robbery in that same mob at his initial appearance the government motions the court for psychiatric exam the government said reasonable exists to believe that the defendant is incompetent now based upon to stand trial in april a nd psychological report was filed that wasn't requested it was just stating we have him competent now so in may they had a nother hearing the judge think that us vs bernard i guess kind of starts out on the journey of where we answer that issue here even when the defendant is competent talks about at the beginning the trial court must be alert circumstances are here that would have or should have alerted the court to his change of circumstances would be too full the st thing would be that bizarre letter and the court acknowledges that the letter was bizarre the letter to the court stated i want to proceed pro se because of what the prosecutor was doing to me not just it's a term used doing what the prosecutor is doing to me the letter says the prosecutor is gassing myself through the air vents and there is a conspiracy to entrap me into doing some inappropriate things so that they can charge me with a sex offense but the biggest issue here is that the defendant at mit's to not taking any psychiatric medication and we know from the reports which from the the most recent report that the unit report the  dollars where it says at the bottom we believe that his prognosis is poor in the absence of psychiatric medication he appears to lack significant insight into his own mental illness and he has a start of the trial there are various hearings about the status of council satis conferences hearings on the motions to withdraw that or at all of these hearings that if in appeared in court in front of three different judges of the western district and they all had the opportunity to observe his behavior to see what his current status was and all of them seem to be of the opinion tell sign would be when the prosecution asked the court we might need to make sure he's still on his medications before he gets started based upon these bizarre allegations that he's made and why no the allegations in and of themselves don't necessarily make him him him incompetent i do believe that it is important for the courts  mental illness couple who with the fact that he has in this particular case been deemed at some point in time where you have come to a point counselor require him to proceed with counsel or just discontinue the trial i would have the district court judge to st make an inquiry as to whether or not not sin him back to be evaluated for copters just yet but make an inquiry on whether he's waxing or waning at the particularly time i think the courts will sue spotty done that based upon the bizarre allegations and you look at the record at trial which the district court could observe and he did appear to have good defense stress well a losing in the in defense strategy but a strategy nonetheless that bizarre the decision was because the prosecutor was gassing his cell therefore i want to proceed by myself based upon that i think the court should have at least taken a look at whether or not his mental mindset was waning at the time whether or not he was taking his medications and did his medications of fecht his ability to make that decision in a clear and complex mat have just a couple of seconds to respond to that you are i think the court has to also look at the fact that that report came out in april of two thousand and sixteen in january of twenty thousand  nine months later he then begins to appear to dig disintegrate and it was over a year later in june of two thousand and seven where he proceeds crusade know what the questions within that year kno but he's also got a very strong understanding of legal proceedings conducting a civil proceeding he was able to work with his defense attorney when he wanted to get something even though he didn't care for an attorney he understood tell a process is you never get to say the parties in person but as my colleague pointed out the district judges several of them did you  to observe this gentleman over a period of time in person yes your honor and in a case like this doesn't that personal interaction something even more and and the rest and just as a matter of institutional copper doesn't it doesn't the institutional advantage really belong with the trial bench question absolutely your honor and this court's decision bernard underscores that refuse it's a question of the district courts discretion and a critical factor is the district courts on observations and the fact that he elected to go pro se and this means that the district court had an opportunity not just to hat see him sitting over with his hands folded it counsel table but to directly interact and see how he presented himself and then there was judge kessler who handled some additional proceedings a status conference a discussion about a plea hearing and then there was a district judge judge conrad who handled the entire trial watched in direct witnesses he was very responsible just kind of he made some of the same hearings that that's what i want to do i have a serious disagreement with my attorney because you know they keep suggesting i plead guilty but no i want to tell the jury that i didn't intend to intimidate anybody and it was not successful and i think most of decide whether to represent yourself is not the same as the competency actually be a good lawyer but i do think it's highly of his ability to participate in his defense and understand the proceedings that he did in fact throughout multiple proceedings clearly understand what was going on and when the judge instructed it on something you always receptive to that judge connor if you actually had one moment maybe the exception that proves the rule at sentencing he gave the prosecutor basically a dirty look and a court  it's not going to serve you well to glower at the prosecutor and he said you have been an absolute gentleman and respectful throughout the entire proceedings and that was his perception after  motion are we can this be a plain error question just because a motion wasn't raised if the court has to do it it can be your honor i think many there are often times the common thing to do is say we don't need applying plain error to specifically the question of competence other circuits do even ones that don't apply a plain error for example to an ordinary for an inquiry like the th circuit which is a little bit problematic player standard or review to the to the crew and once you've made the decision to represent yourself then you're stuck with the rules including the play in error so i think that's why you would have player here evaluated by a professional and without dispute found to be consistent with his competence which the psychologist said would likely continue for the foreseeable future so those didn't give cause for i think the government is going down the road as to whether he was or not are and whether they're or i guess things in the record that may have suggested he was competent or not i believe that the court should look at the question of not whether he was competent at the time but whether there should have been a source parte inquiry based on his past based upon the fact that that had been almost a year since he had been evaluated and based upon the valuations so i think the bigger issue here is whether the court should have upon his own motion made an inquiry of competence now if the court did so and found that he was kept that's one thing but the failure to even look after the after the motion the motion the failure to look after the knowledge of it had been over i questions i thank you for allowing me to argue well we thank you nic that your court appointed now i want to express the appreciation of the court for your able representation we depend on the