The following is a partial mirroring of Gary Hunt’s series about political prisoner Kevin “K.C.” Massey. Despite maintaining his innocence, Massey was convicted of violating 18 USC §§ 922(g)(1) for the victimless crime of “felon in possession of firearm,” which was originally intended to target only mobsters during alcohol Prohibition. He is currently serving a three year and five month sentence, and is expected to be released sometime in 2019.
Yesterday, in the early afternoon, Kevin (K.C.) Massey, 48, was arrested in a motel room near Brownsville, Texas. Massey was one of the organizers of Camp Lone Star, which has been turning back, or turning over to the Border Protection Service (BPS), illegal aliens attempting to cross the Southern border. He was alone when the FBI and BATF arrested him, charging him with Felony Possession of a Firearm. He was convicted in 1988 of burglary – over a quarter of a century ago. To better understand the charge against Massey, I refer you to a previous article on a similar situation, “No bended knee for me” – the Charge against Robert Beecher. It would appear that Massey is subject to the same intentional misinterpretation of the Federal Statute.
Sometime between 1:30 and 2:00 PM, FBI and BATF agents arrived at the home of Khristy Massey, Kevin’s wife, located in the Quinlan, Texas, over 600 miles from Camp Lone Star.. Massey had not lived at the home for the past four months, and the house is currently for sale. They wanted to search the house for firearms, though Khristy refused, absent a warrant. She was then threatened with arrest if she removed any firearms from the house. Interesting that one can be threatened with arrest for doing what they want with their lives and property – simply because the government went to search a house, though apparently unable to secure a warrant for that search. It makes you wonder if any laws, whatsoever, bind the federal government.
Massey was one of three members of Camp Lone Star involved in a shooting incident that occurred on August 29, 2014 (Massey’s account of incident). Massey, Allen Varner (Wolf), and John Foerster (Jesus), were patrolling on private property near the Texas/Mexico border. A BPS agent Hernandez, standing about 30 feet from Foerster, fired two shots at him, yelled “Stop”, fired two more shots, again yelled “Stop”, and then fired one more shot. Foerster placed his rifle on the ground, deescalating the situation. Hernandez claimed that he was pursuing some illegal aliens. It is noteworthy to understand that the BPS has been instructed not to fire on illegal aliens, unless fired upon — which did not occur, in this incident. Are we to surmise that the BPS IS instructed to fire on American citizens?
Subsequently, while meeting with a BPS Captain and other agents, Massey, Wolf, and Jesus, were asked to store their weapons in the Captain’s vehicle, for security — since there were still illegals in the area and they didn’t want the weapons unsecured and possibly stolen from the open “mule” which the three were travelling in. They also took Massey’s GoPro camera, with no explanation.
Additional BPS officials, Sheriff Deputies, FBI, and DHS agents arrived on the scene to investigate the shooting incident. A Sheriff Deputy then took possession of the five weapons, claiming that they were a part of the evidence in the investigation in the shooting incident — shooting by the BPS agent, not the three men legally possessing firearms on private property.
Shortly thereafter, Jesus was asked to leave Camp Lone Star because of suspected drug use. He had stayed away from the Camp since that time.
Moving forward to the recent events, Camp Lone Star had rented a motel room, a place to take a shower and get a good night’s rest. The evening prior to the arrest, the motel room was used by some of the Camp Lone Star members to conduct a conference call with militia members around the country. Earlier that day, at 1:58 PM, Jesus, for unknown reasons, called Camp Lone Star to say that he would be going over to the Camp. He never did show up. Perhaps he knew of the conference call, because he made two appearances during the course of that call, not at the Camp, but at the motel. He was described to me as fidgety and nervous during the two appearances during the conference call, as if he had something to hide. Is it possible that he was sent to the motel room to report if Massey was alone?
Well, let’s look into the background of John Frederick Foerster. Foerster served a prison term for three counts of burglarizing a building, beginning in May 2001. He was released from prison in August 2002. In 2009, he was charged with theft, in Missouri, disposition unknown. Foerster, however, has not, as of this date been arrested for felony possession of a firearm. He has also recovered his two weapons taken by the BPS and Sheriff on August 29. It has been alleged that Foerster was arrested again, for possession of cocaine, just four days prior to Massey’s arrest, though this has not been confirmed independently.
He claimed, in a phone call made late last night (20th), that he had heard about Massey’s arrest and had tried to call Archie Seals, of Camp Lone Star, numerous times — to find out what had happened with Massey. Archie Seals reports that he has had no contact, nor does his cell phone record show any calls from Foerster.
These occurrences (Beecher and Massey) should provide adequate warning to patriots, especially thus who have a felony record, that there is a concerted effort on the part of government to find cause to bring charges against you and take your guns away. They also provide insight into the tactics that the government is using to cull the patriot community of as many as they can, reducing the remaining numbers, and intimidating those who remain.
For an understanding of how informants and other infiltrators work, I would suggest reading “Informants Amongst Us?” and “Vortex“. To understand who the likely patriot targets of federal persecution are, I suggest “C3CM“.
Arrest of Jesus
As a follow up regarding the possible role of John Foerster (Jesus) in the arrest of K. C. Massey, it appears that he was arrested on Tuesday, October 21; the day after Massey was arrested. In my previous article, I mentioned some circumstances surrounding Foerster that raised questions about his possible role in assisting the government in the arrest of K. C. Massey. There were other pieces to that puzzle that weren’t quite strong enough for me to be willing to put them in writing (except my notes), but the arrest of Foerster has other factors that bring this into question.
As mention in the previous article (Camp Lone Star – The Arrest of K. C. Massey), Foerster appeared at the motel room the night of the conference call, on October 19. Massey was arrested the next day, the 20th. Foerster claimed that he had tried to call Archie Seal to find out what happened, though Archie’s phone shows no record of any calls, missed or received, from Foerster. What I didn’t include in that article were the results of some investigative work conducted on the evening of the 20th.
One of the people I work with, let’s call this person “Joe”, called Foerster using a spoofed phone line. A member of Camp Lone Star and I were also on the line. Foerster seemed extremely troubled and nervous, during the call. “Joe” purported to have met Foerster at Camp Lone Star and feigned interest in doing what had to be done to keep “them” from going to prison. “Joe” used this ruse to imply status a federal informant. Foerster appeared to acknowledge meeting, and tried to get the real name of the “Joe”, though that request was diverted and never answered. He made no outright confession. The nervousness he displayed never abated.
About 30 or 45 minutes later, “Joe” made another call to Foerster, using the same setup. This time, Foerster was relaxed and casual, and agreed to a subsequent meeting of the two in order to discuss what they had to do to stay out of prison. Again, Foerster was unsuccessful in obtaining “Joe’s” real name, or any other substantive information, despite his attempts to do so.
Following that second phone call, we three remaining participants continued the discussion, speculating on his behavior, things that were said, etc., which appeared to support the theory that he was “bad actor”, and probably involved in the arrest of Massey. There was insufficient evidence to support inclusion of that information in the previous article. However, his change of character led us to believe that he had possibly called his handler and was given instructions to obtain what information he could, and otherwise play along. Apparently, he was trying to determine who was on the other end of the line and what they knew.
Now, if the government perceived risk to their “star witness”, they could not do without him. They would do what was necessary to assure his availability, when they needed him. Obviously, he had lost any ability to access additional information from Camp Lone Star, and any of its members — his usefulness, except as a witness, was destroyed.
Does this explain why he was arrested the next day? Was it to keep him safe, since it appeared to them that he had been compromised? All this even before that first article was even published.
We have obtained the “Criminal Complaint“, which includes both Massey and Foerster. However, there are some interesting aspects to the Complaint:
- The “properties” in the document obtained show that the document was created on 10/20 at 12:43, then modified on 10/22 at 11:40 (the day after Foerster was arrested).
- On page 4, of the document, the numbered items are hand-written. Foerster’s felony is first acknowledged on that page, not before.
- The “File” stamp show October 20, but it is just a rubber stamp, and the Case identification at the top is easily changed to show any date they choose.
- Since it was created on October 20, why would it be modified on the 22nd? Note: you can replace all of the pages in a PDF, but the created date will be retained.
- The stamp at the top of the page shows that the record is “Sealed”, so why is it made available, at this time?
- The Federal Judge or Magistrate is authorized, by law (Rules of Court), to make “corrections” in judicial records, as he sees fit.
Now, this is still speculative, at best, though it is being presented so that you can decide — and learn just how the government works. However, now you have the information, and you can decide what you believe to be true.
Operation Mutual Aid
There are similarities between what happened, last May, to Robert Beecher and what happened earlier this week to K. C. Massey. There is another similarity that begs our consideration. That is the now “underground” organization known as Operation Mutual Aid (OMA).
The article, “No bended knee for me” – the Demonization of Robert Beecher, explains the government linking Beecher to OMA. Though they were way off base as to the real relationship, they saw a tie, and they pursued it. This would mean that if you were a participant or member of OMA, are a convicted felon, and have pictures out that show you in possession of a firearm, you might be targeted before others who may just be a convicted felon in possession.
- C. Massey was a registered member of OMA. Though he did not go to Bunkerville, Nevada, this past April, he was serious in his commitment to the “OMA Mission Statement“, as well as his own efforts to stem the flow of illegal immigrants at the Southern border.
After the events in Nevada, the press, some congress critters, and other officials, had suggested that there would be prosecutions. Ryan Payne and I discussed the possibilities and determined that the only charges that could be brought would be felony possession of a firearm. That would include both OMA members/supporters and others who responded to the call and were present at the Bundy Ranch. It appears that our judgment of this potential was correct.
Back in June 2013, OMA released a Policy Statement regarding a number of matters. It was also published as a “Public Notice”, explaining the purpose and intentions of the organization and its members. Interestingly, it included its members in a Mutual Aid Pact, which warrants our attention, and is fundamental to the ability of OMA to pursue a mission, succeed, and continue life — until the next mission. It reads, in part:
“…who you will be taking action against should you be told by your controllers to impede, apprehend or assault any volunteer of Operation Mutual Aid at any time, before, during or after an operation… If you apprehend any of us at any time, we will exhaust every one of our considerable resources to free that individual with all vigilance.”
With this in mind, perhaps we can understand why the government has put OMA members/supporters on their “hit list”, and what those OMA members/supporters must keep in mind, as we travel down the road of restoring this country to what the Founders intended.
K. C. Massey was in the area when a shooting occurred that brought numbers of Border Protection Service (BPS) agents, and Cameron County Sheriff Investigator Sergio Padilla, to the scene. The BPS agents asked that the weapons of all three individuals be turned over to BPS for reasons of safety (Explained in Massey’s account of incident). They were then turned over to Padilla, though at no time was Massey read Miranda rights, nor was the transfer of the weapons voluntary. It was simply done because they were agents, with guns, and in the principle of “discretion being the better part of valor”, they relinquished the weapons.
Those weapons then became the object of a Criminal Complaint, charging Massey and John Foerster (See Camp Lone Star – Update #1 on K. C. Massey) with felony possession of a firearm, based on 18 U. S. Code § 922 (g)(1).
Federal Authority and limitations
The theory behind laws, and the application of law, including ambiguity of the word, intent of the law, and misapplication of those laws is addressed in “No bended knee for me” – the Charge against Robert Beecher (for those interested in that aspect of persecution), however, the purpose of this article is to discuss what might be termed “the clash of laws” between the United States and Texas, under a Republican Form of Government (Art. IV, § 4 of the Constitution, as a member state of the Union of these United States (yes, the plural is intended).
To understand this clash, we must first look at the powers granted to, and the limitations imposed upon, on the federal government, by the Constitution.
First, there is the inevitable, and truly sacred, Second Amendment.
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Now, that reference to “free State” applies only to the states, not to the federal government, since the existence of a federal militia was never addressed in the Constitution, only the authority to call forth the militia. The first reference to what might be considered a federal militia occurred in 1916 with the enactment of law embodied in 10 U.S.C. § 311 (See A United States Militia). So, the Constitutional references to militia and bearing arms are contained in that Second Amendment and the following provisions in the Constitution:
- Article I, § 8, clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
- Article I, § 8, clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
So, Congress can call forth the Militia, which they could not “call” if they were already under federal authority, and next, they recognize that “Part of them as may be employed in the Service of the United States”. Leaving, of course, officers and training, to the “parent” of the militia, the States.
The only other provision is found in Article II, § 2, which reads,
“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States…”
This makes clear that the Militia belong to the States, not to the federal government, except when called into service. Now, the only mention of “arms” is associated with that militia in the Second Amendment, which links any firearms laws only to the authority to the states (we will go further on this subject, later). The only applicability to federal authority, or should we say, prohibition, is that “the right of the people to keep and bear Arms, shall not be infringed.” It appears that it wasn’t until the 1930s when the government first crossed that line drawn by the Constitution, and has continued to expand overarching authority into those Constitutionally prohibited realms, since that time (See The Three Constitutions – Which One do You Defend).
There is one more concern regarding federal authority that must be addressed, before we get to the heart of the matter. That is the authority granted regarding Commerce, Article I, § 8, clause 3, says,
“The Congress shall have Power… To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
It does not grant any power within the states, only “among the several States”. That is interstate, not intrastate, commerce.
Then, we have the only other “commerce” provision in Article I, § 9, clause 6:
“No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.”
Now, you need to keep these points in mind as we continue down a path of discovery — to determine what We, not the government, see as the powers granted and limitations imposed.
Possession of a Firearm by a Convicted Felon (Federal)
(g) It shall be unlawful for any person –
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
So, let’s look at the obvious intent of the law. First, “It shall be unlawful“, well, no problem with that.
Next, if that person “has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” Let’s assume for the sake of discussion, that that criterion has been met — that Massey has such a criminal record. So, now we move on to the third portion of the Statute.
It is unlawful “to ship or transport in interstate… commerce“. Now, this next phrase is rather interesting. “Possess” means “To occupy in person; to have in one’s actual and physical control“. So this must mean that you have in your control the firearm when you affect the commerce. The possession must be done while participating in or affecting that commerce. Finally, “to receive any firearm or ammunition which has been shipped or transported in interstate commerce.” Well, that last one surely must be the direct recipient, the addressee – to “receive”, as opposed to “possess”. For if that were the case, it would read, “to possess any firearm or ammunition which has been shipped or transported in interstate commerce.”
So, let’s revisit what we said about Commerce. “No Preference shall be given by any Regulation of Commerce or Revenue… one State over those of another.” However, if we consider the implications of the law, if you live in a state that manufactures a firearm, then you can posses it, as it has not been involved in interstate commerce. However, if you have ammunition that was manufactured in another state, then you are guilty because of the ammunition. If you live in a state that manufactures both weapons and ammunition, you can posses those “firearms” and ammunition. However, if you live in a state that manufactures one, the other, or neither, then you may have but one, or none. That seems to give Preference to one state over another.
Further, this absolutely defies the concept of equal justice; it would defy the concept of Article IV, § 2, which states, “The Citizens of each State shall be entitled to all of the Privileges and Immunities of the Citizens of the several States.” And, it would mean that if one moved to another state, with what was legal, from the federal standpoint, in the state from which he began, he would criminal in the other state.
Texas Possession Laws
So, let’s see what Texas has to say about a convicted felon possessing a firearm. The applicable law is found in Texas Penal Code, Section 46.04. The pertinent part is as follows:
- (a) A person who has been convicted of a felony commits an offense if he possesses a firearm:
- (1) after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or
- (2) after the period described by Subdivision (1), at any location other than.
- (f) For the purposes of this section, an offense under the laws of this state, another state, or the United States…
So, if one is convicted of a qualifying felony, after he has served his time gone through post conviction service, the clock starts. After five years, he cannot possess weapons, except at “the premises at which the person lives.” Now, premises, in legal terminology, is the house, outbuildings and land. This is to afford protection — once the five years has expired. It does not say house, it includes his whole dominion. He can protect his property.
Now, a question arises as to if he relocates, and lives elsewhere. In Massey’s case, he has lived at Camp Lone Star for four months. The land is owned by “Rusty” Monsees, and the camp is located on his property, with his consent. That is where he lives, so the premises, though not owned by him, is the premises that are applicable in the statute. He encountered the BPS on those premises, so he had every legal right to possess the weapons, under state law.
When he was arrested, he was in a motel room, where he lived the night before he was arrested. This may be a gray area, though it seems that since he lived in that motel room, that night, and that the obvious purpose of the law is for personal protection, that he would still be legal, under state law. The alternative would have been to either secure his firearms in his truck, or to leave them unattended at Camp Lone Star. Though this may be debatable, if we look at intent, it is probable. If not, the only violation, under state law, might be him having his weapons in the motel room. However, he was not charged with that. The initial charge came when he surrendered his weapons, without Miranda, while still fully in compliance with Texas law. The Complaint was based upon his lawful (state law) possession. The Complaint led to the arrest, which might be the only exception to state law. However, the Complaint, itself, admits to “forbidden fruit”.
So, where do we go, next?
Collision of Laws
Recently, Washington state and Colorado enact laws legalizing marijuana. Shortly thereafter, the Department of Justice announced that they were going to suspend prosecution of federal marijuana laws in those two states. Shall we ponder their reasoning for making such a decision?
Let’s suppose that state law says you can posses marijuana, and federal law says that you cannot. To begin to understand this, and the subsequent discussion, perhaps we need to interrupt, for a minute, and understand what James Madison told us in Federalist Papers #62:
It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
So, law is “a rule of action”, or, perhaps, a prohibition. But, it is there to guide us in remaining within the boundaries of law, or suffering the consequences of deviation from the law.
So, if marijuana is legal in Colorado, and criminal by federal law, which “rule of action” are we bound by? Well, the government did not want to face the consequences of a legal challenge to their presumed superiority of their laws over the state’s laws. Let’s look at Article IV, § 4, of the Constitution:
“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
So, we have the only “guarantee” in the Constitution, and that is that we have a “Republican Form of Government”. That guarantee is that so long as the state does not enact a law in violation of the Constitution, they have every right to enact any other law — such as the marijuana law. Gee, it also provides that the government “shall protect… them against Invasion”. Golly, gee, isn’t that what K. C. Massey and Camp Lone Star were doing, since the government was having so much trouble fulfilling this obligation?
However, the marijuana laws are the “Conflict of Laws”, and, perhaps, the felony possession laws are also a Conflict of Laws. After all, the same dilemma arises. Can K. C. Massey possess firearms, so long as he does so in compliance with Texas Law, under their Republican Form of Government? Or, is he bound by federal law that depends so much on the Commerce provisions of the Constitution?
Let’s look at what the United States Supreme Court said about the extent of authority granted by the commerce clause. The case is United States v Lopez 514 US 549 (1995).
The federal government had enacted the “Gun-Free School Zones Act of 1990”, which forbids “any individual knowingly to possess a firearm at a place that [he] knows . . . is a school zone.” The District Court denied Lopez, as they claimed that the law was “a constitutional exercise of Congress’ power to regulate activities in and affecting commerce.”
That decision was appealed to the Appellate Court, who then reversed the lower court decisions, when Chief Justice Rehnquist said,
The Act exceeds Congress’ Commerce Clause authority. First, although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce. Section 922(q) is a criminal statute [as is the charge against Massey] that by its terms has nothing to do with “commerce” or any sort of economic enterprise, however broadly those terms are defined… Second, 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearms possession in question has the requisite… nexus with interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce. To uphold the Government’s contention that 922(q) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States.
In a Certiorari to the Supreme Court, the case was heard. Chief Justice Rehnquist delivered the opinion of the Court. After a lengthy discussion, affirming most of what the Appellate Court had said in their decision, and extending even further into limitations of federal authority, the Decision concludes, “For the foregoing reasons the judgment of the Court of Appeals is Affirmed.”
So, the Supreme Court, back in 1995, imposed a limitation of authority on the federal government, regarding the utilization of the Commerce Clause beyond its Constitutional intent. And, the law that was overturned, 18 U. S. Code Section 922(q), a part of the same statute that is being used against Massey, requires that there be an economic nexus to commerce for a law to be valid.
The first portion of this article explains the wording of the law, (922 (g)(1), and how it is clearly tied to commerce. Whether it was rewritten after the Lopez decision, or not, it must have the nexus to commerce. If the ownership of the gun by Lopez does not have that nexus, how, possibly, can the ownership by Massey have what the other did not?
Commerce begins when somebody “ships” something in interstate commerce. It continues when someone “transports” something interstate commerce. It finally ends when someone “receives” something that has been sent and transported. At that point, the nexus to commerce ceases, and we are back to “Equal Protection under the Law”, where the state that you live in is the authority as to whether you can posses guns or ammunition.
The final point to be made on this subject is the fact that the state of Texas has three branches of government. They have, like every other state, a Legislative, and Executive, and a Judicial branch. The Judicial, of course, is to render justice. The Legislative, to enact laws, under its “Republican Form of Government”, and the Executive to sign such enactments into law, and enforce them.
If what the federal government implies to be true by their persecution of K. C. Massey is true, then there is no need for the three branches of the government of Texas to exist. On the other hand, the government of Texas should take a more aggressive role, as the Supreme Court did, in limiting the overbearing and abused authority of the federal law enforcement agencies.
Let me repeat two quotations from the above. First is by Chief Justice Rehnquist in the Lopez decision, the second, my observation, from over twenty years of reporting to the Patriot community, on the ramifications and consequences of the current round of persecutions by the federal government, contrary to the state’s constitutions and laws:
- To uphold the Government’s contention that 922(q) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States.
- If what the federal government implies to be true by their persecution of K. C. Massey is true, then there is no need for the three branches of the government of Texas to exist.
Therefore, We must ask ourselves whether the people are here to serve the government, or, is the government here to serve the people? If the former, then we acquiesce to a condition of servitude. If the latter, then we must, in the Court of Public Opinion, rise above the government, and force them back to the limitations imposed on them by the Constitution, by whatever means necessary.
After the incident of August 29, 2014, in which BPS Agent Hernandez, who is bound by policy forbidding the firing of weapons upon illegal aliens, though apparently no such policy exists regarding American citizens, fired five shots from 30 feet away, failing to hit John Foerster (Jesus), a total of five weapons were “taken into custody” by the BPS and Sheriff’s Deputy. (See Massey’s account of incident). There is nothing to suggest that the perpetrator of that incident, Hernandez, had his weapon confiscated. These weapons were the basis for a “Criminal Complaint” issued on October 20, 2014, and lead to the arrest of K. C. (Kevin) Massey on Monday, October 20, and John Foerster, on Tuesday October 21 (See Camp Lone Star – Update #1 on K. C. Massey).
We are going to look at the Search Warrant and related documents to better understand both the divisiveness of government, and the deviation from the intent of the Constitution –regardless of how the courts may have ruled on the matter, after all, how can we be bound by laws if the government is not bound by the Constitution?
On October 20th, the same day as the Criminal Complaint, the “Application for a Search Warrant” (included in linked PDF) is supported by an “Affidavit for Search Warrant”, and though it doesn’t have the legally required concluding statement:
Further affiant saith not.
I swear or affirm that the above and foregoing representations are true and correct to the best of my information, knowledge, and belief.
or, variations thereof, it does comport the air of authority, as it is signed by “Anthony M. Rotunno, Special Agent, ATF”. However, should we expect the government to abide by the rules of legal sufficiency? Or, is that simply for “us peons”? After all, the government speaks only truth, and need not swear or affirm, simply, state. The Constitution does require that an affidavit be “supported by Oath or affirmation” (see 4th Amendment, below).
So, the Criminal Complaint was based upon what is referred to as “Felony Possession of a Firearm”. In fact, the Affidavit cites 18 U. S. Code, § 922 (g)(1), with the pertinent phrase being, “to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce”. Though I have written on the subject of 10 USC 922 (g)(1), before (“No bended knee for me” – the Charge against Robert Beecher & Liberty or Laws? Government Enforces Their Laws – Who Shall Enforce the Constitution?), I need to add another question regarding the applicability solely to the Commerce Clause of the Constitution. It has to do with the word “has”, as opposed to the word “had”. “Has” is 3rd person present, meaning active in the action just completed, where “had” is past tense, meaning in a previous situation. So, if one were the direct recipient, then this would be appropriate. However, if it were expansive — intended to include any firearm shipped in interstate commerce, then had would be the proper verb — to include any and all that had been so transported. I am sure that those who write such laws, or rules, have a grasp on the language and the meaning of words than those idiots who cannot even ascribe an affidavit properly.
That aside, Rotunno goes on with his explanation of his background, including with BPS from 2002 to 2008, then with ATF, since that time. Of course, the background also included special classes that he is familiar with, including the one mentioned above, though English grammar is not listed.
He then goes on to explain what the ATF National Academy teaches about what is reasonable to believe about what firearms owners “normally” do. For example, these rarely known facts, known only to the select few who have attended the appropriate indoctrination classes, are as follows:
- That the ATF National Academy teaches that most Federal Circuit Courts of Appeal have held that it is reasonable to believe that persons normally store their firearms in their homes;
- That persons who possess firearms usually possess other items related to firearms, such as: gun cases, ammunition, ammunition magazines, holsters, spare parts, cleaning equipment, photographs of firearms and receipts for the purchase of these items;
- That it is common for individuals who possess firearms and ammunition after being convicted of a felony, to secrete such firearms and ammunition in secure locations within their residence, motor vehicles and other real property over which they have dominion and control;
- That documents which indicate their occupancy and/or ownership such as personal mail, checkbooks, identification, notes, correspondence, utility bills, rent receipts, payment receipts, financial documents, keys, photographs, leases, mortgage bills, vehicle registration information, ownership warranties, receipts for vehicle parts and repairs, telephone answering machine introductions; cell phone cameras or other electronic recording devices which may contain electronic data of evidentiary value; and
- That those persons often take and store photographs of themselves with their firearms, of firearms they own or possess, and usually take or store these photographs using their personal telephones or the “memory” cards of their telephones.
If Rotunno is such an expert, he should be familiar with something known as “Tannerite”. Tannerite is sold as a two-part compound, with the parts separated. It is legal to sell and possess. Its nature changes when the primary part, ammonium nitrate (an oxidizer) and aluminum powder (a fuel), are mixed. At that point, when mixed, laws apply only to the transporting and/or shipping of the then Tannerite. So, in an effort to prepare for the demonization of Massey, when this matter goes to the Grand Jury for an Indictment, they will tell the Grand Jury that he possessed ammonium nitrate and fuel, the same substances that Timothy McVeigh used to blow up the Murrah Building in Oklahoma City. This will be presented before any evidence of firearms so that the jury members will perceive Massey as a terrorist, as most people see McVeigh. At that point, the jury will follow the lead of the U. S. Attorney and not question other possible elements of the case. They will do what they have to do in order to indict Massey, and then the ordeal and expense of trial well begin to drain away Massey’s energy and resources, and the government a success, without even a conviction, in removing a committed patriot from our ranks.
Perhaps we need to look at this realistically. The Constitution provides, in the Fourth Amendment, that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Therefore, we have another misunderstanding between the intent of the Constitution and the application by government. Why did the Founders insert the adverb “particularly”? Why didn’t they just leave it out? Well, then it would have read, “and describing the place to be searched, and the persons or things to be seized.” Is that what they meant?
But, wait a minute! They already have in their custody the five firearms listed in the Criminal Complaint and the two subsequently identified in the Affidavit for Search Warrant. So, keep that in mind as you read Page 3 of the Search Warrant (linked above).
On that page, you will see a list that is, at best, obscene, at least with regard to finding evidence that Massey had committed the alleged crime. You will note that the Warrant also says that they confiscated one firearm on Massey at the time of arrest, and that they knew that there was another firearm in the motel room. That is seven firearms, and they need to “confiscate” records, items, nearly everything but the toilet paper, to find “evidence of a crime”? Hell, if it really is a crime, then they had him, “dead to rights”, with seven firearms.
Can we attribute any other “justification” for this extensive and intrusive search other than “fishing” — to gather intelligence and profile others who have associated with Massey? Perhaps looking for evidence of another crime. Perhaps looking for picture so naked women, so that they can do something “productive”, during their long periods of surveillance.
Another thought that occurs is timing. If the original arrest was scheduled for 9:30 AM, though wasn’t conducted until Massey left the room, at 1:00 PM., one must wonder how the Affidavit, with all of the detail, could have been prepared, then the Assistance US Attorney found, to approve it, and, finally, a judge found who would sign it, within normal working hours, to be served the same day.
A final comment on the Search Warrant is the admission by the government that Massey showed the understanding that saying anything can only lead to disaster. By standing firm in not talking, he deserves the praise for the fortitude that held him to that conviction. Had he not, it is quite possible that he would have divulged information that might be detrimental to others. The quote, from the Warrant:
At the FBI office, your affiant (Rotunno) and FBI J. Schneider attempted to interview MASSEY. However, MASSEY invoked his right to an attorney.
What is clear is that the government’s regard for obedience to the intent of the Constitution is, without question, absent from everything done in this current exercise of despotic government. The primary evidence (5 firearms) was obtained without a warrant. Is it “forbidden fruit”, as it was obtained when government officers committed a crime by firing on John Foerster, and therefore within the limitations imposed by the 4th Amendment? Can that “evidence” then be used to secure an unsworn Search Warrant, so that, perhaps, they can make an arrest and find some evidence that is not as questionable? Would that evidence also be questionable, if obtained by improper (unconstitutional) methods? Come to think of it, the Search Warrant (page 6, item “H”) says that they had an arrest warrant, though Massey has never been provided a copy of the alleged Arrest Warrant.
So, we return to that necessary question, Are the people are here to serve the Government, or, is the government here to serve the People?
On Monday, November 10, 2014, K. C. Massey was released from the “Correctional Institution Willacy County”, “a contracted correctional institution, operated by a private corporation”, after 14 days of incarceration.
Massey’s bail had been set at $30,000, and his wife had raised the $3,000.00 necessary for the bond (not to be returned) through a bail bond agency. Fortunately, Ronald G. Morgan, U. S. Magistrate Judge, Southern District of Texas (Brownsville), saw that Massey had led an exemplary life, with contributions to community and even law enforcement, saw fit to release him on an “unsecured bond of $30,000”, which means that the bondsman will not make his $3,000 and that the Massey’s will not have to pay that penalty for him to remain on the streets until trial. However, the freedom that you and I enjoy is not to be his to enjoy.
Though Magistrate Morgan chose not to impose the secured bond, the conditions of Massey’s release are far from being able to live his life in a normal manner. Instead, they have placed conditions, which would be considered by most, to be just a prison door away from incarceration.
The Grand Jury indicted Massey on four counts (subject of a future article), so he is, in accordance with the Constitution, accused, based upon “probable cause”, possibly guilty of the crimes alleged. The final determination as to innocence or guilt is, however, subject only to the determination of a jury of his peers. It is not the determination of the U. S. Attorney who is prosecuting the case, or the Magistrate. Therefore, he is “innocent until proven guilty”. This is, or was, the unequivocal foundation for the judicial system that our nation once so proudly hailed.
The release from detention was based upon a document styled “Appearance Bond” (includes all documents discussed herein). That would imply that it was to assure his appearance in court, when called to do so. This would be consistent with the concept of “innocent until proven guilty”, and would allow him to continue his life, as he had before, without impediment by conditions that take away his freedom. Appearance for that determination of innocence or guilt, not for punishment prior to conviction.
So, let’s look at what has been imposed on Massey that most of us would consider “cruel and unusual punishments” (Eighth Amendment).
The “Appearance Bond, on its first page, says:
“This appearance bond may be forfeited if the defendant does not comply with the above agreement. The court may immediately order the amount of the bond surrendered to the United States, including the security for the bond, if the defendant does not comply with the agreement. At the request of the United States, the court may order a judgment of forfeiture against the defendant and each surety for the entire amount of the bond, including interest and costs.”
So, let’s look closely at what is above that written statement of forfeiture. The only items checked, or otherwise indicated, are:
- (X) to appear for court proceedings;
- (X) if convicted, to surrender to serve a sentence that the court may impose; or
- (X) to comply with all conditions set forth in the Order Setting Conditions of Release.
- (√) (2) This is an unsecured bond of $30,000.00
That, in itself, is sufficient to assure his appearance. If he fails to appear are otherwise comply with the three conditions, that is it, the court will take the $30,000.
So, now we will look at what is below the statement quoted above. First is a statement regarding the property used to secure the bond. Then, it has an:
Acceptance. I, the defendant — and each surety — have read this appearance bond and have either read all the conditions of release set by the court or had them explained to me. I agree to this Appearance Bond.
Interesting that the previously set condition on the first page, then the append those conditions to include “conditions of release” on the second (final) page of the “Appearance Bond”. And, now we will look at those conditions of release that have nothing, at all, to do with Massey’s agreement to appear in court, etc.
The “Order Setting Conditions of Release”, being a part of the “requirement” that goes beyond simply assuring appearance, begins to eat away at Massey’s freedoms, which we, not the court, must determine if they are consistent with the intent of the Eighth Amendment to the Constitution.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The pertinent parts of the Conditions (indented) and my comments thereto:
- (1) The defendant must not violate federal, state, or local law while on release.
- (2) The defendant must cooperate in the collection of a DNA sample if it is authorized by 42 U.S.C. § 14135a.
- (3) The defendant must advise the court or the pretrial services office or supervising officer in writing before making any change of residence or telephone number.
- (4) The defendant must appear in court as required and, if convicted, must surrender as directed to serve a sentence that the court may impose.
Nothing wrong with these, because they have to stay in touch with you, and you shouldn’t go committing crimes, even if you don’t know that they are crimes (Camp Lone Star – Massey & The Clash of Laws) — EXCEPT — they want DNA samples, even if you are arrested or facing charges (42 U.S.C. § 14135). Neither of these are convictions, so what gives? They want a database, so all they have to do is charge you with a crime, get the DNA sample, and then let you go. Neat trick! At the same time, people are fighting, and winning, cases against unjustified collection of DNA samples.
Next, we will go to the “Additional Conditions of Release” (included in the linked “Appearance Bond”). This will include all of the applicable ones, but there are some that stand out and might be considered “cruel and unusual”, at least in the original concept of the phrase. So, as we go through them put, yourself in the mindset of those who committed those sacred words to the Constitution, and consider, also, the concerns that led to the Declaration of Independence. The indented portions are from the document, my comments after those that warrant such comment. Bolded portions are typed into a standard form.
- (x) (7) The defendant must (checked items only):
- (x) (a) submit to supervision by and report for supervision to the U.S. Pretrial Services Agency telephone number 956-548-2667 , no later than [date left blank]
- (x) (b) continue or actively seek employment and provide proof to Pretrial Services.
- (x) (e) not obtain a passport or other international travel document.
- (x) (f) abide by the following restrictions on personal association, residence, or travel: Travel is restricted to the Northern District of Texas with permission to travel to Brownsville, Texas for court appearances and attorney visits only. No travel into Mexico.
“(f)” imposes travel restrictions within the Northern District of Texas. It also includes permission to travel to Brownsville, this being to attend court, as required. The implication, then, is that he is free to travel within the prescribed area. We will address this, later on, in this section, and once, more, later on.
- (x) (g) avoid all contact, directly or indirectly, with any person who is or may be a victim or witness in the investigation or prosecution, including: co-defendants and any member of “Rusty’s Rangers”, an armed citizen militia group.
“(k)” imposes a restriction on the right to speech, the right to peaceably assemble, and, perhaps the right to petition government (First Amendment). It also sets the prima facie representation of Rusty’s Rangers, a private group of concerned citizens, well within the laws of Texas, as “an armed citizen militia group”, regardless of the fact that both state and federal constitutions provide for who is militia, under their respective constitutions and statutes (See Liberty or Laws? Government Enforces Their Laws – Who Shall Enforce the Constitution?).
- (x) (k) not possess a firearm, destructive device, or other weapon; remove all weapons/firearms from residence prior to release and provide proof to Pretrial Services.
- (x) (1) not use alcohol (x) at all ( ) excessively.
If alcohol was not a part of the alleged crime, why would they deny that freedom — to imbibe? And, they didn’t even give him the benefit of the qualifier “excessively”.
- (x) (m) not use or unlawfully possess a narcotic drug or other controlled substances defined in 21 U.S.C. § 802, unless prescribed by a licensed medical practitioner.
They had already said that the “defendant must not violate federal, state, or local law while on release”, so, well, perhaps the one hand has no idea what the other hand is doing, or, there is an extreme deficiency in the intelligence of those who write these documents. It will also seem to suggest their inability to comprehend the Constitution.
- (x) (p) participate in one of the following location restriction programs and comply with its requirements as directed.
- (x) (ii) 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 approved in advance by the pretrial services office or supervising officer;
Back to the use of grammar in documents. The wording and punctuation here suggests that prior approval only applies to “other activities”. Suggesting that the intent was a degree of freedom, however, Massey has been instructed that if he leaves the house, not the yard, that it will set off an alarm and he would be in violation, as you will see, later.
- (x) (q) submit to location monitoring as directed by the pretrial services office or supervising officer and comply with all of the program requirements and instructions provided.
- (x) You must pay all or part of the cost of the program based on your ability to pay as determined by the pretrial services office or supervising officer.
So, the federal government, with all of the money that they waste, decides that someone under these constraints must also pay for what constitutes his imprisonment.
- (x) (r) report as soon as possible, to the pretrial services office or supervising officer, every contact with law enforcement personnel, including arrests, questioning, or traffic stops.
The final page of this document explains the penalties for violation of the conditions given.
First, he has to contact the United States Pretrial Service Officer, Eric Zarate, in Dallas. Then, he has to submit to random “visits” to his home to assure that there are “No Firearms, Destructive Devices, or Dangerous Weapons” in the home. Darn, he has to agree to suspend the requirement for a warrant to search his home. Scratch the Fourth Amendment, but then we have already addressed that in “Camp Lone Star – Search Warrant or Fishing license?“. This simply broadens the government’s ability to remove rights that were protected by the Constitution, and supported, as explained in the linked article, by the fact that when Massey’s wife said, “no, you can’t search without a warrant”, they had no way to look inside of the Massey home.
Then, it states that Massey is to give “FIVE days notice… for approval of travel outside the restricted area.” Now, this implies that he is free to roam in the “Northern District of Texas”, but we will soon see that additional document will erode, further, the rights that were supposed to be protected, absent a conviction. A map of the “Northern District of Texas” is included in the documentation provided to Massey.
The final document dealing with Massey’s release is the “Home Confinement Program Participant Agreement”. (Indent is from the pertinent parts, comments are mine):
- I, [K. Massey], have been Placed in the Home Confinement Program. I agree to comply with all program rules set forth in this agreement and the instructions of my probation or pretrial services Failure to comply with this agreement or the instructions of my officer will be considered a violation of my supervision and may result in an adverse action. I agree to call my officer immediately if I have any questions about these rules or if I experience any problems with the monitoring equipment.
- I will remain at my approved residence at all times, except for activities approved in advance by my probation or pretrial services officer. Regularly occurring activities will be provided for in a written weekly schedule which will remain in effect until modified by my officer. I must obtain my officer’s advance permission for any absences away from home that are not included in my written schedule.
Does this remind you of being “grounded”, when you were a kid? Except that violation could land Massey in prison.
- 5. I understand that my officer will use telephone calls and personal visits to monitor my compliance. When I am at home, I agree to promptly answer my telephone or door. If I fail to answer my telephone or door when I should be at home, my officer will conclude that I am absent and in violation of my home confinement restrictions.
So, guilt (conclude) without trial. It wouldn’t take much for a pissed off officer to “violate” him and send him back to prison.
- 6. I understand that my officer must be able to locate me at all times when I am away from home. If I do not have a job with a fixed location, my officer must be able to locate me by calling my employer. I also understand that jobs that do not meet these requirements are not permitted while I am in the Home Confinement Program. I understand that all job changes require advance approval from my officer.
- 7. I will not deviate from my approved schedule except in an emergency. I first will try to get the permission of my officer. If this is not possible, I will call my officer as soon as I am able to do so. If I call during non-business hours, I will leave a message, including my name, the date, the time, a brief description of the emergency, and my location or destination. I agree to provide proof of the emergency as requested by my officer.
- 8. While in the Home Confinement Program, I agree to wear a non-removable transmitter that my officer will attach either to my wrist or ankle.
These transmitter cuffs were, at once only used for those convicted of crimes. I guess the manufacturer of them has convinced the government to buy more. Not much different than the ankle shackles of the past, except you only need one ankle, not two.
- I understand that I will be held responsible for damage, other than normal wear, to the assigned equipment. I also understand that if I do not return the equipment, or do not return it in good condition, I may be charged for replacement or the repair of the equipment, and I agree to pay these costs.
- I agree not to move, disconnect or tamper with the monitoring unit or place any objects on top of it.
- I agree not to remove or tamper with the transmitter device except in a life-threatening emergency or with the prior permission of my officer.
- I agree to allow authorized personnel to inspect and maintain the transmitter device and monitoring unit.
- I agree to notify my officer immediately, or as directed, if I: a) lose electrical power at my residence for more than 24 continuous hours, b) remove the transmitter device from my wrist or ankle because of an emergency, or c) experience any problems with the monitoring equipment. During non-business hours, I agree to call my officer and leave a message that includes my name, the date, the time, and the nature of my problem. If there is a power problem, I agree that I will call and leave another message when the power is restored. I also agree to notify my officer of any problems with my telephone service as soon as I am able to do so.
If the monitor goes out in the middle of the night, and you don’t realize it because you are sleeping, you are in violation. If it comes on while you are still sleeping, well, another violation.
- I understand and agree that all telephone calls from the monitoring center to my residence will be recorded by the monitoring center. I will follow all directives from monitoring personnel when they call.
So, you can see how they began with a fairly innocuous agreement, simply a return for trial, etc., and you are free to go. Next, they step it up a notch, increasing restrictions and limiting travel to the “Northern District of Texas”. Then, they remove nearly a third of Texas and reduce the “free to roam” space to the size of the house. The first, the Appearance Bond”, seems to satisfy a reasonable approach to assuring that an honest man will appear when required, even to the point of turning himself in to serve time. And, since the Court determined that it was an unsecured bond, there can be little doubt that the character of K. C. Massey warranted such a status. Then, piecemeal, they begin to inflict what could be considered no less than unusual punishment by hanging the threat of returning to prison for as little as failing to make a phone call, under the conditions described. This is a practice that used to be reserved for convicted criminals, either on parole or probation. That which might be considered leniency to the convict can be considered nothing less than punishment to a man who is simply charged with a crime and still assumed innocent. That would meet the standard of cruel as well as unusual.
This is also an education for those who might face charges, even if they have done nothing in violation of state laws, of what to expect if the government decides to charge you with a crime.
This, once again, leads us to question:
Do the people are to serve the Government, or, Does the government to serve the People?