elie didn't even know that he was charged with three separate counts she then delegated her non delegate will duty of advisement to the prosecutor and still mr alley was never told the elements any lesser included or possible defenses most recently in united states versus hanna this crew another case where a defendant was eerily asleep granted the right to represent himself in the middle of trial this court explained that knowledge of the nature of the charges that is to say a complete defense to murder the ideas here isn't that you're trying to advise the defendant about what to do but before that the defendant understands what it is that a lawyer could in order to do that they must understand why it is that just a person off the street doesn't understand all of what goes into defending a kid's trial court as i recall the records you know a counsel would be beneficial to you because i may recognize defenses that you don't anchored advise you about those is that close and asked that your honor that's not close enough i think i can give you an example that's on the other side of the line which would and what i'd invite everyone here to do is bring yourselves back to before last fall before college before you graduated from high school imagine that you're a person who failed the ged exam and had been receiving supplemental security income because of cognitive deficits almost your entire adult do you know what the word defense means do you know what the word element means simply being told that those are things that exist i don't think there's enough and example the what a court could do is say let me give you an example you're charged with a nine twenty four dollars c which requires that the government prove three things i suppose that's a little bit less than what they need to prove but three general things one you can testify or two there was a crime of violence or drug trafficking and and three that there was a connection between the two and i and being a little bit have a lawyer with exactly what that the elements are here what a defense is you don't have to simply say no i didn't do it you can attack just one of those on this case three visits over several months and who looked to me like he he had decided how they would do it and didn't really care what the dependent wanted to do a poor reading whether there was a knowing and intelligent weaver of counsel here judge kelly based on what you're saying i think we know even more than that which is that we can't expect that the defense attorney went over almost anything with  i've recently switched from appeal to appeals from from being a trial lawyer and it just astounds me i cannot imagine going to trial after having spent so little tonight i think that one of the other things that's important  refuses to be represented by counsel this court has been more liberal with the forever warnings although it still as an hansen has required that the von moltke factors be addressed by the by the judge but that's not what we have here we have a person who really what he wanted was a new lawyer who was going to spend time with him so that he wouldn't be walking into his st day of trial without knowing what was going to happen if the defense is that if you knew he circumstances to determine whether in fact the dissented should be given a new trial and looking at that did the the did the prosecutors follow up colloquy sure th deficient for reading inquiry but i think there's a few things that we need to think about as background i think that it's important to think of the government's advisement as part of these totality of the circumstances and not as part of the threat in part and here i would draw the court's attention to again u s b hanson to footnote six which says the constitutional responsibility to conceive of and propounded the proper inquiries rests squarely on the shoulders of the trial court and cannot be delegated to others now we move then and say ok if we're looking at the totality of the circumstances we're really not happy that the government stepped in to do this instead of maybe suggesting things to the court that the court might want to address we've already decided that the supreme court essentially said that in fun mulki so this is a longstanding thing that we're talking about the judge is supposed to investigate as long as there really is the circumstances of the case before him to me and this is not supposed to be a mere procedural formality and now we turn to the fatality of the supreme court and again here we have i'll begin because you're you're under special asked specifically about what the government advised that even after the government advisement again he hadn't been told the elements any possible defenses or any lesser included and again your honor the question about well just saying you know an attorney might know defense is that you don't know is that enough that's not enough this this court wants you know has excused not giving defenses in the past but it's done so when it's like well but they told you what the elements were so these are kind of part of the package of the nature of the offense and no your honor i don't think it shared the problem i think that it demonstrated that there had been this problem throughout the fretted inquiry and it maybe was one step towards making sure he understood the nature of the charges but i don't think that you can come out from this record and say that he understood the nature the charges right but just on the number of counts problem do you believe he understood the number of co after the government explained at least th think i think yes because he did have a back and forth with the government about it did he understand the import of that i don't think that we could go that far and say yes he'd like internalize it and understood the import and understood that defendant was asking to represent himself in the middle of trial and there it wasn't sufficient despite the belief of the of the dissent it wasn't sufficient to advise him of the nature of the charges that we knew he'd already gone through an interim rayment we also knew that at the beginning of the trial the judge reads the indictment to the jury that's not sufficient when you're looking at the totality of the circumstances to say this is one of the limited cases where we overcome this deficient forever hearing you know how many other thing that do any of our cases require the court to inform the defendant that he's not going to get a continu that specifically but they do say that all other facts essential to a broad understanding of the whole matter that's the last one monkey factor and this court hasn't skipped over that so this court has made a real serious requirement that they understand that they're going to have to abide by rules of evidence and the rules of criminal procedure and they're not going to be given away simply because they're pros at trial and the court also has acknowledged that if a defendant is bringing things up or has a certain reason for wanting to go pro se that that's something that should be that's in a forever inquiry so the case again that i mentioned earlier but i'm going to put in a twenty gene later letter a person says if given the sufficient turn i am i can represent myself the court should be triggered to say well you understand that you might not be given sufficient time and again i'll give you an example i know that this court doesn't require any specific  t but in him it where the advice it wasn't adequate the judge did do something that i think was very important the defendant and hammett articulated that he wanted to represent himself in order to repress examine certain witnesses and after and question and the judge says so you're going to give up your right to have counsel represent you on the understanding that you're going to be able to ask all these questions and get answers i don't know if you'll be able to get answers to all your questions because i don't know if any of your questions will be objected to and how i will rule under the federal rules of evidence because i don't know what the questions are do you understand and so i think that that's a signal of a way that the court and do what i would call in a week friday here and there's no suspect because what's important is to have this back and forth with the defendant and really ensure they understand that they're giving a sensually the core constitutional right that the courts rely on to protect so many other constitutional right s at the end of the day here mr elie had not i just i do not believe that he was in any position to make a knowing and intelligent waiver of his right to counsel given the severely deficient for an inquiry and given that the t place us in one of those limited circumstance types cases where say the person is a lawyer or the person has previously filed proposed jury instructions that appear in the sports cases that allow the court to say you know under the t circumstances this is united states of america in this case we're here today because in the middle of a trial we depended on how we decided to vire his attorney received process and he did so both with knowledge and understanding of the consequences that  not what defenses were available but i would also point out this court has routinely ruled on that question of whether or not defenses are available and ultimately concluded consistent with the background analysis here which requires allegation by the defendant that he was not made aware of the elements or the defenses to the crime what the court said there end up alternately upholding the back at the way it was but knowing it was involuntary was it it might be possible that an individual would be have to be advised of a specific defense if the court with made aware of the consequences and circumstances their way would rise doodled counsel you said that he was told of the penalt understanding was that he was never court never discussed the possible penalties that he might face never your honor it is true that the court during the  excel did not specifically buy some of that back that information was conveyed to him by the government and some follow up question and haven't we in the past said that the government is not the one to do the advice it's the court be the one who would have to require out and if he can say all those things in this particular case the government was present and in just situations in hammond didn't they didn't the court suggest that you had to go through the was the defendant if your lawyer had only come by did she for a few minutes three times in four months and hadn't asked you how you wanted the case to be tried or what your position was on anything well your honor i would suggest that there might be again going back to him some cases reason to go to say to defenses if there was any suggestion as to what the possible defense would be the problem with what defense counsel is suggesting is should be the standard and what really stepping over the line of being an advocate you're giving them clear information and here i don't see anything where either the court or the prosecutor explain the elements the various charges the i bit and what was the you know what i thought will sure doesn't i think that the big distinction between hannah and frankly hanson and the cases that are cited by the defendant and this case is tax protester who specifically said no i don't understand it i need to follow the rules of evidence and thought was a criminal procedure in hemet there was a defendant who specifically said no i want to know what the elements are and the court denied doing it the court also stated the penalties and all of those instances there was something within the colloquy and the circumstances which gave the court the civic knowledge that follow up information had to be conveyed and your honor i would point to the the court made the statement do you understand that there are rules that are going to be applicable to both parties and that both parties have to follow it and the defendant answered yes what the hanson court said was had the inquiry stopped at that point it mike lee could have affirmed but it went on and asked a question at which point there was a specific no and then there was a requirement that there be follow up conversation based on that specific no and that's the big distinction between this case me raise one with you and the court warned mr lee the risk of representing himself prez say and he said fighting for my rights or my freedom and i can do that pro se if allowed time to prepare isn't that pretty good abends that that the court should have warned mr ottley that there wouldn't be any continuances we prepare for witnesses in terms of costs and them but to go get a series of witnesses which were related to a higher different event and the conversation around continuances for the record all of that took place after the was over after the decision was made what the court did know at the time was that it was going to give him a period of time to prepare and read it just until it did and there haven't been any case as mosquito notes and which the continu understanding of the whole matter your honor if there was something if there wasn't any sort of continuance whatsoever if there wasn't time for him to prepare i think this would be a closer question but ultimately up to date at the end of the day as to the theory of the defense and that instance i would say that an extended continuance would not be necessary and so the difference to your honor's i would suggest is that this is a situation where the court went through the government went through a a series of questions and took mr allawi at his word that he understood them and without any additional information that could further require follow up conversations then then i don't think that there is a need for the  court or any other individual to pursue the secondary lines of inquiry at the end of the day i mean the perfect example is the defense right mr out we sit here and says well the problem is that you know defenses weren't  knowledge now and if the court want to say that an example defense would be required i would point out that the very example you know the very issues that mr noted were issues that he tackled he said that he didn't  know that he didn't possess the gun he said that he didn't protest the crack cocaine he knew how he wanted to attack this case either he wasn't permitted to attack the kids to what he wanted you to think he did was not permitted to attack because he wanted understand why you're pushing show a hoarder well one of the challenges on that front is that mr out we never articulated a basis separate and apart from the prior issue so there was nothing for the court to rule on he never provided any information that would allow the court to consider this alternative basis but more to the point well he was told that the court had ruled and it was not going to be permitted to carry was full that specifically your honor i would note that the government twice invited mr allen to ask questions about the february th incident and in fact there was a question that was asked by mr out lee specifically to mr castlebury when he asked whether or not you've ever seen me before the government objected and in fact the court allowed that question to continue but at the end of the day the real the real issue here is that the court ruling did not preclude mr alley from from the defense that he wanted to do i the only thing that he wanted to accomplish through that follow up line of inquiry as to the february incident was to establish that there was some level of bias that day officers dot com bias is not important no nonsense if that's the only purpose it's just that the defendant or the topic senior law enforcement officer thought that mr out we got away with something mr out we could ask that question entirely consistent with the defense countered with the  ultimate question of whether or not officers thought that mr out lee got away gautami i did give good jury some reason to believe why these officers would do such a thing as to plant evidence on me let me even to the point this rally was allowed to ask the starting counsel very whether or not you never seen him before and in that regard i think that there were lines of questioning that existed not precluded by the court's ruling that would have gone to the ultimate question  moves that we're not going to have this nd issue or argument in the context of whether or not mr out lee was all right or is able to establish bias amongst is among the officers that's fine you still have the ability to ask that question and even how do you ask the question even had you been allowed that's ultimately harmless because the only issue that's been put forth is that mr out the previously was suspected of running from law enforcement you can't prove that he didn't do it  because the only issue that he wants is biased so then the only question that now put before the car before the jury is this guy who ran in this particular case is running again in a month earlier so i don't see how that moves the needle in terms of establishing that  ruling mr allawi could have asked any of those questions when he even asked the question have you ever seen my face before the government of jack did and it was only allowed because the answer was going to be no and if the answer was going to be yes it would have alluded to the february stop and it would not have been a you think i've gotten away with something in the past absolutely alludes to the february stop and it would only have been the st question in a necessary series of questions i just briefly the williamson case that i'm referring to is different than the williamson case that the government is referring to apologies for the confusion i confuse myself on that that's why i'm going to file a twenty j letter because they said the government was referring to is certainly the worst case that the th circuit has for mr alley but there is so little information in that case and there's so much discussion in the more recent cases of hanssen in him and that i don't think that it actually helps the government in this case and then in ham the reason that the defendant said i want to know what the elements are is because the judge asked him do you know what the elements are that question needed to be at the very least that question needed to be asked and that was not asked here and finally  it is true that much of the conversation about the continuance happened after the alleged waiver but judge me if you that the question you referer the statement you reference that my client me that was earlier that was before and would but the judge on th