and eighty six and this hearing is in respect to mr moore graff ski's request that the court grant him leave to represent himself in this appeal let me begin by taking the appearance for counsel for m you very much all right i want to inform everybody that the proceedings today are recorded and the recording of this hearing will be available on the courts website in the and i'm going to i know you know this is this is a beautiful courtroom and it's fairly small but the acoustics are not good and that's why it's important for you to speak into the microphone so that we can pick up the everything that's been his fear i can hear working yes good so i'm going to ask the courtroom deputy to administer the oath to you because i'm going to have some questions that i'm going to want you to gasket do you have any physical or mental impairments that would affect your ability to participate fully and knowingly in the proceedings today no are you under the influence of any drug no not at all are you able to hear me and to respond freely yes in response to your request to represent yourself in this appeal the court has authorized me to conduct this hearing to make sure that you understand the dangers and disadvantages of self representation having to heal and that your request is knowing intelligent and unequivocal do you understand you have the right to counsel in this appeal if you cannot afford to retain counsel you are entitled to have counsel appointed to represent you at government expense the court also has discretion to allow you to represent yourself if your request is knowing intelligent and unequivocal and is not intended to delay the proceedings on appeal in determining whether the court will allow you to represent yourself the court will st inform you of the dangers and disadvantages of appeal nd inquire whether the issues on appeal are so complex that the assistance of counsel would aid the court in deciding the case and rd inquire whether granting software but representation could unduly burden the coup or or counsel or undermine the integrity of the outcome you understand all that you also may withdraw your request to represent yourself and in that event you may continue with current counsel the court of appeals does not permit the appointment of advisory or standby counsel so you can't represent yourself and simultaneously have counsel appointed to assist you you understand all right what i'd like to do is just get a little bit of background from you i know there's dribs this throughout the record but it would be helpful for me to to have a record of your education and your job history and writing experience so let me start by asking you about your education i have a sort of equivalent to master's degree in mechanical engineering from a u i went to college in sixty seven i graduated in seventy three ok with the equipment or a masters degree in mechanical engineering yes and that that was the last formal education that you had political refugee mercifully short yes all right and then in ninety one i i went to work for member x corporation as a senior project engineer three i became self employed engineering consultant and i i worked as the engineering consultant for a startup company a g associates in palo alto which i grew from my garage to two to a sizable fully computerized the not an automated operation and i was in business for twenty years in two thousand and three i closed both businesses deuce due to significant financial losses and then after that i have been self employed doing what primarily being in night vision  any kind of analytic writing that would be similar to the kind of analytic writing that you would be expected to do in preparing a brief on appeal in the th circuit  prepared you to write briefs for attorneys starting approximately in one thousand and eighty seven when i was self employed and my my business was a sole proprietorship i because i was sole proprietor i could represent myself in litigation pertaining to my business and i i all my business was also construction related and  i was a licensed contractor for a number of years and being a sub contractor on a number of projects including some government projects they been there been a lot of disputes where general contractors who tend to abuse contractors fail to to to to pay my company so i got involved in multiple litigation in that regard and myself in these proceedings both in the trial court and in the court of appeals based on your experience have you participated in drafting any of the filings that made their way to the  in this case and i i assisted my attorneys in this appeal and my attorney has adopted most of my arguments not to a sufficient extent which i requested but they adopted primarily my arguments and my motion for bail pending appeal and did you did you assist in drafting the omnibus motion in your wife's case in the the one that included the motion for bail pending appeal and to some extent it was mr hard for it involved in that as well yes and i  to both myself and my wife and did did you draft the supplemental declaration that was filed last week privilege that protects you against disclosures of confidential communications between you and your attorney i do all right so without divulging any such communication if you can speak in general terms so as to avoid disclosing any privileged communications with your attorney why is it asian this issue was the central issue or the central issue in my motion for bail pending appeal i was represented by issue and that my attorneys would incorporate that briefing into my motion my wife's attorneys refused to do that and refused actually that they would that they would adopt it nevertheless and that i missed what you just said to me restate that yes this is the attorney i'm trying to understand what the attorneys for your wife is for my wife said that if miss fall would approve the language and do cite check of the briefing which i proposed to my attorneys and which was not covered in my motion that they would incorporate that briefing in my into my way my wife's motion so my attorneys would be able to incorporate that into mine is  clear and so ms fuck was your attorney at that time yes right so and she gave she wanted so you wanted this issue you just described to be included in your wife's brief and then you or your attorney would incorporate that by reference in your brief yes and it was agreed between me and mr fall that that would be done because there was not enough room in my brief to to cover this issue extensively enough and mr polk did recommend my wife's attorney to do so and she said that she site checked the brief which i proposed and that she approved it nevertheless my wife's authority failed to do that and then her subsequent when you say failed your wife's attorney concluded that it would be inappropriate to include no my wife's authority just didn't want to deal with that so she just repeated the argument which was in my motion or as are the repeat them putting in care motion their argument which was additional an important and  motion for bail pending appeal ok i'm sorry because when you said brief a motion every for two different matters when you said brief i was thinking of the brief that would be pertains to the motion for bail pending appeal yes yes and since that motion basically included you know the most important central issues to my appeal if i if i recall the docket correctly he your wives pro se motion for bail pending appeal and your counsel's motion for bail pending appeal were both considered by the court in the court granted bail pending appeal yes ok so continue on answering the question i posed why it is that you circuit by the th circuit didn't distinguish basically between the issues and didn't state specifically that that issue was the deciders the size of issue in granting motion for bail but i believe in my attorney believe that it was the central issue then when the motion was granted i actually mean it was mr falk when she she was about to go on maternity leave or she was possibly already on maternity leave i don't remember but she commanded myself and my wife my wife's motion for bail and on the argument to plan to rely on my wife's argument on that issue in clear brief an appeal and the opening brief and incorporated into my opening brief and decided that he would cover other issues but he believed that he didn't i wasn't familiar sufficiently with that specific issue because that issue was dealt to as a by mr fuld so he decided to rely on my wife's brief and incorporate that issue from my wife as brief into my opening brief and based on that understanding we proceeded you know with was the opening brief and i was led to believe that the issue would definitely when mr borden filed several requests for extension of time to file opening brief in each of them he and one reasons for the extension to was a regard to no known delegation issue which was part of the central issue i was talking about them constitutionality of that regulation and two is the need to needed to be filed when i read the proposed the opening brief that the issue was not there and there was no reference to my wife's brief in fact that issue was replaced fifteen thousand dollars so it looked like crip lazing the centralisation of my appeal which would possibly invalidate my conviction that was a fifteen thousand dollars issue was just didn't seem to be a i was not given that opportunity and then i basically said that is or i would i would be given an opportunity to court in that brief was my attorneys or i would see a choice of easy or cooperating with me and completing that brief at least giving me an opportunity to discuss it or was drawing he chose to was wrong and not to cooperate it was me  going to now make sure that your waiver of the right to counsel is knowing intelligent and unequivocal and in order to do that i'm going to describe the dangers and disadvantages of self representation on appeal and i want counsel to pay attention to what i'm saying here because at the end i'm going to ask if there's anything in addition that you think mr moore guy ski needs to know about in order to make sure that his decision is knowing and intelligent all right so let me begin and i understand that you are more conversant with legal procedure than most people who would appear before me so i don't mean to insult your intelligence but i want to go through it from the most basic i appreciate i appreciate it so an appeal is different from a trial the proceedings occur mainly through written submissions called briefs those briefs have to comply with specific court rules and if you represent yourself you will be expected to comply with those rules and your appeal could be dismissed if you do not comply do you understand the yes on appeal you must obtain and review the transcript of the trial proceedings and identify the potential legal errors committed at trial the issues on appeal are limited to addressing what occurred at trial the court of appeals does not consider new evidence identifying appropriate issues requires legal knowledge and sophisticated analytic ability if you fail to identify a legal issue you may be barred from raising that issue again you understand that yes you are also required to support any assertion of error with a legal authority that means you must be able to research and understand the provisions of the united states constitution federal statutes and rules and the cases from the relevant courts of have discussed that area of the law this task requires familiarity with legal research techniques you understand yes there are also strategic determinations that come into play in any appeal for example you may identify a large number of issues but only one of which is stronger than the others or weaker or peripheral it takes judgment and experience to know how many issues to raise in what order to raise them and how to raise them in a in a manner that's most persuasive if you raise too many issues sometimes you can undermine the strength of your stronger issue by hiding it among a number of weaker issues that's just one kind of tactical decision that experience council like mr bord difficult just to understand the adolescent components of the issues on appeal but even if you master that task it's extremely difficult to convey that understanding persuasively in writing to judges who have only limited time to read and study the briefs lawyers spend years especially appellate lawyers spend years developing and perfecting those skills but if you represent yourself you'll have to do that job  training and experience lawyers have you understand that yes there also are additional difficulties you may encounter in representing yourself on appeal your access to legal materials may not be as free extensive as a lawyer would have  t a lawyer with an office like the federal public defender has access to a lot of assistance whereas you working essentially alone will have more limited resources do you  understand that difference yes in addition to written submissions the court allows oral argument typically have ten to twenty minutes per side in some cases the oral argument is an opportunity for the parties to ensure that the judges understand the arguments it's also an opportunity for the judges to ask specific questions about the proper disposition of the appeal where a criminal defendant is represented by counsel the court often not always but often will allow oral argument where a criminal defendant represents himself or herself on appeal the court rarely allows oral argument instead relies only on the written submissions so by representing now in the earlier stage in one of the earlier motions or what's evident here is that the  dissatisfaction you encountered with your representation is because there were is in particular one issue and one potential outcome is four and occasionally what the court will permit is for  to know whether you have considered that as an option and whether you think that might be a satisfactory outcome here as opposed to filing your own pro se brief i considered that recitations of the dangers and disadvantages of supp representation on appeal counsel for the government have anything else you would add record were ready to be filed yes and the government might suggest an additional question which is just to ensure that mister understands that that line of questioning may mean that there may not be a need for additional extensions of time for the filing of the opening brief or the reply brief for him that was the implication of that question yes thank you since now ready to be there would be no need for any additional extension of time yeah yeah is that correct yes that's right yes yes it can be filed within days i think i will need to be able to get to be a lot wish to add in terms of informing him of the dangers and disadvantages of suffer present taishan mr born i know as to the advisements of the court gave i don't have any think at that ok thank you all right in your proposed brief have you had an opportunity to calculate the number of words in your brief in because the court allows fourteen thousand words for an opening brief yes it's very close to that i don't remember exact number but it's very close to as close to it under fourteen thousand under fourteen ok all right having heard all the dangers and disadvantages of suffer present taishan on appeal is it still your requests that the court grant you leave to represent yourself on this appeal yes my role now is to prepare a report a recommendation concerning whether the court should grant you leave to represent yourself in making that report a recommendation i heard what you said but i don't not going to draw any conclusions about the quality of representation of your counsel and i'm not go further into that issue but i think since you are prepared to file a brief within the page limits the court since you've had the benefit of seeing a brief that's that i will recommend that the court exercise its discretion to allow you to represent yourself and that the court grant your counsel leave to withdraw will relieve him o f his appointment thank you i will prepare that report a recommendation and let me ask you this question if my recommendation is to allow you to represent yourself do you wish to have an opportunity to view the recommendation in advance and file any response to that or would you be satisfied for me to submit that to a panel of the court for them to the request i would like to be able to before i will i will add that that amount of time i'll give you a week to review and review my report or recommendation and and respond  so you you mention to me that your brief is under fourteen thousand words do you know how long the brief of your codefendant wife is it's still so close to that it's also close to fourteen thousand yes all right ok this is counsel for the government have any further statement or position that they wish to raise i understand your interest  no and counsel for mr magoo anything further that you wish to state at this time more or less know your honor particular in light of your tentative indication on the report recommendation the only thing i wanted to flag was that i did a supplemental motion to withdraw yes based off of sort of the breakdown of the attorney client relationship which i think you may have some more insight on now right there but i think that would be boot in the event obviously the grant you know if that is the motions all right i will i will make inquiry about how best to resolve the question of electronic filing and much much easier to do that will the potential problems i foresee as far as electronic filing when i was assisting my niece in the electronic filing in federal court but that was in the district court she was allowed to follow th from the support team was electronic filing department so so i don't know if such a such problem would exist in the th circuit i do not know either that's something that you would need to resolve with our clerk's office staff i understand i knew when you prepared to file but i think if you follow the twenty seven dash thirteen guidelines along with the form i'm hope i hope that that would be sufficient to moving to a successful completion thank you