United States v. Reed

• Decision Date: 09 February 2012
• Docket Number: Nos. 11–1462,11–1463.,s. 11–1462
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael Howard REED, Defendant–Appellant.United States of America, Plaintiff–Appellee, v. Gregory Allen Davis, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

668 F.3d 978

UNITED STATES of America, Plaintiff–Appellee,

v.Michael Howard REED, Defendant–Appellant.United States of America, Plaintiff–Appellee,

v.Gregory Allen Davis, Defendant–Appellant.

Nos. 11–1462

11–1463.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 18, 2011.Filed: Feb. 9, 2012.

Kerry S. Rosenquist, argued, Grand Forks, ND, for appellant Michael Reed in 11–1462.

Joel L. Larson, argued, Grand Forks, ND, for appellant Gregory Davis in 11–1463.

Thomas J. Wright, AUSA, argued, Sioux Falls, SD, for appellee.

Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.

LOKEN, Circuit Judge.

Gregory Allen Davis and Michael Howard Reed irrationally believe that their membership in the Little Shell Nation, an unrecognized Indian tribe, means they are not United States citizens subject to the jurisdiction of the federal courts. This belief led them into serious trouble. First, Reed threatened North Dakota District Judge Ralph Erickson because he refused to dismiss federal drug charges against two other Little Shell members. Months later, when District Judge Daniel Hovland denied a motion to dismiss a firearm charge pending against Reed, Davis filed a Uniform Commercial Code (UCC) financing statement listing Judge Hovland and acting United States Attorney Lynn Jordheim as $3.4 million debtors and Davis as the secured party. After a three-day trial, a jury convicted Davis and Reed of conspiring to file and filing false liens against Judge Hovland and Jordheim in violation of 18 U.S.C. § 1521. The jury also convicted Reed of corruptly obstructing justice in violation of 18 U.S.C. § 1503(a), based on his earlier threats. On appeal, Davis argues that the evidence was insufficient to prove a violation of § 1521. Both Davis and Reed argue, for somewhat different reasons, that the district court ¹ violated their constitutional rights by allowing them to represent themselves at trial. We affirm.

I. Sufficiency of the Evidence To Convict Davis

This is apparently the first appeal of a conviction under 18 U.S.C. § 1521, part of the Court Security Improvement Act of 2007. Pub.L. 110–177, § 201(a), 121 Stat. 2536 (2008). The statute provides:

Whoever files, attempts to file, or conspires to file, in any public record or in any private record which is generally available to the public, any false lien or encumbrance against the real or personal property of an individual described in [18 U.S.C.] section 1114, on account of the performance of official duties by that individual, knowing or having reason to know that such lien or encumbrance is false or contains any materially false, fictitious, or fraudulent statement or representation, shall be fined under this title or imprisoned for not more than 10 years, or both.

Its legislative history explains that the statute is “intended to penalize individuals who seek to intimidate and harass Federal judges and employees by filing false liens against their real and personal property.” H.R.Rep. No. 110–218, pt. 1, at 17 (2007), 2007 WL 2199736 at *17.

Reed and Davis conducted a recorded telephone conversation on January 5, 2010, the day Judge Hovland issued an order denying Reed's motion to dismiss the pending firearms charge. The two discussed placing UCC liens for $2.4 million in cash and $1 million in silver against federal entities. The next day, Davis electronically filed a Form UCC–1 financing statement with the Recorder of Deeds in Washington, D.C., listing as debtors, “1. U.S. District Court of North Dakota/Daniel Hovland,” and “2. Acting United States Attorney, Lynn C. Jordheim.” The filing immediately became a public record because the Recorder of Deeds office accepts electronically filed statements without review.

At trial, an FBI agent testified that, during a January 20 interview, Davis admitted to filing this lien, threatened to file more liens, and referred to the statute prohibiting false liens as “ass wipe.” Testifying in his own defense at trial, Davis asserted a right to file the liens against Judge Hovland and Jordheim and stated that the liens had “monetary value,” but denied that the liens were intended to harm, or in fact harmed, Judge Hovland and Jordheim. The government's evidence included a May 5, 2010, “Notice of Default” that Reed filed with the District of North Dakota Clerk of Court demanding payment of $3.4 million and referencing the ten-digit number assigned by the Recorder of Deeds to the financing statement filed by Davis. When asked during cross-examination, “What do you believe [Judge Hovland and Jordheim] owe you or Mr. Reed,” Davis replied, “Well, they owe me Mr. Reed. They took Mr. Reed from us on their sovereign jurisdiction. We want him back.” Judge Hovland and Jordheim testified that they are not indebted to Davis.

Not challenging this formidable evidence that he knowingly filed a false or fictitious lien against Judge Hovland and U.S. Attorney Jordheim in a public record and on account of their performance of duties in a pending case, Davis argues that the government nonetheless failed to prove that he violated 18 U.S.C. § 1521 because the UCC–1 financing statement listed no “real or personal property of” Judge Hovland or Jordheim as collateral. This insufficiency contention requires us to discern what types of false or fictitious filings Congress intended to prohibit by the term “lien or encumbrance against the real or personal property of” an individual government official. “When a sufficiency argument hinges on the interpretation of a statute, we review the district court's statutory interpretation de novo.” United States v. Gentry, 555 F.3d 659, 664 (8th Cir.2009). We of course assume that Congress intended to adopt the plain meaning or common understanding of the words used in a statute. See United States v. Idriss, 436 F.3d 946, 949 (8th Cir.2006).

The words “lien” and “encumbrance,” though encompassing a wide variety of commercial and financial devices, have a universally accepted meaning in this country. A lien is a property right, usually a legal right or interest that a creditor has in a debtor's property, whether perfected or merely claimed. See, e.g., Permanent Mission of India to the United Nations v. City of New York, 551 U.S. 193, 198, 127 S.Ct. 2352, 168 L.Ed.2d 85 (2007); Mead v. Mead, 974 F.2d 990, 992 (8th Cir.1992), quoting 11 U.S.C. § 101(37); S.E.C. v. Credit Bancorp., Ltd., 297 F.3d 127, 138 (2d Cir.2002); Black's Law Dictionary 941 (8th ed. 2004). Likewise, an encumbrance is a claim or liability that attaches to property, usually though not always real property. Permanent Mission, 551 U.S. at 198, 127 S.Ct. 2352; Black's, supra, at 568; UCC § 9–102(32). The act of filing does not create the lien or encumbrance. Rather, filing is a method, often the exclusive method, of perfecting a lien claim against the rights of those who assert competing claims against the property. See, e.g., UCC § 9–310(a). This confirms that Congress limited the prohibition in § 1521 to financial harassment—filings that harass by claiming rights to the property of public officials—not to all types of false public filings that might harass public agencies or officials in other ways. Thus, if Davis had filed his lien against the District of North Dakota, without naming Judge Hovland and Jordheim as “debtors,” he might or might not have committed some other offense, but he would not have violated § 1521.

Most liens are created by a contract between the debtor and a creditor, such as a security agreement. Some arise by operation of law, such as a materialman's lien or a federal tax lien. See, e.g., 26 U.S.C. § 6321. Filing requirements to perfect a lien are prescribed by statute and vary with the type of lien. We deal here with a filing under the UCC, which has been adopted with minor variations by every State. The UCC governs the creation, attachment, and perfection of “security interests,” which are contractual “liens” within the meaning of 18 U.S.C. § 1521. See UCC §§ 9–102(72)(A), 9–201(a), 9–203(a), 9–301. Under the UCC, most security interests are perfected by the filing of a financing statement, typically a Form UCC–1. § 9–310(a). The financing statement is “sufficient” if it names the debtor, names the secured party (creditor) or a representative, and “indicates the collateral covered.” § 9–502. An indication that the collateral “covers all assets or all personal property” is sufficient. § 9–504. A financing statement is filed when it is accepted by the filing office. § 9–516(a). Davis's financing statement was accepted without substantive review.

The financing statement filed by Davis, which he testified was a “lien,” identified Judge Hovland and Jordheim as debtors. Davis filed the statement with the D.C. Recorder of Deeds. Normally, the UCC provides, a financing statement is filed in the State where an individual debtor resides, here, North Dakota. See §§ 9–301(1), 9–307(b)(1), 9–501(a). But the UCC also provides that the District of Columbia is a default debtor location. § 9–307(c). Moreover, § 9–307(h) provides, “The United States is located in the District of Columbia,” and the first debtor named in Davis's financing statement was a United States District Court. Thus, Davis chose a filing office whose public records would likely be searched by a party looking for adverse claims against the properties of Judge Hovland and Jordheim, such as prospective lenders, credit card issuers, and credit rating agencies. He also filed the facially suspect statement electronically and it became a public record without review.

The issue raised by Davis on appeal focuses on the incoherent “collateral” section of his Form UCC–1 financing statement. To frame the issue, we set forth nearly all of this lengthy portion of the statement:

4. This Financing Statement covers the following collateral:

Accepted for full value alleged court case # 4–09–cr–00076–DLH [Reed's pending prosecution], United States District Court...