good morning my name is matt person and i represent mr wilson with the court's permission i'd like to focus this morning on point one of our brief which raises the question of whether the record in this case was sufficient to establish a voluntary waiver of the defendant's sixth amendment right to counsel and i would submit that the answer to that question rests on two bedrock legal the first being that the district court in this case had an obligation conduct a searching and thorough inquiry of all the facts and circumstances surrounding the waiver including not just whether it was knowing and intelligent whether it was voluntary the second principle being that a waiver is not voluntary where defendant is to face the hobson's choice of selecting between in effect of his on one hand and self representation on the other which is exactly the situation that arose in this case when in the week prior to the trial defense counsel representing explicitly on the record and in the presence of the defendant but he wasn't prepared to try the case and that if he was rick compelled to try the case five and five prior german are number five that he would be running it does your honor it does but i think ultimately the question focuses on the impact which that statement and those representation had upon the defendant's decision to represent himself and i think what's problematic here is that you had an explicit linkage an explicit linkage in the record where the defendant tells the court in light of of its declining to provide a continuance telling the court my attorney is not ready he doesn't know the case but i do know the case and in light of that your honor i'm asking to represent myself and the problem is at that point at that point there should have been a glaring red flag as to the issue of voluntariness and i think the duty of the court to inquire further should have kicked in at that moment ryan also there'd been the five continuances it was two months before the trial when he wanted to changes his  counsel yet again there is a clear record made this may be a mistake you know your client your predecessor counsel has prepared a very long time i'm not going to give any more adjournments he made the decision to go ahead and then and then even in the colloquy when there when his lawyer stands up and is seeking yet more time i think it made clear that he had been dissatisfied with all its prior counsel he said he had an affinity produce prudence he was ready in the circumstances do you think there's a you read this record to me it seems like it was almost inevitable he was eventually going to decide to represent himself i think what ultimately transpired before these this week leading up to the trial ultimately i would submit isn't controlling in this case and may not even ultimately be relevant to the court's determination the government has i think sort of set out this this potential narrative that mr wilson is the type of individual who perhaps inevitably was going to wind up representing himself and the problem is that's ultimately trying to read between the lines of what's on the record it's it's speculative i would submit it's some sense playing armchair psychologist i would submit that the record itself as to what was said and the reasons that mr wilson ultimately stated he was representing himself or that his counsel wasn't prepared and so i don't think what comes before you know you well may inform as far as background goes i don't think you can control what happened at the moment of the waiver because pursuant to johnson reserves the court at that moment had a duty to make an inquiry and it may well be the fact if the court had made that inquiry maybe it would have found maybe it would have said you know despite the representation is made by counsel i find after some questioning that he actually is prepared you know that the reasons he's proffering for not being prepared aren't in good faith or it might have found ultimately that mr wilson's decision to represent himself was independent of those statements and if it had made either one of those factual the terminations then and i think the government would acknowledge the extent that this is an error it's not susceptible to a harmless error analysis of its structural error which would require the conviction to be  i'd be happy to answer any of the questions court might have and on this issue or or any of the other issues otherwise i would respectfully reserve my time when i ask a question about the the argument that your client was prevented from  case at trial are there specific parts of the record that you want us to focus on on the theory that he was kept from asking questions about bias in on the part of the yeah i mean i know the government and has made a point that we haven't highlighted specific questions but but really the problem is is you had this very clear pretrial ruling saying you are not to go there you know you no clear cut this is not something you're allowed to ask so i can't you know it's difficult to isolate specific questions because the truth is by and large the defendant ended up hearing to the admonishment that he received prior to court they simply wasn't allowed to ask these questions and i would submit that those types of questions alternately fair game and something that should have been in front of the jury whether or not they had merit it should have been a something for the jury to decide not the court what was their relevance i mean what was he seeking with so so the issue was there's been a prior lawsuit which it occurred against the syracuse police department which was in trouble in the investigation of the defendant so they had played a large role in the investigation and his allegation was that there was an amiss on the part of the syracuse police department because of this successful civil rights lawsuit that he had brought against them he made allegations that police officers had had threatened him and that ultimately the evidence had been fabricated against him so it wasn't just an argument of selective prosecution they signaled me out it was an argument that not only they targeted me but they made up evidence against me and the problem is the jury never had an opportunity to decide the merits of that argument when anything of that large narrative came out in the trial in some way i am and i'm suggesting this defendant so certainly the government belittled the notion of that the defendant had had in any way been targeted or set up by the syracuse police department which once you start to look at the fact that he had some good faith basis to make this a  certain fact that this lawsuit actually did exist was something that would have supported that argument so if anything having the government you know attack the credibility of that argument should have opened up the door and allowed him to bring those facts in alternately what ended up happening is the judge allowed the government to bring it out on cross examination which which seems to me doubly unfair if the defendants precluded the entire time from raising this issue and it only comes out during cross examination thank you examples of that on page four twenty one of the appendix is the portion of the record that my colleague just read from where mr money hand the fifth lawyer said i'm so i wear the defendant referred to mr money and statement that mr morning i was unprepared the context that quote makes very clear and made very clear to the district court what the defendant was talking about on four twenty one defendant says if you may recall during a political prince prior to trial during our colloquy i made a statement where i said t lawyer is not ready for trial but i am and that was based upon the fact that i do know these i do know the facts and the particulars and the intricacies and the discrepancies and the multiple discrepancies in this case better than my lawyer and then after a fifteen limbs are thirteen page colloquy with the district court about the threat a waiver on page four thirty four of the record the district court says understands clearly that mr wilson's issues that he wants to present his grand conspiracy theory and tells mr wilson he will not be allowed to do so to discredit says after this inquiry further inquiry that's not going to come in that's not going to come in everything that you're trying to indicate to me that you want to do and representing yourself is not going to be permitted to happen in this courtroom at which point mr wilson objects and then says he wants to proceed there was no question before the district court had mr wilson wanted to represent himself so that he could pursue the strategy that five lawyers had effectively refused to pursue on his behalf that was clear before the in the record before the just court and that was the connection that the just were made between mr wilson's motivation for invoking his right to represent himself and granting that right and when you add on that that there is no question here that's being raised about the subjective knowing and intelligent nature of mr wilson's decision to invoke his right to represent himself from this record it would have been error for the district court to deny mr wilson's right to represent himself he has a constitutional right to represent himself if he thinks that his lawyers are doing what he wants to do and he has his own strategy that he wants to pursue and that's exactly what he did  court states i don't have any question that he went ahead and has the ability to do so so for just looking at individual sort of clips of what was said on the record yes the defense attorney said that he wasn't prepared to proceed in context we argued that that is a reference to the vast amounts of ancillary discovery that mr wilson wanted him to pursue and the district court found that request was disingenuous was it with the court's words and found that the defense attorney was competent to proceed and i think that goes back to sort of our legal argument on the fret issue here which is that even now my colleague is not willing to squarely argue that there was an error that the court made was according to the third circuit that there was all this relevant discovery there were i think hundreds of witnesses that the lawyer needed to have time to depose or to question in order to do a constitutionally effective job at representing the defendant that was an antecedent error and so when the district court denied that request and the defendant as a result chooses to represent himself and has then then that's a sort of a hybrid case management for air this court's decision open that's also not disputed that subjective element of it therefore there was no fraud a violation here or there is no constitutional violation because there was no violation leading up to it he wanted to end the record makes clear mr wilson thought he could do a better job court ruled on trial again i'm not quite sure i understand the basis for the court's ruling this was the distinction between whether this is a question of law from the court or something that's properly explored on cross because i would think that we agree with that and i think we point out on page twenty eight of our brief in footnote seventeen as well the multiple instances in the record where that type of biased questioning right was was allowed the issue pretrial with in the nature of pretrial motions to dismiss the indictment at the legal motions that i'm being framed because the police department wants to set me up the prosecutors are involved this is misconduct the indictment should be dismissed that is a legal i think we all agree and we said in our brief we agree that that's a legal question right whether to dismiss the indictment because a prosecutor misconduct there is a second question as to if the indictment goes forward to go forward on the indictment at trial for obvious reasons but when the defendant attempted to question individual officers about their past experiences with him like that they arrest him before i think one of the examples in a footnote seventeen is that did you arrest me and choke me those questions were allowed properly because as the just court acknowledged as we said in a brief that the question's going to the credibility of the officers are of course fair game and that was a lot well a knowledge there was a friend an inquiry which took place the inquiry focused on whether the waiver was knowing and intelligent and if there's one thing that's clear is that there's no magical catches i'm for fred a inquiry it depends on the context of the situation and here the context of the situation required a focus not just on those other elements but the voluntariness and i would submit that simply didn't happen here in fact as far as the basis for coun not being prepared if you go back to the january fifth transcript where the attorney started making these representation is to this court he was frankly brought up short and told he was on thin ice basically told i don't want to hear any more of these representations the court stated i don't have the the appendix number unfortunately but it was on january fifth who told him for you now to do this is totally inappropriate and as an officer of discourse or i'm warning you this type of conduct is more than a little out of line and so contrary to the conduct of the inquiry really the court sort of cut off any discussions about the basis for council not being prepared i think the core disagreement we have with the government is whether or  not in order for there to be in order for the waiver to be involuntary there needs to be an antecedent legal error committed by the court and i simply would submit that the authority does not support that position i think there's a clear line the cases where they find the waiver to be voluntary it's because there was an inquiry it's because of the court conducted a hearing and found the facts that it needed to find which as i said simply didn't happen here the government  referenced a quote the focus is on whether the defendant had a right to a new lawyer but i would submit that's really shorthand for saying was there a founded concern on the record that the defendant had about the willing it about the ability of his attorney to represent