United States v. Nissen

555 F.Supp.3d 1174

UNITED STATES of America, Plaintiff,

v.Michael NISSEN, Defendant.

No. CR 19-0077 JB

United States District Court, D. New Mexico.

Filed August 19, 2021

Fred J. Federici, Acting United States Attorney, Paul J. Mysliwiec, Alexander M.M. Uballez, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff.

Joe M. Romero, Jr., Romero & Winder, PC, Albuquerque, New Mexico, Attorney for the Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) the Defendant's Motion to Determine Counsel, filed April 20, 2021 (Doc. 170)("Motion"); and (ii) Defendant Michael Nissen's oral motion to represent himself, see Draft Transcript of Hearing at 24:21-25:3 (taken May 7, 2021)(Court, Nissen)("Tr.").¹ The Court held a hearing on May 7, 2021. See Clerk's Minutes at 1, filed May 28, 2021 (Doc. 184). The primary issue is whether Nissen can represent himself or whether he should continue with Mr. Joe Romero as his counsel, where Nissen wants to represent himself to advance legal arguments based on the applicability of the Cestui Que Vie Act of 1666, arguments which Mr. Romero avers he "cannot ethically advocate ... before the Court." Motion at 2. Even though Nissen invokes properly the right to represent himself, the Court concludes that Nissen cannot represent himself, because Nissen refuses to respond to the Court's efforts to conduct the standard colloquy that a court must conduct to determine whether a defendant has knowingly and intelligently waived his right to counsel and proceed to represent himself pro se. See Tr. at 24:21-26:6 (Court, Nissen). See also Fed. Judicial Ctr., Benchbook for U.S. District Court Judges at 6-7 (6th ed. 2013)(listing questions for a district judge to ask a defendant if the defendant does not want counsel). Nissen met the Court's colloquy questions only with contentions that he is not Nissen, that Nissen is dead, that the person in the courtroom is an entity, that the Court should call him "Freedom Rings," and that he does not "know what Mr. Nissen is. I can't speak for somebody I'm not. ... I can't speak for a dead man. ... I'm not Mr. Nissen. ... I'm the private living man flesh and blood, which is in the Cestui Que Vie Act." Tr. at 24:21-26:6 (Court, Nissen). The Court concludes, therefore, that, despite the Court's efforts to conduct the standard colloquy, Nissen has not knowingly and intelligently waived his right to counsel. Accordingly, Mr. Romero will continue to represent Nissen and the Court will deny both the Motion and Nissen's oral motion.

FACTUAL BACKGROUND

The Court has summarized the factual background in a prior Memorandum Opinion and Order, see United States v. Nissen, No. CR 19-0077 JB, 2020 WL 1929526, at *1 (D.N.M. April 21, 2020), filed April 21, 2020 (Doc. 135)(" April 21 MOO"), and provides that factual background here:

The Court takes its background facts from the Criminal Complaint, filed December 19, 2018 (Doc. 1);² from the Affidavit of Peter John Nystrom Ubbelohde (executed December 19, 2018), filed December 19, 2018 (Doc. 1-1)("Ubbelohde Aff."); Nissen's [Motion to Dismiss Information on Two Counts of Convictions for Lack of Jurisdiction, filed January 24, 2020 (Doc. 109)("MTD")], and the evidence introduced at trial. The Court must, in deciding most of Nissen's post-trial motions, construe the trial evidence in the light most favorable to the United States. The Court therefore will be stating largely the United States’ version of events, as supported by the trial evidence.

This case deals with alleged threats Nissen communicated to New Mexico State Police ("NM State Police") officers and dispatch employees on November 2 and 26, 2018. See Ubbelohde Aff. ¶¶ 6, 8, at 2-3; MTD at 1. On the evening of November 2, 2018, an NM State Police officer stopped Nissen on Interstate 40 in Torrance County, New Mexico, near mile marker 194 and issued several traffic citations. See MTD at 1. About a half-hour later, NM State Police dispatch received "multiple phone calls from telephone number (505) 819-1806 and caller ID listing Michael Nissen." Ubbelohde Aff. ¶ 6, at 3. In the calls, a male caller said that an NM State Police officer had just given him several citations. See Ubbelohde Aff. ¶ 6, at 3. The caller then said:

You guys got some of the stupidest fucking pigs on the road. The next time someone violates me like that on the road, I'm gonna put a bullet in that fucking pig's head .... He violated my Fourth Amendment constitution, he violated my Second and my First Amendment and the next time he does it I'm gonna plea the Fifth, but next time I'm gonna take my revolver out and put that motherfucker drop dead.

MTD at 1. Later that month, NM State Police Internal Affairs personnel received an email from johnny2bravo1@gmail.com further complaining about the November 2, 2018, encounter on Interstate 40. See Ubbelohde Aff. ¶ 7, at 3; MTD at 2. On November 26, 2018, a NM State Police "District 5 administrative assistant received a call from phone number (505) 819-1806. During the call, the male caller became verbally combative and threatened to shoot the [NM State Police] employee in the head." Ubbelohde Aff. ¶ 8, at 3.

On December 13, 2018, Nissen visited the Bernalillo County Sheriff's Office and spoke with Sheriff's Deputies to complain about the NM State Police. See MTD at 2. Nissen said that he was stopped near mile marker 194 on Interstate 40, and that, after the stop, he called NM State Police dispatch "just to get it done and then it got a little crazy .... I didn't make no threatening calls, but I kept calling them about the law." MTD at 2. Nissen also told Bernalillo County Sheriff's Deputies that he "owned multiple firearms including rifles and a revolver." Ubbelohde Aff. ¶ 9, at 3. The Ubbelohde Aff. states that Nissen told the Bernalillo County Sheriff's Deputies that he "carries his revolver on the streets and carrying his gun concealed is to protect himself from rouge [sic] cops." Ubbelohde Aff. ¶ 9, at 3-4.

April 21 MOO, 2020 WL 1929526, at *1.

PROCEDURAL BACKGROUND

A federal grand jury indicted Nissen in January, 2019. See Indictment at 1, filed January 10, 2019 (Doc. 11). In the Indictment, the federal grand jury charges Nissen with two violations of 18 U.S.C. § 875(c). See Indictment at 1. Count 1 asserts that, "[o]n or about November 2, 2018, in Torrance County, in the District of New Mexico, the defendant, MICHAEL JAMES NISSEN , transmitted in interstate and foreign commerce communications containing a threat to injure the person of another [i]n violation of 18 U.S.C. § 875(c)." Indictment at 1 (bold in original). Count 2 asserts that, "[o]n or about November 26, 2018, in Bernalillo County, in the District of New Mexico, the defendant, MICHAEL JAMES NISSEN , transmitted in interstate and foreign commerce communications containing a threat to injure the person of another [i]n violation of 18 U.S.C. § 875(c)." Indictment at 1 (bold in original). The Court held a jury trial on August 6 and 7, 2019. See Clerk's Minutes at 1, filed August 6, 2019 (Doc. 70). The jury found Nissen guilty on both counts. See Verdict, filed August 7, 2019 (Doc. 73).

1. Nissen's Pro Se Motions.

Beginning on December 30, 2019, and continuing up to the present date, Nissen has filed a series of motions raising a wide range of issues. See generally Criminal Docket No. CR 19-0077. As far as the Court can tell, Nissen filed each of the motions at issue without counsel's assistance; Mr. Romero did not sign any of Nissen's handwritten motions. In its April 21 MOO, the Court summarized and denied Nissen's pro se motions from December 30, 2019, through February, 2020. See April 21 MOO, 2020 WL 1929526, at *4. Nissen's handwritten pro se arguments are grounded generally in his belief that the Court does not have jurisdiction over him, because Nissen is a sovereign citizen³ or a "living man" under the Cestui Que Vie Act of 1666.⁴ E.g., Affidavit of Status by Michael Nissen (taken December 30, 2020), filed January 29, 2021 (Doc. 159)("[I]’m a private non-citizen national civilian, I'm the living man residing on the land ...."); Defendant's Affidavit of Formal Objections to Second Addendum to the Presentence Report at 1, filed June 4, 2021 (Doc. 194)(arguing that neither the Court nor the United States Probation Office "has subject matter jurisdiction whatsoever .... I that private living man am subject to the code(s), therefore, I abate this presentence for I am being denied due process of law of which this court lacks subject matter jurisdiction ...").

2. The Competency Evaluation.

On May 3, 2020, Nissen, through Mr. Romero, requested that the Court transfer him to a Federal Medical Center ("FMC") for extended evaluation to determine whether Nissen is mentally competent to proceed. Motion for Temporary Transfer of Defendant to FMC -- Butner to Determine Competency, filed May 3, 2020 (Doc. 137)("Competency Motion"). On June 12, 2020, the Court granted the Competency Motion and ordered Nissen committed to the custody of the Attorney General for a pre-sentencing competency evaluation pursuant to 18 U.S.C. § 4241(d). See Sealed Memorandum Opinion and Order at 1, filed June 12, 2020 (Doc. 148). See also Unsealed Memorandum Opinion and Order at 1, filed June 12, 2020 (Doc. 148)("Unsealed Competency MOO")(unsealing the Competency MOO after directing the parties to submit redactions and not receiving any redactions). In the Unsealed Competency MOO, the Court explains:

The Court predicts, based on its experience, that the BOP will find Nissen competent. On the record, however, all the Court has is Dr. Marshall's report, which says that Nissen is competent only if he trusts his attorney. Nissen does not trust Mr. Romero and has not trusted his previous three attorneys for reasons that indicate mental incompetency. On the present record, the Court finds, based on Dr.

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