FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RAYMOND LEO JARLIK BELL, AKA

Raymond Leo Bell,

Defendant-Appellant.

No. 13-30163

D.C. No.

3:11-cr-05407-

RBL-1

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.

JennyA. 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 Treasuryunder 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

Year

Income

Claimed

Form 1099-

OID Income

Claimed

Refund

Requested

from 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 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.