issue is one that your right so there goes one of the district court judges and he has an opportunity to get counsel dan every opportunity is given to him and he says no i i don't want any i don't want to first of all i think that when this defendant obviously made very many contradictory statements on the one hand he did tell the judge and he had attempted to get a lawyer and hadn't been able to find one i guess with home he was in concert or had the same views it wasn't as harlee clear what the problems were in terms of his attempts to get a county council this between this first initial appearance for arraignment and the continued representation hearing but he talks about how he's he's gone and talked to circumstances i guess as as a practical matter as a practical matter kind of virgie here answers that where did the feminist statements are not clear or clear and unequivocal in terms of his wishes to represent himself counsel i want to stand by counsel and because the court did not hear that as a clear and unequivocal wish that he would want to represent himself as his own lawyer he appointed a lawyer and court this court of held that there is no other solution to this problem and that's one that this court ever took actually in this case and it has the district court has undertaken a number of cases in alaska which is that where an individual for whatever reason doesn't want to apply for that point and counsel on the basis of indigency and perhaps they don't want to complete the financial affidavit the courts have made decisions to appoint counsel where they don't hear that clear and unequivocal waiver making the defendant were then responsible financially for the costs of such representation so there are things to be done with respect to your characterization of the record as to what the district court judge did i and i have to say respectfully i'm in disagreement as to what the record shows because what the trial judge did was he and we should go over the chronology here because we had a determination thirty three days before trial that mr massey had waived counsel and she was never told that that wasn't any any sort of a tenet defining he was told it was the final order that said you're representing yourself this is a person who doesn't have any experience that's my final decision and it's presented consistently as a final order when he goes before the district court judge the district court judge does not suggest that that order is subject to reconsideration he said you've made your decision  you told judge france and your decision that's done we're ready for trial we're going to trial and in one week and and he kept on reiterating essentially that the decision had been a fait accompl now on the day of trial the district court judge says you know i was hoping you'd rethink this but this particular individual with his lack of experience like a familiarity with the system certainly had no information from the court that that final decision that he waived or relinquish his right to counsel so i would disagree with you that that basically even if the magistrate does judge didn't have the right to do it the district court judge did it right with respect to the actual deficits have found characterized by this court as presumptively prejudicial which is that there wasn't any and proof of mr massey about his prior experience what we find out from the kids are after the fact that this is an individual no criminal history apparently no experience as a civil litigation apparently never represented by an attorney before it's not clear he's ever been on the inside of a courtroom ever those are things that we should have found out in an initial colloquy and they were never developed argument as to the guidelines not allowing the first legal point that we want to mention is we think that this argument about the magistrate judge's jurisdiction is really a red herring and the reason it's a red herring is especially i think for the reason that judge lester suggested which is that the district court here reviewed the transcript threatened or attempted to intimidate specific high arrest officials who are actually investigating him and the indictment alleges that and so any error in the seventy two twelve instructions was harmless beyond a reasonable doubt and it certainly wasn't pla name three of the excerpts the record he said you have plenty of time to hire an attorney and so i think it was clear to the defendant that the door was still open to him he just didn't want to see the door and another point and i think this is important f very hard to persuade the defendant to accept counsel and he really pushed pretty hard and i think that it's hard to see that dialogue and i think that the district court was looking for every opportunity there are a lot of difficult sentencing shoes being debated around the country and in the circuit i don't really have questions right now but presumptively i feel as one judge that we have to remember make a whole lot of sense for me to get into the nuances of what the promise i don't i'm actually i don't know if the government's filed its this in yet but i assume from something that they were going to be filing request the seventh circuit before the booker decision came down had a decision made which is escaping me offhand i'm sure i could split the panel essentially what they said was that it's likely that the district court would be in the best position to himself and wasn't capable of representing himself and as to whether or not he had some sort of psychological problem with we master a judge wouldn't really know that because he didn't engage in any sort of an inquiry as to what his background was to determine whether or not he understood his decision or understood it and any decision i thought time the district court made the comments the defendant referenced by opposing counsel on the case was already well underway the district court took a look at magistrate brassens comments prior to the pretrial hearing which was ten days before the scheduled trial date and made a card for comments on record about how you chose not to be represented by counsel and you were by the district court judge may go to the issue of representation at trial but they certainly don't go to representation prior to trial and the important pretrial proceedings were mr massey could have brought different the pre sentence report he was remanded at the time of the jury verdict even though he voluntarily appeared at all court proceedings no criminal history and these were nonviolent offenses i think there's no question that a council council arguing him competent counsel argued representing mr massey asenath saying would be arguing that basically the operational nature of this conduct and medical disability perhaps need for medical services could operate i is the kind of case where typically if we do find probation to be appropriate we have an individual who has no criminal history these kinds of offenses he did remark upon his lack of remorse indicating a need for some to charity and some period of incarceration but he suggested that really this is kind of a probation ordinarily would be kind of a probationary kind of disposition that would be appropriate for an individual like this so all of that's just to me yes mr massey would be has a good chance of receiving a sentence other than a forty one attention to the incitement in this case indictment in this case among the acts specified by the government and among the acts considered by the jury in their determination as to whether or not a conviction under seventy two one twelve eighty is supported is a he did not want to be referred to and threatened to sue if he was referred to as a tax protester this was a letter that had absolutely no connection there was it was unprepared it was not proceeded by any instigation of any sort of investigation or correspondence with