[00:00:01] Speaker 03:
Mr. Alden.

[00:00:09] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:11] Speaker 03:
Holt Ortiz Alden on behalf of Mr. Diaz-Gonzalez.

[00:00:14] Speaker 03:
I would like to reserve two minutes, and I will watch my time.

[00:00:17] Speaker 03:
When the government wants to arrest someone, it does.

[00:00:21] Speaker 03:
But here, when prosecutors worried that repeated delays had violated Mr. Diaz-Gonzalez's speedy trial rights, they looked for cover rather than taking action.

[00:00:30] Speaker 03:
and the cover they found was never acceptable.

[00:00:32] Speaker 03:
COVID did not stop the government from notifying Mr. Diaz-Gonzalez of the indictment, and a county sheriff cannot refuse to comply with a federal writ.

[00:00:41] Speaker 03:
Even after the state case ended, when the government should have been on the highest alert to ensure that there were no further delays, it concedes that the prosecutors fell asleep at the wheel.

[00:00:53] Speaker 03:
Taking four years to prosecute someone whose location has been known the entire time is inexcusable.

[00:01:00] Speaker 03:
This court should reverse and order the indictment dismissed.

[00:01:03] Speaker 00:
Can you tell me your view about the length of delay that's attributable to the fault of the government?

[00:01:12] Speaker 00:
Let's not talk about whether it was intentional or negligence.

[00:01:16] Speaker 00:
There seems to be some dispute between you and the government and you and the district court about how long delay the delay attributable to the government is.

[00:01:26] Speaker 00:
What's your view?

[00:01:26] Speaker 03:
Yes, Your Honor.

[00:01:27] Speaker 03:
The total length of the delay as this court has repeatedly held is from indictment to trial.

[00:01:33] Speaker 03:
In this case, that delay is 49 months.

[00:01:35] Speaker 00:
Right.

[00:01:36] Speaker 00:
That's the measuring period, but the district court said, well, some of it was not attributable to the government because local officials wouldn't honor the writ or because there was a pandemic going on.

[00:01:52] Speaker 00:
So I'm trying to figure out whether those are things that might reduce the amount

[00:01:57] Speaker 03:
No, Your Honor, because the government hasn't justified those delays for either of those two periods.

[00:02:03] Speaker 03:
And so the only period that is even arguably, and our position is that the only period that was arguably caused by Mr. Diaz-Gonzalez is the three months between the initial trial date and the final trial date.

[00:02:15] Speaker 00:
Well, but it doesn't have to be, see, that's why I'm asking the question.

[00:02:18] Speaker 00:
It doesn't have to be caused by him.

[00:02:20] Speaker 00:
the government might have a good excuse.

[00:02:24] Speaker 00:
In this case, they went three times to a federal judge to get a writ to produce your client.

[00:02:30] Speaker 00:
And for some inexplicable reason, the local authorities wouldn't honor the first two writs.

[00:02:36] Speaker 00:
Is that the fault of the government?

[00:02:38] Speaker 03:
It is, Your Honor.

[00:02:39] Speaker 03:
This court has held in the Myers case that a state proceeding that's running concurrent is not on its own a justified delay.

[00:02:48] Speaker 03:
And so here, the government

[00:02:50] Speaker 03:
was negligent in providing the writ to the Santa Barbara County Sheriff's and in actually enforcing the writ.

[00:02:57] Speaker 03:
So when they initially knew that he had been arrested and was detained in September of 2021, it took them three months to actually get a writ and send it to the county sheriff's.

[00:03:10] Speaker 03:
At that point,

[00:03:12] Speaker 03:
They had sent it via email.

[00:03:13] Speaker 00:
At that point they ran into the bureaucracy of the of the county which said well you know you handed it to the wrong person and then the next time they handed it to someone and they said well it must go to someone else.

[00:03:25] Speaker 00:
I'm trying to figure out what is the government supposed to arrest the sheriff at that point or just keep going back with a new writ and saying please honor it.

[00:03:33] Speaker 03:
Your Honor, the government should have asked that they honor it.

[00:03:36] Speaker 03:
And here, when they finally got a response, nine months after sending emails to the wrong person at the county, they took no further action when the county said that Mr. Diaz-Gonzalez was not eligible for release.

[00:03:49] Speaker 01:
And so what specifically are you saying the government should have done at that point?

[00:03:54] Speaker 03:
They should have told the county sheriff's that this is a federal court order that they are required to comply with.

[00:04:03] Speaker 03:
Uh, and there's case law from this court and from the Supreme court explaining that, of course, a federal court order must be complied with by any state authorities.

[00:04:11] Speaker 03:
That's the supremacy clause.

[00:04:13] Speaker 03:
So had a prosecutor actually been involved

[00:04:17] Speaker 03:
And taking the simple step of contacting the sheriff's representation themselves, they would have cleared that up and been able to transfer him right away.

[00:04:29] Speaker 03:
There was no basis for the state to decline this writ.

[00:04:33] Speaker 04:
So the district court found that the government made reasonable efforts here.

[00:04:38] Speaker 04:
What standard of review do we apply to that finding?

[00:04:41] Speaker 03:
Yes, Your Honor.

[00:04:44] Speaker 03:
Our position is that the standard of review is de novo.

[00:04:46] Speaker 03:
as well.

[00:05:04] Speaker 04:
what would have happened if they had gone back to the right person of the county and what would the county have done?

[00:05:09] Speaker 04:
Surely we owe some deference to the district court's implicit assessment of those questions, don't we?

[00:05:19] Speaker 03:
Your Honor, as to historical facts, when the emails were sent, what the responses were, things like that, yes, those are reviewed for clear error.

[00:05:26] Speaker 03:
Our position here, though, is that whether the government was diligent throughout these time periods is reviewed de novo.

[00:05:33] Speaker 00:
But haven't we reviewed that precise question with deference to the district court?

[00:05:38] Speaker 00:
I understand you say mixed questions of law and fact are reviewed de novo, but in reviewing the precise question of diligence, don't we have cases that say we do that with deference?

[00:05:48] Speaker 03:
Yes, your honor.

[00:05:49] Speaker 03:
U.S.

[00:05:50] Speaker 00:
Bank, the Supreme Court case that we're citing to post-date those cases, but... But it's not a case about whether or not there was diligence in executing a warrant, for example.

[00:06:01] Speaker 00:
We've had speedy trial cases in which we've considered diligence and which we've said

[00:06:07] Speaker 00:
We do this with deference, and you think US Bank overruled those?

[00:06:10] Speaker 03:
Yes.

[00:06:11] Speaker 03:
To the extent that those are read as reviewing the negligence inquiry for clear error, yes.

[00:06:17] Speaker 03:
But regardless, even if it's reviewed for clear error, in this case, the district court did commit clear error.

[00:06:23] Speaker 00:
Can I ask you one question about your prejudice argument?

[00:06:27] Speaker 00:
I don't want to make fun of it, but I want to ask it this way.

[00:06:32] Speaker 00:
It seems to me your prejudice argument is that had he been arrested and tried immediately,

[00:06:36] Speaker 00:
he would have been in jail and couldn't have committed the second crime.

[00:06:40] Speaker 00:
Isn't that essentially the argument?

[00:06:42] Speaker 03:
No, Your Honor, and I have two points on that.

[00:06:43] Speaker 03:
The first is that because of the length of the delay that's attributed to the government, we don't need to show actual prejudice.

[00:06:49] Speaker 00:
I understand.

[00:06:49] Speaker 03:
Let's assume you have to.

[00:06:51] Speaker 03:
Here, the government, so there are two points.

[00:06:57] Speaker 00:
He committed another crime after this one.

[00:07:00] Speaker 00:
And you're saying, well, it wouldn't have been available for sentencing enhancement because why?

[00:07:07] Speaker 00:
He would have been convicted before this and in jail and unable to commit the crime?

[00:07:11] Speaker 00:
He would have pleaded guilty immediately?

[00:07:13] Speaker 00:
I'm having trouble understanding the temporal argument.

[00:07:15] Speaker 03:
This court has held that or explained that sentencing prejudice is cognizable.

[00:07:19] Speaker 00:
Sentencing prejudice is cognizable.

[00:07:21] Speaker 00:
I'm still trying to figure out why it was that this other crime would not have been available at his sentencing, even had it been much earlier, since it occurred within less than a year after the time that he was arrested or originally charged.

[00:07:38] Speaker 03:
It actually occurred approximately 18 months after.

[00:07:41] Speaker 00:
Sorry, less than two years.

[00:07:42] Speaker 00:
So what you're basically saying is he couldn't have committed this second crime within that 18 months and have it be available for sentencing because had he been arrested right away, he surely would have been incarcerated and not be able to commit the second crime?

[00:07:57] Speaker 03:
No, Your Honor.

[00:07:58] Speaker 03:
It impacted his sentence, but the government's delays also impacted his right to counsel.

[00:08:03] Speaker 03:
At any point prior to his actual conviction, which was in November of 2022, years after the initial indictment, at any point had they actually notified him of the charges, of the indictment, as this court required in Mendoza, had they actually taken the opportunity to enforce the writ as this court would have required in Myers for a concurrent case, he would have been appointed counsel.

[00:08:30] Speaker 00:
And he could have counsel would have said to him plead guilty right away because you're about to commit another crime and otherwise it will be used for sentencing enhancement council and understand that council could have brought him helped bring him over to federal court and address the federal court case first as So your argument is that the federal court case would have been addressed before he committed the second crime?

[00:08:52] Speaker 03:
Yes, or before he would have been convicted of that crime because that ultimately caused him to have a sentence that was probably years I know and I understand your argument

[00:09:01] Speaker 01:
Is your argument that he wouldn't have committed the state crime or that he just would not have been sentenced, pled guilty to it before his federal sentencing?

[00:09:12] Speaker 03:
Both, Your Honor.

[00:09:12] Speaker 03:
The government had 18 months to pick him up before that.

[00:09:16] Speaker 03:
After he was arrested on that case and he was presumed innocent of both charges, the government had another year and change to actually transfer him into federal custody and address the first case, which is the federal case first.

[00:09:31] Speaker 03:
To the extent I have additional time I'd like to reserve it.

[00:09:33] Speaker 04:
We took you under your rebuttal, but we'll give you two minutes.

[00:09:36] Speaker 04:
Thank you.

[00:09:46] Speaker 04:
Ms.

[00:09:46] Speaker 04:
Stimson.

[00:09:50] Speaker 02:
Good morning.

[00:09:51] Speaker 02:
May it please the court, Assistant United States Attorney Kelsey Stimson on behalf of the government.

[00:09:56] Speaker 02:
I'd like to start where my colleague left off on the issue of essentially prejudice due to sentencing, because I do think that is the most straightforward way to resolve the case, is the lack of prejudice here.

[00:10:08] Speaker 02:
Assuming prejudice to a defendant's sentence is cognizable, which our 28-J letter dipped into the 10th Circuit case saying that it

[00:10:18] Speaker 02:
might not be cognizable under the Speedy Trial right.

[00:10:22] Speaker 02:
Assuming it is cognizable, here there's no causal link between defendant's commission of a serious violent felony, assault with a deadly weapon, and the higher sentencing exposure he faced.

[00:10:36] Speaker 02:
Sorry, excuse me, between the delay and the higher sentencing exposure he faced.

[00:10:39] Speaker 00:
I assume you're right, just for a moment.

[00:10:43] Speaker 00:
Do we need to worry about actual prejudice if there's a presumption of prejudice?

[00:10:48] Speaker 02:
Yes and no, Your Honour.

[00:10:50] Speaker 00:
Give me both answers then.

[00:10:52] Speaker 02:
The Ninth Circuit's case law is a bit confusing on this point.

[00:10:57] Speaker 02:
A presumption of prejudice does begin to build when there is a showing that the government has been negligent for a period of time.

[00:11:04] Speaker 00:
So there could be a case, hypothetically, where... Well, let's assume this is that hypothetical case.

[00:11:09] Speaker 00:
Let's assume that the length was so long that under our case law we presume prejudice.

[00:11:15] Speaker 00:
Am I correct in thinking that under our case law you don't need actual prejudice then?

[00:11:20] Speaker 02:
Where the

[00:11:21] Speaker 02:
where the length of delay is so long that a very strong presumption of... Well, that's what I'm trying to figure out.

[00:11:28] Speaker 00:
Is it a rebuttable presumption of prejudice?

[00:11:32] Speaker 00:
Our cases seem to say at some point the delay is so long that we presume prejudice and we don't need to look for actual prejudice.

[00:11:40] Speaker 00:
Do you agree with that?

[00:11:41] Speaker 02:
Could I clarify, Your Honor?

[00:11:43] Speaker 00:
No.

[00:11:43] Speaker 00:
Tell me if you agree or don't agree.

[00:11:44] Speaker 00:
If you don't agree, tell me why.

[00:11:45] Speaker 02:
With your phrasing, no, I don't agree.

[00:11:48] Speaker 02:
The language used is that a presumption begins to build at the one-year-ish mark.

[00:11:54] Speaker 02:
But at some point, it passes an amount where it is now a presumption that alone justifies dismissal.

[00:12:00] Speaker 00:
OK, now you've fallen into my trap.

[00:12:02] Speaker 00:
So let me ask you, how long is the delay here?

[00:12:06] Speaker 00:
If it really is four years, as your friend says,

[00:12:11] Speaker 02:
That's pretty long.

[00:12:13] Speaker 02:
The delay that matters for triggering the presumption is the delay that's attributable to government negligence.

[00:12:19] Speaker 00:
OK, so tell me why not, I don't see any of this attributable to the other side and you don't contend that it is.

[00:12:26] Speaker 00:
So tell me why you could have arrested him on day one and you waited four years.

[00:12:35] Speaker 00:
Why isn't that all attributable to the government?

[00:12:38] Speaker 02:
I don't think it was clear error that the overall arrest efforts were reasonably diligent.

[00:12:43] Speaker 02:
In this case, statewide pandemic measures began two days after indictment.

[00:12:49] Speaker 02:
That obviously affected the district court operations because the arrest warrant and indictment weren't even filed on the docket for 10 days following.

[00:12:56] Speaker 00:
So take those 10 days off.

[00:12:58] Speaker 00:
We all know, because we were here at the time, you were trying people.

[00:13:02] Speaker 00:
and charging them in the central district of California.

[00:13:04] Speaker 00:
And then judges were continuing cases because they couldn't get a jury or there were some difficulties with counsel.

[00:13:12] Speaker 00:
But that's a trial delay.

[00:13:13] Speaker 00:
That's not an arrest delay.

[00:13:15] Speaker 00:
So I'm not sure the central district of California imposed on you any restraints in arresting, did they?

[00:13:21] Speaker 02:
Let me get to the heart of your question, which I think is how does COVID link up to the arrest effort delay?

[00:13:28] Speaker 02:
COVID's link to the arrest effort delay begins with that first instruction from the US Marshals that the COVID precautions the court was taking, specifically with respect to the movement of arrestees and detainees, because of course, arrestees have to make their initial appearance.

[00:13:44] Speaker 02:
from a holding cell.

[00:13:45] Speaker 02:
So they begin in a holding cell where they're booked by the marshals, they're fingerprinted, they're interviewed by the court, pretrial services, and then they appear in court for their detention hearing, initial appearance, and arraignment.

[00:13:56] Speaker 02:
That holding cell space was still under the quarantine measures that you see throughout the record.

[00:14:03] Speaker 02:
were being implemented in local and federal institution jail facilities.

[00:14:08] Speaker 02:
So that holding space became really compromised.

[00:14:11] Speaker 00:
Can I tell from this record how long that holding space was compromised?

[00:14:17] Speaker 02:
U.S.

[00:14:17] Speaker 02:
Marshal Gloria Hernandez speaks to a severe bed shortage, which is referring to that housing space.

[00:14:24] Speaker 00:
It's at a particular point in time though, and what I'm trying to figure out was what was the duration of that limitation of space.

[00:14:32] Speaker 02:
Her declaration says that that time was through the end of the year, so December 2020, and that in January 2021, things started to open up.

[00:14:41] Speaker 00:
Andy, remind me, the charges were filed?

[00:14:44] Speaker 00:
March.

[00:14:45] Speaker 00:
So you have nine months there that you think are not attributable to the government?

[00:14:50] Speaker 02:
Yes, Your Honor.

[00:14:51] Speaker 00:
Okay, so now move forward from there.

[00:14:53] Speaker 02:
From there, you see diligent arrest efforts by the government, multiple steps being taken, and I want to caveat there that a consistent trend in this court's case law in finding cases where the court has found a presumption of prejudice, justifying dismissal, are cases where the government has really done nothing, has almost effectively abandoned arrest efforts.

[00:15:15] Speaker 02:
Contrary, in comparison to that case,

[00:15:17] Speaker 02:
You have a case where there are multiple rounds of surveillance being done because it was a complicated arrest effort.

[00:15:22] Speaker 02:
This was a defendant that needed an SRT arrest, which is a high-risk arrest, given his criminal history of domestic violence and assault with a deadly weapon.

[00:15:30] Speaker 02:
And the high-risk

[00:15:33] Speaker 02:
Nature of that arrest required the multiple rounds of surveillance Pulling in an SRT team the SRT team needs to do its own surveillance to confirm the findings of the initial surveillance and ensure that the defendant's Schedule is the same and that all the risk factors are there and then but then what about the time that he was in state custody I mean you you you got you got a writ you sent it to the state I mean is it

[00:15:58] Speaker 02:
I guess first of all just a factual question is it a common Experience for your office that you send a writ to the state and they just say we would prefer not to In my experience your honor which granted is just as an a USA a single a USA When you have charges as serious and important to the state as attempted murder the state does try to prioritize those charges for its own resolution and

[00:16:26] Speaker 00:
They refuse to honor a writ for an appearance for somebody to be arraigned?

[00:16:33] Speaker 00:
Yes, that's... And what is the legal justification for that?

[00:16:39] Speaker 00:
If I were a district judge, I'd be mighty upset about that.

[00:16:43] Speaker 00:
I'm not sure their justification... But you apparently go along with it, and internally they say, okay, now we've papered the file.

[00:16:50] Speaker 02:
Well, to address a question embedded in your question, I think is, why does it matter?

[00:16:58] Speaker 02:
Because from the very beginning, the Barker analysis asks, who's responsible for this delay?

[00:17:03] Speaker 00:
Well, your friend says, and he's got something of a point, you had a valid federal writ, and you let the local authorities dance you around in circles for many months before they would honor it.

[00:17:19] Speaker 00:
Don't you have some obligation to go to them and say,

[00:17:22] Speaker 00:
It's a valid federal writ.

[00:17:24] Speaker 00:
I want him in the judge's court tomorrow to be arraigned, and you can have him back right after.

[00:17:29] Speaker 00:
We don't want to keep him.

[00:17:31] Speaker 00:
Doesn't the government have some obligation to do that?

[00:17:35] Speaker 02:
So after the period of time where some portion of the time that defendant was in state custody is due to the fact that he committed a crime under Barker, that's going to weigh against him.

[00:17:47] Speaker 02:
It wasn't the government's delay that caused him to commit a crime that put him in detention.

[00:17:51] Speaker 04:
Right, but that's not, but the delay isn't his being in state custody.

[00:17:56] Speaker 04:
The delay is you not getting him from state custody, even though you, as far as we can tell, had the legal means of doing so, because he would obtain a writ, right?

[00:18:09] Speaker 02:
So assuming at some point during the time that he's in state custody,

[00:18:13] Speaker 02:
And I will say, a lot of the time, state cases do resolve at the preliminary hearing stage.

[00:18:18] Speaker 02:
So I suspect, I wasn't the AUSA on the case at the time, but I suspect at the early, very beginning part of his state custody time, there was an anticipation that he would resolve it at the preliminary hearing stage.

[00:18:28] Speaker 01:
I think just the point, the question is, why didn't the government enforce the writ?

[00:18:40] Speaker 02:
I'm not sure how the government could have enforced the writ here.

[00:18:43] Speaker 02:
I could submit a 28-J letter looking into that, but I do think it is understandable that the state rejected it because of the severity of the offense.

[00:18:55] Speaker 00:
We've got this writ, and the state thinks they don't have to produce the guy.

[00:19:00] Speaker 00:
So bring the sheriff into court and tell him, hey, BS Corpus, produce the body.

[00:19:09] Speaker 00:
That's what we do all the time, isn't it?

[00:19:13] Speaker 02:
Well, I think another part of this question is, how does it interact with Myers?

[00:19:19] Speaker 02:
United States versus Myers.

[00:19:20] Speaker 02:
seems similar on its face, because you have parallel state and federal proceedings.

[00:19:24] Speaker 02:
And my colleague cites to it as the order from this court, or the instruction from this court, that the government should have compelled the state to hand over the defendant.

[00:19:33] Speaker 02:
But I don't see Myers as dissimilar, because in Myers,

[00:19:39] Speaker 02:
both the federal and state case relied on crimes from the same factual event.

[00:19:44] Speaker 02:
So there's a level of coordination going on between the federal and state governments where you can see that the federal government is acquiescing in allowing the state to continue its prosecution.

[00:19:55] Speaker 02:
And for that reason, the government was required to justify acquiescing in that delay.

[00:20:01] Speaker 02:
The federal government's offense is totally separate from the state offense.

[00:20:05] Speaker 02:
And the federal government did not acquiesce in that delay, but filed multiple writs following up on the writs trying to get the state to hand over the defendant.

[00:20:13] Speaker 02:
And it wasn't until it was clear it was futile because the state wasn't going to hand over Mr. Diaz-Gonzalez that we just monitored the case until we could rid him over.

[00:20:22] Speaker 04:
And during all this time, was the fact that he had been indicted public?

[00:20:27] Speaker 04:
I mean, if somebody had gone down to the courthouse and said, can I look at the Diaz Gonzalez case, would they have been able to see the indictment?

[00:20:35] Speaker 02:
Yes, Your Honor.

[00:20:36] Speaker 02:
And defendant did have counsel.

[00:20:38] Speaker 02:
Whether defendant searched to see if defendant had any other outstanding cases is not in the record.

[00:20:45] Speaker 01:
I want to go back to the earlier time period during the COVID pandemic era that

[00:20:52] Speaker 01:
I understand your argument to be the record shows that there were some efforts to arrest put the defendant under surveillance.

[00:21:02] Speaker 01:
In all fairness, the record also shows quite a bit of incompetence or dropping the ball.

[00:21:08] Speaker 01:
And so is your argument, like, as long as we're trying, even if we're just not doing the things we're supposed to do, sending over the warrant, responding to emails, like someone says, get confirmation, and then just nothing happens for months, that as long as there's sort of sporadic efforts, that's diligence.

[00:21:31] Speaker 02:
Well, no, Your Honor.

[00:21:33] Speaker 02:
I think every case needs to be viewed on its facts specifically.

[00:21:36] Speaker 02:
I don't think that there's a general rule that as long as the government is doing something, then it's enough.

[00:21:41] Speaker 02:
I do think that cases where this court has found a presumption of prejudice have tended to be cases where it's clear that the government just abandoned the arrest effort.

[00:21:50] Speaker 02:
So I don't think it's similar to those cases.

[00:21:54] Speaker 02:
I do recognize your honor's point that, particularly with respect to the period that the government concedes was negligent, the back end period of delay, that that period should weigh against the government.

[00:22:06] Speaker 02:
It doesn't stop this court from affirming the district court's finding of overall negligence.

[00:22:11] Speaker 02:
And I would refer this court to Alexander, where it did the same thing.

[00:22:15] Speaker 02:
found a small portion of time was in fact negligent, but still affirmed the overall diligence of those search efforts, affirmed the district court's finding of overall diligence.

[00:22:26] Speaker 02:
But the heart of your answer, Your Honor, is really that's why it's such a fact intensive question is because the district court is viewing the reasonableness of the entire portion of time within the context of how COVID was changing on a week to week basis.

[00:22:44] Speaker 02:
Unless your honors have any other further questions, I ask this court to affirm.

[00:22:57] Speaker 03:
Mr. Alden.

[00:22:58] Speaker 03:
Thank you.

[00:22:59] Speaker 03:
I have three additional points to make.

[00:23:00] Speaker 03:
I'm happy to answer any of the court's questions.

[00:23:02] Speaker 03:
First, assuming we're reviewing negligence for clear error,

[00:23:06] Speaker 03:
The district court's ruling was clear error because it was contrary to binding precedent.

[00:23:11] Speaker 03:
First, as to the COVID pandemic, this court's case Mendoza says that the government is required to either attempt to bring to trial or to notify someone of the indictment.

[00:23:21] Speaker 03:
Regardless of whether or not there was bed space, and we believe the record shows there was bed space at various times, the government was prosecuting 1326 cases throughout this period.

[00:23:30] Speaker 03:
But regardless,

[00:23:32] Speaker 03:
The government could have booked and released Mr. Diaz-Consoles.

[00:23:36] Speaker 03:
They could have issued him a summons because they knew where he lived.

[00:23:39] Speaker 03:
Or they could have just sent him a letter notifying him of the indictment.

[00:23:42] Speaker 03:
Anything like that would have been sufficient.

[00:23:44] Speaker 03:
Second, with respect to the later state case, the district court's findings on negligence were contrary to this court's decision in Myers.

[00:23:53] Speaker 03:
And the Myers case says that a concurrent state case does not alone justify delay.

[00:23:59] Speaker 00:
Difficulty with that is that Myers is slightly different because here they made Unsuccessful efforts to get your client produced with a red We're in Myers.

[00:24:13] Speaker 00:
They just said there's a state case going on.

[00:24:14] Speaker 00:
We'll just let it go Yes, and so It seems to me Myers doesn't really isn't really on point here

[00:24:23] Speaker 03:
Meyers says that there are these factors that the court should consider when determining whether a state case caused delay.

[00:24:29] Speaker 03:
Which case was first, whether the charges are related, and whether the government has shown administrative difficulties or safety concerns.

[00:24:37] Speaker 03:
Here, this case is dissimilar as the court noted because the government had the capacity to order him transferred, and they chose not to enforce it.

[00:24:47] Speaker 03:
So it's different from

[00:24:49] Speaker 03:
extradition case where we're working under circumstances where the government doesn't have authority just to go get someone and here they did.

[00:25:00] Speaker 01:
three, four years of the delay is attributable to the government's negligence.

[00:25:07] Speaker 01:
Do you have any casing under that?

[00:25:09] Speaker 01:
That's enough to completely absolve, relieve the defendant of any burden to show actual prejudice.

[00:25:15] Speaker 01:
In the cases I read where we've said, well, there's no presumption alone is enough, involve even substantially more delay than that.

[00:25:26] Speaker 03:
Yes, Your Honor.

[00:25:27] Speaker 03:
This court's case, McNeely, addressed and said that there was no need for actual prejudice.

[00:25:33] Speaker 01:
Well, McNeely also found quite a bit of actual prejudice.

[00:25:36] Speaker 03:
That was a 29-month delay.

[00:25:38] Speaker 03:
The Reynolds case, which is unpublished, held a 50-month delay, applied the presumption.

[00:25:42] Speaker 03:
And then other circuits have repeatedly held that lesser delays also include the presumption of prejudice.

[00:25:48] Speaker 01:
Well, there's a problem with it.

[00:25:49] Speaker 01:
terminology because there's the presumption that gets you to, you know, to the review and then there's the presumption that completely relieves the defendant of any prejudice, actual prejudice showing.

[00:26:00] Speaker 01:
So where you're saying all those cases, we just say there's no showing of actual prejudice required.

[00:26:05] Speaker 03:
So McNeely and Reynolds are both addressing the fourth factor.

[00:26:08] Speaker 03:
The other circuit cases that we've cited also are addressing the fourth factor.

[00:26:12] Speaker 03:
Those are Ferreira from the sixth circuit, 35 months.

[00:26:16] Speaker 03:
Arenas Luna from the eighth circuit, 36 months.

[00:26:19] Speaker 03:
Ingram from the 11th circuit, two years post indictment and about two years pre-indictment.

[00:26:25] Speaker 03:
And then Battis from the third circuit, 35 months.

[00:26:28] Speaker 03:
And so those all establish that the presumption would apply here.

[00:26:33] Speaker 03:
Thank you very much.

[00:26:35] Speaker 04:
Thank both counsel for their arguments and the case is submitted.