and emotions panel of this court treats it as a motion for reconsideration it's never been really consider so on this record i just wonder if you feel comfortable appear whether or not he should be permitted to represent himself i'm not i'm not i really have not focused on those issues i was not really aware of the proceedings before he got a point i know generally what happened i knew i got appointed but i wasn't aware of all the specifics and that sense i wasn't focusing on that as a specific issue is that the court was considering that ther this so this is what he tells me and i'm now where the documents and that's why i raised the question and i wasn't i don't i guess i wasn't served or given all the court's orders in terms of prior to my appointment of counsel or the court denial of the his request to represent himself but i do think that that's a separate legitimate issue for the court to consider on its appeal make arrangements so that he can represent himself in addition to whatever you might say that would if he cannot if he can represent himself and you were not properly representing him he would not be bound by anything that you say that might be adverse to him or not the judge should have ordered a hearing and i think we can quarrel over when when the judge should have had a reasonable doubt or serious doubt but i think as the proceedings progressed ali up until the trial i think it was clear that nowhere in any of the charges your accusations against them and it causes some concern then x open eighteenth two thousand and one hearing mr amin way informs the court that he's been living in his power for the last two etc and i think that that alone is significant it causes some concern about his mental state and his status that he's living in this disorganized nasty in his  car the judge also as the proceedings go pretrial in a trial indicate a number of times where he seems to be unable to answer the court's questions sometimes strictly actually says that you're not answering my question talking about that he's defending the rights of the people he talks about the poverty and homelessness in our society and he in fact he goes into talking about it tomic bombs and world war two has of the middle east problems  final point and that is one of the things he said that the jury when he's talking about the car he goes into this well tangent about how he had seven or eight pairs of boots and this car indicates that he has one and now the others he doesn't have and he talks about throughout the initial colloquy was and february sixth two thousand and two and i think the judge was focused on a number of other things there was something occasion of a breakdown with counsel the judge asked him about a number of things judge to give the supplemental advisement which the court did on april eleventh and i'm arguing that that advisement was insufficient for three reasons one is it occurred to late because the court's case is skeptically issues and and there wasn't really any additional discussion on that and and in that same hearing later on the judge does make one other attempt to get mr harmon whately to have counsel and ask mr amin way you would like to go back to his old counsel and mr hamming way says i would have to represent myself and i think one of the problems with the supplemental colloquy and the advisement was that mr harding weighs under himself so i don't think it was a fully informed decision with respect to sentencing basically i think that the government incompetency are separate issues but even if he even if he was properly representing himself even if he had properly been invited and there was a full hearing and competency i think at the point where he not supposed to be a one sided affair the precentor court in the case says that he spoke with the prosecutor reviewed the government report talked to the agent looked at the indictment all the information in the pr clark i'm not certain you don't have your records then it says that the court was sending you a copy of the order if it reflects the fact that he communication with him in writing and much of our communication is him telling me there's been times when he says he wants to represent himself he's continuing the fight to represent himself i received copies of some of the  do have the january twenty twenty first order i see and i file so you have personal knowledge that he was subject to the point of counsel oh yes ok thank you thank you and you've got some time if we ne to represent himself before this court i thought the supreme court recently straightened that out so that it is within like in the district court we had an absolute right to represent himself does not have an absolute right to represent himself or for this court and he have a right to deprive appointed counsel from representing i think this court has you can't force an attorney client relationship upon a person over that person's objection i believe that's what stre term but i believe what the supreme court said is appeals are different than trials and you do not have a right to represent yourself you may have a right to a different attorney you may be able to make that pitch to the court but i do not believe you have a right to represent that counsel be removed following orders and i well and i have not i have not seen any of those orders and it's really i just bring that up in a new workers that they've entered in the case and they're sending to it i believe i received the order so i've not seen any of the on the competency issue i think what the defense is trying to do and i don't think it's ultimately successful is to take snippets of mr humming waste comments and turn them into characterizations of his competence and i think that the district court and this court can tell the difference between those little pieces of this conversation and his entire that quite easily for instance the defense repeatedly refers to  wants the most he wants to get out and he keeps bringing that up and that's a justifiable concern of his the district court keeps bringing up no we need to focus on what's the for the court and the rest of the conversation almost the entire even though he's not successful at the trial and he's not particularly organized there's nothing in the trial proceedings that shows that he's in any way incompetent you may have noticed that i included in the supplemental excerpts of record the entire cross examination of a man named lesl the coins that he had dealt with coming way before how could invest the forty five hundred dollars and gotten a six thousand dollar return on that he got him to admit that that how kunder stood at the film industry was risky investment that he had sign lot of friendly conversations with timing way that the name princeton humming away or arthur golden stein the two names that humming way used which named humming way used how could it it wasn't important what was important  knew the difference between secured investments and unsecured investments like stocks and that the films were more like the stocks and that houck was familiar with the movie business because his son in law was in the movie business and that how could receive descript literature about the project exploring invested in it and he knew exactly what it was about it was going to be an epic about great americans the civil war and so on and now that what turned out to be not a particularly successful defense but i would point out that this whole i that the investor knows that it's a risky investment he knows that he's not being promised anything he knows he can lose his investment most of the criminal defense attorneys i know who handle  bizarre when you read them out of context but when you read them in context it makes quite a bit of sense what how many way perhaps misguidedly we're we're not trying to say whether it was a good attorney here we're trying to say whether he was mentally incompetent portraying himself as an immigrant but a difficult time in his own country who was persecuted there who came over here and is trying to live the american dream and he ceased it's the two americas story he sees and tries to characterize the prosecution as the kind of america that bombed hiroshima the committed atrocities in kosovo and he is aligning himself with george washington and general macarthur and the people who try to make america great and that he should not be punished for having too prying to produce movies that show what a great place america is at one point he says this would have succeeded except they arrested me again that sort of the standard defense in a lot of these white collar cases i had a risky venture going here i was thinking and money and i was just about to make it when the government arrested me and the whole thing collapsed so what i'll i court to do on the competency issue is to take those comments and read just a few pages before and after them and i think it's quite clear things are not mentally competent he is doing the best he can to represent itself which is what he wants to do  read again the two or three pages around that quote the defendant never says it's a disorganized mass he said he was living in his car because he was so devoted to making these movies and you put everything he had into it he'd run out of money and that he had been forced to move out of this house and live in his car but he was so determined to make that movie that he was going to live that way if he had to and comments about the boots and he also mentions he has a bunch of silk jackets in there he simply explaining that i had to can keep meeting with movie producers and i had a nice restaurants and i had to convince these people that i was still worth supporting so what did i do i kept you know six pairs of boots i think it was i shaved every day showered every day i was clean and i was i needed to keep all of my materials together so that i could present it to these people i was doing all of this so that i could continue this project and these are not go on the advisement of rights issue i think that the cases and even the supreme court's recent decision and i were first this far they point out that did is he tried to tailor his advisement to the person he had in front of him and now he's being you know charged with not having read that even though as your honor said it doesn't say you have to read that here are the things that judge leavy told him you can't rely on pro bono representation you're going to have to represent yourself you're going to need to comply with the court dates with no help from anybody you know you don't have a legal education you are not familiar with the federal rules of evidence that you're going to have to follow you have gone through a trial before so you think you know some things but that's that also came out that that was a state court trial not a federal trial that this is a complicated cas it's a fraud case it's a long indictment the jury instructions will be complicated there are thousands of pages of discovery there's a lot of tapes you're going to have to review and that you're going to have a lot of difficulty because you are in confinement he was not out he was not able to go to the library easily and do all of these things and what is the defendant say under those circumstances there's a quote from him why under those circumstances for me to represent myself is not going to be an easy matter  to him what his problems were going to be told him many times not to do this and the defendant insisted they also offered if found by counsel and he did and i would like and granted continuances i may have misunderstood what mr pallas said but i don't think it's true that at the end of the second advice that i think he didn't offer him a chance to continue to represent himself because at the end of this is on page thirty four of the supplemental  now that you've seen what has this is the court now that you see what has to be done to prepare a case for trial it's a lot of work are you prepared to do that work and represent yourself or do you want me to ask mr than del to come back and represent you mr humming way i would have to continue representing myself that seems pretty unequivocal now mr ballasts suggests that he wasn't given the opportunity to have somebody other than mysteries and don't come back but the truth of the matter is that at the beginning when the judge asked him do you want somebody other the ministers in del humming way said no that wouldn't be fair to mr l i want to represent myself but you know i'll have him back now and i'll decide about it but at no is the fact that the prosecutor asked for the supplemental advice and that is the sort of the damned if you do damned if you don't situation you become aware that the court has set something out you ask the court to do it it does and then later on it's pegged as well see you knew the first one was no good and you're trying to fix it i think it's quite clear from the pleadings that were filed it's not what happened this was just over cautious if  anything so the last thing i would like to say is this business about the criminal history and counsel at sentencing the defen defendants who were representing themselves weren't doing a good job and that he was going to relieve them of their pro se representation and have counsel take over for them and this court reversed saying that you have a right as long as you're competent you have a right to represent yourself no matter how bad a job you do and the distinction is between the cases that the fansites and the cases in this situation here is that in those cases where the the defendant is acting out and the district court relieved him reserve order from the court the situation here is that the defendant gets to choose he's not acting out he's not being relieved of it because he's incapable of it he just chooses not to participate and that's the choice it's a bad choice obviously but it is his choice and i don't believe this court i'm saying that i don't believe the district court had the authority to relieve him finally on the criminal history the defense theory makes the point that there's no evidence in the record that the defendant was committing this fraud while he was still on probation and like to point to the reporters transferred to pages seventy four to ninety eight governments exhibit sixteen seventeen eighteen one thousand and twenty all of which are dated in june of ninety three eight months before the defendant's probation ended in which he signing subscription agreements with mister yes i do believe in pointed out that in the supplemental filing that in castro the court talked about remanding it for release and that that's already been done this for balance maida vale motion interest levy it's i thought it was either eleven twenty two or four twelve thirty over for a while and here's the reason that in my basically i think both sides are going to the bureau of prisons website and it gives a projected release date when i did my opening grief said november two thousand and four when the prosecutor did his grief and said december two thousand and four the current one says january two thousand and five was to get more time for  and describe where someone completely refuses to participate in the procedure and sentencing is the same thing as serious obstruction conduct acting out in court both times there are a conscious decision to do something that prevents the functioning of the court in the rational way it should be and the fact that someone instead of acting out in causing a big commotion and instead goes to the corner and refuses to participate is in my view the exact same thing and i think it's also true that a lot of people that are serving suffering from mental illness do not want to be labeled mentally ill they learn to cope with people in society learn to  predominately male on appearance that they were rational at least during some sense but i think if you look at the overall record here everything the way it adds up there was at least a doubt a serious doubt as to whether or not he was competent and the