dancer i would know that i am an appointed c j lawyer on this case as was the lawyer who was the trial counsel i was not trial counsel i was appointed after the trial and sentencing and carried the ball from there so i make that caviar because i have a short amount of time this morning before i jump into my argument i would candidly  for leading to the court of the court and that i now made says that's not the way we look at for cause if you have to appeal to the court's ruling regardless of the government's role prior to that ruling you do you  agree that that's the proper framework here your honor i believe that that particular case is certainly a political put also might be distinguish i want to be candid with the court i bring to the court the issues that were given to me you know from a legal perspective my from a defense perspective from the standpoint of how fast it's a cooler conversation came together whether you or anyone wants to characterize it as the courts action or the prosecutor's action it was clear that it was the prosecutor who was a group that what was behind the the strikes and it wasn't just the court so i do think factually there are some distinguishing marks to be made but i don't want to waste a whole lot of time on the bassem issue because i'll be candid if it is troubling from a stand a global standpoint the fact that you have two african americans in the whole jury pool and they were taken out  and i think everyone in the case from the judge to the prosecutor to the defense recognized that that was unfortunate with respect to self representation i'm troubled by the fact that the court had a hearing made a lengthy record of my client's request to represent himself and then found that he had knowingly voluntarily in themselves only way if that right and wanted to or were accepted the right to represent himself and wanted to move forward it was only after the court then we'll i'm not going to grade your continuance that it's our belief that the case law supports the idea that that sort of  the disc or the trial courts in this case the magistrates backtracking was not sufficient it's sort of once my understanding of the ball and the various case law to back it up sort of once the waiver has been accepted there's no fundamental right on behalf of a defendant to have hybrid representation or to go back and forth and certainly we believe that polani represents facts that talk about prejudice a little bit but i didn't see that to be case determine if it's a no go review and it is a constitutional right and as such the prejudice prong waiver was accepted and that what happened after that i do not believe that prejudice is the right way to look at this particular question ok and then finally well not finally but at the end of the case i think it is significant that we have an individual who the district court determined had a sentencing guideline range of fifty argument isn't so much that the judge didn't have the jurisdiction that the argument more falls on the side of is it enough for a court to tripling the recommended guideline range and i believe in this particular case the court noted there were several instances of violence in the past including a visor e guideline range with on that sort of paucity of a of a foundation and move on the cases i've cited talk about it's not just enough to cite the thirty five th eight factors in and threw out a couple of facts and move on there has to be a meaningful engaged recitation the both sides and an explanation of how the court got to the final symptoms and is that was particularly lacking in this case anybody else would have a question before i move on to the final two cases of course the final two issues were suspicious of the evidence again my client is deeply troubled that the officer that retrieved the firearm was not the officers that allegedly saw the firearm get placed in the location that it was placed there was no d n a that was done and as you know the cases are very clear that mere presence to a firearm is not sufficient  moreover i do not believe that the identifying officer ever identified the firearm in question conclusively is being the firearm that you saw the defendant placed in the alleged flowerpot that is very fact driven as is frankly this whole brief but i think it bears review i'm also concerned that the government has leaned on  my client's alleged statements from jail as confessions when in fact the jail calls were more declaratory statements i got arrested for  this and i'm in jail for this there was no way i had that particular gun and i was if i was a felon i should have known better not that you're going to get a perfect protocol confession like that but it certainly does raise the question of whether or not that is sufficient evidence certainly there are anybody can take an imprint from any evidence but the question is is  reasonable inference and what are reasonable juror in that same circumstance believe that the evidence is sufficient as a matter of law beyond a reasonable doubt sustain the conviction and i lasted at least is the bass issue again i i come back around to that because my client being an african american male feels very strongly about this issue deals that  the two african americans in the court's words took themselves out of consideration but the reality is that a black person in the united states does have different experiences than a white person and both of them affirmed at the end that they could fairly and impartially listen to the evidence and follow the judge's instructions yet they were still struck for cause and on that basis we would ask for either a judgment of acquittal or remained as appropriate under each of the claims violations thank you prep preservation of that objection seems to me that you know that the fact that there was for cause was not raised post verdict is irrelevant we have to we have to take up before cause ruling asked a number thirty nine on the merits under the case law elliot and others for challenging the judge's ruling not the prosecutor's problem ok i think that's few but i knowledge that he was and in so many words equivocal all right he said possibly maybe i don't know it with respect to the question of whether he could fairly judge the credibility of a law enforcement witness that same as you would the question of the credibility of any other witness and that that would be a basis for for cause strike and so the that the point that the government would make on that is that in addition to the statement that it's clear that it's a very high standard almost a nd car or tells district court you don't strike for cause unless you unless you are convinced the person can't be fair and taking that case law spur of the moment reference batson and not are for cause cases i don't think because we don't have to look at it from the proper standard is should that should show the judge on this record cases cited in our brief that say two things that i think are relevant to your honest question one is it's it's the impartiality or the appearance of impartiality too that we know that equivocal answers are not enough and in particular the question is if they defend or if the juror is incapable of saying that they will be fair and impartial if they say things like i don't know maybe probably all it's fry i'll do what i please and those are those are the really issues about discretionary continuance motions into issues about forever this sort of repeatedly rejected that kind of approach especially if it comes in the week before it files a when it looks two years and had been repeatedly read that there was an in large quantity of time that had passed but in addition there were also a large number of continuances that were granted and then that a judge here expressed their concern about the docket management issue so i think the another way to look at this case or way to look at the six and then they should have been presented is that message as it was more than willing to let mr dancer go  go pro se on your own schedule immediately before the trial date and i think that's what mr ganser was trying to do here in the in the master judge didn't didn't there plainly or otherwise in refusing to let him do that and i'll just note for the court that this is a trial lawyer myself and having worked for a judge russell clark in springfield i know that the issues that happen in trials such as the bass or the core cause issue and even potentially sufficiency you know things kind of come up as they do and you know the procedure isn't always followed one hundred percent which leads me to kind of a thing then things sometimes and not everything is perfect and i would hope you would review those claims in that idea that within that scope less respect to self representation in the sentencing however i'm particularly troubled the magistrate had a full transcript goes on for pages hearing about his is right in the downfalls of representing yourself and then the magistrate accepted his weight and then once it became clear that a continu would not be granted to him he then said well that essentially says that bridge just has me i'm going to let this person continue i still come back to i'm concerned that there was this full hearing the waiver was granted and as someone who gets appointed as standby counsel myself i can tell you that i i know the circuits law on this there is no right to a hybrid representation and that going back and forth is highly disfavored and i i think we have to kind of turn flip that coin on its head and say well once you've accepted a waiver can somebody just sort of and waive it because they don't like something the court does or does the court have to then backtrack and make it sort of an equally firm record about the decision to un waive and admonish the defendant going forward that there will be no back and forth and for my practitioner standpoint i think that is particularly something that could use this court's guidance and i do think it is somewhat in a gray area to be quite honest  say to that particular question on your part is that if if you have an individual who is dissatisfied with his lawyer decides to represent himself and then because he feels compelled and forced to take over for himself he would then be in a very awkward position as would the lawyer then appealing it to the district court saying that effectively i still want this person gone even though i'm on the eve of trial which i think brings its own problems to the table and with that i think you all very much thank you mr mr kelly my notes to show are and where you pointed counsel for this i want your honor i was appointed after last appointed counsel had to be removed