ok go ahead morning your honour's may please the court i'm here representing frederick cunningham who is the defendant the court below i'd like to reserve three of my minutes for a bottle if i may your honor is there were four issues that were raised in the brief in this case i just like to focus th those today and that is the issue of self representation i think it's clear from the record here that this defendant desired on the first day of trial to represent himself i think it's also clear that the district court in this case made no macdowell inquiry as to whether or not this particular defendant could represent himself at trial in this case matter of fact there was really no inquiry whatsoever as to  as to his ability to represent himself the only inquiry that was made was an inquiry as to the disagreement that he had with counsel that is a that is necessarily a separate inquiry from the correct inquiry that could that should have been made because the breakdown in communications or the disagreement with counsel would go if he was asking for substitute counsel he was not asking for that he was asking to represent himself at this point and therefore there should have been a  case we have cited in in the brief in this case to the case of more we have one we think that's clearly on point it's not directly on point but it's on point with regards to what happened in this case in the more case it was actually the third day trial that the defendant was asking to represent himself say the standard is appealing it is a dyno standard to review and i know that that issue has not been resolved by this court the  in in our brief we set forward that there is that disagreement i believe the government makes the argument that it is abuse of discretion and i did there's not been fold reefing i don't think on the why there is this difference what i've been able to determine is again it comes down to this conflation of a substitution of counsel issue versus the request for a constitutional right if it's a substitution of counsel issue the if it's preserved  discretion and that that is the correct standard substitution of counsel in this case we're talking about the right to self or representation which fred a says is clearly a constitutional right we've i think in a lot of cases said that when it's a constitutional claim and it's a preserve constitutional claim then the standard of review is de novo i think that this court should take this opportunity to to address that issue and make that finding that when when we're talking about self representation it's  words not address or resolve that issue it does not resolve that issue for number one in rhubarb what we're talking about is a review of a story state court decision under a post conviction motion regards was done actually prior to a lot of the newer cases that have come out which clearly limit this court's ability to make any kind of review of the state court's decision it does not it does not control what the federal standard should be in a federal criminal case and it doesn't give an analysis of the again the conflation between a defendant to represent himself or herself that the district court should grant that right now i think that any time what are you saying this standard any time a defendant asked to represent him or herself the court must make a macdowell inquiry at that point even if the court is ruling based on timeliness and unreasonable delay you're saying there are two completely and and didn't decisions absolutely dollar controls even if it is untimely and would delay trial in this case the problem is that if you have any case that goes that way let me go to let me go to this issue of this delay and that comes up in roberts as well and i think that the problem is that we've kind of taken what happened in roe birds and applied it kind of across the board you know the issue in regards was the concern that trial would be delayed by this request they were in them there in the middle of trial and so there's this issue of well if we grant this request then we're going to have to delay the trial and it's going to you know we've already got the jury impaneled it that would seem to indicate that if there's a request for care for self representation made then if you do you at least should make a determination of whether or not there would be a delayed trial because if there's not going to be a delay in trial in other words in this case of mr cunningham says i'm ready to go right now there's no delay let's keep going then if there's no  then there's no issue with regards to this robur too late untimely prejudiced request the the case law says that a defendant has the right to represent himself and it's not certainly it's not an unfettered right that we put qualifications on it but it requires at least an inquiry before you dismiss it there can't be a bright line rule the other way which says once the jury's impaneled you never get the right to represent yourself and that's in fact what the district court did in this case by making its ruling it simply said well trials already started therefore because trials already started it's untimely and we're not going to move forward with him representing himself that can't be the standard either so the problem here is that if we're going to put some sort of temple restrictions on this matter that it's got to be tied to well with this cause as a delay in trial would this cause a breakdown in the fundamental you know procedure of justice and the judge did not make adequate in effect findings or adequate reasoning couldn't have made any adequate findings or reasoning in this case because didn't even get into a macallan for in this case to determine any of the facts which would underlie any sort of reasoning in this case the only thing the did in it in it's kind of interesting because the this was actually brought up the first day of trial and so if you look at like joint appendix starting on page five eleven there is this in court in camera  discussion between defense counsel the prosecutor and the court in the defendant's not in the room at that time and in defense counsel says hey there's this problem you know my client is unsatisfied with the with the way i'm handling the defen and the court says well do you want me to make an inquiry of them and in open court and she in she at that point says no because i'm afraid that if you make an inquiry that he will reject me as counsel and go pro set and i don't want that and in so in which is very it's very odd to do all this without the defendant being at actively involved in this request to go pro se but so they the they all make the agreement that they're not going to address it with the defendant on the that she can talk to him after the trial is over on that day and then when she talks with them the very first thing the next day is this request to go proceed because it happened anyway because he had in fact wanted to go pro se i have a question i would like to ask you in this case first physical contact was an element of the offense right there is correct now does that mean that we should say that physical contact was an element of the if the answer and that the defendant here had an intent for physical contact the bosley you or they brief made much of the argument that intent was a significant question here and then it got into a discussion of whether content means general and to have specific intent but my question is why i does it make a difference in this case of that general and specific isn't the question one though whether decision was passed amended and this language of physical contact was inserted after those two cases it's true that that is true of those two cases don't decide the question i'm asking you yes and i think in the end let me answer that question but let me just say as an aside that going to my issue of self representation that particular issue becomes critical the issue that you raise because i can't because the defendant wanted to raise a completely different defense than what you've outlined which is the defense the defense counsel raised in other words that it was you know the entire argument of defense counsel was it was an accident there was a physical touching but it was an accident and therefore it's not intentional and therefore it doesn't qualify under the statute lloyd to raise that that was defense counsel that raised that that wanted to raise it and did raise that as the sole defense now the defendant in this case acting by himself wanted to actually wanted to raise the defense and i never i never touched him the car never touched him they're completely separate defenses and he wanted to bring in the fact that this particular marshal had changed his story about where he was hit and him to represent himself would never have raised this would never have raised it so how should we treated them well yet about the argument that counsel actually made are a you're not making th if you if you find in my favor in the soft representation of issue issue we do a do over anyway and all that becomes irrelevant all right so we don't so we disagree with that what do we do then if we disagree with that then i think overturn another panel in a published case can it be controlled by another pavel when the statute has been changed and the element of the offense that is at issue is something that was not in the state you were in the case was originally does that well i do recognize that in a in that's why i don't want to waive the issue but on the other hand the way gag non was written along with the times case it gives very little wiggle room even with the amendment to the statute and i'd be clear about it was decided after the amendment but the crime that was involved was before the amendments so judge martin's opinion in gag is cognizant of the amendment in fact it absolutely references it doesn't it and by saying that non simple assault is forcible or intentional for another felony that is correct like the first time that i read the case i said wait a minute where did this language come from came that i realized he was referencing the already enacted that is correct you language ok i don't know if i know i haven't answered your question adequately but it's that thing in the case that makes a ruling on the question of the intent question with regard to physical contact in other words if there was just an accident no intent whatsoever you're still guilty and you may be sentenced to eight much as long as he was acting it intentionally in other ways in the end it is in the course of intentionally impeding obstruct exact cetra so exactly and that's the way that the jury was instructed in this issue of self representation i want to clear up what i think is is an inaccuracy in my adversary statement there the issue of self representation was not actually addressed and not actually raised explicitly until the beginning of the second day of trial the in chambers meeting that took place among myself among the defense counsel and with the judge defense counsel explicitly stated in it said page id number six eleven that counsel was that the defendant was interested in making a scene in front of the jury and standing up and firing her doesn't say at that point that he wanted to represent himself in so a judge course did at that point because we currently had a witness coming into the witness box he said counsel to me how much more time do you think you need with this witness today and i said oh we're going to be able to finish by one thirty which was the time that he and at that point he said ok here's what we're going to do we're going to withhold cross examination of this witness until tomorrow so you defense counsel may go and talk to your client in find out what he wants to do here and this is all the say your honour's that at that point in time the judge quist handled that situation adequately because whether he was going to be represented by counsel at that point or not cross examination wasn't even going to occur tomorrow so after that first day of trial in this was a two day trial so we've gone through half of the trial there has been meaningful trial testimony in witnesses the jury has been impaneled we are squarely here at the beginning of the second day defense counsel stands up and says he wants to represent himself so the united states contends it certainly was not an abuse of discretion by judge quist at that point judge quest's did the court in moore v have lindh request of the defendant write him a letter essentially saying are you going to be prepared to do all this in in really wanted that defendant more than apply because more th judge didn't make the decision and this judge rect how does that respond to the argument that this is a constitutional right for which there's been no well we would disagree because there is this split and we in contact is a discretionary standard and in the standard or those two cases is abuse of discretion so is your position you'd win even if it were even if you even if we took it up for the first time it was the constitutional did did the court not do what he should have done had it inquiry recognizing that the trial is half over that that we've had two witnesses already in the witness box there's two more to go it turns the on timeliness standard completely on its head and takes that discretion away and the government in this case was very concerned that the defendant here was doing this as a dilatory tactic because he had already fired his initial townsell from the federal public defender's office in western district of michigan and then doesn't raise a self representation issue getting ready for trial sits through the first day of trial realizes he does not like how the trial is proceeding and then says that he wants to represent himself so i think judge quist absolutely did not abuse his distracting discretion in taking all those factors into account and ruling that it was untimely without going into the mcdowell inquiry and that with respect to what he actually said help me here i'm looking at the riddle brief to page thirteen the district court found and then you quote it would be very disruptive to this trial the switch from counsel's representation at this point in time was that said in open court with the defendant there was yes you did he said is that pretty much though the guts of what he said did he have any other surrounding th is correct that is that is primarily rules of evidence that is primal in you raise an important issue there and then i want to address the defendant wanted to represent himself because he was very unhappy that his defense counsel was not submitting into evidence police reports which are hearsay in it in miscible based on the rules of evidence and judge quist addressed that very issue which was the only reason in which the defendant wanted to represent himself judge quist said listen i know the rules of evidence and i can tell you those aren't even coming in because they're hearsay from a man even did even recognizing that it's all hearsay and that it's only permissible for impeachment in is not admissible as substantive evidence he did allow those that are kind of like part of the mcdowell inquiry not part of the timeliness inquiry in other words if you're going to do something stupid is still a part of the timeliness at least it absolutely is your honor because the right to self representation has to be done knowing voluntarily intelligently and timely and i think what judge  was imparting here by saying look there's this isn't going to come in by the rules of evidence anyway but i'll let these excerpts in even even though it's all hearsay was that you clearly don't know what you're doing here and your counsel does have the best interests here for you in the midst of a trial you know your adversary said well you know he might have said but your honor it won't be disruptive because i'm ready to go right now but he didn't you look at the colloquy in the in the robot's case that defendant was extremely vehement with and i think it was a kentucky state court case where he was very vehement in demanding that he represent himself again in the midst of trial and that was denied here judge quist address the issue said look that that's that's that would be in violation of the rules of evidence address the one issue in which he was articulate why he wanted to represent himself and then the defendant didn't say anything further on the issue after that so the united states was urged that this is an abuse of discretion standard in that the macdowell inquiry shouldn't be required of a co these circumstances squarely in the midst of trial when they have have inquired into the basis for why they want to represent himself find that it's in violation of the federal rules and one in tonight on an untime required to say that intent is no issue at all that's correct i do agree with and i believe it's mr sands mission that it would have to be reviewed and bond for the intent issue to be changed because kinds veach and i believe gardner all say eighteen want to levin is a general intent crime but what is the is there a distinction within the context of general intent one being this i intended to get behind the wheel and drop the car i mean that is really general intent correct versus i intended to get away i'm tempted to go through the police officers and drive away you see the difference i mean must you general intent being so general that all you have to say is well you decided to drive and that's it or you decided to reach out you were obstructing me saying oh officer please don't arrest me you cannot arrest me and you reach out and touching and and are you saying best that's the felony sure that's good enough  you know completely accidentally you would still say no and no problem there i think some of the your questions go directly to prosecutorial discretion and i  absolutely appreciate the question in let me try to answer it this way though the law in the six circuit is clear that eighteen one eleven is a general intent crime and you can't look at these crimes in a vacuum which is to say what is the context in which he did the program habited act here ok the trial testimony in the evidence it came in was absolutely clear that the u s marshals that were trying to apprehend mr cunningham were standing in front of his car to run into me it just happened there and you say that you and most you have both under our law in the six are that that's the that is correct because the statute is designed to protect law enforcement officers they have a right to be in front of that car trying but but let me be clear that if he just gets in the car and drives away and doesn't know that there are any marshals around then he h until he has to have the general intent to to impede or interfere with an officer if you don't know the officers are there then he doesn't have that intent right so you've got to have the intent to i that she was the judge he still while i did it that's that that is correct that is correct although contrast that case from from our case the marshals were wearing tactical cargo pants they had their guns drawn they had their their chest badges out they were six to seven feet away from the car and in these cases intent can be inferred through the actions and the actions were not only were those marshals standing to do that if there were in the intent the intent which which is physical contact there's never been a dispute whether it was his left side his right side his arm that he got hit and he the defendant didn't have to intend to hit him contrast eighteen want to levon with eighteen one thirteen which i think is the intent to commit murder against a federal officer specifically writes in the statute that you have to prove when when their specific intent that's required needs to be proved that intent is written into the statute and that's recognized a think in the the kinds of each case that are cited in the brief of flaw in my right when we talk about the new step the only difference has to do with the sentence part the part about thirst sibly assaults resists opposes impedes and intimidates that was all the same is that correct it's my understanding and that the old statute then said only simple assault one year the new statute says the same thing the only difference is the old statute says and in all other cases up to eight years the new statute says instead of all other cases it says physical contact or intent to commit another i'd like to speak just for a moment about the soft representation issue because i think we're missing we're missing a big concern here and it came in his argument where he said that it's never been it's never been objected to that missed that deputy  you had been hit and that that was the whole point it had this defendant represent himself that would have been the critical issue he would have claimed has his defense that in fact he had not been hit in this case that that that distinguishes it it's not just arguing about whether the evidence would come in to the rules of evidence or whether he knew the rules of evidence or not it comes down to you have the right to pursue your own defense if you're representing yourself it may be a stupid defense it may not be the one that a counsel would have chosen but you have the right to choose your own defense and shoot your own self in the foot if you want to and in so the difference here is he wanted to pursue that defense his counsel wanted to pursue a defense that it was an accident which which actually assumes that the guy got hit and we're going to deal with this question dependants playing with the system  immediately asking to conduct their own defense having a lawyer waiting for the case to start then in the middle of the case he came to have the two things one is you assume there's going to be a mistrial and that assumption is not valid in this case because there was no claim that the case was going to be set off because of this action that the judge said there's going to be  delay and actually there was no need to judge specifically said it would be disruptive to that doesn't mean there's going to be a delay what it could mean what it could have very well meant was that the guy would have maybe he was acting he could have acted out and that is disruptive we don't know and in the problem is here like the judge in this case made a finding that he didn't know the rules of evidence true or not true he didn't make it mcdowell inquiry to even find out what this what this particular  know about how to act during this trial the only thing he was going on was this letter that he wrote to the judge the day before and so the judge judge merits question you would say a defendant in terrupts the trial and says that changed my mind i want to represent myself the court is obligated to stop at home and can go down inquiry absolutely i think that should i think that should be the bright line rule of every united states district court judge at their fingertips it would take probably ten minutes or less and the judge could make its findings and again we are talking about a constitutional right here not the not a particular whether piece of evidence