law i'm i'm interested in why that might be the case these cases of course are fact heavy but in this case your client had repeatedly said what he wanted to do and then when the judge in the colloquy explained what was before him he expressed some fear by his main concern was that he wanted to present the case as he s and the judge verified that counsel had indicated he was prepared to do it in exactly the same way your client then wanted a five minute conference with counsel came  back and when asked whether he wanted to represent himself said very firmly that he did the council was appointed as advisory council that's pretty strong admit there was some wavering at an earlier point but he did that he judge even remarked that in the trial he was one of the best lawyers we've seen for a long time in a really good job for himself and at least in the lawyer early sense why why should we find that is forever right for somehow violated for multiple reasons your honor first of all he did equivocate during the hearing and i don't completely agree with your characterization of his his firm statement that he wanted to represent himself so when you look at the entire context of the thread of hearing he waffled repeatedly he said i want to new counsel or i'll be forced to go pro se then during the freddie hearing when he was asked if he wanted to represent himself he said i want mr barrelling to represent me there's no clearer indication of the right to counsel than that and why he didn't why he sort of said gee i'd like to have him represent me if he would do what i want but and that's what led to this whole colloquy right well it didn't sperm we say i want him to represent me he said i'd like him to represent me if i could talk him into putting on the defense i'd like to put on in part that that was partly what he error no because he equivocated and really i mean if it once somebody conferred with counsel and the judge said i'm asking you straight on do you want to represent yourself and he said yes well the judge had denied pro right that now i'm asking you the question you have time to talk to counsel do you want to represent yourself and he said yes and the judge said denied wouldn't we be here with her somewhere i don't think so i don't know how you are yourself when we have reversible error here no because there's the issue of advisory council mr ident consistently asked for appointment of advisory council and there's a way to read the colloquy in which that appointment actually in some ways induced him to represent himself because you have to look at the entire context of the colloquy what how we have other cases where we found it involuntary because the judge has refused to appoint advisory council well and wh know the words of i'm trying to figure out what if we rule in your favor what this does to our case law we have cases in which which we have said this is not a voluntary waiver because the defendant asked for advisory council and the judge said no you sanchez all state pretty clearly that when a defendant is asking for advisory council along with asking for self representation that that is not an unequivocal waiver and i think that that is illustrated perfectly in mr our debts case because what happened is he was saying as your honour's have noted what i really want is an attorney to do whatever i want the attorney to do to put on his cock i may be difficult to work with that you win either way if if your client is denied the right to represent himself then as my colleague suggest you be back here saying this man had a firm desire to represent himself because counsel who is going to be as advisory council you said he would be asked the judge asking for only whether he wanted to represent himself he did and in reality even though he had this crazy case he difficult situation right there's always you're always walking about once what i'm saying is in this context the judge should have denied the request for self representation and that would not have prevented i then the the situation that the judge her which is described is exactly what we would be facing here you would be here and say this man has a right to put on the defense that he was in an advisory council told the judge and told fire that he wasn't going to do that and yet you deny him the right to represent himself but then you could say i was wrong in that circumstance i mean it's it what i might argue on behalf of my client is one thing what what the right result is i suppose it's another thing to be looking at that the judge should have asked more questions my and my overarching argument i think the ultimate defect in the colloquy is that the judge did not actually engage with what my client was saying and i think that that's where i'm having trouble so i'm to focus on precisely what your argument is the judge did seem to engage in what your client was saying your client said i'd like mr brumley to represent me if only he would put on the defense i would like him to put on i'm paraphrasing but i think that's pretty close the judge said he's he's not going to do that so go talk to him and see if you want to represent yourself or not and then your client said yes i want to represent myself assuming that's accurate representation of the colloquy what else should the judge  done at that point if he simply said no then i think we're into the problem that judge smith and i worry about so what should he have done so he should have first of all he could have taken more time this was a thirty minute for at a  hearing during which my client did not you may disagree with me but he asked for representation and it made it clear that he wanted to proceed with the lawyer his defense counsel said he really preferred to proceed with the list as always so this is always the problem with for a decision i think was written by no one who had ever tried a criminal case in front of a jury and in your research did you come across the case call templin versus muni's i don't recall that when you're on might want to make a note about it it's a case that involved an individual who fought back and forth between wanting to be represented and not wanting the public defender it's actually a case in which i dissented saying that but at the end of the day what more can the district judge do other than say are you absolutely sure you want to represent yourself knowing all of the risks well one of the problems is that the district judge with respect to advisory council the district judge so if he's going to be here to do whatever you want whenever you need he'll be here every minute of the trial in the pretrial and in the context of what mr i d said that he wanted it is possible that the judge probably inadvertently misled mr rudd debt into believing that he now had pretty close to what he wanted which was an attorney who was going to do what he wanted the district  focus seemed to be less the mechanics of the trial then on giving his presentation out in the way he wanted to get out that seemed to be the burden of everything and for some reason after if you went to visit with counsel for five minutes he seemed to be satisfied because the judge a told him before they went out to visit for five minutes that counsel had made it clear he wasn't prepared to make the defense put on the defense in the way that your client wanted him to well he said that the attorney wouldn't be able to do certain things to t really the last thing the judge does before they set aside for five minutes and put aside where they should been set aside for longer for a second is say look you're turning won't put on the defense you want him to put on he's told us that so go talk to him and see if you want to keep him or not we get to the end of the colloquy and he says i want to represent myself so i'm going back to what i asked before what more should the judge of doug well one thing is talk about the dangers and disadvantages of self on my client's legal knowledge and he actually complimented him on his legal knowledge which may have misled him into believing he was quick to represent himself that he actually wasn't a judge says in my opinion i must advise you you would be better defended by a trained lawyer  you continue with a trained lawyer is not a pretty good warning of the risks of self or presentation well hayes says that insistence or a recommendation of retaining counsel is not the same as an instruction on the importance of counsel and what wasn't conveyed to my client and what was critical that needed to be conveyed to him was that one there were going to be he was going to have to abide by certain rules and restrictions he asked leeway he said i'm going to need leeway to present this defense at that point the district judge should have engaged with them and explained everyone lawyers pro se defendants everyone in the court is limited by the rules of evidence and so seemed to me to explain the problems in the concern to the point that your client said that he was afraid he would he was concerned he knew that the prosecution was going to i think he said it was going to massacre him or whatever anyway he knew it was up against a very difficult situation but that was standing that fact after he went out with his counsel and they talked together he was comfortable enough that he came back and very clearly said he wanted to go forward because his presentation of the facts as he viewed them even though it was not an insanity defense which would have been would would have fit in he wanted to go forward he felt very strong about it and as my colleague points every other recent supreme court case that makes it pretty clear that counsel  cannot give away the guts of a case in this case i think they had it terms of guilt if that was contrary to the wishes of the defendant so how do we how do we make what happen here into some kind of a reversible error by the district court well again i think because when my client was asked if he wanted to represent himself he was again told you'll have advisory council who will be with you everywhere so i think and then not to mention the fact that he didn't review the elements he didn't review the maximum penalties he asked my client knew what they were but he didn't explain them and that's not sufficient under forever in addition to the lack of a dangerous and disadvantage as my client wasn't told that he wouldn't be able to for example claim ineffective assistance of counsel he wasn't told that the way in which he conducted the trial may impact the way or whether he could raise issues on appeal articulated that i believe that the statements that he made were not do not comport with the requirement that a defendant be told about the dangers and disadvantages of self representation also there were issues about advisory council and my client was not say in contrast to some of the cases in which this court has said requests for advisory council don't make waiver of counsel equivocal here in those cases and moreland for example the role of advisory council was made exceedingly clear to the defendant the defender was actually brought in court and told he was expecting too much of advisory council my client even after the freddie hearing filed paperwork saying i was forced to go pro s want to change of counsel i want to build a defense and i don't have counsel to talk with about it so at a minimum even if this court says the forever colloquy itself was complies with thread a which i disagree with  then the court has to move to this idea that afterward my client took certain actions that indicated that he had reconsidered well but he didn't do when your current however you characterize those actions your client didn't say and i'd be happy to have mr bradley represent me he wanted to stop the proceedings and have a new lawyer appointed who's that with you it's unclear i mean that's and that's the most generous reading of it i think i can make to your client it's unclear he asked for a change of counsel he did so he didn't want to even want the starting to figure out what the court supposed to do tactfully i think the court has an obligation to bring my client in and try to figure out what's going on and i have knowledge that there is difficult i understand the context in which this is taking place and the district court is is trying but i do think that at that point at a minimum the district court had an obligation to bring the parties in so that my client could discuss and perhaps my client needed admonishment from the district court about what was and was not appropriate to expect from advisory council but he didn't get that portion of your time it's up to you of course but i guess i would prefer to but i also want to answer all your questions i'll ask the question of your other time very well very well ok so let's hear from  good morning your honor it's may please the court rachel hernandez on behalf of the united states this is a case of overwhelming evidence the defendant here defrauded the victims through promises violence that like i said at a bit of difference on the  let me ask it to you first he wants the son to testify at trial and says this son was witness to some interactions with government agents correct yes and that he see represented the son's testimony would be helpful to his his argument that he need to pay those agents in order to protect him against the mafia and he subpoenas the son and the son doesn't show up at trial because the as i understand it from the record the marshals say he doesn't have a social security number so we can't transport him that correct correct what should the judge do well the judge in gave five trial day because the government refuses to transport it probably with good reason i'm not questioning the reason what should the judge do under that circumstance and here he didn't ask for continuous to be at that point he did not ask for a continuance and as i said the court had already given more of a continuance than they had indicated was necessary since that a good example of why he should not have been representing the human self well the fact that he didn't move for a continuance means we look at the son's possible testimony and what the district court did under point you're right that's correct however here the defendant said also that his daughter and his sister would testify and that they would be able to substantiate his claims and both of those people testified and neither was able to substantiate his claims and so the district court if that's right  but you know the had two bad witnesses they thought he had a good one doesn't doesn't our case law suggest that we refuse decision for something other than playing or when somebody is prevented from putting a witness on i mean obviously i wanted to put the witness on so he made that record don't we review you know we say the judge is supposed to take the least restrictive means possible or available the denial of a further continuance i believe is reviewed for abuse of discretion but it is  district court review abuses its discretion when the refusal is arbitrary or and reasonable and it wasn't here the court gave plenty of time mr braley in talking with mr r dat could have certainly made other arrangements for the defense witness to appear and they didn't and in this case is it not correct that it went out to the judge i think so a spontaneous gave a continuous so that the three witnesses could be subpoenaed right yes and as the record indicate that they were all subpoenaed yes ok two of them showed up one of them did not at the last minute that was the son the father had repeatedly told the jury what the son was going to say wasn't cross examined on that he just said what the son was going to say we don't know where the s need to have him here he just went right on without saying anything under the circumstances how could that be an abuse of discretion yes that's correct your honor i don't think that it meets the case law in this area that as i said needs to be an arbitrary or and reasonable decision by the district court to not continue the trial did till the district court well he believed the son would say correct he did at various times say that and i would expect that if he had at counsel and his side or been represented by counsel counsel would have said we make an offer of proof this is what the some would say well that's possible to this point there's been no offer of proof or no or as we stand here now we don't know what mr awed at thinks the son would have said or let's get him on the telephone or let's get him on the phone issue between mr bradley and mr our debt mr audit wanted more than anything else a lawyer who would believe him and a judge who would believe him and that was at the heart of all of the disputes so i think  what where can he be here tomorrow afternoon where is he i mean it's what i think the judge had been told the situation he this person did not have id i don't i don't even know if the record is clear if this person the son was over eighteen and so he doesn't have an ability to travel at the marshals can't get him here and that's the information that he's told mr our debt does not ask for a video conference a video testimony advisory council he he was a lawyer he didn't say anything either does that make a difference for purposes of what happens to mr other in terms of the continuance you know he's not here let's talk to him on the phone let's make some council he was the mr brierly was the one explaining to the core what was happening with the witnesses and when he expected them to arrive and that clearly it seems that mr bradley was the one coordinating with the marshals service and so the he has not shown that there is any actual prejudice at all from his son not a not appearing not testifying to duty to get back to the ferretti inquiry does it make a difference guy to say i didn't do it another thing to say this is a grand conspiracy involving the government in the mafia this is the judge of that circumstance have more of an obligation to make sure that he absolutely understands that he'll be convicted if he puts this o n well i don't think so i mean it of course it sounds preposterous and it sounds farfetched but you have to understand using that same claim this man defrauded victims for over a decade i was having t the three million dollars those are victims he had some sort of special relationship with apparently they were willing to believe him well the first one did the first one was a friend from chiropractic school school and actually the fraud started by saying he was down on his luck and needed four hundred dollars to repair his car and it morphed into this mafia story over time the second victim the woman here in scottsdale was a client of the first chiropractor who the chiropractor said i can't give any more money you might want to talk to my my rich patient so i don't know that they had a special or a special relationship but so the claims are outlandish but people bought it no no i'm not i'm not suggesting i don't think i suggested he was innocent i'm asking under those circumstances where the judge is apprised of the nature of the defense that the pro se defendant wants to put on this he have some extra obligation to be absolutely sure that he understands what a terrible idea versus i don't think so if the courts asking about an indiana versus edwards analysis i don't think that was required here the defendant was not suffering from mental defect he spent time at butner they said at most he's a lingering and as this court has pointed out the district court noted several times throughout the case that the defendant was aware of was what was happening was asking pertinent questions and so i don't think there was any concern and then at the front end if that's what you're asking about at the freddie hearing the court did everything that was required by the hayes case and other cases that this court has has looked at th counsel says one thing to judge didn't do was remind mr addendum what the possible penalties were for the conviction is that required under forever it is required that he know what they are and that he'd be made aware of them and what the court did here was ask him specifically are you aware of the maximum maximum penalties in this case are you aware that you may be sentenced to a consecutive term on each and the defendant answered yes to both and the court was aware at that time that two months prior the prosecutor had put the maximum penalties on the record at the hearing in which that if it was present and the court was aware that one month before that hearing the defendant had attempted to enter a plea agreement to i think six or seven counts and had gotten to the stage in the plea colloquy where all of the maximum penalties had been discussed so i think it was sufficient for the court  say are you aware and the defendant said i am aware and are you aware that it can be consecutive i am aware and the court knew that that was true because it had been put on the record so i think that was sufficient you're opposing counsel seems to suggest that basically the judge in this case had to in effect for other hearing lurking below the entire proceeding that could be sprung at any moment you agree with that no i don't agree but that the case law it says that once away a valid waiver is made it remains in effect even through retrial and less there's a change in circumstances and there wasn't here and that gets back to my point mr our debt central point and his complaint with mr braley and his complaint with the district court and his complaint seemingly up until now is that he wants counsel that believes that he's lucky lucianne his grandson and he was on the run from the mafia and and nothing about that changed during the entire pendency of the case you think he was his grandson i do and even they don't share so it is an abuse of discretion standard irrespective of whether a continuance was requested or not when you look at the record the district court made it clear that it wanted to assist my client my client was told multiple times by the district court if you need extra time we will get extra time i want to make sure all your witnesses are here in the district court was on notice that there had been some issues with that before the five day recess  was the court on notice that this might not be available no i think so no not at that point the district court was on notice before the five day recess they talked about three witnesses i think they knew at that point that two had been subpoenaed i'm guessing that the the one that was an issue still was the sun but they didn't know that at that point it's a little unclear from the record but it appears that the morning that trial resumed was when the marshals informed advisory council and the court that they were unable to make travel arrangements for the son because he didn't have identification and the judge simply said you know here's an eighteen year old kid who has no identification and advisory council says that's what i understand  and that was the end of that what should have been charged have done in your view the judge should have offered a continuance at that point the judge knew that first of all the judge had offered to do just that and told mr i doubt that it would not mean one of my problems here is that in a in a case in which somebody is able as you've been handling you would have said judge hears our offer of proof if he got to the stand the son would have would have said i was with the pope that in a day and the mafia was with us and they were saying how lucky you were to be looking psionics graham site or something like that why don't we abuse of discretion still requires some prejudice so how do we how do we find prejudice on this record so here's what i think  of lucky luciano and yes i saw him meet with federal agents they didn't say that but what they did say his sister said yes he's had this longstanding preoccupation with the mafia which it which does support that his  stepdaughter said yes we moved around a lot when i was young my parents were afraid for a long time we didn't have a lot of money they never left us out of their sight and so that is corroborating information to the overall story that mr i these meetings with the f b i agent that his son had knowledge of mr i dead state of mind when he was calling for the money that he was upset and that he didn't want to call for the money so that would go towards mr our debts intent and so i think the s have people that are related to search for mutual folks in any event we thank you both the case just argued as submitted the court stands in recess for the day