additional duties clause and i think the government concedes that it's not delicate well under duress because it's the one that i briefed extensively in the opening brief and the government didn't respond at all if it's it's an appropriate concession given the three part three that looks at whether the defendant consented whether it's a subsidiary or critical matter and looks at the degree of interaction between the judge and the defendant and briefly on those three points on consent there was about proceedings at which the right jury trial and beyond a reasonable doubt issue are implicated and this is certainly one of those finally on the degree of interaction between the judicial officer and the defendant this is not a ministerial act like a read back of previously given testimony or a previously given verdict there's actual interaction is about the defendant's exact a decision to be made at this time and in fact there's probably more interaction in this case than in most other cases because of mr stevenson's response is that he didn't understand the indictment that he had questions about it and that he wasn't prepared to enter a plea so if i'm right about that or which seems to me that this goes on all the time what you're what you're contesting goes on all the time so do we have any case in the sense i mean you're saying that statutory construction but do we have any cases that interpret it the way you interpret it let me start with the beginning of your it occurs all the time i don't think it's true that our arraignment over objection occurs all the time i've never heard of it occurring before i couldn't find any case in which arraignment had been delegated over objection before this was a case where the defendant clearly objected and the easy answer was to walk down the hall take five minutes of the judge's time and have a judge do it so i think the first part of your question  is starting from an incorrect premise certainly arrangements are delegated all the time almost never to my knowledge over defendant objection therefore i have no case as to offer you on that point the cases that i do have to offer you concern delegation of other matters and i'm trying to look at the b one a interpretation in particular any pretrial matter pending it needs to be interpreted narrowly we know that gomez united states  supreme court case in which the supreme court said that we interpret section six thirty six narrowly for two reasons one constitutional avoidance two legislative history legislative history indicates that only specific matters were going to be delegate know that a decision on forcible medication motion could be delegated but under the additional authority that i submitted to this morning  not a matter that is unconnected with the trial the issue at arraignment is guilt or innocence when you read rule ten together with the rule live and it tells you that there's three things that could happen at arraignment guilty not guilty or nolo you don't get any more cl that from the standpoint that particularly i think that magistrate had to enter a plea of not guilty for him and just move it on forward i mean it just well let me speak directly to that because i think it comes from the assumption that the arraignment with a not guilty plea is just a typically a pro forma matter and i think that's probably the assumption under which it was delegated here and i think it's an incorrect assumption the significance of being hauled into court of the government with all of its resources and energy dragging a man or woman into court and announcing charges to the defendant is especially significant it is significant in the constitutional sense and that's a critical stage of the proceedings it was particularly particularly significant here given what happened if you look at the that this is something out of the ordinary here the judge went on a little bit and then later asked if he was ready to enter a plea and events said well no i'm not ready to enter a plea and the judge had to enter the plea on his behalf is that we're pro for like sort of another way to look at it your  client has a little bit of history of having i would say contrary behavior that the client tested history of litigious behavior and i think i'd like to talk about how particular mental health issues it's where you have a client that is out of the ordinary that the procedures must especially be respected this was a client that was out of the ordinary however you want to characterize it and it showed by the questions that he asked at arraignment now the question is what to do in that situation i think the answer from gomez and from rivera it that's not i mean he represented himself right the forever i'm not content not you're not attacking not part of it so and you don't have a right to stand by counsel so how does that you hearing back out on the record and they go forward with ready hearings so it's going to happen on august ninth of two thousand and five that's critical he was asking for a new lawyer well what do you do with the situation in you know you sound like you're you have some experience in this area as do i what do you do with the that i mean the court basically found that this was the person you can't get along with anyone and the part of the problem you shores it's not the problem i felt lawyer and it's not unheard of in the realm that that you know that when you know if you get motions you know that first are spent quite ok i want another lawyer and the court says well there's nothing wrong with this where you just don't like that lawyer and then he says well i don't want to part give me another lawyer but he doesn't have to money to and then he says he's going to retain but then there's no evidence of that and then it moves into well i want to represent myself and then you go through the forever and then if they can get convicted on the forever then there was something wrong with you know what happened prior to  to the guy what's the problem are you able to communicate oh you didn't tell her you want to those motions what did she say did you ok did that status by you you have to ask the defendant that allows the defendant to answer before it can be considered in court on that point at all that's the least that needs to be done and that's the legal answer i believe to your question as a practical matter i'll tell you what's the most always done in this district by the judges the more experienced judges i pretrial and there is no assertion that it was made during the trial that pretrial document that i've cited is premised on the statue limitations of the argument is premised on so the argument that we're addressing at this moment is whether we even get to the plane air argument and as we make that clear it is a bit strong argument that there was no reversible plane error but for this particular issue that we're talking about is whether we even get to review the absence of the instruction for reversible plane air or whether the defendant has to do more to make the argument now let's assume instruction and i would submit no because the argument that the defendant may pretrial was based on the statue of limitations being five years well it's not five years it's six years and that brings in many many more acts and so the judge was not on notice that he still wanted to make sure that it was still an issue that there was a s limitations issue i would also note that you know if we are going to get to the you know on the rest of the plane air analysis that the defendant was convicted on failure to file counts and improving to the jury beyond a reasonable doubt that the defendant sold trusts had income and failed to report that income or pay taxes on that income accounts and which the jury convicted the government proved beyond a reasonable doubt after february twenty third one thousand nine hundred nine he did not contest and i want to state like he didn't have to put evidence on but he did not contest did not cross examine the government's witnesses did not challenge the government's evidence as to the dates that the trust were sold so there was you know i like the fuse case there was nothing in the trial itself that gave anybody notice the to hold that high he preserve it whether you can review the jury instruction issue all you like that is not an easy holding one way or the other but i would strongly argue that if this court were to hold as evidence that god you know that there's no doubt that had the jury been instructed as to the statute limitations instructions that it would have convicted on the conspiracy count because it did  as as alleged in the indictment yes yes but i have to is that within the statute of limitations period is that within the time frame was his selling its sales of trust the government would have lost the nine hundred ninety nine ferry to file cal and the two thousand faired file count if it had not proved he had income in those years the government would not have proved he had income in those years had it not proved beyond a reasonable doubt to the jury that he sold trust during nine hundred ninety nine and two thousand and those are necessarily within the secure yes  income above the minimum statutory threshold to be required to follow returns the government's proof it's evidence to meet that element was his selling jury didn't believe the government's evidence that he sold trust in one thousand nine hundred thousand but they convicted and thus i are going to view that the jury must have believed must have found beyond a reasonable doubt that he stole trust in hundred nine and two thousand otherwise he could not have convicted him on those two count may go to another issue equivalent to a motion for to be allowed to plead guilty there's you know i don't know raymond if the defendant pleads guilty there's no rule out of the proceeding you don't go directly to a rule having the defendant goes through an arraignment says i want to plead guilty they go ok you're going to go to this track you've got to go in the district judge is going to do a rule eleven and accept your guilty plea if a defendant goes to a magistrate judge and please guilty as opposed to not guilty you don't have a rule then you move the defense defendant to the to the just or judge's chambers or courtroom but i mean you know their their criticism of the government position is well you don't know  district the magistrate judge has jurisdiction to be delegated this responsibility well that argument is predicated on the incorrect premise that the magistrate is going to accept when it  i've i believe that's permissible i'm trying to think of a reason why i would not be permissible i think in my own pocket i have seen that i would note and i don't make too much of it but you know that there was an original indictment to which there was no objection dismissed by the government so i mean the first time that the charges in which he was trying to convict it were explained to him there was no objection that i don't that he didn't understand what was going on it was on was you know that perhaps the district judge wasn't aware of all the filings of the job of the defendant saying that think that this information came from the kearsarge and sentencing i would submit that if you if you look those issued in error so i mean the judge was fully aware of the defendant's history of trying to upset the gist of proceedings by filing lawsuits against judges and other public officials so you know the statement that you know the shoe you know the should have been you know a somewhat different inquiry made i think is incorrect i would also note that there was an alternative remedy requested substitution of counsel or i want to proceed pro se well threating hearing was granted or held and his was allowed to proceed proceed as requested they don't argue want to appeal that challenge now the for you know the defendant's decision to go pro se indirectly by saying well the judge should have done some sort of different hearing before having substitution of counsel and i don't mean to be glib but there was a substitution of counsel defendant himself was allowed i mean this is not a case where the appointed counsel where the defendant was forced to go to trial with the a you know i'd have to look at the record in more detail to give you an accurate answer it's certainly he was a difficult client as the record reflects and you know at one point she says i don't want you as a client and he says well i don't want to as a as an attorney now i would also know that the record reflects that basically he didn't want to watch a straight party journey he wants somebody who's going to go you know a lay person perhaps he's going to  go state his his his his his particular views and the judge may clear you know i don't i'm not quite sure you're going to be able to find an attorney who's going to license attorney he's going to make the arguments you want to make i'm going to give you that opportunity but i'm telling you now you can't come into court with someone who's not licensed to practice in this court and you know the record reflects the court is aware of mr stevenson's history in this regard so i think the record i think charge which mr stevens sent wanted to make her witness well the contempt charge and you know soon thereafter the contempt charge was severed and ultimately dismissed so that fell out of the case  so it was severed so you know this issue of whether a different attorney would do better became moot because these are the the charges that we're going to trial a different attorney would not have had a better relationship with mr stevens you may have one minute has limitations issue i think counsel is wrong about having necessarily about having necessarily proved this by approving the failure to file counts my notes show that they prove the failure to file counts by putting a case stations on the stand who reviewed mr stevens bank accounts for ninety eight ninety nine and two thousand and then put on an i r s no record of filings and that those that record of bank accounts wasn't necessarily tied into the three well i think that narrow question is whether there's proof of any other source of income following the statute of limitations period the answer is no i don't believe that it was detailed in court where other sources of income came from presented that wasn't that wasn't a question it would only be a question on this statute of limitations if there was no other source of income then the only way that the  government's argument is that the only way they could have found him guilty would be based on that and therefore that there's more money shown in those ninety eight ninety nine and two thousand and bank account entries than is accounted for by simply the few trust transactions that they showed that were after the statute of limitations period ended so neither side presented where the other money came from we don't know if it was legitimate or illegitimate but we have to say that it wasn't necessarily from