to trial the supreme court the sixth amendment and this court interpretation this court's interpretations of those rulings requires the three things be shown before that waiver can be accepted the client has to know the dangers of representation finally the record must demonstrate that person understands what the charges are understands the nature of the charges more than an arraignment more than knowing what he has been charged with but understanding that if a district court shows itself that  every every individual gets that under the constitution but that's not the credit standard he has to understand in the district court has an obligation to discuss on the record with that individual that the charges and their nature such that you can be continue the trial again and that the governor had relied upon that he had continued to previously the government was preparing as witnesses had objected vigorously to a continuance and he noted that the time had come for trial and given all the considerations he was her to go for trial and then who the court found could precede conflict free or represent yourself and was misled by said i want to represent myself you think he is conflict free i disagree ok mr buy you are able to make that choice let me explain three things to you that was a mistake and that's what requires a verse from this case i think in the rush to go to trial in the rush to hold to his ruling that trial is going to begin the next day the court hearing the district was apprised of the issues up was able to think about what was going to happen on that day to make a determination about how he wanted to proceed and had ample time to review ballots and to make a determination what he needed to do based on how he was inclined to rule based continuance we had never alleged that that was abuse of discretion that's not before this court what we our position is once the judge made that this determination and proceeded to give mission to by them each choice he was obligated upon having the that issue also is not before this court which leaves the government scrambling for the rare case exception on erskine and they can't they haven't shown it they cite to things temporally out of focus they have no evidence regarding this fact as two and three and understanding of the charges to show that mission by understood them there's nothing in the records to court that i understand this week the government's even transcribing the initial appearance in some vain hope that some appearance in one thousand nine hundred nine in arraignment can somehow time served the government wanted to get rid of this case and i'm sure judge prager sent couldn't imagine why this person wanted to proceed to trial and he gave him this you know sophie's choice he would make the not foolish decision jury was out for almost as long as it is the trial itself the government's rebuttal was longer than their closing argument hammering poverty evidence as a basis just like mitchell the government's case is based on the testimony of a baited bank employee who client said he met that same day was acquitted in the central district supporting the notion of my client's exact offense which is the same i can talk to this guy mike made a counterfeit money he didn't know my client offered into evidence the fact that he had done the same method before the mo dally of this crime as alleged crime at the time was going to a bank these investors will invest in his company old persian company he's going to go with them to the positive checks he has this contract  has done this before there was nothing wrong with that there was nothing hinting about that he provided that evidence to government they checked it out it's consistent with i don't have an intensified it's not harmless in this case the government herit rebuttal because exactly because it wasn't for the what so that damning to him and one of the things the problem isn't that one of the differences between this case i think and others is that in this case he part of the defense was he was legitimate he was solid he was is my modality the judge when he admitted it and accepted that representation then conflated into well you're saying you're successful too i guess it's like why would bill gates need to shoplift and he used that analogy but that's a judge discuss any of this the notion that he's missed a couple of heart payments the court came down mitchell the way did because that argument is relevant of nothing everyone in this room could use one hundred twenty five thousand dollars i would assert i would be happy to see it come their way but whatever individual needs or desires for one hundred twenty five thousand dollars does not necessarily mean we're going to commit a crime today and that's what the government argues in this case that his individual need or desire for one hundred twenty five thousand dollars  conviction and under law the circuit it doesn't support conviction it's prejudicial it should have been strictly unheard of in this case which is exactly why the government hammered it in for a bottle the course question about that i'd move on to the only thing i want to  explain to the jury that he had showed up he had stayed behind he didn't run then you would have found him they would have just one hundred number they had his information the corporation his initials it's a bank he has a relationship with i'm staying here because i know i'm not guilty i have faith in the in my defense and the government's just plain wrong and this guy might he took off because he's guilty because he didn't do it and in fact we know that by the time of this trial the other co defendants gregory has been acquitted which tends to suggest that that  had merit and by having the judge determined that trial it was indeed the third one was acquitted i wouldn't be able to ask that question right is relevant it does tend to exculpate him as part of the defense and that's the jury to determine whether that's just mere speculation or that's a reason to doubt this case whether it's a basis to say yeah you're right this guy didn't show up this guy did jump fail and you're blaming everything on him we believe you and mission of i lost that opportunity and i think that's hard i think that is a she will of nature here too which is these two hours together i think affected his ability to mount an effective defense which white neither i think are harmless today before trial and two and a half years after the event was indicted after the court had repeatedly told the defendant that there would be from trial days and actually had been living in the past and grain continuances but a month before this at the june fourth hearing it said there will be no further but it's not the same waiver  him of the hearing and defend it doesn't challenge an appeal that he didn't understand that there's a difference i think between guiding the process of choosing which still i defended who wants to choose and helping to make that determination and informing the defendant of the consequences of a different course of action i rise for the heart to fully explain the consequences of making that choice i agree that if you at that point had indicated desire to represent himself that despite his dilatory conduct up to that point that would have been appropriate to i can't represent me he's not saying a body can't represent me so i'm going to represent myself the court at the end of the hearing has to say i take it from what you're saying that you intend to represent represent yourself and that's the end of the hearing there's no deliberate choice the defendant is clear all the call that we just record says i'm going to like you to make that choice we're going to go to trial tomorrow after he says you can represent yourself that's true but i would like to do he said you don't give me any choice yet he's saying you're not giving me a choice but he's not saying that he wants he's saying that either choice is not something he wants to make he's not saying your i q me choice so i'm going to represent myself he's saying i can't do any of these options i need the continuance he's continuing to not make the choice and the friend of inquiry in that context doesn't come into play and that's i mean you're really saying that you don't have to make a that what's called the colloquy is designed for someone who wants to waive the right to counsel doesn't mean he doesn't have to have a general understanding of what's going on it's just it's not the same understanding and that kind of context let me interrupt for a second so you know what are you really arguing here that just seeing a conspiracy charge you know different really for me told what the nature and that he is that's true to some extent although the conspiracy here is that his acts that are part of the conspiracy are all the criminal acts  you have the p s r that's given that outlines the charges in case number two you do have some discussion of the record throughout the proceeding of the nature of the charges and more probably than you would necessarily have some of the evidence or some of the people who are going to testify you have for example on kind of hearing in this case the july ninth date this is the actual record page eighty three you have him saying look this is what the evidence here is that is involved in this case there's the counterfeit money there is the tapes that involve the the presence of advisory council was the presents itself here you have now in the presence of advisory council throughout the prior to the kind of the waiver hearing you have the counsel saying that he actually provided this information the seven defendants said he hadn't said he was successful in the court said you're suggesting that you're successful and that was my it's my reading of it i thought i did see i didn't see too much wrong with the examination but then the argument took it in a different direction that's home this is it mitchell for the government interviews for witnesses to testify on this it was the last thing the jury heard it was not the last thing the jury heard it wasn't even an important part of the case as defense counsel indicated this is a large amount of money and motive is inherent in one hundred twenty evidence didn't go to defendant's believability it wasn't particularly prejudicial like it was in michel when you're dealing with it wasn't just that he was poor it was that he was poor and didn't support his family and went on and played basketball on the court went into a kind of why  particularly important evidence a trial this isn't what the trial turned on it wasn't particularly prejudicial if i could turn to the third party culpability issue during her time now appearing in the question think it would be relevant i think the ultimate question is whether the court abuses discretion by not in it in particular not reopening i think if you look this is different than the light how in the light how i disagree that the government's argument there was that these two people were connected in fact what this court said is the government was wrong to say that there was no connection between these individuals and therefore it was inadmissible violate was a classic third party culpability case in which the government says the defendant did it defendant says somebody else did it but the government isn't saying that there's any kind of a coconspirator liability between the two it's one of the case exception i'll just read the quote the absence of the temporal focus for the government's inquiry helps lead it to iranians conclusion on the merits the question even if the rare case invision by ballo is not broadly what the record reveals after saying i think the government continues to lack a temple focus setting to irrelevant information about a different case and focusing on information he was saved after he allegedly waived his right to counsel i don't think he can help them i also the what the government doesn't get they say well it's not like personally because we didn't make a mistake he wasn't misinformed but close to diversity shows exactly what the government brought across as if you look at this case the government when they misinformed him the defendant replied yes the government says it's six years or three years but the government gets it wrong and i know the answer and if the defendant asserts he knows the answer of course of the fender in that case is wrong as well and what the governor's understand is individuals in our society often defendants who cannot cases are suspicious of and don't necessarily accept what the government offers as the gospel truth and that's why the district court needs to make sure that it isn't showing an understanding i think the government also errors because they confuse mr accessed information with showing that he understood the information there's no showing that he ever knew about the penalty but there i mean he said he had access to it if this general  to try to morrow i find you have conflict free council you're free to use them if you don't want to use them i'll have the standby for you if you want to elect to make a waiver it's up to you which one do you want to go i'm not saying a choice can be a choice between two hard things to go to trial or plead guilty our choices there are hard choices they often involve prison on both ends of that choice with different lengths or different possible lengths but their choice is their real the judge gave them that real choice as he was supposed to do elected his choice saying no i disagree with you about boyd i'm going it alone he could accept that as long as he then made sure that he understood the nature of the charges and the penalty and that's where the district court stu the last piece i want to talk about just briefly is the poverty evidence as he did of jack and the objection originally when it came in was relevant this is irrelevant to anything i also disagree with the government's characterization page five in one the