United States v. Marcel Bendshadler , 438 F. App'x 569 ( 2011 )

FILED
NOT FOR PUBLICATION JUN 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30270
Plaintiff - Appellee, D.C. No. 3:07-cr-00535-BR-3
v.
MEMORANDUM *
MARCEL ROY BENDSHADLER,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted June 6, 2011 **
Portland, Oregon
Before: FISHER, GOULD and PAEZ, Circuit Judges.
Marcel Roy Bendshadler appeals the judgment of the district court,
challenging his conviction and sentence for obstructing the Internal Revenue
Service in violation of 18 U.S.C. § 371. He argues that (1) he was denied his right
to testify, (2) he was denied his right to effective assistance of counsel, (3) the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
indictment was insufficient, and (4) the district court misinterpreted the United
States Sentencing Guidelines. We affirm.
1. Bendshadler was not denied the right to testify, because the right is limited
to relevant testimony and he did not indicate a desire to offer proper, relevant
testimony. See United States v. Moreno, 102 F.3d 994, 998 (9th Cir. 1996). Thus,
when Bendshadler remained silent as the defense rested without calling him to
testify, he waived his right. See United States v. Nohara, 3 F.3d 1239, 1244 (9th
Cir. 1993). A defendant who wants to take the stand “may do so ‘by insisting on
testifying, speaking to the court, or discharging his lawyer.’” United States v.
Pino-Noriega, 189 F.3d 1089, 1095 (9th Cir. 1999) (quoting United States v.
Joelson, 7 F.3d 174, 177 (9th Cir. 1993)).
2. We decline to rule on Bendshadler’s ineffective assistance of counsel claim
because the record is undeveloped. See United States v. Daychild, 357 F.3d 1082,
1095 (9th Cir. 2004). We express no view on the merits of the claim, which
Bendshadler can raise in a motion under 28 U.S.C. § 2255.
3. Bendshadler does not contest that his indictment was sufficient under United
States v. Caldwell, 989 F.2d 1056, 1059 (9th Cir. 1993), but rather argues that
Caldwell is no longer good law after Skilling v. United States, 130 S. Ct. 2896(2010). Skilling, however, dealt with the mail fraud statute, 18 U.S.C. § 1346,
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which is fundamentally different from § 371. See McNally v. United States, 483
U.S. 350, 358 n.8 (1987) (interpreting § 1346 in part by distinguishing the Court’s
interpretation of § 371 in Hammerschmidt v. United States, 265 U.S. 182, 188
(1924)). Skilling repeatedly relied on McNally without ever referring to § 371.
Nothing in Skilling’s specific, historical interpretation of § 1346 undermined
Caldwell’s interpretation of § 371, which was rooted in the very precedent
approved by McNally. See Caldwell, 989 F.2d at 1059 (citing Hammerschmidt,
265 U.S. at 188).
4. Section 2T1.9 of the Guidelines sets the offense level for Bendshadler’s
conviction, a Klein conspiracy under 18 U.S.C. § 371. See § 2T1.9 cmt. n.1 (2010)
(citing United States v. Klein, 247 F.2d 908 (2d Cir. 1957)). The guideline
assumes there will be an imported offense level, and that the imported offense level
will then be adopted unless it falls below the minimum offense level set for Klein
conspiracies. See § 2T1.9(a) & cmt. n.2 (2010) (importing “whichever guideline
most closely addresses” the conspiracy (emphasis added)). Pursuant to
§ 2T1.9(a)(1), the district court correctly imported Bendshadler’s offense level
from § 2T1.4 because that section “most closely addresse[d] the harm that would
have resulted had the conspirators succeeded in impeding, impairing, obstructing,
or defeating the Internal Revenue Service.” § 2T1.9 cmt. n.2 (2010). Section
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2T1.4 was most appropriate because it applies to aiding tax fraud, and
Bendshadler’s conviction established that he effectively aided tax fraud. His
argument that he only aided the filing of tax returns claiming false deductions, as
opposed to materially false tax returns, is insufficient to escape his responsibility
for aiding tax fraud. Cf. Alexander Shokai, Inc. v. Comm’r, 34 F.3d 1480, 1486
(9th Cir. 1994) (“Fraud means actual, intentional wrongdoing, and the intent
required is the specific purpose to evade a tax believed to be owing.”) (quoting Zell
v. Comm’r, 763 F.2d 1139, 1142 (10th Cir. 1985) (emphasis omitted)).
AFFIRMED.
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