     Case: 10-20169 Document: 00511434025 Page: 1 Date Filed: 04/04/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            April 4, 2011

                                       No. 10-20169                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

v.

IRA KLEIN,

                                           Defendant-Appellant.


                   Appeals from the United States District Court
                        for the Southern District of Texas
                                   4:06-cr-56-1


Before JOLLY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Ira Klein once again appeals his sentence for mail fraud and health care
fraud. In Klein’s first appeal, we concluded that the district court used an
improper method to calculate the amount of loss resulting from Klein’s fraud for
purposes of the Sentencing Guidelines and the court’s restitution order. See
United States v. Klein, 543 F.3d 206, 215-16 (5th Cir. 2008). On remand, Klein
sought to represent himself at the resentencing hearing, a request the district
court granted after a terse colloquy. Klein now argues that his waiver of the

       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
     Case: 10-20169 Document: 00511434025 Page: 2 Date Filed: 04/04/2011



                                  No. 10-20169

right to counsel was not knowing and intelligent. He also argues that the
district court did not follow this court’s instructions in recalculating the amount
of loss.
       A criminal defendant has a “constitutional right to proceed without
counsel, but only when he knowingly and intelligently elects to do so.” United
States v. Joseph, 333 F.3d 587, 589-90 (5th Cir. 2003) (citing Faretta v.
California, 422 U.S. 806, 833-35 (1975)). Before a district court may allow the
defendant to proceed pro se, therefore, it “must caution the defendant about the
dangers of such a course so that the record will establish that he knows what
he is doing and his choice is made with eyes open.” United States v. Martin, 790
F.2d 1215, 1218 (5th Cir. 1986) (internal quotation marks omitted). This
requirement applies with equal force at sentencing as it does at trial. United
States v. Cano, 519 F.3d 512, 516-17 (5th Cir. 2008).
       As to the content of the Faretta hearing, “we require no sacrosanct litany
for warning defendants against waiving the right to counsel,” providing
flexibility for the district court to determine the precise nature of the
appropriate warning in the circumstances of the case. United States v. Davis,
269 F.3d 514, 519 (5th Cir. 2001).       Nevertheless, the district court must
effectively warn the defendant of the “perils and disadvantages of self-
representation.” Id. at 520. The district court “must consider various factors,
including the defendant’s age and education, and other background, experience,
and conduct . . ., and must be satisfied that the accused understands the nature
of the charges, the consequences of the proceedings, and the practical meaning
of the right he is waiving.” Id. Moreover, the record must establish that the
defendant’s choice is knowing and intelligent, which turns on the sufficiency of
the court’s warning. See id. at 518. Our review is de novo. United States v.
Virgil, 444 F.3d 447, 452 (5th Cir. 2006).


                                        2
     Case: 10-20169 Document: 00511434025 Page: 3 Date Filed: 04/04/2011



                                       No. 10-20169

       In this case, the court essentially asked only two questions. The court
asked Klein to confirm his understanding (1) that he was not a lawyer and (2)
that the court would not assist him in his defense. The only additional warning
Klein’s on-the-record discussion with his attorney provided was that the
Sentencing Guidelines can be “complicated and not obvious.” The court did not
warn Klein that his decision might put him at a disadvantage or recommend
that Klein proceed with the assistance of counsel. Thus, the “district court took
no steps, except in the most general way, to insure that [Klein] was aware” of
the perils of self-representation. United States v. Jones, 421 F.3d 359, 364 (5th
Cir. 2005). In addition, the record reflects that Klein suffered from mental
instability which led to two suicide attempts and resulted in the defendant
needing mood-stabilizing medications, all of which was revealed to the district
court in the PSR. This information should have raised a red flag for further
questioning, or at least spurred the court to give more specific warnings about
the disadvantages of pro se representation.
       As this court has noted before, the “risk of an off the cuff exchange with
the defendant is that the exchange may end up lacking a sufficient basis on
which we can find that the defendant made a knowing and intelligent waiver
of this important right.” Id. On this record, we cannot conclude that Klein’s
waiver was knowing and intelligent. We therefore VACATE Klein’s sentence
and restitution order and REMAND for resentencing.1



       1
        In light of our disposition, we need not decide Klein’s argument that the district court
ignored our prior instructions regarding the loss calculation. At the hearing on remand, it
appears that the Assistant United States Attorney stated, without providing supporting
evidence, that he was unable to obtain information regarding the amounts actually paid by the
insurers in the relevant timeframe for the pharmaceuticals involved here. In this era of
computer storage, it would be helpful to have actual evidence of unavailability in the record,
especially as Klein was apparently able to obtain some of that very information. A clearer
record as to the loss calculation might obviate the need for a third appeal in this case.

                                               3
