usual the other issues for those two before jumping into just one so i think a discussion of the jury trial question would be helpful to us not not in step that also the bridge as you facts there are a little more robust than that we get toward discussion that showed truly remarkable this cases and how that affects the constructive denial of the th amendment challenge we raised one it's playing on the record that there was an open conflict between mr rhett's goes lawyers tobar or two thousand and eleven we have larry backman accusing lisa basis of incompetence of not doing her work and not appearing on the case he claims she's doing so because she's being investigated by the c j a for questionable billing practices and she has not paid on this case as refuses to work if she's not in this case at the same time within a year he's making an expert timeframe three years before trial there's open conflict between the client and the lawyers there's been no visits for more than a year by the end of two thousand and eleven that man refuses to even accept telephone calls excuses well other things were going on there was a commerce exam but he actually back in disregarded that directive and by june of two thousand and thirteen judge king says well then prepare the defense without any communications with the personality disorder that made it challenging for him to communicate with others personality disorder but now are not mental or going to low i q that's correct i mean are you suggesting that he wasn't competent to run for i'm suggesting that like this court does one invited me to argue here today the court system has not the gates in to accommodate people with disabilities or challenges and when you meet a client who guy oh absolutely but that's when you have to accommodate that one thing so a comment it has again i keep hammering on prejudice and i'm still waiting for that well i got it all this heard him i mean he had forever to get this case ready for trial the only witness is that he was not allowed to call and he waived were five witnesses from the philippines two of whom told the court that they weren't going to voluntarily testify the lebanese lose well he lost the right to counsel assisted by counsel he was effectively denied counsel and we know from daniels we know from walker we know from was the rd case of williams that in those circumstances where there's a conflict even if the are at least four lawyers that were at some point involved on the defense of this case over the six and a half year old back to base were involved in exactly the same time so i think it's unfair to count those as two separate of course there were the examination it was one representation was a joint representation have reasons to distrust his lawyers they were in monish no less than four times what unprofessional conduct they were threatened with contempt they accuse each other on the record of abandoning the client what was the unprofessional  i've never had any way hate so much i want to get the case so i can be on a hot bench which ironically enough is a judge bench which happens where they basically page ads on t v to yell at people back when was perfect for that  factual finding that the bulk of the problem here was of resco own creation and it may very well be because you suffer from an anti social personality disorder but we've got a finding by the district court that he is  because the crux of the problem here well that st of all three court make a finding i don't think he made exactly as he said but in any case under daniel's it doesn't matter he's entitled to a lawyer and as we know the judge what he thinks is important the case they're cordial they're civil and back in his response the ones that are aggressive over the top and cause the conflict so to the extent there's a factual finding of who caused it read those letters it can't be sustained but by december t think it's a great point on the reasons why i don't make any sense of like him filed pretrial motions because the time is the loan and they can file motions in limine a and that's important for three reasons one red still doesn't want to continuance he wants to go time now so it's not his motion for a continu to when a lawyer comes in of the deadlines or in the past that's not i see that's living with the record just as the th amendment motion had been denied in the rule fifteen motion had been denied callias can say i'm not ready because i want to read letters which is what happened anyway why exactly it's in the backdoor so there was no good reason not to point telling me this he was supposed to be ready and he should have been appointed and that right there is also it's a structural error that requires revers who has demonstrated mental or emotional well i really don't have to tell you i have to give them well shorty says there was error because the court didn't go over all four so i take short so it follows from surety that if talking let out the factors and then you get a wasn't the strategy to prevent the jury who was hearing count one from learning that he had been previously convicted of sexually molesting his minor daughter and i know it's time to me that there is a perfectly rational reason for waving a jury trial on count two every waiver has a rational reason behind the obligated requisite warnings to obtain a knowing a voluntary waiver are different than whether there's good reasons for it which is why cochran holds one holds because every time there's a waiver of any right you plead guilty there's a reason you're afraid of the trial penalty so you know that means you get out for love and maybe i'm too hung up on unprejudiced but i just don't see the prejudice to both with respect to any request for a substitution and then later with respect to a request for continuance to have but there are instances including relatively recent opinions in which just spite the fact that it is clear that there was a despite the fact that the defendant may well have had been the reason for the breakdown we have nonetheless said that they were inadequate investigations and that there was an abuse of discretion right and this case seems on the far end of both breakdown and animosity between a lawyer and the client and a month between the cart and the lawyers which is an unusual factor that i haven't seen before so it's just seems extreme even if the frustration with the defendant just totally understandable and the question is what do we do with that yeah i actually i don't i don't disagree that this and various respects but the difference between this case and the cases you just identified is in all of those cases velazquez brown williams show walker this court found that there was an inadequate investigation by the district court and the investigation of the findings of the district court here were extremely and frankly my notes of all the pretrial history are twenty four singles single spaced pages long and judge king's patience and his diligence are really extraordinary throughout the proceedings and so with respect to the substitution requests to both the hearings and the findings on different subjects substation requests are extremely detailed and full of factual findings that put this case where early in the category of cases where court has held that there are limits on the ability of a defendant to gain new counsel in the defend is acting unreasonably but what about the fact that it does appear that he and no communication with counsel for well over a year at one point that you said that the two lawyers are accusing each other of incompetence and and and a malicious activity basically so i would i would separate those into two different buckets i mean ultimately on the gaps in communication i believe they're much shorter than the defendant has articulated here today i can't remember the exact timeline but back when disputed many of these sessions about failure to communicate with the defendant and there was much more communication than had been alleged in the defendant's own motions but rivera corona is the adequacy of the district court's inquiry which of course here was more than adequate i think is frankly the most diligent record i could add to the extent of the conflict and three timeliness which we won't talk about for the moment on the extent of the conflict the disputes between defendant's counsel as they are throwing accusations each other i'm not sure go to this claim at all they certainly would go to a claim of ineffective assistance but that's not what the cl here today was defendant's request for substitution when they were ultimately made and it was his conflict the extent of his conflict with his counsel and what the source of that conflict was disputes about whether or not bass's was being paid by c or capable of meeting deadlines don't go to that now they may go to her effectiveness under the six minute but that's not the same thing the claim is about the breakdown in defendants communication and was that breakdown so dire that  resulted in the deprivation of the of assistance of counsel and the answer to that is simply that it did it one the district court found repeatedly the defendant was the cause of it and i i would note that that not only judge king but so you have a defendant that was never going to be satisfied with counsel ever and was generating these disputes in order to accomplish what he ultimately succeeded in accomplishing which was an extraordinarily extraordinary delay before trial advisor who's supposed to be an emergency counsel but he was supposed to keep up with everything going on to be ready to step in in a moment's notice that's correct but and then when when he was asked to step in he said he could step in and i don't understand want as i said before this is a piece of troubles me the most because the reason you had this person was precisely that he could step in and in fact he did eventually step in so i don't really understand about reappointment of counsel looking at the facts of those cases they involve very similar very difficult defendants and frankly i think this defendant is perhaps the most difficult of any that those cases analyzed but the analysts very similar factual mean that that's why this is so bizarre because at the point at which the judge didn't say in there he would otherwise have appointed to counsel so there i don't think it changes what the standard is which is whether discretion by the district but that usually requires looking at what he actually said and what he actually said was i'm not going to do it because it's always a trial he didn't say i'm not going to do it because i don't think it's otherwise m that i agree with that particularly given frankly the record as it unfolded after that point difference illiterate found out that became the most amplified right before the trial and his goal was not just to get counsel in on his goal was to to delay the trial that may have been but it doesn't mean you have to accommodate that but on the other hand i mean as a turned out he had a lawyer who had absolutely no preparation if he had been appointed two months before he would have had too much so that's not that's not quite accurate either what happened was that when it was the court denied this motion things got more and more amplified in terms of the defendant's misbehavior and at some point they destroyed did order stand by counsel to be ready  to be on course to be waiving his right to represent himself because he was refusing to communicate he didn't participate in a big motion to suppress a couple weeks before trial and then the scene by counsel was put on notice you you may have to take the baton and then he did and frankly he did it he did a spectacular job he did a very good job at trial his closing argument i would point the court to a particular raised a highly technical and very good defense about whether or not we could prove intent to bring the child pornography to united states it was an excellent defense defendant ultimately got very good counsel at trial and much better counsel and he would have had had he continued to represent himself but at bottom and i understand the court's concerns about the  timeline i thought think there's any way to get around the fact that judge king simply did not abuse his discretion the record of his patience and care is extraordinary at every point in this trial and to be honest i would in defendant's difficulty can also not  underestimated at in the in the hearing in which judge king denied defendant his request to have counsel reappointed and before he made these findings about how this would be an endless cycle and the justice system cannot be a defendant mercy defendant interrupted him and said quote you're going to suffer for every decision you've made that's it g e r sixty nine this court cannot let defendant be right about that judge king did turner held and certainly if it can be the case that behavior like this is an outright waiver of six member rights it cannot be the case that judge king here abused his discretion by refusing substitution requests and ultimately denying his request to get new counsel right standard and the color but the problem here there are other factors running around what st he has refused to waive the jury several times before the waiver right i don't know all the there's the factor of whatever his that he'd been through several competency hearings suggesting that there was a heightened concern and rd and  king had ordered them to keep working together however at the actual hearing what counsel said is that we've talked about this at length the defendant himself asserted that he agreed and they talked about it and that he didn't need more advice even at one point in the colloquy he actually takes a moment to talk to his lawyer to get advice before continuing and at bottom this is this colloquy was very long it's actually over forty pages long it kind of comes in and out but it looks nothing like to call the police that were found efficient and that i think would i would agree were deficient from cochran operations and the other factor is that there's no really no point to have a jury trial i mean there's no there's no point there's not just no point there is overwhelming strategic reason not to that was stated on the record during the qualifier it's not just that we can guess that this was harmless because there are obviously was this particular reason we talked about it during the colloquy judge king and the defendant talked about how the reason for doing this was to keep information the defendant had raped his daughter and was a registered sex offender away from the jury in a context like that frankly this looks like old chief right in the same way that a defendant can has some leeway in that making the government accept a jury waiver for certain things that are highly prejudicial like a prior felony this like a prior felony would have been overwhelmingly prejudicial and defendant had every reason to waive jury trial and to be honest it's a very narrow set of issues on which he was waiving it was simply was he registered as a sex offender and then with respect to thirty five fifty nine dollars it's really only one factor which is that the victim was a child that it was a sex offense is a categorical question but under dos there is the fact of whether the victim was a child so the question is did you rape a child before you did this and are you a registered sex offender those facts were not only within the district court's discretion to but also presumably the jury trial that's going to take five minutes because there's nothing really to contest correct correction i don't think there was any defense to those but that sort of cuts both ways i mean and in the sense that if we were to order a jury trial would be the deal anyway i do think there is no chance that a jury trial would happen that a defendant has no interest in a jury having this kind of information which is what was discussed during his qualifying but if he didn't now he would probably be able to do with how do we know correct your honor but there really is no really there is there is simply no reason to do that and again i fact that it's just the kind of case that at issue that's very frustrating because all the judge had to do was that some i's and cross some days and we would be to be honest in this kind of that's not quite true your honor because the holding of christiansand is actually that when there's something in the colloquy later judge king specifically finds that the defendant had been very calm paying attention very rational during that very hearing and there is simply no basis to find there are if you want to address the for the  this set of case law sort of sits on top of the title seven and other employment discrimination cases right and those are mentoring cases right it's a case where you're supposed to do something because of somebody who's sex or race or whatever and that is a state of mind question and nonetheless the causation issue is being applied so i don't think that's the distinction but that is that is this court is adopting that and back and back defendant has actually argued the grammatical logic exactly backwards let's assuming we replaced for the for the purpose of with resulting in in the statute that would result in a statute that that made it criminal  conduct resulting in the production of any visual depiction defendants but that backwards he has said that the sexual conduct part of that the defense visual depiction has to be the but for cause of the sexual conduct that's what the statute would say even if burrage did apply if bridge applied and you were placed for the purpose of was resulting in it would be again that the explicit conduct resulted in a visual a visual depiction obviously the sexual conduct is the but for cause of the visual depiction but in any case as we've argued this was this was harmless even assuming defendants logic with respect to each particular instance of sexually explicit conduct the some of the some of the pictures at issue for cases that you have to instruct and others and the words of the statue i don't know the answer to that question your honor i would say that here are the model instruction is eid is identical to what was provided here so it's not just the words of the statute that there was a model instruction in play that at minimum underscores the lack of well we don't or i mean you know we just prove how sometimes but but here it seems to me it's really more a question of whether you had a say more than what was in the statute at minimum i would say there a period during which competency hearings were going on they went off and on during this entire period it was during the period that you're talking about yes and par for part portions of it three the last one the government says clients and said bring him in our cow and he just had a couple of other trials one of which was a very lengthy trial set for that same period i don't believe so i believe that somehow it actually was he had a very short one right after lunch and he had a much longer one but and that doesn't mean he's not a challenging client doesn't mean his his problems have gone away it means listening to a challenge client you know the constitutional obligations to give your honors and hone and get me to to participate in these cases it's extraordinary sometimes you get clients that are hard you get the fence that are hard and that's when you raise your team and you meet the person in front of you and you don't fight back and say i'm going to piss in the wind  married in a philippine courthouse with fifteen year old she was sixteen years old at the time he believed she was eighteen is a reasonable age of defense her parents were there he got married he took photographs of his wife in a marital bed and he thought