with respect to the prosecutorial misconduct we believe that that at the grand jury the evidence that was presented was not full complete and if if the prosecutor in the case had provided the grand jury with complete open and mr stoller would have never been even in we believe that the that there was evidence the evidence that was withheld and from the grand jury and also admitted by mr chapman that it was not introduced to the grand jury w evidence with respect to the preparation of a bankruptcy protection why doesn't the guilty plea effectively waive any challenge to irregularities in the indictment when we vote we believe that it is that because he was mentally incapable of entering that guilty plea that in fact that that is a that's a separate issue while i mean it seems to me that the guilty plea waives the challenge to the indictments and your main argument is the attack on the guilty plea i understand your position and for the purposes of arguing the brief we we would disagree with you we would say that that in fact if you was incapable for goes back to that then in fact that would be the first ground but that also brings up whether or not the whether or not there was and in fact even in this case the judge acknowledge that mr stoller had dementia and she specifically just kendall said that she thought she went beyond having beyond having to raise that issue because she gave him every every opportunity and she saw him for a period of years and he was in front of her and she felt that the dementia was not serious and off to a fact his assistance of counsel as well as participate in the case however we believe that that's an incorrect standard and we certainly believe that there are inconsistency is within the district as to what a fair standard is in terms of determining competency and we would suggest that irrespective of how many times mr stoller would have appeared in front of her how many times she would have seen him there were never the last three letters from three doctors that came to the conclusion that mr stoller was incompetent that he had dementia and specifically at least one of the letters indicated that he was incompetent to go to trial he raised that issue with his own attorneys and he asked one of his attorneys to file a motion based on the at and t the attorney refused to do that and that's part of our last argument that with respect to effect assistance of counsel we believe that the letters speak for themselves and in however judge kendall in her opinion said i'm crediting the doctors with the dimension diagnosis the onset of alzheimer's that was diagnosed in two thousand and twelve which was before his plea however she still felt that a full competency hearing was not required and that is part of the heart of our argument is that once there's once a judge has letters from people who are qualified to make a decision about whether or not he's he's incompetent there at a minimum should have been a competency hearing and there wasn't and this judge even acknowledges that that maybe he was incompetent but she's made she has herself has made a determination that he is competent enough to go to trial and and excuse not go to trial but to make the guilty party and we would argue that there's there's certainly nothing in the record that would indicate the judge can rule has the ability to make that decision and and therefore they should have gone to a competency hearing and my client has my client maintained before his guilty plea and has maintained subsequently after treated knew he was being treated for drugs he was on excuse me he was taking drugs at the time all the plate and we believe that they had also is something that would have been borne out in a competency hearing and would have come to the light and could very well have been pulling sweater or not he was sure he was and finally are with what we feel that he was coursed into pleading guilty to begin begin with and all of this comes from a check box on a bankruptcy form he was convicted of bankruptcy provide forty page bankruptcy petition that was spiled it was filed by an attorney it wasn't even filed by him there was one box that indicated that he had no interest in particular piece of property and that was the basis of the process and that decision was made based on his discussion and we would suggest that that they have to citizen is inherently wrong and when he told his attorneys that he did not want to plead guilty they pressured to plead guilty by in the chang court should be reversed and remanded and that's all we have for our opening statement right th please the court my name is timothy chapman i represent they have to leave the united states the defendants conviction should be affirmed its entirety there is no error at all by the district court in this case to start with the competency issue moved for a competency hearing at any point in the pursuit of case so we're in the domain of to a spontaneous competency hearing that's exactly right your honor and in fact the defendant second attorney mr meyer conceded in his motion to withdraw claims to evaluate him and then as a result of that is a one page affidavit essentially without very much detail at all where he says that the defendant is suffering from alzheimer's and that he was incompetent to plead guilty that dr gruen is in his mean it's a pleading it's not a medical report it was not it's a one page affidavit by the doctor it was never made part of the record on appeal it was referenced by dr howard broner and  portion of it was summarized by the probation officer in a two thousand and thirteen supplement but the document itself that suggested the lack of competence was never made part of the record on appeal it was filed in february of two thousand and fifteen after the judgment had been entered on the docket but between that affidavit and the defendant being in the hospital mr meyer then again very for the second time very responsibly asks judge kendall to not hold the sentencing to to adjourn the sensing so he can have the defendant evaluated for competence mr meyer it very clearly said he intends to have evaluated for competency with the intent of maybe moving to withdraw his guilty plea then he goes the defend owners office and as we argued throughout and the judge ultimately agreed with us at the sentencing the defendant falsified very severe mental impairments he indicated that was retained by mr meyer not by the government by mr meyer dr howard brown or highlighted the fact the inconsistency of the severity of the symptoms with regard to mr stoller's other abilities and he finds that he was competent at the time he entered his guilty plea competence of course is normally evaluated at the present time you look at the defendant to see if at the present time they can understand the proceedings communicate with their lawyer and effectively participate in a defense but mr  to look back and said he was he was competent so now post the defendant's hospitalization their own expert is saying he was competent to enter the plea of guilty that's in tw in late april of twenty thirteen by september of two thousand and thirteen the defendant is providing a supplemental interview with the probation office which is described in the supplemental report and he's speaking very fluently rationally cogently about his life his finances his  son described his son's medication he does all kinds of very detailed discussion with probation and then at sentencing of course he's even more cogent and rational and coherent in his discussions about his life and the reason he he you know pled guilty and now he relies on experts to defend his trademarks in court so far from any indication that he was actually suffering from a lack of competence with the record shows was he at all times was incompetence as if they're indistinguishable things but they're very different things people as in the rain on a case an individual might have some impact from early stage also timers and still be fully competent and able to the defendant lies under oath none of those were given maybe not with those specific words your honor i believe there were six different alleged errors the first one the only one that was not touched at all was the right of the suggestion i think assistant u s attorney should have a checklist on all the rights and then when a judge doesn't go through one of the rights we don't even have this issue on appeal i did just a little suggestion i was in i understand substantial and it was substantially complied with but why does we even have to deal with this kind of argument if their rights that haven't been it when the judge finishes in before its interests a judge would you mind asking about this this in this and then you regard to the accusations of prosecutorial misconduct i don't consider fully understand the defense argument here but i think what they're saying is because the alleged offense conduct is not constitute an offense to begin with that we acted unethically by not advocating for the defendant in front of the grand jury with that theory it's not frankly brady information because it's a legal theory it's not evidence of  counsel claims those all fall for the same reasons that the other claims fall there was no error by the district court the defendant had full rights in the full process that he was entitled to he is was not we don't think it was properly pollo and and we would agree with the panel that it should be should be asked in every there's no reason why it shouldn't be and it certainly wasn't in mr stoller case  but with respect to counsel's argument about the mansion and relating it to mental health and his inability to understand his guilty plea for so as as anyone who knows someone who has he one day somebody may be fully coltrane's they may be totally rational they may understand everything that's going on and the next day they won't know who their wife of thirty years w defense requested and it's in our brief the defense request of his attorney to request that if mr stoller would would have requested it directly from the court in all probability the court would have said mr stoller you've got your counsel here he speaks for you you don't speak for yourself up she had an argument with his attorney he said i want that and the attorney said no and the attorney was supplied with the medical records of the doctor that had been treating him before they had and he was also supplied with the that summary sheet the counselor per to from another doctor and and i don't know i don't know personally whether or not dr how boomer actually did anything more than review those record books but he came to uk he came to a medical conclusion and that was that mr stoller had also time but importantly i think and the prince the principal part of arbor brief concerns the decision that the judge kind of made and the our problem with that is that there should have been at a minimum there should have been a hearing and the the district courts are split as to whether or not a hearing is required arguably most don't require hearing but some of them do and we think that that because some of the some of them do and they raise a due process issue as to whether or not you can hit you can enter a plea without having such a hearing  w his own accord at least as i understand the record right in the days before sentencing murphy moved to withdraw and that's how my or got on the case that's correct and mr stoller never asked to fire raised in a motion there's nothing in the record indicating that stoller asked the court to five meyer because he wouldn't do that