place to court for grace or for the defendant mister my client is being faulted for believing a district judge the district judge made it very clear when he appointed the second lawyer that he would not appoint a third lawyer the government correctly points out that there are a few fudge words in there but really the thrust of it is i'm going to say no that's it i generally do not grant request i'm will certainly will not appoint a third lawyer not a third time well let's assume that you're correct counsel the the trial judge evaluated your client's request found that he had made a strategic decision he wanted to testify without being cross examined he thought that whether he agreed with it or not he thought that was something that a smart attorney my do and figured that into his decision what's wrong with that you know i think it's quite clear that's what my client wanted but the judge made it absolutely clear he wasn't going to get it my client last asked for a lot of things he asked to be released given his record that was an unrealistic request for example and i think the point is what did my client as a pro se manage to do or get in the record sneak in the record that would have come in if you had a lawyer and i've come up with looking at the government's brief in looking through the transcript i've come up with five things and i submit that none of them matter  certainly a lawyer wouldn't have done that although a lawyers however nobody they surely would have waved the flag a little bit he talked about his norwegian girlfriend i mean that's utterly irrelevant and the government's brief said that he got in his alibi but i submit the record shows that that's not what happened what happened is that when his first lawyer was on the witness stand he presented to her an alibi and she didn't believe him that's what got in and i can think of little more damning then when your own lawyer doesn't believe you with respect counsel lawyers try to do all kinds of things to win their clients cases sometimes are successful sometimes they're not successful so in this case your client had a similar experience but the he behaved normally at the hearing answered yes to the question you feel perfectly comfortable and competent to make very important decisions today  know he didn't appear like somebody that was out of control he seemed to know what he wanted in terms of the third lawyer the reality is he didn't ask for a third lawyer again i know you say the district judge said he was going to get it anyway but the reality is that this is your client is not somebody who was just left without any kind of a discussion without any kind of an understanding the judge had an opportunity to observe him see the interaction with counsel counsel him self of the second or your you know like he was fine so admittedly ours is not a perfect system it's a human system but under that system and i'm of these facts how can we fault the district judge's decision to let him represent himself you know what i think this case presents which is that is heavier the right to a fair trial or the right to represent yourself the government i think correctly points out that the in another context checked all the bosses including literally having him initial but in the context in july seventh he told the judge over and over this is an ex parte something's wrong with me i'm not stable and it was clear the ada says to you misunderstood that he thought he would get evaluated and get treated that's what his lawyers had that before did you not in connection with the whether he was competent to stand trial he was evaluated i mean that's different than a forever evaluation but it's not that there was no consideration by the district judge of your client's mental state right absolutely but i think my my point is that that should have been in conversation about something's wrong with me i really just an what's wrong with me and the judge said i'm going to try and help you your lawyer and i are going to try and get you some help and again my client believed him but it seems require something more of the judge when the judge is able to observe and hear how and see how the defendant was conducting himself i'm not claiming that he's mentally ill and i'm saying that under these particular circumstances when he was so fulsome about his distress and you mentioned that that you think that one of the factors was that we should look at was that the judge said something about he was not going to point the lawyer and i guess i want to ask you is there anything in the record that would show that mr hammond relied on the district court's earlier statements that he would not appoint a third lawyer it seems that effect can you point to something in the record he never he never asked in it and never spoke up and i'd agree that mike i think the government trial characterized him as not a wallflower and i think that's probably  tiny he didn't feel it being that they were you know had this forced marriage he didn't feel like he needed to trash and he was stuck with him he was trying to make the best of it but you know as you know you're experienced lawyer and most of the time when we get claims of i a c your things of that nature there was a just a terrible battle going on with the lawyers they can't communicate they can't represent what the lawyer can't represent the client because they won't cooperate there was none of this there was no outward evidence that suggested there was a problem it's true your client in the earlier point said he might want to third lawyer and he had to already and the district judge said you know i'm not going to do that so i didn't ask again but having a third lawyer is kind of unusual in any event and i find this kind of an unremarkable forever here and i don't see what the problem is  think my my argument is that in the context of this case the judge has inquired about has a mental health issue that made it clear because the judge played it conflated two concepts you need to find out why you wanted to get rid of the second you know you need to put the microphone in front of you i think the judge there are two concepts that the judge needed to analyze why he wanted to get rid of the second lawyer and why he wanted to represent himself and those are two different concepts so that that's what i'm focusing on and my clients you want to save any of your morning morning your honour's may it please the court kelly's use been appearing on behalf of the united states the issue in this appeal really hinges on judge simon fact findings and that is as this court in the supreme court  recognize to focus on forever is what the defendant understood not what the district judge said and judge simon through his facts findings found that mr hammond did was not deterred from seeking a third lawyer the mr hammond as this court has recognized throughout these proceedings was assertive was true t j and gave no outward indications that there was any ongoing mental distress happening and the judge relied on that he noted that in fact there were three pretrial conferences leading up to trial in which mr hammond made no mention of a desire for a new lawyer a problems that he was having with mr warren as standby coun and judge simon held as a factual and credibility matter that mr hammond's true motivation for representing himself at trial was what he stated during the friday here that he in fact  additional lawyer third lawyer i guess why would that have affected infected the whole for at a hearing and so we're looking at forever and we're looking at what the defendant understood we look at the entire record so your hon absolutely agree that we don't just examine the hearing itself and i certainly no one is suggesting that what judge simon said is irrelevant here it's certainly relevant we're looking at the overall scheme of what mr hammond understood it was simply on balance given mr hammond's history given all of his interactions with the court the judge simon ultimately found and i think judge simon also very candidly said look i probably shouldn't have said it that way i probably shouldn't have stated it quite so strongly but mr hammond i've spent a lot of time with you and you are no shrinking violet if you want something if you're upset with something if you disagree with me time and time again you've pointed that out and because of that judge simon ultimately concluded and again given the mix of information that in fact mr hamon here was motivated by a desire to represent himself because he wanted to tell his side of the story and that's precisely what he did and the notion of the alibi he brought miss for cero put her on the witness stand his first defense attorney to specifically ask her about the steps that she under didn't undertake to find this mysterious person at the coffee shop now part of the problem with his whole coffee shop idea was that the coffee shop was only four blocks away from the bank so even if she found someone who had seen him there around the time of the bank robbery it wasn't terribly helpful but in any event he successfully litigated motions and lemony he precluded the government from introducing evidence that he had attempted an escape he raised objections at trial that were sustained so there is simply no question about his competence to proceed or about the fact that his we frodo waver knowing and intelligent if the defendant understands basically three three things the nature of the charges against them the possible penalties and then the dangers and disadvantages of cell representations so do these elements address our inquiry here and can you address why those elements were addressed below they were they were actually addressed several times even before the hearing judge simon had sent a copy of everything he was going to be covering with mr hamon in advance so he mailed that to mr warren he then went through that form line by line with mr hammond to ensure that he understood he engaged in discussion with mr hammond about whether mr ha d asked him what about hybrid counsel and judge simon very carefully explained i'm not going to allow that if you want to tell your side of the story you can do it in one of two ways you can either represent yourself and i'm going to play some limits on introducing outside evidence or you can continue with mr warren and he will represent you he will put you on the witness stand and you can tell your story that way and even describe for him the two ways that could happen you could either be three questions from m charges potential penalties dangers and disadvantages were covered several times throughout the course of this forever proceeding mr warren remained with your you're with her client  throughout this proceeding was available for consultation as well right correct he was there the entire time and in part that's part of why judge simon i think was so taken aback by this post trial motion was that when mr hammon actually executed his election to proceed pro se mr warren was appointed as a standby counsel with no objection whatsoever no indication given that there was any sort of irreconcilable conflict with mr ward and in fact as you probably saw working perfectly well together and coordinating how they were going to divide the responsibilities so between the defendant and mr warren all of the things that i learned lawyer would be able to were false i'm lisa that is fied that's correct the bottom line is that mr hammond received a fair trial and it was one of his choosing and it was one that was executed in the way he wanted it executed it simply wasn't ok thank you consul we have a little rebuttal time i would urge others not to focus on motivation criminal defendants have lots of motivations he was told yes he wanted to tell a story and not be cross examined he wanted to be released he wanted a lot of things he was just your judge was very clear that he was not going to get that and i submit that that he didn't get anything in that it a lawyer wouldn't let me ask you this counsel because mr warren remained standby counsel and it's clear if i understand it correctly that your client consulted with him so in effect had a lawyer he just wanted to present part of  that i think this may not be that this case may not be the vehicle but the role of stand by counsel is absolutely unclear mr warren did nothing as as far as we can tell from the record he didn't even let him know about the deadline  seems like that's the one thing that standby counsel should do the deadline to file a motion for a new trial the fourteen days and so we really just don't know because there are no standards as to what a standby counsel can do it goes the whole whole range ask for a third lawyer to lose versus the united states where a judge before a trial says if you take the stand i'm going to let your prior record in the defendant doesn't take the stand and yet the supreme court has said in order to preserve the issue the defendant had to take the stand it seems to me that regardless of what the judge's conclusions were or expressed tentative use were about whether he was going to  thirty lawyer but at the very least the requests should have been made to him to appoint that third lawyer and see what he would have done at that particular point in trial not that it's not that what i've done in the past as a district judge is any indication but i have changed my mind when i said this is the last time i'm appointing a new lawyer for you and then eventually i did so should there be a requirement that in order to preserve the issue  he asks the judge his brain as he says doesn't work in a way that he fully understands and so that that's what he says but there was a psychiatric examination that found that he was entirely competent to stand trial which by the way is not in the record i don't even know what it's and it might have even contained information that if reflected on his so called ability to represent himself  not competent buddy has by his own admission his brain does not work in a way that he understands and so that's the context that i would ask this court to examine the waiver in that context thank you no other questions by my colleague thank you counsel thank you both the case just argued is submitted