ok this is an unusual case because the government and the appellate agree that there was an error in regard to some here and right to the question is what's the remedy exactly and doesn't use tell us that the remedy is to send it back to the trial and denied the motion we would then have a record by which to determine whether or not it was correct or incorrect if it was correct to deny it and there's no error in mr grego representing himself he was incorrect to deny it then i think the government concedes he's probably entitled to a new trial so the question is why don't we just go back and figure out what the facts were in this case first of all i still don't think you can go back and figure out the facts when and callahan it specifically says that you have a when someone chooses to represent themselves when the court does not inquire into instantly situation that it's prejudice per se they said it's a unique service that an appointed coun the case i believe it was i hate to say i think it was retained counsel case and then there there is an absolute right to retain counsel of your choice there's not an absolute right to have appointed counsel but what you want so so if you the question is and then to be is of course we can send it back to the trial court to retry it although i think in one of our he views cases we send it back to the district court to have an evidentiary hearing about it must have been before the supreme court stopped us from doing that but again news seems to be pretty closely on point it's it's it's appointed counsel the judge doesn't do what he should have done and we go sit take it back and see judge do it you should have done then we'll have a record and with a certain whether you are right anything you know just that i think anyone that's had experience in the trial court which i had substantial but that's where and judge you know there are actually just saying the magic words that  know i can't get along with my lawyer my boy is not doing what i say and all of that there are actually and i know this if your ex wouldn't probably surprise you there are some defendants that don't like their voice because of lawyers want to do everything that they say and lawyers do have a right to make determinations about motions that they file and there are defendants that are obstreperous and they and then they will say things like well that i'm going to represent myself if you won't let me have and and i you know i agree that a judge needs to get into that but your client could fall there's still been no proper other than that he just says you know you haven't said hey the lawyer never came and visited me  lawyer you know wouldn't you know i wanted to testify and the lawyer told me that i couldn't it's just like hey you know there are irreconcilable differences and we're supposed to assume from that that that would allow a defendant to run the court proceedings and there are defendants that actually do want to you know run the court proceedings and they're not happy with anything i totally agree with you i've read a lot of records i've seen a lot of these confidential hearings back and tell the judge why you know what was the breakdown i agree with you your client the government agrees with your client was deprived of a procedural right to tell the judge what the problem was so the judge could determine whether or not  mean we and you'll be back up here and we'll be able to look at that record but you'll be able to make a profit of the judge your client were able to say here's the reason why i couldn't get along if the judge if as you suggest is biased against you will then we'll be able to look at that record and determine whether or not the judge should have granted it i missed that that's really that's a lecture but it's a question to why it's not an appropriate remedy because we don't know what would have happened if he had continued like in musa with his attorney in that case you know what happened you know that there was a trial you know that something happened and then you could look at the trial record to say ok there was a conflict of interest here but the chair attorney actually worked for farmers and there was no there was no conflict that if you're trying to tie this and you do that the fact that you're trying to make it a structural error and that therefore i mean he has to separate heredia hearing and which we're not looking at as being defective here and so were the court doesn't isn't required to give you an arrow in the quiver if you don't get what you want then you can just say well i'm going to represent myself and even though you got all the things done forever that therefore then that the threat is invalid and represent ok self and as a as and government concedes he had ineffective counsel at that point is my question is what case you think stands for the proposition that it's structural error we have news which is a direct appeal in which judge to issue writes an opinion that says go back and to judge real actually go back in this case and holding a hearing and determine what the real facts were and then we'll review it what's your best callahan  i don't know what we can tell the state court to do and he has other than retry and so on direct appeal which you best case is direct appeal so we're restricted in habeas cases to what we can do right so good morning america please the court mark your home for united states i want to start by arguing against my opponent and then argue against my so for a moment as well well that's a little bit of a house of cards you know when this whole thing starts out and even just to send it back it's a little bit hard to decide how this and fax the entire thing because this defendant just on the record looks like he falls into the category of being a little bit obstreperous and when he doesn't get what he wants and there are certain timing issues but the judge didn't really do what he needed to do he didn't you know so he's not without he's not without some support for his position and then he decides what you're not going to do what i say then i'm you government trying to get judge real to do something at that point the government did not oppose the motion for reconsideration by the defense the government in the in camera hearing it but you also if you're trying to protect the proceedings says the government you can get up and you can say judge you know we really need to know more about this because we don't want to you know we just don't want to go forward if there really is a conflict and you knew that that was for george real w will bring me don't i want you and it really doesn't matter what the declaration says in the sense that and leave conceded this point so i don't want to take too long on it muses says the purpose of the inquiry is you're dealing with  a client who's just saying stuff and the judge needs to go further and say to him ok what's the nature of the conflict and so even if no matter what the declaration said an inquiry would have been required correct i don't think that's required and i don't want to des attorney was competent at the time crandall chose to refuse further representation and proceed pro se it was only after the district court in an evident treat hearing determined that crandall's counsel was incompetent that this court held that it was a great lawyer the only question is whether there was a breakdown in communication and as the record stands now this court could not find that i think judge callahan is absolutely right the record i don't think the court can find one way or another and i'm not asking the court to but i think what the record looks like right now is that defendant was one of those crazy tax protesters who believes he has a valid subject matter defense to any criminal prosecution as long as he challenges the jurisdiction of the it's structural or on the merits or on important and if we don't have a record we still can't decide at this without me to judge greg or since question which is that we're up here five everybody agrees we send it back the other side says you should get a new trial you say we should  hearing the case law seems to be on your side but we've now we're now four months five months six months a year after the case and you could have just retried the guy in fifteen minutes i think i can agree we moved her some reversal and remain is going to be the into the story i think it's actually fairly surprising that in a post trial case the only claims on appeal relates to the denial council and that we aren't having challenges to have an entry rulings or other potential claims every time you do a trial errors have a way of showing up and i suspect that if we go back for a new trial there will be a new appeal challenging something else about the trial and there will be a two year process of resolving that appeal whereas if it goes back for an avid interest hearing potentially that we will win it that evidentiary hearing it could go back up to this panel to then rule on the head of necessary but the trial that we will be done and over with and the things they should have made some sort of offer proof here about what what the irreconcilable difference or is it are because that is handled in camera they're not required to do that what's  and sometimes there are reconcilable differences even when you have great public defenders personalities clash i think in all likelihood if there were the hearing if this court does what we think it should do and it goes back to an evidence will turn out to be no irreconcilable conflict and the trial will stick i mean the other thing i want to be clear not like in your lawyer is and doesn't satisfy that i mean the defendant would have to show that he was entitled to certain said his lawyer absolutely you know and filing motions that apply whether it has friends or not or things like that might be things that that player say well i can't file that because it has no merit and you don't get it if you want to lawyer your lawyer is going to file things that i get to control the legal part of this absolutely your honor but then on the other hand maybe he never you know maybe he didn't ever go visit him at the jail maybe he never prepared or maybe he told  for a moment which is just part of the point of these hearings is for the district court judge to calm the defendant down and i don't think it would have made a difference in this case because we didn't do abbe a well done freddie hearing that the government was able to assist a nd we had you know a defendant who looks like he's an obstreperous tax protester but at least sometimes the defendant thinks he's having an irreconcilable breakdown because he's saying i want to file this motion the lawyer won't and he thinks i'm the client i should be the one to make a decision it's my liberty that at stake and it's actually helpful to come in before the district court judge now the district court judge act like a psychotherapist and say you know nov respectfully that's for a lawyer its job and basically give something like a mini for red admonition to try to heal that relationship and i don't think that would have made a difference in this case but i would just know that in additional wrinkle here that i think is really the best argument that defense counsel has which is that it is possible theoretically that if the hearing had been held it could have cured a disagreement that didn't rise to the level an irreconcilable well if we don't if we don't grant mandate for a hearing irreconcilable breakdown and you say your choices are to stay with the lawyer you can't communicate with or to represent yourself pro se that is a structural there i think but it's not structural or if somebody doesn't have a good reason and wants to change lawyers and the and the judge says no correct so you're not entitled to a lawyer of your choice unless you retaining him correct you've got her if you've got a if you're going to reconcile the conflict in a force to represent yourself reversed the conviction and it did that even though there wasn't a an adequate hearing the court didn't snip back for a new hearing but the reason it did that was because the record was good enough for this court to conclude that there was a true irreconcilable conflict so that's how we distinguish structural there simply by saying that there was an abuse of discretion that abuse or discretion of add to the defendant representing himself pro se you know forcing the defender represents what you do and we have to look at the reality of who we're dealing with the judge here is not very kind  doesn't try to maintain ago when we had perhaps a case going back in the sixty's you had a group of protest improper and we started at nine o'clock by eleven o'clock it put on their witnesses macintyre defendant three weeks later i'm i mean this is hard to believe but all his cohorts gave me a standing is the case and i'm sorry i got the wrong the wrong name in that case also it's just a shame that on the day of of the hearing in this case a day of trial instead of the judge arguing with mr guar to why he was representing himself if he  taken five minutes to go into chambers and explore this we wouldn't be here you know we all agree is today and also i want to just not have it left out but we do have the restitution issues so if this case does go back to this court needs