have three cases on the docket i think in all the cases we have experienced counsel who are familiar with the lighting system and the panel has read the briefs are familiar with the basic facts of the case of the best way to use your limited time is to jump right into the argument with that mccaw united states versus  guilt of the crime charged and failed to do so the government's evidence consistent largely of profile and background we heard a lot about the agency experiences we heard a lot about patterns of trafficker who testified is carrying a heavy backpack through the desert near the border and in cantor jury i mean it went to trial and maybe the jury would have said oh he didn't know but how can a jury not have the ability to say he knew what th inside that every backpack is going across the desert in the heat because the government didn't show that anyone should know what was in the backpack there was unlike most cases there's no testimony about an odor unlike most cases what would  something that was going to be sold in the united states it wasn't a drug if it were not marijuana for it were not drawn from wood well i don't think that's up to the defense to show it's up to the government jury to make reasonable  profiling back on testimony is that he ran with the agents came but it's this court has made clear for decades consciousness of guilt must be linked to the crime charged and since he was in the country illegally he had a very good reason and wish to remain in the country h good reason to flee the agents isn't he linked in other ways to the others involved in the marijuana transportation between the the boots that there are wearing that are given to them by the person who has identified then of course as i mentioned the testimony of one of the others in the group i mean we're not talking about simply carry this backpack and it seems heavy but don't worry about it it's not contraband we've got other circumstantial evidence too and we always instruct the jury that they can make reasonable inferences based on circumstantial evidence i agree with almost all that judging again contraband is not what he was king what he was accused didn't know he was carrying marijuana he was hired to do a job with some sort of contract so again i think the government's evidence as to the second issue in this case has to do with whether the district court's to consider a speedy trial issue that he raised pro se in a letter to the court and it was never addressed by the court but let me ask you before we get into the propriety or not of the court's treatment of his pro se request for purposes of calculation you seem to be making an argument that the motion the government's motion that was pending prior to the indictment should not be considered and that's that's the government's argument as i understand it as well there's a period of some six days or so or seven days where they had a motion pending and so that time should be subtracted out of your speedy trial time you argue that we should not consider that purposes of speedy trial act and what is your authority for what you just said is there a case if a circuit case there is there is not a case that says that there is not a case that says absolutely that it is it has been assumed out i think the way to look at this is a suggestion my reply brief is to look at the ways from court has treated constitutional speedy trial issues to look at the way the supreme court has treated the time in which they have to file a valid charging docket were essentially letting them opt out for a while but that it's time you clearly acknowledge that happened that post indictment before i mean looking at the statute part  says the following periods of delay shall be excluded in computing the time in which an indictment must be filed which is what we're talking about here or computing the time within which the trial must commence and then it lists the number of of exceptions and one is delay resulting from any pretrial motion so it seems to me you're saying that doesn't apply to one of those two categories pre indictment away when the statute says all these categories apply to both i think the question is yes what does in the statute what does pretrial motion me to be brought to trial there has to be a valid charging document and so something that's filed before there's a valid charging document is not something that is pretrial because no trial is possible without a valid charging document and especially when the motion is in motion to dictate we're not only letting them essentially opt out for up some period of time that it takes the side that motion but it really affects the heart of the speedy trial act because that person who is maybe detained and spend entire time in custody now has to sit for an additional week or so before he even finds out what the charge is and so for that reason i think that pretrial in the statute should be read consistently with the way that the supreme court has addressed constitutional speed trial act questions which is to say of reading speedy trial act consistently with constitutional speedy trial act jurisprudence and for purposes of the faction waiting the policy the speedy trial act which is to ensure prong justice for a criminal defendant as this court said and so in none of those cases did we have a case i was here where the defendant attempted to raise now they say he also waived because he's not entitled to hybrid representation but in the same document in which he rage the and i think basically is that as we explained in the government's brief the speedy trial calculation here has to exclude the time period for pretrial motions and as as a judge coast up pointed indictment pretrial motions are excluded now as i did file on monday a motion to file the supplemental a letter brief to address specifically the argument in the reply brief regarding the division or the distinction between pretrial motions and post trial motions and of in that supplemental letter brief i pointed out of the case of the united states versus guns that's always rodriguez that's six twenty one f third three fifty four and in that case the court specifically and it's a published case and it's binding precedent that courts to see if it please and to will it address basically whether an oral motion for detention was a pretrial motion for a purpose be the trial act so that although it was addressing the oral nature of the motion ultimately the court decided that the four days from that or the motion to  definition would apply and in other contexts for purposes of the statute congress has determined that pretrial motions apply also to the thirty day clock so this is an issue about what congress intended in i and they said that was excluded also in bowers i was a sixth circuit case which is also cited in cruise and basically that was a pre indictment motion for detention which was also exclude so the government's point on the substance of the speedy trial motion is that the period resulting from the motion to detain is clearly explained excludable from the speedy trial clock for the thirty days under that calculation only twenty five days it expired not addressed that issue of the second part of that is wet strange though to say it's way not just forfeit or even fully waived when the defendant himself is very conscientious and is raising this point that none of the lawyers were thinking about when it was brought before the court and i understand that he can't be making arguments of his representing but it just seems it seems odd when the issue was brought before the court to say he affirmatively relinquished that right  and i think that is in the issue that i mean this court hasn't addressed it in a published case but i think the government did cite a case where in an unpublished provision the court did say that a pro se motion to dismiss the indictment  speedy trial get grounds filed when the defendant was represented by counsel was an unauthorized motion in the court could disregard it so under that argument if if the motion of the pro side motion or letter was assistance of counsel claim which is not being made in this case but ineffective assistance of counsel in the context of speedy trial you would have to assume that the counsel was ineffective for failing to raise it but as we've argued there was no speedy  like your argument is that he waived it because his attorney didn't bring it it all comes back to whether or not it's a valid argument but i think the court at the district court could make an evaluation and was it within its discretion to evaluate the nature of his speedy trial claim and when you look at the nature and the substance on the merits the district court could clearly find that there was no speeded for trial violation and therefore he didn't need to address but either way in this case the court doesn't even have to reach the issue of waiver because i think it's very clear that on the merits of the speedy trial case there was no violation briefly if i can find my address the sufficiency of the evidence with regard to the sufficiency i think an important thing to remember here is that the defendant did testify and he didn't testify that yes i carried the bags but i didn't know what was in them what he said was i don't have anything to do with it he denied meeting with the codefendant who testified against him until he said he had i didn't meet him before i only met him when i was detained he denied going to the mexican town of san antonio he denied carrying the backpack into the united states he denied possessing the pack back in the united states and  ad he just claimed that i was crossing because i wanted to go to salt lake city i came with two guides those guides took off because they were afraid of the border patrol so basically his argument is that he was just in the area of  also basically said he was at the house with us he was transported to the river there in the truck they transported us to the river there were all these bags of marijuana all of us were  were carried the bags across the river so he himself was carrying a bag and there was a total of i think it was three hundred twenty pounds of marijuana so the weight itself each person would have had to have been carrying over fifty pounds of marijuana in a sack they had to have known it wasn't personal items because they had their own personal items reinoso said when we came across i have my then they call me tricky bags i don't know why but that's with the border patrol refers to these personal bags they have personal bags so even though rhino says evidently and also it's evidence is enough to establish it's his connection there's other corroborating evidence that he was part of it he had the same type of shoes that everybody was wearing why would he think why all of us are given the same top issues why would he not associate those bags with marijuana he said that the agent said he wasn't carrying a tricky bag when they did him so that that also ties into the fact that he was one of the people that that left the area so a lot of there's a lot of these cases where it's common cases cars coming across the border there's a hidden compartment in the car that has drugs it gets discovered and the driver says oh i don't know there's drugs in there and even you know those go to trial in the jury there finds him guilty or not but but those are typically in the province of the jury in this seems to me when you're looking at heavy backpack through the hot desert it's it's even more likely you know than you know there's a hidden compartment in a car you're driving psych exam yet it just seems to me it's a i mean some people get acquitted on cases like the but it seems to me it's a classic jury question yet when the jury rejected his story the rejoinder the jury rejected his argument or how do you reconcile his testimony and i think counsel also raised it here but it's also in the briefs that mr reinoso said that he was unaware you rely upon him to some extent to secure the conviction but then he also i believe has some testimony that he too was unaware well i goes directly to the argument that's been made by the appellant i think you have to  testimony in context and what was being asked is specifically and did you know what your job was when you got to the house and he said no sir did you find out what your job was no sir you never found that your job was to carry bags of marijuana no sir you ended up carrying a bag of marijuana yes or did you spend the night at the house what did you do the following morning they drove up river so basically he talks about exactly what he did but this conversation needs to be in context watch what with what he said and they should leave when they questioned him and the initial questions were how did you get involved and he said he it was through i believe it was he said that he became involved throughout he was recruited by someone at a racetrack to run drugs then he said that person bought me the shoes then he said that person drove me to san antonio and that person and  then went from san antonio we got in the truck and we went to the river with all these drugs that bags of marijuana so when you read that in context it's not clear that what he's argued what he was addressing in terms of saying he didn't know whether he didn't know before and then once he got there that's when he found out so i think a jury could draw that inference and it's not really not inconsistent when you consider the fact that he said he was recruited to run so we sat there no further questions  no but i think it's key that he says he didn't know what was in the best and that he doesn't is it what it comes down to yes it may have been conscious that his but that's not yours that sounds like what  captured states which is puts him in the same position there as steven ivory so again it's not a matter of is there something in the bag it's a question do they prove what was in the bag the reason  this wasn't all planned in mexico and everything i think there is a different point to which is that might be deliberate ignorance and there was not a liberating it's instruction given in this case and why can't the dream for that he actually is assuming your theory that in mexico he didn't know anything someone gives  government didn't prove something like odor of marijuana or visible marijuana that would have allowed them to say he knew it was something of a specific type of contraband that is the drugs that which as to the speedy trial question  i think that again it comes down to what does pretrial motion in the statute means and i think the better plain meaning version of pretrial is that a pretrial motion is one in which a valid charging document has been authority what you're saying is it is a good argument and it certainly has some sensible appeal to it but i don't see that in the statute particularly in the plain language that you just mentioned i think congress did not specifically define pretrial and i'm saying the pla meaning of pretrial would meet him as lawyers understand it would be something that occurs in a legal system this prior to the trial and it to have a trial at all you have to have a valid charging document and without that mr lynch and i see your court appointed thank you for taking the appointment and for ably representing your client this morning in cases submitted thank you both our next case united states versus london