United States v. Nissen
| Decision Date | 03 June 2020 |
| Docket Number | No. CR 19-0077 JB,CR 19-0077 JB |
| Citation | 492 F.Supp.3d 1254 |
| Parties | UNITED STATES of America, Plaintiff, v. Michael James NISSEN, Defendant. |
| Court | U.S. District Court — District of New Mexico |
John C. Anderson, United States Attorney, Paul Mysliwiec, Jack Burkhead, Alexander Mamoru Max Uballez, Assistant United States Attorneys, Albuquerque, New Mexico, Attorneys for the Plaintiff.
Joe M. Romero, Jr., Romero & Winder, PC, Albuquerque, New Mexico, Attorneys for the Defendant.
THIS MATTER comes before the Court on the United States’ PSR Objections, filed November 21, 2019 (Doc. 90)("Objections"). The primary issues are: (i) whether the Court should amend the Revised Presentence Investigation Report, filed November 7, 2019 (Doc. 88)("Revised PSR"), to include as relevant certain conduct that, on December 11, 2018, Defendant Michael Nissen called in a bomb threat to a New Mexico State Police ("NM State Police") office; (ii) whether the Court should apply a 6-level enhancement under the United States Sentencing Guidelines Manual ("U.S.S.G" or "Guidelines") § 2A6.1(b)(1), because Nissen's conduct evidenced his intent to carry out his threats against the NM State Police; and (iii) whether the Court should apply a 4-level enhancement under U.S.S.G. § 2A6.1(b)(4), because Nissen's offenses substantially disrupted public services or resulted in a substantial expenditure of funds to respond to his offenses. The Court concludes that: (i) the Court will amend the PSR, because the conduct that the United States cites is relevant to the charged conduct; (ii) the 6-level enhancement under U.S.S.G. § 2A6.1(b)(1) does not apply, because Nissen did not demonstrate an intent to carry out his threats against NM State Police employees; and (iii) the 4-level enhancement under U.S.S.G. 2A6.1(b)(4) does not apply, because Nissen's offenses did not substantially disrupt public functions or services or result in substantial expenditure of funds. Accordingly, the Court sustains in part and overrules in part the Objections.
The Court takes its facts from the Revised PSR, disclosed October 4, 2019, and revised December 3, 2019,1 and the evidence introduced at the jury trial. This case deals with threats that Nissen communicated to NM State Police officers and dispatch employees on November 2 and 26, 2018. See Revised PSR ¶ 1, at 4. On the evening of November 2, 2018, NM State Police officer Jordan Burd stopped Nissen on Interstate 40 in Torrance County, New Mexico, near mile marker 194 and issued several traffic citations. See Revised PSR ¶ 6, at 4. About a half-hour later, Nissen called NM State Police dispatch six times and threatened to kill Officer Burd. See Revised PSR at ¶ 8, at 4. In the calls, Nissen said that an NM State Police officer had just given him several citations. See Revised PSR ¶ 8, at 4-5. Nissen then said:
You guys got some of the stupidest fucking pigs on the road. The next time someone violates me like that on the road, I'm gonna put a bullet in that fucking pig's head .... He violated my Fourth Amendment constitution, he violated my Second and my First Amendment and the next time he does it I'm gonna plea the Fifth, but next time I'm gonna take my revolver out and put that motherfucker drop dead.
Revised PSR ¶ 8, at 5. After fielding these calls, NM State Police "sent a warning out to all patrol officers that Nissen threatened police and should be considered armed and dangerous." Revised PSR ¶ 9, at 5. On November 26, 2018, Nissen against called NM State Police, this time calling the administrative line rather than dispatch. See Revised PSR ¶ 10, at 5. When Nissen thought that the NM State Police employee was not assisting him quickly enough, Nissen became verbally combative and threatened to shoot the NM State Police employee in the head. See Revised PSR ¶ 10, at 5. This is the conduct for which Nissen was indicted, see Indictment at 1, filed January 10, 2019 (Doc. 12), and convicted on two counts of transmitting threats in interstate commerce, in violation of 18 U.S.C. § 875(c), see Jury Verdict at 1, filed August 7, 2019 (Doc. 73).
On November 27, 2018, law enforcement officers were working on an assignment that, coincidentally, was very near to Nissen's home in Albuquerque, New Mexico. See Revised PSR ¶ 11, at 5. Due to law enforcement's prior interactions with Nissen, an NM State Police crisis intervention officer was sent to Nissen's home to verify whether he would be a threat to officers working near his home. See Revised PSR ¶ 11, at 5. The officer spoke with Nissen by telephone for over an hour, during which Nissen spoke about several subjects, ranging from constitutional rights to his conspiracy theories. See Revised PSR ¶ 11, at 5. Nissen told the officer that he was "on a secret mission from the Prime Creator" and that the CIA wanted to clone him, because he is the perfect man. Revised PSR ¶ 11, at 5. Nissen also said that he "always carries a .357 Magnum handgun and a shotgun everywhere he goes." Revised PSR ¶ 11, at 5. The officer took Nissen to the University of New Mexico Hospital Psychiatric Center for mental evaluation. See Revised PSR ¶ 11, at 5.
On December 11, 2018, Nissen, dressed in a hooded sweater, went to the main entrance of NM State Police's District 5 office in Albuquerque. See Revised PSR ¶ 38, at 8. Speaking into an intercom, Nissen kept his face covered, identified himself as Bob Jones, and said that he was there to deliver a gift. See Revised PSR ¶ 38, at 8. The NM State Police employee to whom Nissen spoke was the same one whom Nissen had threatened on November 26, 2018, and the employee recognized Nissen. See Revised PSR ¶ 38, at 8. Nissen began cursing and left an object directly in front of the office's door. See Revised PSR ¶ 38, at 8. Fearing that Nissen left a bomb, NM State Police evacuated the entire building and called the NM State Police's Bomb Squad. See Revised PSR ¶ 38, at 8. NM State Police later identified that object as a bleach bottle that had been painted black, with flowers and two envelopes protruding from its top. See Revised PSR ¶ 38, at 8. The envelopes contained written materials about sovereign citizens2 and constitutional issues. See Revised PSR ¶ 38, at 8. NM State Police "spent significant resources responding to Nissen's behavior." Revised PSR ¶ 38, at 8. The station was "shut down for at least two hours and numerous agencies were called to assist." Revised PSR ¶ 39, at 8. When NM State Police officers located Nissen after the event, Nissen "laughed and joked about the incident." Revised PSR ¶ 39, at 8. NM State Police issued a "trespass order" and took Nissen to the University of New Mexico Hospital Mental Health Center for evaluation. Revised PSR ¶ 39, at 8. Hospital staff were unable to evaluate Nissen, who became agitated and aggressive. See Revised PSR ¶ 39, at 8. NM State Police officers released Nissen from custody the following day. See Revised PSR ¶ 39, at 8.
On December 13, 2018, Nissen visited the Bernalillo County Sheriff's Office and spoke with Sheriff's Deputies to complain about the NM State Police. See Revised PSR ¶ 40, at 8. Nissen said that an officer stopped him near mile marker 194 on I-40, and that, after the stop, he called NM State Police dispatch Revised PSR ¶ 40, at 8. Nissen also told Bernalillo County Sheriff's Deputies that he owned multiple firearms including rifles and a revolver that he uses to "protect himself from ‘rogue cops.’ " Revised PSR ¶ 40, at 8.
The United States objects to the Revised PSR. See Objections at 1. Nissen has declined to respond to the Objections. See Hearing Transcript at 27:17-22 (taken May 8, 2020)(Romero, Court)("May 8 Tr.").3 The USPO responds and disagrees with the United States’ objections, maintaining its position that the United States’ requested enhancements are inapplicable. See Addendum to the Presentence Report at 1-2, filed December 3, 2019 (Doc. 92)("Addendum").
The United States first argues that the USPO "describes as irrelevant conduct that the Court has already ruled was relevant to the counts of convictions, and thereby makes several errors that must be corrected." Objections at 1. The United States notes that, before trial in this matter, it "filed notice that it intended to offer evidence of several non-charged incidents" under rule 404(b) of the Federal Rules of Evidence. Objections at 1 (). The United States says that it sought to admit evidence of three prior incidents at trial: (i) "the December 11, 2018 bomb scare initiated by Defendant at the New Mexico State Police ... office in Albuquerque"; (ii) Nissen's December 13, 2018, interview with Bernalillo County Sheriff's Deputies; and (iii) the State of New Mexico's recovery, during its execution of a search warrant, of Nissen's revolver, to which he referred in his interview with Bernalillo County Sheriff's Deputies. Objections at 1-2.
The United States contends that the Court concluded, on the United States’ MIL, that each of the above incidents is relevant to the Indictment's allegations. See Objections at 2 (citing Hearing Transcript at 15:2-17 (taken August 1, 2019)(Court)("Aug. 1 Tr.").4 The United States acknowledges, however, that the Court excluded the bomb scare incident and Nissen's revolver as unfairly prejudicial and potentially distracting to the jury. See Objections at 2. The United States argues, however, that the Court's ruling that each of the incidents are relevant to Nissen's conviction necessitates those incidents’ inclusion in the PSR's relevant conduction section. See Objections at 2...
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