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United States of America v. Michael Howard Reed

March 8, 2011

UNITED STATES OF AMERICA, APPELLEE,
v.
MICHAEL HOWARD REED, APPELLANT.



Appeal from the United States District Court for the District of North Dakota.

The opinion of the court was delivered by: Bye, Circuit Judge.

Submitted: December 17, 2010

Before LOKEN and BYE, Circuit Judges, and MARSHALL,*fn1 District Judge.

A jury convicted Michael Howard Reed of possessing a firearm and ammunition while he was a fugitive from justice in violation of 18 U.S.C. §§ 922(g)(2) and 924(a)(2). Reed left Nevada while there was an outstanding warrant for his arrest and returned to North Dakota where he had access to a firearm and ammunition locked in a safe. He appeals his conviction arguing the evidence was insufficient to support a finding he constructively possessed the firearm or ammunition. He also claims the district court*fn2 erred in instructing the jury "[i]t is not necessary that the Defendant initially left the jurisdiction [of Nevada] with the intent to avoid the charges pending against him." We affirm.

I

Reed*fn3 is the self-proclaimed attorney general for the Little Shell Nation, an Indian tribe not recognized by the federal government. Reed is not Native American, similar to many members of the unrecognized tribe, who join the organization via the Internet. Reed was "adopted" by the Little Shell Nation in 2006, when he moved to North Dakota. The Little Shell Nation maintains its office and headquarters in Rolette, North Dakota.

In November 2008, Reed was in Nevada. A police officer stopped Reed's vehicle because its registration could not be identified. A search of the vehicle's trunk uncovered marijuana and drug paraphernalia. Reed was arrested and charged with driving without a valid driver's license and possession of a controlled substance. He posted a bond and was released from jail. On March 11, 2009, Reed failed to appear for a hearing on the charges. A bench warrant was issued for his arrest. At some point, Reed returned to the Little Shell Nation's headquarters in Rolette.

Federal authorities began investigating Reed after two phone calls he made in May and June 2009. In May 2009, he left a voice message for a federal district court judge. The message concerned arrest warrants and federal drug conspiracy charges filed against John Lenoir and Patrick Allery, two members of the Little Shell Nation. In the voice message, Reed claimed the federal court's jurisdiction and venue were improper and Reed would "make [the judge] show cause before Congress and the nation as to why and what he was doing." On June 7, 2009, Reed made a second call to the Federal Bureau of Investigation (FBI). In that phone call, Reed told the FBI "[t]here's a federal judge about ready to get the trigger pulled on him."

During its investigation into the phone calls, the FBI discovered the outstanding Nevada warrant. On June 10, 1999, a deputy marshal traveled to Rolette to find Reed and execute the warrant. Reed was found, arrested, and transported to the jail in Rugby, North Dakota. Several friends visited Reed while he was in the Rugby jail; their conversations with Reed were recorded for security reasons. On June 12 and 13, Reed made threatening statements indicating he would resort to violence if authorities tried to extradite him to Nevada. He also threatened to "blow up" the jail, and said he was going to "fry me a f***ing judge." On June 13, Reed's friend, Isaac Dean, came to the jail and demanded that Reed be released. While Dean was there, Reed yelled from his cell, "[i]f I don't get out of here by ten o'clock, come back and blow this f***ing place up." Later that same day, in a phone conversation with both Dean and Reed's girlfriend, Susan Davis, Reed referred to a nine millimeter firearm and ammunition inside a safe:

They want me front and center in Nevada . . . So, that's why I said if somebody did come to get me, I . . . they wouldn't make it. I wouldn't be leaving the country. I'd kill the motherf***er. Yeah. Cause I'm not gonna go there. . . . Well, you know when I get back, I'll open up the safe and I'm gonna put my 9 millimeter right there . . . with cop killer bullets in it. Let one of those motherf***ers come up to me . . . I'm not gonna let 'em keep taking me to jail.

Presentence Report (PSR) at 4-5.

Based on Reed's statements, a search warrant was obtained for the Little Shell Nation headquarters in Rolette. During the search, agents found a safe inside the office where Reed worked. The Little Shell Nation spokesperson told a federal agent that Reed owned the safe. A Desert Eagle nine millimeter firearm was found inside the safe, as well as fifteen rounds of Remington nine millimeter bullets, and ten rounds of E.L.D. Eldorado nine millimeter bullets. In addition to the firearm and the ammunition, the safe contained other items which belonged to Reed, such as papers and books. During an interview conducted after the execution of the search warrant, Reed made statements indicating he owned both the safe and the firearm found in the safe, such as "[w]ho opened my safe" and "[w]ho has my gun?" The firearm was traced back to a licensed dealer in Helena, Montana. Federal firearm records confirmed that Reed purchased the firearm (which was manufactured in Israel) on October 30, 1995.

A federal grand jury indicted Reed on one count of being a fugitive from justice in possession of a firearm and ammunition in violation of 18 U.S.C. ยงยง 922(g)(2) and 924(a)(2). Reed represented himself at trial, with a federal public defender appointed as standby counsel. The government had no evidence of Reed's actual possession of the firearm or ammunition and thus relied upon a constructive possession theory. For his part, Reed presented evidence from Greg Davis, also known as Zakiz-Aanakward, the spokesperson for the Little Shell Nation. Davis claimed Reed did not have the combination to the safe in his office and had to ask ...


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