good morning if it may please the court my name is frank de gaulle ski and i represent taiwan stevenson we are here today for a bail review my client mr stevenson has been in custody for approximately seventeen months and ten days awaiting trial the case before the court is been recently indicted by the prosecution i wanted to disclose that to the court on a nine  some of the arguments that i make relative to the indictment may not be plausible however my concern with the government and bring the indictment now is that there will be further delays in the case they argue that my client possessed twenty five grams or less of marijuana and so they'll be more litigation relative to this case right now there's a cocaine possession charge too isn't there the there a charge for that but i don't believe any cocaine was found in his apartment though it's my understanding through the discovery that i've reviewed that no cocaine was found the caps i had noted are possession of cocaine base with intent to distribute possession of marijuana with intent to distribute maintaining a drug involved premises possession of firearms for and drug trafficking and possession of an unregistered short barreled shotgun that's a new indictment is that correct yes that's correct and the facts that i understand them to be is that there was a search warrant conducted and i reviewed all of the prior discovery also the complaint and that there was marijuana found but those are you're correct judge those are the  counts before the court but what my concern is and we've had this in the western district and this court has decided these issues before him took on the although there was a longer period of detention is that this delay should be attributable to the government when it comes to the issue of bail because the case itself is almost two years old it began in june of two thousand and seventeen and now they'll be likely a new scheduling order in place there still haven't been any hearings conducted my client has been like to go no he has been sent for a competency evaluation and that was ordered by magistrate judge roemer in february now we're halfway through may and he hasn't been at the last couple court appearances because of the fact that that he's been transported through the marshals so my my concern here is is significant because let's say you scheduling orders put in place there's been no evidentiary hearing so it could be three years before we have a trial on this matter so what i'm asking the court to do i know there's been a new indictment but to consider that indictment in the context of this case being two years old is to release mr stevenson it's an unusual procedural history in this case and that your client pled guilty december he  was december two thousand and seventeen and didn't move to withdraw his guilty plea until august two thousand and eighteen yes he he pled guilty he had david adelman had represented him prior to me taking on the allowed the government allowed my client to withdraw his plea but even then the government could have indicted the case back in december when they when he was permitted to grand jury maybe in january or december so those are delays that i attribute to the government because if he's permitted to withdraw his plea which he was then why not indict it right then and   the concern here is my client has an i q of about thirty five the so there are some cognitive issues relative to him understanding where there was a knowing voluntary intelligent waiver but yes there was an allocution and i think the judge are kara's basis for allowing him to vacate the plea was the plain language of the information big because it's a specific content crime and there was nothing in there indicating that he knew that the barrel in question was more than eighteen inches so there was no issue concerning his cognitive abilities concerning his ability to we at that time i do not think so but i believe that mr adelman and he's  mr adelman retained dr survive to have my client evaluated relative to that was an issue i believe that was raised before the district court after to allow him to vacate the plea but i don't think it was raised by by his lenahan i represent united states and with that western just sort of new york but the u s attorney's office i was recently admitted to nd circuit it's a privilege to be here and thank you for having me when this court looks at the underlying record the record that judge roemer the magistrate considered the record that judge or care the district court considered is left with the only conclusion that this defendant must be detained pretrial when you look at the factors as set forth in title eighteen united states would be there is in the ninety two g does not apply here we're not under we looked at it from what he pled guilty to under the domestic violence maybe maybe continuously fails to appear in court when required he violates his conditions of release continuously he has eight arrests while he has been on bail for previous offenses he also has a history of mental illness and this was addressed initially when he was brought to court and judge mccarthy originally ordered a condition that he was to go through his mental health health treatment and his counseling and of course he didn't he failed to comply with those that condition he failed to make his appointments he failed to take his medication as required he has a tenuous history of his employment he abuses narcotics so when you look at the history of this defendant and you look in the middle of the night in niagara falls in an aggressive manner as if he were about to engage in a shootout and this is captured on video where he's ducking behind cars a couple days later a surveillance camera from inside of his apartment building catches because he's on video with these guns he gives a statement where he admits possessing quickly or things like you to proceed now i'm sorry your honor the cli will things proceed now i'm glad you brought that up because it's not going to the scheduling order is in place the return of the indictment is not going to change the procedural posture of what what is the scheduling order what does it provide we have the defense has filed motions the government has filed a response brief the judge roemer has issued a hearing for thursday for judge romer to determine whether or not that fun is competent or not and at that time i believe the arraignment will happen he should be back in the west which is sort of new york at this point i see my time's about to run up based on all of the just how any of the circumstances your honour's georgia kara was cracked in determining that this defendant needs to be detained for trial and we asked this court to uphold that determination thank you thank you for the record my client does not i believe does not have a felony record that's why i was in charge and that way it's been convicted of a couple misdemeanors as far as the nine millimeter goes it was found to be in operable that's why i was not charged is not doesn't work so that's he has not been previously not been charged with i believe so but my understanding is when looking at the of the court should consider the weight of evidence and i look at what this circuit decided or nia has to consider the length of the tension i do disagree with the government i think that we do have a hearing scheduled but because there's a new legal issues i'm going to have to file the motions because there's issues that i didn't have to l delayed presenting the case to the grand jury and also prejudices my client i also disagree with the government was that the government requested your client to undergo a mental evaluation which we agreed so the government did request that but it was something was done by stipulation so that that time can be attributed to government i don't think so because we agree so it can't be but the delays in the marshals transporting him and how long this is taken i know judge romer has expressed some concerns the magistrate is concerned that's taking so long because we've had several court appearances and he's my client has not been there and so we keep delaying these proceedings but so from my perspective i think our argument is stronger because there's going to be more delays because you have to file you motions on these new issues pertaining to drugs and the judge has not considered them before so they'll be more litigation had the government five this indictment earlier that my client would be a severely prejudiced as he is right now how many lawyers has your client had during the course of these proceedings  seventy three i'm the rd one was mr come a for adam and then myself on the rd attorney that's been on the case so there's an argument to be made that some of the delays could be attributable to him i would allow that but i'm looking at this from the time frame in which he was when the plea was vacated the government has delayed this case by failing to present to a grand jury does a very weak case i disagree with the government found from every there's only discovered i have if they found less than twenty five grams of marijuana which that could easily be for personal use is not a significant amount of marijuana certainly the weight of the case is something that  this almost no room at the bottom of the slate i mean your client has a substantial and colorful history of not only offenses but the most violence mental health issues and failure to appear i mean it seems to be that he's a fairly poor applicant for bail those are i mean obviously the court has to consider that but if there are delays in their charitable to the government he still presumed innocent on these charges he could have been the worst person in the world but if the government delays the case and denies him a speedy trial and he's prejudiced by those delays then the court should should release him while he has been in jail he has completed a couple classes at the northeastern ohio correctional facility a put that in my papers to forty hour classes relative to drugs and also consequences and he does have a record but they are misdemeanors i would point that out no no felonies so i went to the search take place that underlies the current charges i believe it was in june of two thousand and seventeen there was a search warrant executed by niagara falls police department and they had confiscated the two guns in question and the i don't know how much because there's no lab report but under twenty five grams of marijuana i was described in a small plastic bag so it's almost two years old is the case that has been pending and from our perspective the government should have indicted it earlier and my client's been prejudiced that's the last case on the calendar this morning to be argued