The Bundy Affair #20
The Invisible Witness
Outpost of Freedom
February 2, 2017
I have been so busy writing about the goings on in Oregon that I haven’t had much opportunity to consider the situation in Nevada. As I have told those that I been working with regarding the Group 1 trial in Oregon, who have all started concentrating their efforts in Nevada. I told those who I had been working with in Oregon, “You all get to work down where it is warm and sunny, while I’m still stuck up here where there is snow on the ground, and it is cold.” Seriously, however, I am in Northern California, about halfway between the two. But, I was spending my time primarily on the Oregon, Ammon Bundy, et al, case.
Then, the government filed a Motion. Upon reading the Motion, I found that the US Attorney has decided to invite me down to Nevada, an offer I couldn’t refuse.
On January 27, 2017, the government filed “Government’s Motion for Protective Order Regarding Undercover Employee“. It is their effort to hide from the defense the identification of an Undercover Employee (UCE).
The invitation is found, beginning on page 9 of that Motion, to wit:
Events subsequently in the courtroom and in the United States v. Ammon Bundy, et al. case in Oregon have shown that the danger to the lone UCE witness in the government’s case is particularly great. Although the discovery information in United States v. Bundy was restricted due to a protective order, an associate of the defendants (including some of the seven common defendants in the Nevada case), Gary Hunt, posted discovery material to “out” confidential human sources to his webpage. Litigation is ongoing in the District of Oregon to remove the information from the web. See, e.g., Order Granting in Part Government’s Motion to Enforce Protective Order, United States v. Bundy, Case No. 3:16-cr-00051-BR (D. Or. Jan. 11, 2017).
Now, some might think that this doesn’t look like an invitation, but, after all, beauty is in the eye of the beholder. I see that the United States Government Railroad (USGRR) is in full operation, and flying down the tracks at breakneck speed.
So, getting started in catching up with the USGRR, you will note that they imply a threat when they state that the events in Oregon “have shown that the danger to the lone UCE witness in the government’s case is particularly great.” On the contrary, they have shown that there is no risk, at all, to the informants in the Oregon occupation — unless you consider that most of the informants have abandoned their old phone numbers, and are not accessible by phone, anymore.
Let’s look at some facts about this alleged “danger”. 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 its own volition, the government hung one of its informants out to face, what, serious bodily harm? Death? Well, that did not 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 Minoggio, who managed to buy himself some body armor, for his “own protection in a dangerous situation“. Minoggio, because of his role as an informant, would be equally at risk with the previously exposed McConnell and Linnell, yet none has had a hair on their 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. (See Freedom of the Press #3 – “Contemptuous Postings”).
However, as the government contends, the exposure of the informants “[has] shown that the danger to the lone UCE witness in the government’s case is particularly great.” Not quite sure how such evidence of no harm to the informants would be any different for a real, honest to goodness, agent. It doesn’t matter whom you are working for; it is what you do. The supposition that the patriot community will retaliate is only consistent with what the government knows that they would do in a similar situation. However, we retain the moral high ground, and they are a part of the swamp that has garnered so much attention, lately.
Now, however, we see the truth peeking out. As we continue through the Motion, we find:
PROTECTIVE MEASURES SOUGHT
Based on the need to prevent disclosure of the UCE’s identity, to protect the UCE, and to avoid compromising other investigations, the government respectfully requests the adoption of certain security measures for the testimony of the UCE at trial. The proposed measures, based on similar ones endorsed by other courts, are narrowly tailored: they assure that the identity of the UCE and the integrity of other undercover investigations will not be compromised without impairing the defendants’ confrontation rights under the Sixth Amendment. Specifically, the government requests the Court implement the following measures:
Don’t worry, we will get to the six concerns, but, first, an observation. Has the truth come out? It is obvious that the risk factor is just an excuse, it has no merit in reality, only in the dreams of the US Attorneys. Well, probably not even there, more likely, just to give the judge something to justify granting the requested Protective Order. Here is what they are seeking in that Order:
1. The UCE may testify at trial using an undercover pseudonym without publically disclosing his true identity, specifically, the government requests that the UCE testify as “Charles Johnson,” his cover identity;
2. The defense shall be prohibited from asking any questions seeking personal identifying information (to include name, contact information, or date or place of birth) from the UCE;
3. The defense shall be prohibited from asking any questions about other investigations in which the UCE may be involved, including any ongoing investigations;
4. No public disclosure of any audio recording, or similar reproduction of the voices or visual images of the UCE while testifying, shall be permitted;
5. The UCE shall be permitted to use a non-public entrance/exit to the courthouse and the courtroom (outside the presence of the jury); and
6. All non-official recording devices shall be prohibited from being in the courtroom in which the UCE testifies, including personal cellular phones.
Well, Mr. “X”, aka “Charles Johnson”, how about we just call you “Charlie”? Many years ago, that is exactly what we called our enemy. And, you, being a spy on the people that you are supposed to serve is certainly worse. However, you have to live with that on your conscience. We simply want justice, as opposed to enforcement of stupid, poorly written, and overreaching federal laws. Isn’t it a shame that you have to cower, under any excuse, to avoid the ignominy that you so deserve?
Finally, at least for this portion of the Motion, the Prosecution gives us their Argument.
Protecting an undercover’s safety and the integrity of other ongoing investigations are compelling interests that courts have long recognized in crafting security measures for witness testimony. Courts, for example, have allowed witnesses to testify under a pseudonym and behind a screen or while otherwise concealed, concluding that those measures do not interfere with the defendants’ right to a fair and public trial. That precedent readily justifies the reasonable security measures proposed here.
Now, they state that this has been “long recognized“, though they fail to provide citations to back up this shallow statement. However, we can simply look to the Sixth Amendment and begin to understand just how perverse this twisted reasoning is. The Sixth Amendment protects the right of the accused “to be confronted with the witnesses against him“. The Founders didn’t hide the identity of witnesses, nor did they prohibit investigation into the character of the witness. Of course, they would have been appalled at the idea of having agents of our own government spying on its own people. I would suppose that those agents, and their superiors, would be more likely to be on trial than the person they accused.
One might think that since the “witness”, the UCE, being put on the stand would be sufficient to satisfy the Amendment. However, the government wants to hide his appearance and to allow him to use a pseudonym. However, if you or I were called to the stand, where we live, what we do for a living, education, experience, it would all be on the table. Even an FBI Affidavit, supporting a warrant or motion, has the training and experience of the agent preparing it.
What they want to do is to protect the UCE so that he will continue to be useful by infiltrating other patriot groups, though in so doing, they will deny the defense the ability to look into the background, the character, and even any criminal past of the UCE.
Before we go into more detail on the government’s Motion, I think a bit of perspective might be placed on the subject with some of my own experiences.
Back in 1994 and ’95, we established a Central Florida Committee of Safety. Over the months that it was being established and became operational, there was a man who went by the name of “Robert Chapman”. “Chapman” was very cooperative, always offering a ride to the meetings, visiting my office, asking questions that someone new to the patriot community might ask. He drove an old beat up Corvette.
I left Florida, shortly after the Committee was established, though in 1997, I was subpoenaed as a witness for one of the defendants in what became known as the Florida Common Law Court Trial. When I arrived, I found that “Chapman” had testified, though he did so as Robert Quigley, his real name. Otherwise, he would have lied on the stand. He was an IRS undercover agent, and taught his craft to other agents in an IRS school. Until then, I never dreamed that the IRS would need undercover agents. More about this in “Let me tell you about a man named Quigley”. Needless to say, he was exposed, and would no longer be useful, at least in certain circles, as an undercover agent. Sort of like a bullet, once fired, it has served its useful purpose.
More recently, I have had the opportunity to expose a number of informants (Confidential Human Source – CHS) involved both inside and outside of the Malheur National Wildlife Refuge, in Burns, Oregon. Of course, the government did not like my doing so. However, in reviewing the October 17, 2017, trial transcript rough draft, I ran across something rather interesting. Government Prosecutor Geoffrey Barrow, with the jury absent, spoke regarding the identification of an informant, Fabio Minoggio, aka John Killman, said:
What has happened now is that the defense believes that its identified an informant and believes that somehow that triggers some obligation for the government to confirm his status and his identity and we simply don’t think that that is the way the law works. We’re intending to preclude the defense from calling anyone. We don’t believe we have that ability, but requiring the government to somehow confirm defendants’ suspicions would similarly be a way around the Roviaro [decision] is the informant’s privilege.
Actually, “Roviaro” was a speech to text message in the rough draft transcript [Note: around the Roe v. R.O. (ph) in the informant’s privilege], but I was able to decipher it, and went looking. I found the decision referred to; it is Roviaro v United States 353 US 53 (1957).
From that decision:
Before trial, petitioner moved for a bill of particulars requesting, among other things, the name, address and occupation of “John Doe.” The Government objected on the ground that John Doe was an informer and that his identity was privileged. The motion was denied.
However, with “Doe” being the informant, the Supreme Court held that:
The circumstances of this case demonstrate that John Doe’s possible testimony was highly relevant and might have been helpful to the defense. So far as petitioner knew, he and John Doe were alone and unobserved during the crucial occurrence for which he was indicted. Unless petitioner waived his constitutional right not to take the stand in his own defense, John Doe was his one material witness. Petitioner’s opportunity to cross-examine Police Officer Bryson and Federal Narcotics Agent Durham was hardly a substitute for an opportunity to examine the man who had been nearest to him and took part in the transaction. Doe had helped to set up the criminal occurrence and had played a prominent part in it. His testimony might have disclosed an entrapment.
Then they explained the intention of the “informer’s privilege”:
What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. Scher v. United States, 305 U.S. 251, 254; In re Quarles and Butler, 158 U.S. 532; Vogel v. Gruaz, 110 U.S. 311, 316. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.
Therefore, it has to do with normal citizens that observe criminal activity. It does not include someone who voluntarily goes in to “observe” by becoming a player, whether a CHS or a UCE.
The judgment of the Court of Appeals is reversed and the case is remanded to the District Court for proceedings not inconsistent with this opinion.
It is clear that the United States Supreme Court understands, since the “testimony was highly relevant and might have been helpful to the defense” the argument had merit. How can a defendant know if the UCE is telling the truth if he does not know who he is? If the defendant does not know who the UCE is, then how can he know that anything that is testified is hearsay, or even whether he “had helped “to set up the criminal occurrence and had played a prominent part in it”?
Of course, the Supreme Court was dealing with an informant (CHS), not a UCE. As was explained in the matter of “Chapman”, that Court recognized the rights of the defendants over the identity of the UCE. “Chapman” was the UCE. The principle of the rights of the defendants is absolute, regardless of whether the witness is a CHS or a UCE does not change the rights of the defendant. If the UCE is going to testify, or if any evidence was obtained by the UCE, the defendants have every right to cross-examine, and the UCE has none. That is a part of his job. Like the bullet, he is now spent — no matter how much more he could have serve the government, had his identity been kept secret. Once fired, his value is spent. The prosecutor wants to deny the Defendants’ rights, so that he could play his role, once again.
The Roviaro decision, however, was based upon the afforded protection by the Constitution, though no mention is made of that sacred document.
Let’s look at what possible protections might be violated:
- Fourth Amendment: Were any arrest or search warrants obtained as a result of his “Oath or affirmation”? If so, that “Oath or affirmation” should bear his name so that the validity of his statement might be challenged.
- Sixth Amendment: The defendant has the right “to be confronted with the witnesses against him”, and, “to have compulsory process for obtaining Witnesses in his favor”. How can they confront a concealed identity? You cannot investigate the witness, his background, or anything else, prior to trial, if you know not who he is.
Now, let’s look at what the government is asking, not in Court, rather as we should see it in the Court of Public Opinion.
First, they start with a “Sealed” exhibit, being a declaration. Presumably, the defense attorneys do have access to that declaration, though surely, the name in question will not be included.
Authorities and a supporting declaration from a FBI undercover coordinator setting out the basis for the needed protection. See Declaration filed separately under Seal at Exhibit 1.
We can probably safely say that the Declaration is full of contrived potential risks to the UCE. Rather ironically, the government exposed the first informant in Oregon, intentionally. Since then, nine more informants have been exposed, and still not one hair on one head of any informant has been harmed.
Then, they will explain that the UCE needs to be protected because he is continuing to spy on the American people, and that his work is so invaluable in bringing to justice those who would break the laws of the federal government. However, the government wants to break our rights.
I’m sure that the declaration will be much more verbose; however, it will not address the fact that a spy in a foreign country might be executed, if exposed — or, maybe it will, though we are not, yet, a foreign country. Though, when we look at the absence of justice in our judicial system, we might suppose that it is, at least, no longer our country.
At trial the government intends to call as a witness a UCE who was involved in the investigation that led to the arrest and prosecution of the defendants. As part of that testimony, the government may also play recordings of conversations between the defendants and the UCE.
Public disclosure of the UCE’s true identity or physical images would jeopardize other investigations in which the UCE is active and may pose a risk of danger to the UCE.
Well, that was predictable.
Then, we have:
As such, in order to protect the UCE’s true identity and appearance, the government requests certain security measures, consistent with measures approved in other cases. Further, the government moves to prevent any cross-examination as to the UCE’s true identity or other operations.
Note that there is no test of constitutionality. Instead, it is based upon other cases. I just completed an article (Is a Misdemeanor a Crime? or, Is the Court a Crime?) that addresses “substantive law” and the “case law method”; the latter, having been developed in 1872. This is the means by which the courts can effectively “legislate” away the Constitution. As is apparent that “other cases” is an effort to achieve that end.
To demonstrate the severity of risk to the government employees, they have provided an example of the great danger to those employees, this from the subject Motion:
One such example is an April 13, 2014, post on the “Stand with the Bundys” Facebook page. There, a supporter posted an image of a BLM Ranger involved in impoundment operations together with his home telephone number and the message: “A participant in this week’s Bundy escapade . . . BLM Ranger [name redacted] Home [address redacted].” ECF No 357, Exhibit 2, Example # 5. Thereafter, others posted the following to the same page:
[poster name redacted]: Call him from a land line
[name redacted/different poster]: Do a reverse look up of his number you will be surprised
[name redacted/different poster]: St. George UT is where this number is from.
[name redacted/different poster]: I know my people in St. George won’t be happy about that. I will definitely share this!!!!
They refer to “ECF No 357, Exhibit 2, Example # 5“. That “Motion for Protective Order” has 20 pages of suggestive threats to the various employees. I mean, these are serious! I wonder if I could get the FBI to protect me when I receive such “threats”. Geez, these people must have very thin skin, or they are desperate for an excuse, regardless of how meager, to justify punishing people that would dare to disagree with them.
Along with that line, they bring up a situation that occurred a few months after the events that are the subject of the Indictment and upcoming trials. This, in a further effort to demonize the patriots, while upholding the government employees, with the possible exception of the subject UCE, as near to sainthood as possible. I exclude the UCE because, though he may testify, he is immune to the cross-examination that might truly protect the rights of the defendants.
I wrote about “Vetting the Millers” way back on June 9, 2014. Heck, even local law enforcement knew that there was no tie between the Millers and the people at the Bundy Ranch. However, those Fidelity, Bravery, and Integrity people just do not seem to have much going for them, when others realize that there was no such implied relationship between the two. From the subject Motion:
For example, on June 8, 2014, Jared and Amanda Milled[sic] in a supposed lone wolf attack, ambushed, shot, and killed two Las Vegas Metropolitan Police Officers while they were innocently eating lunch in a local restaurant. After killing the officers, they draped one of the officer’s bodies in a Gadsen flag and yelled to other restaurant patrons that it was the start of “a revolution.” They fled to a nearby store, where the Millers then shot and killed a good Samaritan attempting to confront them. The Millers held strong anti-government and anti-law enforcement views.
Before committing their murders, the Millers had celebrated with Bundy and his Followers at Bundy Ranch in the aftermath of the lawless assault and extortion of federal officers. Even before the assault, the Millers were present in Bunkerville on April 9, 2014, when defendants Santilli and Ammon Bundy ambushed a BLM convoy using force and violence. Associating themselves even further with Bundy and his Followers, Amanda Miller uploaded to Youtube, video interviews of Margaret Houston and Ryan Bundy that related to the ambush.
After the April 12 assault, Jared and Amanda Miller were present at Bundy Ranch again. Jared Miller gave an interview to a reporter on April 16, 2014, after completing “guard duty” and while wearing full camouflage and carrying his AK-47 and a 9 millimeter Smith and Wesson. See http://america.aljazeera.com/articles/2014/6/9/al-jazeera-interviewlvshooters.html. Jared Miller also stated the following while at Bundy Ranch: “I feel sorry for any federal agents that want to come in here and try to push us around or anything like that. I really don’t want violence toward them, but if they’re going to come bring violence to us, well, if that’s the language they want to speak, we’ll learn it.” In April and May, 2014, Jared Miller posted numerous postings onto Facebook supporting Bundy Ranch and the April 12 assault.
Now, disregard the fact that they couldn’t even spell Miller (Milled), without error, they “suppose” that it was a lone wolf attack. That is quite telling because this whole Motion is based more on “suppose” (supposition) than on fact.
They are likely correct when they say that, “The Millers held strong anti-government and anti-law enforcement views.” However, that same statement does not describe the events surrounding this whole Cliven Bundy, et al case. There was nothing that was “anti-government”. Everything had to do with the rights of the people of this country. If anything is anti-government, it is the actions of the government, itself, in bringing charges against the defendants, in violation of civil decency. The government, however, appears to be quite “anti-Constitution”.
Then, it is stated, “[T]he Millers had celebrated with Bundy and his Followers.” Who the heck did the FBI talk with to come up with that line of crap? Maybe the US Attorney, so he could make a case, n matter how flimsy and unsubstantiated. It could not have been with anybody that had personal knowledge, as they could never have contrived such a blatant lie. The entire direct communication with the people siding with the Bundys is explained in my article (Vetting the Millers, linked above). If they mean that the Millers were ecstatic that the Unrustling of the Bundy’s cattle had occurred, then they could also name tens, perhaps hundreds, of thousands of people in this country, and many from other parts of the world. That’s like trying to tie me to government employees, perhaps the Russians, and all kinds of people, when we all celebrated the recent Presidential election. There ain’t a whole lot of Integrity in that proposition.
Now, here is a good one. The Motion says that, “the Millers were present in Bunkerville on April 9, 2014, when defendants Santilli and Ammon Bundy ambushed a BLM convoy using force and violence.” When I wrote my article about the Millers, I placed them at arriving between April 12 and 14. That was based on the interviews with those who could allow, or deny, access to the Bundy Property. Now, the government alleges that they were present in Bunkerville on April 9, and that ties them to what the government describes as an ambush of “a BLM convoy using force and violence.”
So, I made some phone calls, and nobody (except maybe the FBI, in their diligence) can place the Millers in the area of Bunkerville (not at the Ranch) before Thursday, April 10, 2014. Even if they were in Bunkerville, those present at the flippantly described “ambush” consisted only of family, friends, and other supporters, such as Pete Santilli, who filmed the event. There is no footage showing the Millers present.
Where does the FBI come up with the quixotic description that they have set forth in the Motion?
Further, as far as “force and violence“, let’s review. A number of vehicles, including a dump truck, were coming off the Gold Butte range. The Bundys had reason to believe that some cattle had died because of the government activities. They simply wanted to see if some cattle carcasses were leaving in the truck, so they block the traffic, before it hit the public road, to get a look inside of the truck. The government should have nothing to hide, unless, of course, they did it in the dead of night.
Well, it is difficult to call it force when you are blocking traffic – quite a stretch of the government’s imagination. The only violence that occurred was a government employee throwing Margaret Bundy Houston to the ground and the tasing of Ammon Bundy. So, just who is calling the kettle black?
Finally, at least for the above-quoted statements included in the Motion, we have, “After the April 12 assault, Jared and Amanda Miller were present at Bundy Ranch again.” They were not “present at the Bundy Ranch“. They were, however, present on a public road near the Bundy Ranch.
The government continues, “Jared Miller gave an interview to a reporter on April 16, 2014, after completing ‘guard duty’ and while wearing full camouflage and carrying his AK-47 and a 9 millimeter Smith and Wesson.” Now, I do not want you to take my word for it. I don’t dispute the weapons that Jared Miller had nor does the government dispute his right to have them. Quite often, when you want an excuse (say “lie”), any excuse is good enough.
The government, however, is dumb enough to provide the evidence of their lies. They link an Al Jazerra video to prove their point. What they prove, however, is that they are lying, or, being a bit more generous, grossly misstating, the truth. The video clearly shows that the interview took place on a public road, complete with guardrails.
I have not addressed the entire 16 pages of the Motion, though I think that what we can see here, sufficiently addresses the conflict between justice and persecution. I believe that if you download from the link at the top, you will find more absurdities, as you continue through this masterful piece of bureaucratic deceit.