Exposing the Myths – Sovereign Citizens – Liens and 18 U.S.C. § 1521

One of the favorite methods of some Sovereign Citizens is to use liens to harass those who refuse to take them seriously. Thus, we have seen examples of such ‘liens’ filed against Judges, IRS agents and other government officials.

Congress put an end to this harassment by passing 18 USC 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 individual described in section 1114, on account of the performance of official duties by that individual, knowing or having reason to know that such lien or encumbrance is false or contains any materially false, fictitious, or fraudulent statement or representation, shall be fined under this title or imprisoned for not more than 10 years, or both.
Over time, this statute has been successfully applied to many cases, starting with the sentencing of a member/founder of the so-called “Montana Freeman Militia”:

Daniel E. Petersen, age 67, presently incarcerated at the Minnesota Correctional Facility in Oak Park Heights, Minnesota, to 90 months in prison on six counts of filing a false lien or encumbrance against a federal judge.

See also US v Petersen, Dist. Court, Minnesota 2009, where the Court laid to rest other myths

In advance of that hearing, Defendant filed a “Writ of Praecipe” claiming that he has been “enslaved by `foreign agents’ . . . [who are] engaged in a conspiracy against rights . . . [and] who have restrained [him] without authority of law to protect their `Organized Crime.'” (Doc. No. 27.) He further claims that the federal courts are “an `Administrative Court’ fraudulently executing a `Judicial Process'” thereby denying him “[a]ll due process of law . . . without proper jurisdiction.'” (Id.)

Petersen also filed a list of questions and insisted that he would receive a response within 72 hours, or otherwise his questions would be filed as ‘in agreement’. The court, correctly, observed, that there was no foundation for this statement.

At the conclusion of Defendant’s written submission of August 12, 2009, as well as at the August 19, 2009, hearing, Defendant “demand[ed] an answer, item by item, line by line, within (72) seventy-two hours after receipt,” stating that the failure to answer each and every item would be “filed and recorded as an agreement with each item.” (Doc. No. 31.) There is, of course, no basis whatsoever in the applicable criminal rules, or elsewhere, for any such demand by a criminal defendant, much less for the stated consequence of a “failure” to respond.

Petersen also failed to understand that concepts of diversity jurisdiction etc apply only to civil cases, and that in criminal cases such as this one, the court does have jurisdiction. Petersen also objected to the ‘fact’ that the statutes had not been published in the Code of Federal Regulations, but as the court observed, there is requirement for such, as the CFR applies to regulations, not statutes which are codified in the USC. Similarly, the concept of personal jurisdiction only applies to civil cases.

In one ruling the Court addressing a variety of common myths found in Sovereign Citizen ‘arguments’.

Common Law Jurisdiction

The court explains that Common Law at the Federal level is limited, mostly because the Courts have found that there is no Federal Common Law. The claim that Common Law applies is based on a misunderstanding of 18 USC which codified criminal law at the Federal level. Common Law can only exists in absence of acts, laws or statutes.

A federal court applies common law only where appropriate. For example, it applies federal common law in limited contexts of certain federal civil actions. See generally Erwin Chemerinsky, Federal Jurisdiction § 6.1 (5th ed. 2007). And it applies state common law in certain civil actions based on diversity jurisdiction. Id. § 5.3.5. Here, Defendant relies on the Rules of Decision Act, codified at 28 U.S.C. § 1652, as well as Erie v. Tompkins, 304 U.S. 64 (1938). (Doc. No. 31, ¶¶ 56, 69.) He apparently does so in the attempt to support arguments based on the law of various states and the District of Columbia. (E.g., id. ¶¶ 51-53.) But any such argument is misplaced here because federal criminal actions are governed by federal criminal law, largely Title 18 of the U.S. Code and the Federal Rules of Criminal Procedure. And Section 1652 applies only “in civil actions.” 28 U.S.C. § 1652.

There is no federal criminal common law, as criminal law at the federal level is statutory, however, some common law is creeping into federal criminal law. See for example Ben Rosenberg, The Growth of Federal Criminal Common Law,  29 Am. J. Crim. L, 193. Spring, 2002 which warns against the dangers of Federal Criminal Common Law.

There is no federal criminal common law. That all federal criminal law derives from statutes is a cornerstone of the federal criminal jurisprudence. Common law crimes, whether federal, state or local, have long been disfavored. They run afoul of our deepest notions of due process and raise the specter of the judiciary imposing its will and the coercive powers of the state against its citizens. Yet there is federal criminal common law, and it is growing. The growth derives from the role that courts have been called upon to play by broadly worded federal criminal statutes, which have placed courts in the role of criminal administrative agencies, both creating and interpreting the criminal law under a broad mantle of congressional authorization.

The existence and growth of federal criminal common law should be matters of concern, for the dangers of criminal common law are real. The growth of federal criminal common law may also have benefits to society at large, however, because it may bring uniformity and clarity in some instances where statutes fail to do so.

Is the US a Federal Corporation?

Another common misunderstanding is that the US is a foreign corporation, limited to the District of Columbia. However, as the court observed, this is based on a failure to understand the context of the statent in 28 USC 3002

Along similar lines, Defendant contends that the United States of America is a federal corporation, and one that is “located in the District of Columbia.” (Doc. No. 31 ¶¶ 11, 26, 29; Doc. No. 34 (citing 28 U.S.C. § 3002(15).) He further claims that the “United States Government was officially [c]ommercialized in 1871,” apparently arguing that this entity’s powers “shall be limited to the District of Columbia.” (Doc. No. 34.)

But Defendant’s reliance on 28 U.S.C. § 3002(15) is misplaced. That statute is simply a definitional provision defining the “United States” as, among other options, “a Federal corporation” solely for purposes of the chapter of which it is part, that is, Chapter 176, “Federal Debt Collection Procedure.” 28 U.S.C. § 3002. The applicability of Chapter 176 is confined to civil actions by the United States “(1) to recover a judgment on a debt; or (2) to obtain, before judgment on a claim for a debt, a remedy in connection with such claim.” Id. § 3001(a). This criminal action is not a civil debt collection action.

Organic Act of 1871 16 Stat 419

In addition, Defendant’s reliance on the Organic Act of February 21, 1871, 16 Stat. 419, is likewise misplaced as that statute simply “created a government by the name of the District of Columbia,” a municipal corporation with “jurisdiction over all the territory within the limits of the District.” District of Columbia v. John R. Thompson Co., 346 U.S. 100, 104 (1953). The present criminal prosecution of Defendant has nothing to do with the District of Columbia or the powers that Congress delegated to the District. Similarly, Defendant’s reliance on a commercial law statute from that jurisdiction is mistaken. While that statute provides that “[t]he United States is located in the District of Columbia,” that statute also expressly states that it “applies only for purposes of this part,” which is Part 3 of Article 9 of District of Columbia’s codification of the Uniform Commercial Code, and simply governs the location of various debtors for purposes of perfecting a security interest. This criminal prosecution is governed by federal criminal law, not the commercial (or any other) law of the District of Columbia.[5]

11th Amendment

We now address the often raised claim that under the 11th Amendment, the Federal Government cannot proceed in a criminal action because it is a ‘Foreign or Fictitious’ entity or corporation.

Relying on the Eleventh Amendment, Defendant asserts a prohibition on “foreign states” from commencing or prosecuting actions such as the present criminal action. (Doc. No. 31 ¶ 25; accord Doc. No. 41 at 68 (claiming that the U.S. is a fictitious entity, a corporation in violation of the Eleventh Amendment).)

Again the court destroys the ‘arguments’

First, because this criminal action against Defendant is brought by the United States of America, a sovereign nation not subject to any foreign state, the Eleventh Amendment has no application here.[6] Second, the Eleventh Amendment bars only those suits when brought “against one of the United States,” not any such suit brought against an individual such as Defendant. Id.

Titles of Nobility

The court then dismissed the claim that Judges and US Attorneys are somehow foreign agents.

Defendant apparently views Assistant U.S. Attorneys and federal judges as “foreign agents” that have seized power in United States based on the fact that attorneys use “Esquire,” which he perceives as a British title of nobility prohibited by the U.S. Constitution. (Doc. No. 41 at 19-20, 49, 79; Doc. No. 31 ¶¶ 17-26.)

The court educates the defendant on why this ‘argument’ also has to fail.

Although titles such as “Esquire” might have had some official meaning in feudal England or Great Britain, in the United States use of such terminology by attorneys is simply an informal “title of courtesy commonly appended after the name of a lawyer.” Bryan A. Garner, Blacks Law Dictionary 566 (7th ed. 1999). Such a convention hardly indicates or reflects any affiliation with a foreign government or country such as Great Britain.

Bar (BAR) association

We often see a confused reference to a BAR association, which some claim refers to British Accreditation Regency. Of course, this is without any merit as the term Bar (which is not an acronym) merely refers to the bar separating the court from the gallery.

Perhaps somewhat relatedly, Defendant claims that all attorneys are part of a “bar association” which he perceives to be an illegal monopoly. (Doc. No. 41 at 38, 39-42.) But membership in such associations is purely voluntary and any such organization wields no economic power such that it could exercise monopoly power. Insofar as Defendant is contending that attorneys must be “registered” or licensed by a particular State’s Supreme Court (Doc. No. 31 ¶¶ 87-88), such requirements for the practice of law raise no basis on which a criminal defendant may challenge his prosecution.

The fact that one has to be admitted to the Bar court or registered or licensed in order to practice law before the court, has no relevance to the claims made. The Court has the right to require those practicing law to be properly licensed.

Immunity because of Sovereignty

The court also addresses the flawed appeal to ‘doctrine of immunity’

Defendant apparently claims immunity but fails to invoke any valid and applicable doctrine of immunity. Defendant claims to be an “`American citizen,’ not a United States citizen,'” yet also contends that having exercised his purported right of expatriation, he is the subject of a foreign state. (Doc. No. 31 ¶¶ 1, 2, 27-28.) But even assuming Defendant was somehow not a U.S. citizen, the Court notes that the applicability of federal criminal law is not confined to such citizens. Rather, federal criminal law applies, at a minimum, to anyone within the territorial jurisdiction of the United States. 1 Wayne R. LaFave, Substantive Criminal Law § 4.2 (2d ed. 2003); see 18 U.S.C. § 5.

Indeed, jurisdiction extends to anyone within the territorial jurisdiction of the United States, with minor common law exceptions.

Positive Law

Sometimes Sovereign Citizens fail to understand the relevance of Positive Law, which is related to claims that Title 26 (taxes) is not Positive Law.

Next, Defendant claims that the federal statutes on which his charges are based, Sections 2 and 1521 of Title 18, have never been enacted into “positive law.” (Doc. No. 41 at 32-33, 39, 42; Doc. No. 31 ¶¶ 70-71; Doc. No. 35 ¶¶ 25-26.)[7]

Indeed, Title 26 was never enacted as positive law, but the effect of such is limited, as it means that Title 26 cannot be considered prima facie evidence of the accuracy of the text of the statutes/acts. See:

The Internal Revenue Code of 1954 was enacted in the form of a separate code by act Aug. 16, 1954, ch. 736, 68A Stat. 1. Pub. L. 99-514, §2(a), Oct. 22, 1986, 100 Stat. 2095, provided that the Internal Revenue Title enacted Aug. 16, 1954, as heretofore, hereby, or hereafter amended, may be cited as the “Internal Revenue Code of 1986”. The sections of Title 26, United States Code, are identical to the sections of the Internal Revenue Code.
And again, the court explains:

Defendant misunderstands, however, the process by which a bill becomes enacted into law and how such acts are then codified in the U.S. Code. As the Ninth Circuit has held, “Congress’ failure to enact a title into positive law has only evidentiary significance and does not render the underlying enactment invalid or unenforceable.” Ryan v. Bilby, 764 F.2d 1325, 1328 (9th Cir. 1985) (addressing Title 26). Accord United States v. Romig, 2003 WL 22143730 (D. Minn. Aug. 18, 2003) (addressing Title 21). Where, as here, Congress validly passed a bill and the President signed it, the resulting act is duly enacted and enforceable. Romig, 2003 WL 22143730, at *1.[8]Enacting a statute into positive law simply means that Congress has given its authority to the language as it appears in that particular title of the United States Code such that the Code “`can be taken as authoritative and need not be checked or verified with the corresponding section in the original Statutes at Large.'” Id.

The Court expands, to correct the misunderstanding by the defendant.

More importantly, Defendant misunderstands the significance of a statute lacking the status of being “positive law.” That any particular statute is not positive law does not somehow invalidate the statute. It simply means that any discrepancy between the statute as codified in the U.S. Code and the Act that Congress passed must be resolved in favor of the version as reflected in the Statutes at Large. Here, while Defendant purports to challenge the statutes under which he is charged as somehow raising a “positive law” issue, he fails to identify any discrepancy between the original Act as reflected in the Statutes at Large and the codification of those Acts in Title 18 of the U.S. Code. Thus, there appears to be no such issue.[9]

The court addresses additional ‘arguments’ that were poorly developed and concludes that the motion by the defendant’s motion to dismiss and recuse has to be denied.