the next case on for argument is united states versus in determining whether was deprived of his right to counsel at the time of his the most critical at the time of the most critical juncture of a criminal case that is when being asked to incriminate himself and plead guilty this court it very clearly without saying anything about an intent to defraud the judge then followed up for the purpose because he had mentioned nothing about it he in the first time the judge asked a question he denied possessing such of an intent the judge page court was asking him questions whether it was you're not pleading now is the time to come clean or write sorry the question was and did you know when you were soliciting money that you intended to use some of the proceeds one when you started taking out loans from other people than you promise that you were going to use the funds for your own personal use did you make the point that promised knowing for a fact that you were going to use the money for your own personal use answer no i did not there was no equi ocation about that the court follows up again and says well when did you when did you change your mind the court the defendant says as time went by as time went by under this court's decision in countrywide that's not enough th  move to withdraw his plea he did not is that relevant to or i don't know i don't believe it's relevant because this is not simply a rule eleven issue this is a denial of the right to counsel it's a structural error and to the extent that the record tells us anything i think it's significant that if you look at both the lawyer statement at sentencing and the defendant's statements it's he again began repeat what the defendant relevant to the question of whether there was a denial this seems to me following up on judge cronies question that the logical next step would have been for the defendant to get with counsel said hey i was railroaded into this and then a motion  follow it in the ideal world that would have been the next step what he did is less than an ideal world and sort of a normal world right out here seems to me the one when he had new counsel i don't i don't know i mean reading through the records i'm not so how much counsel was a we're of the issue in countrywide of whether you need to possess an intent at the time i think the district court was very aware of it and that's why she was asking the questions that she did and what she should have said is mr solicitor if you can admit such a possessing such an offense i have problems accepting that plea and you better speak to your counsel and at that point they could have a list of would have conferred with counsel and they would have made a decision do they want to go forward with this want to withdraw his plea now and yes he does yes he does is it your position that the plea wasn't knowing involuntary yes it is because it was it was not knowing the voluntary because without the act the right of he had asked to consult with counsel and during the course of wrong leavened proceedings he consulted with counsel and at that point he went he was asked the question and he denied having such an intent it was only when the court asked for a third time and prohibited is that different from this because i think the with the differences here we're talking about a guilty plea we're talking about a fifth amendment right i think what would be more a trial i don't but would we would be more akin would be a police interrogation the yes the witness a question and he says listen i have to talk to my lawyer and the and the interrogator says no you've spoken to your lawyer i think every all would agree you can't do that that's that's what's happening here that's why this is not i think this case is far stronger than perry or gathers because this involves this is the this is the critical juncture this is his waiver is at the point of time where he's going to waive his fifth amendment right and plead guilty  defendant at that point said i'm not going ahead with the plea there's no question he would have had the right to do that so he has to have a right to counsel and the court by interfering with that right it's  to deprive them of their right and therefore the plea was not knowing the voluntary and the government's only answer seems to be that you know this is trivial but precisely for the reasons i just said it's anything far from trivial this is the critical juncture and to extent that it was only the interim government says oh this was only a look the court said don't look at them i think the government itself and so that because it said the purpose of the district of words preventing him from looking is because it didn't want him of why he was looking to his counsel was to see how the answers question if the court didn't want the attorney's words what he couldn't say listen you could speak the counsel but i don't want i want your words not not councils of words but the right to may please the court my name is elizabeth hanford i'm an assistant u s attorney in the southern district of new york and i represent the united states on this appeal council i was counsel below as well michael pleaded guilty during the extensive and that thoroughly complied with rule eleven's requirements during his guilty plea and throughout the course of his case he received the effective assistance of two counsel that he had simultaneously retained his guilty plea was clearly knowing  voluntary and intelligent and he was permitted to consult with counsel throughout the police proceeding what do you do with the incident that sort of the focus of appendix forty three but i think that incident your honor needs to be looked at in the context of the entire plea proceeding it which mr schlosser was surrounded by two defense counsel he confirmed at the beginning that he had discussed the case with his lawyers and the consequences of pleading guilty and that he was satisfied with the representation and of course that he was advised at appendix thirty the beginning of the proceeding that he had the right to consult with his counsel throughout the proceeding very clearly advised the judge's words were if you need an opportunity to talk to your attorney for any reason just tell me that and i will stop and give you an opportunity to talk to your attorney and and indeed he did exercise that right it was clear to him that right was not just a hypothetical right page a forty two the court let him speak to his attorney mr schlosser said could i speak to my attorney for one second in the court said schorr so mr solicitor knew how to ask to speak to his attorney and he knew that the court would grant that request there was no point in was what in your head or not your pleading guilty now is the time to come clean there is no reason to play games that go to the voluntariness of i don't think it does to the extent what's in the record is the court of course made those statements proceeding the judge asked the question that appellant now complains of having been confronted with and the appellant the defendant was permitted to speak to his counsel after that question and so he had the he gave a coun answer at the point that he's now complaining he did not have the assistance of counsel to confront the judge repeated the question subsequent to mr schlosser's having consulted with counsel no new questions were asked after that interlude during which mr schlosser was permitted to consult with his counsel and so there was and it's clear from the record again that there was no prohibition on mr shoeless or speaking to counsel the judge never said you cannot speak with your attorney and indeed she let him speak with his attorney the judge's stray remark don't look at him again the record only reveals that that's what she said the language your honour's have used but it is clear from the record and from the entire can't control what settle your honor if it could be for any number of reasons i i don't think we can guess i think we can only read you know what is clear from the record what's the proper reason for telling who's pleading guilty they can because once mr schlosser had consulted with his lawyer i think the judges judges often seek that defendants given authentic allocution in your honor i think the question isn't whether it would be the best course of action or whether it's proper but whether it if meaningfully interfered with the appellants right to his counsel which he did not in this case in any event even if this were a restriction i think as judge droney has pointed out under the triumph capital and getters and perry standard such an interference would be trivial in the context of the whole case unless the your honour's have questions otherwise rest on our briefs anything you want to say about something your honor just just briefly i think it's very clear from the record that the sentence was both procedurally and substantive the government's position appears to be is you have the right ones to consult with counsel but after that you could chords free to deny the defendant has the right to consult as much as he wants should have that right plan i executed an agreement not to use any of the money raised for personal expenses although i did use some of the funds to invest i used a significant amount to pay for personal expenses and other personal debts i engage in this  t said he didn't possess it and then the court tells him yes a third time and the court says don't look at him there is no reason to play games that's nothing short of chorus of it's not games to consult with your counsel this is a consultation of constitutional quality and under triumph getters and every other precedent of this court and the supreme court found appellant should have been permitted to consult with counsel and the court recognize repeated this is structural error this is the reason why this is the most fundamental right that a person has he was denied his fifth and sixth and then he was  look at a seventy one counsel statement at sentencing was he refers back to this incident and what his statement was the fact of the matter is he couldn't testify to that he couldn't swear under oath to that because it simply wasn't the case when this investment began mr slipper's intentions and his goals were to again make money for his investors and for himself it was a business transaction it wasn't until later on in the the judge could have done a different allocution from him they could have asked mr list are you prepared to admit that during the course of this forward you made misrepresentations throughout the course of the judge could have as and explicit would have said yes that maybe would have established for us but that question was never asked so we don't know from the plea whether that that would depress listen was prepared to admit to that he may have said no i'm not prepared to admit to that and walk away and say i'm going to withdraw the this please so the question is at the out time of the allocution was there a sufficient allocution and the only thing that the court has is before he was done before he was denied his rights to counsel he denied having such an intense one t was denied the right to counsel he admitted it and that's improper thank you thank you thank you thank you both will reserve