
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,  Tax Division,  U.S. Dep't  of               __________________          Justice,  with  whom  Loretta   C.  Argrett,  Assistant  Attorney                                _____________________          General, Robert  E. Lindsay  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.  Defendant-appellant Mac S. Noah,                    SELYA, Circuit Judge.                           _____________          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.          ___ ______________     ____________          1995); United States v. Maraj, 947 F.2d 520, 522 (1st Cir. 1991).                 _____________    _____                    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                                        ____________________               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                                     ___ _________                _________          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).          ______                                          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                                        ____________________               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.                               ___________________________                    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.                                                      ___ _____________          Echeverri, 982 F.2d 675, 677 (1st Cir. 1993).   Instead, its task          _________          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.          ___ ______________     _________          1995), cert. denied, 116 S. Ct.  1322 (1996); Maraj, 947 F.2d  at                 _____ ______                           _____                                          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                            ___ _____________     _____          (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.                                    ________________                    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.                                             ___   ____   _____________          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  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.                                                    ___  ______________          Griffin, 818 F.2d  97, 105 (1st Cir. 1987);  Sperberg v. Goodyear          _______                                      ________    ________          Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975).  A court is          _________________          not required to  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  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                                        ____________________               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                                          _______          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.                                          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                                                     ___ _______          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,                          ___ ____ _____________    _________          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                          ___  ____  _____________     ___________          641,  648 (1st Cir. 1996);  United States v. Aguilar-Aranceta, 58                                      _____________    ________________          F.3d  796,  798  (1st  Cir. 1995);  United  States  v. Rodriguez-                                              ______________     __________          Estrada, 877 F.2d 153, 155-56 (1st Cir. 1989).          _______                        C.  The Right to Self-Representation.                        C.  The Right to Self-Representation.                            ________________________________                    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.                         _________________________          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:                    _______________                    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:                    _________                    DEFENDANT:  I don't want to address the Court                    DEFENDANT:                    _________                    on issues between my counsel.  I request your                    Honor                      THE COURT:  You be  quiet.  You have a lawyer                    THE COURT:                    _________                    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:                    _________                    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:                    _________                    into the trial                      THE  COURT:   But  now  that  the  trial  has                    THE  COURT:                    __________                    started, it's too disruptive.                    DEFENDANT:   I didn't know that until we were                    DEFENDANT:                    _________                    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:                    _________                    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.                          __________          defendant has  a right to  reject the appointment of  counsel and          represent himself at trial.   See Faretta v. California, 422 U.S.                                        ___ _______    __________          806,   814-17   (1975);   see  also   U.S.   Const.   amend.  VI.                                    ___  ____          Nevertheless, "[t]he right  to select or refuse  specific counsel          is  always subject to  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  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.          ___  _____________     ________          1979); United States ex rel. Maldonado v. Denno, 348 F.2d  12, 15                 _______________________________    _____          (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);                   ___ _______    ____          United States v. Dunlap, 577 F.2d 867, 868 (4th Cir. 1978).          _____________    ______                    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                            _______________________________________________          begins." (emphasis supplied).          ______                    A  defendant's  request  to represent  himself  must be          communicated to  the court clearly and unambiguously.  See United                                                                 ___ ______          States v. Bennett,  539 F.2d 45, 50  (10th Cir. 1976).   Here, no          ______    _______                                          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                                       ___ _____________     _________          F.3d 1091, 1096  (4th Cir.) (citing cases), cert.  denied, 118 S.                                                      _____  ______          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                     ___ _______                              ___ _________          v.  Kelly, 808 F.2d  214, 216 (2d  Cir. 1986), or  expertise, see              _____                                                     ___          United  States v.  Price, 474  F.2d 1223,  1227 (9th  Cir. 1973).          ______________     _____          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.                       ________    ________                                        ____________________               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.          ________                                          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,                                                                       ___          e.g., Robards, 789 F.2d at 384.  Then, too, such an abrupt about-          ____  _______                                          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                   ___  ____  ________          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.                                         _______                    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.                              _____________________________                    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                                        ____________________               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                      ___ ______________    _______          Cir. 1995)  (reiterating that  "the party seeking  recusal .  . .          must do so in a timely fashion"); United States v. Brinkworth, 68                                            _____________    __________          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.                                                     ___  _____________          Connell, 960 F.2d 191, 197-98 (1st Cir. 1992).          _______                    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                          ______________    ______          Cir. 1990).  To the contrary, a special skill can be derived from          experience  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  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.                                                      ___ ______________          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                                                          ___  ____  ______          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.                                        ____________________               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                                                                   ___ ____          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)          ___ ______________    _____          ("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.          ________                                          23
