the morning your honour's may please the court elizabeth richardson the lawyer on behalf of julian noel the appellant i intend to reserve two minutes for a bottle but i will watch the clock although this appeal raises several issues this morning i plan to address the issue of self representation that is whether the district court erred under indiana v edwards and this court subsequent authority in permitting mr noel to represent himself at trial and sentencing on serious  complicated tax fraud and conspiracy charges so first i plan to address the government's argument that edwards does not oppose impose an affirmative duty on district judges to deny self representation on competency grounds under any circumstances and second i will explain why the district court both applied the wrong legal standard in this case and even assuming the correct standard clearly erred when it found that mr noel was competent to represent himself particularly at  sentencing turning first to the issue of whether ed under edwards a district court must not just may deny self representation where a defendant is incompetent to represent himself  government asserts that because edwards dealt with the opposite question that is whether a court can deny self representation that there's no affirmative duty and that just doesn't make sense when you look at what was the basis for the court's decision in edwards which was a concern with the sixth amendment right to a fair trial and a concern with the public perception of a fair trial and so if the need to protect the right to a fair trial permits a court to deny self representation then that same right must be able to override the right to self representation which is limited in other contexts and require a district court to do so where recognize that that decision was motivated an animated by a concern for the fair trial and the court also has analyzed these claims the edwards claims under an abuse of discretion standard which strongly suggests that you know if there were no duty then representation and the court has applied the law and in ways that i think create that rule and although it has never come out and said there's an affirmative duty to protect the right to a fair trial by denying south representation in these circumstances and i think  in this case dr cohen said that it really you know edwards provided him no guidance in terms of how to determine the competency for self representation the district court below said certainly more guidance would be helpful so there is a difficulty the standard to be applied but as the court held an edwards there is a standard to be applied it's a different standard than the standard for competency and below the district court although played lip service to the idea of a different standard really applied the same well the district court to consider that issue in terms of how effective the district court thought it could be and said that well i don't know that he could really be effective in representing himself and as it turned out the record in this case was that he did participate in the trial opening statement cross examination so forth but what are we to make of this particular record we are the defendant the evidentiary record in this particular case setting aside the legal issues that you raise we're the psychological reports all came back saying yeah there's no indication he's not competent to represent himself the district court in each in a discussion with the defendant about that consider whether he would be affective or not and sort of pulled in all of the factual issues that's laid out in the record i think that's what abuse of discretion the view is all about we're not going to second guess it under these circumstances so honor to start with the the back end of your question i think there is no absolute right to represent yourself and so that is what we're looking at is whether the court abused its discretion one other slight correction the first acknowledged on the traditional question of competency and there were a couple of lines there where dr johnson said he's competent to assess his attorney and represent himself but really didn't analyze the idea of self  this is kind of a new idea for some of these clinicians with respect to mr noel's performance at trial certainly and the government makes this point he participated if you can call what he did participation you know he the government points out that he proposed jury instructions and what to your questions and that's true technically you know the jury instruction that he proposed proposed was that the jury have to find him guilty beyond a reasonable doubt that was the only instruction that he proposed for why dear he wanted the court to ask the jury whether they knew what coca cola was which the court declined to do so he you know the objections that he made the government points out he made objections at trial and government would make it be but i think and i'm going to try to save a little bit of time but at even if you look at his be his conduct at trial and say well you know he participated to some extent he did not participate at sentencing and he filed no sentencing position paper he did at sentencing and although probation recommended thirty three months he ended up getting sixty three so you know his he was totally without counsel totally without the ability to advocate for himself there and i think i thank you thank you good morning your honour's and may please the court baron kettle for the united states defendant unequivocally requested to proceed pro se in evaluating that request the district court applied the proper legal standard under edwards and considered multiple psychiatric evaluations which found the defendant was competent to proceed pro se the district court therefore did not air when it found that the defendant was exercising his right under the sixth amendment to represent himself both the supreme court and this court have instructed that decisions regarding the defendant's competence to proceed pro se are best left with a trial court this is because trial courts are required to make decisions that the edwards court described as fine tuned mental capacity decisions tailored to the individual life circumstances of a particular defendant in turn or this court said that district courts are given a wide berth in considering conference he claims indeed a appellate court has never reversed a district court applying edwards which found the defendant was competent to proceed pro se i'll just address briefly the argument made regarding the review and whether there is an obligation of trial court to impose counsel on a defendant and i think this court's decision in ferguson is actually instructive in that respect in ferguson the district court did not apply edwards because edwards had not yet been decided on appeal this court remanded back down for the district court to apply edwards but said that it was up to the district court whether or not to hear more evidence regarding the edwards claim and furthermore after the district court made a decision about whether edwards would apply the this court indicated there would be no further review of that court's decision that the district court's decision on that issue would stand so this court has repeatedly given great deference and we would argue clear error or beyond the deference i'm questions of competency and unless the court has particular questions i'm happy to submit on our briefs i do have a question  at the sentencing phase yes one could argue that perhaps much more so than during the trial i recall that the district judge asked dr johnson who perform one of the u valuations to take a look at the record and see if a mr noel was competent to represent represent himself at the sentencing and and dr johnson found that  honor certainly a defendant it's hard to second guess a defendant who has a somewhat bizarre understanding of the legal system and bizarre motivations for how to act much like tax protesters do regularly in various proceedings here on this record there was no abuse of discretion and no clear what happened was prior to prior to trial defendant was evaluated multiple times and what those psychiatric evaluations found was the defendant was acting deliberately and likely man lingering those diagnoses are consistent with what defendant did at sentencing when defendant basically avoided participating whatsoever in the first sentencing proceeding after the first sentencing proceeding the district court had some concerns and asked n b c to re evaluate the defendant to determine whether his mental status is changed and certainly i think that's where the abuse of discretion standard would end whether the court procedurally asked for further evaluation to be done which is what happened with the revaluation was based upon the transcript that existed back when i think dr johnson or maybe dr cohen did the examination there was c and they could do further evaluation of him as he was being housed after the first sentencing hearing and i guess my question is whether the evaluation was based upon the transcript which would have reflected  know his behavior at that time as opposed to an actual evaluation of him at the time of the so yes i think it was a contemporaneous evaluation of him after the first sentencing proceeding and what they found was that the behavior of mr no el was consistent with someone who was milling green and in addition we submitted the declaration from the u s marshal who noted that after the defendant refused to participate in court he left the courtroom started laughing and indicated that this was what he had to do to show that he was under duress so i think the record here establishes that the district court did not clearly err in finding that the fed and continued to act in a lingering fashion and was making a mockery of the court process you i just wanted to briefly respond to judge cole's question about the nature of the evaluation was performed after the first sentencing hearing there was no additional evaluation performed by dr johnson the declaration makes clear th johnson looked at the transcript of the first hearing and looked at the prior report that n b c did months or i think even more than a year prior and apparently from the declaration performed some research from unknown sources about the nature of the sovereign citizen movement but there was no additional evaluation which is what the district judge had initially requested and is what our position is should have been done at that time and it had been some time since any evaluation had been done of mr noel and defense counsel and the evaluators noted that he had been deteriorating over time so i thank you thank