USA v. Tamar Lee

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10527
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAMAR LEE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cr-00017-ELR-CMS-2
____________________
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2 Opinion of the Court 22-10527
Before JILL PRYOR, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Tamar Lee, proceeding with counsel, appeals her conviction
for conspiracy to defraud the United States under 18 U.S.C. § 371,
on the grounds that the district court failed to conduct a meaning-
ful Faretta1 hearing before allowing her to proceed pro se at trial,
and therefore failed to ensure that she knowingly and voluntarily
waived her Sixth Amendment right to counsel.
Whether a defendant’s waiver of her Sixth Amendment
right to counsel was knowing and voluntary is a mixed question of
law and fact that we review de novo. United States v. Hakim, 30 F.4th
1310, 1318 (11th Cir. 2022), cert. denied, 143 S. Ct. 776 (2023). On
appeal, it is the government’s burden to show the validity of the
waiver. United States v. Cash, 47 F.3d 1083, 1088 (11th Cir. 1995)
(citing Faretta, 422 U.S. at 833-36). Therefore, we “must indulge in
every reasonable presumption against waiver.” Hakim, 30 F.4th at
1326 (quotation marks omitted). If the government cannot meet
its burden, the defendant need not show prejudice to obtain a re-
versal. Id. at 1327 (emphasis omitted, alteration adopted).
Under the Sixth Amendment, all criminal defendants are en-
titled to the assistance of counsel. U.S. Const. amend. VI. The
right to self-representation is closely tied to the right to representa-
tion by counsel. United States v. Garey, 540 F.3d 1253, 1262-63 (11th
1 Faretta v. California, 422 U.S. 806 (1975).
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22-10527 Opinion of the Court 3
Cir. 2008). Accordingly, those who have a right to counsel also
have the right to waive counsel. United States v. Stanley, 739 F.3d
633, 649 (11th Cir. 2014). The assertion of one, however, requires
the waiver of the other, so it is critical that trial courts create a rec-
ord that ensures that the defendant’s decision to proceed pro se was
made knowingly, intelligently, and voluntarily. United States v.
Fant, 890 F.2d 408, 410 (11th Cir. 1989). “The importance of this
approach is underscored by the fact that a violation of either right
is not subject to harmless error analysis.” Id. (citations omitted).
Accordingly, this Court will not inquire as to whether a different
outcome would have resulted had a defendant been represented by
counsel at trial. Cash, 47 F.3d at 1090 n.5.
To waive the right to counsel, the defendant “must clearly
and unequivocally assert the right of self-representation,” and this
waiver must be “knowing, intelligent, and voluntary.” United
States v. Owen, 963 F.3d 1040, 1048 (11th Cir. 2020) (quotation
marks omitted). This Court’s task, accordingly, is to review the
“district court’s conclusion that a defendant’s waiver is valid—that
it is knowing, voluntary, and intelligent.” United States v. Kimball,
291 F.3d 726, 730 (11th Cir. 2001). Additionally, the defendant’s
waiver must be knowing and voluntary at the time pro se represen-
tation is first granted. Stanley, 739 F.3d at 646. The fact that the
defendant later becomes aware of the consequences of her decision
to proceed pro se may not cure a waiver that was initially made un-
knowingly. Id.
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4 Opinion of the Court 22-10527
Although a defendant does not need to have the skill and
experience of a lawyer to competently and intelligently choose self-
representation, “he should be made aware of the dangers and dis-
advantages of self-representation, so that the record will establish
that he knows what he is doing and his choice is made with eyes
open.” Faretta, 422 U.S. at 835 (quotation marks omitted). When
a defendant asks to represent herself, the district court should ide-
ally hold a Faretta hearing to ensure that the defendant understands
the consequences of waiving her right to counsel. Kimball, 291 F.3d
at 730. At this hearing, the court should inform the defendant of
the charges against her, the possible punishments, basic trial proce-
dure, and the hazards of self-representation. Id. This Court has
held that a court merely warning a defendant of the dangers of pro-
ceeding pro se and recommending against doing so is not enough.
Fant, 890 F.2d at 409. The test does not turn on the trial court’s
advice, but the defendant’s understanding. Id. The absence of a
Faretta hearing “will not give rise to a violation of the Sixth Amend-
ment right to counsel in the rare cases where the record may sup-
port a waiver.” Cash, 47 F.3d at 1088 (quotation marks omitted,
alteration adopted); see also Owen, 963 F.3d at 1049 (“As long as the
record establishes that the defendant understood the risks of self-
representation and freely chose to face them, the waiver may be
valid.”) (quotation marks omitted).
Eight factors are considered in determining whether the de-
fendant’s waiver was knowing and voluntary:
(1) the defendant’s age, educational background, and
physical and mental health; (2) the extent of
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22-10527 Opinion of the Court 5
defendant’s contact with lawyers prior to trial; (3) the
defendant’s knowledge of the nature of the charges,
possible defenses, and penalties; (4) the defendant’s
understanding of rules of procedure, evidence, and
courtroom decorum; (5) the defendant’s experience
in criminal trials; (6) whether standby counsel was ap-
pointed and the extent to which that counsel aided
the defendant; (7) any mistreatment or coercion of
defendant; and (8) whether the defendant was trying
to manipulate the events of the trial.
Cash, 47 F.3d at 1088-89 (citing Fitzpatrick v. Wainwright, 800 F.2d
1057, 1065-67 (11th Cir. 1986)).
Here, the trial court never made any conclusion that Lee’s
waiver of her Sixth Amendment right to counsel was knowing and
voluntary and thus failed to ensure that her waiver of such was
valid. See Kimball, 291 F.3d at 730. The court did not inquire as to
any of the Fitzpatrick factors at the June 2020 ex parte hearing at
which she was granted pro se representation. Our precedent re-
quires that there must have been a valid waiver at the time pro se
representation was granted. See Stanley, 739 F.3d at 646 (“A defend-
ant's waiver must be knowing and voluntary at the time pro se rep-
resentation is first permitted: the fact that a defendant later became
aware of the consequences of his decision may not cure a waiver
that was initially unknowing.”). At most, at that hearing, the court
warned her of the dangers of proceeding pro se and advised her
against it, which is not enough to ensure a valid waiver. See Fant,
890 F.2d at 409. With respect to the Fitzpatrick factors, the record
clearly indicates that Lee did not have an adequate understanding
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6 Opinion of the Court 22-10527
of the charges against her, possible penalties, or the applicable rules
of procedure or evidence.
Thus, Lee represented herself for 16 months until the pre-
trial conference in October 2021, when additional discussion was
had concerning Lee’s self-representation. Although this 16-month
unknowing self-representation is probably a Faretta violation by it-
self, the district court’s interactions with Lee in October 2021 do
not establish that Lee’s waiver was knowing and voluntary. While
Lee had standby counsel at trial, her attorney did very little at trial,
at the instruction of Lee. The record also reveals no evidence that
Lee was trying to manipulate the events of trial, only that she was
woefully underprepared for it. See Cash, 47 F.3d at 1088-89 (citing
Fitzpatrick, 800 F.2d at 1065-67). We therefore vacate and remand
to the district court for further proceedings not inconsistent with
this opinion. We decline to address the other issues that Lee raises
on appeal.
VACATED AND REMANDED.
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