The application of appellants (the Communist Party of Indiana, certain of its officers and potential voters, and its candidates for President and Vice President) for a place on the Indiana ballot for the 1972 general election was rejected for failure to submit a statutory loyalty oath stating that the Party "does not advocate the overthrow of local, state or national government by force or violence." Appellants, contending that the statute was unconstitutional, thereupon filed this action in the District Court for injunctive and declaratory relief. On September 28, 1972, a three-judge court declared the statute constitutional and ordered the Election Board to place the Party on the ballot, but only if the required oath was submitted. After a qualified oath submitted by the Party was rejected, appellants, on October 3, sought a District Court order directing the Board to accept such oath, and, on the same day, the Board requested reconsideration of the September 28 order. The next day, the District Court denied both motions. On October 10, appellants filed a notice of appeal to this Court, which it later sought to withdraw so that the District Court might act on appellants' motion of the same day that the September 28 order be amended in certain respects. On October 31, the District Court allowed withdrawal of the appeal notice, but denied the motion to amend. Appellants refiled their notice of appeal to this Court on November 29, which appellees contend is untimely.
1. Appellants' notice of appeal was within the 60-day appeal period prescribed by 28 U.S.C. § 2101(b), since appellees' October 3 motion for reconsideration suspended the finality of the September 28 judgment until the District Court's denial of such motion on October 4 restored it, so that the time for appeal thus began to run from October 4. Pp. 414 U. S. 45-44.
2. The loyalty oath requirement of the Indiana statute violates the First and Fourteenth Amendments. Pp. 414 U. S. 446-450.
(a) The principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action, applies to state regulation burdening access to the ballot, rights of association in the political party of one's choice, casting an effective ballot, and in running for office, which are interests as substantial as those in other areas that this Court has protected against statutory schemes contrary to the First and Fourteenth Amendments. Pp. 414 U. S. 448-449.
(b) For purposes of determining whether to grant a place on the ballot, a group advocating violent overthrow as abstract doctrine need not be regarded as necessarily advocating unlawful action. Pp. 414 U. S. 449-450.
BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, STEWART, WHITE, and MARSHALL, JJ., joined. POWELL, J., filed an opinion concurring in the result, in which BURGER, C.J., and BLACKMUN and REHNQUIST, JJ., joined, post, p. 414 U. S. 451.
of local, state or national government by force or violence. . . . [Footnote 1]"
"The term 'advocate,' as used herein, has the meaning given it by the Supreme Court of the United States in Yates v. United States, 354 U. S. 298 at 354 U. S. 320, 'the advocacy and teaching of concrete action for the forcible overthrow of the government, and not of principles divorced from action.'"
the Election Board filed a motion requesting reconsideration of the order of September 28. [Footnote 3] The District Court, on October 4, denied both motions by order entered that day. Appellants, on October 10, filed a notice of appeal to this Court to enable them to seek emergency relief. That effort was abandoned, and appellants then sought leave of the District Court to withdraw the notice of appeal in order that the District Court might act on a motion of appellants, also filed October 10, that the District Court amend its September 28 order to include a determination that § 29-3812 was constitutional "only insofar as it proscribes advocacy directed at promoting unlawful action, as distinguished from advocacy of abstract doctrine." On October 31, the District Court entered an order granting leave to withdraw the notice of appeal of October 10 but denying the motion to amend the September 28 memorandum.
"that portion of the statute providing 'that it does not advocate the overthrow of local, state, or national government by force or violence' is constitutional, and hence enforceable by Indiana."
Appellees do not deny that § 29-3812 exacts a broad oath embracing advocacy of abstract doctrine as well as action. Yet this Court has held in many contexts that the first and Fourteenth Amendments render invalid statutes regulating advocacy that are not limited to advocacy of action. And, as we have so often emphasized, "[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms." NAACP v. Button, 371 U. S. 415, 371 U. S. 438 (1963).
"[L]ater decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we said in Noto v. United States, 367 U. S. 290, 367 U. S. 297-298 (1961),"
"the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action. . . ."
"A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control. Cf. Yates v. United States, 354 U. S. 298 (1957). . . ."
Id. at 395 U. S. 447-448.
"the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action"
354 U. S. 298 (1957), but also to regulatory schemes that determine eligibility for public employment, Keyishian v. Board of Regents, 385 U. S. 589 (1967); Elfbrandt v. Russell, 384 U. S. 11 (1966); Cramp v. Board of Public Instruction, 368 U. S. 278 (1961); see also United States v. Robel, 389 U. S. 258 (1967); tax exemptions, Speiser v. Randall, 357 U. S. 513 (1958); and moral fitness justifying disbarment, Schware v. Board of Bar Examiners, 353 U. S. 232 (1957).
Appellees argue that the principle should nevertheless not obtain in cases of state regulation of access to the ballot. We perceive no reason to make an exception, and appellees suggest none. Indeed, all of the reasons for application of the principle in the other contexts are equally applicable here.
"To be sure, administration of the electoral process is a matter that the Constitution largely entrusts to the States. But, in exercising their powers of supervision over elections and in setting qualifications for voters, the States may not infringe upon basic constitutional protections."
Kusper v. Pontikes, ante at 414 U. S. 57 (footnote omitted). At stake are appellants' First and Fourteenth Amendment rights to associate with others for the common advancement of political beliefs and ideas. "The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom." Ibid.; Williams v. Rhodes, 393 U. S. 23, 393 U. S. 30 (1968). At stake as well are appellants' interests as party members in casting an effective ballot. See Bullock v. Carter, 405 U. S. 134, 405 U. S. 142-144 (1972).
infringe interests certainly as substantial as those in public employment, tax exemption, or the practice of law. For "the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights. . . ." Reynolds v. Sims, 377 U. S. 533, 377 U. S. 562 (1964). "Other rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U. S. 1, 376 U. S. 17 (1964).
"It is fraudulent for a group seeking by violent revolution to overthrow our democratic form of government to disguise itself as a political party and use the very forms of the democracy it seeks to subvert in order to gain support and carry on its nefarious ends."
"that the affidavit required under the statute refers to the official actions of the party itself, thus reducing to a minimum any possibility of 'innocent involvement' in activities which might be considered advocacy."
"No political party or organization shall be recognized and given a place on or have the names of its candidates printed on the ballot used at any election which advocates the overthrow, by force or violence, of the local, state or national government, or which advocates, or carries on, a program of sedition or of treason, and which is affiliated or cooperates with or has any relation with any foreign government, or any political party or group of individuals of any foreign government. Any political party or organization which is in existence at the time of the passage of this act . . . or which shall have had a ticket on the ballot one or more times prior to any election, and which does not advocate any of the doctrines the advocacy of which is prohibited by this act, shall insert a plank in its platform that it does not advocate any of the doctrines prohibited by this act. No existing or newly organized political party or organization shall be permitted on or to have the names of its candidates printed on the ballot used at any election until it has filed an affidavit, by its officers, under oath, that it does not advocate the overthrow of local, state or national government by force or violence, and that it is not affiliated with and does not cooperate with nor has any relation with any foreign government, or any political party, organization or group of individuals of any foreign government. The affidavit herein provided for shall be filed with the state election board or the county election board having charge of the printing of the ballot on which such ticket is to appear."
"it is not affiliated with and does not cooperate with, nor has any relation with any foreign government, or any political party, organization or group of individuals of any foreign government."
The September 28 memorandum of the three-judge court declared this provision of § 29-3812 unconstitutional. The American Independent Party and the Indiana Peace and Freedom Party then filed affidavits accepted by the Election Board and were placed on the National Ballot for the 1972 elections. On November 11, the Election Board appealed that portion of the order to this Court. We summarily affirmed. Whitcomb v. Communist Party, 410 U.S. 976 (1973).
Section 29-3801, Ind.Stat.Ann. (1169), provides for ballot listing of any party that files petitions containing signatures of one-half of one percent "of the total vote of all parties cast in the state for secretary of state at the last preceding general election." The sufficiency of the Communist Party petitions in this respect was challenged by appellees in the District Court, but was not discussed in the court's September 28 memorandum, although the issuance of the injunction presupposed a decision adverse to appellees. The motion for reconsideration requested the court to reconsider that result.
Appellees also argue that the notice of appeal of November 29 was ineffective because the earlier notice of October 10 divested the District Court of jurisdiction, and that that jurisdiction could not have been revested by the granting of leave to withdraw the October 10 notice. But since the October 10 notice was clearly timely, that argument is reduced to an attack on the untimeliness under Supreme Court Rule 13(1) of the filing of the jurisdictional statement on January 26, 1973. Timely docketing of the jurisdictional statement is not, however, a jurisdictional requisite. Johnson v. Florida, 391 U. S. 596, 391 U. S. 598 (1968).
"[t]he Communist Party of the United States . . . [is] not entitled to any of the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof. . . ."
We have difficulty understanding appellees' argument that this statute is applicable to the Communist Party of Indiana or in any way relevant to the issues in this case. The statute was not relied upon by either the Election Board or the District Court when it denied declaratory relief. In any event, insofar as the argument is that this statute bars the Communist Party of Indiana from maintaining this action, it is rejected. See Communist Party, U.S.A. v. Catherwood, 367 U. S. 389 (1961).
Appellants also contend that the requirement is constitutionally precluded as an oath different from that prescribed for a President by Art. II, § 1, and for any other state or federal officer by Art. VI, cl. 3. See Cole v. Richardson, 405 U. S. 676 (1972). In view of our result, we need not address those contentions.
The only question presented in the jurisdictional statement is whether § 29-3812 is facially valid. Thus, we do not reach the question whether the Election Board's apparent failure to require the Republican and Democratic Parties, the two major parties in Indiana, to comply with the statute rises to the level of a denial of equal protection of the law as applied, or was within the Board's "prosecutorial discretion." We note, however, that the only relevant testimony in the District Court, given by the Board's clerk, is entirely silent as to the reasons behind the omission.
"the narrowing construction tendered by the Attorney General [of Maryland] during oral argument so as to avoid the constitutional issue that was argued."
Whitehall v. Elkins, 389 U. S. 54, 389 U. S. 58 (1967). And Socialist Labor Party v. Gilligan, 406 U. S. 583 (1972), was dismissed as insufficiently concrete and mature to permit adjudication, on the authority of Rescue Army v. Municipal Court, 331 U. S. 549 (1947).
"some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material regarding Communist Party teaching, and to justify the inference that such a call to violence may fairly be imputed to the Party as a whole, and not merely to some narrow segment of it."
See also Scales v. United States, 367 U. S. 203 (1961); Yates v. United States, 354 U. S. 298 (1957).
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST join, concurring in the result.
I concur in the result. In my view, it was quite unnecessary to reach the issue addressed by the Court.
The complaint in this case expressly alleged that § 29-3812 subjected appellants to burdens not imposed on the Republican and Democratic Parties, and proof at trial was directed to that issue. The Court now maintains that this issue cannot be considered because it was not expressly raised in the jurisdictional statement. Ante at 414 U. S. 446-447, n. 6. Supreme Court Rule 15(1)(c) provides, however, that the jurisdictional statement "will be deemed to include every subsidiary question fairly comprised therein," and that "questions set forth in the jurisdictional statement or fairly comprised therein will be considered by the court." The issue of discriminatory application of the statute certainly falls within the gravamen of appellants' jurisdictional statement, and should therefore be considered. See, e.g., United States v. Arnold, Schwinn & Co., 388 U. S. 365, 388 U. S. 371-372 n. 4 (1967). Moreover, the appropriate exercise of judicial power requires that important constitutional issues not be decided unnecessarily where narrower grounds exist for according relief. This consideration applies even though such grounds are not raised in the jurisdictional submissions. Boynton v. Virginia, 364 U. S. 454, 364 U. S. 457 (1960). Cf. Barr v. Matteo, 355 U. S. 171, 355 U. S. 172 (1957).
The Court's intimation that a prima facie case of constitutional deprivation was not established because Board officials were "silent as to the reasons behind the omission" of the established parties from the affidavit requirement (ante at 414 U. S. 447 n. 6) misses the point. Nothing more need be shown than that the statute was, in fact, discriminatorily applied. It is the Board officials, not the appellants, who must then come forth with reasons justifying the discriminatory application of the statute.
In view of this patently unconstitutional application of the statute, there is no occasion to reach the broader issue addressed by the Court today. Although I express no conclusion on that issue, it should be noted that this is the first case touching upon the type of oath which may be required of a candidate for the office of President of the United States. The Indiana oath, of course, is required of the party, rather than its presidential candidate. But it could be argued that Yates v. United States, 354 U. S. 298 (1957), and its progeny are not controlling here. Under Art. VI, cl. 3, all state and federal officers are bound by oath "to support this Constitution," and, under Art. II, § 1, cl. 8, the President must swear that he will "faithfully execute the Office . . . and will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States." Art. II, § 3, also imposes on the President the affirmative duty to "take Care that the Laws be faithfully executed." Neither the effect of these explicit constitutional obligations nor the responsibility of a chief executive official of government to enforce the rule of law was a relevant issue in any of the Yates line of cases. Cf. Cole v. Richardson, 405 U. S. 676 (1972).
Communist Party of Indiana, et al.
Edgar D. Whitcomb, etc., at al.


UNITED STATES of America, Appellee, v. Desmond KERR, Defendant–Appellant.
Before KEARSE, PARKER, and HALL, Circuit Judges. Katherine alfieri, Law Offices of Katherine Alfieri, New York, NY, for Defendant–Appellant Desmond Kerr. Rajit S. Dosanjh, Assistant United States Attorney (Ransom P. Reynolds, Assistant United States Attorney, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee United States of America.
Defendant–Appellant Desmond Kerr is a Canadian citizen who was arrested by United States customs authorities after they searched his vehicle at the U.S.-Canadian border and discovered thousands of pills containing 3, 4 methylenedioxymethamphetamine (“MDMA”), a Schedule I controlled substance. Kerr was charged with one count of knowingly and intentionally possessing MDMA with intent to distribute, in violation of 18 U.S.C. § 841(a)(1) and (b)(1)(C). A turbulent pretrial period ensued, during which Kerr ceased communicating with and then effectively fired his first two appointed attorneys, insisted on pressing several ill-advised theories of defense to the exclusion of all others, and underwent a court-ordered competency examination that ultimately found him competent to stand trial. Kerr elected to represent himself at trial but, with the assistance of a newly appointed attorney, pled guilty midway through. After entering his plea, Kerr resumed his prior behavior: he again refused to communicate with counsel and filed numerous pro se motions in which he sought to withdraw his plea, press his theories of defense, and obtain the assistance of new counsel. At sentencing, Kerr's attorney expressed concern about Kerr's mental stability and represented that Kerr had been unable to help him prepare for sentencing; the district court also commented on Kerr's belligerent and counterproductive behavior. Ultimately, the district court sentenced him principally to 121 months' imprisonment, rejecting his several sentencing arguments.
Through new counsel, Kerr argues on appeal that his “erratic” and “irrational” behavior following the entry of his plea required the district court to hold a competency hearing before imposing sentence and that he was deprived of his Sixth Amendment right to counsel by the denial of his multiple post-plea requests for an attorney to help him withdraw his plea. He also challenges several aspects of the sentence imposed. In a separate pro se brief, Kerr contends that the district court erroneously denied his pro se motion to withdraw his plea and challenges several pre-plea aspects of his prosecution and trial. We affirm.
In February 2009, Customs and Border Protection officers searched Kerr's vehicle as he attempted to enter the United States from Canada at the Alexandria Bay, New York port of entry. In the course of the search, the officers discovered approximately seven thousand pills containing MDMA. The officers found the pills in two locations: four thousand were concealed in black packages between the vehicle's front seats, while the remaining three thousand were stowed within the vehicle's rear interior paneling. Together, the seven thousand pills weighed 2,068 grams. Kerr was arrested and charged with one count of possession with attempt to distribute MDMA.
Between his February 2009 arraignment and his April 2010 trial, Kerr cycled through a succession of attorneys and inundated the district court with numerous pro se requests for its assistance with his several theories of defense. First, in September 2009, Kerr moved to replace the Federal Public Defender initially assigned to his case. The district court granted the motion and, after Kerr expressed dissatisfaction with a second attorney, appointed Jeffery DeRoberts as new counsel. Several weeks later, DeRoberts informed the court that Kerr was unhappy with his representation and had requested that the court appoint a different attorney known to Kerr. The district court denied this request, explaining that Kerr was not entitled to choose assigned counsel. At a subsequent conference and suppression hearing held in October 2009, Kerr alleged that the government had improperly destroyed a number of the recovered MDMA pills, that the assigned Assistant United States Attorney (“AUSA”) had committed perjury, and that his various attorneys had refused to file motions addressing these issues.1 When Kerr continued to interject and press these pro se arguments, the district court halted the proceedings to inquire whether he understood the charge against him, the potential penalties he faced, and the importance of his attorney. Kerr confirmed that he was charged with possession with intent to distribute, stated that he understood the penalties, and acknowledged that his lawyer had knowledge of the law and court procedure he did not possess.
On December 9, 2009, some five days before the scheduled trial date, the district court held a final pretrial conference during which Kerr represented that DeRoberts was “ineffective” and in “dereliction of duty.” Kerr repeatedly stated that he did not want DeRoberts to speak on his behalf or appear at trial, and that he wished to represent himself. The court acknowledged Kerr's right to self-representation and stated that DeRoberts would be available at trial as standby counsel. Kerr objected to this proposal, informing the court that he wanted to call DeRoberts as a defense witness to testify about the government's “perjury” as to the existence of certain surveillance videotapes of the border crossing. Kerr also requested that the court subpoena several other witnesses, including the then-Chief Judge of the Northern District of New York and the then-interim United States Attorney for the Northern District of New York. Kerr refused to explain his reasons for subpoenaing these last witnesses, stating only that the court would “find out” on the date of trial.
The district court reconvened on March 31, 2010. On that date, Kerr did not permit DeRoberts to sit with him at counsel table. He adamantly expressed his desire to represent himself with the assistance only of standby counsel, insisting that the results of the competency evaluation proved his ability to do so. The court granted DeRoberts's resulting motion to withdraw on the ground that there had been a complete breakdown in attorney-client communication. In his stead, the court appointed Robert Wells as standby counsel and directed Kerr to consult with him. At the close of the conference, the court scheduled trial to begin on April 14, 2010 and explained to Kerr that it would ask him a series of questions at the beginning of trial to ensure he fully understood the implications of self-representation.
On the scheduled trial date, Kerr appeared with Wells as standby counsel. Before jury selection, the district court stated that it had previously “advised [Kerr] of the disadvantages of representing [himself]” and inquired of Kerr whether that remained his intention. Kerr confirmed that it was. The court cautioned him that self-representation was “very difficult” and that, despite his pro se status and lack of legal training, he was required to follow the court's instructions and comply with the rules of evidence and procedure. When Kerr renewed his request to subpoena three witnesses—his former attorney, the former interim United States Attorney, and the Chief Judge of the Northern District—the court stated that it would issue the subpoenas only if Kerr explained how their testimony was relevant to the pending criminal charge. Kerr demurred, claiming that he should not be required to disclose his theory of defense. Again, the court flagged Kerr's lack of legal training, explaining, inter alia, that any testimony of these witnesses would “certainly” be hearsay and the fact that his former attorney represented Kerr in the matter did not make the attorney “a witness with any relevant testimony to offer in this case.” The court later urged Kerr to consult with Wells concerning issues of jury selection.
Several days after pleading guilty, Kerr filed a pro se motion to withdraw his pleathe first in a succession of pro se motions he filed in the post-plea, pre-sentencing phase of the case. Kerr asserted in the motion that he wanted to “take back” his plea to permit the “the jury [to] find [him] guilty or not guilty.” The district court denied his request on April 26, concluding that Kerr's plea allocution satisfied the requirements of Federal Rule of Criminal Procedure 11(b), he had not shown a “fair and just” reason for withdrawing the plea, and he had not accounted for the prejudice that would inure to the government and the court if his request were granted.
While these events unfolded, the Probation Department submitted a presentence report in which it held Kerr accountable for the entire quantity of MDMA pills found in the vehicle. Based on a total offense level of 32 and Kerr's criminal history category of I, the Probation Department calculated Kerr's advisory sentencing range under the United States Sentencing Guidelines as 121 to 151 months' imprisonment. It also noted that Kerr had refused to meet with the Probation officer tasked with preparing the report. In a pro se letter sent shortly before sentencing, Kerr explained that although he had wanted to meet with the Probation officer, he did not wish to do so with Wells present because Wells had “lied” to him during trial.
For his part, Wells explained in a sentencing memorandum submitted on Kerr's behalf that Kerr had refused to meet with him to prepare for sentencing; he also expressed his concern with Kerr's “mental stability.” Wells took issue with the FMC psychologists' competency determination, representing that although he had no “training in mental health diagnosis,” Kerr's actions over the course of the prosecution were “not that of a rational and undisturbed mind” and he had been unable to help Wells prepare for sentencing. Wells further advised the court that he could not ethically help Kerr with the motion to withdraw the plea because his affirmation at the change of plea hearing that Kerr pled guilty voluntarily created a “classic and irremediable conflict” with respect to that motion. He therefore urged the court to appoint new counsel for purposes of that motion. Finally, Wells argued that Kerr should be held accountable only for the four thousand MDMA pills found between the front seats of his vehicle because there was no evidence he knew about the pills hidden within the rear interior paneling.
After hearing from the government, the court adopted the facts contained in the presentence report and found, consistent with the calculations of the Probation Department, that Kerr's Guidelines range of imprisonment was 121 to 151 months. The court sentenced Kerr to 121 months' imprisonment, explaining that it found the sentence “fair, just, and sufficient but not greater than necessary to comply with the goals of sentencing set forth in 18 U.S.C. 3553(a).” The court emphasized that, had Kerr been “more cooperative” with counsel and the Probation Department, it may have been presented with a “fuller record” justifying the imposition of a lesser sentence, especially given his lack of criminal history. Once again, the court remarked that it could not understand Kerr's intransigent behavior. Kerr timely appealed the court's August 6, 2010 judgment. Approximately one week later, he submitted a letter reiterating that Wells was “standby counsel” only and did not speak on his behalf.
Due process “ ‘prohibits the criminal prosecution of a defendant who is not competent to stand trial.’ “ United States v. Quintieri, 306 F.3d 1217, 1232 (2d Cir.2002) (quoting Medina v. California, 505 U.S. 437, 439 (1992)). A defendant is not competent, and the criminal proceeding against him may not progress, when his “mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense.” Drope v. Missouri, 420 U.S. 162, 171 (1975). This constitutional right is safeguarded by 18 U.S.C. § 4241, which requires the district court, upon its own motion if necessary, to hold a competency hearing “if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” 18 U.S.C. § 4241(a); see also United States v. Zhou, 428 F.3d 361, 379 (2d Cir.2005) (noting that the standards under due process and § 4241 are “essentially equivalent” (citing Nicks v. United States, 955 F.2d 161, 168 (2d Cir.1992))).
The existence of “reasonable cause” is a highly particularized assessment that “ ‘varies in each case.’ “ Zhou, 428 F.3d at 379 (quoting United States v. Nichols, 56 F.3d 403, 414 (2d Cir.1995)). We have identified several factors upon which the district court may rely when making the reasonable cause determination, including psychiatric reports assessing the defendant's competence, see Zhou, 428 F.3d at 379, and the court's own “observations of the defendant's demeanor during the proceeding,” Quintieri, 306 F.3d at 1233. See also Drope, 420 U.S. at 180 (explaining that there are “no fixed or immutable signs which invariably indicate the need for further inquiry to determine [the defendant's] fitness to proceed”). The right not to be prosecuted while incompetent “spans the duration of a criminal proceeding.” United States v. Arenburg, 605 F.3d 164, 168 (2d Cir.2010). A district court must therefore “ ‘always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial,’ “ id. at 168–69 (quoting Drope, 420 U.S. at 181) (emphasis in original), an obligation that “takes on increased significance where, as here, a criminal defendant elects to proceed pro se,” id. at 169. We review a district court's decision not to order a competency hearing for abuse of discretion. Id.
Having concluded that the district court was not required to hold a competency hearing before Kerr's April 16 plea, we must now assess whether the record reflects any “circumstances suggesting a change that would render [Kerr] unable to meet the standards of competence” by the time of his August 4 sentencing. Arenburg, 605 F.3d at 168–69 (internal quotation marks omitted). In his counseled brief, Kerr contends there were two such circumstances: his “erratic” and “irrational” post-plea behavior, and Wells's representations that the FMC psychologists “missed something” and that Kerr was unable to help him prepare for sentencing.
We first hold that, upon consideration of the whole record, Kerr's post-plea behavior was not so “erratic” that it should have given the district court reason to doubt his competency. Indeed, the record reflects that Kerr's obstinate, belligerent, and obsessive behavior remained a constant throughout the entire proceedings. The district court ordered the pretrial competency evaluation after it became increasingly disturbed by Kerr's obsession with his pro se theories of defense to the exclusion of other issues, his refusal to cooperate or communicate with his attorneys, and his insistence on subpoenaing irrelevant witnesses. This is precisely the same behavior Kerr flags as “erratic” in the post-plea phase of the case, when he cut off communication with Wells and repeatedly attempted to press his theories of defense despite having pled guilty. Although the “obligation to be vigilant for reasonable cause [to question the defendant's competency] ․ does not disappear upon a pretrial finding that the defendant is competent to stand trial,” Arenburg, 605 F.3d at 170 (internal quotation marks omitted), under the circumstances of this case we will not fault the district court—which observed Kerr over the entirety of the proceedings below—for not twice questioning the same behavior. Kerr's situation is therefore distinguishable from those cases in which we have found it necessary for courts to revisit their initial reasonable cause determinations. See id. at 169–71 (district court erred by suggesting that a magistrate judge's pretrial competency determination was dispositive of the defendant's competence at trial and was required to revisit the reasonable cause determination where, at trial, the assigned AUSA questioned the defendant's mental stability and the defendant, who had a history of mental illness, made numerous incoherent statements); Vojtowicz, 550 F.2d at 789–90 (remanding to the district court for an evidentiary hearing where defendant, who was assessed as competent before the entry of his plea, submitted a post-judgment affirmation stating that he had attempted to commit suicide on the morning of sentencing).
Kerr's obsession with his defensive theories, his distrust of his attorneys, and his belligerent attitude were also not so bizarre as to require the district court to question his competency for a second time. Compare Arenburg, 605 F.3d at 171 (reasonable cause to reconsider defendant's competency where “he made repeated references to ‘radio waves,’ ‘microwave channels,’ and a conspiracy involving MGM Studios and the government with the object of publicly broadcasting his thoughts”), and United States v. Auen, 846 F.2d 872, 874–75, 878 (2d Cir.1988) (finding reasonable cause for a competency hearing and remanding for the district court to conduct such a hearing where defendant, inter alia, compared the agent investigating his case with a cat he had put down, complained that he had been the victim of “psychopolitical terrorism by the Internal Revenue Service,” and threatened the government's attorneys), with Zhou, 428 F.3d at 380–81 (no reasonable cause to question defendant's competency where the district court had observed the defendant “over a substantial period of time” and the defendant was found competent in a medical report that described him as “defensive, stubborn, and evasive regarding the details of his case”). Disputes between criminal defendants and their attorneys are not at all uncommon, see United States v. White, 174 F.3d 290, 296 (2d Cir.1999), and many defendants “assert that their rights have been denied at every turn,” “demonstrate that they do not understand how the legal system handles witnesses,” and “forget or choose to ignore what judges said earlier,” Timberlake v. Davis, 409 F.3d 819, 823 (7th Cir.2005). In sum, although Kerr “demonstrated that he can be rude, unreasonable, and myopic in his approach to this case, that is not the same as incompetence and is not the type of conduct that implies the kind of mental shortcomings required to oblige a district court to sua sponte order a competency examination.” United States v. Alden, 527 F.3d 653, 660 (7th Cir.2008).
Against a different backdrop, we may well have greater cause for alarm when confronted with such statements by defense counsel as Wells's that his client was acting irrationally and could not assist with preparing a defense. Cf. United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir.1995) (noting that defense counsel's failure to indicate the defendant could not assist in her defense or understand proceedings was “substantial evidence” of competency). Here, however, the district court had substantially longer experience with Kerr over the course of the proceedings than did Wells, who did not become standby counsel until immediately before trial. In addition, Wells freely acknowledged that, in making these representations, he had “no training in mental health diagnosis.” Appellant App'x at 235. Finally, it is apparent that Wells's declaration that Kerr could not help him prepare for sentencing was based on Kerr's refusal to meet with him, which, as we have noted, was consistent with Kerr's pretrial behavior toward his former attorneys. Given all of the above, we hold that the district court did not abuse its discretion by not revisiting the issue of Kerr's competency before imposing sentence.
With respect to the Sixth Amendment arguments he does raise, Kerr first asserts in his counseled brief that it is unclear from the record whether, at the change of plea hearing, the district court appointed Wells as counsel for the remainder of the proceedings, or only for the entry of the plea. Appellant Br. 25. Given this opacity, Kerr advances two alternative arguments regarding right to counsel. First, he contends that if the district court elevated Wells from standby counsel to full counsel only for purposes of the plea, then it deprived him of his right to counsel at a critical stage of the proceeding when it denied his request for counsel's assistance with his motion to withdraw the plea. Appellant Br. at 25–28. Alternatively, he argues that if the court upped Wells to full counsel for the remainder of the proceeding, then it should have appointed new counsel to assist Kerr with his motion to withdraw his plea because of Wells's “actual conflict” with respect to that motion. See id. at 28–41.
We note that the district court did not state explicitly that Wells returned to standby status following the entry of the plea. Despite any possible confusion, several reasons support our conclusion that the district court elevated Wells to full counsel only for purposes of the plea, and that Kerr thereafter resumed his self-representation.
Although the district court told Kerr at the plea hearing that it was “going to at this point accept the fact that Mr. Wells is your attorney,” Appellant App'x at 98, it implied after accepting the plea that participation in an on-going relationship was optional, informing Kerr that the Probation Department would interview him and that “Wells can be there if you like, that's up to you and him,” id. at 117 (emphasis added). The district court's observation that Wells was entitled to opt out of accompanying Kerr for such an interview, rather than having an obligation to attend, was a clear indication that the court viewed Wells, subsequent to the entry of Kerr's guilty plea, as having completed his service as counsel and returned to the status of standby counsel. See, e.g., Gonzalez v. United States, 722 F.3d 118, 134–35 (2d Cir.2013) (noting, among the ways in which Gonzales's attorney's “performance was deficient with regard to sentencing,” that counsel “did not accompany Gonzalez when Gonzalez was interviewed by the Probation Department”). In addition, there is no indication that Kerr waived his right to self-representation during the post-plea period because during that time he made numerous pro se filings, refused to allow Wells to speak on his behalf at sentencing, and submitted a post-judgment letter reiterating that Wells was “standby counsel.” Cf. United States v. Barnes, 693 F.3d 261, 271 (2d Cir.2012) (noting that “even after the right to proceed pro se has been clearly and unequivocally asserted, the right may be waived through conduct indicating that one is vacillating on the issue or has abandoned one's request altogether” (internal quotation marks omitted)). The district court also made clear its view that Kerr continued to represent himself by accepting and ruling on his numerous pro se submissions. Tellingly, some of these filings requested the assignment of new counsel, which the court denied without stating or otherwise indicating that Wells remained Kerr's attorney. Finally, although Wells submitted a sentencing memorandum and appeared with Kerr at sentencing, it is routine, and certainly not unusual, for standby counsel to perform such essential tasks. See, e.g., United States v. Schmidt, 105 F.3d 82, 90 (2d Cir.1997) (standby counsel not elevated to full counsel when he “examined and cross-examined witness, and gave the defense summation”). We therefore conclude that Kerr continued representing himself after the entry of his plea and address only the first of Kerr's alternative Sixth Amendment arguments—that the district court deprived him of his right to counsel when it did not appoint an attorney to assist him with his second motion to withdraw his plea.
This inquiry is complicated by the fact that Kerr's post-plea request for counsel came after he waived his right to counsel before trial. While it is undisputed that the Sixth Amendment protects a criminal defendant's right to the assistance of counsel “ ‘at all critical stages of the criminal process,” Marshall v. Rodgers, _ U.S. _, 133 S.Ct. 1446, 1449 (2013) (quoting Iowa v.. Tovar, 541 U.S. 77, 80–81 (2004)), it is also well settled “that a defendant ․ has the right to ‘proceed without counsel when he voluntarily and intelligently elects to do so,” Marshall, 133 S.Ct. at 1449 (quoting Faretta, 422 U.S. at 807); see also Forbes v. United States, 574 F.3d 101, 106 (2d Cir.2009) (“A motion to withdraw a guilty plea is a critical stage of a criminal proceeding ․”); see generally United States v.. Davis, 239 F.3d 283, 287 (2d Cir.2001) (a defendant who wishes to withdraw his plea of guilty “may waive his ․ right to counsel ․ and proceed pro se ”). To resolve the tension that can exist between these two principles when a defendant who elected to proceed pro se later demands an attorney, there is broad consensus that, once waived, the right to counsel is no longer unqualified. See United States v. Thompson, 587 F.3d 1165, 1175 (9th Cir.2009); United States v. Leveto, 540 F.3d 200, 207 (3d Cir.2008); United States v. Proctor, 166 F.3d 396, 403 & n. 8 (1 st Cir.1999); United States v. Reddeck, 22 F.3d 1504, 1510–11 (10th Cir.1994); United States v. Taylor, 933 F.2d 307, 311 (5th Cir.1991); United States v. West, 877 F.2d 281, 286 (4th Cir.1989); United States v. Solina, 733 F.2d 1208, 1211–12 (7th Cir.1984); see also United States v. Brasch, 205 F.3d 1325 (2d Cir.1999) (table) (unpublished decision).
Although we have not definitively spoken on this precise issue, we have held that a defendant's right to represent himself in the first place is not absolute. See Barnes, 693 F.3d at 271–72. Among other qualifications placed on the exercise of that right, we have required that the request to proceed pro se be “ ‘unambiguous and unequivocal” so as to “ ‘inhibit[ ] any deliberate plot to manipulate the court by alternatively requesting, then waiving counsel.” Id. at 271 (quoting Williams v. Bartlett, 44 F.3d 95, 100–01 (2d Cir.1994)). In addition, the request may be denied if the district court finds it to be “obstructionist” or “manipulative or abusive in some other way.” Id. (internal quotation marks omitted). These concerns are equally applicable to a situation in which a defendant, having invoked his right to proceed pro se, later seeks the reappointment of counsel. Accordingly, we hold, in agreement with our sister Circuits that have considered the issue, that once a defendant voluntarily and intelligently waives his right to counsel and elects to proceed pro se, the decision whether to grant or deny his “post-waiver request for counsel is well within the discretion of the district court.” Leveto, 540 F.3d at 207 (citing cases).
Given the critical role that access to professional legal representation plays in our criminal justice system, a district court's discretion to deny post-waiver requests for counsel is necessarily circumscribed. Thus, it is manifestly improper for a court to deny such a request on purely punitive grounds. See Menefield v. Borg, 881 F.2d 696, 700 (9th Cir.1989) (“We are certainly unwilling to deny counsel because of some conception that the defendant's initial decision to exercise his Faretta right and represent himself at trial is a choice cast in stone.”); see also Taylor, 933 F.2d at 311 (defendant must ordinarily be allowed to “change his mind about whether he will represent himself”). In addition, a district court's denial of such a request made after trial or before any meaningful trial proceedings have begun may be subject to more searching scrutiny than the denial of a request made on the eve (or in the midst) of trial, when assigning new counsel would inevitably disrupt the court's schedule and impede the orderly administration of justice. See Leveto, 540 F.3d at 207; Proctor, 166 F.3d at 402; Solina, 733 F.2d at 1211–12; Menefield, 881 F.2d at 700–01. On the other hand, a motion to withdraw a mid-trial plea of guilty—and to have a new trial—where the defendant has elected to plead guilty after hearing the government's evidence, also portends inefficiencies, to wit, duplications of effort on the part of the prosecution, the judge, and the witnesses, and the need for a second set of citizens to serve as jurors. See, e.g., United States v. Schmidt, 373 F.3d 100, 102–03 (2d Cir.2004).
A district court “need not countenance abuse of the right to counsel or the right to waive it,” Taylor, 933 F.2d at 311, and it is well within the court's discretion to deny a post-waiver motion for new counsel when it is made in an effort to delay or disrupt the proceedings, see id. (“A defendant is not entitled to choreograph special appearances by counsel or repeatedly ․ alternate his position on counsel in order to delay his trial or otherwise obstruct the orderly administration of justice.” (internal quotation marks and citation omitted)); Leveto, 540 F.3d at 207 (same); Proctor, 166 F.3d at 402 (same). Although we will generally require a district court faced with a post-waiver motion for new counsel to inquire into the defendant's reasons for the request and fully explain on the record the grounds for its ultimate decision, we will “not insist upon a formal inquiry or colloquy where the rationales for the request and decision are clearly apparent on the record.” Leveto, 540 F.3d at 208.
With these principles in mind, we turn to the facts of Kerr's case and find that the district court, having properly denied Kerr's first pro se motion to withdraw his plea, did not abuse its discretion when it refused his post-waiver request for new counsel to help him file a second.7 Acting pro se, Kerr filed his first motion to withdraw his plea days after it was entered, asserting only that he wanted “the jury [to] find [him] guilty or not guilty.” Appellant App'x at 173. As the district court correctly determined in its April 26, 2010 order denying the motion, this does not constitute a valid ground for withdrawal. See Fed.R.Crim.P. 11(d)(2)(B) (defendant may withdraw his plea before sentencing if he “can show a fair and just reason”); United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir.1992) (defendant's “change of heart” not a “sufficient reason to permit withdrawal of a plea”). In addition, a careful review of the plea colloquy clearly indicates that the district court complied with the requirements of Rule 11 and fully ensured that Kerr's plea was knowing, voluntary, and supported by a factual basis. See Fed.R.Crim.P. 11(b). The district court therefore properly denied Kerr's first withdrawal motion. See Gonzalez, 970 F.2d at 1100.
Thus, when, in mid-May 2010, Kerr filed his post-waiver motion for the appointment of new counsel, the district court was confronted with the following facts: (1) Kerr effectively fired three attorneys before electing to proceed pro se at trial with a fourth as standby counsel; (2) he pled guilty with the assistance of counsel midway through trial and then resumed acting as his own attorney days later when he filed his first meritless pro se motion to withdraw his plea; and (3) less than one month after the denial of that motion, Kerr moved for the appointment of a fifth attorney to assist him with a second motion to withdraw his plea. Considering these facts, we have little trouble concluding that the district court acted within its discretion when it denied the request. While a first motion to withdraw a plea is a “critical stage of the proceeding,” see Forbes, 574 F.3d at 106, successive motions seeking the same relief do not rise to that level. A defendant has no right to whipsaw the district court and delay the proceedings by continually alternating his position on counsel, especially when his post-waiver request for counsel arises in connection with a motion the court has already denied. See Taylor, 933 F.2d at 311; cf. Barnes, 693 F.3d at 271. Moreover, although it would have been preferable for the district court to explain its reasons for denying the request, see Leveto, 540 F.3d at 207–08, we find no abuse of discretion in this instance because the reasons for the court's decision—Kerr's alternating positions with respect to representation and his attempt to delay the proceedings—are “clearly apparent on the record,” id. at 208.
Kerr challenges the procedural reasonableness of his sentence on three grounds, arguing that the district court: (1) improperly held him accountable for the combined weight of all 7,000 MDMA pills because he did not know about the 3,000 pills hidden in his vehicle's rear interior paneling; (2) failed to find him eligible for a two-level minor role adjustment pursuant to U.S.S.G. § 3B1.2; and (3) did not articulate an adequate basis for its sentence. We review sentences for procedural and substantive reasonableness using a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). Procedural error occurs when, for example, the district court improperly calculates the applicable Guidelines range, fails to consider the sentencing factors articulated in 18 U.S.C. § 3553(a), or neglects to explain the reasons for its chosen sentence. See United States v. Cavera, 550 F.3d 180, 190 (2d Cir.2008) (en banc).
Contrary to Kerr's first argument, the district court was not required to find that he “knowingly” possessed all 7,000 MDMA pills before holding him accountable for them all. We rejected an identical challenge in United States v. de Velasquez, where a defendant convicted of the importation of heroin argued that because she had been unaware of the heroin secreted in her shoes, she could not be held accountable for that amount. 28 F.3d 2, 4–6 (2d Cir.1994). As we stated in that case, “[t]here is no requirement under the Guidelines that the defendant know or foresee the total quantity of drugs in his possession to be sentenced for the full amount.” Id. at 5; see also U.S.S.G. § 1B1.3 cmt. n. 2 (2010) (explaining that “the defendant is accountable for all quantities of contraband with which he was directly involved” and that the reasonable foreseeability requirement “does not apply to conduct that the defendant personally undertakes”).
Kerr next argues that he was entitled to a minor role adjustment because he “was no more than a onetime drug mule.” Appellant Br. at 56. “To the extent that [a defendant] claims that one who is simply a courier is automatically entitled to a [U.S.S.G.] § 3B1.2 minor role adjustment based on that status, we reject his argument.” United States v. Garcia, 920 F.2d 153, 155 (2d Cir.1990) (per curiam). Instead, it was Kerr's burden to establish that his conduct was minor “as compared to the average participant” in the crime of conviction. United States v. Bahman, 189 F.3d 88, 159 (2d Cir.1999); see also Garcia, 920 F .2d at 156 (“It is the defendant's burden to establish by a preponderance of the evidence that his level of culpability entitles him to a minor role reduction.”). This inquiry is highly fact-intensive and, in cases involving drug couriers, necessarily depends on “such factors as the nature of the defendant's relationship to other participants, the importance of the defendant's actions to the success of the venture, and the defendant's awareness of the nature and scope of the criminal enterprise.” Garcia, 920 F.2d at 155. We have no difficulty concluding that Kerr did not meet this burden as he failed to present any evidence or arguments addressing these factors.
Finally, Kerr maintains that the district court rejected his sentencing arguments without adequate explanation. As we have repeatedly reiterated, “we never have required a District Court to make specific responses to points argued by counsel in connection with sentencing.” United States v. Bonilla, 618 F.3d 102, 111 (2d Cir.2010). Instead, the court is required to “satisfy us only that it has considered the party's arguments and has articulated a reasonable basis for exercising its decision-making authority.” Id. (citing Cavera, 550 F.3d at 193). Here, the district court did just that: it “reviewed and considered all the pertinent information including ․ submissions by counsel,” Appellant App'x at 143–44, and explained that it found “a sentence at the low end of the Guidelines range ․ fair, just, and sufficient but not greater than that which is necessary to comply with the goals of sentencing,” id. at 145. We also note that the district court made clear its desire to further consider and likely credit Kerr's sentencing arguments, but stated that Kerr's refusal to meet with the Probation Department deprived it of the necessary information to do so. Kerr's sentence was procedurally sound.
Kerr argues in his pro se brief that the district court improperly denied his motion to withdraw his guilty plea and challenges various aspects of his prosecution and trial. See Pro Se Br. at 9–20. As we concluded above, Kerr's guilty plea was knowing and voluntary, and the district court did not abuse its discretion when it denied his motion to withdraw it. Kerr's remaining pro se arguments—concerning alleged prosecutorial misconduct, discovery improprieties, the denial of his motion to dismiss the indictment, and various trial errors—are therefore barred by his valid guilty plea. See United States v. Lasaga, 328 F.3d 61, 63 (2d Cir.2003) (“A defendant who pleads guilty unconditionally admits all elements of the formal charge and, in the absence of court-approved reservation of issues for appeal, waives all challenges to prosecution except those going to the court's jurisdiction.”).
1. In December 2009, Kerr filed a pro se notice of appeal from the district court's denial of his suppression motion and his motion to dismiss the indictment due to the government's destruction of evidence. The resulting interlocutory appeal remained pending in this Court without substantive filings by either party until October 2011, when the government moved to dismiss the appeal as taken from a non-final order. By that time, however, the interlocutory appeal had been designated the lead case and consolidated with Kerr's August 2010 appeal from his final judgment of conviction, which by then was fully-briefed. In February 2012, we denied the government's motion to dismiss, but construed Kerr's arguments made in the interlocutory appeal as relating to his 2010 appeal from the final judgment.
2. Although Kerr did not plead guilty pursuant to a formal plea agreement, he agreed during the change of plea hearing to withdraw his December 2009 interlocutory appeal from the denial of his suppression motion and motion to dismiss.
3. Wells informed Kerr before the submission of this letter that, given his affirmations during the change of plea hearing regarding the knowing and voluntary nature of Kerr's plea, he was “prohibited” from assisting Kerr with the motion to withdraw the plea. Wells also urged Kerr to “return to representing [himself] pro se” so that Wells could advise him as he proceeded.
4. The court also denied Kerr's several pro se motions to set aside the “jury verdict” and to vacate his conviction on various grounds.
5. Given this conclusion, we reject any suggestion in counsel's brief that Kerr was “likely” incompetent at the time of his trial and plea. See Appellant Br. at 45 & n. 12.
6. Even if were we to reach this issue, we likely would conclude that Kerr knowingly and intelligently waived his right to counsel before trial. See Faretta v. California, 422 U.S. 806, 835 (1975) (holding that a defendant who seeks to represent himself “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open” (internal quotation marks omitted)). The record reflects that over the course of the pretrial proceedings, during which he repeatedly and emphatically demanded to represent himself, Kerr: (1) confirmed that he understood the nature of the charges and the potential penalties he faced, see Special App'x at 28; and (2) acknowledged the importance of having the assistance of an attorney, see id. at 55–56. In addition, the district court warned Kerr immediately before trial about the dangers and difficulties of proceeding pro se. See Appellant App'x at 80, 84–86. Thus, while the district court's Faretta colloquy in this case was not ideal, it was not so deficient as to make Kerr's waiver of his Sixth Amendment right unknowing. See, e.g., Torres v. United States, 140 F.3d 392, 401 (2d Cir.1998) (explaining that “there is no talismanic procedure to determine a valid waiver” and that “[w]e need not analyze the district court's every word, so long as the record as a whole demonstrates that the defendant knowingly and intelligently waived her right to counsel”); United States v. Hurtado, 47 F.3d 577, 583 (2d Cir.1995) (finding a Faretta examination “adequate” where the district court warned the defendant “of the specific perils of representing himself and the advantages of having legal representation,” the defendant was “clearly aware of the penalties he faced if convicted,” and the defendant “clearly stated that he would prefer to proceed pro se ”).
7. As noted above, Kerr does not challenge on appeal the validity of his initial pretrial waiver of his right to counsel. We therefore assume for purposes of this analysis that it was knowingly and voluntarily made.


Untitled No.I. Photographies. 2018. Inkjet printing on Hahnemühle paper Digital Fine Art. 125h x 125w cm. Edition of 5.
Untitled No.II. Photographies. 2018. Inkjet printing on Hahnemühle paper Digital Fine Art. 125h x 125w cm. Edition of 5.
Untitled No.III. Photographies. 2018. Inkjet printing on Hahnemühle paper Digital Fine Art. 125h x 125w cm. Edition of 5.
Untitled No.IV. Photographies. 2018. Inkjet printing on Hahnemühle paper Digital Fine Art. 125h x 125w cm. Edition of 5.
Untitled No.V. Photographies. 2018. Inkjet printing on Hahnemühle paper Digital Fine Art. 125h x 125w cm. Edition of 5.
Untitled No.VI. Photographies. 2018. Inkjet printing on Hahnemühle paper Digital Fine Art. 125h x 125w cm. Edition of 5.
Untitled No.VII. Photographies. 2018. Inkjet printing on Hahnemühle paper Digital Fine Art. 125h x 125w cm. Edition of 5.
Untitled No.VIII. Photographies. 2018. Inkjet printing on Hahnemühle paper Digital Fine Art. 125h x 125w cm. Edition of 5.
Untitled No.IX. Photographies. 2018. Inkjet printing on Hahnemühle paper Digital Fine Art. 125h x 125w cm. Edition of 5.
Untitled No.X. Photographies. 2018. Inkjet printing on Hahnemühle paper Digital Fine Art. 125h x 125w cm. Edition of 5.
Untitled No.XI. Photographies. 2018. Inkjet printing on Hahnemühle paper Digital Fine Art. 125h x 125w cm. Edition of 5.
Untitled No.XII. Photographies. 2018. Inkjet printing on Hahnemühle paper Digital Fine Art. 125h x 125w cm. Edition of 5.
Untitled No.XIII. Photographies. 2018. Inkjet printing on Hahnemühle paper Digital Fine Art. 125h x 125w cm. Edition of 5.
Untitled No.XIV. Photographies. 2018. Inkjet printing on Hahnemühle paper Digital Fine Art. 125h x 125w cm. Edition of 5.
Untitled No.XV. Photographies. 2018. Inkjet printing on Hahnemühle paper Digital Fine Art. 125h x 125w cm. Edition of 5.
Untitled No.XVI. Photographies. 2018. Inkjet printing on Hahnemühle paper Digital Fine Art. 125h x 125w cm. Edition of 5.
Untitled No.XVII. Photographies. 2018. Inkjet printing on Hahnemühle paper Digital Fine Art. 125h x 125w cm. Edition of 5.
Untitled No.XVIII. Photographies. 2018. Inkjet printing on Hahnemühle paper Digital Fine Art. 125h x 125w cm. Edition of 5.
Carnets de Tanger n°10. 2017. Digital C-print on fine art paper. 110h x 110w cm. Edition of 5.
Carnets de Tanger n°9. 2017. Digital C-print on fine art paper. 110h x 110w cm. Edition of 5.
Carnets de Tanger n°8. 2017. Digital C-print on fine art paper. 110h x 110w cm. Edition of 5.
Carnets de Tanger n°7. 2017. Digital C-print on fine art paper. 110h x 110w cm. Edition of 5.
Carnets de Tanger n°6. 2017. Digital C-print on fine art paper. 110h x 110w cm. Edition of 5.
Carnets de Tanger n°5. 2017. Digital C-print on fine art paper. 110h x 110w cm. Edition of 5.
Carnets de Tanger n°4. 2017. Digital C-print on fine art paper. 110h x 110w cm. Edition of 5.
Carnets de Tanger n°3. 2017. Digital C-print on fine art paper. 110h x 110w cm. Edition of 5.
Carnets de Tanger n°2. 2017. Digital C-print on fine art paper. 110h x 110w cm. Edition of 5.
Carnets de Tanger n°1. 2017. Digital C-print on fine art paper. 110h x 110w cm. Edition of 5.
Carnets de Marrakech n°12. 2017. Digital C-print on fine art paper. 110h x 110w cm. Edition of 5.
Carnets de Marrakech n°11. 2017. Digital C-print on fine art paper. 110h x 110w cm. Edition of 5.
Carnets de Marrakech n°9. 2017. Digital C-print on fine art paper. 110h x 110w cm. Edition of 5.
Carnets de Marrakech n°8. 2017. Digital C-print on fine art paper. 110h x 110w cm. Edition of 5.
Carnets de Marrakech n°6. 2017. Digital C-print on fine art paper. 110h x 110w cm. Edition of 5.
Carnets de Marrakech n°5. 2017. Digital C-print on fine art paper. 110h x 110w cm. Edition of 5.
Carnets de Marrakech n°4. 2017. Digital C-print on fine art paper. 110h x 110w cm. Edition of 5.
Carnets de Marrakech n°3. 2017. Digital C-print on fine art paper. 110h x 110w cm. Edition of 5.
Carnets de Marrakech n°2. 2017. Digital C-print on fine art paper. 110h x 110w cm. Edition of 5.
Carnets de Marrakech n°1. 2017. Digital C-print on fine art paper. 110h x 110w cm. Edition of 5.


text:
Litigation counsel to various complex commercial litigation matters involving commercial contract disputes, fraud, intellectual property rights, and false advertising claims. Counsel on matters pending in Utah District Court, New Jersey District Court, California Federal District Court, Texas Federal District Court, Utah Federal District Court, Third Circuit Court of Appeals, Fifth Circuit Court of Appeals, Ninth Circuit Court of Appeals, Tenth Circuit Court of Appeals, and the Federal Circuit Court of Appeals.
Joined Holme Roberts & Owen in 2001, became a partner in 2003. Worked on numerous complex commercial litigation matters that involved securities litigation, professional malpractice, fraud, partnership disputes, and intellectual property rights. Served as Head of Litigation Group in Salt Lake City from January 2008 until December 2010. Worked closely with trial lawyer George Haley on several matters, including a successful five week jury trial.
Worked on several commercial litigation matters involving securities fraud, professional malpractice, eminent domain, and fiduciary duties of shareholders, officers and directors. Tried two cases as second chair to trial lawyer Bob Campbell. Assisted trial lawyer Dan Berman in four month jury trial.
iDrive, LLC v. IntegraCore, LLC, Fourth Judicial District Court, Utah Case No. 130400386. Lead counsel in breach of contract action brought by client for over $6,000,000. Affirmative summary judgment granted in favor of client in late 2015, case is currently on appeal in the Utah Court of Appeals.
Western Holdings, LLC et. al. v. Nutraceutical Development Corporation, Third Judicial District of Utah, Utah Case No. 110901416. Lead trial counsel in breach of contract action brought against client Western Holdings, LLC. Counterclaim Plaintiff asserted claims for damages in excess of $20,000,000. After a bench trial in August, 2015, the Utah District Court granted declaratory judgment in favor of client, dismissed all counterclaims asserted against client. No appeal was taken from the verdict.
NiGen Biotech, L.L.C. v. Paxton, Fifth Circuit Court of Appeals. Represented client NiGen Biotech, L.L.C. in bringing various Constitutional claims against the Texas Attorney General’s Office. Appeared before the 5th Circuit Court of Appeals and successfully argued that the various Constitutional claims asserted were not barred by 11th Amendment immunity. Published decision found at 804 F.3d 389 (5th Cir. 2015).
Rainbow v. Basic Research, LLC: Lead counsel for Basic Research, LLC in commercial dispute involving contract and agency claims. Represented client at the Utah Federal District Court and on appeal to the 10th Circuit Court of Appeals. Ultimate decision in favor of Basic Research, LLC, reported at 2013 U.S. App. LEXIS 1980 (10th Cir. 2013).
Slovik et. al. v. Peterson Partners, LLC, et. al.: Lead counsel for Peterson Partners in shareholder dispute. Peterson Partners was dismissed from the litigation by Court order.
Schering Plough Healthcare, Inc. v. Western Holdings, LLC: Lead counsel in successful defense of trademark holder in trial before the Trademark Trial and Appeal Board. Case settled during appeal to the Federal Circuit.
Shaw Resources v. Pruitt Gushes & Bachtell: Together with partner George Haley, successfully defended a law firm from a $250,000,000 legal malpractice claim. The final opinion dismissing this matter with prejudice is found at 142 P. 3rd 560 (Utah Ct. App 2006).
KN TransColorado v. Questar Corporation: Worked with attorneys George Haley and Robert Stolebarger to successfully defend Questar Corporation against a $500,000,000 claim for fraud and breach of fiduciary duty brought by Kinder Morgan. After a five-week jury trial, final judgment was entered dismissing all of Kinder Morgan’s claims and awarding Questar $110,000,000 on its counterclaim. No appeal was taken, and Questar recovered the entire judgment.
Klein-Becker USA, LLC v. Allergan, Inc.: Part of the legal team that defended a Utah company from $280,000,000 in trademark infringement and false advertising claims related to the BOTOX trademark. A confidential settlement was reached in this matter.
UDOT v. Peterson: Together with Robert Campbell, successfully tried condemnation case to Utah jury, recovering $2,200,000 for landowner.

matches: v. v. v. v. v. v. v. v. v. v.


text:
EOR: how severe can the radiation environment be?
Investigation of the electron emission proprieties of Ag: from technical Ag surface to ion-cleaned Ag surface.
Z. Iskanderova, J. Kleiman - Integrity Testing Laboratory Inc.
A. Grigorevski, L. Kisileva - Public Joint Stock Company “Kompozit"
C. Maag - T&M Engineering, Inc.
J. Kleiman, S. Horodetsky, V. Issoupov, V. Verba - Integrity Testing Laboratory Inc.
D.B. Margheritis, E.A. Nistico - Thales Alenia Space Italia S.p.a.
V. Issoupov, S. Horodetsky, J. Kleiman - Integrity Testing Laboratory Inc.
R. Khasanshin - OAO "Kompozit"
R. Khasanshin, A. Galygin - OAO "Kompozit"
J. Kleiman - ITL Inc.
K. Shabtai, D. Katsir - Acktar Ltd.
V. Issoupov, S. Horodetsky - ITL Inc.
M. Arnaout - Lebanese Int. Univ.
Z. Iskanderova, J.kleiman - integrity testing laboratory Inc.
A.G rigorevski - public Joint Sotck Company "Konpozit"
Y. Shibahashi - The PILOT Ink Co. Ltd.
T. Fujita, N. Furuta, A. Kitamura, H. Suzuki - Toagosei Co., Ltd.
M. Kawamura - Kawamura Research Laboratories, Inc.
T. Mccaul, K. Hassell - Airbus Defence and Space Ltd.
K. Mergia, K. Triantou, G. Vekinis - N.C.S.R. "Demokritos"
Short poster introductions: AO-LEO-Reentry, standards , flight exper.
K. Gotlib-Vainstein – Dpt. of Chemistry and Inst. for Nanotechnology and Advanced Materials, Bar-Ilan Univ.
O. Gershevitz – Inst. for Nanotechnology and Advanced Materials, Bar-Ilan Univ.
C. Sukenik - Dpt. of Chemistry and Inst. for Nanotechnology and Advanced Materials, Bar-Ilan Univ.
J. Kleiman, S. Horodetsky, V. Issoupov - Integrity Testing Laboratory Inc.
D. Katsir, K. Shabtai - Acktar Ltd.
ATOX erosion of polymers: some results and comparison of in-orbit data and on-ground data.
Application of the results obtained in the LEO environment for prediction of the material behavior in future missions exploring Moon and outer space: a critical view.
J. McKeever - GHGSat Inc.
V. Isbrucker - Isbrucker Consulting Inc.
D. Katsir, K. Shabtain – Acktar Ltd.
S. Baba - Advanced Engineering Services Co., Ltd.
N. Otsuka - Advanced Engineering Services Co., Ldt.

matches: V. V. V. V. V. V.


If you moved to Michigan from another state, you must register to vote in Michigan to be able to vote. The last day to register in time to vote in the next election is thirty days before the election.
If you moved from out of state, you are only eligible to register if you have been a resident of Michigan and your township, city, or village for at least thirty days prior to the election in which you want to vote. But under federal law, if you move within thirty days of a presidential election, you are allowed to vote for President and Vice President in your former state of residence, either in person or by absentee ballot.
If you moved within the same township, city or village, you can send the clerk a signed request, or apply in person to update your address. If you moved to a different township or city within Michigan, you should complete a new registration form to update your registration records. That form is available here:http://www.michigan.gov/documents/MIVoterRegistration_97046_7.pdf.
Many registered Michigan voters who move are still entitled to cast a ballot that will be counted — even if they did not notify the appropriate election official about the move before Election Day.
If you moved to a new address that is covered by the same polling place as your old address, you can vote a regular ballot at that polling place after confirming your change of address. This is true regardless of how close to the election you moved.
If you moved to a new address within the same city or township but with a different polling place, you can vote at the polling place associated with your old address after filling out a written transfer of registration request which lists your new address.
If you moved within 60 days of an election to a new address in a different city , township, or county, you can vote at the polling place associated with your old address after confirming in writing that you have moved.
 See Mich. Comp. Laws Ann. § 168.491 (West 2010).
 Mich. Comp. Laws Ann. § 168.497(1).
 Mich. Comp. Laws Ann. § 168.492.
 Mich. Comp. Laws Ann. § 168.506 (West 2010).
 Mich. Comp. Laws Ann. § 168.507b; see also Michigan Department of State, Michigan Votes: Registering and Voting in Michigan (2008), available at http://www.michigan.gov/documents/ED-130__97383_7.pdf.
 42 U.S.C § 1973gg-6(e)(1) (2010).
 Mich. Comp. Laws Ann. § 168.507(1) (West 2010).
 Mich. Comp. Laws Ann. § 168.507a(2).


text:
A. Stanescu, P. Fleck, D. Schmalstieg, and C. Arth, “Semantic Segmentation of Geometric Primitives in Dense 3D Point Clouds,” in Int. Symposium on Mixed and Augmented Reality (ISMAR), 2018.
M. Höll, M. Oberweger, C. Arth, and V. Lepetit, “Efficient Physics-Based Implementation for Realistic Hand-Object Interaction in Virtual Reality,” in IEEE Virtual Reality Conference (VR), 2018.
R. Roberto, J. P. Lima, H. Uchiyama, C. Arth, V. Teichrieb, R. Taniguchi, and D. Schmalstieg, “Incremental Structural Modeling Based on Geometric and Statistical Analyses,” in IEEE Winter Conference on Applications of Computer Vision (WACV), 2018, p. –.
C. Klug, C. Arth, D. Schmalstieg, and T. Gloor, “Measurement Uncertainty Analysis of a Robotic Total Station Simulation,” in IECON Proc. (Industrial Electron. Conf.), 2018.
booktitle = "IECON Proc. (Industrial Electron.
C. Klug, D. and Schmalstieg, T. Gloor, and C. Arth, “A Complete Workfow for Automatic Forward Kinematics Model Extraction of Robotic Total Stations Using the Denavit-Hartenberg Convention,” in IEEE Trans. Geosci. Remote Sens., 2018.
C. Klug, C. Arth, D. Schmalstieg, and T. Gloor, “Semi-Automatic Registration of a Robotic Total Station and a CAD Model Without Control Points,” in IECON Proc. (Industrial Electron. Conf.), 2018.
C. Klug, D. Schmalstieg, and C. Arth, “Measuring Human-made Corner Structures With a Robotic Total Station using Support Points, Lines and Planes,” in International Conference on Computer Vision Theory and Applications (VISAPP), 2017, p. –.
M. Hirzer, C. Arth, P. M. Roth, and V. Lepetit, “Efficient 3D Tracking in Urban Environments with Semantic Segmentation,” in British Machine Vision Conference (BMVC), 2017, p. –.
P. Fleck, C. Arth, and D. Schmalstieg, “Scalable Mobile Image Recognition for Real-Time Video Annotation,” in Int. Symposium on Mixed and Augmented Reality (ISMAR), 2016, p. –.
P. Fleck, D. Schmalstieg, and C. Arth, “Visionary Collaborative Outdoor Reconstruction using SLAM and SfM,” in Software Engineering and Architectures for Realtime Interactive Systems (SEARIS) @ IEEE VR, 2016, p. –.
A. D. Hartl, C. Arth, J. Grubert, and D. Schmalstieg, “Efficient Verification of Holograms Using Mobile Augmented Reality,” Transactions on Vizualization and Computer Graphics (TVCG), vol. 22, iss. 7, p. 1843–1851, 2016.
C. Arth, C. Pirchheim, J. Ventura, D. Schmalstieg, and V. Lepetit, “Instant Outdoor Localization and SLAM Initialization from 2.5D Maps,” IEEE Trans. Vis. Comput. Graph., vol. 21, iss. 11, p. 1309–1318, 2015.
P. Fleck, C. Arth, C. Pirchheim, and D. Schmalstieg, “Tracking and Mapping with a Swarm of Heterogeneous Clients,” in Int. Symposium on Mixed and Augmented Reality (ISMAR), 2015, pp. 136-139.
C. Poglitsch, C. Arth, D. Schmalstieg, and J. Ventura, “A Particle Filter Approach to Outdoor Localization using Image-based Rendering,” in Int. Symposium on Mixed and Augmented Reality (ISMAR), 2015, pp. 132-135.
C. Arth, R. Grasset, L. Gruber, T. Langlotz, A. Mulloni, and D. Wagner, “The History of Mobile AR,” Institute for Computer Graphics and Vision (ICG), Graz University of Technology, 2015-001, 2015.
C. Arth, C. Pirchheim, J. Ventura, and V. Lepetit, Global 6DOF Pose Estimation from Untextured 2D City Models, 2015.
A. Hartl, C. Arth, and D. Schmalstieg, “Real-time Detection and Recognition of Machine-Readable Zones with Mobile Devices,” in International Conference on Computer Vision Theory and Applications (VISAPP), 2015.
A. Hartl, J. Grubert, C. Reinbacher, C. Arth, and D. Schmalstieg, “Mobile User Interfaces for Efficient Verification of Holograms,” in IEEE Virtual Reality Conference (VR), 2015.
A. Hartl, A. Isop, C. Arth, and D. Schmalstieg, “Towards Mobile Recognition and Verification of Holograms using Orthogonal Sampling,” in International Workshop on Visual Recognition and Retrieval for Mixed and Augmented Reality (VRRMAR), held in conjunction with ISMAR, 2015, p. to appear.
J. Ventura, C. Arth, and V. Lepetit, “An Efficient Minimal Solution for Multi-Camera Motion,” in IEEE Int. Conference on Computer Vision (ICCV), 2015, p. –.
A. Hartl, C. Arth, and D. Schmalstieg, “AR-based Hologram Detection on Security Documents using a Mobile Phone,” in International Symposium on Visual Computing, 2014.
J. Ventura, C. Arth, and V. Lepetit, “Approximated Relative Pose Solvers for Efficient Camera Motion Estimation,” in Workshop on Computer Vision in Vehicle Technology, held in conjunction with ECCV, 2014.
J. Ventura, C. Arth, G. Reitmayr, and D. Schmalstieg, “A Minimal Solution to the Generalized Pose-and-Scale Problem,” in IEEE Conf. on Computer Vision and Pattern Recognition (CVPR), 2014.
J. Ventura, C. Arth, G. Reitmayr, and D. Schmalstieg, “Global Localization from Monocular SLAM on a Mobile Phone,” in IEEE Virtual Reality Conference (VR), 2014.
G. Reinisch, C. Arth, and D. Schmalstieg, “Panoramic Mapping on a Mobile Phone GPU,” in Int. Symposium on Mixed and Augmented Reality (ISMAR), 2013.
G. Reinisch and C. Arth, “Panoramic Mapping on Mobile Phone GPUs,” in Proceedings of CESCG 2013: The 17th Central European Seminar on Computer Graphics (non-peer-reviewed), 2013.
C. Arth, J. Ventura, and D. Schmalstieg, “Geospatial Management and Utilization of Large-Scale Urban Visual Reconstructions,” in The 4th International Conference on Computing for Geospatial Research & Application (COM.Geo 2013), 2013.
C. Arth, G. Reitmayr, and D. Schmalstieg, “Full 6DOF Pose Estimation from Geo-Located Images,” in Asian Conference on Computer Vision (ACCV), 2012.
C. Arth, A. Mulloni, and D. Schmalstieg, “Exploiting Sensors on Mobile Phones to Improve Wide-Area Localization,” in Int. Conference on Pattern Recognition (ICPR), 2012.
C. Arth, M. Klopschitz, G. Reitmayr, and D. Schmalstieg, “Real-Time Self-Localization from Panoramic Images on Mobile Devices,” in Int. Symposium on Mixed and Augmented Reality (ISMAR), 2011, p. 37–46.
Q. Pan, C. Arth, E. Rosten, G. Reitmayr, and T. Drummond, “Rapid Scene Reconstruction on Mobile Phones from Panoramic Images,” in Int. Symposium on Mixed and Augmented Reality (ISMAR), Washington, DC, USA, 2011, p. 55–64.
A. Hartl, L. Gruber, C. Arth, S. Hauswiesner, and D. Schmalstieg, “Rapid Reconstruction of Small Objects on Mobile Phones,” in Proceedings of the 7rd Workshop on Embedded Computer Vision , IEEE International Conference on Computer Vision and Pattern Recognition, 2011, p. 20–27.
A. Hartl, C. Arth, and D. Schmalstieg, “Instant Medical Pill Recognition on Mobile Phones,” in IASTED Int. Conference on Computer Vision, 2011, p. 188–195.
C. Arth and D. Schmalstieg, “Challenges of Large-Scale Augmented Reality on Smartphones,” in Workshop on Enabling Large-Scale Outdoor Mixed Reality and Augmented Reality, held in conjunction with ISMAR, 2011.
A. Hartl, C. Arth, and D. Schmalstieg, “Instant Segmentation and Feature Extraction for Recognition of Simple Objects on Mobile Phones,” in Proceedings of the IEEE International Workshop on Mobile Vision (IWMV) , IEEE International Conference on Computer Vision and Pattern Recognition, 2010.
C. Arth, D. Wagner, M. Klopschitz, A. Irschara, and D. Schmalstieg, “Wide Area Localization on Mobile Phones,” in Int. Symposium on Mixed and Augmented Reality (ISMAR), 2009, p. 73–82.
C. Arth, “Visual Surveillance on DSP-Based Embedded Platforms,” PhD Thesis, 2008.
C. Arth and H. Bischof, “Real-Time Object Recognition using Local Features on a DSP-based Embedded System,” Journal of Real-Time Image Processing (RTIP), vol. 2, pp. 233-253, 2008.
C. Arth, C. Leistner, and H. Bischof, “Embedded Computer Vision,” , B. Kisacanin, S. S. Bhattacharyya, and S. Chai, Eds., Springer, 2008, p. (79–100).
C. Arth, C. Leistner, and H. Bischof, “Robust Local Features and their Application in Self-Calibration and Object Recognition on Embedded Systems,” in Proceedings of the 3rd Workshop on Embedded Computer Vision , IEEE International Conference on Computer Vision and Pattern Recognition – BEST PAPER AWARD, 2007.
C. Arth, C. Leistner, and H. Bischof, “Object Reacquisition and Tracking in Large-Scale Smart Camera Networks,” in Proceedings of the IEEE International Conference on Distributed Smart Cameras, 2007.
C. Arth, F. Limberger, and H. Bischof, “Real-Time License Plate Recognition on an Embedded DSP-Platform,” in Proceedings of the 3rd Workshop on Embedded Computer Vision , IEEE International Conference on Computer Vision and Pattern Recognition, 2007.
M. Donoser, C. Arth, and H. Bischof, “Detecting, Tracking and Recognizing License Plates,” in Asian Conference on Computer Vision (ACCV), 2007, pp. 447-456.
S. Ober, M. Winter, C. Arth, and H. Bischof, “Dual-Layer Visual Vocabulary Tree Hypotheses For Object Recognition,” in Proceedings of the IEEE International Conference on Image Processing (ICIP’07), 2007, p. 345–348.
M. Winter, S. Ober, C. Arth, and H. Bischof, “Vocabulary Tree Hypotheses and Co-Occurrences,” in Proceedings of the 12th Computer Vision Winter Workshop (CVWW’07) – BEST PAPER AWARD, 2007.
C. Arth, C. Leistner, and H. Bischof, “TRICam – An Embedded Platform For Remote Traffic Surveillance,” in Proceedings of the 2nd Workshop on Embedded Computer Vision , IEEE International Conference on Computer Vision and Pattern Recognition, 2006.
M. Rouxel, C. Arth, and A. Kroepfl, “Real-Time Detection on the TRICam, an Intelligent Camera DSP-based for Efficient Video Surveillance of Remote Locations,” in presented at EDERS (European DSP Education and Research Symposium), Texas Instruments, 2006.
C. Arth, “Vehicle Classification using the ADA-Boost Algorithm,” Master Thesis, 2004.

matches: V. V. V. V. V. V. V.


After last week's House vote in favor of the DREAM Act and the Senate's fancy procedural footwork, it looks like the Senate will return to this important legislation this week. The Senate is expected to take up the House version, H.R. 6497.
I have sifted through H.R. 6497 to identify all the crime-based obstacles facing young people who would otherwise be eligible for lawful status under the House version. As a preliminary note, the proposal would create a "conditional nonimmigrant" status that would allow people who receive this status to live and work in the United States. H.R. 6497, § 3(3).
The House proposal would preclude individuals who are inadmissible or deportable under virtually all of the crime-based grounds currently included in the Immigration and Nationality Act (INA). H.R. 6497, § 4(a). Specifically, individuals who are inadmissible under the following INA provisions are not eligible for conditional nonimmigrant status: "	§ 212(a)(2): all the major crime-based grounds of inadmissibility, including a crime involving moral turpitude, a controlled substances offense, and two or more offenses of any type where the aggregate term of confinement was five years or more; "	§ 212(a)(6)(E): anyone who has "encouraged, induced, assisted, abetted, or aided" another noncitizen to enter the country unlawfully; "	§ 212(a)(10)(A): practicing polygamists; "	§ 212(a)(10)(C): anyone who refuses to comply with a child custody order issued by a court in the United States or helps someone else do this.
Similarly, individuals who are deportable under the following INA provisions are not eligible for conditional nonimmigrant status: "	§ 237(a)(1)(E): anyone who has "encouraged, induced, assisted, abetted, or aided" another noncitizen to enter the country unlawfully; "	§ 237(a)(2): all the major crime-based grounds of deportability, including one or multiple crimes involving moral turpitude, aggravated felonies, controlled substances offenses, firearms offenses, and domestic violence offenses.
Because anyone convicted of an aggravated felony is ineligible for conditional nonimmigrant status it is worth noting that the definition of aggravated felony (listed at INA § 101(a)(43)) consists of twenty-one sections many of which are divided into subparts. Aggravated felonies include many offenses that are not defined by state or other federal law as felonies and that are not typically considered "aggravated."
Importantly, many of these grounds of inadmissibility and deportability have exceptions or waivers that apply. Also, I have only listed here bases of ineligibility for conditional nonimmigrant status that are frequently prosecuted as crimes. The House legislation includes several non-criminal bases of ineligibility that I have not included.
The House legislation also precludes individuals who have been convicted of "any offense under Federal or State law punishable by a maximum term of imprisonment of more than 1 year." H.R. 6497, § 4(a)(C)(iv)(I). The "term of imprisonment" language is not new to immigration law. It is interpreted to mean that a sentence of one year or more of prison time could have been imposed even if it wasn't actually imposed. Sentences that are "suspended" by the criminal court would seem to fall within this provision. As such, a person who was convicted of a crime that is punishable by one year of imprisonment but has spent no time in jail could be ineligible for conditional nonimmigrant status.
The House version also precludes individuals who have been convicted of "3 or more offenses under Federal or State law, for which the alien was convicted on different dates for each of the 3 offenses and sentenced to imprisonment for an aggregate of 90 days or more." H.R. 6497, § 4(C)(iv)(II). Again, the "sentenced to imprisonment" language suggests that a person does not need to have spent ninety days in jail to be ineligible under this provision.
Importantly, the INA explicitly defines "conviction" in a manner that is different from state and other federal law insofar as it includes criminal dispositions (such as a deferred adjudication) that do not result in entry of a conviction in state criminal proceedings. INA § 101(a)(43)(A).
The House legislation grants the Secretary of Homeland Security the power to waive some crime-based grounds of inadmissibility-INA § 212(a)(6)-and deportability-INA § 237(a)(1)-"for humanitarian purposes or family unity or when it is otherwise in the public interest." Only time will tell how "humanitarian purposes," "family unity," or "public interest" would be interpreted.
Having a record free of any of these offenses at the time of initial application for conditional nonimmigrant status is not enough. A person who receives conditional nonimmigrant status and subsequently commits one of these crime-based grounds of inadmissibility or deportability loses the conditional nonimmigrant status. H.R. 6497, § 5(c).
Furthermore, because H.R. 6497 requires that a person who is granted conditional nonimmigrant status reapply after five years, committing one of these offenses in the intervening period will result in denial of an extension. H.R. 6497, § 5(d)(1)(B). An applicant for extension must also have maintained "good moral character" during that period, a term that is defined at INA § 101(f) to include "habitual drunkard[s]" and people who illegally gamble, among others. H.R. 6497, § 5(d)(1)(A).
Overall, news reports that the DREAM Act would only benefit individuals with a "clean" criminal record are correct.
César Cuauhtémoc García Hernández is an assistant professor at Capital University Law School and of counsel at the Law Offices of Raúl García & Associates. He writes the blog crImmigration.com.


In another blow to school districts’ ability to address problem teachers, the New York State Court of Appeals recently upheld the Appellate Division, Fourth Department decision in Kilduff v. Rochester City School District, invalidating a negotiated, contractual disciplinary procedure for tenured teachers.
In Kilduff, the school district’s collective bargaining agreement with the teachers’ union contained a decades-old provision requiring that all discipline, other than termination, be submitted to the grievance and arbitration procedure in the CBA as an alternative to the procedures required by Education Law § 3020-a. In 1994, the legislature amended Education Law § 3020 to require that all negotiated disciplinary procedures covering tenured faculty must provide teachers with the option to elect § 3020-a procedures instead of the negotiated procedures. The statute grandfathered provisions in collective bargaining agreements entered into prior to September 1, 1994 and not subsequently altered, or so the school district and union thought.
In September 2011, Ms. Kilduff received a 30-day disciplinary suspension. Since the disciplinary procedures in the CBA covering Ms. Kilduff pre-dated the 1994 amendment, the school district implemented the suspension. When Ms. Kilduff requested a § 3020-a hearing, the school district denied Ms. Kilduff’s request and referred her to the grievance procedure in the CBA, as the district and the teachers’ union had done without question for the prior seventeen years.
Ms. Kilduff filed a petition in Monroe County Supreme Court alleging that her right to a hearing under Education Law § 3020-a was violated. Agreeing with the school district, the Supreme Court denied the petition. Upon appeal, the Fourth Department reversed, holding that, although the disciplinary procedures in the CBA had not been altered since 1994, because the CBA had been revised, the provision was no longer grandfathered. Therefore, according to the Fourth Department, the school district was required to offer Ms. Kilduff the option of a § 3020-a hearing. As noted above, the Court of Appeals agreed with the Fourth Department and upheld the appeal.
While this decision affects only those school districts that had alternative disciplinary procedures pre-dating September 1, 1994, it serves as a reminder to all school districts (and unions) that the overly burdensome § 3020-a process cannot be negotiated away.


Arizona educational statutes recognize online instruction as an acceptable form of secondary education, and the Arizona State Board of Charter Schools approved Primavera Online High School (POHS), located in Chandler, Arizona, as an online instructional school in Arizona. POHS is, therefore, an educational institution for SSA purposes.
Does Joshua’s attendance at the Primavera Online High School qualify as an acceptable independent study program under Arizona law?
Yes. The Primavera Online High School qualifies as educational institution under federal law, and its internet-based (online) program provides an acceptable form of approved independent study under Arizona law.
Joshua, a recipient of child’s insurance benefits under Title II of the Social Security Act, attends classes at Primavera Online High School, an internet-based school. He has been attending Primavera since August 2009. The Arizona State Board of Charter Schools approved Primavera as an Arizona online instructional school. The Arizona State Board of Charter Schools provides a list of approved online instructional schools. Primavera’s charter is held by Primavera Technical Learning Center. See Arizona State Board of Charter Schools List of Distance Learning Charter Schools, available at http://www.asbcs.az.gov/userfiles/Distance%20Learning%20Schools%20List%20Revised%20format%209-13-11.pdf (last visited on Sept. 16, 2011).
On Form SSA-1372-BK, Joshua reported attending online classes at Primavera between 25 to 30 hours per week. He expected to graduate in May 2011. A guidance counselor from Primavera certified under penalty of perjury on the same form that Joshua correctly reported his school attendance and that his program would last at least 13 weeks.
To be eligible for child’s insurance benefits between the ages of 18 and 19, the child must be in full-time attendance (FTA) at an educational institution (EI) that provides elementary or secondary courses. Social Security Act § 202(d)(1)(B), 42 U.S.C. § 402(d)(1)(B); 20 C.F.R. § 404.367; Program Operations Manual System (POMS) RS 00205.001(A). A student will be considered enrolled in an EI if he or she participates in an independent study program acceptable under the state’s educational statutes. See 20 C.F.R. § 404.367(a)(2); POMS RS 00205.250(B)(5); RS 00205.285(C)(2). With certain limited exceptions, FTA is defined as 20 hours per week. 20 C.F.R. § 404.367(c). For an independent study school, “the number of hours spent in school attendance are determined by combining the number of hours of attendance at a school facility with the agreed upon number of hours spent in independent study.” Id.
Arizona educational statutes recognize online instruction as an acceptable form of secondary education. Arizona also permits charter schools as “public schools that serve as alternatives to traditional public schools.” Ariz. Rev. Stat. Ann. § 15-181(A). Pursuant to Arizona Revised Statute § 15-808, the Arizona State Board of Charter Schools has authority to sponsor selected charter schools as an “online schools.” Ariz. Rev. Stat. Ann. § 15-808(A). Arizona law defines an online school as “a school that provides at least four online academic courses or one or more online courses for the equivalent of at least five hours each day for one hundred eighty school days.” Ariz. Rev. Stat. Ann. § 15-808(I)(3). Arizona law requires the State Board of Charter Schools to annually report which schools participate in Arizona online instruction. Ariz. Rev. Stat. Ann. § 15-808(C). State law further requires that online public and charter schools must keep daily logs of the amount of time each participating pupil spends on academic tasks, as part of the school’s daily attendance calculations. Ariz. Rev. Stat. Ann. § 15-808(E).
The Arizona State Board of Charter Schools approved Primavera as an Arizona online instructional school. Primavera also received accreditation through the North Central Association on Accreditation and School Improvement (NCA CASI). See Primavera school website at http://www.primaveratech.org/Online-High-School/aboutourschool/qualityeducation.aspx. As an approved school, Primavera is required to offer a comprehensive program of instruction meeting the State’s grade level and graduation requirements. See Ariz. Rev. Stat. Ann. § 15-808. Primavera is therefore an approved public school that offers its instruction online.
Because Primavera is a public online educational program approved by the State of Arizona, it qualifies as an acceptable independent study program under the regulations and POMS RS 00205.285. Here, both Joshua and the school guidance counselor have certified that Joshua would “attend” the on-line school 25-30 hours per week for the entire school year. See POMS RS 00205.300(B) (“Consider the State requirements met if the school considers the student to be full-time based on the school’s standards and practices for day students.”). Primavera’s website explains that courses consist of 30 lessons that are completed at the student’s own pace. http://www.primaveratech.org/Online-High-School/academics/ourclassroom.aspx. Although Joshua will not be attending classes in a classroom, FTA requirements are satisfied when the student spends the requisite number of hours in independent study. See 20 C.F.R. § 404.367(c). Based on the information provided on Form SSA1372 BK, Joshua appears to have satisfied agency requirements for FTA. The information provided for our review did not include any additional detail regarding Joshua’s individualized course of study that would account for the 25-30 hours of independent study per week. Additional development to ensure that Joshua met all agency requirements may be warranted. See POMS RS 00205.285(C) (explaining that the field office should obtain as much information as possible about the school, including any written agreement between the school and the student, and the school’s attendance requirements); see also Ariz. Rev. Stat. Ann. § 15-808(E) (requiring online schools to keep logs of student academic tasks for attendance purposes). See 20 C.F.R. § 404.367(c); POMS RS 00205.300; see also RS 00205.735(A) (explaining student’s responsibility to submit a completed Form SSA-1372-BK or its equivalent).
Primavera Online High School qualifies as an educational institution under 20 C.F.R. § 404.367 and POMS RS 00205.285. Assuming Joshua attended Primavera according to his intended 25-30 hours per week, he met the requirements for full-time attendance at a qualified independent study program.