Freedom of the Press #3
Outpost of Freedom
January 11, 2017.
Well, even though there were many interruptions, I was working on a response to SA Ronnie Walker’s first Affidavit. Then, on January 9, 2017, Judge Brown, in a Minute Order (See “Freedom of the Press Update – A Grateful Thank You“), told the US Attorney that what they had filed with the Court was insufficient, and they had to go back and “do over”, to justify what they were asking the Court to do.
I will assume that they were up late, as they did make the deadline of providing a Memorandum, supported by an Affidavit, in Response to Judge Brown’s Order. So, let’s look into the minds of these well-paid defenders of justice (just kidding). We will deal with the Memorandum, though it will refer to, in one instance, the Affidavit. There is no need to address the Affidavit. It is simply a review of recent events with regard to this matter, but does provides a smidgen of hearsay supported by another smidgen of hearsay. When one is desperate, one digs deep.
Now to the Memorandum; I will include all pertinent text, I will underline and address the more significant parts..
The United States of America, by Billy J. Williams, United States Attorney for the District of Oregon, and through Ethan D. Knight, Geoffrey A. Barrow, Craig J. Gabriel, and Pamala R. Holsinger, Assistant United States Attorneys, hereby submits this supplemental memorandum in support of the Government’s Motion to Enforce Protective Order.
On January 6, 2017, the government filed a Motion to Enforce Protective Order seeking an order from this Court enjoining third party Gary Hunt from further dissemination of discovery materials subject to this Court’s March 4, 2016, Protective Order. The Motion was supported by the Affidavit of FBI Special Agent Ronnie Walker. On January 9, 2017, this Court directed the government to file a supplemental memorandum addressing the following issues:
Well, I suppose they could be, at once, be paying attention and not paying attention. The Cease and Desist letter stated, “dissemination and publication of any excerpts of that material“.
To which I responded in “Freedom of the Press #2 – Cease and Desist“, when I wrote, “Holsinger has added a new twist by separating ‘dissemination’ from ‘publication of any excerpts’ with an ‘and’, making them separate and distinct elements. However, the Order only addresses dissemination.”
So, we are back to dissemination. Readers will recall that I have consistently stated that I was “excerpting, not disseminating“. Of course, I first drew that distinction back on October 15, 2016, in “Burns Chronicles No 40 – Allen Varner (Wolf)“. So, are there two elements, each different from the other, as in the Letter, or, only one element, as in the Protective Order? Again, we must look at the letter of the law, and not what some government attorney wants it to be, at any given moment.
This is what Judge Brown has ordered the US Attorney to address.
1. The Court’s authority to enjoin the actions of a third party under the existing terms of the Protective Order and without advanced notice to the third party and an opportunity for that third party to be heard;
2. The Court’s jurisdiction to compel an individual who is not present within the district of Oregon to respond to the government’s arguments raised in the Motion via an order to show cause or other form of order; and
3. Whether the Court should amend the existing Protective Order in any respect to address the issues raised in the government’s Motion.
Now, these three items were deficient in this latest attempt to intimidate me into acquiescing to their unlawful demands. Thankfully, Judge Brown saw through their charade and held their feet to the fire.
Now, let’s be clear that I don’t disagree with the title of this next section. I think that it is easily understood that any Court has the authority to enforce its own lawful orders. As an example, Mexico has the right to enforce its own lawful orders, within its own jurisdiction. Come to think of it, so does California. Even the Ninth Circuit Court can enforce its own awful orders, within its jurisdiction. Now, the Ninth Circuit, coincidentally, includes both Oregon and California. However, the Oregon District, while fully able to enforce its lawful orders within its own jurisdiction, it is not able to enforce in another jurisdiction, such as Mexico, or California.
Let’s see what the legal eagles in Portland have to say.
I. The Court Has Authority to Enforce Its Own Lawful Orders
This Court has authority to enjoin the actions of non-parties under the existing terms of the protective order when those non-parties aid and abet parties to violate the court’s order. See, e.g., Reebok Int’l Ltd v. McLaughlin, 49 F.3d 1387, 1390 (9th Cir. 1995) (noting that courts have authority and subject matter jurisdiction to punish contemptuous violations of its order, citing 18 U.S.C. § 401); Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 774 F.3d 935, 948 (9th Cir. 2014) (organization that aids and abets a party’s violation warrants contempt). This rule makes sense because it seeks to correct both direct and indirect or circuitous violations of this Court’s orders. To permit a party to publicly disseminate material subject to this Court’s Protective Order simply by transferring it to a non-party would violate the Order no less starkly than if the party posted the material on a public website himself.
From the “Background Facts”, in Reebok Int’l Ltd v. McLaughlin, we find:
Reebok International Limited brought suit against Byron McLaughlin for violations of the Lanham Act in allegedly counterfeiting Reebok footwear. Mr. McLaughlin controlled various corporations, including the Heatherdale Corporation. As a result of the lawsuit, Reebok obtained a temporary restraining order in the district court which enjoined “the defendants and their officers, servants, employees and agents and any persons in active concert or participation with them” from “transferring, disposing of, or secreting any money, stocks, or other assets of these defendants without prior approval of the court.”
Well, that does remind me of the constitutional authority granted under the Commerce Clause, and it is understandable that this clause would also extend to all of the federal jurisdictions of the United States. But, heck, we are not talking about a constitutional law under the Commerce Clause; we are talking about a jurisdictional order within in a specific jurisdiction, to wit, District of Oregon.
So, let’s look at Cetacean Research v. Sea Shepherd Conservation Soc’y. Now, from the “Factual and Procedural Background” of that decision:
The International Convention for the Regulation of Whaling, to which the United States, Japan, and 87 other nations are signatories, authorizes whale hunting when conducted in compliance with a research permit issued by a signatory. See Int’l Conv. for the Regulation of Whaling, art. VIII, § 1, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 74.
Well, it is not Mexico, it is Japan. And, it appears that the President and the Senate have the authority to treat (make treaties) with other nations, which is a constitutional grant that is binding on all signatory whalers. However, it does not apply to whiners, only whalers. So, I think they missed the mark, once again.
Now to that last point made in the Memorandum paragraph, above, I find it rather intriguing, though perhaps a bit circular in its application. It says, “To permit a party to publicly disseminate material subject to this Court’s Protective Order simply by transferring it to a non-party would violate the Order no less starkly than if the party posted the material on a public website himself.” What was just stated is on point to what I have said. It is the person subject to the Order that would be guilty of transferring it to a non-party. It says nothing about any guilt associated to the non-party. This leaves us with the classic question, “Where’s Waldo?” Surely, they do not think that I am Waldo, or they would have said so.
In addition, Hunt did receive advance notice of this Court’s Order and, as explained in Agent Walker’s Affidavit in Support of Motion to Enforce Protective Order (ECF No. 1681), Hunt recognized this Court’s Order but refused to follow it, incorrectly believing that it did not apply to him. The contemptuous postings, however, make clear that the material Hunt now holds is material subject to this Court’s Protective Order and that Hunt has disseminated that information in contravention of this Court’s Order. Hunt’s stated reason for “outing” the CHSs is so they can serve as defense witnesses at the next trial. The reasons undergirding this Court’s Protective Order—i.e., a need to protect the informants from harm—justifies immediate relief in the form of an injunction directing Hunt to remove all contemptuous postings immediately. In addition, the need for immediate relief is supported by Agent Walker’s supplemental affidavit filed in support of this supplemental memorandum, which suggests that Hunt’s contemptuous activities are ongoing. In a Facebook post regarding the FBI’s February 5, 2017, visit to Gary Hunt to serve the cease and desist letter, a person asks “who is Gary Hunt?” On defendant Duane Ehmer’s Facebook account a response is posted, “He is working with our lawyers.”
When they say, “In addition, Hunt did receive advance notice of this Court’s Order“, presumably, they really mean the Protective Order. This case has generated many dozens of orders, so, perhaps a little specificity might be warranted. After all, it is very apparent that a word and the meaning of that word, really does have a place in our language, and especially so, with regard to our laws and legal proceedings.
And, yes, I did have advance notice of the Protective Order. Well, it wasn’t really notice; actually, I had obtained a copy, way back in March. I read it. I have reread it. I have read it over and over. And I still cannot seem to find where it applies to me. Perhaps that is why the Honorable Judge Brown has placed that burden on the US Attorney, as per the Minute Order, which states, “1. The Courts authority to enjoin the actions of a third party under the existing terms of the Protective Order and without advance notice to the third party and an opportunity for that third party to be heard” (from above). Well, there are two parts to that Order. The first is to show “The Courts authority to enjoin the actions of a third party under the existing terms of the Protective Order“. So, unless we can get that nasty little bugger out of the way, we need not even consider the second part, “without advance notice to the third party and an opportunity for that third party to be heard”
Now, when the Order says, “to be heard“, I’m sure that the Order is referring to, before the Court. Although, there can be little doubt that I am being heard, loud and clear, outside of the courtroom. I trust, however, that the US Attorney is not attempting to suppress the Freedom of the Press and the right of the public to know is not being pushed to the wayside, in favor of government secrecy. We haven’t even begun to discuss Roviaro, yet.
Then, the US Attorney asserts, “Hunt recognized this Court’s Order but refused to follow it, incorrectly believing that it did not apply to him.” Now, that is rather interesting. They suggest that I “recognized this Court’s Order“. I’m not sure what they mean by recognized. I recognize some people by their faces, others by their voices, and still others by their writing style. I suppose if I was subject to “this Court’s” jurisdiction, and was placed on the stand, then handed a copy of the Protective Order, I would most assuredly and truthfully say that I recognized the Protective Order. But, no one has handed me a copy and asked if I recognized it, so I don’t see the point. However, perhaps the phraseology is a bit off, if they mean, did I read and understand what it said, I would have no problem saying, “Yes, I have read it, and, I understand that I am not listed in those to whom it is directed”.
Then, the US Attorney suggests that I was incorrect in believing that it didn’t apply to me. Wait a minute. Don’t put words in my mouth. I know that it doesn’t apply to me. Perhaps law schools are deficient in teaching grammar, but, hey, buddy, have no doubt that words, their meanings, and application, are well known and understood by me. I do believe that it is a burden on the government to prove, not just state, such conjecture.
So, now we get to “The contemptuous postings“. That is a rather subjective observation. It seems that my readers have a completely different perspective on the nature of my postings. So, we can simply write that off as either extreme bias, or, more colloquially, “butt-hurt”.
My next observation is based upon the statement that seems to suggest that my postings, “make clear that the material Hunt now holds is material subject to this Court’s Protective Order“. I suppose that since I cited what was written on the documents, and explained, should any reader doubt the veracity regarding the content of the documents, that my statement gave the necessary legitimacy to the documents. However, had I known that I would also be writing these articles, on this subject, I could have saved some ink, because the US Attorney has given far more credibility to the document than my humble statement ever could.
Next, we come to, “Hunt has disseminated“. Damn, that is quite an obstacle. Is it disseminated, or published, or disseminated and published. Obfuscation is really a brainteaser. However, I prefer what was really done, which is that I excerpted from the documents.
Moving right along, and probably boring the readers, as the colloquy is also beginning to bore me, we get into some rather interesting stuff. As I made clear in “Burns Chronicles No 50 – Informants – What to do About Them #2‘, the US Attorney referred to Roviaro v. United States, 353 U.S. 53 (1957) (Gee, I get my turn to cite a case). In Roviaro, the court ruled that since there was an extreme risk of great harm or death to the informants, the Court was justified in not releasing the names of the informants. After all, buying heroin and then “narcing” can get you killed. Drug dealers are well known for the predisposition to kill people, with either guns, knives, or bad drugs. However, that is a somewhat ridiculous justification, especially after the Group 1 Portland trial, to continue to hold those who remain in jail on similar charges in Nevada, pending their trial. After all, many of the defendants in Nevada were/are also defendants there, in Oregon.
Let’s just look at how the government perceives the risk to the informants. On September 21, 2016, AUSA Gabriel, in questioning OSP officer Jeremiah Beckert, asked, “And did you have information about whether the driver [Mark McConnell] was cooperating with the Government?” Beckert answered in the affirmative, and of their own volition, the government hung one of their informants out to face, what, serious bodily harm? Death? Well, that didn’t happen. And, the government put this informant at risk. That very act disputes the government’s entire argument regarding the potential threat to any of the informants.
Next, in early October, Terri Linnell, who, according to the government’s professed position regarding risk to informants, voluntarily came forward, at great risk to life and limb, to testify for the defendants.
Then, on the last day of the trial, we have Fabio Monoggio, who managed to buy himself some body armor, for his “own protection” in a dangerous situation”, and at government expense, testified to the detriment of the government’s case. Monoggio, because of his role, would be equally at risk with the previously outed McConnell, yet neither has had a hair on either head harmed.
Outside of the courtroom, however, there was a different story going on. On October 15, 2016, yours truly exposed Allen Varner as an informant. The next day, October 16, Dennis Dickenson was exposed as an informant. Two months later, in December, Robert “Rob” Seaver, Thomas “Tom” S. Dyman, and Will Kullman, were exposed. And, since the first exposure by the government and the remainder by me, not one hair, on one head, has been harmed. Doesn’t that make Roviaro rather off point to the remaining defendants, in both states? As they say, the proof is in the pudding. And, this pudding has quite a story to tell.
Finally, nearly through with that rather boring paragraph, we finish with this gem:
In a Facebook post regarding the FBI’s February 5, 2017, visit to Gary Hunt to serve the cease and desist letter, a person asks “who is Gary Hunt?” On defendant Duane Ehmer’s Facebook account a response is posted, “He is working with our lawyers.” (Note: See Addendum at bottom of post.)
Darn, I already said that I am being heard. Let’s see what Autotech Tech, LP v. Integral Research & Dev. Corp. says. Now, understand that this case is a bit confusing, though I will try to make it understandable. It starts with a company called Integral Research & Development Corp. (IRDC). It is a company wholly owned by the Belarusian government. The next player is Digital Devices, Inc. (DDI). Now, IRDC and DDI had an “Exclusive Sales Agreement”, a contract. Next player, Autotech Technologies LP (ATLP). In 1994, ATLP purchased from DDI the exclusive right to promote and sell IRDC’s products for resale or incorporation into products manufactured or sold in the United States; its authority was embodied in an “Exclusive Marketing Agreement.” IRDC authorized the transfer of rights from DDI to ATLP through an “Acknowledgment and Modification of Agreement”. Well, that is the foundation. There were contracts, the contracts were agreed to. In a subsequent dispute between ATLP and IRDC, IRDC challenged jurisdiction. IRDC lost, but they lost because they had a contractual arrangement with ATLP.
Now, this case is cited under the “I. The Court Has Authority to Enforce Its Own Lawful Orders” heading. I don’t see where it fits into that subject, but in the above paragraph, the government says, “Whether Hunt should be subject to sanctions and/or held in civil or criminal contempt are matters that should be addressed after Hunt has an opportunity to be heard.” So, maybe it has to deal with my right to be heard. So, we can look to the only mention of the word heard, in the entire aforementioned Autotech case.
Before Integral can be barred either by law-of-the-case principles or something analogous to issue preclusion, it must have had a fair opportunity to be heard in the contempt proceeding.
I have no contractual arrangement with the Oregon District Court. I have not asked “for a fair opportunity to be heard“. However, it seems that to be heard is my prerogative, if I choose to exercise it. Under the current circumstances, I see no reason in the world to step into the jurisdictional world of the Oregon District.
If it is possible for a journalist to be held in contempt of court for the mere act of excerpting segments of unclassified material from the discovery of a public trial, then this country is in a lot more trouble, and closer to a true police state, than I have ever imagined.
Sometimes, I wonder if these guys even read the cases they cite, or just jump on a case because they think it will sound impressive.
II. The Court Has Jurisdiction to Enforce Its Order Beyond the District of Oregon
This Court’s authority to effectuate its own orders extends beyond the usual reach of this Court’s subpoena power to the entire country. For example, when a party transferred assets to a non-party in violation of a court order, the non-parties who resided outside of the district court’s jurisdiction (in Texas) were nevertheless subject to that court’s jurisdiction (in Mississippi); indeed, enforcement of the injunction “must occur in the issuing court’s jurisdiction because contempt is an affront to the court issuing the order.” Waffenschmidt v. McKay, 763 F.2d 711, 716 (5th Cir. 1985); see also Static Control Components, Inc. v. Darkprint Imaging, 201 F.R.D. 431, 433-34 (M.D.N.C. 2001) (rejecting argument that to enforce discovery order, party had to file motion in non-party’s judicial district); Platinum Air Charters, LLC v. Aviation Ventures, Inc., No. 2:05-cv-01451-RCJ-LRL, 2007 WL 121674 , *3 (D. Nev. Jan. 10, 2007) (same).
Now, we get into “subpoena power” and violation of a court order. However, the order in this one is directed at the party subpoenaed, and, there is aiding and abetting the completion of that crime. Let’s look at the first part of the decision in Waffenschmidt v. McKay.
Nonparties who reside outside the territorial jurisdiction of a district court may be subject to that court’s jurisdiction if, with actual notice of the court’s order, they actively aid and abet a party in violating that order.
So, just what is “aid and abet”? Black’s Law Dictionary provides the answer:
Help, assist, or facilitate the commission of a crime, promote the accomplishment thereof, help in advancing or bringing it about, or encourage, counsel, or incite as to its commission.
Now, I have yet to see anything presented by the US Attorney that might even remotely bear a resemblance to that definition. I was the recipient of some information. I explained why it was not criminal to excerpt, as opposed to disseminate, and, my possession of the material was not criminal, as I was not among those listed who were subject to the Protective Order.
As to the next two cited decisions, they are both District Court decisions. They are not stare decisis. That means that they are not precedence. There is no reliance on them by other courts. So, it appears that the government has fallen into a belief that quantity beats quality, and they have just thrown those in so as to increase the quantity, but none of these cases bear any aspect of quality.
Now, before we get into the last of the three items, I think it worth mentioning, at least to the subject of giving out information that the Court has determined should not be given out, or vice versa, and, yes, they are on the side of the courtroom that is subject to Court Orders. Let me provide some quotes from an Oregonian article, “Oregon standoff: Defense lawyer argues feds ‘wantonly disregarded’ terms of Facebook search warrant“. This had to do with the government giving out irrelevant Facebook information that they were told to remove from Discovery, prior to dissemination.
“…the federal government “wantonly disregarded” the terms of the search warrant, and [Per Olson] accused government representatives of “hiding the ball.” The warrant called for investigators to separate relevant from irrelevant Facebook account information, and then secure the irrelevant material.
“It also shows an utter lack of respect for the process for the seizure and securing” of private Facebook communications,” Olson argued. He argued that no one in the FBI took their responsibility seriously to safeguard this material.
“I’m just confounded how they ought to be allowed to do that,” Olson said.” I hate to use the word lie, your Honor, but somebody did.”
The US Attorney has his own house to clean.
III. The Court Should Expand the Protective Order
Finally, in the ordinary case, all parties comply with court orders. This has proven to be an extraordinary case; therefore, if this Court were to revisit the terms of its existing Protective Order, further language specifically addressing the Court’s intent to ensure compliance with its orders for both direct and indirect violations—wherever they may occur—would be appropriate.
Here, the government suggests that the Court extend its authority beyond its lawful reach, in both jurisdiction and persona. I suppose that since judicial activism by higher courts, to make laws that were never intended by the Legislative Branch, has a new birth in lower courts. Now, the US Attorney is suggesting not only that this Court can legislate, that it can do contrary to the case law submitted by the Prosecutor in the Memorandum. Then, they apparently want to go one step further to enact an Order (law) to prohibit what I have done, not in violation of the existing Order, but will be guilty of if Judge Brown simply waves a wand and changes the wording of the existing Order, making me, ex post facto, in violation of the Order and subject to punishment, therefore.
Addendum: There is a question as to the accuracy of a date that was given in the Affidavit. It stated, “the FBI’s February 5, 2017, visit to Gary Hunt to serve the cease and Desist letter”. However, the document was filed in the Court on January January 10, 2017. Below is an image of the wording in the actual Memorandum.