Must a Trial Judge Advise a Pro Se Defendant Specifically that He Has a Right to Closing Argument and Ensure a Proper Waiver of the Right (10/31/14)

In United States v. Bell, 2014 U.S. App. LEXIS 20258 (9th Cir. 2014), here, the defendant appealed "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."  The scam underlying his conduct was the tried and untrue Form 1099-OID claim for taxes claimed to have been withheld but, in fact, were not.

At trial, the defendant represented himself pro se.

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 appeal issue I write on is the one that should be apparent from the bold-faced sentence.  The defendant did not make a closing argument, but the district court did nothing, apparently, to ensure that the defendant knew he had the right to do so.  Of course, a defendant has the right to make a closing argument.  The defendant usually does that through his lawyer who certainly will know of the right without any prompting by the trial judge.  But a pro se defendant may or may not know that and may or may not know the right to to insist upon it.  That was the problem raised on appeal.  Here are selected excerpts of the majority's opinion:

[The defendant] 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.

But waivers of important rights -- closing arguments are surely important -- seems to me to require more than mere silence from a pro se defendant.  The earlier fleeting generic reference to closing arguments does not seem to me to be the type of notice required for a pro se defendant.  The Court tried to justify its holding in a footnote as follows:

   n1 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.

Again, I am not sure the record as narrated -- paraphrased -- by the majority establishes that the defendant was aware of the procedure.

I thought the concurring opinion by Judge Hawkins was closer to the mark.  I quote the dissent since it is so short.

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.

It seems to me that the general obstructive conduct of the defendant throughout the trial drove the majority and even the concurring judge to say things that are odd.  I would say that it is essential that a judge ensure that it is clear that a pro se defendant makes a knowing waiver of important procedural rights of which he may not know.

I would appreciate readers views on this subject.