A three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis on Wednesday upheld the convictions and 57-month sentence of a Pine Bluff man who pretended to be a foreign diplomat to avoid getting a traffic ticket.
The ruling leaves intact The-Nimrod Sterling's 2015 convictions on charges of impersonating a foreign diplomatic officer and being a felon in possession of a firearm, as well as the sentence handed down in September by U.S. District Judge Billy Roy Wilson. Sterling officially changed his name years earlier from Nimrod Sanders to the hyphenated moniker.
The diplomat charge stemmed from an Oct. 1, 2013, traffic stop of Sterling's silver Jeep Liberty in a construction zone on Interstate 530 near Redfield. Cpl. Jeff Preston of the Arkansas State Police testified at Sterling's May 2015 jury trial that he clocked the Jeep, in which Sterling's mother was a passenger, traveling 75 mph in a 60-mph zone.
Preston said that as he approached the vehicle, he saw two stickers on its bumper that read "Republic of Conch Diplomat" and "Diplomatic immunity. Do Not Detain." The trooper said he decided "to err on the side of caution and not risk an international incident" after Sterling, now 43, handed him a "Diplomatic Identification Card" bearing his photograph, along with an Arkansas driver's license with the same photograph.
The card, which jurors saw enlarged on courtroom monitors, proclaimed that the bearer, as a dual citizen of the United States and the Conch Republic, "is officially immune" from traffic citations and arrests, and that "trespass upon the Bearer shall constitute an international incident for redress per violation of the International World Court Rules of Engagement."
Preston told jurors that after looking at the card, he returned to his patrol car and searched databases to see if the Conch Republic was a country entitled to diplomatic immunity with the United States, but couldn't find any mention of such a country -- which is fictitious.
Although he issued tickets to all of the other drivers he stopped that day in the area, Preston said, he let Sterling go with a warning to slow down, sparing Sterling from what would have been a $330 speeding ticket.
A little more than a year later, on Oct. 14, 2014, agent Warren Newman of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives executed a search warrant at Sterling's home. The warrant was based on tips that Sterling had a shotgun and had been seen firing it in his backyard. Sterling had previously been convicted of robbing a bank with a toy gun, and under the law wasn't permitted to possess a firearm.
Newman testified that he found a loaded, short-barrel, 12-gauge shotgun in the bedroom that Sterling shared with his wife, Kayan. The firearm was against the wall on the same side of bed as Sterling's wallet and other personal items were found. Newman also reported finding two boxes of shotgun shells on a dresser on that side of the bed and several utility bills indicating that Sterling lived there.
Newman also reported finding other items in the house that indicated Sterling had ordered the fake identification card and other items online. That led to the U.S. Department of State Diplomatic Security Service executing an arrest warrant for Sterling,
On appeal, Sterling -- citing his interpretation of the statute under which he was charged -- said the evidence used to convict him was insufficient. The statute says, "Whoever, with the intent to defraud within the United States, falsely assumes or pretends to be a diplomatic, consular or other official of a foreign government duly accredited as such to the United States and acts as such, or in such pretended character, demands or obtains or attempts to obtain any money, paper, document, or other thing of value, shall be fined under this title or imprisoned not more than ten years, or both."
Sterling argued that the government he purported to represent -- the Conch Republic -- is fictitious and so cannot be "duly accredited ... to the United States."
The appellate panel said Sterling's argument misconstrues the statute, which when read as a whole indicates that the word modified by "duly accredited" is "such." The opinion says that because people don't ordinarily "act as" or assume the "pretended character" of foreign governments, "we read the word 'such' as referring ... to a 'diplomatic, consular or other official,' rather than to a 'foreign government.'"
"Because the repeated word 'such' refers to an official rather than a government, the statute prohibits an individual from pretending to be a duly accredited foreign official and contains no requirement that the government he purports to represent also be 'duly accredited,'" according to the opinion written by U.S. Circuit Judge Raymond Gruender of St. Louis and joined by Circuit Judge Steven Colloton of Des Moines and U.S. District Judge Stephen Bough in the Western District of Missouri, who was sitting by designation as the third panelist.
The panel also found that Sterling's argument that the government didn't prove that he actually possessed the shotgun, which he claimed his mother had loaned him for the purpose of cleaning it, "lacks merit."
Wilson's sentence took into consideration other "relevant conduct" for which Sterling wasn't charged, in which two Pine Bluff high school girls testified that Sterling pulled the shotgun on them on Sept. 30, 2014.
Metro on 07/07/2016