motion other than to be in the court placing it on the court started twenty days later on december two thousand and fourteen but i would not there's no action taken on that motion and counsel filed a speedy trial motion that his competence at that point right well our position is that the november th proceeding took care of that but i mean that might be your position just supports the position i mean he didn't rule i mean he voiced some skepticism but he before but the court didn't give away your hearing he told them to file papers for you have to make an application you understand or more for another another motion how can you possibly tell us how can you possibly come here and say that the for a nd evaluator informs that still open motion don't you think well in this case what what judge patterson explicitly didn't apply the competency exclusion from the statute if you're going to a seventy seven the appendix it's of the so in the last page the prosecutor explicitly asked the court to use that exclusion and the court says no the court just makes it two weeks because counsel has to make a motion the court doesn't ask for briefing and come up and see the government doesn't have to respond there's no briefing schedule and once counsel files a motion the government doesn't respond there's no briefing schedule for the government's respon additional information inform her decision that there needed to be another copy determination and as well as the fact that the m c c determination just seemed to be based on the fact that he was spouting phrases from the w a nd evaluation on which the court could then make a finding about competence and judge patterson i think clearly was skeptical but he said go ahead make your request in writing and she did and eventually judge press inquiry and the court was satisfied with its inquiry if counsel wanted something more he quite counsel to make a motion the court didn't sort of briefing schedule it didn't ask to hear from the government arguments on competency it judge got consent but there wasn't you know there wasn't sufficient reason for the under the interest of justice it wouldn't matter that's the case like it is then your case not only did the defendant there actually ask for ninety one they continu sort of beside the point in his articles that are going to counsel didn't ask for precancer seem to be basically not consenting because his client wouldn't talk to him right i won't talk to him but when client was in court he was always objecting to everybody to counsel's representation to everything but this is that their case shows that an improper use of justice exclusion requires that the indictment be dismissed even if there has been a jury trial here and there were multiple by counsel for adjournments in light of the fact that the client wouldn't speak to him right there had been yeah there had been efforts by my counsel to do so but there were no efforts at this time there were no efforts in tw good morning may it please the court my name is nathan ran and i represent the government in this case and i also represent the government at trial here there was no speedy trial act violation in the prosecution of mr k le st time period during which the competency evaluations were pending was automatically and properly excluded pursuant to section three thousand one hundred and sixty one dollars h one a as mentioned that's an automatic exclusion that operates as soon as the competency proceedings were patterson did not make any competency determination in november th teen there was no judge who made a competency determination until january of two thousand and sixteen it's a long time wouldn't you say that's correct your honor for the length of time to do anything like that well the st time that we got something like that was with the defendant speedy trial motion which happened in february of two thousand and fifteen at which point judge prescott properly concluded that time was automatically excluded subsection h one a granted the defense's motion for a nd competency evaluation subsequently there was a defense request for a rd competency evaluation by a different set of evaluators all of those evaluations having come back with the  correctly there's nothing in the record to regarding exactly you know how that transfer occurred and whether there was a delay associated with that but the important point for purposes of this appeal is that competency proceedings well they're pending exclude time under the speedy trial act and as this court recognizing the vasquez even if somebody dropped a ball that would make the process go faster that's correct and there is not a reasonable us inquiry there are other provisions of the speedy tr act that require either a fixed timeframe or a reasonable this inquiry and this court recognizing vasquez that each one a isn't like that and it makes sense for it to not be like that because competency pretty proceedings by their nature are factually  a lot of effort and work by the parties in the court in making what is a difficult determination and so congress and acting the speedy trial act has created an automatic exclusion that simply applies when competency pretty proceedings are initiated i mean i'm not not subject to the constitution limitless the statute does not put a limit on the time it takes for the papers that were filed in december so i personally was not but yes the government receive them yes be are a policy would be and always is to attempt to facilitate prompt resolution of issues like this and there are obviously constitutional limitations i understand the constitution which is i try to figure out what your what your office policy is now since you telling us that you don't have any responsibilities to do it because because of all the period is told so i need to know what the u s attorney's office is policy is what you served with this you have no responsibility whatsoever to get that but this this is not good difficult clients are difficult defendants can treat difficult situation i'm not picking on you personally but when you stand in front of me you say i don't have any and the administration just as you said to keep an eye on i take it that you did or you did certainly your honor i would we don't disagree that there is an obligation to attempt to facilitate the prompt disposition of competency proceedings i time the time he was arraigned was four years two months that's correct your honor but the bulk of that time is a period of time during which i think all parties agree there was a factually intensive series of competency evaluations ongoing when the issue did resurface defense counsel asked for additional competency proceedings and he way right that's correct that was in september of tw seventeen shortly before the trial was scheduled to commence the defense said can we reopen the competency proceedings based on our continued inability to effectively communicate with our client and i think that the district court was well within its discretion at that point in time especially being mindful of the extent of the delay up to that point in time in saying i've observed mr calix many times in this court he had his behavior has not changed since the point in time at which all letter without a lot of explanation references an understanding that the court was no longer available for a march trial date and then the government takes this sort of  request of saying well we're going to ask for more time because defense counsel needs it even though the defense counsels on asking for so st of all what's the reference to the courts unavailable before march trial date your honor st off by way of background reestablish communications and also to allow the defense to communicate with us fine that's that's six months before the trial is going to be so where you have two thousand and seventeen my understanding is the court reached out to the parties you know try a trial is imminent at that continue to exist now there's there's no question if you read that letter the court was also attempting to manage its schedule and there were other matters that the court had to attend to but it was basically checking in with the parties to sas what is the status of this case and it's informed by the government based on the government's communications with defense counsel at that point in time that the circumstances haven't changed since october when all parties agreed to a further adjournment was warranted and so the court and it's this us from the top points out there can never be a who funded by that reasoning right now and i don't think that's what the district court concluded but i do think that it is it was within its discretion to say i'm going to give the defense a further chance to attempt to establish communications with mr calix in order to preserve continuity of counsel and unable to transfer activity of counsel have to do that well one other issue that had surfaced in some of these proceedings was that the federal defender's office had suggested to the court that perhaps a different attorney should be appointed for m calix mr killick never made that request himself despite being repeatedly given the opportunity to do so at multiple hearings and so the court continued to have a point the federal defenders to represent but in connection with that in order to allow them to effectively represent him and prepare for trial it would have been better i think we can all agree if they had been able to communicate with him and the court was well within its discretion in february two thousand and seventeen in saying i understand circumstances haven't changed from when we previously all agreed more time was warranted so i'm going to order a little bit more time around five more months to an l out of the defense to attempt to facilitate better communications with their client now the defense doesn't come in and say no your honor we're trial right seventy days is what we're talking about you don't think five months is a long time your honor i agree that it was a period of time that was beyond the seven it is called for in a speedy trial like the question here is did the district court exceed its discretion in deciding that given the fact that the parties had requested adjournments repeatedly leading up to this point in time it should given the fact that the scrims circumstances hadn't changed and without any objection from defense counsel or suggestion from defense counsel either that the defense was trial ready or that the defense didn't anticipate any likelihood of a change in circumstances that it would give an additional period of time and the district court determined that the period of time from march t exceed its discretion in making a continuance on these facts had it been five years or something like that i think it would have a different record but i don't think that in light of all of the circumstances especially that the appearance leading up to that february th team order when the court was apprised by both parties that additional time was warranted giving the defense an additional opportunity one additional opportunity by continuing the trial until september had the defense told the court that the defense was trial ready and the defense didn't think that additional time was needed the court would have had to deal with that record and it would've been a different record and perhaps the court could have moved around its schedule and made it self trial available on that date or perhaps the case could have been assigned to another district judge who was available but there is nothing like that from the letter the letter also says of the court was available in june you could have gone sooner in terms of the court that's correct your honor but the court has a certain amount of discretion in deciding what an appropriate amount of time is the previous jordan mintz had been a similar length of time there was one in june and one october and so it seemed my only part of the defense counsel schedules and also the need to provide an adequate amount of time to see if the defense can reestablish communications with the defendant and in this case that reestablishing of communications didn't happen but  certainly the delay was in part a result of court the court's availability defense counsel's availability and the difficulties in communicating with there were other reasons as well and you know we cite a case from the st circuit in our brief saying that when there are scheduling issues that coincide with other reasons that under the speedy trial act are appropriate for the entry of a continuance that it's appropriate for the court to take those factors into account in determining the what the trial date should be thank you here in the bottle counsel on this record did not say he wasn't ready counsel was ready to try the case on march th and was available in april and may even if you just look at the government's letter this argument about continuity of counsel it just is hard to understand since if calyx never asked for another lawyer then there was no reason to believe that he somehow would have that there was some issue about him going to essence he had in three years what he hadn't done in the three years is communicating with counsel and counsel who apparently the record in the case had just given up his counsel wasn't asking for any more continuances for the opportunity to have m principle reason for not consenting was that he couldn't get his client to talk to him right it wasn't that there's a speedy trial problem and therefore we don't consent to this it's that my client want to talk to me and so i can't consent for him eight was at the trial that the judge excluded him and it was at the trial that mr brown finally said we need another company's evaluation his behavior was very bizarre so bizarre there was banging on the in the cell the jury panel heard him because the court repeatedly said everybody in the courtroom could hear what was going on in the in the so he was being held after being removed from the court he probably had some serious breakdown that perhaps eleven months was taking up why the period it took to have examinations and to get reports then mr calyx was just a person who sat in c c for four years apparently decouple city to the point where he couldn't even attend trial where the jury never got to see him all he did was hear him and was just a prejudicial environment and so for these reasons we asked if the court reversed a conviction and dismissed the charges thank you