Burns Chronicles (No. 16 – 20)

The following is a partial mirroring of Gary Hunt’s series about the government’s prosecution against the membership of C4CF. Please first read, Burns Chronicles (No. 6 – 10),” andBurns Chronicles (No. 11 – 15),” before reading this particular selection. Hyperlinks to the original articles will be provided at the beginning of each section.

 

 

XVI. Ambush, Part III – As Told and Retold by Government Witnesses [3/27/16]

On February 18, 2016, the Tri-County Major Incident Team released a report prepared, primarily, by the Deschutes County Sheriff’s Office.  The publically available version consists of 360 pages, though the page numbering indicates that the entire report consists of at least 714 pages.  The officers involved are identified by assigned numbers, to protect their identity.  There are heavy redactions of experience of officers and substantial portions of their interviews.  References shown thus, {nn}, indicate PDF page numbers from the above linked document.

This article will point out discrepancies, disparities, and other portions that raise a question as to the objectivity of the published version of the report.  The document explains that when they do the interviews, they can use the names of the other officers or personnel, though those names will be replaced by numbers in the documentation.  So, when they speak of “Office #1”, we have no idea who he is, but the numbers remain constant for the various players, throughout.  There will be a distinction between “Officer #4” “DCSO 4”, the latter being on the investigation team, the former being an officer involved from Oregon State Police (OSP).  Italics will be used for direct quotes from the report.

The Cast – All Oregon State Police Officers and present at shooting scene:

Officer #1      Fired two rapid fire rounds into LaVoy’s back, first shooter; also fired three rounds at truck as it approached the roadblock

Officer #2      Fired one round into LaVoy’s back, was second shooter

Officer #3      Officer with taser, approaches LaVoy from tree line

Officer #4      Drove Gray truck

Officer #5      Non-lethal (40mm) single round

Officer #6      Driver of Root Beer Truck (Lead Vehicle)

Officer #7      Non-lethal (40mm) multi-launcher – 6 rounds

Officer #8      Second OSP in Root Beer Truck

Note: Interviews will be presented in the order that they appear in the Report.

Note that all vehicles, OSP and FBI, were unmarked. Dress was “civies” in Burns, change to tactical gear on deployment to US 395. Deployment was staggered to avoid scrutiny by militia. Radio communication was different between FBI and OSP, requiring mixed partnering in vehicles to share communications. There was apprehension that the militia in Burns would respond, if open communication were used.

Officer #2

The first report {3} is from DCSO #4, who visited the scene on January 27 (day after the shooting) at 0330 hours.  He found only one (1) .233 cartridge.  Later, on the 29th, he observed OSP Crime Lab personnel remove a shard of metal from the driver’s side mirror.  That is all he had to say.

Next, we have “DCSO 20” with a Narrative {6-8} of his investigation of Officer #2, one of the OSP shooters.  From the Narrative, we find that the FBI was in charge of the operation, with command being FBI HRT (Hostage Rescue Team).  That OSP was assigned to assist the FBI in the operation.  With regard to Officer #2, “A request for blood and urine from Officer #2 was made upon completion of the collection of property and we were informed that Officer #2 had been advised by counsel/representation not to provide a blood/urine sample.”

So, we have an officer that had shot LaVoy Finicum.  When asked to provide blood/urine samples, he refused based upon the advice of his “counsel”.  Now, that refusal could keep you from getting a job, get you fired from a job, lose your driver’s license, and be cause for denial of certain government services.  However, when you work for the agency that protects judges, you can expect the judges to protect those who protect them.  That is pretty darned serious, and there would be no reason to refuse, if there were no reason to refuse.

Next, we have two DCSO officers interviewing Officer #2, in a transcribed interview {9-53}, on January 31.  In all interviews, training, length of service, qualifications, and other information that might help to identify an officer, have been redacted.  The following is from that interview:

It is clear that they had background on the “occupiers” {14}.  The three primary vehicles (not counting the roadblock where the shooting occurred) were described.  “There was the root beer colored pickup truck, which is a large Dodge pickup truck, there was my gray truck, which is the same model and design as the root beer truck, and a [green] van.  Those three vehicles constituted the initial arrest team for the traffic stop.”

In describing Ryan Payne’s exit from LaVoy’s truck, we have the following {20}:

So eventually there is conversations between those HRT members and Payne, and he acts like — Payne acts like — he’s kind half out the truck.  He acts like he’s going to go back in.  He starts to kind of go back in, and OFFICER  NO. 5 fires a 40 millimeter less lethal sponge tip round which hits him in the arm, and then gives him more commands, starts to give commands: “You need to come out now.  Put your hands up,” you know, et cetera, which he did.

Officer #2 then talks about what happened after LaVoy had told them that he was going to see the Sheriff {23}.

So we, in pursuit of that vehicle, followed it until it started getting close to the roadblock and we backed off slightly, anticipating there might be an issue there.

As we came around the corner and saw the roadblock, I observed the white truck swerve to the left.  It didn’t appear to be slowing down at all.  I had time slow down and stop, and, in fact, the white truck appeared to accelerate rapidly away from us, and then maintain that speed throughout until it got to the roadblock.

Then, he explains his arrival at the shooting scene.  He pulls up a ways back from LaVoy’s truck.  He sees Officer #1 over by the roadblock trucks.  Officer #3 (the “non-lethal” officer) to the left and about 10 or 15 feet away from LaVoy {24-25}.

As I stepped up and was moving, I saw Mr. Finicum turn his back towards me and OFFICER  NO. 1, and then I saw his right arm again dig deeply in towards what I would term as maybe a shoulder holster or something As I stepped up and was moving, I saw Mr. Finicum turn his back towards me and OFFICER  NO. 1, and then I saw his right arm again dig deeply in towards what I would term as maybe a shoulder holster or something in that vicinity, and he seemed to struggle for just a second.

* * *

And just as soon as I pulled my rifle up and put the cross hair on Mr. Finicum, OFFICER  NO. 1 fired, and I distinctly heard him fire, and I knew it was him firing, for whatever, reason.

And as soon as he fired and my scope just came up and was right in the middle of the back of Mr. Finicum, and I squeezed off a single round.

So, this guy shoots LaVoy in the back, because Officer #1 shot LaVoy.  But, maybe the story isn’t clear enough, so they take a break {30}.  Now, let’s see what subtly changes in the story {31-32}, so that it is no longer, because Officer #1 shot, rather, he was going to shoot, anyway.  Can’t leave your buddy out to dry, alone.

I’d like to go back to the point where I’m getting out of my truck.  After Mr. Finicum exited the vehicle, and I had seen him stick his hand in his coat once as he was coming out of the vehicle, and as I was exiting my vehicle and moving to a position to cover Mr. Finicum and could see OFFICER  NO. 3, you know, 10, 15 feet to his left, and then OFFICER  NO. 1 to my right, I recognized that OFFICER  NO. 3 was in a very dangerous position, and he was exposed to the white truck as well as Mr. Finicum, and as I pulled my rifle up to cover Mr. Finicum, while this is going on, I’m seeing him turn and stick his hand into his coat again, as I previously stated to what I believed, to grab a pistol, and at that point I believe that if I didn’t engage Mr. Finicum, that OFFICER  NO. 3 was in a very close proximity and probably would have been shot, and that’s what was going through my mind, is that OFFICER  NO. 3 was in a very bad spot.

And I didn’t want to wait – all these things cross your mind.  I didn’t want to wait for him to bring out a firearm, because I knew that by the time that I was able to recognize that and deal with it, that he could have very likely have shot OFFICER  NO. 3.

So as I was bringing my rifle up, I had a scope on the rifle, which is a one by six power, and I had it on one power, so I had a wide field of view, and as I brought the scope up and put the cross hairs on Mr. Finicum’s back, while I’m seeing him struggle with something in his coat, I had made a decision at that point that I’m going to fire my rifle, and had gone through the process of taking it off safe and started — and had my finger going to the trigger and was starting to squeeze it when OFFICER NO. 1 had fired, and so I was already in the process of firing my rifle at that point, and was just a second behind OFFICER NO. 1 on that, or whatever it was.  I don’t know.

Later, he, again, clarifies why he shot {33}, when he says, “But I had made that determination and was in — going — had my finger on the trigger and was starting to squeeze the trigger when he [Officer #1] fired.”

Officer #1

So, let’s move on to Officer #1.  Again, we have a transcribed interview {65-112}, conducted on January 31.  Officer #1 was already at the roadblock.  As they receive word, via radio, that LaVoy’s truck had “run’, they begin preparing for its arrival {85}.

I remember to the right OFFICER NO 3 falling in the snow, and I could see clearly OFFICER  NO. 3 is making an aggressive move to try to get off of the roadway through the snow, and what I presumed would be to a safe area where there was some trees.

So, even though there is no immediate danger, we have Officer #3 “falling in the snow.”

As the truck approaches, we get Officer #1‘s description of the event:

As it rounded the corner, and I believe that there was no other option, it was going to run into the roadblock.  I fired multiple rounds from an AR-15 rifle that is assigned to me, and I was aiming towards the — what would be the driver area, and at the motor.

* * *

So I’m now on the left, and I watched the truck plow through that snow and push snow like you would push water if you ran a car into a lake, and I saw an officer in front of the truck, and I believed that the officer was ran over by the truck, and I felt that he was likely under that truck.

As the truck comes to a stop, I immediately move — I would say move quickly towards the truck, covering the truck, anticipating based off of those actions, such an aggressive action, I anticipated likely being shot at through those windows of that vehicle, and that’s based off of all the intelligence reports and the fact that they are armed and now they are committed to the point of running over an officer.

He has fired three shots, one hitting the left side of the truck, one into the engine compartment, and one into the right front of the hood.  Those in the truck have been fired on, for the second time — and, they haven’t even drawn a weapon.  Darn I wonder how that feels.  But, I would much rather wonder than find out, as it begins to appear that the OSP has blood on its mind — or, they honestly believe that a 0.223 can stop a truck, or, if they killed the driver, the truck would stop, instead of careening wildly around, possibly killing agents and those who remained alive inside of the truck.

He also believes that LaVoy had run over a fellow officer.  On the contrary, by the aerial footage, LaVoy swerved to the left to avoid hitting the officer, possibly saving the life of a fellow officer of the two that killed LaVoy.

Then, we have Officer #1‘s account of LaVoy exiting the truck {88}:

I see the driver exiting the truck, and I am now perceiving that as the greatest threat at that point.

* * *

I’m out in the open.  The footing isn’t great.  I’m walking on, you know, loose snow, but immediately as I’m in view of the driver, I am focused solely on the driver, and I’m covering him with my rifle.

Now, Officer #1 provides and excuse, or incentive, by referring to the comments made by LaVoy {89}, however, those comments have no indication of a threat, nor is there any indication that LaVoy intended to draw a weapon.

I remember the driver saying, “Just shoot me.  You are going to have to shoot me.”  There could have been other words intermixed there, but that’s what I recall.  He’s yelling in an angry-get-my-point-across loud voice, “Just shoot me.”  You are going to have to shoot me,” and he’s yelling at us.

Officer #1 continues:

He had been reaching.  He spins — reaching, I mean kind of reaching in his waist band/shirt area.  He spins, and this is all happening pretty fast.  He kind of spins away from me.  I remember viewing his back as I’m covering him.  I remember a distinct kind of a sweeping motion with one arm, and the other arm diving into what believe, based off of prior videos and intelligence, would be what.  I would call a shoulder rig, shoulder harnesses, and it was consistent with grabbing a firearm, which I knew could be drawn and fired with, you know, extremely fast, and the person that was exposed was OFFICER NO. 3, as he had turned slightly away from me and he was more facing OFFICER NO. 3, and had he drawn, OFFICER NO. 3 was in his path.

And I think at that point his attention was away from me as he now kind of was moving, what I perceived as back away from me, and his attention was back directed towards OFFICER  NO. 3.

I could see OFFICER  NO. 3 advancing, and I just knew that based off of what I was seeing, and the totality of all of the circumstances there, that I needed to take action to stop him from being a threat to OFFICER  NO. 3, and at that point I fired two rounds, what I thought was striking him in the center of his back, and the driver falls to his knees.

So, now, even though Officer #3, as we see in the aerial footage, doesn’t seem concerned, and continues to approach LaVoy, with taser poised to inflict the “non-lethal”.  Officer #1 is, clearly, setting the stage for his subsequent actions.  So, he stops LaVoy from being a “threat, by shooting him in the back, twice.

Now, based upon Officer #2‘s initial statement, he fired because Officer #1 fired.  So, we have Officer #3, who seemed to be nothing more than cautious.  We have Officer #2, extremely agitated, creating apprehension that is not shown by Officer #3.  And, we have Officer #1, who fires because Officer #2 has fired at the back of LaVoy Finicum.  Or, as my father used to say, “If you want an excuse, any excuse is good enough.”  And, if we can throw in a fear for the life of another trained officer, that doesn’t seem in fear of his life, well, we real have a justification, without justification — but that is always good enough for the police state employees.

So, we still have three people in LaVoy’s truck.  They were shot at during the first stop.  They were shot at as the approached the roadblock.  They were shot at the same time that LaVoy was being murdered.  And, now, Officer #1 tells us {91}:

So I, from there I transitioned background to the main element of officers that were behind the two vehicles in a wedge, and there was-discussion amongst officers that there is still clearly movement in the vehicle.  There is still occupants in the vehicle.

They are being now, diversions had started going off over the vehicle, multiple diversions to try to distract the people that were in the vehicle, and try to get them to comply with the verbal commands that I was hearing being yelled.

The “diversions” were “nine bangers”, explained later.  Unknown to the occupants, who have just seen their friend murdered, they were not firing lethal rounds.  The passengers, however, as is apparent in the Shawna Cox footage, are in fear for their lives — way so more than any of the battle-geared officers.  They are staying as low as they can possibly get, hoping to survive.  But, the officers outside seem to think that any normal person would respond to the verbal commands, while listen ting to the fusillade being directed at them, windows breaking, and CS gas being sent into the front seat area.  Who could possibly “comply”, under those circumstances?  But, here we have a demonstration of the arrogance of law enforcement, the disdain for the “them” in the “them or us” mentality, and the expectation of absolute and immediate obedience to their commands.

In their efforts to force compliance, Officer #1 tells us {92}:

There was discussion that more officers were coming down to that immediate scene, and that OFFICER  NO. 7 was going to be showing up any moment with a multi launcher, and I knew the multi-launcher would have orange tips, meaning that they would contain OCCS chemical agents in them, and that they were going to deploy those rounds into the truck, as minutes had lapsed and the occupants in the truck were not complying with the commands.  They were not exiting the truck within a reasonable amount of time whatsoever.  There was no reason they couldn’t have exited the truck and complied with the commands.

Gas was deployed into the truck.  There was still a period of time where they were not coming out There was discussion that we are not hearing coughing, and then it goes into the occupants ultimately exiting the truck and following commands.

Now, we need a break — perhaps we need to clarify some things {94}.  So, let’s revisit the shooting of the moving truck {101-102}.  But, let’s start with a leading question so that Officer #1 gets it right, this time.

Q. And when you saw the white truck round the corner, I’m pretty sure you mentioned this, you saw it approaching your location. What was your perception of whether it was or was not yielding to the roadblock?

A. It was clear to me, the speed the truck was traveling was I would say between 60 and 70 miles per hour, was traveling at a speed which I knew from my training and experience, it was — had no intention to stop. There was no visibility of the front end dropping like brakes were being applied. There was just no variation of speed, other than maintaining that high speed directly at us.

And when it became apparent to me based off my training and experience as a crash, you know, technician, and overall time as a police officer, I knew there was it had crossed the threshold of being able to stop prior to, and there was no indication that the driver was going to make any evasive maneuver or try to avoid hitting any of us, and with the locations of the officers, once I was put in the spot of trying to defend the officers and prevent that truck from running through that roadblock, that’s when I felt that the use of force was my only option to try to prevent them from running into us.

Now, let’s make sure that we can justify shooting someone because he had hit the FBI agent that had jumped in front of him {103}.  If he killed, or even injured, that agent, it would definitely establish a better framework for justification for murdering LaVoy.

I was in a position to see one FBI agent or officer.  I knew — I did know it was an FBI officer, because I knew OFFICER  NO. 3 had moved up into — or moving towards the timber as he fell and was struggling to kind of get that way, and I — so, yeah, I knew that that agent was in the path of that truck, and in the process of the truck plowing full speed around the FBI vehicles, it looked to me like he was hit by the truck, and I believed he was under it, and as I approached, I was looking for the agent to see what -I could do to cover him and provide any aid and identify where he was.

But, we need to revisit shooting LaVoy — have got to make it a stronger case {104-105}.

Q. So with your experience, would you say that Finicum was complying with the commands?

A. No. So let me elaborate on that.

Finicum was moving away from the vehicle.  Finicum was approaching me and looking at me.  Finicum had more than ample opportunity to turn around and comply with the commands.  Finicum actively reached in an area that I believed and had information that he was carrying a firearm.  He did this more than once, and the second time as he’s now avoiding back away from me, he is still not showing any signs of complying with our presence or our commands.

He reaches clearly like he is reaching into, you know, the left side of his torso, where a weapon would be kept, and I know that through my training and experience, that had he pulled that weapon out and fired, or, had he pulled it out, I could not have reacted to stopping that threat to myself or to OFFICER  NO. 3, and the decision to use force against Finicum was to prevent any injury to OFFICER  NO. 3 or, myself.

And I know that that motion to pull a gun out can happen faster than I can react to it, and I couldn’t wait for the gun to be pointed at OFFICER NO. 3 or myself, that additionally, I know that a gun can be fired through a jacket right between arm and his torso, which would have been in line with where OFFICER  NO. 3 was.

Q. Okay. What was your perception of the distance between Finicum and OFFICER NO. 3?

A. Roughly 15 feet.

Now, let’s take another break {109-110}, and then we can improve what the record will show.

There is a couple things I’d like to add and clarify.  At the point the vehicle’s approaching, we had the group that was there, had set out spike strips.  The spike strips were just in front of the vehicles, and I knew that that would have no effect on slowing down that pickup that was coming at us.  I knew that that would not change the velocity of that vehicle and the impact it was going to have on coming into our scene.

When I made the decision to fire at Finicum, and I’m covering, and I use that force, I believed that he was going to pull a gun and shoot OFFICER  NO. 3, and in that moment with everything I was observing, the actions and verbal statements, everything that I had learned and been briefed on, I truly believed that he was going to shoot OFFICER  NO. 3.

Q. For clarification, also for you, too, right? For your safety as well?

A. Yeah. I mean obviously he had seen where I was, He had engaged, made eye contact with me prior to that moment, and clearly I was exposed to him and whatever actions he was actively trying to take, and what would have continued to happen if I did not use deadly physical force at that moment.

So, now, he realizes that shooting at the truck would serve no purpose, but, heck, I just wanted to shoot somebody.  After all, I had to get up early and drive all of the way out here.

And, I was sure that he was going to shoot Officer #3, it’s just that Officer #3 didn’t realize he was going to get shot — if I didn’t shoot first.  Oh, can I use that, too?  Yes, I feared for my own safety, as well.

Officer #4

Next, we have the digitally recorded, then transcribed, interview of Officer #4 {143-185}.  The interview was conducted on January 29, 2016.

Now, we have been told that this was a felony arrest stop, the purpose being to arrest those individuals that were considered the leaders of the Malheur NWR occupation.  However, the absence of a warrant brings into question the justification of the stop, as explained in Ambush.  However, Officer #4 appears to have been paying attention.  When the following occurred {149}:

DCSO 4: Ok.  So, who-who was in charge of the operation?  Who’s running the show?

OFFICER 4: So, basically, it, uh, it was FBI’s, uh, information, we were just basically there to kind of, uh, assist with helpin’ ’em, how it was planned and how, uh, we were gonna be, uh, conducting, and determine who the traffic stop on, uh, then take those people into custody.  An had info-basically knowledge that they had, um, an active, uh, arrest warrant for ’em.

DCSO 4: -Um-hum-

OFFICER 4: –not warrant, but uh, information that they could be detained.

So, he realizes that there was no arrest warrant, that they “could be detained”.  Darn, everybody else, even the FBI spokesman, has said that the stop was to arrest, not to detain.  But, this fits with the absence of a Criminal Complaint and Arrest Warrants, until after LaVoy was murdered.

Here, Officer #4 {180-182} describes as he arrives at the shooting scene.  Of course, he also takes the Officer Safety routine, and even suggests that if could have gotten the safety off on his rifle, we would have shot, too.

He’s crossin’ over the centerline an takin’ like, wantin’ the the corners wide, uh then, obviously, I know the roadblock is up-up ahead of us, uh, cause they had that information that, um, there-he had now left and was going to be traveling towards them, um, the,.  I didn’t know the exact location of the roadblock, uh, but It was kinda set up around a cor-a little bit of a corner and then a straight stretch after that.  So, I was following behind still, um, tryin’ ta catch up him, come around the, uh, kinda of a corner and at that point I could see, uh, a brief period of brake lights on LaVoy’s pickup and then, uh, the brake lights go off an It appeared that the vehicle accelerated at that point and um, drove-it almost initially looked like it was gonna take and just plow directly into all the vehicles and instead it looked like it made a last second decision to kinda go, uh, left and barely missed the spike strips that were-that were put out… in front of all the vehicles, um, barely misses that, tries going around to the left to go through the deep snow an looked like he was tryin’ to drive basically around, uh, the roadblock set up there and, uh, truck become stuck in the snow, right after that, I can-I can see all-all this happen but I’m still, uh, a ways behind at this point.  Um, I see the spikes up ahead where it’s happenin’.  Soon as the vehicle comes to a stop, the driver’s door comes open and about that point I’m getting-I could see LaVoy comin’ out at the same time, I see movement kinda back up-as I’m watchin’ him, I could see movement back up and to the left of, um, LaVoy, that, and, uh, could see there was another OSP person back up that-uh, behind him near a tree.  And, so by this time, I stopped near the spike strips an get out an basically, uh, get my gun up through the, uh, between the door and the A pillar of the-of the truck, tryin’ ta come up on a sights, still see what’s goin’ on, I could see another OSP person moving to my left, kinda away from Finicum an Finicum seems to be more or less, uh, kinda travelin’ kinda at an angle toward that, uh, OSP person who was back up to the left, an-and initially when Finicum comes out, he’s got his hands raised in the air but by this time, ya know, I was outta the vehicle and I can actually hear what’s goin’ on and I can hear him just say ta fuckin’ shoot him, is what I recall um, so. eventually, uh, by the time I get my gun out and kinda up in that direction tryin’ ta-kinda quickly observe what’s goin’ or if people are gonna come out, uh, his hands come down lower and basically, um, looks like he kinda makes a-a real quick um, I’m not sure if he kinda stumbled an tried to catch himself or what, but, uh, I could see what I recall, at least two times, uh, clearly that he made an like initial grab over to, uh looked like, like he-he reachin’ for a gun.  Like I said, I know that he carries a, uh, a shoulder holstered pistol, um, on him.  So, makes a initial grab, almost kinda looks like he didn’t-didn’t quite get it inside of his coat at that point and then almost reached up with uh, his, uh, second hand and was actually was able to get ahold of his coat and what I recall, uh, hold his coat and actually almost kinda get it open and then you could see him clearly reach inside, ya know-that point, I was tryin’-the first initial grab, uh, that he-he made to go inside, I believe he was going for his gun .  uh, and the gun I was actually shooting has a little bit longer safety on it to get to, um, per our policy is, ya know, ya have to be, uh, ya know, basically on on safety until you’ve made that decision to shoot.  At that point, I made the decision to shoot and was reaching out to get my safety off, uh, an actually had to roll my hand around, it takes a little bit longer to actually get to it.  uh, get my safety off, comin’ back up onto, ya know, getting’ back into target and see him then, like-like I say, clearly reach in-inside and, I-I believed he was going for his gun at that point, and that’s when I heard, uh, a couple shots go off.  I don’t know exactly how many, but, I-I mean it was at least a couple.  um, so once the shots go off, I basically kinda gettin’ on my trigger at that point, and but it-by then you could see that he’d been hit and went down pretty quick.  So that’s when I decided not ta-not shoot, um, stayed there on him fer a little bit, I mean, obviously everything seems like it happens super super fast, but um, ya know, once I could tell he was-he was actually down, uh, so from that point, I saw um.  ya know the-the OSP guy that was up off to the left of Finicum, they were in very close proximity to each other and that was the other reason I basically made that decision to shoot just because-just the close proximity to, uh, the other OSP officer that was there, uh, I felt that basically he was in danger, uh, and,  so, after he went down, um, after a minute or so, nobody had else had came out of the-the vehicle, um, I know other people scrabblin’ around all over the place.

Simply for an understanding of the OSP opinion of FBI, I include some Q&A {164-165} from the interview — about the mysterious FBI agents:

DCSO 4: and how about the FBI guy that was in your rig?

OFFICER 4: From what I recall he went by, ya know what?  I might be thinkin’ of a different person.  From what I recall, his name is Officer 13.  I’m not 100%

DCSO 4: -maybe-maybe Officer 13?

OFFICER 4: Maybe Officer 13.

DCSO 4: Ok.  Alright since I’ve been on this I’m figurin’ out these guys are mysterious.

OFFICER 4: (chuckles), yeah.

Officer #7

Next to be interviewed is Officer #7 {186-212}.  The top of the forms has a date of January 26, and the bottom, February 18.  However, the date of the interview is not given, only that the interview was conducted “At approximately 2143 hours” {187}.

Officer #7 describes his arrival at the scene of the shooting.  LaVoy is already “down hard” {201-202}.

DCSO 4: Ok, so, when you got there to this gray vehicle, you recall, um, any gunshots or less lethal being fired or commands being given, anything like that?

OFFICER 7: I heard-I heard a lot of um, I didn’t hear any gunshots, um, there was multiple people, um, yelling commands at the truck, I can’t tell you who was yelling what though.

DCSO 4: Ok.

OFFICER 7: Uh.  And as far as, um, less lethal, I, I believe when I got there, the right front passenger window, um, was broken and I assumed by one of the other member’s 40mms.

DCSO 4: Ok so-so what happened next?

OFFICER 7: Uh, I recall seeing, uh, an Individual that I recognized as being Mr. Finicum, um, he was lying, um, in the snow, uh, generally to the rear of his vehicle uh I recall uh, Officer 6 arriving shortly thereafter and I recall Officer 6 asking one of the FBI agents uh, something to the effect of what’s the status, or something to that effect, referring ta Mr. Finicum, an I recall the FBI agent stating something to effect of he’s down hard, which we all-er I interpreted as he had been shot.

DCSO 4: Ok.  So what-what happened next?

OFFICER 7: Uh, there was, um, I-I was being told-I-an I don’t-I can’t recall by who, one of-I believe-one of the agents near me, um there was still people in the vehicle not coming out.

DCSO 4: Um-hum.

OFFICER 7: Um.  One of the agents.  I don’t recall the verbiage he used, but he asked me ta put, um, 40mm.  uh, less lethal rounds, um, into, the vehicle I uh, made eye contact with Officer 6, um, and, uh verbally-I don’t remember what words exactly I used or he used but I, um, got verbal confirmation from him that I was ok to do that.

DCSO 4: Ok.

OFFICER 7: Um, and I then, uh, targeted the the area where the dash meets the front windshield and I believe I fired six rounds into the dash slash windshield area through the broken right front window.

DCSO 4: Ok.  Is that the right front passenger window?

OFFICER 7: Correct.

DCSO 4: Ok.  Now is that-are all those 40mm?

OFFICER 7: Yes.

DCSO 4: You remember what-what kind of less lethal-what kind of munition it is?

OFFICER 7: Yeah, those, um, were 40mm, um, they’re, uh, direct fire non-lethal rounds, these particular ones were filled, um, with, uh, OC powder.

DCSO 4: And what do those-look like?-Can you describe those rounds?

OFFICER 7: Uh, yeah, they-they have a-an aluminum casing, um, uh, there’s a kind of a black, it-um, the collar area an then these particular rounds the um the cartridge itself and the-the tip are all painted orange.

DCSO 4: Do-do you recall firing any of the-I guess the blue sponge rounds-impact rounds at all?

OFFICER 7: I-initially, I did not.

DCSO 4: Ok.           

OFFICER 7: Uh I may have, um, fired blue-we call ’em blue tips, um, same cartridge but no OC powder, later.

DCSO 4: Ok.

OFFICER 7: But initially, I, I’m certain the first six were all the orange tips.

DCSO 4: Ok.  All the same spot, the dash windshield?

OFFICER 7: -correct

Here, again, we have a fusillade, and the government people can’t grasp why the people in the truck don’t just get out.  However, just to make it worse, shortly thereafter, he says, “There was-there was delay, uh, I believe-I had-I had reloaded, I didn’t, uh, ejected the empty casings from the multi launcher [A 40mm launcher that holds 6 rounds], um, I believe I put six more orange tips in, uh, there was a delay, uh, where no one had no one was coming out of the truck, um, I recall putting,  uh, firing more rounds into the same location, uh, the front dash slash wind-front window area but I don’t recall how many rounds I fired on that second um, deployment.”

Officer #5

Then we have the interview of Officer #5 {213-239}.  The interview was conducted on January 29, “At approximately 2242 hours” {214}.

Officer #5 describes his duties {219}, “So during the brief, I-I was told I would be driving the green van.  That was one of our, uh, vehicles that we brought for this operation.  I would be assigned to drive three FBI, uh, HRT members.  Two of them were gonna be main shooters with long guns and the third was their K-9 unit.”  So, the FBI HRT had “shooters“.  This kinda deviates from the OSP is going to do the stop and FBI do the arrests.

As Officer #5 exits his truck and begins to get a grasp on what is happening at the roadblock, just before LaVoy falls to the ground, he describes the provocation created by the FBI {226-227}.

An then as you work your way across the highway, there was, uh, one of our vehicles an then another FBI truck, if I recall correctly.  As-as we are finally pulling up, I hear one of the FBI agents say, “He’s shooting, He’s shooting!”  I look up an I see an individual out of the white truck with his hands kinda out to the sides, and one of our uh, I think it was Officer 3, one of our SWAT units-OSP was in-in the timber kinda coming out, so as I hear he’s shooting, he’s shooting, I look up and it looked to me like this individual was being challenged by Officer 3.  So, then I look back down, I have to stop the truck to let the FBI guys out, park, I say, “Go, go, go!”  I grab my 40 and as I’m stepping out, I see.  uh, at the vehicle-what’s called a nine banger-FBI said in the brief that they would have these-it’s basically a flashbang, uh, a noise sound diversionary device that has nine, like really bright little firecrackers-they said if something like this would occur, they would be throwing them, just to let us know, hey, man that’s not gonna be rapid succession of gun fire, that’s gonna be our nine bangers.  So I see them going off, and now I am closing distance to go up to our vehicles.  I remember there was-there was two FBI vehicles in the roadblock with ours in the middle.  I’m working my way out to that point, so I could start fortying if I needed to, uh, Finicum’s vehicle.  Doing, so, I see Finicum falling to the ground, so I’m thinking he’s complying with commands.  I get up to our vehicle with, uh, some FBI units and one of our, uh, SWAT units named Officer 1.  The FBI is, uh, asking for a 40mm to open the window because the-the passenger’s window in the front had been closed at this point.  It is not tinted.  The back passenger compartment window is tinted and-is also closed, so we cannot see In the truck.  So, they’re asking for authority to open those windows up.  So I step up, it’s loaded with an orange tip, which is an OC round, it’s a harder round, but will basically burst into an OC powder, when it hits, but we use ’em to break windows cuz they are a little bit harder initially.

So, an agent is yelling, “He’s shooting!  He’s shooting!”  This would get everyone in earshot on their toes, and really defensive — ready to shoot at the shooter.  To top it off, they are using “nine bangers”, to emulate rapid fire, possibly to force those in the truck to return fire.  Nothing provocative here.  Just move along.

Later {230}, he reaffirms that activity:

OFFICER 5: The-the loud noises I heard were the-what I interpreted as the nine bangs goin’ off.

DCSO 4: Ok, um-

OFFICER 5: –yeah, the only indication that somebody was shooting was the FBI agents saying he’s shooting, he’s shooting.  I didn’t know who.

It is difficult, given the above, to believe that the FBI HRT wasn’t trying to provoke a shootout.  The entire nature of the roadblock, had LaVoy not by-passed the initial intended stop, on the roadway, was to provide a perfect ambush kill zone.  Now, that would be speculative, without the testimony of Officer #5.  However, his testimony suggests the probability of that intention — kill them all.

Officer #6

In The Officer #6 transcription {242-274} we get a rather interesting comment {246} where he mentions State Police, FBI, and adds, “and there may have been other people Involved, but a lot of people were plain clothes and not displaying identification.”  As far as what their purpose was, he says {249}, “We were told that there was federal probable cause for arrest of the main players.

In discussing Shawna Cox’s exit from the vehicle, he describes her difficulty in negotiating the heavy snow {271}, we get this sequence:

(#3867): OK.  I just want to confirm that, Um, and then even even though they had to walk over, uh, presumably the same snow that LaVoy Finicum had just walked over, is that correct?  The same area of snow?

(#6): The same area, I don’t, I couldn’t attest to the depth of the snow,

(#3867): Right.

(#6): But she was having some difficulty navigating it.

When Officer #6 was asked if wanted to add anything, he made this comment {272}, somewhat surprised at not understanding that he had participated in the murder of an innocent man, with no constitutional authority or arrest warrant to do so:

The only thing that’s struck me as very odd, uh, as we were getting the scene organized and turned over for investigation, uh, the people who were detained were all standing with FBI agents, uh, who were part of the operation.  And as I walked to talk to one of the the FBI guys to coordinate some, uh, I forget what I was going to coordinate, but wanted to talk to them, the older lady, who had trouble navigating the snow, looked at me and asked me if I believe In the constitution.  Which struck me weird because a man was just killed.  Uh, in in my experience, my 15,16 years in law enforcement, when some, something like this happens, whether you know the person who was shot or injured, or you’re just a bystander, that’s what they want to talk about.  And so her question about whether I believed in the constitution or not, it almost, it irritated me.  You know, cause that’s what we want to talk about right now?  OK.  And then so, I started to walk away.  I remember Mr. Payne turning around and mean mugging me, trying to give me a dirty look like he’s a tough guy.  And I didn’t understand that.  Like it’s not the time for, you know, your attitude right now.

Unfortunately, many have taken the oath simply to get their jobs — with no real consideration to what they have taken an oath.  He just doesn’t seem to understand that he has only dealt with criminals, in the past.

Officer #8

Finally, we get to the Officer #8 {275-298} interview, and the last of the interviews in the report.

It appears that some believed that it was to “detain”, some believed that there were arrest warrants, and Officer #8, well:

(#3867): OK.  And what was the, uh, was their, uh, crimes that they had committed?  Or what was your understanding about, uh, the reason to arrest them?

(#8): Uh, we were told (cough) that there were federal indictments out on these individuals for, uh, it was some longwinded, uh, federal statute that I don’t exactly, I’m not going to, uh, I’d butcher it if I tried to repeat it.

With regard to walking in the snow, we have this testimony {285}:

(#3867): I saw, at the scene, when I was there, that there’s some snow where that truck and uh, and uh, stopping and it’s fairly deep in some areas.

(#8): Yes.

(#3867): Did did they have to walk over that snow to get to, uh, where they were taken in to custody?

(#8): Yeah, they did.

(#3867): OK.  Uh, they then, uh, they fall over?  Um.

(#8): They st, they looked like they stumbled.  Uh, you know, they tried to have their hands up and their hands dropped for for a little bit, but, uh, it was one of those things that you could certainly tell that that it was because of the terrain they were walking on and not because of, they were actually trying to grab a weapon.

(#3867): OK.

(#8): So, it was clear to me and that that even though they might have dropped their hands for a brief second, that it we really wasn’t, the intent wasn’t there.

So, again, walking in the snow, especially with hands held up, creates an observable “stumbling”, as LaVoy’s walking was described by some of the officers, is “reaching for a gun” a justification, after the fact, for shooting LaVoy?  Especially considering that one officer even testified that an agent said, “He’s shooting!  He’s shooting!”

After a break, we come back to clarify that “fear” in the officers.  Officer #8 tells us {294-295}:

Um, so um, our team had had a few, uh, briefings and an then talked about, uh, the situation and I know several times we were told, “Yeah, just be prepared, er, if this, this is developing” and then, “Expect to be called”.  Um, having bags packed in case you are called and prepared for cold weather.  Um, during, during, uh, these briefings, we were told that, uh, a little bit of the history-back in 2014, uh, with the stand-off of when he was in Nevada, when they actually, uh, confronted federal agents, pointed rifles at, uh, federal agents, uh, that they had counter-sniper positions, sometimes even two, one to two guns per agent on them.  So, and they were able intimidate those agents, uh, and made them retreat, uh, so, there was a sense of empowerment that they could do this and get away with it.  Um, received pictures, huhh, both on the news and the briefings of, uh, these key players, Ammon, uh, Finicum, Payne, uh, Ryan Bundy, all these guys.  Uh, they, we’ve been told that they known, they’ve been known to carry firearms.  I’ve seen, uh, pistols on hips ranging from, uh, semiautomatic to to revolvers, uh, shoulder holsters, uh, people carrying everything from a hunting rifle to shotguns to, uh, semiautomatic rifles.  We were told that they had people at the refuge with, uh, in the tower, uh, with possibly .50 caliber, um, rifles.  So we were told that these these folks were were were well armed, um, and that they may say this that they need, are willing to die for their cause, um, to fight, fight the government, uh, to get the land back, to get the Hammonds, uh, out of prison.

And, finally, from Officer 3866 {323}, we know that LaVoy’s body was removed at about 1:00 AM, on January 27 (the next morning).

As far as Crime Scene photos, either Officer 3866 was obsessed with LaVoy’s truck being difficult to remove from its location, frozen in the snow bank {325-356}, or we are simply denied any photos with substance.

Surely an interview was done with Officer #3.  He was the closest to LaVoy Finicum and best able to describe what happened during the shooting, especially his observation of whether he was scared and whether LaVoy was stumbling, or reaching for a gun,  Absent his interview, we must wonder why the government chose to keep it from us.

 

 

 

XVII. “a speedy and public trial” [3/29/16]

Is it for the government to interpret the Constitution, or is it for We, the People, to interpret that document, which, as is so clearly stated in the preamble, approved by us, through conventions of representatives in all thirteen then independent states under the Articles of Confederation?

There can be little doubt that Congress, the Executive, and the Judicial, must, in many instances, determine the intent of the Constitution.  The same was true under British rule.  However, when the government interpretation reaches the point of a gross deviation from intent, we cannot leave it to the government for that interpretation.  For, to do so allows the government to bypass the Amendment Process described in Article 5, and simply pass whatever laws they want.  When that happens, the Constitution is no longer in effect, and we are subjected to nothing less than a despotic government, failing to be government created by the Constitution, rather acting as an oligarchy, with no regard to the limitations imposed upon them by the Constitution.

So, in a larger sense, it must evolve to us, when the government so grossly misapplies those powers and authorities granted to it by the Constitution, to take, again, the reins of government, and to force those who claim to represent us back into their limited authority, by whatever means necessary.

The events in Harney County, Oregon, have brought a rather interesting light upon the actions of government.  So, we will begin by comparing some of their actions to historically recognized abuses, and then the remedies evolving out of those prior violations of our natural rights.

The Declaration of Independence has two complaints against the Royal government that we can easily recognize in our current government.  First is the immunity of government from the imposition of punishment for the violation of our rights, especially that of Life, itself.  In the list of “injuries and usurpations”, there are many abuses.  However, the two most directly related to the current discussion are:

[15] “For protecting them, by mock trial, from punishment for any murders they should commit on the inhabitants of these states

As we have seen so often, and has been shown in the current events in Harney County, the determination of whether LaVoy Finicum was murdered, or his death was, simply, not a matter of consequence, the determination of the “Tri-County Major Incident Team” provides a report that simply explains the roles various officers played in what resulted in what the autopsy described as a homicide” (murder, in lay terms), is left in the hands of the government. That blue line protects those on the other side of it, and the report of the team, simply a description and justification for, well, murder.  This excludes, completely the federal involvement where FBI agents provoked and participated in the shooting.  (See “As Told and Retold by Government Witnesses“)

This, most assuredly, constitutes, at best, a mock trial.  However, that becomes a stretch when there is even a failure to reach a verdict.

Next, we have:

[18] “For depriving us in many cases, of the benefits of a trial by jury

This is brought up now only as a matter of understanding the intentions of separation from British rule.  The discussion of just what a trial is will be the principle discussion, below.

Once separation from British rule was established, in the third iteration of a form of government, it was, as mentioned above, a Constitution, approved by the people.  The original Constitution contains two elements.  First, the Constitution itself, and second, a Bill of Rights, necessary “in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution” (Preamble to the Bill of Rights).

Within the Constitution, we have only one provision that addresses the current subject.  It is found in Article I, § 2, clause 3, to wit:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Now, this clause provides only that the trial “be held in the State where the said Crimes shall have committed“.

Clearly, the ambiguity of that provision was not what was intended by the People, as the Bill of Rights, in the Sixth Amendment, expounds upon and defines where such trial should be held.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the assistance of counsel for his defence.

As far as the “speedy trial” provision, this has been codified in 18 U.S. Code § 3161.  The accused is to be tried within 70 days of arraignment or Indictment, as per 18 U.S. Code § 3161 (c) (1).  However there are exceptions, and the prosecution has sought an exception under 18 U.S. Code § 3161 (h) (7) (b) (ii), which provides an exception if the trial is “complex”, meaning many defendants, which the prosecution is claiming.  They have only had, in the case of most defendants, and nearly all of the charges, since January 2, to prepare to prosecute this case.  The Indictment was dated February 3, 2016, which would anticipate the trail to begin by April 13.  And, it appears that we might be right on course for the trial, though the interruption of an Indictment out of Nevada just may throw a stick in the spokes of the government’s wheel, for the six defendants accused in both Oregon and Nevada.

This, of course, is the result of the federal government in Nevada waiting nearly two years before seeking an Indictment, as if there were no crime until they chose to make one.  So, where in the Constitution is there a provision for the government to make a crime out of nothing, after those two years?  Surely, there is no more evidence of a crime than there was back in 2014.  So, We, the People, must judge whether this action in Nevada is a violation of the intent of that portion of the Sixth Amendment.

Now, let’s move on to the “public trial”, the “impartial jury”, the “State and District… as previously ascertained by law”, and, “to be confronted with the witnesses against him”.

Public Trial

Surprisingly, we only need look back a few decades to see what the application of “public”, with regard to a trial was.  Black and white movies, and some in color, depict the public nature of allegations of a crime.  The press had access to crime scenes, though the government now corrupts that aspect by closing the scene so as “not to taint evidence”.  On occasion, they may let photographers (non-governmental) to take pictures of certain scenes, where that public display will support only the government side of the story.  Free access, by those representatives of the people known as the press, provided the community with knowledge of the crime and as complete an understanding of the circumstances has could be had, until such time as witnesses testified on the stand.

Somehow, beginning in sixties, or thereabouts, the government began clamping down on public access to information regarding crimes.  They stopped allowing photograph coverage and access to crimes scenes, on a slow but continually more restrictive progression.

Then, we come to the witnesses.  Back then, the witnesses often spoke to what their observations were, though not to the extent that they would, later, under examination and cross-examination.  And, that would include witnesses for both the defense and the prosecution.  Now, those who have been accused, and witnesses on their behalf, are restricted by the Court, and by their attorneys, from discussing any matter regarding the alleged crime.

An example in the current matter is the prohibition imposed by “Conditions of Release”.  Though not having been found guilty, the punishment begins by either incarceration, perhaps even solitary confinement, or pre-trial release.  If one is fortunate to obtain the latter.

However, those that were released, I believe with the sole exception of Shawna Cox, have had rather severe restrictions put on them by order of the judge.  An example (comments prefaced with “[Note”):

IT IS ORDERED that the release of the defendant is subject to the following conditions:

(1) The defendant shall not commit any offense in violation of federal, state or local law while on release in this case.

(2) The defendant must cooperate in the collection of a DNA sample if the collection is authorized by 42 U.S.C § 14135a.

(3) The defendant shall immediately advise the court through Pretrial Services or defense counsel in writing of any change in address and telephone number.

(4) The defendant shall appear at all proceedings as required and shall surrender for service of any sentence imposed as directed.

Additional Conditions of Release

IT IS FURTHER ORDERED that the defendant be released provided that the defendant:

Report as directed by the U.S. Pretrial Services Office.

Find and maintain gainful full-time employment, but significant travel for work must be approved in advance by Pretrial Services.

Do not change place of residence without the prior approval of U.S. Pretrial Services.

               [Note: which applies, this or No. 3, above?  They aren’t even consistent in what they require — is it before, or after, a change in address?]

Travel is limited to [home state] and Oregon(for court purposes only) unless prior approval is obtained. from U.S. Pretrial Services.

The defendant shall not enter Harney County Oregon.

Do-not use or unlawfully possess a narcotic drug or other controlled substances defined in 21 U .S.C. Section 802, unless prescribed by a licensed medical practitioner. This provision does not permit the use or possession of medical marijuana even with a physician’s written certification. The defendant is prohibited from using or possessing any synthetic intoxicating substance, including but not limited to “Spice”, “K-2” and other forms of synthetic marijuana.

               [Note: this is not a drug crime.  Why does the government impose what is legal (medical marijuana) as a restriction?  Wouldn’t that be covered by No 1, above, if were illegal?]

The defendant shall submit to testing for a prohibited substance if required by the pretrial services office or supervising officer.

Testing may be used with random frequency and may include urine testing, the wearing of a sweat patch, a remote alcohol testing system, and/or any form of prohibited substance screening or testing. The defendant must not obstruct, attempt to obstruct, or tamper with the efficiency and accuracy of prohibited substance screening or testing.

               [Note: This does not apply to the officers involved in the murder of LaVoy Finicum, since one of them refused a blood/urine sample, and, presumably still has his job.]

Participate in a mental health evaluation and counseling if and as directed by U.S. Pretrial Services. The defendant is also to take all medications as prescribed. The defendant shall participate in medication monitoring if directed by Pretrial Services.

Do not possess, nor control any firearm (or any weapon), ammunition or destructive device.

               [Note: What Second Amendment?]

Avoid all contact and communication with the following named persons: Co-defendants, any individuals involved with the Malheur National Wildlife Refuge occupation or militia members.

               [Note: the government’s witnesses can talk with each other, still work together, and have no such restrictions put on them.]

The defendant shall not make or publish any statements encouraging unlawful activity or about his criminal case.

               [Note: the government has gone public with its case (trial by press), since the day after the murder of LaVoy Finicum.  A wee bit of double standard.]

The defendant is released on zero tolerance and any violations are to be immediately reported to the Court.

Do not use, possess, or consume alcohol.

               [Note: damn, even wine or beer with dinner is no longer a freedom, that is otherwise legal, that can be enjoyed.]

The defendant shall be monitored by the form of location monitoring indicated below and shall abide by all technology requirements. The participant shall pay all or part of the costs of participation in the location monitoring program as directed by the court and/or the pretrial services officer.

               [Note: Type of monitoring device would be indicated, and the cost of freedom prior to trial would include the ‘rental’ of said equipment.]

(XX) Home Detention. You are restricted to your residence at all times except for employment; education; religious services; medical, substance abuse, or mental health treatment, attorney visits; court appearances; court-ordered obligations; or other activities as pre-approved by the pretrial services officer.

The defendant is placed in the custody of: [named responsible party] who agrees

a) to supervise the defendant in accordance with all conditions of release,

b) to use every effort to assure the appearance of the defendant at all scheduled court proceedings, and

c) to notify the court immediately in the event the defendant violates any conditions of release or disappears.

Travel for appointments must be approved in advance by Pretrial Services.

In the event the defendant violates the schedule of location monitoring, cannot be located, or violates any program rule of a residential treatment program or community corrections center, U.S. Pretrial Services is authorized to notify the United States Marshals Service or responsible law enforcement agency who is then commanded to arrest the defendant for the violation and bring him/her before a United States Magistrate Judge without unnecessary delay.

Advice of Penalties and Sanctions

TO THE DEFENDANT:

YOU ARE ADVISED OF THE FOLLOWING PENALTIES AND SANCTIONS:

A violation of any of the foregoing conditions of release may result in the immediate issuance of a warrant for your arrest, a revocation of release, an order of detention, forfeiture of bond, and a prosecution for contempt of court and could result in a term of imprisonment, a fine. or both.

The commission of any crime while on pre-trial release may result in an additional sentence to a term of imprisonment of not more than ten years, if the offense is a felony; or a term of imprisonment of not more than one year, if the offense is a misdemeanor. This sentence shall be in addition to any other sentence.

Federal law makes it a crime punishable by up to ten years of imprisonment, and a $250,000 fine or both to intimidate or attempt to intimidate a witness, victim, juror, informant or officer of the court, or to obstruct a criminal investigation. It is also a crime punishable by up to ten years or imprisonment, a $250,000 fine or both, to tamper with a witness, victim or informant, or to retaliate against a witness, victim or informant, or to threaten or attempt to do so.

If after release, you knowingly fail to appear as required by the conditions of release, or to surrender for the service of sentence, you may be prosecuted for failing to appear or surrender and additional punishment may be imposed. If you are convicted of:

(1) an offense punishable by death, life imprisonment, or imprisonment for a term of fifteen years or more, you shall be fined not more than $250,000 or imprisoned for no more than ten years, or both;

(2) an offense punishable by imprisonment for a term of five years or more, but less than fifteen years, you shall be fined not more than $250,000 or imprisoned for no more than five years, or both;

(3) any other felony, you shall be fined not more than $250,000 or imprisoned no more than two years, or both;

(4) a misdemeanor, you shall be fined not more than $100,000 or imprisoned not more than one year, or both;

A term of imprisonment imposed for failure to appear or surrender shall be in addition to the sentence for any other offense. In addition, a failure to appear may result in the forfeiture of any bond posted.

Now, the “Conditions of Release” raise another constitutional question, with regard to the Eight Amendment, which states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Bail, n.  The surety or sureties who procure the release of a person under arrest, by becoming responsible for his appearance at the time sand place designated.  [Black’s 5th Edition]

So, once the “Conditions of Release” go beyond that required to assure appearance in court, as intended by the Framers, is it not Excessive?

Let’s go another step, when you have not been convicted of a crime, and you are bound by conditions that put your life, your daily routine, your health, and your ability to move freely around in society, under rigid restrictions, obedient to both the Court and the bureaucrat known as the “Pre-Trial Services” officer assigned to you, just how far above “involuntary servitude” are you?  Is that any less than “cruel and unusual punishment”?

Yes, I know, the Court will say that you agreed to it when you signed your name, but what choice had you?  The Framers surely did not anticipate the corruption of the Judicial branch, to the extent that we see imposed upon those accused, but not convicted, of a crime.

Impartial Jury & State and District

Though we have all heard the expression, “jury of your peers”, it is not specifically written in the Constitution.  The qualifier for the jury is, simply, “impartial”.

Impartial jury.  The provision of the Bill of Rights requiring that the accused shall have a fair trial by an impartial jury, means that the jury must not be partial, not favoring one party more than another, unprejudiced, disinterested, equitable, and just, and that the merits of the case shall not be prejudiced.  [Black’s 5th Edition]

However, in the Amendment, “impartial jury” is coupled with other criteria, that being, “of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”

So, we shall return to the Constitution to see what was intended by the term “district”.  The first occurrence is found in the description of the intended national capital, “District (not exceeding ten Miles square).”  This is a relatively small district, not to exceed 100 square miles.

Though district isn’t mentioned, we have the first indication of where a trial should be held, “ The Trial of all Crimes… shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed” [Art, I, § 2, clause 3].  But, that was, obviously, too broad, since the Sixth Amendment narrowed it down, as stated above, to “the State and district wherein the crime shall have been committed.”  Then, they allowed for a provision allowing that District to be “ascertained by law.”

Now, in Oregon, there are two types of “District” that have been “ascertained by law.”  First is the judicial district of Oregon, which encompasses the entire state.  Washington, the neighbor to the north, as two juridical districts, an Eastern, and Western judicial district.  However, neither of these seems to fit the wording of the Amendment.  So, we should look further and see if there are other districts, more along the line obviously intended, that were established by law.  This, of course, would be those established by the Legislative Branch, the Congressional Districts, which satisfy the criteria of size (smaller than a State) and representation, which is a logical conclusion, being a representative form of government, that the district intended have the commonality of location and representation.

Now, this wouldn’t necessarily require that the Court be located within the District, only that the “impartial jury” be comprised of jurors from that district.  And, this can be supported by the “UNITED STATES DISTRICT COURT, District of Oregon, Juror Management Plan“, adopted by the Court on February 2, 2015, which was also approved by the Ninth Judicial Circuit.

Now, I wouldn’t want to suggest that the government, in particular, the United States Department of Justice, doesn’t know what rules they are bound by, and that they would knowingly violate those rules, simply to assure that they could get an Indictment (in violation of the law) and a conviction (again, in violation of the law), simply to satisfy the desire to persecute (yes, that is correct) some people because they don’t like what those people did.

So, let you be the judge (pardon the expression, if you feel insulted) of just what the Plan says:

Section 1.04 Policy

It is the policy of the Court that all litigants in this Court, entitled to trial by jury, shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the Court convenes, and that all U.S. Citizens resident within the District shall have the opportunity to be considered for service on grand and petit juries, and shall have an obligation to serve as jurors when summoned for that purpose. No U.S. Citizen shall be excluded from service as a grand or petit juror on account of race, color, religion, sex, national origin, or economic status.

So, we have “a fair cross section of the community in the district or division wherein the Court convenes.”  Perhaps poor grammar, however, in meeting with the constitutional criteria for “district”, and not leaving it solely within the “State”, we can find no other solution than to resort to the “division” level to satisfy the evident criteria that has been set forth by the Constitution.

So, just what are the divisions referenced in Section 1.04?  Well, they can be found in Section 1.07:

Section 1.07 Jury Management Divisions (See 28 U.S.C. § 1869(e) and Local Rule 3-2)

In order to facilitate juror management activities, the Clerk is directed to align Oregon’s counties into the following jury management divisions:

(a) Portland Jury Management Division: Clackamas, Clatsop, Columbia, Hood River, Jefferson, Multnomah, Polk, Tillamook, Wasco, Washington, and Yamhill.

(b) Pendleton Jury Management Division: Baker, Crook, Gilliam, Grant, Harney, Malheur, Morrow, Sherman, Umatilla, Union, Wallowa, and Wheeler.

(c) Eugene Jury Management Division: Benton, Coos, Deschutes, Douglas, Lane, Lincoln, Linn, and Marion.

(d) Medford Jury Management Division: Curry, Jackson, Josephine, Klamath, and Lake.

Shucks that was easy.  Even I could figure out that the only division in which the grand and/or petit jury could be selected from would be the “Pendleton Jury Management Division”.  I wonder why a United Sates Attorney could not figure it out — unless obsession takes priority over obligation under the Constitution; a true commitment to justice, rather than simply manipulation of the law to obtain a conviction.

 

 

 

XVIII. 1984 [4/4/16]

Count 5 of the Superseding Indictment reads:

(Theft of Government Property)

(18 U.S.C. § 641)

On or about January 15, 2016, in the District of Oregon, defendants JON RITZHEIMER and RYAN BUNDY, willfully and knowingly, did steal, purloin, and convert to their use and the use of another cameras and related equipment, the value of which exceeded $1000, which is property of the United States government, in violation of Title 18, United States Code, Section 641.

The Statute cited is:

18 U.S.C. § 641: Public money, property or records

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or

Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted

It is important to understand what the government has charged Jon Ritzheimer and Ryan Bundy with.  It may be clear from the Statute that the requisite for it to be a crime is “to convert it to his use or gain.”  So, to be sure that we are looking in the right direction, here are a few definitions from Black’s Law Dictionary, Fifth Edition:

Steal.  The term is commonly used in indictments for larceny (“take, steal, and carry away”), and denotes the commission of theft, that is, the felonious taking and carrying away of the personal property of another, and without leave or consent of owner, and with the intent to keep or make use wrongfully.

Stolen.  Acquired or possessed, as a result of some wrongful or dishonest act of taking, whereby a person willfully obtains or retains possession of property which belongs to another, without or beyond any permission given, with the intent to deprive the owner of the benefit of ownership (or possession) permanently.

Theft.  A popular name for larceny.  The taking of property without owner’s consent.  The fraudulent taking of personal properly belonging to another, from his possession, for from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person talking it.

Larceny.  A rather lengthy description, with the significant element being “felonious intent“.

So the taking of the property must be for keeping, depriving the owner of the benefit of ownership, and must be felonious in intent.

Note that the Indictment, Count 5, says, “convert to their use and the use of another cameras and related equipment.”  However, that Statute simply says, so, was the equipment taken used for “their use, or the use of another“?  Unfortunately for the government, the answers is definitely, and demonstrably, not.

Now, we do have a record of what happened, with regard to the cameras and other equipment.  There are three videos that will answer all of our questions.  The First Video is a 12:20 video, January 15, showing the cameras and other equipment being removed from two locations.  And as you will see, if there is damage (not theft, as claimed), it is to the padlocks and, perhaps, to some wiring harnesses.

The boxes the cameras were housed in say “SCADA Circuit ID”.  SCADA is “Supervisory Control And Data Acquisition”.  Since they don’t appear to say, “Property of the US Government”, they are probably contract equipment, which is included in the Statute, but not in the Indictment.

At 4:45, LaVoy says that he will give the cameras to the FBI, at the gate, meaning the point where you leave Narrows-Princeton Road to drop down to the Malheur National Wildlife Refuge headquarters.  Later, at 10:05, Jon Ritzheimer shows some of the other “equipment” that was removed, and repeats that they can come and get it, meaning the FBI, as mentioned by Lavoy.

The Second Video (1:22) is a press conference held on January 16.  LaVoy says that some Harney County residents informed them of the surveillance cameras, and that they did not want them there — they wanted them taken down.  He then extends an invitation to the FBI to come to the Monday (January 18) press conference, and that the FBI can pick up the cameras and equipment at that time.

The Third Video (4:30) is a continuation of the press conference of January 16.  At the beginning, LaVoy explains to press that the citizens of Harney County came to them with concerns over surveillance.  They wanted the cameras removed.  At the 2:30 mark, a reporter walks away with a camera.  LaVoy retrieves the camera so that it can be returned to the FBI.

Are these the acts of thieves, or simply the acts of people who are concerned about the government’s very expensive obsession with spying on the people, as George Orwell described in his novel, “1984”?

The cameras were not converted to their use, rather, they went from a public road, where they could have been stolen by others, and stored on what the government claims to be government property.  The offer was publicly extended to the FBI to pick up the cameras.  That is not the act of a thief.

Unlike the government, that has returned some personal property, destroyed hundreds of pounds of food, and still retains much of the private property that was left at the Refuge, and which they are converting to their own use by searching anything with an electronic memory storage for any information (pictures, videos, documents, audios, without warrants) that might be of use to them.

So, once again, We, the People, have to decide what acts are criminal, by either intent or actions, or leave it to the government — whose sole objective is to suppress dissent.

 

 

XIX. Property? [4/6/16]

Count 6 of the Superseding Indictment reads:

(Depredation of Government Property)

(18 U.S.C. §§ 1361 and 2)

On or about January 27, 2016, in the District of Oregon, defendants SEAN ANDERSON and JAKE RYAN, aided and abetted by each other, did willfully and by means of excavation and the use of heavy equipment on lands of the Malheur National Wildlife Refuge, property of the United States, injure and commit a depredation against such property, specifically, an archaeological site considered sacred to the Burns Paiute Tribe, resulting in damage in an amount exceeding $1000, in violation of Title 18, United States Code, Sections 1361 and 2.

I have provided Jake’s name, though the government still has his name blacked out on the Indictment.  The statutes cited are:

18 U.S.C. § 1361: Government property or contracts

Whoever willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof, or any property which has been or is being manufactured or constructed for the United States, or any department or agency thereof, or attempts to commit any of the foregoing offenses, shall be punished as follows:

If the damage or attempted damage to such property exceeds the sum of $1,000, by a fine under this title or imprisonment for not more than ten years, or both; if the damage or attempted damage to such property does not exceed the sum of $1,000, by a fine under this title or by imprisonment for not more than one year, or both.

And

18 U.S.C. § 1362: Communication lines, stations or systems

Whoever willfully or maliciously injures or destroys any of the works, property, or material of any radio, telegraph, telephone or cable, line, station, or system, or other means of communication, operated or controlled by the United States, or used or intended to be used for military or civil defense functions of the United States, whether constructed or in process of construction, or willfully or maliciously interferes in any way with the working or use of any such line, or system, or willfully or maliciously obstructs, hinders, or delays the transmission of any communication over any such line, or system, or attempts or conspires to do such an act, shall be fined under this title or imprisoned not more than ten years, or both.

In the case of any works, property, or material, not operated or controlled by the United States, this section shall not apply to any lawful strike activity, or other lawful concerted activities for the purposes of collective bargaining or other mutual aid and protection which do not injure or destroy any line or system used or intended to be used for the military or civil defense functions of the United States.

Now I think that we must first dispense with §1362, as the statute addresses communications equipment, and the Indictment makes no mention, suggestion, inference or allusion to any communications equipment.  It would seem that which the government attorneys are attempting, what I have often referred to as a “legal shotgun”, where they throw enough charges at the accused, that the jury will conclude that if the government has this many charges, then they must be guilty of something.

So, let’s look at §1361.  First, the use of the word “property”, in context with the statute, “Whoever willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof, or any property which has been or is being manufactured or constructed for the United States“.  So, what is meant by property?  Can you manufacture what is properly referred to as “real property” (land)?  If they had intended to include land, would they not have made clear that “land” (real property) was included?  And, if they did, perhaps they would have to provide some indication of just what kind of damage would be included in that which could be considered to be what was intended.

Perhaps we can use the subsequent wording in the stature to garner an idea of what might be included in any interpretation of “damage”.  It states, “If the damage or attempted damage to such property exceeds the sum of $1,000“, which gives us an idea that the damage is calculable, in terms of dollars.

The Indictment refers to the source of the damage being “by means of excavation“, so that is clear.  Now, we can look at how the calculations might be addressed.  If it is nothing more than a hole in the ground, and both the spoil (dirt that was removed) and the equipment that was used to remove it are on site, it would seem that, at best, the cost might approach $200, if Union or Prevailing Wage applied.  Next, they mention “an archaeological site considered sacred to the Burns Paiute Tribe“.  However, they have provided nothing to indicate just what damage occurred.  Is a shovel full of dirt accountable in dollars?  How about a backhoe bucket of dirt?  Or, is disruption of the archaeological site accountable in dollars?  In the latter, the archeological site, wouldn’t there have to be an itemization of the artifacts, along with an ascribed value?  Or, can the government simply say, “it is worth more than $1,000”?

However, to be fair, I think that we must also look at whether what Anderson and Ryan did was done on ground that was still undamaged and sacred.  With that in mind, we can look to what has been found by Arnold Law, dealing with the alleged criminal excavation.  A video and written article explains that if those who dug the trench were the first to disturb the sacred lands, then the Indian had laid communication and utility cables through that same area, perhaps centuries before.

I suppose that I should conclude this article with the thought that first occurred to me, when I read Count 6 – Who makes this shit up?

 

 

 

XX. Who Owns Your Video? Who Owns Your Voice? [4/28/16]

In light of the many complaints filed against the Arnold Law Firm, attorneys for Ammon Bundy, over their method of raising funds to pay for a legal defense against a government back by hundreds of attorneys and millions of dollars, perhaps there is another side to this story that needs to be looked at.

Shawna Cox had the wherewithal to begin recording the events, from the first stop to the murder of LaVoy Finicum.  In so doing, she recorded a moment of history that cannot be duplicated.

We all know that if you are in a position to have exclusive footage of an event of such magnitude, there is some value, to some news agencies, for exclusive use of such footage.  How often have you seen “Exclusive to XYZ News”, or something similar?  Well, it would not be “exclusive” if it were freely put out in the public domain, for the use of all.

I contacted a number of news agencies (in each instance, I agreed not to disclose the name of those willing to aid me in an effort to determine what value that particular footage might have.  It was predicated on the footage being exclusive and that its availability would have been shortly after the event, while it was still front-page news.

The results were that some would not have paid, as per their policy, for any such footage, to an estimate of that value being perhaps as much as $300,000.00.  Interestingly, the higher numbers came from the established, checkout stand, publications.  Those that rely on strange births, flying saucers, and other such attractions, intended to generate spontaneous purchases.  But, that does not change the color of the money that such footage might bring to the owner of the intellectual property.

Shawna Cox is currently being represented by a court appointed federal public defender.  This is not to suggest that she is not being well represented.  On the contrary, her attorney has gotten her released, had the conditions of release modified to give Shawna more freedom to conduct her family business and care for her family.  Included in the reduction of constraints, there was also an increase on the restrictions of what she could say and whom she could communicate with.  Her attorney, with help from others, managed to get the Court to remove some of those restrictions, primarily because those restrictions made it difficult for her to work in preparing for her own defense.  Shawna is the only defendant that has been released under a relaxed set of restrictions, as explain below.

Now, suppose she had in her possession that footage, shortly after she was released from jail.  Suppose, also, that she chose to take advantage of her foresight in taking the footage by selling exclusive rights to it, which would be her right to do, so as to provide funds to assure a greater defensive effort than what is currently available to her under the meagerly funded federal public defender program.  Would she then be able to mount a better defense against the leviathan known as the United States Department of Justice?

However, at this point, that ability to assure a far better funded defense is now moot.  The government chose to steal her property, make it public, and totally destroy any value she might have obtained from the sale of her own property.  In fact, they still retain both the camera and footage, and as such, well, denied her a degree of justice in a very expensive legal process that had been created by that same leviathan.

Now, if the government wants to argue that it is evidence, then they should have held it for trial.  Instead, they put it out, and by so doing, influenced the public by putting their narrative on what it means, leaving that image with the potential jurors.  Had it been presented with clear explanation that LaVoy, like many people, wary of law enforcement, would have presented it.  If you are concerned for your safety, you have a right to call for another officer to be present before you roll your window down, or exit your car.  LaVoy clearly stated that he wanted to go see the Sheriff in Grant County (Glenn Palmer), and that the FBI/OSP are welcome to follow him to where he would feel safe, especially with all of the guns pointed at him and the others, including women, in the car.  Instead, they create the narrative, “Shoot me”, as a request, rather than the fact that our rights must be worth something, perhaps even our lives, if we wish to retain them.

I’m sure that the Justice Department is fully supportive of the claims being filed against Arnold Law, since that effort, if successful, will strip Ammon Bundy of the means of increasing his ability to defend both himself and the others named in the Indictment.  After all, if you have a weak case, you want to restrict the other party of as much of their ability to counter your accusations as you possibly can.

Another consideration:  Those who remain in jail have no restrictions on their ability to speak out, though most often, their attorney will tell them not to.  However, those who have been released are coerced, yes, coerced, into giving up their right to speak, as is indicated on their respective release document.  The specific wording, on most of the Release Orders, reads:

  • Avoid all contact and communication with the following named persons: Co-defendants, any individuals involved with the Malheur National Wildlife Refuge occupation or militia members. ‘
  • The defendant shall not make or publish any statements encouraging unlawful activity or about his criminal case.

Do you think that such restriction is placed on the FBI, BLM, or the other players on the government side?  Clearly, they are not.  For instance, Sheriff David Ward has come out in an interview with his take on the events that occurred in Burns and at the Malheur National Wildlife Refuge.

Interior Secretary Sally Jewell, in a speech, demonizes all patriots by explaining that the threat exists that other parks or facilities will be taken over.  However, she offers no proof of such intentions; she simply demeans the entire conservative patriots in one broad swipe of the brush.

Probably the worst abuse of truth is demonstrated in an article, based upon Fish and Wildlife Services, alleging the extent of damage caused by the occupation.  A review of the claims (pictures) is presented, briefly, at Malheur Damage Explanation

However, those who are presumed to be innocent are denied, either by limited communication privileges in jail, or restrictive Conditions of Release, from getting a truthful version of the contested facts out to the public.

And, those who profess their own innocence, the Department of Justice, scheme to deny justice to those in jail.

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