you may please the court my name is brian cornbread i represent jeffrey cohen for purposes of appeal i would like to begin in regard to the issue as to whether cohen six amendment right to counsel was denied at sentencing one issue before the court is whether or not it was a critical stage of the proceeding clearly it was we can see that there were go by himself so we have to leave that decision to him ok there's a very critical point of the sentencing proceeding so when cohen clearly changes his mind the court did not meet for final sentencing until december  importantly it was about two weeks before cohen filed his motion that the district court judge filed its advisory guideline calculations these are the same god i wondered if on when was the right so within that window of time cohen does two things he does his best to try to refute the guideline calculations by filing a pro se rule thirty two objection heures where i feel the calculations are wrong but then again on the twenty third of november he files the motion asking for counsel in coleman's own words i don't know what i don't know i need assistance for the rest of the proceedings and that would right i agree with that that the probation office came out with draft pre sentence reports before that he had no idea what was taking place but i think in cohen's mind he believes that he provided detailed actuarial evidence to show on a year by year basis what indemnity had to pay out in litigation costs defend the claims and settlement costs to get rid of the claim it's a historical set of facts it was all presented to the district court judge overtime year by year by year this is what the company cohen's claiming that the government witnesses assertion that suddenly a half a billion dollars in claims are due goes against everything you provide to the court and what's important is it's never once have the  we feel that it was a critical stage the record establishes that cohen was otherwise indigent the federal public defender office for maryland represented in early parts of the proceeding standby counsel was appointed under the criminal justice act clearly because of the were there were two sets of hearings one in september of fifteen and then he continued in november of fifty all together a couple weeks i would say maybe five or six days total five or six days here on the set right who might be most likely at the hearing where he's asking for counsel the magistrate judge tells your guideline calculations are off the charts that's why i need an attorney i don't know what i don't know what couldn't attorney have done it dept one of the proceedings it's obvious anyone that has experience in a criminal case i'm going to file detailed departure arguments variance request to the court i will object to the findings in the calculations under rule thirty two and ask that the court make findings on those including loss calculations unwarranted disparity arguments what happened in enron what happened in bernie madoff's case character reference letters charitable good works all of this information th defense attorney keenan should provide a court before final sentence is imposed the government in its argument against cohen having counsel is talking about calendar and hearings we can't delay proceedings each in every case the government relies on deals with jury trials that's where you have the parties the litigants the jurors potential witnesses other cases on the runway waiting for a jury trial but the courts consistently distinguish between trial delay and post conviction proceedings like th oh he would go to work in the mail out my understanding is that they had a court order in place where he transport on a regular basis to look at discovery a lot of it was electronic and he had a laptop that if it's not for purposes of de lay or done in bad faith the courts regular only grant the request counsel cohen wasn't acting in bad faith he threw up his hands and said i need help and there was no reason in the world why the district court any lawyer worth his salt would look at this case and say to the district court judge you deserve the most reliable information out there order to decide a fair sentence if it's fair to the government it's fair to cohen it's fair to society in two thousand and fifteen when the court was grappling with the loss all the court had based on the government witness was best estimates of claims even the government witness testified and we have not analyzed the actual claims i don't want to make that came into this case would have said to the district court judge army with seventy six peanut let me get you those claims information because it's november two thousand and fifteen the our date was eleven months ago i can show you what those claims ellie have made seven point three million dollars without ever showing a claim to the court something's rotten in denmark an attorney could have helped his case i've got forty two sec to briefly talk about farmer claim i'm asking the court to basically look at two things cohen filed a document that requested a farmer hearing he provided a detailed affidavit that explained why the assets should not have been seized farmer may have pleased the court this case arises out of the findings fraudulent operation of major insurance for a number of years in two thousand and thirteen delaware regulatory authorities came concern for public's welfare  wanted to clarify actually this case the sentencing proceeding became a mini trial in the not so and in part the government would submit that was part of the district court trying to give the defendant pro se defendant every benefit of the doubt sentencing began in september with three days of evidentiary testimony the government witnesses and the defendant three more days in november and as the court has heard it wasn't until after the court issued its factual advisory guidelines calculation in november the defendant requested to have counsel point it's correct that was filed on the twenty third but the only thing that remained in the proceedings at that point was one hour of argument by both sides in the pronouncement of sects so we have a sentencing proceeding which is correct your honor and you know one of the things we focus in our briefs was how long the defendant had represented himself how many different types of proceedings he had chosen to represent himself and there was nothing fundamentally different about this last hour of sentencing needed enter into the record then there was pointed federal public defenders maryland that represented him for approximately five months and then he represented himself from november twenty fourth forward having three different standby counsel and we get into special requests for opportunities to come review discovery for special cheers for special and for a variety of other things he felt that he was the best litigant for self he felt that he was the most effective bet for self and it was not until november facing life no your honor that's the first time that he knew that's what the district court felt were guidelines calculational got this fifty one life kept at fifty seven years by the statutory rights so the defendant was put on notice as to the potential lots of objections to the calculation of a lawsuit in this case he filed lots of points of law with regard to all the different various guideline issues this case and the the pre sentence report was revised five different times in response to comments by the government by the court and by the the defendant and as early as september the pre sentence report stated that excuse me the end of august the pre sentence report stated that the calculation by the probation office was for like level fifty one so the defendant had three plus months after that pre sentence report came out when he knew that's what he was facing yet he acts surprised in november what happened in november is that he knew what the judge thought he knew what the judge's determination and in his motion he doesn't just seek counsel when he files this on november twenty third he specifically asked for delay he asked for an attorney to be appointed to plead the facts ignoring the fact that where we were procedurally in the case of at that point the judge had already issued the factual an advisory guidelines cost should the time for introducing evidence had come and gone he had been given six full days at sentencing to put in any facts that he wanted relating to the calculation the guidelines or various other issues and he represented himself through that it was only after he got an adverse decision that he wanted to have counsel come in and he didn't want to just have counsel he wanted to postpone the proceedings and delay and the court below pressed in the december first hearing about this pointing out to him that it looked like he just wanted to go back and start over from the beginning of the case and the the defendant said i see your point your honor before then backtracking in trying to explanation just why that is why the court below meant a factu west this court's decision west there's the court look to the timeliness of the request in this case it was made well after the sentencing proceeding had done in fact for the final hour it was the only time that he asserted this but also we had countervailing public interest the orderly administration of justice quite frankly your honor as the victims had been concerned for their safety and what would happen with this case since june of two thousand and fourteen when the dirt on it was for the victims the people who the evidence came out that the defendant was trying to harm the judge the state court judge moved out of his house for your time as a result of the threat he received from this defendant we call that sentencing scary smart so we had a public interest in resolution five thousand dollar firearm purchase the ammonium nitrate he purchased the travel to delaware the recordings he made of attacking and killing various individuals but returning to the issue of counsel for the final hour this defendant had handled evidentiary hearing so he'd gone through the crucible of trial doing opening statements doing cross examinations of dozens of government witnesses arguing legal points during sentencing proceedings in which he pled the facts in the law and there was nothing unique or different about this one hour the main we believe that the district court that the court below correctly exercised its discretion in denying this issue under the case law the court is entitle to also consider as judge factor pointed out the issue of the defendant's relationship with and in this case he had many problems with him as the court pointed out we even see here in the court of appeals that he sought to represent himself to complaints about counsel so the court below had no assurance that if it appointed counsel for the final hour that there wouldn't be some other additional change or complaint that what would occur in the ten days remaining should we go down that the government would submit we should not the purported farmer request as we put forth in our brief when you look at it in the timeline was really request police seize funds for standby counsel that currently conceded by the defendant now an argument as they are conceding that he all along made the decision to represent himself until november of two thousand and fifteen that being the case the government would submit there is no due process right really least seize funds for stand by counsel in fact the case law is uniform that once you make the dissolute decision to represent yourself whether you have stand by counsel it's not an absolute right it's in the discretion of and that the right to have counsel represent you in the right to represent yourself mutually exclusive under this court's case law and so the decision of the court below both the magistrate judge and the district court was appropriate and supported by the law  just to address one thing that i'm quickly remembering should stocker the motion to rescind was it j eighteen twenty four sorry that's a little bit out of place in my statements here but judge floyd defines first makes the request for counsel for the release of seized funds in february the government responds and says he's has to be representing himself why is he making this request the defendant makes clear that the request is for stand for funds to pay for standby counsel and the government believes that's not called for even if you apply to due process rights releases funds for standby counsel he didn't make the showing required by pharma he didn't make a sufficient factual showing like in farmer or you had the issue of an attorney being told by the government agents that they see these things improperly here there was no factual basis to find that the seizures were improper returning to the issue of counsel for the final hour of argument one thing that the government also wants to stress is that there was a manipulative motive i just read in the entire context of this case not only was it on time judge the judge made the finding that he was not giving a good reason for to our court the court did not use the word manipulative but said that the reasons given didn't make sense and were not good there was no good cause given by him manipulative his our term and the term in the case law you also find cases that refer to mischief or floyd by the defendant on the judge's finding was that the reasons given were not that they didn't warrant the appointment of counsel and one of the things we point to in our brief for why this court make a finding of manipulation in addition what the found was that in his motion the defendant falsely claimed that he wanted counsel all along that he's conceding on an appeal that that isn't what he so he's writing something in his motion and in his arguments asking for counsel that's  eighteen thirty five saying i wanted counsel all along that's contrary to the record in this case and that's an evidence to this court that the defendant's request was mere merely manipulative merely an attempt to start an excuse me at the beginning and to have this done all over again the government believes that us to the issue of council in december two thousand and fifteen it was an appropriate exercise of discretion the court was entitle to consider the entire history of this case a year and a half of proceedings during which the design and sought to represent himself for over a year the defendant didn't make this request right after the trial like in some cases cited by the oh no he didn't make it in june he didn't make it in the summer when he was filing something memorandum he didn't make it during the eviden he only made it after he knew that the district judge the one who was going to finally pronounce his sentence was against him and the government summits that that's important we had countervailing public interests here at the decision was right for a jew to cation judge it heard the trial evidence six days of sentencing and was teed up and ready to go the district judge had just spent all this time putting together some actually a fifteen page single spaced analysis of the whole case calculating the guidelines making findings and the judge was ready to hear the as to issue four so we didn't address it in the government's view of the last calculation was perfectly appropriate here the court heard all of the evidence through the sentencing phase there was ample evidence in the record that the defendant had accumulated way more than the sixty five million dollars required for the calculation lost under the guidelines here the sixty five million dollars was the threshold the court found that the loss was one hundred thirty seven million dollars under one theory and under the alternative theory based upon the proof of claims it found that it was one hundred twenty six million dollars loss so we had two different ways that the district court relied upon its guidelines calculation and finding that the loss in this case exceeded the sixty five million dollar threshold the hundred million dollar loss amount was supported by all of the evidence in the record including the premiums that he collected and the fact that this company was entirely fraudulent it was under capitalized at the beginning and continually under capitalized throughout essentially just writing policies and thinking that that was satisfying his obligations whereas the district court pointed out he needed to have a cash basis to pay out on those policies of people needed to see claims in conclusion your honour's the government believes that the district court below properly exercised its discretion in denying counsel for the december tenth hearing this is a case in which the defendant had counts had the opportunity to request counsel for over a year did not do so made the decision to represent himself saw himself as the most effective advocate for his position he only did so after the court made a finding against him and he could tell which way the court was leaning in terms of sen the defendant's motivations for this smacked of manipulation and delay he specifically sought to lay any specifically nor the procedural stance of the case he was asking for motions to be filed even in this court the appellant's brief asked for bringing in experts in adjusters to address the issue of laws that procedurally norris where the case was on december first two thousand and fifteen when he was asking for counsel to be appointed by then all the evidence had been wrapped up you've been in this thing all along i have your own court requires a response and that we would ask for the chance to submit something supplemental to as mr cohen did make many pro se arguments and we did not have the opportunity to prepare adequately for argument as to all of one thing i would say though if the court is thinking about that issue is that the maximum penalty on count one was twenty years to the maximum penalty on one of the other counts was twenty years so we easily exceed the thirty seven years that the court ended up in posing as the final  another issue i haven't had enough time to go into but he had counts appointed counsel speak at the final hour of sentencing that appoint that standby counsel went through all the three five five three eight factors and so there's a harmless error analysis that can be a reach under the existing case law the farmer case is talking about the release of seized funds for representative counsel we don't think there's a due process interest in what he was requesting here and even if there was he didn't make the factual allegation a few points judge that misspoke if you look at the docket entry join appendix page fifty nine which establishes that cohen filed his motion for an attorney and the event for twenty third two thousand and fifteen again importantly before the the government's claims is not going to correct the government's claims about one being dangerous we do footnote that in our reply brief even the district court judge found perhaps it reaches a preponderance of the evidence but i will not go to a higher standard even for detention as to rise to clear and convincing evidence to stay in jail he didn't even find that standard the sixth amendment right that we raise does not allow for harmless error analysis as the government claims back to the claim information in the context of this case the claims have never come to light in over three years i've alerted to government to that fact repeatedly ask them to investigate why these claims information is out there briefly in regard to the farmer claim i can see judge floyd's point if cohen is asking for a release of funds for hybrid stand by coun representation that's off the board it's not allowed it's just unheard of i'm asking this court to look at his two filings november eighteenth two thousand and fourteen a detailed statement explaining why the assets were se improperly and he lists innocent owner untainted excessive loss claims that don't support the forfeiture those are all laid out in his pro se pleading and then on february ninth two thousand and fifteen that's when he specifically references armor case as court i want to hearing based on farmer so i can obtain an attorney i can see that mutates there after where he's asking for funds for standby counsel etc but if you give these  at that point in time cohen is making a factual showing to support the hearing and he's asking for the hearing because farmer itself requires the hearing to determine if funds are available for private  last thing i want to point out is i welcome the court referred to our reply brief a page fifteen where we look at another district court case from maryland where this case originates and the very limited threshold showing that's required