i'm prepared on all the issues that were briefed but i would like to focus with the court's permission on the argument regarding the constitutional right to speedy trial and a violation of that right in this particular case this is a case your honour's where the individual las vegas his e mails and letters and conversation with the government officials went beyond the pale in many instances and were outright vile he was charged and at beginning a trial after the substitution of several counsel an order was entered to have him evaluated for competency and then some one thousand four hundred and twenty six days later his trial began this pre trial delay is roughly a five year period and the issue before the court this morning is whether that delay between indictment and trial actually violates not the statutory provision for speedy trial i think that was waived but for the constitutional right to speedy trial the waiver issue your honour's arises because under united states versus lamb case decided in this circuit some fifteen years ago it is necessary for the defense counsel to raise a motion to dismiss to preserve the statutory right to speedy trial that was not done in this case and while i think the statutory right was violated and i have briefed it i am persuaded that on a proper application of the existing rules that right does not appear to have been properly preserve the constitutional right however was preserved the gentleman not ten days before trial asserted on the record his insistence on his speedy trial rights so we're left actually with a fairly clean record and a fairly clean set of persuasive decisions on this issue the first one is barker versus window and barca gives this court a four step analysis and the first one is the length of time the length of time here is not record breaking i've seen delays upwards of eight years but this is a five year delay and it goes well beyond the standard delays that this court is accustomed to seeing will represent that the hundred forty  one thousand four hundred twenty six date length meets the first barker test the second test under barker is the reason for the delay in some instances like the docket case before the supreme court the delay was due to abject governmental ineptitude mr doggett was arraigned and then they simply lost an interrupt so the problem i have with this the trial argument on behalf of your client is that so much of this time was used up briefed represented appeal in this case the second one gallon water to justice o'connor ruled and i think persuasively that the cell requirement applied that this gentleman had a right to be tried when he was competent i don't have an hundred twenty six days i might my math may be off but whatever yes you're including the time when he was incompetent yes i am because under the conscious ned if you take out that segment the parties are in dispute under the statute i calculate that we were fifty days over the seventy days allowed by the statute the united states has a now many days and your best case under the statute you said you knowledge the notion that part of the delay is given over that's the second factor to his competency problems so give yours so in your client the best shot what that time period the shortest time period that you would concede and that's what's that left over of the reasons for the delay i understand and that is the second test under barker for i know it is i want to give you give me the number forty three days pre trial before the competency ruling was entered and then there was some fat seventy or some days after he was declared competent by the letter before he was found judicially competent by court order and that maybe the problem facing the court on this decision is whether the fact of competency which is language here on or from the statute not from the constitution whether the fact of competency in the statute is the fact is determined by a physician or many months later after unexplained delays in getting him transported in such weather those fifty extra days before he was brought to spokane and before the court was able to get hearings arranged those at together exceed ninety days reason when that delay is a excessive length and it prejudices his ability to defend and here the defense is a defense to this sentence i won't argue that he was prejudiced in his defense on guilt i don't think there's a case for that i don't think the record shows he was prejudiced at the guilt phase but he was clearly prejudiced at sentencing how do i come to that conclusion because his sentence under the guideline was eighteen to twenty two months he spent fifteen months twice the presumed length of the maximum he could have received in determining his conferences and so his arguments on sentencing which is part of his defense it doesn't go to guilt but it is part of his defense his defense on sentencing was a vis aerated this gentleman did more than twice the time in pre trial confinement in a federal institution in a psychiatric ward to be made competent he was there twice as long as he would have been had he been convicted and try and sentenced under the normal guideline range however when we look at prejudice problem that's where we really are i have to look at three things don't i yes that's correct i look at the old press of pretrial incarceration and in that instance i think you're look talking about that because how long was the incarcerated what was is likely incarceration what sentence did he get how did he go i think that's where you are that's your argument second is matter minimizing his idea and concern of the cubed on the minimize and anxiety and concern of the accused it seems to me that the cues there at least from the record was worried about being convicted of this crime that it was frankly we were trying to decide the whole system was trying to make sure that he was not convicted of a crime he should have been convicted of and if he wasn't and able to help with his defense or able to help put on testimony which would keep him from being convicted of that crime that would have been a tough thing so i say when you look at minimizing zion and concern of the accused that leans against your client you have been heard on that yes that's why it's violated out there for if you're not i think that's a subjective test first of all it's not an objective test whether the defendant hadn't had anxiety or concern over his several year delay in getting to trial if it is a subjective test or if it's a reasonable this test either way we look at the record this gentleman fought being in voluntarily medicated for three years yes but he did not fight i mean was the whole thing was he was did not want to be convicted of this particular matter i don't think you can say that none of this nothing in the record suggests that other then he said i'm not guilty he frankly wanted to be arrested be arrested but whether he wanted to be guilty or not that's quite a different matter because you look at his testimony his testimony would not suggest he's guilty i mean i think it would suggest that there are things which could make him guilty and if we were looking at sufficiency of the evidence some of his testimony would have got there but that's why i worried about that particular factor your honor i'm puzzled that the defendant's anxiety and concern test could be resolved against him if his anxiety and his concern was to be found guilty and incarcerated of course he was anxious to not be frightful people but he was held for all those years without a trial arguing the whole time that he had a right to his bodily integrity to not be medicated against his will he was overruled by took honor and i understand that but this gentleman fighting for his ability to refuse like a traffic medication the anxiety this man suffered was tremendous well and then let's look at the third factor right limit the possibility that the defense may be impaired yes now i don't think his trial defense was impaired well it wasn't when we got to the end but if he were not competent and he was unable to help which he thereafter was ruled competent than able to help unable to do it seemed to me that that certainly goes against your client not when we get to the sentencing aspect you know we're talking about prejudice here we're talking about the three factors i look at for the prejudice it will press of pretrial incarceration you may have a point minimize anxiety and concern of the accused we've at least been able to discuss limit the possibility that the defense may be impaired he hasn't got a shot may have a just not sure after the trial c and jury determined he was guilty the case is not over we do not in any law that i know of separate trial from punishment when we're looking at the prejudice to a defendant for example under the rules regarding  referring to go to limit the possibility the defense may be impaired yes he could not defend or even address sentencing because he was already more than twice the limit of the sentencing guidelines here honestly just a minute just  he did and he asked that the sentence that he had would be time served and then supervisor least that's exactly what he got we're talking about limiting the possibility that his defense would be impaired if he is incompetent as the defense is being presented i understand did impair his ability to defend sentence that's my question for the court what he and i think frankly got exactly what he wanted when he got the time served and supervisor lisa your honor at that point he couldn't ask for less than time served and let's be realistic he's already done fifteen months on an eighteen month sentence but but here's where your argument would take us if we've got somebody charged with a crime and we can more or less calculate what the guidelines sense is likely to be let's say eighteen months and he is clearly not competent and he's held in order to medicate to have them sudden he's passed with a sense would be and we don't have any education of guilt or innocence at some point it cannot be lawful in my view to hold someone beyond any proportionate time that they would face on a finding of guilt because they're incompetent you know what if he was looking at a ten day sentence can we hold them two years for a ten day sentence can we hold him for years for a month sentence he had i think half and i think there are arguments are good but they all address oppressive pre crowland cards aeration and i have three different elements to then look at in determining this and frankly it seems to me that the cases who look at all three of the elements when they get down to see limit the possibility the defense may be impaired it goes to the highest level because we do not want to try a defendant who cannot be tried because he doesn't know what's going on and he can't help with his own defense do we want to punish the defendant more than twice the guideline range because he is incompetent to be try appreciate your question but again you're going with the oppressive pretrial incarceration that's one of the elements that a at your best argument and i appreciate your want to go back to your best all the time but let me but let's look at what my element that i'm worried about is the impairment of his defense at all then let me address what a defense lawyer does a sentencing we before the court with our sentencing memoranda one from the government one from the defendant and then a neutral statement from the probation office all free admitted that there was no way to apply the guidelines sentence to this gentleman it was gone he'd already done twice the amount that's prejudice now i understand that the court sees the flavor of my argument affecting pretrial oppression but the pretrial oppression doesn't go to his sentence it goes the fact that he had to eat off metal trays the couldn't make a phone call that wasn't listened in by others that he was in voluntarily medicated under lawful rules but the that is all press of in a pretrial setting unless setting that aside your honor because i'm moving to sentencing part of the constitutional guarantee under baker vs window barkha vs window and it sentencing what could anyone do your honor i think the so much get the minimum guidelines sentence of eighteen months and what's the judge going to look and say about that that's the realistic part and i appreciate that the court sees the overlap i don't disagree with you but i don't think that the court has taken proper recognition of what occurs sentencing we can't undo the extra years he did in jail they can't be undone he was incarcerated pretrial subjected to lawful involuntary medication for years what's the limit on this are we going to do this to someone for what length of time is there no standard according your honor to your argument there would be no standard here's here's my question is too much right and i'm very sympathetic to the argument and if we take it really to an extreme that use the you did which is not impossible that you know the maximum sentence was going to be you know ten days or you know get up to months and there's not a chorus aeration for determination of competence here we're trying to compensate for a number of years at some point that's just ridiculous are we at that point so what are we supposed to do well to set aside the conviction we can't give the time back you know we can't but he was unable to defend against the incarceration and able to defend i'm not i don't stand that but we can't give him the time back yes we can under parker versus when go we can give him the well we can undo the cons the conviction but that's the see that's my question because i'm not sure he's improperly convicted and that you yourself say well no there's no i don't have a defense against a conviction he was properly tried he was competent the evidence is there and all pretty much overwhelming so what are we supposed to do about it i think i see the question here's what i'm asking for it the next time something like this occurs there's there is no case law in this country on th a judge looking for guidance a trial court judge looking for guidance would not even know that necessarily this might be a factor going into a case you never think it's going to last five years or four years whatever it was the courts need some guidance at some point and there isn't any what i'm asking for here mr gilman water will never get his time back and he's competent and he recognizes he's in a better position in many respects but he also knows this took too long when he was ruled competent by the doctors it was a month before the letter got to the spokane it was a month before the judge scheduled a hearing that hearing was continued twice it ends up being an extraordinarily period that we're looking at here is approximately five years it it's actually is forty seven months from the from the month that he was indicted which was august of two thousand eleven until his trial in june of two thousand and fifteen say that again it was forty seven months ok so so forty seven months so we're talking not quite four years ye p the period of time is forty seven months and of that forty seven months thirty six of those months were taken up with the defendant's appeals so there was no way to move forward with the case and those appeals went up to the defendant petitioning the supreme court so those appeals began in december of two thousand and eleven right after he was declared incompetent and they continued in till december of two thousand and fourteen so no treatment had started yet he had been determined to be incompetent treatment had been ordered that all of that all of those remedies were on appeal and it wasn't until i believe it was december believe it was december twentieth of two thousand and fourteen that the supreme court order was issued stating that this research area was denied treatment then starts and he's been restored to competency yes there were delays in communicating that to the court and i don't believe that those delays ultimately affect the statutory speedy trial right but that's a separate argument which apparently is been w maximum guideline for the crime was twenty four months so a fifty month wait in custody to get trial isn't really prejudicial city segment he disagrees counseled disagrees with the calculation but at least i understood him to say lease there was ninety and as well as the travel and hearing scheduling delays post and a return to competency declaration so in that segment i understand the thrust of his argument is that he's inherently prejudice regardless of the competency part because by the time he's getting into court for sentencing he's already put in more time in prison than the guideline sentence  at council seems to be asking for an opinion that says and those kind of circumstances post release pose a declaration of competency there should have been absolute speed apparently to get the defendant into court so schedule and the the transport or whatever then you know governments of a lot right from the get go there's a constitutional violation  what the council was saying but that's how it's coming across to me and i'm curious what your argument then is as to the of how much time i believe was excludable center and that's in my brief i've tried to put together take up i understand so and that was triggered by the comp the court's conclusion of competency now the length of time that the person's going to spend in sentencing that that is not necessarily a decision or for consideration that's bound by the guidelines because the guidelines are advisory were not given that direction from the supreme court moreover in the context of competency in order to in as part of the process of the district court ordering the defendant to be medicated which takes some time the court one of the requirements is the court consider the extent of the delay so that's sort of built into the process where the court is upfront affirmatively considering what how is delay going to impact this case so if you have a case where a defendant facing what for whatever reason ten days in jail the the balance of the argument would weigh in favor of the defendant that we're not going to proceed with a cell hearing on this case and and the government the government's going to have to proceed with some type of civil commitment if that's available otherwise are simply no remedy available for the government so the cell hearing itself is a very important hearing that has lots of procedural protections and that was addressed in gallon water two  one of those considerations was what is the length of the delaying what is and what is it in relation to the possible sentences justice o'connor look at the maximum possible penalties as her guide and  window the when the court talks about the impairment on the defendant from the de lay it says that the most serious of these is the last which is that the defendant's defense will be impaired and i think what the supreme court's looking at there that is whether or not to defend it it's going to be capable or impaired in defending himself on the charge to end the supreme court noted that that was the most important of those factors when it comes to the overall fourth factor of preventing oppressive pretrial incarceration so and the defense has conceded that really had no impact on the defendant's ability to  proceed effectively at trial so you know in this case the majority of the delay was caused by the defendant's pursuit of various appeals during a period of time that he wasn't competent and then the remainder on each side of that each edge of that was but was was from the defendant either the fact that he was incompetent or the continuing fact that he was incompetent in the treatment that he do i do with that i don't think it's a question of holding it against him he had the right to pursue that but there are consequences for that and one of the consequences is to lay well if this is a case where there has been a kind of wrath i'm not making myself clear holding against him may not be the right way to say but you're making an argument saying well you know he brought this upon himself because he brought all these appeals that's what took all the time and had he simply allowed himself to be medicated we wouldn't be in the situation well he brought this upon himself while he was incompetent that's correct but there's but but the big the case cannot proceed that the point is for regardless of the the reason whether the government filed an appeal or the defendant the case simply can't proceed while it's on and i hear that so it's not a question of trying to blame anyone for that it's just a question of how do you consider it how do you how do you you know not just actually get asked and what is the reason and that's again that goes back to the believe it's the second factor what is the reason for the delay there is no evidence in the record is there that he did not want to appeal oh no he on though incompetent i mean the prank part of it is his appeals were because didn't want to be self medicated now whether he was incompetent to make that decision was never addressed by anybody below but he would be healed based on that did he not and if yes and he never said i don't agree with that but even though it was incompetent to say whether you agreed or not there was nothing that said he disagreed with appealing because he didn't want to be so medicated no he was very vocal about wanting to appeal and he filed several pro se fields on his own that ultimately we as well this is a case in which the defendant never challenged the government's detention order and never happened in this case so no mistakenly i'm not isn't that the government's position here it's just i'm trying to figure out we got sort of wheels within wheels as we try to figure out what we deal with someone who is either incompetent or at least not declared to have been competent who is resisting things that might make him competent and then we get a delay that substantially longer than the likely sentence which turns out actually to be longer than the actual sounds that nothing seems to be working the way an orderly system should work but i'm not sure there's any cure for it i don't think the cure for it given the procedural protections involved in the cell you say well though i don't feel that way and the only remedy that seems to be available at this point is to set aside the conviction which i think the other side has conceded is a valid conviction and they're trying to say that sounds was too long well yeah it was but it's been served is he still has subject supervised release i don't know the answer that he has how much longer i don't recall the ok and i don't see i'm going to motion to relieve him some from supervised release i don't recall the period on that but well it was three years now in any event your honors i think under the standards that the court is required to follow the delays in this case don't they thank you thank you very much and i we did use of daschle over time what do we put a minute on the clock quick points his lawyer won the first appeal that had to do with whether he had a right to be at his competency hearing second point i want to make is that the thirty six months spent on appeals is a statutory exemption but i don't see that it is categorically ever considered an exemption under the constitutional rule it is an exemption categorically under the statute one reason i'm just saying the statu it actually a rogue it's his rights in this very odd setting the statute hurts him and actually makes his constitutional rights weaker lastly the doctor certification is found in e c r three three five that was on march twenty third the trial began on june twenty ninth more than ninety days later that found it three three one that took too long on a statutory basis that took too long but on a constitutional basis i think it adds to this gentleman's anxiety and it's certainly prejudiced his right to those ninety days because now they're gone they cannot be returned to but really under u s b romero which we decided in august of two thousand and sixteen it wasn't even two long really i agree with that and lastly weight could be a little too long as it's a constitutional argument correct not a statutory or my last point the remedy your honor deterrence and i think both sides for