district court was mr wiesel right to represent himself mr we stood consistently and repeatedly requested to represent himself and there's absolutely no question that that request was denied by the district court for my cal mr we st quested no less than eight times in the record the right to represent himself he did it in a letter to the court early on that letter was referred to magistrate judge and in that hearing mr we stun equivocally asserted his right to self representation that's clear of the record in that hearing he also presented his request to represent fair enough your honor what you do perhaps is what the district court maybe did do but the issue of his disruptive behavior does not give the court reason to another room and use a video feed but in fact when the court did that he allowed the court allowed mr we stew question a government expert from the video feed and it went quite well as probably one of the  stellar moments in the in the courtroom for mr least he questioned the witness defectively the judge was able to if he got disruptive and interrupted the court he was able to cut him off with the video feed and mr wiesel knew that was it was either our second or third motion to withdraw or one of our supplemental motions we just said your honor he doesn't want to he won't even talk to us he refuses to recognize us as his counsel this is this system that you came up with would allow him to represent himself and the judge just didn't follow that request or that advice and i think that was a reasonable request i think it was reasonable by the public defender's office to suggest that that would be the answer let him represent himself and if the court felt like standby counsel was necessary to be in a courtroom or in the room removed from the court room or both for that matter that could have been done the problem is is it's never represent self and he also made it clear he wanted to present this jurisdictional argument now we all know that the case law is not going to be very favorite people to him in that regard in these not going to get very far with that jurisdictional argument but that's the difference he wanted to present preparation for today and of course looking over the briefs but i kept i was there i was co counsel on this case during the trial in the case and but from reviewing the record i noticed two things he became disruptive when he didn't get an answer to the jurisdictional question and i don't know i could be wrong on the going back to the only court that i had i saw answer his question was the magistrate judge certain specifically explained took with disruption and multiple chances so do you have to go all the way to say it's never permissible for you to win i don't think so i think it is it's a fundamental six amendment right to self representation is fundamental i  allow him to go to you to represent himself yes your honor and i think this answers both your questions and that is that my position is is i do think that's right what i was pointing out is that the language that's relied on for the courts to do that i think is more focusing on the abandonment of the right but i think you're both exactly right that that of course if somebody becomes so this wrapped of the court has at the ability to say self representations not going to happen it's just you've gone too far but in here that didn't go far enough in this case and when the judge put him in the other room and in the video feed i think at that point there and we have suggested that in a written motion it's not something we could behind a log and we came to the judge and said judge he's in the other room he wants to represent himself he did seem to do ok and at that point you're just talking about a matter of convenience because he's certainly not going to hurt anybody any certainly not able to extremely disruptive in do are the age he was disruptive on july fifteenth but the court said even now if you can try to not be disruptive and then he was disruptive again repeatedly on july twenty second and then on july twenty eighth how many disruptive chances do you get before you know long before the court can take you're not saying the rule i'd ask you you're not saying never so at some point the court is allowed to say you're too disruptive so why isn't this record good enough it's not the issue whether the records good enough that the issue is what this record shows is the judge came up the district judge came up with an answer he put him in another room and gave him a video feed and there was no and then we just jumped to no self representation there's no indication that he couldn't represent himself and present his arguments in that situation that that answered the question it doesn't but it doesn't it doesn't rise to the level of that nothing happens after he's been put in that room that would prevent him from being able to represent himself on that  either excuse the jury or he could that he could even do he could leave the bench and address the video a video or actually in person with the client the defendant i think those are all matters of convenience  such a fundamental right it's the six member right to representation and such a fundamental right and i think that when you have a record like you have in this case where it appears that he could have still exercise that right and maintain control the purse you have many cases which say  you know removing them from the courtroom as you have to you have to do i guess what's the least intrusive to allow that but we're again we're confusing the question of how do we deal with the disruption  on the exercise of the fifth amendment privilege against self incrimination i wanted to point out it's raised in the brief in the first witness on direct testimony the government brings out the testimony from an officer that case that that is it boiled violation on its face it's a manifest intent was to comment and you combine that with the statement that was made during closing argument and you combine it with the fact that the definit wasn't even in the courtroom and he wasn't allowed to represent himself and i think we've got a river we've got it's not harmless where it's clear to comments that were made little brought to the court's attention in the brief both of them were comments on his failure to testify they were not harmless and  i think the court that there's grounds to reverse and he should get a new trial based on that as well thank you thank you can see save they pleased court western drinks on behalf of the united states there is no error let alone reversible or plain error to justify disturbing this jury's verdict case law and common sense support the dis the motion to suppress and the court properly discontinued the defendant's self representation based on his incessantly disruptive and obstructive conduct i'd like to begin with your best evidence that even after he was in the video him after he cross examined the expert he continued to be disruptive the record directly belies the argument that hey everything was working just fine once we started this closed circuit t v process during the competency hearing after the defendant effectively shut that proceeding down and they had the court had to adjust and pause for stevens and start as close circuit t v we did get to a point where the defendant tried to question the government's expert regarding competency he got maybe five questions in before he went on a rant about jurisdiction his favorite topic but also the treaty of paris and he apologized to the representatives from the british government who we knew he was going to upset by this argument of course the court had to stop that and then it was back to the status quo of the defendant not answering questions not following the procedures that the court asked him to follow so it was not a success it was three four maybe five questions and then the t then we the court had to mute him and shut him down but it's not just that so i think that alone speaks for itself that this is not a system that was going to be workable because he would do what he had done which is shut down proceedings also the morning  the court again exhibiting extreme patience with this defendant repeatedly said if you will just assure the court they you will act properly not be disruptive and follow the procedures i will let you back in the court and you'll be able to represent yourself on the morning of trial he wanted to talk with the defendant he did so through this closed circuit t v system this is in the record of twenty four sixty nine to seventy one he said we're about to start trial really prefer you to be in here can you can you do that and again the defendant wouldn't answer the question instead just going on a diatribe about treason he wouldn't state his real name he said the court was a kangaroo court being disobedient disrespectful and the court said i'm sorry to hear that and see what you've done the whole time so we have two examples of the court trying to use this alternative system and it just not working it just blew up i'd also like to make one record point a question that came out during opposing councils argument about well the court just wouldn't answer the question about jurisdiction i disagree the magistrate court did answer this question and i do believe that the match record is the one that said the constitution united states this is a federal court in charge of the federal crime but the district court also tried to answer those questions and the defendant wouldn't allow it you can see that in the record twenty three sixty to sixty two he's going on and on about jurisdiction and the courts as the jurisdiction of this court mysteries is and he's interrupted again and the court even says do you want me to answer your question and of course the defendant just interrupts and it's clear i mean our expert testified that this was a deliberate attempt to disrupt the proceedings and delay the inevitable he sa he's been with many defendants like this their son the sovereign citizen defendants and this is a tactic this is a delay tactic our our expert testified to that that finding has not been challenged on appeal so he knew what he was doing he was doing it on purpose  he would not assent to the court's authority over him case law makes clear and for read up so that the trial judge may terminate self representation by a defendant who deliberately engages in serious and obstructionist misconduct that's footnote forty six and the reason the court has that right is because the court must balance the sixth amendment right with an equally important principle that a district court judge must maintain decorum and ensure that the proceedings proceed in an orderly and efficient fashion one additional point of law that's that's critical here that has gus chip when a definitive refuses to engage with the court about his or poor or her desire to represent himself or herself it cannot be err to not allow the defendant to go pro se that is if a court can't even get answers from the defendant about his competency and his desire especially in light of additional charges which is what happened here and if course it cannot be error to say you want me decide this question you can't go pro se that point a law can be found in both from this court and that's what happened not only was this defendant disruptive and continually interrupted to court but he refused to answer the district court's question about his desire self representation that can be found in twenty one seventy seven and twenty two forty to forty one many theft of we shut down the district courts analysis of are you truly competent to do this do you understand that now the stakes have been raised there's been a superseding indictment your or your senate seem range has increased are you sure you want to do this couldn't get answers to the question could those questions under those circumstances it cannot be a year for the court to have done what it done if anything the court acted properly here and did what it should have done which is ensure competency and ensure th defendant was well represented by the public defender's office through this trial the court also warned the defendant that he was about to lose this right during the competency hearing he said ok here's where we are mr we still the case law and he quoted  basically kick you out of the courtroom at this point and stop yourself representation do you have anything to say about that because it's about to happen and the only thing in response at that point was after calling everyone in them that was in the room with him jerks he said this was a sham hearing this was a corrupt court and that's a twenty to forty two to forty how would you say that we should analyze it should we say be forfeited the right through his affirmative misconduct i think the most i'm not sure if it's a forfeiture that's an interesting question but i think the most direct way to answer it the court just simply wouldn't the defendant wouldn't answer questions about this desire under the circumstances we're done here but it's not right it's not always error it is not unlimited it represent him and that's when the magic moment of you you're not allowed to go pro se now that said the court continually offered the defendant the ability to change the circumstances by saying if you would just give me an assurance that you'll act properly area that the district court didn't air plainly or otherwise in limiting that expert testimony because he the remainder of that testimony would have been cumulative the evidence had already been presented to the jury i'd like to start with a standard overview because although we support the district court's decision here i mean when these issues are preserved the the review is discretion and it's abuse of discretion and the constitutional claim that's being made is also a high bar they have to show that the evidence was indispensable in that it was limited without rational justification and that's if it's preserved the air here was not preserved after the court made its ruling that he was that this expert was not qualified to testify about or not a real child and said here are the top two you can discuss defense counsel said that's clear ok i got it thank you twenty six fifty and there was never an objection to the limitation so w talking about was this error clear and obvious that if convey prove that it affected substantial rights in light of the overwhelming evidence of guilt we do not think that is a difficult question and does it seriously undermine the faith in the judicial process and the answer that question me talk about the prosecutor's comp the question about the cooperation in the comment the closing argument yes during trial the prosecutor was going through the search kind of the day of the search the events that happened and ok you went upstairs and found this computer he found this laptop what happened next and a question did come was he cooperative there was an immediate objection they approached the bench and according struck the defendant instructed t prosecutor was trying to do whether was she trying to just tell more of the story after what did he say it was right after he was getting into what he was saying he was describing  it might be here but it's harmless well i do not concede that it was there because again the record does not show really what the prosecutor was trying to do with that question but yes to the extent it was air there was an immediate curative instruction and i think it's important to know why it's not plame and additionally that's not truly the basis of the argument it's been made i mean the focus of the argument is that this is an improper jury argument so it's a comment made during closing argument but they point out this question because you this is this is straight up error because jack jones would be like in most cases they have objections in both places so that's that's unusual that they actually have preserved don't think that's the basis of the argument the basis of the argument is the closing argument that what was made was a combination of those two things were about the right to remain silent i thought that's the way the group the argument i view it as the earlier comment shows what the passion is really trying to even close in any event even if it were harmless error here absolutely absolutely i can the court examines allegations of improper argument or improper comments by doing three things first you look at the magnitude of the remark here the government does not believe the government is not believe it was over the line especially the closing argument i mean there's a there's a selective quotation of what the prosecutor said in the closing argument and again that's the focus of the argument here that selective quotation is is is not fair if you look at the remainder it is clear that what the prosecutor is trying to do is rebut the idea that viruses put this child pornography on the computer because so there's one person who doesn't know and that's all the quotation in the defense brief but the remainder is what's on this computer and that's the person that entered those search terms its the person that downloaded it seemed to me it was more to instead of mine guilty knowledge because the i thought the prosecutor said  i didn't call all the children that are on the videos or the pic in the pictures that because we don't know who they all are but there's one person in this room he knows what was on the hard drive basically on the computer and i thought it went to his extent they are they're just slightly over the line in light of the immediate curative instructions both during trial and during closing argument you look at the effect of the caution instructions the jury is presumed to follow those instructions they were immediate they were pleat and this judge took the issue very seriously and finally most importantly here is the strength of the evidence and the evidence here is is just over whelming the search terms demonstrate that someone was at that keyboard an internet search terms that clearly were searching for child pornography they were doing so through use of peer to peer system that attention only reached out and tried to find child pornography the only there were multiple computers and electronic devices in the house because multiple people lived in this house the only electronic devices in the house that had child pornography where the laptop on the harddrive that would love found in this defendant room that rebuts the idea that somehow viruses were responsible for this and that this defendant had no idea there were also a user created folders on this defendant's external hard drive that he that he named one was called practice one was called picks are testimony is testimony from our witnesses said peer to peer software does it create user fold someone created those folders and put documents and some took someone took these documents and images from the computer to the external hard drive and most importantly included with the images of child pornography in the user created folders were pictures memories with where we've had to cut repeatedly caution and closing argument comments some that we've reverse some that we've just issued admonition out of texas is it your is it your position that it's ok for prosecutors to him to ram the right to my remain silent as long as they don't explicitly and on ambiguously go into it or is it your position that prosecutors should stay well far away from it in your at the supervisor of this office so is it your position that they should stay well far away from it and do you believe that this is an example of that or did they go too close to the line of course we do not our position is not the prosecution goes close to the line as possible it seems like we have a lot of these cases it's cases not one of them well we do have a law that's the point in this is pretty this is not good behavior well i agree that that is  are a lot of cases in this court in this course has faced this issue often in the past couple of years and i don't share that view are the standard is where prosecutor witnesses remarks constitute comment if the manifest  that that is a correct statement of the law or what i meant was the the issue has been addressed many times in the past couple years i was addressing you testified to the extent the comic can be construed as a failure to testify and i think the prosecutor here stating well away from the line during closing argument and she did what prosecutor should do she argued what evidence was presented to the jury and if anything she was more measured than she had to be she could've said wiesel knows what's on that computer there are user created files he's there with things moved from his laptop he said room was the only one in the house she didn't do that she said there's one person who knows and it's the person who entered the search terms it's the person who created those folders that simply arguing the evidence and it's asking the jury to make the inference from that evidence and then later she employs them to use common sense because common sense given this overwhelming amount of evidence is that of course of course the person who put the child pornography on the computer was mr east it wasn't his mom it wasn't a minor girls that lived in the house it was mr we east and the could the jury properly found and held him guilty all the circuit sort of considered to peer to peer network and the government's a very that's correct every single circuit so there's no rain or anything every single circuit i checked last night judge and the courts are uniform on  ip addresses the question of ip addresses the question of shared files the question of subscriber information even when the question arises about kind of how the government conducts these investigations no court has held that it's a violation of the fourth and that you can find that in christie and connor and were we find them we lock the case law is repeat there that's based on the third party exception there's an argument somehow riley changed things riley addressed a different what the district court here did was exhibit extreme patience with this stuff and that there was no improper argument or improper comment to the extent that was certainly harmless in light of the overwhelming evidence of guilt and we would ask this court to but i think there's a problem right there is the government would stand up here and tell you that those two comments are not improper that they don't go across the line the one comment is almost identical to what happened in shaw the police officer says i asked mr we still to come to the car with me to speak with me and the prosecutor said did mr we pause think about it let's go it let's go there anyway was he cooperative with you know not was he cooperating in the rebuttal an argument we can't bring in every child there is one person who knows what content or something to that effect there is one person who knows what the content was that's what after saying she can't bring in every child after the defendant has been removed from the courtroom after he's been denied the right to six minutes this court has repeatedly tried to tell these i've been doing this for twenty four years and we just keep seeing these comments over and over again the own fair their low blows and they're frankly they're just offensive and the bottom line is until they get reversed the government's going to come up here and tell you what he just told you today and that is next that's a roll of his argument it doesn't cross the line you know in excellent i'm glad you asked that because i'm out of forgot to address it your honor chapman discussing door while air chat and says there's three types of joy later when the prosecutor uses the silence to impeach the story it's exactly what she did in closing argument in this case he's and that's exactly what he just stood up there and argued why it was ok for her to make that argument she birds using his silence to impeach the story that this computer was susceptible to being hacked and it was indeed susceptible to it that's one type of boiler and when that happens there is no harmless error analysis when it's when she tries to tie the silence to his story to impeach the story there is no harmless  ok the second type is when the prosecutor does not tie the silence to the story but it happens more than once in that case there's got to be overwhelming guilt to find harmless error and the third type is when it's just a single reference it's not a single reference in this case so the third type of boiler isn't even in question she either one or two and i submit it's number one and then there's no harmless error analysis in this case as far as i do want to address the point where on the denial of our opportunity to present our expert after every witness it seems like that the government presents can be classified as an expert on whether talking about chickens is code language or whatever it may be we had a where i put on every piece of evidence that i intended to get into with this with the with this expert the judge waits until i put the expert on the trial and says ok well let me tell you what i'm inclined to do i'm inclined to let him if he wants to testify that images can be altered not about that is these images but that images can be altered that was blown area of where i wanted my expert to testify my response is that's fair then the judge goes on it goes well in other words and he starts to tell me how i'm limited in every other area and at the end of that and i did i said will your honor that i asked him to clarify how it was being limited and then at the very end of it i said your honor i need to figure out on you make an objection here and the judge what you put in the record friday the things that you want to ask and i'm telling you you can't ask him any of those things fix up what i've told you we had a half day hearing we had a discussion at the bench at the beginning i thought he was letting me get into everything except for whether these particular images were altered which i that i was fair enough to make jackson or whenever he actually tried to present it say your honor i'd like to go into these these areas now and have him tell you no you  can't i wish i had done i mean you have done more in preservation shut of i don't know in this particular court i don't know he told me what i could do it i did what it and i asked and if i needed to put a further objection on he said no i'm telling you what you put on record  friday i'll not let you put it on i think that makes it clear the issue that we were was brought to the court's attention he ruled on he told me what i could do i would shut it down which he said your honor honestly you know frankly sure do you know would be clean