[00:00:01] Speaker 02:
All right, our last case for argument this afternoon is US versus Berks.

[00:00:23] Speaker 02:
Let's give counsel a few minutes, but you don't have to rush.

[00:00:26] Speaker 02:
Take your time, we'll give you a few minutes to set up.

[00:00:47] Speaker 02:
All right, when you're ready, counsel.

[00:00:49] Speaker 00:
Good morning, Your Honors.

[00:00:50] Speaker 00:
I'm Carl Gunn.

[00:00:51] Speaker 00:
I'm representing Mr. Birx.

[00:00:53] Speaker 00:
I'm going to try to save four minutes for rebuttal.

[00:00:56] Speaker 00:
I'll try to keep track of my time.

[00:00:58] Speaker 00:
In case time gets eaten up by the other issues, and because I think it's really very clear, I want to start by just briefly addressing the obstruction of justice issue, because I don't want that to get swallowed up.

[00:01:12] Speaker 00:
You have two cases that are almost directly on point.

[00:01:16] Speaker 00:
You have cases with facts that are, if anything, worse than the facts here.

[00:01:21] Speaker 00:
You have the Madera-Gallegos case, where the defendants had, quote, fled in a hurry, unquote, and moved to a foreign country.

[00:01:28] Speaker 00:
You have the Stites case, where there was also a flight from the jurisdiction, and the defendant was using aliases.

[00:01:35] Speaker 00:
You don't have flight from the jurisdiction here.

[00:01:39] Speaker 00:
You don't have aliases here.

[00:01:41] Speaker 00:
So I think, at the very least, the sentence is vacated.

[00:01:43] Speaker 00:
I'm sorry, Your Honor?

[00:01:43] Speaker 04:
You think it would make a difference in his sentence?

[00:01:46] Speaker 00:
I think it very well might, Your Honor.

[00:01:49] Speaker 00:
Well, the judge went down to 220.

[00:01:52] Speaker 00:
Right, but there's case law in this court that says it's not harmless air, and I think it might make a difference.

[00:01:58] Speaker 00:
I think Judge Hatter would be starting from a different starting point, which is what the Supreme Court cases about harmless air in the guidelines talk about.

[00:02:07] Speaker 00:
Obviously, I'd like to see much more than just the sentence get vacated.

[00:02:11] Speaker 05:
But what do you do with the mandatory minimums here?

[00:02:14] Speaker 00:
Well, the mandatory minimum is 15 years.

[00:02:16] Speaker 00:
It's a conviction stand.

[00:02:18] Speaker 05:
OK, so mandatory minimum of 20 with the enhancement.

[00:02:23] Speaker 00:
I don't believe there's mandatory minimum.

[00:02:24] Speaker 00:
He got less than 20, Your Honor.

[00:02:25] Speaker 00:
There's no mandatory minimum of 20.

[00:02:27] Speaker 05:
OK, so what did he get?

[00:02:28] Speaker 00:
He got 220 months.

[00:02:29] Speaker 05:
220 months, which is?

[00:02:31] Speaker 00:
a little less than eighteen years and something.

[00:02:34] Speaker 05:
And you're saying is that without the enhancement the guideline would have been fifteen years?

[00:02:38] Speaker 00:
Oh, I'm sorry, you mean the obstruction of justice enhancement?

[00:02:41] Speaker 00:
Yes, yes.

[00:02:41] Speaker 00:
No, the guidelines would have been still about two hundred twenty months.

[00:02:46] Speaker 05:
I think that's what the question both Judge Byers and I were asking.

[00:02:50] Speaker 05:
So if we take out the enhancement, he's still got

[00:02:53] Speaker 05:
a sentence at the guideline, right?

[00:02:54] Speaker 00:
Right, but Your Honor, you're going, instead of a base of 360 to life, you'd have a base of 200-something to 200-something.

[00:03:03] Speaker 02:
Not a variance, but you're relying on that line of cases that says wrong starting point.

[00:03:07] Speaker 00:
Correct.

[00:03:08] Speaker 02:
Could possibly make a difference.

[00:03:09] Speaker 00:
Correct.

[00:03:09] Speaker 00:
Unless the judge says something like, this is the sense I give either way.

[00:03:12] Speaker 00:
I understand.

[00:03:14] Speaker 00:
It's pretty clear you can't find.

[00:03:15] Speaker 00:
And the other point here is the government hasn't argued harmless air.

[00:03:18] Speaker 00:
And this court generally does not bring harmless air upon its own.

[00:03:21] Speaker 00:
So you have those two considerations here, I think.

[00:03:23] Speaker 00:
The reason the government didn't argue it, I think, is the Supreme Court cases easily dispel that.

[00:03:29] Speaker 04:
Let me just make one thing clear with respect to this issue.

[00:03:32] Speaker 04:
I don't even want to get the others.

[00:03:33] Speaker 04:
But the indictment had been, the grand jury had returned an indictment, but it had not yet been served on him.

[00:03:44] Speaker 04:
is that correct

[00:03:46] Speaker 00:
I think, well, you don't usually serve an indictment.

[00:03:48] Speaker 00:
Well, I mean, the rest warrant had not been issued.

[00:03:51] Speaker 04:
The warrant had been issued.

[00:03:52] Speaker 04:
The rest warrant had not been issued.

[00:03:53] Speaker 00:
Unlike the, I believe it's Modelo, I may have the name wrong, case that's distinguished in Stites and Madera Gallegos, this is not a case where he'd been arrested in the warrant and released with the understanding that he should return.

[00:04:06] Speaker 00:
And that's what makes that case the not controlling case and the cases I cite the controlling cases.

[00:04:11] Speaker 05:
And I know you wanted to start with this.

[00:04:12] Speaker 05:
And I know you have other things to deal with.

[00:04:14] Speaker 05:
Now you've got me interested.

[00:04:16] Speaker 05:
On this count, as I recall the evidence, or on this enhancement as I recall the evidence, he fled

[00:04:31] Speaker 05:
from a hotel, he left from a, fled from a hotel room when he thought that the police were outside to arrest him, or a hospital room, am I wrong?

[00:04:39] Speaker 00:
That was an allegation in the suppression hearing, but that wasn't any basis for the obstruction of justice enhancement.

[00:04:46] Speaker 05:
So what was the evidence concerning his absenting himself?

[00:04:51] Speaker 00:
Basically that he moved somewhere and sort of just lived in a cousin's basement.

[00:04:55] Speaker 04:
That was after he served his time on the state set.

[00:04:58] Speaker 00:
Yeah, after he served time on the state set, the hotel thing was five years in the past.

[00:05:02] Speaker 02:
And a suggestion that law enforcement tried to find him through some relatives.

[00:05:07] Speaker 02:
So why, on this record, given the standard review, why is it unreasonable for us to conclude that the district court made an inference that he purposefully evaded arrest because they tried to but couldn't find him?

[00:05:23] Speaker 02:
Do you think that's too much of a stretch?

[00:05:26] Speaker 00:
Your Honor, that's not enough under the Stites case and the Madera-Gallegos case.

[00:05:31] Speaker 00:
Simply sort of hiding from the police and not turning yourself in is not enough to be obstruction of justice.

[00:05:37] Speaker 00:
That just loses you acceptance or responsibility, absent something else, but it's not enough under Stites.

[00:05:43] Speaker 00:
In Madera-Gallegos and Stites, the defendants fled the jurisdiction and in one case used aliases, and another case went to a foreign country, and that wasn't enough.

[00:05:53] Speaker 00:
So I don't think you can say there's enough here.

[00:05:56] Speaker 02:
I want to make sure that you address the Florida issue.

[00:06:00] Speaker 00:
That was going to be the next issue I wanted to move on to your honor.

[00:06:03] Speaker 00:
I think the first the first point we have here is it is crystal clear that the reason the district court gave for denying self representation

[00:06:13] Speaker 00:
is improper.

[00:06:14] Speaker 00:
It's an improper basis.

[00:06:15] Speaker 00:
You don't tell defendants they can't represent themselves because they'll do a horrible job at it.

[00:06:20] Speaker 00:
You're not capable of it.

[00:06:22] Speaker 00:
And that's the reason the judge gave here.

[00:06:24] Speaker 05:
And I think that's a strong argument.

[00:06:27] Speaker 05:
Doesn't your client have to make an unequivocal request for self-representation before we even get into the Ferretta analysis?

[00:06:36] Speaker 00:
Well, if Ferreira says that, and we have a bunch of cases.

[00:06:39] Speaker 00:
If the request is equivocal, and if it's for purposes of delay, which are the two arguments the government makes.

[00:06:44] Speaker 00:
Well, those are two separate problems.

[00:06:46] Speaker 05:
So just focus on equivocal for the moment.

[00:06:49] Speaker 00:
But there's two reasons you can't rely on that here, Your Honor.

[00:06:52] Speaker 00:
The first of all is I give your honors three different cases that say this court doesn't go out on its own and figure out alternative bases.

[00:07:00] Speaker 05:
No, but those cases deal with when the whole Ferretta right is triggered.

[00:07:06] Speaker 05:
The Supreme Court tells us that your Ferretta right is not triggered.

[00:07:11] Speaker 05:
until you make an unequivocal request for self-representation.

[00:07:15] Speaker 05:
Then the judge's reasons for turning you down are the reasons, and we can't make up other reasons.

[00:07:21] Speaker 05:
Let me just finish so you can respond to it.

[00:07:23] Speaker 05:
That's what I read those cases as saying.

[00:07:26] Speaker 05:
My question is, are we in Ferretta land here at all?

[00:07:30] Speaker 05:
Because your client says, well, maybe I should be representing myself, or you're telling me I can't represent myself, but he never says,

[00:07:40] Speaker 05:
I want to represent myself.

[00:07:42] Speaker 05:
In fact, he doesn't even say, I want to fire my lawyer.

[00:07:45] Speaker 05:
And so part of my problem is I'm just not sure I see what I think is necessary to trigger the whole Ferretta inquiry, which is an unequivocal request.

[00:07:55] Speaker 00:
So respond to that for me.

[00:07:56] Speaker 00:
Let me respond here.

[00:07:57] Speaker 00:
There is a request.

[00:07:59] Speaker 00:
Once there's a request, then you look at three factors, one of which is whether the request is equivocal.

[00:08:05] Speaker 00:
In the Kifarov,

[00:08:06] Speaker 00:
the case I cite, and I think the two habeas cases I cite as well, there was an argument made by the government that the request was equivocal.

[00:08:15] Speaker 00:
And this court didn't say, no, it wasn't unequivocal.

[00:08:21] Speaker 00:
The court said, we're not going to get into that.

[00:08:24] Speaker 00:
And the court gave reasons that really apply here.

[00:08:27] Speaker 05:
First of all, they talked about this is a real- Can I find what you just said on the face of those cases?

[00:08:32] Speaker 05:
The government argued that, or you're doing that from personal knowledge.

[00:08:36] Speaker 00:
No, no, I'm not doing that from personal knowledge, Your Honor.

[00:08:38] Speaker 05:
So when I read those cases, you think the court says, we don't care whether the request was equivocal or not?

[00:08:43] Speaker 00:
Yes.

[00:08:44] Speaker 00:
Nikiforov, yes, for sure.

[00:08:45] Speaker 00:
And I believe the other two cases as well.

[00:08:48] Speaker 00:
And there's two reasons for that, Your Honor.

[00:08:51] Speaker 00:
First of all, you're getting into this complex factual inquiry that appellate judges just aren't equipped to handle.

[00:08:58] Speaker 05:
But when it's not facially,

[00:09:01] Speaker 05:
when it's not facially unequivocal, doesn't that just end the inquiry?

[00:09:05] Speaker 00:
Your Honor, maybe if the record would compel a conclusion, and any contrary conclusion would be clearly erroneous to find it unequivocal, but I don't think that record is here yet.

[00:09:17] Speaker 00:
The district court, the district court who was the person there, he took it as a request,

[00:09:23] Speaker 00:
He took it as a request and said, but no, I'm not going to allow it, because you're not capable of representing yourself.

[00:09:30] Speaker 00:
So the one judicial officer who was there took it that way.

[00:09:34] Speaker 00:
So I think at the very least, Your Honor, when there's, and look at the factual record here.

[00:09:38] Speaker 00:
The factual record here is so complicated that the government has six pages of factual background on that issue in its brief.

[00:09:47] Speaker 00:
You have six pages of facts that your honors are going to have to analyze.

[00:09:51] Speaker 00:
You have a district judge who took it as a request and simply said no for the wrong reason.

[00:09:56] Speaker 00:
And I don't think in those circumstances an appellate court can or is equipped to analyze whether it was equivocal or unequivocal.

[00:10:05] Speaker 00:
You had to be there.

[00:10:07] Speaker 00:
And the one judge who was there took it as a request.

[00:10:11] Speaker 02:
Let me ask you this, counsel.

[00:10:16] Speaker 02:
If you read that portion of the transcript where I might as well represent myself because I don't understand what's going on anyway, that in and of itself may trigger a

[00:10:29] Speaker 02:
the normal for rather advisements.

[00:10:31] Speaker 02:
But if you back up and read the entirety of those portions of the transcript, it provides a different context, right?

[00:10:39] Speaker 02:
Because his issue really is, I was expecting this witness to show up, and now at the last minute, you're telling me the witness is not here.

[00:10:48] Speaker 02:
And that was really kind of the source of his unhappiness.

[00:10:52] Speaker 02:
Even on a cold record like this, we have the benefit of all that context to make a determination.

[00:10:57] Speaker 02:
As to whether it's equivocal, don't we?

[00:10:59] Speaker 00:
Two responses, Your Honor.

[00:11:01] Speaker 00:
First of all, if I, your words say, if we back up and look at the record, that's what a district court does.

[00:11:07] Speaker 00:
And that's where, you know, in the first case you were talking about demeanor, that's where a district court who was there and who was looking at the case makes the best judgment.

[00:11:15] Speaker 00:
Number one, second of all, there's two possible scenarios here.

[00:11:20] Speaker 00:
One is, I guess he really didn't mean it.

[00:11:21] Speaker 00:
He was just frustrated because the victim wasn't here.

[00:11:23] Speaker 00:
The other is, and this goes to the whole point of Ferretta, which is defendant autonomy.

[00:11:29] Speaker 00:
The other point was, if he wasn't going to get more time to get the victim there, what the heck?

[00:11:34] Speaker 00:
I'll just represent myself.

[00:11:36] Speaker 00:
At least then in his own words, I get to speak for myself.

[00:11:40] Speaker 00:
And it may be a really good example of where defendant autonomy that Ferretta is all about was important because for rightly or wrongly, he basically had given up hope because the victim wasn't going to be there.

[00:11:53] Speaker 00:
And so he said, well, at the very least, I'll be able to speak for myself.

[00:11:56] Speaker 02:
What do we make of counsel's representation to the court that it doesn't seem like he really meant it?

[00:12:01] Speaker 00:
Counsel did that without being able to speak to him about it, because counsel said when he went back, the defendant refused to speak to him.

[00:12:10] Speaker 00:
So counsel is just speculating on the record the same way your honors are and or the district court saw it differently when he treated it as a request.

[00:12:20] Speaker 00:
I will suggest this.

[00:12:22] Speaker 00:
Counsel took it seriously enough that he went back to try to ask Mr. Birx about it.

[00:12:29] Speaker 00:
And the counsel didn't have any better knowledge once he'd gone back because Mr. Birx didn't speak to him.

[00:12:35] Speaker 04:
So I don't... He went back and told the judge that he didn't think that Mr. Birx really wanted to represent himself.

[00:12:40] Speaker 00:
Right, but he didn't base that on anything different than the judge had in front of him.

[00:12:43] Speaker 00:
And the judge had taken it seriously.

[00:12:46] Speaker 00:
Well... Because he... Mr. Birx, he said Mr. Birx wouldn't meet with him.

[00:12:51] Speaker 00:
So when he went back, it's not like he got anything additional information.

[00:12:55] Speaker 02:
And am I correct that throughout the trial, this issue never came up again?

[00:13:02] Speaker 00:
Yes, but I mean, there was not much point.

[00:13:04] Speaker 00:
The voir dire started immediately after that.

[00:13:06] Speaker 00:
What do you think Judge Hatter should have done here?

[00:13:08] Speaker 00:
I think what Judge Hatter should have done is he should have treated, he should have made a ferret inquiry.

[00:13:14] Speaker 00:
He should have delved into the question of whether it was for delay.

[00:13:19] Speaker 00:
He should have delved into is this really what you want to make sure it was unequivocal.

[00:13:25] Speaker 00:
He should have given all the advisements about how stupid a thing this would be and there's no way you're going to win your case if that's what you're hoping.

[00:13:32] Speaker 00:
Things like that.

[00:13:34] Speaker 02:
So are you asking for remand for Judge Hatter to take a look and make findings?

[00:13:39] Speaker 00:
The government urges that, Your Honor, but I don't think this court has ever remanded in a denial of self-representation until the district court.

[00:13:46] Speaker 02:
Well, I mean, this was made on the day of trial when the jury was waiting, so Judge Hatter could have thought that it was untimely, that it wasn't a serious request, that it wasn't

[00:13:55] Speaker 02:
an unequivocal request?

[00:13:58] Speaker 02:
Why can't we remand for further findings?

[00:14:00] Speaker 00:
Well, it definitely wasn't untimely, because the rule on that is clear that if our deer hasn't started .

[00:14:06] Speaker 05:
.

[00:14:06] Speaker 05:
.

[00:14:06] Speaker 05:
Well, it wasn't automatically untimely.

[00:14:09] Speaker 00:
Well, no, it's .

[00:14:09] Speaker 00:
.

[00:14:09] Speaker 00:
.

[00:14:09] Speaker 00:
If the judge had found that it would .

[00:14:10] Speaker 00:
.

[00:14:10] Speaker 00:
.

[00:14:10] Speaker 05:
It was for the purpose of delay.

[00:14:11] Speaker 05:
.

[00:14:11] Speaker 05:
.

[00:14:11] Speaker 05:
.

[00:14:11] Speaker 05:
that it was for the purpose of delay in light of all the circumstances, for delay, that might have been appropriate.

[00:14:16] Speaker 00:
I'm treating purpose of delay as separate from the timely inquiry.

[00:14:20] Speaker 00:
The answer, Your Honor, is

[00:14:23] Speaker 00:
It's trying to reconstruct that.

[00:14:26] Speaker 00:
What are we now, five years after the fact?

[00:14:27] Speaker 00:
I guess it's three years after the fact.

[00:14:29] Speaker 00:
It'll be probably going on four by the time we get back there.

[00:14:33] Speaker 00:
There's no precedent in this court's case law for doing that.

[00:14:36] Speaker 00:
And the idea of reconstructing that years later, I just think, is not realistic.

[00:14:42] Speaker 00:
So I think that's why you can't do that.

[00:14:44] Speaker 03:
You're asking for an outright reversal, if we think of forever.

[00:14:46] Speaker 00:
I am asking for an outright reversal.

[00:14:48] Speaker 03:
It goes back for a retrial.

[00:14:50] Speaker 00:
Yes.

[00:14:50] Speaker 00:
And judges can't just tell defendants, you don't have the right to do this, and then try to fix it later on, years later.

[00:14:57] Speaker 00:
And to Kieferoff, they didn't say, OK, Judge, figure out whether there was other reasons that weren't satisfied.

[00:15:05] Speaker 00:
It's just not practical to do that.

[00:15:07] Speaker 00:
And I don't think there's a single case, a single Ferretta self-representation case where this court has ever done that.

[00:15:15] Speaker 05:
But we have found requests not to be unequivocal.

[00:15:20] Speaker 00:
I think all you've ever done is affirmed district court findings that requests were equivocal.

[00:15:27] Speaker 05:
This is, I think, the most difficult issue in this case.

[00:15:31] Speaker 05:
I'm trying to figure out whether there's a reasonable analogy to Miranda warnings when somebody says, I think maybe I need a lawyer.

[00:15:42] Speaker 05:
gee, maybe I'd be better off if I had a lawyer.

[00:15:44] Speaker 05:
And we've often said there, that request isn't good enough to trigger the right to counsel.

[00:15:50] Speaker 05:
An important Sixth Amendment, right?

[00:15:52] Speaker 05:
We said, you've got to be clear.

[00:15:54] Speaker 05:
You've got to say, I want a lawyer.

[00:15:57] Speaker 05:
Why isn't the same rule applicable here?

[00:15:59] Speaker 00:
I think this is a lot more fundamental of a right than Miranda Mornings.

[00:16:03] Speaker 00:
And the right to counsel?

[00:16:04] Speaker 00:
No, then the Miranda war.

[00:16:06] Speaker 00:
The right to self-representation, I think, is more fundamental than the Miranda warnings aspect.

[00:16:12] Speaker 05:
Yeah, but the Miranda warning says you have a right to counsel.

[00:16:15] Speaker 05:
So it seems to me we're dealing with the flip side of the Sixth Amendment, aren't we?

[00:16:21] Speaker 05:
If you can't invoke your right to counsel without doing it,

[00:16:25] Speaker 05:
in a straightforward and unequivocal manner.

[00:16:28] Speaker 05:
Shouldn't it also be true that you can't invoke your right to self-representation without being straightforward?

[00:16:34] Speaker 00:
That's a right to counsel, Your Honor, in the interrogation context.

[00:16:37] Speaker 00:
That's not the right to counsel or self-representation in the trial context.

[00:16:41] Speaker 00:
Understand.

[00:16:42] Speaker 00:
Gideon v. Wainwright and, I think, Ferretta are far more fundamental than the right to counsel during interrogation.

[00:16:48] Speaker 00:
I mean, they're both important, of course.

[00:16:50] Speaker 00:
But I think once, I mean it got mentioned several times.

[00:16:56] Speaker 00:
The other consideration here that I think has to be taken into account is what's he supposed to do when the judge says I'm not going to allow it?

[00:17:05] Speaker 00:
He's supposed to then say, well, no, no, I want to represent myself.

[00:17:08] Speaker 00:
Talk about defense attorneys get nervous enough about telling a judge they want something again when they've been flatly told no.

[00:17:16] Speaker 00:
What's a poor little defendant supposed to say when the judge who's going to be sentencing him or trying his case later says no?

[00:17:23] Speaker 00:
He's supposed to keep saying it and saying it and saying it?

[00:17:26] Speaker 02:
uh... this court's case law suggests defendants don't have to do that and i think once this idea got broke but for the requirement that it has to be an unequivocal request has to mean something right and in context it's more like this guy throwing up his hands and saying well i might as well because you're not you're not giving me what i want which is really a continuance and then he says so i can't represent myself and the judge basically says yeah i mean i think he says it about three different ways

[00:17:54] Speaker 00:
The judge has already told him no, so what more is he supposed to do?

[00:18:01] Speaker 00:
I thought of the hypothetical about a judge who might issue a pretrial order saying, I'm not going to allow any defendant to represent themselves no matter what.

[00:18:15] Speaker 00:
would be different.

[00:18:16] Speaker 00:
But that's not what you have here.

[00:18:18] Speaker 00:
He brought up the idea.

[00:18:19] Speaker 00:
He said, well, if I'm not going to get more time, if I'm not going to get the victim here, it's hopeless.

[00:18:24] Speaker 00:
And I might as well just do it myself, get my autonomy.

[00:18:27] Speaker 02:
I know you wanted to save a little bit of time.

[00:18:29] Speaker 00:
I will do that.

[00:18:30] Speaker 00:
I had some things to say on the other issues, which I also think have merit.

[00:18:33] Speaker 00:
But I'll save my time.

[00:18:35] Speaker 02:
The case was well briefed.

[00:18:37] Speaker 02:
So we appreciate that.

[00:18:38] Speaker 02:
Thank you.

[00:18:47] Speaker 01:
Good afternoon, Your Honors.

[00:18:49] Speaker 01:
Saria Bahadur on behalf of the United States.

[00:18:51] Speaker 01:
I'll also start with the Ferretta issue, because that's what it sounds like the panel is most interested in.

[00:18:57] Speaker 01:
So just to make clear, this court can affirm on any grounds in the record, and with unequivocality specifically, this court has said in Clark,

[00:19:06] Speaker 01:
that when assessing equivocality, courts should consider the whole record.

[00:19:12] Speaker 04:
Also, this court has said time and time again... Was there a... I can't remember these cases right now, but in that case, was there a prior finding by the district court that it was unequivocal?

[00:19:27] Speaker 01:
One second, Your Honor, let me just pull it up.

[00:19:30] Speaker 02:
Are you using just cases for the general proposition that we can affirm on any ground on the record?

[00:19:35] Speaker 02:
Are you referring specifically to cases in the Ferretta context?

[00:19:39] Speaker 01:
Specifically cases in the Ferretta context?

[00:19:41] Speaker 05:
Yes.

[00:19:41] Speaker 05:
It would be helpful if you look at these cases to deal with the argument that your friend is making.

[00:19:47] Speaker 05:
He said, look, if the judge had found that this was an equivocal request,

[00:19:52] Speaker 05:
We could affirm on that ground, even if he made errors on other grounds.

[00:19:56] Speaker 05:
But the judge never found this to be an equivocal request.

[00:20:00] Speaker 05:
He made no findings whatsoever on equivocality or unequivocality.

[00:20:05] Speaker 05:
And so the question I have is, can we affirm on that ground if the judge didn't even mention that ground?

[00:20:13] Speaker 01:
Yes, the court can.

[00:20:14] Speaker 05:
Tell me what Ferretta case is.

[00:20:16] Speaker 01:
Jackson.

[00:20:17] Speaker 01:
I think Jackson is the best case.

[00:20:18] Speaker 05:
I'm looking at Jackson, and that's what I thought was the best case, but I'm not sure

[00:20:23] Speaker 05:
I can tell from Jackson.

[00:20:25] Speaker 05:
It's a habeas case.

[00:20:28] Speaker 05:
I'm not sure I can tell what the judge did.

[00:20:30] Speaker 01:
I think the best point in Jackson is when the court specifically says, and I'll try to get a page type.

[00:20:37] Speaker 05:
The right is waived unless somebody articulately and unequivocally asks for it.

[00:20:41] Speaker 01:
Well, that, but then here it says here, the trial court properly may deny a request for self-representation that is a momentary caprice or the result of thinking out loud.

[00:20:49] Speaker 01:
Right.

[00:20:50] Speaker 05:
No, I understand, and those are all good reasons why I think Judge Hatter could have said here.

[00:20:55] Speaker 05:
But then right after that- This is an equivocal request.

[00:20:57] Speaker 05:
You haven't made an unequivocal request.

[00:20:59] Speaker 05:
You don't pass go.

[00:21:00] Speaker 05:
You don't call it $200.

[00:21:02] Speaker 05:
We're just done.

[00:21:02] Speaker 05:
Yes.

[00:21:03] Speaker 05:
I'm trying to find a case where the judge

[00:21:06] Speaker 05:
was silent about that.

[00:21:08] Speaker 05:
And then we nonetheless.

[00:21:09] Speaker 02:
Or said the wrong thing, like you don't have the capability to do it.

[00:21:12] Speaker 01:
Sure.

[00:21:13] Speaker 01:
I think, well, so I'll get to Judge Winn's point on that, because I have another case for Judge Winn there.

[00:21:17] Speaker 01:
But right after the court says momentary caprice, it says the record demonstrates that Jackson's request for self-representation was an impulsive one.

[00:21:26] Speaker 01:
And I think this is actually the case where defense counsel says that the district court essentially ignored the request entirely or brushed it aside.

[00:21:34] Speaker 01:
Here, the district court did brush aside the request, and that's because it treated the request as unserious.

[00:21:39] Speaker 05:
And I guess what I'm asking, and I just can't tell it from our opinion in Jackson, whether or not the judge, these are all good reasons, the court says.

[00:21:48] Speaker 05:
why the judge did not err in denying a request for self-representation.

[00:21:56] Speaker 05:
But it seems to me not to say that the judge said, I'm turning you down because it wasn't unequivocal.

[00:22:05] Speaker 01:
Well, so I don't think the district court said that.

[00:22:08] Speaker 01:
I think the district court, the way that Jackson has been characterized, I would point the court to Hernandez, which talks about Jackson in a footnote.

[00:22:15] Speaker 01:
I think it's footnote 10.

[00:22:17] Speaker 01:
It talks about how in Jackson, the district court ignored the request and did not proceed to the Ferretta inquiry because it treated that request as an unserious one.

[00:22:26] Speaker 05:
That's my difficulty with reading these cases now.

[00:22:31] Speaker 05:
It says it treated the request as an unserious one.

[00:22:33] Speaker 05:
Right.

[00:22:34] Speaker 05:
But do we know that?

[00:22:36] Speaker 01:
Because it did not proceed to the Florida Inquiry.

[00:22:38] Speaker 05:
So you think that if a court doesn't proceed to the Florida Inquiry, the first question in our mind is,

[00:22:45] Speaker 05:
without regard to what the court said, was the request unequivocal?

[00:22:49] Speaker 01:
Not always.

[00:22:50] Speaker 01:
I think the court would look to the entire record, and that's what Clark says.

[00:22:54] Speaker 05:
Let's work backwards here.

[00:22:56] Speaker 05:
Sure.

[00:22:56] Speaker 05:
Maybe you can help us out on this.

[00:22:59] Speaker 05:
If an unequivocal request had been made, if Mr. Birx had said in this case, I'm invoking my rights under United States versus Florida versus United States, and I want to represent myself,

[00:23:14] Speaker 05:
Do you agree that the judge's reason for turning him down would be insufficient?

[00:23:21] Speaker 01:
I don't think that this judge turned him down based on his legal ability.

[00:23:26] Speaker 05:
Well, it's the only reason the judge gave.

[00:23:28] Speaker 05:
That's what he said.

[00:23:29] Speaker 01:
Well, I think he actually said, you don't have the ability to represent yourself properly.

[00:23:33] Speaker 01:
And then a couple lines later, he says, I don't think I'm not going to allow it at this point.

[00:23:37] Speaker 01:
And I think properly, and I'm not going to allow it at this point, do a lot of work in the context of that warning.

[00:23:42] Speaker 05:
So you think that's a finding and that it's being made for purposes of delay?

[00:23:45] Speaker 01:
I think at this point it's plausibly read when you combine it with the rest of the record where, as Judge Winn pointed out, this hearing started off the morning of trial and the first words out of the defense counsel's mouth was, I would like a continuance.

[00:23:59] Speaker 01:
Then right after that, we want to talk about continuing representation.

[00:24:03] Speaker 05:
Then once the government- Don't you think the judge needs to do better than that if there's an unequivocal request?

[00:24:08] Speaker 05:
If there's an unequivocal request?

[00:24:11] Speaker 05:
No, I'm turning you down.

[00:24:12] Speaker 05:
And you're saying, well, let's go back and look at the record and figure out where there would have been good reasons for him to turn him down.

[00:24:18] Speaker 01:
But he didn't say that.

[00:24:19] Speaker 01:
Well, he brushed it aside because he took it as unserious, because this was one of many musings that morning.

[00:24:25] Speaker 01:
This defendant was oscillating back and forth all morning.

[00:24:28] Speaker 01:
He was grasping at straws.

[00:24:30] Speaker 05:
I understand that point.

[00:24:32] Speaker 05:
And that's, I think, your strongest argument, that it wasn't an unequivocal request.

[00:24:36] Speaker 05:
I've asked you to assume that it was.

[00:24:38] Speaker 05:
If he'd said, I want to represent myself, is what the judge said sufficient for us then to say?

[00:24:45] Speaker 05:
No, he didn't err in denying him his right of right?

[00:24:49] Speaker 01:
We do not believe that the baseline, if you want to pluck this out of context and just look at ability to represent yourself, I think then it's not correct to deny.

[00:24:59] Speaker 01:
We understand the case law on this.

[00:25:02] Speaker 01:
If you cannot deny somebody the right based on their legal ability, we do not think it's clear as day as the other side does.

[00:25:08] Speaker 01:
We think all of this has to be read in context.

[00:25:11] Speaker 01:
And at this point does a lot of work because it's the morning of trial.

[00:25:15] Speaker 01:
and I do want to point the court there was a time that this defendant did raise self-representation with this district judge it was in 2017 he mentioned self-representation about three weeks before March 2017 trial date and in that

[00:25:30] Speaker 01:
setting, the district court took it seriously, slowed down, said this is your right, this is CR 672, and then encouraged him, said if you want to do this, this is something that you are allowed to do as long as you understand the risk.

[00:25:45] Speaker 01:
So this is an experienced district court judge who knew this defendant.

[00:25:49] Speaker 05:
So are we allowed to take into account the previous history in the case in determining whether this request was unequivocal?

[00:25:57] Speaker 01:
I think the court can look at the whole record.

[00:25:59] Speaker 01:
It should look at that morning.

[00:26:02] Speaker 01:
I'm pointing that as a comparison because this district court knew when the defendant was serious and knew when he wasn't serious.

[00:26:08] Speaker 01:
And I know we've been talking in many cases today about the deference owed to a district court who's in the room.

[00:26:13] Speaker 01:
This district judge had presided over this case for five years.

[00:26:16] Speaker 01:
There were many status conferences, many status conferences where the government wasn't in the room.

[00:26:21] Speaker 01:
So this district judge knew this defendant and knew him well.

[00:26:25] Speaker 01:
And so this district judge knew that when he was throwing up yet another musing after all morning of saying, I want to delay, but I want this over.

[00:26:34] Speaker 01:
I want to talk about counsel, but I don't want to change my counsel.

[00:26:38] Speaker 01:
I want my victim here, but I want this over.

[00:26:42] Speaker 01:
So this is just one of many, many musings, and it was not an unequivocal request.

[00:26:47] Speaker 04:
How, what was the, when was that prior incident?

[00:26:51] Speaker 01:
In March of 27.

[00:26:52] Speaker 04:
When?

[00:26:53] Speaker 01:
March 2017, March 9, 2017.

[00:26:55] Speaker 01:
Three years before?

[00:26:57] Speaker 01:
Three years before when there was former counsel.

[00:26:59] Speaker 01:
And the way that hearing ended was the district court encouraged him to talk to his counsel about it, which is what happened.

[00:27:05] Speaker 01:
And then the defense counsel at the time represented that there was no definitive resolution made and then, and that they would talk it over some more.

[00:27:14] Speaker 01:
And then four days later, the defendant signed a speed trial extip to continue the trial.

[00:27:19] Speaker 02:
This was when he was represented by Greg Nicholson?

[00:27:22] Speaker 01:
That's correct.

[00:27:23] Speaker 01:
And then fast forward to the morning of trial, when he's tried different avenues of trying to prevent this trial from happening, he does throw up his hands and say, I might as well represent myself.

[00:27:34] Speaker 01:
And I do want to point out.

[00:27:35] Speaker 04:
Did he request that Nicholson?

[00:27:37] Speaker 04:
I remember him.

[00:27:38] Speaker 04:
But his then counsel be terminated?

[00:27:43] Speaker 01:
Eventually, he did in February of 2019.

[00:27:45] Speaker 04:
That's why Nicolaisen was no longer his counsel?

[00:27:48] Speaker 01:
Correct, yes.

[00:27:49] Speaker 01:
I think it was around February 11th of 2019.

[00:27:50] Speaker 01:
He got a new attorney.

[00:27:51] Speaker 01:
He did get a new attorney.

[00:27:53] Speaker 01:
That's correct.

[00:27:55] Speaker 05:
Would you remind me what his request was on the previous occasion?

[00:27:59] Speaker 05:
You said it was a 276, is that what you said?

[00:28:04] Speaker 01:
672 is the ER site.

[00:28:07] Speaker 05:
In the ER?

[00:28:08] Speaker 01:
No, it's not in the ER, Your Honor, and I'm happy to submit it.

[00:28:11] Speaker 05:
In the clerk's record?

[00:28:12] Speaker 01:
It's in the clerk's record.

[00:28:13] Speaker 01:
It's in the ER in the docket sheet, which is where I noticed it in preparing for today.

[00:28:17] Speaker 01:
And he essentially said there's a discussion about whether or not to continue the trial.

[00:28:22] Speaker 01:
And at this point, the defendant, this is 2019, so about

[00:28:25] Speaker 01:
sorry, excuse me, 2017, so about a year after he was arrested.

[00:28:30] Speaker 01:
And they're talking about filing certain motions.

[00:28:32] Speaker 01:
The court says, and you want to tell me that you want to proceed on your own.

[00:28:36] Speaker 01:
And the defendant replies, I mean, if he would do what I asked him to do now,

[00:28:40] Speaker 01:
He can still be my lawyer, but if not, then I'd rather go pro se."

[00:28:45] Speaker 01:
And then there's a discussion about going pro se, and the district court says, you have a right to do that.

[00:28:50] Speaker 01:
And he walks through.

[00:28:51] Speaker 01:
He doesn't go through the full inquiry.

[00:28:53] Speaker 01:
He basically says, if that's what you want to do, we'll do that.

[00:28:56] Speaker 01:
But then he essentially, they talk amongst themselves and hearing that.

[00:29:00] Speaker 05:
Staying on this point for a second, your friend says,

[00:29:03] Speaker 05:
Gee, whatever we think looking at this record, the judge thought he made a request.

[00:29:09] Speaker 05:
The judge was in the courtroom and said, I'm not going to let you represent yourself.

[00:29:13] Speaker 05:
Why isn't the judge's understanding that a request had been made enough to trigger the Ferretta analysis?

[00:29:21] Speaker 01:
Because the judge did not see the request being made.

[00:29:24] Speaker 01:
The judge saw this as an unserious request and brushed it aside.

[00:29:27] Speaker 01:
And in Hernandez, this court has said that when a district court brushes aside a request and doesn't proceed to the full Ferretta hearing, that actually is indicative of the court treating it as an impulsive request.

[00:29:40] Speaker 02:
Um, and I would point the court to, to some other decision, uh, where it does- It's a little more problematic than that in this particular case because, I mean, I can certainly understand with the judge's knowledge, extensive knowledge of the defendant.

[00:29:54] Speaker 02:
They can say, well, you know, you think you can change lawyers at any time given the prior history, but he didn't just brush it aside.

[00:30:01] Speaker 02:
He gave a reason that is not an appropriate reason.

[00:30:06] Speaker 02:
Like, I don't know why he did that.

[00:30:08] Speaker 02:
Maybe it is his way of brushing it aside.

[00:30:11] Speaker 02:
But we just have the benefit of the record.

[00:30:13] Speaker 02:
And the reason he gave us, I don't think you have the ability to do it.

[00:30:16] Speaker 01:
We do think that the reason should be read in context.

[00:30:19] Speaker 01:
But even so, this in Marshall, we think is probably this is the case that I wanted to refer you to.

[00:30:24] Speaker 01:
We do think that's a case where a trial court had said, I don't think you have the ability to do so properly.

[00:30:30] Speaker 01:
Something along the lines of legal competency as a basis for denying the right.

[00:30:35] Speaker 01:
then the California Court of Appeals, this was a habeas decision when it came to this court, California Court of Appeals ruled on an alternative ground, one that the trial court did not address and said that the request below was untimely, and then this court, sitting on habeas review, said the court can affirm on any basis in the record, the California Court of Appeals can.

[00:30:56] Speaker 01:
So that's probably the best case where there might be this language that's saying legal content.

[00:31:01] Speaker 05:
Well, that means it's not against clearly established federal law at the time of that decision.

[00:31:06] Speaker 05:
It doesn't mean that it's correct.

[00:31:09] Speaker 05:
We're reviewing this without the EDPA overlay, aren't we?

[00:31:12] Speaker 01:
That's true, but it also means that there were substantial facts in the record that the facts had established that alternative holding.

[00:31:18] Speaker 01:
And it's more for the point that this court said that the California Court of Appeals can affirm on any basis in the record.

[00:31:25] Speaker 01:
And there are multiple instances where this court, when assessing Ferretta, it is looking at the record.

[00:31:30] Speaker 01:
In TELUS, for example,

[00:31:32] Speaker 01:
In assessing timeliness, the court found that the, quote, the record evidence delay.

[00:31:37] Speaker 01:
In Farias, also assessing timeliness, this is reversing in district court, but it's still said that the district court did not identify circumstances suggesting delay, and nor can we find in the record.

[00:31:49] Speaker 01:
So this court, as well as Jackson, the record demonstrates, and then even the cases at the defense sites, if you look at Van Lin there, the court acknowledged that nothing in the record

[00:31:59] Speaker 01:
suggested that the district court would have denied or could have denied on timeliness grounds.

[00:32:04] Speaker 01:
So especially with equivocality, the court has said many times that it should consider the whole record.

[00:32:10] Speaker 01:
And of course, there's the overlay of indulging in every presumption against the waiver of the right to counsel.

[00:32:18] Speaker 01:
And that's important because in Adams, the court said that we have this equivocality requirement for a reason to ensure and to protect criminal defendants who simply just muse about the benefits of self-representation and don't inadvertently waive the right.

[00:32:35] Speaker 02:
Can you address the obstruction of justice?

[00:32:37] Speaker 02:
Because it seems to me that Madera Gallegos had worse facts.

[00:32:42] Speaker 02:
I've got my cases where I think that's the one fleeing the country to avoid for nine months before arrest, to avoid arrest.

[00:32:51] Speaker 02:
And so how do you grapple with that case?

[00:32:54] Speaker 02:
I know he got a below-guidelines sentence, but counsel's relying on our cases, that says,

[00:33:00] Speaker 02:
If you start at the wrong point, it could potentially make a difference, and we've remanded it in circumstances like that.

[00:33:07] Speaker 01:
Right.

[00:33:07] Speaker 01:
We do think these are two spectrum.

[00:33:09] Speaker 01:
There's two cases on the different sides of the spectrum.

[00:33:12] Speaker 01:
You have the Madera-Gallegos.

[00:33:14] Speaker 01:
uh, which is supporting defense counsel's position.

[00:33:16] Speaker 01:
And then you have Mandela, which is supporting our position.

[00:33:18] Speaker 01:
We think that the facts, we don't think that the facts are like one or the other.

[00:33:22] Speaker 01:
We think that the facts are closer to Mandela in Mandela.

[00:33:26] Speaker 01:
The defendant knew that the authorities were looking for him.

[00:33:29] Speaker 04:
How did he know that the authorities were looking in Mandela?

[00:33:32] Speaker 04:
In our case?

[00:33:33] Speaker 01:
In our case.

[00:33:33] Speaker 01:
So he was at the hospital when they were about to serve the the search warrant.

[00:33:38] Speaker 01:
Sorry, excuse me, the arrest warrant.

[00:33:40] Speaker 01:
So when he, about a year later, when he said to a tipster, I was hiding from authorities, it's because he knew that we were coming to issue an arrest warrant.

[00:33:49] Speaker 04:
He was at the hospital, so they didn't go up and did they go up and talk to him?

[00:33:52] Speaker 01:
They tried to, but he had left before.

[00:33:54] Speaker 01:
They went to the hospital to serve that arrest warrant.

[00:33:58] Speaker 01:
My understanding is there was communication leading up to... What is your understanding based on?

[00:34:04] Speaker 01:
Only based on the fact that the only way we knew he was at the hospital was because there was communication.

[00:34:08] Speaker 01:
I don't think that there's a place in the record where we put in the extensive communications that were going on.

[00:34:14] Speaker 02:
so I acknowledge that but was he counseled at time because usually you know when somebody's counseled then you make arrangements with counsel there's nothing like that here no he was not counseled at that time but we do think that so you think that we can reach the inference on this record that they must have communicated with him regarding his location that it wasn't going to be a surprise we know he's going to be here so let's go nab him

[00:34:35] Speaker 01:
I think so, because eventually when he tells the tipster, I'm hiding from authorities, he knew.

[00:34:41] Speaker 01:
But he knows by then.

[00:34:42] Speaker 01:
He knows by then.

[00:34:43] Speaker 05:
So can we infer from that that he knew at the time that he fled?

[00:34:48] Speaker 01:
Well, at a minimum, there is in the record the fact that the law enforcement was trying to arrange a surrender with the family members.

[00:34:56] Speaker 01:
I think that on this record, on top of that, I do want to say- Right.

[00:34:59] Speaker 02:
So I don't think that there's, on this record, sufficient evidence that he knew they were going to show up at the hospital.

[00:35:04] Speaker 02:
I think that inference, it just isn't, there aren't enough facts here to reach that inference.

[00:35:09] Speaker 02:
So at some point, likely through family members, he knew they were looking for him and he's just not going to cooperate.

[00:35:15] Speaker 02:
That's not enough for obstruction, is it?

[00:35:18] Speaker 01:
Well, in Madera Gallegos, the point there was that there were no aggravating circumstances, and the court said specifically, there's no evidence that once found they, the defendants who had fled to a different country, made any efforts to impede law enforcement.

[00:35:32] Speaker 01:
We think that the defendant knew he was under surveillance or knew that he was wanted, essentially.

[00:35:40] Speaker 01:
And there is evidence that once found that there were efforts to impede law enforcement.

[00:35:44] Speaker 01:
He relocated to a new city, he started a new life, and absent the tipster, we would not have been able to find him.

[00:35:50] Speaker 03:
He was down in Victorville.

[00:35:51] Speaker 01:
In Victorville, that's correct, right.

[00:35:54] Speaker 01:
This also is reviewed for abusive discretion.

[00:35:56] Speaker 01:
I think counsel cited a case that predates Gasco Ruiz.

[00:36:02] Speaker 01:
So we do think that this is a reasonable determination of the facts.

[00:36:04] Speaker 01:
We don't think it's governed by Madera-Gallegos squarely.

[00:36:07] Speaker 01:
We think it's closer to Mandelo, because there is, at a minimum, this is not something where a defendant is fleeing in the aftermath of a crime.

[00:36:15] Speaker 01:
And in Madera-Gallegos, that's exactly what it was.

[00:36:18] Speaker 01:
It was minutes after a by-bus had occurred, and these two defendants had fled to another country.

[00:36:23] Speaker 04:
One of the guideline comments, I think it's, I can't remember exactly which one it is, talks about what's not covered or what generally is not covered, and it's avoiding

[00:36:34] Speaker 04:
And isn't that what he was doing here?

[00:36:37] Speaker 04:
He was just hanging out.

[00:36:38] Speaker 04:
He was setting up a new life in Victorville, trying to avoid arrest.

[00:36:44] Speaker 01:
Right, but we do think that it was willful because he knew and he did it in a way where he was trying to actively hide from authorities.

[00:36:50] Speaker 04:
That's the added factor that it was willful.

[00:36:52] Speaker 01:
Yes, I think so.

[00:36:53] Speaker 01:
And that's what the probation officer found in one of the addendums as well.

[00:36:56] Speaker 05:
So you think it's enough for sufficiency on this enhancement?

[00:37:00] Speaker 05:
Based on the- If he knew that people were looking for him and he went to some place where he thought he couldn't be found?

[00:37:07] Speaker 01:
if he's impeding authorities, which I think was the factor missing.

[00:37:10] Speaker 05:
That's the only impeding.

[00:37:11] Speaker 05:
That's the entire world of my hypothetical.

[00:37:15] Speaker 05:
I know they're looking for me, and I'm not going to make it easy on them.

[00:37:19] Speaker 05:
I'm going to go to Victorville, where no one will look for me.

[00:37:22] Speaker 05:
Is that enough?

[00:37:23] Speaker 01:
We think on this record, under an abuse of discretion standard, that we do think it's enough.

[00:37:28] Speaker 05:
Is that sufficient?

[00:37:29] Speaker 05:
Those are the only facts.

[00:37:30] Speaker 05:
Is that sufficient?

[00:37:31] Speaker 01:
Well, yes, because in this record, once he was found, they knew he was at the hospital.

[00:37:37] Speaker 01:
So it's similar in the sense, it's not similar in the sense.

[00:37:40] Speaker 02:
Well, the hospital thing doesn't really carry a whole lot of weight with me.

[00:37:43] Speaker 02:
It's just your argument seems to run contrary to Stites, the one where the defendant was using the alias to evade

[00:37:52] Speaker 02:
law enforcement capture and we said there, and I'm quoting, to disappear from the jurisdiction and not disclose one's whereabouts to the government does not warrant an enhanced punishment.

[00:38:03] Speaker 02:
That seems like a pretty clear ruling to me.

[00:38:07] Speaker 01:
Right.

[00:38:08] Speaker 01:
I mean, that ruling does count against us, but we do think we're closer to Mondello in the sense that we were almost about to arrest him.

[00:38:15] Speaker 01:
There were there was efforts made and then once found he went and relocated to another.

[00:38:21] Speaker 05:
Well, did he do anything in that other place to to, you know, to obstruct?

[00:38:28] Speaker 05:
Other than live there?

[00:38:29] Speaker 01:
There's nothing in the record.

[00:38:30] Speaker 05:
Get a phony name.

[00:38:32] Speaker 05:
See, I could understand if he did some things in that other place that then made it much harder to find him.

[00:38:39] Speaker 05:
But were you required in your view to wait at the hospital for them to arrest him?

[00:38:44] Speaker 05:
Was he required to wait at the hospital for them to arrest him?

[00:38:49] Speaker 01:
In my view, under those circumstances, if a defendant knew that an arrest warrant was coming, it's probably best for a defendant to not flee the scene and to surround him.

[00:38:59] Speaker 05:
I'm asking you a legal question, not the advice you'd give to a defendant.

[00:39:03] Speaker 05:
Is it your view that if he had learned that they were after him,

[00:39:10] Speaker 05:
And he decided not to remain at the place where he was, but to go to a different place.

[00:39:15] Speaker 05:
And that's all that's in the record.

[00:39:18] Speaker 05:
That's enough to support the enhancement?

[00:39:20] Speaker 01:
I think that's harder to support the enhancement.

[00:39:22] Speaker 05:
Well, OK.

[00:39:23] Speaker 01:
Thank you.

[00:39:24] Speaker 01:
Unless the court has any other questions, we ask that the jury's verdict be affirmed and the sentence as well.

[00:39:28] Speaker 01:
Thank you.

[00:39:29] Speaker 02:
Thank you, counsel.

[00:39:34] Speaker 00:
I'm going to try to make two quick points in the instruction and then get to the self-representation.

[00:39:39] Speaker 00:
First of all, I want to direct your honors to Madera Gallegos.

[00:39:49] Speaker 00:
Quote, after his arrest, Felipe admitted that he knew the agents had been searching for him because of the heroin deal, unquote.

[00:39:55] Speaker 00:
So that existed in Madero Gallegos as well.

[00:39:58] Speaker 00:
Second, Your Honors, there was no indication that Mr. Birx knew when he was at the hospital that they were looking for him and left the hospital.

[00:40:06] Speaker 00:
The suggestion is he found out sometime after they went to the hospital and he had already left.

[00:40:11] Speaker 00:
because he was done at the hospital.

[00:40:14] Speaker 00:
So there's no indication, the knowledge about them looking for him came sometime later that's not clear.

[00:40:20] Speaker 00:
On the self-representation, Your Honors, there are not any cases.

[00:40:25] Speaker 00:
The Clark case

[00:40:26] Speaker 00:
that the government cited, if you look at it, the state courts there, it was a habeas case, found that the request was equivocal.

[00:40:35] Speaker 00:
In the Jackson case, there was certainly no finding of a wrong reason, and the defendant,

[00:40:43] Speaker 00:
The trial court basically just brushed past it as the Hernandez opinion recognizes in a footnote.

[00:40:50] Speaker 00:
The government says, and I think I'm quoting this correctly, this district judge knew when the defendant was serious and knew when he was not.

[00:40:58] Speaker 00:
Well, he took it seriously here and said, I'm not going to allow it.

[00:41:02] Speaker 00:
So I would suggest that that cuts in our favor, not the government's favor.

[00:41:07] Speaker 00:
This argument about the prior occasion in 2017, the government didn't argue that at all in its briefs, and I don't think that really changes anything anyway.

[00:41:22] Speaker 00:
The government said there are multiple times where this court has looked at the record.

[00:41:27] Speaker 00:
When this court has looked at the record, it's to affirm and find that there was a basis for a district court or lower court finding that the request was equivocal.

[00:41:38] Speaker 00:
The court has never gone off and done that on its own.

[00:41:41] Speaker 00:
In fact, in the Keefe Roth and the other cases I cite, it said, we're not going to do that.

[00:41:46] Speaker 00:
And I think you especially shouldn't do that when the record here is so complex that the government has to spend six pages of its brief describing the record.

[00:41:56] Speaker 02:
Thank you very much, Mr. Gunn.

[00:41:58] Speaker 02:
Thank you to both sides for your very helpful arguments this afternoon.

[00:42:04] Speaker 02:
This matter, US versus Berks, is submitted and will issue a decision in due course.

[00:42:09] Speaker 02:
That concludes the argument calendar for this afternoon.

[00:42:12] Speaker 02:
We'll be in recess until tomorrow morning.

[00:42:14] Speaker 02:
Thank you.