                                                                              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                             NOT FOR PUBLICATION                               JUN 13 2011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,


                                          2
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


                                          3
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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