United States v. Nissen
| Decision Date | 27 July 2021 |
| Docket Number | CR 19-0077 JB |
| Citation | 550 F.Supp.3d 1002 |
| 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, Jack Burkhead, Paul Mysliwiec, 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.
UNSEALED1 MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Motion for Temporary Transfer of Defendant to FMC - Butner to Determine Competency, filed May 3, 2020 (Doc. 137)("Motion"). The Court held a hearing examining Defendant Michael James Nissen's competency on May 7, 2020. See Clerk's Minutes at 1, filed May 7, 2020 (Doc. 144). The primary issue is whether Nissen has demonstrated, by a preponderance of the evidence, that he presently suffers from a mental illness that renders him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. The Court concludes that Nissen has demonstrated, by a preponderance of the evidence, that he presently suffers from a mental disease or defect that renders him mentally incompetent to proceed with his sentencing. Accordingly, the Court grants the Motion pursuant to 18 U.S.C. § 4241(d) and transfers Nissen to the custody of the Attorney General of United States for evaluation and treatment.
The Court makes the following findings of fact. The Court's findings of fact, where possible, will proceed chronologically. The Court makes its findings based upon its review of: (i) the report that Mercedes Marshal, Ph.D., submitted on June 8, 2019, see Psychological Competency Evaluation, filed June 10, 2019 (Doc. 29)("Marshall Report"); (ii) the Revised Presentence Investigation Report, filed November 7, 2019 (Doc. 88)("Revised PSR")2 ; (iii) the report of the first evaluation that Julie M. Brovko, Ph.D., attempted on April 30, 2020, see Forensic Psychological Report, filed May 7, 2020 (Doc. 141)("First Brovko Report"); and (iv) the report of the second evaluation that Dr. Brovko attempted on May 13, 2020, see Forensic Psychological Report - update, filed June 8, 2020 (Doc. 147)("Second Brovko Report"). Because Nissen did not speak with the United States Probation Office as it prepared the Revised PSR, and because Nissen has largely not cooperated with Dr. Brovko's evaluation attempts, Nissen's biographical information is scant. See Revised PSR ¶ 14, at 6; First Brovko Report at 2; Second Brovko Report at 2.
1. Nissen was born on March 8, 1955, and has lived in Albuquerque, New Mexico, his entire life. See Revised PSR at 3.
2. Nissen dropped out of high school during his junior year. See Revised PSR ¶ 60, at 14.
3. Nissen worked for several years as a plumber with his father, but lately has been working "odd jobs" fixing appliances. Revised PSR ¶ 61, at 14.
4. Nissen is six feet and two inches tall, and weighs approximately 220 pounds. See Revised PSR ¶ 56, at 12.
5. Some of Nissen's biological family members have been diagnosed with schizophrenia
. See Marshall Report at 9.
6. Nissen was married for eight years, but his wife "left [him] three years ago because she was scared with all the stuff [he] was telling her." Marshall Report at 7.
7. Excluding the current federal charges, Nissen has no juvenile or adult criminal convictions. See Revised PSR ¶¶ 41-42, at 8-9.
8. Nissen is fixated on the sovereign citizens Movement, a conspiracy theory that posits that a secret judicial regime bent on enslaving American citizens is the United States’ true governing force, that judges are part of this cabal, and that individuals who are aware of this scheme can attain diplomatic and sovereign immunity from prosecution or detention. See Revised PSR ¶ 46, at 9.
9. The theory's adherents believe that, by invoking certain baroque procedures, they obtain diplomatic and sovereign immunity from paying taxes, traffic stops by law enforcement, and other legal restrictions. See United States v. Nissen, 2020 WL 1929526, at *21 n.7 (D.N.M. April 21, 2020) (Browning, J.).
10. Nissen also believes that "Jesuits" and "Masons" control society and government. Marshall Report at 7.
11. On the evening of November 2, 2018, New Mexico State Police ("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 while Nissen attempted to show Burd YouTube videos explaining the sovereign citizens Movement. See Revised PSR ¶ 6, at 4.
12. About a half-hour later, Nissen called NM State Police dispatch six times and threatened to kill Burd. See Revised PSR at ¶ 8, at 4.
13. In the calls, Nissen said that an NM State Police officer had just given him several citations. See Revised PSR ¶ 8, at 4-5.
14. 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.
15. On November 26, 2018, Nissen again called NM State Police, this time calling the administrative line rather than dispatch. See Revised PSR ¶ 10, at 5.
16. 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.
17. These are the acts for which Nissen was indicted, see Indictment at 1, filed January 10, 2019 (Doc. 12), and convicted; specifically, 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).
18. On November 27, 2018, law enforcement officers were working on an assignment that, coincidentally, was very near to Nissen's home in Albuquerque. See Revised PSR ¶ 11, at 5.
19. 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.
20. The officer spoke with Nissen by telephone for over an hour, during which Nissen spoke about several subjects, ranging from his constitutional rights to his conspiracy theories. See Revised PSR ¶ 11, at 5.
21. Nissen told the officer that Nissen 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.
22. Nissen also said that he "always carries a .357 Magnum handgun and a shotgun everywhere he goes." Revised PSR ¶ 11, at 5.
23. On December 11, 2018, Nissen, dressed in a hooded sweater, went to the main entrance of NM State Police's District 5 office. See Revised PSR ¶ 38, at 8.
24. Speaking into an intercom, Nissen kept his face covered, identified himself as Bob Jones, and said that he was there to deliver flowers. See Revised PSR ¶ 38, at 8.
25. The NM State Police employee to whom Nissen spoke was the same that he had threatened on November 26, 2018, and recognized Nissen. See Revised PSR ¶ 38, at 8.
26. Nissen began cursing and left an object directly in front of the office's door. See Revised PSR ¶ 38, at 8.
27. 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 citizens3 and constitutional issues. See Revised PSR ¶ 38, at 8.
28. 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.
29. When NM State Police officers located Nissen after the event, Nissen "laughed and joked about the incident." Revised PSR ¶ 39, at 8.
30. 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.
31. Hospital staff were unable to evaluate Nissen, who became agitated and aggressive. See Revised PSR ¶ 39, at 8.
32. NM State Police officers released Nissen from custody the following day. See Revised PSR ¶ 39, at 8.
33. On December 13, 2018, Nissen visited the Bernalillo County Sheriff's Office and spoke with deputies to complain about the NM State Police. See Revised PSR ¶ 40, at 8.
34. Nissen said that he was stopped by mile marker 194 on I-40, and that, after the stop, he called NM State Police dispatch Revised PSR ¶ 40, at 8.
35. 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.
36. Nissen was arrested pursuant to a federal arrest warrant on December 19, 2018. See Revised PSR ¶ 46, at 11.
37. Nissen has been in the continuous custody of the United States Marshal's Service at the Cibola County Detention Center since December 19, 2018. See Revised PSR ¶ 46, at 11.
38. On February 5, 2019, at Nissen's request, the Court ordered that Nissen be locally evaluated for mental competency to stand trial. See Order for Local Evaluation of Mental Competency at 1, filed February 5, 2019 (Doc. 18).
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