closer the principle issue in this case is whether the defendant was deprived of that fundamental right when the trial court compelled him to represent himself at his trial and to defend the criminal tax charges and conspiracy charges against him without the to revoke that decision before any trial proceedings had begun and that was a timely revocation of his right and he was compelled to represent himself pro se when the trial court denied that request and did so without making if it was prior to the jury selection the case was called for trial that morning there was some colloquy about legal issues and pending motions then there was a sidebar this was before the jury selection represented by counsel the court then said something which was not correct he said well we appointed mr misspoke counsel a long long time ago you have been represented by counsel but you don't want to take advantage of it and they're encouraged because mr miska had been appointed to stand by him so are you saying stand by counsel is not the same as i am saying that and i think the and i know that the supreme court has so how then by counsel is not counsel for six right to reassert a previously way brighty counsel is not absolute a pro se litigant may not abuse his right either by strategically requesting special appearances which he did do or by repeatedly altering his position on coun so you're saying that it appears the judge coho based his ruling on delay that's too late is that while that's all he said he said it in a way so that you're saying there should have been fact finding as to whether in fact it was too late whether it would cause delay and we don't have that in the record is that to be that's correct it's only arguably too late if it would have caused a delay and if even if it would have caused a minimal delay there had to have been some some inquiry and some balancing   it is is there anything in the record about mr vetoes having been strategic or playing fast and loose with or if you very often when we read transcripts we can tell that the judge is telegraphing that this been a very difficult situation flop cetera but but is there anything in the record that no there's not dr libido was not a flip flopper he was very clear from the beginning what his position he wanted to represent himself but but he never expected that the case would go to trial him about is right to change his mind because when he said i want counsel i want to proceed pro se for now judge poe hill said all right and later in that proceeding there was a little bit more of a colloquy about stand by counsel and and i'd like to get the words if i may said i'm going to appoint standby counsel whether he wants it or not the question is would it be active in the sense of conducting the trial which i'm not sure what that means but ocular vader may have been misled into believing that i don't think that's this case your honor dr levine i said this case is not going to go to trial because he wanted to plead and reserve reserve after a conditional plea and present his depression and suppression related issues  suppression motions should have been granted that judge cohere had improperly given the government additional time to respond to them after the government's time to respond had run and dr libido believe that he should have biscoe had been in the case for about here at that point and had been actively in the case he had received all the discovery material because the government wouldn't turn it over to anybody but he had been present at the suppression hearing he had been involved you address the warrant issue the issue there a few other issues having to do with suppression motion and i wonder if you can get that address the rest of the warrant the david yes i will your honor maybe it's more for this was a very problematic search agent of the pain of the i r s got the search warrants and the search warrants were incredibly broad and with those search warrants he and a team of i think approximately a dozen armed officers went to dr levy does business and then to his home and conducted a search through which they took virtually everything that was there every piece of paper now it was a very problematic search the third circuit judge  wife during the lengthy searches and there was a separate fourth amendment violation mixed in with the closing down of his veterinary did all the surface so these were not frivolous issues and there is a serious issue about whether the searching officers to seize everything every piece of paper i think every physical object that was either in the in the house or the office that's a general warrant and it's not saved by by any kind of good faith that  much members of the court with morning i'm john hidden from the justice department for the united states i'd like to go back and pick up on a couple points strategy or game playing by dr livio with his attempt to substitute from pro se status to represented we disagree strongly with the  nature of the record and we think the evidence is crystal clear that the game was being played the evidence that that conclusion derives forcefully from the timing of the motion to recuse which was preceded by the lawsuit the basis for that motion which was an event that took place eight months prior and the statements of dr levy it up himself when the the matter of the judge's denial of year and a half ago and it's too late this was made without fact finding so as much as we might find some basis in the record we we have the reasoning of the court saying it's too late and yet there is no fact support that we don't know whether back michigan but it's said listen you know i've watched this thing unfold you know i'm ready to go it's we just don't know it's not a problem it's a bit of a problem but i don't think it's insurmountable your honor the cases that we've cited on the need for express finding of intent to delay indicate that you don't need such an expressed finding if you review the record and find that it contains evidence of an intent to delay or an attempt and intent to abuse the right to counsel that would that would support the discretionary act by the judge all right what can give us  local rules for the resulted in the dismissal of this indict it was a he made reference to this issue a couple of times between august for and when he eventually did something about it he waited until the week before trial to later with the motion to recuse which was lodged not file i believe not filed till after merely the timing here strongly suggests that he was waiting until the eve of trial to try to bring things to a halt decision that they were wrong your honor that decision was made by the government by the united states attorney and i don't know what thinking was i understand i'm representing united states i'm accountable for it true that by insisting on more hardball terms than dr levine i was willing to accept the process got stretch out that is undeniable but that's a separate issue i don't think this record suggests at all that the judge entertain such an idea let me quickly get back to the first question which was what do we do what the what does this court do with a record that's rather open ended on this and we submit that that if if you want findings from the district court to resolve the ambiguity to a certainty the appropriate thing to do is a limited rematch not vacating the conviction a new trial and i'll have some authority to the court on rule twenty eight j letter as soon as possible certainly not later than monday out of my office there was a recent bit circuit case on this yes i think so it's his state of mind again yes i guess yes so that's an option for the court we still feel that the record is strong enough on the abuse of the right to counsel in the right to proceed representation that it's not necessary but i certainly understand if this court doesn't want to speculate yes yes i also want to remark quickly on the role of standby counsel and counsel for the appellant conceded or stated the principle that we agree with stand by counsel is not interchangeable with sitting right there and in the in i assume in hearing of the judge who said we don't operate that way i couldn't put mr misc zero or anybody else in at this point to represent the and it was that statement to which dr libido gave his assent so we don't view the possibility of substituting mr misc over as realistic at all on this record if there are no other questions with regard been put on but it was the morning of the trial with the the been higher filing in and he wanted a side bar and this was immediately after the the denial of his motion for recusal  appellant in this case are very similar to arguments under nearly identical conditions that the third circuit has rejected recently and that was in united states versus the ninety two thousand four hundred twenty two dollars that was again then circuit judge alito writing for the majority review us versus ninety two thousand dollars as central to the disposition of the warrant issue and a close second behind that case would be  just as in the instant case the warrants at issue in ninety two thousand dollars used very broad inclusive language in the list of items to be seeds just as in the instant hates the indictment contained no limiting dates perhaps even more egregious lee in the ninety two thousand dollars case of the there was no apparent limitation as to the transactions activities or crimes involved so you would say that the breadth of the time required yes your honor just as in the ninety two thousand dollar case what we had here was a very complicated why'd ranging lengthy financial fraud scheme being investigated the nature of the investigation and the nature and also it's important to note that in the ninety two thousand dollar case just as in the instant case the the detailed warrant that which the majority look was not incorporated into the into the warrant so you have the incorporation issue in in each case even with all  it when you account for the need for an indirect method of proof and that's what the i r s says it was embarking on i think it would have been roughly eighty nine to the date of the indictment they would have been acquiring records that would have covered the period eighty eight or eighty nine to i'm sorry not the date of the date of the search for ninety six so it was a lengthy it involved sham offshore trusts foreign bank secrecy sham transactions on shore conspiracy and the need for a broad warrant was just as compelling in the instant case as in the u s versus ninety two thousand dollars even with all of those laws that afflicted the that in the ninety two thousand dollar case the majority found that the problem was over bred not general warrants and that the agents were entitled to rely on the legality of the warrant because it of the it this court should apply u s b ninety two thousand dollars to determine that the agents in this case acted in good faith because the warrants were overbroad not general if they were overbroad and not general first of all the good faith exception saves search but second and almost as importantly you can apply to to consider the unincorporated affidavit to limit the war appropriate in this case because the affidavit was much stricter and more detailed than the warrant and it's clear from the record that the agents restricted themselves to the terms of the  right well the i don't think there's any dispute that the let me put i was greeting cards well that's true it is that's true and the reading cards could establish the conspira would say that more than an actual records it will be that it's very yes and also and also apparently legitimate or earth financial records legitimate in the sense that they wouldn't automatically be linked to a crime were appropriate because of the indirect method that the i r s was going to use where if you don't establish as a threshold matter before you reach rule twenty one time that you conducted a sufficiently thorough about the fourth amendment issue i think it's only correct to say that the that the seizure was limited to the scope of the warrant because the warrant remitted the seizure of everything where the issue was whether it was limited to the scope of the affidavit well i'm not sure that i have the issue because the affidavit was not incorporated and it was not even available at at the search site and it was not referred to and as your honor noted i don't grasping at straws when it refers and i think it's somewhat misleading when it refers to the colloquy that occurred after the government had rested its case and tried to read that as a concession by dr livio that he was after delay it it's really no such thing they were talking about there are two different things dr livio was saying i'm not requesting counsel now after that after the government has presented its case no you can't do it that's why i requested not request a continuance at the beginning of the trial he never he never asked for time to get a lawyer he never asked he never even when he made a motion for the recusal the motion was i want to go to trial before before a a fair judge not that i don't want to go to trial not going to veto was was incarcerated pretrial he had no interest in dragging this on i'm in fact one of the things he was complaining about women when the court had extended the time for the government answer the the motions was that it was it was delaying the case and the delays in this case none of them are attributable to dr livio except perhaps for in the very beginning when he was given some additional time to make his retrial motions all of the other another motion for release from detention and then took an appeal to this court and for a little while the file was up in the third circuit judge codell says i'm taking this case off the calendar indefinitely and even when the trial for the file was returned didn't put it on the don't think i quite finished earlier which is that if if if mr miska had said i'm not quite prepared i need a little bit more time then then there could have been some some some