good morning your honor my name is robert minor and i represent the appellant louis armstrong i'd like to reserve just like one minute for rebuttal mr armstrong is competent to pursue his appeal the record leaves absolutely no doubt that he understands the nature of the apology proceedings that he understood the post trial plea offer that the government had proposed and by the way this is an offer that the government in its brief represents has been withdrawn not that's not in the record but that is in the government's brief do you agree with it do i agree that it is been withdrawn and it's off the table well i received an email informing me of that so yes i'm not you know dispute that now i think mr armstrong why isn't this particular case that we were mandated for a competency determination so he could entertain so we could be sure certain about his ability to entertain the offer which would require him to dismiss his appeal that's well when the government takes it takes a pretty firm not a firm but they make an argument that you haven't don't even have a right to competency on appeal there's no due process right and actually i think i took this my position would be that the only thing you need to be competent to pursue an appeal is you have to understand what an appeal is what the consequences in of appeal are or what the understands of things so i think that's really the end of the story whether you want to say the thing is moot or whether you want to say that mr armstrong is competent to pursue an appeal we're go get to the same place i think which is where we should have been several years ago which is to have the substantive appeal decide you know you would like the stay lifted yet so appeals can go forward absolutely that's that's been our position i mean really the only unfortunate thing here is that this late in this case has the government had simply withdrawn its offer years ago we wouldn't be here and unfortunately the government only withdrew its offer after we had the competency hearing after the c had found mr armstrong incompetent so i guess that's the explanation as to why we're here but i think at this juncture given both the record from the competency hearing in the government's representation which i fully accept that is withdrawn the offer there's only one thing to do which is to lift the stay and let the appeal go forward the  thousand and sixteen there there have no been no there's been no further briefing since and because shortly thereafter mr salvi made this motion for a competency hearing  reactionary that a defendant doesn't have a right to be at the competency is irrelevant on the off issue i mean and it seems to me that you know you argue that the defender retains the right to decide whether to accept a plea offer or not he can do so for any reason even an irrational reason is that are you really arguing that of a defendant who's not competent can make a decision on an offer well you know what i'm saying is that the decision not accept or to accept an offer is not a reason to deem the defendant incompetent whatever the defendant is saying i think there is a transistor radio in my brain and it will explode if i plead guilty i mean it it seems that a defendant has a right to be competent when considering an offer well i think that's actually not as obvious as it sounds from that example in fact i  would disagree with that because it seems to me that the fundamental premises of our justice system is that it's up to the defendant whether or not he decides to go to trial or if he's not capable of making you know that rational determination a bit but they don't with that does there are there would be situations like to know if you've got somebody who's in a you know a vegetative state is charged with with a crime yes he can't he's not in a position to decide whether to accept an offer or not but the record here shows that mr armstrong was very clear about exactly what the offer was he knew that he faced the possibility of thirty years instead of twenty years he knew that the appeal would be decided on the record he knew what his attorney was supposed to do and i mean what everybody has gotten hung up on here is that people don't like the idea that the reason he doesn't want to accept the plea offer is that he thinks that the  transcript was tampered with now i admit there is unlikely that that happened counsel why do we have to talk about the offer if it's withdrawn and both parties agree with we don't except that i was trying to answer  she is more yes all right if the court has no further questions i would just as that the stay be lifted and there we proceed with the substantive appeal for a think thank you very much more than your honour's may please the court michael morgan for the united states i agree with counsel that both parties agree where this appeal needs to end up which is that mr armstrong needs to have his substantive appeal the we formally withdrew it on x day all we have is the statement in your brief there's no evidentiary support for yours well that's true your honor there would have been no way to file a declaration about when the  drawn because that would have been outside of the record of any of their case clearly recognizes exception to that that when there's a claim of mootness that occurs after the judgment while the matter is on appeal you can supplement the record to supplement the record with a declaration saying this offer was made such and such a day and with now withdrawn well that put it under penalty of perjury i was unaware of that president that would have obviously been a more prudent course of just in terms of the court's record but the parties are not disputing the accuracy of those representations and the terms of the offer a word disclosed in the pleadings that were filed below so the only thing that's really outside the record is the actual withdrawal of the offer  but if the course prepared to accept both parties representations of the offer has been withdrawn then this appeal really is moot because the only reason do you think a defendant ever has a right to be competent on appeal outside of the taking or withdrawing of an appeal no  and the reason being is that while one the rationales for why a defendant needs to be competent during the pendency and prosecution of a trial are fundamentally different then what happens on appeal once the defendant exercises decides to exercise his appellate rights he's really a passenger at that point we all would like for there to be a good relationship between defense counsel and his attorney the so a defendant really has nothing to offer in the appellate arena that would require him to be competent and if the defendant had a freestanding right to be competent divorced from the decision whether or not to appeal that would be problematic units in of itself because if a defendant were to take an appeal become fit when taking an appeal then lose his competency during the pendency appeal well he would just be left in a legal limbo in the appeal couldn't go forward because he's not competent and if he's not restorable he would never have his appellate rights vindicated and that's kind of why every court that the government aware of that is confronted this issue has sort of held that as long as the defendant has an attorney to prosecute the appeal for him whether or not he's competent during the pendency of that appeal doesn't matter and if it doesn't matter he must not have a right to that competency for that and i think that just makes a lot of practical sense and i think it follows from the law so again since the offer has been withdrawn there's really no issue for competent for compensation and the unfortunate the court would have to reverse judge jones is finding that his inability to consult with his attorneys has but he went further and said oh because of his delusions delusional disorder is also affecting his ability to meaningfully work with appellate attorneys and for that reason to he's not competent that ruling we think is just an error of law because he didn't have doesn't have a right to be co for the lawyer not mr armstrong and there's nothing in the record actually to suggest that at the time the appeal was taken way back in two thousand and fourteen that mr armstrong was incompetent in fact the only medical evidence in the record would suggest that at that time he was confident part of the direct appeal isn't there some element of competency on the direct appeal as well there is it's more of a ministerial issue that the the district court never actually made a competency finding that was what happened there was obviously company report it's in the record before your honor's they just record never made a formal finding of competency but that's an issue that we will have to resolve down the road but it's not a question the issue is not whether or not he was competent the issue was whether or not the court made  i really don't have any rebuttal but i just would like to point out that the and i don't want to complicate things further but just based on what mr morgan said the and the court's questions the brief has been filed but i didn't file so it's not entirely clear to me whether it's i'm mr armstrong's attorney now in the one who is mr morgan points out gets to call the shots whether i should have the opportunity just submit my own brief  frankly i don't know if i would or not because it's frankly it's a pretty good brief but i just want to call that to the court's attention so that i don't if i file something later to that seem like i'm bringing up something out of the blue but other than that i agree with mister morgan that the appeals to go forward and stay should be lifted thank you thank you council it's a nice it's nice to see distinguished council agreeing