United States v. Raymond Jarlik Bell

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30163
Plaintiff-Appellee,
D.C. No.
v. 3:11-cr-05407-
RBL-1
RAYMOND LEO JARLIK BELL, AKA
Raymond Leo Bell,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
August 28, 2014—Seattle, Washington
Filed October 22, 2014
Before: Michael D. Hawkins, Susan P. Graber,
and Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould;
Concurrence by Judge Hawkins
2 UNITED STATES V. BELL
SUMMARY*
Criminal Law
The panel affirmed in part and vacated in part the district
court’s judgment, and remanded, in a case in which the
defendant was convicted of making false, fictitious, and
fraudulent claims to the United States Treasury; assisting in
the filing of false tax returns; criminal contempt; and mail
fraud.
The panel rejected the defendant’s contention that the
district court committed reversible error under the Sixth
Amendment by not prompting him to present a closing
argument, where the defendant, who represented himself, had
a meaningful opportunity to make a closing argument but
chose to remain silent. The panel wrote that nothing in
Herring v. New York, 422 U.S. 853 (1975), or this court’s
precedents gives a self-represented defendant a right to be
affirmatively and individually advised that he or she has a
right to present a closing argument.
The panel held that a rational jury could find beyond a
reasonable doubt that the defendant assisted his son in
preparing the latter’s fraudulent returns in violation of 26
U.S.C. § 7206(2).
The panel vacated supervised-release conditions requiring
the defendant to undergo substance abuse treatment and to
abstain from consuming alcohol, and remanded with
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. BELL 3
instructions that the district court explain its reasons if it
chooses to re-impose them, where the record contains no
evidence showing that the defendant abused alcohol or other
substances.
Concurring, Judge Hawkins would affirm on the narrower
grounds that the defendant’s non-participation during the
course of the trial and his failure to object or request
argument effectively waived his right to make a closing
argument. Judge Hawkins would not say that a defendant in
a criminal case, pro se or otherwise, need not be advised of an
opportunity to make closing remarks to the jury.
COUNSEL
Gregory Charles Link (argued), Washington Appellate
Project, Seattle, Washington, for Defendant-Appellant.
Jenny A. Durkan, United States Attorney, Michael Symington
Morgan (argued), Assistant United States Attorney, Seattle,
Washington, for Plaintiff-Appellee.
4 UNITED STATES V. BELL
OPINION
GOULD, Circuit Judge:
Raymond Bell (“Bell”) appeals from his jury convictions
for making false, fictitious, and fraudulent claims to the
United States Treasury under 18 U.S.C. § 287, assisting in the
filing of false tax returns under 26 U.S.C. § 7206(2), criminal
contempt under 18 U.S.C. § 401(3), and mail fraud under
18 U.S.C. § 1341. Bell also appeals the district court’s
supervised release conditions imposed as part of his sentence.
We must decide (1) whether the district court committed
reversible error under the Sixth Amendment when it did not
prompt Bell to present a closing argument; (2) whether the
government provided sufficient evidence to prove that Bell
assisted Steven Bell in the filing of fraudulent tax returns; and
(3) whether the district court abused its discretion in requiring
Bell to abstain from alcohol and drug consumption and
participate in treatment as conditions of his supervised
release.
I
This case concerns a tax scheme involving false Form
1099-OIDs. In the scheme, a taxpayer would file Form 1099-
OIDs that “falsely state an amount of income tax has been
withheld . . . and the taxpayer then relies on that false
withholding figure to submit a fraudulent refund claim.”
Using this scheme, Bell filed five false income tax
returns. The table below gives an overview of the false
returns.
UNITED STATES V. BELL 5
Return Income Form 1099- Refund
Year Claimed OID Income Requested
Claimed from OID
Withholding
2004 $-520 N/A $36,395
2006 0 $45,823 $42,418
2007 $13,240 $113,940 $112,069
2007 $13,240 $113,940 $94,756
(amended)
2008 $10,344 $141,975 $113,798
The 2004, 2006, and original 2007 returns claimed
refunds alleging that tax had been withheld as evidenced by
Form 1099-OIDs, but no Form 1099-OIDs were filed with the
returns. For the amended 2007 return, Bell filed three false
Form 1099-OIDs, along with a Form 1096 on which Bell
signed his identifying title as “Agent.” For the 2008 return,
Bell sent the IRS false Form 1099-OIDs after receiving a
request for documentation by the IRS.
In addition to the false submissions and fraudulent refund
claims on his own tax returns, Bell also promoted the Form
1099-OID tax scheme to other people. From October 2008 to
October 2009, Bell assisted six taxpayers in filing fifteen tax
returns using the Form 1099-OID scheme, which collectively
requested over $2.7 million in unwarranted refunds, and
caused the IRS mistakenly to make refund payments
exceeding $670,000.
6 UNITED STATES V. BELL
In November 2008, Bell’s son Steven Bell signed and
submitted three amended returns seeking refunds from
$20,000 to $30,000 each year based on false OID
withholdings. The returns included Form 1099-OIDs
purportedly issued by a financial institution showing tax
withholding, and each return was accompanied by a Form
1096, which Steven Bell signed, noting his title as “Agent.”
The original indictment against Bell was filed on August
10, 2011, and two superseding indictments followed.
Between the first and second superseding indictments, Bell
moved to proceed pro se and the district court granted his
motion after a Faretta hearing. The criminal proceedings
show Bell’s consistent refusal to recognize the authority of
the district court or to participate in the proceedings,
including filing a motion to dismiss styled as a “habeas
corpus petition” arguing that his prosecution was illegal
because he was not subject to federal tax laws; declaring his
“sovereignty as a chief ruler” who was “independent of the
Court” and enjoying “sovereign immunity”; declining the
offer for an opportunity to give an opening statement; and
repeatedly stating that he did not consent to the proceedings
and was reserving his rights pursuant to U.C.C. § 1-308.
At trial, after the district court delivered jury instructions,
the government gave its closing argument. The district court
did not prompt Bell to make a closing argument, and Bell
remained silent. The jury convicted Bell as charged. The
district court calculated Bell’s Guidelines range to be 97 to
121 months and sentenced him to 97 months followed by
three years of supervised release. Among the conditions of
his supervised release, the district court ordered Bell to
undergo substance abuse treatment and to abstain from
consuming alcohol.
UNITED STATES V. BELL 7
II
We review Bell’s sufficiency of evidence challenge for
plain error because he did not raise the challenge below.
United States v. Lowry, 512 F.3d 1194, 1198 n.3 (9th Cir.
2008). We view the evidence in the light most favorable to
the prosecution, Jackson v. Virginia, 443 U.S. 307, 319
(1979), and determine whether any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt, United States v. Nevils, 598 F.3d 1158,
1167 (9th Cir. 2010) (en banc). We review Bell’s Sixth
Amendment challenge and his supervised release conditions
for plain error because he did not raise these objections before
the district court. Johnson v. United States, 520 U.S. 461,
466–67 (1997); United States v. Becker, 682 F.3d 1210, 1212
(9th Cir. 2012).
III
A
Bell first contends that the district court erred by not
affording him the opportunity to present a closing argument
to the jury and that this is a reversible error in violation of his
Sixth Amendment right to counsel. The constitutional right
to assistance of counsel includes the right for defense counsel
to “make a closing summation to the jury.” Herring v. New
York, 422 U.S. 853, 858 (1975). This right applies equally to
a self-represented defendant, who is his or her own counsel.
McKaskle v. Wiggins, 465 U.S. 168, 174 (1984). To meet the
plain error standard of review, Bell must “show that the
district court made (1) an error (2) that was clear or obvious,
(3) that affected substantial rights, and (4) that seriously
affected the fairness, integrity or public reputation of judicial
8 UNITED STATES V. BELL
proceedings.” United States v. Castillo-Marin, 684 F.3d 914,
918 (9th Cir. 2012).
We have previously held that denial of a defendant’s
legitimate request to make a closing argument violates the
defendant’s constitutional right to counsel. Frost v. Van
Boening, 757 F.3d 910, 915–16 (9th Cir. 2014) (en banc);
United States v. Miguel, 338 F.3d 995, 1002 (9th Cir. 2003);
United States v. Kellington, 217 F.3d 1084, 1100 (9th Cir.
2000). In support of his Sixth Amendment challenge, Bell
cites United States v. Mack, 362 F.3d 597, 602 (9th Cir.
2004), which holds that the district court’s decision to remove
a disruptive criminal defendant from the courtroom
throughout trial violated the defendant’s Sixth Amendment
right to counsel because he was precluded from (1) calling
and examining witnesses and (2) making a closing argument
to the jury.
But Bell’s situation is different because he was not
precluded from making a closing argument. The district court
told all parties just before recess that when proceedings
resumed the court would entertain Rule 29 motions and
objections to the proposed jury instructions, and then “we are
going to have closing arguments.” When the government’s
counsel delivered his closing argument, Bell remained silent.
Nothing in Herring or our precedents gives a self-represented
defendant a right to be affirmatively and individually advised
that he or she has a right to present a closing argument.
Rather, these cases held that a court may not prevent a litigant
from making a closing argument. Bell’s Sixth Amendment
right was not violated because he was not precluded from
making his closing argument and simply chose to remain
silent.
UNITED STATES V. BELL 9
A review of the facts in Herring is instructive. There, a
New York statute gave its trial judges the discretion to deny
counsel an opportunity to make a closing summation in a
nonjury criminal trial. Herring, 422 U.S. at 853–54. At the
conclusion of the case for the defense, defense counsel asked
to make a closing summation. Id. at 856. The trial judge
denied permission on the ground that under the new statute,
summation is discretionary, and he chose “not to hear
summations.” Id. The judge found the defendant guilty of
attempted robbery in the third degree. Id. The United States
Supreme Court held that the New York statute violated the
defendant’s constitutional right to counsel, because the
defense has the right “to make a closing summary of the
evidence to the trier of the facts, whether judge or jury.” Id.
at 860. Herring arose in the setting where a criminal
defendant’s counsel sought to make an argument in
summation but was precluded by the trial court in reliance on
the New York statute giving its judges discretion to dispense
with arguments if they chose to do so. Nothing in that case
or in any precedents of the Supreme Court following it, or in
our circuit precedents, establishes a right of the criminal
defendant to be told, in some Miranda-type warning, that he
or she has the right to make a closing argument. Bell never
asked to make an argument, even though it was plainly
available to him. Here, Bell had a meaningful opportunity to
make a closing argument but chose to remain silent. When
the district court advised before recess that “we will come
back with closing arguments,” Bell reiterated that he did “not
consent to these proceedings,” and he gave the same
statement when the district court heard Rule 29 motions,
when objections to jury instructions were entertained, and
10 UNITED STATES V. BELL
again when the parties rested before the jury. He was not
precluded from making a closing argument.1
B
Bell next contends that the government did not present
sufficient evidence to prove that he assisted, advised, or
counseled Steven Bell in the preparation of Steven Bell’s
fraudulent returns under 26 U.S.C. § 7206(2). Bell contends
that “the government offered no evidence beyond Mr. Bell’s
mere association with his son that he assisted in any fashion
with the three returns.” Bell did not raise this claim before
the district court, so we review for plain error. Lowry,
512 F.3d at 1198 n.3.
The government presented evidence that the Form 1099-
OID scheme that Bell employed changed in implementation
over time. At the time that Steven Bell submitted his false
returns, Bell was preparing false returns that included Form
1
We do not intend to reduce the general duties that a trial court owes to
a pro se litigant, but a rigid advisement is not required when it is clear
from the record that the litigant was aware of the procedure and that the
court did not stand in the litigant’s way.
Alternatively, Bell’s consistent disregard of the district court’s
authority and jurisdiction might be viewed to be an implied waiver of his
right to present a closing argument. Other circuits have held that the right
to present a closing argument may be waived implicitly, and that a judge
does not have to invite a defendant to present an argument for the waiver
to be effective. See, e.g., United States v. Stenzel, 49 F.3d 658, 661–62
(10th Cir. 1995); United States v. Martinez, 974 F.2d 589, 590 (5th Cir.
1992); United States v. Spears, 671 F.2d 991, 994–95 (7th Cir. 1982).
Conversely, Supreme Court precedent in Johnson v. Zerbst, 304 U.S. 458,
465 (1938) requires that a waiver of constitutional right be “intelligent and
competent.” We need not and do not reach the issue of implied waiver.
UNITED STATES V. BELL 11
1099-OIDs accompanied by a Form 1096, and Bell listed his
title on the Form 1096 forms as “agent.” Steven Bell’s false
returns followed the same pattern. Bell was only one of many
people using the Form 1099-OID scheme. But his
implementation patterns evolved, and the form of Steven
Bell’s false returns corresponds with Bell’s practices at the
time. Two Form 1099-OIDs accompanying Bell’s amended
2007 return had handwritten corrections resembling
handwritten corrections on Steven Bell’s returns. Viewing
the evidence in the light most favorable to the government, a
rational jury could find beyond a reasonable doubt that Bell
assisted Steven Bell in preparing the latter’s fraudulent
returns.
C
Finally, Bell contends that the district court erred in
imposing two specific conditions of supervised release (1)
that Bell “participate . . . for treatment of narcotic addition,
drug dependency, or substance abuse” and (2) that Bell
“abstain from the use of alcohol and/or other intoxicants.”
The conditions of Bell’s supervised release are reviewed for
plain error because he did not object to the conditions before
the district court. Becker, 682 F.3d at 1212.
A district court has broad discretion to impose special
conditions on supervised release. United States v. Chinske,
978 F.2d 557, 559–60 (9th Cir. 1992). Discretionary
conditions may be ordered when they involve “no greater
deprivation of liberty than is reasonably necessary” and when
they are reasonably related to (1) the nature and
circumstances of the offense; (2) the history and
characteristics of the defendant; (3) the need for adequate
deterrence to criminal conduct; (4) the need to protect the
12 UNITED STATES V. BELL
public from further crimes of the defendant; and (5) the need
to provide the defendant with needed training, medical care,
or other correctional treatment in the most effective manner.
18 U.S.C. §§ 3553(a)(1), (a)(2)(B)–(D), 3583(d)(2).
The record contains no evidence showing that Bell abused
alcohol or other substances, and the district court made no
relevant findings during the sentencing hearing. The
government notes that the present record contains no
information about Bell’s substance abuse history because he
refused to cooperate with the Probation Department during
the presentence investigation. If Bell’s refusal to cooperate
is the reason for the district court’s silence in its fact finding,
the district court should make a finding explaining that, but
without more evidence it is difficult to infer merely from
Bell’s intransigent refusal to cooperate with the court that he
had a drug or alcohol abuse problem. See, e.g., United States
v. Betts, 511 F.3d 872, 878–80 (9th Cir. 2007) (requiring a
reasonable relationship between conditions imposed and
goals of 18 U.S.C. § 3583). We vacate the challenged
conditions and remand with instructions that the district court
explain its reasons for imposing the special conditions for
Bell’s supervised release, if the court chooses to re-impose
them.
AFFIRMED in part, VACATED in part, and
REMANDED.
UNITED STATES V. BELL 13
HAWKINS, Senior Circuit Judge, concurring:
There is a certain value in saying what is necessary and
no more. Here, although I have no quarrel with the bottom
line result, I am concerned that the majority goes further than
needed in announcing, for the first time anywhere, that a pro
se criminal defendant has no right to be advised of the
opportunity to present closing argument.
I agree, given the litigation history of this case, that the
failure to ask Raymond Bell if he wished to make a closing
statement to the jury was not error. Certainly the better
practice would have been to ask, particularly in the
circumstances of this case where the district court urged the
jury to listen carefully to the arguments of the prosecution
and Bell’s represented co-defendant who both proceeded to
make arguments attempting to undermine Bell’s case.
I would affirm, but on the narrower grounds that Bell’s
non-participation during the course of the trial and his failure
to object or request argument effectively waived his right to
make a closing argument. I would not say, as I think the
majority does, that a defendant in a criminal case, pro se or
otherwise, need not be advised of an opportunity to make
closing remarks to the jury.