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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