our third case for arguments this morning is united states against daughter cannot even for a fair and just reason withdraw their pleas after pleading guilty so long as that plea was before a magistrate judge there are other problems with the argument including that it was raised in the twenty a j letter but i think  we can avoid waiver just because rule eleven is an independent basis on which to move to withdraw plea on the merits i think the most important point we've tried to express in the briefs  is from this court several years ago in the founding phase where the court know that it's axiomatic that they require dialogue and a rule eleven colloquy will vary from case to case certainly the judge needs to go through all of the requirements of rule eleven but the absence of a guilty plea is that it is a grave and solemn act that should only be accepted with with care and discernment and in this case this is not a typical plea we have a self represented defendant unmedicated with bipolar disorder who went to trial for two days where the district judge repeatedly told him or at least implied that his case was worthless this was hogwash this was all the dash all he was doing was trying to obfuscate and in one instance told that to him in front of the jury that he was just playing games with everybody  i don't think it's a coincidence that after that day of trial he threw in the towel and gave up and what happened the next day was the magistrate judge engaged him and this colloquy but didn't ask any probing questions into what was going on we went through you know you know you have these rights government please give a factual basis and the only response is mr dyer gave or yes or yes or guilty guilty and we were over you see at the end of the hearing in fact this is not a problem though is it really well i think it is because of the circumstances of the case there is not a statement in the record as to why todd dyer things himself guilty and yet he stands guilty of four federal felonies the factual basis that the government provided is completely opposite of the way that mr dyer for two years and even before he was indicted describes the set up of these companies of his businesses so there's a problem the other problem is that the judge actually never asked questions about dyers mental state there was a question about well you are young to the influence of alcohol under the influence of drugs and he said no but the court knew that this you know this guy was sort of like a bull in a china shop and he had told the court few weeks before this plea look i can't i'm overwhelmed i'm not ready for trial one of the reasons for that is my bipolar disorder which prevents me at times from concentrat as we know from about bipolar disorder we we've got the mania on the one hand and the depression on the other so that it's on sundays somebody so flicked it can't make rational decisions about who's there any reason to believe that the day on which he pleaded guilty was one of those days when he couldn't make rational decisions there is because his decision on that day really contradicts everything else that he did in the last longer that happens every time somebody pleads not guilty and then later pleads guilty that's not going to be sufficient to indicate a rational behavior is there anything about the plea colloquy which implies you rational thinking the problem is that the do you have have you ever been hospitalized for a psychiatric illness do you have any psychiatric illnesses that's that's the problem so you know the the record all much do you want to the magistrate judge or the district judge you go in and  cross examined what i'm asked to hear admission of guilt so i think that what this court said again is that the dialogue is going to vary from case to out why are you pleading guilty are you playing the game are you just doing this to delay the trial you get the trial thrown out and then you come back and withdraw your plea or are you doing it what do you suppose the answer to that would be well the answer would be no i'm the pretrial and up to trial and so earnest in his expression of innocence to come in and to resolve these cases in twenty to thirty minutes without him saying a word about why he's  guilty i don't think that that is the field level that we wants courts to aspire to in terms of making sure that when you plead guilty to federal felony is you doing so knowingly and voluntarily but i'll save the rest of my time for a bottle something else thank you certainly counsel mr proctor think your honors in it please the court benjamin proctor for the united states judge easterbrook you nailed it on the head on the day he pled guilty was all i did was ask a question my apologies i believe your question went to a key point was on the day he pled guilty was his five or disorder impacting or clouding his judgment in the answer according to todd dyer himself is no the rule e every aspect of rule eleven and the judge set forth the the penalties the nature of the charges particularly asked mr diary on any medications today is there anything i see your fault you seem to be fully in the moment is that  trial was not going very well at the witnesses were testifying that allen todd which was the alias he was using to hide his criminal past had sold them a fictitious promise and after that mr dyer approached the government and said i want to plead guilty and we spent many hours putting together clearly written comprehensive plea agreements in which mr dyer obtained said all concessions from the government including dismissal of one  of the separate indictments on a separate fraud scheme the ability or government recommendation for concurrent sentences in the two cases that he was pleading guilty to government regulation to be allowed to remain on bond a government led government wouldn't oppose reasonable requests for travel these are all important mr dyer and all concessions that were made as part of the guilty plea process here now after the ruhleben colloquy mr dyer waited three months until the day before sentenc described his bipolar disorder as something that i've been diagnosed with that sometimes it impacts my villa to concentrate i haven't taken any medication for it since two thousand and seven over ten years ago i don't feel it impacts my my life in a great manner i don't see any counseling for it those are his words the pre sentence writer in the end what the district judge judges did is they considered his arguments that i'm innocent everybody is lying contrary statements i'm going to get very far on appeal and with regard to mr dyers behavior three federal judges spent a lot of time with mr dyer magistrate jones over soft pretrial proceedings in this case for two years had over twelve substance of hearings with mr di an interacted with mr dyer judge that miller oversaw two days of trial in which mr geiger presented arguments presented opening arguments cross examine the witnesses presented used used various doctors to try to impeach these witnesses all in the days leading up to up to his guilty plea judge pepper on the day of sentencing in that case he filed another motion to dismiss to withdraw his guilty plea and the case was assigned to judge pepper judge pepper turned that sentencing hearing into an  judges to prosecutor several defense attorneys during this entire proceeding nobody had any reason to question mr geiger's competence and there is no reason to do so was there any further questions from the panel i'd ask that the judgments of the