court the government can see that mr box should be entitled to a recent unsing under the u s supreme court's recent decision in dean versus the united states that is undisputed so at the very least this case should be reminded the only question remaining is whether mr fox should also be entitled to new pre sentencing i'm sorry pretrial and trial proceedings because the district court committed a structural error when it arbitrarily denied mr overcome that presumption a district court that denies a continuance to a defendant so that he can securely counsel of his choice must first adequately balance the factors on both sides of that consideration if the district court fails to adequately balance the factors and then the denial is arbitrary and an arbitrary denial is a complete deprivation of the right at the moment of the denial the court has then committed a structural error so there no need for any kind of harmless error analysis or prejudicial analysis and anything that happens after that point whatever kind of assistance of counsel the defendant actually received is not relevant in this case the district court committed a structural error by arbitrarily denying this for fox a continuance so that he could secure the counsel of his choice instead of adequately balancing the factors on both sides of that consideration the district court gave only three reasons for denying the first reason that the district court gave was that mr fox in purportedly waived his right about a month before the trial mr fox appeared because there was a superseding indictment and he was entitled at that point to a statutory th day time period from the superseding indictment to the first day of trial that statutory right is what he waived he expressed at that hearing that he did not intend to waive it when he was later convinced by his  to go ahead and proceed with the february sixteenth trial that statutory right did not have anything to do with mr fox's sixth amendment constitutional right to counsel of his choice so i would contend that that first reason for denying the continuance is not a valid reason it's not one of the factors that this court laid out in williams and it has nothing to do with the right of counsel the second reason that the district court gave for denying mr fox's continuance was that his substitute counsel that he was hoping to retain had not yet appeared and was not present that day the district court went on to speculate that even if the council did appear that council would have no different strategy from appointed counsel the court conceded that that was pure speculation that she had no reason to know what the strategy of counsel was nor should she and that whatever the substitute coun strategy would be was unknown that consideration it's also been found by this court to be inappropriate especially the weighing of whether substitute counsels performance or strategy would be any different from it counsel even if you were to assume that it was exactly the same if a defendant wants a new lawyer even to perform the exact same trial strategy that's the defendant's pregnant and so whatever the potential strategy is  not really a consideration against denying the continuance so that the defendant may have the counsel of his choice the third reason that the district court gave for denying the continuance was because the court stated that forty five had appeared for trial that day the witnesses were ready to trial prep had been completed and everyone else was set to go that consideration is one of the williams factors and i would refer to it as the convenience of the court which is a valid consideration and is i would propose the same consideration in every single case where this issue comes up any time a defendant wants new counsel it's going to be disruptive and it's going to be inconvenient to the court potentially to the other lawyers to the witnesses so that consideration alone cannot be determinative this court has said so many times and where there is evidence from the context of the situation and from the reasons but the judge actually gives for denying that the court considers the convenience of the court to be determinative or is applying that to rigidly then that constitutes an arbitrary denial and th requires greenland's i would also point out that mr fox had voiced his concern throughout this case many times to the court that he was not satisfied with his counsel he wrote letters to the court he met with a magistrate judge about it was persuaded time and again to continue with his appointed counsel the court then knew at trial that there was some sort of problem with mr fox's appointed counsel and from the record all we know really is that they were having problems with communication and mr fox's appointed counsel hadn't really communicated to his family that trial was imminent and then a good enough job to prepare them to retain substitute counsel in time for trial so essentially mr fox's uncle testified that his family was attempting concretely to retain a set a specific new lawyer and they simply ran out of time well there's not really any evidence in the record about the money so mr fox's uncle testified that the family was attempting to get together a retainer fee for the new lawyer but the district judge did not ask anything about how much that retainer would be how close the family was how much money they had already collected and how much time they thought they might need to accomplish that task the district court instead relied on maybe one page of testimony from the uncle giving the broad concern and then asked the appointed counsel whether substitute counsel was intending to appear the appointed counsel stated that as of that day no the substitute counsel was not ready to appear in the case but i would point out that that is in an unusual circumstance i think to have a defendant who is asking for new counsel who has complained about his appoint counsel has to rely on his appointed counsel to advocate for him in this specific instance to get new counsel and if for example the appointed counsel doesn't do an adequate job of that and for that reason the continuances den or doesn't have much of an interest in pursuing that claim one reason or another then the defendant is really advocating for himself which i would argue mr fox is not really in a position to do at that point he was incarcerated out of state he was appointed a lawyer because the beginning of the case he himself could not afford his own lawyer but there is no evidence in the record about whether or how much more time he would have needed to retain counsel on his behalf and they had taken concrete steps to do so by reaching out to a specific lawyer it would not have taken the district court much time at all to elicit more testimony or to inquire further or even to give that substitute counsel call to have counsel step out into the hall and ask that day what what was going on what the plan was that the absence of that evidence in the record really shows that is a district court didn't even develop that evidence so how could she have weighed it in denying mr fox the continu because mr fox is entitled to a presumption on this point i would contest that it was really the district court obligation to press that point develop and figure out what was mr fox's concern what were the logistical problems what were the practical solutions that they might come to because that some of the considerations that should have come out that didn't were that the trial was pretty simple it was two days wouldn't have been very much to reschedule  mr fox had not there was no evidence that he had tried to request counsel as a delay tactic or that he didn't genuinely have concerns about his appointed counsel and want new counsel and whatever his reasons for wanting counsel were are also his private if so any argument that the government has made about how adequate his appointed counsel was in reality are irrelevant because the consideration that this court has required a district court judges is to do a balancing of the williams factors and they're not rigid checklist factors but the fact that there were only really two articulated in the record here and that one of them comes up every time shows that the district court didn't actually consider what harm to mr fox would happen if he were to proceed with his appointed counsel or what even the inconvenience of the court would what's the timeframe from the beginning complain so at that hearing it came up that mr fox was interested in retaining new counsel but he didn't have enough information at that point to know how likely it was that he would succeed in retaining counsel there's no evidence in the record that he knew which attorney he was  seeking or whether he had communicated with his family about it and so at that hearing when he voiced potentially that he might want you counsel the court was on notice that this could be an issue the court did not inquire about it again until the morning of trial when mr fox raised it so what was the total time from july twenty fifteen until january twenty sixth team and then it was one month from not even it was really three weeks from that hearing until trial and so assuming that mr fox's family which we don't know found out at some point that he wanted new counsel they were frankly scrambling to coordinate and get the money together and to have a family who's not familiar with the law who doesn't maybe you know a lot of lawyers i feel that would be a very daunting task to try to accomplish in so short a time and all that mr fox is asking for with more kind of independent inquiry into the likelihood of this new family retained counsel coming into the case under this circuit's precedent your honor the district court is required to weigh the factors the court does not need to grant the continu they can deny it but before the court denies a continuance there has to be in the record an explanation of why and that explanation cannot consider only one side of the equation which in this case were all of the reasons against mr fox  to articulate and if it doesn't know then elicit testimony or evidence to develop the reasons and the other side of that equation the district court here failed to do that and for that reason i would ask that this case be remained it for new pretrial and trial proceedings i'd also like to note that the two issues that i have not addressed the defective indictment issue and the crime of violence issue we have raised just to preserve and we understand that circuit precedent is against us if there are no other may please the court brian writes for the united states before moving to the adequacy of the district court's findings alike to make two points of clarification first i judge about the timing essentially the court did give mr fox a month he gave mr fox a month from january twentieth mr fox said at that point in time the final pretrial hearing he said my family is seeking new representation that's at page four of the final pretrial conference here and only something happened after that  can what happened was that mr fox evidently didn't think that was going to happen and waited thirty days from the superseding indictment so not only did he have the thirty days but he could have had more if he wanted them but he waived that final continuance then we get to the two so the judge had every trial i guess i mean i suppose if you're taking the facts most favorable to mr fox i think the court would have been reasonable to think that this was a delaying tactic because mr fox i would point the court to page twelve of the transcript he says that he wouldn't have granted the continuance if he had known his family was going to seek representation but of course that was the reason that he gave the court on the final pretrial conference and the district court judge said well that's contrary to what you told me at that point in time  that as a statement that there were no funds so this puts us right into the sinclair analysis where we have the morning of trial a speculative and highly contingent hope that an attorney might appear for those reasons the court's three findings were more than adequate to balance in favor of the administration of justice and continuing on with the trial that morning would like to talk about those factors a little bit here while mr fox here is said that the trial calendar is always a factor that's not what this court has said timing wise i would again cite this court to sinclair this as this court recently said and sinclair these things become more disruptive delays become more just the the closer you get to trial the closer one gets to trial the interests of the government the witnesses the jurors in the court the court schedule become more compelling and that is at its most compelling the morning of the trial when here you've got forty five jurors and nine witnesses plus the court staff the the inconvenience to all those people and parties is at its highest the morning of the trial now certainly that is insufficient by itself but you couple that with mr fox 's highly contingent hope to get an attorney he had no attorney retained he had no money to find that attorney and no hope so on back the government would compare to sinclair and sinclair it was also a highly contingent at least in that case the defendant came in with an identifiable timeframe asked for twenty one days continuance because he would have the money and seven to ten days along with an identified source of income tax returns here we have neither so i think what we're left that with is what judge flom has touched on a required mr fox is essentially arguing for requirement that the district court judge do the work for mr fox but the district court i think it's important to note here did a lot of the district court talk to mr fox talk to mr fox and talk to mr mr fox's attorney and all the parties said there is no attorney present at this point in time before it sit down i would like to reset again with this with the standard review to win this case mr fox has to show an reasoned and arbitrary insistence on expediency in the face of a justifiable war quest for let the district court's findings grounded in the facts and the record grounded in what she heard from the parties in the months before and the morning of trial were neither arbitrary nor in recent and mr fox's last minute eleventh hour request very briefly mr fox was not seeking to delay trial there was no reason for him to delay trial and there's no evidence that that was the reason that he was asking for new counsel there is evidence that he wanted substitute counsel and that his family was making concrete steps in that direction mr fox was not without hope there is not evidence that this family would never be able to retain counsel or afford counsel and there is not even evidence how much time he would need to do so the district court didn't ask how long a continuance mr fox would even need and not advocating that we require a district court to do the full inquiry every time because this court has said that it's a holistic view of not just the reasons given but also what's going on in the case and what would be reasonable to expect i don't think that it's unreasonable to ask the district court to at least weigh out the factors that this court has recommended and adequately explain the records both sides if mr fox wanted new counsel that was his prerogative and it was entitle to a presumption because