The following is a partial mirroring of Gary Hunt’s series about the pre-trial court hearings of the Citizens For Constitutional Freedom. These defendants include Ryan Payne, Shawna Cox, Ryan Bundy, Jon Ritzheimer, and David Lee Frey. Please read, “Burns Chronicles (No. 16 – 20),” before reading this selection.
We all know that when there is an alleged violation of one’s rights, the freedom of the accused, while somewhat curtailed, is usually respected, and this is known as part of due process. Absent due process, judicial behavior often falls into arbitrary decision-making, biased juries, and the rail-roading of political undesirables, straight into prison. Lack of judicial transparency is usually a clear sign that whatever vestiges of a republican form of government may still be there is waning, and quickly; should the public’s right to know not be reinvigorated, then posterity will likely never know true freedom.
A Person accused of a crime, according to the Sixth Amendment, has a right “to be informed of the nature and cause of the accusation” against him, “to be confronted with the witnesses against him“, and, “to have compulsory process for obtaining Witnesses in his favor“.
The government, of course, has the right to search with a warrant, and the subpoena power to compel witnesses. Clearly, they have a right to know.
The accused has the power of the subpoena, to compel witnesses on his behalf. He also has a right to discovery, to see what the plaintiff has, in the form of proof, and to introduce evidence on his behalf.
Historically, trials were public. Often crime scenes were photographed by news reporters/cameramen, often with victims still in place. Reporters were given all but the most critical investigative results, and all of this was to assure the public that there really was a crime in their community. Witnesses told what they saw, to investigators (public and private), other people, and the press. Those charged and arrested were able to talk to anybody and often did press interviews from jail. If they were released from custody, they could speak as freely as any other person. Thus, the public was always aware of the accused’s explanation of events.
When the matter went to trial the courtroom was open, so long as the observers behaved, and the press had every opportunity to report on all aspects of the case, including evidence and testimony. For the most part, all of the facts were laid out to the public, by one means or another, even before the trial began.
When the trial was over, regardless of the outcome, the community was fully aware of what had occurred, what the government did to bring justice, and whether the person that had been accused was vindicated of the charges, or convicted.
So, let’s look at what a trial really is. The first element is comprised of the facts of the matter. This includes evidence, recordings, writings, photographs, and the testimony of witnesses. However, that is just the beginning.
Years ago, going through some old law books, I ran across a rather interesting passage in an enactment from Utah. It struck me that it was closer to innocent until proven guilty than our current judicial process. In speaking of the trial, it said that the Indictment was on trial, not the accused (notice the difference between the usage of “accused” verses “defendant”. The accused is one who has had the finger of criminal activity pointed at him. The defendant, however, is, by implication, presumed guilty and has to prove his innocence. In the former (accused), the Indictment is on trial. The Indictment is sort of a story of a crime, and the story has to be proven to find guilt. If the story is not true (proven), then the accused is not guilty. However, in the latter, the defendant is on trial and has to prove that he is innocent. If he can’t prove his innocence, then he is guilty.
Now, back to the trial and its second element. We are not talking procedure, such as opening statements, the testimony and submission of evidence, and then the closing statement. Instead, we need to look at what is done with the facts of the case. For the most part, the facts are not arguable, themselves, though there may be some facts that seem to contradict others. However, what is occurring in those three mentioned stages of the trial (opening, trial, closing), we have nothing more than each side doing his best to present those facts, arguing as to just what they seem to prove. Their objective is to convince the jury, and the public, that those facts prove the case of their respective side of the trial.
This allowed the community to evaluate all aspects from the crime, through the administration of justice. With that in mind, the public would also know whether the government was serving the people, or had become an administrative functionary of the government, itself, endeavoring, if possible, to assure the government’s desired outcome, rather than justice. They were, though without legal authority, the final decisions as to whether justice was served, or not. As with the OJ Simpson trial, though the majority of the public disagreed with the verdict, they still accepted the outcome.
It is in those instances where the court pursues the end desired by the government, rather than the end of true justice for the community, that must be of concern to all of us.
Why it should be of concern is that we are the source of authority (We the People) of the government. It is We that are to be served by government rather than us serving the government. Should we venture too far away from that concept, we will find that the government’s control over our daily lives will always be subject to the government’s approval.
Just a few decades ago, with the exception of occasional photographs depicting elements of a crime, or an occasional audio recording, evidence in the trial was very limited.
More recently, however, we find that the government has spent hundreds, if not thousands, of man-hours, in building a monumental case. The evidence is often beyond the comprehension of most to understand its magnitude. However, the government is constantly evaluating what they have gathered, and by the time arrests might be made, they have been able to process 95%+ of the evidence.
Then comes discovery, the right retained by the accused to have access to what the government is using to prosecute them. It is often well after the arrest, based upon the one-sided evaluation of the evidence, that the accused finally gets to begin to review the mountain of data, though it often comes piecemeal, and though the government had months in advance to prepare their case, the defendant must begin a process that, also, could take months to process. Of course, before he can fully understand what the government has to support their accusations against him, the right to a speedy trial (70 days) is long-gone before he has been able to digest just what that mountain contains.
Two recent examples of the magnitude of the evidence acquired by the government might be noteworthy.
In the case of William Wolf, we find that the government, from an article about the discovery, had acquired 524 pages of written discovery and 17 DVD’s. The lowest capacity of a standard DVD is 4.7 gigabytes. It is safe to calculate that each DVD could hold 6 hours of video or 72 hours of audio, or all 17 DVDs could hold 102 hours of video (2 1/2 work weeks), 1224 hours of audio (over 30 work weeks), or a combination thereof.
A much more recent example is the case out of Burns, Oregon, United States of America v. Ammon Bundy, et al. As of April 20, 2016, in a “JOINT STATUS REPORT REGARDING DISCOVERY“, the government gives us a then current indication of the magnitude of evidence:
To date, the government has produced eleven volumes of discovery that comprise approximately 25,000 Bates [numbered] pages, 58,570 files, and over 360 gigabytes of data [over 76 DVDs]. The government continues to produce discovery in multiple formats including .pdf, text files, tiffs, load files, and natives.
Of course, there are 26 defendants in this case, but each of their respective attorneys need to go through the entire mountain, or arrange to have it commercially indexed to see which pieces affect their client.
Now, in both instances, the question arises as to whether there is any exculpatory evidence. Exculpatory evidence is evidence that might prove the innocence of the accused. The government is reluctant to turn over anything that might weaken their case. After all, their purpose is to win, regardless of innocence or guilt. And, since there is no requirement that the government must turn over everything, unless the accused has reason to believe that there is something in evidence that he hasn’t been provided, he cannot generalize and ask for all that was not voluntarily given.
Surely, we have all hear of the KGB (the Russian Committee for State Security), and the Stasi (East German Ministry for State Security). They were secretive law enforcement organizations that made sure that the will of the leaders was properly applied. Their means included secret agents, informants, false accusations (perjury), and, most significantly, denying the public from knowing anything they chose not to admit to. This left the public to always believe that the government was doing a fine job, except those few dissidents who would soon find themselves on trial, perhaps for the rest of their lives.
However, the American right to a speedy and public trial precludes such practices — or does it? Newspapers and other news sources are controlled, and can only publish that which is approved by the government. This creates what is commonly referred to as a “police state”.
It is the opposite of what the Framers gave us, and we have shed blood for, to retain that form of government. Our Liberty is a consequence of those efforts, far more than any other objects, except life and property. All are to be protected by the government that was created by the Constitution, and is therefore bound to that Founding Document that provides for an open and honest government.
As we advance in technology, such as the ease of recording audio, video, or both; the Internet, where everything you have said, under any circumstances; and the proliferation of informants and undercover agents (See Vortex – The threat that keeps us apart), we enter a realm whereby those standards of justice from the past can either be adhered to, or ignored, by those whose purpose is to administer justice on our behalf. However, if our judicial system abrogates that responsibility, choosing instead to assure that the government will almost always prevail against us, then we are nothing less than in a police state mentality that supported the KGB and the Stasi, except in name only.
As explained above, the intent of the Framers, has demonstrated by our judicial heritage back through centuries in England, is to allow the public to judge the process, for the sake of both their community and justice, then it would make sense that ALL information obtained by the prosecution be made publically available, without redaction. This would aid both the accuser and the accused, as anybody in the public realm who might have knowledge of something germane to the case, could come forward and offer what evidence they might have that would be beneficial to the ends of justice.
This would be particularly true with regard to the incidents in both Oregon earlier this year, and Nevada back in 2014, where hundreds, if not thousands, of pictures have been taken and where recorded conversations, or other testimony might shed light on the truth.
The government, however, chooses to hide behind a wall of secrecy. For instance, the Las Vegas Review Journal (LVRJ) has filed a Motion to Intervene with the Nevada Court to have the Discovery available to the public, via news media.
However, what is addressed in the LVRJ Motion doesn’t touch on the real problem.
If the government is able to suppress the information that they will use to try to convict the defendants in both Oregon and Washington, then they are approaching those tactics necessary for the KGB and Stasi to achieve their ends.
The government doesn’t want anybody but the defendants to see how the evidence was gathered. They argue that it is for the safety of the witnesses, though in both states, only the government has demonstrated a propensity for violence (See Burns Chronicles No 2 – Ambush and The Bundy Affair – #11 – “Violence Begets Non-Violence”). Perhaps it is their tactics, maybe well beyond what most Americans might deem to be acceptable. Perhaps it is the number of informants and agents that they injected into the events. But, if the government has their way, we will never know. And they will have achieved a major gain in moving into a complete police state, which is supposed to be guarded against by the foresight of the Framers when they wrote the Constitution and the Bill of Rights.
So, it is not just the defendants that are, so far, denied information critical for them to evaluate the charges against them, It is also a denial of the right of the people to know just how the government operates and whether it is seeking justice or persecution.
Just over two years ago, I wrote two articles, Oathkeepers vs. Militia and Oath Keepers vs. Militia – Part II. Those articles were associated with the events that were happening at the Bundy Ranch, in Nevada. I had no intention of writing a series regarding the subject, though more recent events, in and around Burns, Oregon, have compelled me to do so.
What we are discussing is to what level members of OathKeepers cooperated with government officials, both local and federal, in Burns, Oregon. Beyond simple cooperation, did they also provide misinformation to both sides to heighten anxiety — on both sides?
To better understand this concept we need to revisit a story I did back in 1994. Michael Hill, an Ohio Unorganized Militia Chaplin, was shot to death on a roadside while returning from a patriot meeting. Hill was alone in his car and was being followed by friends. A police officer pulled Hill over and Hill complied, pulling to the side of the road. The police car pulled over behind him, and the friends pulled over behind the police car. While the friends were still present, they heard gunshots and fled the scene. Shortly thereafter, two additional officers arrived. Based upon my research, one of these officers fired additional shots into Hill’s nearly dead body.
What led to the heightened anxiety on the part of the police, and the situation that cost Hill his life was, in part, a notice put out by the BATF, in late April 1995, shortly after the Oklahoma City Bombing. The incident just described above occurred on June 28, 1995.
REQUEST NATIONAL BROADCAST
FM: BUREAU OF ALCOHOL TOBACCO AND FIREARMS,
TO: ALL FEDERAL, STATE AND LOCAL LAW ENFORCEMENT AGENCIES
SUBJ: WARNING TO ALL LAW ENFORCEMENT PERSONNEL:
ATF INTELLIGENCE INFORMATION SUGGESTS THAT THE OKLAHOMA CITY BOMBING MAY HAVE HEIGHTENED PARANOIA LEVELS AMONG VARIOUS MILITIA GROUPS ACROSS THE UNITED STATES.
INFORMATION SUGGESTS THAT THIS BOMBING MAY BE SEEN AS A “STAGED TERRORIST ATTACK” BY THE FEDERAL GOVERNMENT AS PART OF AN OVERALL PLAN TO DECLARE MARITAL[sic] LAW AND SUSPEND THE CONSTITUTION. IN ADDITION, MANY OF THESE MEMBERS FEEL THAT AN ATTACK ON THEM IS IMMINENT AND HAVE ALREADY GONE INTO ALERT STATUS.
THESE GROUPS HAVE BEEN KNOWN TO MOBILIZE AND ARM THEMSELVES FOR THE PURPOSE OF OBSTRUCTING LAW ENFORCEMENT ACTION AGAINST OTHER MILITIA MEMBERS. DUE TO THIS, ALL LAW ENFORCEMENT PERSONNEL ARE WARNED TO TAKE EXTREME CAUTION WHEN CONTACTING ANY KNOWN MILITIA MEMBERS OR AFFILIATES.
FOR ADDITIONAL INFORMATION REGARDING THIS WARNING, OR TO PROVIDE ANY FURTHER INTELLIGENCE REGARDING THE CONTENT OF THIS MESSAGE, PLEASE CONTACT THE ATF ENFORCEMENT OPERATIONS CENTER AT 1-800-659-6242 OR
RESPOND VIA NLETS
My Preliminary Report on the Death of Michael Hill explains the circumstances and why I came to the conclusion that the anxiety created by the BATF “Warning” was a contributing factor to the overly aggressive law enforcement action.
Within the context of the potential consequences of heightened fear, or anxiety, let’s look at just how that likely played a role in the recent events in Oregon.
Brandon Rappolla, an OathKeeper, was with Brandon Curtiss in November 2015, and, like Curtiss, indicated that he supported Harney County Sheriff David Ward, in whatever decision he made and did not support Ammon Bundy. However, in a January 9, 2016 Reuters News Article, Rappolla, even though he stated that he still didn’t support Ammon’s operation, gave him a “small roll of bills”. Since not publically supporting Ammon, this material support may have been intended to assure continued communications with Ammon.
Within a few days of the occupation of the Refuge, Joe Rice, Pacific Patriot Network and head of the Josephine County OathKeepers, reported to a Sheriff’s Deputy that Ammon’s people had “crew served weapons” (machine guns) and plenty of ammunition. That was certainly reported up the chain. This could explain why the purported original plan to raid the Refuge was abandoned by the feds.
So, by the end of the first week of the occupation of the Malheur National Wildlife Refuge, OathKeeper members cozied up to Ammon Bundy and his people, while they publically expressed that they did not support the operation, and simultaneously provided intelligence to law enforcement (however incorrect) regarding the armament of those in the Refuge. Of course, this report to the Sheriff and his deputies surely had the effect of creating some apprehension (fear) on the part of law enforcement, including the FBI.
So, was anything done by the OathKeepers that heightened the apprehension (fear) in the minds of the occupiers? Let’s look what OathKeepers had to say on January 5, 2016, just three days after the patriots settled in at the Refuge. OathKeepers posted the following statement on their Facebook page and the OathKeepers website.
“Oath Keepers has received very credible information from an active duty source within the special operations community that at least one SOD-X unit under the command of Joint Special Operations Command (JSOC) has been tasked for this standoff at the Malheur Wildlife Reserve and moved to the area. Given this, we should expect that other special operations assets, such as Delta Force… And we should expect the presence of the infamous FBI HRT (which were present at both Ruby Ridge and Waco).”
So, those in the Refuge went on alert, preparing for the worst, but determined to fire back, if fired upon. Can we doubt that there was a bit of apprehension (fear), especially considering the named opposing forces?
So, now, both sides were in a state of increased anxiety. Those inside of the Refuge were willing to negotiate, and wanted someone with legal authority to respond to the “Redress of Grievances” that they had provided to all interested parties who wished a copy, including Sheriff Ward and the FBI.
On the other side, the FBI and the Sheriff took what appeared to be a passive stand, allowing those inside to travel freely, eventually encouraging a degree of complacency, which was quite apparent on January 26 when they encountered the ambush on US Highway 395, which resulted in the murder of LaVoy Finicum.
However, we have only touched the surface of things. It was apparent that Sheriff Ward, probably acting under the instruction of the FBI, tried to talk those inside the Refuge into leaving, even offering safe conduct to another county or the state line. There is no doubt that the government wanted the focus taken off the Refuge lands, and there is equally no doubt that the occupiers knew that holding the land would guarantee attention to address their concerns over federal land practices.
On January 24, 2016, Jason VanTatenhove, Todd Engle, and Stewart Rhodes called LaVoy Finicum to discuss the situation, in a recorded broadcast (mp3 – 15:21). Their discussion began with the subject Constitutional Sheriffs, but led into a discussion of Sheriff Ward’s failure to perform his job, thereby leaving that responsibility to the people, themselves. The failure being the Sheriff’s unwillingness to intercede in the federal re-arrest of Dwight and Steven Hammond.
Jason seemed to support the actions of those in the Refuge, though he suggests that it should only be tried where there is already a Constitutional Sheriff. Stewart appeared to agree, (and I paraphrase) that LaVoy must find the right county, with the right Sheriff, before he should do something like this.
Stewart then expressed concern for what might be coming to the Refuge, in terms of government force being used against the occupiers — suggesting that the women and children should be removed. He follows up by saying that he believes the government might “drop the hammer”, suggested again, that they should leave Harney County. He continues to suggest that they move, even to a private ranch in Harney County. It appears that Stewart’s objective was to get them to move off of the Refuge, which is exactly what the government wanted to happen. He also says that Idaho III% and PPN are doing an excellent job in handling the field (in Burns only), which shows the close working relationship between PPN, Idaho III%, and OathKeepers. LaVoy said very little, and it seemed that that this was just Stewart’s show.
According to the OathKeepers article, the next conversation with LaVoy, was shortly after the above radio show aired.
After that show, there was another private call (mp3 – 13:40) to LaVoy, from Jason, Todd, and Stewart. Stewart was very direct in suggesting that those in the Refuge make a “lateral move” to a strong county. This, of course, would be exactly what the government wanted — get them off of the Refuge in order to arrest them. He tells LaVoy that the government is getting ready to “move on [them]”. So, was Stewart in the loop with the feds, or was he simply trying to scare LaVoy? Now, this is the second time that the OathKeepers have told those in the Refuge that they were going to be facing the feds, eminently. Todd explains that even the day before, when he was at the Refuge, that he told them that they had to move out, that force would be coming. Todd then assured LaVoy that some “seriously armed dudes” would be there to aid them. We must wonder where those “seriously armed dudes” were, two days later when the Refuge needed all of the manpower that it could get. Again, armed support is offered if they are willing to leave. We simply have to wonder if they would be turned over by the armed escort, directly into the waiting hands of the FBI.
Bearing in mind that a “lateral move”, as proposed by OathKeepers, would have satisfied the fed’s primary goal, was the OathKeepers’ plan to get them make the “lateral move” off of the Refuge an effort to avoid bloodshed, or to firm up their working relationship with the feds?
If OathKeepers reported back to the feds that there was going to be no “lateral move”, did that result in the fed’s alternate plan of the ambush on US 395?
So, we come to the ambush. With what has been presented, there is little doubt that the Oregon State Police (OSP), based on the FBI briefings, began their role in the ambush full of apprehension (fear). In their minds, the possibility of a machine gun in the back of LaVoy’s truck was not outside of the realm of possibility to them. When the truck finally stopped, stuck in the snow, an FBI agent fired two shots. If the OSP officers realized that they didn’t fire the shots (there were only three OSP officers in position to deal with LaVoy), did those two shots, one of which entered the roof of the truck cab, heighten their apprehension? And, if so, were they more likely to minimize risk to themselves by shooting LaVoy in the back?
Some questions that warrant answers:
- Just how much information from the Refuge did OathKeepers pass on to the government?
- Was OathKeepers playing on the side of the government from the beginning?
- Who benefited most from the actions of the OathKeepers?
- Were OathKeepers intentionally trying to get those on the Refuge to abandon that site to facilitate their arrest?
- Were their reports to the government intended to generate apprehension?
- Did the actions of OathKeepers contribute to the circumstances that led to LaVoy Finicum’s death?
So far, ten of those charged in United States v. Ammon Bundy, et al, have pled guilty, and the eleventh is soon to follow. They are, as follows:
- Jason Blomgren (Joker J), pleaded guilty to a federal conspiracy charge.
- Brian Cavalier (Booda), pleaded guilty to a federal conspiracy charge and a charge of possessing firearms or dangerous weapons in a federal facility.
- Blaine Cooper, pleaded guilty to a federal conspiracy charge.
- Travis Cox, pleaded guilty to a federal conspiracy charge.
- Eric Flores, pleaded guilty to a federal conspiracy charge.
- Wesley Kjar, pleaded guilty to a federal conspiracy
- Corey Lequieu, pleaded guilty to a federal conspiracy charge.
- Joseph O’Shaughnessy, pleaded guilty to a federal conspiracy
- Ryan Payne, pleaded guilty to a federal conspiracy charge.
- Geoffrey Stanek, pleaded guilty to a federal conspiracy charge.
- Jon Ritzheimer, scheduled to ple
So, why are they pleading? Is it because they really think that they are guilty?
Most, if not all, of those above have been “intimidated” or “threatened“, by federal prosecutors, either directly, or through their appointed counsel, that a Terrorism Enhancement could result in a sentence of 30 years, possibly for each count.
For a little background, over twenty years ago, I reported on a trial (see below) that I would eventually learn to be one where the Federal Sentencing Guidelines had brought into our judicial system something that was very foreign to the system of justice, as implemented by the Founders. Perhaps it would be beneficial to begin with an understanding of the judicial system that was intended, based upon many centuries of evolution in the British Common Law.
The English Constitution, even before the Magna Carta (1215 AD), began evolving in 1080 AD, and was also the beginning of a legal evolutionary process that sometimes went backwards, but most often went forward, in an effort to provide justice rather than blind obedience to laws. It was the English Common Law that was the foundation of jurisprudence for the Founders.
This foundation is evidenced even in current statutes, such as Florida Statutes (2015), where we find:
2.01 Common law and certain statutes declared in force.—The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.
We can also look to the Maryland Constitution (2008), which provides, in its Declaration of Rights:
Art. 5. (a)
(1) That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that Law, and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six; and which, by experience, have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Law or Equity…
In the same Declaration of Rights, we also find:
Art. 23. In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.
Now, the Maryland Constitution predates the United States Constitution, as it was first ratified by the People on November 11, 1776 – over a decade before the Constitution. Clearly, the understanding (original intent) of the Maryland Constitution and the United States Constitution were predicated upon those laws that then existed, and definition, or intent, of the words used, were as they were understood at the time. Absent a lawful change of definition, those definitions and intentions are still the body of the law and should be recognized as such.
Also true of the Common Law, at that time, and remember, the intention is still the same, is that a jury determines law and fact. However, there is one more aspect that comes into play. The jury also imposed the sentence, as they were the judge of facts, those which determined the severity of the crime; the law, what was intended and the extent applicable to the case at hand; and, by combining the two, would determine the sentence to be imposed, if the accused were found to be guilty.
For instance, if there were two assault cases, and one was minor, in that only a few bruises were the result, could it possibly be compared with, and judged, with the same severity of punishment if the victim were left bloody and unconscious on the ground?
This would also go to intent; If one knowingly, and provably, disobeyed a law, and his intentions were for personal gain, the punishment should be more severe than if one broke the law, with no malicious intent, and was not even aware that he was breaking a law. The former should have a harsh sentence, while the latter should have a lighter sentence, if any punishment, at all.
Even if that decision were left to the Court, the facts, and the circumstances, etc., should be paramount in determining a just sentence for any crime.
In support of the concept, though not the application, because that responsibility has been usurped by the courts, we find, in 18 U.S.C. § 3553: Imposition of a sentence:
(a) Factors To Be Considered in Imposing a Sentence. – The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider –
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed –
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense…
The United States Sentencing Commission, “an independent agency of the judicial branch of the federal government of the United States”, was created by the “Sentencing Reform Act”, part of the “Comprehensive Crime Control Act of 1984”. There are seven voting members on the Commission, appointed by the President and confirmed by the Senate, and serve six-year terms. At least three of the commissioners must be federal judges, and no more than four may belong to the same political party. The United States Attorney General or his designee and the chair of the United States Parole Commission sit as ex officio, non-voting members of the Commission.
This, then, constitutes an extra-constitutional “commission” that has taken the imposition of penalty away from the discretion of the judges (who had taken it from the jury) and made an arbitrary, though somewhat flexible, micro-management of sentencing. That flexibility, however is most often used against the accused — for the benefit of the prosecution.
The intention of the Act was to standardize sentencing, simply a form of incorporating federal control to a micro-management level. It was expressed as “necessary to remove the judge’ discretion in sentencing”.
So, back to twenty years ago, when I was covering, though from a distance, the Trial of the Branch Davidians. I received a copy of a letter sent by Sarah Bain, Jury Foreperson in that trial, to the Judge, Walter Smith, that presided over the trail. In the letter, she expressed concern over some of the verdicts that had been found by the jury.
To verify the letter as having come from the Jury Foreperson, I contacted Sarah to discuss the letter. During our discussion, we also spoke of the automatic weapons the government alleged that the Davidians had. She told me that the jury found no evidence that automatic weapons were used, or even present at Mt. Carmel; we were not aware of the sentencing, just a few days before. I wrote this article, based upon that conversation.
When I heard of the sentencing, by Judge Smith, I was appalled by the sentences handed down, though I had no idea, at the time, of what “enhanced sentencing” meant. The sentencing, as reported by the Los Angeles Times on June 18, 1994, with regard to sentencing, states:
“Under mandatory sentencing guidelines approved by Congress, the weapons charge–carrying a weapon in the commission of a violent crime–is punishable by a maximum of 30 years in prison. At the request of prosecutors and over the objections of defense attorneys, Smith imposed the maximum sentences on grounds that automatic weapons, the most destructive kind, were involved.”
This added ten years to the sentence of five of the defendants, though the “fact” that it was based on was not a “fact”, at all, as determined by the jury. This is a circumvention of the Constitution, and is more akin to the backward sliding of the British Common Law, over the centuries, when the king determined that he was above the law. It appears that, now, the government appears to consider itself above the law, by developing means to circumvent that which so many have fought and died for.
However, when I began researching for this article, I found that the Branch Davidians, specifically James Castillo, had pursued this injustice to the United States Supreme Court (Castillo, et al. v. United States 530 U.S. 120 (2000)). The Court decided, not so much on sentencing, rather on the wording of the statute, that the enhancement was not within the purview of the District Court judge to decide what had not been found by the jury. The statute uses the term “use” of a firearm, where the jury found no such fact to be true. So, the case was remanded and the sentences reduced accordingly.
This then, begins to touch on the whole aspect of the United States Sentencing Guidelines (USSG), though it does not get to the heart of the matter.
* * *
Now, the events in Burns, Oregon evolved out of the persecution of Dwight and Steven Hammond. They had performed a controlled burn, the fire got out of hand, and burned 126 acres of public lands before they managed to put the fire out. Then, when the government set their own fire, supposedly a controlled burn, that had gotten out of hand, and threatened the Hammond’s ranch and home, they set a backfire that spread onto public land, though it kept the fire from burning down their home and outbuildings. They were charged under a statute that was enacted with the intention of prosecuting those who set fires, with terrorism as an objective. Though that was not the case with the Hammonds, and was not brought up at trial, they will serve five years in prison, without any enhancement. The Statute was enacted to punish terrorists, not to punish ranchers who carried on practices that have been carried on for centuries, those same practices also being carried on by government agencies. This is truly a perversion of the intent of the law, but not, in the least, the application of “enhancement sentencing”.
Instead, probably more subject to an overarching attitude in Congress that they can prevent crime by enacting laws, though with wording that allows the Justice Department to interpret those laws well beyond the intent of the Congress.
* * *
The accused parties in United States of America v. Ammon Bundy, et al, are charged with, among other charges, in Count 1 of the Indictment, violation of 18 U. S. Code §372, to wit:
If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both.
The question arises, then, of just who, what person or persons, were intimidated or threatened by those that had moved in to the Malheur National Wildlife Refuge? Can it be a threat or intimidation if there is no person that was directly threatened or intimidated?
They were also charged (in an effort to be vindictive), as appears to be true based upon Count 3, violation of 18 U. S. Code § 924(c)(1)(A), to wit:
(c) (1) (A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime.
However, on a Motion by David Fry’s attorney, the judge dismissed this effort as adding an inappropriate charge, since the statute addresses “violence“, though there was never any violence perpetrated by any of the defendants.
So, it appears, being the poor losers that they are, the government has decided to seek a “Terrorism” enhancement, but we will address that more, later.
So, what are these “terrorism enhancements”? Shane Harris, Author and journalist, has written an article for the National Journal explaining the abuse of the “enhancement” aspect of the Sentencing Guidelines. It is worth the time to read, to fully understand how “enhancement” has become a tool of government, to be used to force plea agreements and to punish those who might refuse to plea, wasting the Court’s time with a jury trial.
However, we must move forward to understand what has happened since 1984, and the dismal attempt of the government to continue to allow the judge to sentence, though to restrain him by micro-management.
In 2004, the Supreme Court ruled, in Blakely v. Washington 542 US 296 (2004),
“The Washington Court of Appeals affirmed, rejecting petitioner’s argument that the sentencing procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence.”
The Court held that
“Because the facts supporting petitioner’s exceptional sentence were neither admitted by petitioner nor found by a jury, the sentence violated his Sixth Amendment right to trial by jury.”
The following year. the Supreme Court decision in United States v. Booker 543 US 200 (2005), begins to give us an idea of the judicial abuse. This case made clear that unless the jury determines a fact, any enhancement, absent that jury’s determination, cannot be applied under the Guidelines. This is based upon the protection afforded by the Sixth Amendment to the United States Constitution.
However, in a dissenting opinion, not on the jury aspect, the late Justice Scalia made a rather interesting observation with regard to the Sentencing Guidelines (remember, these were implemented to standardize sentencing and remove the judge’s discretionary sentencing), when he said, “In order to rescue from nullification a statutory scheme designed to eliminate discretionary sentencing, it discards the provisions that eliminate discretionary sentencing.”
Now, I don’t know how comprehensive the first USSG was, but I do know that the 2015 version is 599 pages. I have been studying it for the past few days, and I can see that it is convoluted and almost incomprehensible. But, don’t take my word for it. Here is what the Court said in a 2016 decision (Molina-Martinez v. United States No. 14-8913):
“The Federal Sentencing Guidelines first enter the sentencing process when the United States Probation Office prepares a presentence report containing, as relevant here, an advisory Guidelines range based on the seriousness of a defendant’s offense and the extent of his criminal history. A district court may depart from the Guidelines, but it “must consult [them] and take them into account when sentencing.” Given the Guidelines’ complexity, a District Court’s use of an incorrect Guidelines range may go unnoticed.”
So, after 22 years, it is acknowledged that this effort at micro-managing justice has failed, dismally. To top that off, since 2005, over the course of the past 11 years, Sentencing Guidelines have been heard by the Supreme Court in 105 cases. Perhaps such a tangled web that it will never be fully extricated from the dismal depths to which it belongs.
Now, back to Oregon. It has come to light that the prosecution, in some emails to defense attorneys a few months ago, that “terrorism enhancements” might be applied to the defendants, if they should go to trial. About a month ago, this same subject (threat) came to light in some Internet discussions.
Since none of the charges brought against the defendants either reference or are part of terrorism statutes, it is difficult to think that the jury could possibly create, on their own, such a charge. They can only judge those charges brought against the defendants.
This, however, might warrant some edification. The Sixth Amendment, along with other protections against oppressive, arbitrary, or tyrannical, government, provides that:
“In all criminal prosecutions, the accused shall… be informed of the nature and cause of the accusation…”
Now, those “accusations”, supported by an Indictment by a Grand Jury, make no mention of “terrorism”. Only those counts still remaining (absent Count 3) are the accusation. No reasonable person could conclude that additional charges can be brought during trial, or even at sentencing. Any defense offered by the Defendants can only be based upon the original charges, and not some conspiratorial chicanery by the Prosecution.
So, why is it that the prosecution, this extensive battery of well paid government attorneys, has endeavored to intimidate defendants into pleading (plea agreement), for fear that additional time might be added to their sentences, should they waste the government’s time by going to trial and seeking justice, from a jury?
Is it really justice when the government uses chicanery (The use of trickery to achieve a legal purpose.), “intimidation, or threat“, to entice the defendants to reject the judicial process envisioned to protect them, in favor of avoiding the wrath of the government? Those two words, “intimidation” and “threat“, are, after all, what the Defendants are charged with being in violation of.
Now, since Count 1 describes the action, “conspire to prevent, by force, intimidation, or threat, any person from”, we know that the government perceives this as criminal in its nature. So, is that criminality universal, or is it simple a tool of government to force compliance, also referred to as tyrannical or despotic.
So, the government prosecutors, along with perhaps the judicial branch and the Defendants appointed counsel, have “conspire[ed] to prevent, by force, intimidation, or threat, [those] person[s] from” exercising their right to due process of law.
So, it appears that the government has immunity when they conspire to use intimidation and threats, the very crime that the Defendants are charged with. Now, can we possibly consider that justice grants the government the ability to do what the Constitution does not specifically authorize them to do, while punishing people, coercing confessions (plea agreements), when nobody was harmed?
Or, has the government decided to enact laws, rules, and even policies, that deny the justice that had been established over centuries, circumventing the Constitution, in favor of giving themselves absolute control over our actions?
As some of those staunch defenders of our rights, in both Burns, Oregon, and Bunkerville, Nevada, decide to make a plea agreement with the prosecutors, the Internet has both armchair quarterbacks damning them and sympathetic supporters who will stand by their decision. However, perhaps it is necessary to look a little deeper into who those people, at both the Ranch and Refuge are, and to consider their respective objectives.
We can categorize those who participated in both events by comparing them to those who stood up against the British, 240 years ago. In so doing, there are three general categories, so that we can consider them in a contemporary context.
The first category is, for want of a better term, the politicos. Historically, these would be those who served on local and Provincial Committees of Safety and, those who went to Philadelphia and served in the Continental Congress. There may be others, such as newspaper editors and others who were outspoken against the British, so that we can lump them into this category, as well.
Now, in the past two years, we have, likewise, the politicos, those whose involvement is to challenge the government concerning both rights and that which should be right. Their objective is educational as well as political, desiring to provide understanding to other citizens as well as to attempt to get the government to stay within its limits and to remain obedient to the Constitution.
The second category is those with military inclinations. For the most part, they had prior military and leadership experience in the French and Indian wars. Their purpose was to use military force to protect the rights of Englishmen and defend against forces thrown against them.
In the contemporary context, it would include those with military and leadership experience who have taken the task of protecting those politicos against attempts at violent suppression of their right to seek redress of grievances and to speak freely on subjects of concern to others.
These first two categories can easily be equated to the First Amendment, for the politicos, and the Second Amendment for those with military inclinations.
The third category is those who offer support, which would include those lesser military types (enlisted men) or those who provided food, blankets, firewood, and other necessities to those in the other two categories. They were more than simply vocal supporters. They acted to support those who were defending their rights.
In both events, we also have members of this third category, whether it was by standing guard, cooking, doing laundry, reviewing documents, or any other necessary support activities. They served with actions, not words.
Those men of words, those politicos, were the most feared by the British government. John Hancock and Sam Adams, for example, were exempt from the amnesty offered early on as the Revolutionary War began. They were also secondary targets in the British march to Lexington and Concord.
Today, we see those men of words (not the armchair sort) not even being considered for plea agreements. They are the most feared, and the government will do all that it can to silence them. They cannot be flight risks, as they have homes, businesses, and families that tie them to an open life. Now that the game is on, they are committed to presenting their case, even though they know that the odds are against them when the judicial branch (court) and the executive branch (prosecutors) gang up against them; suppressing communication, disrupting them in jail, and doing their best to deny communication with those who might be able to help them. It was only after more than five months that the Court decides that the co-defendants could communicate with each other to prepare their defense. These patriots will not plead out, as they are on the proper battlefield, even though disadvantaged, to fight their war of words and principles, and for our Constitution.
Next, we have the militarily inclined participants. Their job was to protect the politicos. At the Bundy Affair, many of those who had been on the Ranch remained on the Ranch to protect the Bundy family, home and property, as their assigned duty. They did not participate in the Unrustling of April 12, 2014. They did not abandon their mission. They stayed at their duty station, as they should. Others, who had only arrived on the 12th chose to defend and protect those mostly third category people who had come to demonstrate their support for the Bundy cause.
In Burns, the protection and defense were carried on throughout the possession of the Refuge. Unfortunately, failure to plan against an ambush resulted in some of them being caught in an indefensible situation. This resulted in the arrest of some of the people and the death of LaVoy Finicum.
It is among this group that we see some entering into plea agreements with the government. However, taking a plea agreement doesn’t necessarily jeopardize the politicos or other military types. The fact that they pled is not admissible in the subsequent trials. Only if they choose to abandon any integrity will they turn state’s evidence and testify against the others. Those, only, will become a pariah — and no longer reasonably able to consider themselves as patriots.
But, still, we have the dilemma that is the subject of this article. By pleading, have they given up their principles and their integrity?
George Washington won against the British by doing his utmost to be able to “fight another day”. Though a prisoner of war may be a burden on the enemy, it is worse when that fighting man is lost to the cause that they champion. If the prisoner of war can escape, he can rejoin the battle.
As explained in Terrorism Enhanced Penalties v. Due Process, they were facing what they believed to be a possible sentence of thirty years under the threat of terrorism enhancement. Their appointed attorneys conspired with the prosecutors and the court to intimidate them with the threat of thirty years in prison. That would put them in their fifties, or older, and would probably preclude them from “fighting another day”.
However, by pleading out, they will be back on the streets in a few years. At that time, they can rejoin the battle, if they so choose.
Now, they do, according to the current interpretation of the “felon in possession of a firearm” laws, give up their right to possess firearms. However, there are two circumstances that would negate that prohibition.
First is another battle, being fought since October 2014, when Kevin “KC” Massey, acting as both a politico and in a military capacity, was charged with “felon in possession of a firearm”. Massey was legally in possession of a firearm, under Texas Revised Statutes. This was at odds with the federal charge brought against him at that time. He has chosen, as a politico, to fight the battle of words. Though he was convicted and is now in prison, he and his attorney, Phillip T. Cowen, are preparing an appeal that will challenge the federal interpretation of 18 U. S. Code § 922 (g)(1). If he prevails, then the statute will only apply to those involved, directly, in commerce, whereby the firearm crosses state or international boundaries. Once out of commerce, it could be lawfully possessed.
Second is rather simple and easily understood. If we come to open conflict with the government, because of their abrogating their lawful responsibilities under, and usurping authority never granted them by the Constitution, we will all be enforcing the right to keep, bear, and use, arms. That prohibition then becomes moot.
Now, as to the third category, there is nothing to be said. They are free to choose to join the legal battle, or plea so that they can return to their role much sooner — should the government prevail at trial.
Now, let’s change the perspective to a more realistic and individual one. I might be considered among the first group, the politicos. When I was younger, I found myself holding a firearm in protecting rights, though I never found cause to use them. I have also been encouraged to use the sword of words, the Pen, as I have been doing since Waco.
If I found myself in the circumstances that those patriots have found themselves in, I can only speculate what course I would take. If I chose to take a chance that the courts in this country can serve justice, and I lost — facing thirty years — well, my children are grown but then I would be 100 years old when I got out (I would probably die in prison). Of course, in prison, I would still have access to a keyboard, so I could continue to wage the battles that I now wage, though access to events would be severely limited. However, if I could get out after only a few years, I could remain a part of the patriot community, and quite possibly continue pretty much as I have for the past few decades.
However, if I were younger, the considerations would be different from what I would face, now. If I had young children, would I be willing to forgo helping and watching them grow? With thirty years, I would miss the birth of my grandchildren. When I consider what is most important to me, it is family, then country, to which I have made my commitment. So, unless and until I find myself in that circumstance, I can honestly say that I can only guess at what choice I would make.
Now, back to those who have chosen to plea. I don’t wear their shoes, and I am grateful for that. I am also grateful for them, as they did what had to be done, when it had to be done. Not many of us can say that we, too, did what had to be done, when it needed to be done.
Nor do I wear your shoes, so I will not partake in speculation as to what you would, or should, do if you found yourself in such a situation as they have. First, most who will read this have not taken a single step in that direction. Second, your particular circumstances, especially with your family, are an unknown to me. I can only say that so long as you did not turn state’s evidence, I would respect your decision, as you, not I, have to live with it.
The government may have given the Grand Jury sufficient information to properly find “probable cause”. It is also possible that they may have simply convinced the Grand Jury to find “probable cause” based upon explaining to them that they had given them enough information for them to indict the 26 people charged in the final (third) Grand Jury Superseding Indictment. We will be looking at the Indictment, Case Law, the Grand Jury selection process, and the information provided to the Grand Jury.
Now, this case is being heard in the Oregon Federal District Court. That Court is within the jurisdiction of the Ninth Circuit Court. So, what better source to determine if the Indictment meets the standards set by that Ninth Circuit Court?
Case Law & the Indictment
To do so, let’s look at an Appellate Decision, held by the Ninth Circuit, in Cecil v United States 608 F.2d 1294 (1972). The case had to do with some people charged with conspiracy, to wit:
“That beginning on or before July, 1975, and continuing thereafter until on or after October, 1975, in the District of Arizona and elsewhere, LEONARD SILAS JOHNSON, FELIX DAN CECIL, DONALD LEE SCHAFFER, IVA LEE THUNDERCLOUD, LYNN RICHARD JOHNSON, RANDY DARRELL THOMAS, WARREN ARTHUR HAGGARD, KENNY ROBERT JAMES, SILAS BLAINE JOHNSON, TONY JOHNSON, and LIONEL JOHNSON, named herein as defendants, did knowingly and intentionally conspire and agree together and with each other and with various other persons both known and unknown to the Grand Jury to commit offenses in violation of Title 21, United States Code, Section 841(a)(1).
It was the object of said conspiracy that one or more of the co-conspirators would possess with intent to distribute and would distribute quantities of marihuana, a Schedule I controlled substance, in violation of Title 21, United States Code, Section 841(a)(1).”
Now, the Burns Indictment reads similarly:
“On or about November 5, 2015, and continuing through February 12, 2016, in the District of Oregon, defendants AMMON BUNDY, JON RITZHEIMER, JOSEPH O’SHAUGHNESSY, RYAN PAYNE, RYAN BUNDY, BRIAN CAVALIER, SHAWNA COX, PETER SANTILLI, JASON PATRICK, DUANE LEO EHMER, DYLAN ANDERSON, SEAN ANDERSON, DAVID LEE FRY, JEFF WAYNE BANTA, SANDRA LYNN ANDERSON, KENNETH MEDENBACH, BLAINE COOPER, WESLEY KJAR, COREY LEQUIEU, NEIL WAMPLER, JASON CHARLES BLOMGREN, DARRYL WILLIAM THORN, GEOFFREY STANEK, TRAVIS COX, ERIC LEE FLORES, and JAKE RYAN did knowingly and willfully conspire and agree together and with each other and with persons known and unknown to the Grand Jury to prevent by force, intimidation, and threats, officers and employees of the United States Fish and Wildlife Service and the Bureau of Land Management, agencies within the United States Department of the Interior, from discharging the duties of their office at the Malheur National Wildlife Refuge and other locations in Harney County, Oregon, in violation of Title 18, United States Code, Section 372.“
Now, back to the Cecil v. United States Appellate Decision, and the requirement for specificity. What follows are direct quotes from the Decision, and the reasoning for dismissing the Indictment (reversing the lower court’s ruling).
The appellants all raised timely challenges to the indictment proffering motions to dismiss based upon the indictment’s insufficient factual precision. The trial judge recognized the validity of these claims, commenting that, “this sort of indictment goes far beyond the leeway afforded by the Ninth Circuit.” However, initially indicating that the requested bill of particulars would remedy the indictment’s defects and later deciding that the Government’s “open file” discovery did remedy these problems, the court denied appellants’ motion to dismiss.
Now, in Burns, we have seen the “open file” discovery, however, the files are not really open, especially to the public. However, the judge did not dismiss the Indictment. Don’t be discouraged. Returning to Cecil:
We begin our analysis stating the established rule that a bill of particulars cannot save an invalid indictment. The very purpose of the requirement that a man be indicted by a grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge. If a bill of particulars were allowed to save an insufficient indictment, the role of the grand jury as intervenor would be circumvented. Rather than the assurance that a body of fellow citizens had assessed the facts and determined that an individual should face prosecution, the prosecutor would be in a position to second guess what actually happened within the grand jury and fill in the gaps with what he assumed transpired. The protection of a significant check on the power of the courts and prosecutors would thus be lost.
In Burns, motions had been submitted for a Bill of Particulars (a bill of particulars is a detailed, formal, written statement of charges or claims by a plaintiff or the prosecutor given upon the defendant’s formal request to the court for more detailed information), but those motions were denied. However, if they had been granted, they would still not make up for the lack of specificity in the Indictment.
This inquiry must focus upon whether the indictment provides “the substantial safeguards” to criminal defendants that indictments are designed to guarantee. Pursuant to this purpose, an indictment must furnish the defendant with a sufficient description of the charges against him to enable him to prepare his defense, to ensure that the defendant is prosecuted on the basis of facts presented to the grand jury, to enable him to plead jeopardy against a later prosecution, and to inform the court of the facts alleged so that it can determine the sufficiency of the charge. To perform these functions, the indictment must set forth the elements of the offense charged and contain a statement of the facts and circumstances that will inform the accused of the specific offense with which he is charged.
The Prosecutors admitted that as of April 20, 2016, “the government has produced eleven volumes of discovery that comprise approximately 25,000 pages of documents, 58,570 files, and over 360 gigabytes of data. The government continues to produce discovery in multiple formats including .pdf, text files, tiffs, etc.” However, rest assured that within those voluminous records, there just might be some substantial proof that crimes were, or may have been, committed. It seems, however, that the Court and the Prosecution have left it up to the Defendants, not the Grand Jury, to determine if there really was a crime committed. Returning to Cecil:
The present indictment is a rather barren document. Aside from tracking the language of the pertinent statutes in setting out the elements of the offenses with which defendants were charged, the indictment makes only two specific allegations concerning the conspiracies. It states that the conspiracies occurred in Arizona, Mexico, and elsewhere and offers the names of some of the alleged co-conspirators. The indictment fails to state any other facts or circumstances pertaining to the conspiracy or any overt acts done in furtherance thereof. More importantly, the indictment fails to place the conspiracies within any time frame. The language “beginning on or before July, 1975, and continuing thereafter until on or after October, 1975,” is open-ended in both directions.
The Indictment in Burns is equally a barren document. It is equally void of definitive dates, using the generality of a range, as in Cecil.
For example, when, how, and who, should be applied to the broad statement from the Burns Indictment,
to prevent by force, intimidation, and threats, officers and employees of the United States Fish and Wildlife Service and the Bureau of Land Management, agencies within the United States Department of the Interior, from discharging the duties of their office at the Malheur National Wildlife Refuge and other locations in Harney County, Oregon, in violation of Title 18, United States Code, Section 372.“
When, and upon whom, did they use force? When, and upon whom, did they use intimidation? When, and upon whom, did they use threats?
If I kill someone, they have to, at least, say who I killed. If I rob a bank, they would have to say which bank I robbed, and what I robbed the bank of. There is nothing in the Indictment that provides any particular situation upon which the defendants can build a defense. It is nothing more than a thought crime, and the thoughts are solely within the minds of the Prosecutors. And, they have implanted that thought into the minds of the Grand Jurors, without sufficient substance to meet the requirements of the Ninth Circuit Court.
So, here is what the Ninth Circuit said:
In view of these deficiencies, we find that the indictment fails to allege sufficient facts to facilitate the proper preparation of a defense and to ensure that the defendants were prosecuted on facts presented to the Grand Jury. This indictment clearly lacked a statement of the facts and circumstances that would inform the accused of the specific offenses with which they were charged.
To allow a prosecutor or court to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection that the grand jury was designed to secure, because a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury that indicted him… The glaring lack of factual particularity of this indictment thus runs afoul of two key functions of indictments.
Similarly, the fact that an indictment may have tracked the language of the statute will not render it valid if it fails to allege an essential element of the offense or the minimum facts required to fulfill the purposes of indictments.
The requirement that an indictment contain a few basic factual allegations accords defendants adequate notice of the charges against them and assures them that their prosecution will proceed on the basis of facts presented to the grand jury. Such a requirement is neither burdensome nor unfair to the prosecuting authorities.
The Grand Jury Jurors
Now, a number of efforts have been made, by filing motions, for some of the Defendants to review both the Grand Jury Selection Process (Jury Wheel), and the transcript of the Grand Jury deliberation. The transcripts would the evidence and testimony submitted to the Grand Jury, to determine if the deficiencies, as outlined in Cecil, exist. Those motions have been denied.
It is a rather long and interesting chain of events that led to the pursuit of the Grand Jury information, and is worthy of note. Strangely enough, it begins in a prison in Texas where Kevin “KC” Massey is currently incarcerated. I had been keeping Kevin up to date on the Burns story, via telephone and mailing copies of my articles. Kevin, having plenty of spare time, ran across a book of motions by the renowned F. Lee Bailey. In so doing, he ran into challenges to the Grand Jury. He gave me the citations, which I passed on to Roger Roots. Roger, then in touch with Ryan Bundy, prepared a motion (481) that was filed, pro se. And, that is how this wonderful ball began rolling, hopefully, right over the Grand Jury, the Indictment, the Prosecutor, and the judge.
Then on May 11, 2016, Teresa D. Glover, Jury Administrator for the U.S. District Court for the District of Oregon filed a Declaration (doc 538), which doesn’t satisfy the legal requirements as set forth in Ryan Bundy’s motion (481). So, let’s look at that “Declaration” (that also includes the “Juror Management Plan” – JMP) and see if the intent was to provide an impartial jury, as required by the Sixth Amendment. [Note: “538-nn” is reference to the PDF page number in the 28-page Declaration document.]
Now, we need to look at the Jury Management Plan (JMP) to see what is required, and maybe a bit of confusion.
Section 1.04 Policy (538-8)
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…
Now, how do we provide “a fair cross section” unless the jury is selected from, primarily, from the division, not from the district? Especially when you consider how diverse the two divisions are.
Then, we have:
Section 1.11 (b) Systematic Randomized Process: (538-12)
… Such random selections of names from the source lists for inclusion in the master wheels by data computer personnel must ensure that each county within the jury division is substantially proportionally represented in the master jury wheel…
Well, the way it reads, and this is where confusion might come into play, then the whole of the state, any Grand Jury, is at the mercy of those in Portland, as the population requires that each county is proportionally represented. So, we have to question the whole concept of impartial jury, since there is, without a doubt, much partiality in Portland, and there is no chance that the other divisions would ever hold even a token chance of having any impact on any Grand or Petit Jury decision. Especially considering that they would have to travel all the way from their remote region to the big city of Portland.
Now, if we desire to determine what the United States Codes says about where trials shall be held, we find a rather circular reference. First we find the statute, with reference to “district and division”, which refers us to the Rule that says “district”. Now, it would seem that divisions would be superfluous, if the intent was the district. So, it is probably safe, and more in line with what was just discussed, to presume that the statute is a higher level of law than a rule, therefore, division prevails.
- 18 U.S.C. § 3232 : US Code – Section 3232: District of offense – (Rule)
SEE FEDERAL RULES OF CRIMINAL PROCEDURE
Proceedings to be in district and division in which offense committed, Rule 18.
- Federal Rules of Criminal Procedure, Rule 18:. Place of Prosecution and Trial
Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed. The court must set the place of trial within the district with due regard for the convenience of the defendant, any victim, and the witnesses, and the prompt administration of justice.
The Statue says “proceedings”, while the Rule says “must prosecute”. If prosecution includes the Grand Jury, which is, in essence, the beginning of the prosecution of the case, is it the District, as stated in the Rule, or is it the “district and division,” as stated in the statute?
Let’s look at the various Grand Juries that have met to deal with the charges in this case. The first Grand Jury was convened, though the date is not given (538-3), and had this case presented to them on February 3, 2016. The makeup of the jury as described in Jury Administrator for the U.S. District Court for the District of Oregon filed a Declaration :
- On February 3, 2016, the United States presented its case for the indictment… (538-3)
- Twenty-one grand jurors from Grand Jury 15-01 were in attendance on February 3, 2016. Members of Grand Jury 15-01 in attendance from the Portland Juror Management Division included six jurors from Clackamas County; nine jurors from Multnomah County; four jurors from Washington County; and one juror from Yamhill County. Members of Grand Jury 15-01 in attendance from the Pendleton Juror Management Division included one juror from Umatilla County.
The second Grand Jury:
- On February 10, 2016, the United States presented its case for the indictment… (538-4)
- Twenty grand jurors from Grand Jury 15-02 were in attendance on February l 0, 2016. Members of Grand Jury 15-02 in attendance from the Portland Juror Management Division included two jurors from Clackamas County; seven jurors from Multnomah County; six jurors from Washington County; one juror from Columbia County; one juror from Polk County; and one juror from Jefferson County. Members of Grand Jury 15-02 in attendance from the Pendleton Juror Management Division included two jurors from Umatilla County.
The Third Grand Jury:
- On March 8, 2016, the United States presented its case for the superseding indictment… (538-5)
- Twenty-three grand jurors from Grand Jury 15-01 were in attendance on March 8, 2016. Members of Grand Jury 15-01 in attendance from the Portland Juror Management Division included six jurors from Clackamas County; nine jurors from Multnomah County; four jurors from Washington County; one juror from Yamhill County, one juror from Polk County, and one juror from Clatsop County. Members of Grand Jury 15-01 in attendance from the Pendleton Juror Management Division included one juror from Umatilla County.
Now, it appears that all but one of the jurors were from what might be described as the Greater Portland Area. The counties where most of the jurors came from are on the west side of the Cascades Mountains. These are primarily city folks, who thinks that only police and actors can have guns, living in Portland or the numerous bedroom communities.
Grand Jury Transcripts
One of the other motions sent by Massey had to do with Grand Jury deliberations, the transcripts, the testimony, and the evidence that was submitted to the Grand Jury. Now, Grand Juries have always been guarded, since their purpose is only to determine probable cause, the possibility that a crime has been committed. And, since they don’t convict, they are not included in the realm of a public trial.
However, what if the public has cause to believe that false evidence was presented to the Grand Jury, simply to get an Indictment — to serve the government and harass the accused? What if the government had exculpatory evidence, evidence that would raise a question as to whether the alleged crime was actually committed, or not?
At some point, the determination of whether the ends of justice were being served by the Grand Jury, or if the Grand Jury was being used for political, unjust, or nefarious purposes, might warrant scrutiny. Absent such a remedy, we leave to the government the ability to target individuals for political purposes, and even if a conviction was not obtained in trial, the damage to the accused is immeasurable. It is destructive of family, work, and the mental state of those who are held in confinement, under false pretexts, and can even be destructive of one’s right to participate in his own defense against the charges.
When the information provided to the Grand Jury raises such question as to both evidentiary and motivation, justice would require that there be scrutiny in the process that resulted in the Grand Jury Indictment.
So, let’s look at what we do know. This is not speculative, it is factual, and it raises just such concern as to the possibility of impropriety in the presentation to the three Grand Juries, stacked with partial jurors, as described above.
First, let’s look at an outright lie that was presented to the Grand Jury. Now, it does not suggest that everything that was presented to the Grand Jury was also a lie, though absent knowing just what was presented to them (the transcripts, etc.), at least the suggestion of impropriety, and the justification for an open review of those elements, is surely in order.
This goes to the sworn statement in the “Redacted Criminal Complaint“. The Complaint, and resulting Search Warrants, were issued after the arrests were made and LaVoy Finicum was shot dead on the side of Highway 395. The Complaint was, undoubtedly, presented to the Grand Jury, as it was the initiating instrument for all that subsequently transpired.
Now, what is going to be presented was first discussed in “Jon Ritzheimer and the Grand Jury“, though at the time, one piece supportive of the veracity of that article had not yet been submitted. However, a brief background of the event in question will be discussed, here, and the evidence in support can be found in the above linked article.
Jon Ritzheimer was in Phoenix, Arizona, on the morning in question. The government, in the Complaint, stated:
- On December 18, 2015, a citizen (hereafter Citizen) of Harney County was shopping at the Safeway grocery store in Burns, Oregon. Citizen was wearing a BLM shirt. Citizen was confronted by two men, one whom she identified as RITZHEIMER. Citizen reported to law enforcement that she heard yelling, and when she turned around, the second individual shouted “you’re BLM, you’re BLM” at her. That person further stated to Citizen that they know what car she drives and would follow her home. He also stated he was going to burn Citizen’s house down. RITZHEIMER and the second individual left the area in a black pick-up truck with black canopy and no visible license plate. Since the incident, Citizen has observed a similar vehicle outside her residence. Citizen was unable to identify the driver of the vehicle when she later saw it. The following week, a second vehicle, described as a white truck with a pink license plate and a big rebel flag sticker on the back window, aggressively tailgated Citizen, flashing lights and driving erratically. Citizen believed the second incident was related to the first. Citizen also saw the black pick-up truck outside of her place of employment early in the morning hours of Christmas Day.
Jon had some work done on his truck and then went to Idaho, not Oregon. From there he went to Washington, then, on December 20, 2016, arrived in Hines (adjacent to Burns), Oregon.
The FBI, the very same people that found pieces of a radio bomb and then managed to determine who the people were that built the bomb, could not figure out, with all of their taxpayer funded resources, where Jon Ritzheimer was on December 20. So they lied and presented hearsay evidence, the identification of a “citizen”, in an attempt to secure the Indictment.
Now, what was not in the original article, though came out in a subsequent “GOVERNMENT’S RESPONSE IN OPPOSITION TO DEFENDANT RITZHEIMER’S SUPPLEMENTAL MOTION AND MEMORANDUM FOR PRETRIAL RELEASE“, is in a footnote on page 10. It states:
Defendant presents his itinerary as an alibi for allegations that he confronted a citizen in Burns, Oregon, on December 18, 2015. At this point, it is not clear if the citizen falsely identified defendant or if the date of the incident was not accurately reported.
Now, the FBI has accessed Facebook pages, Dropbox accounts, phone records, and other records easily acquired by them, including surveillance footage. Could they not access the Safeway security camera footage to ascertain whether it really was Ritzheimer, or not? Now, going a bit further, isn’t their statement in the footnote, “it is not clear if the citizen falsely identified defendant or if the date of the incident was not accurately reported“, an admission that what was presented to the Grand Jury, couching this in ambiguous terms, a very questionable statement as to a fact? So, let’s call it what it is, considering the resources and reputation of the FBI, it is a damned lie propagated to encourage the Grand Jury to Indict the Defendants. So, this leaves us the question as to whether there were more, or perhaps, many more, lies presented to the Grand Jury to secure an Indictment.
What is our government doing? Only access to those Grand Jury records can answer that question — and, we, the people, have every right to know just what our government is doing both for us, and to us.
Now let’s enter the realm of exculpatory evidence. This is evidence that would raise the question as to whether there was probable cause”, or whether information suggests the contrary.
In an Oregonian article, published January 11, updated February 22, we find a very detailed account of the events preceding the occupation of the Malheur National Wildlife Refuge. One of those accounts, found on page 5 of the article, states:
On Dec. 30 — three days before the Jan. 2 rally — federal employees were nearing the end of their work day at the wildlife refuge when management told them to go home early.
And for their safety, their boss said, they weren’t to return to the refuge until instructed.
“That was based on the culmination of our intel,” said Fish & Wildlife spokesman Holm, “and the start of the holiday weekend.”
Holm wouldn’t elaborate on details of the “intel.”
Now, wait just a minute. The Indictment says, in Count 1, that the Defendants,
did knowingly and willfully conspire and agree together and with each other and with persons known and unknown to the Grand Jury to prevent by force, intimidation, and threats, officers and employees of the United States Fish and Wildlife Service and the Bureau of Land Management, agencies within the United States Department of the Interior, from discharging the duties of their office at the Malheur National Wildlife Refuge and other locations in Harney County, Oregon, in violation of Title 18, United States Code, Section 372.
Can you rob a bank, if it is not there? Can you murder someone, if you can’t find them? It appears, by the information in the Oregon Live article that “management” told them to go home, and not to return until told to.
Now, is this exculpatory? Would it raise doubt as to whether it was the Defendants that kept the government “employees… from discharging the duties“? Shouldn’t the Grand Jury be apprised, by the government, of facts such as this?
Now, I hate to be a spoilsport, but I think that there is one more element regarding what the government told the Grand Jury, and what the facts are. Now, some will say that it is insignificant, but if laws are to have meaning, they must be written. When they are written, it is the very words in which they are written that is the law. How could it be otherwise? If laws are a rule of action, or a prohibition of action, then they should be clearly understood.
So, let’s look at the exact wording of the Statute cited in Count 1, above.
18 U.S.C. § 372 : US Code – Section 372: Conspiracy to impede or injure officer
If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both.
Now, the Statute has a couple of elements, not just one. The first is by the use of force, intimidation, or threat, keeping “any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof“. This would be an act of preventing them for taking their office, or performing their duties. But, it requires “the use of force, intimidation, or threat“. So, did the Grand Jury consider whether these elements were met — to the letter of the law? It would seem that if they did, they would know which person was denied the abilities mentioned, who did it, and how they did it. Those elements have not been met.
The second element reads, “or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties.” Now, according to the Oregonian article, the “management”, who probably had authority to give employees time off, with pay, at our expense, are the only ones that could possibly be guilty of this element.
So, what would happen if the wording were from the law, rather than something that was probably presented to the Grand Jury as if it were the law? Would the jurors have a different perspective on what really happened and whether there was probable cause to indict the Defendants?
The only way that we can know just how the government operates — something that we have every right to know — is to be able to judge their actions, especially in a situation such as the one the 26 defendants have found themselves. That can only be accomplished if we, the public, have the legal remedy to review those actions. And, I speak not only for the due process rights of the Defendants, I also speak for every American who understands that we are self-governed, and not subjects, subject to the whim of those who imagine themselves as having absolute power.