighth september twenty second was not  speedy trial act or only time out from the fifteenth of the twenty second cousin up to the fifteenth is not a violation of the speedy trial yes your honor but when the court granted the motion on september third and then altered the motion on september fourth the reason was never for unavailable attorneys the reason was stated for unavailable witness on september third before the court knew when the speedy trial would expire speedy trial clock expire it granted the motion twenty second on the fourth when it realized that the fifteenth was going to be the expiration of the speedy trial clock its solution was to move only war dear and this court then explicitly stated on the record that mubarak dear because of the speedy trial act assertion by mr brown that is precisely what crane says the court cannot do that is paying the speedy trial like lip service to quote richmond and young that is impermissible the witness to the government contends that there the witness continuance was to the fifteenth and then afterwards was unavailable witness that's not what the court said initially in the court's initial grant of the continuance has to be the reasons that it later grants and justice continuance it changes reasons order to try to satisfy the speedy trial act and that's not permissible but what also the court and the government never addresses that even if the turn is one available on the fifteenth and sixteenth which they were available my arguments always that in the alternative if the government if this court thinks that maybe that the court had a good reason for the fifteen to sixteen the court has no reason for the seven hundred eighty to the nineteenth the only reason the court states on the record that appreciate your service under the criminal justice act we appreciate the origin of the united states as well it's a very interesting case very difficult case and we will have the case today didn't render a decision in due course but we thank you both for your argument and the case will be submitted