meaningful right to self representation the defendant has a right to self representation in this case the court the client requested self representation that you know if he had requested earlier in the case i think it would be pretty clear under one theory that law he'd have been entitled to have it and to get a continuance so that he could prepare for the problem that  with a claim like pulleys is it looks like he's just been jerking the cord around at least content with his lawyers he's discontented with his lawyers he's had this lawyer for a while he says he wants to fire him just as trial is supposed to start everyone knows that there's a lot of pretrial preparation that goes into a trial people have to arrange for their witnesses to show up on time and add where to be a t talking them into doing the same thing again after it was a board is very difficult at it so the judge is impatient with what looks like another stall in a trial that's been stalled for a long time and i don't see why this is almost it took almost eight years for for reasons that don't make any sense to me to get this case to trial i don't see why the judge would interpret it as anything but an attempt to throw the case off the tracks yet again i guess my response to that would be that when this issue was brought to the court's attention the court did as it was required to do it conducted an inquiry and allowed mr boy to talk aloud as an attorney to talk and the court did not deny it well the court conducted an inquiry and it did not make any findings and that this was done for the purpose of the lay that this was somehow in bad faith and if you mr poley himself makes the statement that he just was felt he was not going to get a fair trial with his counsel so the court made no findings it conducted an inquiry and i'm i guess i'm not faulting the court for looking you know the skeptical point of view given the time that their case had been going on but there just are no court findings and then when the court gives mr poley a choice is look at you could kind of like make enough finding of fact that here it is november morning in san francisco and i find this a matter of fact that the sun is above the horizon and it's so obvious in this case well you know what was interesting is that he so i mean that's the problem i'm having with this case is he actually relieved them you know i don't think he necessarily i think if he made the proper inquiry and gone further and said i think this is for purposes of seems odd to me right that is my point which is that once the choice he made the choice of representing himself the court gave him that choice he made that choice and then once the court has granted that right of self representation we condition it on you being able to represent yourself without having to prepare so it's got to be meaningful so i think that's the issue the problem we have here is that that is the framework that we're this was done three days before trial was correct yes yes is the remedy here that there was a unequivocal request for self rivers and that was not for the purpose of the i think that issue was at least the district court did not find that he was stopped and the district court reached the u merits of that determination and a reached the merits of it so the odd thing to me is this thing this case is a criminal case was pending for eight years and it's a one can out of unlawful possession of a firearm by felon are repeatedly granted on the basis that the case is complex and to me it doesn't seem complex it all seems very very simple i believe the history of the case was that it started off more complex in that it involved really some sort of a terrorist yeah that he was involved with some organization and the terrorist type organization that didn't pan out and what they're left be charged with any thing related to terrorism where there's still exemptions based on the complexity of the case you're in i can't point you to the exact date that and that change happened but i believe that there were  extensions made on complexity i went through the list and there were a number of extensions based on complex i thought there were a vast number of extensions and that's what the complexity was was an enormous number of more or less frivolous motions by want i think his counsel made a number of motions that were or not you're not frivolous motions and i brace some of them here so i you know challenge any of the factual basis for  they're going to treat the his request for self representation as equivocal because he demands it and then he immediately rescinds it well i really don't think it was equivocal because he says very clearly that i want to represent myself up to i think the sequence is important that the court gives him the choice and the court says to mr paul you could have a seat ok and then the case that the court calls is one where the guy wanted to represent himself and when the court calls mr polies case again he says well mr paul you've had it you listen to the case that was just called where i advised about the dangers and then the court and the clients says i want to represent myself then the court goes through the dangers of self representation in the client doesn't rescind that it's only when it gets to the issue of judge i'm not going to be able to prepare if i've got to do this in three days that the client says that i can't represent myself i can't do it unless i have some time so i don't think it was equivocal that klein had plenty of time to think about it to rescind it for other reasons it's by all appearances it was the the court refusing to give him some time to prepare he d repair for trial what he says is that he wants to make more motions as i say understood what he was saying and and then the judge says i won't permit more further delay in this case it is outrageous that it's inappropriate i'm going to do it and i'm not going to do it on the basis that you think he that is as lawyers should have filed motions and i don't know what they would be but he tells me he's filed motions and he filed them in front of me and i'd really want to know what's wrong with them because he didn't say it was wrong this or he wouldn't say what's obvious ad goes on like that it sounds like it's about just filing more motions there also was a discussion about him wanting to subpoena witnesses and the court telling him how he could do that and that was just preceded the what you can do in three days right and then what the client says quote i can't prepare a trial by then i'd have to restudy and in three days four days i wouldn't be able to do it that's it one seventy two in my excerpts of record so he does express a concern hey i've got to prepare for this trial in a very short period attorney but regardless on the eve of trial in two thousand and seven the defendant had relieved counsel at the trial confirmation hearing previously and that's that's up almost excerpts of record ninety three  the court should allow him to exercise his right of self representation that's a test about the purpose and ija lay but in this case it seems the judge didn't do that appropriate inquiry didn't make the appropriate findings relieved the council and then afterward said bet you're not going to get a continuance it seems like to me she didn't handle this in a good maybe i'm being too overly technical but i think this is what he should have done after those warnings and in conjunction with saying the trial would go forward as set the defendant withdrew his assertion of self representation right and i think in this court look to the record as a whole to determine whether there was a purpose of delay here and i think if you look at the defendant's actions throughout the proceedings it's difficult to come to any different conclusion when he had previously on the eve of trial relieved his third court appointed attorney and then  here it is thirty first appearance before the district court he he relieves his fourth quarter or attempts to relieve his fourth quarter point attorney and for that reason i think the district  pointed out that there didn't seem to be a basis for either relieving this attorney or for continuing any further counsel he didn't need a basis for firing his lawyer anybody's intitled to fire their lawyer my real specifically relied upon the fact that both there was no finding of a purposeful delay in the record which is the same here there's no finding by the district court but also the fries court said and there's also no evidence in the record of such purpose and that's at ten fifty five you're here and as is the counsel pointed out even though it looked obvious to me nevertheless the judge never said i think you're just doing this for purposes of delay and it of saying i'm denying and as as judge or law pointed out the judge didn't say i'm denying your request to represent yourself because i think it's for purposes of delay instead the judge said i grant your request and then i look at for reus at page ten fifty four and it is when the judge twice made it clear to free is that if you choose to  ready to proceed proof say he would be expected to proceed to trial the following day making clear he'd have no time to prepare if you choose to proceed through say the district court denied him his right to meaningfully represent himself so i wan find out why aren't we bound by reus to reverse well the factual circumstances here are dramatically different iran are in power in for reus the indictment was on october twentieth to were twenty eighth and the trial went on january thirteenth so that was a three month case or less than three months case and he defend and add oral argument his counsel argued that he raised his self representation right at the first available moment and that was the day before on the hearing in january twelve now in that case there had been a december hearing so the government argued that he could have raised the issue at the december hearing but regardless it's difficult for the factors to be met there where the conduct of the defendant is consistent with a good faith assertion of his right to self representation in this case ok so i've got to distinction so for three months there years here at the first opportunity there there there was no slater here sure and many years later here that's right and there was no dispute that it was an unequivocal assertion in free a swear as in this case the government contends that in fact was equivocal it was the court's idea not the defendants and let's in the courts the court suggested it to the defendant the defendant didn't raise the idea of self representation before the court suggested it  of he's giving him an option in taking away well i think the courts i think there's a fair reading that hearing is that the court is saying i'm not going to appoint another another attorney for you for no reason now your options are you can go to trial with this attorney or you can represent yourself and those were the options before the defendant and so the defendant at that point decided to instantly use the second option ok if you've  laid out these distinctions anymore that you go on the list i would just repeat the fact that i don't repeat and never once i know you're ok let me let me ask you something else and i've never seen  well i've seen one other case and it horrified me at or criminal trial takes eight years from the time of the charge i remember one when i was a district judge and it was because the government said on the record they're trying to use the guy's a snitch and after i doze another six months or so i ask them where the indictments and they're worn and so we just tried the case i don't understand this eight years business as the unfortunate circumstances pointed out by the court the first attorney passed away the second attorney withdrew the death gets a continuance right and so there was continuity of counsel issues early on in the case started over again after the death and relieved so that's two thousand and seven from there you have a new attorney coming into the case and as defense counsel pointed out and it's clear from the record there are hundreds of hours of recorded conversations involving the defendant in this case while it is a single count one twenty two g case it's also unusual in the sense that it was a months long investigation that led to the luminous discovery that the defense desired to go over in an attempt to formulate motions schedule that the defendant assented to the district court made clear on the record that that she was observing his non verbal cues as he was ok with the motion schedule as set and so for years if he's ok with that one of the interesting characteristics of eighteen u s c thirty one sixty one as opposed to most the procedures is you can stipulate i'm way well that's that's correct in effect in the sense that he he can't he's not a stopped from raising that at the district court or raising it on appeal now that as you heard earlier defense counsel doesn't make the argument that the factual basis for the exclusions was  ntested at all he instead the defendant's arguing that there has to be an explicit balancing inquiry on the record so that arguments actually not been made here but just to speak to that issue the the  motion at the time of the motion calendar setting the reason it matters that the defendant assented or in fact put forward the calendar is that that was why the government was prepared to go to trial in two thousand and seven so that was why the case was not tried right away to speak your honest concern and and that's clear from the record thank you so i have just one of their wrinkle on this he says that the reason that he wanted to get rid of mr greiner tells the judge carlton this was because mr greiner was citing the stipulations for extension of time without telling him without getting said he was doing things in core that effected my rights and he didn't consult with me that to me that's very problematic i take your point your honor and i would raise two points from the record in response the first is the defendant was in court at appearances over and between those times when time was excluded by motion and by stipulation that the defendant was there in court while his attorney was  stipulating to further exclusions so it's unclear from the record which exclusions he was unaware of or which mr greiner didn't inform him of when at sessions after and before  the paper exclusions the defendant's present the second comment i would make on the on the reasons for being dissatisfied with counsel is the defendant was intimately involved in the motions practice and in the trial preparation for this case as far back as two thousand and eleven and i'm referring to a supplemental exercise record at two of five where the court is confirming that mr greiner has spoken and discussed trial strategy with his client has discussed what motions the client wants filed and goes ahead and does so now the court has expressed some concern that those motions didn't have much merit but i think mr greiner can't be faulted for filing those motions at his defense at his client's insistence that other sorry the client and the lawyer may be faulted if the client is insisting on frivolous motions and the lawyer is going along with that that's that's correct your honor i think i was just speaking to the point of client satisfaction rather than whether filing frivolous motions is an appropriate course it is but i would i would make those  contrasting points to his dissatisfaction with mr greiner if there are no further questions on the fret issue i'm happy to address the other issues raised on the eighth amendment or commerce clause challenge but if not issue in terms of raising soft representation as i understand the rule it's it's too late if it's made after the jury's impaneled but before then it's not as a matter of law too late  but this was motion was made in a timely basis and i think that the core picked up on this is the fact that the court brought informed him of his right to separate from self representation in essence and gave him that choice that would show that  it's hard to say that he is trying to delay the proceedings by engaging in self representation when the court presented the self representation to the client as a legitimate choice why isn't it yours enough to distinguish the case it's something that's been bobbing along in the stream for a few months is one thing if it bobs along for another month or two and something that's from bobbing along for eight years no more so in other words entitled to request self representation as i said the rules up to any time before trial until the jury's in power wait wait a minute i don't think you quite got what i was getting at  years as a distinction between the cases and what i was thinking is the public's entitle to have tried speedily and thirty one sixty one specifically addresses the public concern not just the defendants or the prosecutor interest which right right i mean you know and this is what i've argued and what was presented to the district court was that the language of thirty one sixty one it requires setting forth the reasons on the record to get away from the sort of routine or rote granting of motions to exclude time and i draw an analogy to rule for all three which requires ask the judge to put the balance seen on the record really put the reasons on the record they just do it includes well and that's code a your code to you or whatever and i think that was the that was a point that was argued to the district court is that they put the reasons on the record but the court didn't engage in the balancing on the record and it's the balancing is what brings the interests of the public and the defendant as a core disengaging in that and it is the balancing that really it forces the court to engage in that in a public setting on the record and and perhaps whatever it is it's that that is provides a protection or technical that would be is it is forcing the court to engage in that balance seen in a in a public way as if it's more critical is the factual basis and what you're not really content you're not really challenging the actual you know that any for any one of the continuance it's up to the extent of what we're saying is the force in the court to affirmatively engage in that balancing on the right he would balance in light of what the factual predicates are right and you are saying all the fabric of the factual predicates are fine he just didn't on the record say that they outweigh getting right this case to trial right for its cracked interest of justice to continue and i guess what i'm arguing is in the bigger scheme of it