[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10527

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

TAMAR LEE, 

Defendant-Appellant.

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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 meaningful 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 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).

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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 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 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 representation 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 unknowingly. 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 selfrepresentation, “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 (quotation marks omitted). When 

a 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 hearing, the court should inform the defendant of 

the charges against her, the possible punishments, basic trial procedure, and the hazards of self-representation. Id. This Court has 

held that a court merely warning a defendant of the dangers of proceeding 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 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 selfrepresentation 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 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 appointed 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 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 knowing 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 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 pretrial 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 itself, 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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