circuit i think we have seasoned advocates here so you're familiar with the light system when the yellow i comes on begin to wrap up and when the right red light comes on hard stop and a finish out your knowing and voluntary here there is evidence that mr rodriguez is pro se and implicit waiver of the right was not knowing involuntary this is an error that requires a reversal on appeal the specific error was the district cour acceptance of mr rodriguez as pro se waiver while being on notice that there was a misunderstanding or confusion about the right testified this misunderstanding is shown in at least three places in the record first that the pretrial hearing regarding mr rodriguez his request to represent himself and to trick or suggested the possibility that whether a person testified could affect the sentence and mr rodriguez stated to the court quote i understand that if i testif will get two more points this shows that mr irving is believed if you testified he would automatically be penalized to sentence him then during the trial both his opening statement and closing argument mr rodriguez began to provide a percentage of cases in which a defendant testifies but is ultimately convicted does the defendant in fact get the obstruction of justice penalty the two points for that i don't know about the exact percentage certainly certainly don't have any kind of statistics but i think the point is pretty high though it's very clear that there must be a finding that the defendant lied on this to understand that but it's a pretty high i mean in my experience looking at hundreds if not thousands of the sentencing appeals it's a pretty high percentage and so you as a lawyer would have advised your client of that right i understand why a magic totally grew that she would have had to advise your client of the fact that you know you're running that risk if the judge believes you lie you're running that risk of at you know i bet he will it wasn't like he was completely off like the person in law are l y i don't know how you pronounce at that the case from the eleventh circuit it there is a very high possibility will say that you will get the obstruction of justice points not that it's automatic i completely agree with that judge has to make the appropriate findings but it it happens with a great deal of frequency will say that so he was in the zone of accuracy on that  he chose to represent himself and chose not to avail himself apparently of stand by counsel to give him the nuance of that that is not a magic but it can happen because maybe you get up and say i wasn't there and you're convicted the judge will probably conclude you were there and then the question is you know did you knowingly lie and whatever lead to important points to make about that so first the right to testify is a fundamental personal constitutional right that only the defendant voluntary if we don't need to do so in all cases then counsel or otherwise the judge must ask do you understand you have a right to testify do you understand that if you testify you won't automatically get to obstruction of justice points but you might could do you understand that if you testify you're going to be cross examined stuff could come out that otherwise wouldn't come out you could be impeached with your prior convictions all of that the judge supposed to tell them look the defendant sounds a lot like what a lawyer is supposed to be telling the defendant with the defendant to ensure that the waivers knowing involuntary and that the violation then becomes vindicated through an ineffective assistance of counsel claim based on counsel's deficient performance in making explanations to the defendant but that record made regularly to the district court by the proceed defendant i don't think the court i'm my position is not that the court was required to how to link the colloquy about the right to testify my position is only the court was required to correct the specific misunderstanding that was stated on record i think here would have been enough for the additional court to say well no it is not an automatic penalty if you testify it's just or did say i can't advise you on the law and have stand by counsel sitting there and actually as we say here today we don't know whether or not he asked and by counsel about that i think we can tell that he had no reason to ask standby counsel about that because he said he did not know he had any confusion the defendant on we don't know whether standby counsel said hey buddy guess to volunteer that explanation to the defendant and about a month before defense counsel had put the court on notice that there had been a complete breakdown in communication between client and since counsel and the court made very clear when appointing defense counsel that she would have no obligation except to answer specific questions by mr rodriguez do we know on this record that she did not tell him hey it's not automatic the two points it can happen absolutely but it's not automatic inquirers again that the judge agreed you lot blah blah blah we we don't know on this record but we do know is that counsel was relieved of any obligation to make that explanation out of her at a hearing when the court explained very clearly that she had no further obligations to miss robbery is except to answer specific questions that she would ask her and he on this record i think it is clear that he would have had no reason to ask her because he thought he understood it was simply that his mistake his understanding was incorrect that he believed it would be automatic so i think we can assume there is no reason for him to inquire further of counsel if he thought he understood he didn't know that he needed any sort of clarification and continue to house counsel where the court allowed mr reagan's to represent himself i think then the court retain some obligation problem is that you're now setting up something that's contrary to the notion of representing yourself one of the things that happens is a broader hearing as you say you don't know the law you might misunderstand the law you might look at the rule and not understand there's exceptions today you might whatever and so you're taking that risk when you decide to represent yourself and now you're saying yes but there are certain categories where the judge nonetheless has to intercede if that if he had misunderstood the hearsay rule or p had misunderstood the authentication requirements you wouldn't say that he that the judge has to jump in and so it seems like you're setting up a situation where yeah you're representing yourself except if you misunderstand certain things then the judge has to jump in and find her and correct that yes but i think that is entirely consistent with the nature of the right that we're talking about the difference with regard to hearsay or authentication those are not personal constitutional rights that can only be waived knowingly and voluntarily by the defendant himself counsel can with all sorts of errors including constitutional  on behalf of the defendant there's a very short list of rights council cannot wait for the defendant one of those is the right to testify others are whether to plead guilty whether to waive a jury trial whether to appeal it's a very very short list and i think the eleventh circuit doesn't remove the protection of the constitution so courts instructed the supreme court and shocked at the records to guard against the ignorant or unknowing waiver of fundamental personal constitutional rights one of those is the right to testify and again my position is not that the dish recorders require taba colloquy in every case but only that the district court is required to correct a specific misunderstandings that are made to the court and here it is more than just the statement not the pretrial hearing because in the opening statement and closing argument misunderstanding in the end of duty about whether he wanted to testify i think the court was required to at least that it can you're asking the court essentially to act as his lawyer when he's chosen not to have one i mean there has to be a meaning to that and the meaning is you do give up some rights including the right to maybe fully understand your rights and here on this record we don't even know that he didn't fully understand the a comment he made was sounded like he thought it's automatic but it could have just been a shorthand for the fact that you get the two points i would say and this is awfully obviously i don't have statistics either but i would say in a majority of the cases where the defendant testifies and is found guilty probably gets obstruction of justice charge because his testimony was contrary to the evidence and therefore we conclude he lied now again i'm not saying it's automatic i think the judge has to make a very careful valuation of that and i would do the same if i were in that position but his his answer that you're thinking shows and misunderstanding may really just show his shorthand you know i'm running that risk i'm likely to get it which he may have been told by his lawyer already and the conversation you're saying the lawyer should have you have already had a conversation and this record doesn't tell us he didn't and you're asking us to reverse on something he has the burden to show us on implications and speculation how can we do that  one of those specific constitutional rights where the defendant must make a knowing and voluntary waiver here it is not clear that his waiver was knowing and voluntary the statement at the pretrial hearing it's not perhaps it's not clear what he believed but it certainly is not clear that he had a correct understanding and his decision whether or not to testify was colored by an incorrect understanding that's not in millington voluntary waiver that paired with his attempts to provide facts that sounded like testimony did he create an obligation of the dish report to at least correct the specific misunderstanding and to at least ask mr over again if you intended to testify and with regard to giving up counsel mr rodriguez waived one constitutional right he waived his right to representation counsel he does not there by way of all other fundamental constitutional rights at trial he as i said there are many rights the can't counsel can weigh in on behalf of the defendant think it's quite reasonable to say that person a defendant can w seem to emphasize that well i think that why was that was important in pedia was because the definit was saying the court was required to inform him that he could testify in narrative form and so it was important not just that he had s counsel who could have asked him questions to the courts and there's no reason to assume from silence that the defendant was confused that he couldn't testify because he the record reflects here that the defendant consulted w standby before saying he didn't have a defense case i think he consulted specifically about a couple of very specific points regarding specific witnesses or specific documents that he wanted to present i think that's what the record  shows i did want to briefly talk about by this would be structural error the supreme court made clear in the castle and then again last year in weaver versus massachusetts that errors that are based in interests that are separate from finding guilt or not should be structural errors and here like with the denial of the right to self representation which is a structural error the right to testify is rooted in due process right to be heard and sticks them in the right of the defendant to personally conduct his own defense which are interests that really are independent from the outcome of the trial you don't think whether he testifies or not is going to do with the outcome then why would it i think it can have something to do with the outcome but it also protects interests recuperates protects the defendant interest to personally conduct his own defense and to personally make his own choices about how to protect his own liberty in the supreme court has said in the castle and again last year and the reverse is massachusetts that those are the sorts of interest very beginning he never had counsel you never had counsel or standby counsel from the moment of arraignment through sentencing so i think that that is very different than what we have here where defendant did have counsel he was arrested in two thousand and fifteen the trial occurred in two thousand and seventeen he had counsel up through a month short of the trial and then a trial that counsel was appointed as standby counsel we know from comments on the second day of trial that the defendant did consult with stand by counsel and then we also know  sentencing the same standby counsel was still with the defended and there was consultation there in fact we know that the defendant reviewed the p s r with counsel so there was still interaction with the defendant and stand by counsel so let's ask how what difference that makes let's assume argue window that he needs to be advised of this right to testify and that it doesn't automatically give him the two points in all of that is your point the point i was trying to make earlier that this record doesn't show us he wasn't properly informed i mean in other words is it his duty here to get a reversal to show us that no i never discussed it with counsel and i didn't know i think it's kind of two points and they're being conflated here i don't believe that the defendant is saying he didn't know he had the right to testify i think he's saying that based on law and where he knew he had the right to testify that was prohibited due to his misunderstanding or statements from the court that he was prevented from exercising that right and here we know that the defendant knew he had the right to testify he had that conversation with the district court when he said if i testified at the two points the district court properly responded i can give you legal advice you need to consult with your attorney and at that point he was represented by attorney attorney was not stand by coun of the point it was a perfect response to the question so you're saying that puts him on notice that maybe the two points is an automatic by the judge going wait a minute you're going into something i can't tell you the judge did not confirm that misap and if you look at i think it's two ninety six and two ninety seven he actually did just record i actually told the defendant twice this is something that you need to discuss with your attorney and that was perfectly within line of the responsibilities of the district court and counsel and the defendant  these are legal questions for example it's and i think it's analogous to want to defend him pleads guilty there's a warning in there and the judge tells him i don't know what your sentencing is going to be we need to discuss p s r has to come back we make objections we figure that out at sentencing i think that is similar to what we have here he was questioning a sentencing issue and the appropriate response by the court was to you need to consult with your attorney if you have one well i mean interesting thing is much sought of this i mean it's the same judge that would find the obstruction of justice and handsome and potentially and so that judge speculating about how the judge in self might rule seems really inappropriate because you can't say well no way would you get the two points you might get the two points and as i said i think it's it's at least as it enough of a likelihood that you should definitely advise your cat your client about that about that rig yes it's not an absolute but it's also not completely ridiculous to  anticipate you might get it and so for the judge to start getting in the middle of that nuance where you might get two points if i conclude you lie and i conclude you lie i mean the judge is predicting his i don't know who's a male or female judge his or her own conduct it was just you know  yes he was sort of predicting and speculating on it because we don't know if they said it was going to justify the play remember this was a hearing that occurred a month or two prior to the trial and we also don't know the content of the testimony so not was speculative for a number of reasons i think the other interesting thing about the over what i'm saying is her argument is hard stop your hat you hear some like that as a judge you got to correct it so then i'm saying all right what's the correction and the problem is then the judge is sort of wading into a muck in which the judge is kind of predicting his own conduct absolutely around and i think that the appropriate response was you need to discuss with your attorney  because that was really the only response he could get without getting as you said too far into the muck here one of two questions sort of for backwards what's what's the rule of law that your urges are you saying that any confusion a district judge doesn't have the obligation it's only if the district judge or firm really miss advisors or is the rule of law looking for there could be some confusions that would be exceptional enough that a district judge would have to intercede and then the backwards question is do you do you disavow lie to the point you're asking us to say it's incorrect or you just think it's distinguishable on those two questions may come together and i think they do come in this case we have this discussion about the two points at a pretrial hearing so we still have time before we get to trial we still don't know if the defendant's going to exercise his right or not this is a discussion as he's weighing everything prior to trial and night this discussion came up at trial and the conversation that the court had with the defendant who did not even have stand by counsel essentially precluded him from testifying it was very clear that under the that the defendant thought the only way he testify was if he had counsel that the district court didn't change or correct that misapprehension there here for when the district court advised the defendant pretrial that he could testify he gave in the manner with which he could testify he said you can ask yourself questions if you're on the stand question answer and that's how you can testify that was pretty that was available to the defendant the entire time whether or not he had counsel or not the difference in my is the misapprehension that the defendant under require the use of an attorney and that prevented him from testified there was no way to get around that there was no manner in which he could he could testify without the judge clarifying that no you could either ask yourself questions or you could just testify in narrative for  fifth circuit given our precedent about duty to clarify or no duty to clarify is that the government's position that the district court never has to do more than you ought to get a lawyer pointing stand by i can't give you legal advice and therefore the dischord has no obligation to correct as long as it doesn't this is or are there exceptional circumstances like lie where you would say it would be in not knowing waiver if the misunderstanding were to i think that there could be exceptional circumstances as in lie where there the judge could step in to clarify in law it resulted in the inability of the defendant to testify no matter how much she wanted so regardless of how much she understood that right without counsel he could not testify and i think that in that circumstance where it comes where there is that if there are competing interest rate of being able to represent yourself in being able to testify there there was absolutely no way that he could do it based on his understanding of what was of what the law was and that was a clearly erroneous misunderstanding of how the law worked and how he could exercise that right we don't have that issue here there even if you accept that the defendant was confused in any way about the two points the district court clearly gave him a manner in which he could testify and he could testify and exercise and he could testify and if he won there's no two points right and if he loses then it's two points rather than totally not being able to testify at least in if we assume argument oh he really thought that the two points were automatic yes your honor and i think going back to live the other distinguishing feature here is that's more of a manner and means of testimony how do you actually go about testifying and died there was no way for him to testify really had nothing to do with content here that was open to the defendant the judge clearly told him you can testify this is how you do it whether or not he exercise that right was up to him the i think the claim why is that he was confused as to what would happen if he testified and that's more of a content maybe he wasn't maybe he talked to his lawyer and told him he planned a lie and he said what's going to happen is you're going to get two points for struction of justice if you lie  don't know that that's conversation didn't happen do we and then he be wrong about the two points gets up and why he ought to get the two points right about agree on that yes your honor we don't know the content of the conversation and i think we can somewhat speculate if they did have this conversation because the defendant did know that there was a possibility of two points for obstruction of justice if you lied he had to get that information from somewhere he could have gotten it on his own but we know that he was represented for two years prior to this and is it up and  again i'm back to like who's burden is that it to negate the idea that he was properly informed that he got the two points from talking to his lawyer and what he came away from that is planning to get up and lie under oath and i'm going to get two points first structure of justice and so what he said to the judge really doesn't represent a misapprehension it's actually correct yes john and i believe it is the defendant's burden here to show that and that is the basis of the law that we have in terms of the judge isn't required to ask the defendant explicitly whether or not he's waving this right this is something personal to the defendant the attorneys typically responsible for having know as we sit here today in this courtroom whether he had that conversation or not but he knows and so it just seems to me this isn't something were put a burden on him he couldn't me he knows whether he had this conversation with his lawyer and where did he find out about the two points and how did that come up and what was he told and all of that he knows that you know we're being asked to reverse in ignorance really yes and i think that's where we  judge makes a finding there here want to defend it pursues pro se we don't they'd they don't have the benefit of that claim and that is one of the things that fred is there to why we have the hearings prior to the defend waiving his right to counsel because they there's an acknowledgement that when you proceed pro se you do give up some rights you do give up some arguments and one of them is ineffective assistance of counsel because you represent yourself well i'm not going to prejudge what an i c claim in this case would look like on the pre pre taking his own representation context like if he was misinformed about things before he gave up the right to counsel i'm not going to get into that because that's another chapter we're not to yet but let me just ask you this i made a really big deal with your opposing counsel about this notion that the two points is not a completely ridiculous concept it's not automatic be thought it was automatic that is incorrect does that matter do that w counsel did have stand by counsel the whole time and that was important to defer circuits determination here that yes it was somewhat different in that there were no statements about testifying in a trial in that case but one of the things that they that the first circuit relied on prior to the friday hearing i think the important point to keep in mind is that the violation here was the unknowing and involuntary waiver of the right to testify at trial that there's no violation of that right until trial and  of the violation mr oweis did not have counsel and it was incumbent upon the dish a court to ensure that the waiver of the right at trial was knowing and voluntary in the area that i'm alleging here is that additional court accepted that waiver while being on notice that the defendant did not make the waiver knowingly and voluntarily i'm not my position is not that the district court was required to engage in an extensive colloquy but merely that the court was required to to correct this specific misunderstanding let's play that out so the judge says oh no no there's no automatic two points if you testify you would say that's a correct correction ok now i guess up in testifies you know the light was red when everybody shows it was a green there's a video of the green whatever i know that's not what this case is on but i'm just to make a hypo and the judge the jury finds him guilty the judge laughs at two points and goes wait a minute you told me i wasn't going to get two points i misunderstood  well i said it was an automatic when you didn't explain that i might get it if i got up and i want so that's the problem with the judge being the lawyer i think what that what the judge could easily have done and what i would do is to make that correction it's not an automatic penalty if you testify but if you lie or other things that you say you would see and can affect the sentence that's something you have stand by counsel here if you would like to discuss that with stand by counsel i'll give you an opportunity to do that i think that would have been more than sufficient when i what was not sufficient was a shock or doing nothing with regard to this specific constitutional right where the court does have an obligation to ensure that with a whimper a bit is knowing involuntary that's not the sort of right that a defend nt automatically gives up by giving up the right to counsel i also wanted to respond to the point i think it's it cannot be the case that simply being told that there is a manner to testify is sufficient to establish and knowing involuntary waiver of the right to testify at the point is that the defendant made that decision while his understanding was colored by and correct understanding of the penalty that would result so the defendant is making it's not enough to know that he the logistics of testifying yes to make the the waiver of the right while understanding that it can have a penalty at sentencing automatically for example i think other misunderstandings could be things like if the defendant says oh i you know what judge i think i have to testify otherwise this jury is going to hold it against me i think the judge would then be required to say well the jury is going to be instructed that you they can't make any sort of inference against you if you don't testify so whatever misunderstanding is stated as i think a very specific somewhat i think limited obligation to correct that understanding misunderstanding before the defendant makes the waiver of the right to testify particularly here where the court did not even mention testifying at the trial the court didn't even ask mr rodriguez if you wanted to testify and yet this reveals had made multiple attempts to provide what sounded like testimony and it was not clear that he even understood that his opportunity to testify had had passed so if we were going to if we found this not to be structural error and we applied the plane error how did this affect his substantial rights to record i mean what would he have said that would have made a difference to the outcome of the case let's put it that way i don't i don't think we can expect the record to reflect what approach that if it would have testif to when he made the number of the waiver of the right unknowingly and in voluntarily the record i agree doesn't specify precisely what he would have testified to because there is really no way that the record would be able to reflect  where he waived the right and did not have counsel at the time that he did so he had started to provide very briefly facts about himself and his status in his opening statement and his closing argument that he was very quickly cut off because appropriately  for him to provide that sort of information on but since he did not have the opportunity to testify the record really does not go for fact beyond that what he would have testified about and that's her i think of my position why this should be a structural error is because it is the fundamental right that protects interest other than simply what he would have testified to and how that would have affected the outcome to protect his interest in his this fundamental issue instant deciding how best to