FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
RHODE ISLAND [Hon. Mary M. Lisi, U.S. District Judge]
D. Campbell for appellant.
C. Lockhart, Assistant United States Attorney, with whom
Peter F. Neronha, United States Attorney, was on brief, for
Lynch, Lipez, and Thompson, Circuit Judges.
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
we find the district court committed no error, we affirm
A. Kar's Requests for Substitute Counsel and
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.
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. 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.
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. 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
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; 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.
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
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.
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.
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
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.
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.
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
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.
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 ...