[ DO NOT PUBLISH] 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

____________________ USCA11 Case: 22-10527 Document: 47-1 Date Filed: 03/15/2024 Page: 1 of 62 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 meaningful Faretta 1 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 fac t 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 reversal. Id. at 1327 (emphasis omitted, alteration adopted).Under the Sixth Amendment, all criminal defendants are entitled to the assistance of counsel. U.S. Const. amend. VI. The right to self

- representation is closely tied to the right to representation by counsel. United States v. Garey , 540 F.3d 1253, 1262

- 63 (11th

1 Faretta v. California , 422 U.S. 806 (1975). USCA11 Case: 22-10527 Document: 47-1 Date Filed: 03/15/2024 Page: 2 of 622

- 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 asser tion of one, however, requiresthe waiver of the other, so it is critical that trial courts create a record that ensures that the defendant’s decision to proceed pro se was made knowingly, intelligently, and voluntarily. United States v. Fant , 890 F.2d 40 8, 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 knowi ng, 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 representation is first granted. Stanley , 739 F.3d at 646. The fact tha t the defendant later becomes aware of the consequences of her decision to proceed pro se may not cure a waiver that was initially made unknowingly. Id. USCA11 Case: 22-10527 Document: 47-1 Date Filed: 03/15/2024 Page: 3 of 64 Opinion of the Court 22

- 10527 Although a defendant does not need to have the skill and experience of a lawyer to competently and int elligently choose self

representation, “he should be made aware of the dangers and disadvantages 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 (quo tation marks omitted). Whena defendant asks to represent herself, the district court should ideally 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 hear ing, the court should inform the defendant ofthe charges against her, the possible punishments, basic trial procedure, and the hazards of self

- representation. Id. This Court hasheld that a court merely warning a defendant of the dangers of proceeding p ro 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 Amendment right to counsel in the rare cases where the record may support 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 defendant’s waiver was know ing and voluntary: (1) the defendant’s age, educational background, and physical and mental health; (2) the extent of USCA11 Case: 22-10527 Document: 47-1 Date Filed: 03/15/2024 Page: 4 of 622

- 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 penalt ies; (4) the defendant’s understanding of rules of procedure, evidence, and courtroom decorum; (5) the defendant’s experiencein criminal trials; (6) whether standby counsel was appointed and the extent to which that counsel aided the defendant; (7) any mi streatment 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 a ny 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 requires that there must have been a valid waiver at the time pro se representation was granted. See Stanley , 739 F.3d at 646 (“ A defendant's waiver must be kno wing and voluntary at the time pro se representation 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 understandin g USCA11 Case: 22-10527 Document: 47-1 Date Filed: 03/15/2024 Page: 5 of 66 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

- repr esentation. Although this 16

- month unknowing self

- representation is probably a Faretta violation by itself, the district court’s interactions with Lee in October 2021 do not establish that Lee’s waiver was knowing and voluntary. W hile Lee had standby counsel at trial , he r 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 REMANDE D. USCA11 Case: 22-10527 Document: 47-1 Date Filed: 03/15/2024 Page: 6 of 6