          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
          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




                                  - 2 -
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




                                           - 3 -
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.


                                         - 4 -
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.


                                   - 5 -
          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


                                 - 6 -
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 Fernández-

Hernández, 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,


                                 - 7 -
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


                                              - 8 -
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,


                                      - 9 -
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


                                      - 11 -
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-court-

appointed 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


                                        - 12 -
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.




                                      - 13 -
             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


                                          - 14 -
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-the-

ground 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.


                                    - 15 -
                          IV.

The decision of the District Court is affirmed.




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