your honor may please the court counsel system federal public defender for defendant appellant derren what or this case is about korean diamant delay an important defense witness committed suicide two years after mr woodard's initial arrest and a year before the indictment was filed in this case and the court correctly found that mr woodard was actually prejudiced the only issue on appeal is the judge's a legal  the district court when he was talking about technically yes your honor there was one point in time where the district court said hey why don't we talk about what this rule generally means that judge said mr w essentially said mr woodard's posited this reason for delay was in fact something that a bit conceded by the government throughout that the delay was in order to secure mr woodard's cooperation the judge said hey if this is proven is this sufficient and the government said no that won't be sufficient this has to be essentially what the court or the th circuit in foxon calls bad faith that ad has to be specifically intended to cause prejudice at trial the district court said i agree with you that's the only the government could delay because they know holding charges over someone's head can interfere with them getting security clearance interfere with their ability to get funding for their company to change their immigration status and that wouldn't be permitted so we have  of law that no matter what it was that mr woodard proved it was going to be insufficient as a matter of law on the nd prong of the due process violation but there's a lot of information in the record so that we know that remanded in this case for a new evidence here hearing would not be a waste of time the government specifically in their response to their st motion and said hey a substantial portion that's the government's words a substantial portion of this delay was in order to try to get mr ward to cooperate they've walked that back a little bit but mr ward has also then proffered additional information saying not only did they try to do this at the beginning but they came back to me it came back to me with a federal agent two years later  intent as it is regards to the strike i mean if you look back on where the whole concept of pre and dykeman delay started we're looking at the supreme court in marion yes and there the court very clearly ties the interest in not having excessive preened i meant delay to the right to a fair trial and to and to me at least that suggests that the concern was that even where you fall within the statute of limitations which the court says is the normal buffer that you can have an unfair disadvantage imposed on the defendant at trial because of the print item and delay and it definitely seems to be tried tied to his right to a fair trial during this proceeding there's nothing about trying to convince him to be in the to be a foreman that's tied to his right to fair trial and your honor the prejudice in this case is tied to the fair trial and i think that's all the court was talking about in marion and with vasco so essentially this is a burden shifting thing and say usually government you're ok to wait until the statute of limitations but if you do this for some interest that's harassment or to gain a tactical advantage then you're taking upon yourself the risk that the passage of time will then prejudice the defendant at trial even if that's not your specific intent i think if your honor looks at the series of cases that includes law vasco justice marshall was very clear to say that they weren't setting limitations he included i think it's footnote nineteen that references a whole bunch of different reasons that trials can get  that included holding the club over the defendant's head which is what we're arguing is what happened in this case what do they have to hold the club over the defendant's head with the intent to interfere with this right to a fair trial it be unintentional it just we just took too long to try and convince him to be an informant and your honor i don't think it's about we two we took too long but this is what we were doing this was our priority the government has the right to decide what cases to initiate when to initiate them but they also set priorities and in this situation they said our priority here is to try to pressure mr woodard to cooperate even though he's not doing it but that's what our priority is and they do take upon themselves  government delayed the filing to try to get a longer state sentence and they promised they weren't going to file to try to get a longer states and so that's clearly something that separated from the tactical advantage at the trial itself talking about what does it mean to have required in ten he's required he's just saying that there's no question that it has to be something more than negligence so would you agree that the st of the ruling on the at the st hearing on the on this motion to dismiss with was would not have been prejudicial and your honor we're not challenging the st rolling so yes or let's go to the nd three and so the nd hearing on page is seventeen  is the nd hearing he says that there was no prejudice and you're not and so that's not all there would have been a barrier to the nd to the ruling on but then he goes back and says that that there was a failure to show that it was more than ordinary negligence on page eighty two so the rd hearing like the st hearing you relies on the fact that it was just negligence right i disagree your honor and here's why is that the court at the nd hearing which again was i don't know if it was minutes or hours before the rd hearing it was the same day while they were reading to impanel jury the district court negligence with regard to the trial which that's all the evidence showed but it was it was it was a problem and it's not harmless error for a number of reasons one this is a constitutional issue this is certainly this evidence having to do with the reason for delay because he'd already been told as a matter of law you can prove anything you want but you can't win so because they got the court had made one factual determination against him and one legal determination against him  went and was able to present the evidence to overcome that factual determination that's that's all he needed to do to then be able to appeal this decision that was made at the nd at the nd hearing again it was the only time in all three hearings that the district court considered what does this mean what does it mean for an intentional tactical advantage the court never took that back never said ok but even if i accept that this could be a reason that i'm finding as a factual matter he doesn't do any of those things he makes this one legal ruling he then follows his own of legal ruling that's the only thing that we can the only way that we can read this record it took away mister there was no nd objection your honor that's right but he certainly preserved mr woodard in his what i think he titled his supplemental motion proffered this reason he said this is the reason for the delay and that's enough i should win and then the court said well is that enough government said no the court said ok i agree with the government it's not enough we don't require an additional objection after that when it mr woodard is the one who would squarely presented that issue to court and it was that you do have to show he he or she argues that the defendant does have to show that there was a tactical advantage in this trial right and you dispute in you say that that's wrong and then that the prosecutor says for example that you know it would be sufficient if there was a technical if there was a great indictment delay this that is initiated that is could perform in order to get advantage in this case and then the judge says i am reading the case law consistent with that is the whole argument with regard to what the pronoun that it could be mean two  and not the nd sentence no your honor that's not the argument i'm making what the government is proposing here isn't an example simply an example it's it's that they're balancing it's the outer boundaries so the government is saying if you read the case law the only thing that could refer to is gaining a tactility advantage at the trial for which the charges have been delayed so that's the government saying that's the outer boundary and then gives an example that falls within that outer boundary so delaying because it's hoping that some defense witnesses might die or become available or their memories become more foggy that's an example that falls within those outer boundaries i think that that is referring to that whole conversation but i also think it's clear that neither the general description nor the specific example is the outer boundary and again i have referred this court to foxman the th circuit case they do a really good job in that case the judge had simply neglected to make a finding on intentionality and that the court set out guidelines and basically says yes what the government's talking about here is something we call bad faith and st sure that's not ok and also clearly to attain a tactical advantage that trial generally is not ok but that it's broader than that and justice marshall really it seems from vasco wanted to leave it to the district courts in the st instance to be ruling on these these are factual questions and the district court should have an opportunity to see the evidence on this issue and have the correct legal rule when it makes its determination and if i may reserve the balance of my time  it please the court thomas duncan for the united states the district court found six different times at three different hearings that mr woodard had failed to show that the government intentionally or purposely delayed indicting free of those times the district court made a factual finding that the record showed at most ordinary negligence on the part of the government in bringing charges mr woodard has not and cannot show that that factual finding or those legal conclusions were clearly erroneous as to the factual finding or an abuse of discretion as to the rulings on intentionality and purposefulness additionally when the district court raised what it called an interesting factual question as to tactical advantage the district court did not purport to and did not announce a legal standard and judge bacharach i want to refer to a question that you asked you're right that the judge did not indicate which part of the government's argument it was agreeing with when he said i'm reading the case law consistent with that and it's also important to remember that immediately after that discussion which didn't involve any request for argument on behalf of the defendant or any attempt to be heard by the defendant the court said i'm finding that you haven't showed intentionality or purposefulness in short that it was more than ordinary government negligence and the court specifically on  page directly after that conversation about what the case law shows are what's consistent with the case law the courts that you have to show intentionality and purposefulness with regard to some tactical advantage and so it's clear in various ways that the court was not announcing a legal ruling and it's clear that the court was considering all the evidence that the defendant had to offer on whether there was any intentionality and purposefulness that's the government have a position on whether the tactical advantage as be tactical advantage in the case that's being tried yes as we stated in our brief it is our position that the tactical advantage must be tied to the prosecution at hand although the court didn't reach that issue in this case because  the court didn't have to reach that issue in this case because under the exact legal theory that mr woodard presents in his briefs to this court he presented that exact legal theory to the district court and the district court found you have shown no more than ordinary government negligence and additionally i wanted to touch on mr woodard's argument that he preserves asking for essentially for on bank review of this court legal interpretation of marion and love vasco as mr woodard acknowledges this panel cannot overturn panel precedent from this court in its interpretations of marion and love ask over the years but even if this court were to go on bonk and take up that issue this court should not overturn its prior interpretation of mary and look at asco because this court's prior interpretation of marian in love asco is correct it's consistent with the plain language of mary and it's consistent with the spirit of mary and all of asco as they talk about the limited role that due process has to play in this process and it's consistent with what the supreme court actually did in love vasco it's important to note that in love vasco there was some evidence of prejudice on the record two defense witnesses had died there was some evidence of improper actions by the government in delaying the th circuit had found that the government's actions were unjustified unnecessary and unreasonable the court in love asco did not overturn those findings or disagree with those findings and if the chordal of asco had been intending to apply a balancing test between the reasons for the delay and the prejudice to the defendant the court could have remanded the case to the th circuit with instructions that the district court conduct the balancing test instead the court just reversed and said it was improper for the district court to have dismissed that is a good indication in addition to the plain language of those cases that there was no balancing test intended that the two pronged approach that this circuit and a majority of circuits have taken on pre indictment delay is deciding who to charge in investigating a crime that it already has evidence of and that's important for several reasons you know it's not a crime that they already have avenue it's trying to pressure mr wo to be an informant so they can get evidence to prosecute a crime d c that is being significant no your honor and st of all i want to correct something that appellant's counsel said the government did not concede at any point that the delay was because the government was trying to sign up mr woodard as a cooperator waiting for three years because the government is hoping that someone will cooperate is insane not to mention anything about implausible for two important reasons number one the information becomes less and less interesting after a few months or even a few weeks and number two because as the district court stated at the beginning of the st hearing the principal argument that mr wood or was introducing was that he was being loaded into a sense that he would not be prosecuted in this case in other words the more time that went the less and less he was thinking he would go to trial less and less that you think you're going to go to trial the less likely you are to feel pressured to cooperate and mr woodard did not introduce any evidence at any of the hearings that the government  actually contacted him after march nd two thousand and fifteen the date of the arrest in this case about cooperating in this case now initially it's true the government stated in its initial briefing adopting the argument of the defendant officers gave mr woodward their phone number and said if you want to cooperate give us a call and he never called them back and if you wanted to know whether the charges were still being considered against him he could have called that number that they gave him there was no contact  that at doesn't seem very plausible to me you give your card to someone who's at risk of federal felony charges any say hey if we don't contact you contact us to get this thing moving along i mean it seems like the natural reaction would be keep your ad down and i think that's right and i think that's why the judge got it right at the st hearing when he interpreted mr woodard's argument as not being that he felt more and more pressure as time went on to cooperate but the q felt load into a false sense of security because he hadn't heard of this thing in three years and assumed that these charges were going to go away now of course marion in the vasco both articulate the fact that the principal guard against overly still criminal charges is the statute of limitations and love vasco articulated that there are important considerations that the government has to be allowed to bring to bear when it's investigating  there's even a simple drug transaction that can turn into a much bigger investigation and it proceeds often in the following way a defendant sells one gram of crack cocaine to another person the government contacts a cooperator sees if the cooperator can buy cocaine from that defendant then the government tries to get the cooperator to give the defendant a phone number so they can get a pen register on that phone and after they get a pen register early examine those calls  twenty three wire and the cases proceed in that manner very often and as that investigation is proceeding on the defendant and on other defendants the government's case is getting stronger so a tactical advantage over the defendant must mean something different from simply an advantage must mean something different from simply the government is continuing to investigate and trying to make its case stronger if there were no other questions then the government  gained by trying to pressure someone to cooperate when you have no speedy trial clock hanging over them when you have no over yourself and you have no attorney assigned to represent them is a tactical advantage you can make an agreement with that person that  forcible there's no evidence it exists it can be done in vague terms so that even if there were evidence it would be unenforceable the government is providing this court with hypothetical factual scenarios and what really needs to happen is we need to go back to the district