United States v. Bell
| Decision Date | 22 October 2014 |
| Docket Number | No. 13–30163.,13–30163. |
| Citation | 770 F.3d 1253 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Raymond Leo Jarlik BELL, aka Raymond Leo Bell, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gregory Charles Link (argued), Washington Appellate Project, Seattle, WA, for Defendant–Appellant.
Jenny A. Durkan, United States Attorney, Michael Symington Morgan (argued), Assistant United States Attorney, Seattle, WA, for Plaintiff–Appellee.
Appeal from the United States District Court for the Western District of Washington, Ronald B. Leighton, District Judge, Presiding. D.C. No. 3:11–cr–05407–RBL–1.
Before: MICHAEL D. HAWKINS, SUSAN P. GRABER, and RONALD M. GOULD, Circuit Judges.
Opinion by Judge GOULD
OPINION
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.
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.
| 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.
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.
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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (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, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) ; United States v. Becker, 682 F.3d 1210, 1212 (9th Cir.2012).
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, 95 S.Ct. 2550, 45 L.Ed.2d 593 (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, 104 S.Ct. 944, 79 L.Ed.2d 122 (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 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.
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, 95 S.Ct. 2550. At the conclusion of the case for the defense, defense counsel asked to make a closing summation. Id. at 856, 95 S.Ct. 2550. 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, 95 S.Ct. 2550. 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...
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