we are ready now for the fourth case for this morning united states against check email by christian counsel to be speaking for him and it's certainly true that stand by counsel who seems to me was was making a heroic effort to observe all professional  proprieties and in the course of the conversation he's making some very good points in the district judges hearing them but usually we think that you have to have two objectives are the lawyer for the defendant which is not or the defendant m jury which he did not do and told you know get him away from me i don't want to talk to him but the one time he really didn't object to stand by counsel's interruption was during the jury instruction conference when when sam by counsel objected to the court idea that it might not instruct the jury on materiality or might not adopt the party's standard instruction on materiality mr l b did not object to stand by counsel's statements there i did not directly object when standby counsel filed heard so my counsel can step in and to preserve the defendant's rights so how can we but how does the court know when he said he's rejecting standby counsel at every turn and then when standby counsel says he would object if he was counsel you don't have mr obey say it that's right on let i agree with him right but you also don't have him saying that's right he's not my attorney stopped him from talking in that instance for whatever reason he did not  out there it's actually much broader argument than an argument about planar on these instructions because there are a fair number of cases where people invoke their forever rights in their stand by counsel and if we're going to change that balance that would be a big thing but what about let's suppose we didn't agree with you and we thought we really do need two approaches under plane air or you know you've said that there's a directed verdict on materiality particularly when the district court uses this example where he says you know if they give you three hundred thousand dollars each you're not entitled to that's a material falshood that's fraud and that is an element of the charges so he says those things he does later say other things right that you know it's up to you to find the facts and so forth why don't those other things he says cure the problem with that you've highlighted i think the problem with that the statement that you just quoted is that it's not talking to the jury about facts it's talking to the jury what sounds like an instruction of the law and in other places that doesn't sound like an instruction on the facts that sounds like an instruction on the law and the government relies heavily both in the district court and no on the united states versus peace or peace a case from the fourth circuit the difference between this case  that case is that the district court judge in that case said if you believe the government facts beyond a really reasonable doubt you can find that that's not what this says this says is that if if you tell the i jury if you believe that the government says it's mr l bayfield a lot i think that's important distinction with each case so and even if we agree with you  error in terms of the government's evidence every element was proven it was not in dispute and so when that you're be harmless i don't think it's harmless because the only possible issue really could have been materiality and that is that the fact that mr all they had sent these in that was not an issue there was no real dispute about that in the iris rejected the first three and so the concept of any chance he pad of making an argument in his own on his own behalf so if you've been trying to argue hypothetically you've been his lawyer that the these returns that he was filing fine you would somehow make use of the fact that the first the first three efforts don't work they go off into the frivolous file or by right and they were identical to the next three offerings and it's just the middle to the four and five are not always easy to come up with but that's the defense that mr all they had and it was taken away from him by the district court it was around they really just think he was entitled to all this money anyway because the treasury was holding all of   the other two issues although they are separate issues it's really talking about the atmosphere of this trial in general and the prejudicial comments about mr el baradei and about the case in general really ended up by the end by the jury's charge to a direct conversation with the court and the jury about the court's about this case and about mr obey some of what we talk about it didn't happen in front of the jury but some of what we talked about in our brief did calling him a criminal you know you don't pay taxes you go to jail as you might counsel by the way also a judge into that office away from the jury attacking people on the street is similar to putting yourself in risk you know the i r s is not perfect but if you attack someone on the street you're still going to go to jail those biased statements by the district court in fact of the jury and in fact of this trial was such a prejudice that mr obey regardless of the nature of the evidence really didn't stand a chance from beginning he threatened multiple times to remove him from the courtroom both in front of the jury and outside of the jury's presence he limited mr obey his cross examination the very first witness and said if you disagree with me again i'm going to kick you out well as lawyers we all know that if i disagree with a judge i'm not going to get kicked out of the courtroom usually i'm hoping but that's a very defendant who doesn't know what his rights are doesn't know that he's allowed to respectfully district disagree and he stopped asking questions essential after that after that a nation finally the comment that a defendant doesn't have to testify doesn't have to present evidence of course zero is a lot less than the prosecution presented that's problematic in and of itself mr obey had no instructions for example on with this is on the burden there had been agreed instructions everybody agreed on the pattern instructions right and so did the defense didn't have any notice of how these would be said to the jury orally correct well my argument is that they had known as they thought they would be read we need a written those instructions as a great too but i mean as given now there was no notice as given that there was going to be any variation now and i that brings in this court case the harben case where the judge literally set out the ground rules and then changed them halfway through and and at that point there's really nothing even mr al baker done as the courts instructing the jury what do they do  different than what the district judge reverse said apparently and i think it's standard for them to go back to the jury they had a set of instructions that were written and then what was given to them by the judge and it wasn't explained by the which the concept of materiality is just passed in other things there's finally an agreement on what the instructions are going to say the written instructions are written up but the jury here effectively gets two conflicting sets of instructions they're holding the written instructions and they've just we presume listened carefully to the judge give the oral instructions they're not the same it's very confusing  that that in itself is is i think a troublesome aspect of this trial your honor the written instructions and the oral instructions that were actually given there were certainly deviations but those deviations did not contradict the written instructions that were provided the jury i'm not sure that that's right actually and when and particularly this area this business on materiality where the court may seem like just a word or two but the court is not phrasing this you know if you find a then b if you do this event at the court is flat out saying that as a material false or that's fraud and that is an element of the charges a reasonable juror could think well you know i have some job to do here but that's not part of it the court was using specific facts in its instruction and it's the w phrased those facts to what i understand is using specific facts the weight phrase those facts was if if you find these facts if these facts not what it says it's when with specific reference to our case if you if you tell if you tell the internal revenue service a lie which is capable of getting them to do something which they would never do if they knew the truth namely give you three hundred thousand dollars that's not the kind of use of the word if that your describing the court is stating facts that would support the conclusion that the defendant's statements were yeah but see after that and then after that after would judge  and if you find that those are the facts an element of the offense is and go you know go to the standard instructions that's not what he says he says that's a fraud and that's an element of the charges that is an element of the chart oh i know that and i'm saying what you're saying but he didn't say and if you find that that is a fraud the call that is an element of the show he says that if early is what he says but not later it's kind of b isolation that is correct but elsewhere the court doesn't struck the jury you must find these elements of the have been proved beyond a reasonable so here's the problem he sometimes says that and they've got the written instructions and then he says these other things it's very hard  for me to see what the insurance was instructed there's no consistency some of the instructions were somewhat colloquial but it was within the course discretion to adapt the pattern instructions in a way that it thought conveyed the law and as long as it is does convey the law and as long as it does leave the jury free to make those fact findings which are the jury's province yes your honor and in this case the instructions though they deviated from the written instructions from the read instructions they did not misstate the law did you read or did you judge read any of the agreed upon instructions or were all he learned he parts of them were quoted verbatim some of them were not so there were there any instructions quoted verbatim it sounds like there were one hundred percent verbatim no you're not or but there's every instruction had some variation or some different that does not mean that i understand doesn't mean is there but i mean and there was nothing that was everybody had agreed to the specific language and nothing was rigid that was in the instructions verbatim verbatim that is correct and especially in the wake of this long discussion about what is materiality really mean in this you know kind of philosophical to made about what's capable of influencing somebody opposed to really influencing as opposed to having an effect on and you know it's an interesting discussion but the jury needs ira to and i would argue the jury did have clarity here albeit it was not in the form of verbatim written instructions the court didn't tell the jury at the beginning of its charge that they would have copies of the instructions with them in the jury room and that they should refer to those instructions and they would that's the problem you know they hear the oral instruction and it doesn't say the same thing as what they have in the courtroom in their jury room your honor it is not identical but it is substantively the same well that's the issue right and i think the court didn't say in reading the instructions orally i was trying to make them a little more comprehensible or a little more understandable but the exact law in this case is contained in these instructions as direct iran or that's correct but there's also nothing in the record to indicate that the jury confused by these deviations well they didn't send a question that's why you're saying they work for you yes or no but if they also took it to mean that they had to make this finding of fraud no there wouldn't be any confusion if they listen to what he said the understand that's the government's position because that's the best you can do with this record but the question is would a rational objective juror a person you know we obviously are not invading the jury room but a rational person listening this think well i don't need to find the did to question fraud or i don't need to find the question that you're yalit because the court has told me dad and so maybe there are other things did e mail them you know what whatever other things there were in the case beyond a reasonable doubt it is your job as a fact finder to find these facts to decide whether the government has met its burden on these elements it reiterates the government government's version at least twice through out these right and if it's doing that generically but not with respect to the material saul's hood of the three hundred thousand or the fraud then you have again a new figure situation for the cherry in the context of the charge of the whole i would argue it is not in  us the jury understood its provenance the court gave an adequate charge consistent with the law and there was no error here just because the court chose to use facts derived from the case well nobody would be thinking of saying that that was wrong it's the way it's done you know it's how clearly it communicates to the jury what their role is first this what what the court's role is although the other thing i wanted to raise with you  reminds me of some other cases we've seen where judges have let's just say injected too much extraneous opinion into a proceeding and the check was pretty harsh with respect to mr el baradei and his losing his temper her in news is not conveying let's say the ideal courtroom demeanor this is an exceptionally difficult case for a variety of reasons but most of those reasons were due to the defendant's continuous disruptive kosher and you know you could ask any judge downstairs you know most of them had a sovereign citizen case in some point and they've all had difficult defendants and it's not your favorite day at work probably you know but that's part of what you have to do certainly your honor but i would argue with rare exception the district court actually showed extreme patience with the defendant he attempted at every stage of the proceedings to instruct the defendant on the relevant law in the proper procedure he was extremely patient with the defendant's lack of knowledge about the law and he wanted him to understand that the difference between representing himself he wanted to be in to be comfortable in front of the jury and where he felt like he failed he addressed that with the jury well and you know what your your opponent has quoted page ten of the brief yes he says you don't know the law but he say you don't know the law because this stuff that you've been shoving at me for the last month about the stamp act about the foreign sovereign music and so on that whole excerpt i mean that's one way of saying you don't know about the law but he's it's a pretty u nbuttoned set of remarks yes your honor the court could be harsh at times but in the context of the trial of the whole those remarks do not reflect biased by the court court did express occasional i would say argue even nat frustration at some of the defendants antics but it also attempted to guide the defendant to encourage him to consult stand by counsel and the defendant rejected that advice and rejected the court's rulings about the inadmissible evidence that he was trying to advance at any point he felt like he could get away with it and that's where the court was attempting to do when it correctly limited the scope of cross examination of ms mor and on the right not to testify in the burden of proof because he says as i said earlier there was no burden on the defendant then he goes on the say so of the fin and doesn't have to testify doesn't have to put in as much testimony as the prosecution that's a little not a decisive consideration your honor i think a fair interpretation of that statement the court heard what it said about not putting in as much evidence the prosecution and corrected itself immediately zero being what the defendant was required to put in but that's not quite again what he says when he says zero is less than the prosecution did and is isn't there a risk the jury's going to hear that if you don't have anything on the other side of the prosecution the prosecution wins a jury is still untitled as you well know to reject the prosecution's evidence or to find that it doesn't cross that boundary and to beyond a reasonable doubt even if the defendant hasn't said a word your honor even with in excerpt this excerpt from the jury instructions the court reminds the jury of the appropriate burden of proof elsewhere in the jury instructions the court emphasizes repeatedly that the burden of proof is beyond a reasonable doubt that the defendant is not required to prove his innocence and i quote he's not required to present any evidence he's not required to say anything if he doesn't want to the burden is on the government the idea that any reasonable jury would interpret this isolated comment somehow impermissible commentary on the defendant's right not to testify or shifting the burden off the government it's it's it's just it's not rea closing i would say this was a very difficult trial and it would have been a difficult trial for any judge and it was a difficult trial in large part because of the defendant's decision not merely to represent himself but his persistent attempts to undermine the district court's rulings and trial process the district court did its best to maintain order in the courtroom and to limit the jury's exposure to meritless arguments and with rare exception the district court was patient with the defendant and  it was patient the defendant and none of the isolated comments cited by counsel suggest bias by the court against the defendant before i close i want to respond to briefly to counsel's argument that explain errors standard does not apply here even putting aside whether or not stand by counsel could be said to have represented the defendant it's the government's position that he had no point represented the defendant below the timing of the timing of the phrasing of standby counsels comments during the jury instructions simply not enough to meet the timeliness and specificity requirements of will thirty three i don't think that's your strongest argument i mean at the fact that mr el baradei is rejecting standby counsel is a pretty powerful sacrament i didn't have any trouble reading what standby counsel said and understanding what he was talking about with respect to materiality with respect to the elements of the offense and so forth it seemed to me that you know he wants to get the pattern struction that's very specific so  if you got beyond that first hurdle i'm not sure there is such a problem the first hurdle being you know mr obey saying you don't represent me you honor stand by counsel during the jury instructions posed a hypothetical situation where he positive he might object if a particularly after instruction was not given he did not object to the actual instruction no one because he couldn't he saw himself as not in that role your honor i would argue even if he saw himself in that role this would not have been sufficient to preserve this issue for ok i would like to respond to the idea that these were isolated comments by the district court in fact i think what was isolated was his patients he did have some patients with mr l l day but the vast majority of their interchanges  harsh and inappropriate for the courtroom mr obaid was putting forward a theory of law that most of us in this room understand is not buyable but he is one of many defendants we have all faced that have done this and it has to be handled in a much different manner than that and finally i can't can i just ask you about the false claim instruction so there was an oral instruction i meant to ask this earlier about the false claim in the written instructions therefore clear elements that have to be proven and those elements spelled out the oral instruction on false claim does not include all four elements right and he makes a reference and again as with the four elements of the mail fraud charges if you find any one of them the government has failed to prove beyond a reasonable doubt then you should have quit but he doesn't identify them as for during his oral instruction that's only in the written instructions that they had that they had to find that mr obey did not make a false claim where it should have been to the government prove that he did make a false claim so and that's make my argument regard the idea that that he presented zero evidence and that's a lot less than the government presented they just they weren't complete and whole you know there's a reason that we have jury instruction conferences in the parties submit proposed and structures and come to an agreement the judge is more than welcome to give instructions that the judge believes accurately convey the law but should tell the parties this is what i'm going to say if you object make your record now and not  say ok ok i'll say what you're going to you want me to say and then you know switch train tracks halfway through the trial that that's the bigger issue here with very small parts but i it is absolutely the whole of the jury trial that needs to be looked at in this case and looking at it and honestly under any standard review mandates reversal thank you card thank you very much we appreciate your taking this case on  your office and thanks as well to the government will take the case