United States of America v. James O. Molen

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES O. MOLEN,
Defendant - Appellant.
No. 14-10532
D.C. No. 2:12-cr-00252-TLN-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted October 21, 2015
Stanford University, California
Before: PAEZ, MURGUIA, and HURWITZ, Circuit Judges.
James Orbin Molen was convicted after a jury trial of filing false liens
against IRS agents in violation of 18 U.S.C. § 1521, criminal contempt in violation
of 18 U.S.C. § 401(3), and endeavoring to obstruct the administration of the
internal revenue laws in violation of 26 U.S.C. § 7212(a). Before trial, Molen
FILED
NOV 10 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

-- 1 of 3 --

waived his right to counsel and proceeded pro se with the active participation of
standby counsel. On appeal, he challenges the validity of his waiver and several of
the court’s jury instructions. We affirm.
1. The Faretta colloquy sufficed to ensure Molen’s waiver was unequivocal,
knowing, and intelligent. See Faretta v. California, 422 U.S. 806 (1975). Molen
stated unequivocally his desire to represent himself after the district court
explained that he would not “do a reservation for counsel,” as Molen wanted. See
United States v. Marks, 530 F.3d 799, 816-17 (9th Cir. 2008). Moreover, the
district court “strongly urge[d]” Molen against waiving counsel. The district court
explained that Molen would have to navigate strictly applied, complex rules of
evidence and procedure without aid, that trained counsel would provide superior
representation, and that waiver was unwise. See United States v. Neal, 776 F.3d
645, 657-59 (9th Cir. 2015); Marks, 530 F.3d at 816.
2. The district court did not err in rejecting Molen’s “good faith” instruction
with respect to the contempt charges. Molen’s disagreement with or indifference
to the district court’s prior order that IRS officers are federal employees does not
entitle him to such an instruction. See United States v. Armstrong, 781 F.2d 700,
706-07 (9th Cir. 1986); United States v. Rylander, 714 F.2d 996, 1003 (9th Cir.
1983).
2

-- 2 of 3 --

3. We need not address whether the 26 U.S.C. § 7212(a) charge required a
specific unanimity instruction because Molen’s substantial rights were not
violated. See United States v. Pelisamen, 641 F.3d 399, 404 (9th Cir. 2011)
(explaining that, where defendant does not object to jury instructions at trial, relief
is unwarranted unless there has been plain error that affects the defendant’s
substantial rights and the fairness or integrity of the proceedings). The jury’s
guilty verdict on counts one and two, the § 1521 charges, established a unanimous
finding that Molen filed a false lien against IRS officers, one of the obstructive
means alleged in the indictment. See United States v. Chen Chian Liu, 631 F.3d
993, 1000-01 (9th Cir. 2011). Moreover, overwhelming evidence demonstrated
that Molen filed the lien with an intent to secure an unlawful benefit, satisfying the
requirement under § 7212(a) that the obstructive means were undertaken
“corruptly.” See United States v. Massey, 419 F.3d 1008, 1010-11 (9th Cir. 2005).
AFFIRMED.
3

-- 3 of 3 --