up as i read the briefs i don't see a genuine dispute between the parties that the operative fred a colloquy from april of two thousand and eighteen was itself deficient under the three factor framework so out of the gate that puts us in a legal posture where not only does the government or the burden and i'd only as the court asked by the case law to indulge every presumption against a waiver but we also find ourselves in the limited and rare exception of the could use the dan thank you understand every word yes thank you  but we also are in the limited and rare exception of potentially finding a waiver if any outside of the actual threat of colloquy itself and so that puts us in a place where we need to look carefully at the government's evidence and support of squeezing itself into the limited and rare exception so let's please go through it st the government sites mr craggs arraignment which you can find it supplemental excerpts fourteen thousand two hundred and forty six now the problem with the arrai honour's as we've said no reply revisits legally irrelevant because as we know from the court's case law we only are concerned with what the defendant himself said and understood and not what the court said and understood and if you read the arraignment transcript mr craggs is not one word the entire time so we don't know what he said or understood we don't know if he was paying attention as far as the transcript is concerned he may as well not even then but then did the magistrate judge it by the and eighty eight which says clearly that we're only concerned with what the defendant himself and this makes sense the only concern with what the defendant himself actually has represented he knows and understands and so we don't know what what mr understanding if any mr cragg walked away from that hearing with the government also tells us that mr craig presumably learned the relevant information from his prior lawyers and the use of the word presumably is a death knell for that argument itself because as we just discussed the court is actually asked by the case law to indulge every presumption against a finding a waiver not the way the government is asking you to pursue the government also cites supplemental excerpts of record eighty four where mr craig says i've been made well aware of all these facts and charges now that i was at a prior representation hearing and that transcript similarly begs the question what was his understand he's referring to charges in the plural when in fact he was charging a one count indictment with a charge so we don't know what he thought and even if that did somehow speak to the issue of the nature of the charge it also leaves unstated anything about the potential penalties that still leaves one factor on addressed and much time representation and absolutely nothing about the penalties and the nature of the charge so if anything that tells us that judge listen mr craggs case was consistently misapplying discords clear three factor test to take a lawful for a waiver and then finally your honour's the government talks about mr craggs personal characteristics and we also know from the ballo case among others that unless it's really really specific to law it's really basically irrelevant and none of the personal characteristics that the government is citing about mr cragg speak in any way to his ability to effectively represent himself  in a federal felony criminal trial and so ticking off all of these factors which is really the only good evidence the government has cited i would refer the court back to the forrester case which i regret i didn't cite in our opening brief but i caught it for reply thankfully and there's a there's a short sentence i'd like to read your owners from five o seven and this is where the court wrote of course forrester may have correctly understood the charge against him and the potential penalties but the government has failed to prove that he did and that's really really really similar to what we have here there's some evidence in the record that he might have been exposed to these facts at some point but if you if we faithfully apply the government's burden if we faithfully apply the presumption against a waiver and we faithfully apply the court's case law that we're in a limited and rare exception to the three factor test then the government simply hasn't put into any concrete thank you so again with respect to suppression the government has the burden and i'd like to refer your honour's specifically to excerpts of record seventy six this is to me in many ways the rub of the issue now this is a portion of the government's opposition memorandum in response to mr craggs motion to suppress and as a portion of that brief which the district court explicitly incorporated by reference as his own ruling and there's a couple double negatives so it's a little awkward but i want to i'm going to i want to go through with you what the government said and the district court adopted because it is a it is flat wrong under harrison and tingle it's an error of law which disposes of the issue in my opinion this is where the government road that it's not a constitutional violation if mr cragg was told that if he didn't immediately confess his criminal conduct it would make his situation worse excerpts of record seventy six now under harrison the defense suggestion that he was told that if you told the truth you'd receive leniency but that if he did not immediately confess his criminal conduct it would make a situation worse doesn't establish that his statements were involuntary and obtain a violation of his  then rights that's an incorrect statement of law because as we know from harrison and things will if in into if an interviewing agent or officer in fact tells the suspect that his he'll be punished for  the confession involuntary so that's an in that's an inaccurate statement of law adopted by the district court and so if we can look at the evidence that makes out that violation the most egregious and the most and timing wise the most important come from excerpts of record two hundred and thirty one that's where detective read says and if it's something you haven't told us it could work look worse later on down the road i'm having a hard time imagining any meaning of that other than if you don't tell us you're going to get in more trouble but yet of course we have the th amendment right against self incrimination that's a violation same page excerpts of record two  down the detective says because when judges look at something and they go ok here's a person a did something wrong they were either lying about it and you know basically if you pardon my french  i don't know anything or they were like you know well you know here's everything judges tend to look a little bit more like this person has some remorse now this comment is in great cooperated or had not cooperated now on that one question alone the court threw out the entire confession and that is pretty much exactly the same dynamic we have here on excerpts of record two hundred and thirty one dollars which the government has referred to as a fi binary choice if you just say by yourself by by itself you can get a benefit for cooperation i have no issue with that that is solid under the law i can't complain about that but when you combine that with you're going to get punished honour's to put even more under harrison we have mr cracked opening the floodgates of his in corporate tory statements right after this that's when he starts and you can tell that that's what the that's what exactly what the detective was trying to do because he starts this riff by saying look at me i get the you're being apprehensive i get a bill like here's what's going to happen blah blah blah you're going to get punished for silence that's what happened and so that was exactly what the court held in harris into the note at the court noticed that once these improper statements had been introduced to the defendant's mindset that's when she started talking that's exactly what happened mr crack that's when you started that's primarily in this case that he made after the warning was given i think the most important categories were number one he gave up search terms that he had used and if you recall what his defense was it was that he liked a particular kind of adult pornography but when he typed in his search terms it pulled in contraband material as well and so then his habit was to sort through it all and keep the adult pornography he was interested in and so the search terms was hammered very heavily by the government at trial and the other one was the other major category writers which i'm sure was not impressive to the jury was when he made comments about how he finds he found certain aspects of child pornography interesting even though it wasn't his particular pornographic interest actually he kept it for a while he did and that speaks to the jury instruction good morning your honor this may please the court ross pearson for the united states the focus in the forever inquiry is not on what the district court said there's no script for the district court to follow it's on what the defendant understood and in this case looking at the whole record the defendant understood the penalties and the charges he was facing and what do you base that comment that what the defendant understood can make it pretty clear that government bears the burden it's a rare because an earth came the court notes the defendant was twice stated the penalty is wrong during his for the inquiry and then the court proceeded to look at the rest of the record to see if there was any indication that the defendant actually understood what they were and then make dollars that it would be a different case if the defendant had said later on perhaps at sentencing that he had understood the penalties all along and in this case that's actually exactly what we have now craig filed further excerpts of record from the morning of trial which would have been about thirty days after the fraud a colloquy and at those excerpts of the record which is f e r three the prosecutor might try a partner correctly stated the penalty and craig was asked about that and said i'm well aware of that this is only thirty days after the ferrara inquiry prior to the inquiry he had also seen was well aware of what the penalty of the penalties and where in the what did the court say to him and when he responded i'm well aware of that it was it was a very short colloquy the prosecutor stated the penalties the court asked the defendant if you understood that and he said yes i'm well aware of that at the time of sentencing that was that was the morning of trial which was thirty days after the ferrata inquiry and so this is the this is the situation the limited exception that the earth can court specifically said because the question is what the defendant understood when he waived his right to counsel and then decided to after and filing processing motions and doing all sort of defense work but here we don't have the same situation well your honor we have him saying that he was it's the two prongs that he has to be aware of though and are three prongs and the rd is the dangers of self representation which he's not disputing the morning of trial he also filed a lengthy motion which i noticed as i was preparing for argument  it's not in the excerpts of record but it's at c r ninety three and in that motion on page fifteen the sixteen he raises a number of issues with prior turns and he even says that at one point one of his prior tourney's told him that he was facing charges for possession of child pornography and he personally corrected him saying no i'm facing charges for receipt of child pornography charges again certain that that's my summary of it he specifically says though my attorney  more than just issues of waiver barbiturate i mean how can we be totally prepared to understand a case and talk to you about it if you haven't but step on the excerpts of record i apologize your honor it is in the record as a whole though were supposed to go looking to the record of as a whole as we look to forty cases a week your honor i would be happy to file something after the hearing to highlight it for the court's attention but it's part of the whole record and it indicates that the defendant didn't know what the charges were he specifically said what the charges were and since he had made that comment to a prior attorney before he was granted his right to represent himself that indicates that when he was granted that right he also knew what the charges were he was also correctly advised at arraignment and you know all of this trying to cobble all these things together to say to prove now after the fact that this defendant understood at the time of the waiver that will penalties he was facing when he waived his right to have counsel is it seems is that it would be so much easier if the u attorney had just said judge i'm yelling you haven't advised him about the penalties you need to do that and you had taken care of it right at the trial well your honor the crew was x part of it was during the defendant's motion for a new attorney more robust it would have solved that but that it's not the question there is not magic language for the district court to use the courts still looking at what the defendant understood when he decided to go pro se and what distinguishes this case from all of the cases that cry relies on is there is also no misrepresentation erskin for instance the defendant actually twice misstated the penalties in forster the court incorrectly advised the defendant of the penalties and the the force or court said you can look to arraignment but in that case even at arraignment the defendant hadn't been correctly advised of the penalties rylan or the defendant filed multiple documents that indicated he didn't understand the nature of the charges what  is the government's best taishan showing that mr craig had a full understanding that he stated about the potential penalties in this case of the morning of trial where he was advised of the penalties and said i'm well aware of that and this was only thirty days after he decided to proceed pro se he didn't you a double take your indicate that he did he was surprised with respect the whole idea of the earth and inquiry is whether he should represent himself and if i understand you correctly you're saying thirty days after he began to represent himself on the literally on the day of trial when he himself had prepared to represent himself only then does the question come up you know what the penalties are  statement it's mostly i think ok so what am i missing you're missing that the question is what he understood at the time he decided to represent himself and bearskins says that to the extent that there's information after the that would indicate what he understood at the at the time he decided but what you told me if i understood you correctly he didn't say you know thirty days ago when we had the forever hearing i understood that the penalties were x right that's right so how do we know when he says on the morning of trial what he knew at the time the court approved his representing him so you know it because there's no indication that he was surprised by it that he said it but it's the government's burden right it is your honor and he was advised correctly the st day he would appear in court at his arraignment he was given a penalty sheet the penalties were correctly stated on the record he never said that he didn't understand that he said multiple times that he'd been made while aware of the charges and the penalties and he even filed a motion saying what the charges were so as my colleague side of the harkness stage that this is supposed to be a very rare kind of a thing where you don't have something really explicit why does this case meet dept requirement because the defendant has a constitutional right to represent himself and it's protecting that right it's not just his right to an attorney it's the right to represent himself and this case there is no indication that he misunderstood what he was getting into there's no indication that he didn't know what the penalties were or that he didn't know what the charges are with respect counsel i maybe read her skin differently than i do but my understanding is new got this three prong test and our case law says that if the court has explained each of these things him and is convinced that the defendant knows and understands what each element is then the court can let the person represent himself but if the court ever says it's true what the penalties are  it doesn't work i don't i don't see how you get around that how do you get around it it's because it doesn't dictate what the court has to say it just says that the defendant has to understand it and every time the court's reviewing a fret inquiry at this phase it means that the defendant has represented himself and has lost a trial and the court's looking somewhere else in the record and that's what in effect you're taking the burden away from the government then you're putting this requirement about an understanding of the penalties into some amorphous cloud you know defend understood this because it's up in the cloud it doesn't work i'm not trying to take the burden away from the government i'm saying that it's in the record where the prosecutor says what the penalties are and the defendant says i'm well aware of that and that relates back to thirty days earlier when the defendant decided to exercise his right it doesn't matter is that at the date of the court's granting him permission to represent him and so we don't know one way or another whether he understood it thirty days later you claim he did but he didn't say i understood it thirty days before so do we not have to presume that the statement was not made at the time of the forever hearing and because of that we don't know whether the burden under ergen was met no your honor i think you can be confident that since he says i'm well aware that that time he was told all the penalties and sentencing that relate back it depends on what he indicated his understanding was so if he said that sentence in yes i know that i've been aware of that then it would relate back and that's what the court talks about a nursing i'd like to briefly move to the suppression issue and the reason this case is different than harrison unt because the message and the timing is different than both of those cases and in this case the message that the officers were telling craig since he had already started talking to them in confessing is they were telling him not to lie if you was going to be talking he shouldn't lie they confront him by saying it's time to come clean time to be honest and then that's when they say that they've found files on his computer and they're going to analyze his computer and if there's something there that he hasn't told them about it could be different later road isn't that more about being silent about something rather than lying about something you know because the officers had already knew what officers were talking about and the context is that they had already found child pornography downloading on his computer and that they were going to analyze the computer and so in that context and saying since he's already talking if you're going to continue talking to us it's important to tell the truth there and i also want to point out that craig makes the argument that this statement at your two hundred and thirty one is what open the floodgates and then elicited this confession and effectively it's the same as harrison because that's the statement that broke his silence that's not what actually happened there was about twenty pages of transcript the officers made the statement at your two hundred and thirty one and then there's another twenty pages of meandering conversation where they cover topics such as his hobbies his computer building his time in the confess he does and he had already waived his right to remain silent and started talking in the officers and that's what what they were telling him is if you're going to continue talking to us it's important to be honest the point that craig made was that the search terms were really the key thing that he confessed to those search terms didn't come until you are two hundred and fifty three the statement that he says open the floodgates was at two hundred and thirty one and there was lengthy conversation that was just small talk about peer to peer accounts or computer building your hobbies not now under arrest at this time largely he was detained for purposes of miranda he had not been actually arrested and they told him right i think if i'm interpreting the court correctly i agree with the court's understanding of risk and what happened on the morning of trial was the usa made it crystal clear articulation of what the penalties were in front of mr crack and then the district judge said do you understand that and he said yeah i'm well aware of that so he sounds to me when i read that transcript page it sounds like he's well aware of it because the usa just said it and there's no evidence that that's not the case so if it was he was trying to do is try to button up the fred a call me because he saw this problem coming down the road but what he should have done erskin was well on the books by that time you could have said were you aware of that fact that the ex parte hearing where i wasn't present mr crack or something like that that didn't happen so under erskin there that relation back doesn't happen again we're presuming in favor of waiver again instead of presuming against waiver for purposes of understanding er skin that speaks as of the time that the district court in this case allowed mr craig to represent himself as a correct not a later point i don't think i i was going to three prong requirement yes those requirements have to be fulfilled before the district judge in this case allows him to represent himself as i correct correct so in this case the government is saying well thirty days later at the time of trial when he was already representing himself for thirty days that he became aware that as you point out the usa stated on the morning of the trial what the penalties would be the district court said do you understand that he said i'm well aware but as you pointed out he had just heard the president yes but it doesn't say anything with respect to erskin and so my question is when we construe erskin that we're really talking about what the district court in this case knew at the time that the district court gave permission to mr craig to represent himself not what happened later on that that's correct and that's that's what considers can said yeah if you want to look at evidence from later on down the road in the record that's ok but there has to be some concrete