fill actual prejudice from the delay could you help me with something on christmas i was thinking what if i were representing this fellow what would the prejudice be well what it would be is i can't get my client to roll over on somebody else and get a deal right so that was and is that accountable can you count that as prejudice you know i don't know the answer to what usually think of actual prejudices witnesses die and i know all this  but in real life he looks like one of the smaller players and he loses his chance to get a deal for has the right to fight for the government and so in any event he couldn't show actual prejudice but underdog  course dog it says take a real long passage of time creates a presumption of prejudice and strengthens it as you go along stick with with what the prejudice is for a moment so there is no authority for what i was thinking of is the real prejudice not being able to get a deal through testifying i don't know of any in the cases i know the defense lawyers have argued but you don't know if there's any authority one way or the other on whether it's good i don't run or no now another thing that occurred to me is real life prejudice but i don't know if it's countable i don't know what the authorities say is things change in five years life changes as somebody who was a dope dealer five years ago maybe a think it's far as the supreme court goes it's an open issue i have i have found some district court authorities on whether somebody is changing life circumstances could be counted it doesn't it doesn't help me a lot i believe in the dog  and one of the dog opinions may have been dissent it was left as an open issue but so what you've got in terms of authority is his ability to try as case is likely impaired by the extent of the worry and there's a presumption because it was such a long ago i i think the best i can give you as i've got atmospherics in the sense that there's some evidence that he was getting married having a kid getting credit you know holding a job but again it's not a decisive of authority i can present to the court what i'm saying to the court is that the delay here was long enough under god yet so did mr portals was entitle to a strengthened presumption under the i'll just focus on tell me how to strengthen presumption works and sort of an interesting concept a lot of times when we say we presume prejudice which we start from a presumption it doesn't talk about the strength of the presumption but it seems in this context you have sort of a sliding scale a presumption that it gets stronger as a gets  gets the time passes how does that work and an application on the district court house the district court supposed to take the strength of the presumption away and against the other factors it took me a while to figure that out from doggett but here's how i think it works we said that the district court made a mistake because it didn't do the two step process of the like the law now says i think it works as follows you see first of all why there's a presumption fully prejudicial delay is it a year  dog it is to then look at the overall delay and big maybe as a multiple of the initial trigger amount so for example here you have a fifty six month delay if the initial trigger amount is eight months strengthened by you know amount however and it's got to throw that into the mix of other factors in the united states against shell case the ninth circuit's case you had a slightly longer delay sixty nine months about than eight months it's a strong presumption courts should have applied it and i think you go forty one step further and you say and the burden should have been on the government to just prove the presumption agency does something they try to find him before they take down the wire and then they handed off to the marshals protocol says we don't go out into the field and look if we pass it off to the marshals that obviously they don't want to agency should have each other right so the is not supposed to be looking they have to clear it with the e p a counsel if they go out to the field so instead all you have for fifty five months is what follows nothing by the marshal service they can't prove it because their files were negligently destroyed the files may show that they got it under shell and it would be one factor that goes into the into the mix so third factor of thanks to mr quarrels i got that first factor i think should have gone to him because the district court didn't analyze the not long enough to trigger the strength and it's something and that's what dog it is all about like it says if the defendant is unaware and in this case we have mr parle being unaware the district court found he didn't know which is why we said wrong they never do the credit check that would have found them the is the evidence is clear on that at least as if they told me i'm still saying that stuff together isn't enough to believe some especially when you look at the second factor which is who's more to blame mr quarles didn't know about the indictment his contribution to the to the delay is guess what zero all i have to show is that the government's contribution is greater than zero and i got  here i do i really don't see how the district court found diligence but there's a lot of diligence here the diligence was the da did nothing in the field u s marshals did nothing in the field for fifty five months and doing some bit different case but as we as we have this shifting presumption is there are some point when we take into consideration that aspects of prejudice that might not rise to actual prejudice under a strict analysis for example we've talked about i think we should prejudice absent a presumption is that something that the district court can consider in this mix because this is this is i think in a different this case is different in my present that that's an area the answer to that i don't what i was suggesting is that and analytical terms perhaps as the stretch as the presumption strengthens the fact that you then take might otherwise be a somewhat weak actual prejudice argument that  entitle the district court to give that more significance or does it to put another way does that lower your threshold of rebutting the government's argument if you have a strong presumption of prejudice i think if the court wanted to formulate the test in that the loss of the chance to sniff somebody out or the changes in life that ordinarily happen in five years can be counted as pretty just the as the first part of your question you know i think there's no that i know of that points to whether or not the defendant lost an opportunity to cooperate either way no authority in favor or no authority against correct ok however i will note as to the other part of your question change in circumstances in the dog it case you notice that there was a change in circumstances for the defendant who had been charged with being in essence dealing drugs and then appoint his return to the united states basically six years after the indictment there were significant changes in his life he had a job he got a college degree he got married so i would say that those are factors where you were are you there to help them make positive changes however the court didn't consider that in going through it informed for they were so well your honor the addresses that they had were the addresses pertaining to as you indicated the pager in the cell phone number and those were the two addresses that they went to one of which was his sister's and yes and contacted his ex girlfriend when they asked her if they could speak to the ex girlfriend or if she would provide the contact information the sister refused the mother said she that she didn't know where he was but that she would pass on his information quarles then calls for somebody alleging to be quarles calls the d a that's evidence that the mother didn't pass on information that's correct your honor and that individual quarrels indicated that he would come down to the what you say that individuals  that there was any specific evidence that he knew of the indictment in fact he submitted just want to ration saying that he didn't but i'd like to go back to your other point your honor in terms of the two individuals in jail that information couldn't be followed up on one of the individuals gave a partial license plate number they couldn't do anything with that license plate number both of the individuals gave general information about maybe in san pavel he may be in las vegas he may be in san that what about the bankruptcy i mean he goes from files from two thousand and one according to his testimony a federal voluntary petition a bankruptcy where he says here's where i am notices served on the united states is subject to the jurisdiction of the united states trustee he tells everybody here i am it tells the united states what we make of that for you at the time you can say well they're left handed now with the right and was doing but in terms of counting it  i found that hard to ignore at the time i believe when he filed for bankruptcy he also filed for bankruptcy under the name martez reynolds so we have here paul's using two different names at different time fifty six months maybe twenty six months but long enough for price perception of prejudice to arise now if that is the case doesn't that and title the defendant to the just stay at the counsel table there's a presumption of prejudiced prejudices now before the court then it would seem to me the government after come forward and rebut that presumption and if it did so i suppose that would show there was no actual prejudice and that quarrels didn't make an actual showing the government argued that because it had been diligent there was no need to actually rebut the presumption but i believe that if we were to disagree with that conclusion the district court of the proper ar for this court that would show that the government could without the presumption first of all you have no actual showing clear idea of what the prejudice here's one if you go through what the various protections are you take out the first two areas of interest whether there was any anxiety or concern or oppressive pretrial pasta ration in terms of witnesses there were no witnesses or it seems that there were no witnesses that were unavailable or that memories faded in fact you had the co defendants in this case their case was still pending at the time that he was arrested actually was not final until until two thousand and five someone might be able to argue that those associated with the case would still have a memory to trial i keep being distracted by real life from the various theoretical categories and i was thinking how would you defend this guy number one option sniff somebody out number two try to find haven't any contact with anybody and that's in the excerpts of record one forty nine i don't know how the panel is going to weigh that but you should be aware that i was page number one forty nine so there is evidence on it the the agents did contact the mother did contact the sister asked about mr qualls didn't say he was indicted so that information at least was never conveyed finally i would say that if the court is inclined to to stand by what we believe is the proper formulation of the task underdog and i think that the court actually can remained with instructions to dismiss based on the fairly scanty evidence of the fact that the government did nothing in the field to look for the guy for fifty five with fifty six months they made a couple of phone calls to the marshals and when the information they got they didn't follow up with thank you thank you counsel united states versus reynolds this is submitted