United States v. Denard Neal , 776 F.3d 645 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10454
Plaintiff-Appellee,
D.C. No.
v. 1:11-cr-00297-
LJO-1
DENARD DARNELL NEAL, AKA
Denard Darnell of the Family Neal,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted
October 6, 2014—San Francisco, California
Filed January 12, 2015
Before: Sandra S. Ikuta, N. Randy Smith,
and Mary H. Murguia, Circuit Judges.
Opinion by Judge N.R. Smith
2 UNITED STATES V. NEAL
SUMMARY*
Criminal Law
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.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. NEAL 3
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.
COUNSEL
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.
OPINION
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
4 UNITED STATES V. NEAL
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.
A. Background
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”).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
1
A UCC-1 financing statement is a standardized legal form filed by a
creditor giving notice of an interest in the personal property of a debtor (a
person who owes a debt to the creditor as typically specified in the
agreement creating the debt).
UNITED STATES V. NEAL 5
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
6 UNITED STATES V. NEAL
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
UNITED STATES V. NEAL 7
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
8 UNITED STATES V. NEAL
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
UNITED STATES V. NEAL 9
counting. Finally, Neal appeals (4) the length of his sentence.
Neal argues the district court may have imposed a different
sentence if his presentence report had correctly reported the
length of his previous sentences.
B. Discussion
1. On plain error review, Neal’s conviction was
supported by sufficient evidence.
Neal argues that there was insufficient evidence to
support his conviction. Specifically, Neal argues there was
no evidence that the collateral he attempted to attach (oath of
offices and all collateral related to the bonds that support or
endorse the oath of offices) was real or personal property of
a federal employee as required by the statute. Neal does not
argue what type of property his collateral is; he simply insists
that it is not real or personal property. Generally, we would
review Neal’s challenge to the sufficiency of the evidence
under the standard announced in Jackson v. Virginia,
determining “whether, after viewing the evidence in the light
most favorable to the [government], any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” 443 U.S. 307, 319 (1979) (emphasis in
original). However, our task here is further complicated by
Neal’s failure to raise the issue in the district court, requiring
us to review only for plain error or to prevent a manifest
miscarriage of justice. See United States v. Kuball, 976 F.2d
529, 531 (9th Cir. 1992).
To succeed on plain error review, Neal “must show (1) an
error, (2) that is plain, (3) that affects substantial rights, and
(4) that seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Zalapa,
10 UNITED STATES V. NEAL
509 F.3d 1060, 1064 (9th Cir. 2007) (internal quotation
omitted). “Reversal of a criminal conviction on the basis of
plain error is an exceptional remedy . . . .” United States v.
Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986). There was no
error in this case, much less plain error or a miscarriage of
justice. Even under Jackson’s less deferential standard of
review, there was sufficient evidence to sustain Neal’s
conviction.
Because Neal’s argument regarding the insufficiency of
the evidence challenges whether the collateral identified in
his liens was real or personal property, we must look to the
text of the statute to determine the meaning of “real or
personal property.” See United States v. Thompson, 728 F.3d
1011, 1015 (9th Cir. 2013) (when a sufficiency argument
hinges on the interpretation of a statute, we review the district
court’s statutory interpretation de novo). Specifically, we
must review the portion of the statute criminalizing the filing
of, the attempted filing, or the conspiring to file “any false
lien or encumbrance against the real or personal property” of
a federal employee.
18 U.S.C. § 1521 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 [a U.S. officer
or employee], 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
UNITED STATES V. NEAL 11
statement or representation, shall be fined
under this title or imprisoned for not more
than 10 years, or both.
When interpreting a statute, we are guided by the
fundamental canons of statutory construction and begin with
the statutory text. See BedRoc Ltd., LLC v. United States,
541 U.S. 176, 183 (2004). We interpret statutory terms in
accordance with their ordinary meaning, unless the statute
clearly expresses an intention to the contrary. United States
v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989). We must
“interpret [the] statut[e] as a whole, giving effect to each
word and making every effort not to interpret a provision in
a manner that renders other provisions of the same statute
inconsistent, meaningless or superfluous.” Boise Cascade
Corp. v. U.S. E.P.A., 942 F.2d 1427, 1432 (9th Cir. 1991).
Additionally, “[p]articular phrases must be construed in light
of the overall purpose and structure of the whole statutory
scheme.” United States v. Lewis, 67 F.3d 225, 228–29 (9th
Cir. 1995).
This statute does not define the terms “real or personal
property” as used in the statute. Nor does chapter 73 of title
18—in which § 1521 is located—include a definition section
for these terms. Similarly, there is no guiding preamble,
recital, or purpose clause. The statute’s title and heading
simply signal that the statute punishes retaliation against
federal employees. However, we are able to determine the
meaning of the terms “real or personal property,” by
examining the terms in the context of the surrounding text
and examining the statute’s scheme and overall purpose.
The statute’s overall scheme and purpose seeks to prevent
false filing of liens or encumbrances intended to harm a
12 UNITED STATES V. NEAL
federal employee. The statute focuses on preventing a
specific type of harm. The text of the statute prohibits all
persons from using false financial filings to harm and
intimidate federal employees. The foreseeable
circumstances, determining who may cause the harm and how
the harm results, are numerous and varied and seem of
limited (if any) importance in the statute.
The statute’s surrounding text also assists in interpreting
the meaning of “real and personal property” as used in
§ 1521. The statute’s repetition of the indefinite determiner
“any” signals an intended broad and expansive application of
the statute. See United States v. Gonzales, 520 U.S. 1, 5
(1997) (noting the word “any” has expansive meaning, “one
or some indiscriminately of whatever kind”). In § 1521, the
word “any” modifies where an individual is prohibited from
filing—in any public record or in any private record (which
is generally available to the public). See 18 U.S.C. § 1521.
“Any” also modifies what is prohibited. The statute prohibits
the filing of any false liens or encumbrances. Id. The statute
does not attempt to identify all possible offending documents.
Id. Rather, the statute prohibits documents of the sort used to
create liens or encumbrances. The focus is on preventing the
harm such documents may cause, rather than focusing on the
actual documents.
We also note that the conduct prohibited by the statute is
not confined to completed acts. Rather than requiring that the
false lien or encumbrance actually be filed in order to violate
the statute, the statute’s prohibition is triggered by filing,
attempting to file, or conspiring to file a false lien or
encumbrance. See id. Because the statute can be violated
without completed conduct, the harm the statute protects
UNITED STATES V. NEAL 13
against arises from the nature of the documents to be filed,
not the validity of the documents.
Further, the statute lacks any reference either to technical
filing requirements in the statute or to a filer’s understanding
of technical requirements therein. Again, validity is not a
prerequisite for violation. Indeed, the statute criminalizes the
filing of, the attempting to file, or the conspiring to file false
liens or encumbrances, not false valid liens or encumbrances.
Id. Validity inquiries examine inter alia, the sufficiency of
the information found in the documents (e.g., correctness and
completeness of the debtor’s name and address), the timing
of the filing, the manner of the filing, the correctness of the
listed collateral or its legal description and the sufficiency of
supporting documents. The statute makes such validity
inquiries irrelevant.
Not only are such validity inquiries irrelevant to
determining whether the statute has been violated, they often
have little or no impact on whether such documents can or
will be filed by the filing authorities. The California
Commercial Code, following the UCC, grants little authority
to filing offices to refuse to accept fraudulent or invalid
filings.2 See Cal. Com. Code §§ 9516(b), 9520(a). Indeed,
the filing office is not authorized to determine whether the
information in a filing is (or could be) legitimate or valid. Id.§ 9516, Editors’ Note 3. Therefore, the terms “real and
personal property” are not intended to limit the scope of the
2
See UCC § 9-520(a) & cmt. 2; Cal. Com. Code § 9516. Generally, the
bases for rejection are limited to the document missing some requisite
information (e.g., debtor’s name), the record not being communicated in
a manner (e.g., written rather than electronic) that the filing office accepts,
or filer failing to tender the required filing fee.
14 UNITED STATES V. NEAL
statute, but rather to indicate the class of documents
prohibited by the statute. The statute prohibits the filing of,
the attempting to file, or the conspiring to file documents of
the sort that could create false liens and encumbrances against
federal employees. The prohibition is triggered by the type
of document and resulting harm without regard to the validity
or existence of the identified collateral in such documents.
Neal’s focus on collateral is misplaced, because the collateral
he listed in his Lien Documents is not relevant to whether he
violated the statute.
Our reading of the statute is consistent with the general
legislative policy behind the enactment of 18 U.S.C. § 1521.
“Since 2004, there [was] a nationwide increase in the number
of filings by prison inmates of unsubstantiated liens and
[UCC] financing statements against state or federal officials
involved with their incarceration.” Jones v. Caruso, 569 F.3d
258, 261 (6th Cir. 2009). Section 1521 was enacted in
response to the increasing vulnerability of federal employees
as part of the Court Security Improvement Act of 2007.3 It
intends to penalize individuals who seek to intimidate and
harass federal employees and officers by filing, attempting to
file or conspiring to file false liens or encumbrances. See
H.R. Rep. 110-218 (2007).
The Eighth Circuit took an analogous view of real or
personal property in the first appellate case to interpret
§ 1521. See United States v. Reed, 668 F.3d 978, 984–85 (8th
Cir. 2012). Similar to Neal, the defendant in Reed argued that
“the government failed to prove a violation of § 1521 because
[the UCC-1 financing statement] did not . . . [indicate] any
property of [a federal employee] as collateral.” Id. at 984
3
Pub. L. 110–177, § 201(a), 121 Stat. 2534, 2535–36 (2008).
UNITED STATES V. NEAL 15
(quotation marks omitted). The Reed court acknowledged
that Reed’s documents were technically deficient, and his
“lengthy” and “incoherent” description of collateral in the
filings would not have succeeded in perfecting a priority
claim under UCC law. Id. However, the court stated
technical deficiencies were not a defense. Id. The Reed court
affirmed that “[t]he 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.” Id. at 984–85. “Indeed, legal
insufficiency is in the nature of the false, fictitious, and
fraudulent liens and encumbrances that Congress intended to
proscribe.” Id. at 985.
We now consider Neal’s argument that there was
insufficient evidence to support his conviction under § 1521
in light of our interpretation of the terms “real and personal
property” in that statute as referring to documents of the sort
that could create false liens and encumbrances against federal
employees.
Similar to Reed’s jury, Neal’s jury was presented with
undisputed evidence that Neal created and attempted to file
standard lien documents bearing common lien language—
documents of the sort regularly used to create liens and
encumbrances against real or personal property. Neal’s Lien
Documents clearly identified individual debtors and their
corresponding debts. There was no ambiguity as to who
owed the debt and why the obligation was being asserted.
Contrary to Neal’s assertion, the collateral listed was not
limited to each employee’s oath of office. Neal also
attempted to attach all bonds that supported and endorsed the
oaths of office.
16 UNITED STATES V. NEAL
Evidence was also presented indicating that false,
technically deficient, financial documents are routinely
accepted by filing offices without regard to the document’s
accuracy or legitimacy. Once a false lien is filed, the alleged
debtor bears the burden of proving the lien’s falsity and
having it removed.4 Evidence demonstrated documents
similar to Neal’s can encumber property, cloud title, and
cause significant harm to innocent persons alleged to be
debtors.
The government also presented the letter Neal wrote to
his mother. Neal gave his mother step-by-step instructions
for filing the Lien Documents on his behalf. Neal also told
his mother that if he was able to register the “[s]taff[’s] oath
of offices” under his name, “the [DOJ] will fire them.” It was
reasonable for the jury to infer from this evidence that Neal
believed if he acquired rights in an employee’s oath of office,
he could demand payment of the false debt if the employee
did not want to risk being fired. In other words, it was
reasonable for the jury to infer that Neal intended to file
documents of the sort that could create false liens and
encumbrances against federal employees.
There was sufficient evidence for a reasonable juror to
find Neal knowingly attempted to file false documents,
intending to harass the USP-Atwater employees on account
of their performance of official duties. Congress enacted
§ 1521 precisely to prevent this type of conduct. Therefore,
the jury’s conviction of Neal for violating § 1521 was not
plainly erroneous.
4
See Cal. Com. Code § 9518.
UNITED STATES V. NEAL 17
2. The district court did not commit plain error in
failing to hold a competency hearing sua sponte
before allowing Neal to represent himself at all
stages of the proceedings.
Neal argues the district court erred in failing to order a
competency hearing sua sponte before allowing him to waive
counsel and represent himself at all stages of his proceedings.
We review a district court’s failure to sua sponte order a
competency hearing for plain error. United States v. Dreyer,
705 F.3d 951, 960 (9th Cir. 2013). “Failing to sua sponte
hold a competency hearing is plain error only if ‘the evidence
of incompetence was such that a reasonable judge would be
expected to experience a genuine doubt respecting the
defendant’s competence.’” United States v. Garza, 751 F.3d
1130, 1134 (9th Cir. 2014) (quoting Dreyer, 705 F.3d at 961).
Relevant evidence includes medical history, the defendant’s
behavior in and out of court, and the connection between the
defendant’s serious mental disease or defect and some failure
by the defendant to understand the proceedings, assist in his
own defense, or carry out the basic tasks needed to present his
own defense without the help of counsel. See id. at 1134–35.
Absent such evidence, a district court does not plainly err in
failing to sua sponte hold a hearing to determine the
defendant’s competence to stand trial, see id., or to represent
himself at trial and sentencing, see Godinez v. Moran,
509 U.S. 389, 399–402 (1993).5
5
We note that once a district court holds such a hearing, it may
determine that the defendant is not competent to represent himself at trial,
even if the defendant would be sufficiently competent to stand trial. See
Indiana v. Edwards, 554 U.S. 164, 178 (2008).
18 UNITED STATES V. NEAL
A. The medical evidence presented to the district
court was insufficient to cause a reasonable
judge to experience genuine doubt as to Neal’s
competency to represent himself.
A defendant must present “strong” medical evidence of a
serious mental disease or defect before a genuine doubt about
competency will arise. Garza, 751 F.3d at 1135. Even then,
it would not be error for the court to fail to hold a competency
hearing unless the defendant also established a causal
connection between the mental disease or defect and his
inability to understand the proceedings.6 Id at 1136. “Where
the defendant’s mental problem—even if severe—has no
discernible impact on the proceedings, we have not found
substantial evidence.” Id.7 “Even a mentally deranged
defendant is out of luck if there is no indication that he failed
to understand or assist in his criminal proceedings.” Id.8
“And even if that same defendant did fail to understand or
assist in his proceedings, he would still be out of luck unless
his mental impairment caused the failure.” Id.
6
See, e.g., Davis v. Woodford, 384 F.3d 628, 645–46 (9th Cir. 2004);
Boag v. Raines, 769 F.2d 1341, 1343–44 (9th Cir. 1985); Steinsvik v.
Vinzant, 640 F.2d 949, 952–54 (9th Cir. 1981); Sailer v. Gunn, 548 F.2d
271, 274–75 (9th Cir. 1977).
7
See also Davis, 384 F.3d at 645–46; Steinsvik, 640 F.2d at 952–54.
8
See also Bassett v. McCarthy, 549 F.2d 616, 617, 619–21 (9th Cir.
1977) (concluding that no genuine doubt as to competency existed even
though defendant was deemed schizophrenic, declared insane by two
government psychiatrists prior to trial and refused to cooperate with his
counsel at trial, because prior to the crime, defendant was a socially
capable, average college student).
UNITED STATES V. NEAL 19
Neal relies on his presentence report to show he suffered
from a severe mental disease or defect. However, Neal’s
presentence report does not contain sufficient medical
evidence to raise a genuine doubt as to Neal’s competency.
The report referred to Neal’s suicide attempts twenty-two
years previous. According to the report, around the time of
the suicide attempts, Neal believed psychiatrists were
attempting to medicate him. However, there are no details
about a diagnosis or medications prescribed. The report
noted that, even when counseling was required as part of
Neal’s previous parole, the counselor stated therapy was not
recommended.
According to the presentence report, Neal had reported a
deterioration in his current mental health, because he realized
“people don’t follow the truth in his eyes,” and that the court
had taken a “bias[ed]” position in his case. As a result, Neal
had requested therapy to help him deal with the “conflicts in
what he described as a flawed system.” Neal’s request for
therapy, to help him deal with his disillusionment with the
judicial system, was not sufficient to create serious doubt as
to his competency. “Certainly the mere fact that psychiatric
help was felt to be desirable . . . cannot be said to create a
bona fide doubt of [Neal’s] capacity to participate
intelligently in the proceedings facing him.” Sailer, 548 F.2d
at 275. “To hold otherwise would reflect disparagingly” on
those who are clearly competent, yet require some therapeutic
assistance. Id. We find the record lacks substantial medical
evidence that would lead a reasonable judge to harbor a
genuine doubt about Neal’s competency.
20 UNITED STATES V. NEAL
B. Neal’s conduct in and out of court did not
create genuine doubt as to his competency.
Neal argues that, if we find the medical evidence he now
emphasizes is insufficient to raise a genuine doubt as to his
competency during the proceedings, we should find his
courtroom conduct and his many “nonsensical” filings
containing “rambling statements” and “irrational arguments”
should have raised serious doubt as to his competency. In the
past, we have found that if medical evidence fails to establish
the existence of a mental disease or defect, bizarre or erratic
behavior—especially in court—may raise a genuine doubt as
to a defendant’s competency. See Garza, 751 F.3d at
1135–36.9 However, competency will not be questioned
when a defendant merely displays rude, uncooperative and
sometimes wacky behavior. See United States v. Johnson,
610 F.3d 1138, 1144, 1146 (9th Cir. 2010) (finding no doubt
concerning competency when defendant’s courtroom
behavior was uncooperative and eccentric, but not
significantly disruptive or defiant). Likewise, voluminous
filings of nonsensical pleadings do not create per se serious
doubt about competency. See id.Reviewing the record, Neal did not manifest any
observable signs of incompetency during his proceedings
such that a reasonable judge would experience genuine doubt
about his competency. The record showed that, during his
Faretta hearing, Neal consistently responded to the court’s
inquiries in a coherent and respectful manner. Neal informed
the court that he was a high school graduate with some
college education. Neal stated he had studied some law on
9
See also McMurtrey v. Ryan, 539 F.3d 1112, 1125–26 (9th Cir. 2008);
Chavez v. United States, 656 F.2d 512, 519 (9th Cir. 1981).
UNITED STATES V. NEAL 21
his own, including the applicable rules of procedure and
evidence. Neal even debated the efficacy of trained attorneys
after the judge stated Neal would be better off represented by
trained counsel. Neal informed the court he believed “the
disadvantage of not being trained in the law acts as an
advantage because those who [are] trained in the law [do] not
seem to be effective.”
Similarly, during trial and sentencing, the record does not
include evidence that Neal manifested such conduct. Neal
was responsive and rational at trial and participated
effectively when he chose to do so. Neal made opening
statements, closing arguments, and cross-examined witnesses
with a fair degree of skill—even rephrasing his questions in
response to a sustained objection. Neal also generally
followed courtroom rules and protocol.
It is not disputed that Neal made numerous comments and
filed a variety of documents disputing jurisdiction and other
“nonsensical” issues (e.g., “[the] United States is a
corporation. . . . as a corporation it cannot interact with
human beings; “the sale of bonds based on Petitioners [sic]
conviction by the court creates a financial conflict of
interest”.). However, Neal also professed a “sovereign
citizen” belief system.10 His comments and conduct were
indicative of that belief, not a lack of competence. Neal
cannot now use those beliefs as an expression of
incompetency. “In the absence of any mental illness or
uncontrollable behavior, [Neal] had the right to present [his]
unorthodox defenses and argue [his] theories to the bitter
end.” See Johnson, 610 F.3d at 1147.
10
See, e.g., United States v. Mitchell, 405 F. Supp. 2d 602, 603–06
(D. Md. 2005) (describing the “sovereign citizen” belief system).
22 UNITED STATES V. NEAL
C. Neal’s Faretta waiver was valid.
Neal claims that his waiver of counsel in his Faretta
hearing was not voluntary, knowing, and intelligent. We
review whether a Faretta waiver satisfied these requirements
de novo, even where the defendant failed to raise the issue of
the validity of the Faretta waiver to the district court. United
States v. Erskine, 355 F.3d 1161, 1166–67 (9th Cir. 2004).
Although no specific colloquy is required, we have held a
waiver is voluntary, knowing, and intelligent if the defendant
was informed and understands (a) “the nature of the charges
against him,” (b) “the possible penalties,” and (c) “the
dangers and disadvantages of self-representation.” United
States v. Balough, 820 F.2d 1485, 1487–88 (9th Cir. 1987).
Neal’s Faretta waiver was voluntary, knowing, and
intelligent. Prior to Neal’s arraignment and plea hearing,
Neal informed his appointed counsel he wished to represent
himself. Neal renewed the request at his arraignment and
plea hearing. In response to Neal’s request, the court
immediately conducted a Faretta hearing.
At the Faretta hearing, the court clearly explained the
charges and possible penalties to Neal. The court also
explained the specific allegations to Neal. The court
informed Neal that each offense was punishable by a
maximum of 10 years in prison and/or a fine of $250,000.
The court, in an effort to convey the seriousness of the
charges, told Neal that his sentence could be 140 years if the
court decided to run the sentences consecutively. The court
also engaged in a lengthy discussion about sentencing,
sentencing guidelines, and factors used by a court when
sentencing. Neal consistently assured the court that he
UNITED STATES V. NEAL 23
understood what he was being told and that he did not have
any questions.
The record also established that the court spent a
significant amount of time warning Neal about the dangers
and disadvantages of self-representation. Neal was advised
that, if he chose to represent himself, he was going to be held
to the same rules of evidence and the same rules of procedure
as if an attorney was representing him. The court discussed
the rules of evidence and criminal procedure, explaining that
the rules can prove critical in a case. Although Neal indicated
he was knowledgeable about the rules, the court still
cautioned that the rules were often complicated and difficult,
even for lawyers. The court also explained that trial was
difficult. Neal was informed he would be on his own and the
court could not advise or help him. The court advised Neal
it was unwise to represent himself and that he would be better
off being represented by a trained attorney.11
However, Neal was insistent in his desire to represent
himself. Neal assured the court he had no questions and that
he understood the pitfalls of representing himself. When the
court finally asked Neal, in light of the penalty if he was
11
Continuing to caution Neal, the judge stated that if he were “charged
with a crime, I would want an attorney to represent me.” The judge
continued, “I’m just telling you personally that I would want someone to
represent me because when you have something personal at stake,
sometimes you lose sight of the strategic details and other things when
you’re too personally involved. So although I would have long
discussions with my attorney and give my attorney my opinions and try
and guide them in what I thought were important things, I would be
represented by an attorney if I were charged with a crime. And in my
opinion I think that you’d be better served by having a trained attorney to
represent you.”
24 UNITED STATES V. NEAL
found guilty, whether he still wished to represent himself and
give up his right to be represented by counsel, Neal
responded “absolutely.”
After review, the record does not evidence that Neal
failed to understand the nature of the charges against him, the
possible penalties, or the dangers and disadvantages of
self-representation. Neal clearly endorsed the “sovereign
citizen” ideology. Neal’s request to represent himself could
not be denied solely because he adhered to such beliefs. The
right to represent oneself, like the right to counsel, is secured
by the Constitution. See Faretta v. California, 422 U.S. 806,
814–15 (1975). “[F]orcing a lawyer upon an unwilling
defendant is contrary to his basic right to defend himself if he
truly wants to do so.” Id. at 817. The choice must be
honored even when it is ultimately to the defendant’s own
detriment. Id. at 834. The evidence demonstrates that Neal
knew exactly what he was doing and made the choice to
represent himself with eyes open. See Id. at 835.
3. The district court’s application of the Sentencing
Guidelines was not plainly erroneous.
Neal argues that the court should not have applied the
two-level, multiple lien enhancement under USSG
§ 2A6.1(b)(2)(B) (“Offense Specific Guideline”) to his
sentence. Instead, he argues, the Offense Specific Guideline
only allows application of the multiple lien enhancement
when there are multiple offenses against the same victim. In
Neal’s circumstance, while he was convicted of fourteen
offenses, each offense involved a different victim.
Neal also argues that, even if the Offense Specific
Guideline enhancement applied, it was error for the court to
UNITED STATES V. NEAL 25
apply it here. He argues its application results in
impermissible double counting. The fourteen offenses were
previously accounted for when the district court increased
Neal’s base offense level by five points under USSG § 3D1.4
(“Multiple Count Grouping Guideline”). Therefore, Neal
argues, the fourteen offenses were double counted when the
court also added the multiple lien enhancement under the
Offense Specific Guideline.
We review de novo the district court’s interpretation of
the United States Sentencing Guidelines. United States v.
Johansson, 249 F.3d 848, 858 (9th Cir. 2001). Because Neal
did not raise this objection in the district court, we review the
district court’s application of the Sentencing Guidelines for
plain error. United States v. Hammons, 558 F.3d 1100, 1103
(9th Cir. 2009).
A. It was not plain error to apply the two-level
enhancement to Neal’s sentence for multiple
liens against multiple victims.
USSG § 2A6.1(b)(2)(B) specifically addresses sentencing
for harms associated with violations of 18 U.S.C. § 1521. It
was added to the USSG after 18 U.S.C. § 1521 was enacted
in 2007. See USSG app. C amend 718 (2007). The plain
language of the subsection provides for a two-level
enhancement “[i]f the defendant is convicted under 18 U.S.C.
§ 1521 and the offense involved more than two false liens or
encumbrances.” See USSG § 2A6.1(b)(2)(B) (emphasis
added).
Neal contends the court should not have applied the
enhancement, because he was convicted of fourteen offenses
and each offense only involved one lien. Neal explains that
26 UNITED STATES V. NEAL
each of the fourteen liens he attempted to file was charged as
a separate count and a separate violation of § 1521.
Therefore, he was ultimately charged with fourteen separate
offenses. Each offense represented one lien—each offense
did not involve more than two false liens or encumbrances.
Neal has misinterpreted § 2A6.1(b)(2)(B). To clarify
when the two-level multiple lien enhancement is applicable,
we look to the application notes. See United States v.
Hernandez-Sandoval, 211 F.3d 1115, 1117 n.3 (9th Cir.
2000) (“In general, the application notes are binding on the
courts in their construction of the Sentencing Guidelines”).
Application Note (1) provides:
Scope of Conduct to Be Considered.—In
determining whether subsections (b)(1),
(b)(2), and (b)(3) apply, the court shall
consider conduct that occurred prior to or
during the offense; however, conduct that
occurred prior to the offense must be
substantially and directly connected to the
offense, under the facts of the case taken as a
whole. For example, if the defendant engaged
in several acts of mailing threatening letters to
the same victim over a period of years
(including acts that occurred prior to the
offense), then for purposes of determining
whether subsections (b)(1), (b)(2), and (b)(3)
apply, the court shall consider only those prior
acts of threatening the victim that have a
substantial and direct connection to the
offense.
UNITED STATES V. NEAL 27
USSG § 2A6.1 cmt. n.1(emphasis added). In determining
whether to apply the enhancement, Note (1) requires a
sentencing court to consider conduct occurring during the
offense. Note (1) also requires a sentencing court to consider
prior conduct, but only if the prior conduct was substantially
and directly connected to the offense. Note (1) does not
specify any number of victims to whom the conduct must
occur. Note (1) merely cautions a court to only consider
conduct that is substantially and directly connected to the
offense. We agree that the example in Note (1) clearly
indicates multiple offenses against the same victim is conduct
that a court must consider. However, because it is only an
example, it does not preclude a court from applying the
enhancement for multiple offenses against different victims.
Note (1) only requires that a sentencing court consider
conduct occurring during the offense and conduct that
occurred prior to the offense that is substantially and directly
related to the offense.
In short, because Note (1) requires a sentencing court to
consider conduct occurring prior to and during the offense,
and does not expressly preclude a court from considering
other charged offenses aimed at different victims, it was not
plain error for the district court to conclude that Neal’s
offense (placing a lien on a victim) “involved” the false liens
placed on other victims that occurred prior to and during the
offense conduct. Therefore, on plain error review, we cannot
say the court committed error when it concluded that Neal’s
offense made him eligible for an enhancement under USSG
§ 2A6.1(b)(2).12
12
The question of whether we would have reached the same conclusion
if we were deciding the question in the first instance is not before us.
28 UNITED STATES V. NEAL
B. It was not plain error for the district court to
apply multiple enhancements to Neal’s
sentence.
“As a general rule, it is appropriate for a court to consider
all applicable Guidelines provisions in calculating the
guidelines range for an offense. In particular, the Sentencing
Guidelines contemplate that courts will apply all applicable
specific offense characteristics to enhance the base offense
level.” United States v. Smith, 719 F.3d 1120, 1123 (9th Cir.
2013); see also USSG § 1B1.1(a)(2).
We infer that the Sentencing Commission would not
intend us to apply a Guideline provision that “would increase
a defendant’s punishment on account of a kind of harm that
has already been fully accounted for by application of another
part of the Guidelines.” Smith, 719 F.3d at 1124 (internal
quotation marks omitted). However, “when each invocation
of the behavior serves a unique purpose under the Guidelines,
we conclude that the Commission authorized and intended the
cumulative application of both provisions.” Id. (internal
quotation marks omitted).
On plain error review, we cannot say the district court
committed error when determining Neal’s sentence. The
district court applied upward enhancements under the
Multiple Count Grouping Guideline § 3D1.4 and under the
Offense Specific Guideline § 2A6.1(b)(2)(B). Because the
enhancements serve distinct purposes, we conclude that the
Commission “authorized and intended” the cumulative
application of both provisions. See Smith, 719 F.3d at 1124.
UNITED STATES V. NEAL 29
i. Multiple Count Grouping Guideline § 3D1.4
Section § 3D1.4 provides for upward enhancements when
a defendant commits multiple offenses. Because Neal was
convicted of fourteen offenses, Neal’s base offense level was
increased by five points. Section § 3D1.4 accomplishes the
Guidelines’ overall objective of providing “incremental
punishment for a defendant who is convicted of multiple
offenses.” See United States v. Watts, 519 U.S. 148, 154
(1997).
ii. Offense Specific Guideline § 2A6.1(b)(2)(B).
On the other hand, the enhancement under
Section 2A6.1(b)(2)(B) serves a distinct purpose from the
purpose of Section 3D1.4. The Offense Specific Guideline
§ 2A6.1(b)(2)(B) enhancement accounts for “the additional
time and resources required to remove multiple false liens or
encumbrances,” rather than accounting for incremental
punishment for multiple offenses. See USSG app. C amend.
718 (2007). The Comments to the Amendment enacting
§ 2A6.1(b)(2)(B) provide:
[T]he amendment expands the scope of the
two-level enhancement at subsection (b)(2) to
apply if the defendant is convicted under
18 U.S.C. § 1521 and the offense involved
more than two false liens or encumbrances,
and also provides an upward departure
provision that may apply if the offense
involved substantially more than two false
liens or encumbrances against the real or
personal property of the same victim. These
modifications reflect the additional time and
30 UNITED STATES V. NEAL
resources required to remove multiple false
liens or encumbrances.
Id. (emphasis added). According to the Comments, the
§ 2A6.1(b)(2) enhancement may be imposed for one of two
reasons (only one of which Neal challenges). The
enhancement focuses on the number of false liens or
encumbrances, not the number of victims.
Additionally, § 2A6.1 Application Note (4)(B)
specifically allows for an upward departure if the offense
involved multiple liens and multiple victims. Note (4)(B)
provides:
(B) Multiple Threats, False Liens or
Encumbrances, or Victims; Pecuniary
H a r m . — If t h e o f f e n s e i n v o l v e d
(i) substantially more than two threatening
communications to the same victim, (ii) a
prolonged period of making harassing
communications to the same victim,
(iii) substantially more than two false liens or
encumbrances against the real or personal
property of the same victim, (iv) multiple
victims, or (v) substantial pecuniary harm to a
victim, an upward departure may be
warranted.
USSG § 2A6.1 cmt. n.4(b) (emphasis added).
On plain error review, we cannot say the district court
committed error in applying multiple enhancements to Neal’s
sentence.
UNITED STATES V. NEAL 31
4. The district court did not plainly err in imposing
Neal’s sentence, despite Neal’s presentence report
incorrectly listing the lengths of his previous
sentences.
Neal argues that the district court imposed a longer
sentence than it otherwise would have imposed, because his
presentence report incorrectly reported the lengths of his
previous sentences. Neal’s previous convictions were listed
in the criminal history section of his presentence report. The
presentence report indicated Neal was convicted of eight
separate counts related to a bank robbery. Each count was
listed separately along with its corresponding sentence (in
months). However, the presentence report did not include a
total number of months of imprisonment for the eight related
counts.
Neal argues that, if the months of imprisonment listed in
the presentence report for the eight counts related to the bank
robbery had been totaled, that total would show the report had
incorrectly listed the length of the individual sentences. We
agree that, if the individual sentences listed in the presentence
report had been totaled, the total would have been 425
months of incarceration, even though Neal was actually
sentenced to a total of 665 months of incarceration for the
related counts. However, we find no evidence to substantiate
Neal’s argument that, “[i]f the court had known” his previous
sentence was 665 months instead of 425 months as indicated
in the presentence report, “there was a reasonable probability
that the court would have imposed a lesser [current]
sentence.” Neal is correct, his presentence report did not
indicate the correct total number of months of imprisonment
for his previous sentences. However, Neal has provided no
evidence to indicate that the probation office used the length
32 UNITED STATES V. NEAL
of his previous sentences (correct or incorrect) at all, in its
Sentencing Guidelines calculation. Nor is there evidence that
the lengths of Neal’s previous sentences were used for the
probation office’s within-Guidelines recommendation for
Neal’s current sentence.
Similarly, there is no evidence to indicate the court used
Neal’s previous sentences when determining the current
sentence. The district court sentenced Neal in accordance
with the Guidelines. According to USSG § 5G1.3(a) “[i]f the
instant offense was committed while the defendant was
serving a term of imprisonment . . . the sentence for the
instant offense shall be imposed to run consecutively to the
undischarged term of imprisonment.” (Emphasis added).
When sentencing Neal, the district court ordered that “[a]ny
sentence imposed is to be served consecutively, however, to
any undischarged term of imprisonment which the defendant
is currently serving.” (Emphasis added). Because the district
court neither miscalculated Neal’s sentence nor relied on
erroneous information in calculating his sentence, we
conclude that the sentence imposed was not plainly
erroneous.
For the foregoing reasons, Neal’s conviction and sentence
are AFFIRMED.