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United States v. Jordan

United States Court of Appeals, Fifth Circuit

March 14, 2017

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 Sentencing Guidelines that increased the base offense level by six levels.[1] We affirm the district court's judgment.


         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 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.


         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 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 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 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]


         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 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 ...

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