seemed out three one five the united states versus russian my name is howard pincus from the federal public defender and i represent same question please proceed thank you mr russian told the district court his attorney had lied to them and had misrepresented his position to the district court and that her lack of candor had led to a complete breakdown in communication by instead treating mr russian's complaint as just a disagreement over tactics the district court abused its discretion this court should remand for the district court to consider mr russian complaint on its own terms and if it determines that substitution of counsel should have been granted to hold a new sentencing hearing unless the government proves that the error was harmless beyond reasonable doubt in a pro se letter on june twentieth mr russian stated that attorney was a liar and the fire he did not in that letter or in the document that accompanies it ever stated he wanted to represent self instead he explained the council had promised to raise a fred issue on appeal and not done so and then when he asked her about this later recently she had lied to him again ten days later on june thirtieth counsel file a put in the legal mail system with his facility a pleading that disputed that he stated that he had never asked counsel he never asked the court to represent him self that because counsel representing otherwise had lost faith in her the court has a statement about my lawyers a liar on june twentieth heard it as a sign statement reflected in his letter that he mailed on july fourth so the court knows about the problem of trust the court knows about the debilitating breakdown  communication that is alleged and then the court goes forward in a point and says that you need the community continue to represent him in other words denied the motion to substitute it's not clear to me at all where this confusion comes in i mean why couldn't it mr russian actually raise his concern was that he wasn't communicating with counsel and what the court said is you know miss miss brandon is a good attorney i have confidence in her that's not responsive whether she's communicating with mr rush but that in lieu crux of the complaint that's right and that issue is teed up and on page five i think it is says with respect to your position on counsel i understand that you are dissatisfied with rana and then goes on to say because she's not following your instruction her well that doesn't you construe that to be that there is that that he understood that there was a miscommunication a tactic that doesn't necessarily have to be the case doesn't follow my instructions that goes back to the fact that she didn't file pursue the fret appeal when he asked her to do so i don't trust her that that's not what he said about the appeal he said she agreed to that we were going to raise this and then she in a few days was she lied to me she lied to me that's right so she didn't follow his instructions from it wasn't what what he's saying is that we agreed to raise this and then she did that is what he said is a lack of can not that different from she didn't follow my instructions well i told her to follow you feel and she didn't put the issue in there we were clearly erroneous that our determination as royce of fact was correct and our point is that the district court treated the issue here as something that wasn't the issue was a lack of candor and in his june twentieth letter but that the court converted into a not following his instructions or wishes the reason i ask you the question about the center review is if this comes down to a record that would support the view that the court understood what was at play here the lack of trust in just to say i'm i heard from is brannon who said there was no breakdown of communication so there actually were two different views being no breakdown in communication other than what was expressed by mr rushton so that's not a denial that there's a lack of communication and that's before she said in that motion is when she said to the court he said he want to go pro se and then mr rushton a few days later once he gets the tensest motion says she misrepresented my position i have no faith in her anymore there's a debilitating way why would i be able to rule that it would not be clearly erroneous for the district court to also read it that way in other words the district court when it made the statement that that yes he's not following your instructions why i asked i asked her to file for read issue and she didn't that's one thing he said we agreed to and she did that and she said what's when's effectively saying is she said she would raise that issue and then she didn't that's a lack of trust issue and then there's a misrepresentations of the court no where in a june twentieth letter did mr rushton say he wanted to represent himself and that's what counsel told the court and he said i can't trust her she missed she's like me and she misrepresent addition to the court and the court says well you're just she won't follow your instructions and it's probably because she the court had been dealing with him as a sovereign citizen and may have thought that this was what was going on but the court ha rule on the motion in the terms in which his friend mr russian did saying she's lying to me there's a lack of candor i can't trust her there's a complete breakdown in communication disagreement about tactics is not a complete breakdown in communication looking at that senate said doesn't use or tactics that's your work ok and so the question is if i can plausibly read the transcript to say that that's not what it's saying at all what it's saying is he doesn't trust you and you don't follow my instructions and when i look back at the march the june thirtieth pleading that was filed by counsel which he says is there's no breakdown in communications other than the fact that he doesn't trust me so the issue was i mean issue's been out there it's not like the court wasn't aware of his claim that she did it that he couldn't trust his lawyer and then ruled this anonymous must look at this if we're looking at what was out there the court in its july fifth order that was issued before it received mr russian's july fourth letter said he wants to represent himself and denies or not they say but that's understandable isn't it you you say this soon twentieth letter is evident that he w just the person who's reading this handwritten letter or suffer a presentation knows what jumps out of it he had a history of asking for that i think it's pretty hard on the district court to expect the district court to understand this june twentieth letter to be something other than referencing back that this was the issue the right itself representation but he's not saying that he wants to represent yourself he's talking about what should have been raised what can you rephrase and nowhere in there does he say i want to represent myself at this hearing and instead the court takes it that way so the court does follows counsel's lead in the june thirtieth motion where she she says mr russian asked the court to represent he never said that in his letter can you tell me how this supposed a total breakdown in communication manifests itself because i see the attorney filing an objection to the p s r on legal bases that i think the mr russian would agree with even  what did he contend the failure of communication and cost or how was he hurt by it he didn't say what could have been raised or what he what the communication would look like but this court  recognize that communication between a lawyer and a client is essential to effective representation we don't know what that communication would have yielded and if there is a complete breakdown in communication it's not our burden to show what communication would have led to in terms of the of the hearing is the government's burden to prove that any error in denying substitution was harmless beyond reasonable doubt so to ask mr russian to say and the record doesn't community what what the seventeen year of like with a fully functioning relationship with counsel where there was no lack of trust where there wasn't a breakdown in communication it's just not right it's up to the government to if there were if there should've been substitution of counsel to prove that the deny was harmless beyond a reasonable doubt so we would ask this court to remain and for the district court to consider mr russians complain on its actual terms and if it finds that there was a complete breakdown in communication and counsel should have been substituted to hold a new sentence in this court should also order that if there is no new sensing hearing the residential treatment provision should be stricken from the special condition of the government agrees and also that the condition on the advocacy be amended to conform with the him he still had them you can satisfy didn't stand for showing that cause because distrust of nothing to do with communication i think that's a stretch just trust has nothing to do with communication if i don't trust you why would i tell you my deepest darkest secrets as my lawyer is that does that make sense you were just saying that they're given that doesn't make sense we're just saying that they're different issues they're different issues we get we get we can distrust each other but still stick with each other is there to different issues one does one definitely sees it to another may affect another but they're different usually made it well if it may affect another then the question becomes whether the r s the district court inquired enough to find out whether it actually would affect well that you know that's a that's a that's read the court's precedents the court a stated that has to be complete it has to be total anything less than that is not complete in total we're just going by that by the dictionary debilitating means we can deliberately did but it's not complete in total i mean he's not made the allegation that there was a complete and total right down to communicate he is he is putting the word billet dating in there as if it were complete in total but it's not it's just simply can't they don't mean the same thing just like distrust doesn't mean lack in discussing the june twentieth document it says among other things you asked in that document for replacement of counsel i didn't see that in the june twentieth document i think the court's correct i did not see that in the june twentieth document the court the court may have been in the s on because it later goes on to say that ins in some sense implicitly when it got that document that was submitted on july fourth that effectively it in effect thought that it was urging the same thing that the that he addressed on june twent court may have thought that and then the court next sentence says they're not going to substitute either court says quote and given the late date of this issue and frankly given my smooth hearing with miss brandon who is a national reputation for her skill in representing criminal defendants i decided that i would not errored in denying the motion to substitute because because there was never a shift adequate showing of a total breakdown in communication correct that is the argument that is our position and he has the burden this court says that the senate has the burden to show a total and complete breakdown of communication so it's right there in black and white he never showed a total and complete breakdown of communication he may have alleged a debilitating breakdown of intuition and a distrust organist that mr russian is making i mean in other words he's he's saying that the court just never really understood the trust with that issue as it related to as it related to the motion to substitute counsel to begin with and i were the court never understood that anyway so it was when it ruled to deny the motion to substitute it would doing so under essentially a false universe if you look at what the defendant said in his his statement july seventh seventeen and the statement that he submitted to the court right before that the written statement on he doesn't talk about he doesn't talk about distrust  for getting new counsel it was it was the tactical errors that explained what wojo you're making mr russians argument for and if you're saying that what was before what was it vance at the july seventh hearing with tactical errors position that the what he was doing was arguing what what the court could readily understand him to be arguing with tactical errors because if that was the foundation for a suspicion and that's a problem because according to mr rush and that's not in fact what he was asking correct me if i'm wrong on that but i wouldn't but his point i think is it would be error if the court understood mr russian to be arguing give me a new lawyer because they aren't doing tactical errors in the cour days for a new lawyer deny but if in fact mr russian wasn't arguing that at all in fact he was arguing give me a new lawyer because i don't trust a lawyer right now so if there is a russia my counsel is a liar he didn't make he did not make those those representations of the july seventh sentencing where would it be reasonable for the court to have understood based upon what transpired leading up to and on july seventh when mr russian was asking for and so i guess i must be missing something how do you get how do you get to prevail of this argument because if the sorry the argument in this russian is making it that's the nub of the error that the court understood him but that he had he had made it clear in his july fourth pleading that the court said it read that he didn't trust the lawyer and that's why he wanted a new lawyer it wasn't a tactical issue a tactical decision issue going on there that's what he said and he said he didn't trust the lawyer at the hearing so i mean is this it seems to me this argument is an argument that could have been well made you know fifteen minutes ago well we've heard she said then we were just going by what breakdown of communication that alleged i mean you can take any prosecution at some point during the prosecution any defendant is going to be dissatisfied with something his lawyer does that that just happened some people boys and more often than others but it happens almost probably in just one quick factual point in the june twentieth letter mr russian said that referring to ms brown and what she told me she was going to get me released with a friend of hers as california case and then later in that letter he said i question br sufficient showing was made of a total underscored word breakdown of communications even if there's the lettering to i don't trust her i wish it was you know she would keep her word that's not total breakdown he didn't even use that word he says the bills heading to