correction by way of dialogue or colloquy between the judge and the appellant and certainly develop this case show that he was laboring under that paul impression about the maximum permissible punishment when he was convicted on count was pretty much at the suggestion or even of the trial judge indicating that he should be held and he stand by capacity and assist mr erskine during the course of the second trial and thousand pound one was a threat on july eleventh two thousand where he's found not guilty throughout who was a threat to a federal officer on july twenty first two thousand where there's a hung jury and then the second trial started mabel two thousand  because the internet the place on june third in july fifteenth the convention was on february twenty sixth two thousand and one that's seven months later and in order for this  thousand and seven months earlier when he went back in to attempt to purchase the got and he was told he's not going to get it and as far as the record on he was concerned there were no further attempts to purchase and weapon beyond that seven fifty two thousand think nobody ever said it was a good idea to take a very good forever all right but i think he did get out the objection both past so the fact that it might have been are to be wrong to the count if there was a hung jury on and eventually his right to represent himself on the first stage trial as a court has already pointed out in open court by government counsel advised the defendants and the court that the correct maximum penalty for the offens five years in prison but this was a month after the waiver yes your honor that's correct it was approximately a month after the waiver it occurred the morning of trial before jury selection began that advisement was an oral advisement open incorrectly stated that the maximum penalty for the offense charge was three years in prison after the mistrial was declared before the second trial the defendant requested to represent himself during that  understood before the trial began and while the record does indicate that at the point that the defendant made the foreknow waiver he understood the penalty to be one year and that was incorrect prior to the trial and after you made your statement which was the first the court responded all right thank you very much and proceeded to with the case now that the district judge is nothing on the record that maximum years three years so that's at the end of trial so why should looking at the whole record how can we assume that this person who exhibits fantasies and a real disturbed min was incorrect and in an effort to make sure that everybody understood that the three year statement that the government offered a trial memorandum was incorrect i informed the depending on the court in open court of the  penalty on your honor's correct that after i advised the defendant of the maximum penalty on the first day of trial no one did ask the defendant whether he understood and in light of that new information whether he wished to continue sequence of events unfolded in this incident necessarily is a correct position to assume that the defendant was going to believe what i said over what the judge had already told him but in looking at the forever defendant did have the ability at that point if he was concerned about the prospect of the five year maximum penalty and if that was going to affect his decision to represent himself he didn't have the opportunity to speak up and say to the judge hey wait a minute your honor you told me a month ago to wait wait wait wait wait i've been burned enough times by records where i didn't put on the record i got burned in front of a jury for a question that i asked and got answer both of them laughing but argued to the jury as a for a straight question and a straight answer because the histrionics in the courtroom were not in that case the deposition were not on the record so i come back to the record all we have all we have is your statement on the record and the judge saying thank you there is nothing tunes to tell us that mr erskine was paying attention that he wasn't  books that he wasn't drifting off on you know a fantasy at that point there is no confirmation on the record either by you asking the court to confirm that  heard what you said there's no written documentation that was put in that was with the front of him so that at least he got a copy of it and you know that he was advised there is an oral statement and that is what bothers me here you may be absolutely in and you jumped the maximum penalty on him by four years over what do you originally understood and what whoever filed the original trial memo have said so and that was a written document whereas this was oral so i am really troubled by the notion that we should say well you have the opportunity think that's a serious problem because i have the same concerns and i just want to what is the proceedings prior to trial the elements required for a friend a waiver and united states versus locals to know at the time of the threat a waiver the court asked the defendant about the elements of the offen the defendant if he understood the elements of the offense and the defendant stated clearly no thank moving on from now point the next issue that i want to address is the issue that the government raises in this brief concerning the applications of the plane air review standard assuming that the court does determine that error occurs in need defendants waiver of his right to counsel and that he did not know when of the three elements require correction on the records if you weren't there at the original what weight should we in that plane error assessment of deciding whether to impose on the public defenders who had been put into the background by mr erskin about the correct penalty at the original hearing why wouldn't the same argument then turn around and apply well if if your fans turned about it then why didn't you with the hearing make sure th disclosed and october two thousand and one several months after the trial had occurred and approximately a month and a half or two months prior to sentencing if that that there's no court every fifteen players the than looking to what he may have been told after the damage is done at the end of the trial we do look under lopez than we did lord and held against them that had a prior a prior hearing are you saying that even after the fears are was delivered to him which showed a five year maximum that somehow that's what rights would equal with that vest him at that point he's already been tried he's ok thank you thank you