United States v. Michael Reed

Filing

OPINION FILED - THE COURT: WILLIAM JAY RILEY, JAMES B. LOKEN and DUANE BENTON. James B. Loken, Authoring Judge (PUBLISHED) [3878238] [11-1462, 11-1463]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-1462
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United States of America,

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Plaintiff - Appellee,
v.
Michael Howard Reed,
Defendant - Appellant.
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Appeals from the United States
District Court for the
District of North Dakota.

No. 11-1463
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United States of America,
Plaintiff - Appellee,
v.
Gregory Allen Davis,
Defendant - Appellant.

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Submitted: October 18, 2011
Filed: February 9, 2012
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Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.
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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 court1 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,
1

The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota, who agreed to sit by designation after the District of North
Dakota district judges understandably recused.
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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
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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
(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; Black’s, supra, at 568; UCC § 9-102(32). The act of filing
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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 §§ 9102(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. § 9516(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
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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 for the District of North Dakota; . . . Michael
Howard Reed . . . Private Discharging and Indemnity Bond number 77915985385;[2]
Timothy Geithner, Secretary of the U.S. Treasury; [then listed as “acting agents” are the
U.S. Attorney General; the Department of Justice; the North Dakota Governor and Attorney
General; three criminal investigators; all District of North Dakota district and magistrate
judges; the District Court Clerk; Jordheim and an Assistant U.S. Attorney; and an Assistant
Federal Public Defender]; HACTC Detention Center . . . Rugby, North Dakota . . . Jurat
Affidavit of Obligation, Affidavit and Affirmation of the Facts. This UCC lien in this
instant action is $2,400,100.00 USD for default of court case # 4-09-cr-00076-DLH and
$1,000,000.00 (million) in sliver [sic] coinage for copyright violations of MICHAEL
HOWARD REED TM [no doubt meaning trademark].
The adjustment of this filing is from Public Policy and UCC 1-104. All proceeds, products,
accounts and fixtures including order(s) wherefrom are released to the debtor. . . . The
Secured Party stands by the Treaty of 1778, 1863, The Declaration of Princess Anne 1704
In regards to Mohegan Indians v Connecticut, The Royal Proclamation of King George
1763, Declaratory Judgment < 28 USC 201>; Esens=Little Shell occupants of the land.

2

Davis testified at trial and asserts on appeal that this listing of an otherwise
unexplained indemnity bond demonstrated his intent to protect, not harm, the listed
debtors. If even plausible, that was of course for the jury to decide.
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Davis argues the government failed to prove a violation of § 1521 because this
statement did not identify -- or, in UCC parlance, “indicate” -- any “property of”
Judge Hovland and Jordheim as collateral. But a lien or encumbrance by definition
always concerns the property of the debtor, so we question whether the evidence
would be insufficient as a matter of law on this ground if the government proved that
a false or fictitious lien was actually filed in a public record and proved the other
elements of § 1521 beyond a reasonable doubt.3 We need not decide that question in
this case because we conclude that a reasonable jury could find based on the collateral
section of Davis’s financing statement that he filed a lien against the property of
Judge Hovland and Jordheim and therefore violated § 1521:
First, Davis’s long narrative reciting the collateral covered by the financing
statement began by naming a pending District of North Dakota case being prosecuted
by Jordheim’s office before Judge Hovland, sufficient evidence that the lien was filed
“on account of the performance of [their] official duties.” Second, the description
identified an “Obligation” -- a debt -- and then recited the amount owed, $3.4
million. Next, the description named types of personal property against which valid
liens can be filed -- “sliver [sic] coinage” and “proceeds, products, accounts and
fixtures.” Finally, the description named, not a typical security agreement, but
ancient treaties, declarations, and proclamations, the types of legal documents out of
which liens could arise as a matter of law.
The lien was actually filed and became a public record. From the perspective
of third parties searching this public record for claims that might lessen the debtors’
interests in their properties, the lengthy description of collateral, however incoherent,
3

Some States have amended UCC Article 9 to give filing officers discretion to
refuse apparently fraudulent or unauthorized filings and to streamline procedures for
the removal of fraudulent filings. See White & Summers, Uniform Commercial Code
§ 31-16 (6th ed. 2010). Absent such an amendment, the UCC grants little authority
to refuse to accept fraudulent filings. See § 9-520(a) & cmt. 2.
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was likely to cause the financial harassment intended. No doubt the filing would not
have succeeded in perfecting a priority claim to any property as a matter of
commercial law. But that is not a defense. The prohibition in 18 U.S.C. § 1521 is
triggered by the filing of a false or fictitious lien, whether or not it effectively impairs
the government official’s property rights and interests. Indeed, legal insufficiency is
in the nature of the false, fictitious, and fraudulent liens and encumbrances that
Congress intended to proscribe. Therefore, viewing the evidence in the light most
favorable to the jury’s verdict and drawing all reasonable inferences supporting it, the
evidence was sufficient to convict Davis of violating 18 U.S.C. § 1521. United States
v. Ewing, 632 F.3d 412, 415 (8th Cir. 2011) (standard of review).
II. Self-Representation
At their separate arraignment hearings, Davis and Reed were uncooperative,
often belligerent. Reed covered his ears while the charges were read and threatened
to fire any standby counsel who might be appointed. Davis frequently interrupted the
proceedings, demanding that the magistrate judge present her “oath of office” and
insisting the court had no jurisdiction over him. Davis, too, refused court-appointed
counsel: “I don’t want to see a lawyer. If you do, I’m going to lien him down fast.”
Given their rejection of court-appointed counsel, the magistrate judge4 assigned Reed
and Davis standby counsel.
Prior to trial, in granting a continuance, the district court noted that “[n]either
defendant has demonstrated an ability to understand and articulate the correct law
applicable to their defense.” Two days later, the court wrote standby counsel, noting
the magistrate judge had protected defendants’ constitutional rights and instructing
counsel to make sure their clients understood the dangers of self-representation. To

4

The Honorable Alice R. Senechal, United States Magistrate Judge for the
District of North Dakota.
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that end, Judge Kornmann enclosed and instructed counsel to distribute to Davis and
Reed a two-page document containing a lengthy series of questions explaining the
complex tasks a defense lawyer performs at trial and illustrating why “a common
maxim is that a lawyer who represents himself has a fool for a client.”
Davis and Reed nonetheless insisted on representing themselves at trial; they
provided opening statements, cross-examined the government’s witnesses, testified
in their own defense, and offered a mountain of irrelevant documents relating to their
claims of personal sovereignty. Standby counsel were present throughout the trial
and participated in some matters, such as arguing evidentiary issues, with defendants’
approval. On appeal, Reed and Davis seek to overturn their convictions on the
ground that the district court erred by allowing them to exercise their constitutional
right of self-representation. Neither claims a mental illness or legal incompetency.
As the government notes, the contrary approach urged on appeal -- forcing attorneys
on unwilling, belligerent criminal defendants -- “would have made a volatile trial
situation much worse.”
A. Davis argues the district court erred in concluding that he knowingly and
voluntarily waived his right to counsel. Before allowing a defendant to represent
himself, a district court “must be satisfied that his waiver of appointed counsel is
knowing and voluntary.” United States v. Patterson, 140 F.3d 767, 774 (8th Cir.),
cert. denied, 119 S. Ct. 245 (1998). We review the waiver determination de novo and
affirm “if the record shows either that the court adequately warned him or that, under
all the circumstances, he knew and understood the dangers and disadvantages of self
representation.” United States v. Kind, 194 F.3d 900, 903-04 (8th Cir. 1999)
(quotation omitted), cert. denied, 528 U.S. 1180 (2000).
The pretrial and trial record demonstrate that Davis made a knowing and
voluntary waiver of his right to counsel after being repeatedly warned of the dangers
and disadvantages of doing so. The court provided Davis standby counsel. He
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allowed standby counsel to advise him during trial and to conduct some tasks where
a lawyer’s skills were needed, such as closing argument and jury instructions, while
Davis maintained control over the examination of witnesses and the introduction of
defense evidence. Compare Patterson, 140 F.3d at 775.
Citing Indiana v. Edwards, 554 U.S. 164 (2008), Davis argues the district court
should have denied him the right of self-representation because it was apparent he
would be “unable and/or unwilling to follow the rules of the court” or acknowledge
the court’s jurisdiction. Reed makes the same argument. But Edwards simply held
that a State may insist on counsel for defendants whose “severe mental illness” makes
them “not competent to conduct trial proceedings by themselves.” Id. at 177-78.
Edwards did not alter a fundamental premise of the constitutional right of selfrepresentation -- “a defendant who elects to represent himself cannot thereafter
complain that the quality of his own defense amounted to a denial of ‘effective
assistance of counsel.’” Faretta v. California, 422 U.S. 806, 834 n.46 (1975); see
Godinez v. Moran, 509 U.S. 389, 399-400 (1993); United States v. Berry, 565 F.3d
385, 391 (7th Cir. 2009). Like the unwise defendants in United States v. Johnson,
610 F.3d 1138, 1140 (9th Cir. 2010), Davis and Reed “had the right to represent
themselves and go down in flames if they wished, a right the district court was
required to respect.” Having given the appropriate warnings and determined that the
waiver of counsel was knowing and voluntary, the district court properly allowed
Davis and Reed to exercise their constitutional right of self-representation.
B. In addition to arguing he should not have been allowed to defend himself
foolishly, Reed raises an additional issue. His conduct demonstrated a lack of
rational understanding of the law and the proceedings, he argues, and therefore the
district court erred by failing to determine whether he was legally competent to
knowingly and intelligently waive his right to counsel. A defendant seeking to waive
his right to counsel must be competent to do so. However, “a competency

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determination is necessary only when a court has reason to doubt the defendant’s
competence.” Godinez, 509 U.S. at 401 n.13.
“Whether a competency evaluation is warranted is a determination within the
discretion of the district court.” United States v. Crawford, 487 F.3d 1101, 1105 (8th
Cir.), cert. denied, 128 S. Ct. 709 (2007). The district court is in the best position to
assess competency. United States v. Turner, 644 F.3d 713, 723 (8th Cir. 2011), citing
Edwards, 554 U.S. at 177. In United States v. Washington, we cited three factors that
supported the district court’s decision not to order a formal competency evaluation
before allowing the defendant to represent himself: (i) no party or attorney requested
an evaluation; (ii) the court’s direct observation of the defendant did not suggest need
for an evaluation; and (iii) the court “specifically concluded [the defendant] was
competent.” 596 F.3d 929, 941 (8th Cir.), cert. denied, 131 S. Ct. 336 (2010). In
addition, the defendant in Washington “did not show, and has not shown, that he
suffered from any sort of mental illness or incapacity.” Id.
Applying these Washington factors to the record in this case, we conclude the
district court did not abuse its discretion. Neither Reed, his standby counsel, nor the
government requested a competency evaluation. The district court had ample
opportunity over the course of the trial proceedings to observe and evaluate Reed’s
competence. At Reed’s arraignment, the magistrate judge declared, “given Mr.
Reed’s earlier statements, the Court is confident that Mr. Reed understands the
charges.” In his pretrial order granting a continuance, Judge Kornmann noted
defendants’ failure to “understand and articulate the correct law applicable to their
defense.” But the competence required “is the competence to waive the right, not the
competence to represent himself.” Godinez, 509 U.S. at 399. At the start of trial,
before jury selection, Reed’s lengthy colloquies with the court demonstrated that he
was committed to pursuing untenable defenses, but not that he lacked the mental
competence to stand trial and to knowingly waive his right to counsel. Although the
court made no specific finding of competence, the record reflects both the court’s on-11-

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going efforts to protect Reed’s right to a fair trial, and the lack of any objective sign
that Reed was not competent to waive his right to counsel. Finally, Reed does not
argue that he suffers from the kind of severe mental illness at issue in Edwards. See
United States v. Posadas-Aguilera, 336 F. App’x 970, 976 & n.5 (11th Cir. 2009).
For the foregoing reasons, the judgments of the district court are affirmed.
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