about the waivers of the right to counsel i provided a lot of other cases from various jurisdictions to illustrate some different treatment but i'm really just asking that you do what the supreme court said which is to ensure that a waiver of the right to counsel is made knowingly and in their language that means the defendant must of how have an apprehension of the nature of the charges the statutory offenses the range of punishments possible defenses and that's the court's clear this presumption against the waiver of the counsel i don't language they've use they say the warnings about the pitfalls must be rigorously conveyed and just telling a defendant that he has a right to counsel it simply is not sufficient so in this case the issue st arose in a conference in june two thousand and fourteen what is it he didn't know what is it he didn't know that he did not know well the record doesn't indicate whether he knew the range of offenses whether he knew about available defenses whether he knew how this how  representing himself might affect his right his th amendment rights he would there is extensive pretrial practice here wasn't there and you were assigned as advisory council there were status conferences where the district court urged mr naseer to reconsider his decision and he had many opportunities to see what an attorney could bring to the table how can we really find his decision to proceed process a not knowing their intelligent well what happens here in the beginning i mean  i'm going to start with beginning and try to put it in context to answer your question completely in the beginning what the judge does the says this is unwise this is not prudent he asks another attorney now whether you spoken to mr missy or he says why i tried to but he really wouldn't give me his reasoning so there's no indication that counsel has had any off the record discussion about that and it's at that point the judge after the judge says you know this is not not a good idea without any kind of elaboration the judge says ok and then so that's what happens right then i i don't think the government's going to claim that colloquy alone in isolation w be sufficient so let me put it in the context that you know what happened in the weeks preceding this is that the fence emitted some pro se letters there were essentially a laundry list of legal terms such as  amendment jurisdiction one of these letters asks to suppress evidence without identifying the evidence and so my point is with the judge was just had these letters just could see  that the defendant is not does not understand what a real motion entails so he has that in the back of his mind i think that itself shouldn't be placed in an affirmative obligation of a judge to go further on judge that's you know months months later once he's in the courtroom he's told that i don't think that we can just infer from the fact that someone goes into the court and actually he doesn't act as the lawyer so in the court he becomes aware of the evidence of course and you know and then he makes arguments but i don't think that's you know that is enough to show that he had the understanding which he really does need at the time that he's making this decision and if he comes out do you he had  advisory council what role did you play in terms of vising him about his right to counsel well judge during this conference initial conference i was actually out of the room when the jury verdict with our case  thought you know i'm going to say what's on the record here what's on the record is that he's my co counsel spoke to him but the not get him to explain his reasoning and also spoke to his family who was concerned there's a reference to that i had a conversation with him but there's nothing in here about about the nature of that you know and whether he had a full explanation i don't think that could substitute for what the judge has to do anyway so he wasn't trusting his lawyers that's correct judge he i mean and you know this is you know again you don't think it's telling about that conference after the judge has made this decision then it then is a conversation about scheduling and and the prosecutor and the other why i think they feel that there's a lot of discovery that is yet to be disclosed something like two terabytes of discovery that's  so the defendant's response to this is in june the defendant wants the date of the speedy trial date which he says is august six weeks later and the fans comment as i want this this is  discovery but what i really reveals is he's got no prescience ssion about the importance of discovery does the record give any basis for concluding that he would have made a different decision had the judge explained more about discovery no the record doesn't do that but i do think this is something that's on the burden of the government to show that the waiver was knowing and if you know the reason i i give these other circuits you know examples of the kinds of question and you have you know i know we don't have a litmus test here there's no particular script that needs to be involved but i did by way of example to show the kind of searching inquiry that courts make need to ensure that someone is really doing this voluntarily it's not enough all but one of the quite later months later the judge makes a comment about how you know you're going to be handicapped because of your lack of familiarity with procedure and  what i would say is that doesn't really educate the defendant at all and what he what he has in mind you know the just the word procedure doesn't convey anything so there's many things the judge could have done and that's why i supplied you know all these other   why you're doing this and he tells them yes i have to answer and so he says well i'm not going to answer well i think the judge should have asked that question you know this if this kind of colloquy is sufficient then it's hard for me to see what is not please the court a name is david katz i represent the united states if i could st just make two quick points about what mr newman said st of all the defendant clearly knew the range of punishments he knew available defenses because he raised them perhaps not as skillfully as a lawyer would have done but he raised them very early on and he knew the evidence against him he submitted a letter before the status conferences that mr newman was talking about on what the judge said yes what's your answer to the rhetorical question pretty crazy that affects his whole life yes so i think we can all agree that proceeding is almost always ill advised it's best to be viewed in that context but this court has up so to address your question this court has laid out a test that looks of the circumstances so this sufficiency of the warnings themselves which i'll get to in one second do also have to be evaluated in the context of who the defendant is that's one thing you know the warnings might be more or less  depending on the defendant's level of comprehension and here not only was the defendant sophisticated and clearly comprehending and able to participate in the proceedings but judge the district judge was very experienced had many many opportunities to observe a defendant may choose to defend himself to make a different point that's right and here clearly so i want to answer your question judge here clearly the defendant wanted to represent himself so he could orchestrate everything  let his voice be heard it at every stage during the entire trial so i think that's that's the motivation so it's hard to draw the line as to what would be insufficient and obviously i don't think the court has to draw that line in this case certainly no warnings or advising the defendant but i think the point of your adversaries pointed rhetorical question is what's the minimum so the minimum is that the defendant has to be warned off so that th can appreciate that this decision is a one is a district court said so let me say what i what i think the record actually shows was done here because it's a law i think there are repeated warnings over a long period of time let's say generally that this course of action is extremely unwise in addition to that there are other specific discussions that happen so for example mr newman mention the point about the discovery in the status conference that was being discussed i think the june one the court specifically told the defendant a fair resolution of the charges requires ordinarily that counsel be given the opportunity to review discovery materials before anything happens that's a specific instruction to mr newsier about the importance of reviewing discovery and i would say to some extent implicit suggestion that competent counsel has to do that so that's one thing in addition i believe at the next status conference in july mister sort of st set of pro se motions was addressed and the district court spends almost ten pages of the transcript walking mr c or through mr newsier through the various motions including the suppression motion explaining what the law is explaining what the problems with those motions are providing an now come back to me when you know the you know when you you know specifically what you want to suppress and i believe that was address later so the court also you know explained that there are federal rules of criminal procedure that have to be followed the court  nazir he would have to play by the rules and how does a small example that mr nazir did know how many copies to bring or whether to provide copies to the government there were repeated discussions about the need to review discovery and the court's view and legal advisers view that reviewing or were more than sufficient under this court's totality of the circumstances test to ensure that his waiver was knowing and intelligent it doesn't mean that in another case with a different defendant a different set of warnings might not be sufficient but there was don't think the law requires that the government itself say what the charges and the potential defenses are that said i can tell you what i know the record shows which which may not be everything which is you know the defend it was a reign so he was instructed on the charges th arraignment and he was counseled at that point there's no dispute about that the defendant had previously been subject to various proceedings in the united kingdom that in part related to the same evidence and he talks about that in this letter i mentioned before  jacobs i think it's in february but it's docket entry three o five in that letter he lays out pretty well the evidence against him and particularly the core evidence about the e mail addresses and  evidence recovered from osama bin laden that again reiterated some of the chart the evidence and then before the trial i think it was in a december or january status conference but was certainly before the trial started one of the u asked by the judge to summarize the evidence against mr nazir and that it was a three or four page summary of the evidence so i think i don't think there's a question on this record that mr understood the charges and the evidence against him and i don't think there's really a suggestion from from the defense that that was an issue i think it was very clear to him in this case probably much more so than it is in almost any other case where a defendant chooses to proceed pro se so i hope that answers your question and we can check the least so for purposes of leadership and what evidence did the government present that he really directed work or otherwise led the members of the cell he was one of the younger members there was someone who was a decade older than he  he said it was a closer call to apply this enhanced meant in the terrorism handsome men but was not a particularly tough one given the testimony of mr zazi the e mail communications showing that the defendant was the person communicating with the  external operations leadership in pakistan that he had communications but it was it clear that he was the only person who had communications i don't think there's anything in the record that there were others e mailing that e mail address but i don't know i can't specifically answer that question with certainty i think the focus of the trial was his communications and i don't remember evidence being presented that there were others in the manchester cell communicating there was obviously evidence that  the new york people at that denmark cell were communicating was there evidence that they were not communicating that the others in the manchester cell at would i want i want to say that you know the e mail accounts were searched and soon i want to say that the full contents of this but there could of course been other e mail accounts there could have been you know that was not proving the negative it's hard you know numerous members of the manchester cell were under pretty intense surveillance by the u k authorities that's in the record and so you know presumably if there had been a lot of e mail activity that might have been observed but i can't prove the negative i can just say that the evidence before the district court that  he laid out to support the finding was essentially that this defendant was the one trusted by al qaeda to communicate with the leadership and given the record evidence about the hierarchical nature of al qaeda and operational security it's a fair inference to be drawn certainly a preponderance of the evidence that the person who was trusted to communicate back with that sort of apex of the plot was the person who was in charge or was one of the leaders of the plot in  the facts in the p s r there are a couple of different moments in the sentencing transcript where he refers to that you know he makes the statement that not every one of the facts is necessarily you know my fact it's the evidence that came at trial i was also say the statement of reasons  indicates that the judge adopted the p s r with some you know limited edits that are are not relevant to the appeal so i don't think there's a question that he was adopting the facts of the p s r for purposes of sentencing and certainly i think the record is crystal clear that he was following those facts on this particular enhancement which is the only enhancement really the only procedural error that's been identified by the defense so i see that my i have actually yes question for you the record contains a lot to say it didn't seem to me mediately obvious why there had to be so much detail introduced about plans with regard to new york city when this plot a terrible plot concerned actions in  least you know generally whose credibility is very important to the case it's important to lay out enough evidence so that the jury can believe that person fully and so in a case like this laying out all the details and making it clear that what mr zazi was talking about you know was to be believed was particularly important given the circumstantial nature of the evidence against mr really is proving the parallel that you know we know a lot about what happened on the new york side and we can you know draw parallels to what was going on in england so so that quantum of evidence was important to mr zazi and really show that he was a credible witness i also point out the defense has really said where the line should have been drawn and it's hard to conduct a sort of four hundred and three analysis without some suggestion of where the line was but to get to your question about let's say this sort of harmlessness of a potentially too much  you know certainly we have all the judge's instructions about how the jury was to focus on the defendant but i think more important than that if you look at the government's closing the government's rebuttal of the defense closing it's all about the email it's a plot where they were planning to blow up a shopping mall and kill a lot of people you know that's what the case is about you know so it's different than for example that god gave us that defense sites because it's not a situation where you know that the charge were not a plot to cause a mass casualty attack i mean that's exactly what this was about and so it is true that the government's opening you know does refer to blood but it's a one hundred pages of transcript add ninety of those pages ninety five of those pages ar painstaking discussion of you know the kind of circumstantial evidence i also point out that before the jury was the fact that mr newsier testified and was clearly found not credible again and again and again and again and so in the harmless there's also that very very big red flag there so it's not just that the government's evidence focused on the kind of the details of the u k plot as opposed to the details of a u s plot but there was also the has finished a secondary education in pakistan and then spent several years and will in the u k where he was facing extradition charges and i mention that because although this may not be confidence to the case that's my point judge and that's why in this case with that background i think it should have occurred to the judge maybe to say you know this is a different kind of proceeding we have different laws here it's not extradition just in the way that you might tell a juror during jury selection if they say they've gone through been adjourned a civil case they always make a point of saying well you know this is different to criminal case that's the kind of thing that i think gave should have given the judge additional reason for concern to get a false sense of confidence exactly piers that exactly and with regard to that if i may just address the the sentencing issues you know we i was now back on his official counsel the sentencing process i submitted very detailed objections to the p s r i actually asked for a minor role reduction the government did not ask and probation to that on their own and you know during the at the sentencing proceeding you know i was prepared to go through these factual objections each step of the way as i explained how the defendant did not so there's no evidence he solicited anyone that he gathered any materials that he devised a plan that he conducted surveillance himself i was going through this judge said you know you don't need to go through  you had complete command of the record well you couldn't judge but at the actual conference where he was granted permission i was actually not present for the st half of that conference because i was in another courtroom when i came down and this is the record does show it was mr brown see that mr bouncing was there but i would then told that the judge has made this decision and the only question is would i be willing to trial itself there are times and this is probably not evident on the record i mean times i'm telling him you can make an application now and oh just make a broader point about that it's certainly true that throughout the trial mr to see here is gradually learning more about the process i think that's true of anyone who goes through a trial but it's some cited that say that the same standards furred assessing whether a waiver is knowing applies regardless whether there is a standby counsel or what what about his taking the stand what can you tell us about that  i'm not sure i understand the question you were there he took the stand right yes i mean he could've it could have not taken the stand right for and he was instructed on that i'm sure by are frankly i think i do have some doubt your honor and the reason i have some the reason i have some doubt is because he did not address these in an individual basis and in fact i complained that probation not do that either that they had their response to my objections or simply well the government says this therefore we are not changing the report i at i told the judge i thought that that was an abdication of responsibility by the probation office he asked what should they have done and i think at the minimum they should have looked at the record and they should have considered each one of the objections because they're supposed to be independent and the judge it did not address these on an individual basis and i think that the addict yes and that they're not independent they work for the district court they are integral part of the judges of the judges and based industry right that's why i meant independent of the prosecution as well so i'm really i can't tell from this record what the judge what findings the judge really