USA v. Stoltenberg et al

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
EDWIN ALLEN STOLTENBERG,
Defendant.
3:18-CR-00109-TMB-MMS
FINAL REPORT AND
RECOMMENDATION1 REGARDING
DEFENDANT'S SECOND MOTION
TO DISMISS FOR LACK OF
JURISDICTION [DKT. 647]
I. 	MOTION PRESENTED
The superseding indictment, filed in September 2019, charges Edwin Allen
Stoltenberg with one count of drug possession with intent to distribute,2 one count
of carrying a gun during a drug trafficking crime,3 two counts of felon in possession
of a firearm,4 and one count of access device fraud.5
1 This report and recommendation is being issued as a final report and recommendation.
Pursuant to Fed. R. Crim. P. 59(b)(3), any objections will be considered by the District
Court Judge, who will accept, reject, or modify the recommendation, or resubmit the matter
to the Magistrate Judge for additional consideration and recommendations.
2 21 U.S.C. § 841(a)(1), (b)(1)(A)
3 18 U.S.C. § 924(c)(1)(A)
4 18 U.S.C. §§ 922(g)(1), 924(a)(2)
5 18 U.S.C. § 1029(a)(1), (C)(1)(A)
Case 3:18-cr-00109-JMK-MMS Document 683 Filed 11/02/21 Page 1 of 4

2
In June 2019, this Court denied Stoltenberg’s motion to withdraw his not
guilty plea. [Dkt. 145]. In April 2021, the district court denied Stoltenberg’s first
motion to dismiss for lack of jurisdiction by issuing its own order that adopted this
Court’s final report and recommendation. See [Dkt. 638]; see also [Dkt. 616]. This
Court’s report and recommendation recommended denying Stoltenberg’s motion
because “[i]t is beyond dispute that this Court has personal jurisdiction” and has
“subject matter” jurisdiction. [Dkt. 616 at 1-2].
Stoltenberg moves, pro se, to dismiss for lack of jurisdiction by regurgitating
his 	previously 	denied 	jurisdictional 	arguments. 	[Dkt. 	647-1 	at 	1]. 	Although
Stoltenberg has not entered a guilty plea, he moves to withdraw his guilty plea: “I,
Edwin-Allen Stoltenberg, aka Jesse-Wayne Ripley was under duress not knowingly,
voluntarily without full disclosure entered a guilty plea on behalf of Defendant
which I now recind, and withdrawal that admission at this time, as the plea was
entered 	under 	fraud.” 	[sic] 	[Id. 	at 	3]. 	The 	government 	did 	not 	respond 	to
Stoltenberg’s motion.
Stoltenberg’s motion to withdraw his guilty plea is easily dispensed with for
the very good reason that he has never entered a guilty plea. Here, Stoltenberg’s
newest motion requests the same remedies that were previously denied by this Court.
See [Dkt. 616]; see also [Dkt. 145]. Stoltenberg has also not shown any basis for
reconsideration under Local Rule 47.1(g). This Court declines to construe this as a
Case 3:18-cr-00109-JMK-MMS Document 683 Filed 11/02/21 Page 2 of 4

3
motion for reconsideration because Stoltenberg has not set forth: (a) a manifest error
of the law or fact; (b) discovery of new material facts not previously available; or
(c) intervening change in law. See L. Crim. R. 47.1(g). As such a showing is an
express requirement to move for reconsideration, Stoltenberg’s motion violates
Local Rule 47.1(g) and should be DENIED on that basis.
For the reasons set forth above, Stoltenberg’s motion to dismiss for lack of
jurisdiction [Dkt. 647] should be DENIED. Insofar as he also seeks to withdraw his
guilty plea, such a motion is not ripe, as he has not yet plead guilty. The motion to
withdraw his guilty plea should be DENIED without prejudice.
DATED this 2nd day of November, 2021 at Anchorage, Alaska.
s/ Matthew M. Scoble
CHIEF MAGISTRATE JUDGE
Pursuant to Fed. R. Crim. P. 59(b)(2) and D. Alaska Loc. Mag. R. 6(a), a party
seeking to object to this final finding and recommendation shall file written
objections with the Clerk of Court no later than the CLOSE OF BUSINESS on
November 16, 2021. Pursuant to Fed. R. Crim. P. 59(b)(3), objections will be
considered first by the District Court Judge, who will then accept, reject, or modify
the recommendation, or resubmit the matter to the Magistrate Judge for additional
consideration. Failure to object to a magistrate judge’s findings of fact may be
treated as a procedural default and waiver of the right to contest those findings on
appeal. Miranda v. Anchondo, et al., 684 F.3d 844 (9th Cir. 2012). 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. United
States v. Howell, 231 F.3d 615 (9th Cir. 2000). 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. Response(s) to the objections shall be filed on or before
Case 3:18-cr-00109-JMK-MMS Document 683 Filed 11/02/21 Page 3 of 4

4
the CLOSE OF BUSINESS on November 23, 2021. The parties shall otherwise
comply with provisions of D. Alaska Loc. Mag. R. 6(a).
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. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
Case 3:18-cr-00109-JMK-MMS Document 683 Filed 11/02/21 Page 4 of 4