this is a difficult case i again understand the district court's frustration with the process he referred mr hunt as vazquez for competency determinations three separate times between the two thousand and eleven and twenty fifteen cases  he couldn't get a lot of sense out of him in terms of asking him questions and trying to get him to sort of be with the program no lawyer made mr not as fast as happy and you know i suspect as is indicated in the third of the psych reports that were prepared at the m c c that some of that might be due to his mental illness his inability to get along with counsel his inability to understand which and frankly ours is actually difficult for lawyers to understand how in a thirteen twenty six case your prior deportation can hurt you three different times it's not what he really trying to get a better deal with each lawyer and in addition to that he i think he thought maybe a new lawyer would get a better deal for him when so did yeah he was unhappy with the deal he was unhappy with the way the government is able to increase the penalties for each additional illegal entry and so nothing was going to make him happy think it seemed as though judge hayes spent a lot of time with him and pretty thoroughly covered the requirements of forever and i think that's correct your honor from the perspective of what the court did the court did a lot from the perspective of us being able to look at the record and say that that waiver was knowing intelligent voluntary you know i don't know that the record supports that i mean i think unfortunately the judge did a lot of talking without letting mr or not as vasquez really continue to very clear on that but he also said but i don't want to go to trial that's true and so he was very clear like if these are my choice well and that was after it was suggested i mean he he is not one who came into court as many many defendants do and said i want to represent myself i have that right again it was something that was suggested to him the lawyers i think it was lawyers that i think he might want to represent himself oh you want to represent yourself well i'm going to need to get an exam they did that and they talked about it and he never really said i'm prepared to represent myself at trial because you won't give me the counsel of my choice which is i think part of his very fixed misunderstanding which i've been doing this for a very long time and i find thirteen twenty six and priors complicated i call expert help that's what we have immigration lawyers in federal defender offices now is to help us with some of these cases you know his his fixed understanding that you know i know what i did and there's a penalty for that but i've already been punished in texas like i got i got punished for reentering so why am i now getting even more time that i got in texas for the same re entry seems like a reasonable question that could be explained to him but he wasn't yet what's a trial judge to do in this kind of situation because he had had i think the lawyer that was with him at that point was just was the third person that had been assigned to his case and i've never heard of a situation where a trial judge gave a defendant a fourth lawyer at least under and different circumstance i mean this is not really an issue on this appeal yet it would be if we get a real man and i mean i think i put in a footnote that i think what should have happened is that the defense lawyers should have done a better job of trying to figure out what the real problem was and they should have gotten a confidential psych report and used to the psychiatrist or psychologist or someone to help them understand what the fixated thinking was i mean the third psych report talks about the fact that he gets confused in court things go too fast for him and he's scared to ask for clarification but that's not that's not going to change is it well i don't know maybe i could get someone who's representing the interest of the defendant rather than the interests of the court which is perfectly appropriate to have someone represent the interests of the court and do evaluation for competency but i think it behooves defense counsel when they are faced with someone who is intractable and has a very low i q and is confused and is obstinate and difficult i mean it screams mental health issue and i think there that that there was some mental health issues but not to the degree of didn't have enough to one hundred percent make that diagnosis so i don't know that he isn't in the yeah yeah jones indiana versus edwards gray area defendant mr only his behavior at the actual trial suggests that it was a travesty and that he should not have been representing himself he was confused and now we get back to the mccaskill issue from the last trial i mean then those are the last wasn't the trial judge in the sense of like between a rock and a hard place research there's two kinds of competency one competency a trial to face the other the case and then there's competency to represent yourself and so really the judge had to decide whether that sixth amendment right to self representation is almost absolute versus whether or not he should because the the the defendant wasn't  indiana versus ad words you know pulls back even though they say they're not i mean for pages they say they're not they pull back on good dina's versus moran to basically allow for the possibility that there are people who have mental illnesses who really it denies them a fair trial to let them represent themselves and it's only gone as far as to say it's up to the district court or the state court to decide and in this case the judge order said that there was nothing that overcame it so it is not a model of clarity that he considered him although he was a great area defendant he was exercising his discretion to deny him you know a lawyer so i think that's problematic i think that district court judge did not one hundred percent understand totally reasonably it's a complicated area as well you know it's not one hundred percent of the stand what his authority was to say you're a great area defendant you've got a psych report that says you're not competent to represent yourself you have not demonstrated to me competence to represent yourself you have mental illness issues you've got a d s m five diagnosis but but good enough not you know right self present patient and i do doubt that he didn't  ever do it that way and i think that was the right way to do that president mark didn't indiana versus edwards actually deal with a situation where the defendant was suffering from a severe mental illness whereas this very narrow holding i would say that in indiana versus edwards the court said mental illness is not a unitary concept it varies in degree it can vary over time it interferes with an individual's functioning at different times in different ways so i don't think that if you look at the entirety of indiana versus edwards it's as narrow as the courts have made it out to be and that is the question that underlies this as does the waiver issue about him making a decision with his eyes open as fred a said i i don't think the record supports his eyes being open that he was going to represent himself at a trial rather than to try to get a better deal from the government and i see my time is up thank you thank you morning may it please the court nicole respects the united states as your honors have recognized the district court here very carefully considered whether the defendant had unequivocal assertive his right to self representation and assured that the waiver was knowing and intelligent and order to separate competency evaluation and then determined that the defendant was not in the gray area of defendants that under edwards can be denied that right to suffer  ever i defend the court is required to deny defendant the right to self representation under edwards it's a permissive standard under edwards and as a result has not articulated a standard ever if you however the court does review the threshold question is the defend it in the gray area of semi competent defendants for whom the edward standard with applied that threshold question is reviewed for clear and  as we argue in our brief we think that the court could decide the edwards question at the end so decided that that threshold because this defendant is not in that gray area unlike the defendant in edwards who was incompetent and then thompson it was literally borderline competent this defendant has never been found incompetent his diagnosis of a diagnosis of mental illness was the first to evaluations found him to really not be suffering from mental illness the third said there was maybe some unspecified but that he didn't really meet the criteria he certainly was never diagnosed with the severe mental illness and is not in that gray area and that question which is reviewed for clear air we would submit the district court decided to correctly what about the concept of a defendant being able to do the basic tasks of representing himself like conduct a good for deer to go opening and closing examine witnesses what's your response to how the defendant did that in this case because it didn't there was a lot of things he didn't do and his standby counsel eventually came in and started representing him in certain ways so do you think he was able to do the basic tasks that the case law talks about in terms of that issue and fred in this court case i have cautioned against looking at what happened in trials and with the benefit of hindsight going back  whether the district court correctly found that the waiver was snowing and intelligent and this court has cautioned against looking at what happened at trial to decide if the defendant if the defendant the defendant's performance was good or adequate because fred itself recognizes that the defendant is often going to proceed pro se at his peril and that's his right and that dignity interest inherent in for radda should not be questioned by what actually happened at trial and to the extent that we're talking about the edwards question what happened at trial of whether he was capable of representing himself what edwards says is that is the mental illness interfering with his capability to do those things and the record here first of all doesn't doesn't support a conclusion that there was a severe mental illness to interfere and to the extent that any there was he did have any difficulty in the court went to great lengths to make sure that he had the opportunity to question witnesses by reeky ordering the government's recall witnesses to make sure that the defendant understood he could cross examine them to instruct him when the jury was not in the courtroom and to make sure that he could consult with advisory council so to the extent he was disadvantaged as a pro se defendant first of all for read it itself recognizes that's still his right and the court use the tools available to it to give him as rather said that they felt it was literate competent and understanding and that he was voluntarily exercising his informed free will and i don't think that was the case here so i'd ask the court to reverse thank you candy for us versus