United States v. Sellors , 572 F. App'x 628 ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 22, 2014
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 13-1470
(D.C. No. 1:13-CR-00140-CMA-2)
PAUL ERNEST SELLORS, (D. Colo.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before MATHESON, PORFILIO, and PHILLIPS, Circuit Judges.
Paul Ernest Sellors, proceeding pro se, appeals from his four-count conviction
under 18 U.S.C. § 505, which prohibits forging or counterfeiting the seal of a court of
the United States or knowingly concurring in using any such forged or counterfeit
seal. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, claim preclusion, and issue
preclusion. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Background
Sellors was formerly a member of the Republic for the united States of
America (RuSA), a group that created its own government, including its own courts.
He testified that the RuSA community appointed him to be a judge. In this capacity,
as “Judge Paul Ernest Sellors, District Court Justice,” he signed four documents
purporting to be orders of the “United States of America District Court, District of
Minnesota.” R. Supp. Vol. 1 at 2-3, 11, 15, 20-21. These documents were issued in
apparent anticipation of a trial of some kind. The named plaintiff was Ronald Roy
Hoodenpyle, who had been convicted of filing a false lien against a revenue officer
some two years earlier in Colorado. Hoodenpyle had recently violated the terms of
his supervised release.
The documents were formatted to resemble federal-district-court orders and
bore a seal in a circular shape, with “United States of America District Court”
appearing around the top of the circle, “District of Minnesota” around the bottom,
and “Clerk of Court” along the diameter. Id. at 3, 11, 15, 21. They were mailed or
faxed to individuals and entities, all in Colorado, who had been involved with
Hoodenpyle’s prosecution.
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Sellors was indicted in Colorado with four counts (one for each seal) of
violating 18 U.S.C. § 505.1 This statute provides in relevant part: “Whoever . . .
forges or counterfeits the seal of any [court of the United States], or knowingly
concurs in using any such forged or counterfeit . . . seal, for the purpose of
authenticating any proceeding or document . . . knowing such . . . seal to be false or
counterfeit, shall be fined under this title or imprisoned not more than five years, or
both.”
The district court appointed counsel to represent Sellors, but he rejected that
appointment as well as the appointment of advisory stand-by counsel. During his
defense, Sellors admitted that he held himself out as an Article III Judge when he
signed the documents at issue but that the court in which he was being tried (the
Federal District Court for the District of Colorado) was in fact a legitimate Article III
Court. He also admitted that he signed his name next to the District-of-Minnesota
seal, that he participated or concurred in sending off the documents, and that he
wanted people who received the documents to get notice of upcoming judicial
proceedings. R. Vol. 4 at 102. Notwithstanding this testimony, Sellors asserted that
he neither intended to defraud nor pretended to be a district court judge. Rather, he
testified that his intent was “to invite folks to settle their disputes in our forum, The
People’s Court.” Id.
1
Hoodenpyle was identically charged under the same indictment. He entered
into a plea agreement with the government and received a sentence of two months in
prison—to be served consecutive to preexisting criminal sentences.
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The jury convicted Sellors of all four counts, and the district court denied his
post-verdict Fed. R. Crim. P. 29(c) motion for acquittal. He was sentenced to
eighteen months of imprisonment on each count, to be served concurrently. He now
appeals from his convictions.
Analysis
Liberally construing Sellors’ pro se opening brief, see United States v. Davis,
339 F.3d 1223, 1225 (10th Cir. 2003), we identify the following arguments: (1) lack
of jurisdiction; (2) improper venue; (3) invalid indictment; (4) insufficiency of the
evidence; (5) violation of his First Amendment rights; (6) inadequate waiver of
counsel; (7) error in allowing the government to introduce evidence concerning the
“sovereign citizen” movement; and (8) invalid jury selection and composition. Any
other arguments that Sellors may have intended to bring on appeal are inadequately
briefed and deemed waived. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 841 (10th Cir. 2005) (stating that Fed. R. App. P. 28 “applies equally to pro se
litigants” and requires more than “mere conclusory allegations with no citations to
the record or any legal authority for support”); Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 679 (10th Cir. 1998) (holding that arguments inadequately presented in
the opening brief are waived).
I. Arguments Not Preserved in the District Court
With only a few exceptions, Sellors has failed to identify where in the record
he raised the issues he brings up on appeal, as required by 10th Cir. R. 28.2(C)(2). It
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is not this court’s task to comb through the record to determine whether he preserved
his arguments for appeal. Thus, except where our review of the appellate record has
shown otherwise, we assume that his arguments were not preserved. See United
States v. Barber, 39 F.3d 285, 287 (10th Cir. 1994). At best, any unpreserved
arguments were forfeited and are reviewable on appeal only for plain error. See Fed.
R. Crim. P. 52(b); United States v. Lamirand, 669 F.3d 1091, 1100 n.7 (10th Cir.
2012); Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-30 (10th Cir. 2011). But
Sellors does not argue for plain-error review, and “the failure to argue for plain error
and its application on appeal [] surely marks the end of the road for an argument for
reversal not first presented to the district court.” Richison, 634 F.3d at 1131.
Accordingly, we deem the following arguments to have been forfeited on
appeal, and we do not further consider them: (1) that venue was improper because
(a) his actions took place in Minnesota, not in Colorado, and (b) he “was not judged
by his peers, but by citizens of the United States not of the Minnesota
vicinage/community,” Aplt. Br. at 33; (2) that the indictment was invalid because
(a) “the people who acted as ‘grand jurors’ for the USA Agents also acted as USA
Officers due to their ‘oaths of office,’” and therefore he “was indicted by USA
Officers, not by people of the states united,” id. at 6-7, (b) the grand jurors were not
of his “state or of the Minnesota state body politic,” id. at 7, and (c) he was not given
the opportunity to make a presentment to the grand jury; (3) that the evidence was
insufficient as to (a) his status as a “Whoever,” id. at 14, (b) the use of the seal to
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authenticate a document, and (c) his involvement with or knowledge of the creation
or use of the seal; (4) that he was prosecuted in violation of his First Amendment
rights; (5) that the prosecution was required to establish intent as an element; and
(6) that the jury composition and/or selection was unconstitutional.
II. Subject-Matter Jurisdiction
Arguments regarding subject-matter jurisdiction are not forfeitable or
waivable. United States v. Cotton, 535 U.S. 625, 630 (2002). Accordingly, we
address those arguments we construe as jurisdictional here—namely, that the district
court lacked jurisdiction because: (1) Sellors’ “commercial/personhood status” was
not disclosed to him, Aplt. Br. at 4, but “a status/personhood must be known and be a
target of the Act in order for the USA Agents to be able to exercise their
Constitutional power,” id. at 2; (2) “Plaintiffs’ authority source was not disclosed,”
id. at 3; (3) the United States could not bring this action because it “must be a
corporation” and therefore it is “property,” with “no standing in a Federal Court
against one of the people,” id. at 3-4; and (4) “this action was at best a copyright
infringement” and “was never a criminal issue,” id. at 3.
These arguments are patently frivolous. The district court had jurisdiction to
try Sellors for violating 18 U.S.C. § 505, a criminal statute of the United States. See
18 U.S.C. § 3231 (“The district courts of the United States shall have original
jurisdiction, exclusive of the courts of the States, of all offenses against the laws of
the United States.”); see also United States v. Benabe, 654 F.3d 753, 767 (7th Cir.
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2011) (“Regardless of an individual’s claimed status of descent, be it as a ‘sovereign
citizen,’ a ‘secured-party creditor,’ or a ‘flesh-and-blood human being,’ that person is
not beyond the jurisdiction of the courts. These theories should be rejected
summarily, however they are presented.”); Lonsdale v. United States, 919 F.2d 1440,
1448 (10th Cir. 1990) (rejecting similar arguments in the tax-protestor context).
III. Indictment
Apparently challenging the sufficiency of the indictment, Sellors argues that
“not one of the ‘Counts’ contains a charge for a Jury to determine guilt,” Aplt. Br. at
6. A similar argument appeared in his Rule 29(c) motion: “[e]ach count which was
submitted to the jury was in fact an exhibit and not an allegation as outlined in the
Glossary meaning of Count.” R. Vol. 1 at 340. It is not clear whether he challenged
the indictment before filing the Rule 29(c) motion, and a challenge’s timing may
affect the standard of review. See United States v. Doe, 572 F.3d 1162, 1173 & n.9
(10th Cir. 2009) (“While a timely-raised objection to the sufficiency of the
information merits de novo review, courts are less hospitable to challenges to an
information later in the proceedings.” (brackets and internal quotation marks
omitted)). But we need not resolve this issue because the result does not turn on the
standard of review.
“An indictment, or information, is sufficient if it contains the elements of the
offense charged, putting the defendant on fair notice of the charge against which he
must defend, and if it enables a defendant to assert a double jeopardy defense.” Id. at
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1173 (brackets and internal quotation marks omitted). Here the indictment tracked
the language of § 505, setting forth the specific provisions that Sellors allegedly
violated. It listed the four documents containing the seal in a table correlating each
document with a particular count. Sellors does not coherently explain how it was
improper for the indictment to take this form; the fact that the documents listed in the
table later were introduced into evidence does not invalidate the indictment.
IV. Sufficiency of the Evidence
In his Rule 29(c) motion, Sellors challenged the sufficiency of the evidence on
the grounds that “[t]he issue of the counterfeit seal was never established or proven”
and “[n]ot one of the witnesses presented by the prosecution was able to testify as to
any evidence of counterfeit.” R. Vol. 1 at 341. Accordingly, he has preserved these
specific arguments for appeal. See United States v. Goode, 483 F.3d 676, 681
(10th Cir. 2007) (“When a defendant challenges in district court the sufficiency of the
evidence on specific grounds, all grounds not specified in the motion are waived,”
although “it is more precisely termed a forfeiture when there is no suggestion of a
knowing, voluntary failure to raise the matter.” (internal quotation marks omitted)).
We review the sufficiency of the evidence de novo to determine “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.” United States v. Serrato, 742 F.3d 461, 472 (10th Cir.) (internal quotation
marks omitted), cert. denied, 134 S. Ct. 2739 (2014).
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Viewed in the light most favorable to the prosecution, there was ample
evidence for the jury to conclude that the seals were forged or counterfeit seals of a
United States court. The testimony showed that Sellors is not a federal judge and
that the documents bearing the seals were not orders of the federal district court in
Minnesota. An employee of the clerk’s office for the federal district court in
Minnesota testified that the seal “appear[ed] to be a seal from the District of
Minnesota,” but that it was not a genuine seal. R. Supp. Vol. 1 at 154. Recipients of
the documents testified that they noticed the seal and that it played a role in their
initial misconceptions that the documents were communications from the federal
district court in Minnesota. During cross-examination of one of the recipients—an
assistant United States district attorney—Sellors elicited testimony that the seals on
the two documents he received were indeed counterfeit. Other witnesses testified
about similarities between the seals on the documents and the seals of federal district
courts.
What’s more, a federal agent who interviewed Sellors testified that during the
interview, he pointed out the seal and other features of the documents that made them
seem like they came from the federal district court, not the RuSA. According to the
agent, Sellors “said he understood that. He understood where there could be
confusion and it looked a lot like actual official United States government
documents.” Id. at 134-35.
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V. Introduction of Evidence
Sellors asserts that the district court erred in allowing the government to
introduce testimony about the term “sovereign citizen” over his objections. Our
review is for abuse of discretion, and “[u]nder that standard, we will not disturb an
evidentiary ruling absent a distinct showing that it was based on a clearly erroneous
finding of fact or an erroneous conclusion of law or manifests a clear error in
judgment.” United States v. Hillman, 642 F.3d 929, 938 (10th Cir. 2011).
The district court did not abuse its discretion in allowing witnesses to testify
about their understanding of the “sovereign citizen” movement and its connection to
the RuSA. The testimony may have aided the jury in understanding the facts and
circumstances of this case. To the extent that Sellors believes the testimony was
inaccurate or painted him, a former member of the RuSA, in a false light, he had the
opportunity to cross-examine the government’s witnesses and to call his own
witnesses. And he testified on his own behalf, explaining his understanding of the
term “sovereign citizen” and why he considers it to be an oxymoron.
VI. Waiver of Counsel
Finally, Sellors asserts that he could not validly waive his right to counsel
without being informed of his “presumed/assumed personhood or standing by the
Prosecutor and the Court.” Aplt. Br. at 28. He states that “[w]ithholding this crucial
information is pivotal in the acquiring of counsel and comprehending a defendant’s
role in a trial,” and because his “status/standing” was not disclosed, his waiver of
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counsel did not comply with Faretta v. California, 422 U.S. 806, 835 (1975). Aplt.
Br. at 28. Like his jurisdictional arguments regarding personhood and status, this
argument is frivolous. To the extent that it can be construed as a challenge to the
adequacy of the district court’s inquiries regarding his waiver, see Faretta, 422 U.S.
at 835 (requiring the district court to make the defendant “aware of the dangers and
disadvantages of self-representation”), the record shows that two magistrate judges
engaged in colloquies with Sellors, repeatedly urging him to accept counsel and
attempting thorough inquiries to ensure that his waiver of counsel was knowing and
intelligent. He was advised of the charges against him and the maximum penalties,
and the magistrate judges discussed various disadvantages of proceeding without
counsel. The court’s handling of Sellors’ requests to proceed pro se satisfied Faretta.
See United States v. Turner, 287 F.3d 980, 983-84 (10th Cir. 2002).
Conclusion
The judgment of the district court is affirmed.
Entered for the Court
Per Curiam
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