USA v. Shoffstall

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) 4:09-cr-00023-RRB-SAO
)
Plaintiff, )
) FINAL REPORT AND
vs. ) RECOMMENDATION
) REGARDING MOTION FOR
) SUMMARY JUDGMENT
ROGER LEE SHOFFSTALL, )
) (Docket 236 and 237)
Defendant. )
)
______________________________________)______________________________________
Defendant, Roger Lee Shoffstall, was sentenced to 38 months imprisonment, three years
supervised release, $100 special assessment, and $237,790.67 in restitution on April 16, 2010 as
a result of a conviction for Evasion of Payment of Tax in violation of 26 U.S.C. § 7201.1 On
October 9, 2013, a Petition for Warrant or Summons for Offender Under Supervised Release was
filed.2 Mr. Shoffstall declined counsel, proceeded Pro Se, and the court appointed stand-by
counsel. Magistrate Judge Scott Oravec conducted a preliminary hearing and found probable
cause existed to support each of the six allegations contained in the Petition.3
This matter is before the court on defendant’s Motion for Summary Judgment at Docket
236 and supporting Memorandum of Points and Authorities at Docket 237.4 Relevant here, Mr.
Shoffstall argued he was being charged without due process of law with having violated
condition(s) of supervised release.5 However, Mr. Shoffstall also argued the arrest warrant
issued by this court was issued under a ‘material false pretense’ because the United States
1 Jury verdict at Dkt. 76. Judgment at Dkt. 108.
2 Petition at Dkt. 207.
3 Final Report and Recommendation on Petition to Revoke Supervised Release at Dkt. 242.
4 Dkt. 236 is styled as “Ex Parte Motion for Ex Parte Summary Judgment” and Dkt. 237 styled as
“Ex Parte Memorandum of Points and Authorities In Support of “Ex Parte Summary Judgment.”
5 Dkt. 236, p. 4.
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District Courts were invalidly created under 28 USC 1331, the 16th Amendment is invalid, and
the Federal Reserve Act is unconstitutional.6 Because these arguments either attack the
underlying judgment or were previously addressed by the District Judge, this court will not
consider those arguments here.7
Government filed an Opposition to the Motion for Summary Judgment at Dkt. 241.
Government argues the District Judge’s ruling at Dkt. 164, reiterated in Dkt. 176, bars this court
from evaluating Ms. Shoffstall’s filing at Dkt. 236 and Dkt. 237. Government further argues that
Mr. Shoffstall’s arguments “go to the validity of his conviction,” and are hence invalid at this
stage of the proceedings.8
The Magistrate Judge recommends denial of the Defendant’s Motion at Dkt. 236 and
Dkt. 237 and adoption of the findings of fact and conclusions of law for the reasons stated below.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This court will evaluate Mr. Shoffstall’s claim he did not receive due process of law
regarding the allegations he violated his condition(s) of supervised release.
Federal Rules of Criminal Procedure 32.1 describes the procedures for revoking or
modifying probation or supervised release. A person held in custody must be taken without
unnecessary delay before a magistrate judge.9 Mr. Shoffstall was arrested on December 9, 2013
and taken before a Magistrate Judge Scott Oravec first on December 11, 2013.10 The Magistrate
6 Dkt. 237, p. 4.
7 In a Minute Order from Chambers in November 2011 denying a similar Writ of Conspiracy at
Dkt. 176, the District Judge stated “he [Mr. Shoffstall] must find a different vehicle other than
here, for the Final Judgment has long since been entered in this matter, the appeal process has
been concluded, and this case is closed.” This admonishment from Dkt. 176 quoted the District
Judge’s prior order from chambers at Dkt. 164.
8 Dkt 241, Opposition at p. 5.
9 Federal Rule of Criminal Procedure 32.1(a)(1).
10 Dkt. 221, return of the arrest warrant. Dkt. 223, minutes of the initial appearance.
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Judge is required to inform the defendant of the alleged violations of supervised release, rights to
obtain counsel, and right to a preliminary hearing,11 which the Magistrate Judge did on
December 11, 2013. The Magistrate Judge may release or detain the person under 18 U.S.C.
3143(a) pending further proceedings. Multiple hearings were held at the request of the defendant
to consider various release plans.12
A preliminary hearing must be held to determine whether there is probable cause to
believe that a violation occurred.13 Defendant must be given notice of the hearing and its
purpose and the right to retain counsel; an opportunity to appear at the hearing and present
evidence, and question any adverse witnesses.14 On January 14, 2014 a preliminary hearing was
conducted and a record made of the proceedings.15 The defendant appeared pro se at his request,
but with the assistance of stand-by counsel. While defendant declined to question the
government’s witness, stand-by counsel questioned the witness at defendant’s request.16
Therefore, this court acted within the requirements of Federal Rule of Criminal Procedure 32.1.
This court is not considering Mr. Shoffstall’s argument that the arrest warrant issued by
this court had no authority because the United States District Courts were invalidly created under
28 USC 1331.17 Mr. Shoffstall made this argument in prior filings when attacking the conviction
and seeking relief from the District Court Judge. The District Court Judge heard Mr. Shoffstall’s
argument, denied it, and addressed Mr. Shoffstall’s arguments on this point in future matters, by
11 FRCP 32.1(a)(3).
12 Dkt. 230, detention hearing held on December 20, 2013 by Magistrate Judge Scott Oravec .
Dkt. 235, bail review hearing held on December 27, 2013 by Magistrate Judge John Roberts.
13 FRCP 32.1(b)(1)(A).
14 FRCP 32.1(b).
15 Dkt. 239, minutes of the evidentiary hearing on petition to revoke supervised release.
16 Dkt. 239.
17 Dkt. 237, p. 4.
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his filings at Dkt. 164 and Dkt. 176.18 This court is bound by those rulings and finds such
arguments are without merit.
This court is not considering Mr. Shoffstall’s argument that the 16th Amendment is
invalid and the passage of the Federal Reserve Act violates the constitution. Such arguments
attack the underlying judgment and hence will not be considered here. This court reiterates the
District Judge’s language from 2011 “[Mr. Shoffstall] he must find a different vehicle other than
here, for the Final Judgment has long since been entered in this matter, the appeal process has
been concluded, and this case is closed.”19
CONCLUSION
For the foregoing reasons, the court RECOMMENDS that the Defendant’s Motion at
Dkt. 236 and filing at Dkt. 237 be denied.
DATED this 13th day of February 2014 at Fairbanks, Alaska.
__s/_SCOTT A. ORAVEC___
SCOTT A. ORAVEC
United States Magistrate Judge
A party seeking to object to this finding and recommendation shall submit any objections
to the Honorable United States District Court Judge Ralph R. Beistline, not later than NOON on
February 24, 2014 and responses to the objections shall be filed on or before NOON on
February 28, 2014. The parties shall otherwise comply with provisions of Local Magistrate
Rule 6(a). The failure to object to a magistrate judge's findings of fact may be treated as a
18 See Footnote 7 supra.
19 Minute Order from Chambers Denying Writ of Conspiracy at Dkt. 176, quoting prior order
from Chambers at Dkt. 164.
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procedural default and waiver of the right to contest those findings on appeal.20 The Ninth
Circuit concludes that a district court is not required to consider evidence introduced for the first
time in a party's objection to a magistrate judge's recommendation.21 Objections and responses
shall not exceed five (5) pages in length, and shall not merely reargue positions presented in
motion papers. Rather, objections and responses shall specifically designate the findings or
recommendations objected to, the basis of the objection, and the points and authorities in
support. Reports and recommendations are not appealable orders. Any notice of appeal pursuant
to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment.22
20 McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981).
21 United States v. Howell, 231 F.3d 615 (9th Cir. 2000).
22 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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