Filed: Mar. 14, 2017
Latest Update: Mar. 03, 2020
Summary: Case: 15-20454 Document: 00513910569 Page: 1 Date Filed: 03/14/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 15-20454 FILED March 14, 2017 Lyle W. Cayce Consolidated With 15-41627 Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, v. TYRONE EUGENE JORDAN, Defendant–Appellant. Appeals from the United States District Court for the Southern District of Texas Before JONES and OWEN, Circuit Judges, and ENGELHARDT, District Judge.* P
Summary: Case: 15-20454 Document: 00513910569 Page: 1 Date Filed: 03/14/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 15-20454 FILED March 14, 2017 Lyle W. Cayce Consolidated With 15-41627 Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, v. TYRONE EUGENE JORDAN, Defendant–Appellant. Appeals from the United States District Court for the Southern District of Texas Before JONES and OWEN, Circuit Judges, and ENGELHARDT, District Judge.* PE..
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Case: 15-20454 Document: 00513910569 Page: 1 Date Filed: 03/14/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-20454 FILED
March 14, 2017
Lyle W. Cayce
Consolidated With 15-41627 Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
TYRONE EUGENE JORDAN,
Defendant–Appellant.
Appeals from the United States District Court
for the Southern District of Texas
Before JONES and OWEN, Circuit Judges, and ENGELHARDT, District
Judge.*
PER CURIAM:
Tyrone Eugene Jordan appeals his conviction under 18 U.S.C. § 1521 for
filing false liens or encumbrances. He additionally contends that the district
court erred in applying a sentencing enhancement under § 2A6.1(b)(1) of the
* District Judge of the Eastern District of Louisiana, sitting by designation.
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Sentencing Guidelines that increased the base offense level by six levels. 1 We
affirm the district court’s judgment.
I
A jury convicted Jordan of conspiracy to launder money and conspiracy
to smuggle illegal aliens, and he was sentenced to sixty-three months in prison
and three years of supervised release. While in prison, Jordan began filing
various documents and affidavits in the court in which he was tried for those
offenses, claiming he was wrongfully convicted. The Government did not
respond to those filings. Jordan then filed a “Notice of Default,” alleging that
the Government had agreed to his assertions through its silence and that he
would seek “remedy/redress.” He then filed what he denominated an “Affidavit
in Support of Motion for Summary Judgment,” which asserted that the trial
prosecutor owed him $75,000 in damages and that he had been wrongly
imprisoned and forced to participate in prison labor. He subsequently sent a
notice to the trial prosecutor, stating that because she had failed to respond to
his filings, a contract had been formed and she owed him $6,534,500 in
liquidated damages. He sent further demands and then began to include in
his filings the judge who presided during his trial, demanding $6,534,500 from
the judge as well.
After filing approximately forty documents in the district court, Jordan
filed the three documents for which he was indicted in the present case. The
first was a U.C.C. Financing Statement filed with the Texas Secretary of State,
listing the trial prosecutor as a debtor and Jordan as the secured party. The
statement listed a $6,534,500 contract as collateral. The second and third
documents, both titled “Affidavit of Obligation Commercial Lien,” were filed in
1 U.S. SENTENCING GUIDELINES MANUAL § 2A6.1(b)(1) (U.S. SENTENCING COMM’N
2015) (hereinafter U.S.S.G.).
2
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the Harris County, Texas Clerk’s office and listed the prosecutor and judge as
debtors. Each filing was the basis for a separate count in the indictment, which
alleged that Jordan “filed, attempted to file, or conspired to file . . . any false
lien or encumbrance against the real or personal property” of the prosecutor
and judge in violation of 18 U.S.C. § 1521. A federal district court later
declared the three documents null and void.
A trial proceeded on the three counts alleging that Jordan had violated
18 U.S.C. § 1521. During the jury’s deliberations, it sent a note asking “[i]f a
lien was filed in Harris County, does it affect one person’s real property in
Corpus Christi.” At the hearing to discuss the note, Jordan’s attorney argued
that “[a]s a factual matter it doesn’t affect their real property. . . . I don’t know
whether you can tell them that or not. I think that’s the truth.” Jordan’s
attorney acknowledged that the information was outside the record but asked
the judge to take judicial notice that the filings in Harris County could have no
effect on property located in Corpus Christi. The judge declined and responded
to the jury in writing, stating that “[a]ll the evidence is already before the jury.
Please continue to deliberate.” The jury convicted Jordan on all three counts.
The pre-sentencing report recommended a six-level enhancement under
§ 2A6.1(b)(1) of the Guidelines for “conduct evidencing the intent to carry out
such threat,” 2 an enhancement to which Jordan objected. The district court
overruled the objection and applied the enhancement, which resulted in an
advisory Guidelines sentencing range of 97 to 120 months of imprisonment.
Jordan was sentenced to 120 months of imprisonment, the statutory
maximum, for each count, to run concurrently.
2 Id.
3
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II
Jordan argues, on various grounds, that the evidence was insufficient as
a matter of law to prove a violation of 18 U.S.C. § 1521. Jordan preserved
appellate review of the insufficiency of the evidence challenge through his
motion for a judgment of acquittal at the close of all evidence. 3 We review the
district court’s denial of the motion de novo. 4 “Accordingly, this court reviews
to determine whether a rational jury could have found the essential elements
of the offense beyond a reasonable doubt.” 5 We “view[] the evidence in the light
most favorable to the verdict, drawing all reasonable inferences to support the
verdict.” 6
When a “sufficiency of the evidence claim necessarily involves
interpreting the meaning of the . . . statute,” we review the question of
statutory interpretation de novo. 7 The statute under which Jordan was
convicted 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 an [officer or employee of the United States], 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
3 United States v. Olguin, 643 F.3d 384, 393 (5th Cir. 2011); United States v. Ferguson,
211 F.3d 878, 882 (5th Cir. 2000).
4 Ferguson, 211 F.3d at 882.
5 Olguin, 643 F.3d at 393.
6 Id. (quoting United States v. Delgado,
256 F.3d 264, 274 (5th Cir. 2001)).
7 United States v. Valle, 538 F.3d 341, 344 (5th Cir. 2008) (“The starting point for
interpreting a statute is the language of the statute itself. When construing a criminal
statute, we must follow the plain and unambiguous meaning of the statutory language.
Terms not defined in the statute are interpreted according to their ordinary and natural
meaning . . . as well as the overall policies and objectives of the statute.” (quoting United
States v. Kay,
359 F.3d 738, 742 (5th Cir. 2004))).
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or representation, shall be fined under this title or imprisoned for
not more than 10 years, or both. 8
The text does not lend credence to Jordan’s various arguments as to the
meaning of this provision, and decisions from two other circuit courts support
the conclusion that the evidence is sufficient to support Jordan’s conviction. 9
Jordan asserts that none of the three filings are liens or encumbrances.
With regard to the U.C.C. Financing Statement filed in the Texas Secretary of
State’s office, Jordan observes that the security interest claimed in the filing
“is not a security interest in property of the Assistant United States Attorney”
and that the filing “purports to create a security interest in a non-existent
contract.” Jordan recognizes that § 1521 covers “attempts” but argues that “it
is not a federal offense to attempt to create a security interest in a non-existent
contract.” If we were to accept this argument, we would read “false” out of the
statute. The U.C.C. filing stated that it covered “collateral” and identified a
“contract.” The fact that no such contract exists means that Jordan’s claim
that he has a security interest in collateral is an attempt to file a false
encumbrance.
Decisions of the Eighth and Ninth Circuit have addressed and rejected
arguments, and contentions that inhere within them, that are similar to
Jordan’s. In United States v. Reed, the defendant argued that his filing did not
identify any property that the judges owned. 10 The Eighth Circuit concluded
that this was immaterial because the filing at issue identified various matters
as collateral that, though not actually property of either judge, were the “types
8 18 U.S.C. § 1521.
9 See United States v. Neal, 776 F.3d 645, 653-54 (9th Cir. 2015); United States v. Reed,
668 F.3d 978, 984-85 (8th Cir. 2012).
10 668 F.3d at 984.
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of personal property against which valid liens can be filed.” 11 The Eighth
Circuit observed, “[n]o 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.” 12 That court also concluded 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.
Indeed, legal insufficiency is in the nature of the false, fictitious, and
fraudulent liens and encumbrances that Congress intended to proscribe.” 13 We
agree with the Eighth Circuit’s construction of § 1521, as did the Ninth Circuit
in United States v. Neal. 14
In Neal, the Ninth Circuit rejected the defendant’s argument that “there
was no evidence that the collateral he attempted to attach . . . was real or
personal property of a federal employee as required by the statute.” 15 That
court explained that “[b]ecause the statute can be violated without completed
conduct, the harm the statute protects against arises from the nature of the
documents to be filed, not the validity of the documents.” 16 The court
continued, “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.” 17 It was irrelevant that the filing did not pertain to real or
personal property that an employee actually owned:
[T]he terms “real and personal property” are not intended to limit
the scope of the statute, but rather to indicate the class of
documents prohibited by the statute. The statute prohibits the
11 Id.
12 Id.
13
Id. at 984-85.
14 776 F.3d at 654-55.
15 Id. at 651.
16
Id. at 653; see also
id. (“Again, validity is not a prerequisite for violation.”).
17 Id.
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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. [The
defendant’s] focus on collateral is misplaced, because the collateral
he listed in his Lien Documents is not relevant to whether he
violated the statute. 18
We agree with the Ninth Circuit’s reasoning and its construction of § 1521 in
this regard.
Jordan argues that the two filings with the Harris County clerk’s office
could not have affected property in Corpus Christi, which is where the judge
and prosecutor resided; that the filings were void because they were not “filed
for record as required by law”; and that they could not provide any notice
unless recorded in the proper county. The foregoing discussion of the scope of
§ 1521 applies equally to these contentions.
With regard to the two filings in the Harris County clerk’s office, Jordan
further argues that they were not liens because “it’s clear from the body of the
document that it is an affidavit and not a lien” and that it was filed in the
Harris County Real Property Records as an affidavit and not a lien. However,
these documents refer, more than once, to a “commercial lien,” the “lien
claimant,” and the “lien debtor.” The jury could conclude from these filings
that Jordan was attempting to file false liens or encumbrances. 19
III
Jordan next argues that the district court committed error by not
answering the jury note that asked “[i]f a lien was filed in Harris County, does
18Id. at 653-54.
19See id. at 653 (“[T]he 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 document.”).
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it affect one person’s real property in Corpus Christi.” No evidence on the
locational effect of a filing was introduced. The judge responded to the note
with the instruction that “[a]ll the evidence is already before the jury. Please
continue to deliberate.” Jordan timely objected. We review preserved
challenges to a district court’s responses to jury notes for abuse of discretion,
subject to harmless error analysis. 20
The district court did not abuse its discretion for many reasons, only a
few of which we address. The U.C.C. filing was made with the Texas Secretary
of State in Austin, in Travis County, Texas. It constituted a statewide filing.
Its effect was not limited to Harris County, Texas. 21 As to the Harris County
filings, as we have considered above, their validity was immaterial, and,
therefore, whether a filing in Harris County could affect property in Corpus
Christi, in Nueces County, was immaterial. Additionally, without any
objection from Jordan, the district court had instructed the jury in writing
before its deliberations began that it was immaterial whether the lien or
encumbrance was valid or actually impaired an official’s property. The jury
instructions, which correctly stated the law, said, “[i]t is not a requirement that
the lien or encumbrance be valid. Technical deficiencies are not a defense. It
is also not a requirement that the lien or encumbrance actually impaired the
government official’s property rights and interests.” The response to the jury
note that Jordan requested would have conflicted with this instruction.
20 United States v. Boyd, 773 F.3d 637, 646 (5th Cir. 2014); Brown v. Sudduth,
675
F.3d 472, 482 (5th Cir. 2012); United States v. Ramos-Cardenas,
524 F.3d 600, 610 (5th Cir.
2008) (per curiam).
21 See TEX. BUS. & COM. CODE ANN. § 9.501(a)(2) (West); First Nat’l Bank of Denver
City v. Brewer, 775 S.W.2d 51, 52-53 (Tex. App.—Amarillo 1989, no pet.) (noting that a party
had a perfected interest in assets located in Yoakum County, Texas after filing a financing
statement with the Texas Secretary of State).
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IV
Jordan challenges the district court’s six-level sentencing enhancement
under Sentencing Guideline § 2A6.1(b)(1). 22 We review a district court’s
application and interpretation of the Sentencing Guidelines de novo and the
court’s factual findings for clear error. 23 “We may affirm an enhancement on
any ground supported by the record.” 24
Section 2A6.1 of the 2015 Sentencing Guidelines, titled “Threatening or
Harassing Communications; Hoaxes; False Liens,” assigns a base offense level
of 12 for a conviction under a number of statutes, including 18 U.S.C. § 1521. 25
The enhancement to the base offense level at issue in this appeal provides: “If
the offense involved any conduct evidencing an intent to carry out such threat,
increase by 6 levels.” 26
Jordan urges us to follow United States v. Leaming, 27 an unpublished
decision from the Ninth Circuit, which he asserts held that filing a false lien
or encumbrance in violation of § 1521 is not a “threat” within the meaning of
§ 2A6.1(b)(1). In that case, the Ninth Circuit stated that “the enhancement
only applies to defendants who engage in conduct evidencing an intent to carry
out ‘such threat.’” 28 The court continued that “[a]lthough [the defendant] did
carry out the offense of filing a false lien, nothing in the record supports the
conclusion that [the defendant] made a ‘threat’ within the meaning of Section
2A6.1(b)(1).” 29
22 U.S.S.G. § 2A6.1(b)(1) (2015).
23 United States v. Garcia-Gonzalez, 714 F.3d 306, 314 (5th Cir. 2013).
24 Id.
25 § 2A6.1.
26 § 2A6.1(b)(1).
27 596 F. App’x 535, 537 (9th Cir. 2015) (unpublished).
28 Id. (quoting § 2A6.1(b)(1)).
29 Id. (quoting § 2A6.1(b)(1)).
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The Government relies upon United States v. Small, 30 an unpublished
decision from the Seventh Circuit that appears in tension, if not in conflict,
with the Ninth’s Circuit’s decision in Leaming. In Small, the Seventh Circuit
reviewed whether counsel had correctly concluded in an Anders brief that there
were no non-frivolous issues to be presented on appeal of a conviction under 18
U.S.C. § 1521. 31 With regard to a § 2A6.1(b)(1) sentencing enhancement
applied by the sentencing court, the Seventh Circuit said:
Counsel next considers challenging a six-level increase
under U.S.S.G. § 2A6.1(b)(1) for attempting to carry out a threat.
We agree with counsel that such a challenge would be frivolous
because an expressed intent to harm property is a threat, and [the
defendant] warned the [government official] in writing that he
would file a lien against the [government official’s] property unless
the [government official] paid off [the defendant’s] debt. 32
Accordingly, the Seventh Circuit appears to have concluded that although
there is no mention of “threat” in the text of § 1521, the enhancement under
§ 2A6.1(b)(1) can apply if there were threats to file a lien.
In resolving the sentencing issue, we first consider the relevant text of
§ 2A6.1. Subsection (a)(1) provides that the “Base Offense Level” for § 1521 is
12. Subsection (b) is titled “Specific Offense Characteristics,” and subsection
(b)(1) provides: “If the offense involved any conduct evidencing an intent to
carry out such threat, increase by 6 levels.” Section 2A6.1 of the Guidelines is
applicable to a number of offenses, and most of the statutory provisions
defining those offenses prohibit making threats. 33 The application of
30 618 F. App’x 870 (7th Cir. 2015) (unpublished).
31 Id. at 870-71; see Anders v. California,
386 U.S. 738 (1967).
32 Small, 618 F. App’x at 871 (citation omitted).
33 See, e.g., 18 U.S.C. § 32(c) (“Whoever willfully imparts or conveys any threat to do
an act . . . .”); id. § 115(b)(4) (“A threat made in violation of this section shall be
punished . . . .”);
id. § 844(e) (“Whoever . . . willfully makes any threat, or maliciously conveys
false information knowing the same to be false . . . .”);
id. § 871 (“Threats against President
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subsection (b)(1) seems clear when considering the appropriate sentence for an
offense that explicitly references a “threat.” But we have difficulty discerning
to what the phrase “such threat” refers when the statute of conviction is 18
U.S.C. § 1521, as in the present case. The words “threat” or “threatening” do
not appear in § 1521, and there is no concept similar to “threat” in § 1521. 34
Nevertheless, the Commentary to § 2A6.1 indicates that subsection
(b)(1) applies to conduct that occurred before or during the offense and,
therefore, can apply even if the statute of conviction does not prohibit or
reference a “threat.” The Commentary states:
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
and successors to the Presidency”); id. § 876 (“Mailing threatening communications”);
id.
§ 875(c) (“Whoever transmits in interstate or foreign commerce any communication
containing any threat . . . .”);
id. § 877 (“Mailing threatening communications from foreign
country”);
id. § 878(a) (“Whoever . . . threatens to violate . . . .”);
id. § 879 (“Threats against
former Presidents and certain other persons”);
id. § 1992(a)(10) (“[A]ttempts, threatens, or
conspires to engage in any violation . . . .”);
id. § 2280(a)(2) (including “[a] person who
threatens to do any act prohibited under” certain other provision of § 2280 within its
definition of “[o]ffenses”);
id. § 2291(e) (“Whoever knowingly and intentionally imparts or
conveys any threat to do an act which would violate this chapter, with an apparent
determination and will to carry the threat into execution . . . .”);
id. § 2332a(a) (“A person
who, without lawful authority, uses, threatens, or attempts or conspires to use, a weapon of
mass destruction . . . .”);
id. § 2332b(a)(2) (“Whoever threatens to commit an offense under
paragraph (1), or attempts or conspires to do so . . . .”); 47 U.S.C. § 223(a)(1)(C)-(E)
(prohibiting calls made to threaten or harass); 49 U.S.C. § 46507 (“An individual shall be
fined under title 18, imprisoned for not more than 5 years, or both, if the individual . . .
threatens to violate section 46502(a), 46504, 46505, or 46506 of this title . . . .”).
34 See 18 U.S.C. § 1521 (“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 an [officer or employee of the United
States], 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.”)
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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. 35
Jordan does not cite or discuss this commentary. He does assert that our
decision in United States v. Goynes 36 held that § 2A6.1(b)(1) cannot be applied
unless the defendant performed an overt act evidencing an intent to carry out
a threat. He argues that the letters he sent to the trial judge and prosecutor,
though harassing, did not contain any threat of physical harm and did not
constitute overt acts.
Our decision in Goynes involved a defendant who had been convicted
under 18 U.S.C. § 876 of mailing threatening communications. 37 Those
communications included threats to have the recipients killed and were
graphic and disturbing in their content. 38 Our court followed “[t]he majority
of circuit courts,” which “require that a defendant engage in some form of overt
act before sustaining a § 2A6.1(b)(1) enhancement.” 39 We held that “the
writing of multiple threatening letters and the nature of their content alone
are insufficient to justify the district court’s six-level enhancement.” 40 We
continued, “although Goynes’ threats are extremely violent and one of the
letters is signed in blood, we find that these acts are merely threats and not
conduct sufficiently evidencing an intent to carry out a threat.” 41
35 U.S.S.G. § 2A6.1 cmt. n.1 (2015).
36 175 F.3d 350 (5th Cir. 1999).
37 Id. at 351.
38
Id. at 351-52.
39
Id. at 353.
40
Id. at 355.
41
Id.
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The text of § 2A6.1(b)(1) is ambiguous in its reference to “such threats.”
However, the commentary indicates that the applicability of § 2A6.1(b)(1) is
not limited to offenses that contain the word “threat” in the statute of
conviction. Accordingly, a sentencing court may consider “conduct that
occurred prior to or during the offense” that was “substantially and directly
connected to the offense, under the facts of the case taken as a whole.” 42
There is evidence that Jordan threatened to file liens. A “notice” that
Jordan sent to the prosecutor asserted that she had agreed that a “lien can be
placed against all [of the prosecutor’s] assets, wages, income, . . . [and]
personal and real property.” A subsequent “Notice and Demand for Payment”
stated that the prosecutor must pay $6,534,500 to Jordan “to avoid a
consensual lien being placed on assets” of the prosecutor. Jordan took overt
actions to carry out these threats by making the filings for which he has been
prosecuted. The district court did not err in applying, pursuant to
§ 2A6.1(b)(1), a six-level increase to the base offense level of 12.
* * *
For the foregoing reasons, we AFFIRM the district court’s judgment.
42 U.S.S.G. § 2A6.1 cmt. n.1 (2015).
13
