USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 97-1403
UNITED STATES OF AMERICA,
Appellee,
v.
MAC S. NOAH,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Selya and Boudin, Circuit Judges,
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and Dowd,* Senior District Judge.
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Joshua L. Gordon for appellant.
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Meghan S. Skelton, Attorney, Tax Division, U.S. Dep't of
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Justice, with whom Loretta C. Argrett, Assistant Attorney
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General, Robert E. Lindsay and Alan Hechtkopf, Attorneys, Tax
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Division, and Sheldon Whitehouse, United States Attorney, were on
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brief, for the United States.
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December 2, 1997
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*Of the Northern District of Ohio, sitting by designation.
SELYA, Circuit Judge. Defendant-appellant Mac S. Noah,
SELYA, Circuit Judge.
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a professional tax preparer, implores us to set aside his
conviction on multiple counts of knowingly presenting fraudulent
tax returns to the Internal Revenue Service (IRS). Noah insists,
in a mien reminiscent of the legendary Perry Mason, that the
evidence produced at his trial actually establishes the guilt of
a third person.1 In addition, he maintains that the trial judge
committed reversible error by denying a motion in limine,
refusing to allow him to act as his own lawyer, exhibiting
impermissible bias, and imposing an overly harsh sentence.
Concluding, as we do, that none of these arguments hold water, we
affirm.
I. BACKGROUND
I. BACKGROUND
We present the pertinent facts in the light most
favorable to the jury verdict, consistent with record support.
See United States v. Rivera-Gomez, 67 F.3d 993, 995 (1st Cir.
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1995); United States v. Maraj, 947 F.2d 520, 522 (1st Cir. 1991).
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In 1991, Noah, a citizen of Liberia, launched an
enterprise called Easy Electronic Tax Service (EETS) in Chicago,
Illinois. The business held itself out as able to prepare tax
returns, file them electronically with the IRS, and arrange
refund anticipation loans through a participating bank. At this
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1Mason is, of course, Erle Stanley Gardner's fictional
lawyer-hero, idealized in a television series bearing his name,
who possessed an uncanny aptitude for exonerating clients by
casting blame elsewhere. See generally David McCord, "But Perry
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Mason Made It Look So Easy!": The Admissibility Of Evidence
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Offered By A Criminal Defendant To Suggest That Someone Else Is
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Guilty, 63 Tenn. L. Rev. 917 (1996).
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2
point (and, indeed, at all times relevant to this case),
taxpayers who wished to file their returns electronically could
do so only through an approved electronic return originator. To
secure such approbation, a tax preparer had to complete an
application form, undergo a suitability review, and demonstrate
that it possessed the requisite hardware and software. EETS
filed such an application and the IRS approved it, thus paving
the way for the company to participate in the electronic filing
program.
In 1993, the appellant opened an EETS office in
Providence, Rhode Island, and hired several friends to staff the
operation. These fledgling employees had duties that ranged from
answering the telephone to compiling client files to photocopying
identification cards and W-2 forms. None of the recruits had any
relevant professional experience in preparing tax returns or
perfecting electronic filings.2 Hence, the appellant alone was
responsible for preparing clients' tax returns, transmitting the
forms electronically, and arranging loans.
In due season, a tax-fraud scheme blossomed. In
addition to its customary, client-initiated tax filings, EETS
from time to time submitted tax returns that bore the names and
social security numbers of actual people, but which were
embellished by concocted data (e.g., fictitious or altered W-2
forms, non-existent dependents). Based on these commentitious
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2Indeed, in lieu of paying wages, the appellant compensated
many of these neophytes by offering to teach them how to prepare
and file tax returns via the computer.
3
returns, EETS secured refund anticipation loans payable to the
"taxpayers." The appellant then asked various EETS employees to
convert the checks representing the loan proceeds into cash and
give the realized funds to him, mendaciously telling his minions
that he already had given the named beneficiaries equivalent
amounts from EETS's operational accounts. In another iteration
of the fraud, EETS from time to time would alter real clients'
earnings statements, or increase the number of dependents, or
both, in order to obtain loans based on larger-than-warranted
refunds. In these instances, the appellant would pocket the
excess proceeds. Either way, the participating bank would be
made whole by means of the fraudulently secured refunds and the
IRS would be left holding an empty bag.
The scheme proved to be pervasive: after an
investigation, the IRS identified EETS as the source of
approximately 100 electronic returns, 60 of which contained
apocryphal items. Eighteen of those were entirely bogus. All of
the latter, including the returns that corresponded to the counts
of conviction, involved individuals known personally to the
appellant. For example, EETS prepared a false W-2 form and filed
a fraudulent tax return in the name of Fred Gayetay. Gayetay's
father, Shedrick Gayetay, was an EETS employee hired by Noah.
Similarly, EETS prepared fraudulent W-2 forms and other tax
documents in the names of Prince and Varwoi Jordan. The Jordan
siblings were high school students whose mother, Elizabeth
Powell, was a friend of Noah's and also dated Shedrick Gayetay.
4
On July 10, 1996, a federal grand jury in the District
of Rhode Island indicted the appellant on six counts of knowingly
making and presenting false, fictitious, and fraudulent claims to
the IRS in violation of 18 U.S.C. 287 (1994). Following an
eight-day trial, the jury found the appellant guilty across the
board. Judge Lagueux sentenced him to a 33-month incarcerative
term. This appeal ensued.
II. ANALYSIS
II. ANALYSIS
Noah's appellate counsel advances five assignments of
error. We address them in the sequence indicated in the initial
paragraph of this opinion.
A. Sufficiency of the Evidence.
A. Sufficiency of the Evidence.
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An appellate court plays a very circumscribed role in
gauging the sufficiency of the evidentiary foundation upon which
a criminal conviction rests. The court of appeals neither weighs
the credibility of the witnesses nor attempts to assess whether
the prosecution succeeded in eliminating every possible theory
consistent with the defendant's innocence. See United States v.
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Echeverri, 982 F.2d 675, 677 (1st Cir. 1993). Instead, its task
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is to canvass the evidence (direct and circumstantial) in the
light most agreeable to the prosecution and decide whether that
evidence, including all plausible inferences extractable
therefrom, enables a rational factfinder to conclude beyond a
reasonable doubt that the defendant committed the charged crime.
See United States v. Saccoccia, 58 F.3d 754, 773-74 (1st Cir.
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1995), cert. denied, 116 S. Ct. 1322 (1996); Maraj, 947 F.2d at
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5
522-23.
The evidence in this case passes the sufficiency test
with flying colors. A rational jury easily could have found that
Noah was the person at EETS who prepared clients' tax returns and
filed refund claims electronically. Given the ubiquity of the
spurious data, it would have been reasonable, from this evidence
alone, to infer that the appellant knowingly prepared and
submitted the fabricated claims. Here, however, there was
considerably more. The evidence also established that the
appellant knew personally all the individuals whose tax records
were falsified; that he had access to the information necessary
to complete the fraudulent forms; that he processed the loan
applications; that he directed the conversion of the loan
proceeds into cash; and that he received the money. We have no
doubt but that these facts suffice to ground the verdict.
The appellant seeks to weaken this chain of inferences
by offering us a new target. We should overturn his conviction,
he says, because the evidence, even if legally sufficient to
support the jury's verdict, points more directly to the guilt of
Shedrick Gayetay. This importuning misperceives the proper
office of appellate review.
The mere fact that the evidence in a case, viewed from
the defendant's coign of vantage, points convincingly to another
person as the guilty party does not prevent a conviction. After
all, it is for the jury to mull the evidence, assess the
credibility of the witnesses, and draw such reasonable inferences
6
as it may choose. Once the jury performs that task and authors a
verdict, judicial review thereafter must concentrate on whether
the jury's interpretation is sustainable under the governing
legal standards. See United States v. Ortiz, 966 F.2d 707, 711
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(1st Cir. 1992) (explaining that a guilty verdict will be upheld
as long as it "is supported by a plausible rendition of the
record"). Whether the jury plausibly could have pointed the
finger of blame at someone else is not the question. In this
instance, the conclusion that the jury reached is reasonable in
light of the evidence presented at trial and there is no
principled basis for overturning the verdict on the ground of
evidentiary insufficiency.
B. Motion in Limine.
B. Motion in Limine.
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Some weeks prior to trial, the appellant moved in
limine to exclude evidence of bogus tax filings apart from those
described in the indictment's six counts. On the brink of trial,
the district court heard argument on the motion. Defense counsel
claimed that the introduction of the challenged evidence would be
"cumulative" and "highly prejudicial," and would consume too much
preparation time. Citing Fed. R. Evid. 404(b), the court denied
the motion as premature in the absence of a specific evidentiary
context. During trial, the government offered only a small
quantity of the challenged evidence, which with one exception was
received absent any objection.
In this venue, the appellant's new lawyer puts a fresh
spin on the motion in limine. He asseverates that the district
7
court should have treated it as a request for a bill of
particulars and granted it on this basis. We are not persuaded.
In the court below, the appellant filed a document that
he characterized as a motion in limine and, consistent with
counsel's assertion that the admission of the challenged evidence
would be cumulative and highly prejudicial, the court reasonably
understood the motion as one implicating Rule 404(b). Although a
trial court may not rely woodenly on a motion's label and ignore
its purport, this motion bore scant similarity to a prototypical
motion for bill of particulars, see, e.g., United States v.
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Paiva, 892 F.2d 148, 154 (1st Cir. 1989) (describing the purpose
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of such a bill), and the district court's decision to treat it as
what it proclaimed itself to be a motion to limit the
introduction of proof of other, related bad acts at trial
cannot be faulted.
That said, we discern no error in the court's refusal
to grant the motion in limine. Rule 404(b), which authorizes the
admission of evidence of "other crimes, wrongs, or acts"
committed by the defendant for purposes such as "proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident," always must be read in concert
with Rule 403, which provides for a balancing of probative value
against unfairly prejudicial effect. So read, the combination
permits the trial court to exclude "other bad acts" evidence on
the ground, inter alia, that it is likely to cause "unfair
prejudice" or "confusion [of] the issues," or that it probably
8
will lead to "needless presentation of cumulative evidence."
Fed. R. Evid. 403.
In this instance, the district court denied the motion
in limine without prejudice to later objection because the court
could not determine satisfactorily in advance of trial whether
the unfairly prejudicial effects (if any) of the evidence of
other fraudulent tax filings substantially outweighed that
evidence's probative worth. This wait-and-see stance was
reasonable under the circumstances. See United States v.
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Griffin, 818 F.2d 97, 105 (1st Cir. 1987); Sperberg v. Goodyear
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Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). A court is
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not required to make judgment calls about admissibility a priori
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and out of context, and we reject the appellant's assertion that
the court below abused its discretion in refusing to do so.3
Nor can the appellant be heard to complain about the
lower court's admission of "other bad acts" evidence at trial.
During its case in chief, the government introduced evidence
anent two fraudulent filings not specifically alluded to in the
indictment, neither of which prompted a Rule 404(b) objection.
Consequently, there is no occasion for us to comment upon them.
It is settled in this circuit that, when the district court
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3The objection on the ground of "too much preparation time"
is not persuasive. There were only eighteen totally bogus
returns and, if more preparation time were needed, defense
counsel could have sought a continuance (which he did not do).
Moreover, the motion sought to exclude all such evidence, not to
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require the government to specify which returns it would offer in
evidence. And in all events, given the minute quantity of such
evidence actually offered by the government, see infra, any error
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would have been harmless.
9
tentatively denies a pretrial motion in limine, or temporizes on
it, the party objecting to the preliminary in limine
determination must renew his objection during the trial, and the
failure to do so forfeits any objection. See Griffin, 818 F.2d
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at 105 (holding that to raise and preserve for review a claim of
improperly constructing the Rule 403 balance, a party ordinarily
cannot rely on the denial of a motion in limine but must object
to the admission of the controversial evidence in the actual
trial setting); see also United States v. Holmquist, 36 F.2d 154,
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166 (1st Cir. 1994) (concluding that when a pretrial motion in
limine is granted and the court "clearly invites the adversely
affected party to offer the evidence at sidebar for the purpose
of reassessing the scope and effect of the order in the setting
of the actual trial, the exclusion of evidence pursuant to that
order may be challenged on appeal only if the party
unsuccessfully attempts to offer such evidence in accordance with
the terms specified in the order").
The only other use of such evidence occurred when the
appellant took the stand as part of the defense case. The
prosecutor cross-examined him about one of the first two
incidents, again without objection, and also introduced evidence
of a third fraudulent filing not specified in the indictment. We
must reach the Rule 404(b) issue in connection with that return,
inasmuch as the appellant preserved his rights by means of a
contemporaneous Rule 404(b) objection. Doing so, we hold that
the admission of that evidence which involved a fraudulent
10
return compiled in the name of Dahn (an acquaintance of Noah's)
was proper.
The appellant staked his defense on the proposition
that he was an innocent dupe, victimized by a lawless employee.
As the district court found, the spurious return was highly
relevant to show the appellant's guilty knowledge, the existence
of a criminal plan, and the absence of mistake, and its probative
value outweighed any unfairly prejudicial effects. Since this
finding derives adequate support from the record, the trial court
did not abuse its discretion in permitting the jury to consider
the evidence. See, e.g., United States v. Frankhauser, 80 F.3d
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641, 648 (1st Cir. 1996); United States v. Aguilar-Aranceta, 58
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F.3d 796, 798 (1st Cir. 1995); United States v. Rodriguez-
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Estrada, 877 F.2d 153, 155-56 (1st Cir. 1989).
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C. The Right to Self-Representation.
C. The Right to Self-Representation.
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The appellant's most substantial argument on appeal
implicates the right to self-representation. His claim is
straightforward. He tells us that he repeatedly attempted to
assert his right to act as his own lawyer, and that the district
court (erroneously, in his view) refused his request.
1. What The Record Reveals. On the first day of
1. What The Record Reveals.
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trial, after the jury had been empaneled but before opening
statements, the court denied the appellant's motion in limine.
The following exchange then took place:
DEFENSE COUNSEL: Excuse me, your Honor. I
DEFENSE COUNSEL:
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realize that this is highly unusual, but my
client wants to express a desire to address
the Court.
11
THE COURT: No. That's not appropriate.
THE COURT:
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DEFENDANT: I don't want to address the Court
DEFENDANT:
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on issues between my counsel. I request your
Honor
THE COURT: You be quiet. You have a lawyer
THE COURT:
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who speaks for you and that's enough. Be
seated, please, while I proceed with this
trial.
The record is silent with regard to the intended subject of the
censored statement.
On the third day of trial, the appellant personally
presented a motion to proceed pro se. The court heard the motion
out of the jury's earshot. The appellant expressed the view that
by refusing to offer certain motions and evidence his appointed
attorney "caused me a lot of setback" and "have not assisted me."
Judge Lagueux pointed out the dangers inherent in the request,
noting the appellant's apparent lack of understanding of the
rules of evidence and predicting that, by proceeding pro se, the
appellant would be "putting himself in prison."
On the next day, the dialogue resumed. After again
questioning the appellant's ability to represent himself without
imperilling his case, the court finally denied the request,
declaring that to allow it would cause "a complete disruption of
the proceedings." The court then stated in relevant part:
THE COURT: I'm satisfied that to allow you
THE COURT:
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to defend yourself in this case would be a
disruption, since we are almost through with
the Government's case. And to allow you to
come in now and discharge your lawyer in
midstream would be totally destructive of the
orderly process of . . . criminal law, the
trial of cases. . . .
12
* * *
Your motion is denied because the disruption
of the proceedings outweighs your right to
represent yourself. If this matter had come
up before trial, then I could have dealt with
it. I could have allowed you to represent
yourself and have standby counsel.
DEFENDANT: I didn't know that until we were
DEFENDANT:
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into the trial
THE COURT: But now that the trial has
THE COURT:
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started, it's too disruptive.
DEFENDANT: I didn't know that until we were
DEFENDANT:
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into the trial before I found out what I
found out. Had I known before, I would have
made this motion before the trial begins.
THE COURT: Well, it's too late.
THE COURT:
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The appellant made one final allusion to the issue of
self-representation on the afternoon of the fifth day of trial.
Since he neither mentions this incident in his brief nor relies
upon it as comprising part of the assigned error, we do not
address it.
2. Discussion. It is apodictic that a criminal
2. Discussion.
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defendant has a right to reject the appointment of counsel and
represent himself at trial. See Faretta v. California, 422 U.S.
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806, 814-17 (1975); see also U.S. Const. amend. VI.
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Nevertheless, "[t]he right to select or refuse specific counsel
is always subject to practical courtroom constraints." United
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States v. Betancourt-Arretuche, 933 F.2d 89, 93 (1st Cir. 1991).
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This has come to mean that, although a criminal defendant's right
to serve as his own attorney is absolute if invoked clearly and
distinctly prior to the beginning of his trial, the right of
13
self-representation becomes qualified once trial is under way.
See United States v. Lawrence, 605 F.2d 1321, 1324 (4th Cir.
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1979); United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15
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(2d Cir. 1965). At that point, the presiding judge, in his
discretion, may deny a defendant's request to act as his own
lawyer. See Robards v. Rees, 789 F.2d 379, 384 (6th Cir. 1986);
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United States v. Dunlap, 577 F.2d 867, 868 (4th Cir. 1978).
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The record in this case fails to show that Noah
expressed a desire to represent himself before his trial
commenced. Although his appellate counsel maintains that we
should infer an intention to make such a desire known to the
court from the appellant's aborted effort to speak on his own
behalf after the jury had been selected but before opening
arguments, he points to nothing in the record say, an offer of
proof that would support such an inference. What is more, any
such inference is belied by Noah's own statement, on the fourth
day of trial, that he "didn't know . . . until we were into the
trial" that the court would have allowed him, upon seasonable
request, to represent himself. Indeed, Noah declared, "[h]ad I
known before, I would have made this motion before the trial
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begins." (emphasis supplied).
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A defendant's request to represent himself must be
communicated to the court clearly and unambiguously. See United
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States v. Bennett, 539 F.2d 45, 50 (10th Cir. 1976). Here, no
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14
such communication took place in advance of trial.4
Consequently, the appellant has no valid claim to an absolute
Sixth Amendment right to self-representation.
This conclusion that the appellant sought to
represent himself only after his trial had commenced leaves
unresolved the propriety of the lower court's refusal to permit
him to do so when he made such a request during the third and
fourth days of trial. We turn now to that question.
A district court has considerable discretion to grant
or deny a request for self-representation that is not presented
until trial is under way. See United States v. Singleton, 107
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F.3d 1091, 1096 (4th Cir.) (citing cases), cert. denied, 118 S.
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Ct. 84 (1997). But that discretion is not unbridled. It is
improper for the court to deny the defendant the right to serve
as his own attorney solely because of a perceived lack of legal
dexterity, see Faretta, 422 U.S. at 835, education, see Johnstone
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v. Kelly, 808 F.2d 214, 216 (2d Cir. 1986), or expertise, see
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United States v. Price, 474 F.2d 1223, 1227 (9th Cir. 1973).
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Rather, in the last analysis, the court "must balance the
legitimate interests of the defendant in self-representation
against the potential disruption of the proceedings already in
progress." Williams v. Bartlett, 44 F.3d 95, 99 n.1 (2d Cir.
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4As mentioned above, the appellant's initial attempt to
address the court occurred after the jury had been empaneled.
Inasmuch as the ensuing exchange cannot reasonably be viewed as
an assertion of the right to proceed pro se, we need not resolve
the question of whether the invocation of that right after jury
selection should be deemed the functional equivalent of a
pretrial assertion.
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15
1994).
The record suggests that we should treat what occurred
on the third and fourth trial days as two halves of a single
entreaty and we accept the suggestion. In addressing that two-
day colloquy, the appellant points to Judge Lagueux's references
to his lack of training and his likely inability to master
relevant legal concepts as evidence of discretion run amok. We
think that this line of argument reads too much into too little.
While the judge did voice such concerns, the transcript persuades
us that the decisive factor in his analysis was the effect that
granting the motion would have had on the ongoing trial. The
judge commented more than once that the government's case was
almost complete and that "to allow [the defendant] to come in now
and discharge [his] lawyer in midstream would be totally
destructive of the orderly process of . . . criminal law." When
all was said and done, Judge Lagueux premised the denial of the
appellant's motion squarely on the fact that, in the
circumstances at hand, the likely disruption of the proceedings
militated against indulging the right of self-representation.
The reasonableness of this conclusion is scarcely open
to question. District courts have an institutional interest in
avoiding the disruption of trial proceedings. To permit a
defendant to switch roles near the halfway point of a complicated
criminal trial runs an obvious risk of dislocating both the
court's docket and the orderly progression of the trial. See,
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e.g., Robards, 789 F.2d at 384. Then, too, such an abrupt about-
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16
face would have tended to prejudice the prosecution (which had
put in most of its case without knowing that the appellant
sought to appear as both lawyer and party). Given these
considerations, and bearing in mind the district court's
entitlement to attach weight to the presence of competent trial
counsel, see, e.g., Williams, 44 F.3d at 99 n.1 (stating that the
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quality of counsel is among the criteria to be used in deciding
whether to permit self-representation once a trial has begun), we
do not believe that any abuse of discretion occurred.
D. Recusal.
D. Recusal.
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Next, the appellant suggests that Judge Lagueux should
have recused himself as biased in respect to the appellant's
race, ethnicity, and homeland. This is a serious accusation, and
we treat it as such. Bias of any kind, especially bias
predicated on traits such as race, ethnicity, or national origin,
is antithetic to the fundamental values upon which our system of
justice rests. Consequently, appellate courts must zealously
guard not only against the actuality of judicial bias but against
any appearance of it.
Here, however, the appellant's charge is plainly
unfounded. It rests wholly on an isolated comment made by the
judge to the appellant, a Liberian national, in the course of
denying the mid-trial request to proceed pro se. In an apparent
effort to cushion the blow (that is, to help the appellant
understand that he would receive a fair trial even though he
would not be allowed to act as his own attorney), Judge Lagueux
17
commented: "This is the United States of America. You're given
more rights here than you ever had in Liberia, I'm sure of that."
Although the judge's choice of phrase may have been infelicitous,
the comment, when viewed in context, is entirely devoid of any
trace of animus.5
We add, moreover, that the record indicates quite
vividly that Judge Lagueux conducted himself throughout this
eight-day trial in a fair, balanced, and wholly appropriate
manner. Under these circumstances, the assignment of error lacks
merit.
E. The Special Skill Enhancement.
E. The Special Skill Enhancement.
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The appellant's final objection concerns the lower
court's decision to increase his offense level (and, thus, his
sentence) because he "used a special skill, in a manner that
significantly facilitated the commission or concealment of the
offense." USSG 3B1.3 (Nov. 1995). Clearly, the court
supportably could have found that the appellant employed whatever
skill he may have had to facilitate the fraud. Thus, the issue
reduces to whether the record sustains a finding that the sum
total of the faculties that the appellant used in preparing
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5We note that the appellant lodged no contemporaneous
objection to this remark (say, by seeking the judge's recusal
then and there or by moving for a mistrial). In all likelihood,
then, the argument that he now advances is procedurally
defaulted. See United States v. Kimball, 73 F.3d 269, 273 (10th
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Cir. 1995) (reiterating that "the party seeking recusal . . .
must do so in a timely fashion"); United States v. Brinkworth, 68
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F.3d 633, 639 (2d Cir. 1995) (holding that a disqualification
motion must be sought "at the earliest possible moment after
obtaining knowledge of facts demonstrating the basis for such a
claim") (citation and internal quotation marks omitted).
18
crooked tax returns and filing them electronically constituted a
"special skill" within the meaning of section 3B1.3. The
appellant answers this question in the negative; he maintains
that filing tax returns electronically is an abecedarian task
that anyone can perform. The government answers the question in
the affirmative; it maintains that the appellant had acquired a
skill set not enjoyed by the public at large, namely, the
combination of talents necessary to prepare and file tax returns
electronically.
The district court shared the government's view and
boosted the offense level by two notches in reliance on section
3B1.3. Our review of this determination is bifurcated: we
consider the meaning of the term "special skill" de novo and then
scrutinize the district court's application of the guideline to
the discerned facts for clear error. See United States v.
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Connell, 960 F.2d 191, 197-98 (1st Cir. 1992).
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The Sentencing Commission's application notes disclose
that the term "[s]pecial skill" refers to a skill not possessed
by members of the general public and usually requiring
substantial education, training or licensing." USSG 3B1.3,
comment. (n.2). The note enumerates as examples of persons
possessing special skills "pilots, lawyers, doctors, accountants,
chemists, and demolition experts." Id. The appellant leans
___
heavily on this language, emphasizing his comparative lack of
education and the fact that he was not licensed as an accountant.
But the text will not bear the weight that the appellant loads
19
upon it. The use of the term "usually" in application note 2
signifies often, but not always. Hence, neither formal education
nor professional stature is a necessary concomitant for a special
skill adjustment. See United States v. Spencer, 4 F.3d 115, 120
___ _____________ _______
(2d Cir. 1993); United States v. Hummer, 916 F.2d 186, 191 (4th
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Cir. 1990). To the contrary, a special skill can be derived from
experience or from self-tutelage. See, e.g., United States v.
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Gandy, 36 F.3d 912, 914 (10th Cir. 1994); United States v. Lavin,
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27 F.3d 40, 41 (2d Cir. 1994).
The appellant has a fallback position. He insists
that, because tax preparation and the electronic filing of
returns are relatively simple undertakings, the ability to
accomplish these duties cannot be considered a special skill.
Even if this self-serving appraisal is accurate a matter that
we think is open to debate nothing in the guidelines suggests
that the specialness of the faculty necessarily hinges on the
complexity of the task to be performed. See United States v.
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Lewis, 41 F.3d 1209, 1214 (7th Cir. 1994) (noting that even if
_____
"an average person can accomplish a task at which someone with
special training or skill is adept," that fact alone "does not .
. . convert the activity in question into an ordinary or
unspecialized activity"). Thus, consistent with our view of the
language and purpose of section 3B1.3, we hold that a skill can
be special even though the activity to which the skill is applied
is mundane. The key is whether the defendant's skill set
elevates him to a level of knowledge and proficiency that
20
eclipses that possessed by the general public. See, e.g., United
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States v. Peterson, 98 F.3d 502, 506-507 (9th Cir. 1996); United
______ ________ ______
States v. Malgoza, 2 F.3d 1107, 1110-11 (11th Cir. 1993).
______ _______
Against this backdrop, the district court's finding
that the appellant exercised a cognizable special skill in
committing the offenses of conviction is supportable. The
appellant was a professional tax preparer who, though not
specially educated, was paid fees to process tax returns, file
them electronically, and arrange refund anticipation loans. In a
case not unlike this one, the Second Circuit held that an
accountant who prepared and filed false tax returns and W-2 forms
for his infant children possessed a special skill that increased
his chance of succeeding on the fraudulent refund claims. See
___
United States v. Fritzson, 979 F.2d 21, 22 (2d Cir. 1992). We
_____________ ________
find this holding persuasive, and we see no reason why the fact
that the tax-return preparer is a self-taught practitioner rather
than a formally trained accountant should make a dispositive
difference. Regardless of matters like licensure and degree, the
appellant had to "know and comprehend the extent of the duties
and obligations imposed by the tax laws." Id. at 22 (citation
___
and internal quotation marks omitted). And, moreover, we agree
that a professional tax preparer's "knowledge of the withholding
process, including the roles of the claim and transmittal
documents, and how and when to file them, exceeds the knowledge
of the average person," id., and justifies a special skill
___
enhancement in this case. Indeed, to be successful in the
21
particular corner of the tax trade that he occupied, Noah's
specialized knowledge had to extend into the realm of cyberspace.
Two other facts render this conclusion especially
appropriate in this case and thus reinforce the district court's
determination. First, at all relevant times the IRS authorized
only certain individuals approved electronic return originators
to submit tax returns by computer. Inasmuch as the appellant
had secured such approval (albeit in the name of EETS), the
sentencing court readily could find that he possessed a
capability which was special in the sense that it was not enjoyed
by the populace at large. Second, the record reflects that the
appellant procured the services of others by offering to teach
them the techniques necessary to perfect electronic tax-return
filings. See supra note 2. This circumstance supports an
___ _____
inference that the skill set which the appellant amassed was
neither widely known nor easily mastered, and thus buttresses the
sentencing court's finding.
We need go no further.6 The short of it is that we
discern no error in the district court's conclusion that a two-
level upward adjustment was warranted. The record allowed the
court to find that the appellant had a special skill and used it
to perpetrate the offenses of conviction. No more is exigible.
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6The applicable guideline precludes a special skill
enhancement "if . . . [the] skill is included in the base offense
level or specific offense characteristic." USSG 3B1.3; see also
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Connell, 960 F.2d at 199 (describing operation of proviso). The
_______
appellant does not contend that his situation implicates this
prophylactic safeguard.
22
See United States v. Young, 932 F.2d 1510, 1515 (D.C. Cir. 1991)
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("Section 3B1.3 properly applies when a defendant uses some pre-
existing, legitimate specialized skill not possessed by the
general public to facilitate the commission or concealment of a
crime.").
Affirmed.
Affirmed.
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