USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 97-1403

UNITED STATES OF AMERICA,

Appellee,

v.

MAC S. NOAH,

Defendant, Appellant.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

___________________

_________________________

Before

Selya and Boudin, Circuit Judges,

______________

and Dowd,* Senior District Judge.

_____________________

_________________________

Joshua L. Gordon for appellant.

________________
Meghan S. Skelton, Attorney,
__________________
Justice,

with

whom

Tax Division,

Loretta
C. Argrett,
_____________________

General, Robert E. Lindsay

__________________

U.S. Dep't

Assistant

of

Attorney

and Alan Hechtkopf, Attorneys,

_______________

Tax

Division, and Sheldon Whitehouse, United States Attorney, were on

__________________
brief, for the United States.

_________________________

December 2, 1997
_________________________

_______________
*Of the Northern District of Ohio, sitting by designation.

SELYA, Circuit Judge.

SELYA, Circuit Judge.

Defendant-appellant Mac S. Noah,

_____________

professional

tax

preparer,

conviction on multiple counts

implores

us

to

set aside

of knowingly presenting fraudulent

tax returns to the Internal Revenue Service (IRS).

in

a mien

reminiscent of

the legendary

evidence produced at his trial actually

a third person.1

committed

refusing

Noah insists,

Perry Mason,

that the

establishes the guilt of

In addition, he maintains that the trial judge

reversible

to allow

impermissible

his

bias,

error

him

and

to

by

denying

act as

imposing

his

an

motion

own lawyer,

overly

harsh

in

limine,

exhibiting

sentence.

Concluding, as we do, that none of these arguments hold water, we

affirm.

I.
I.

BACKGROUND
BACKGROUND

We

present the

pertinent

facts

in

the

light

most

favorable

to the jury

See United States v.

___ ______________

verdict, consistent with

Rivera-Gomez, 67 F.3d
____________

record support.

993, 995

(1st Cir.

1995); United States v. Maraj, 947 F.2d 520, 522 (1st Cir. 1991).
_____________
_____

In

1991, Noah,

citizen

of

Liberia,

launched

an

enterprise

called Easy Electronic Tax Service (EETS) in Chicago,

Illinois.

The business held

returns,

file

them

itself out as

electronically with

the

able to prepare tax

IRS,

and arrange

refund anticipation loans through a participating bank.

At this

____________________

1Mason

is,

of

course,

lawyer-hero, idealized in
who

possessed an

casting

Erle

Gardner's fictional

a television series bearing

uncanny aptitude

blame elsewhere.

Stanley

for

his name,

exonerating clients

by

See generally David McCord, "But Perry

___ _________
_________

Mason Made It Look So Easy!":

The Admissibility Of Evidence
_________________________________________________________________

Offered By A Criminal Defendant To Suggest That Someone Else Is

_________________________________________________________________

Guilty, 63 Tenn. L. Rev. 917 (1996).

______

point

(and,

indeed,

taxpayers who wished

do so only through an

secure

such

application

at

all

times

relevant

to file their returns

to

this

case),

electronically could

approved electronic return originator.

approbation,

form, undergo a

tax preparer

had

to

To

complete an

suitability review, and demonstrate

that

it

possessed the

filed such

requisite hardware

an application and

the way for

and software.

the IRS approved it,

the company to participate in

EETS

thus paving

the electronic filing

program.

In

1993,

the

appellant

opened

an

EETS

Providence, Rhode Island, and hired several friends to

operation.

office

in

staff the

These fledgling employees had duties that ranged from

answering the telephone to compiling client files to photocopying

identification cards and W-2 forms.

relevant

professional

perfecting electronic

experience

None of the recruits had any

in preparing

filings.2 Hence,

responsible for preparing clients'

tax

the appellant

returns or

alone was

tax returns, transmitting the

forms electronically, and arranging loans.

In

due season,

tax-fraud

scheme

blossomed.

In

addition

to its

from time to

social

customary,

client-initiated tax

filings, EETS

time submitted tax returns that bore

the names and

security

embellished

numbers

of

by concocted data

forms, non-existent

actual

people,

but

(e.g., fictitious or

dependents).

Based on

which

were

altered W-2

these commentitious

____________________

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.

returns,

EETS secured refund

"taxpayers."

convert

anticipation loans payable

The appellant then asked various EETS

the checks representing the

he already

had given

amounts from EETS's

from time to time

earnings statements,

refunds.

order to

In

these instances,

excess proceeds.

made whole by

or increase

obtain loans

Either way,

telling his minions

named beneficiaries

operational accounts.

of the fraud, EETS

both, in

the

employees to

loan proceeds into cash and

give the realized funds to him, mendaciously

that

to the

In

another iteration

would alter real

the number

based on

equivalent

clients'

of dependents,

or

larger-than-warranted

the appellant

would pocket

the participating

means of the fraudulently secured

bank would

the

be

refunds and the

IRS would be left holding an empty bag.

The

scheme

investigation,

approximately

the

IRS

100

apocryphal items.

proved

to

be

identified

electronic

pervasive:

EETS

as

the

returns, 60

of

which

after

an

source

of

contained

Eighteen of those were entirely bogus.

All of

the latter, including the returns that corresponded to the counts

of

conviction,

appellant.

known

return in the name of Fred

Shedrick Gayetay, was

Similarly,

EETS

documents in the

siblings

individuals

personally to

the

For example, EETS prepared a false W-2 form and filed

a fraudulent tax

father,

involved

were

prepared

an EETS

Gayetay.

employee hired

fraudulent W-2

forms

and

names of Prince and Varwoi Jordan.

high

school

students

whose

mother,

Gayetay's

by Noah.

other tax

The Jordan

Elizabeth

Powell, was a friend of Noah's and also dated Shedrick Gayetay.

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.

eight-day trial, the jury

board.

Judge Lagueux

287 (1994).

Following an

found the appellant guilty across

sentenced him to a

the

33-month incarcerative

term.

II.
II.

This appeal ensued.

ANALYSIS
ANALYSIS

Noah's appellate counsel

error.

We address them in

advances five assignments

of

the sequence indicated in the initial

paragraph of this opinion.

A.
A.

Sufficiency of the Evidence.

Sufficiency of the Evidence.
___________________________

An appellate court

gauging

plays a very circumscribed

role in

the sufficiency of the evidentiary foundation upon which

a criminal conviction rests.

the credibility of

the prosecution

The court of appeals neither weighs

the witnesses nor attempts to

succeeded in

eliminating every

consistent with the defendant's innocence.

assess whether

possible theory

See United States

___ _____________

v.

Echeverri, 982 F.2d 675, 677 (1st Cir. 1993).

_________

is to

canvass the evidence

light

most agreeable to the

evidence,

including

therefrom, enables

reasonable

all

(direct and

Instead, its task

circumstantial) in

the

prosecution and decide whether that

plausible

a rational

inferences

factfinder to

extractable

conclude beyond

doubt that the defendant committed the charged crime.

See United States v.

___ ______________

Saccoccia, 58 F.3d
_________

1995), cert. denied, 116 S. Ct.

_____ ______

754, 773-74

(1st Cir.

1322 (1996); Maraj, 947 F.2d

_____

at

522-23.

The evidence in

with flying colors.

this case passes the

sufficiency test

A rational jury easily could have found that

Noah was the person at EETS who prepared clients' tax returns and

filed refund

claims electronically.

spurious data, it would have been

alone,

to

submitted

infer

that

the fabricated

considerably

more.

The

appellant knew personally

were

the

Given the ubiquity

reasonable, from this evidence

appellant

claims.

evidence

knowingly

Here,

also

prepared

and

however,

there

was

established

that

the

all the individuals whose

falsified; that he had access

of the

tax records

to the information necessary

to

complete the

applications;

fraudulent forms;

that

he

directed

proceeds into cash; and that he

that he

the

processed

conversion

of

received the money.

the loan

the

loan

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.

he says,

because the

We should overturn his

evidence,

even if

support the jury's verdict, points

Shedrick

Gayetay.

This

conviction,

legally sufficient

to

more directly to the guilt of

importuning

misperceives

the proper

office of appellate review.

The mere fact that the

the

evidence in a case, viewed from

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

as it may choose. Once the jury performs that task and

verdict, judicial

the

review thereafter must concentrate

jury's interpretation

legal standards.

is

sustainable

See United States

___ _____________

under the

authors a

on whether

governing

v. Ortiz, 966 F.2d 707,

_____

711

(1st Cir. 1992) (explaining that

as

long as

record").

finger of

it "is

supported

Whether

the jury

blame at someone

instance, the

light

of

a guilty verdict will be upheld

by a

plausible rendition

plausibly

else is not

could have

the

principled basis

evidence

presented

at trial

for overturning the

pointed the

the question.

conclusion that the jury reached

of the

In this

is reasonable in

and

verdict on

there

is

no

the ground

of

evidentiary insufficiency.

B.
B.

Some

weeks

Motion in Limine.
Motion in Limine.
________________

prior

limine to exclude evidence of

to trial,

the

appellant

moved in

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.

the motion as premature in

context.

During

R. Evid. 404(b), the court denied

the absence of a specific evidentiary

trial, the

government

offered only

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

court

should have

treated

it

as

request

particulars and granted it on this basis.

for

bill

of

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).

trial court may not rely woodenly on a

motion's label and ignore

its purport, this motion bore scant similarity to a

motion

for bill

of

particulars, see,
___

Although a

e.g.,
____

prototypical

United States
_____________

v.

Paiva, 892 F.2d 148, 154

_____

(1st Cir. 1989) (describing the purpose

of such a bill), and the district court's decision to treat it as

what

it

proclaimed

introduction

itself

of proof

to

be

of other,

related

motion

to

limit

bad acts

the

at trial

cannot be faulted.

That said, we

discern no error in the

to grant the motion in limine.

admission

of

evidence

of

court's refusal

Rule 404(b), which authorizes the

"other

crimes,

wrongs,

or

acts"

committed by the defendant for purposes such as "proof of motive,

opportunity, intent,

absence of mistake

preparation, plan, knowledge,

or accident," always must be

with Rule 403, which provides

against

read in concert

for a balancing of probative value

unfairly prejudicial effect.

permits the trial

identity, or

So read,

court to exclude "other bad

the combination

acts" evidence on

the

ground, inter

prejudice" or

alia,

that

it is

"confusion [of] the

likely

to cause

issues," or that

"unfair

it probably

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

the

other

not determine satisfactorily

unfairly

prejudicial effects

fraudulent

tax

filings

in advance of

(if any)

probative

worth.

reasonable

under

circumstances.

Griffin, 818 F.2d

_______

the

of the

substantially

evidence's

This

trial whether

outweighed

wait-and-see

See
___

97, 105 (1st Cir. 1987);

stance

United States
______________

that

was

v.

Sperberg v. Goodyear
________
________

Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975).
_________________

not required to

evidence of

A court is

make judgment calls about admissibility a priori

_ ______

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

lower

appellant be heard

court's admission of

to complain about

"other bad acts"

the

evidence at trial.

During

its case

anent two

in chief,

the

government introduced

fraudulent filings not specifically alluded

evidence

to in the

indictment, neither of which prompted a Rule 404(b) objection.

Consequently, there is

It

is settled

no occasion for us to

in this

circuit

that, when

comment upon them.

the district

court

3The objection on the ground of "too much preparation

time"

____________________

is

not

returns

persuasive.
and, if

counsel could

more

There

were

preparation

have sought a

Moreover, the motion sought to

only
time

eighteen
were

totally bogus

needed,

continuance (which he did

defense

not do).

exclude all such evidence, not to

_______

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

___ _____
would have been harmless.

tentatively denies a pretrial motion

it,

the

party

objecting

determination must renew

to

improperly

cannot rely

to

the

preliminary

in

limine

his objection during the trial, and the

failure to do so forfeits any

at 105 (holding

in limine, or temporizes on

objection.

See Griffin, 818

___ _______

F.2d

that to raise and preserve for review a claim of

constructing the Rule 403 balance, a party ordinarily

on the denial of a motion

the admission

of the

in limine but must object

controversial evidence

in the

actual

trial setting); see also United States v. Holmquist, 36 F.2d 154,

___ ____ _____________

166 (1st

Cir. 1994) (concluding

limine is

granted and the

affected party to

order

that when a pretrial

court "clearly invites

offer the evidence at sidebar

of reassessing the

of the actual

_________

may

be

challenged

on

appeal

only

the adversely

for the purpose

scope and effect of the order

trial, the exclusion of evidence

motion in

in the setting

pursuant to that

if

the

party

unsuccessfully attempts to offer such evidence in accordance with

the terms specified in the order").

The only

appellant took

prosecutor

incidents,

the

other use of such evidence

stand as

cross-examined

part

him

of the

about

one

occurred when the

defense case.

of

the

first

The

two

again without objection, and also introduced evidence

of a third fraudulent filing not specified in the indictment.

We

must reach the Rule 404(b)

inasmuch

as the

contemporaneous

the

admission of

issue in connection with that return,

appellant preserved

his rights

Rule 404(b) objection.

that evidence

which

by means

Doing so,

involved a

of a

we hold that

fraudulent

10

return compiled in the name of Dahn (an acquaintance of Noah's)

was proper.

The

that he was

As

appellant staked

on the

an innocent dupe, victimized by

the district

relevant

his defense

court

found, the

proposition

a lawless employee.

spurious

return was

highly

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

the evidence.

its discretion in permitting the

See, e.g., United States v.

___ ____ _____________

641,

648 (1st Cir. 1996);

F.3d

796,

798

(1st

jury to consider

Frankhauser, 80 F.3d
___________

United States v. Aguilar-Aranceta, 58

_____________
________________

Cir. 1995);

United States
______________

Estrada, 877 F.2d 153, 155-56 (1st Cir. 1989).

_______

v. Rodriguez__________

C.
C.

The

implicates

The Right to Self-Representation.

The Right to Self-Representation.
________________________________

appellant's most

the right

straightforward.

He

to

substantial

argument on

self-representation.

tells us that

His

appeal

claim

is

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.
1.

trial, after

statements,

What The Record Reveals.

What The Record Reveals.
_________________________

the

jury had

been

the court denied

On the

empaneled but

first day

before

the appellant's motion

Excuse me, your Honor.

realize that this is

client

highly unusual, but

wants to express

the Court.

opening

in limine.

The following exchange then took place:

DEFENSE COUNSEL:
DEFENSE COUNSEL:
_______________

of

my

a desire to address

11

THE COURT: No.

THE COURT:
_________

DEFENDANT:
DEFENDANT:
_________

That's not appropriate.

I don't want to address the Court

on issues between my counsel.

I request your

Honor

THE COURT:
THE COURT:
_________

You be

who speaks

for you

seated,

quiet.

You have a lawyer

and that's

please, while

enough.

proceed with

Be
this

trial.

The record is silent with

regard to the intended subject

of the

censored statement.

On the

third day

of trial,

presented a motion to proceed pro se.

out of the jury's earshot.

by refusing to

the appellant

personally

The court heard the motion

The appellant expressed the view that

offer certain motions and evidence

his appointed

attorney "caused me a lot of setback" and "have not assisted me."

Judge Lagueux pointed

noting

the appellant's

out the dangers

apparent lack

rules of evidence and predicting

inherent in the

of

request,

understanding of

the

that, by proceeding pro se, the

appellant would be "putting himself in prison."

On

the next day,

questioning the

the dialogue

resumed.

After again

appellant's ability to represent himself without

imperilling

his

case,

the court

declaring that to allow it

the proceedings."

I'm satisfied that to

defend yourself in

now and

allow you

this case would

be a

are almost through with

the Government's case.

in

the request,

would cause "a complete disruption of

disruption, since we

come

denied

The court then stated in relevant part:

THE COURT:
THE COURT:
_________
to

finally

And to allow

discharge

you to

your lawyer

in

midstream would be totally destructive of the

orderly

process of .

. . criminal

trial of cases. . . .

12

law, the

Your motion is denied because the

of

the proceedings

represent yourself.

disruption

outweighs your
If

right to

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:
DEFENDANT:
_________

I didn't know that until we were

into the trial

THE COURT:
THE COURT:
__________

But

now

that

the

trial

has

started, it's too disruptive.

DEFENDANT:
DEFENDANT:
_________
into

I didn't know that until we were

the trial

found out.

before I

found

out what

Had I known before, I would have

made this motion before the trial begins.

THE COURT:
THE COURT:
_________

The

Well, it's too late.

appellant made one final

self-representation on the afternoon of

Since he neither

upon it

allusion to the issue of

the fifth day of

mentions this incident in his

as comprising

part of

the assigned

trial.

brief nor relies

error,

we do

not

address it.

2.
2.

defendant has

Discussion.
Discussion.
__________

a right to

It

814-17

(1975);

is

always subject to

criminal

counsel and

See Faretta v. California, 422 U.S.

___ _______
__________

see
___

Nevertheless, "[t]he right

apodictic that

reject the appointment of

represent himself at trial.

806,

is

also
____

U.S.

Const.

to select or refuse

amend.

VI.

specific counsel

practical courtroom constraints."

United
______

States v.
______

Betancourt-Arretuche, 933 F.2d 89, 93 (1st Cir. 1991).

____________________

This has come to mean that, although a criminal defendant's right

to serve

distinctly

as his own attorney is

prior to

absolute if invoked clearly and

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.

1979); United States ex rel. Maldonado v. Denno, 348 F.2d

_______________________________
_____

(2d Cir.

1965).

discretion,

lawyer.

At that

may deny

point, the

a defendant's

See Robards v. Rees, 789

___ _______
____

presiding

12, 15

judge, in

request to

act as

his

his own

F.2d 379, 384 (6th Cir. 1986);

United States v. Dunlap, 577 F.2d 867, 868 (4th Cir. 1978).
_____________
______

The

record

in

this

desire

to

represent

himself

before

his appellate

counsel

maintains that

expressed

commenced.

Although

should infer

court from

behalf

an intention to

the appellant's

after

the

arguments, he points

jury

case fails

make such

to

a desire

aborted effort to

had been

show

selected

to nothing in the record

that

Noah

his

trial

known to

speak on

but

we

the

his own

before opening

say, an offer of

proof

that would support such an

such inference is

that the

he "didn't know . . . until

court would have

request, to represent

known

What is more, any

belied by Noah's own statement,

day of trial, that

trial"

inference.

before, I

himself.

we were into the

allowed him,

Indeed, Noah

on the fourth

upon seasonable

declared, "[h]ad I

would have made this motion before the trial

_______________________________________________

begins." (emphasis supplied).

______

defendant's

communicated to

request

to represent

himself

the court clearly and unambiguously.

States v. Bennett,
______
_______

539 F.2d 45, 50

(10th Cir. 1976).

must be

See United
___ ______

Here, no

14

such

communication

Consequently, the

took

place

appellant has no

in

advance

valid claim

of

trial.4

to an

absolute

Sixth Amendment right to self-representation.

This

represent

conclusion

himself only

that

after his

unresolved the propriety of

the

appellant

sought

trial had commenced

the lower court's refusal

to

leaves

to permit

him

to do so

when he made

fourth days of trial.

court has considerable discretion

request for self-representation that

until trial

is under way.

F.3d 1091, 1096

Ct. 84

during the third and

We turn now to that question.

A district

or deny a

such a request

(1997).

improper for

See United States

___ _____________

is not presented

v. Singleton, 107
_________

(4th Cir.) (citing cases), cert.

_____

But that discretion

the court to deny the

as his own attorney solely because

is not

to grant

denied, 118 S.
______

unbridled.

It is

defendant the right to serve

of a perceived lack of

legal

dexterity, see Faretta, 422 U.S. at 835, education, see Johnstone

___ _______
___ _________

v.

Kelly, 808 F.2d

_____

United States v.
______________

Rather,

in

the

214, 216 (2d

Price, 474
_____

last

Cir. 1986), or

F.2d 1223,

analysis, the

expertise, see
___

1227 (9th

court

"must

Cir. 1973).

balance

the

legitimate interests

against

of

the

defendant

the potential disruption

progress."

in

self-representation

of the proceedings

Williams v. Bartlett,
________
________

44 F.3d 95,

already in

99 n.1

(2d Cir.

____________________

4As

mentioned above,

address the court

Inasmuch

the

appellant's initial

occurred after

the jury

as the ensuing exchange cannot

had been

selection

whether the invocation of that

should

be

deemed

the

pretrial assertion.
________

15

to

empaneled.

reasonably be viewed as

an assertion of the right to proceed pro se, we need

the question of

attempt

functional

not resolve

right after jury

equivalent

of

1994).

The

on the third

record suggests that we should treat what occurred

and fourth

entreaty and we

day

to

trial days

as two halves

accept the suggestion.

In

of a

single

addressing that two-

colloquy, the appellant points to Judge Lagueux's references

his lack

of

training

relevant legal concepts

and his

likely

inability to

as evidence of discretion run

think that this line of argument reads too

master

amok.

We

much into too little.

While the judge did voice such concerns, the transcript persuades

us that the

granting the

decisive factor in his analysis was

motion would have

had on the

the effect that

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

destructive of the orderly process of .

all was said and

appellant's

would

be

totally

. . criminal law."

done, Judge Lagueux premised the denial

motion

squarely

circumstances at hand,

on

the

fact

the likely disruption of

that,

When

of the

in

the

the proceedings

militated against indulging the right of self-representation.

The reasonableness of this conclusion is scarcely

to

question.

avoiding

the

District courts

disruption

of

open

have an institutional interest in

trial proceedings.

To

permit a

defendant to switch roles near the halfway point of a complicated

criminal

trial

court's docket

runs an

obvious

and the orderly

risk of

dislocating

both the

progression of the trial.

See,
___

e.g., Robards, 789 F.2d at 384.

____ _______

Then, too, such an abrupt about-

16

face would

put

in

sought

have tended to

most of

to

its case

appear

considerations,

prejudice the prosecution

and

as

both

bearing

without knowing

lawyer and

in

mind

that the

party).

the

(which had

appellant

Given

district

these

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

___ ____ ________

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.
D.

Recusal.
Recusal.
_______

Next, the appellant suggests that

have

recused himself

as biased

race, ethnicity, and homeland.

we

treat

it

as

such.

Bias

Judge Lagueux should

in respect

to

the appellant's

This is a serious accusation, and

of

any

kind, especially

bias

predicated on traits such as race, ethnicity, or national origin,

is antithetic to the fundamental

justice

rests.

values upon which our system of

Consequently, appellate

courts must

zealously

guard not only against the actuality of judicial bias but against

any appearance of it.

Here,

unfounded.

judge to

the appellant,

appellant's

charge

that he

the

a Liberian national,

blow

(that is,

would receive

would not be allowed to act

is

plainly

an isolated comment made

in the

mid-trial request to proceed pro se.

to cushion

understand

the

It rests wholly on

denying the

effort

however,

a fair

to

course of

In an apparent

help the

appellant

trial even

though he

as his own attorney), Judge

17

by the

Lagueux

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

vividly

eight-day

manner.

that

add,

moreover,

Judge Lagueux

trial

in

a fair,

that

the

conducted

balanced,

record

indicates quite

himself throughout

and

this

wholly appropriate

Under these circumstances, the assignment of error lacks

merit.

E.

The Special Skill Enhancement.

E.

The

court's

The Special Skill Enhancement.

_____________________________

appellant's

final

decision to increase

sentence)

because he

offense."

USSG

special skill,

the commission

3B1.3

concerns the

his offense level

"used a

significantly facilitated

objection

(Nov.

lower

(and, thus, his

in a

manner that

or concealment of

1995).

Clearly,

the

the

court

supportably could have found that the appellant employed whatever

skill he may have

reduces to

total

had to facilitate the fraud.

whether the

of the

record sustains a

faculties

that the

Thus, the issue

finding that

appellant

used in

the sum

preparing

____________________

5We
objection

note

that

the

to this remark

appellant
(say, by

lodged

no

contemporaneous

seeking the

judge's recusal

then and there or by moving for

a mistrial).

then,

now

the

defaulted.

argument

that

he

advances

In all likelihood,
is

procedurally

See United States v. Kimball, 73 F.3d 269, 273 (10th

___ ______________
_______

Cir. 1995)

(reiterating that

"the party seeking

recusal .

. .

must do so in a timely fashion"); United States v. Brinkworth, 68

_____________
__________
F.3d 633,
motion

639 (2d

must be

Cir. 1995) (holding

sought "at

obtaining knowledge of

that a

the earliest

disqualification

possible

moment after

facts demonstrating the basis

for such a

claim") (citation and internal quotation marks omitted).

18

crooked

"special

tax returns and filing them electronically constituted a

skill"

appellant answers

within

the

meaning

this question

in the

of

section

3B1.3.

negative; he

The

maintains

that filing

tax returns

electronically is

that anyone can perform.

set

not enjoyed

task

The government answers the question in

the affirmative; it maintains

skill

an abecedarian

by

that the appellant had

the

public

combination of talents necessary to

at large,

acquired a

namely,

the

prepare and file tax returns

electronically.

The

district court

boosted the offense

3B1.3.

Our

shared the

government's view

level by two notches in

review of

this

and

reliance on section

determination is

bifurcated:

we

consider the meaning of the term "special skill" de novo and then

scrutinize the district

the

discerned facts

for

court's application of the

clear

error.

See
___

Connell, 960 F.2d 191, 197-98 (1st Cir. 1992).

_______

guideline to

United States
_____________

v.

The Sentencing Commission's

that the term

by

members

comment.

"[s]pecial skill" refers to a

of

substantial

application notes disclose

the

general

public

education, training

(n.2).

The

note

or

and

skill not possessed

usually

licensing."

enumerates as

requiring

USSG

examples

3B1.3,

of persons

possessing special skills "pilots, lawyers, doctors, accountants,

chemists, and

heavily on

demolition experts."

this language,

Id.
___

emphasizing his

The appellant

leans

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

19

appellant loads

upon

it.

The

use of the

term "usually" in

signifies often, but not always.

application note 2

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,

______________
______

Cir. 1990).

experience

191 (4th

To the contrary, a special skill can be derived from

or from self-tutelage.

See, e.g.,
___ ____

United States v.
_____________

Gandy, 36 F.3d 912, 914 (10th Cir. 1994); United States v. Lavin,
_____
_____________
_____

27 F.3d 40, 41 (2d Cir. 1994).

The

that,

appellant has

because tax

returns

are

preparation

relatively

accomplish these

Even if this

duties cannot

of the task

Lewis, 41 F.3d 1209,

_____

"an average

special

the

position.

He

electronic

undertakings,

be considered

the

of

ability

to

the faculty necessarily

1214 (7th Cir. 1994)

person can accomplish

skill.

a matter that

nothing in the guidelines

to be performed.

insists

filing

a special

self-serving appraisal is accurate

specialness of

complexity

and

simple

we think is open to debate

that the

a fallback

suggests

hinges on

the

See United States v.

___ ______________

(noting that even

a task at which

if

someone with

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

language and purpose of section

3B1.3, we hold that a

view of the

skill can

be special even though the activity to which the skill is applied

is

mundane.

elevates

him

The

to

key

is

whether

level of

the defendant's

knowledge

and

skill

proficiency

set

that

20

eclipses that possessed by the general public.

See, e.g., United

___ ____ ______

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

that

this backdrop,

the appellant

committing

appellant

exercised

the offenses

was

of

district court's

cognizable

conviction

professional

specially educated,

the

tax

was paid fees

is

preparer

special

finding

skill

supportable.

who,

to process tax

though

not

unlike this

one,

the

Second

The

not

returns, file

them electronically, and arrange refund anticipation loans.

case

in

Circuit held

that

In a

an

accountant who prepared and filed false tax returns and W-2 forms

for his infant

his chance

children possessed a special skill that increased

of succeeding on

United States v.

the fraudulent refund claims.

Fritzson, 979 F.2d 21,

22 (2d Cir. 1992).

See
___

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

difference.

appellant had

trained accountant

should

to "know and

comprehend the extent of

obligations imposed by the

and

internal quotation marks omitted).

tax laws."

the duties

Id. at 22 (citation
___

And, moreover, we agree

a professional tax preparer's "knowledge of the withholding

process,

including

documents, and how

of

dispositive

Regardless of matters like licensure and degree, the

and

that

make a

the

the

roles

in this

the

and when to file them,

average person,"

enhancement

of

case.

id.,
___

and

claim

transmittal

exceeds the knowledge

justifies

Indeed, to

and

be

a special

successful in

skill

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

appropriate in this case and thus reinforce

determination.

First, at

only certain individuals

conclusion especially

the district court's

all relevant times the IRS

authorized

approved electronic return originators

to submit tax returns by computer.

had

secured such

sentencing

court

approval (albeit

readily

could

Inasmuch as the appellant

in

the name

find

that

of EETS),

he

the

possessed

capability which was special in the sense that it was not enjoyed

by

the populace at large.

appellant procured the

them the

filings.

Second, the record reflects that the

services of others

techniques necessary to

See
___

supra
_____

inference that

note

the skill

2.

by offering to

perfect electronic

This

set which the

teach

tax-return

circumstance supports

an

appellant amassed

was

neither widely known nor easily mastered, and thus buttresses the

sentencing court's finding.

We need go

discern no error

level upward

no further.6

The short of

it is that

in the district court's conclusion

adjustment was warranted.

The record

we

that a two-

allowed the

court to find that the appellant had

to perpetrate the

a special skill and used it

offenses of conviction.

No

more is exigible.

____________________

6The

applicable

guideline

precludes

special

skill

enhancement "if . . . [the] skill is included in the base offense

level or specific offense characteristic."
Connell, 960 F.2d at 199
_______
appellant does

USSG

3B1.3; see also

___ ____

(describing operation of proviso).

not contend

that his

prophylactic safeguard.

22

situation implicates

The

this

See United States v. Young, 932 F.2d 1510, 1515 (D.C. Cir. 1991)
___ ______________
_____

("Section 3B1.3 properly applies when a defendant uses

existing,

legitimate

specialized

general public to facilitate the

crime.").

Affirmed.
Affirmed.
________

skill not

possessed

some pre-

by

commission or concealment of

the

23