next casey for us this morning is united states versus hanson seventeen dash four one five nine please make your parents unsettle precedents reject the subsequent deviation and hold that mr hansen's waiver of counsel is invalid because he wasn't adequately advised about the nature of the offense possible defenses circumstances in mitigation applicable to so that i mean let me see if i fully understand your position because it seems to me that at least one could read what you said as taking out basically  binary choice in other words we go back to full ball von moltke or we go to something more loose and fast it seems to me that that there is some middle ground here which is the notion that our prior cases suggested that doing that sort of inquiry may be the it's a means to an end maybe the best way not the only way but that doesn't mean that arguably it doesn't mean that you don't look at that template of event mulkey standards and say ok at least in substance is this proceeding getting at the same thing in other words you didn't do the full blown inquiry you didn't do it in a structured way where you ask a litany of questions but you've got at the same things so my point to you is is this really a binary choice between something something that essentially is loose and doesn't really focus on the satisfaction of that or that something says are we in substance actually getting at the factors that were looted to do so to respond to that first of this court's opinions in the one nine hundred eighty s are absolutely categorical and unambiguous that all of these factors must be dealt into or the labor is per se invalid yeah and then we have cases later that interpret the import of those cases on things i don't think it really helps you to make an argument where there's only two choices but if you but if that's what you want to do that's fine well that's so the first point is that you can convert something from mandatory to options without contradicting prior precedent but if the court did go on to consider whether  on whether the universe of information that we're looking at in determining the knowing of voluntariness of the wave or does it stop at the time that that that proceeding ends in other words i could seek under one argument you consider the stuff before you consider you know his age circumstances were very early with the criminal justice system and then it stops right there either it's knowing or voluntary not or record it as a whole could suggest that you look at what you did a trial and you look at whether you definitely stop at the hearing because you only consider the if you take the government's position that we look at the record as a whole you can consider the record as a whole but only in so far as it supports an inference of what he knew at the time of the weight and here that there's nothing in the record that supports a strong inference that you knew what he needed to know at the time of the waiver you got to remember that the court indulges every reasonable presumption against a waiver and the inference is that the government is asking the court to draw don't support that mr hanson actually knew about the nature of the offense the defenses circumstances in mitigation and the mulcahey world then you do deem it to be improper reading of our cases that we can look at the record as a whole meaning things that went on in trial as to how they inform what you knew or didn't know if were not in the van multi world you just to acknowledge that we can look at the entire record to determine whether or not there was a way for i've got a primary argument in the back the i know just you've got me a little confused as to the answer that you just gave  that your primary argument is that we can you must do the colloquy that set forth in the judge district judges and let's watch the action so if we don't buy that or we say that we've got one moved all the ways and that is and to get the government admits that you can look at the whole record only to infer what he knew after labor here so that the waiver is not on going it happened at the hearing and you have to ask what he knew at the here and there's think do you think the court in this colloquy has to go through and explain all of the technical terms to the to the defendants i think if you look at the supreme court's decision in tovar which the government decided what the one is he really has to understand the nature of the offense and if it uses legal jargon you can't assume that he would know it particularly if he had no prior experience of the criminal justice system a lot of it was i mean the court even advised him that he'd had three recently three people that were similarly situated that were wanting to make take the same position as hammer and he did the question though and then the court told him the court told him and those people all lost he did and but the question under the von moltke factors which would govern what he actually knew is he has the know about what to what we're doing here he had to know if i accept counsel what can counsel healthy well the judge told him what counsel couldn't help him so he needed to know if mike step counsel he might be able to show that however statement these checks were sent to the bank they posted and the funds were sent out so easy he is still on this crate frankly crazy theory that he sent this check and the iris actually got their money so does the judge have to answer your theory does the judge have to say this theory you have i want you to know that your defense that you've articulated to me is invalid and you will be convicted no the judge has to based on the nature of the charge the judge has to discuss with him or if you take the whole record approach he has to understand at least one valid line of defense so that he can have some sense of what counsel could do for him and there's no evidence of that here and also to talk about  how we know his defense wasn't that phase and how we can infer that he didn't understand possible defenses and the nature of the charge when he's questioning these witnesses from all the witnesses he's talking about not what happened when he since the checks which would be in good faith defense but what happened after he says after these checks were honored they were not that that they posted they were never designed or he's trying to prove that the i r s got pa the judge did discuss good faith in terms of proposing the jury instructions and only after the court does the jury instruction does he ever talk about his faith so the fact that he only talked about this phase after he learned about it in the jury instructions conference and never did before that suggest that that's where he learned about it and we can therefore infer that six months earlier he had no idea about the nature of the charges there's also the fact that he wasn't advised about the applicable punished and he didn't know about the applicable punishment there's no evidence that he knew that the judge never informed the defendant of his authority to impose restitution and that was crucial in this case the judge in fact that i can impose up to one hundred five thousand dollars fine now a person than mr hanson has issues when i understand that's i mean i've got one hundred five thousand dollars in financial liabilities if i represent myself in and he had he was aware that he had a tax obligation to the iran's right but not one in forcible by the criminal court so he but he knew he was on the hook for that amount of money he did and that's why i think that the focus of the argument is since the i r s a paying of that amount of money is not immediately clear to me why that would have been a factor that would have been not he would not have known would have factored into his i was charged with i mean in the iris you know it's not the whether he agrees with it the i r s charged down the i r s charged him based in fact on criminal conduct associated with the liability and so he knows a liability he knows that's what they think and so the whole question is whether he knows that's what they think and if he gets convicted they are going to get what they think i mean doesn't you know that irrespective of whether he's advised about restitution the question is what the court was going to impose as a consequence of the criminal conviction conviction by the court right the distinction you're making but he would have known that if you'd been convicted of that crime he would have been on the hook that iris for that amount of money i don't know if i could say if i would say that but i don't think that the court has to go there because i think it can rest on him not understanding a crucial element of the offense and him not understanding any valid line of defense which he has to know he had to be in by the first of all but at a minimum he has to know about it and there's nothing in the record that suggests that he knew about the standby counsel make any difference here i mean he have a lawyer on standby that presumably he could contact and ask questions and talk about this case  answer the other thing is we can assume that standby counsel would have advised him what he needed to know because this court has repeatedly said we have to be able to do it without speculation and what standby counsel would have told him is purely stick nothing in the re thank you thank you on the record that the defendant is fully aware of the hazards and advantages or disadvantages of self representation and it lists them fifteen specific things that they either suggest are make mandatory are you aware of those i am ok and i assume that this district court probably had that and you acknowledge that he did not use this as a colloquy and that decisions are in this case is that right we moved all and it may be that it's not mandatory so i'm saying ok let's go to that position and let's look at the record as to how this man responded in regards to the and in some he was asked you have the right to represent representation of counsel which is your constitutional right you also have the right to understand that you can represent yourself your honor he says here is the defendant lewis hanson this is my fiction that the court has named as a defendant this is not me and that's his response to that first question and then the defendant was asked you and you understand that if you do the represent yourself you will not be given a special privilege simply by that fact that you understand that the defendant never even answered that according to the record and that's what's bothering me as i go through this record and sure enough he represents tens of disaster and there's no question about what happened it just smacks to media really that there's a problem here about the defendant understanding did he really know and did you really waive his right to represent it so now if you can overcome you know those answers with me you may convince me after he had interjected a jurisdictional challenge and so the district court i wonder where did he answer that yes i never found in saying that he would agree to follow court rules and procedures every time he would bat that question  would shift it to something else i don't recall him saying that hearing the first time that the district judge ask that question on the record volume one page two thirty four do you understand that legal proceeding there are rules that the court will fall and require that all the parties before the court follow mr places where the a usa expressed concern about whether he would be able to represent him self i think that's a big thing you know when he gave us they have to intervene and say you know court this makes me uncomfortable and look in the they have to get the court a litany of questions to ask mr hanson which not all of them managed to make its way through it so it seems to me that that what you do with that i mean he gives me some pause and it is true that mr hanssen was not always responsive but that is not an atypical pattern mr hanssen apparently wants to preserve his objection to the whole proceedings and that does not make his undertaking and no well they've got well the problem here is  start with the presumption that is that counsel that that these people should be represented right when we do you have to overcome that to allow that individual to represent himself and i mean if you start with that presumption then you were not sort of participate in even if he considers that a fiction i'm going along for the ride court i think that there's some reason to be concerned about that is another well in terms of what has to be shown it must be taken into account that mr hanssen necessarily how this is going to play out or how one goes about putting together a defense this is not one of these guys who's you know been run through the system multiple times it know and that is actually taking account as should his advanced education like in turn or the estimates a disaster i mean on that point so it did that's a whole different matter and so on that point let me follow up on this idea of good faith i mean what is your assessment of whether in a n a z fraud band of reasonable th the defendant fashioned a defense i mean in terms of evidence it's dues that kind of thing fashioned a defense that was consistent with a good faith put aboard evidence that was consistent with a good faith defense i believe it was  good faith and how how is that because mr hanssen indicated that he had attended two seminars where he allegedly learned of this method to send then if he payments and was physically following that manner thinking that it would work also mr hanssen indicated the fact that you never received any notice from law enforcement or the banks if you check for dishonor he also introduced records that he has paid from the banks which as he argued indicated that there was no indication of the checks being dishonored and so the answer question another also explicitly say that he still believes that he was sort of and big was on that list but all that illustrates is that an attorney a stand by attorney mr mccoy utah super lawyer probably could have developed a better defense but that's not standard and so i would argue that it not before us closing argument but in preparing his offense he had to occur before trial and he'd present opening statement where he laid out the evidence that he was going to present about the g s t seminars yes about about the lack of the opportunity to consult with the potential appoint counsel before making that decision and so to put this another way if the record indicates that mr hanssen was but a buys with all the information at this  to put their views before the jury personally because that's what they believe and that should not undermine the evidence that the defendant knew what he was going into that he was entering this is with eyes wide open and that all of the reductions that seems to be well unless you go to the extent of saying there aren't needs to be an essentially a litany were cited and he the sum and substance long may well be what you say that there but it still begs the question of whether the record actually shows that i mean that's that's the question i mean the question is whether he and knowing that he so that the only basis really have to survive was good faith was able to actually do seven and in any stumbling fashion to do that so that the jury was aware of that that's what they should be concerned a direct evidence to do it and he did i want to see if you seminars they gave me a detailed explanation i didn't fully understand how it works but i believe that it worked and so me and my wife alice and we sent these checks and if you don't work and no one ever told us otherwise if the jury believes that that is good state they obviously because the government were not arguing that the fence was persuasive as an evidentiary matter and obviously failed because the government had contrary evidence of course but that doesn't undermine the knowing and intelligent nature of the waiver or his understanding of his obligations to present  what about the idea of having no concepts like willfully and that sort of thing is that was that something that he asked me aware of as he proceeded knowing first back to the bench what model in court i would note that the bench book doesn't require any sort of reci the elements the definition they have to conform to the nature of the charges which he was on this case but there's no case law that requires for example to find willfully corruptly why the deficiency of tax means there's just no support for that i'll do that well isn't that part of understanding what the direct but as we've discussed at least as i argue the conduct a trial indicates that mr byrd accusing mr hanson understood the idea of good faith and therefore you also understood that that was so the chanson the gate the criminal intent that the government had to prove its pro and that my question though was if i understood it and you still in you went in at the district court and said you know what you want to waive your right i said yes all right move on the question is if it later turns out i understood should we be looking at even looking at the record holistically whether we can know that the what the district court said with adequate because he acted on it or are we just saying we're looking at whether he acted on it those are if you get what i'm saying there's a different focus in that and it seems to me since our job is not to great his papers that's great the district court and i mean that piggly with respect isn't it isn't the notion that we're looking at what the court that w