[00:00:01] Speaker 04:
So now I'll take our second oral case of the day, 23-3171, US versus Tyree Peppers.

[00:00:19] Speaker 04:
Snickles when you're ready.

[00:00:33] Speaker 03:
Good morning, Your Honors.

[00:00:34] Speaker 03:
My name is Paige Nichols, and I represent Mr. Tyree Peppers, the appellant.

[00:00:39] Speaker 03:
May it please the court?

[00:00:41] Speaker 03:
When the government found out that Mr. Tyree Peppers had been arrested on state charges while he was still on his supervised release term, the government got a warrant, a violation warrant, seeking to revoke his supervision.

[00:00:58] Speaker 03:
But otherwise,

[00:00:59] Speaker 03:
The government just sat on its hands and, quote, waited to see what happened in the state case so they wouldn't have to, quote, go through a whole other process at a revocation hearing.

[00:01:11] Speaker 03:
That's how the prosecutor explained the delay to the district court at page 35 in volume 3 of the Record on Appeal.

[00:01:20] Speaker 03:
So the parties now agree that Mr. Tyree Pepper's supervision term expired during that nearly three years he sat in jail

[00:01:28] Speaker 03:
blocks from the federal courthouse waiting for his state acquittal.

[00:01:33] Speaker 03:
The only question here is whether that three-year wait was reasonably necessary for his revocation proceedings.

[00:01:41] Speaker 04:
Is there a subjective component to that?

[00:01:43] Speaker 04:
You seem to be basing this on what the prosecutor was saying.

[00:01:48] Speaker 04:
Don't we take a reasonable man approach, reasonable person approach to that?

[00:01:54] Speaker 03:
Well, we're talking about a jurisdictional requirement here.

[00:01:58] Speaker 03:
And it is the burden under this court's authority.

[00:02:01] Speaker 03:
It's the burden of the party asserting jurisdiction to establish it.

[00:02:06] Speaker 03:
And I'm just sharing with them.

[00:02:07] Speaker 04:
Why isn't it reasonable to say there's a very significant murder prosecution going on?

[00:02:14] Speaker 04:
If we try to address that issue in the revocation proceeding, we could screw up the state case.

[00:02:21] Speaker 04:
Just like there'd be discovery opportunities, you don't normally wouldn't want a civil case tried suing the person for wrongful death or something like that in the course.

[00:02:38] Speaker 04:
We give priority to significant criminal prosecutions, don't we?

[00:02:44] Speaker 03:
Well, this is the government's argument, of course.

[00:02:46] Speaker 03:
And there is no reasonableness.

[00:02:49] Speaker 04:
Explain what's wrong with the argument.

[00:02:50] Speaker 04:
Yes.

[00:02:51] Speaker 04:
I'm about to do that.

[00:02:53] Speaker 04:
But I can tell all the circuit courts to address this have found it to be a good argument.

[00:02:58] Speaker 03:
I agree that the circuit courts have all agreed that's a good argument.

[00:03:03] Speaker 03:
And I have several responses to the circuit courts.

[00:03:09] Speaker 03:
One, I strongly suggest that this court read the dissent in the Garrett case.

[00:03:14] Speaker 03:
I discuss it in the reply brief.

[00:03:16] Speaker 03:
I think it addresses in great detail where the Ninth Circuit went wrong in Garrett.

[00:03:21] Speaker 03:
I also want to point out that both Garrett from the Ninth Circuit and Ramos from the Second Circuit, which are kind of the leading cases on this question, they were decided before the Supreme Court decided in Mont

[00:03:33] Speaker 03:
how to interpret the tolling statute, and those were cases where the defendant was in pretrial detention on charges that those defendants were actually convicted of.

[00:03:45] Speaker 03:
Post-Mont, those cases would have been resolved under the tolling statute, because under the tolling statute, the supervision terms for those defendants would not have

[00:03:56] Speaker 03:
expired.

[00:03:57] Speaker 03:
And so this court can decide not to follow those other cases in part because every one of the cases that the government relies on that I'm aware of where the other circuits, and I think there are four of them, have held that it's reasonably necessary to wait until somebody gets convicted in state court or in another federal case.

[00:04:20] Speaker 03:
all of those cases predate Mont.

[00:04:22] Speaker 03:
And I think even though Mont is about the tolling statute, and we're talking about the jurisdictional statute, that Mont gives a better context for understanding the jurisdictional statute, and that comes after all of those other circuit cases.

[00:04:37] Speaker 03:
So they didn't have the benefit of Mont in the context of the tolling statute.

[00:04:41] Speaker 03:
Because what you end up doing, if you adopt a categorical rule like those other circuits have, and like the government seems to be asking this court to do,

[00:04:48] Speaker 03:
is you're really basically converting this jurisdictional statute into kind of a tolling statute when somebody is in custody awaiting state criminal charges.

[00:05:00] Speaker 03:
But the tolling statute.

[00:05:01] Speaker 04:
It seems to me that for the great majority of cases, it is jurisdictional.

[00:05:08] Speaker 04:
It prevents the government from proceeding with a revocation proceeding.

[00:05:14] Speaker 04:
So it serves a very large purpose.

[00:05:17] Speaker 04:
There's an exception.

[00:05:18] Speaker 03:
Yes.

[00:05:19] Speaker 03:
I guess what I'm saying is that as a practical matter, if this court holds that any time that somebody is in state custody awaiting state criminal charges for those to be resolved, Congress decided not to do that in the tolling statute.

[00:05:37] Speaker 03:
In the tolling statute, Congress says, hey, we're not going to count this time when you are in pretrial state custody if it's in connection with, and Mott says, if it results in, a conviction.

[00:05:49] Speaker 03:
The same result gets accomplished here if we create a categorical rule.

[00:05:53] Speaker 03:
But like Mott said, the fact that the tolling statute excludes time and state custody when you're not convicted.

[00:06:01] Speaker 03:
means that Congress intended that the defendant is not faulted for conduct he might not have committed.

[00:06:08] Speaker 03:
And in a sense, that's what's happening if we create this categorical rule here.

[00:06:12] Speaker 03:
But let me go on and talk a little bit more about some other reasons that you should reject the other circuit decisions.

[00:06:18] Speaker 03:
They don't mention or follow the rule that this court follows, that jurisdictional statutes are interpreted strictly against jurisdiction.

[00:06:27] Speaker 03:
they don't mention or follow this court's precedent holding that the party asserting jurisdiction has to be the one to establish it.

[00:06:34] Speaker 03:
And again, there's no record evidence here of anything that the state court was doing at all.

[00:06:39] Speaker 03:
You can probably learn more about that state case by Googling it than you can by looking at the record here.

[00:06:44] Speaker 03:
I'm not recommending that you rely on any Google results.

[00:06:48] Speaker 03:
But at any rate, there's simply no case-specific evidence here.

[00:06:51] Speaker 03:
And we're talking about

[00:06:52] Speaker 03:
three years, and we know it's easy for the government to go and go to a revocation proceeding.

[00:06:59] Speaker 03:
The standard of proof is lower.

[00:07:01] Speaker 01:
Yes, sorry.

[00:07:02] Speaker 01:
OK, so all true, granted that.

[00:07:08] Speaker 01:
Isn't the fact that you've got a serious state charge here pending a murder charge sort of important here?

[00:07:18] Speaker 01:
If you had the two, say he was in custody for the two

[00:07:22] Speaker 01:
for the murder charge and the government wanted to proceed on the two grade C violations.

[00:07:29] Speaker 01:
Which is all they ultimately did.

[00:07:31] Speaker 01:
True, but they didn't know that until there was an acquittal.

[00:07:35] Speaker 01:
That's a lot different, isn't it, than when you have two grade C violations and a state murder charge?

[00:07:41] Speaker 01:
Because the grade C violations could presumably be decided without ever getting into the circumstances of the murder charge, right?

[00:07:50] Speaker 01:
As they were.

[00:07:51] Speaker 01:
OK, and so the state has a great interest in investigating and prosecuting serious crimes such as murders.

[00:07:59] Speaker 01:
You would agree with that, wouldn't you?

[00:08:02] Speaker 01:
Sure.

[00:08:02] Speaker 01:
OK.

[00:08:02] Speaker 01:
And so wouldn't it be the ultimate lack of comedy for us to say that the federal courts have to wade into the state's subject matter on a supervised release violation when the state's interest in proceeding on a murder charge

[00:08:21] Speaker 01:
is seemingly much higher than the federal system's supervised release violation.

[00:08:29] Speaker 03:
Well, it's the government's choice to pursue violation based on that new crime charge.

[00:08:34] Speaker 03:
They can just let it go if the state is going to give this person a life sentence or whatever they might for their charges.

[00:08:41] Speaker 03:
If they're that serious, why not just let the state take care of it?

[00:08:43] Speaker 03:
But more importantly, there's

[00:08:47] Speaker 03:
three years and no explanation from the government about how bringing a state witness over to federal court in the same town, in the same neighborhood where everybody is, would have hurt the state.

[00:09:02] Speaker 03:
Maybe it'd be good for the state.

[00:09:04] Speaker 03:
They'd get a little preview of how its witnesses do, but we're also under navigation.

[00:09:08] Speaker 01:
Maybe it would be bad for the state.

[00:09:09] Speaker 01:
Maybe its witnesses would falter.

[00:09:12] Speaker 03:
So this conversation we're having here is purely conjectural.

[00:09:16] Speaker 01:
It is, but those are the kind of governmental considerations that go into decisions on whether to give the state some latitude to proceed in their case before you decide to bring somebody in into a proceeding that does not follow the rules of evidence, for example.

[00:09:33] Speaker 03:
And once the government knew jurisdiction was on the table, the government could have

[00:09:39] Speaker 03:
brought some state official into the district court to explain to the district court judge, yeah, there was no way we were going to A, let this guy out on a rip during that full three years that we had him four blocks from the courthouse, or B, this case was so complicated.

[00:09:54] Speaker 03:
We were in court all the time.

[00:09:55] Speaker 03:
We couldn't make our witnesses available, or maybe this witness was a sensitive.

[00:09:59] Speaker 03:
There's just nothing there.

[00:10:01] Speaker 03:
And again, it's the government's burden to establish that jurisdictional

[00:10:05] Speaker 03:
requirement that that three-year delay be reasonably necessary.

[00:10:08] Speaker 01:
Do you agree that the state has no duty to cooperate with the feds on this?

[00:10:16] Speaker 03:
I don't really answer that question if there's a rip.

[00:10:18] Speaker 01:
I mean, if the government decided they were going to call a state witness to come over and tell the judge why they needed to prosecute their case, and the prosecutor said, I am not going to get up.

[00:10:30] Speaker 01:
in open court and divulge my trial strategy.

[00:10:35] Speaker 03:
So had that happened on the record here, that might be the reasonable necessity that the government would need to point to.

[00:10:41] Speaker 03:
But I don't think we can just imagine possibilities that would create reasonable necessities.

[00:10:47] Speaker 03:
We have to actually have them on this record.

[00:10:49] Speaker 03:
And again, it's the government's burden to prove that.

[00:10:51] Speaker 03:
And it didn't do any of that.

[00:10:53] Speaker 03:
See, my time is ticking down here.

[00:10:55] Speaker 03:
I'd like to reserve rebuttal time.

[00:10:57] Speaker 03:
But if there are any other questions, I'll address those first.

[00:11:01] Speaker 04:
Well, you make a very interesting point about calling in the prosecutor, the state prosecutor, how this would affect.

[00:11:11] Speaker 04:
I'm trying to think if I've ever seen that sort of record in a case where they discuss issues like this.

[00:11:18] Speaker 04:
I think it's just sort of known that

[00:11:22] Speaker 03:
things get screwed up if you try to try your case in another... But I've given the court plenty of examples of cases in other jurisdictions where it's fairly routine for the supervision revocation proceeding to go even while the state charges are pending.

[00:11:41] Speaker 04:
This court has said in... Sometimes it's not that big a deal.

[00:11:46] Speaker 03:
Sometimes it's not.

[00:11:47] Speaker 04:
Yeah.

[00:11:47] Speaker 04:
I don't know whether it's a big deal here because nobody put on any evidence.

[00:11:53] Speaker 04:
It's a big deal if it screws up a murder prosecution.

[00:11:56] Speaker 04:
If it were a lesser offense, then you might not worry so much.

[00:12:02] Speaker 04:
Revoking supervised release is lesser than a murder prosecution.

[00:12:09] Speaker 04:
It may not be lesser than a reckless driving prosecution.

[00:12:13] Speaker 04:
But have you ever, do you have any cases where the sort of evidence you think the prosecution should have put on here has actually been proffered

[00:12:23] Speaker 03:
There are so few of these cases where, in fact, the pre-trial detention time ends up with an acquittal.

[00:12:31] Speaker 03:
These facts are pretty unique in our case.

[00:12:34] Speaker 03:
Some answers, no.

[00:12:35] Speaker 03:
But I think that's because of how unique this case is, how rarely people invoke this jurisdictional statute.

[00:12:40] Speaker 03:
I have a feeling that it's probably overlooked.

[00:12:42] Speaker 03:
I think that the prosecutor in this case, both the judge and the prosecutor were kind of surprised by it.

[00:12:49] Speaker 04:
You've answered my question.

[00:12:52] Speaker 03:
Thank you.

[00:12:52] Speaker 03:
Thank you.

[00:13:03] Speaker 02:
Good morning, Your Honors.

[00:13:04] Speaker 02:
May it please the court, Jared Bagg, on behalf of the United States.

[00:13:10] Speaker 02:
I do think comedy really does drive a large portion of this argument.

[00:13:14] Speaker 02:
I think that is borne out in the prosecutor's statement to the judge in this case as to why there was a reason to delay bringing the defendant back into federal custody to try to establish the grade A violation, which was the murder.

[00:13:32] Speaker 02:
case here as we set out in our brief.

[00:13:35] Speaker 02:
We were very reluctant to hold a mini murder trial in federal court.

[00:13:40] Speaker 02:
We have an obligation to give deference to the state court's decision to charge their cases.

[00:13:47] Speaker 02:
In essence, letting them try their case in advance.

[00:13:51] Speaker 02:
You see this in the Morales as a Boris case, where they talk about the issue of

[00:13:58] Speaker 02:
if the underlying violation is directly related to the state offense, that the state offense can take precedence in having that resolve itself before it moves into the federal system.

[00:14:09] Speaker 02:
That's particularly true here when you have a situation of such great severity of a murder trial.

[00:14:18] Speaker 04:
There's another side to this, though.

[00:14:21] Speaker 04:
I don't know how much extra time revocations

[00:14:28] Speaker 04:
the supervised release could lead to.

[00:14:31] Speaker 04:
But either there's a conviction for murder in the state court, and you can expect a significant sentence, or the defendant's acquitted in the state prosecution.

[00:14:46] Speaker 04:
So you're probably not going to pursue or the judge isn't going to revoke on that ground anyway.

[00:14:51] Speaker 04:
So why not just leave the murder case to state court and proceed on the other allegations of violation?

[00:15:02] Speaker 04:
What's the great interest of the state, of the federal government in pursuing the murder allegations in revocation proceedings?

[00:15:13] Speaker 02:
Well, that's a decision, of course, for the United States attorney to make as to whether or not it wishes to pursue that.

[00:15:18] Speaker 02:
I can't say that that isn't an option

[00:15:20] Speaker 02:
the United States attorney could have taken under the circumstances, but we're not obligated to do that.

[00:15:26] Speaker 02:
The grade A violation was certainly the most serious violation and that does tell us a little bit into what our position is and what the defendant has rejected here is that

[00:15:38] Speaker 02:
the idea of prejudice.

[00:15:40] Speaker 02:
What is the prejudice that is demonstrated here and how was he prejudiced in any way by the government's decision not to bring him into federal custody immediately so the state could dispense him.

[00:15:52] Speaker 02:
Is that relevant to the jurisdictional issue?

[00:15:55] Speaker 02:
We think that it is.

[00:15:57] Speaker 02:
And the jurisdictional issue here is interesting.

[00:16:00] Speaker 02:
3583i doesn't really read as a typical jurisdictional statute.

[00:16:07] Speaker 02:
It appears on its face that the jurisdictional hook is simply that the government filed their warrant in advance of the supervised release period being extinguished.

[00:16:17] Speaker 02:
In this case was in July of 2022, the warrants filed in the fall of 2020.

[00:16:24] Speaker 02:
It almost reads like a claims processing rule when you get to the reasonably necessary because the courts are struggling with that term and how to define it.

[00:16:35] Speaker 02:
The court in Ramos

[00:16:36] Speaker 02:
probably goes to the greatest length in trying to define what reasonably necessary means.

[00:16:42] Speaker 02:
But if you peel back what the court in Ramos said, it's quite clear that it deals with the underlying facts that the court must address to determine whether or not a violation has occurred.

[00:16:56] Speaker 02:
And in this case, those facts are the murder case.

[00:17:00] Speaker 02:
And again, to force the government into bringing

[00:17:04] Speaker 02:
Mr. Pepper's into federal custody to address those particular facts certainly runs counter, Judge Arch, as you mentioned earlier, to really the four primary cases that have addressed 3583i in this case and have all found that allowing the state to resolve the underlying factual issue that is the predicate for the federal offense, it is reasonably necessary to allow that to happen.

[00:17:31] Speaker 02:
And that is exactly what occurred here.

[00:17:33] Speaker 02:
But it's even more, I think, potent because we are dealing with a very serious homicide case.

[00:17:41] Speaker 02:
And the government, I think Judge Carson, to really get to your issue, you asked the question about whether or not the state could sort of deny a federal subpoena as it were.

[00:17:53] Speaker 02:
They could try, certainly.

[00:17:55] Speaker 02:
We could certainly issue any number of subpoenas to detectives and other individuals in the case, and they may not have wished to have wanted to testify.

[00:18:03] Speaker 02:
We certainly would have probably expressed those issues.

[00:18:07] Speaker 02:
I can tell you, just as an officer in court, that the United States Attorney's Office will try closely with district attorneys to try to manage the types of issues that arose here in attempting not to interfere with their underlying cases.

[00:18:19] Speaker 02:
That was particularly true here in this type of homicide.

[00:18:23] Speaker 01:
Maybe the problem with your case here is that you didn't go ahead and proceed against the defendant on the grade C violations.

[00:18:39] Speaker 01:
There was nothing standing in the way of that, you would agree?

[00:18:42] Speaker 01:
Yes, we would agree.

[00:18:43] Speaker 01:
So you could have ridded the defendant out to proceed on those and then take away and see attitude on the grade A murder

[00:18:53] Speaker 01:
violation, right?

[00:18:55] Speaker 02:
That is certainly an option, but we would stand by the position that there's nothing that obligates the United States to perform that function under the circumstances.

[00:19:02] Speaker 02:
Of course, I think it made it very clear that there is no obligation for the United States to writ someone out when state proceedings are occurring under the circumstances.

[00:19:14] Speaker 02:
It then devolves to the issue of what was reasonably necessary under the circumstances.

[00:19:20] Speaker 02:
And I would like to address the issue because the defendant

[00:19:22] Speaker 02:
does talk about the fact that it was three years.

[00:19:25] Speaker 02:
Well, that may be true, but when you're looking at the timeframe that this court must address as to whether or not it was reasonably necessary, I think you need to look at what the court said in Morales.

[00:19:37] Speaker 02:
And if you look at the Morales decision at pages 402 and 403, they indicate that under 3583i, the time that this court looks at under the reasonably necessary standard

[00:19:49] Speaker 02:
is at the time that the defendant immediately went into state custody, but rather that time between when the supervised release violation ran and ended, and the time that the defendant's ultimate federal violation occurred.

[00:20:04] Speaker 02:
In this case, those dates would be between July 4th, 2022, when his supervised release term extinguished, and September 26th of 2023, when the defendant's ultimate revocation occurred in this case.

[00:20:19] Speaker 02:
So when you look at that timeframe, it drops down to 13 months and 22 days, approximately.

[00:20:25] Speaker 02:
So to say that the government somehow violated his rights because he languished in state custody for three years, that doesn't address what the statute requires.

[00:20:36] Speaker 02:
And the statute that we're dealing with is 3583i.

[00:20:39] Speaker 02:
At the same time, I understand that the defendant is trying to insert the Mott decision into this case, but that really has no bearing

[00:20:47] Speaker 02:
This case rises and falls on 3583i.

[00:20:51] Speaker 01:
What does the record show about any continuances asked for and granted in the state proceeding?

[00:21:03] Speaker 02:
I can't answer that directly.

[00:21:05] Speaker 02:
I will tell the court, and I think the court can largely take judicial notice of the fact that this was occurring during the pandemic.

[00:21:12] Speaker 02:
And I think that that is not lost on anybody that during this time frame, many of the courts were extending their time frames.

[00:21:22] Speaker 02:
I can't, it would be an extra judicial statement to make when I don't know the reasons behind it, but we asked the court to at least take judicial notice of this time frame.

[00:21:32] Speaker 02:
The pandemic was occurring, there were significant shutdowns during this time.

[00:21:37] Speaker 04:
It hadn't occurred to me, I would think we could take judicial notice of state court

[00:21:41] Speaker 04:
records when the continuance is ordered, couldn't we?

[00:21:45] Speaker 04:
Certainly you could.

[00:21:48] Speaker 02:
Whether or not the docket in the Shawnee County District Court would reflect some of those motions, I think that it probably would under the circumstances.

[00:21:58] Speaker 02:
But to the degree that whether or not there were continuances in that case, I don't necessarily believe that it reflects on whether or not this court would, well, whether or not

[00:22:15] Speaker 02:
hear by not having him brought over?

[00:22:17] Speaker 01:
Fair enough.

[00:22:18] Speaker 01:
I guess my concern is that if the record at the Shawnee County District Court showed that the defendant was requesting continuances and receiving them, then the argument that I was kept in jail all this time and you didn't proceed against me might be a little less effective

[00:22:43] Speaker 01:
because the delay was not caused by the United States in that instance.

[00:22:48] Speaker 02:
Well, I think it's a fair point.

[00:22:49] Speaker 02:
But again, at the end of the day, I think the question does fall back onto what both courts in Morales and Ramos really drive home is, is the government obligated to bring someone into federal custody when the underlying facts that drive the

[00:23:10] Speaker 02:
violation in federal court are being litigated in state court.

[00:23:14] Speaker 02:
Is the government obligated?

[00:23:16] Speaker 02:
And the defendant is essentially asking this court to establish a categorical rule where the government would be required to writ someone out.

[00:23:25] Speaker 02:
There is no case law support for that, and there certainly isn't any statutory support for that.

[00:23:29] Speaker 01:
Well, I don't know that they're asking for a categorical rule.

[00:23:32] Speaker 01:
I mean, I think it could be applied.

[00:23:34] Speaker 01:
What they're asking for could be dealt with on a discretionary basis.

[00:23:39] Speaker 01:
But it also makes me wonder, I mean, your argument makes me wonder your lack of an obligation to writ them out.

[00:23:48] Speaker 01:
I mean, presumably, where a complicated state proceeding is going on, the government could drag their feet forever and keep the hooks of supervised release in a defendant way beyond the expiration date.

[00:24:08] Speaker 02:
Well, I think 3583i certainly would address the circumstances.

[00:24:13] Speaker 01:
I mean, your contention isn't... Would you agree with me in this case if all you had was the grade A violations or the grade C violations that you would have needed to proceed against them earlier?

[00:24:24] Speaker 02:
Oh, I certainly think that that weighs against us heavily if we had the grade C violations and had no issue with disturbing the state's prosecution.

[00:24:32] Speaker 01:
Okay, so you have a more fact-specific approach here based on

[00:24:37] Speaker 01:
interference with an important state prosecution.

[00:24:40] Speaker 01:
Absolutely.

[00:24:40] Speaker 02:
And I think that's driven by what we stated both in the underlying hearing before the lower court and what we're saying in our brief is that this case is so unique and I think the court can understand and appreciate the unique nature of the government wanting not, the federal government wanting not to interfere in any way whatsoever with that particular prosecution under the circumstances.

[00:25:05] Speaker 01:
Remind me what the record would show in this case about the defendant urging the federal court to take up the supervised release violation sooner rather than later.

[00:25:17] Speaker 01:
Were there any requests by the defendant in the proceeding below that too much time was passing, that he wanted to be heard on his supervised release violations?

[00:25:28] Speaker 01:
Not that we're aware of.

[00:25:29] Speaker 02:
We think that, as I understand the record, the only time that it really came up, and you can see this,

[00:25:35] Speaker 02:
in the district court's decision to hold a second hearing because it felt, the court sort of felt like they were ambushed a little bit by the argument that the case should have been dismissed because the government ran a file of 3583i.

[00:25:50] Speaker 02:
The court then ordered briefing and then had that briefing available to it and then finally made a decision in September of 2023 before it decided that it was going to follow the morales as a bars.

[00:26:05] Speaker 02:
and find that the idea of what is reasonably necessary is somewhat of an elastic term and thought that the government's position that he didn't want to interfere with the state case was sufficient to find that it did not violate the statute.

[00:26:18] Speaker 04:
Let me get back to a question I asked you earlier.

[00:26:21] Speaker 04:
I've been trying to think about it a little bit while you're talking.

[00:26:26] Speaker 04:
But when you said there wasn't prejudice to defend it, I asked, what's that got to do with the jurisdiction?

[00:26:34] Speaker 04:
And it occurs to me that maybe whether a delay is reasonably necessary depends on how much the defendant will be prejudiced by delay.

[00:26:44] Speaker 04:
But do you have any case authority that suggests that prejudice is relevant, possible prejudice is relevant?

[00:26:53] Speaker 04:
We do.

[00:26:54] Speaker 02:
So if you look at Ramos, Pellamence, and Math, Ramos talks directly about prejudice at page 116.

[00:27:03] Speaker 02:
And it gets to the issue of the defendant's inability to defend against the charges.

[00:27:09] Speaker 02:
So they talk to prejudice directly.

[00:27:13] Speaker 02:
In Pelnitz, at page 571, they talk about prejudice.

[00:27:16] Speaker 02:
In Madden, at page 607, they talk about prejudice.

[00:27:20] Speaker 02:
And Morales Isobaras talks about the legitimate interests of the defendant, which we think is encompassing of prejudice, because at the end of the day,

[00:27:30] Speaker 02:
When you look at the jurisdictional aspect of 3583i, our position is that it acts in part as almost a claims processing issue, which really establishes a balancing test in our opinion.

[00:27:45] Speaker 02:
What are the interests of the government?

[00:27:47] Speaker 02:
What are the interests of the defendant under the circumstances?

[00:27:51] Speaker 02:
And the defendant can show absolutely no prejudice under the circumstances here, because one, the government decided to forego the grade A violation, and two,

[00:28:00] Speaker 02:
The Great Sea violations, by and large, were readily and easily presented.

[00:28:05] Speaker 02:
Even some of them indicate or were stipulated to by the defendant.

[00:28:09] Speaker 02:
And I see that my time is up.

[00:28:10] Speaker 02:
Unless the court has any further questions, we would ask the court to affirm the lower court's decision to revoke supervisor rights.

[00:28:16] Speaker 02:
Thank you.

[00:28:16] Speaker 02:
Thank you.

[00:28:23] Speaker 04:
If I may follow up on the last question.

[00:28:25] Speaker 04:
Certainly.

[00:28:26] Speaker 04:
So what was the prejudice?

[00:28:29] Speaker 03:
It was a jurisdictional statute.

[00:28:34] Speaker 03:
No, no, no.

[00:28:36] Speaker 03:
I'm so sorry.

[00:28:37] Speaker 03:
You are very excited all this time.

[00:28:42] Speaker 04:
But OK, so what happened to him as a result?

[00:28:47] Speaker 04:
Was his supervised release revised at all as a result of this?

[00:28:52] Speaker 03:
Oh, he was given a full year additional supervision term, even though it had expired.

[00:28:59] Speaker 04:
But no confinement, but an additional year of supervised release.

[00:29:02] Speaker 04:
Yes, that's right.

[00:29:02] Speaker 03:
Yes, yes, yes.

[00:29:04] Speaker 03:
And prejudice doesn't

[00:29:06] Speaker 03:
have anything to do with whether something's reasonably necessary.

[00:29:10] Speaker 03:
I was trying to think of an example of how it's very clear that prejudice isn't part of this.

[00:29:16] Speaker 03:
First, the cases that the government is talking about, those are the due process sections of those decisions, not the jurisdictional sections of those decisions.

[00:29:23] Speaker 03:
But second, say the judge puts off the hearing because the judge wants to stay home and finish binge watching all seasons of Real Housewives.

[00:29:34] Speaker 03:
Then we go to the revocation hearing and there's no prejudice.

[00:29:37] Speaker 04:
No judge is going to do that.

[00:29:40] Speaker 04:
That sort of calumny is not acceptable.

[00:29:42] Speaker 03:
That's not acceptable.

[00:29:44] Speaker 03:
Well, I wanted an example where it's very clear that the delay is not reasonably necessary.

[00:29:49] Speaker 03:
And whether or not the defendant was prejudiced based on that delay doesn't affect whether the court had jurisdiction.

[00:29:56] Speaker 03:
And the government suggests so.

[00:30:00] Speaker 03:
Three other things I want to say real quick.

[00:30:01] Speaker 03:
The government suggests, well maybe this isn't a jurisdictional statute after all.

[00:30:05] Speaker 03:
That's the first time I've heard them say that.

[00:30:07] Speaker 03:
The government assumed it was jurisdictional in its briefing.

[00:30:10] Speaker 03:
But my answer is this, it starts with the power of the court.

[00:30:13] Speaker 03:
That's the language we use when we talk about jurisdiction.

[00:30:15] Speaker 03:
And second, this court, the Supreme Court, and every other circuit I've read, has either assumed or straight up decided this is a jurisdictional statute.

[00:30:22] Speaker 03:
When criminal cases are over, that courtroom is closed until and unless there's a statute authorizing the court to take some further action.

[00:30:30] Speaker 03:
This is a jurisdictional statute.

[00:30:32] Speaker 03:
Second, the time period, whether it's between the expiration and the revocation date, that's a fair reading of the statute, sure.

[00:30:40] Speaker 03:
So maybe there was just a year

[00:30:42] Speaker 03:
that we have to ask whether it was reasonably necessary.

[00:30:45] Speaker 03:
But it becomes a lot harder for the government to defend that full year, but we know it had two years before then to get its revocation ducks in a row.

[00:30:55] Speaker 03:
So that's why I keep talking about the three years, though I understand that the statute itself suggests that the time limit or the delay that we are concerned with, whether that last year is reasonably necessary.

[00:31:07] Speaker 03:
And it wouldn't have been standing on its own, and it certainly isn't when

[00:31:11] Speaker 03:
government had two years before that.

[00:31:13] Speaker 03:
He does not have to ask to be ridded out to federal court so that the government can retain jurisdiction to send him back to prison or extend his supervision.

[00:31:23] Speaker 03:
No party ever has to tell another possible party how to keep jurisdiction to do something to them, to sue them, or to try to put them in prison.

[00:31:31] Speaker 03:
But as a practical matter, it doesn't make sense to talk about this.

[00:31:34] Speaker 01:
So you don't think it matters for a defendant to press their right, certainly in the speedy trial?

[00:31:38] Speaker 03:
It does, but that's not a jurisdictional statute.

[00:31:42] Speaker 03:
This is one thing that's very different about this, because it's jurisdictional.

[00:31:45] Speaker 03:
But as a practical matter, look at that warrant.

[00:31:47] Speaker 03:
It says at the bottom, this warrant shall not be disclosed to counsel.

[00:31:50] Speaker 03:
So the defendant in state custody, maybe he knows he has a federal hold on him.

[00:31:55] Speaker 03:
Maybe he does.

[00:31:56] Speaker 03:
But he might not, because those warrants are typically sealed until the... I mean, there's an argument in your briefing that there was a federal detainer, right?

[00:32:08] Speaker 01:
I think there was.

[00:32:11] Speaker 01:
Or maybe it was in the district courts colloquially.

[00:32:14] Speaker 00:
Yeah, so there's probably a federal detainer.

[00:32:15] Speaker 03:
But the other point I wanted to make about practicalities is that typically we or counsel generally is not appointed until that warrant is executed.

[00:32:26] Speaker 01:
So he had counsel.

[00:32:28] Speaker 01:
Because there was already a supervised release, the two grade C. Yeah, but they haven't had any proceedings on that yet.

[00:32:36] Speaker 03:
So they haven't had counsel appointed on that yet, I don't think.

[00:32:39] Speaker 03:
I don't think.

[00:32:41] Speaker 03:
We didn't get appointed until they executed the warrant at the end of the case.

[00:32:45] Speaker 04:
You're well over your time.

[00:32:46] Speaker 04:
I'm finished.

[00:32:47] Speaker 03:
I have over my time.

[00:32:48] Speaker 03:
Thank you very much.