United States Court of Appeals 

For the First Circuit 

No. 15-1990 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

KORMAHYAH KARMUE, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF RHODE ISLAND 

[Hon. William E. Smith, U.S. District Judge] 

Before 

Torruella, Kayatta, and Barron, 

Circuit Judges. 

 Michael C. Bourbeau, with whom Bourbeau & Bonilla, LLP was 

on brief, for appellant. 

 Donald C. Lockhart, Assistant United States Attorney, with 

whom Peter F. Neronha, United States Attorney, was on brief, for 

appellee. 

October 28, 2016 

 
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BARRON, Circuit Judge. Kormahyah Karmue appeals his 

convictions on three federal counts: conspiracy to commit arson, 

wire fraud, and mail fraud. He also challenges his sentence. The 

convictions and sentence relate to Karmue's alleged participation 

in a scheme to burn down a tenement house that Karmue owned so 

that he could collect the insurance proceeds. We affirm. 

On May 27, 2014, following the fire at the tenement 

house, Karmue was indicted for conspiracy to commit arson, 18 

U.S.C. § 844(n); arson, 18 U.S.C. § 844(i) and 18 U.S.C. § 2; wire 

fraud, 18 U.S.C. § 1343; mail fraud, 18 U.S.C. § 1341; and theft 

of government funds, 18 U.S.C. § 641. On April 7, 2015, Karmue 

pled guilty to theft of government funds. He then proceeded to 

trial on the other counts. After a jury trial, he was convicted 

on all counts except arson, 18 U.S.C. § 844(i) and 18 U.S.C. § 2. 

Karmue now challenges his conviction on three different grounds. 

We consider each in turn. 

I. 

Karmue first seeks the reversal of his convictions on 

the ground that the District Court erred by conducting a portion 

of what is known as a Daubert hearing in his absence. See Daubert 

v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). The hearing 

was held to determine whether to permit an arson investigator, 

Sean Reddy, to testify at trial not only as a fact witness as the 
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officer who investigated the fire, but also as an expert for the 

government regarding the cause of the fire. 

Karmue's attorney at the time, George West, was present 

for the first day of the Daubert hearing, and so, too, was Karmue. 

But Karmue did not attend the second day of the Daubert hearing, 

and West objected that, given Karmue's absence, the holding of the 

hearing would violate Karmue's Sixth Amendment rights. 

Nonetheless, the District Court proceeded with the second day of 

the hearing. On appeal, Karmue reasserts his Sixth Amendment 

challenge, and also contends that the decision to proceed with the 

Daubert hearing in his absence violated both his Due Process rights 

and Federal Rule of Criminal Procedure 43(a)(2). 

Karmue raised the Sixth Amendment challenge below, and 

so our review is de novo. United States v. Liriano, 761 F.3d 131, 

136 (1st Cir. 2014). We have previously stated that the 

Confrontation Clause "has historically applied to testimony 

elicited at, and evidence produced for, trial," and we have noted 

that the "confrontation right has never been extended beyond the 

context of a trial." United States v. Mitchell-Hunter, 663 F.3d 

45, 51 (1st Cir. 2011). But, we have not completely foreclosed 

the possibility that the Confrontation Clause might apply to a 

pretrial hearing of some sort, see id. at 53, and we also have not 

previously considered the specific issue of whether a pretrial 
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Daubert hearing might qualify as a hearing to which the right 

guaranteed by the Confrontation Clause could attach. 

In this case, however, Karmue's challenge fails even if 

we were to assume that the Confrontation Clause does apply, as any 

error was harmless beyond a reasonable doubt. See United States 

v. Sepúlveda-Contreras, 466 F.3d 166, 171 (1st Cir. 2006). The 

record fully supports the Daubert ruling that the District Court 

made. Karmue neither argues that the District Court's ruling was 

erroneous nor explains how his presence at the second day of the 

hearing could conceivably have revealed any error. In addition, 

at trial, Karmue's counsel objected to Reddy providing expert 

testimony only as to the portion of Reddy's testimony that 

concerned his opinion that the fire was deliberately set. Yet 

there was overwhelming independent evidence that the fire was 

deliberately set.1 See United States v. Godfrey, 787 F.3d 72, 77-

78 (1st Cir. 2015) (holding that overwhelming evidence of the fact 

for which the challenged testimony was entered suffices to show 

that an error was harmless beyond a reasonable doubt). 

Karmue separately contends that he had a Due Process 

right to be present at the Daubert hearing and that this right was 

 1 A number of other witnesses testified that Karmue's alleged 

co-conspirators bought gasoline, brought it to Karmue's building, 

and poured it on the floor, causing the fire. In addition, 

surveillance footage shows the co-conspirators purchasing the 

gasoline and entering the building with the gasoline. 
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infringed. Specifically, he contends that there was a Due Process 

violation because his presence at the Daubert hearing would have 

"ha[d] a relation, reasonably substantial, to the fulness of his 

opportunity to defend against the charge." Kentucky v. Stincer, 

482 U.S. 730, 745 (1987). 

Karmue did not raise this issue below, however, and so 

our review is only for plain error. Karmue thus must show, among 

other things, both that any error was clear or obvious and that it 

affected his substantial rights. United States v. Savarese, 686 

F.3d 1, 12 (1st Cir. 2012). He has done neither. 

Even assuming that this pretrial hearing is the type to 

which the Due Process right to be present described in Stincer 

applies, the right is infringed only if the defendant's presence 

would have "contribute[d] to the fairness of the procedure." 

Stincer, 482 U.S. at 745. It is not clear or obvious, however, 

what the benefit of Karmue's presence at the hearing would have 

been. While Karmue does contend in his briefing to us that he 

would have been able to assist counsel at the Daubert hearing, he 

does not explain what assistance he could have rendered in a 

hearing about Reddy's credentials as an expert. Nor does Karmue 

make any concrete argument about how his absence on that second 

day of the Daubert hearing impeded his ability to effectively 

assist his lawyer in preparing for Reddy's cross-examination at 

trial. 
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Moreover, Karmue's Due Process challenge fails on plain 

error review because -- even assuming a clear or obvious error -- 

Karmue cannot demonstrate that the District Court's decision to 

proceed with the hearing in Karmue's absence "affected [his] 

substantial rights, which in the ordinary case means it affected 

the outcome of the district court proceedings." United States v. 

Fernández-Hernández, 652 F.3d 56, 64 (1st Cir. 2011). As we have 

already explained, there was overwhelming independent evidence 

that the fire was deliberately set, and Karmue's "conclusory 

allegations do not establish the required showing of prejudice to 

prevail under the plain error standard." United States v. Hayes, 

40 F.3d 362, 366 (11th Cir. 1994). 

Finally, Karmue contends that the decision to proceed 

with the hearing in his absence violated Rule 43(a) of the Federal 

Rules of Criminal Procedure. Because Karmue raises this challenge, 

too, for the first time on appeal, our review is, again, only for 

plain error. And again, Karmue fails to show either that any error 

was clear or obvious or that it affected his substantial rights. 

The text of Rule 43(a) provides that the defendant must 

be present at "every trial stage." Fed. R. Crim. P. 43(a) 

(emphasis added). The Advisory Committee notes then explain that 

this rule, which "set[s] forth the necessity of the defendant's 

presence at arraignment and trial[,] is a restatement of existing 

law. This principle does not apply to hearings on motions made 
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prior to or after trial." Fed. R. Crim. P. 43 advisory committee's 

notes to 1944 adoption (emphasis added) (citations omitted). 

Karmue identifies no precedent holding that the Rule -- 

despite its text and the Advisory Committee notes -- somehow does 

apply to the pretrial hearing at issue here, and two circuits have 

held that it does not apply to other kinds of pretrial hearings. 

See United States v. Burke, 345 F.3d 416, 423-24 (6th Cir. 2003) 

(no right to be present at a pretrial suppression hearing); Taylor 

v. United States, 385 F.2d 835, 836 (8th Cir. 1967) (per curiam) 

(no right to be present for a hearing on motions in limine). 

Karmue thus cannot show that, in this case, there was a "clear or 

obvious" violation of Rule 43(a). See Savarese, 686 F.3d at 12. 

Nor can Karmue meet the prong of the plain error standard 

that requires him to show that any clear or obvious violation of 

Rule 43(a) prejudiced his substantial rights. See FernándezHernández, 652 F.3d at 64. As we have explained, there was, wholly 

apart from Reddy's expert testimony, overwhelming independent 

evidence that the fire was deliberately set. 

II. 

Karmue's next challenge concerns a correction that the 

government was allowed to make, post-trial, to a statutory citation 

that was contained in Count I of the superseding indictment. 

Karmue contends that this change was impermissible, and that, had 

he been aware of the correct statutory citation prior to trial, 
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his decision not to plead guilty and to proceed to trial would 

have been affected (though he does not say precisely how). 

A. 

The relevant facts as to this aspect of Karmue's 

challenge are as follows. Prior to the correction of the citation, 

the caption to Count I of the superseding indictment, for 

conspiracy to commit arson, cited to 18 U.S.C. § 844(m). On June 

9, 2014, the government moved to correct the citation pursuant to 

Federal Rule of Criminal Procedure 7(c)(2). The government 

contended that the caption to the count should have cited to 18 

U.S.C. § 844(n), rather than to § 844(m). 

Karmue's attorney at the time, Edward Pepe, did not 

oppose the government's motion. On June 17, 2014, the Magistrate 

Judge assigned to the case granted the motion in a text order. 

The order was entered on Karmue's docket sheet. But that order -

- for some reason -- made the correction only as to the indictment 

for Karmue's co-defendant. 

Following the jury's verdict, West, who had replaced 

Pepe as Karmue's counsel, filed Karmue's objection to the 

presentence report with the District Court. The objection 

contended that the presentence report erred in calculating the 

recommended sentence based on 18 U.S.C. § 844(n), which carries a 

minimum sentence of five years, rather than on 18 U.S.C. § 844(m), 

which imposes no such mandatory minimum sentence. The objection 
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explained that the basis for the calculation in the presentence 

report was wrong because Karmue's indictment at that point still 

referred to 18 U.S.C. § 844(m). 

The next day, the District Court granted the 

government's June 2014 motion to correct Karmue's indictment to 

fix the citation. The sentencing hearing then followed 

approximately one month later. During that hearing, the District 

Court addressed Karmue's pending objection to the presentence 

report. 

West acknowledged at the hearing that Karmue's prior 

counsel, Pepe, had not objected to the government's motion to 

correct the indictment and that the Magistrate Judge had in fact 

granted that motion (although the order granting that motion had 

made the correction only as to the co-defendant's indictment). 

West then stated that, based on those two facts, "the air has gone 

out of my argument that I thought I was going to be able to make 

here to fight the five-year mandatory minimum in this case." West 

went on to say, however, that he was "not waiving Mr. Karmue's 

heartfelt conviction that that motion under Rule 7(c)" should not 

have been granted. 

B. 

Karmue now contends on appeal that the District Court 

erred in permitting Count I of the superseding indictment to be 

altered post-trial and that he was prejudiced in consequence. But, 
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even assuming that this challenge was not waived below, the 

challenge has no merit. 

Under Rule 7(c)(2) of the Federal Rules of Criminal 

Procedure, "[u]nless the defendant was misled and thereby 

prejudiced, neither an error in the citation nor a citation's 

omission is a ground to . . . reverse a conviction." Karmue cannot 

show the required prejudice here. 

In United States v. Isabel, 945 F.2d 1193 (1st Cir. 

1991), we found no prejudice from a mistaken statutory citation in 

an indictment because the mistake was "patent," and "the original 

indictment placed appellant[] on reasonable notice that [he] was 

being charged with the . . . conspiracy expressly alleged in the 

text of the indictment." Id. at 1197 (emphasis in original). The 

same is true here. 

The caption for Count I of the indictment reads: 

"Conspiracy to Commit Arson, 18 U.S.C. § 844(m)." The text of 

that count of the indictment then describes the offense. In doing 

so, the count states that "defendants Kormahyah Karmue and Gbabia 

Kollie . . . did unlawfully, willfully, and knowingly combine, 

conspire, confederate, and agree with each other to maliciously 

damage and destroy by means of fire and explosive materials, the 

building . . . in violation of 18 U.S.C. § 844(i)." 

Consistent with this language from the indictment, 

§ 844(i) sets forth an offense that is committed by "[w]hoever 
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maliciously damages or destroys . . . by means of fire or an 

explosive, any building." And, a count that details a conspiracy 

to violate § 844(i) is clearly one detailing a violation of 

§ 844(n), not § 844(m). That is because § 844(n) applies to 

persons who conspire to commit any crimes under any part of § 844 

other than § 844(h), while § 844(m) applies only to persons who 

conspire to violate § 844(h). 18 U.S.C. §§ 844(m)-(n). 

Thus, the only possible confusion engendered by the text 

of Count I of the indictment arises not from its "operative 

language" but rather from its caption's reference to § 844(m), 

rather than to § 844(n). But, as that reference in the caption is 

a "patent[ly] mistake[n]" one, and the "operative language" of the 

unamended indictment "placed appellant[] on reasonable notice that 

[he] w[as] being charged with the . . . conspiracy expressly 

alleged in the text of the indictment," Isabel, 945 F.2d at 1197 

(emphasis in original), there was no prejudice here. 

Moreover, the government's motion to correct the 

citation was on Karmue's docket two weeks after the superseding 

indictment containing the mistake was filed, and the government's 

proposed jury instructions, filed five months before trial, 

referenced the appropriate statutory provision. Thus, Karmue's 

counsel had notice of the correct citation well before trial. 

Indeed, further undermining the contention that the mistaken 

citation misled and thereby prejudiced Karmue is the fact that 
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Karmue's then-counsel referred to the correct provision in a motion 

in limine filed two months before trial. 

For these reasons, we conclude that Karmue has failed to 

show the prejudice that he must to bring a successful challenge 

under Rule 7(c)(2). Accordingly, we reject this challenge. 

III. 

Karmue's final challenge concerns the District Court's 

refusal to appoint new counsel at sentencing and instead to give 

Karmue the choice only either of proceeding pro se or of keeping 

the appointed counsel that he had at the time and with whom he was 

then allegedly in serious conflict. Finding no error, we reject 

Karmue's contention that his sentence must be vacated and new 

counsel appointed for resentencing. 

A. 

The facts relevant to this challenge are as follows. 

Just prior to sentencing, Karmue filed a letter with the District 

Court that alleged, among other things, that his then-courtappointed counsel, West, had pressured him to plead guilty, failed 

to communicate with him, failed to diligently represent him at 

trial, and wrongly failed to contest the correction of the 

indictment. Karmue thus requested that new court-appointed 

counsel be substituted for West. 

That same day, West filed his own motion, in which he 

sought leave to withdraw as appointed counsel. In his one-page 
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motion, West stated that there existed an "inherent conflict of 

interest" between West and Karmue "such that the attorney client 

relationship cannot continue as [West] has been effectively 

discharged." West gave no specific grounds and simply referred to 

Karmue's letter, which was appended to the motion. 

At the beginning of the sentencing hearing, which was 

held on August 26, the District Court addressed both Karmue's 

letter and West's motion to withdraw. The District Court explained 

that Karmue's letter constituted a pro se filing by a represented 

defendant and thus that he would not treat the letter as a motion 

to substitute counsel. The District Court then proceeded to 

address West's motion to withdraw as counsel. 

In the course of doing so, the District Court reviewed 

the allegations about counsel's performance at trial that Karmue 

had set forth in his letter and that West had referenced in his 

motion to withdraw. The District Court also engaged in an extended 

colloquy with West about the nature of the counsel's conflict with 

Karmue and its impact on West's ability to represent Karmue at 

sentencing. During that colloquy, West, when asked whether he 

could still fulfill his professional responsibilities in 

representing Karmue at sentencing, stated that he felt "perfectly, 

professionally ready" to do so. 

B. 
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Our review of the District Court's ruling refusing to 

substitute counsel is for abuse of discretion. United States v. 

Myers, 294 F.3d 203, 207 (1st Cir. 2002). Karmue argues that the 

District Court did abuse its discretion because the District Court 

failed to question Karmue regarding West's motion before denying 

it. But we do not agree. 

Our cases caution district courts against denying such 

motions without hearing from the defendant. See United States v. 

Prochilo, 187 F.3d 221, 228-29 (1st Cir. 1999). We have also 

explained, however, that "there is no invariable model for a trial 

court's inquiry into an allegedly embattled attorney-client 

relationship." Myers, 294 F.3d at 207. We have instead emphasized 

the considerable discretion that district courts have to make such 

rulings, and explained that we will reverse such a decision for an 

abuse of discretion only after considering "the adequacy of the 

[trial] court's inquiry[,] . . . the timeliness of the motion for 

substitution[,] and the nature of the conflict between the lawyer 

and client." Id. 

Based on those considerations, we cannot say that there 

was an abuse of discretion here. Faced with allegations of a 

conflict between counsel and defendant raised just prior to 

sentencing, the District Court did not ignore them or dismiss them 

summarily. Rather, at the sentencing hearing, the District Court 

examined the substance of that conflict and how it bore on 
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counsel's capacity to continue to represent the defendant. The 

District Court did so, moreover, by considering the defendant's 

own recent filing describing that conflict and engaging in an 

extended colloquy with defendant's counsel about its substance. 

Then, on the basis of that inquiry, the District Court 

reasonably concluded that the alleged conflict was based on a 

dispute over trial strategy and thus was not of a kind that 

necessitated the appointment of new counsel for sentencing. 

Supporting the reasonableness of the District Court's on-theground assessment was defense counsel's own statement that he did 

not view the conflict as one that precluded him from carrying out 

his professional duties at sentencing. Supporting that 

conclusion, too, is the fact that the request to substitute counsel 

was made just two days before sentencing, even though it was based 

on disagreements over trial strategy that had allegedly broken out 

months before. Moreover, Karmue did not offer any explanation in 

his letter for why he had not complained about the allegedly 

disabling conflict with counsel until two days before sentencing. 

As a result, as in Myers, "the chronology plainly militates against 

the granting" of the motion to withdraw. 294 F.3d at 207. 

In light of these facts, we find that the District Court 

did not abuse its discretion in declining to substitute counsel at 

sentencing. Accordingly, we reject Karmue's challenge to his 

sentence. 
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IV. 

The decision of the District Court is affirmed.