is the criminal justice system is based upon two principles number one that it criminal defendant is not only entitled to a fair trial but the appearance of a fair trial to a citizen observers and this was violated when mr stafford who had a twenty year history of untreated mental illness was permitted to represent himself as a criminal defendant before a very experienced and able united states attorney and second your point is he should have been denied the edwards the court said that there are two levels of competency there is the competency to merely stand trial and there is the competency to represent oneself in the court held for the first time that one is higher now this court has taken that precedent very seriously in the united states v gabrielle on united states vbac united states and then just on december eighteenth of this past year united states v good this court has taken the supreme court at its word and said that there are indeed two levels of competency now this court has gone further than the other circuits to interpret that precedent it has gone for the in the seventh the eighth in the towns which have not said unequivocally that there are always two levels of competency so if  this precedence seriously and if we truly believe that there are two levels of competence than that means there must be circumstances where a defendant who satisfies the mental satisfies the competency standard to stand trial can be is whether they have a right to it when they've argued against it and have different mean you could have that you could everything you say could be right and you could still lose three days what i'm saying is that true  you will say there's a different standard it's possible that the judge can say you know you're not capable of giving yourself a fictive representation and therefore were opposing counsel on you in that that's ok under the right and all of the things you've been citing support that but they don't compel the conclusion that that a judge has to do that i would submit your honor that it actually does now that indian to be edwards well first of all if we look at the circuit precedence and in particular posada sigler of the seventh eighth and ten circuits have said exactly as you did that it's just a permissive right as in the court can say you know what i don't even i don't believe that you're competent to represent yourself i'm going to require you to have counsel but in this case lawyer that that's the law absolutely your honor that's that clearly is the law but the question presented by this case which hasn't which has only been addressed to my knowledge by the eleventh circuit in this context is ken if the district court allows the defendant to have a to have counsel or i'm sorry if the defendant allows the defendant to proceed pro se then actually did say unequivocally that there are two levels of competency which has two levels of competency and have and and have either rule as to whether a judge is required to deny to grant to him to impose counsel because there you could have two levels of competency and therefore a judge permitted to impose counsel b you want to say there's two levels of competency in there for a judge is required to impose counsel in some circumstances that's that's correct the two levels of of the two levels could support either so it doesn't support that doesn't necessarily support the rule you're advocating it could also be used to support the rule that that makes it permissive rather than mandatory and indeed the seventy's and the true yeah that is true your honor in the seventh eighth and ten circuits have held it exactly that have some some argument for why it makes sense to apart from the fact that there's two levels which is consistent with rejecting your argument as it is as consistent with rejecting your argument as with accepting your argument do you have other arguments for why we should accept your argument yes your honor but i think if we take the indian to be edwards will seriously if we truly believe that somebody can competent to represent to stand trial but cannot be competent to actually carry out the tasks that are necessary to represent himself at trial if we truly believe that one standard is higher than the other then if the defendant is below that level he simply isn't receiving a constitutionally protected right of representation now you would have district courts have the level of expertise in mental health to to make that assessment as a matter of law judge cook i think they already do in fact if we look at this case judge down the did have to examine psychological weapons and he did have to make a determination as to whether  thought that he evaluated that evaluated does that make it his discretion she does i do believe he is entitled to a presumption of correctness what we would normally call one of the you know clearly clearly erroneous standard the feature of the case where you think judge dow did not clearly evidence his interest in the sec the two levels i think that's part of it although i don't think that more than there we think it is more than that if we look at edwards on page one seventy six edward specifically identified certain types of symptoms of mental illness that it considered relevant to the question it talked about  organized thinking attention concentration deficit's impaired expressive abilities and anxiety not remembering whether or not the defendant in that case insisted despite being advised otherwise insisted that he be permitted to represent himself he did try to represent himself several times if you say these were analogous in that regard i think they are analogous in that regard certainly your honor i think analysis that the resort about the new ground here where we're talking about imposing a a council over the objection of the the defendant but here it's not only over the objection of the defendant but it's against the the argument of of his of his counsel who is not incompetent at all presumably right and who is asking for this person to be able to represent himself that is true your honor but just because a council has agreed has never stopped this court in the past from actually looking at the merits if we look at agreed but if they're asking for it so it opens up the possibility of sand of reversal if we do and reversal if we don't kind of and you're also ability there which is a little bit inconsistent with how courts should be run and some and your honor i would submit that the exact same problem could have come up in the united as well that this court dealt with that more informally known as the underwear bomber in that case both the defendant and his counsel said that he they believed he was capable of representing himself and this court instead of simply saying there is a sign of serious mental illness and one of the uncontested findings in this case was that mr stafford suffered from serious mental illness the district court acknowledge that there was uncontested testimony by both expert as to that if i may  the gray area as i understand it just definitional e is his where he's competent to represent himself but at least he contends that he's incompetent to or that he's able to what is the gray area the gray area would be and the supreme court uses that i believe is the term of art for somebody who can't who sat despise the relatively low threshold for competency but there are serious questions as to whether they need to hire state and i shouldn't in the gray area district judge have to have great discretion to determine whether to impose counsel in that case because i think it goes to the fundamental because i think goes to federal fundamental rights in the system in people who are entitled to a right to counsel and to adequate representation whether they provide that represented griot that in some of those cases the judge should impose counseling in other cases it's not is that correct i agree your honor and if that's true then the court system has to decide would it be better to have the district court making that decision than the court of appeals and as a first matter i agree that in general the distro is so you should defer to their discretion generally unless they've abused their discretion yeah i agree are you just saying this is an abuse of discretion in making that determination on the part of the judge yes your honor yes your honor in other cases that have found that kind of abuse of discretion no your honor the does the abuse of discretion standard in this context can be strictly employed or loosely employed however you want to call it that we have no precedent which saying such a decision was an abuse of discretion your honor i would suggest that maybe we ought to tread with a little care before we say there was an abuse of discretion here when i do think that this you are correct this would be the first time that somebody has held that council must be imposed over the district court's ruling but i think the rules are already out there are eleven circuits already taken the step to impose the rule which just hasn't found a factual situation to apply it to and i'd say the same thing for the however the focus in this case would be the best experience of judge doubt in this case i believe the core pointed out does go to his discretion to interpret and in indiana be edwards and i think in this case both on the record and in a memo that his chambers had prepared and sent to both defense counsel and the government that interpretation and application was not only done but done properly and in the spirit and the letter of indiana be edwards i take that argument i want to step back a minute though what if the case were different and the and the judge had abused his discretion who made an irrational determination one that could be supported by the reasoning that the judge used in that case could we reverse and say reversed the conviction on that pro i'm i'm not sure about that sort of case because in this case we had the you had me in the position that that you're not taking that position no your honor i'm taking the position that in this case there were two mental health experts i just want to make to make it clear so you're just arguing there was no doubt abuse of discretion not that there could be an abuse of character because again indiana versus edwards just says that there there is no and this is this is judged out these are judged of course whether there is an obligation to  to to deny to grant the motion to go pro se even though the person was questionable i think after of you under a plane air standard that in theory in theory could happen however in this case where there were multiple hearings about this issue there memorandum written and there as i said their findings while there are two mental health experts who testified one one was inconclusive one said that he was competent to proceed and in fact answer with with mr stafford where in fact to some of the answers about jury selection and for dear judge doubts that you know that that is an excellent a very good answer and i think he even made the joke that that might be a better answer than even he could give so so  again also going back to as we were going our brief this was not objected to by defense or defense counsel this this was in fact pursued by them they raised the motion for the competency hearing and then the defendant raised this request to represent himself per se so again i would say even if that doesn't amount to a waiver it could be part of the district judges a valuation judge that lawyer advocates this absolutely and the lawyer did not make a pass of that argument in favor of his defendant's motion on and i don't have the site with me it was about two or three pages long on may twenty first where they were the defense counsel very experienced federal public defender went through a number of reasons why he believes that in this case mr stafford was in fact competent to represent himself notwithstanding all of those factors and judged out still did appoint him to be sort of a shadow counsel or standby counsel during trial with a second this court in the united states versus a mallee where a hearing was held to determine whether a terrorism hanson applied with it with appropriate applied during that time there were briefs sought evidence taken during a hearing and a decision on that application in there as to be evidence that the defendant intended to influence the government yes yes your honor and that if there were no such evidence then we would reverse is clearly erroneous is that right on a factual issue yes  typed in the detonation code on one of the cell phone detonators the night after he played the night that he planted one of the bombs at the base of their data to bridge the night that one of the coconspirators looked at him and said this is the greatest act of terrorism in cleveland since the sixt after the same night that they talked about possibly going to guantanamo bay after they were caught because because one time obeys where he sent political prisoners also does that evidence that he's trying to influence the government or evidence that will think that he'll be sort of the folk hero or something like you're on to this this court is same thing well you're going to deny that we we may be bound by this or that definition of terrorism but we can't be bound by that and that step commission now but does this court has found that the the invocation of the one percent the invocation of going to chicago the next day or the week later two protested g eight the g eight conference is in the nato conferences which is what all the coconspirators were talking about that night i think it's fair to say that the air was thick with antigovernment in the revolutionary talk that night it was that or less of a tie between stafford and that that aspect well your honor he was in the van when these conversations were happening he was identified himself in douglas right on words as somebody he can trust somebody who's up for revolutionary and then he is next expletive so the co defendants identified him as somebody who was up for revolutionary behavior and all of all of mr stafford actions the few days leading up to that and the night of certainly supported that assessment by his coconspirators again this is this is somebody it has to be in our in the thinking of the court of appeals it has to be an amalgamation of the talk of terrorism because he's then just a listener with the his detonate detonating could context there is no mistake he didn't accidentally go to the bridge because he likes to see things blow up he didn't accidentally volunteer to take a detonator which he did and repeatedly type in the codes because he likes to fiddle with cell phones conspiracy it was to do this can it be transferred to this defendant or does he have to have his own independent ted your i think both arguments could be made the way with charged with is a conspiracy in part and certainly the acts and the intentions of the conspiracy are applied to the individual as they are to the whole but i think the individual comments of a few days before that mr stafford with talking about using thermite which  is that kind of intent and for the terrorism enhancement you're not affect you not really well you know that you'll have some effect on government by blowing a building up or whatever but your intent is not your going to interfere with the government but rather to this is something we can figure this out for your intent is just to become famous again in the in in this case we have definition of the word not what's going on in this case what do you think the word means as word include that you think or your honor i think if you're you're intentionally selecting a political target or a target of political value there there has to be an element of terrorism would be motivated the you could assassinate a federal judge because you're because you're mad that they would let you marry his daughter or something i don't know well you're under there you're  father i was misunderstanding joe well but but then you'd again you'd have to look at the the words and the intend leading up to that crime and the actions leading up to the crime to  right love affair forget it absolutely absolutely and again that is why the process used by judge sad in this case was appropriate and was proper because he did not combine sentencing and terrorism enhancement he did not concede that you know a lot of fair is not terrorism and trying to get them to withdraw from the g eight is terrorism what would just going to become famous that would be over on the on the love affair side of the line perhaps unless it was killing a political figure because you knew that killing a political figure untied i'm right untied in this hypothetical untied any political motivation would not be terrorism it would be a crime of violence  officials at those protests so again they they took an additional step beyond freedom of speech there they were preparing themselves and the the conversations that were presented to the district court were just touching their picketing or something like that well no your honor because the conversations preventive of the district court showed that they intended to engage and that they intended to incite so they're going beyond just  thank your honour's may please the court i'd like to go back to a couple points that that opposing counsel made first of all judge seiler you asked can you transfer intent the case law is very clear that you can't if you look at stuart and right upon which this court relied you can't just transfer intent there has to be direct evidence of what the defendant actually intended in stewart for example the defendant yusri was not hit with the terrorist unhandsome and despite that his other co defendants were now with respect to the evidence the only one that the only evidence to government for why did work one ton of bay terrorism an indication of the one percent now as you said judge rogers were not bound by stafford's definition of what constitutes influencing or affected the government and we actually have evidence in the record as to what staffer believed the occupy protests actually meant he believed that they had nothing to do with government influence but rather were things like feeding the homeless establishing community gardens another but what i would just call good citizenship type things now he testified as to that in the trial on june thirteenth of two thousand and thirteen but to some new question because you're a much time and i'm struggling over this issue the occupy comments come at too much one way or the other in my mind i can't speak for my colleagues with looks like terrorism and what most people who look at this case are going to think is that terrorism or not blowing up a bridge which interferes with commerce you're trying to stop commerce there's a way in which in common sense taking that's interfering with government that's not literally interfering with government although the government maintains the bridge so that there can be commerce if you're if you're shooting a judge that might be for a personal reason the the observer could easily say that bridge isn't terrorism because it sure seems like terrorism in a common sense term the reality your honor is we don't know we don't know but we got some indication that it's what people normally want to those people who are normal who blow up bridges are doing it for terroristic reasons it's hard to imagine why you would blow up a bridge for some other reason but the important point your honor is it is the government's burden to say why the bridge was blown up what stafford specific intent was it is their obligation to bring forth evidence the reality is you don't think that if they blew up in a government building that wouldn't be evidence in itself that they were trying to interfere with the government not necessarily in striking it i mean they gotta come up with more evidence when he in their blowing up of federal office building or were trying to plant a bomb in the pentagon or something that you're any more evidence than that that they're trying to interfere with government activity judge rogers i'm not aware of any case that held that simply targeting a building in of itself is sufficient to doubt any case that says that it isn't though i mean because it sure seems like it would be i guess there's something else some haven't you could have some other evidence that they were trying to interfere with a love affair by blowing up pentagon i suppose but you'd think the the facts would kind of lean that way unless there were some other faction on the other way that i'm just doing i'm not citing cases i'm just saying how it would appear to the ordinary observer your honor if we look at one of the things staffer said you know the government harps on the fact that he talked about bombing quote other targets namely a mcdonald's now about this target you know what and why and i'm dispute but but the point is if we look at him talking about other targets if we really assume that those are true plots as the government claims you don't target a mcdonald's to influence governmental conduct you target mcdonald's because you're mad at corporate america and so if you really take that threat seriously if as the government seems to because they cited repeatedly in their brief and if you take his comments about the about the one percent seriously it really seems to be a lashing out at corporate america and private money and interests it isn't evidence that talks i