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United States v. Kar

United States Court of Appeals, First Circuit

March 13, 2017

ERNEST KAR, Defendant, Appellee.


          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.

          Before Lynch, Lipez, and Thompson, Circuit Judges.

          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 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 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 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 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 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 ...

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