as both i think this court in minces and the supreme court infrared up pointing out this is all about the anglo american lighton ment manifesting itself in our principles of law and justice the right of a person to represent themselves or to have counsel or to have their choice of counsel in this particular case that is running up against mr de la lee's experience growing up in a rather harsh autocratic regime that facially is a civil all regime and does doesn't have jury trials but even with the concept of having a judge things are different in terms of the way he might expect the rule of law to be administered but in any event we have a curious timeline here and i think i'd like to clarify because i think it became confused in the record this case had been pending for quite some time in sort of mid january  fifteen the case was set for trial mr dali says no i don't want a jury trial i want to plead guilty judge i think is concerned by this will hold on given at this late stage let's go in you know put the jury in your opening arguments and then see at the end of the day how do you still feel about this and both was to repay for the united states in mr spring laid out some fairly good cases for on the half of their clients but the end of the day mr lawley said i want to plead guilty and went to the examination did you do this did you do this correct correct correct fairly simple one one word answers about starting in february probation office begins to come in and started examining him for preparation the second interview in mid march jalali says you know all this was wrong i'm innocent i don't want you as my attorney his attorney mr springsteen probably immediately files a motion saying this and we've had this breakdown in communication he thinks i'm working with the government not working in his best interest doing what pretty much any attorney in this using as a standard at least the right word saying you know the examination for just cause but the way that it seems to progress is more reminiscent of what you might see in a twenty two fifty five hearing or a hearing on a motion to withdraw guilty plea which would seem inherent in the motion would draw because mr spring steel is counsel says he's saying he didn't do this that this was he was pushed to do  this but that's not the standard at this point to judge whether he either gets new counsel he gets to retain counsel or he gets to represent himself again this is i apologize any not coming up with a flow chart because these things seem to all branch out and then that this issue of just cause depends on what you were trying to do if you have if you're bringing in a new counsel you have a right to have counsel of your choice that's pretty much a near absolute right structural issue except that the court can examine doubt to see is there some problem here such as is there a potential conflict of interest such as you see in organized crime cases where they try and bring in new counsel who may be in appropriately connected to the parties then you have the issue of i don't want this guy he's my point of counsel or my retained counsel i don't want him anymore the cause factor there is well ok you don't want him the presumption is you don't have to have him which you then can with the court can look at is there some improper or facial problem here that i'll be at the court can do at least a cursory examination per ferrata improve the bench book for us district judges do you really know what you're getting into is this decision knowing involuntary intelligent and voluntary on your head in each of those cases duck presumption exists for counsel of your choice or new counsel or to represent yourself the court out of the box and again i  not while this is under an abuse of discretion standard of review i think the court has is you know has good intentions here but it's looking at it in the wrong way it first says well you know this really buyer's remorse because you know you looked at the pre sentence report didn't like what he said and that's why you know want to go to all of this although as the record shows the present he this motion was made back in march report wasn't completed and so it until the day before the hearing on the motion to withdraw his counsel so so that stands out there is that wasn't part of it then the question comes up need to put things in factual context so with of respect to the particular decisions and motions and what was transpiring at the time and what did judge said was the basis of his decision am i'm not getting too much out of this to be able to figure out if you sack of why are you saying the judge abused his discretion unless you put your i q man in in the factional context ology your  guilty plea in january tell he tells counsel in march i want a new lawyer i don't trust you and then in march the lawyer files motion to withdraw as counsel in april is the hearing on the motion the day before the hearing the first person to report comes out judge denies the motion withdraw then going into i believe june is the motion to withdraw the guilty getting that right ok leave ok with it thank you although the timeline is important because the district judge says your timing is bad the i see that they are conflated when he leaves mr spring state on the case then i would consider i would say that was incorrect there was sufficient here to let mr springs to get off the case because now you're putting him that he didn't understand what he was doing and so on and so forth but oh yes ma'am but that's that's the problem he how can he represent his client when his client is saying this all has to change because more lawyer here's what i asked the this transcript ok a good for the hearing on the motion to withdraw ask the count of a non serious request to represent himself on the part of the defendant which the district court made a judgment about there's not really that the defendant wanted to pursue that whether that was right or wrong we can have a way that in the other part of the is the district court he has already represented by the federal defender's office and so he does not have an absolute ride to go out and hughes a lawyer i mean the court of schooling to appoint a lawyer for you know right ye retain counsel but that's that one area where you have your own counsel lined up in the middle areas if you don't like your appointed counsel you're right you don't have a choice as to who gets appointed to represent you but if you've had a breakdown apologize for not being clear at look at the an athlete he made certain statements under oath that during these trying to claim he's making directly contrary that meant on this occasion i think you can tell from page eighteen the district court flat out didn't believe what he was asserted certainly he made very serious allegations that if believed the pretty outlandish but if believed would be a values for permitting withdrawal but the district court was and wasn't required to accept mr de la lee's representations was that specially since previously he had s under oath something directly different yes but the issue of good cause in the withdrawal of counsel and other proceeding from say or new counsel is where that relationship between attorney and client is broken not whether the client was he doing somebody that's actually broken and he believes the defendant has been hanging out in the jail with people who told him how to game is a or is the or it just didn't logical to the district court in view of the history of the case he he didn't have to accept at face value what mr we have to look at is the relationship broken whether he whether the client is being credible whether the defendant is being credible in his statements or not isn't the focus of the investigation it's whether or not he can now work with or is clear that relationship was dead even if the district judge thought this was didn't believe him and thought this was a really bad idea by mr de la lee that is mr de la least choice it's one of those fundamental areas it it's all its content it's the respect for the individual we will also respect your right to make your bad choices and have one question you made reference a couple times to section twenty two fifty five it seems to that some of the complaints that mr de lollie has here may properly be pursued in a twenty to fifty five action as opposed to this that matters before us would you agree with that just very briefly because your time as well given how given how the district court ruled regarding the motion to withdraw which has a much lower in different the question here is is the relation between the attorney and client so broken that it just can't go forward to represent him on the issues as he feels appropriate and this does relate back to what the position we're putting the defense morning hours my name's timber hey i represent the united states on this appeal i was also trial counsel below and since most of the questions appear to focus on the right to counsel issue let me focus on that myself unless you have concerns about the other issues raised judge john kerr when he got this motion which is a record one twenty nine heard first from defense counsel mr spring stead that he was unhappy with him and specifically at the end of that very short motion mr springs to the law we also told me that he plans to hire his own attorney so mr will sabio is right the motions filed about three weeks before the hearing on the motion to withdraw its counsel in so no appearances filed by anybody in that three week period the judge takes the bench armed only with the defense counsel's motion tells the district judge to look at the timing of the motion it's not all by itself a winner for the government but it does i think lay the basis for the district court being a little suspicious because so much time ha so if a lawyer had showed up there would've been plenty of time for that to happen and i don't think it would have delayed anything and i'm not going to argue to you that it would have been a delay for appointed counsel or retained counsel to show up and you see judge ocker pretty much saying that id page one thousand and six he said if if there's a new lawyer ready willing and able at this hearing i probably would would tip the scales in favor of m and let this person come in but the fact of the matter is nobody appeared nobody filed an appearance before for three weeks nobody filed an appearance for the three months afterwards saying hey i've been retained please let me in  as we all know nobody appeared at the hearing and the lolli shows up saying i don't even know who this guy's name is he uses a couple of different names he doesn't have a phone number about how to reach the guy he says his office is by the railroad tracks somewhere grand rapids and i know i can't this is not a matter of record but the nobody with a name like that is in the bar journal anywhere and i've never heard of him so what  supposed to do in that situation i think that the case law even under gonzales lopez says the district court has discretion to decide if if  they're going to stop everything and allow even retain counsel to step in gonzalez lopez does say there is a right to hire an attorney so says the supreme court but it also goes on to say that th right is circumscribed in several important respects of page one forty four that decision and this court specifically judge givens in two thousand and fourteen decided a case called the u s versus pay go  where the same act test was applied where somebody wanted to hire an attorney and replace court appointed counsel well so if we're using the mac test and it's clear here that judge her went through that step by step if you look at pages one excuse me i did number nine ninety seven through one thousand and one you can see that the judge no fewer than five times by my count tried to get the lolly or somebody to say where is your problem with your lawyer right now in each time to lolly said i'm not guilty they keep putting pressure on me and i you know i should have been able to show that the bank records didn't show i had the surgery thousand dollars all of these statements relate back to whether he's guilty or not but as we all know he's already pled guilty and adamantly requested to plead guilty right on the first day  allegations and they may have surfaced after spending some time in among other inmates but that he's dead it's questioned him about terrorist groups and you know to plead guilty and all not give any credibility to that because first of all he did say i heard nothing about this from that day the entire human up through the pre sentence report and including seeing mr springs  work for the defendant right in front of me defending him at trial i mean he made a finding that springs to did a good job pointing out cross examination and during his trial presentation although it was truncated he was defending this guy so that i think joe johns appropriately said i just don't believe that statement that the law is making that spring studds not fighting for him and he's on the government side and he's putting pressure on me to plead guilty in addition to that of course judge ocker said i really explored that at the time of his guilty plea you know are you under any pressure because it was a first day of trial guilty plea i think you spent more time than we typically see district judges do to say you know i know it's a pressure packed situation but you need to make this decision freely and voluntarily are you doing that freely and voluntarily into law lee told him yes and he gave an explanation i'm hoping that if i  maybe things will go better for my wife it just didn't pan out but he completely denied being under any kind of pressure at the time of his guilty plea and then all of a sudden after that presents yes what happened was she the case was severed because she suffered some emotional trauma and had to be checked into a hospital right before trial so the judge severed the case and went off and had her assessed for mental stability and so when she got back and was found to be competent then she entered a guilty plea so if memory serves it was a browned sixty days after his guilty plea and prior to i think his decision that he didn't want spring stuff anymore so he did raise a bunch of issues at this hearing i don't think judge jonker heard enough to draw the conclusion that this guy was really raising on ambiguously the right to represent himself you can see the entire exchange occurs on id page ninety five were drunk or comes out and says i understand you are a new lawyer and then the law he says can i represent myself your honor question mark and then judge yonkers  well let me start with whether you want to lawyer your preference at this point you think is to represent yourself as opposed to having a lawyer the defendant yes your honor i have an attorney and then goes on to talk about this this mystery attorney so to me that's the that's the definition of an ambiguous request and i think it was appropriate for a judge yorker to say this is not a religion ameriquest to represent himself at the end of the day i think  what judge ocker decided was mr de la lee was unhappy with both alternatives facing him he didn't want to go to trial he said that on the first day of trial i want to plead guilty i never wanted to go to trial and  then when the pre sentence report is being written and he sees that he's going to face a sentence he doesn't like that result either and so i think ultimately no other lawyer could have done any different under those circumstances because he just was unhappy with the two choices facing him so at the end of the day i think the judge did address all of the factors under mack ultimately i thin k think the thing that swung the decision against the law he was he never could point to anything other than he was then saying i'm not guilty to say there's a conflict so in light of all that i at some point it comes to the judge's attention that the defendant glad about having all of this money in this bank and supposed to court it would be appropriate for the court to take those misrepresentations into account and assessing the defendant's credibility on all the other issues requested change counsel breakdown and the attorney client relationship and all that when  proceedings did it come to the court's attention that the defendant then made misrepresentations about this money in his bank account and how might that have affected the court's assessment of the  credibility i think you're right to say that that's something else the judge could draw on because he did plead guilty to a fraud charge which at bottom is lying to get money from somebody and you can see it id page sixty five during  guilty plea colloquy junker says the government says that you had this thirty thousand dollars in these lebanon bank accounts and then he goes on to say and it was money or assets i mean you understood if you told the government on the forms that you had thirty thousand in the bank you realized they were going to give you benefits right until ali says correct and then goes on to say and i didn't disclose it so you know this is the bottom a false statements case where the defendant pled guilty under oath to lying to get these benefits and so i think that plays part of the the role too in addition to what the judge saw during the guilty plea and trial so i think that appropriately played a role also i think my goal here was to defend what the judge did as far as withdrawing says is i never had this thirty thousand dollars you know my wife's father worked in lebanon and so that's why they're ok from an allegation of the guy well oh yes everybody was on notice from the indictment that the thirty thousand dollars was the primary lie that the government was relying on that's right there and in the conspiracy charge count one that plea at the withdraw of council hearing he started backing off that to say well i actually never did and they couldn't prove it i don't have the opportunity to show the fact that i didn't have the sort of thousand dollars said under oath i have thirty thousand dollars in these bank accounts because not to get too far in the weeds here he bought the store and the store burned down and so he made an insurance  claim saying i want my insurance for the store that burned down and so did the person that sold the store who retained the structure and so the insurance lawyer i think properly said oh i see you're on public assistance how did you get the money to buy the store in the first place and he says under oath that this deposition i've got thirty thousand dollars in these bank accounts in lebanon ok and then the you know delve into that and so that plus records that we found  us to believe on the prosecution side but we can show that he had this money and didn't disclose it to the welfare people and that's that made a big difference because if you have that much money you don't get the benefits so know i was prepared to prove that beyond a reasonable doubt i had to to find him guilty we didn't really get into that in the trial before his guilty plea but judge younger you know on page one eighty one said excuse me page sixty five said you had thirty thousand and you didn't disclose and you knew that wouldn't that would have made a big difference and he says that's right so that's that's where that came from ok thank you very much was oh maybe on point by saying just let's start this trial so you can see what's going on because i don't know because i would think he doesn't understand mr dollars to me anyway the core issue comes back your right to counsel in whatever say we let you have in your choice of counsel the judge was looking at the test i guess in  that you know is appropriate i think you misconstrued the issue of timeliness because he said well you know this case been printing a long time it's been two months but now you're asking the issue of timeliness i put forward deals with the issue there would be when the breakdown comes won't isn't of an impact on the case unless it has an effect on the proceedings and in some way impacts the if that but that then begins to move in into the context again was the guilty plea valid are you just making up these things in order to get a new lawyer or is there some real problem did your lawyer in fact pressure you to do this dollie was under a huge amount of pressure and he said it you know i'm trying to do this to help my wife i want to get back to my kids they have four children three of whom were born here so they're u s citizens if he is de naturalized well and that process goes to its natural conclusion so i would also apply to his wife so now they have the awkward situation they get deported they can either take their three youngest kids or they can leave  here i don't know where you would deport in iraq he other than back to iraq perhaps he can go back to lebanon i don't know so the but he that's part of these considerations that we should that he wants us to look at in terms of what he was saying and what he did in his invalid so in any event sixteen weeks until the sentencing hearing if you've got new counsel or was given self representation he could have been ready for it and the fact that he even knew to ask yourself representation would i think indicate that he is beginning to become familiar with the american system of justice perhaps from his be a particularly in appropriate person to represent him that if anything you cla that his understanding of the american criminal justice system is correct yes which probably which may have come out on the front examination but i think as you alluded to earlier time incarceration seems to have an interesting effect on one's knowledge at least the words of law but you can say that that happens though he doesn't look at the credibility judge looks at this is that adequate he laid out the facts but his conclusion from them i think no you can represent yourself you know they're there for cause examination shows there's no foundation here for why you keep getting new counsel other than you don't like what they're saying you have a choice now you can go to we look this will constitute a waiver of counsel in good luck with that so we would have this we would submit that's what should happen to mr de lawley or there should be a fraud examination to see if in fact he was knowing enough about the procedures to make a conscious and intelligent decision to represent himself as opposed to simply saying what somebody told him back in the locker thank you ok thank you counsel for your argument today  know that you have taken this case pursuant to the criminal justice act that's a benefit to the system at large and obviously to mr lolly and we thank you for agreeing to  take the case on in that capacity with that again thank both counsel for arguments today in the case will be submitted