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: