thanks to both counsel and our final case this morning is united states versus man of violence question is a categorical question that looks at the elements of in the fans we don't think about what cases ordinarily involve think about facts it's from court has made clear in a number of opinions this is an element based question and so the elements of the indiana fans are that somebody knowingly or intentionally one too in a rude angry or insolent manner three obstructs the nose or mouth of another person and four does so in a manner that impedes the normal breathing of that person why doesn't that satisfy the definition of physical force established by the johnson case which is just force capable of causing physical pain or injury if you obstruct somebody is breathing right well it's not violent physical force but that's been defined by johnson as force capable of causing physical pain or injury and impeding somebodies breathing or circulation is capable of causing pain or injury but not necessarily i think this is a this is capable of that doesn't have to actually produce that and by doing either of these things in a manner that  the normal breathing or circulation seems to me to satisfy that definition because it's at least intrinsically capable of causing physical pain or injury even if it doesn't specific case right but but that would that would render the johnson decision essentially irrelevant because what the johnson decision talks about is differentiating between nonviolent battery and violent battery and so it's almost it almost is but we have this distinction because what what the court wants to avoid is a simple on wanted touch being considered a violent felony even though that is a battery and so for example throwing urine on of producing pain or injury you know if you get it in somebodies eye or if somebody you know has a particular skin condition that is capable of producing pain or injury so we can't be limited by that language alone otherwise johnson goes away i think this case is a lot like what the court referenced as a nonviolent battery in athens which was the unwanted kissing of somebody who doesn't want to because and that's of course you know soon i was going to say it's been a feature in our national dialogue now for several months and i think it's important because it's according to our national dialogue a very serious offense i'm not standing here saying smith case for example in the indiana courts the testimony from the victim was i was on the ground the person put a blanket over my face that doesn't involve violence that's not slapping somebody that's not hitting somebody that's placing a blanket over their face and the victim specifically said no the person was an omni applying his plane just the blank was or my face and it was getting harder for me to prove she still could breathe you know this wasn't causing her an injury or causing her pain but she decided she she's having trouble breathing she needs to get out from under this blanket and so she did and i think a response to that might be well you have to apply some sort of violent force to keep somebody under a blanket or you have to apply some sort of violent force to kiss somebody against their will and we know that those actions happen without violent force is the elements of this offense not what most cases involve but the elements of this offense merely involve obstructing the nose or mouth of some person if you obstruct somebody knows by placing your hands up to their nose you are not violently assaulting them or battering it's   want to touch it it is a serious offense well there's more to it than that it's in a manner that impedes normal bleeding our circulation and so it has to be either long enough or forceful you know you know and more than a touch to qualify under this statute no because i could be the duration it doesn't have to be the the violence of the force that's employed it could be the duration that's the that's the blanket example  so and the other thing is to the indiana courts you know if the indiana court said to impede the normal breathing of a person you have to apply enough force so that they can't get out from under it or you know that they're breathing stops or or something like that then then we have a different question because the state would have to prove beyond a reasonable doubt that there was that much force involved that's what the categorical approach asked is what does the state have to prove beyond a reasonable doubt and you can impede the normal breathing of a person by placing a blanket in a nonviolent manner over their face and keeping them under the blankets for a duration of time again the question is not what forces use and i go back to that unwanted kissing one of the questions that has come up in our dialogue is well why didn't the women resistor or push back or certainly that wouldn't happen in less used force and our experience has been no actually the fear that is involved the the psychological resistance doesn't always manifest itself as physical resistance this sort of statute criminalizes i offensive not only because it has the potential for some sort of injury or or or pain it doesn't require that but it has a potential for that but also the potential for psychological injury and that's not the what triggered the forever hearing was the unequivocal statements at the beginning of the sentencing from both the lawyer and mr mansi as the lawyer said he wants to represent himself and mr mann  told the district court so your denying my motion or my request to proceed pro se those are those are unequivocal statements now if if the district court had then inquired and engaged in some sort of colloquy even if it's short of a threat a call cleon said well i know you want to present this issue but if you go pro se it's all or nothing you can you can either but your lawyer handle this issue and handle everything else or you have to handle everything else maybe then we'd have equivocations like we see in some of the cases that the government sites but the point is there wasn't that column and so all we have is an unequivocal statement that i want to proceed pro se you are denying my request to proceed pro se and an unequi the lawyer that he wants to represent himself and i think those are unequivocal as to trigger a hearing what's the remedy you're asking for the remedy would be a recent and sing it which mr mansi is would be able to elect to proceed pro good thing especially given the constitutional primacy of the right from the right to rights are obviously intention that's inherent in forever but that the basic question is whether this request for some unequivocal enough to clearest piece we have here but he was talking about my request to proceed pro se so what was that earlier in here and he said i would like to sit down with my attorney and go over the transcript so that i can present a specific argument  that's both confusing in the sense that he's not saying he wants to dispense with the benefits of counsel which is really what you have to say to be unequivocal about these things but he's also clearly catching it in strategic terms  a lot of times defendants want to proceed pro se for strategic reasons but if it's both strategic and it doesn't it clearly doesn't articulate a desire to dispense with the benefits of counsel then it's definitely equivocal so then really in my mind the only question here is and and also on his attorney mr donahoe statement that he wants to pursue pro se he said i think he wants to proceed pro se so that he can play those calls again it's strategic it's hedged does it call for the district court to jump in and say well now sounds to me like you want to proceed pro se do you want to do that i would just say maybe that superficial superficially sounds reasonable but  it would probably encourage defendants to say you're darn right i do i want to represent myself but in any event i think you have to find that all the context leading up to that in which he regularly disagreed with everyone about all kinds of things openly but always it's not about the fact that you disturb the proceedings it's that he did that while at the same time always relying on the church and always falling back on his attorney's advice so i think it was not an abuse of discretion at the very least for the district court to see this as part of the same pattern and that's why the abuse of discretion standards important in this context because they're in one applying this law because the context really matters a lot that's actually ground matter conducting himself to determine whether this was a quibble and the requesting to be couched or contingent upon winning a continuance as well so that he could get those calls before the issue i would say a couple of things simple envelope wanted touching there's no example in their brief i couldn't find anything of that being prosecutable as strangulation and indiana the best case for them again we agree on this is the blanket case fifteen seconds of someone at during that in a heated argument which is what this case was of someone pressing a blanket or holding i don't know what the differences a blanket down over your face i would imagine given that she pressed charges she was resisting if she wasn't it's that it's hard for her i mean it it changes something violent as in the comical i can't imagine what she was doing but it sounds like a scary situation and if it was harder for her  breathe i don't think we should minimize what it's what that means for someone else to make it harder for you to breathe it's not you know going in a sauna and having high humidity with you know covering your mouth with something whether it's a blanket or your over vagueness challenges facing the constitution which there's no need for the court to get into whether or not ordinary case will live biggest challenges are irrelevant here so even if it may have been sloppy wording on my part i don't see an assault that involves strangulation in indiana it's a standalone offense now it may never be prosecuted under my hypothetical but that's not my burden and i can imagine situations if the governor of indiana goes walking on a public place and somebody puts a plastic bag over his head that will impede his breathing it'll obstruct his mouth and i expect authorities would take that quite seriously that doesn't involve violent force that would be prosecutable as a felony in indiana because unlike these other states where this strangulation has been considered there's no requirement of assault there's no requirement to actually causing bodily injury there's no requirement of inflicting bodily injury so for those reasons