United States v. Gunwall

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 12 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 97-5108
v. (D.C. No. 96-CR-82-C)
(N.D. Okla.)
WAYNE RICHARD GUNWALL,
Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 97-5123
v. (D.C. No. 96-CR-82-1-C)
(N.D. Okla.)
KENNEY F. MOORE,
Defendant-Appellant.

ORDER AND JUDGMENT *

Before ANDERSON, MAGILL, † and KELLY, Circuit Judges.

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
†
The Honorable Frank J. Magill, United States Circuit Judge, Eighth
Circuit, sitting by designation.
 Mr. Gunwall and Mr. Moore pled guilty to conspiracy to interfere with the

administration of the internal revenue laws, 18 U.S.C. § 371 and 26 U.S.C.

§ 7212(a). Mr. Gunwall was sentenced to fifteen months in prison and three years

supervised release. Mr. Moore was sentenced to twelve months and a day in

prison, followed by two years of supervised release. Our jurisdiction arises under

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a); we affirm.

Mr. Moore and his wife accrued a substantial federal tax liability between

1978 and 1985. In 1986, a flood destroyed most of their assets and the assets of

Mr. Moore’s chiropractic practice. The Moores did not have flood insurance.

Soon after the flood, the IRS began seizing their remaining assets. The Moores

attended an “untax” seminar where they met Mr. Gunwall and learned how to

harass IRS agents and prevent the seizure of their property. Before the date

scheduled for the sale of the Moores’ property, Mr. Moore and Mr. Gunwall filed

with the county clerk fraudulent liens against the land of two IRS officers

assigned to their case. The liens, one of which was also filed against an officer’s

wife, purported to show that the officers owed Mr. Moore and Mr. Gunwall

$7,000,000. They also filed in the district court a “Citizens Warrant for Citizens

Arrest,” naming as “Arrestees” several IRS employees, a United States

Bankruptcy Judge, the Solicitor General of the United States, a Department of

Justice Tax Division lawyer, and the Comptroller of the Currency. At the IRS

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sale, Mr. Gunwall and Mr. Moore handed a similar citizens arrest warrant to the

presiding IRS officer, and gave potential bidders a warning that they could not

legally buy the property being sold.

On the government’s motion, the first indictment against Mr. Moore and

Mr. Gunwall was dismissed without prejudice so that the government would not

be required to reveal the existence of a wiretap involved in a separate

investigation. Approximately six months later they were re-indicted. Mr. Gunwall

chose to represent himself, and the court appointed standby counsel. Mr. Gunwall

filed numerous motions on his own behalf, including six the morning his trial was

scheduled to begin. Later the same morning Mr. Moore and Mr. Gunwall reached

a plea agreement.

Mr. Gunwall appeals from his conviction and sentence, arguing the

district court erred in (1) denying his motion to withdraw his guilty plea, (2)

disallowing his untimely objections to the presentence investigation report, (3)

ruling the objections were, in any case, without merit, (4) failing to rule on his

motion to dismiss the indictment, and (5) failing to rule on his objections to the

district court’s jurisdiction. Mr. Moore appeals only his sentence, arguing the

district court applied the wrong provision of the sentencing guidelines to his

offense.

We review the district court’s denial of Mr. Gunwall’s motion to withdraw

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his guilty plea for abuse of discretion. United States v. Killingsworth, 117 F.3d

1159, 1161 (10th Cir.), cert. denied, 118 S. Ct. 393 (1997). Under Fed. R. Crim.

P. 32(e) the defendant bears the burden of showing a fair and just reason for the

withdrawal of his plea. See United States v. Hyde, 117 S. Ct. 1630, 1631 (1997);

United States v. Burger, 964 F.2d 1065, 1070-71 (10th Cir. 1992), cert. denied,

507 U.S. 1033 (1993). Mr. Gunwall claims he lacked the requisite criminal intent

for the offense. However on three separate occasions—in his plea agreement, his

petition to enter a plea, and in the plea colloquy—Mr. Gunwall admitted he was

guilty of the conspiracy charged. He admitted specific facts sufficient to support

a finding of guilt, and at the hearing on his motion to withdraw his plea, he

confirmed that those admissions were truthful. See VI R. 15.

Mr. Gunwall also claims he was confused about the consequences of his

plea in relation to the sentencing guidelines. We note that “dissatisfaction with

the length of a sentence is an insufficient reason to withdraw a plea.” United

States v. Gordon, 4 F.3d 1567, 1573 (10th Cir. 1993), cert. denied, 510 U.S. 1184

(1994). Mr. Gunwall admitted he had been clearly told that the sentence that he

might receive was within the sole discretion of the trial judge. He admitted no

promises had been made to him about sentencing; he admitted knowing that the

plea agreement stated in bold letters that sentencing was within the sole discretion

of the court; and he admitted acknowledging to the court several times that he

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understood this.

Mr. Gunwall also argues his lack of counsel provides a reason to withdraw

his plea. Although he insisted on representing himself, Mr. Gunwall had the

assistance of standby counsel from the time of his plea until sentencing. The

court noted that a certificate of counsel had been submitted to the court at the

change of plea, in which counsel stated the guilty plea was in accord with the

facts his client related and with his advice to his client. See VI R. 26. Having

considered the seven factors which should guide the trial court’s discretion in

withdrawal of pleas, see Killingsworth, 117 F.3d at 1161–62, we find no abuse.

Mr. Gunwall next argues the court abused its discretion in declining to

consider untimely objections to the presentence investigation report which he

adopted, the day before his sentencing, from Mr. Moore. Because we consider

these objections below in our discussion of Mr. Moore’s appeal, and conclude

they are meritless, any error in declining to consider them was harmless. See

United States v. Rios-Ramirez, 929 F.2d 563, 566 n.2 (10th Cir. 1991).

Mr. Gunwall next claims the court failed to rule on his pretrial motion to

dismiss the indictment, in violation of Fed. R. Crim. P. 12(e), due process, and his

right of access to the courts. He also claims the district court’s failure to

specifically rule on his motion affects the court’s jurisdiction. Because he

presents neither argument nor authority to support the due process, access-to-

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courts, and jurisdiction assertions, he has waived them. See United States v.

Hardwell, 80 F.3d 1471, 1492 (10th Cir.), rev’d in part on other grounds on reh’g

in part, 88 F.3d 897 (10th Cir. 1996).

We review for abuse of discretion Mr. Gunwall’s underlying claim that the

district court should have granted his motion to dismiss the indictment. See

United States v. Strayer, 846 F.2d 1262, 1265 (10th Cir. 1988). Mr. Gunwall

relies on United States v. Derr, 726 F.2d 617 (10th Cir. 1984), arguing the trial

court abused its discretion in granting the government’s dismissal of the first

indictment without prejudice and without requiring the government to state its

reasons for the dismissal. He further argues, based on Derr, that the remedy for

the allegedly improper first dismissal is dismissal of the second indictment. Derr,

however, is distinguishable, and its remedy of dismissal of the second indictment

has been limited to its facts. See Strayer, 846 F.2d at 1266. Derr was based in

part on several circumstances not present in our case: the Derr record contained

no reasons or facts explaining the first dismissal, the defendant had objected to

the first dismissal, and the only reason for the government’s dismissal on the

morning of trial was that it was not ready. See Derr, 726 F.2d at 619. Here the

government defends its lack of reasons in the first dismissal by invoking its need

to protect the secrecy of the separate investigation.

In Strayer, on facts similar to ours, we held the trial court did not err in

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denying a motion to dismiss, because the government’s prior dismissal was

justified and the defendant failed to object or to show abuse or harassment by the

government in bringing and dismissing charges. See Strayer, 846 F.2d at 1266.

In our case, likewise, the first dismissal was justified and Mr. Gunwall failed to

object to it or to show bad faith. In these circumstances any failure to specifically

rule on Mr. Gunwall’s motion to dismiss was harmless error. See United States v.

Palomares, 119 F.3d 556, 558-59 (7th Cir. 1997).

Mr. Gunwall next contends the court violated Fed. R. Crim. P. 12(e) and

“implicated” his due process and access-to-courts rights by failing to rule on the

wave of other motions he filed, some of which challenged the court’s jurisdiction.

The district court ruled that he had waived the issues in his motions by pleading

guilty. The government concedes Mr. Gunwall did not waive legitimate

objections to jurisdiction by pleading guilty, but argues any failure of the court to

rule on the motions was harmless error.

The court entered a minute order September 19, 1996 overruling all

objections to the authority of the court to proceed or of the United States to

prosecute. After this, Mr. Gunwall filed a pleading with no title under the

heading “Washitaw de Dugdahmoundyah International Natural Law Court.” III

R. doc. 45. The district court struck this pleading as having no basis in law or

fact. Mr. Gunwall also complains the district court failed to rule on his pleadings

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titled “Judicial Notice,” I R. doc 67, “Motion & Notice for Recusal,” I R. doc 71,

“Motion to Dismiss based upon Denial of Due Process of Law,” I R. doc. 72,

“Notice of Requirements for Effective Assistance of Counsel,” I R. doc. 73,

“Motion to dismiss due to Lack of Venue and Original Jurisdiction,” I R. doc. 74,

“Motion for Evidentiary Hearing,” I R. doc. 75, and “Petition for Declaratory

Judgment,” I R. doc 76. In those documents that do allude to jurisdiction, Mr.

Gunwall claims to be a member of a sovereignty known as “Washitaw de

Dugdahmoundyah” over which the government has no jurisdiction. The pleadings

are frivolous and any failure to rule on them was harmless.

Mr. Gunwall and Mr. Moore both claim the court incorrectly applied USSG

§ 2J1.2 to their offense instead of § 2A2.4, which provides a lower base offense

level. We review de novo questions of law regarding application of the

sentencing guidelines, giving due deference to the trial court’s application of the

guidelines to the facts. See United States v. Farnsworth, 92 F.3d 1001, 1007,

1009 (10th Cir.), cert. denied, 117 S. Ct. 596 (1996).

Under USSG § 1B1.2(a), the district court should apply the guideline “most

applicable to the offense of conviction . . . .” Mr. Gunwall and Mr. Moore argue

that § 2A2.4, the guideline relating to attempts to obstruct or impede officers in

the performance of their duties, is more applicable to their conspiracy offense

than § 2J1.2, the guideline for obstruction of justice which the district court

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applied. Mr. Gunwall and Mr. Moore conspired to violate 26 U.S.C. § 7212(a),

which has two clauses. The first prohibits intimidating or impeding an officer of

the United States acting in his official capacity; the second, known as the

omnibus clause, prohibits obstructing or impeding the due administration of the

internal revenue laws. Appendix A of the sentencing guidelines lists § 2A2.4 as

the appropriate guideline for violation of the first clause of § 7212(a), and § 2J1.2

as the appropriate guideline for violation of the omnibus clause of § 7212(a).

The indictment count to which the defendants pled guilty charged conduct

that violates both clauses of § 7212(a): conspiring to interfere with the

administration of the internal revenue laws, and doing so by intimidating and

harassing individual employees of the IRS. We see no reason why the clauses

should be mutually exclusive. That is, even if we concede the defendants violated

the first clause, so long as they also violated the omnibus clause, application of

§ 2J1.2 is appropriate. Cf. USSG § 1B1.2(a), (c) (instructing courts to use the

guideline most applicable to the conduct charged in the count of conviction, but if

a plea agreement stipulates to a more serious crime, to use the guideline most

applicable to the more serious crime). The district court found that, among other

things, the defendants “conspired and agreed together to interfere with the

administration of internal revenue laws . . . .” IV R. 3 (Presentence Investigation

Report); see VI R. 48 (adopting report as findings of the court). This finding is

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not clear error. Mr. Moore and Mr. Gunwall interfered with the administration of

the laws in ways other than by harassing individual employees: they passed out

warnings to potential bidders at the IRS sale; they filed a lien against the wife of

one of the IRS agents; they filed with the court a “Citizens Warrant for Citizens

Arrest,” and served it on IRS personnel; and the district court found that Mr.

Moore had sent a fraudulent $275,000 money order to the IRS purporting to pay

off his tax liability. Commentary to § 2J1.2 states, “Numerous offenses of

varying seriousness may constitute obstruction of justice: using threats or force to

intimidate or influence a . . . federal officer; [or] obstructing a civil or

administrative proceeding . . . .” USSG § 2J1.2 comment. (backg’d). Mr. Moore

and Mr. Gunwall did both. We find no error in the district court’s application of

§ 2J1.2. See United States v. Van Krieken, 39 F.3d 227, 230–31 (9th Cir. 1994),

cert. denied, 514 U.S. 1075 (1995).

AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge

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