good afternoon this is this is the hearing scheduled in the case of the united states versus kiri th circuit docket number eighteen pell commissioner that's me is appearing at the united states court of appeals court house in san francisco and we have a video link to the federal so this proceeding is being recorded so if there is any need to refer although i doubt there will be any need to refer to the proceedings a recording of the proceedings can be made available and as a st order of business mr kerry because i'm going to be asking you some questions i'm going to ask my courtroom deputy to administer the o yes please raise your right hand do you solemnly affirm that the statements you are about to make in the case now before this court will be the truth the whole truth and nothing but truth and this you do under the pains and penalties of perjury i did please state and spell your name for the record michael carey c a r e y all right mr carey do you have any physical or mental impairments that would affect your ability to participate fully and knowingly in these proceedings negative are you under the influence of any drug or alcohol negative are you able to hear me and to respond freely yes or well here in response to your request to represent yourself in this appeal to court has authorized me to conduct this hearing to make sure that you understand the dangers and disadvantages of suffer percent taishan on appeal and that your request is knowing intelligent and unequivocal you understand that if you understand you have the right to counsel on th if you cannot afford to retain counsel you are entitled to have counsel appointed to represent you at government expense and you know you've had some of those the course 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 suffer a percentage not appeal nd inquire whether the issues are so complex that the assistance of counsel with aid the court in deciding the your honor you also may withdraw your request to represent yourself and in that case you may continue with plenty counsel you also are entitled to retain new counsel if you so choose i am also well the court of appeals does not however allow for you to represent yourself and simultaneously have counsel represent so it's in the district court sometimes there's the notion of having a standby counsel with the court of appeals does not allow advisory or standby counsel do you understand that i understand that all right so i have reviewed the docket in detail the st opinion i reviewed what occurred after that every  given your lack of specific training in civil engineer lots of networking and started out though ground floor and became friends with the owner and worked my way up in my ability to speak spanish whereas the owner did not speak spanish was the biggest plus for him to hire me because i was able to translate and him and i would travel throughout mexico and after you understood this i could get the job done he turned it over  shortly thereafter i became partner in that name of that company was exile international based out of san diego in what year if you were there i started doing that in two thousand and two and the company dissolved in two thousand conduct events in mexico with the use of their octagon and we were building a company to sell it off to u s c we started that in two thousand and seven and i finished that  traffic violation i have all right so i read your explanation of  living gaiters who have been appointed to represent you including your current counsel who as we once were very familiar with the inner workings of the th circuit and has a great deal of insight into how to construct a persuasive brief and argument and i'm curious specifically why at this stage of the game you want to relinquish  facts the case it should be a pretty easy do to determine whether the holes were heard within or without plane hearing and i believe that since it's facts  derived i have the best understanding of this case because i've been sitting in this case for eight years i know my discovery inside and out my memory as well as the intertwined case us here correia knowing the facts and the discovery from there he's in my case better than any other attorney because this is the only case i've been working on for the last eight years i feel that since it's fast dried i can best articulate the facts not to diminish with the laws that apply to judges came up with the point here a doctrine test and they wanted facts and the attorneys at that point were not able to deliver the facts and i presented what attachment in my response to your honor that shows i understand the facts i understand how they apply upon hearing so i don't believe that my lack of formal training in law will diminish my capacity to explain the fa because i know the facts inside and out and have you consider the possibility of drafting some your understanding of the factual argument and sent sending it to your attorney at your point of counsel and having them review that and perhaps a poor grade that to a large extent in the brief i have considered that and this decision i'm taking has not been taken one day to the next five control to with my family and with my clergy and i feel at this point in the game i understand the facts the best and i would response she mentioned that she had discussed with you know the dangers and disadvantages of some purpose and patient on it p r but i'm going to also do that now and i'm going so that we have on the record clear explanation to you of those dangers and this event is so that the court can ensure that your decision is intelligent no with particular care because i'm going to go through the dangers and disadvantages and there i get to ask ounce of if there is anything else that they think i have to be explained to i repeat things that you are aware of or if they seem very elementary to you forgive me i just want to make sure you understand everything so that your gut is as you know from your st appeal an appeal is different from a trial the proceedings occur mainly through written submissions called briefs and those briefs have to comply with specific court rules if you represent yourself you will be expected to with those rules although much leeway is given to a pro se litigant there are certain rules that you have to comply with and your appeal could be dismissed if you do not comply with various rules governing the way briefs have to be prepared and presented you understand you have to obtain and review the transcript of the trial for seeing the evidence you're hearing in your case and identify the potential legal errors and factual errors committed at trial the issues are limited to addressing only what occurred at trial in that hearing the court of appeals does not consider new evidence so if there's something that you wish had been presented in the evidentiary hearing but was sophisticated analytic ability if you fail to raise a particular issue you may be barred from raising that issue again do you understand that yes you also have to support any assertion of legal authority that means you have to be able to research and understand the provisions of the constitution federal statutes and rules and cases from the relevant courts and have addressed the issue and i realize inquiry are pretty much defined by the opinion and carry one so i don't think that it's going to require much in the way of additional legal research although you will need to address at least the cases that the district court relied on in the when it really reached its conclusion and any new authority that may have been announced after that case that test requires familiarity with legal research techniques you understand that the district court reiterated kerry and there are also strategic truman nations that come into play in any appeal this is a matter as to which appointed counsel are particularly adept who way to structure the breed the way to structure the arguments the way to  the statement of the case the facts in a manner that's most persuasive to a panel of judges that that kind of knack it's an art of presentation read your responses and your filings in a court i think you have proven yourself to be taking a lead and a very good writer so i don't see that there's any problem in communicative skills one of the dangers and disadvantages that i typically talk to is is how challenging it is to do that i think in your case you are able to accomplish this task even though you haven't had the training of appointing counsel there are other difficulties that you will encounter trying to  may have some assistance in the facility where you reside in if you are working with another inmate i don't know if that's the case but if so there's no guarantee that you will continue to have that assistance available to you it may well be more difficult feat of communicating with the court via telephone for example than it would be for counsel and that also may present in additional obstacle you understand the that notion that being incarcerated makes it more difficult for you to communicate with the court i do understand and i've only used lapsus well incarcerated and i have no problem using lexis nexis pr institution all right mr kerry in addition to the written submissions the briefs that we've covered the court of a loud or argument and in some cases as you know there was an oral argument in your st appeal and the oral ar as you know from viewing the oral argument it's an opportunity for the parties to ensure that the judges understand the arguments it's also an opportunity for the judges to ask specific pointed questions about the proper disposition of the appeal where a criminal defendant is represented by counsel the court often scheduled oral argument but where a criminal defendant represents himself or herself and says incarcerated the court is very unlikely to schedule oral argument so by virtue of representing yourself the chances of the poor allowing or getting your point i guess i have a question for you your honor you explained you know the note i had was about the oral argument and the potential that you said the chance for oral argument is diminished is that something that mr kerry can make a specific request and can and how do you seen arrangements been made to have an oral argument presentation by video conference from someone who isn't a card or incarcerated inmate is that nature the notion of or that it might be a very complicated task to try and schedule that three judges traveling to a location and try to schedule in addition to that try to hook in as we're doing now bernie has submitted to the court as well i'm going to prepare a report a recommendation recommending to the court that it to exercise its discretion to allow you to represent yourself  only asked in her submission that the court grant an additional sixty days for you to prepare an opening brief and my question to you is is that the amount of time that you think you need or is there another amount of time that you think would be adequate and preferable i believe sixty days upon receiving the case file from this should body will suffice allow time for the appellate to submit comments objections and i i can do so here and give you time to do that or i can simply serve it on you and send it to the judges without giving you a opportunity to review it based upon the representation that it will recommend granting  you know but based upon the facts of the case the narrative of the issue your ability to articulate your your thoughts and arguments in writing but i  wonder whether you would prefer that i simply submit it to a three judge panel as quickly as possible i anticipate that they will accept my recommendation so we can move forward more quickly that's option or objections that you wish and then submit the report or recommendation along with any submission that you wish to the panel for their consideration so i i don't mean to pressure you one way or the other usually the court turns these around pretty quickly so the most respectable would would probably well under a week usually two days two or three days in order for them to respond sometimes it would take up to well here's where here's here's where i think i'll do i think i will set the briefing schedule ninety days no more than ninety days i would urge you to get your brief submitted as soon as possible and then i'll give the government thirty days after service of your brief for them to father answer in brief so that later that this scheduling somewhat within your control yes i intend to have filed as soon as possible right and i i do agree with you that the scope here is is fairly narrow the leap the legal argument the legal standard is very clear and then the question is you marshalling the facts and explaining why the district court erred in its conclusion concerning the plane hearing