i'm from el paso and i represent mr madrid as all appellate lawyers do i have laid out a road map of what i'd like to argue with full knowledge that i'm not going to be able to stick to it but i'll do as best i  can like to begin with the pretrial errors that i noted in my brief starting first and foremost with the two strongest ones which took two strongest arguments appellate now as mr madrid the speedy trial mr madrid moved that the case be dismissed on speedy trial grounds and acknowledging that there was no speedy trial tolling order during the life of the case at least before at least before the district judge enter his order of the district judge entered a retroactive order relying on a text order that he issued purporting to grant a government motion in that government motion the government did seek to toll the speedy trial clock but only to a docket call and in the western district of texas we have a local rule that says the relief that you're seeking must be laid out with particularity in your proposed order in its proposed order the government sought only the tolling of the speedy trial clock to the docket call their motion was filed on january thirty first the next docket call was on february third and on february third the case was called for docket but they're after nothing tolling the speedy trial clock and indeed the order on which the district court relies on which it relied retroactively it doesn't say anything about tolling the speedy trial clock all it says it's granting the government's motion to declare the case complex but as i laid out in my brief the declaring the case complex is but one of four factors that a court takes into consideration when determining whether to grant and ends of justice continuance for purposes of speedy trial there is not a single order in this entire case that were first to the speedy trial clock and in its appellant in its response the government does not dispute that the speedy trial  circuit law and the law across all of the circuits stands including supreme court law that i that i laid out in my brief a judge is allowed to after the fact retroactively explain why the court granted the continuance but in this case there was nothing to explain and as i laid out in the brief the retroactive found that it was a complex carries the two go hand hand in that's one of the four factors and i'm not disputing that the court explained the reason why a continuance in the first place could have been granted my point your honor is that there was no order to explain and the case law that i cite in the brief says specifically the order tolling the speedy trial clock must be entered before the speedy trial clock expires you can explain your reasons after you're just complaining because it was a text order well not that it was a relieved the text order doesn't say anything about tolling the speedy trial clock the text order merely says it's designating the case complex and if the district judge relied on the text order to say that's what i meant i meant to grant the government's motion to told the speedy trial clock the government only asked in its motion to told the speedy trial clock until the february third docket call so if the district judge intended to grant the relief the government was the grand jury transcripts in the fifth circuit a defendant can demonstrate if he is able to demonstrate that the material he needs is needed to avoid a possible injustice the need for disclosure is greater than the continued need for secrecy and the request is structured only to cover the material needed rule six allows the defendant to get the contents of what occurred before the grand jury i filed a motion to compel the disclosure of the grand jury transcripts and attached to my motion i included f b i reports and bank records showing that the statements contained in the original indictment contain material falsities in particular i was able to show that as to two material mail fraud counts indictment that the grand jury returned was that that check was mailed therefore it constitutes it constituted a mail fraud that was the basis of the two counts counts four and counting to the original indictment the government in its indictment also used that a stencil mailing the december twenty first two thousand and six mailing and its introduction on which every single count of the original indictment counts one through eleven relied the actual f b i reports to my motion showing that in both of those interviews jans of allah unequivocally told the f b i that that check was not mailed it was hand so there is no dispute that that could happen i even attach the bank records showing that the check was written on the same day it was deposited proving that there was no way it could have been maile that was one of the pieces that i sought to get the grand jury transcripts because i wanted to file a motion to dismiss based on grand jury perjury now are those materials misstatements of course in two ways number one you can't have a male a substantive ma fraud count without a mailing in the government knew at the time they returned the indictment though those weren't mailed because the f b i reports that the government gave to me show that but the second thing in the more important thing is those mail fraud counts were included in the introduction and they were included as substantive mail fraud counts because that is the only check in this entire case from ruben something garcia to jens of allah that fell within the limitations period exactly that in and you're out of that goes directly to my point it's rare that a defendant at the trial court level is able to establish such particularity that misstatements were made before the grand jury i attached the f reports even the district court itself in its order denying my motion to disclose stated in its order that the defendant a deuced evidence to support its contentions and the district court used the word troubling with respect to the allegation without one chaka the other charts were tonally they were not euro they preceded that was the last check the december twenty first check was the last check from rubin sunny garcia that's the only one that made it within the limitations track now the second thing that i was able to show was in the original indictment the government alleged that this bribery scheme was to quote unquote obtain the alleged recipient of the bribes told the f b i on three occasions that she never met with the defendants until after the contract was awarded well let's assume everything you said is right ok what's the remedy i mean the government arguably when you blew the whistle file got a superseding indictment and lemonade and all that stuff so this is a case of no harm no foul what's your best case for the proposition that what's happened here isn't already well it's not so much a case judge king as much as it is pointing out the error because the district or took that position no harm no foul because the government corrected the misrepresentations right into the original indictment my position is that the superseding indictment which contains the counts of conviction the only counts of conviction for mr madrid is barred by limitations and the only way it's saved is by the pendency of the original indictment so had those grand jury transcripts been disclosed to me and i filed a motion to dismiss based on grand jury perjury which for all intents and purposes is borne out then the superseding indictment is barred by mentation is because the case law says as i pointed out in my brief if a superseding indictments extended it is returned beyond limitations the only way it can survive is if the original indictment itself remains alive it was during a hearing and this is in the record it's there was a november fifteenth two thousand and twelve pretrial motions hearing where i specifically pointed out to the district court i said this is me it's on page twenty seven i said the first indictment is still life and the district court says no sir no it isn't and then i explained based on the will then i said i have fifth circuit case long as this case law is contained in my brief that says the original indictment remains even with the return of the superseding indictment and it remains pending i don't even know if it was ever dismissed but had i been able to file that motion to dismiss and the in the district court granted based on grand jury perjury the second superseding indictment is barred by limitations those who were not from rubin sunny garcia other mailings to include there were letters that were sent by a paso county sometime in two thousand and seven but as i argue those aren't in furtherance of any conspiracy in fact one of the mailings on which the government relied was a letter to the defendants telling them your contract has been rescinded but the government in its charging document use that as one of the mailings in furtherance of the conspiracy close look at my sufficiency arguments because in hundreds of pages of briefing it's tough on an oral argument to to explain it but the bottom line is this in this case every single count is soaked in this theory that ruben sonny allah who then paid money to the oh paso county judge to help with a contract the connection that they had to make is to my client mr madrid and there isn't any evidence that they had rubin sunny garcia the one who wrote the checks as their star witness sitting on the stand and it's telling they never asked him was there an agreement between you and mr madrid to bribe divorce brianna's that never came out and  cited every single snippet which the government joined as well to try every single snippet in which it could arguably be said that there was a connection but nothing shows nothing shows that mr madrid had knowledge that the payments he was making was ultimately going to the opacic county judge and judge dennis in answer your question what i'd really like is this case to be reversed and remanded for judgment of acquittal wrist and render judgment there were the mailings from the federal agency to judge concerning the deficiencies and the compliance with the contract terms and with the evaluation services of ok g e and there were also mailings that the defendant madrid and his coconspirators went to  prepared documents for her to the mail response to the federal agency about the deficiencies of performance on the contract for for the border issues counsel was talking about the court's text message and he claims that there was nothing to explain in the court's later order because the text message simply did not reference the speech but the text message entry which apparently is a common thing for district court judges to do specifically referenced the government's motion it said here and in other words the court didn't grant the government's motion about his argument about the government was an argument sixty reference they are complex  concerning counsel's argument about the government only asked for a continuance until the next doc you call and actually the order attached to the motion had a blank for the date  he in order to show an abuse of discretion he has to show compelling prejudice here and the district court set out in its order that there was no compelling prejudice here i don't know  the facts and circumstances behind the first indictment that was at the trial attorney but i know that mistakes happen and that doesn't necessarily constitute perjury there's  in his response ruth counsel said that i i had never responded or denied that it was perjury is and of course i do wholeheartedly mistakes were made the government went back and  stated that the superseding indictment removed those parts and so there was there was no prejudice here and it and i believe counsel referred to to misread his intentions in the original indictment harker it and i think there's nothing in the record to support that these were misrepresentations perhaps mistakes that were corrected and superseding indictment and did not cause any prejudice to the defendant here and one of the statute of limitations argument that sounded to me like he was alleging prejudice well at the december superseding indictment removed the mailings that he claimed were outside of the statute of limitations and the the of original indictment was still pending at the time of the superseding indictment superseding indictment and a fact relates back the statute of limitations purposes to the original indictment and i think that's where his argument is that the original indictment which had these what you might those those counts were part of the original indictment as a matter of adding new house which then i have no predicate right the original indictment was that i think it was seventeen or eighteen counts of the  is regarding the sufficiency of the evidence that accounts had begun to argue i think it's overwhelmingly clear that although he complained there was no direct evidence that the defendant was involved in these mailings like the bribery to judge those that then it's overwhelmingly clear from the facts of the case that the defendant who told him that they were going to go meet with chants of allah about getting money to the judge be on this that so in other words garcia was saying this was madrid's idea to meet with her and then they would meet with her and discuss explained to her that it had to be this way because she was afraid of the appearance of a conflict of interest so the defendant madrid was obviously involved in that as well as other things for example  when the federal agency sam's a complaint about the defendant garcia's company l k g not performing and not providing the services and not providing in kind services it was then she used that information to then send a response just say i'm so trying to keep this whole contract going and the payments to the defendant madrid who received you know the majority of the money that was stolen here  but apparently there were there it was quite a deal but he also was was prosecuted and again you know if he talks about the payments to judge us should not have come in to play during the trial against madrid and that's one of the issues that he had raised in his brief but obviously it was a continuing process county judge who had the authority give to provide him this federal program and was the person responsible i think they called her the principal investigator in then when she was no longer in office it was cocos who took over and it was cocos who told them that they needed money in order to earn his support and they all met at a restaurant and handed him loads of cash and it was just a continuing series of events for these defendants are conspiring to get the money from the federal program and to keep this whole project going and to earned the support of judge cosas the county judge to keep them on the contract in fact they were intending to renew the contract and keep this going for another year but that obviously fell through with it with the help of lisa to mako and others who  sort of blew the whistle on this deal  as it did at the trial court level and again on appeal the government uses the words overwhelmingly clear and all over to try to establish that madrid knew about the payments judges it's is this simple is there anything in the record that the court or any of the parties can point to to establish that madrid knew that money was going to judge briones and in its convenient to the words overwhelmingly clear most helpful to the defendant i'm glad you asked about that because i pointedly asked her at the trial do you remember discussing that payments were going to go to brianna's in front of madrid yes or no they had all those meetings but whatever testified to back our theory and zavala of course they had meetings judge briones was the principal investigator on the contract the fact that they had meetings doesn't mean that they were discussing bribes she was the one not statutorily but charged by the federal agency to run the contracting and madrid worked on it of course they had meetings they had to but the question is what is there tying knowledge of savalas payments to briones to madrid in there isn't any there just isn't your honor going back to your question about the grand jury perjury i understand the government's position but the issue is is is more than this simple if the original indictment and every single one of the counts is soaked by the perjury they took pains to say that every single count refers to rely on relies on and incorporates the introduction which included the perjury stuff if every single one of those counts is soaked in that and had i been given the grand jury transcripts and been afforded the opportunity to move to dismiss it then the original indictment is gone the superseding indictment was returned in original indictment son but if the original one day i don't want to but in order for you to prevail you've got to dismiss the entire indictment exactly well or for the count again every single one of those counts of conviction relies on the perjury and my contention is and when the court goes back and looks at the brief in the record that mail fraud that made those mainly were used to keep it within limitations now your honor i understand your question where there are other mailings of course the where and they were alleged but the record doesn't support a contention that those mainly were done in furtherance of the conspiracy so the only thing that they cannot throw an opposing counsel but the record breaker of it but but you have to look at the contents of the letter for example that letter from sam to delay briones is a letter from the federal agency to the principal investigator charged with overseeing the contract so they have to make they have to make some kind of argument to say if they want to see themselves on the mid haitians that that was in furtherance of the conspiracy but they don't even make that in their brief i mean that's not even an argument they make on appeal so my point judge kimi is that if if every single one of those counts is soaked in the perjury the original indictment goes away and the august tw twelve superseding indictment is barred by limitation i should have been afforded the opportunity to get that transcript and at least litigate that on behalf of mr madrid i don't think in i don't think any of the case law better shows that a defense counsel has a prime a face she good faith basis to allege a need for grand jury transcripts than this one i laid out with bank records f b i records and even the judge district judge himself indicated he was troubled by what was