next united states versus front where good morning your honors my name is melvin in one thousand i represent edwin for rare at just about the time that the suppression hearing was started mr for rare had a very difficult choice to make whether he was going to represent himself or whether he was going to go with an attorney in whom he had no confidence in the choice been provided to him the last time you fired a lawyer when he was told this is the last time you're going to get one i'm not at the time you're going to have to make that choice i'm not at this point questioning whether he had to make the choice accepting that at this stage that was his choice what concerns me is that he was not provided any kind of guidance any kind of advice any kind of anything in making that choice what choice are we talking about whether he was what his options were to represent himself or to be represented by mr siegel mr siegel says he was going to represent  i need for the officers to intervene at some point but i don't think that that he would not have he would have been i do not believe that that was the situation the threat of violence the relationship was on and we there was no there was no and here all the problems i mean as the supreme court puts it to be told about the disadvantages of self representation he wasn't told anything he was just said you want to represent yourself go ahead and plan a strategy that there's a thinking through what the case is about that the man if you witnessed his performance at the hearing and no idea what he was doing or what he should be doing he had no idea how to ask  you know that's a hypothetical i don't know at this point we don't have that in the record but if you look at the cases even the cases cited by the government that discuss the situation when it's ok you've got a case for example of a defendant who who is if an attorney he was allowed to go pro say you have you will see and we discussed it in the reply brief you'll see cases where the judge has a lengthy discussion with the defendant to make sure the defend  i don't think he ever actually said he wanted to go pro se what he wanted was a lawyer that would believe him and would work for him i do not know what the problem he was having with his lawyers but i do know from the record anyway that he did not he wanted a lawyer he always wanted a lawyer he just wanted a lawyer that he felt more comfortable with i'm not sure how i would have solved that problem or said he believed his rather implausible story and did not urge him to take a plea which would seem to be very good i don't disagree with that but again when he finds such a this suppression hearing what question would be asked of him that would have made any i think that there would have been at least a thorough exploration of what the medical records show this is a guy who was taken to the hospital almost bleeding to death was was in some jeopardy and presumably was somebody shoots you or whether you should know i understand that but the question is i'm not going to sit by the way the search of the car is not at issue but the statement that he made is it issue and so the question is whether or not he has made both possession make the most critical statements to the nurse after he  god yes yes and he said that later as well he maintained that story but the question is what was his condition at the time that he made that statement was see thinking clearly was he able to think just one more question suppose we agreed with you you would be entitled to a new trial with we've asked for a new hearing that's the new here we haven't asked for a new trial we've asked for a new here on that issue that's what this was this was attention to his constitutional rights but they strategy at a hearing is different from the strategy trial there were from the way in which you argue and hearsay is available at a suppression hearing i mean it's impossible to know i think based on this record what the result of a counsel suppression hearing would be and the fact that at a later stage in a different kind of proceeding a jury did not find that his initial statement was involved but we don't know what they found attorney at the suppression hearing would have asked the same questions that the attorney at the trial would have asked we just don't know that the evidence might have come out differently there might have been strategic reasons at the trial for the attorney not to explore things that he might have been willing to explore at the suppression hearing the defense we just don't know because it just never happened and i don't think that we can speculate on that you resign i have which i will i guess you could you know no no no no i i want to hear what the government has to say thank you  may please the court of the united states mr frere has not identified any errors that would entitle him to a new suppression hearing the district court could have decided and did decide under the totality of the circumstances that and then you're asking us to decide harmlessness beyond a reasonable doubt i think that's correct i think under the totality of the so why wouldn't we have sent it back and ask the district court to decide whether weather  fear if there wasn't for you was harmless beyond a reasonable doubt we can determine on the existing record that there says if there was an error which the government doesn't concede that there was but what if there was an error it was harmless and it was harmless for at least three he also had standby counsel available to him at the suppression hearing second this was not a trial situation it was a pretrial hearing it was a critical stage of prosecution but it didn't present the same dangers and risks of representing yourself pro se as at trial and that is something that this course discusses in the dileo case and talks about the different factors that make a pretrial hearing different for example limited to straightforward issues of the very issues here whether whether miranda was required but his right to counsel has not diminished as a result of this his right to counsel is not diminished but the the risks of of self representation are diminished in part because the hearing is conducted by a judge who can more easily overlook evidentiary missteps than a jury could at trial but the third reason this is harmless is because there is just nothing in the record to indicate that the decision on the suppression motion would have come out any differently either if there had been counsel representing mr for at the hearing or if he had been warned about the dangers of self representation which is really the heart of what the argument is on appeal and that is because at trial mr freear testified and the same witnesses that testified at the suppression hearing were subject to cross examination and the best that mr ferreyra could say about the time that he gave his statements to the police in the hospital was that he didn't remember talking with them and even when he was speculating as to why he would have told them that he shot himself in the hospital he didn't say it was because he was unconscious or anything like that he said it was because he was scared of retribution about the person that he alleged had actually shot him instead of him so he couldn't have shown that there was police coersion at the time those statements were given because he would there was no evidence that he presented even when he was represented at trial to undercut the testimony of the law enforcement officers that took his statements and there was nothing to show that although he had recently had a traumatic injury the shooting that he was unconscious or somehow incapable of giving voluntary statements or making voluntary choices and i would also say just to respond to this point about whether or not the attorney was refusing to represent him at the suppression hearing he was not he used he did ask to be relieved as counsel and he said he was ready to go forward that day but he didn't want to because he had not had any client input because of the  conflict that they they had that amount is the lawyer saying i can't do this meaning i won't do this he didn't say he wouldn't do it but what he said the question was do you wish to go forward progress say on this hearing today and he said i wish but i'm not prepared because i don't even know what's going on that's correct that's what the defendant said so correct but but the district court was permitted to give him the choice to either take this third to retain that's been appointed to you or you go forward pro se and there wasn't a complete breakdown of the relationship between mr siegel and mr for a year because even in the stand by capacity he continued to represent him there's a later proceeding where mr for rare is slated to plead guilty and ultimately he decides not to but before that point mr siegel describes how he went to visit mr for rare they went over the plea agreement together he got his signature on it so the continued to be a relationship even after the suppression hearing or at the trial when he was represented by different counsel but the new lawyer asked the judge to in any way reconsider his finding that the confession was voluntary essentially the arguments that were made by the government in summation right that's true is there was reference to mr ferrars status as a felon during cross examination that nobody objected to prior to that point the parties had stipulated to the fact that there was a prior felony conviction that was not entered into evidence with any kind of limiting instruction to the purpose of establishing an element of the offense i mean your argument that the prosecutor was making that because he knew he was a fellow army wore gloves irrelevant it doesn't mean necessarily that it's reversible error but the strikes me as a kind of absurd argument while on cross examination the defendant volunteered himself that when he was shown the gun as physical evidence to identify he said oh they didn't find any prints on it and then when he was explaining his version of the event to the prosecutor he said oh i wasn't wearing gloves at the time and so i agree that it's i mean this was not a fact that is going to make or break the case but it was something in dispute and there was reason to suggest that he would have taken steps not to leave forensic evidence on the gun because he had this prior conviction and knew that he was prohibited from possessing a firearm in any event during the the this fact was already in evidence and the prosecutor was entitled to reference it and ask the jury can draw inferences from it the district court to a sponte decided to instruct the jury that that could be considered for a limited process  purpose and so even if there was any potential prejudice that was cured by that instruction and even if there was any prejudice that was introduced by the government it didn't raise rise to the level of flagrant abuse and the defense counsel himself asked the jury to draw inferences from that same fact opposite ones in fact thing you know this mr for a error is a felony and so he would be concerned about law enforcement finding the gun that might be why he gave inconsistent statements to law enforcement so neither the at the question on cross examination nor the statements in summation were in error but in an abundance of caution the district court did give  for read a warnings this court has decided are not required it needs to be a knowing voluntary and intelligent choice but how the district court judges judges that is is not assessed there's no strict colloquy required but i don't think the analysis would be different depending on at what point the defense fund chose to represent himself ross i but what sort of risks i mean is that it's in talks about the imperative of instructing a defendant the risks of representing himself or herself so none of that happened here right there was no discussion of that that's true except for the district court saying you either take an attorney or you have to go forward on your cell that doesn't really explain the risks and the prior occasions when the judge said ok i'm bill pointing a lawyer but this is the last one after this you're on your own again no discussion of the risks of going forward that's true and so i mean i asked ms nathan some the same question what sorts of risks should the court be instructing a defendant other than obvious pablum like it's good to have a law degree there are rules of evidence sometimes experience is a good thing well one of the questions that this court grappled with although in dicta was in the de leo case and this was in one of their footnotes in talking about how the war is how you frame questions and what arguments you make and all of this is a set is it is a defendant without a lawyer isn't it a substantial this advantage now i am sympathetic i have had to deal with this myself where lawyer you know and it's come in with you know for endless requests to change lawyers on the same the same grounds that are present in this case and i understand the judges for a stray sion but i'm just what you would say through a defendant and it doesn't take very long i think it bears noting that the defendant doesn't have to be found competent to represent himself as a lawyer would but rather competent to make the decision to represent himself and i don't just agree that appends on on a number of factors and and shouldn't he be told why essentially he's not competent there's no real question that it would have been preferable to have a longer colloquy and although the forever warnings are not required it is preferable to have but again based on the totality of the circumstances and all that occurred in this case and the defendant's conduct the district court could find that he was intelligently knowingly and voluntarily waiving his right to representation could but did doing this since he did not make an express finding but by allowing him to proceed pro s read to the to the to the judge to decide the issue based on the record a trial i believe you could remain for a finding of whether there was a harmless harmless error here or not it's certainly no i'm not talking about specifically harm or cerebral judge what would you have found would you have made the same finding based on the same evidence you would have heard a trial but you've heard of the suppression hearing why would we need a separate suppression here if we were going to rule in the favor of the opponent correct i'm not sure a separate suppression hearing would be required you are and certainly it doesn't sound at the like you're contemplating this but certainly the statements i gather of witnesses that never testified because the defendant said that they didn't have to testify he wasn't going to i don't know what he meant so it's not so this is not the same as the evidence that was at the trial this was other stuff that probably couldn't have come in at trial because it would have been hearsay but i wanted to focus on two things on the question of itself was i think inadequate the judge said that you can only use the information and he was a felon in order to determine if he was guilty of possession of a weapon as a felon but did not clarify that you could only use it with respect to whether he was a felon and not with respect to whether or not he was in possession of the weapons so the judge's instruction didn't really cure whatever air existed and and also to point out this there were there were perhaps but the question was whether or not the possession was a no win possession he said that he was in possession just because he and he admitted he handled the weapon which is what makes the questioning about the gloves so unnecessary but he it would have been i guess one would call a temporary innocent possession that the only reason he was in possession of the gun was because these car jackers had thrown the gun into his car and he handled it moved it to the back of the car or something like that so there's no question about that but again what what kind of position it was and the d a the government using too many state cases that the government in summation really used the fact of being a felon as evidence of guilt didn't didn't talk about  being a felon as evidence that he must have been wearing gloves but said this kind of person the kind of person who is a felon someone who commits a felony and and he was really asking the jury not to believe the defend and the whole case had to do with which version of the defendant story should be believed what he said a trial and what he said at the at the hospital and basically the government said don't believe him now because he's a felon so it was very prejudicial the only issue in the case thank you thank you thank you both will reserve decision