may please the court my name is arthur mones i represent mark evans i would like to reserve three minutes for rebuttal and also like to focus solely on issue one mr evans would rest on the arguments presented in his briefs on the remaining issue unless there are any questions the issue i want to discuss is the forever right to self representation but more broadly this case concerns the right of an indigent defendant to manage and control his defense this right is taken for granted for those clients that have the means to hire and fire lawyers but for the indigent defendant who was appointed counsel he obviously does not have that right to pick and choose his attorney for this reason this forever right the right to self represent to represent oneself is critical and must be taken seriously unfortunately in this case mr evans although clearly and unequivocally requested the right to represent himself this court denied summarily that request without holding a hearing or seriously considering his request or just talking about the sensing right that's well judge i'm talking about the sensing hearing yet that is correct just as a practical matter if you gets the right to represent himself what better could he do than what would put in there say he would put in if he was representing himself there is judge and i think first of all i'd just like to point out that obviously here in federal court the sentencing phase of a case is extremely serious most of these are resolved before trial and sentencing there is a vast discretion and this judge had an incredible discretion on what type of sentence to impose mr evans  asked to represent himself because he clearly had a disagreement with his court appointed attorney on how to present his mitigation how to present evidence in rebuttal specifically concerning the weight which is one of the issues i raise but but there are other issues mr evans indicated that he wanted to call witnesses i'm certain he would have wanted to prepare and submit evidence that his attorney did not submit that sentencing obviously what the ultimate outcome would be could be better or could be worse whether mr evans was representing himself but the critical point here of course that he does judge yes and i have a lot of education  no education there just from reading the transcript i can tell you that mr evans has done a great deal of research he is obviously serving conserve amount of time but he has spent a lot of  time with the facts of this case and this is a very fact specific driven type of case with lots of witnesses and lots of parts no one knows the facts better than mr evans and i think that is one of the reasons why his request to represent himself should have been taken seriously in this case it seemed that it it seems like he was focused on motions that counsel wouldn't file rather than the sentencing proceeding when he was asking for new counsel for judge you're right at the beginning of the case he started to request substitute counsel on he had disagreements with his lawyer on on several issues one being he felt that he wasn't being provided discovery in fact there was a hearing about that several months into after he was appointed i don't think the client had discovery six months after the appointment so that was kind of the beginning of the problems there were motions that he wanted his attorney to file perhaps some of those motions would have been well founded but once it got to the point where it was clear he went through a trial with an attorney he was unsatisfied with that attorney's performance he got to the point where it was clear the judge denied his right for substitute counsel there was still a very critical phase in obviously that's the sentencing phase mr evans wanted to present evidence to challenge issues it were going to affect his guidelines and for that reason i think there's an arc of dissatisfaction with the council that he had there were requests for the council to do various things that the council  chose not to do but ultimately want mr evans realised this judge was not going to substitute counsel he did decide that he was going to be better off representing himself to make sure that he could present the type of defen judge i believe that the procedure should be i believe the case should be remanded for a hearing just for a forever hearing and based on my belief in discussions with mr evans and reading the transcript i don't think there'll be any doubt that he will be granted the right if the judge actually holds a colloquy and considers the issues that he needs to consider about whether or not mr evans is knowingly and tell him gently waiving his right to the assistance of counsel i don't think there will be any doubt that he will be pretty provided the ability to defend himself so at that point you will be defending yourself your honor and then is it a complete do over in your estimation i believe it's a complete do over as far as the sentencing that's i mean your sentence yes your honor and for that let's go back just a second maybe to more a more fundamental point for obvious reasons you contend not only did he did he have the right to self representation but that the feel you're to provide this for a hearing was structurally or so then we don't get into what he would have or should have or could have done correct yes room has the supreme court said that the right of self representation in structural error in the absence of that also extends to sentencing as well as the trial itself there's a six circuit does the supreme court said i don't believe so honor i don't believe space pacifically said that so if we if we then go to our precedent which of course is binding on us one of the cases is united states versus jones and that's one where the court for example says thus we may safely say that a criminal defendant in federal court has a right to represent himself or herself at sentencing so that would be at least arguably an extension of what the supreme court has said correct i agree judge now we go on and we read about what they said in jones probably probably they clearly say that the right of self representation is limited accordingly and what they're talking about in limiting it accordingly is the genesis of this comes in connection with your right to represent yourself before a jury and the court seems to me to say that if there's not a jury either because it's been it's a bench trial or obviously it's not a jury and sentencing then maybe there are some  that make some sense i'm following ike i gather it makes sense or not you're following me or as there was a really good answer like that that was a good answer so here if there are these limitations then that seems to me even based on what we've said in the six circuit that seems to be somewhat different than saying that it's a structural error in connection with the lack of self representation that sentence what would your response be to that which my response is that in looking at the right to represent oneself i think it's helpful to look at the right to the assistance of counsel and i don't think there's any doubt that if the assistance of the right to systems of counsel was denied the defendant at sentencing that would be considered a structural heir and there would be no question that would go no further but jones says there for the defendant's right to suffer presentation is satisfied if the pro s defendant is allowed to address the court freely on his own behalf and of disagreements between counsel on the pro se defend on a result in the defendant's favor whenever the matter is one that would normally be left to the discretion of counsel and then it goes on and talks about sentencing so sentencing that were i disagree however is a couple places number one i would just argue that because the court made it clear he was not entitled to represent himself on november twenty eighth that the hearing when he requested that right four separate times he was told no mr evans was not in a position to adequately prepare he was not in a position to subpoena witnesses to testify at that sentencing if he so desired to do  so and so there was a number of things that mr evans could have done and probably would have done had he been granted the right to represent himself well let's talk about that for just a second because that's i think at least in part what we're all concerned with here when you look at all of the pro se motions that he filed and you try there there would you agree they're pretty rambling so a little hard to figure out exactly what he's saying a lot of them that's fair but if you if you try to  what he's complaining about it seems to me to be overwhelmingly complaining about what happened at the trial the government presented knowing perjured evidence and so forth it's very hard to find anything in all those things that he was concerned about that actually were relevant to the sentencing itself so if we do get to the point of what would he have done or why should we send this back it does seem to me that under jones were we would be entitled to give some consideration to whether there was some something that he wanted to do at sentencing that he was prohibited from doing is that fair judge i think i would take issue with this in i think throughout all  motions there is an underlying attempt to demonstrate that the factor concerning the amount of marijuana involved in this case was  grossly over represented in the p s i i and ultimately found by the judge whether or not this court agrees with that assessment that's clearly something mr evans wanted to attempt to demonstrate  finding of fact and consider the evidence presented at the sentencing there's a myriad of witnesses including corrections officers that mr evans that different times attempted to to subpoena and have testif but normally that decision would be predicated on what had been actually offered at the trial in a sensing you get witnesses that are called if there wasn't a trial say there's a guilty plea and then there's a dispute about quantity where you don't have a trial record to base it on but here you have a trial record upon which a jury has made its determination that's correct and if the judge makes the decision based upon the facts in that trial record granted both sides can argue their version of what those facts show but he actually did that didn't judge but he did not have mr jones did not have the ability and his he did not have the full  attempt or or right to demonstrate to the court why that finding of fact was inaccurate by calling other witness that's correct is it an unequivocal demand for sel for presentation if you keep reiterating i wanted different lawyer no it's not but that's not what happened here mr evans did that  minimum well it's if you if you indicate to the court i want another lawyer but if you're not going to give me that lawyer i want to represent myself that's exactly what happened in moore v havilland and that was two attempts when he asked to go pro the credit issue here the defendant did not make a an unequivocal request a clear and timely unequivocal request to represent himself as the courts of noted when we're dealing with the issue of soporific representation we're dealing with two sides of the same coin on the one hand the right to counsel on the other hand the right to suffer present ation is it is an unequivocal statement that i don't want this lawyer i would like a different  but if you refuse to give me a different lawyer i want to represent myself your honor that enough going to that that is not an unequivocal assertion of the right to represent oneself here and in the that non not unequivocal your honor because of the context here as as i was saying the very first thing that the court i met i'm asking my statement is true why is that not unequivocal if it's a two step position but it's very clear in the ultimate position is that if you if you were going to give me a choice between this lawyer and no lawyer then i want to represent myself and i insist on representing myself because i think in this in this particular case i want you to focus on my question and then you can distinguish it from your case but i would like to know whether that is a sufficient statement a sufficiently unequivocal statement of the assertion of the right of self representation on the contrary it's not unequivocal it's an impulsive statement made when the court has has made a ruling that the court would not substitute counsel at the last minute before before sentencing here when the when the if i'd like i just please focus on the hypothetical not this case ok how do we know that it's in the whole sort of without inquiring into whether it really whether it is impulsive or considered position because because when a defendant generally equivocates between wanting counsel on the one hand and then not wanting counsel and makes the assertion that well i want to represent myself if you're not going to let me have the sawyer courts can and should treat that with some skepticism because what we're what we're dealing with with the defendant in that case is the court is having to act as referee to make a determination is this person want to be represented by counsel or to submit this person want to represent themselves so is it possible are you allowed i mean constitutionally can one say i would rather have a new lawyer but in the absence of that i will represent myself rather than have this lawyer ken ken someone take that position and assert a right of self representation or does one have to say i don't care who the lawyer is i want no lawyer whatsoever i want to represent myself there's no it's impossible to request made that i want to represent myself but there was actually a follow up the following day in writing that i that i want to represent myself and there was a essentially there was a deliberative act on behalf of the defendant in that case to say you know no i still want to represent myself by contrast here we didn't have that we had it in the context of the november twenty eighth hearing that that i want to represent myself and then we actually had subsequent per se motions be controlling he's he's asked to represent himself arguably on the twenty eighth and the judge said no so why why is that make a difference that then after that he's still quibbling about this lawyer the that i think that that more versus how it is instructive in that regard because you actually have some distance between the impulsive statement made made in court well then i'm going to represent represent myself if you're not going to appoint a different lawyer now i'm not going to make any change if we come back and it turns out that that you guys haven't not been a been able to work this out as they had demonstrated various times before then you know them well basically will take it up at that point believe it's out of the circuit about impulse requests to proceed per se should be treated with skepticism and they use the word impulsive their yes your isn't that exactly the reason why you would have for at a hearing to determine if it was or was not impulsive well in your position that the having to read a hearing itself has to be triggered by that unequivocal request given the context of this saying he wanted counsel that he didn't want counsel in the context of the november twenty eighth hearing initially two times to start out the hearing the judge said now let me be clear you're not asking to represent yourself and you  want counsel to which the defendant replied yes sir and then there was this there was a second question as well saying now you're asking me to appoint a new or yes sir and then it was just several pages after that in the in the  in transcript in the course of the hearing that the defendant said well because i can't raise these fees ineffective assistance of counsel claims and basically rate that bracing to say the issues for a motion for a new trial he was dissatisfied with the with the results of the trial because of that i want to represent myself but your position whether it's structural you're to not accord the right of self assuming that you adequately invoked it at something as opposed to a trial your honor it's our position that it would not be a structural error at sentencing all of the case law that discusses it being is a structural layer is in the context of software present in at trial so when you have a case like this with all these pro se motions many of which seem to raise issues directing the court's attention back to what happened during the trial as opposed to the son saying how do we really parse out what he would or wouldn't have done at the sentencing well with regard to some of the some of the issues raised by the appellant an argument there was some question about whether he would have tried to subpoena witnesses and i think it's important to note that that he did do that he had contacted relatives in order to get addresses to give that information to his attorney and his court appointed attorney did in fact make those efforts to subpoena witnesses so it's not like he was completely deprived of that and furthermore he made various arguments at sentencing itself to some extent the district court allowed him to advance certain arguments with regard to the calculation of the quantity for example  the court considered those and made rulings accordingly well mr mullens suggests that these witnesses at least insofar as the drug quantity goes would have been somebody that had some knowledge about the the marijuana being smuggled into the prison you just mentioned he got addresses of relatives so i'm sorry i couldn't hang to do a quantity you're on i think i like with regard to there was that there was a statement  there's a statement where in the in the sentencing hearing where the defendant had contacted a relative for the purpose of getting addresses for various and individuals on the outside and individuals who may have may have testified before the grand jury and the government made the point at the time that there were individuals who were called and subject to cross examination by by the defendant on as as to those why they were called or they were i think that there were some individuals that that the defense wanted to call but for privilege for the moment privilege reasons were unable to if i recall with with regard to the request for replacement counsel that is actually an issue that should be were reviewed for abuse of discretion the the the representation well your honor i think that the two are related because the court interpreted the request for a replacement counsel in the request to represent himself as a request for replacement counsel and so when the court was administration just that but his complaint is not that the court did that it's that the court only did that that if he said ok then i want to represent myself and the court stopped and didn't go further so i grew just slightly he's not he's not making a claim here that he should have been given substitute counsel he's making a claim that he should have been permitted to represent himsel f i agree with your honor i think that the that the issue is in terms of looking at what the what the district court did and why it did it and i think i think that it's it's the context as i've as i've said previously that the court treated it as a as a request for placement of counsel and did the proper inquiry into it i think it one point when when the defendant said i want to represent myself a court seemed surprised by that and said so why didn't realize that was where we were going and that's understandable that that's where that what the court was thinking based on the fact that he had made two statements at the beginning of the hearing that he actually did want coun the imposition of consecutive supervised release sentences you both agree that that's here is or does the district court have to have another hearing to correct that error and the reason i'm asking that is if there's going to be another hearing are we spending a lot of time worrying about the scope of that hearing that we don't really need to but your honor i think i don't want to i don't want to speak i think i think that however that that  a technical issue like that could be resolved without a hearing but i just sent it back have them enter a new jancee that eliminates the consecutive nature that's one possibility in your mind one possibility your honor or if that's not correct and there has to actually be a hearing i'm not sure what would be accomplished at that hearing but at that point i assume what the defendant wants years he wants to actually be able to remake sentencing arguments that he feels he did wasn't fully able to make at the time of the original something well your honor if the only issue that's going back to the district court is the issue of consecutive supervised release i don't think that the defendant would be in a position to want to address your questions concerning the structural error and and specifically jones i just want to focus on on this opinion because in june the court made it clear that in a  case where counsel conflicted on questions of strategy for example and i'm quoting reversal it may have been warner to if the district court resolve the conflict in favor of counsel jones rights to self representation would have been violated and basically in jones there saying yes there could be the situation where it was an error but in other cases and i would argue such as mr evans case where he clearly was in  disagreement with his counsel on how to proceed on a number of issues this would be structural error i also think wait wait just a second there let's assume for a second that all of those issues related to his requests for his counsel to complain about what happened at the trial in a way in which it would be irrelevant to the sentencing you mean that except that promise but let's just accept that for a minute why would that still be structurally or in other words you're demanding that your attorney do something that doesn't have anything to do with the sentencing you don't get it so therefore it structural or up in that big structural error because the right to control and manage your own defense is so fundamental it implicates i'll argue first of all that implicates due process obviously protected by the sixth amendment or all the rights that are included in numerated the sixth amendment concerned this right to control your defense tax protester gets convicted he he then is facing sentencing any insists that his attorney argue that he is not a citizen of the united states and our taxes are voluntary so you can't make me pay the attorney refuses he asked to represent himself to make that argument to feel your to grant him the right to show up at the at the sentencing hearing and make that argument is structural here even though the cases make it abundantly clear in my hypothetical that those arguments are one nonstarters into even if they had some merit don't having to do with the sentencing but that's still structural or it is your honor because it's a personal right to defend yourself in the way you feel the way you choose it may not have any chance of success but that is the right that in and i think there's a lot of support for this in fred it self but why then in jones are they concentrating or talking about how it's important in the context of how the jury sees you and how the jury weighs the evidence i think in jones judge in that discussion they're talking about two sure the defense and allows the i'm sorry to stand by counsel's participation over the defense objections affect leo out counsel to make or substantially interfere with any significant tactical decisions or to control questioning or witnesses or to speak instead of the defendant on any matter of importance the forever right is a road that's that's the first prong here and that's the prong bit is still applicable at sentencing this right is so  in trying and this this right was enacted was codified before the bill of rights so enshrined it hasn't been discussed by the supreme court it has judge in the terms of and i think that the language in front of it provides ample support that this is a structural our at structural error at every critical phase of the trial and again i would just suggest to look at the right to the assistance of but i would also suggest is secondary to the right to self representation that is clearly a structural error if that's tonight at sentencing and for that reason alone judge i would ask the court to remain this case all right thank you