and the next case on our calendar is united states verses joseph cano the third  where it was longer than seven years where without a trial pretrial can still in confinement not where that became an issue i trial we have not found a single case either in this court or i think it's safe to say around the country and the fact that he remained incarcerated for seven years while waiting for a one week trial after repeatedly to be ending a speedy trial represents a breakdown of how our criminal justice system is supposed to work and a clear violation of his country view this case in in the same way we would if he had been if he had found that he wasn't guilty  premise that he was properly convicted we have a challenge to the search warrant and if the body i felt thrown out he was not he was he was not guilty but putting that aside a defense entitle him to a speedy trial does not depend on whether he was properly convicted there's no authority that i'm aware of that says the speedy trial clause only protects innocent defendants and not guilty ones and in fact barker says the exact opposite barker says that imposing these consequences and it is specifically talking about the prejudice in this case lengthy pre trial clock was meticulously followed throughout with exclusions appropriate exclusions for motions etc including the motions of this the defendant's father and so most of  this is time is explicit right i mean there may be certain times when there are gaps but not significant ones compared to compared to what so so as or so what you're saying is that there's i western district was experiencing here and there are a lot of other factors here as well but that is held against the government in the words of this court in buffalo news where there was only thirty one months of delay for a defendant who was out on  that was all chargeable to the government it was chargeable to the government's inaction the overcrowded dockets of the western district of new york and the truck words failure to rule expeditiously on appellants motions that's well settled and to the extent the suggestion is that  because there was no speedy trial act violation there can't be a constitutional violation well first of all that's clearly not the case judge winter you said it in the united states versus blue the fact that there has been no violation of the spee specific stringent rules on that and we followed them in our brief but there were lots of violations of the speedy trial act including when you get there's a whole list but when you get to october two thousand and fourteen after governor has been in jail for six years after he has been repeatedly asserting his right to a speedy trial after everything that happened in this case it's time to set a trial the judge doesn't set it until may of two thousand fifteen seven months away and five months after defense counsel said he'd be available so he stayed a reason the record excuse me if he stayed a reason to get it yes but it is the reason on the record that his that his trial calendar is booked booked quote unquote defense counsel says and with respect the government got this wrong in their brief the government said that it was put out that far because defense counsel  not available that is not true defense counsel when and when the judge says let's set a trial date says i'm ready to go and i can squeeze this in in december and this is happening in october it was because the court's calendar was booked that the trial wasn't set out in till may and so that he could squeeze it in that he didn't scream if the defense counsel said she could squeeze it in but the court's calendar was booked and the prosecutor also apparently had a busy calendar you pick a date in th pending or various various things were happening there were a series of entries it was as though they threw him in jail and forgot about him they were matters being discussed and going on  right from july of zero eight through may of fifteen when the verdict occurred and at all times here there were there was there was a lot of activity in this and yes there were were huge delays but in time but overall but that's about the only thing you have is that is the whole the whole period as opposed to some evidence of bad faith on the part of somebody or or negligence it looked to me like everybody was paying pretty close attention to this case and act right to act in this and this is clear in your client's best interest it particularly with regard to the police right you your honor respectfully that's that's not the case and  matter the delays the issue was whether the delays are attributable to the government and as we explained in our brief and we went through a painstaking review of the record four years at least four of the seven years are attributable to the government in  buffalo amusement as i said it was only thirty one months and in the other cases it was less and those were white collar cases where the defendants were out on bail unlike mr to go and so your honor you have to look at each of the delays that happened which is what we've done in our brief and say is the government response and the answer is yes the government is responsible for the fact that it took two years to decide a straightforward set of pretrial motions in this case and it's because  judge threateningly for whatever reason it may well have included the state of his docket i understand that referred these motions to two separate magistrate judges which just created  to trial as as your supreme court has said in his judge who are you said in the decision last year in the book per case withhold the government and the court and the government has an affirmative obligation to honor the defendant's right to to a speedy trial and brenny should have recognize that particularly he'd already been in jail for a while demanding his right to a speedy trial that dividing up the motions made no sense is responsible for the hundred and seventy days excuse me he won four years early there was no there was no such made motion made below that i'm aware of but the record reflects rather he said for competency evaluations so that was going on at the same time at least one of which was totally unnecessary and reaffirmed the opinion of the previous competency evaluation that that's absolutely true judge cooler and the record is clear what was going on and by the way these compensate hearings were not going on that's part of the problem he was let he was just sitting in jail the marshals weren't even transporting him that's that itself is months and months and months of delay the delays here when you add them up if the if the competency hearings had been rapid like a second in the third yes your honor the second one was understand is that the reason that the company's hearings were ordered is because he was being given a plea offer that would result in basically half the sentence he would get if you went to trial and and he before there was a plea offer we say that was unnecessary and should not have been ordered because as the prosecutor himself said on the record it was basically water because he was demanding his right to a speedy trial which is which is not appropriate as of the third competency hearing yes  that was after the plea offer had been had had been extended now first of all and i we think the record is clear that there was no basis for that competency hearing was based on a faulty premise the record the record decision to order a competency hearing again we're not appealing that in of itself but in so far as that is part of the speedy trial analysis that's the nova review it's on the theory that if you do not accept a plea offer that is offered to you that ultimately what defense counsel was trying to protect him from your honor explain was not an additional ten years if he went to trial but he should never have been in that predicament it was a violation of d o j policy at that time reflected in the for the government to hold the prior felony information over my client's head and and and agree to pull it if he didn't go to trial and keep the threat out there if he did go to trial so that's really the cause of the third competency hearing it from ten to twenty the proof from a should yes exactly exactly and it was a violation we said this in our brief government has not disputed it was a violation of d o j policy at the time and the  i would like to conclude by talking about that the prejudiced point because there is prejudice here the seven years of pretrial incarceration including four years resulting from government  delay is prejudiced you don't have to show impairment to defense to the defense the supreme court has said this time and time again that the court concern of the speedy truck was is impairment of liberty it is not impairment of the defense united states versus loud the speedy trial clauses court concerns impairment of liberty united states v mcdonald the sixth amendment right to a speedy trial is not primarily intended to prevent prejudice to the defense caused by the passage of time it is designed to minimize the possibility of lengthy incarceration prior to trial and that's what we have here this case is at the core of the sixth amendment right to a speedy trial and if this is not a violation of that of that right i don't know wh  i don't thank you defense no it's not it's only sixty eight months no it's it's not judge i think what we're what we've talked about here and certainly one of the darker verses when all factors is prejudice whether or not the defendant was prejudiced by this now here i mean it isn't he was tried sooner he would have gotten his twenty year sentence sooner and he'd still be in jail there is a very there is no there's nothing in the record that would suggest that the result of this case would h different he would have been able to bring his appeal on the suppression motion sooner that was flying over information that may or may not have been acceptable without any in any event as opposing counsel just said the sixth amendment right to a speedy trial implicates the right to a speedy trial not to not get a sentence if you're convicted but it's a different right a parker versus trial violation which was never raised in the district court this court is reviewing at best for plain error he was complaining about not getting a speedy children throughout this incarceration he said i he said i want my speedy trial at the beginning he said i want to speedy trial i want a speedy trial in context without realizing that that was going to preclude him from raising any issue with regard to suppression he just didn't understand how it worked he kept saying i want to speedy trial to speedy trial the courts try to explain to him look you we need to go through a procedure here what's going to be your defense this is in the context of the pro se his request to proceed pro se which took up a lot of time but you've got a situation where the judge is talking to me is how do you suppose you're going to bring that up that you think your fourth amendment rights were violated well i'll bring it up to trial no that's not how it goes you have to make motions before hand and if you had an attorney at this time when he was pro se you would be able to go through that process he was saying yes i want to speedy trial at the point where he really wasn't understanding what that meant he still had to go through pretrial motions later on after he was represented or serious and that there was prejudice in the sense that he was incarcerated during this period of time without a trial with the presumption of innocence being in place and  that it was the fact of incarceration during that period and creates a prejudice well and this court and the supreme court has recognized certainly that that is a form of prejudice and his injury answer to that you didn't move to be released you didn't move to be released that's correct and most of the time being represented by competent counsel counsel whose effectiveness was constitutional effectiveness is not being challenged on this appeal so we have a situation where the sixth amendment claim was not brought up in the district court despite his saying i want to speedy trial i want to go to trial as pro se and he says to the challenge i want to speedy trial what do you mean not brought up it was not raised it when he did make a speedy trial motion he brought it pro se when he was represented by counsel this court's review of sound need broader pro se before he was represented by counsel no heat with what he brought up that was not he said i want to go i want my speedy trial and he said that when he was pro se but saying those words he it was it was not developed at all before the district court system you can't say the court was notice but it did but it was not presented to the court in a way that the court could rule upon a record was that he said it you may have said can't schedule a trial let me send it out to the magistrate let me do another competency exam to the court not know that he was sitting without his liberty for six seven seventy eight months but this in the context also in the court and i know the court has looked at the entire record but this is in the context of him coming to court monthly it appeared when there were problems with his father's competence there were problems dealing with whether his father was suffering relating to my father's competence we have to because i said i still need to speak to my attorney about this sitting there brought in for these appearances counsel not objecting and him sitting there saying is and a couple times is accept the plea well the reason for that is an attorney doing that now is not the judge it's the attorney moving is it his attorney made a motion and what she said in her motion is not he's crate he or he's he's he's incompetent because he won't take a plea he she and very carefully if you if you look at her and her motion she said he can't understand he didn't understand what was going to happen at trial he kept me he understood what the trial was but he was insisting my defense is the fourth amendment my defense is the fourth amendment and him not understanding that he wouldn't be able to present that at trial and her try to tell him you that that's that's not how the trial is  reviewing whether or not the competency exam was required what you're reviewing is whether or not that justifies the delay but look at when there competency exams were ordered it would take months to get it done well it took some time but that also wasn't that this court all was to what was happening in the district court is first of all judge scott the magistrate saying you're in front of me and i see you're not getting what i'm saying i need to send you for a capital c exam and then you have counsel  experience counsel saying i'm talking to him and he doesn't seem to appreciate what i'm telling him about his the facts and and say ok he can make a decision yes i want to go to trial i know that i'm being offered a ten year plea and if i go to trial i'm going to go to jail for at least twenty years but not understanding that that was in his best interest and end it so it's not so much he's crazy or he needs to be examined because he's going to trial or he's insisting on going to trial but he didn't seem to understand that this was in his best interest and he couldn't appreciate that and i think you do have to defer to counsel saying look i can't get through this guy but even after that it was another how long before the trial took place three years well and then you you had as you had the related to us every time is to take on a went to court he said i want my speedy trial right not because he didn't write it down not because he didn't write it down because he was using the term i want a speedy trial at that point at the very beginning and this is all at the very beginning of the this is when he went on his hunger strike when he said ok i you know it took approximately there was a six month time period for filing motions and and getting the cake getting hearings done and he didn't come to court he wasn't brought to court when he thought he should have been called to come brought to court so he went on a hunger strike that's what he's what about when it was time to set a trial and the judge said my calendar is booked i can squeeze the said i always understood when i was a district judge that you had to squeeze criminal trials that they came before everything else and if the speedy trial clock was running you had to pay attention to that or the indictment would be dismissed speedy trial talk was not running because the district court made findings under the speedy trial and it was that the trial act and it was overwhelmed what was that all the reasons were in the interest of justice that there was there were findings made on the record that it was in the interest of justice it means something and we know it doesn't mean case management doesn't decisions that say the fact that a trial court is busy or overwhelmed even if it's not in the interests of justice that's correct your honor but there is no chance there was no challenge at the time and because there was no challenge at the time there can be no challenge before this court as to whether the district court erred in that regard and judge i grant you that even if you're  delay not attributable certainly not deliberate delays certainly not attributes when he wasn't available until april fifteenth i believe that the attorneys did say and i think that's correct that the attorney did say that she was availed she could make yourself available sometime in december believe co counsel was on if it comes out in a in october of fourteen he wants to proceed from there talking about the trial that the attorneys not available until april  judge and the fourth exam was conducted by a private psychologist who said that he concurred with the previous findings so i was correct that they were a four right that the and that was the basis that the one that the psychological unit there saying that he was kept on on that just let me see if you agree that each one of them found that he was competent to assist in his own defense yes that's correct that is correct but i think you do have to take into consideration what appears in the record in terms of the district court's observations the magistrate judge's observations what is put in counsel's affidavit as to her contacts with the defendant which certainly could cause a reasonable person to say ok circumstances have changed here if i can just say one thing about plainer i know you cut me off twice judge about playing here are going to be better finish this thought quick but yes prejudice prejudice is is that the sides of the issue that there is lack of prejudice they can't point to any way that his his ability to present a defense was at all impaired and the result would have been different whether this at the time the question that existed when it was being litigated in the district court the kyl ok's and the kind of flyover i thought kind of was a heat sensor on the ground right it is the same and they found a heat impression there and the famous statement by justice scalia was that he could have been the lady of the house having her bath rather than rather than growing marijuana but i thought district court did in this case it said i'm going to avoid deciding this constitutional question about whether this infrared imaging of a commercial building violates the carlow decision i'm going to take it out and i find that even considering everything that's left there is still probable cause and even if there wasn't that good faith say natalie and that decision never had there never was appealed because because he county jails your honor there's no vocational rehabilitation educational programs like there are in federal prison the supreme court has recognized that as a form of prejudice the supreme court has recognized that concern is a form of prejudice the record substantiates that here that mr gonna went on a hunger strike why because he was expecting to go to court and nobody showed up to pick him up and he also because and this is also in the record he was suffering from some beliefs because people were not paying any attention to his demands for a speedy trial and so if i can just give an else of constitutional history here because i think it adds to the weight of what precedent and the record and common sense tell us that this extended period of pretrial incarceration is just intolerable in our system it was intolerable at the time of english common law which is what the speedy trial right is based on edward koch identified pro long pretrial incarceration as the evil which inspired the speedy trial clauses in our constitution state constitution and federal the english corpus act of sixteen seventy nine also as the supreme court explain is the inspiration for that right it's said that if somebody was accused of a felony and was not brought to trial within two terms which means six months he had to be released this is the but but it says that the consequence of the speedy trial clause is that some sense some cases the guilty will go free but that's the only available remedy and judge walker your question about the he ever asked to be released he didn't but that's not a remedy for a speedy trial regulation it just isn't and as you know there are presumptions in terms of drug offenses and with regard to bail and i'm aware of no authority that says the speedy trial was trumps that but in all respects and t i just want to make clear that mr to god it was not so crazy as mr parrish if he was trying to portray he he wanted to pursue his fourth amendment challenge on appeal if he took the government's plea deal he could not have done that he would have given up that right it was his right to decide whether he wanted to preserve it and you don't think it was a  the date of that was july two thousand and thirteen your honor after the two prior competency proceedings which i had term in that he was competent it says that mr to gano understood the implications of his decision he believed that a trial would give him the opportunity to stand up for his principles namely that his constitutional rights were violated when the when the search when the search replace he had every right to do that  constitutional claim when he went in all sorts of ways and that's that's the only thing that counts quite frankly even if it was plainer of you we still prevail because under each of the barker factors there's no reasonable dispute here let me just take as an example mr character if these aren't about prejudice his argument is there was no impairment of the defense that's his argument that's just flatly contrary to controlling precedent that says you don't need impairment of defense and as i said before the delay and in these situations detailed in our brief fourteen months of unnecessary competence here in company hearings or even ten months if you if you assume that the second and third were properly ordered if you just look at the transportation and ten months because the court couldn't schedule the trial because of its calendar you add it all up these are things that are squarely on the government it's four years of delay there's never been a case like this and the fact that defense counsel on some mr to kind of didn't do at least what he was required to do to assert his speedy trial rights i think that's absolutely clear it's a good place to stop here thank you thank you both