post hoc justification was absolutely crystal clear from the record beyond a reasonable doubt is that the purpose for dismissing the o s c was to send mr daniel to state court and that is a completely purpose under rule thirty two point one and under thirty five eighty three i i would refer the court to reporters try the excerpt of record at page eighty two where the transcript says the judge said all i see is to trail the state court case and also refer the court to the district court dismissal order where the court again made it absolutely clear that the case is being dismissed without prejudice because quote defendant has pending state kate and finally it's clear from what the government said when we appeared in front of judge hop where they said their primary reason for asking for the case to be dismissed without prejudice w state court and that that excerpt of record eighty four the government said that their primary reason was to spend just a court to face the state court charges secondarily the government said there's also this issue of the warrant not being in compliance with progress in mind because it wasn't sworn and that's a red herring because for two reasons first as is common practice in the southern district of california what they do is issue as they did in the and warranted manipulation of the system was that the court to just snip the case for the purpose of sending him to speak court and then reissued warrants garrett clearly says that there's only one purpose for continuing to earth fiction beyond the term of supervisor lease and in this case there were two terms a supervisor at least two five year terms and they had at most two days left on did in the case was dismissed without prejudice in order to keep your stiction after sending him to state court to face other to face the court allegations so that was completely improper in the face because in this case there were also federal allegations in the order instead of complying with rule thirty two point one and holding a hearing within a reasonable amount of time the district court instead decided to dismiss the allegation without prejudice even though i asked that it be with pre in an attempt to circumvent rule thirty three point one and also clearly in violation of thirty five eighty three i said that the court can only extend its jurisdiction for purposes of educating the now is it your position or what is it made a difference in your view is the only allegation of a violation of the conditions of supervised release was the state crime of the word you mentioned something here to the effect that there were also allegations of violations of other terms of federal supervised release does that make any difference to you it would have made a difference would not because if it does i just want to ask you then it would be your view that it that the there's the u s district court ought not when confronted with a petition to revoke supervised release based on the commission of a state crime but the the district court can't continue that matter until after the jute occasion the underlying state of the court's actions because here we're looking at whether or not the district court abuse that discretion and what it did i guess that's what i'm getting at would be unreasonable for this is pretty serious he was charged with attempted murder in state court right now would it be reasonable for the district court if that were let's say that were the only alleged violation and there weren't any other issues there'd been an affidavit supporting the petition to revoke if the district court took the position that that's a pretty major crime and ought to be tried in state court or result in surely supervised release chart the only one nation supervised release was commission of a state crime going with that assumption it doesn't change the outcome although it goes into whether or not what the court it was reasonable but the issue here the court made absolutely clear that thirty five eighty three i the purpose the sole purpose of extending jurisdiction beyond the period of supervised release i says refers to the federal adjudication of the defendant's supervised release violation thirty five eighty three expand the jurisdiction of federal court only to the period of time reasonably necessary to educate the pending the state court times are more serious than the federal claims and so it might sound logical to send the case the state court to be adjudicated there's but there's flaws in that as well because we're talking about a court trial and the possibility of a secret trial where the government have to prove beyond a reasonable doubt that mr daniel attempted to murder someone and with all of the deadly weapon and the other charges compared to only having to prove only by proponents of the evidence that the allegations are true or just that one of the allegations were true because they're all the same grade in the district court so they'd be hearing that would have been required in the district court would have been shorter than the argument we have here today the the u s government could have called a witness to testify and there would have been over in probably a half hour so you don't think it's necessary that the underlying crime those charges and again garrett at page four fifty says that the holding in garrett reflects the belief that the purpose of thirty five eighty three i again extending federal jurisdiction beyond the period of to provide relief correct on january  was actually physically sent to the secret custody but the they had two days in which to get to the new warrants which they did i believe on the nineteenth so the very next day he may have still review the without prejudice order just missing the petition and so and generally that is the role when one party moves to do to sniff the case without prejudice and the other party says that it should be lacks jurisdiction and that's what the supervised release cases say is that the court must have a hearing within a reasonable amount of time and that when there isn't a hearing within a reasonable amount of time five years in this in the state court and what the federal government trying to do is hold on to him and so they can take a look at a court and decide whether they think he's got enough time to court and then once he's done with his his his five cigar custody he'll have to come back to federal court face the exact same charges that he already pled guilty to in state court so that they can give him consecutive time to that state court on even though what they were supposed the case is over and the fact that the government is trying to continue the jurisdiction of the district court beyond its expiration that long ago expired is  their primary reason was to send the state court the district court agreed that's what they did and then they did this amendment to just add a little box that says under penalty of perjury which they could have done in court right then and there  morning honors michael glasser for the united states in the law there are many things that aren't clear but one thing that does seem to be abundantly clear is what a final judgment means in a criminal case and the supreme court has told us that specifically thing in par we the final judgment in a criminal case means sentence the sentence is the judgment can't be more clear than that there is no final judgment in this case counsel refers to a number of cases civil and nature including the farmer case which was a hay vs matter civil in nature before a different court the farmer one involved in arizona it appears the death penalty case which and this was a time when there were many delays and in death penalty cases through petitions a federal court was before i think a definite came into effect and finally after the third petition was the state's objection to it was granted without prejudice the state said enough is enough we can't get an execution date we're going to bring it to the ninth circuit and see if they can resolve the issues and ninth circuit assumed jurisdiction but again that was a civil case it was not a criminal case and in a criminal case the supreme court tells us clearly that the final judgment is the sense that  yes there was and there were actually two o ses filed because mr daniel had two cases similar cases they were both rocco came cases from a number of years before he received sentences of one hundred fifty one minds to be served concurrently with five years of supervised release he was alleged to be in violation of his supervised release for a number of things that were a total of five violations the first for all involved him consecutive three years for the use of a firearm so he's currently serving a five year state sentence for the first four violations involve the gun activity the fifth violation involved his failure to surrender one force an authority says directed by the probation officer at it turns out he fled the jurisdiction and he went to las vegas he was arrested in las vegas on the federal warrant there were both federal and state warrants outstanding for him he was brought back to he was arrested the end of not november in two thousand and four he was brought to san diego the very beginning of december two thousand and why i think the second he made his first appearance there was one or two brief continuances i believe requested by the defense just to figure out what was going on and then there was a request made for a contested evidentiary hearing which was set for january eighteenth of two thousand  at that time the government was me move the court for a dismissal without prejudice of both of the ofcs on the grounds that counsel's correct one this probably should be handled first in the state court these are the serious violations are all state violations and as a matter of fact the defendant receives better rights in the state court in that he has a right to trial by jury proof beyond a reasonable doubt whereas the defense could have stood up and said if you have your honor there's a little problem here is charging document is incorrect move to dismiss court would have had to dismiss it he would have been off of supervised release and we would have been out so we had to do then he was no longer needed in federal custody the state executed its warrant and literally took him across the street to stay on the court no there were no state representatives there at all  judge miller is tied up in something right now and has agreed to transfer our motion to you for resolution and she ruled that our bennett our motion dismissing without prejudice and counsel said he'd like it with prejudice was given leave i think to file something a little bit later as i recall and the court denied that motion as well kate the old with c then ended at that time violations warrants were also issued but not executed at that time so then contrary to what has been said by mr gale's counsel it would be your view that sometime down the road subsequent to mr daniels conviction speak or you could bring a proceeding even though this is long after his supervisor lease would otherwise have expired and put him back into custody for filing supervised release you mean your view is that surely that must be viewed as proper and that's permissible in this particular case because the currently pending o s c were issued by the court authorized by the court while the defendant was on supervised release the court retain jurisdiction even though supervised release that it would be reasonable to exercise the jurisdiction for five six years later under garrett it is reasonable and totally legal to do so and i would also note though that whil garrett says the court does not have to bring the defendant back garrett does permit the court to do that and we do have as a practical matter cases where the district court decides it will exercise its jurisdiction while the person you the government wants to have its cake and eat it too it wanted to send the case over to state court but i want to retain jurisdiction beyond the time when it should have adjudicated the matter it was a simple matter that could have been adjudicated in front of judge chops but wasn't  as the government has said it was a contested hearing that was set for january eighteenth instead of going forward they dismissed without prejudice the government has has said that you need a final judgment for an appeal in a criminal case