                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES COURT OF APPEALS                     April 28, 2008
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 07-4189
          v.                                               (D. Utah)
 JEREMIAH VAUGHN GREGORY,                     (D.C. No. 2:05-CR-00893-PGC-1)
 Jr.,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and BRORBY, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant, Jeremiah Vaughn Gregory, Jr., was indicted on

one count of bank robbery, in violation of 18 U.S.C. 2113(a), for robbery of a


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Wells Fargo bank in Salt Lake City, Utah, on May 6, 2005. After a jury found

him guilty, he was sentenced to 240 months’ imprisonment. He appeals his

conviction, arguing that the district court erred in (1) failing to dismiss the

indictment for lack of jurisdiction, and (2) effectively denying him his right to

present his theory of the defense at trial. We affirm.



                                  BACKGROUND

      As indicated, Gregory was indicted on one count of bank robbery.

Proceeding pro se, Gregory filed a motion to dismiss the indictment for lack of

jurisdiction. He argued that he was a “member of the radical white supremacist

organization called THE ORDER,” an “ultra-fundamentalist element of the Aryan

Nation”; that the group had asked the government to cede five states

(Washington, Oregon, Idaho, Montana and Utah) to create a safe haven for white

people; and that, upon rejection of that plan, Gregory and others had renounced

their United States citizenship, joined The Order’s militia, and commenced

activities designed to destabilize the United States government. Motion To

Dismiss at 2, R. Vol. I. “Zionist banks and financial institutions were targeted”

and Gregory stated he “participated in numerous operations.” Id. Gregory then

argued:

      As a combatant, the principle of military immunity shields Gregory
      from being held accountable to civilian authorities for their actions.
      Combatants are held accountable to military laws and the generally

                                          -2-
      accepted rules of war. Neither the beliefs of the individual nor the
      reason behind the conflict have any bearing on this grant of military
      immunity. The test is whether the individual was a combatant and
      that the alleged acts were undertaken in furtherance of this
      conflict. . . . Gregory is clearly a combatant in the struggle for a
      racially pure white homeland. THE ORDER has from its inception,
      attacked banks and corporate institutions to achieve its goal of
      destabilizing the government of the United States.

Id. at 2-3. The district court denied the motion, finding Gregory’s “arguments

entirely lack[ed] merit.” Order Denying Motion to Dismiss at 1, R. Vol. I. The

district court denied Gregory’s motion to reconsider, calling the motion “facially

meritless.” Order Denying Motion to Reconsider at 1, R. Vol. I.

      Gregory also filed a motion to suppress evidence, including his confession,

both of which were obtained in a hotel room following his arrest. Following a

hearing, the district court denied the motion. There then followed a colloquy

between the court and Gregory touching upon a number of matters, including

Gregory’s statement that he was “going to say there was justification, moral or

otherwise, for the robbery and present that issue to the jury for them to decide

whether or not they should exercise their right as a community conscience to

acquit in spite of the facts and instructions of the Court.” Tr. of Motion to

Suppress Hr’g at 73-74, R. Vol. IV. Gregory argued that “the jury has a

sovereign right to acquit irregardless” and that his organization had been robbing

banks to fund its “ongoing fight against the government” since “we not only have

a duty but we have a right to throw out an oppressive government.” Id. at 77-79.


                                         -3-
While the district court expressed doubt about the relevance and admissibility of

that evidence, it stated that a final determination would be made at the pre-trial

conference.

      At the final pre-trial conference, Gregory offered various instructions

advising the jury about their “sovereign right to acquit even in the face of the

evidence.” Tr. of Final Pre-Trial Hr’g at 18, R. Vol. VI. The district court

rejected each proposed instruction. When Gregory asked how much “leeway” he

would be given to argue the issue to the jury, the court stated, “[Y]ou’re going to

be questioning witnesses about facts, and then in your opening and closing

statement you’re not entitled to argue that they should disregard the law.” Id. at

22. Gregory then stated that he might take the stand himself to testify as to the

same theory. The court expressed doubt about the relevancy of such testimony,

and told Gregory the court would preclude “any evidence along the lines that

Mr. Gregory has just described.” Id. at 41-42. The court then stated:

      And the record should also reflect that one of the reasons I’m doing
      this is to protect Mr. Gregory in the sense that if the jury learns that
      he is a member of a white supremacist organization that has been
      robbing banks since the 1980's, that might tend to inflame their
      passions and lead to an inaccurate result on this particular charge.
      ....
      There is not going to be any prior bad acts coming into the trial on
      the theories that have been outlined to me this morning.
      ....
      I have firmly ruled that you’re not entitled to nullification
      instructions or nullification arguments, and you’re not entitled to
      present evidence about some white supremacist operation or war with
      the United States.

                                          -4-
Id. at 42, 43, 49. The court subsequently denied Gregory’s motion to reconsider

its ruling on Gregory’s theory of defense.

      On the second day of trial, after the government rested, Gregory indicated

he might want to testify. Another colloquy ensued, and the court stated it would

allow Gregory to briefly explain why he robbed the bank, as long as it did not

“turn into a filibuster or an extensive [argument].” Tr. of Trial at 170, R. Vol. IX.

Gregory then stated he would not testify.

      The jury returned a guilty verdict. At sentencing, Gregory reiterated his

separatist philosophy, announcing that the district court had “turned this

courtroom into a cesspool, a sleazy and vile place” and assuring the court “that

retribution will be swift, certain, and exact a very heavy toll. . . . [W]hile I would

like to be the one to visit revenge retribution to your doorstep, I’ll have to trust

that to others, but believe me, when all is said and done, you will not escape the

wrath which you rightfully deserve.” Tr. of Sentencing Hr’g at 6-9, R. Vol. X.

The district court determined that an upward departure under United States

Sentencing Commission, Guidelines Manual (“USSG”) 5K2.9, or an upward

variance under 18 U.S.C. 3553(a), was warranted based upon the “strong

nexus . . . between Mr. Gregory’s purpose in robbing Wells Fargo Bank . . . and

his intent to commit other crimes with the proceeds from that robbery.” Order

Regarding Sentencing Enhancement at 15, R. Vol. I. The court accordingly

sentenced Gregory to 240 months.

                                           -5-
         Gregory appeals, arguing the district court erred in failing to dismiss the

indictment for lack of jurisdiction and that it erred by preventing him from

presenting his theory of defense.



                                      DISCUSSION

         We review de novo a district court’s conclusion that it has subject matter

jurisdiction over a criminal case. Huerta v. Gonzales, 443 F.3d 753, 755 (10 th

Cir. 2006). We review the denial of a motion to reconsider for abuse of

discretion. United States v. Barajas-Chavez, 358 F.3d 1263, 1266 (10 th Cir.

2004).

         Gregory argues that the district court erred in failing to transfer jurisdiction

over his case to a military tribunal, given that Gregory was a self-declared

“enemy belligerent” under Article 21 of the Uniform Code of Military Justice

(“UCMJ”). As the government points out in its brief, this argument fails for

multiple reasons. First, pursuant to 18 U.S.C. 3231, the district court had

jurisdiction over this case. Second, a military tribunal would have no jurisdiction

over Gregory under the UCMJ–the UCMJ lists those who are subject to its

provisions and, as the government aptly puts it, “[a] self-styled enemy belligerent,

performing bank robberies within the United States in furtherance of a hostile

cause, is simply not included.” Appellee’s Br. at 14. Third, neither the UCMJ

nor any other provision of law establishes any military commission with authority

                                            -6-
to hear this case. Finally, Gregory cannot divest a federal district court of

criminal jurisdiction simply by claiming his crime was part of a “war” against the

United States.

      With respect to his argument that the district court prevented him from

presenting his theory of defense, we review a district court’s decision to exclude

evidence for an abuse of discretion. United States v. Jordan, 485 F.3d 1214, 1218

(10 th Cir. 2007). There was no such abuse of discretion here. First, the record

discloses that the district court would in fact have allowed Gregory to present his

justification for robbing the bank, within appropriate limits. Second, the district

court properly determined the proposed testimony was more likely to confuse or

mislead the jury than to establish any element of the crime charged or otherwise

properly assist the jury in its deliberations. “Our deference to the trial court is

based upon its first-hand ability to view the witnesses and evidence and assess

credibility and probative value.” Id. Gregory’s proffered testimony was of little

relevance or probative value, and had the potential to mislead or confuse. The

district court did not err in its handling of Gregory’s proffered testimony about

his theory of defense.




                                          -7-
                         CONCLUSION

For the foregoing reasons, Gregory’s conviction is AFFIRMED.

                                     ENTERED FOR THE COURT


                                     Stephen H. Anderson
                                     Circuit Judge




                               -8-
