Legal Case Summary

Thank you very much. Good morning, Gerald Rooter on behalf of the appellant, Mr. General Dixon. You're on this case initially came this court on a brief that I submitted. Court, however, asked that there be a fully brief on the issue of speedy trial. And I'm more than happy to do that. I did do that. And you might understand that the speedy trial act is kind of divided into two sections. There's a question of from the time of arrest until the time of indictment, as there have been a denial of one's right to a speedy trial. And there's also a time after indictment until the time of trial under section 3161. In order for the court to determine whether or not a person has been denied the right to a speedy trial. This morning, I would like to spend my time discussing the time from the arrest of Mr. Dixon until the indictment of Mr. Dixon. I will not concede your honor, but I will simply submit on the brief as to the denial post. That's the better argument, the 30-day period of pre-indipment. And I appreciate that. So your honor Mr. Dixon is arrested on July 21 of 2010. He's indicted on September 9 of 2010

. By anyone's calculation, that of course would exceed the 30-day rule, which is set forth in the statute itself under section 3161 of Title 18. The, it's our position, your honor, that because that 30-day period was exceeded, the indictment should in fact be dismissed. Your honor, what would happen? I would confess first what happened on August 2, when Robert X. Letter was filed requesting and preliminary hearing be continued for 60 days, until September 22, 2010 in order to allow the parties to discuss a reasonable basis for settling the case. And Judge Hamilton, I believe that is the heart of our argument. The argument is as follows. Rule 5.1c says that the Madsford Judge must hold the preliminary here within a reasonable time, but not to exceed 14 days. So Mr. Dixon had his detention hearing, think around July 24, the Madsford Judge in fact did set a preliminary hearing within a timely fashion within that 14-day period. So then what happens is, as you just pointed out, Judge Hamilton, a letter is sent from Mr. Dixon's counsel, and you just read part of it. And what he indicated, Your Honor, was that on behalf of this client, he was waving his clients right to a preliminary hearing. And merely thereafter, Judge Hamilton, there became a lot of angst between Mr. Dixon and his counsel. Mr. Dixon did not know, according to the record, that his client had waved his right, I should say, waved the totally, but he continued that preliminary hearing date. We know that for a couple of reasons. Number one, the letter that his counsel wrote to the court was not carbon copied to Mr

. Dixon. It was actually carbon copied to the prosecutors. And more importantly, you all now have read the transcript of what were called up in Maryland, at least, an attorney inquiry hearing. And at that hearing, where Mr. Dixon told Judge Grimm his version of the events, and where counsel for Mr. Dixon told his version of the events, the record is very clear that Mr. Dixon immediately asserted his right to a speedy trial and told the minister of Judge that he had not given a permission to his counsel to have continued that preliminary hearing. And when his counsel was— That came after the fact, are you saying they could simply nullify that, the effect of that letter? Your Honor, I am saying this. I'm saying when this court examines Rule 5.1 that Rule 5.1 was not complied with. And so, in the first instance, I'm urging the court to find that a defense counsel does not have the absolute right to bind his client on such an important matter as the waiver or the contiguous of a preliminary hearing. What date did this latter discussion take place for the matter? The letter was dated July 28, Your Honor. That's inside the 14-day rule. And then an attorney inquiry hearing was held on September 8, which happens to be the same day the indictment came down. It was sealed, I think, at the time, but at the same time. I thought the indictment came down on September 9. Well, it could have been the ninth—it became public, Your Honor, either maybe it was not sealed, it came down the ninth. But on that—on about that same date, it's one that attorney inquiry hearing took place

. And the fact is that Mr. Dixon said then he had not authorized his lawyer to do anything in terms of waiving or continuing his right to a hearing. I don't think the matter should be construed as a waiver. The letter was— A continuance. Was the request for a continuance— It was. I would think the—would be within the range of conduct that a lawyer can conduct on behalf of his client. It's not a big deal. He's basically saying, like a continuance, if we can explore getting rid of this case. And he does that. And it turns out that the client didn't like that later, but that doesn't make the letter illegitimate. Your Honor, I'm suggesting to the court that it might because of a fine reading of rule 5.1. And this is what— You know, first— Hasn't the Hopkins case disposed of that? Well, Your Honor, Hopkins certainly speaks of that, but it didn't make the arguments that I'm making in terms of a violation of rule 5.1. I think Hopkins more or less addresses the fact that a lawyer might have the right to do what, in this case, as trial counsel did. But I still think it has to be a conformity— Could there ever any pre-indipement negotiations for resolving the case? I am aware of absolutely none. Were you counsel—you weren't counsel below, though. That's correct. And is there anything in the record that tells us that one way or the other? No

. There's not at all. Your Honor, rule—let me first go to Section 3060 of Title I-10. And it notes here in Subsection B that it says, except it's provided by a Subsection C of this section, or unless the arrested person— Unless the arrested person waves the preliminary examination. That's— Not a waiver. This was a letter of continuance, a very innocent act, a very often prudent act consistent with good representation. He asked for a continuance so he can explore getting rid of the case. Yes. Now, that by operation of law has certain effects. But at that point in time, there's no indication that the client had said, I want to go to trial immediately. I don't want any post-pomance or motions. I want the 70—the 30 days to run. There's no indication of that. This is just an ordinary letter requesting the continuance and the judge approved it 60 days. We hear for the first time that it's a problem at September 9 when they're before the court. But up until that point in time, I don't understand why we can't accept the continuance as a stop in the clock. You shouldn't do it for three reasons. Number one is because I think it is such a critical stage of the proceedings that there should be an affirmative showing that a defendant has waved that very important right. But it's not a waiver. Your Honor, or— Or a continuance because under— It's a continuance to talk

. That your Honor is Section 3060 subsection C, and I recognize a person can ask that the prominent hearing be also continued beyond a certain date. The truth of the matter is I'm not even sure your client can wave it. It's really in the public interest to have the speedy trial. We have a lot of indications on that. It doesn't turn on that. It turns on whether the 30 days runs and whether there was legitimate conduct that told those 30—the running of the clock during that period. It seems to me there's nothing to suggest that letter was in bad faith or was anything other than what it indicated, which was we want to continuance to talk. The judge says fine. If we accept that, then there's no problem in this case then, right? If we were to accept the letter was legitimate. No. Because I want to get to my Rule 5.1 C argument, Your Honor. But before you get to that— Yes, sir. I thought I asked you and you didn't make it clear. First of all, was there an order entering the 60-day extension? No, sir. Just from the bench. All right. There was a note— Not marginal order, wasn't there? Your Honor, I don't think there's anything in the record about that. A letter was sent by counsel asking for a continuance and nothing happened until the attorney inquiry occurred on September 9th and he was indicted on the same day

. That's not my understanding. My understanding was that the request was granted promptly after the letter was received. I stand to be correct. I do not recall seen in the documentaries where there was a notation that it had been granted that that request for a continuance had been granted. And if it had, Your Honor, it still— Notation was on the motion, wasn't it? Was on the letter or something? I did not, Your Honor. I did not see it. And I have the— Where is your understanding that there was a notation that the 60-day extension had been granted? My understanding is there was no notation of any type. It just—what happened, Your Honor, he got indicted before the 60-day has had transpired. So it became a mood issue. There was—and that's part of my—if you will—complete Judge Hamilton as I think that if Rule 5.1 is adhered to strictly, what should happen is that there should be good cause shown. Well, I admit that the letter attempted to show good cause, the good cause being we're going to try to resolve this pretrial. How do you handle our Keith case where we said a defendant should be prevented from using the Speedy Trial Act as a sword and a shield, sandbagging the court and the government by agreeing to a continuance and then later urging dismissal using the time covered by the continuance? Because, Your Honor, this defendant never agreed and Judge Neymar, Your Honor— I just want to—let me posit—we have two different propositions. You can address the letter and attack it. But if we accept the letter as a proper conduct and part of the attorney on behalf of the defendant, then you have the Keith case which would preclude your challenging that time on the basis you're talking about. As to the letter, yes, but after Rule 5.1, see, I think the answer is no. The rule, again, Judge Neymar says that with a defendant's consent and a punishable of good cause, this court is saying, well, the letter, if we can take a notice that the fact of that letter came from as lawyer and it should be accepted as such, then there have to be a showing of good cause. If there's no hearing before court or there's no order signed indicating that a judge has found good cause, then there's no good cause

. Just because a letter comes from one of us, Defense Counsel, saying something doesn't make it so. Clearly Mr. Ritzberg did what he thought was correct. He did what he thought he should do. But there's no showing on the record that anybody ruled on it. Let's assume that you're right. I'm not sure that that gives relief to your client because later in the timeline, he sends a letter on his own to the district court. If a lawyer had done that, it would be called a motion to remove or substitute counsel. So, when that letter comes out on August 23rd, why wouldn't that have stopped the clock? Because I don't recall any argument in your brief that challenges the efficacy of that letter. Your Honor, it does not. In fact, one might argue that the clock may be told as of the date of that letter. Well, if that's true, it may be argued, Judge A.G. Wait a minute. If that's correct, and I would assume that opposing counsel will say that it is, then you don't get to the 30 days. You do not get to the 30 days. Your Honor, in relation to Judge D. Myers asking, well, how is it that the appellant should get the benefit of an after the fact objection? The answer, Judge D. Myers, I think that this gentleman made his objection as soon as he found out about it

. I understand, but there are certain conduct that attorneys take in cases that are just not that critical. And to tell the court, I'd like to have a little time to discuss this with my client and with the opposing, with the US attorney, to see if we can get rid of this case and send a letter to the court to Magistrip Grimm. Magistrip Judge Grimm said, we want this postponement for 60 days, which I understand was granted, but you say it wasn't. Your Honor, I'm saying to this court, I'm not aware of anything in the record of Diacon entries, which indicates that anybody- It was scheduled earlier. It had to have been postponed by somebody, right? Yes. It was certainly was pulled off the Diacon because it didn't happen. That is for sure. Well, even if we accept your argument as to the August 2 letter, what about Judge H.E.'s question about this letter that your client wrote himself dated August 23? Your Honor, that's simply his assertion of his right to a SPD trial. That what? That is his- That is for a new lawyer. And he did so, Your Honor, because what has lawyer had done? He did so because he had not authorized the continuance of the preliminary hearing. Right, but for our purposes, I don't think that makes any difference. As I read this, which I think you admitted before, you don't challenge, this is a motion to remove counsel. And that motion stopped the clock until there was a hearing, which was coterminous with the other hearings in the indictment. Yes. And your Honor, knowing that that conundrum exists is why I urge this court to find that a preliminary hearing is not a small deal. The whole idea of it is to make sure that a person does not languish in jail. If we need a degree of time to make sure that a problem caused exists for a person to be held

. That's the whole idea behind it. Mr. Dixon made it very clear in that letter, and I might add dozens of others throughout my representation of him. When I became involved, always asserted his rights early and often. And it seems to me that when the court examines the attorney inquiry hearing that was held on the 9th of September, we'd all have to agree that the only complaint that Mr. Dixon raised at that point was the fact that his lawyer had not told him that he was going to waive his right to a preliminary hearing. So he had done all that he could possibly do, which is bring it to the court's attention. And he ought not, in my opinion, Judge A.J., to be prejudiced by the fact that he had to do something to bring it to somebody's attention, and that's precisely what he did. All right. Thank you. We'll hear from you on Rebuttal. Mr. Warwick. Thank you, Mr. Warwick. Good morning, and may it please the court. I am James Warwick

. I am the Assistant U.S. Attorney who investigated, indicted, and then tried this matter. First of all, I'd like to clarify a factual point that was referenced in Mr. Ruder's argument. The letter of July 28th by Mr. Ristberg was dated to 28th, was docketed by the Magistrate Court on August 2nd, and was approved on August 2nd. The docket entries in the docket sheet for the Magistrate Court reflects. Is that in our appendix? I apologize for the oversight. It was not placed in the joint appendix, but I will make a motion to further supplement the appendix to include this docket sheet. You can do that if you'll do that within a week and give a copy to your colleague. I will do that. I will do that. The docket entry 11 references, and again, August 2nd of 2010, motion to continue preliminary hearing for 60 days up to September 22nd. And then docket entry 12, also dated August 2nd, order granting number 11 motion to continue preliminary hearing for 60 days. So the court did officially act on Mr. Ristberg's letter. It construed as a motion to continue and granted that letter. The court also had a question, Mr. Ruter, about Mr. Dixon's pro-say letter to the court dated August 23rd. And I submit that the questions that Justice Judge A.G. asked right on point with regard to that letter, because that should be construed as a motion, because the letter generated action on behalf of the magistrate judge. So therefore, it was docketed appropriately as a motion. It was considered a motion, and it was acted on. There was a hearing held. There was a finding made and counsel were relieved. I think the most important thing to consider here in terms of any motion for a continuance is what the equities are. And there are certainly equities in this case. Equities in favor of the government would include knowledge that three people were involved in a very serious armed robbery, a takeover robbery of a bank. And we had one person in custody. We're looking to get the other two. So there's an incentive on the part of the government to seek cooperation in order to get the other two individuals off the street. From the standpoint of the defendant and what Mr. Rispurg was trying to explore, the equities included the fact that he would try to negotiate a disposition short of indictment on behalf of his client that would possibly eliminate the seven year consecutive sentence for brandishing a firearm during the course of a robbery. That's something that any defense counsel would look to negotiate. Or there any negotiations between Mr

. Ruter, about Mr. Dixon's pro-say letter to the court dated August 23rd. And I submit that the questions that Justice Judge A.G. asked right on point with regard to that letter, because that should be construed as a motion, because the letter generated action on behalf of the magistrate judge. So therefore, it was docketed appropriately as a motion. It was considered a motion, and it was acted on. There was a hearing held. There was a finding made and counsel were relieved. I think the most important thing to consider here in terms of any motion for a continuance is what the equities are. And there are certainly equities in this case. Equities in favor of the government would include knowledge that three people were involved in a very serious armed robbery, a takeover robbery of a bank. And we had one person in custody. We're looking to get the other two. So there's an incentive on the part of the government to seek cooperation in order to get the other two individuals off the street. From the standpoint of the defendant and what Mr. Rispurg was trying to explore, the equities included the fact that he would try to negotiate a disposition short of indictment on behalf of his client that would possibly eliminate the seven year consecutive sentence for brandishing a firearm during the course of a robbery. That's something that any defense counsel would look to negotiate. Or there any negotiations between Mr. Dixon's attorney and yourself with Mr. Dixon? Yes, there were. The evidence of that is first of all is contained in the face of Mr. Rispurg's letter in which he informs the court that the reason for the request in delaying the preliminary hearing was to engage in negotiations with the government. And one of the other equities. I understand what the letter said, but where in the record is there any evidence that these negotiations took place? Other than the fact of the letter, there is nothing in the record. There were negotiations. Early discovery was turned over. And that's one of the benefits to a defendant is that in order to prompt quick cooperation so the government could investigate the other two accomplices. The government provided and I did provide bank photographs and other discovery within a few days of the detention hearing so that Mr. Rispurg could evaluate that evidence, present that evidence to his client and determine if Mr. Dixon was in fact willing to cooperate in exchange for possible leniency. So those were the equities that flow on either side with regard to a continuance of this nature. I submit to the court that I'm not sure I can understand that that constituted negotiations. Well, the quid pro quo that takes two parties to negotiate something. Exactly. And Mr. Rispurg discussed with me the possible disposition short of indictment if it involves substantial assistance to the government. And that was the reason for delaying the preliminary hearing to allow

. Dixon's attorney and yourself with Mr. Dixon? Yes, there were. The evidence of that is first of all is contained in the face of Mr. Rispurg's letter in which he informs the court that the reason for the request in delaying the preliminary hearing was to engage in negotiations with the government. And one of the other equities. I understand what the letter said, but where in the record is there any evidence that these negotiations took place? Other than the fact of the letter, there is nothing in the record. There were negotiations. Early discovery was turned over. And that's one of the benefits to a defendant is that in order to prompt quick cooperation so the government could investigate the other two accomplices. The government provided and I did provide bank photographs and other discovery within a few days of the detention hearing so that Mr. Rispurg could evaluate that evidence, present that evidence to his client and determine if Mr. Dixon was in fact willing to cooperate in exchange for possible leniency. So those were the equities that flow on either side with regard to a continuance of this nature. I submit to the court that I'm not sure I can understand that that constituted negotiations. Well, the quid pro quo that takes two parties to negotiate something. Exactly. And Mr. Rispurg discussed with me the possible disposition short of indictment if it involves substantial assistance to the government. And that was the reason for delaying the preliminary hearing to allow. Does the record reflect any of that? The record below does not reflect anything other than the letter of Mr. Rispurg. Most of as a practical matter, your honor, most of the negotiations concerning cooperation does not take place in the court docket for obvious reasons. You have security concerns and the negotiations between councilor or confidential and share it only with the client agency, the US attorney and the defendant himself or herself. With regard to the letter of Mr. Rispurg, I submit that and the Supreme Court is held and there are also two cases that I'd like to bring to the court's attention and submit in a 28J letter. And that is the first circuit this year in the United States versus Gates held that council has the power to seek continuances without first obtaining the permission of a client. And the Supreme Court in 2000 New York versus Hill within the context of an interstate agreement on detainer argument held that council can waive speedy trial interests of a client and then absent demonstration of ineffectiveness of council. So that council's word on that matter is the last word. And I submit that that's the appropriate standard this court has has held similarly in Hopkins. And I think that the precedent from the Supreme Court and this court should not be disturbed. Mr. Rispurg was a and is a furry experienced criminal defense attorney. I have known him for probably 20 years. He's practiced in Baltimore during that time and he's respected. He's diligent. And in writing that letter to the court on July 28th, he had Mr. Dixon's best interest in mind. Mr

. Does the record reflect any of that? The record below does not reflect anything other than the letter of Mr. Rispurg. Most of as a practical matter, your honor, most of the negotiations concerning cooperation does not take place in the court docket for obvious reasons. You have security concerns and the negotiations between councilor or confidential and share it only with the client agency, the US attorney and the defendant himself or herself. With regard to the letter of Mr. Rispurg, I submit that and the Supreme Court is held and there are also two cases that I'd like to bring to the court's attention and submit in a 28J letter. And that is the first circuit this year in the United States versus Gates held that council has the power to seek continuances without first obtaining the permission of a client. And the Supreme Court in 2000 New York versus Hill within the context of an interstate agreement on detainer argument held that council can waive speedy trial interests of a client and then absent demonstration of ineffectiveness of council. So that council's word on that matter is the last word. And I submit that that's the appropriate standard this court has has held similarly in Hopkins. And I think that the precedent from the Supreme Court and this court should not be disturbed. Mr. Rispurg was a and is a furry experienced criminal defense attorney. I have known him for probably 20 years. He's practiced in Baltimore during that time and he's respected. He's diligent. And in writing that letter to the court on July 28th, he had Mr. Dixon's best interest in mind. Mr. Dixon, it's not such a critical stage of the proceeding that he needs to or a defendant needs to ratify every act done by council. So it's your position then. The granting of the 60 days. Of course, ran up ran beyond the indictment date of September 9th. That's correct when when it became apparent to the government because the government was was prepared and had had a complaint signed in July 16th. That was the basis for the arrest. The government could have proceeded quickly with an indictment. It was asked to for bear on that indictment for the purposes and negotiations. The government agreed to do that. And then when informed by Judge Grims, then magistrate Grims chambers that there would be a hearing on a motion to leave council on September 9th, the government sought and obtained an indictment in an abundance of caution. The superseding indictment was there after return on the 22nd. And really the matter of council was not finally resolved until I think it was September 29th when Mr. Ruder was appointed a successor council to Mr. Rysberg. If the court has any other questions, I'll be happy to address them. Thank you, Mr. Org. Thank you. All right, Mr

. Dixon, it's not such a critical stage of the proceeding that he needs to or a defendant needs to ratify every act done by council. So it's your position then. The granting of the 60 days. Of course, ran up ran beyond the indictment date of September 9th. That's correct when when it became apparent to the government because the government was was prepared and had had a complaint signed in July 16th. That was the basis for the arrest. The government could have proceeded quickly with an indictment. It was asked to for bear on that indictment for the purposes and negotiations. The government agreed to do that. And then when informed by Judge Grims, then magistrate Grims chambers that there would be a hearing on a motion to leave council on September 9th, the government sought and obtained an indictment in an abundance of caution. The superseding indictment was there after return on the 22nd. And really the matter of council was not finally resolved until I think it was September 29th when Mr. Ruder was appointed a successor council to Mr. Rysberg. If the court has any other questions, I'll be happy to address them. Thank you, Mr. Org. Thank you. All right, Mr. Ruder. Thank you, Mr. George. Judge Hamilton, in relation to your question, there was this very lengthy attorney inquiry here in September 8th. The court will notice that there's no discussions. Is it the 8th of the 9th? Let's get that straight. I thought it was the 9th. Your Honor, by a poll, I have it right here, in front of me. Well, I just think we ought to use the right date because I think it's right. It is September 9th. Mr. Dixon had written his letter on August 23rd. As soon as he found out that his counsel had continued his right to a preliminary hearing. Rule 5.1 C, I also think should be noted this. The way I read it, it seemed your Honor that all that Mr. Rysberg should have had the right to have done was to ask for a continuance of 14 days. That's by a clear meeting of subsection D. He can't ask for 60 days or 90 days or 120 days

. Ruder. Thank you, Mr. George. Judge Hamilton, in relation to your question, there was this very lengthy attorney inquiry here in September 8th. The court will notice that there's no discussions. Is it the 8th of the 9th? Let's get that straight. I thought it was the 9th. Your Honor, by a poll, I have it right here, in front of me. Well, I just think we ought to use the right date because I think it's right. It is September 9th. Mr. Dixon had written his letter on August 23rd. As soon as he found out that his counsel had continued his right to a preliminary hearing. Rule 5.1 C, I also think should be noted this. The way I read it, it seemed your Honor that all that Mr. Rysberg should have had the right to have done was to ask for a continuance of 14 days. That's by a clear meeting of subsection D. He can't ask for 60 days or 90 days or 120 days. It defeats the whole purpose of the speedy trial act. Now you're saying that Judge Grimm erred. Yes. That's the... Well, how do you handle the Keith case? I mean, you know, you can't go and ask a court to do something and then come back and say the court was in error in doing so. And that's what the Keith says. It says you can't ask a shield and a sword. And I think that's a very good proposition. We just can't gotcha the court all the time. It seems to me if it's in the interest of the defendant to discuss with the US attorney a way to get out of this case and get preliminary discovery and they go to the court together basically and ask for 60 days and the court enters an order granting 60 days. And now you're saying it was error for you to have gone to the court and asked for that? I'm saying you're wrong that the way in which he was asked and the way in which he was granted, it's clearly in violation of rule 5.1. You should only be able to get... Why shouldn't we hold you to your letter? I mean, you asked for not you personally, but you asked for a 60 extension. You wanted to try to get out of this case

. It defeats the whole purpose of the speedy trial act. Now you're saying that Judge Grimm erred. Yes. That's the... Well, how do you handle the Keith case? I mean, you know, you can't go and ask a court to do something and then come back and say the court was in error in doing so. And that's what the Keith says. It says you can't ask a shield and a sword. And I think that's a very good proposition. We just can't gotcha the court all the time. It seems to me if it's in the interest of the defendant to discuss with the US attorney a way to get out of this case and get preliminary discovery and they go to the court together basically and ask for 60 days and the court enters an order granting 60 days. And now you're saying it was error for you to have gone to the court and asked for that? I'm saying you're wrong that the way in which he was asked and the way in which he was granted, it's clearly in violation of rule 5.1. You should only be able to get... Why shouldn't we hold you to your letter? I mean, you asked for not you personally, but you asked for a 60 extension. You wanted to try to get out of this case. You got a green from the US attorney. The two of you go to the Magistrate Judge. The Magistrate says, fine, I'm going to postpone it 60 days. And now your client comes up later and says, hold it, speedy trial act. This is after the fact. Speedy trial act violation. Everything that was done is wrong. And Keith says, basically, you can't invite the court to make an error and then take the benefit of it. And in this case, the appellant did not invite error. The MJ should have marked it, Continuance Grader for 14 days because the rule doesn't allow there to be 30 or 60 or 90 or any number. Why didn't you just agree to 14 days if that's what you think was an error? In other words, you're charged with... You can't ask for 60 days and then come and say, I shouldn't have asked for 60 days. Slot my hands. A devil made me do it. I mean, your honor. How do we handle that? You want to our position that this speedy trial act right trumps what a lawyer, prosecutor or judge may do. That rule should be filed and it should be followed in violent and it was not

. You got a green from the US attorney. The two of you go to the Magistrate Judge. The Magistrate says, fine, I'm going to postpone it 60 days. And now your client comes up later and says, hold it, speedy trial act. This is after the fact. Speedy trial act violation. Everything that was done is wrong. And Keith says, basically, you can't invite the court to make an error and then take the benefit of it. And in this case, the appellant did not invite error. The MJ should have marked it, Continuance Grader for 14 days because the rule doesn't allow there to be 30 or 60 or 90 or any number. Why didn't you just agree to 14 days if that's what you think was an error? In other words, you're charged with... You can't ask for 60 days and then come and say, I shouldn't have asked for 60 days. Slot my hands. A devil made me do it. I mean, your honor. How do we handle that? You want to our position that this speedy trial act right trumps what a lawyer, prosecutor or judge may do. That rule should be filed and it should be followed in violent and it was not. That's the second part of our argument as well. Judge, I mean, I didn't use the words, but are you familiar with invited error doctrine? I am your honor. Which is what does he admire is suggesting your honor and I do understand that. Judge Neymar explained if the client or if an individual asks the court to do something and the court does it and then later on he wants to say, well, that's error. Yes. I really didn't want that. That's the invited error doctrine. It is your honor. I circle back to my initial argument which is under the title 18, the arrested person is the one who has a right to waive or continue a preliminary hearing. The arrested person. You have a case that the attorney is without authority to ask for a continuance without... No, I know. It's the opposite. I do not have such a case. I notice that you were appointed. When did you take over this case? Your honor is around September 29th or September 30th when the super senior indictment came down. I asked you that because I didn't want to make this comment without knowing when you were appointed

. That's the second part of our argument as well. Judge, I mean, I didn't use the words, but are you familiar with invited error doctrine? I am your honor. Which is what does he admire is suggesting your honor and I do understand that. Judge Neymar explained if the client or if an individual asks the court to do something and the court does it and then later on he wants to say, well, that's error. Yes. I really didn't want that. That's the invited error doctrine. It is your honor. I circle back to my initial argument which is under the title 18, the arrested person is the one who has a right to waive or continue a preliminary hearing. The arrested person. You have a case that the attorney is without authority to ask for a continuance without... No, I know. It's the opposite. I do not have such a case. I notice that you were appointed. When did you take over this case? Your honor is around September 29th or September 30th when the super senior indictment came down. I asked you that because I didn't want to make this comment without knowing when you were appointed. But looking at this record, one could construe that Mr. Dixon was really trying to massage the record to get the Speedy Trial Act to run in any way that he could. To avoid being indicted which happened on September 9th. Your honor, with all the... Not relating that to anything that you did. Yes. Your honor, with all the interesting time that I've had with the appellant and it has been a very interesting representation of this gentleman, I think that this court cannot get around the fact that as soon as he found out, as soon as he found out, he immediately objected. And so I would take a question, Your Honor. The motives of Mr. of the appellant, I think the appellant wanted his day in court as fast as he could get it. Mr. Rooder, I understand your court appointed here. I want to acknowledge your service in this case. It's always my pleasure to be here today. Yeah. And we'll come down and greet the great council and proceed on to the next case.

Thank you very much. Good morning, Gerald Rooter on behalf of the appellant, Mr. General Dixon. You're on this case initially came this court on a brief that I submitted. Court, however, asked that there be a fully brief on the issue of speedy trial. And I'm more than happy to do that. I did do that. And you might understand that the speedy trial act is kind of divided into two sections. There's a question of from the time of arrest until the time of indictment, as there have been a denial of one's right to a speedy trial. And there's also a time after indictment until the time of trial under section 3161. In order for the court to determine whether or not a person has been denied the right to a speedy trial. This morning, I would like to spend my time discussing the time from the arrest of Mr. Dixon until the indictment of Mr. Dixon. I will not concede your honor, but I will simply submit on the brief as to the denial post. That's the better argument, the 30-day period of pre-indipment. And I appreciate that. So your honor Mr. Dixon is arrested on July 21 of 2010. He's indicted on September 9 of 2010. By anyone's calculation, that of course would exceed the 30-day rule, which is set forth in the statute itself under section 3161 of Title 18. The, it's our position, your honor, that because that 30-day period was exceeded, the indictment should in fact be dismissed. Your honor, what would happen? I would confess first what happened on August 2, when Robert X. Letter was filed requesting and preliminary hearing be continued for 60 days, until September 22, 2010 in order to allow the parties to discuss a reasonable basis for settling the case. And Judge Hamilton, I believe that is the heart of our argument. The argument is as follows. Rule 5.1c says that the Madsford Judge must hold the preliminary here within a reasonable time, but not to exceed 14 days. So Mr. Dixon had his detention hearing, think around July 24, the Madsford Judge in fact did set a preliminary hearing within a timely fashion within that 14-day period. So then what happens is, as you just pointed out, Judge Hamilton, a letter is sent from Mr. Dixon's counsel, and you just read part of it. And what he indicated, Your Honor, was that on behalf of this client, he was waving his clients right to a preliminary hearing. And merely thereafter, Judge Hamilton, there became a lot of angst between Mr. Dixon and his counsel. Mr. Dixon did not know, according to the record, that his client had waved his right, I should say, waved the totally, but he continued that preliminary hearing date. We know that for a couple of reasons. Number one, the letter that his counsel wrote to the court was not carbon copied to Mr. Dixon. It was actually carbon copied to the prosecutors. And more importantly, you all now have read the transcript of what were called up in Maryland, at least, an attorney inquiry hearing. And at that hearing, where Mr. Dixon told Judge Grimm his version of the events, and where counsel for Mr. Dixon told his version of the events, the record is very clear that Mr. Dixon immediately asserted his right to a speedy trial and told the minister of Judge that he had not given a permission to his counsel to have continued that preliminary hearing. And when his counsel was— That came after the fact, are you saying they could simply nullify that, the effect of that letter? Your Honor, I am saying this. I'm saying when this court examines Rule 5.1 that Rule 5.1 was not complied with. And so, in the first instance, I'm urging the court to find that a defense counsel does not have the absolute right to bind his client on such an important matter as the waiver or the contiguous of a preliminary hearing. What date did this latter discussion take place for the matter? The letter was dated July 28, Your Honor. That's inside the 14-day rule. And then an attorney inquiry hearing was held on September 8, which happens to be the same day the indictment came down. It was sealed, I think, at the time, but at the same time. I thought the indictment came down on September 9. Well, it could have been the ninth—it became public, Your Honor, either maybe it was not sealed, it came down the ninth. But on that—on about that same date, it's one that attorney inquiry hearing took place. And the fact is that Mr. Dixon said then he had not authorized his lawyer to do anything in terms of waiving or continuing his right to a hearing. I don't think the matter should be construed as a waiver. The letter was— A continuance. Was the request for a continuance— It was. I would think the—would be within the range of conduct that a lawyer can conduct on behalf of his client. It's not a big deal. He's basically saying, like a continuance, if we can explore getting rid of this case. And he does that. And it turns out that the client didn't like that later, but that doesn't make the letter illegitimate. Your Honor, I'm suggesting to the court that it might because of a fine reading of rule 5.1. And this is what— You know, first— Hasn't the Hopkins case disposed of that? Well, Your Honor, Hopkins certainly speaks of that, but it didn't make the arguments that I'm making in terms of a violation of rule 5.1. I think Hopkins more or less addresses the fact that a lawyer might have the right to do what, in this case, as trial counsel did. But I still think it has to be a conformity— Could there ever any pre-indipement negotiations for resolving the case? I am aware of absolutely none. Were you counsel—you weren't counsel below, though. That's correct. And is there anything in the record that tells us that one way or the other? No. There's not at all. Your Honor, rule—let me first go to Section 3060 of Title I-10. And it notes here in Subsection B that it says, except it's provided by a Subsection C of this section, or unless the arrested person— Unless the arrested person waves the preliminary examination. That's— Not a waiver. This was a letter of continuance, a very innocent act, a very often prudent act consistent with good representation. He asked for a continuance so he can explore getting rid of the case. Yes. Now, that by operation of law has certain effects. But at that point in time, there's no indication that the client had said, I want to go to trial immediately. I don't want any post-pomance or motions. I want the 70—the 30 days to run. There's no indication of that. This is just an ordinary letter requesting the continuance and the judge approved it 60 days. We hear for the first time that it's a problem at September 9 when they're before the court. But up until that point in time, I don't understand why we can't accept the continuance as a stop in the clock. You shouldn't do it for three reasons. Number one is because I think it is such a critical stage of the proceedings that there should be an affirmative showing that a defendant has waved that very important right. But it's not a waiver. Your Honor, or— Or a continuance because under— It's a continuance to talk. That your Honor is Section 3060 subsection C, and I recognize a person can ask that the prominent hearing be also continued beyond a certain date. The truth of the matter is I'm not even sure your client can wave it. It's really in the public interest to have the speedy trial. We have a lot of indications on that. It doesn't turn on that. It turns on whether the 30 days runs and whether there was legitimate conduct that told those 30—the running of the clock during that period. It seems to me there's nothing to suggest that letter was in bad faith or was anything other than what it indicated, which was we want to continuance to talk. The judge says fine. If we accept that, then there's no problem in this case then, right? If we were to accept the letter was legitimate. No. Because I want to get to my Rule 5.1 C argument, Your Honor. But before you get to that— Yes, sir. I thought I asked you and you didn't make it clear. First of all, was there an order entering the 60-day extension? No, sir. Just from the bench. All right. There was a note— Not marginal order, wasn't there? Your Honor, I don't think there's anything in the record about that. A letter was sent by counsel asking for a continuance and nothing happened until the attorney inquiry occurred on September 9th and he was indicted on the same day. That's not my understanding. My understanding was that the request was granted promptly after the letter was received. I stand to be correct. I do not recall seen in the documentaries where there was a notation that it had been granted that that request for a continuance had been granted. And if it had, Your Honor, it still— Notation was on the motion, wasn't it? Was on the letter or something? I did not, Your Honor. I did not see it. And I have the— Where is your understanding that there was a notation that the 60-day extension had been granted? My understanding is there was no notation of any type. It just—what happened, Your Honor, he got indicted before the 60-day has had transpired. So it became a mood issue. There was—and that's part of my—if you will—complete Judge Hamilton as I think that if Rule 5.1 is adhered to strictly, what should happen is that there should be good cause shown. Well, I admit that the letter attempted to show good cause, the good cause being we're going to try to resolve this pretrial. How do you handle our Keith case where we said a defendant should be prevented from using the Speedy Trial Act as a sword and a shield, sandbagging the court and the government by agreeing to a continuance and then later urging dismissal using the time covered by the continuance? Because, Your Honor, this defendant never agreed and Judge Neymar, Your Honor— I just want to—let me posit—we have two different propositions. You can address the letter and attack it. But if we accept the letter as a proper conduct and part of the attorney on behalf of the defendant, then you have the Keith case which would preclude your challenging that time on the basis you're talking about. As to the letter, yes, but after Rule 5.1, see, I think the answer is no. The rule, again, Judge Neymar says that with a defendant's consent and a punishable of good cause, this court is saying, well, the letter, if we can take a notice that the fact of that letter came from as lawyer and it should be accepted as such, then there have to be a showing of good cause. If there's no hearing before court or there's no order signed indicating that a judge has found good cause, then there's no good cause. Just because a letter comes from one of us, Defense Counsel, saying something doesn't make it so. Clearly Mr. Ritzberg did what he thought was correct. He did what he thought he should do. But there's no showing on the record that anybody ruled on it. Let's assume that you're right. I'm not sure that that gives relief to your client because later in the timeline, he sends a letter on his own to the district court. If a lawyer had done that, it would be called a motion to remove or substitute counsel. So, when that letter comes out on August 23rd, why wouldn't that have stopped the clock? Because I don't recall any argument in your brief that challenges the efficacy of that letter. Your Honor, it does not. In fact, one might argue that the clock may be told as of the date of that letter. Well, if that's true, it may be argued, Judge A.G. Wait a minute. If that's correct, and I would assume that opposing counsel will say that it is, then you don't get to the 30 days. You do not get to the 30 days. Your Honor, in relation to Judge D. Myers asking, well, how is it that the appellant should get the benefit of an after the fact objection? The answer, Judge D. Myers, I think that this gentleman made his objection as soon as he found out about it. I understand, but there are certain conduct that attorneys take in cases that are just not that critical. And to tell the court, I'd like to have a little time to discuss this with my client and with the opposing, with the US attorney, to see if we can get rid of this case and send a letter to the court to Magistrip Grimm. Magistrip Judge Grimm said, we want this postponement for 60 days, which I understand was granted, but you say it wasn't. Your Honor, I'm saying to this court, I'm not aware of anything in the record of Diacon entries, which indicates that anybody- It was scheduled earlier. It had to have been postponed by somebody, right? Yes. It was certainly was pulled off the Diacon because it didn't happen. That is for sure. Well, even if we accept your argument as to the August 2 letter, what about Judge H.E.'s question about this letter that your client wrote himself dated August 23? Your Honor, that's simply his assertion of his right to a SPD trial. That what? That is his- That is for a new lawyer. And he did so, Your Honor, because what has lawyer had done? He did so because he had not authorized the continuance of the preliminary hearing. Right, but for our purposes, I don't think that makes any difference. As I read this, which I think you admitted before, you don't challenge, this is a motion to remove counsel. And that motion stopped the clock until there was a hearing, which was coterminous with the other hearings in the indictment. Yes. And your Honor, knowing that that conundrum exists is why I urge this court to find that a preliminary hearing is not a small deal. The whole idea of it is to make sure that a person does not languish in jail. If we need a degree of time to make sure that a problem caused exists for a person to be held. That's the whole idea behind it. Mr. Dixon made it very clear in that letter, and I might add dozens of others throughout my representation of him. When I became involved, always asserted his rights early and often. And it seems to me that when the court examines the attorney inquiry hearing that was held on the 9th of September, we'd all have to agree that the only complaint that Mr. Dixon raised at that point was the fact that his lawyer had not told him that he was going to waive his right to a preliminary hearing. So he had done all that he could possibly do, which is bring it to the court's attention. And he ought not, in my opinion, Judge A.J., to be prejudiced by the fact that he had to do something to bring it to somebody's attention, and that's precisely what he did. All right. Thank you. We'll hear from you on Rebuttal. Mr. Warwick. Thank you, Mr. Warwick. Good morning, and may it please the court. I am James Warwick. I am the Assistant U.S. Attorney who investigated, indicted, and then tried this matter. First of all, I'd like to clarify a factual point that was referenced in Mr. Ruder's argument. The letter of July 28th by Mr. Ristberg was dated to 28th, was docketed by the Magistrate Court on August 2nd, and was approved on August 2nd. The docket entries in the docket sheet for the Magistrate Court reflects. Is that in our appendix? I apologize for the oversight. It was not placed in the joint appendix, but I will make a motion to further supplement the appendix to include this docket sheet. You can do that if you'll do that within a week and give a copy to your colleague. I will do that. I will do that. The docket entry 11 references, and again, August 2nd of 2010, motion to continue preliminary hearing for 60 days up to September 22nd. And then docket entry 12, also dated August 2nd, order granting number 11 motion to continue preliminary hearing for 60 days. So the court did officially act on Mr. Ristberg's letter. It construed as a motion to continue and granted that letter. The court also had a question, Mr. Ruter, about Mr. Dixon's pro-say letter to the court dated August 23rd. And I submit that the questions that Justice Judge A.G. asked right on point with regard to that letter, because that should be construed as a motion, because the letter generated action on behalf of the magistrate judge. So therefore, it was docketed appropriately as a motion. It was considered a motion, and it was acted on. There was a hearing held. There was a finding made and counsel were relieved. I think the most important thing to consider here in terms of any motion for a continuance is what the equities are. And there are certainly equities in this case. Equities in favor of the government would include knowledge that three people were involved in a very serious armed robbery, a takeover robbery of a bank. And we had one person in custody. We're looking to get the other two. So there's an incentive on the part of the government to seek cooperation in order to get the other two individuals off the street. From the standpoint of the defendant and what Mr. Rispurg was trying to explore, the equities included the fact that he would try to negotiate a disposition short of indictment on behalf of his client that would possibly eliminate the seven year consecutive sentence for brandishing a firearm during the course of a robbery. That's something that any defense counsel would look to negotiate. Or there any negotiations between Mr. Dixon's attorney and yourself with Mr. Dixon? Yes, there were. The evidence of that is first of all is contained in the face of Mr. Rispurg's letter in which he informs the court that the reason for the request in delaying the preliminary hearing was to engage in negotiations with the government. And one of the other equities. I understand what the letter said, but where in the record is there any evidence that these negotiations took place? Other than the fact of the letter, there is nothing in the record. There were negotiations. Early discovery was turned over. And that's one of the benefits to a defendant is that in order to prompt quick cooperation so the government could investigate the other two accomplices. The government provided and I did provide bank photographs and other discovery within a few days of the detention hearing so that Mr. Rispurg could evaluate that evidence, present that evidence to his client and determine if Mr. Dixon was in fact willing to cooperate in exchange for possible leniency. So those were the equities that flow on either side with regard to a continuance of this nature. I submit to the court that I'm not sure I can understand that that constituted negotiations. Well, the quid pro quo that takes two parties to negotiate something. Exactly. And Mr. Rispurg discussed with me the possible disposition short of indictment if it involves substantial assistance to the government. And that was the reason for delaying the preliminary hearing to allow. Does the record reflect any of that? The record below does not reflect anything other than the letter of Mr. Rispurg. Most of as a practical matter, your honor, most of the negotiations concerning cooperation does not take place in the court docket for obvious reasons. You have security concerns and the negotiations between councilor or confidential and share it only with the client agency, the US attorney and the defendant himself or herself. With regard to the letter of Mr. Rispurg, I submit that and the Supreme Court is held and there are also two cases that I'd like to bring to the court's attention and submit in a 28J letter. And that is the first circuit this year in the United States versus Gates held that council has the power to seek continuances without first obtaining the permission of a client. And the Supreme Court in 2000 New York versus Hill within the context of an interstate agreement on detainer argument held that council can waive speedy trial interests of a client and then absent demonstration of ineffectiveness of council. So that council's word on that matter is the last word. And I submit that that's the appropriate standard this court has has held similarly in Hopkins. And I think that the precedent from the Supreme Court and this court should not be disturbed. Mr. Rispurg was a and is a furry experienced criminal defense attorney. I have known him for probably 20 years. He's practiced in Baltimore during that time and he's respected. He's diligent. And in writing that letter to the court on July 28th, he had Mr. Dixon's best interest in mind. Mr. Dixon, it's not such a critical stage of the proceeding that he needs to or a defendant needs to ratify every act done by council. So it's your position then. The granting of the 60 days. Of course, ran up ran beyond the indictment date of September 9th. That's correct when when it became apparent to the government because the government was was prepared and had had a complaint signed in July 16th. That was the basis for the arrest. The government could have proceeded quickly with an indictment. It was asked to for bear on that indictment for the purposes and negotiations. The government agreed to do that. And then when informed by Judge Grims, then magistrate Grims chambers that there would be a hearing on a motion to leave council on September 9th, the government sought and obtained an indictment in an abundance of caution. The superseding indictment was there after return on the 22nd. And really the matter of council was not finally resolved until I think it was September 29th when Mr. Ruder was appointed a successor council to Mr. Rysberg. If the court has any other questions, I'll be happy to address them. Thank you, Mr. Org. Thank you. All right, Mr. Ruder. Thank you, Mr. George. Judge Hamilton, in relation to your question, there was this very lengthy attorney inquiry here in September 8th. The court will notice that there's no discussions. Is it the 8th of the 9th? Let's get that straight. I thought it was the 9th. Your Honor, by a poll, I have it right here, in front of me. Well, I just think we ought to use the right date because I think it's right. It is September 9th. Mr. Dixon had written his letter on August 23rd. As soon as he found out that his counsel had continued his right to a preliminary hearing. Rule 5.1 C, I also think should be noted this. The way I read it, it seemed your Honor that all that Mr. Rysberg should have had the right to have done was to ask for a continuance of 14 days. That's by a clear meeting of subsection D. He can't ask for 60 days or 90 days or 120 days. It defeats the whole purpose of the speedy trial act. Now you're saying that Judge Grimm erred. Yes. That's the... Well, how do you handle the Keith case? I mean, you know, you can't go and ask a court to do something and then come back and say the court was in error in doing so. And that's what the Keith says. It says you can't ask a shield and a sword. And I think that's a very good proposition. We just can't gotcha the court all the time. It seems to me if it's in the interest of the defendant to discuss with the US attorney a way to get out of this case and get preliminary discovery and they go to the court together basically and ask for 60 days and the court enters an order granting 60 days. And now you're saying it was error for you to have gone to the court and asked for that? I'm saying you're wrong that the way in which he was asked and the way in which he was granted, it's clearly in violation of rule 5.1. You should only be able to get... Why shouldn't we hold you to your letter? I mean, you asked for not you personally, but you asked for a 60 extension. You wanted to try to get out of this case. You got a green from the US attorney. The two of you go to the Magistrate Judge. The Magistrate says, fine, I'm going to postpone it 60 days. And now your client comes up later and says, hold it, speedy trial act. This is after the fact. Speedy trial act violation. Everything that was done is wrong. And Keith says, basically, you can't invite the court to make an error and then take the benefit of it. And in this case, the appellant did not invite error. The MJ should have marked it, Continuance Grader for 14 days because the rule doesn't allow there to be 30 or 60 or 90 or any number. Why didn't you just agree to 14 days if that's what you think was an error? In other words, you're charged with... You can't ask for 60 days and then come and say, I shouldn't have asked for 60 days. Slot my hands. A devil made me do it. I mean, your honor. How do we handle that? You want to our position that this speedy trial act right trumps what a lawyer, prosecutor or judge may do. That rule should be filed and it should be followed in violent and it was not. That's the second part of our argument as well. Judge, I mean, I didn't use the words, but are you familiar with invited error doctrine? I am your honor. Which is what does he admire is suggesting your honor and I do understand that. Judge Neymar explained if the client or if an individual asks the court to do something and the court does it and then later on he wants to say, well, that's error. Yes. I really didn't want that. That's the invited error doctrine. It is your honor. I circle back to my initial argument which is under the title 18, the arrested person is the one who has a right to waive or continue a preliminary hearing. The arrested person. You have a case that the attorney is without authority to ask for a continuance without... No, I know. It's the opposite. I do not have such a case. I notice that you were appointed. When did you take over this case? Your honor is around September 29th or September 30th when the super senior indictment came down. I asked you that because I didn't want to make this comment without knowing when you were appointed. But looking at this record, one could construe that Mr. Dixon was really trying to massage the record to get the Speedy Trial Act to run in any way that he could. To avoid being indicted which happened on September 9th. Your honor, with all the... Not relating that to anything that you did. Yes. Your honor, with all the interesting time that I've had with the appellant and it has been a very interesting representation of this gentleman, I think that this court cannot get around the fact that as soon as he found out, as soon as he found out, he immediately objected. And so I would take a question, Your Honor. The motives of Mr. of the appellant, I think the appellant wanted his day in court as fast as he could get it. Mr. Rooder, I understand your court appointed here. I want to acknowledge your service in this case. It's always my pleasure to be here today. Yeah. And we'll come down and greet the great council and proceed on to the next case