and i believe that the court kicked it back and then a government counsel in the us public defenders office filed the brief and then the government started this panel wanted supplemental briefing they pointed me in november t how much more clear it can be that he wanted to represent himself now during his conversations with the district court if both became apparent with all due respect that the district court wanted mr dewberry to be represented by counsel and you could almost go so far by looking at the record that the district court was hoping the matter could be played out and it went so far were the just record kept on asking him and mr dewberry finally said on the record at one point why do you keep asking me about so for presentation i filed a motion now this isn't mr dewberry didn't say this but in in essence i filed a motion it was granted i'm representing myself so he couldn't say this to a judge bork it i but move on their issues been resolved so i don't think there's any doubt that this record supports the fact that dewberry exercice is right to suffer a presentation so then i desk and take this pretty quickly to the second issue the fact that he was denied his right to represent himself because as the force the other lawyer to do it and he was name escapes me and i'm happy i'm ready to do it if you want me to do it yes she did say that in the judge also told mr de vere i can appoint her to do it but but the problem with that your honor is that quizzical didn't he need to say i don't really care whether she wants to do it i want to represent myself well that's why he filed the motion it was granted right i mean in m perspective on that is if i stay there it's a done deal it doesn't matter it's a right to be represented to suffer a present yourself i don't need to give a reason because i fired her because we didn't get along whatever i think that's a red herring your honor i exercise my right and i think the public defender somewhat inserted herself by saying while representing him and maybe he would like representation if it wasn't me again all that was not needed there was  exercises a right it was granted with all due respect the just record should have moved on from that fact of the district court did not they were he appointed the public defender and a plea was worked out that she was no longer representing mr dewberry because of the magistrate's order and i think that's important because in some of these cases we're going to talk about because it appears the issue we're going to talk about today is an issue of first impression in this court is there are a number of questions asked of him any time he could have said no i do not want to proceed with this lawyer to represent myself how how do we get out from under the under well because for one thing we could look at the hernandez case in the ninth circuit what his options were in secondly he made he said he wanted to represent himself he never took that back so what's he supposed to do i mean we have to put some type of rule this suggests for patients on these defendants i made those i made a statement i want to represent myself you put this attorney on there who i didn't want on there so what do you do you want to hold up the police and say you know what look i said i'm just going to stand my ground i do not think that she did everything she was supposed to do or she did some things they didn't want to do because she in her apparently shaner job please greenman i didn't want her to negotiate for me i don't want her representing them so is your argument that it's not a voluntary plea is that how we how the court can then look at this i would think so the problem with saying it that way i think that some of the cases look if it's not voluntary you need and they said what's his options to go to a trial that's completely unconstitutional because i think at least we could all agree on that if that was the only issue i exercise my right to self representation of us tonight i went to trial that would be reversed  but i don't think he needs to go through that under the hernandez approach isn't that just considered involuntary as a matter of law i think it is i think it's a great way of thing here thank you and that's what it is it's and we don't even need to that other aspects of the law we don't need i'm more of a commercial lawyer than a corporate lawyer i can settle a case and still sue somebody for malpractise i don't need to go all the way through then specially why do we want to go through these judicial resources knowing that there's a trial that's unconstitutional so the only the only hope is that maybe he wins it and then it's moot but other than that everything would just start all over it really just doesn't not a practical answer so as far as with the government conceding that his his conduct did not warrant software presentation and i think it's clear that he asserted that as i stated there's hernandez case is the only circuit that i have found so far that allows a person to can to maintain his further rights by pleading guilty and going back and unconstitutional process because we all agree it would in fact her name is use that term i don't know if it's unconstitutional is probably not the right way but let's just call it almost be void on its face because it's clear the u s supreme court said i have a right to represent myself you're denying it so why are you making me go through a trial you're making me do you're making me the law doesn't make us do i'm sorry can't think the terms it doesn't make is you for of listings right if you deny that at all and even if you make them do a guilty plea they're still going to get to their self for a presentation and i think that would even be more important in this case because with all due respect to the district court judge hammer to get this public defender back on this case badgered mr dewberry about why it's a right if something's a constitutional right i don't need to tell you the why are you are you are you know that this is somehow structural and there's plenty of constitutional rights right that you that that's a valid and voluntary guilty plea you just can't raise him right after that why is this one different why is this self represent harmless i cannot give you a quote on that but i know that's out there somewhere i'd be happy to supplement that and that's why i think this one and i think of all the rights so far presentation i mean because it's not the right of your czerny i have the right to manage my fares and you're taking way you know because what we have risk here is liberty right if i don't want the public defender to do it and i want to take a chance yeah we know the chances of him winning as opposed to being represented by counsel is pretty well zero but that's his right to do that and that's what about the concept that the guilty plea breaks the chain of of this such that you no longer look back to constitutional violations  fundamental right to self represent yourself and the fact that you've you're denying me that right and making me plead guilty you're denying that right and i believe that's should be an exception to the break a obviously co equal and somewhat mean and yang right with the forever right and one that is also equally important that i read the record a little bit differently than counsel but obviously it i'm reading the record differently than everybody in this case because i did as noted after my bravura the record decided not to forward the issue about the behavior the behavior issue but i do read the record differently i do not recall that mr dewberry made a motion to represent himself i believe the way that this happened is that mr dewberry made a motion to disqualify ms allen his counsel so i was a fairly typical situation one would see where a defendant who is represented by an appointed counsel was unhappy with that counsel and will discuss in a minute i think some reasons why that unhappiness was present that then resulted in a hearing before the magistrate judge and that hearing i think the ostensible reason for the hearing initially was that the motion and what happens in this case i think in many cases is that mr dewberry was given some choices he was given the choice to hire a zone attorney which he did he could represent himself and so out of that process and i will note that this occurred there was there was a hearing that i think is not transcribed or was it was closed hearing obviously government was not present where this this this event actually happened about i think at the next hearing before the magistrate judge it becomes clear what the kind of the chain of events was throughout this case if you actually look at the record and then get a side to that extensively mr dewberry indicates that he understands that he is not someone wouldn't that be an affirmative assertion of the right to represent oneself and i don't know how you can say that was even i understand what you're saying that's right it came around sort of through the back door  but it once you get to that point it seems that he has to affirmatively request or choose one of the options and that seems like an affirmative interesting your honor that is not the case law there's a case i just looked at this morning centers garcia of the circuit where this is exactly what happened there was actually a trial the i believe the jet mr the defendant had a retained counsel thirteen counsel was disqualified the defendant no longer represented no more head funds to sufficient to indicate that he wanted that he would be there represent himself so that's interesting case i think if you look at a lot of these cases you'll find that's that's the factual pattern there so that in fact there i'm sorry so you're saying that that was an affirmative request i'm saying that it was not but that's very common in these cases that people are given and you'll see this in this case to mr dewberry is constantly saying on the record especially to the magistrate judge it's arson i am going with the choice you gave me he says that repeatedly he says this this is all i can do this is a choice you've given me i would note as i noted in my brief that he actually filed a motion or at least a letter to the court asking for appointment of counsel while all this was going on so everything that he sent is he wants to have a lawyer he just doesn't want to have miss allen and this court of other courts have said that if you if you're in this church in this box if your only choices are take the lawyer you don't like represent yourself or hire one by the in a situation where that's really not possible person does not have the financial resources to do that just to just as the magistrate judge did here he set mr dewberry on to represent himself even though mr duberry never asked for that but that's that but this court and other courts have said that is a way that you get to represent yourself it's recognize and as common as common fact pattern but that is what happened here and i think that's really important when we get to hearing before  judge whipple so just sort of understand your argument then you're saying that because of that backdrop the way it happened that it's not an unequivocal request i mean at that point let's stop stop right there magistrate said all right you've chosen option three are you saying that that's not you know that that is that i am not saying it's not an equivocal i'm saying that it should be recognized as being a safe different situation than a defendant who comes in the front door and says i absolutely want to represent myself that that i think those two situations they both get to the same place they both i think are the same for forever analysis but they are not the same in this case because i think it informs what happens at the this is backdrop for what happens with  whipple so then we get to judge weapon all and essentially what's going on there is i think it's clear from the record and it goes on for many many pages and mr dewberries main concern about this whole case is his ability to assert this justification defen defense on the facts of her case and the magistrate tells him that and then finally we get to the pretrial hearing judge will grant the government's motion and women a eliminating that defense from the trial it's about so i think given the backdrop of this defendant consistently not not saying i want to ever present myself but saying i want to be represented i think is totally reasonable who judge whipple to bring the conversation back around to this representation issue which which is what he did and then at that point what mr dewberry says is and he does say i want to represent represent myself he says those words but he says because she quit meaning miss allen his attorney quit judge will comes back and says i thought you fired her and then we get into the conversation with miss allen we ask her show represented the trial and she says yes she's perfectly willing to do that and so our contention basically is it's it's not clear and unequivocal because  is a perfect record of the clearest record in the world it sure isn't and i think we all wish it was better but that's what we're stuck with and so i think on that record you can find that it was not a clear and unequivocal request for a lawyer particularly given the backdrop of he never he always wanted to be represented and he actually move that really fairly and he's moving on to the second issue i think which i think is a very interesting one it is the government's contention that tallent versus henderson screen court case is the proper precedent in this case i think the case that has the most complete discussion of that issues in the saudi case are the first four circuit moussaoui being of course one of the nine eleven conspirators the fact that case are very very close to the facts of this one he was allowed to represent himself at some point that was  that was changed to him being represented by counsel he entered a guilty plea and the four circuit found that tall applied that any constitutional errors that occurred alleged constitutional errors that occurred before the guilty plea were no who has faced this issue but the ninth has held in that way that tall it is the correct case that to apply here if you look at the at the case at there when i search for nando's i mean the government of course disagrees with the notion that his guilty plea was involuntary because of the alleged forever violation i don't think the voluntariness issue is any different in this case and it isn't in any other case we certainly don't say in any other cases because someone is represented by counsel that somehow it's involuntary i think that would be a fiction frankly in this case there's a clear record before judge whipple that mr dewberry was asked many times i think especially in this case many times whether he was entering into this plea voluntarily whether it was happy with his that for purposes of this question that he did unequivocally request to represent himself and we get to the guilty plea hearing what procedure would someone in his situation have to abide testify in order to preserve objection to a motion in limine a allowing things like let's say impeachment on certain types of of a prior offense like why isn't the right to represent oneself different why isn't that different perspective that i don't think it's different it's not different i think in constitutional depth dimension than the right and toilet which had to do with the way in which juries were selected and whether there was racial discrimination which is a very important and fundamental right but the supreme court nonetheless said it was waived i think but i think the real answer that question goes to the kind of procedure it goes to a procedural issue i think more than than than than what you're getting at in terms of it is is it a kind of a special right i think the question is what i think a different rule is problematic if you were to say that the that that the i think it's premature in a sense because i think this case illustrates that and that's that's why i cited loose for you if we go  to the next monday and mr dewberry had wanted to go to trial i think it's only speculate to say that he couldn't have renewed his his request for suppers and haitian and that point and and gotten it so that's part of the problem is is that i think it's if you don't make people go through the whole process then you're going to have cases that come up here where in fact the result might have been different if you had made them go to the whole process but i think structurally that's problematic for the crew the appeals court this is the second issue i think it i i do think that with this issue i think that one of the cases that i cite here from the circuit and that is when i can't find just a moment hamilton versus groups i think is an excellent discussion of this issue which is that it  and i'll tell you truthfully that on this record i'm not sure this isn't the best record for the government then if you'd let the guy go to forever differ all the reasons i just it's our feet if he if you let him go and represent himself the governor we're in a box either way this is a this is a not a great record for either side of that and so i think a lot of defendants are fairly sophisticated about this and so if you have a rule that doesn't require them to go to trial then they are incentivized to make frankly less than clear records and a lot of these records are less than clear if you look at the case law by definition they're incentivized to make less than clear records and i think making making me go to trial to preserve this right is the right thing to do the last point is they can go to trial and reason is because it was made later in the proceeding you know that was at the sentencing here and so i think i think for the purpose of determining whether the plea whether there was a clear unequivocal waiver you have to look at what happened in the pretrial  tried i've tried cases in front arguable for twenty years so he says things sometimes that a little out of school we know that but it's not actually clear to me that that he wasn't that that wasn't something he thought of after the fact but more to the point the i think the answer is no because this court no court has ever said the someone who enters a guilty plea with competent counsel is doing and does and indicate on the record that they're doing so voluntarily that that's an involuntary plea there's nothing different about this case than in any other case that you look at so that's my what i would say to the court is that that is in fact what is what you should follow that you should reject henderson or follow the vast majority of circuits who have said the to here thank you and i think i have your answer for the reason why as you stated earlier we can all anybody's fractals criminal law we can almost in our sleep go through the plea you're waving your right to compulsory witnesses the right to appeal whatever go through the long list so why would the reason why it's different here for dewberry and people situate like him i think would be more fair and sort of trying to hide the aig to say mr dewberry if you do plead guilty i very mind you that you've asked to suffer to be self to represent yourself if you plead guilty you are waving your right to argue that going forward but we don't do that in  guilty so maybe if you don't want to go along with hernandez at a bare minimum if there is a case before a trial court and there is an issue whether the defendant asserted his right to s representation and perhaps that was being taken away or whatever i think it a bare minimum for just fairness to let him know during a plea agreement that if you please you're not going to be able to come back and say you had oh you can argue that your right to sell for a presentation was violated that that's what i think we should do if that's the case i get it you know having one panel out of  four i think that would be one of the answers i think the answer is fall or nando's especially in this case but it's not going forward i think at least this court should send down or use the term a warning to the trial court judges that  indicated he didn't think there was a record for the or a motion to represent himself i would direct the court to document one forty five at the trial court below i believe it was filed one to twenty nine of twenty sixty i have no furthe