United States v. Kar

United States Court of Appeals
For the First Circuit
No. 15-1608
UNITED STATES OF AMERICA,
Appellee,
v.
ERNEST KAR,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Lipez, and Thompson,
Circuit Judges.
Alan D. Campbell for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.
March 13, 2017
LIPEZ, Circuit Judge. At the conclusion of a four-day
trial, a jury convicted defendant-appellant Ernest Kar on three
counts of bank fraud and one count of conspiracy to commit bank
fraud in violation of 18 U.S.C. §§ 1344 and 2. The district court
subsequently sentenced Kar to ninety-three months of imprisonment
and ordered him to pay $532,152 in restitution. Kar appeals his
conviction, arguing that the district court (1) deprived him of his
Sixth Amendment right to effective counsel by refusing to grant his
request for a new lawyer; (2) further deprived him of his Sixth
Amendment right to counsel by allowing Kar to represent himself at
trial when he had not unequivocally waived that right; and (3)
abused its discretion when it declined to dismiss a juror for
potential bias.
Because we find the district court committed no error, we
affirm Kar's convictions.
I.
A. Kar's Requests for Substitute Counsel and Self-Representation
In April 2014, Kar was arrested and charged with
committing bank fraud and conspiracy to commit bank fraud, related
to a counterfeit check cashing scheme that he was running in Rhode
Island, Massachusetts, and New Hampshire. Attorney Melissa Larsen
was appointed to represent him the following month.
Kar filed a pro se motion seeking substitute counsel on
September 8, 2014, accusing Larsen of neglecting to keep him current
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on his case and failing to oppose government motions for extensions
of time.1 The court held a hearing a week later, in which Larsen
stated that she had kept Kar apprised of his case and that she had
been attempting to secure him a plea deal. The court then asked
the government to leave, sealed the courtroom, and apparently
engaged in an untranscribed conversation with Kar and Larsen. Upon
reopening the record, the court denied Kar's motion.
The following month a federal grand jury issued an eight-
count indictment, charging Kar with five counts of committing bank
fraud, one count of conspiracy to commit bank fraud, and two counts
of aggravated identity theft.2 At his October 2014 arraignment,
Kar orally asked the district court to appoint substitute counsel.
At a subsequent hearing on that request, Kar stated that although
he and Larsen had "some things to iron up," it was their "hope [to]
continue." Accordingly, Larsen continued to represent Kar.
Kar's satisfaction was short-lived; he requested new
counsel for a third time -- this time by way of a pro se written
1 The government filed three motions to extend the time period
to file an indictment or information against Kar -- as required by
the Speedy Trial Act, 18 U.S.C. § 3161(b) -- while it engaged in
plea negotiations with Larsen.
2 Soon after the indictment was issued, the court
dismissed -- at Larsen's request -- one of the bank fraud counts
and both of the aggravated identity theft counts. It also dismissed
a second bank fraud count at the government's request just before
Kar's trial commenced, leaving three counts of bank fraud and one
count of conspiracy to commit bank fraud to be tried before the
jury.
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motion -- in November 2014. At a hearing on December 9, Kar
expressed a number of concerns: Larsen was not effectively
communicating with him; she failed to defend him against a number
of charges supposedly committed while he was in custody;3 and she
had failed to secure bail. The district court expressed skepticism
about his complaints, warned Kar that it believed he had "a
fundamental misunderstanding of what the evidence [was] in the case
and what the obligations of the government and [Kar's] lawyer were,"
and ultimately denied his motion.
Kar filed yet another pro se motion in January 2015,
again seeking new counsel, or, in the alternative, permission to
exercise his Sixth Amendment right of self-representation. In this
motion Kar complained that Larsen failed to (1) hire an investigator
to counter the government's case, (2) subpoena Kar's phone records
to support his defense, (3) prepare a bond package that Kar had
requested, and (4) negotiate a plea deal that satisfied Kar's sense
of reasonableness. Kar also argued that his relationship with
Larsen had become "irreconcilable" and that communication between
the two of them was "irretrievably broken."
Larsen filed a response to Kar's motion, stating that she
had met with Kar on eight occasions and corresponded with him in
writing thirteen times. Additionally, she asserted that she had
3
Larsen had, in fact, convinced the prosecutor to dismiss the
charges to which Kar was referring. See supra note 2.
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provided Kar with complete copies of all discovery provided by the
government, described her active role in the plea bargaining
process, and recounted that she obtained dismissal of three of the
counts in the indictment based upon information that Kar had
provided to her.4
Kar subsequently sent a letter to the district court
stating that he had wanted to negotiate a guilty plea, but Larsen
had not given him any information about his possible sentence other
than the statutory maximum. He also complained that Larsen had
failed to obtain a pre-sentence report from the probation department
outlining his calculated offense level, criminal history range, and
potential Guidelines sentencing range.
The district court held a hearing on Kar's latest motion
for new counsel on January 29. At the hearing, Kar recounted his
qualms with Larsen. The court then explained to him that pre-
sentence reports are drafted by the probation office only after a
defendant has been convicted by a jury or entered a guilty plea.
After the court indicated that it would not grant his
motion for new counsel, Kar stated that he wished to exercise his
Sixth Amendment right to proceed pro se. At first, the court was
disinclined to allow Kar to represent himself because it viewed him
4 Additionally, two days after responding to Kar's motion for
substitute counsel, Larsen filed two motions in limine and a
pretrial memorandum on his behalf.
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as "completely ignorant of the law." After a recess, however, the
court chose to engage with Kar in the colloquy prescribed by Faretta
v. California, 422 U.S. 806 (1975), which held that a criminal
defendant has a Sixth Amendment right to self-representation so
long as the defendant relinquishes the "traditional benefits
associated with the right to counsel . . . knowingly and
intelligently." Id. at 835 (internal quotation marks omitted).
Following a thorough discussion with Kar in which the court warned
him of the consequences of proceeding pro se, Kar maintained that
he still desired to represent himself. The court consequently
granted his request and appointed Larsen to be his standby counsel.
At jury selection, the magistrate judge also engaged in
a colloquy with Kar regarding his decision to proceed pro se. She
again warned Kar about the consequences of representing himself,
and then asked if he understood the risks he was taking. Although
Kar responded that he did, he complained that he was "forced" to
represent himself because his motions for new counsel were denied.
He also protested that he was not prepared for trial.
After explaining to Kar that she was "not in a position
to grant [him] an extension," the magistrate again offered him the
option of counsel:
You need to choose: Do you wish to proceed pro
se, or, do you wish to re-engage with Ms. Larsen
as your attorney? She is a very competent and
well-respected member of the bar of this court.
But, that is your decision. Is it still your
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wish to remain pro se, understanding the
seriousness of what you're facing?
Kar replied that he had "no choice but to go pro se" because there
was a "complete communication breakdown for the past nine months"
and reiterated: "[I]f I cannot be appointed new counsel, then I
have no choice . . . this court is forcing me to go pro se, and I'm
going to go pro se." Jury selection thus proceeded with Kar
representing himself, though he conferred with Larsen at least seven
times during the jury selection process.
On the first day of trial, the district court again warned
Kar before the entry of any evidence that she believed he was making
a "bad decision" by proceeding pro se, but Kar nonetheless chose
not to heed the judge's warnings. Although Kar protested Larsen's
presence as his standby counsel just before lunch on the second day
of trial, the court told him that it was not willing to replace
Larsen with another attorney. Kar did not complain about Larsen
again, and he continued to confer with her throughout the remainder
of the four-day trial.
B. Juror Number One
On the first day of the trial, before the jury was brought
into the courtroom, the government informed the court that it had
learned that morning that its paralegal -- who had not been present
for jury selection but was in court that day -- personally knew
Juror Number One. Specifically, the prosecutor stated that the
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paralegal was "friendly with Juror Number One's sister," that she
"kn[ew] . . . Juror Number One for quite a few years," and that
"she tells me she sees her maybe once a year, but they are on some
social net media together." In response to this information, the
court brought Juror Number One into the courtroom and engaged in
the following colloquy:
COURT: [I]t has come to our attention that
despite all of the questioning that occurred
here during jury selection, apparently the
paralegal who works for the United States
Attorney's Office and who is in court here
today is someone who knows you. . . .
JUROR: Yes.
COURT: So can you tell me what the nature of
your relationship is?
JUROR: Family friend.
COURT: Okay. How frequently do you see her
or speak to her either in person or even through
social media?
JUROR: Not through social media, not very
often. My sister babysits for her pretty
frequently; I have maybe once or twice.
COURT: Okay. And have you ever discussed
this case with her?
JUROR: No.
COURT: Have you ever discussed her work in
the United States Attorney's Office?
JUROR: No.
Court: Is there anything about that
relationship with [the paralegal] that would
make it difficult for you to listen to the
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evidence in this case and listen to the
instructions on the law and render a fair and
impartial verdict?
JUROR: No.
COURT: You're sure of that?
JUROR: Yes.
The judge then asked if the prosecutor had any further questions.
He did not. She next asked Kar if he had any questions. Kar
conferred with Larsen and -- without asking the juror any questions
-- requested that the court strike the juror due to her personal
connection to the paralegal. Without asking the government for its
position on Kar's request, the court denied it and cautioned the
juror "not to discuss the matter at all with [her] sister and
obviously not at all with [the paralegal]." The juror agreed, and
the trial began.
II.
The four-day trial culminated with the jury returning a
guilty verdict on all counts. The district court subsequently
sentenced Kar to eighty-four months of imprisonment, and ordered
him to pay $532,152 in restitution. Because Kar was on supervised
release for a prior federal conviction when he committed the crimes,
the court sentenced him to an additional nine months of
incarceration to be served consecutively to his sentence of
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conviction for a total of ninety-three months of imprisonment. This
timely appeal followed.5
Kar advances three claims on appeal. First, he argues
that the district court violated his Sixth Amendment right to
effective assistance of counsel when it denied his repeated motions
for new counsel, forcing him to choose between proceeding with
ineffective counsel or proceeding pro se. Second, Kar insists that
his waiver of counsel was not unequivocal, as required by law,
because he vacillated when expressing his desire to proceed pro se
under questioning by both the district court judge and the
magistrate judge. Finally, Kar argues that the district court
abused its discretion by not removing Juror Number One from the
panel -- or at a minimum designating her an alternate when two
alternates were available -- thus compromising the jury's
impartiality. We address each of Kar's arguments in turn.
5
Although Kar's pro se notice of appeal specifically
restricted the issues to be argued on appeal to a number of
sentencing factors, he now seeks to challenge the merits of his
conviction with the benefit of counsel. "[B]ecause the merits of
the appeal favor the appellee, we will bypass the jurisdictional
issue" concerning the scope of Kar's notice of appeal. United
States v. Woods, 210 F.3d 70, 74 (1st Cir. 2000) The defects in
the notice of appeal do not bear upon Article III subject matter
jurisdiction, and, hence, do not prevent us from addressing Kar's
appeal. See id., at 74 n.2 (1st Cir. 2000) (noting that this
circuit construes the Supreme Court's ban on "hypothetical
jurisdiction" to apply only to Article III subject matter
jurisdiction).
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A. Kar's Motions for New Appointed Counsel
Criminal defendants have a fundamental right of
representation by effective counsel throughout the trial process.
Johnson v. Zerbst, 304 U.S. 458, 467-68 (1938); see also United
States v. Proctor, 166 F.3d 396, 401 (1st Cir. 1999). Still, the
Sixth Amendment does not provide an unfettered right to appointed
counsel of a defendant's choosing. United States v. Jones, 778
F.3d 375, 388 (1st Cir. 2015). "[T]he essential aim of the [Sixth]
Amendment is to guarantee an effective advocate for each criminal
defendant rather than to ensure that a defendant will inexorably be
represented by the lawyer whom he prefers." Wheat v. United States,
486 U.S. 153, 159 (1988). District courts, in some circumstances,
may force criminal defendants to choose between effective
representation by unwanted counsel and proceeding pro se. See,
e.g., Jones, 778 F.3d at 388; Proctor, 166 F.3d at 402.
We review a district court's decision denying a
defendant's motion for new counsel for abuse of discretion. United
States v. Francois, 715 F.3d 21, 29 (1st Cir. 2013). We analyze
the district court's decision based upon three factors set forth in
United States v. Allen, 789 F.2d 90, 92 (1st Cir. 1986): "(1) the
timeliness of the motion; (2) the adequacy of the court's inquiry
into the defendant's complaint; and (3) whether the conflict between
the defendant and his counsel was so great that it resulted in a
total lack of communication preventing an adequate defense."
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Francois, 715 F.3d at 28 (quoting United States v. Hicks, 531 F.3d
49, 54-55 (1st Cir. 2008)).
Kar first asked for new counsel in September 2014.
Although he appeared to reconcile with Larsen for a short period
thereafter, he consistently sought new counsel for more than two
months leading up to his trial. We agree with his assertion that
the request for substitute counsel was timely.
We do not, however, agree with Kar's contention that the
court "refused to let [him] air all his complaints." The district
court engaged with Kar and Larsen no fewer than four times in an
attempt to determine whether appointing new counsel was
appropriate. At two separate hearings scheduled specifically for
the purpose of addressing Kar's motions for new counsel, the court
exhaustively probed both Kar and Larsen to ascertain the quality of
communication between them. The court eventually limited Kar's
efforts to speak, but it did so only after ensuring it had an
adequate understanding of his position. As in Allen, the court
"invited [Kar] to make a statement, listened to his reasons for
being dissatisfied with his counsel, and found them to be without
merit." 789 F.2d at 93.
Nor did Kar experience "a total lack of communication
[with counsel] preventing an adequate defense." Id. at 92. Kar
withdrew his initial grievances concerning Larsen at his October
2014 hearing when he told the court that it was his "hope [to]
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continue the way it is" with Larsen as his attorney. Only from
November onward did he steadfastly insist upon new representation.
But Larsen maintained that the two continued to communicate, stating
that she had met with Kar personally on eight occasions -- twice
after their alleged communication break in November -- and
corresponded with him in writing a total of thirteen times. She
further asserted that she had provided Kar with a comprehensive
copy of discovery and obtained dismissal of three counts based on
information he provided to her.6
Kar's actual grievance was not that he and Larsen were
failing to communicate, but instead that he simply disliked the
substance of Larsen's advice. Disfavoring counsel's guidance is
distinct from failing to communicate with counsel, and the third
Allen prong does not guarantee "the right to a 'meaningful
relationship' between an accused and his counsel." United States
v. Machor, 879 F.2d 945, 952 (1st Cir. 1989) (quoting Morris v.
Slappy, 461 U.S. 1, 14 (1983)). Hence, we agree with the district
court's determination that there was no breakdown in communication
between Kar and Larsen, and we conclude that the district court did
6
Kar's conduct subsequent to the court's denial of substitute
counsel bolsters its conclusion that Kar and Larsen had not
experienced a total breakdown of communication. Even after Kar
proceeded pro se, he continued to confer with Larsen numerous times
during jury selection and throughout his trial.
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not abuse its discretion when it denied Kar's motion for
substitution of counsel.
B. Kar's Waiver of His Right to Appointed Counsel
Kar's second argument is related to his first. He
contends that the district court denied his Sixth Amendment right
to an attorney by allowing him to represent himself at trial. We
review a trial court's decision to allow a defendant to proceed pro
se for abuse of discretion. United States v. Woodard, 291 F.3d 95,
109 (1st Cir. 2002).
Although the Sixth Amendment guarantees criminal
defendants the right to effective assistance of counsel, defendants
maintain an alternative right to self-representation. United
States v. Robinson, 753 F.3d 31, 42 (1st Cir. 2014) (citing Faretta,
422 U.S. at 817). Nonetheless, "'[b]ecause of the disadvantages to
a defendant that inure from pro se representation, a defendant must
"knowingly and intelligently" waive his right to counsel before he
may be permitted to proceed pro se.'" Francois, 715 F.3d at 29-30
(quoting United States v. Kneeland, 148 F.3d 6, 11 (1st Cir. 1998)).
Hence, before a judge can allow a criminal defendant to
proceed pro se, she is required to engage in what is sometimes
called a "Faretta colloquy." A judge must examine the defendant,
"'indulge in every reasonable presumption against waiver of the
right to counsel,' and 'investigate as long and as thoroughly as
the circumstances of the case before [her] demand.'" Robinson, 753
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F.3d at 43 (quoting Proctor, 166 F.3d at 401-02). Typically, when
a defendant challenges a trial court's decision permitting him to
represent himself, the defendant attacks the comprehensiveness of
the district court's Faretta inquiry. See, e.g., Jones, 778 F.3d
at 389-90; Robinson, 753 F.3d at 42; Francois, 715 F.3d at 30.
Here, Kar does not dispute the adequacy of the district court's
questioning, nor do we find any flaws with the court's exhaustive
examination of Kar.
Instead, Kar raises a slightly more nuanced challenge,
claiming that he did not surrender his right to counsel by using
"unequivocal language." Woodard, 291 F.3d at 109 ("A defendant who
seeks to relinquish her right to counsel must so state in
unequivocal language."); see also Jones, 778 F.3d at 389; Robinson,
753 F.3d at 42. After the district court engaged in a comprehensive
Faretta colloquy in which it warned Kar of the serious consequences
of waiving his right to counsel, the court asked Kar, "[W]ith those
warnings in mind, do you still wish to represent yourself at trial?"
Kar replied, "Yes, your Honor." The court then appointed Larsen as
standby counsel and explained to Kar her role. But it also warned
him that even with standby counsel, it ultimately would be Kar,
himself, who would be responsible for his defense, stating, "I want
to make sure you're going into [the trial process] with your eyes
wide open. Do you understand that?" Kar replied, "Absolutely."
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Kar's choice to represent himself could not have been stated more
unequivocally.
Yet Kar points to a stray comment he made shortly after
his Faretta colloquy: "I just need an attorney who will just
prepare my defense at trial." This comment, however, was not made
in the context of the Faretta inquiry. Instead, it was simply an
attempt to relitigate his dissatisfaction with the court's denial
of his motion for substitute counsel, and, as he puts it, the
"Hobson's Choice" that he faced between proceeding with an attorney
whom he no longer wanted and representing himself. We have rejected
this exact argument in the past. See, e.g., Francois, 715 F.3d at
28-29 (rejecting defendant's "Hobson's Choice" argument); Proctor,
166 F.3d at 402 ("We repeatedly have held that, in appropriate
circumstances, a trial court may force a defendant to choose between
proceeding to trial with an unwanted attorney and representing
himself.").7
There is no question that Kar's decision to waive his
right to counsel was knowing, intelligent, voluntary, and
unequivocal. He even cited Faretta in his motion to persuade the
district court judge to allow him to proceed pro se. See Robinson,
753 F.3d at 44-45 (noting that defendant's knowledge and citation
7 Kar's similar complaints lodged with the magistrate judge at
jury selection six days after unequivocally surrendering his right
to counsel are equally unpersuasive.
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of Faretta is additional evidence of the voluntary and intelligent
nature of waiving the Sixth Amendment right to counsel and the risks
involved therein). Hence, the district court did not abuse its
discretion by allowing Kar to waive his Sixth Amendment right to
counsel and represent himself at trial.
C. Juror Number One
Kar argues that the district court undermined his Sixth
Amendment right to a trial by an impartial jury by not granting his
request to dismiss Juror Number One -- or at least demoting her to
the role of alternate -- when the court discovered that she was a
personal friend of the government's paralegal.
The presence of merely one biased member on a criminal
jury requires reversal. Parker v. Gladden, 385 U.S. 363, 366 (1966)
(per curiam); United States v. Godfrey, 787 F.3d 72, 81 (1st Cir.
2015). The Supreme Court instructs us that "[a] trial court's
findings of juror impartiality may be overturned only for manifest
error." United States v. Casellas-Toro, 807 F.3d 380, 385 (1st
Cir. 2015) (quoting Mu'Min v. Virginia, 500 U.S. 415, 428 (1991)).
Under this stringent standard of review, we have consistently stated
that we will reverse district court determinations regarding juror
bias only where there has been a "clear abuse of discretion."
Godfrey, 787 F.3d at 81; see also, e.g., United States v. Lowe, 145
F.3d 45, 48 (1st Cir. 1998). Hence, when we review assessments of
juror partiality, "the deference due to district courts is at its
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pinnacle." Skilling v. United States, 561 U.S. 358, 396 (2010);
see also Godfrey, 787 F.3d at 81.
Jurors may be biased in two ways. A juror's answers to
questions on voir dire might display personal bias, which is
referred to as "bias in fact." Godfrey, 787 F.3d at 81.
Alternatively, a juror's life circumstances or relationship to one
of the parties -- regardless of how the juror answers questions
related to his or her impartiality on voir dire -- can reveal a
"bias as a matter of law."8 Godfrey, 787 F.3d at 81.
Juror Number One expressed no bias in fact. She asserted
that she had never spoken to the paralegal about Kar's case
specifically, or the paralegal's work generally. Moreover, she
affirmed that she was "sure" her prior relationship with the
paralegal would not prevent her from considering the evidence,
listening to the judge's instructions, and rendering a fair and
impartial verdict. There is nothing in the record to indicate that
the juror's statements were dishonest.
Nor can we say that the juror posed any bias as a matter
of law, which only occurs in "'exceptional' or 'extreme'
circumstances." United States v. Burgos-Montes, 786 F.3d 92, 111
(1st Cir. 2015) (quoting Smith v. Phillips, 455 U.S. 209, 222 (1982)
8
We sometimes refer to bias as a matter of law as "implied
bias." See Godfrey, 787 F.3d at 81 (characterizing "bias as a
matter of law" as "implied bias").
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(O'Connor, J., concurring)). In her concurrence in Smith, Justice
O'Connor provided a non-exhaustive list of circumstances that might
trigger a finding of bias as a matter of law. 455 U.S. at 222.
They include "a revelation that the juror is an actual employee of
the prosecuting agency, that the juror is a close relative of one
of the participants in the trial or the criminal transaction, or
that the juror was a witness or somehow involved in the criminal
transaction." Id.
Kar argues that although Juror Number One was not an
employee of the prosecuting agency, she "may have been an employee
of a member of the prosecution team." This characterization
exaggerates the juror's relationship with the paralegal.
Babysitting for the paralegal "maybe once or twice" is a far cry
from the employer-employee relationship with the prosecuting agency
condemned by Justice O'Connor. Nor does the relationship mirror
any of the other problematic conflicts highlighted in Smith. Juror
Number One's relationship with the paralegal did not constitute
bias as a matter of law, and the district court did not commit a
clear abuse of discretion by allowing her to serve.9
Affirmed.
9 The government indicated at oral argument that in the future
it plans to include the names of its paralegals on its list of
attorneys and witnesses at jury empanelment. We think this is a
wise decision. If the government had followed that practice here,
this issue could have been avoided.
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