she was tried for something that is not a crime communicating with a court that charge infected the entire trial it opened the door to all kinds of evidence that is not relevant to other count opened the door to her prior convictions it sat there like i hundred pound gorilla in the room and it weighed heavily on the jury as to whether ms banks thing guilt or innocence on the other counts was decided on the evidence related to other counts or on this propensity evidence that was introduced because of count twenty three and most importantly the judge who presided over the whole proceeding was both a witness to the sergeant crime and listed as a victim in the p s r he was not an impartial magistrate and you should have recused himself once you realized that he was into this case how would how would that standard work out practically is it your position that any time a defendant decides to write a letter to a judge in that upon receipt should end and let's assume some sort of charge related to the i then that judge has to recuse him or herself well your honor that's the reason why congress exempted that kind of letter writing from being a crime so we would have run into these situations but once the government charged it in the defense failed to move to dismiss as frivolous superseding indictment on that count then the judge became the witness and the victim and that's that's the issue here is the judge cried on quite a few occasions to persuade the government to drop this much better with the strikers which was not even part of the proceeds isn't that so that is absolutely so your honor and that is another reason why he was not an impartial magistrate he did not think that this is how the government should be proceeding and he told them so numerous occasions and emotion in his order on a motion for severance and a pretrial hearing during the trial and he's expressing his opinion on the charge which also doesn't make him a partial but most importantly it's not the actual bias or whether he was actually impartial but it's the impure answer of impartiality and in this case we have wrote objective person with a knowledge of the facts through viewed everything in the case and found the judge to be not officer who is reviewing everything related to the case but you also going back to the going back to the the letter to the judge upon receipt of the letter deemed a letter a motion filed in treated it that way every judge administering a case has to be able to review documents so i eat the probation officer making a statement that doesn't transform that into putting the judge in and letters all the time this recovery little the problem becomes when the government charges a defendant based on the letter even though it is exempt by statute so once it goes to trial and the judge presides over the trial and sentences the defendant based on a crime of writing the letter to the same judge that's when we run into problems this charge should never have been brought by the government and the statute is very clear that this conduct is exempt made that was not made and that's another reason why was not fair a lot of the errors were made along the way and her defense counsel didn't object didn't file a motion to dismiss th she said repeatedly several times this is the only reason i'm testifying i want to limit my testimony only to on to count twenty three but then once she testified the government have her in the stand and conducted extensive cross examination that lasted for the least half a day and into the next day and then they introduced six witnesses specifically related to count twenty three plus rebuttal witnesses to just talk about  three even though that was ok but but but once but once the defendant opted to take the to take the stand even in the trial she can't control under the federal r that she can't really restrict that to the parameters of the she wants i mean there were other procedural ways to handle that which were not done so how can she didn't use that as a prejudicial aspect of the trial more that all stems from the charge she would not have been up there in the first place if it were not for the count twenty three and further she was per se without making a knowing involuntary waiver of consul in the first place so this trial was compromised from start to finish and you turn back to an explanation of why you think her the grant of her request to represent herself was was not knowing and voluntary what are your best arguments for why it fails that test the judge didn't ask all the questions he didn't make the finding that it was knowing involuntary which is required by this court and the doesn't our loss a bit you doesn't say you have to ask these thirteen questions the law says and our circuit and i think probably throughout circuits that there needs to be a substantial similarity in what the judge has that they're not magic words that must be uttered but the information and the relevant considerations must be accounted for in the judge's action tell me why you don't think that the questions i ask substantially complied with the requirement because of everything that the judge made it the maximum penalties the sentencing guidelines particularly is a maximum penalties were submitted the next day before any evidence was introduced in the trial more and yes there were but the trial starts  one with the jury selection she went through the entire jury selection process a before those maximum penalties were introduced and moreover once the prosecutor put on the record the maximum penalties the judge never went back and advised or asked ms banks don't now know this information do you still want to proceed on page id twenty nine sixty nine what the judge says to the prosecutors thank you for placing this on a record and the question does she have any questions about maximum penalties he never actually asks or no knowing this information do you still want to proceed without consul he's certainly in the judge yes the judge did not  follow perhaps a desirable script but the judge seemed to drive home to her his deep misgivings about her represented herself and he made clear to her he thought that was a terrible idea he didn't ask questions of love him to get a sense of her understanding of the wall so look those are all important inquiries and it would seem perhaps in a in a less than ideal way he did the she could get consecutive sentences staggered the idea comes sentences that come one after another without knowing what the penalties are or other than he asked her that question and she said i explanation and that should have alerted the judge that perhaps she does not have an understanding of what are the charges against her and to go back to your question judge will because the what she is which she has to know is not just understand the law she has to understand the consequences and its failure to advise of the potential consequences of going pro se that's at issue here but was it your position that when the next day the consequences for sentencing exposure was made clear to her the judge would have gone back through a complete inquiring to see whether in light of her understanding now the consequences she still wishes to proceed representing herself is that your position yes yes your honor and the judge should have made a finding that the waiver was knowing involuntary on the record that finding was never made by the judge it was simply you don't have that the judge doesn't actually have reversed because the judge did not make that finding the did this court you know judge in that case do many of the questions he did have for about the same as here he did he ask some questions but not all the questions and he did not make the finding just like this case well i'm looking and i'm thinking of you know following that bride we had your tray rob miller williams and they all s who's as familiarity with the law and you know you ask about law school he asked her about courses then the gravity of the charges he did speak to her about these are dangerous charges do you even know what they are and then the dangers of self representation and i think use the colloquy on that is clear he told her you know a person who represents himself has a a client so tell me what is there one category of relevant considerations that you think was missed entirely the penalties and the consequences and your honor you brought up williams case that the government cited there was a pro se appeal where the defendant alleged that the judge only focused on the knowledge of the case but i went back and looked at the williams pretrial hearing transcript when williams waived his counsel and the judge asked is your decision completely knowing a voluntary hundred percent sir and then the judge made a finding i think you have knowingly involuntary waived your right to counsel so in williams case there was actually question asked in the finding mate unlike here here we have not sufficient advisement of the actual consequences not that your would be really foolish to do this but why it would be really foolish to go without consul and that of finding that is knowing involuntary that finding was never me and i see that i'm out of time your honor so judged on how do you have any further questions i do not may please the court my name is mark bennett i am here on behalf of the apple of the united states of america your honour's the conviction of miss bankston in the district courts denial over pretrial motions should be affirmed for three particular questioning of the appellant there's no need to the magic words that by judge dowd to have said knowingly and voluntarily what about the fact that he did not tell her what the maximum penalties could be which is a pretty big consideration testimony and i did and i think that there's that there's some importance they are but on the other hand the decision to represent yourself should be made when the trial began and what she's already made that decision out key component what good does it do to come back at the end of the first day insight about the way here's what penalty she can receive unless you then say in the light of those penalties are you still willing to represent yourself your honor judge down in the district court did make all of the necessary in you and take the record of the whole of the necessary inquiries as far as the penalties substantial ponies that were there they were not asking till after dear however this trial the case itself had been an extensive period of time as the record indicates there was a third superseding indictment there were three counsel that ms bankston had retained miss judged out had an extensive interaction with bank miss bankston where guideline calculations in statutory maximum been addressed in addition talking about the end of the first day of trial are you talking about pretrial the totality of the time that a year and a half prior to trial that mr  judge down had an opportunity to interact she didn't ask to represent herself till the first night of trial that's true your honor but at the end of the day the ultimate determination is whether was knowingly voluntary intelligent by mrs banks didn't it to waive the her sentencing exposure was not explained to her until the second day and the judge doesn't see anything after she's given that information to confirm his earlier finding that her waiver was no involuntary does he say anything that would permit that inference that he actually confirmed that earlier find in the record i do not believe he specifically inquires of her if she would wish to continue to represent herself at that point however there is a pause and a inference to her you're aware of the she admits that she's aware of this she had gone through the previous inquiry with his honor the day before as judge tran should mention that he did comply with her substantially comply with the overriding concerns that the court has of familiar with or the law that charges her knowledge of those aspects whether she had in fact ever gone to law school or done any college courses involving the law in addition i think it's important to note to  the court that you even though at some point once she decides she wants to represent herself and her honor judge doubt sorry allows her to do that she has an active co counsel in jackie johnson who is the first assistant federal public defender she is there throughout the border process if you look at at the record that's there she is active page id twenty nine thirty one through twenty nine forty seven throughout the entire process there in assisting miss banks did so any concern at that point that a portion of the trial had begun before the statutory penalties were discussed she has active testifying and the judge found that she opened the door to to to the rest of her criminal history was the counsel asking her those questions it's far is when she was testifying on her own behalf you're here yes no but there was through the middle of her testimony there were an instance in the record four sixty three a discussion of whether she will or will not testify and that was all done outside of the purview of the counsel for the united states so she was actively involved in to the extent your honor has mentioned that she was initially told to to stay behind counsel table it at the record shows a page thirty five eighty five to eighty six specifically at the behest of the government the record is made that she was there sitting at table she admits that she was not only helping with the exhibits but assisting with cross examination of witnesses discussions of her own direct examination of her particular witnesses in addition the two main agents in the case the postal inspector at page thirty three zero seven and the special agent who was the primary agent  case at forty eighty six miss johnson interrupt the testimony that's going on stepped up and interact with miss banks and so she sat at a table the entire time from the border up through the end of trial she assisted ms bankston with all aspects of the trial with her own direct examination her cross examination and she was there specifically the entire time  the appellant argues that somehow the fact that count three included a reference to the judicial branch undermined the entire trial the reason that i think the argument is that count twenty three undermine the trial because it was an invalid came out your honor the count twenty three dealt with both the executive and the judicial branch it was a false statement that ms bankston sent to judge dowd who was not a victim was not a witness and may have had it may have had implications for the executive branch in the way that you describe it may have had affects on the judicial branch but what is there in the language of the exemption that would allow the government to conclude that those of facts justified going forward with this charge was not in the language that would support that broader application of the exemption is a new yo aspect of count twenty three going to allowed it to go forward in was charged in the third superseding indictment as a false statement because the f b i and the i r s agents assigned to the case to perform additional investigatory aspects and connections with the allegations and federal rule of criminal procedure seven c one allows a single spy count to charge both aspects of a statute so that argument if you're if you're hanging your hat on the executive resources argument wouldn't that apply to any criminal action where false statements are alleged what you are this was a very specific using it as a shotgun it was a allegation by ms bankston that a postal inspector had broken into her home planted evidence then went and got a search warrant recovered that evidence and that the entire aspect of the case was based upon those actions so he wrote to the judge and one zero zero one b c is an exception to this this crime is if you are engaging in providing that information pursuant to a judicial proceeding if you're already in but the charge was also to the executive branch and all the aspects that needed to come after that fact i mean this is a very serious claim against a federal agent that would require it as the government would be in any instance this is if in fact a postal inspector and broke into a defendant's home or a target's home planted evidence then and when he got a search warrant to obtain that evidence and then bring charges the federal government would you understand that you others involved in this case were deeply offended by the nature of the charge and troubled by the implications in terms of all the different resources that had to be used but that doesn't justify ignoring the clear language of the statute as a way of registering your annoyance with what he's know you're that seems to be frankly that seems to be what was motivating the insistence that this could this charge go forward despite the urgings of the judge that the government dropped the charges your honor to point to that first it wasn't this it was an annoyance at the that's a federal offense it's a crime if the federal agencies are aware of an allegation whether to the court or to the united states attorney's office or to the f b i that a crime has occurred there's an obligation to  research that and investigate that and determine that fact which the i r s and the f b i and the postal service required to expend excessive amounts of resources to find that information to be truthful or false or criminal defendants as the gun that the officer says he found on me was planted by that officer then don't you expand a lot of resources on those and isn't that its claim that we see with some regularity your honor i would disagree that there would be extensive resources in that regard i guess and what i'm struggling with counsellor is quite does one  one b main and why is it they are it seems to me that it means that you can make perhaps incorrect perhaps stupid claims to a judge in the course of being prosecuted or exempt from charging undercount twenty three it seems to me that that's the purpose of it and that's a not unreasonable purpose and i'm not hearing anything from you that tells me why that exemption doesn't apply your honor i cause i don't disagree with him and to have a government that doesn't doesn't disagree with the judicial aspect of that count however if the count had simply said the executive branch i don't think that there would be as big of a concern that here simply was made to a judge if through the course of the proceedings it was the executive branch that was forced to expend all of the resources as well as looking at the postal inspector potentially facing discipline or criminal charges that took the seriousness and something that shouldn't be allowed to occur a defendant shouldn't be able to make a false statement accusing making such an accusation the other aspect i don't want to lose track of discussing is irrespective of we whether or not the government had pursued count twenty three and and the record shows that the government had requested to sever that first fear that the issues that were going to be raised about whether it occurred or not may have been kind of a trial within a trial however the defense argued against that and instead said no we don't want severance and that was because miss bankston wanted to make this argument she made this argument throughout the trial it wasn't in defense to only count twenty three it was a miss banks opening statement it was throughout her questioning of the agents it was through her direct testimony the her defense was that this had occurred so to suggest simply because count twenty three was in existence and there as part of the third superseding indictment and that's not the suggestion the suggestion is because count twenty three was in there she took the stand and because she took the stand in the door was opened and you could get into evidence i think seven prior convictions i think my question on that is how could that not have impacted the entire trial from and through due process and point to place her in the to defend that yet she opens the door and now the jury hears not just what they might have thought was a very odd defense or problematic defense but here that this is seven convicted defendant been here before done this kind of stuff before how could that not impact the fairness of the trial i see the my time is up may i please answer thank your honor because miss bankston had made it clear throughout the motion to suppress coming up in leading into the trial and then after her request to represent herself that that was her defense it wasn't just defense to count twenty three as judge of has had mentioned it was only one of twenty three counts counts one through twenty two all related to and stemmed in large part from the search of ms banks and property and the location of the evidence that was to establish the five different schemes that she was involved in in her financial fraud evidence of aggravated aggravated identity theft with i guess and i understand that that that would be her defense but that might not have necessitated that she take the stand and she said she had neighbors who saw it so why couldn't she have her lot on the defense through the testimony from other individuals and not herself has taken the stand and opened the door to her prior convictions she once she decided to represent herself it was clear through her opening statement and throughout the trial and in closing argument that this was going to be her defense and she alone was able to make the ultimate argument i mean it's her choice as the record reflects several times she discussed with judge doubt with her co counsel jackie johnson whether she was going to take the stand or not and ultimately made the decision she was going to take the stand and it was they said it's because i want to respond to count twenty three correct it was her comment that was there but it was also her you were arguing counsel that it's a fair inference that even in the absence of cut twenty three she would have taken the stand to further the defense that she wanted to proffer yes your honor what do you base that on her or her clear representation throughout the trial that the postal inspector had broken in her house had taken  and or planted evidence and then went and got the search warrant and a good part of her testimony related to things only she knew at the time of the searches references to whether or not she had a dog because there was dog food in the garage that belonged to one of her friends that only the person that broke in the house would know the fact that the card was provided the only way to get that in because her neighbor said there was no card that he had any never knew the name of the person so it's miss banks and own testimony that she tried to close the loop of specifics that occurred at the time of the search that only she would have had knowledge of and the ability to make those inferences her neighbors did not make those claims all the neighbors said was too law officers came to your house and opened your garage and there was testimony from the lakewood police officers that the garage was already a jar they opened it anough to get underneath that knock on the door and leave a cart the whole aspect of what was planted and or taken was all on his banks and so she was going to testify and get that information now because that was her entire theory do you have further questions i do not thank you for your argument your honor what i have to speculate today whether she would have would not have taken the stand of come twenty three was not part of the charge and it wouldn't have been if the government didn't charge her with it we've been focusing on a part be the exception but i want to draw your attention to part of that statute the part it begins except as otherwise provided in the section it clearly references the part b and the normal rule of construction whether statute or a contract first place should have negated this assumption and it couldn't and it didn't and by the relevance of the government points out that they recognize there were some problems going forward with count twenty three there isn't but they asked separating the trials would have cost a case to be reassigned on the judge another judge's skill and there in the meantime should remain incarcerated what should have been done is the defense counsel should have moved to dismiss count twenty three entirely instead of merely opposing s and going back to mr bennett's point that there were four indictments in this case which is especially important why the judge should have went through all the counts and the penalties for each count because the indictments ranged anywhere from one believe twenty two to eighty six counts at one point and they were in the third superseding indictment for which he was indicted just mere weeks before trial there was in that long of a time span between the superseding indictment and when they actually went to trial so it's especially important to when you have multiple indictments to go through each count in the penalties for each count in this case and whatever the allegations were the judge dealt with them in the motion to suppress the judge did the right thing true there's a motion to suppress denied it and both parties could have moved on but look he didn't and with the church twenty three that in fact of the entire trial therefore what we're asking here today is for this case to remove remand this for a new trial with the outcome twenty three and in the alternative is