our first case of the day it is united states versus hodge number fifteen dash to six two one raised seven issues in this series of moving parts here there certainly are there certainly are given the federal crimes that were charged the territorial crimes with the courts indulgence i'd like to start with the pollution area issue that i think is a very important issue concerning mr hodges a request for counsel of choice in the denial of the district court of his counsel of choice is interesting lee the record reflects a colloquy with mr hodge directly in this issue of his counsel of choice is solely whether he intends to stay with a public defender or to represent himself when there aren't wasn't there are an interaction earlier where mr joseph had indicated a long time in advance maybe some was going to happen but then it's literally the eve of trial when there's an attempt to make a switch and yes and all of that is accurate and the record doesn't have the district court have not just the discretion but the obligation to see that the system doesn't get gained to see that people aren't messing with the courts calendar in a way for strategic advantage and i agree with that determination as to whether the defending the simply trying to game the system or is there a legitimate reason for the request to substitute counsel and there is nothing in this record there are two pages in the transcript where the where judge gomez directly colloquy is the defendant and it has nothing to do with why is he dissatisfied with attorney jupiter it only has to do with you either stay with attorney jupiter or you represent yourself and  said or were really there well i judge i read the case law to should to mean that the court has an obligation to directly colloquy the defendant and as a practical matter i don't think to expect a defendant to stand up and speak to the court without being addressed by the court i don't think that she sets a bright line rule for that that it must be a defendant who  well judge the the cases of mcmahon and of a wealthy wealthy says without well without minimal inquiry into the reason for the defendant's dissatisfaction right so i see what you're on are saying i have not seen a case where it says the defendant must be colic we the colloquy with the counsel within the defendant apparent has an and it was pretty careful inquiry and it was in korea with the defendant sitting right there i mean there are cases we do have cases where there are some rights the supreme court said you can't rely on what the lawyer is saying you have to ask the person who got nothing like that on this substitution of counsel point and we'd be moving out further then evidently anybody's ever gone before on that right well i don't know that i think it would only be stating what has been clearly apparent from the record in these multitude of cases that we have cited in the briefs and  court that he represented the petitioner diligently the record reveals absolutely no inquiry by the trial court into appellant mcmahon's dissatisfaction with counsel so even given that with the record that we have there's no discussion about the dissatisfaction with counsel with the public defender and i think it to expect the public how do we know there was dissatisfaction don't we know that he wanted somebody record well the well i think the problem with that is that the case law says and mcmahon and welty and goldberg all from the circuit say that in the absence of an inquiry there's no way to know so there can be supposition or assumptions in any in any instance but i think the case isn't a bird it's the burden on the movement though to come forward and show why to go there's no breakdown and and defendant doesn't say oh wait a minute there is a breakdown i don't know what he's done well it is the defendants it would be my burden it's my position it would be my burden if there had been a direct inquiry of the defendant and judge gomez to determine that the defendant's explanation was was not satisfactory that was well i but that didn't happen here it didn't happen it's not you so you're saying it's not your burden it is not my burd twenty four so absolutely or absolutely why doesn't our decision in cassiano control that issue in and i recognise there's you know a circuit authority you did a good job you know explaining how from my reading of the facts and the opinion is very explicit as to the facts we have it is a continuing offense the carjackings that the kidnapping are continuing in in my in my view this case is different in the sense that it was a simultaneous act the act of the the shooting of a you've got to that's ever really got to predicate crimes though that's the is not the critical similarity the other circuit cases that you explain disagree with what we said in cassiano regarding predicate offenses being the measuring stick they instead refer to uses of the  firearm correct that's correct right right but here in both this case and in cassiano you have distinct crimes namely attempted murder and armed robbery and that that is true though so we are stuck with that predicate offense frame of reference for a well a then i look at d s and i look at the way diaz deals with the nine twenty four c and what is the unit of prosecution but the end yes doesn't change kind of sound doesn't it doesn't discuss cussing out it was far as i recall and it certainly certainly points to a different aspect of the operation of allies ing what is the unit of prosecution and twenty four c case and it seems to me the cases and currents in out of the seven circuit fifths out of the fifth circuit finlay out of the second circuit talk about a simultaneous act that i wear then involves true offenses where one firearm is used and it's the even if we thought that made sense we got what we've got right we've got our own binding precedent that we have to follow right i mean the tenth circuit says how many times you use the firearm or what i mean there are different tests in different circuits but we've got what we've got and we're bound by well or any is there any way you can distinguish cassiano and if there isn't maybe we should be talking about some of these other double jeopardy arguments and well  the factual distinction that i have posed to the court between this case and cassiano is the simultaneous nature of the commission of the predicate acts as opposed to cassiano which is the continuing nature thanks ok with regard to of in and this i guess requires this court to diviner analyze virgin islands law do you argue one of them has to go six or seven right that's statute the twenty two fifty three statute and virgin islands section fourteen were designed for that because and now we're back to the facts of this case in a simultaneous ar for us here for a moment you say that six and seven have to go because they're essentially the same but isn't it the case that that you know you may have some first degree assaults that are attempted birth but not all first degree assault certain murders that that you you'll have some overlap there but not perfect overlap because you could have a first degree assault that was not an attempted murder right well i think that is true i think under the yeah so logically there are there are elements that you need for attempted murder that you don't need for first degree assault and so you under the blocker test you've got separate crimes and not a double jeopardy problem is that right i think under the facts of this case the  shooting of the security guard or the the armed money carrier is both i mean that that is the act that that that follows the assault if in these particular circumstances one is a subset of the other then it's double jeopardy or are set up as a test that would say if you can if there is an element that's needed to prove one and not  i think you said six seven eight on the one hand of the nine eleven even if we agree with you if i'm not mistaken those crimes six seven eight were all fifteen year penalties concurrent and nine how does one zero four interact with section twenty well twenty two fifty three is my understanding is the unlawful possession of a firearm right and does it does that act explain to me whether one of the four  has the same a put ability with regard to that offense as any other doesn't i would i would believe that the it does my understanding from reading the cases is that because it the the the twenty to fifty three is a firearm and unlicensed use of a firearm possession of a firearm because we have one use of a firearm these are duplicative counts  and that's why under the operation of one of four he can only be punished he cannot be punished under all three what is exact remedy under one of four is it one stays in the i'm sorry what the  there's an owner sentence under one of the counts the other stayed that's what i read out of tyson ok right and then once the sentence is served there they're vacated i guess right i would imagine and again that the law says they can be charged and someone can be found guilty of violating multiple provisions but you can only be punished for one offense for really just talking about the the sentencing that's right i see my time's up analyzing the elements in a lot burger at least the conclusion that will different counts have different elements maybe i'm sorry i'm just going to say you want to go right to one of four wrestle with the one off worthing ok we we seem to have virgin islands has spoken pretty explicitly about that in the williams case how how do you get around that you want to i think there was sponsor that is twenty to fifty three a is a sensing a handsome and it provides for sensing enhancements for the end crimes and so in the legislature the virgin islands has said that is permissible to have the sensing enhancement and there's not a double jeopardy problem because that of the legislature also says you can't be punished for the same conduct more than but again we don't we don't we have to accept that as i mean i know your theory of the case was that he he violently attacked both but the jury didn't agree as t use your it's up to you to persuade us but then it seems like a pretty big stumbling block you want to there it is it is a challenge to present it but again i guess my argument would be and that and i don't think the slow down a little bit if i heard what you just said correctly you're saying that that a criminal defendant can have enhanced punishments based upon conduct that's yellin and i'm told we will get to that but let's let's try to get to the finish line i want to for because you know i can't say i have a lot of experience with one for it's i don't this is  seven eight but because it all came out of one occurrence he can only be punished for one of those crimes that's correct your honor and here because we have i have never found an answer to that question and i honestly don't know and i'm sorry i don't know the only thing i know what i gather from reading the taste law is that if a commission is stayed if the judgment get if some of the commissions get overturned on might have later down the road for collateral consequences for enhanced sentencing for example should the man ever get in trouble again does that mean that the conviction on its own constitutes a punishment whether there's a concurrent sentence or not and that regardless of what languages been used before in the face of one of four if they're sitting knowledge meant that this is these are convictions which violate that statute that the overlapping convictions need to be kicked yes right i would agree with that ok and i think that's correct i think that that was the ball case yes so then on nine twenty four see i assume your argument is you know whether it was brief that cassiano controls is there anything more to add on that or do you have any response to what counsel said on th really piers on this idea that maybe a general sense if you imposed a general sense then then that wouldn't be problematic in a circumstance like that is  general sentence cure double jeopardy problem is a good lawyer do you understand what i'm trying to get there you know i believe that they do and i believe that the answer is yes that is what a general sentence does which decides that you know it to have these convictions have to be reversed on double jeopardy grounds again the general synods here doesn't really alter because a court can just vacate two of those convictions both can stand because one and while there indeed may be overlap or similarity i think that it's possible to have one without the other i think that you can have like murder without you know x or with salt without having murder  be included in the murder but not necessarily or worse you could i suppose get into definitions about what constitutes an assault and whether a poisoning was an assault for the money came in at the last minute that's what it seemed to be that your honor that might be there on the that maybe the record doesn't the record doesn't disclose that judge gomez adverted to the fact that there per you know he didn't say i think there's gamesmanship going on but that's a consideration that i ok thank you so much you if i could address the government's arguments about the the choice of counsel issues because i think that's really at it at its base that's what we're dealing with a choice of counsel issue and his late justice of some fundamental constitutional right to have counsel of choice now there's there are certain certain reasons why a defendant would could be denied his counsel of choice but absence of an inquiry as to the defendant's dissatisfaction then there's nothing but again i'm fearful that you're putting the rabbit in the hat thereby presuming dissatisfaction i don't see it we we've seen myriad cases where there is a long train of complaints by the defendant with appointed counsel my lawyer is not calling me back my lawyer won't talk to my witnesses my lawyer is not investigating you know we we see those things all the time and this record is devoid of any of that and i can't quite figure out from this record maybe you can help us what happened here other than t conclude that you know it's nice to hire private counsel but that can be expensive and sometimes it takes a while the to marshal the funds to do that and if that's what happened here it doesn't mean that attorney jupiter best of course but not at the last minute when you're picking a jury consultant lopez there's a test isn't there you've got to you've got to show they're so a conflict of interest or a complete breakdown in communication or in iraq and savile conflict and none of those things are present here are they well they're not present because there was an inquiry home there was an inquiry and let's talk about the rabbit in the hat your your assertion is that the inquiry has to be made specifically to the defendant personally and that words have to come from the defendants now but that is the very question that you've acknowledged as you have to that you have no authority for that there's nothing out there that says that the inquiry has to be made to the defendant personally because there was inquiry it was made to the defendant's agent mr jupiter and mr du percent in fact we on the record with the defendant sitting there who made not a peep of this agreement that there was that none of those things were present right well if there was a question as to whether there was a conflict i don't think there's anything in the record that trace you but it was asked you know is is your client dissatisfied with you in any way so there was no direct question about this i don't know that there was a specific question about the reason for the defense desire for another lawyer and whether there was any dissatisfaction and i understand the agency idea that th lawyer speaks for the client but in a situation where the issue is the relationship between the defendant and the agent i think it would make sense to ask the defendant himself instead of relying  how how do you get from better practice to constitutional violation warrant thing overturning of a conviction that's a pretty big jump as and well only to say and you know i'm the cases all suggest that the defendant was asked directly so and so with that my time is up i thank you i thank you for your attention and consideration counsel