Opinion
Case No. 3:15-cr-00048-RRB
01-05-2021
UNITED STATES OF AMERICA, Plaintiff, v. SERGEY VICTOR SILVER, Defendant.
ORDER RE: NOTICES
Mr. Silver, a criminal defendant serving his sentence, has filed three "notices" as a self-represented prisoner. The Court has accepted these filings and docketed them. The Government has not responded.
I. Filings at Dockets 67 , 68, and 69.
On September 14, 2020, Mr. Silver filed a document titled "Re: Conditional Acceptance for Value (CAFV) - Private Independent Administrative Process - Article 1 Redress of Grievance Under the Nineth Amendment Reservation for the Resolution and Equitable Settlement under Necessity. In the Nature of Request for Proof of Claim/Discovery." This document is addressed to Ralph R. Beistline, D.B.A. United States District Court, District of Alaska "or current chief judge hereinafter Respondent." The document states that Mr. Silver is "in receipt of judgment" and agrees "to abide by the stipulations thereof upon your providing PROOF OF CLAIMS in the Nature of the Discovery." Mr. Silver further states that he is seeking proof of claim regarding his charging documents and "a True and Correct copy of your Oath of Office, surety, performance bond and/or blanket bond with the name and address of the insurer, the bond number, public and private pledges or otherwise to indemnify the undersigned." Mr. Silver then enumerates 47 demands of "PROOF OF CLAIM" including, but not limited to: citizenship, jurisdiction, the governing status or alleged corporate structure of the State of Alaska and the United States of America, the solvency and alleged bankruptcies of the State of Alaska and the federal government, oaths of office of judicial officers and prosecutors, the existence of a de jure constitution, that the bar association is a British foreign entity, and the use of commercial paper in relation to personhood.
Docket 67.
Id. at 1.
Id. at 1.
See id.
The final pages are labeled "CAVEAT," which asserts that this Court has "dealt with a Corporate Entity and not the filed Secured Party/Creditor (natural man) . . . . No Sanction(s) can be imposed upon this Secured Party." Mr. Silver further states:
Should you fail to provide the requested PROOF OF CLAIM, you would fail to state a claim upon which relief can be granted, and you will have stipulated to all the facts as they operate in favor upon the undersigned, i.e. that the Undersigned is not a signatory, not party to the
social compact (Constitution) of the State of Alaska and said Constitution does not operate upon the Undersigned and that the Judge and Prosecutor for the United States District Court, District of Alaska under CAN, committed constitutional impermissible application of the statute(s)/laws in CAN, and you also agree that injury was done to the Undersigned, via Misapplication of the Statute(s), Malicious Prosecution, Conspiracy, libel, slander, and Fraud, and you agree that the Undersigned is due damages via tort.Mr. Silver further states that the Respondent (this Court):
must reply within Thirty (30) DAYS, providing PROOF OF CLAIM both to the Undersigned and to the Third-Party witness's addresses below, and should you go into fault, you will be given THREE (3) DAYS to cure fault of non-response. If you fail to cure your fault, you will be found in default and will have established your default and dishonor of this counter-offer to the original offer indictment in the record.Mr. Silver signs this document "with EXPLICIT RESERVATION OF ALL MY UNALIENABLE RIGHTS, WITHOUT PREJUDICE TO ANY OF THOSE RIGHTS, in compliance with UCC § 1-308."
Id. at 12.
Id. at 13.
Id. at 14.
On October 26, 2020, Mr. Silver filed a document titled "Notice of Fault and Opportunity to Cure And Contest Acceptance." This document is addressed to the Court and states that "you failed to perform by providing the requested and necessary PROOFS OF CLAIM (Discovery)"; "[a]s the Respondent, you are now at fault"; and "you are in agreement and have stipulated to the terms of the undersigned's dated presentment through your dishonor should you fail to Cure by providing requested necessary PROOF OF CLAIM." This filing that should the Respondent (this Court) fail to "cure" within three days of postmark a "FINAL NOTICE/RES JUDICATA will establish the fact in the record." The filing states that this is pursuant to "Article 1 Redress and Grievance Under the Ninth Amendment, Uniform Commercial Code, State Statute, Case Law and otherwise."
Docket 68.
Id. at 1.
Id.
Id.
Lastly on December 9, 2020, Mr. Silver filed a document titled "Final Notice of Default Res Judicata." In this document, Mr. Silver enumerates a "Statement of Fact" in which "Respondent failed to provide any evidence of an investigation being initiated" an "is now in DEFAULT, admits total acceptance, and Full Agreement to all of the facts contained within the CAFV via Respondents silent acquiescence." The document states that "the CAFV is now STARE DECISIS and may NOT be controverted in any future administrative, civil, judicial, or commercial process" and "is now the 'TESTIMONY' of Respondent." The document proceeds to enumerate 34 statements to the effect that the U.S. Constitution and federal and state laws do not apply to Mr. Silver, because he is a "flesh and blood man"; the State of Alaska and the federal government are corporate entities without sovereignty, the bar association is a British foreign entity, and that the judgment in his case is void. In regards to his criminal judgment, Mr. Silver states that "the Judgment for CAN, was in fact 'COMMERCIAL PAPER' that was deposited into a bank and/or converted into a depositable item for the commercial benefit of the Judge and Prosecutor, Court, COUNTY THE STATE OF ALASKA, THE UNITED STATES, and/or the World Bank." Further, Mr. Silver asserts his judgment "was 'VOID' from its inception and that the Declarant should be immediately released of all implications, and may proceed with applicable remedy of choice."
Docket 69.
Id.
Id. at 2.
Id. at 2-5.
Id. at 4.
Id. at 5.
In brief summary, Mr. Silver has filed a series of three documents in which he labels this Court as the Respondent, demands to be provided with proof of his statements/accusations, and now asserts that his criminal judgment is void. Approximately four years prior to these filing, Mr. Silver pleaded guilty to 18 U.S.C. § 2252(a)(4)(B) and (b)(2), Sexual Exploitation of a Child-Possession of Child Pornography, and was sentenced to 66 months imprisonment, in addition to a period of supervised release, treatment recommendations, and fines. Currently, he is incarcerated at Moshannon Valley Correctional Institution.
Docket 65.
Id.; Bureau of Prisons Inmate Locator, https://www.bop.gov/inmateloc/, last accessed December 29, 2020.
II. Discussion of Theories and Claims
Mr. Silver's filings assert an assortment of theories and claims associated with the Sovereign Citizen movement. While many various sub-groups and ideologies may fall under the Sovereign Citizen umbrella, the overarching unifying principle is the belief that "even though they physically reside in this country, they are separate or 'sovereign' from the United States." The most common Sovereign Citizen interpretations of the U.S. Constitution are attempts to challenge the United States' jurisdiction to either punish or tax it citizens. These theories on government, jurisdiction, and the law have no factual or legal basis in U.S. history, the United States Constitution, the United States Supreme Court, the United States Code, state or local law, or any function of the American rule of law. The Court provides this order to Mr. Silver so he may understand a variety of the "claims" he has raised, why he is not entitled to relief, and to caution him regarding future risks associated with the Sovereign Citizen Movement.
Recent Sovereign Citizen Extremist Targeting of Law Enforcement Highlights Potential for Violence During Traffic Stops, FEDERAL BUREAU OF INVESTIGATION (June 1, 2012).
Caesar Kalinowski IV, A Legal Response to the Sovereign Citizen Movement, 80 Mont. L. Rev. 153, 165 (2019).
A. Personhood
A U.S. citizen cannot separate the "natural person" from an "artificial" person or entity from oneself. The "Sovereign Citizen" ideology attempts to create the idea of natural personhood versus artificial personhood by relying on pre-civil war case law and the Reconstruction Amendments to the U.S. Constitution. The "Sovereign Citizen" movement erroneously interprets the U.S. Constitution, Declaration of Independence, and pre-civil war case law to advance a fictious idea of dual "personhood." This is not legally possible, enforceable, or supported by any cogent interpretation of American law. This concept of personhood is an incorrect assertion of citizenship, individual rights, and how a person may be subject to jurisdiction of state and federal courts. Through this flawed concept of dual personhood, a "Sovereign Citizen" attempts to reject the jurisdiction of state and federal governments. However, any individual who is a citizen, takes an action, and/or resides in the United States is subject to federal jurisdiction and any applicable state jurisdiction. No asserted separation or division of personhood can exempt a person from federal or state jurisdiction.
Id. at 158-62.
Id.
B. The Role of Federal District Courts
Mr. Silver's documents attempt to compel a federal district court in a variety of actions, including initiating an investigation, providing discovery, oaths, and "evidence." A federal district court is a trial court. A federal district court adjudicates and resolves dispute between parties involving federal laws passed by Congress, or state law disputes between parties from different states or nations. Generally, a trial court does not engage in investigations or produce evidence. A presiding judge is tasked with interpreting the law and, depending on the case, either may weigh and decide facts, or preside over a jury tasked with making factual findings. Fundamentally, the actions demanded by Mr. Silver are inappropriate requests to a federal district court.
1 Stat. 73; see also 28 U.S.C. § 1291.
Fed. R. Evid. 102, 103, 104, 105; see generally 28 U.S.C. §§ 1330-1369 (defining and clarifying the subject matter jurisdiction of federal courts in civil matters).
The United States District Court for the District of Alaska is an Article III Court. This Court is not an administrative court or Article I legislative court. The judges and lawyers who practice in this Court, as well as every other federal district court, must be professionally certified by a bar association. A bar association is an organization of members of the legal profession. In the United States, each state bar association is tasked with licensing attorneys, the oversight of legal ethics, and may sanction attorneys for poor practice or take action against individuals engaged in the unauthorized practice of law. The "BAR Theory" or often referenced as the "British Accredited Registry" is a conspiracy theory alleging that there is a secret bar association of lawyers who work for the British monarchy, or that as bar association members all lawyers and judges are loyal to foreign or British interests. This theory has been traced to an anonymously authored essay, "Hiding Behind the Bar," which circulates in tax protestor and "Sovereign Citizen" groups. Fact checking services have disproven the essay and have stated that "almost every part of this is factually inaccurate." The United States District Court for the District Court of Alaska, its judicial officers, and the attorneys practicing before it, are all in good standing in the American legal profession. Moreover, all federal judges must partake and abide by the oath as established by 28 U.S.C. § 453.
U.S. CONST. art. III, § 2 ("The judicial Power shall extend to all cases, in Law and Equity, arising under the Constitution, the Laws of the United States . . . ."); 28 U.S.C. § 81A (The U.S. District Court for the District of Alaska is an Article III court.).
Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 106 (1982) (Justice White dissenting) (""Constitutional courts exercise the judicial power described in Art. III of the Constitution; legislative courts do not and cannot."). An example of an Article I legislative court is the Court of Veterans Appeals created by 102 Stat. 4105, 38 U.S.C. § 4051.
"Bar association," BLACK'S LAW DICTIONARY, (11th ed. 2019).
"State bar association," BLACK'S LAW DICTIONARY, (11th ed. 2019).
Dan MacGuill, Does the 'bar' in 'Bar Exam' Denote a Secret Lawyers' Conspiracy?, SNOPES (Jan. 23, 2018), https://www.snopes.com/fact-check/british-accredited-registry-bar/.
Id.
Each justice or judge must take this oath before executing their duties as a federal judicial officer: "I, [name], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [judicial office] under the Constitution and laws of the United States. So help me God."
The Court did, and continues to, have proper subject matter jurisdiction over Mr. Silver as a criminal defendant accused, convicted, and sentenced for violating federal criminal law. Congress may form and create federal criminal law, because of the Commerce Clause powers of Congress as established by the U.S. Constitution. These federal criminal laws are passed by Congress and enforced by the Executive Branch—which includes the Department of Justice and the U.S. Attorney's Office. This gives the U.S. Attorney's Office standing to prosecute violations of federal law. The U.S. Attorney's Office, as part of the Department of Justice and part of the Executive Branch of the federal government, sought an indictment from a grand jury and then filed the indictment with this Court, which is part of the Judicial Branch of the federal government. The Judicial Branch, which includes the United States District Court for the District of Alaska, interprets federal law passed by Congress and enforced by the Executive. Thus, all of Mr. Silver's claims, challenges, or theories regarding this Court's actions or its jurisdiction are without merit.
U.S. CONST. art. I, § 8, cl.3; see also United States v. Lopez, 514 U.S. 549 (1995) (where the Supreme Court overturned a federal criminal law, because Congress had exceeded the power to regulate as granted by the Commerce Clause of the U.S. Constitution).
Dockets 1, 2.
C. The Redemption Theory
While not explicitly stated, Mr. Silver's notices appear to advance positions similar to the Sovereign Citizen "belief" known as the "Redemption Scheme" or "Redemption Theory." Broadly, the Redemption Theory is based on the idea that when the U.S. Government discontinued the gold standard "it pledged the future earnings of its citizens and U.S. Citizens themselves as collateral to support the value of its currency." In some ideological groups, the Redemption Theory includes the false belief that the United States went bankrupt and uses "its citizens as collateral in trade agreements with foreign nations." Sovereign Citizens believe that the United States Treasury establishes an account for each citizen at birth, and this creates two identities—the corporate or "strawman" attached to the account and the "natural" or "common-law" man. Under the Redemption Theory, by "removing oneself as surety" the individual can control "the strawman" of personhood and access these monies directly from the Treasury Department.
Caesar Kalinowski IV, A Legal Response to the Sovereign Citizen Movement, 80 Mont. L. Rev. 153, 165 (2019).
Loeser, Charles E., From Paper Terrorists to Cop Killers: The Sovereigncitizen Theory, 93 N.C. L. Rev. 1106, 1120 (2015).
Id. at 1121.
Id.
Importantly, participants in the Redemption Theory risk destroying important identification and financial records and being victims of fraud. The Office of the Comptroller of the Currency and the U.S. Department of Treasury have warned individuals not to participate in these schemes, because there is "no substance in law or finance" and may put individuals at risk of identity theft. Furthermore, individuals may be at risk of criminal prosecution for the creation and presentation of documents in violation of federal law, and "regardless of how such instruments or documents are titled or whether they appear authentic, they are worthless, have no legal validity, and are not payable through the United States Treasury, the Secretary of the Treasury, the Comptroller of the Currency, or any other federal or state agency."
See Office of the Comptroller of the Currency, Debt Elimination Fraud: Fraudulent Debt Elimination Schemes, UNITED STATES DEPARTMENT OF TREASURY, https://www.occ.gov/news-issuances/alerts/2007/alert-2007-55.html (explaining that one of the fraudulent processes purported to eliminate debt is the "use of a nonexistent 'trust account' supposedly held in a person's name at the United States Department of the Treasury or some other part of the federal government." Other fraudulent processes include substituting or claiming subrogation of a debt instrument issued by a government or company, made payable by the U.S. Treasury to the individual, notices that the contract or obligation in question is illegal, or that the creditor does not have authority to collect the debt.).
See Office of the Comptroller of the Currency, Fictitious Financial Instruments: Worthless Sight Drafts, Bills of Exchange, Due Bills and Redemption Certificates, UNITED STATES DEPARTMENT OF TREASURY, https://www.occ.gov/news-issuances/alerts/2003/alert-2003-7.html.
See Office of the Comptroller of the Currency, Illegal Financial Activity: Fictitious Debt Elimination Schemes, UNITED STATES DEPARTMENT OF TREASURY, https://www.occ.gov/news-issuances/alerts/2003/alert-2003-12.html.
U.S. Treasury bonds are issued to raise money for the U.S. Government to spend on activities budgeted for and approved by Congress. U.S. Citizens and individuals are not used as equity or surety for bonds issued by the U.S. Treasury.
Government Bond, INVESTOPEDIA (December 4, 2019), https://www.investopedia .com/terms/g/government-bond.asp.
See, generally, Id.
D. Incorrect and Irrelevant Law
Mr. Silver's documents cite to incorrect, inapplicable, or irrelevant statutes and regulations. The Court will not address every falsehood made in the "notices," but addresses these major issues to highlight the grave misleading statements made within the document at Docket 67, and the subsequent filings at Dockets 68 and 69.
a. The United States Constitution
The United States Constitution established the national, three-branch form of government. The United States Constitution is the ultimate authority in American law. The federal government came into existence in 1779, after the United States Constitution was ratified in 1778. The United States Constitution subsequently has been amended in accordance with Article V. A "de jure Constitution" does not exist.
Constitution of the United States: Primary Documents in American History, Introduction, LIBRARY OF CONGRESS, (last accessed Jan. 5, 2020), https://guides.loc.gov/constitution.
Id.
National Archives, Constitutional Amendment Process, https://www.archives.gov/federal-register/constitution (last accessed Dec. 30, 2020).
b. Title 18 of the United States Code
Title 18 of the United States Code contains the federal criminal statutes and do not provide private causes of actions to citizens, or support any of the assertions made in this "notice."
27 CFR § 72.11 is a federal regulation promulgated by the Alcohol and Tobacco Tax and Trade Bureau of the Department of the Treasury. This section provides defines terms used in Alcohol and Tobacco Tax and Trade Bureau regulations. It does not state or establish that all federal crimes are commercial and therefore dischargeable under commercial law. Regulations promulgated by federal agencies do not supersede laws passed by Congress and codified in the United States Code.
d. The Uniform Commercial Code (UCC)
The Uniform Commercial Code (UCC) is a "comprehensive set of laws governing all commercial transactions in the United States," including the sales of goods, negotiable instruments, and secured transactions. The UCC "is not a federal law, but a uniformly adopted state law." All 50 states have adopted a version of the UCC in order to make commercial activities more predictable and facilitate interstate commerce, though many states have adopted or executed variations of the original legal scholarship. The UCC in no way supersedes, influences, alters, or subsumes the jurisdictional authority of Congress's legislative authority, the executive branch's role of enforcement of those laws, or this Court's adjudicatory power.
Uniform Commercial Code, Summary, UNIFORM LAW COMMISSION (last accessed Jan. 5, 2020), https://www.uniformlaws.org/acts/ucc; see also "Uniform Commercial Code," BLACK'S LAW DICTIONARY, 11th Edition (2019).
Id.
U.C.C. § 1-103 (2001).
III. Caution from the Court Re: The Sovereign Citizen Movement
Mr. Silver is currently serving a term of imprisonment for violating 18 U.S.C. § 2252(a)(4)(B) and (b)(2), Sexual Exploitation of a Child-Possession of Child Pornography. Upon release, Mr. Silver's Conditions of Supervision will include that he: "shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer" in addition to "the defendant shall not commit another federal, state or local crime."
Docket 65.
Id. at 3.
The Sovereign Citizen movement has been flagged by the Federal Bureau of Investigation as a domestic terrorist threat. Though the movement is highly individualized, and many members are law-abiding and non-violent, the core tenant is the same: "The Government operates outside of its jurisdiction. Because of this belief, [Sovereign Citizens] do not recognize federal, state, or local laws, policies, or regulations." Due to this core rejection of the rule of law, "Sovereign Citizens" and their associates are often encouraged to engage in legal infractions ranging from false or obscured license plates to financial fraud, tax evasion, weapons violations, and even killing law enforcement officers and civilians.
FBI Counterterrorism Analysis Section, Sovereign Citizens: A Growing Domestic Threat to Law Enforcement, Federal Bureau of Investigation (September 1, 2011), https://leb.fbi.gov/articles/featured-articles/sovereign-citizens-a-growing-domestic-threat-to-law-enforcement.
Id.
Id.
Because Mr. Silver will be under the conditions of his supervised release in the future, the Court cautions Mr. Silver to take heed as to his associations with this movement. He may be knowingly or unknowingly participating in fraudulent schemes, and/or associating with individuals who may be putting his own liberty at risk through their own independent actions. The Court encourages Mr. Silver to continue to be successful in his period of incarceration, on his re-entry back into the community, and to be aware of his associations and engagement in this movement, which may be detrimental to his freedom.
IT IS THEREFORE ORDERED:
1. The Court will take no further action regarding the documents at Dockets 67, 68, and 69. They are not in the form of motions, and moreover, are deemed legally frivolous as they are unsupported in
relevant, applicable law. Because these documents attempt to use the public record to support patently false claims of law and fact, Dockets 67, 68, and 69 are hereby STRICKEN from the record in accordance with Local Civil Rule 1.1(b)(9)(A).
2. Mr. Silver is discouraged from filing any similar notices and claims in the future.
3. Mr. Silver is cautioned that the filings he has submitted to the Court feature ideology recognizable as part of the "Sovereign Citizen" movement. The Court further cautions Mr. Silver to thoroughly consider his associations or actions taken as part of this movement, as it may put him at risk of violating his future Conditions of Supervision.
DATED at Anchorage, Alaska, this 5th day of January, 2021.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge