fifteen minutes for each defendant thirty minutes for is an odd one in that it usually means the right to shoot oneself in the foot but it is a right and it is not a privilege and there is no basis in this record for any conclusion  conclusion that mr powell was asserting that right quote merely to delay the trial or the government's alternative explanation which judge murphy didn't pass upon that mr question about that because that could have conceivably conceivably interfered with the orderly progress of the trial but that's not what happened he asserted right of self representation more than a month previously that the government in the in the district court conceded that it was timely ultimately in deciding the the the government's motion for reconsideration judge murphy assumed without deciding that his assertion was timely  key thing here however judge to me is that in in beginning the forever inquiry judge murphy predicated the proceedings by a very specific statement that in light of all of the delays that occurred in all of the defendant who were at issue it said or there would be no continuances he said with that in mind mr powell do you still wish to and do you still wish to represent is it still your choice to represent there is a specific amount of continuance discussed there was no your client ask for a continuance or if not or to prepare himself he did not he so so far as we know from the record your client could have gone ahead representing himself at the trial three weeks or four weeks th that's all the record reflects that's all they say judge murphy predicated by saying knowing that there will i just explained here they're not going to be any continuances do you still choose to represent yourself mr powell said unequivocally yes or that  mr mr apollo's filing of the more science documents and has even his posts directed to to file pro se motions and at least there's this holder ursus tibbles where we we give that as an example of something where self representation isn't allowed if you're really not distressed with your counsel you just want to do your own thing as well isn't that what holder says i suppose i must say i i and the case are swimming around in it in my head but the central thing is here that mr mr mr powell and judge judge joe murphy went through the bench book inquiry that is required mr powell answered appropriately explained that he would be back and agreed that he would be bound by the rules of evidence and the rules of procedure and the central teaching of the central teaching of forever it seems to me is in this applies bone to the fact that mr powell acknowledged that he was not familiar with the have had no legal education was not in three million with the rules although he agreed he would be bound by them and also with the fact that he was a symptom he had been attempting to research and these sort of eccentric legal theories but the the central teaching of frederick is and i'm quoting his technical legal knowledge as such was as such was not relevant to an assessment of his knowing exercise of the right to defend himsel orderly respectful and entirely appropriate way so if you're right and all of this what's the remedy new trial where he could represent himself i think surgeon it's also an odd kind of remedy but that's what i think that's where and you've made the case and i don't know that it's really been controverted that as a technical matter the for read a colloquy went through and he gave the right answers but both holder and others say you can also have a request not made in good faith even if those tick boxes are ticked is that correct yes or but there i don't see that was really what the district judge good at but there's no basis for that finding other than the that mr of paolo represent mr powell entertained some oddball legal theories well the james case from the seventh circuit actually it's kind of the procedural inverse of this case where a defendant was allowed to represent himself and i appeal argued that he should have been because he was a more science guy the seventh circuit said well the fact that you have bizarre legal theories doesn't mean you can't exercise a right of self of self representation if if it were so confined so many  of the tax protester cases in other cases would come out a different way but the answer to your question i logically it seems to me i'm i haven't examined the case law because i haven't examined the case law but it would seem to me the if the if the wrong is that he was denied the right of self representation the remedy would be he would be given that but it is an interesting conundrum if he then at the second trial said well now i think i would like to have counsel and so we you know we we would have the potential for people really haven't done the research but i could certainly see judge murphy saying or this court saying that if he doesn't exercise his right of self or representation he doesn't get  specific request he said will i be able to have stand by counsel and judge or measure replied well maybe yes maybe no really it i don't have to give you that you would you could give him re be on your own and mr mr powell said i'll be on my own and accepted that obviously if this case does go back i don't think there's a right to standby counsel i think the trial court would be used to supply stand point stand by counsel just to make make sure that everybody everybody's interests are best protected but that i think is a discretionary call that i'd looked at the government in it objections to the admission of evidence one of those on appeal here we break that up into two issues one regarding cellphone identification and location data and the second the first issue and those are the judge's findings of good faith and so has fighting with respect to the first issue of  in doing so we maintained that he didn't give a complete ruling based on the objections on the record and that the ruling he gave  for the seizure of anything leading to evidence as opposed to other ends and it is the argument in the brief that the edge of the first amendment the defective overbroad and that issue is your best case support your position there are a number of them cited in there but i believe it is the one publishing case with i think stanford press which indicates it's not all documents that are available now was the execution for search warrant regarding regarding a publishing company but or of a business but that that only the documents that were evidence of a crime not leading up to surveillance the police in this matter certainly took advantage of that scope of the case you called stanford presence at stanford daily that's the yes you didn't vietnam war case yes ok in ju that from the first warrant which the judge addressed and approved it because of good faith and then went on improve law the rest of that that it made it o correct me if i'm if i misstating it you might say counter counter arguments we need to do this for this reason and then someone could say well you don't really need to do it because there's something else  jones told us your guy is innocent i guess it could be viewed that way but it it's definitely be left out matters that would have undercut the showing that they were made which the judge found was not sufficient  communications system for law enforcement statute now that statute spent a lot of folks losing of that evidence the we have the government using statutes but not staying within the terms of statute i think there's case law up there joe we say if you're going to use a statute you got to stay within its terms if you don't stay with it sir it doesn't amount to good faith give me the argument on the pen register versus the simulator because obviously a simulator is something new but a pen register tells you when the phone is being used who's calling man who's calling out length of time but i can tell you what the difference is and how they use that in this  case is literally about the information because the simulator the information goes out isn't it pretty much the same thing is is is who i am who i'm calling who's calling me addressing or signaling information correct isn't that would it decodes the electrons that are going out of this your guys machine in his hand very soon she would have the number decodes numbers you're calling the numbers that are calling you right but it already but you need that number to start with in this is like that but it is rate does a whole day from which you already have a number rup maybe it should but nevertheless it seems to be about getting hold of electronic signals that convey certain information but these are not  is voluntary or consent to you know i was thinking that you have your phone and if you didn't have your phone it wouldn't be happening but you voluntarily have your phone i believe the simulator may not even work if you are talking on your phone you can't get the number from and that's what a simulator does it obtains the phone number so they can get a bit more right that if if the phone is simply off no no power yes yes i believe so it doesn't work  question judge foulke you saying that they did not the government did not use this information even if there was anything wrong with their getting it well judge when you h specific instance but they used throughout this investigation and this is they got the results that they did get ok thank you anything else judge guy oh i think he's agreed with you good morning your honor is may please the court can carlson appearing on behalf of appellant or his pro from my original ten minutes i've reserved two minutes of time for a bottle your honor is this case although it arises out of the same trial as that of the pall brothers  mr probs appeal in fact reppert raises a distinct issue a fundamental right and it stinks set of facts that were unique to the relationship between him and his originally retained counsel the law  is very clear that when a defendant is able to retain an attorney the choice of counsel to assist him rests alternately in his hands and not in the hands of the state in this case this court should reverse mr conviction because the district court deprived him of a fair opportunity to secure has retained counsel of choice in violation of the sixth amendment there is no dispute between the parties that the right to secure counsel of choice is fundamental that it is grounded in the text of the sixth amendment itself and that according to the supreme court it is the root meaning of the sixth amendment guarantee but there have to be some limits for example hypothetically if he had asked to retain of this court although there are limits judge moore and we agree that the right to retain counsel of truth of choice is neither absolute nor completely unrestrained under the right circumstances such as those presented in wilson and we believe here if there is a complete breakdown in the relationship between the attorney and the client such that the fairness and the integrity of the proceedings is called into question not only at that late time should  defendant be able to retain new counsel they also may have a sixth amendment right or a due process right to a continuance for that purpose did your client ask for a continuance he did not and that is a difference of opinion between appellant and the government in this appeal the government in its brief says they go so far as to say that mr probe demanded a continuance and that in fact is not true the operative section of the record your honor is page nine one five five of this trial court record which is a record number five eighty seven it is a transcript of the motion hearing that was conducted in the district court on april sixteenth of two thousand and fourteen this goes to our issue  that the trial court abused its discretion in part by failing to conduct an adequate inquiry of the facts and circumstances leading to the breakdown in the relationship between mr progun his counsel in the reason for that is as follows in a redirect that hearing is roughly two weeks before trial and that hearing is roughly thirteen days before trial that's correct judge box and the issue was raised however thirty five days before trial on march twenty sixth and our position to be clear and straightforward the court as we can possibly be under benito's versus united states of two thousand of those court when the issue arose on march twenty sixth two thousand and fourteen that there was a breakdown between progun his retain lawyers and their progress to retain counsel our position is that benito's and gonzalez lopez and weeks required that the district court in gauging the meaningful inquiry into the facts and circumstances at that time so that if in fact there was a need for mr pro or grounds for mr pro to find alternate counsel given the fact that time could be of the essence that he did as much time to do so as possible the district court in this case delayed the decision or ruling on the motion not only from march twenty sixth in till april twenty sixth further cramping the time between the inquiry and the trial but then also delayed its decision from april after april sixteenth until i believe  he didn't offer all of his reason your honor is as stated on the record on march twenty sixth was that we quote still had a little football left before the trial and saw let you make a record through briefs that at that point i mean one could certainly argue  there seems to be some back and forth a motion of formal motion was filed to withdraw about a week later as april three so now you have the motion if you scheduled a hearing to hold a hearing on april sixteenth or roughly that right that's right that seems to be the triggering event for the scheduling of a hearing and for the district court's initiation of a process to decide the issue but under but and in fact he grabs one counsel the right to withdraw but not the other that's right and that other counsel then actually does the trial that's right and there's no second chair there was no second chair and that counsel who did the trial was the one who said that she had not prepared for trial she stated that she had not prepared for trial and not prepared for cross examination had not met with the client had not undertaken and i've ever met with a client that had now well had not adequately met with the client for the purpose of parent for trial because my record my recollection of what i've read please correct me if i'm wrong was that the these two counsel were supposedly assisting in the pretrial matters but not supposedly preparing for a trial that's what they said to the district court when it's important i think to recognize under benita the the obligation of the district court constitutionally to make an inquiry that would satisfy the sixth amendment was triggered on march twenty six even if the formal motion to withdraw was not filed until april the third and the reason for that is the court it least had good reason to understand that there was a breakdown here and that trouble was looming between these attorneys and their client this process was initiated by the attorneys going on the record at the final preacher conference on march twenty sixth and saying to the core your honor obviously we have not prepared and the reason we have not prepared is because our retainer with m indicted what two years earlier i believe just under two years probably like that so so we have a situation in which a person who has the means to retain calpol retains counsel and gets to within a month of this massive trial and says oh you know i didn't hire them to defend me you know he says i did hire them to defend me they say he did not and did the cases about the right to counsel of choice are very clear the reason why the right is given a presumption in the district court to not obey that presumption in this case it's ruling on the record denying the motion withdraw says nothing about the constitutional presumption in favor of mr probs right to counsel choice it says nothing about it there wouldn't have been anything he didn't say oh i've got another calipso i've hired that i want instead of ms macaroni right that's right your honor again but and wilson versus minces seven six one second at two seventy nine a note as demonstrated nothing but confusion when the district court tried to probe into what had happened between him and him and his attorney that caused the breakdown literally the night before the sensel but wouldn't couldn't against trying to do a hypothetical that might be helpful to understanding what if a client once to delay trial and decides that he's not going to cooperate and then a month before the trial says well my lawyers are not talking to me and are not doing what i want them to do and so i want to hire another lawyer can he do that do those two cases that you've been relying on say he can do that and delay the trial of you know another five months in order to get them up to speed the word that i would the word that i would highlight is showing if there is an adequate showing and showing is the word something of what a showing a factual showing that that was the intent and the the intent behind the behavior of the defendant in asking for a change of status of counsel or asking for a continuance which again didn't happen here if there was a showing of those facts then arguably that would be sufficient to overcome the presumption in favor of the right to counsel choice but that kind of showing what wasn't wasn't fleshed out here either by the inquiry on the record of march sixteenth or april sixteenth or in the recitation of the facts in the district court's order to nine so that the judge  basically the judge is statement that i think he's just trying to interfere with the administration of justice i've seen nothing wrong with the representation by counsel respect and regard that just clearly erroneous it's clearly erroneous and represents a mis with that kind of showing and the district court just simply didn't have the facts to support that conclusion because the grounds that count so you do is start wanting to withdraw they wouldn't be paid and of course and the attorney who was appointed strenuously objected because she said that the proceedings leading up to that point including the disclosure by counsel that they had not prepared for trial had a rougher billy undermined the trust and confidence that program had in his lawyers at trial so there if there ever was a case where being forced to go to trial with a particular attorney would undermine our faith in the fairness and integrity of the proceeding in and of itself it's one where the attorney is going on the record in this is this  any humbly saying to the court if you make me do this the fairness and the integrity of these proceedings will be in doubt now let me ask you this question related  i apologize your honor we took a long way to get to the answer under gonzalez lopez the two thousand and six decision of the supreme court there is no harmless error review and there is no showing of prejudice  required in order to establish a structural violation of the sixth amendment and if the case were to be remanded even if the evidence were sufficient or overwhelming in the first trial the sixth amendment guarantee is personal and it guarantees him a trial with the right with his counsel of choice regardless of the adequacy or the strength of the previous trial thank you it would be a new trial with khalil of choice that's correct possibly or not possibly move on to the sixth amendment claims of authority with the court on the location warrants the location warrants here contain probable cause the tracking the defendant's location would reveal evidence of their ongoing drug conspiracy those warrants therefore satisfied the fourth amendment or the very least a good faith doctrine defense counsel raises two arguments against that here neither of which should carry the day the first  that because the warrant said lead to evidence rather than evidence itself that they were somehow not just invalid but so presumptively invalid that no officer could rely on that argument fails for three reasons first if this court looks at the fourth amendment the fourth circuit's decision and gives it actually used a standard similar to what the warrant stated here it said reveal information about the nature and extent of the drug organization it actually parallels what these warrants said quite close to forty sites in the brief did not address this question i'm not aware of any court that has addressed this question and it would be odd to hold that just people haven't even talked about it ever there's very little authority on it gibbs is the closest case it's one of the few court of appeals decisions to address this issue and it didn't confront this issue head on to the standard he used was revealed information about the nature and extent of the organization that's the language the court used the final point i'll make your honor is it's not and so did it hold that that was within the fourth amendment definition of evidence  i'm sorry just wasn't true speaking of something different that wasn't the language in the warrant that's the standard the court adopted for what probable cause had to show ok go ahead now the final point i'll make is this saying what you're looking for is leads to evidence versus evidence it is really a distinction without a difference anything that leads to evidence is itself evidence in some respect it may be circumstantial evidence that may be weak that didn't it may be inadmissible evidence but it is evidence of that crime whether it's itself unmissable or whether it leads to something that is admissible so for example knowing the murder weapons in a safe deposit box knowing where the safe deposit box is witness for instance in the witness told you the murder weapon is in the box well that wouldn't be admissible in an instant hearsay the big confrontation clause violation but it would still be evidence that would also lead to evidence so it's still a distinction without a difference what they're  ting to draw here and percent reason this is reminding me about civil discovery limitations and civil discovery and whether you can seek information about things that lead to evidence as opposed to just evidence and that's somewhat of a controversial area and i don't know what the analog is in the criminal law area but by your backup is that there's a good faith here anyway if it's so big that we don't know what we're talking about then officer should be given the benefit of drug dealing that's correct your honor to show probable cause to lead to problems cause of evidence of drug dealing tracking their location is going to show stash houses it's going to show coconspirators it's going to show cars they knew i mean that in itself is evidence that would also lead to other now moving to the franks issue that they don't actually make a frank's claim here they don't state anything that would make any of these affidavit materially misleading that's the standard for frank samit it's not enough to just say the officers could or should have included more you have to point to something in the affidavit that became materially misleading because they didn't include something briefs the defendants have abandoned any fourth amendment claim that the cell site simulator at least as used here constituted a search under the fourth amendment their argument therefore fails for two reasons one is that the use of the flight simulator here did fall within the pen register statute and second is that if i listen of the statute standing alone is never enough for suppression there has to be a concurrent fourth amendment violation eighteen they say their argument is not that a fourth amendment violation occurred except in so far as location data was acquired that's not quite verbatim but it's close and as the district court found and that's at page one two seven seven i believe there was a question on that earlier paid one two seven seven of the record there was no location data acquired here it was just used to determine the defendant's phone numbers so that in itself resolves the fourth amendment records or the codes dialing routing addressing or signalling information that's how it functions transmitted by and then there's the definition of a cell phone after that so it fits squarely within the definition definition of a pen register no it's not what a court would traditionally view as a pen register that's actually by design if the court looks at the two thousand one hundred men moments and legislative history behind them the statute was amended in two thousand and one precisely t encompass the expansion of cellular technology to make it pen register account for advances in technology so this is the purpose of the statute it would be odd to interpret a statute that was expanded for this reason and similar reasons not to include this type of information it was it was amended generically that is i don't think they knew about the sting ray technology at that point did they i don't know if they knew or not i think there was some na technology working its way through in the ninety's but even assuming they didn't they they would have the statute broadly to account for unforseen circumstances and that's one reason a sickly there's all these electrons in the atmosphere and if we can get hold of them that's fine as long as we don't get the cutouts that's correct your honor and the legislative history in the statute itself makes a very precise and direct distinction between content and routing information or seeing the information and of course had the government obtained content using it here we would  not have this argument it would be a wiretap it would be a violation of cats and and we would not have an argument to stand  the district court here did not abuse its discretion in finding that carla's palls continued insistence on filing his protest or documents even after district court told him not to even after two district judges struck those documents and even in his answers during the forever hearing combined with the suspicious timing of his request demonstrated an intent to obstruct the trial proceedings rather than a genuine desire to represent himself the trial and i'll start with the protester filings because there's a misconception in this mr lawrence argument about what those are and why they are relevant here protestor filings standing alone would not be a basis to deny somebody the right to self representation that much is clear they don't come up often but they come up frequently enough and they don't if that were all this was that would not be a basis to deny self for presentation the problem we have here is that the defendant refused to stop when ordered to the last time he was pro se of importance to pretrial docket he filed all of these protesters filings in a judge actually struck them that order striking those filings didn't stop them from filing them again as trial approached and he decided he wanted to represent himself to advance these arguments the judge struck those in a written order and that's on page one eight three eight and then at the final pretrial conference actually instructed the defendants not to file those and warn them against filing any more that's a page for one eight six so when the judge reached the for the hearing a few days after that the first thing out of the defendant's mouth is that he wants to file these documents despite being told repeatedly not to the district court could fairly conclude from that that he had seen a preview of what the defendant would do during the trial proceedings immediately before and during trial that if he instructed the defendant to stop filing these just stop making these arguments whether before trial during hearings or whether during trial in front of the jury when it really mattered and could risk a powell would not stop that's the key distinction here now was that was that the basis for the district judge's ruling not specifically your honor the district judge said the trial now mr wrenn interprets that to mean only delay the start of trial that's not what the district court said the district court said delay trial delay can mean not just the star but delays within the trial that aren't there two different scenarios then on the one hand if the district judge and said mr karr's power you have been continually filing these frivolous documents and i've told you to stop and you have been stopped and that is the reason why i am denying you the right to be pro se i would be one thing but he didn't but the d j didn't do that you know he didn't really specify what he meant exactly by the lay whether he meant the way to start a trial or whether he might delay more broadly and i'll make two points in respon are there one is that when this court has used the term dilatory intent and actually has intended it more broadly and if you look at the quote from cunningham the quote refers to and this is a direct quote any threat posed to the orderly progression integrity of the trial by the defendant dilatory intent of the court refers to dilatory intent here there there there i'm sorry dilatory intent there which is essentially the lack the second point i'll make and the court there are obviously interpreted start a trial the second point i'll make is that if that is the core of this court's concern the remedy is not every man for a new trial the remedy is to ask the district court on remand what the court me dispositive that may be the best option here is to remain for the district court to explain that further i will know in the district court's defense to the extent this court does view that explanation is insufficient there was a lot going on at the time there w there were a number of pretrial motions there was preparation for trial jury instructions the district court simply would not have had time to expand upon the order in that way but the judge did now getting back to where i started originally here if the court looks at the friday hearing the court will notice that from the outset of carlos paul's answers to the bench booking corey carlos paul answered defiantly and only by referencing these protester theories and it's important that he did that from the start of the bench book colloquy because of the court looks at page two hundred seventy eight of the record that's a couple of pages earlier two hundred seventy eight of the record defense counsel notes that he had gone over the bench book colloquy with carlos paul beforehand so carlos paul knew which questions were coming he knew what questions were coming in the moment those questions were asked he answered defiantly was protester theories he said he didn't know what a criminal case was in the very next sentence when the judge tried to clarify he says with all due respect i have heard that and i haven't presented myself and that's classic protester language that you only are subject to the court's jurisdiction if you agree to it so he's not even answering these questions directly he says he doesn't understand that he's been indicted of drunk charges that just is not credible for somebody of his circumstance are there cases where this court or any other court has upheld a district judge denying person the right of self representation where it's clear that person is going to be a protester type person not even the strong as they are here because that request came several months before trial like carlos paul the defendant there incorporated his protester theories into his answers of the friday hearing refused to answer the court directly and like carlos just that he had those theories it's that the district court had previewed how carlos paul would present those theories and mostly most importantly how carlos would react when the court tried to intervene to stop him and that is the key point for the court looking at a trial knowing that you have a defendant who is going to be that to find regardless of what the port sons you know it's just as a assuming that there's no six circuit on this which seems like it's the eighth circuit that you're a lying on  correct you could hypothesize the answer being that if somebody wants to present a crazy theory as his defense that under forever he has the right to do that and granted the district judge during trial can can say i've heard you move presented your forest whatever it is theory but now you must stop and then of course if the fellow doesn't stop and you can see the district judge making subsequent orders that limit the person but to say that somebody can't have a theory even if it's a crazy theory and that's what he wants to do it i could see that somebody might not think that was the right way to go i would disagree with you in part judge and i think i disagree if you want to dispositive point the disagreement here is not whether he wants to present a crazy theory a pro se defendant can present a crazy theory it still has to be inadmissible theory it still has to rely on admissible evidence criminal defendants whether pro se or otherwise do not get excused from complying with the rules of procedure or the rules of evidence this type of theory here in a drug case is not unmissable under any possible reading of the law so the court knew that right away it would have to strike his argument would have to order the jury not to consider it and that this would happen over and over again because of the way carlos paul had been acting beforehand the argument is that the usually the judge had a reasonable basis to conclude that he would not in fact comply with the court's order representatives that's correct your honor he had been given quite the preview with the pretrial proceedings which would be at least a arguably different if there was a colloquy well i want to say this and the court says well you can say this but you can't say that do you understand yes i do and then we might have more trouble we do get more you might have more trouble for instance of the defendant had agreed not to present these theories that might that might be a reason and especially if the judge believe it or not the judge of intent what you relied on in good faith and not complying with the tax law so so it would depend on the circumstance of the case and whether whatever protester theory they're presenting would be admissible at trial if the district court needed to step in and strik the other in fact i'll point to here is the timing in addition to the answers the timing and we are not arguing that a motion made at the final pretrial conference is per se on time but the timing here was unusual and more than unusual suspicious because you don't just have a defendant who appears to authentically want to represent himself does so consistently does so clearly does so in time for the district judge to react you have a defendant doing so late in a two year trial process who does so in court nation with his codefendant when both of them are trying to fire fire their retained attorneys that there's no other evidence of court nation but that would be very unusual for two defendants who have been represented by retained counsel for that long just suddenly at the final pretrial conference decide they want to fire their attorneys and state it on the record within pages of each other so that in itself i think raised legitimate red flags for the district court not least because they were retained attorneys now the right to suffer visitation does not vary depending on whether someone is appointed or retained but when someone gets to handpick their attorneys the fact that they are trying to fire them that abruptly without any notice whatsoever is eyebrow raising and it does suggest an improper motive the final point i'll make on this the court to compare the way mr pahl acted here with the way mr fleming one of his co defendants acted mr fleming was allowed to represent himself at trial he let the court know well in advance and if the court compares mr fleming's friday hearing with mr palls and i'm preferred specifically to page one zero three zero five to page one zero three one four of the record you'll notice that mr fleming answered the court's questions directly there were no protesters theories there was no suggestion of an improper motive and the court permitted him to represent himself so this was not a case of a judge reflecting only reflexive lee prohibiting a defendant from representing himself this was a judge who presided over hearing where the defendant behaved improperly had previous instances of the defendant behaving improperly in similar ways actually had additional time to consider this because of the initial legal mistake in the government's motion for reconsideration so ponder this question for quite some time and came to the conclusion that the defendant was trying to delay the trial proceedings that is a purely factual finding it cannot be clearly erroneous and therefore the judge's decision here was not an abuse of discretion the district court here did not abuse its discretion in denying probes request to replace his attorney at the final pretrial conference all four of the factors that this court considers here support the government timing timing here is crucial because if the defendant had made his request for a new retained attorney and actually showed that he was going to substitute a new retained attorney and well in advance of trial the district court would not have had discretion to deny that motion as the records show when program found out that his lawyer was not prepared for trial on the record i think shows that it was quite recently before the final pretrial conference but that's a misnomer in a misconception or are not prepared for trial and they assume this was some deliberate choice by the attorneys not to prepare for trial to him they were negotiating a plea agreement as he had instructed them to he expected them to negotiate a plea agreement that's how they expected the issue would resolve and that's what they were doing now of course when those negotiations fell through that is when i think the record is pretty clear on that that is one probe decided to stop talking to them now that lack of communication because he stopped talking to them didn't hinder their ability to prepare for trial they're quite clear about that that they hadn't been able to prepare for trial that is not a basis for permitting last minute substitution of counsel a defendant cannot fillibuster his case just because he doesn't like the government's plea offer even if that does hinder the attorney's ability to prepare for trial and the attorneys here notably did end up preparing for trial the government made a record of that if the court looks at page two three seven one two two three seven to the government explain that defense counsel had to be done prepared for trial the government explained that the defense counsel had yes i understand the sounds were all explained the government had physical evidence that the defense attorneys who come see the government was also negotiating stipulations with the defense attorneys so the government had at least some insight through its communications with defense counsel about what they were doing one additional point help the defense counsel said on the record that they were not prepared so what you're saying is troubling it suggests that you believe the defense counsel were lying but it's troubling even if that's not what you're saying it's troubling in terms of what pro would believe he would believe that his counsel are not prepared if he well i don't know what really believed but the fact that he's not communicating with them so just that to the extent they are having trouble preparing for trial it falls on his shoulders to defend it can't stop talking to his attorneys just to just to push the proceedings down the road and i will note that two more points on timing both of which contradict defense counsel's argument here that request for a continuance yes it was a compound question but answered it affirmatively that he did agree with the judge that the continuance would be necessary he did not qualify and only answer part of the judge's question the judge actually found based on probes answer after seeing that answer and hearing that answer in person that that's what prob meant relied on that fact in the judge's order and probably never challenge that either in a motion for reconsideration or otherwise nor did pro ever attempt to identify a retained counsel to replace his current attorneys that's important for two reasons one he's trying to make this a replacement of retained counsel case well that is only true if he's replacing retain counsel with retained counsel if he in fact needs appointed counsel he has no right to counsel of choice the supreme court was clearing in dollars lopez so we're back to strictly to the good cause analysis so it was pro  detained in jail pending no he was not actually agree with what i knew that he did flee so so he kind of so your theory would be he could have gone out and scoured the criminal bar and found the right person to represent him during this period not just could have but had done so previously if you look at the record it took about six months for these counsel to make an appearance and one other point i'll make about preparation for trial your honor these are two attorneys who had been involved in the case for a year and a half preparation for trial is a lot easier when you're that familiar with the case when you've gone through discovery when you litigated pretrial motions when you about have evaluated your client's risk so that you can negotiate a plea agreement in that context the additional steps for preparation of trial are not that high for a defense attorney it is identifying any potential witnesses that your client might want to call crafting opening and closing statements and crafting outlines for cross examination that's really it now the one counsel supposedly had no familiarity with federal criminal proceedings how how is that counsel found we know that they were both retained but that is there anything in the record that would help me understand that no there isn't your honor i don't think it is in the record ok but but they were additional point i will make here is the defense counsel's argument is actually internally inconsistent he's trying to say that a new attorney could have taken this on a month before trial learned the entire case including all the discovery including all of the pretrial motions that in the fall including anything that the defense counsel had already spent a year and a half doing had done and do that in a month while simultaneously claiming that these attorneys who knew the case far better and had this year and a half to learn the case somehow couldn't a little bit ago you said you knew you knew that there was some preparation being done because they could come and examine your files or something are you the timing of the court's consideration this motion the defense acts like the judge just arbitrarily kicked this down the road a couple of weeks after the final pretrial conference that is simply not what happened if the court looks at page four to zero three of the record you'll see defense counsel actually asking to file a written motion outlining their reasons for withdrawal it's very difficult to fault the district court for waiting for that motion when that is what the defense has asked the district court to do it would be indeed for defense counsel now or for a court of appeals to decide that the judge was somehow abusing his discretion in doing so judge guy anything you'd like to ask you now  suggests that when judge murphy said that the problem here was that mr powell was trying to delay the trial what he really meant was he was trying to prolong the trial and at most we should give him a chance you should give him a chance to explain himself maybe take that suggestion up judge  murphy put his thinking on the on the record twice and he ruled after the initial forever inquiry and then he ruled in writing in response to the government's motion for reconsideration of that first ruling and the language it seems to me is pretty clear he's talking about the case has been delayed we now have a trial date this man is just trying to lay it further i don't think there's any real ambiguity here missed the government suggests a host of possibilities possibilities what this this protester language was a clue this was a clue that was a clue this is an awfully slender reed i think to defer to justify the denial of a fundamental powell agreeing specifically even after the judge explained to him that these pleadings these more science stop pleading or improper that he would understand he is bound by the same rules as everybody else and he gets quote no special privileges the cases to which the government upon which the government really relies the screw case which was the subject of the twenty eight j filing in the amount of personal a defendant who quote was personally persistently of a sieve and refused to directly answer the court's questions in two separate forever inquiries and that was the heart of the court's ruling he also filed crazy documents well as judge superman wrote for this ninth circuit in united states against johnson which is cited at page ten eleven trial but they did not exhibit a blatant disregard for courtroom rules or protocol and did not make it impossible for the court to administer fair proceedings the defendants behaved courtroom behavior although eccentric at times would not have justified let alone require the involuntary were deprivation of their constitutional right to represent themselves and i know my red light is on but a job was an example where they've actually seen the trial yes and no judge but if you brought up pointers founder against hibs and i had mood at the time but if you if you look at the statement of facts in who under it was a train wreck in the defendant's ok we can we can judge the ok and that's not what we have here that dead guy anything might also played out in this regard that the summary provisions of the world which read generally there is probable cause to be there's probable cause to be that the requested information requested information will lead to  include any information that may disclose the physical location of the scribe or when they use this thing the they use it for the number but they also use it to confirm location of the sat phone and the location of the also when you have two minutes in your honor recall the critical fact that distinguishes progs case from the previous cases in the case of his co defendants it was counsel retained counsel not mr who initiated the withdraw and substitution process by telling mr probyn that telling the court for the first time on march twenty fifth and twenty sixth of two thousand and fourteen that is far as they were concerned their retention in this case was limited to pretrial motions and plea negotiations and not for purposes of representing mr probs interest at the trial of this criminal matter it's not as if they were prepared because mr prohack stopped communicating with them and they couldn't do their preparation they were not prepared as they told the district court at page ninety one forty three and ninety one forty five and forty six of this record because they were not prepared or they were not retained to prepare they were not retained to prepare and therefore consequently we did not prepared mr probe to confirm that or have any documents of that sort the inquiry was so inadequate your honor that he wasn't even asked he was even asked what's in the retainer agreement he wasn't asked what what did you sign he wasn't asked what's your understanding of the retainer agreement he wasn't asked how much did you pay him he was nast where did you get the money to find a new lawyer he wasn't asked what he already done to find a new lawyer he was left alone because it's attorney said we were retained to leave you alone you're on your own you're not with us you're on your own if clean the get plea negotiations fall through because of counsel's position this dispute about withdrawal substitution council of choice appointment could cause proof presumptions was inevitably bound to come before this district court because because counsel as far as they were concerned were headed out of this case the moment the plea negotiations broke down and that's just what happened anything else from anyone thank you mr cross only because we want to thank you for taking this under the criminal justice act you don't have quite the white here or not here of your co counsel but you've done a fine job as well and we appreciate your taking it under the criminal justice act that case will be submitted the remaining cases will be