Argued and Submitted, San Francisco, California
October 6, 2014.
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Eastern District of California. D.C. No. 1:11-cr-00297-LJO-1. Lawrence J. O'Neill, District Judge, Presiding.
The panel affirmed a conviction and sentence for fourteen counts of attempting to file false liens and encumbrances against the real or personal property of officers and employees of the United States Penitentiary, Atwater, in violation of 18 U.S.C. § 1521.
The panel held that the prohibition in § 1521 is triggered by the filing, attempting to file, or conspiring to file a false or fictitious lien, without regard to the validity or existence of the collateral identified in the document; and that on plain error review, the conviction was supported by sufficient evidence.
The panel held that the district court did not commit plain error in failing to hold a competency hearing sua sponte before allowing the defendant to represent himself at all stages of the proceedings.
The panel held that the district court did not commit plain error in applying a two-level enhancement pursuant to U.S.S.G. § 2A6.1(b)(2)(B) for multiple liens against multiple victims; and that because the § 2A6.1(b)(2)(B) enhancement and the grouping guideline, U.S.S.G. § 3D1.4, serve distinct purposes, the Sentencing Commission authorized and intended the cumulative application of both provisions.
The panel held that the district court did not plainly err in imposing the sentence, despite the fact that the presentence report inaccurately described the length of the defendant's prior sentences.
John Paul Balazs (argued), Sacramento, California, for Defendant-Appellant.
Jared C. Dolan (argued) and Michael G. Tierney, Assistant United States Attorneys, Sacramento, California, for Plaintiff-Appellee.
Before: Sandra S. Ikuta, N. Randy Smith, and Mary H. Murguia, Circuit Judges.
N.R. SMITH, Circuit Judge:
A defendant violates 18 U.S.C. § 1521 when the defendant files, attempts to file,
or conspires to file a false document of the sort regularly used to create liens or encumbrances against the real or personal property of a United States officer or employee. The prohibition is triggered by filing, attempting to file, or conspiring to file a false or fictitious lien, whether or not the described collateral sought to be liened or encumbered in the document is in fact real or personal property.
Additionally, we find the district court did not commit plain error in (a) allowing Defendant-Appellant Denard Neal to represent himself throughout these proceedings; (b) applying the two-level enhancement described in United States Sentencing Guidelines Manual (" USSG" ) § 2A6.1(b)(2)(B) to Neal's sentence; and (c) imposing 87-months' imprisonment on each of the fourteen counts (to be served concurrently with each other, but consecutively to any unserved prior term of imprisonment), though the presentence report inaccurately described the length of Neal's prior sentences.
In 2010, Neal was serving a sentence for armed robbery in the United States Penitentiary, Atwater (" USP-Atwater" ) in Merced County. While processing another prisoner for release from the penitentiary, USP-Atwater guards discovered a package that Neal had given the prisoner to mail for Neal once released. Upon inspecting Neal's package, the guards discovered various handwritten documents. Four of the documents were titled " Security Agreement Commercial Lien," identifying Neal as the secured party and fourteen USP-Atwater employees as debtors. Each Security Agreement was accompanied by a standardized Uniform Commercial Code (" UCC" ) Financing Statement (" UCC-1" ). The Security Agreements and UCC-1 Financing Statements (" Lien Documents" ) indicated that the identified USP-Atwater employees owed Neal amounts ranging from five thousand to forty-five million dollars, arising from their alleged criminal activities that caused Neal harm. Each Lien Document listed collateral for the lien as the employee's " oath of offices and all collateral related to the bonds that support, endorse the oath of offices." According to the Lien Documents, the " liens were to remain in place for 100 years," or until Neal was paid in full.
Included with the Lien Documents was a cover letter from Neal to his mother. In the letter, Neal asked his mother to type the documents. Neal also gave his mother step-by-step instructions for correctly filing the documents with the California Secretary of State and the County Recorder in Merced County on his behalf. Neal advised his mother that the " value of each oath of office [could] be found in the Security Agreement and matching UCC-1." Neal wanted his mother to act quickly. Once the documents were filed, Neal wanted to " present the documents to the Department of Justice and get [the USP-Atwater employees] fired."
Lastly, a letter addressed to Deputy Assistant Attorney General Daniel Koffsky was included in the packet. The letter claimed to provide " Actual and Constructive Notice" that Neal had " filed and registered the enclosed government officials['] Oath of Offices with the [California] Secretary of State."
After discovering Neal's Lien Documents, the FBI interviewed Neal about his
attempt to file liens against the USP-Atwater employees. In the interview, Neal affirmed he wrote the documents. Neal told the agent the fourteen USP-Atwater employees had committed crimes against him. Because of their crimes, Neal concluded the employees should be fired and should also monetarily compensate him. As a result of the information obtained in the interview and in Neal's packet, Neal was charged with fourteen counts of attempting to file false liens and encumbrances against the real or personal property of fourteen officers and employees of USP-Atwater, in violation of 18 U.S.C. § 1521.
At Neal's arraignment and plea hearing, Neal informed the court that he wanted to represent himself. In response, the court immediately conducted a Faretta hearing. The court informed Neal of: (1) the nature of the charges against him; (2) the possible penalties; and (3) the dangers and disadvantages of self-representation. During the hearing, Neal frequently engaged in lengthy back-and-forth dialogue in response to the court's questions. Neal affirmed that he understood the charges against him and the possible penalties. Neal also respectfully disagreed with the court's admonishment that Neal would be better off represented by counsel. Neal reasoned he was better off without a lawyer, because lawyers did not have a very high success rate. Neal also stated that no one " fights for yourself like you do." Neal's adamant desire to represent himself did not diminish during the hearing. At the conclusion of the hearing, the court found Neal wanted to represent himself and that Neal had knowingly and voluntarily waived his right to counsel.
Before trial, Neal filed numerous motions. In many of Neal's filings, Neal disputed the court's jurisdiction, asserting the " United States [was] a corporation." The court denied most of Neal's motions as frivolous and nonsensical.
At trial, Neal's Lien Documents were presented as exhibits and entered into evidence. Neal did not dispute that he created and attempted to file the Lien Documents. Instead, Neal argued his liens were not criminal, because USP-Atwater employees had engaged in various criminal activities causing him personal harm and losses. Neal also argued his liens did not violate the statute, because the collateral he identified (oath of offices and all collateral related to the bonds that support or endorse the oath of offices) was owned by the American people, not a USP-Atwater employee. Neal even encouraged the jury to look at the Lien Documents, stating the jury would agree the documents " [do] not mention any real property." Neal argued that his Lien Documents " plac[ed] a value on the oath of office, not on the debtor." Neal encouraged the jury to ignore the government's expert witness " [b]ecause [the expert] couldn't read or understand" his Lien Documents. Neal argued the real reason he was being prosecuted was " because [he] came up with a concept to remove government officials from their office when they commit criminal activity," not for " fil[ing] liens against government officials."
The government argued Neal's Lien Documents were precisely the type of documents prohibited by the statute. The government explained Neal's documents were of the sort regularly used to create liens and encumbrances against property. According to the government, Neal's motivation was retaliation. Neal's Lien Documents accused the employees of engaging in a litany of criminal actions (trespass, theft, fraud, " aiding and abetting, and numerous criminal torts, acts constituting treason and sedition against the Life, Liberty, private property, birthright
and happiness of our Master Secured Party/Creditor Denard-Darnell Neal" ), allegedly resulting in personal harm to Neal. In the Lien Documents, Neal also claimed each USP-Atwater employee admitted committing the various criminal offenses against him while they were employed at USP-Atwater. " I [USP-Atwater employee] do freely admit and affirm without reservation . . . [regarding] the above state acts . . . [I] acted with intent . . . [and] did commit . . . criminal acts . . . ." Further, the liens declared that each USP-Atwater employee agreed to the imposition of Neal's liens. " I [USP Atwater employee] . . . accept and agree that this . . . Common Law Lien is Binding Upon ALL OATH OF OFFICES AND ALL COLLATERAL RELATED TO THE BONDS THAT SUPPORT, ENDORSE THE OATH OF OFFICES."
As shown in Neal's Lien Documents, Neal's collateral was not limited to the employee's oath of office. The collateral also included all bonds that supported and endorsed the oaths of office. The government's expert witness testified that, despite the falsity and technical deficiencies of Neal's documents, they would likely be accepted and filed. Once filed, the alleged debtors would bear the burden of proving the documents false and having the liens removed.
After the two-day jury trial, Neal was convicted on all fourteen counts. The district court sentenced Neal to 87-months' imprisonment on each of the fourteen counts, to be served concurrently with each other but consecutively to any prior, undischarged term of imprisonment. Neal filed a timely appeal.
Neal appeals (1) the sufficiency of the evidence. Neal argues the evidence was insufficient to support his conviction, because the collateral he identified (oath of offices and all collateral related to the bonds that support or endorse the oath of offices) is not the real or personal property of a federal officer or employee. Neal appeals (2) his waiver of counsel, claiming he was incompetent. Neal argues it was error for the court to allow him to represent himself throughout the proceedings without holding a competency hearing. Neal also appeals (3) his sentence. Neal argues the application of a two-level, multiple-lien enhancement to his sentence resulted in impermissible double counting. Finally, Neal appeals ...