F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

R A Y M O N D L E O J A R

L I K B E L L , AKA Ray mond L eo B ell,

Defendant-Appellant

. N o. 13-30163

D.C. No. 3:11-cr-05407- RB L -1

OPI NI ON

A ppeal from the United States District Court for the W e stern District of W ashing ton Ronald B . L eig hton, District J udg e, Presiding

Arg ued and Submitted Aug ust 28, 2014—Seattle, W ashing ton

F iled October 22, 2014

B efore: Michael D. Hawkins, Susan P. Graber, and Ronald M. Gould, Circuit J udg es.

Opinion by

J udg e Gould; Concurrence by

J udg e HawkinsU N I T E D S T A T E S V

. B E L L 2

SUMMARY *

Crim inal Law

The panel affirmed in part and vacated in part the district court’s judg ment, and re m a n d e d
, in a case in which the defendant w as convicted of making f alse, fictitious, a

nd fraudulen t claims to the United States Treasury ; assisting in the filing of f

alse tax returns; crimin al contempt; and mail fraud.

The p a nel re j e c ted the d efendant’s contention that the district c ourt committed reversible e r ro r u n der the Six th Amendment b y not prompting h i m to present a closing
arg ument, where the defendant, who represented himself, h ad

a meaning ful opportunity to make a clos i n g arg ument but chose to remain silent. T he panel w rote th a t n othing in Herring v. New Y

o rk
, 422 U.S. 853 (1975), or t his court’s precedents g ives a self-represented defendant a ri gh t to be affirmatively and individually advised that he or she has a rig ht to present a closing arg ument.

The p anel held that a rational jury c ould find bey ond a reasonable doubt that th e d e f endant assisted his son in preparing the latte r ’ s f

raudulent returns in violation of 26 U.S.C. § 7206(2).

T h e p a n e l v a c a t e d s upervised-release conditions requiri n g t h e defendant to underg o substance abuse treatment and t o abstain from consum ing alcohol, and r emanded with

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. B E L L 3

instructions that the district court ex p l ain its reasons if it chooses to re -impose them, w here the record contains no evidence showing that the defendant abused alcohol or other substances.

Concurring
, J udg e Hawkins would affirm on the n arrower g rounds that the d efendant ’ s n o n-participation during the

course of the trial and his failure to object or request arg ument effectively waived his rig ht to make a c l o s ing
arg ument. J u dg e Hawkins would not say that a defendant in

a criminal case, pro se or otherwise, need not be a dvised o f an opportunity

to make closing remarks to the jury

.

COUNSEL

Grego r y Charles L ink (arg u ed), W ashing ton Appellate Project, Seattle, W ashing ton, for Defendant-Appellant.

J enny A. Durkan, United States Attorney
, Mich a e l S y m i ng ton Morg an (arg

ued), Assistant United States At t o r ney , Seattle, W a shing ton, for Plaintiff-Appellee.U N I T E D S T A T E S V

. B E L L 4

OP INION

GOUL D, Circuit J udg e :

Ray mond B ell (“B ell”) appeals f r om his jury convictions for making false, fictitious, and fraudulent claims to the United States T reasury under 18 U.S.C. § 287, assisting in the filing of f alse tax returns u nder 26 U.S.C. § 7206(2), criminal contempt under 18 U .S.C. § 401(3), and mail fra u d u n d er 18 U.S.C. § 1341. B ell also a ppeals the district court’s supervised release conditions imposed as part of his sentence. W e must decide (1) whether the district court committed reversible error under the Six th Amendment when it did not prompt B ell to present a closing a rg u ment; ( 2 ) w hether the
g overnment provided sufficient evidence to prove that B ell assisted Steven B ell in the f iling of fraudulent tax returns; a nd (3) whether the district court abused its discretion in requiring B ell to abstain from alcohol and drug consump t i o n a nd participate in treatment a s conditions o f h is supervised release.

I

This case conc e r n s a tax scheme involving false F orm 1099-OI Ds. I n the scheme, a tax p ay e r would file F orm 1 099- OI Ds that “falsely state an amount of income tax has been withheld

. . . and the tax pay er then relies on t h at false withholding fig ure to submit a fraudulent refund claim.”

Using this sc h eme, B ell filed five false income tax returns. The table b e l o w g ives an overview of the false
returns.U N I T E D S T A T E S V

. B E L L 5

Return Y ear Incom e

Claim ed F orm 1099-

OID Incom e Claim ed Ref

und Requested f rom OID Withholding

2004 $-520 N/A $36,395

2006 0 $45,823 $42,418

2007 $13,240 $113,940 $112,069

2007 (amended) $13,240 $113,940 $94,756

2008 $10,344 $141,975 $113,798

The 2004, 2006, and orig inal 2 007 r e t u rn s claimed refunds alleg ing that tax had be e n w i t h held as evidenced b y F orm 1099-OI Ds, but no F orm 1099-OI Ds were filed with the
returns. F or the amended 2007 return, Be l l f i led three false F orm 1 099-OI Ds, a long with a F orm 1 096 on w hich B ell sig ned his identify ing title as “Ag e nt.” F or the 2008 return, B ell sent the I RS false F orm 109 9

- O I Ds after receiving a request for documentation by the I RS.

I n addition to the false submissions and fraudulent refund claims on his ow n t ax r eturns, B ell also promoted the F orm 1099-OI D tax scheme to other p eople. F rom October 2008 to October 2009, B ell assisted six tax pay ers in f iling fifteen tax returns using the F o rm 1099-OI D scheme, which collectively requested over $ 2.7 millio n in unwarranted refunds, a nd caused the I RS mistakenly to make refund pay ments

ex c e eding $670,000.U N I T E D S T A T E S V

. B E L L 6

I n November 2 008, B ell’s son Steven B ell sig ned a nd submitted three amended r eturns seeking refunds from $20,000 to $30,000 each y ear based on false OI D withholding s. The returns included F orm 1099-OI D s purportedly issued b y a financial institution showing tax withholdin g, and each return was a ccompanied by a F orm 1096, which Steven B e ll sig ned, noting his title as “Ag ent.”

The orig inal indictment ag ainst B e ll was filed o n Aug ust 10, 2011
, a

nd two superseding indictments followed. B etween the first a

n d second superseding indict m e n ts, B ell moved to p r oceed pro se and the district court gr anted his motion after a Faretta hearing

. The criminal proceeding s show B ell’s c o n sistent refusal to recog niz e the authority o f the district court or to pa r t icipate in the proceeding s, including filing a motion to d i s m i s s sty led as a “habeas
corpus petition” arg u ing that his pr o secution was illeg al because he was not subject to federal tax laws; declaring

his “sovereig nty as a chief r

uler” who was “ independent of the Court” and enjoy ing “sovereig n immunity ”; decli n i ng the offer for an opportunity to g ive an o p e n i n g statement; a nd repeatedly stating that he did no t consent to the proceeding s and was reserving

his rig hts pursuant to U.C.C. § 1-308.

At trial, after the district c ourt d elivered jury instructions, the g overnment g ave its closing arg ument. The district court did not prompt B ell to make a closing arg ument, a nd B ell remained silent. T he jury con v i cted B ell as charg ed. The district court calculated B ell’s Guidelines r ang e to b e 97 to 121 months and sentenced him to 97 months follo w e d b y three y ears of supervised release. Among the conditions o f his supervised release, th e district court ordered B ell to underg o substance abu s e t reatment and to abstain from consuming alcohol.U N I T E D S T A T E S V

. B E L L 7

II

W e review B ell’s sufficiency of evidence ch a l l eng e for plain error because he d i d not raise the challeng e below. United States v. Lowry
, 5 1 2 F .3d 1194, 1198 n.3 (9th Cir. 2008). W e view the ev i d e nce in the lig ht most favorable to the p rosecution, J

a ckson v. Virginia
, 443 U.S. 3 07, 319 (1979), and determine w hether any rational trier o f fact could have found the essential elements of the crime b e y o nd a reasonable doubt, United S tat e s v. Nevils
, 598 F .3d 1158, 11 6 7 (9 t h Cir. 2 010) (en banc). W e review B ell’s Six th Amendment challeng e and his supervised release conditions for plain error because he did not raise these o b jections before the d istrict c o u r t

. Johnson v. United States
, 520 U.S. 461, 466–67 (1997); United States v. Becker
, 682 F .3d 1 210, 1212 (9th Cir. 2012).

III

A

B e ll first contends that the district court erre d b y not affording him the opportunity t o p r e sent a closing arg ument to the jury a

nd that this is a reversible e rror in violation of his Six th Amendment rig ht to counsel. The constitutional rig ht
to assistance of counsel includes the r ig ht for defense counsel
to “make a closing summation to t he jury .” Herring v. New Y o rk
, 422 U.S. 853, 858 (1975). This rig ht applies equally to

a self-represented defendant, who is his or her own counsel. McKaskle v. W

iggins
, 465 U.S. 168, 174 (1984). To meet the plain error standar d o f review, B e ll must “show that the district court made (1) an error (2) that was clear o r obvious, (3) that affected substantial r ig hts, a n d (4) that seriously affected the fairness, integ r ity or public reputation of judicialU N I T E D S T A T E S V

. B E L L 8

proceeding s.” United States v. Castillo-Marin
, 684 F .3d 914, 918 (9th Cir. 2012).

W e have previously h eld that denial of a defendant’s l eg itimate request to make a c losing arg ument violate s t h e defendant’s constitutional rig ht to counsel. Frost v

. Van Boe n i n g , 7 57 F .3d 910, 915–16 (9th Cir. 2014) (en banc); United States v. Miguel
, 338 F .3d 995, 1002 (9th Cir. 2 003); United States v. Kellington
, 217 F .3d 1084, 1100 ( 9 t h Cir. 2000). I n support of h is Six t h Amendment challeng e, B ell cites United St a tes v. Mack
, 362 F .3d 597, 602 (9th Cir. 2004), which holds that the district c o urt’s decision to remove

a disruptive criminal defendant from the courtroom throug hout trial v iolated the def e n d a nt’s Six th A mendment rig ht to counsel because he w as p recluded f r o m (1) c alling and ex amining witnesses and (2) making a closing arg ument to the jury

.

B u t B ell’s s i t u ation is different b ecause he was not precluded from making a closing arg ument. The district court told all parties just before recess that w h e n proceeding s resumed the court would ente r t a in Rule 29 motions a nd objections to the proposed jury instructions, and then “we a re going to have closing arg uments.” When the g overnment ’s counsel delivered h is closing arg ument, B ell remained silent. Nothing in H

erring or our precedents g ives a self-represented defendant a rig ht to be a ffirmatively and individually advised that he or she has a rig ht to present a closing a rg ument. Rather, these cases held that a c ourt may not prevent a litig ant from making a closing arg ument. B ell’s Si x t h A mendment rig ht was not viola t ed because he was not precluded from making h is closing arg ument a n d s imply chose to remain silent.U N I T E D S T A T E S V

. B E L L 9

A review of the f

a c ts in Herring is instructive. There, a New York statute g ave its trial judg es the discretion to deny counsel an opport u nity to make a closing summation in a nonjury criminal trial. Herring
, 422 U.S. at 853–54. At the conclusion o f the case for the defense, defense counsel asked
to make a closing summation. Id. at 856. The trial j u dg e denied p ermission o n t h e g round that under the new statute, summatio n is discretionary
, and he chose “not to hear summations.” Id

. The judg e found the defendant guilty o f attempted robbery in the third d eg r ee. Id

. The United States Supreme Court held that the N e w Y o rk statute violated the defendant’s consti t u tional rig ht to c o unsel, b ecause the defense has t h e r i gh t “to make a closing summary of the evidence to the trier of the facts, whether judg e or jury .” Id.
at 860. Herring ar o s e in the setting where a criminal de fe n dant’s counsel soug ht to make an arg ument in summation but was precluded b y the trial court in reliance on the New York statute g iving its judg es d iscretion to dispense with arg uments if they chose to d o so. Nothing i n t h at case

or in any p recedents o f the Supreme Court following it, or in

our circuit p recedents, e stablishes a r i ght of the criminal defendant to be told, in some Miranda -ty pe warning
, that he

or she h a s the rig ht to mak e a closing arg ument. B ell never asked to make an a

rg ument, even thoug h it was plainly available to him. Here, B ell had a meaning ful opportunity to make a closing arg u ment but chose to remain s i l en t. W h en the district court ad v ised b efore r ecess that “we will come back with closing arg uments,” B ell reiterated that h e did “ not

c o n s e nt to these proceeding s,” and he g ave the same statement when t h e district court heard Rule 29 motions, when objections to jury ins t r u c t ions were entertained, a ndU N I T E D S T A T E S V

. B E L L 10

ag ain when the parties r ested before the jury

. He was not precluded from making

a closing arg ument. 1

B

B e ll nex t contends that the g overnment did not present sufficient evidence to prove that he assisted, advi s e d, o r counseled Steven B ell in th e p reparation of Steven B e ll’s fraudulent returns under 2 6 U.S.C. § 7206(2). B ell contends that “the g o vernment offered no evidence bey o nd Mr. B e ll’s

mere association with his son that he assisted in any f a shion wi t h t he three returns.” B ell did not raise this claim before the district court, so we review fo r p l a in error. Lowry
, 512 F .3d at 1198 n.3.

The g overnment p resented evidence that the F orm 1 099- OI D scheme that B ell e mploy ed chang ed in implementation

over time. A t the time that Steven B e ll submitted h i s false returns, B e ll w as preparing false r eturns that i n c l uded F orm

1 W e d o n o t in t en d to red u ce th e g en eral d u ties th at a trial co u rt o w es to

a p ro se litig an t, b u t a rig id ad v isem en t is n o t r e q u ired w h en it is clear f ro m t h e reco rd th at th e litig an t w as aw are o f t he p ro ced u re an d t h at th e

co u rt d id n o t stan d in th e litig an t’ s w ay

.

A ltern ativ ely
, Bell’ s co n sisten t d i s r eg ard o f th e d istrict co u rt’ s

au th ority an d j u risd i ctio n m ig h t b e v i ew ed t o be an im p lied w aiv er o f h is rig h t to p resen t a clo sin g arg u m en t

. Oth er circu i ts h av e h eld th at th e rig h t to p resen t a clo sin g arg u m en t m ay b e w aiv ed im

p licitly , an d th at a j u dg e d o es n o t h av e to in v ite a def en d an t to p resen t an arg u m en t f o r th e w aiv er to b e ef f ectiv e. S e e , e.g

. , Un ited S ta tes v. Sten zel
, 4 9 F.3 d 65 8
, 6 6 1

– 6 2 (1 0 th Cir. 1 9 9 5 ); Un ited S ta tes v. Ma rtin ez , 9 7 4 F.2 d 5 8 9
, 5 9 0 (5 th Cir. 1 9 9 2 ); U n ited S ta tes v. Sp ea rs , 6 7 1 F

. 2 d 9 9 1, 9 9 4 –9 5 (7 th C ir. 1 9 8 2 ). Co n v ersely
, Su

p rem e Co u rt p reced en t in Jo h n so n v. Zerb st , 3 04 U.S. 4 5 8
, 4 6 5 (1 9 3 8 ) req u ires th at a w aiv er o f co n stitu tio n al rig h t b e “ in tellig en t an d

co m peten t.” W e n eed n o t an d d o n o t reach th e issu e o f im p lied w aiv er.U N I T E D S T A T E S V

. B E L L 11

1099-OI Ds a ccompanied by a F orm 1096, and B ell listed his title on the F orm 1096 forms as “ ag ent.” Steven B ell’s false
returns followed the same pattern. B ell w as only o ne of many people u sin g the F orm 1099-OI D scheme. B ut his implementation patterns evo l v e d
, and the form o f Steven B ell’s false r eturns co r r e sponds with B ell’s practices at the time. Two F o rm 1099-OI Ds accompany ing B e ll’s amended 2007 r eturn had handwritten corrections resembling handwritten corrections on Steven B ell’s returns. Viewing the evidence in the lig ht most favorable to the g overnment, a rational jury c ould find be y o n d a reasonable doubt that B ell assisted Steven B ell in prepari n g t he latter’s fraudulent
returns.

C

F inally
, B ell contends that the d i strict c ourt erred in imposing two specific conditions of supe r v i sed release (1) that B e ll “participate

. . . f or treatment of narcotic addition, d rug dependency
, or substance abuse” and (2) that B ell “abstain from the use of alcohol and / o r o ther intox icants.” The conditions of B ell’s supervised release are reviewed for plain e rror because he d id not o bject to the conditions before the district court. Becker , 682 F .3d at 1212.

A district court has b road discretion to impose special conditi o n s on supervised r e lease. United States v

. Chinske
, 978 F

. 2 d 557, 559–60 (9th Cir. 1 992). Discretionary conditions may be ordered w hen they involve “no g reater deprivation of liberty than is reasonably necessary ” and when they are rea s o n ably related to ( 1) the nature a nd circumstances of the offense; (2) the history a nd

c h a racteristics of the defendant; ( 3) the need for adequate d eterrence to criminal conduct; (4) the need to protect t h eU N I T E D S T A T E S V

. B E L L 12

public from f

urther 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 r ecord contains no evidence showing that B ell abused alcohol or other su b s t ances, and the district court made no relevant f

i nding s during the sentencing hearing

. The
g over n m e nt notes that the present record contains no information about B ell’s substance abuse history because he refused to cooperate with the P ro b a tion Department during th e p r esentence investig a tion. I f B ell’s refusal to c ooperate is the reason for the district court’s silence in its fact finding
, the district court should ma k e a finding ex plaining that, but without more evidence it is difficult to in f e r merely from B ell’s intransig ent refusal to cooperate with the c ourt that he had a drug or alcohol abuse problem. S ee, e.g. , United States

v. Betts
, 511 F .3d 872, 878–80 (9th Cir. 2007 ) (requiring a reasonable relationship between conditions imposed a nd
g oals of 1 8 U.S.C. § 3583). W e vacate the challeng ed conditions and remand with instructions that the district court

ex p lain its reasons for imposing t h e special c onditions for B ell’s supervised r elease, i f t h e court chooses to re-impose them.

AF F IRMED in part, VACATED i n part, a nd REMANDED

.U N I T E D S T A T E S V

. B E L L 13

HAW KI NS, Senior Circuit J udg e, concurring :

There is a certain value in say ing what is nece s s a r y a nd

n o m o r e. H ere, althoug h I h ave no quarrel w ith the bo t t o m line result, I am c oncerned that the majority g oes further than needed in a

nnouncing
, for the first time any where, that a pro

se criminal defendant has no rig ht to b e a d v ised of the opportunity

to present closing arg u ment.

I ag r ee, g iven the litig a tion hi s t o r y of this case, that the failure to ask Ray

mond B ell if h e wished to mak e a closing
statement to the jury was not error. Certainly the better
p r a ctice would have been to ask, particularly in t h e circumstances of this case w h e r e the district court urg ed the jury to l i sten carefully to the arg uments of the prosecution and B ell’s represented co-defendant w h o both proceeded to make arg u ments attempting to undermine B e ll’s case.

I would affirm, but on the narrower g round s t h a t B e ll’s non-participation during the course of the trial and h is failure
to object or request arg ument effectivel y waived his rig h t to make a closing a

rg ument. I would n ot say , as I think the majority does, that a defendant in a criminal case, pro se o r

o t herwise, need not be advised o f an opportunity to ma k e closing remarks to the jury

.