area here because it failed to protect neither of these rights but to give this court a road map of where i intend to head st i'd like to address the revocation of his right to see posts that on day three of the trial the judge counsel did not go lodge the proper objection following the decision of the district court here is that correct i think that that's an accurate route i think that's correct but i don't think she needed to at that point  air i think it would rise to that level but i don't think we need both there as it pertains to the determination of his right to see pro se the question i think becomes united states that doesn't arise that i mean here wasn't that repeated refusals to follow the court's instructions i mean i can understand how that might for a district court judge trying to handle a trial there were direct orders given to him and he repeatedly failed to follow the court's specific directions and i think it could be viewed that way but it's the directives to be adequate counsel and he was not very good at cross examining witnesses is tough right i think even seasoned litigators the seminars to learn how to cross examine the witnesses and i think that was really what the directives were after you look at the transcripts you know don't interrupt witnesses even seasoned litigators have a hard time at that so he's trying to do the best he can and he's listening to the judges saying oh do it this way you know don't interrupt shorter form size he repeat says more concise shorter and so it's commas kind of like a movie or where the judge is saying you know do better do better and he's saying i'm trying i'm going to listen i'm you know and i think throughout these proceedings it doesn't rise that level because he's respectful of the judge alls who are your honor stops when instructed so i just don't think that the government's point in any cases were cross examination questions rises to that level of seriously  seriously obstructive concept well so what's not what is the argument you're making right and right now are you saying that you're arguing that the court erred in  terminating his right itself representation on day three that sounds like the argument you're making yes you're right but i thought your per your principle argument was that the court erred by make both arguments i mean i understand the concept of i'll turn it do grounds for the reversal but that's a no win for the district judge he came at he airs both ways under th under this scenario that you're presenting here i think it's a valid concern i mean so with what is it what do you which is it which are you asserting let me just reverse question is part of that is the arguments but he has two constitutional rights and there's i think a tension with inherently in the th amendment and i think what the district court aired here was it chose in no man's land where neither of those rights were honor and i think that's troubling i think when you look at this court's case law it falls in one of two camps one you're not allowed to represent yourself if you're seriously obstructionist and that's at the very beginning truck or you're allowed to represent yourself and you're allowed to go throughout the entire trial that's not what happened here the judge interrupted him and on day three when witnesses already testified thirty exhibits had already come into evidence and she said sit down and never really explained why and i think that's troubling and i think it's the government's argument that there's a real tension they say that he's both seriously obstructionist and he was right he had a right to  proceed and i don't think you can be either if either of those things is true then i think he's entitled to a new trial because he has that six a memory as to the st issue what would have caused the just record to question the defendant's mental competence from the start judge i think that's a fair observation i think that if any issue were to be raged reviewed for planar it would be the one i do think that's of secondary claim and i don't think the government disputes this that ryan lost him is the same attorney thought that i sort of they want to throw out opening statements start and he you know makes these arguments that he does and then he tries to examine and repeatedly he's advantaged by the court to this like it would that way it's all in front of the jury which is also pretty troubling i counsel i might agree with you that bad cross examination until after six women rights were violated so i don't know that you know had any role whatsoever and this court's case in the spent case judge logan does a good job of saying well terminating the right to go pro is much more serious than terminating bond so if she could have cut his mornings with on bond and still honored his right six minute representation because i think his conduct on the court was always respectful and it was always your honor when he was told to sit down he did when he was told to be quiet or you know whatever i think you see him really trying to endeavor the best and hoot to represent the other factors the judge is considering have already been calculated and of his guidelines as it pertains to his criminal and i think that's troubling because she's pointing to other factors the judges reject all the objective load stars and determine when a sentence is reasonable we point to the guidelines the government says disregard that we point to meaning medium sentences the court says that's because the government says think one of the things that is very important in this case is that mr luskin does not challenge that he knowingly and voluntarily waived his right to counsel and that really sort of sets the stage for a lot of the following analysis and the reason it doesn't it goes to one of the court's questions already is every standard of review case that mr lost him side is whether or not are cases where the issue is whether or not the defendant knowingly and voluntarily waived his right to counsel and the reason that those cases go to de novo review and the reason that some of those cases reject playing their review it is they say well it wouldn't be fair to hold a defendant to a standard of making an objection when the whole issue is whether or not they were adequately warned of the dangers or self representation and so that analysis of knowing involuntary involves the fret analysis of whether or not you were adequately warned once you're adequately warned you're held to the standards of any other lydia and in this case they're not even challenging that he was adequately walk and so this is not a knowing and voluntarily waiver case and so their law mr walters law what he cites about the standard of review is irrelevant in this case the facts matter the court's making a factual determination on whether his conduct is so disruptive that maintaining the integrity of the trial requires revoking his self representation was of most of this just bad lawyer in though when i'm reviewing that the briefs here failure to ask proper questions asking compound questions taking too long on cross examination aren't those the sorts of things that can be managed there's actually two answers to your question your honor the st is no it wasn't bad lawyer george just bad way to going all the way back to talks about two ways in which someone could forfeit their self representation they could do it either through violating the rules of procedure evidence or they could do it by undermining the dignity of the courtroom and in this case he's doing both so not only as a bad lawyer in terms of the types of questions but also if you go through the questions themselves he's trying to testify a lot and a lot of his testimony is itself inadmissible evidence such as inadmissible hearsay and so he's underlined he's undermined integrity of the trial but undermining the integrity of the evidence i mean his whole purpose is to testify and into talking over witnesses through interrupting them to sort of interject his testimony he's trying to affect the evidence in the case and so that's why it's not sort of just poor lawyer read it really is going to sort of the integrity of the case and then secondly at some point even poor lawyer arena you know has to stop right in a subway does affect the dignity  courtroom and if you look at just how often he's interrupting witnesses just how often he's after asking in comprehensible questions in in comprehensible ways that starts to you really start to see even on a cold transcript it doesn't even resemble a trial anymore i mean there are almost every page of some of his cross examinations and i think for one to look at would be the st cross examination on the nd day of this dewey almost every page involves ball to pull interruptions multiple address mr goldberg's argument that we have to separate the threatening me meo situation from the other problems and try what i think that that kind of goes to the more fundamental issue about why this is playing error actually  and this is playing a review because there was no contemporaneous objection and the reason there was no contemporaneous objection is everyone sitting in that courtroom knew that he was in his conduct was obstructive and that he had been given multiple last warnings and that when he finally talked over and tried to testify over a witness one last time when the district court said ok we're going to take a break the district then did exactly what she said she was going to do  west at that point yes you do you have anything to add and he said no your honor so he was given an opportunity counsel was given an opportunity to make the temporaries objection mr wilson was given an opportunity to make contemporaneous objection and then even when the issue comes up later  trial at no point is the objection that his conduct was not serious an obstruction the objection was to a different fred related issue that is whether or not he has the ability to either represent himself or be appointed you know whether he has counsel of his choice and this court has decided that that a definitive a trial court can make a definitive except appointed counsel and he does not have a right to represent himself or counsel of his choice that's what the only objection that was ever made and to the entire record to see now on plane air review where the burden is on the defendant we can look at that entire record and see ok what if the district court had been asked what his reasons were what would a district court have said and i think it's very clear under this analysis and it just to be clear the district or didn't revoke his representation because merely because he was in effect of a nose goes to the judge poses earlier question but there is nothing in the record that supports that what the district court statements are in and the reality in this case is that mr costin chose to revoke his self representation he was given the chance you could form his conduct i know that in the briefing and today mr goldberg has mentioned that the district court what you can to the court then on the st and nd morning of trial say ok mr last you a gave you some leeway if the st witnesses because i kind of consider them professional witnesses they were not technically law enforcement witnesses one of them was a department of justice attorney but more or less law enforcement witnesses so now with these lay witnesses i'm going to tell you i'm going to be i'm going to pay more attention i'm going to take a little tighter rein and i think that was a fair thing a court could do even with a struggling lawyer this doesn't have to do is pro se this is just  management of a court's docket and it but told him if you continue to do what you are doing we're going to take a millard of steps we're going to limit your cross we're going to limit time we're going to do all of these things to try to get us back on track and that's what the court did over the next day and a half the court started with sustaining a lot of objections on that st day with that st witness was to do it and then next went to ok i'm going to limit you to the amount of time on direct unfortunate more and then of course start limiting questions just at this particular district judge has jury questions started limiting the amount of follow up questions and then alternately to get the case back on track got rid of jury questions all entirely you gave the jury the option would you like having a longer trial day or would you like to just doctor jury questions in the jury said we'd rather have you know no jury questions the court was doing all of these smaller steps the court was doing everything it could to preserve his right to represent himself it's only at the point that he made it absolutely clear that he will not comport himself he will not allow the court to preserve the integrity of this trial he's going to continue to have this proceeding that doesn't really look like a trial anymore  then on his selection it was his choice to continue to violate courts directives the court then asked him to sit down do you think the district court made a sufficiently clear finding on serious and obstructionist conduct or do we have to remain in for that determination i don't think so your honor i think if there were any remand as we say in our briefs that would be it part of the reason is what i said earlier is that there wasn't an opportunity to there wasn't a reason to because there was no no one asks no a civil judge why do you do it  but i think secondly the court's record is made throughout the entire trial if you go through those three days of transcripts the court is continually telling mr lost him what he's doing that's improper why it's improper how he can correct it himself and then what you don't correct it this is what's going to happen and so that record is made throughout the trial for us and i don't think there'd be any reason to remain and i think it's really quite clear was just based on how much more time and effort was put into the briefing the primary argument was that the court erred in allowing him to proceed pro se after that st day i think is the simple answer is there was nothing in this record to indicate that he suffered the type of severe mental illness that would give the court pause about his ability to be competent represent himself in fact his behavior was which was quite coaching it was quite rational he was doing the things that he thought he needed to do to when he was introducing  statement yes he said some nutty things in his opening statement but his opening statement also went i believe the government's open statement was over on eleven transcript pages and his was around eighteen or nineteen it went significantly longer and the vast majority of it w arguing about well what fraud is and why i was so open to these people that i could have not committed fraud that someone who understands what he's on trial for and that's someone who's understood was case should be so there's really no pause that the court should have had based on that opening statements that the overstatement showed with the rest of the trial showed he was perfectly mentally competent to represent himself he just through his misconduct chose to forfeit that right there's no question about the is under these facts outstanding that he still standing there at sentencing denying that he committed the crime the court also look to his attempt to blame it on the death of his girlfriend some tragic circumstance that he didn't try to blame lying to at the nature of the offense in particular looked at the particular harm this was this this was financial harm total loss was a one million dollars but some of the particular harm and some of the particular victims was really egregious for some people were out without homes because of it and then the court looked at the need to deter mr lost and to protect the public from him and cited those reasons in particular and given everything that was in front of this court was entirely reasonable and imposing a one hundred and eighty month sentence i see to my time has expired  gober have just over three minutes thank your honor i think the government's arguments that mr lawson was engaged in seriously obstructive conduct rings hollow because the government could objected right they could have said your honor we need to revoke his right to go pro se they never did so and isn't that really the judge's responsibility to control the integrity of the overall trial i mean i think the judge has a certain ultimate responsibility but if you look at the case law the government is in many of these you know one of the moving party and so i think the court has the opportunity in what in the in the when you look at the trial transcript the government's objecting when it's appropriate and the other thing that's fascinating about this the trial is almost over if you look at it the bulk of the witnesses have testified the bulk of the evidence is then why not let him just to keep benish what he's done i think the notion that there was a time when this issue rings hollow too because she's already implemented those procedures right she's already limited his cross i don't know what is the meal what is helping by taking that  because there's a a no man's land there were you need to stick to your ruling early on as a trial judge and otherwise you're creating more errors i think the other issue i'd like to address the point in air issues and you heard mr casey i think repeatedly everybody knew everybody knew he said that term how can it be plain error but he knew the issue the whole point of objecting right is to allow the trial court correct states and that's why people are penalize for playing are because they didn't object the judge didn't have a chance to to correct that mistake here you have the judge consistently reevaluating her conduct in front of  jury which is another issue altogether where she's sort of giving him tips and and things and i think those were well intentioned by the judge but i if i were gerard think gosh she's nothing much more than a misfit the going back to the under united states supreme court case law in this court's case law and so for all those reasons we'd say the only remedy is a new trial there's no other question thank you for your time very well thank you counsel cases been well argued and it is submitted really should decision as soon as we can