Posts tagged ‘immigration’

Liberty or Laws – Are You a Voter, or, an Elector?

Liberty or Laws?

Are You a Voter, or, an Elector?

 

latino-polling-placeGary Hunt
Outpost of Freedom
September 6, 2016

During this current election cycle, a matter has constantly recurred, that of the federal government mandating, primarily through the District and Circuit Courts, who can vote and what requirements, if any, are necessary to do so.

To understand what has gone wrong, we will have to look to the Constitution, what was required to vote in national elections in the past, and how the federal government has supplanted the States regarding the authority over who may vote.  There is also concern about the Electoral College, so we need to see what was intended when the Constitution was written.  It is necessary to follow this history of voting to understand just how Article IV, § 4 of the Constitution has become moot.  The pertinent part of that Article reads:

The United States shall guarantee to every State in this Union a Republican Form of Government…

So, let’s begin with references to voting and elections in the Constitution.  In Article I (Legislative Branch), we find:

Section 2 — The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Well, clearly, it is the prerogative of the State to determine what “Qualifications [are] requisite for Electors of the most numerous Branch of the State Legislature.”  The federal then yields to the state’s authority concerning who is qualified to vote in federal elections.  The use of the term “Electors”, in this section, is what most would simply call “voters”.  They elect the Representatives, but their qualifications are based upon the qualifications that State has set for its most “numerous Branch.”  There is no such condition for the Senate, like the Senators, prior to the 17th Amendment, were chosen by the state legislatures.

Next, we see that the Constitution leaves a degree of discretion to the federal government, though quite limited:

Section 4 — The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

It says that “Congress may at any time by Law make or alter such Regulations…”, though since it refers to itself, when it says “alter such regulation”, it can only refer to “The Times, Places and Manner of holding Elections…”  Otherwise, the previous (Section 2) provision would be without substance.  The same power or authority cannot be granted to two different parties, the federal government and the State governments.  That would be contrary to any practical possibility that both would agree to any acceptable determination of who could vote, especially if one had the guarantee of a Republican Form of Government.  As we will see, the states that existed in 1874 had diverse requirements.  There was some commonality, but the federal government could only intervene to assure that such voting was done timely, not done at a place that would limit access to voting, and of the manner (not requirements), such as paper ballots.  At that time (before the Seventeenth Amendment), the state legislatures elected the Senators.

Next, we have:

Section 5 — Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members…

Now, there is another grant to the federal government, but only to “Judge… the Elections“.  That, obviously, could only extend to judging the results of the elections, as they cannot be judged before being completed.  This would include Returns.  The Qualifications, of course, is to satisfy the requirements regarding who may serve in the House of Representatives and the Senate, found in Article I. Section 2, clause 2 and Section 3, clause 3.

Initially, Article II (Executive Branch) set forth the method by which the President would be elected:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves.  And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate.  The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.  The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President.  But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice.  In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President.  But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

Now, in the election of the President, the Electors are selected according to the “Manner as the Legislature thereof may direct“.  In the subsequent section on the “Electoral College“, the disparity of this method has become problematic.  However, we can see that the federal government may only “determine the Time of chusing the Electors, and the Day on which they shall give their Votes.”

This procedure was changed in 1804 with the ratification of the 12th Amendment.  The Constitution had the second highest vote receiver as Vice-President, and it was determined that the two highest vote getters, running in opposition to each other, would then share the responsibilities of the Executive Branch of Government.  The 12th Amendment changed the voting by the Electors to one vote for President and one vote for Vice-President, rather than, as described above, where they voted for “two Persons.”

The only other amendment to affect the election of the President was ratified in 1961 as the 23rd Amendment; it simply gave Washington, D.C., the District of Columbia, the ability to participate by allowing it to select Electors for the election of the President and Vice-President, just as the States.

. Continue reading ‘Liberty or Laws – Are You a Voter, or, an Elector?’ »

Rogue Infidel – A Working Vacation to New Hampshire

Rogue Infidel – A Working Vacation to New Hampshire

Islamberg New York

Gary Hunt
Outpost of Freedom
November 30, 2015

The Trip

On November 18, 2015, Jon Ritzheimer began a road trip to aid an old high school buddy, Tyler Zarr, in his move to New Hampshire. After they loaded the SUV with Tyler’s belongings, they set out on their cross-country journey.

Since this road trip was part vacation and part work, they decided to take some “tourist” pictures along the way. Rather than dwelling on natural history or historical monuments, they opted to take pictures of what they perceived as the intrusion of an evil element into our country. Like any good tourists, they made “selfies” in front of the following mosques or Islamic Centers: New Mexico; Amarillo, Texas, Oklahoma City, Oklahoma; Springfield, Missouri; Illinois; Terre Haute, Indiana; Ohio; Reading, Pennsylvania; Lowell, Massachusetts; and finally, Manchester, New Hampshire.

Here, in Jon’s words, is his description of the trip (note: all italicized portions are from Ritzheimer’s statement to the Outpost of Freedom.):

“As we made our way cross country we stopped and took a photo at every mosque that was within our path during the journey. We also decided that since we were heading that way that it would be nice to give the Muslims at the Islamic Post a visit to simply give them a piece of our mind in regards to the article they publish back in June, [Where they accused Jon, Pam Geller, and others, of being “American Taliban“. See note at end.] calling me a terrorist because I organized a pro freedom of speech rally at a Mosque where now five terrorists have come from.”

The Video

Shortly after leaving Phoenix, Ritzheimer made a video explaining his trip to those who have been paying attention to what he is trying to oppose publicly, which in the past was focused on the Islamic Community Center of Phoenix (ICCP). An account of his recent “confrontation” there can be found in the press release for the event, Global Rally for Humanity – Phoenix.

Now, even prior to the Global Rally event, Ritzheimer had held a Freedom of Speech Rally (When did Freedom of Speech Become Hate Speech?), where false accusations of his intentions were prolific, even in the mainstream media. Ritzheimer had made it clear, though many choose not to hear it, that being armed is strictly for defense. After all, he served in Iraq, where it was Muslims, not Christians, that were hell-bent on trying to kill him. Based upon events in Europe, it is simply a precaution, for who really knows when the violence, which has already risen here, will escalate to the level it has on the other side of the Atlantic?

The Offended

Now, that video apparently offended those Muslims in Islamberg (Hancock), New York, the home of The Muslims of America and The Islamic Post. Or, perhaps their comprehension of English is couched in their perception of themselves. The video (slightly edited by the New York Daily News – used by permission from Mr. Ritzheimer) contains no threats, nor has Ritzheimer removed any heads or hands, stoned any rape victims, or otherwise suggested any such violence against Muslims. He has done nothing more than advise them that he is more than ready to defend himself, against any acts of violence directed at him, or any event he sponsors — including his road trip.

So, to make that clear, here is a transcript of the voice in the video:

What’s up America? Jon Ritzheimer here with my brother Tyler, one of my old high school brothers here, and we’re driving all the way across America, all the way to New York to go see those assholes at the Islamic Post that decided to publish a paper calling me, me, a fucking terrorist in this country.

Fuck you Muslims! Fuck all of you! We’re going to stop at virtually every mosque on the way, take a picture flipping them off, telling them to get fucked!

And Obama, you stupid sorry sack of shit, you wanna come out and say that we’re all afraid of these poor little three-year-old orphans and these widows?

Fuck you! That is not what’s coming over here. And you know what? I’m not afraid! I fear for my family’s safety, but I’m not afraid, because these guys are fucking cowards, and they have shown, time and time again, they do not come and attack hard targets.

Well, guess what? [shows pistol] We’re fucking ready for them! [racks pistol slide] Bring it on you Muslim fucks!

You wanna come fuck around in our country, we’re ready for you. So, I’m not afraid. I’m urging all Americans across the U.S., everywhere in public, to start carrying a slung rifle with you, everywhere. Don’t be a victim in your own country. Fuck you, Obama.

If there is any threat in what he said, it was that there would be that he implied retaliation, should they mess with him. However, the Islamic Post, perhaps presuming that Americans practiced Taqiyya, or that implied threats had a different meaning behind them, contacted the FBI and/or the New York State Police, claiming that the video was an open threat, and that they feared that there would be violence.

The FBI and the New York State Police

From Ritzheimer:

“After we crossed into Pennsylvania, on November 20th, I received a three-way phone call from Special Agent Bridget Walters of the FBI, and a Sergeant with New York State Troopers. The FBI agent was nice and respectful during our phone call and the Trooper started out respectfully. They then proceeded to tell me that they saw the video of me with a gun and if I cross into New York that I would be arrested. I asked them if I could surrender the gun at the state line to them and just get an escort through the state so I could make my destination and they said NO. I asked if I could leave it in Pennsylvania with a friend and they said that they would still search me, give me a hard time, and basically violate my rights because of the video of me with a gun.”

Ritzheimer had initially agreed to stay in touch with the FBI agent, However, as a result of the breakdown in negotiations (you know, when the government says we can negotiate — as soon as you agree to our terms), Ritzheimer had to develop a strategy that would allow him to get to his destination in New Hampshire. Since New York extends from the Canadian Border to the Atlantic Ocean, there is no means of land travel that will allow you to take a handgun from the Middle States to New England (General Gage knew that when he tried to take control of the Hudson River during the Revolutionary War).

In his words:

“Originally I told Special Agent Walters that I would maintain contact with her and keep her posted on my whereabouts but then after reading state laws and seeing that no matter what they were going to violate my rights I made the decision that we needed to change our course and shut our phones off and pull out enough money from the nearest ATM so we wouldn’t need to use our debit cards. We had to break communication with law enforcement because they were clearly not going to work with me.”

The Break

So, as reported in a New York newspaper when communications were cut off, it was Ritzheimer’s fault, and was sufficient for the FBI and/or New York State Police to perceive a threat against them. As stated in the article, “he got angry and cut off communication with them. At that point, the alert, citing a “potential threat to law enforcement,” was issued, sources said.”

Keep that in mind — if you won’t talk to the FBI and/or New York State Police, and they know that you have a firearm, they will determine that you are a threat to them (or their presumed haughty almightiness). So, now this has escalated to a point where some people in law enforcement might “shoot to kill”, since the subject is now “armed and dangerous”.

However, as Ritzheimer explained, he used a little common sense, whereas the New York State Police and the FBI are lost in even beginning to understand why communications were cut off, because they assumed that “going dark” was indicative of preemptive hostile action.

So, Ritzheimer and Zarr did get to their destination, with only a slight delay. Though, apparently, the search for Ritzheimer and Zarr continued, throughout New York, for the next few days.

As Ritzheimer clarified for this article:

If I was going to attack them as they claimed I was headed to do, I would have brought way more fire power, and they never would have known that I was coming. I am a law abiding citizen and it’s unbelievable what I had to go through due to false reports from Islamic Post and Law Enforcement Officers who claim to be “just doing their job” when threatening to violate my rights if I cross into their state. Shame on New York State Troopers and shame on the FBI agent who rather than protecting a citizen and their rights fell into the trap set-up by the Muslims who play the victim.

American Taliban?

So, let’s look at the Islamic Post’s effort to demonize Ritzheimer and others. They accused them of being “American Taliban”. Well, that is rather ironic, as that “label” was first applied to John Phillip Walker Lindh, who converted to Islam at age 16. Then, on November 25, 2001 (at age 20), he was captured while fighting with the Taliban, against American forces, when his unit surrendered (no virgins for them) at Kunduz, Afghanistan. Interesting that they would then accuse Americans opposed to Islam and attaches the moniker that was first given to an American who opposed Americans.

So, if two Americans, knowingly travelling across the country and communicating with the FBI as they travel, can elude being taken while travelling from Pennsylvania to New Hampshire, is it conceivable that a real Muslim terrorist could easily evade the web that they are capable of setting up?

Apparently, you are more likely to be protected by the FBI and the New York State Police if you are a Muslim than if you are an American.

(to be continued)

The Rise of Islam in Our Children’s Minds – Is This the Destruction of America?

The Rise of Islam in Our Children’s Minds
Is This the Destruction of America?

Muslim teacher

Gary Hunt
Outpost of Freedom
September 23, 2015

A friend sent a copy to me of the current assignment in Social Studies for her Seventh Grade son. Since the truancy people have threatened her if he doesn’t go to school, he has simply been instructed to face the back of the classroom and ignore the instruction. However, that solution is problematic, and what we are seeing is a program of enforced indoctrination.

Hitler arranged the educational system to propagandize the Nazi philosophy, and dwell on certain aspects of the German culture. He did not instill a foreign culture into the minds of the children. What country would even consider doing such?

The student’s previous historical education included California history, primarily the early Spanish portion with the Missions and Spanish settlement; Ancient history centered on the Mediterranean Sea (Byzantine Empire, Romans, etc.), and the Rise of Islam (current studies). No America history, no European history, no government studies.

So, before we look into just what is currently being studied, let’s think a bit about the near future. The students who have taught very little of our own history, but have been indoctrinated (I can’t think of a better word) in Spanish settlement of California, and Islam’s role in the world, including how badly the White Europeans treated them, will leave them with a foundation of culture that excludes that which they were born into, believing that their roots are from a Spanish and Muslim heritage.

They will object to any subsequent instruction that might dwell upon the settlement of the “New World” by English and French adventurers –those that brought civilization rather than chaos — because it would be foreign to the foundation that had been implanted in them. The “Great Experiment”, the first, and only real, government created by the people of the country, for the purpose of self-government, will be spurned as inconsequential, even though it laid the foundation for the freedom of those invaders (yes, that is the correct word) who have used those protected freedoms (which do not exist where they came from) to destroy the very structure that has led the world to the advanced society it has become. The result will be a regression of society back into a barbaric age, which should have been left to the dustbin of history.

Some of the atrocious effects of this program include:

  • Teaching that Muslims pray five times a day, implying that this is acceptable within the school, yet the same school will not let Christians pray, even once a day.
  • Teaches and honors a religion that has their five pillars, though they won’t allow the Ten Commandments to be displayed or spoken of.
  • Teaches support of a religion that dictates both social and political behavior, though they limit that teaching to only the Sunni sect of that religion, the sect that is the primary elements of ISIS/ISIL, but disallow any discussion of the Christian religion or the Judea-Christian moral foundation of our country

It has become abundantly clear that the federal government, under the current administration, supports this effort by requiring such teaching in our schools, and funds that denigration of our educational system.

The Department of Health, Education, and Welfare (HEW) was created in 1953. In 1979, the educational aspect of governmental control of education (that used to belong to the local School Board) was created and named the Department of Education, while the remainder of HEW was renamed the Department of Health and Human Services. It is that Department of Education that now dictates policy (curriculum, including Common Core) and provides the funding for the local schools.

Since the Department of Education is an Administrative Agency under the Executive Branch (the President), we can expect no change in this policy, except possibly getting worse, until January 2017, when a new President will take office.

If the new President chose to change the policy, it would probably not go into effect until the beginning of school in September 2017.

That would leave this school year and the next of total indoctrination of our children into the benefits of Islam as a state religion, and it would be very difficult to undo the mental damage to our children, since it is the parents who willingly send their children to the government schools, telling them that school is where they will be taught what they need to know to get along in life and in America.

This country was a “Great Experiment” in self-government. It has turned into an oligarchy that is not responsive to the will of the people, and often is beyond the ability of Congress, our chosen representatives, to retain control of what they have willingly passed on to the Executive Branch.

If this is to change, and if we are determined not to allow these two school generations to be taught that Islam is great, and then probably vote for Muslims running for office, then we must, as the Founders did, determine to take upon ourselves, regardless of the laws but consistent with the Constitution, the responsibility and the task of removing this cancer from our society. And, that, by any means necessary, with no restrictions.

* * *

The following is the study guide for the Seventh Grade at:

  • Canyon Lake Middle School
  • Lake Elsinore Unified School District
  • Principal: Dr. Preston Perez
  • phone number: 951-244-2123
  • webpage: http://clm.leusd.k12.ca.us

The source for the instructional material:
Society for Visual Education, Inc., 1345 Diversey Parkway, Chicago, Illinois 60614,
or,
Society for Visual Education, Inc., 6677 North Northwest Highway, Chicago, Illinois, 60631
phone: (800) 829-1900; fax number: (800) 624-1678

* * *

The future of this country is now in your hands. If it is to continue as we have believed, and as many have fought and died for, then the call to act is greater than any other time in our history. Contemplation, procrastination, and delay, have become our enemy. The time is now, and the necessity is, again, by whatever means.

It is Time for Grave Concern
It is Time for Action

 

 

R Scan 1

The handwritten portion is the due dates for the various assignments.

 

R Scan 2

Five Pillars of Islam? Where are the Ten Commandments?

Quran & Sunnah (the Word of God &teachings and attributes of Prophet Muhammad)?

What about the Old Testament and the New Testament?

Mecca? A city for only Muslims?

Mosque? What about Church., Temple, and Tabernacle?

 

R Scan 3

Take the time to read the words in the list and see which ones, if any, are and should be a part of a student’s vocabulary.

Also, look at the lack of care in putting this together, for example the absence of a space before the entrees 10, 16-24, 26, 29, 30, 32-34, & 37. It shows a very poor attention to detail by those who wish to indoctrinate our youth.

 

R Scan 4

Well, at least Europe gets a bit of attention.

Why would they want someone to know the routes of the four major Crusades? And, Israel had to be handwritten in — I wonder if someone might get in trouble for that.

 

R Scan 5

Shouldn’t Americans first learn where the Mississippi, Colombia, Ohio, Potomac, and other American rivers are?

Why simply the geography of Islamic nations on untended conquests?

 

R Scan 6

 

This, apparently, is the map that the elements of Page 5 are to be drawn on.

 

R Scan 7

More Muslim geography. Only one European country. However, they fail to suggest that we should keep it that way. And, this whole exercise tends to suggest that they want the United States to, eventually, join the list of Muslim countries.

 

R Scan 8

Now, we have some “fill in the blanks”. Not that “male” is included, however, “female” is not.

 

R Scan 9

Who gives a damn where Islam was first preached?

They ask what countries Islam spread rapidly through, though they fail to ask why it spread rapidly, and how much blood was shed.

 

R Scan 10

Now, they must learn all about Mohammad, but there is nothing about George Washington, Abraham Lincoln, Thomas Jefferson, and the scores of truly phenomenal, peace loving, Americans — that helped form this great country that we live in.

 

R Scan 11

Now, we get into the religious foundation of Islam, in a school that outlaws the Bible.
That should be sufficient to justify burning the school, and some of the teachers and administrators, to the ground.

 

R Scan 12

Now, we have a structure of government under Islam, but the students have yet to learn the structure of government in their own country.

 

R Scan 13

That last question is the real kicker. I wonder what the acceptable answer might be.

 

R Scan 14

Nothing about baptism, but very much about a very foreign, and strange, religion.

It seems that the student is supposed to learn, and perhaps participate in, the five pillars, though neither the Bible, or Christian prayer, are allowed in the school.

It also seems to support only one branch of Islam, the Sunni, since the Shia branch has twelve pillars.

 

R Scan 15

So, conquest, and demonstration of a few basic practices that we have evolved into our more progressed society. They are not, however, demonstrative of something that would not have occurred without Muslims, and are probably more substantially developed than Islam could very have achieved.

 

R Scan 16

Now, we have the Christian persecution of the Muslims, though we simply ignore the fact that the Muslims persecuted not only Christians, but Hindus, Buddhists, most of Africa, by execution, or committing them to slavery — which they still practice.

 

R Scan 17

Now, at least, we see what happened in Europe (Spain, in particular) as a reaction, after the expulsion of the Muslims, to those who were not of the Catholic faith.

Camp Lone Star – The King Can Do No Wrong, or Can He?

Camp Lone Star – The King Can Do No Wrong, or Can He?

KC Smile

Gary Hunt
Outpost of Freedom
September 13, 2015

At the last hearing, Judge Hanen had told KC’s attorney, Sorola, that the Motion to Dismiss Indictment wasn’t written correctly. That motion had been denied in, which is discussed in Act II – A Kangaroo Court – Scene 1 – How Case Law Subverts the Constitution. Judge Hanen allowed that Sorola might submit a supplemental motion, and said that he was willing to hear a jurisdictional argument. AUSA Hagen was not pleased with the decision; however, dates were set for both the motion and opposition to be submitted to the Court.

Sorola filed his Second Motion to Dismiss Indictment, which “incorporates” the previous Notion to Dismiss. So we will look at what has been entered in support of the jurisdictional aspect of the case.

18 U.S.C. § 922(g)(1) Violates The Tenth Amendment

The Tenth Amendment provides: the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. As this Amendment makes clear, and as the Supreme Court has long-recognized, the federal government is one of enumerated, limited powers. See, e.g., McCulloch v. Maryland. Accordingly, the federal government may act only where the Constitution so authorizes. Cf. New York v. United States, 505 U.S. 144 (1992).

A corollary to this rule is that Congress may not act in areas prohibited to it. As Justice Thomas noted in his concurrence in Printz v. United States, 521 U.S. 898, 937 (1997) (Thomas, J., concurring), the Constitution “places whole areas outside the reach of Congress,” such as the First Amendment’s preventing “Congress from ‘prohibiting the free exercise’ of religion or ‘abridging the freedom of speech.'” Id. Justice Thomas went on to explain that the “Second Amendment similarly appears to contain an express limitation on the government’s authority,” and stated: This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. If, however, the Second Amendment is read to confer a personal right to “keep and bear arms,” a colorable argument exists that the federal government’s regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment’s protections. Although Printz dealt with a successful challenge to the Brady Act’s requirement that state law enforcement officers conduct background checks on prospective handgun purchasers, the logic of Justice Thomas’s reasoning is compelling with respect to § 922(g)(1): the Tenth Amendment limits federal power; the Second Amendment specifically prohibits the federal government from infringing the individual right to bear arms; thus, it surely cannot be constitutional for the federal government to prohibit a person’s purely intrastate possession of firearms.

For the reasons stated above, Mr. Massey respectfully requests that the Court find 922(g)(1) unconstitutional as applied to him and dismiss the pending indictment.

Of course, AUSA Hagen has to answer this Motion, who knows, maybe even his future as a United States Attorney is in jeopardy, since this is a high profile case and Hagen has stated that he has been pressured from above to win this case. However, it appears that Mr. Hagen was not up to answering Sorola’s Motion, so we have a new player, AUSA Jason Corley (the new King), who filed the “Government’s Response” to Massey’s Motion.

Massey’s motion was simply three pages, the above being the substantial portions thereof. However, the Government’s Response was 24 pages. And, as I began reading the Government’s Response, a quote from W. C. Fields popped into my mind:

“If you can’t dazzle them with brilliance, baffle them with bullshit.”

As I continued reading, I realized that the position Corley was taking, he was asserting as if he were King. He has his interpretation of what something means, and there is absolutely no attempt to balance justice with what he believes. This brought to mind another historical quote, most often expressed shortly before the ousting, or abdication, of a King, who refused to abide by the constitution or exercise any semblance of justice. – The King can do no Wrong!

Now, to restrain you from falling asleep or rolling on the floor laughing, I will only address some of the aspects of the government’s argument.

First, we will talk about legal theory, since that seems to be an important consideration on the government’s part. The following, though interspersed through the Motion, are consolidated simply to demonstrate their concern:

  1. Defendant’s motion is not ripe for consideration as a factual matter. Defendant has presented merely a legal theory, namely that “purely” intrastate possession of a firearm cannot be infringed by the federal government of the United States. Defendant has not, however, presented any facts whatsoever let alone “sufficient facts which, if proven, would justify relief.” (page 4)
  2. Defendant now files a motion to dismiss the indictment based solely on a proposed legal theory that “purely” intrastate possession of a firearm by a felon (or presumably any other individual) cannot be regulated or criminalized by the federal government. (page 6)
  3. But this factual issue does not tangentially create a legal dispute on a matter not in controversy, namely an unrelated constitutional theory cloaked as a suppression issue. (page 7)
  4. Article III of the United States Constitution grants the Court authority to adjudicate ‘cases’ or ‘controversies’, not irrelevant and tangential legal theory… Defendant does not have standing to challenge any supposed government regulation or criminalization of “purely” intrastate possession of a firearm. (page 8)
  5. Because Defendant’s second motion to dismiss proposes an irrelevant and tangentially reached legal theory, and because Defendant does not have standing to challenge that issue, the government respectfully requests that the Court deny the motion to dismiss the indictment. (page 8)
  6. Because both legal theory and binding case law are contrary to Defendant’s proposition, the Government respectfully requests that Defendant’s second motion to dismiss be denied. (page 11)
  7. The legal theory postulated by Defendant is just that, a legal theory. Other legal theory supports the proposition that the federal government through an act of Congress may indeed have the authority to criminalize “purely” intrastate possession of a firearm by a felon should Congress make the requisite findings that it is necessary and proper to criminalize possession of a firearm by a felon to promote the general welfare of the American people, insure domestic tranquility, and establish justice. (page 15)

So, let’s look at what he has said. In #1 and #2, he suggests that it is a “legal theory” the “‘purely’ intrastate possession of a firearm cannot be infringed by the federal government”. Well, the Second Amendment notwithstanding, the Commerce Clause is based ” foreign Nations, and among the several States, and with the Indian Tribes”. And, the government has yet to directly control intrastate commerce under the provision.

There is little doubt that the government has tried, by twisted abuse of our language (See Motion to Dismiss Indictment), tried to extent their authority to any firearm that had been in interstate commerce, though, as we will discuss, they change the language when it suits their purpose.

In #3 and #4, he suggests that it is an “unrelated constitutional theory”. In this same document, he cites the Constitution as the authority, as he sees it, as absolute, as if spoken by the King, himself. So, there is no theory allowed on the public side, since only the government side can cite their interpretation of the Constitution as legitimate. This kinda makes you wonder why they even use a pretext of justice when they simply want to imprison someone.

In both #4 and #5, he suggest that it is “irrelevant” that Massey challenge the Indictment because he has no standing, presumably, to defend himself. Once again, the King has spoken.

In 1936, in the Supreme Court decision of Ashwander v. Tennessee Valley Authority (297 US 288), Justice Brandeis, in a separate but concurring decision, provided insight into the evolving role of the United States Supreme Court, wherein he said:

The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:

[Rule] 5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation…”

It was clear that the matter of standing had to do with matters brought to that Court, on certiorari, or error. It did not provide a means whereby a trial on criminal charges, in the lowest court of the federal system, could deny standing to challenge the law or the jurisdiction of the matter upon which one was charged.

In #6 and #7, he tends to give credence to the legal theory by stating that theory and case law are “contrary to [Massey’s] proposition”. However, we must understand that the government proposed another “legal theory”. That “theory” is suggested in the following excerpt:

Were Congress to make the proper findings and act in the interest of the “general Welfare” of the people of the United States, it is theoretically possible Congress could, and theoretically possible Congress does, have the constitutional power to regulate and criminalize all possession of firearms by felons. Congress, however, has not chosen to act pursuant to alternative powers and has instead relied on the Commerce Clause. Because of this, an interstate nexus relating to possession of the firearms is an element of the crime and any challenge the Defendant is raising in regard to “purely” intrastate possession is a factual challenge, not a constitutional one.

Now, this brings us into a whole new world of conjecture. He theorizes that Congress could, do, and does have the power to, criminalize any possession by any felon, anywhere within this (mythical) Kingdom. It has bee clearly established, when Equal Protection was discussed, that if a firearm or ammunition were manufactured in a state, those possessing such firearms and ammunition are not subject to criminal charges, since the firearm and/or ammunition had not entered interstate commerce. So, is Corley suggesting that Congress is too damned stupid to see the loophole that have left for those who live in certain states, or that they are wise enough to know that those living in those states are not the type that the felon in possession law was intended for, regardless of the fact that those with felony convictions are still felons. Or, his the King (government), perhaps, capable of doing wrong?

If his theory were correct, under the “general Welfare” provision of the Constitution, they (Congress) could dictate any, and every, aspect of our lives. Now, there is little doubt that they are slowly creeping in that direction, but AUSA Corley seems to think that we have already arrived.

Moving right along, we find, on page 6 of the Government’s Response:

“Article III of the Constitution grants the Judicial Branch authority to adjudicate ‘Cases’ and ‘Controversies.’ In our system of government, courts have ‘no business’ deciding legal disputes or expounding on law in the absence of such a case or controversy.” Already, LLC v. Nike, Inc. and DaimlerChrysler Corp. v. Cuno. “A controversy is mooted when there are no longer adverse parties with sufficient legal interests to maintain the litigation.” “Accordingly, an actual, live controversy must remain at all stages of federal court proceedings, both at trial and appellate levels.”

Talking about stretching the hell out of an argument, the controversy here is a criminal charge brought by the US government against Massey. It is not a dispute between parties, it is an accusation based upon the misapplication of a statute. Is it even conceivable that someone, especially a highly paid public servant attorney, could deny an accused person of challenging the misrepresentation? Or, can the King (Corley) do no wrong?

Now, I expect that you are getting as bored at reading this as I am at having to wade through it (I do have my boots on), to find the little gems that (if I were a psychiatrist) demonstrate the insanity, or at least the mental instability, of the person who prepared the Government’s Response. Surely, not even the King would allow him to pass the background check, on mental grounds, to own a firearm.

But, there are two more rather interesting point that warrant our attention. Sorola cited McCulloch v. Maryland with reference to “limited powers” of government, according to the Constitution. In what appears to be a DOJ (Department of Justice) boilerplate insert (page 10), he suggests that the limited powers of government have a broad interpretation. From the Government’s Response:

In citing from McCulloch:

This government is acknowledged by all, to be one of enumerated powers.

“But, there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the Tenth Amendment, which was framed for the purpose of quieting excessive jealousies which had been excited, omits the word ‘expressly,’ and declares only, that the powers ‘not delegated to the United States, nor prohibited to the states, are reserved to the states or the people;’ thus leaving the question, whether the particular power which may become subject of contest, has been delegated to the one government, or prohibited to the other, to depend upon a fair construction of the whole instrument.”

“So with respect to the whole penal code of the United States; whence arises the power to punish, in cases not prescribed by the constitution? All admit, that the government may, legitimately punish any violation of its laws; and yet, this is not among the enumerated powers of congress.”

Then, in Corley’s own words (the King has spoken):

It should come as no surprise then that the Supreme Court ruled in McCulloch v. Maryland that Congress had the power to incorporate a bank despite having no specifically enumerated power to do so. The precedent set nearly two hundred years ago in McCulloch v. Maryland works against Defendant, not for him.

Now, he talks about if not prohibited, and in the case of the matter of McCulloch, dealing with the creation of a bank, there is no prohibition against the government so doing.

But, the “legal theory” presented makes clear that there is a prohibition against the government’s intervention into the right to keep and bear arms, known as the Second Amendment, and the prohibition therein is called “infringement”.

Nowhere does the constitution address the government’s inability to infringe upon the creation of banks. In fact, there is much said about coin and currency, all implying such powers as necessary with regard to banks. So, just how does that work “against the Defendant”?

The second is an effort to conjoin “Militia” and “people”, as expressed in the Second Amendment, as only the “body of the people” (pages 11-13). He cites a “Second Amendment constitutional scholar”, which, apparently, he places the opinion of above the written laws.

If we consider that the framers of the Constitution were far more particular in the choice of words that the AUSA, we can easily dispute the effort to co-join, since they used both “Militia” and “people”. And Congress, surely, is more meticulous than the AUSA, when they enacted the following:

10 U.S.C. § 311: Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are –

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

So, here we have “members of the militia”, who are, clearly, individuals, like people. However, that doesn’t stand as the only element that suggests individuality.

10 U.S.C. § 312: Militia duty: exemptions

(a) The following persons are exempt from militia duty:

(1) The Vice President.

(2) The judicial and executive officers of the United States, the several States, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

(3) Members of the armed forces, except members who are not on active duty.

(4) Customhouse clerks.

(5) Persons employed by the United States in the transmission of mail.

(6) Workmen employed in armories, arsenals, and naval shipyards of the United States.

(7) Pilots on navigable waters.

(8) Mariners in the sea service of a citizen of, or a merchant in, the United States.

(b) A person who claims exemption because of religious belief is exempt from militia duty in a combatant capacity, if the conscientious holding of that belief is established under such regulations as the President may prescribe. However, such a person is not exempt from militia duty that the President determines to be noncombatant.

Though some are general in nature, others are, without a doubt, applied to individuals of certain character. So, if the “theory” of the AUSA is correct, and whether the Congress wanted to us the “general Welfare” provision, or the Commerce Clause, they would have, if what Corley wants to suggest, surely have included a class of people known as “felons”.

So, I wonder what the King will have to say about the obvious, and rather discomforting, exclusion of “felons” from the most logical source of limitation of the right to bear arms. Is it possible that the King (Congress) can do no wrong, and accordingly, will not “infringe”, except via the “Commerce Clause”?

 

Arizona Misfits – A Bad Operation Gone Worse

Arizona Misfits
A Bad Operation Gone Worse

comedy tragedy 04

Gary Hunt
Outpost of Freedom
August 6, 2015

Part 1- The Characters

Three men from Arizona have been charged with “to intentionally combine, conspire, confederate, and agree together, to possess with the intent to distribute five kilograms or more of a mixture or substance containing a detectable amount of cocaine, its salts, optical and geometric isomers, and salts of isomers, a Schedule II controlled substance, in violation of Title 21, United States Code, Section 841(a)(1) and (b)(1)(A)(ii)(II).”

One of the three has also been charged with, that he “did knowingly possess a firearm, in furtherance of a drug trafficking crime, that is, Conspiracy with Intent to Distribute Cocaine, as alleged in Count 1 of this Indictment, a felony prosecutable in a Court of the United States.

Parris Frazier is charged with both counts. Robert Deatherage (aka Anthony Winchester) and Erik Foster are charged only on the first, cocaine, count.

We will begin with a look at the character of the main players, in this rather interesting story of the arrest of three men, who are professed patriots.

The ringleader was Parris Frazier, of Arizona. He is well known around some of the border operations, though he has been asked to leave some of the groups because he seems to have ideas, expectations, and methods which are beyond the reasoned thinking of those running full, or nearly full, time operations.

He had visited one group, probably the best continually working operation on the Arizona-border, and was asked to leave after three days. He seemed apprehensive, perhaps even scared that something might happen when on an operation and would frequently take a break in the shade, and wait for the others to return. One of the sources described him as possibly bi-polar. He had been known to change moods, without provocation, described as someone who “would go off” in a minute, and then become calm and sedate, in the next minute. Another source claimed that after a few miles, Frazier asked someone to carry some of his gear. Physically, at about 50 years of age, he was not up to the task.

Frazier had gone to the Bundy Ranch, April 2014. While there, if given an assignment, he would take charge and move the others working with him to completion. However, when left in charge in one situation where there was no oversight, he displayed unnecessary and offensive behavior by assuming that some friends of the Bundys, who were retrieving their cattle with cattle trailers, must be BLM and gave them a hard time, without verifying who they were. This was a rather embarrassing situation for the militia, though those competent people in charge were able to reconcile the situation.

It would appear, then, that though a good worker when in charge, he is not a stable leader, nor is he competent, as it appears that he does not think through the situation, or the consequence of his actions. He often talked of “kills” along the border, though most who know him doubt that he has the fortitude or the ability necessary to accomplish such a task. He has bragged about kills while in the service, though it appears that he was in an artillery unit and his entire service was stateside.

More than likely, when he conducts his own border operations, they are simple larks in the desert, with no useful purpose. He might best be described as a “wanna be”. As a result, many patriots within of the border protection community chose to maintain a distance from him.Frazier FB PM Something big

His behavior is such that he probably has trouble keeping a group together for very long, which would explain why, after the events that led to his downfall began, he contacted someone he had met on Facebook and made an offer for him to join “something big”. Frazier never used any form of vetting before soliciting participants in any activities.

This irrational approach, bringing someone into some criminal activity, whom he had never met, or had never even tried to vet, demonstrates an irrational behavior that is inconsistent with any aspect of leadership requiring discretion.

Next, we have Robert “Rob” Deatherage (aka Anthony Winchester). It appears that he is an adherent to Frazier, committed to some cause but clearly associate with incompetent leadership. He attended Jon Ritzheimer’s Freedom of Speech Rally (Phoenix Muslim event), in full battle gear.

He has claimed to have been shot while working the border, though he has no wound scars to prove this point. He has also claimed to have made “kills” on the border, though this has not been confirmed by any source.

Deatherage has been close to Frazier for years, though there was a split up during the Bundy Affair that was reconciled a few months later. His military experience was in Navy Search and Rescue, though he has claimed to have made “kills” while in the service.

Erik Foster was from Idaho and he came on the Arizona scene about the time he attended Ritzheimer’s Freedom of Speech Rally. He was looking for a group to join, and by chance crossed paths with Frazier, he always has stories and exploits to impress the unknowing. Apparently, Foster felt that this was the group he should join.

Randon Berg was one of the early participants and participated in the first two Operations, which were cash grabs. He has not been charged federally, since he was not a participant in the third Operation (cocaine), though he may not be in the clear under state law. He had been a friend of Frazier for some time.

Frazier was the ringleader, however, he was not a competent leader, and whether he is a patriot is, at best, questionable, as he appears to be more of a gigolo, and has learned to live off of others, as long as he can, and then moves on to the next one. He simply found easy pickings within the patriot community.

The other two, unfortunately, bought a good line, and never seriously thought of the consequences, nor did they do an honest evaluation of the leader they chose to follow.

* * * * * * * * * * * * *

Part 2 – The Introduction

Frazier, Deatherage, and Foster were arrested on July 22, 2015. However, the story begins back in January. Task Force Officer (TFO) John E. Kelly, Federal Bureau of Investigation filed the Criminal Complaint. He acknowledges working “the Phoenix Division FBI Joint Terrorism Task Force (JTTF), squad NS-3, in Phoenix, Arizona. This squad is responsible for investigating many different types of criminal violations including domestic terrorism, weapons of mass destruction, illegal militia activities, and illegal sovereign citizen activities.” We are going to let TFO Kelly tell us most of the story (italicized).

On January 24, 2015, during a “traffic stop” by Customs and Border Patrol (CBP), Frazier began a conversation with the agents. The agents “mentioned that an informal source had been providing them with information regarding illegal border activities, but they could no longer operate that source. FRAZIER expressed his interest in contacting the source so he could use the source’s information to assist in protecting the border.”

Note that the purpose was to “assist in protecting the border”. Note, also, that this was a “traffic stop”. It does not say “checkpoint”. A traffic stop is when you are pulled over by an officer. I don’t recall that this is a common practice of CBP. Is it possible that they had identified Frazier as someone that they had wanted to set up?

On February 11, Frazier received a phone call from an unnamed individual, though identified later as an “undercover employee” (UCE) of the FBI. He claimed to be the “informal source” that had been mentioned on January 11. The conversation was recorded, though we don’t have the recording. However, what we are told is that the discussion went, immediately, to other than “protecting the border”. Parentheticals are from the Criminal Complaint:

In the conversation, the UCE asked what FRAZIER was looking for so he can start looking for jobs. FRAZIER said that he had a small group of Patriots that he trusted and they were trying to take care of (steal) anything that came up out of Mexico (drugs) or was going back into Mexico (bulk cash), but they preferred the cash loads going south. FRAZIER told the UCE that if he provided decent intel on stuff going south (bulk cash), FRAZIER would give the UCE a percentage of whatever is taken. FRAZIER said that his group is a bunch of professionals and none of them are tied up in law enforcement.

It appears that the purpose was to get rich, quick, rather than to protect the border. By this time, Frazier assumed that he was working with a disgruntled cartel member.

* * * * * * * * * * * * *

Part 3 – The First Operation

On March 4, in an in-person meeting, Frazier said that he wanted “cash loads going south”, and that he would give the “source” (UCE) 25% of the take. Frazier offered, “if we (his group) have to dispatch (kill) some people, we will dispatch some people. FRAZIER said that his guys are mercenaries and they just want to rip cash. However, he also said that he planned on killing all of the individuals guarding the cash to ensure that his guys go home at night. In addition, FRAZIER offered to kill anyone that the UCE wanted taken out.”

On March 11, in a phone conversation, Frazier said that “he would like GPS coordinates for the job location so he and his guys can get there before the package shows up. FRAZIER said that when the job does go down, ‘it will be very violent and very quick.’ He said that they can’t leave any witnesses.”

On March 25, Frazier and the “source”, in a phone call, hatch the following plan:

The UCE said he is going with his cousin to drop off a vehicle with $20,000. He said that if that gets taken off, it will make the UCE’s uncle mad at the cousin. The UCE said that if he can get the cousin out of the picture, then the UCE will be able to provide bigger stuff that his cousin will get blamed for. The UCE said that his uncle is making the cousin personally drop off the vehicle with the money. The UCE said that he and his cousin are going to drop off the vehicle and leave it so the backpackers can load it and take it up to Phoenix. The UCE said that FRAZIER and his group can get in the vehicle and take the cash before the backpackers arrive so that it makes the UCE’s cousin look like an idiot.

Between this and the next event, on March 29, Frazier tried to enlist another patriot, though he had never met him and had only communicated with Facebook and Facebook PM (explained in Part 1). The other patriot, wisely, declined.

Now we move into the action. On April 2, we have the following first attempt at seizing a “cash load”, and, perhaps, a demonstration of incompetence:

FRAZIER and an associate [unidentified] attempted to steal money from a staged “cartel load vehicle” that contained $8,000. The attempted cash rip was observed by FBI surveillance and captured by video surveillance equipment outside the vehicle and audio/video equipment inside the vehicle. During the rip, FRAZIER and his associate were dressed in camouflage clothing and were wearing facemasks. They also had on tactical vests and were carrying AR-15 style assault rifles with optical sights. Both individuals were observed searching the vehicle; however, the $8,000 in cash was not taken.

FRAZIER said he and another guy searched the load vehicle but didn’t find anything. The UCE tells FRAZIER that the cartel members found $8,000 in the vehicle but it looked like his cousin had pocketed the other $12,000 that was supposed to be there. FRAZIER explained how he and his guy searched through the vehicle for several minutes.

So, after the bungled operation, and, an interesting deception by the UCE, where he claimed that the “cousin” had taken $12,000 and left $8,000, that Frazier could not find. He was going to set up the cousin and get him in trouble with the uncle, but now we have a story line that would have gotten the cousin in trouble, and possibly killed, if it was really Cartel money. However, Frazier, apparently, didn’t even consider the shift in the story, and, perhaps, realize that something was fishy.

* * * * * * * * * * * * *

Part 4 – The Second Operation

Now, let’s move into something that sounds more like a gangster movie. On April 9, during a phone call, the following transpired:

FRAZIER asked if the UCE had another job for him. The UCE said he might have something coming up soon. FRAZIER said it looked like the UCE was slowly trying to get his cousin out of the way. The UCE said that was correct. FRAZIER said, “How about I lay an offer out on the table that we just get him out of the way for you.” The UCE asked how they would do that. FRAZIER said he has someone that could take care of it if they could be set up somewhere before the UCE’s cousin arrived. FRAZIER said that they could solidify an ongoing business venture from there. The UCE asked if he is going to have to pay them for killing his cousin and FRAZIER responded, “Yeah, we’ll have to definitely get something monetarily out of it.” FRAZIER said that the UCE would then be in a better position and that his guys are the ones to take care of any other competition that may get in the way of the UCE. FRAZIER said he still can’t believe that they missed the money in the last job. The UCE asked if they want to do one more load vehicle and then take care of his cousin. FRAZIER agreed. FRAZIER said that he is offering the UCE a faster route to get rid of his cousin. FRAZIER said that it won’t be cheap, but it won’t be super expensive. FRAZIER said that he and his guys are mercenaries.

So, now, Frazier is the head of some “mercenaries” and has moved on to “hit” jobs, a hired killer. Frazier has probably never fired on a human being in his life, though he has often claimed that he has.

However, on April 19, the opportunity for Operation #2 begins to come into focus, and Frazier will start looking at taking drugs as well as “cash loads”, in a recorded phone conversation.

The UCE asked if FRAZIER is ready for something on Thursday or Friday. FRAZIER said that those days are good and asks if the UCE would have more intel so FRAZIER can be closer, The UCE said he hopes so, but it depended on what way the backpackers go and when he finds out when they can be there. FRAZIER said that after this job they should meet in person to discuss the other thing (murder for hire) because FRAZIER doesn’t want to talk about that over the phone. FRAZIER again said that Thursday or Friday would work for him because that gives him time to take care of some things and to brief up his guys. FRAZIER asked what kind of impact it would have if he had 3 – 5 guys pick off the load (drug load) as well. The UCE said he is still trying to make his cousin look bad so it would be better if they didn’t take the drugs.

On April 23, this Operation was conducted. This time, Frazier and crew got the “cash load” they had been seeking. It began with a phone call:

The UCE asked if FRAZIER was ready. FRAZIER said that they have been ready. The UCE gave him the latitude and longitude coordinates for where they parked the vehicle. FRAZIER verified that there won’t be anyone out there with the vehicle, but there would be people watching them. FRAZIER said that they aren’t really worried about it getting too hot (with the cartel response); they are worried more about LEO (law enforcement officers) than anything else.

Based upon government observation:

FRAZIER and his associate stole $7300 from a staged “cartel load vehicle.” The cash rip was observed by FBI and Phoenix PD surveillance and captured by video surveillance equipment outside the vehicle and audio/video equipment inside the vehicle.

This was followed by a phone call:

The UCE asked how it went. FRAZIER said there was only $7300. The UCE said his cousin must have taken the rest of the money when he was driving the vehicle down there. The UCE said he’s got to sort everything out. FRAZIER told him to do that and then call if he has another job. The UCE said they should meet up to discuss the other thing (murder for hire).

Two people have confided that they spoke with Frazier during this two month interval and he had told them that he was in a motel in Flagstaff, had just ordered two hookers and some pizza, in an effort to recruit at least those two, and then demonstrate that what he was doing was beginning to pay off. Both sources wisely declined his offer.

* * * * * * * * * * * * *

Part 5 – The Third Operation & Bust

It appears that Foster was recruited about this time, perhaps to replace Randon Berg.

Then, in a phone conversation on June 21:

The UCE said he hasn’t been able to get a hold of FRAZIER for a while. FRAZIER said he picked up a job in the Midwest [Flagstaff?] and has been out of town. The UCE said he had everything set up (for the murder for hire) but he was never able to get a hold of FRAZIER. FRAZIER said he had to leave in a hurry for a job and didn’t have his burn phone with him. The UCE asked if they are still going to do stuff. FRAZIER said he was going to ask the UCE the same question. He said he knows they missed the opportunity in California [this is not explained] and told the UCE to tell him if he had any more ideas. The UCE asked if FRAZIER wanted anything else in the meantime while they earned back each other’s trust. FRAZIER asked if the UCE knows of any cash that could be “jumped up on.” The UCE said cash will be hard since it is so hot, but they could do some regular loads that the UCE could buy off of them or sell and then get FRAZIER the money. FRAZIER said they could do that and asked when the next job would be. The UCE said he will start looking. The UCE asked if FRAZIER was willing to take down some loads and FRAZIER said he would like to grab the cash and then wait for the load to show up. The UCE said he won’t be able to get the cash until he sold the load off. FRAZIER clarified that the UCE knew of some loads that they could rip and then get the money from the UCE for the drugs.

So, now we are seeing Frazier getting set up for what turned into the drug possession bust. Then we have a June 28 phone conversation where Operation #3 is beginning to be discussed.

FRAZIER asked what the UCE has. The UCE said he has a load coming up in late July. FRAZIER asked what will be in the vehicle. The UCE said it will be between six to ten kilograms of cocaine, maybe a little more. FRAZIER asked what the UCE is willing to pay for it and the UCE replied that he will pay FRAZIER $15,000 per kilo. FRAZIER said that is good, he just wanted to know the details of where and when with enough time so he could plan. FRAZIER said they will definitely do this one, but then said he wants to talk to his teammates first to make sure everyone was on-board. The UCE said he will be able to pay FRAZIER on delivery of the drugs. They agreed to talk again about it as they get more details. FRAZIER said he is meeting with his group next weekend to discuss everything.

The plan began to come together, as explained in this July 10 phone conversation:

The UCE asked if everything is good. FRAZIER said it is all good on his end. The UCE said that his buddy called him and said he should be driving up the load vehicle on the 19th, 20th, or 21st. The UCE also told FRAZIER that the group will probably use a warehouse located off of Interstate 17. FRAZIER said that works for him. The UCE said he and his buddy would take care of the other guy (entertain the security guard) so FRAZIER didn’t have to worry about him. FRAZIER asked how long he will have for the rip. The UCE said FRAZIER would have some time, but he couldn’t take too long. FRAZIER said he just needs 45 minutes. They discussed finding a place for them to meet up as they got closer to the rip.

More details emerged on July 20, in the following phone conversation:

FRAZIER asked if the UCE has good news for him. The UCE said that the driver will head up to Phoenix on Wednesday (July 22nd ) with the load vehicle. FRAZIER asked what time it will be and the UCE said that they would start driving in the morning and arrive in Phoenix in the afternoon. FRAZIER asked if the UCE has an idea where it will be stashed. The UCE said that it will be in a warehouse area off of I-17. FRAZIER said that is a big area and asked if it would be south of I-10 or north of I-10. The UCE said he doesn’t know yet because they used different places. The UCE asked if FRAZIER was good with it and FRAZIER said yes. FRAZIER said his guys were ready to move right now and they were all good to go. The UCE said he already had the stuff sold off to potential buyers so he could get the money to FRAZIER soon afterward. FRAZIER said that their only concerns are getting the package. FRAZIER said that he already had two spots picked out in the east valley where they can do the exchange with the UCE for the cocaine. The UCE said he will meet up with FRAZIER real quick beforehand and then show FRAZIER the location of the drugs. FRAZIER said that his guys thought it was going down today, but he was good with waiting until Wednesday. The UCE reiterated that he wanted to make sure FRAZIER and his guys (later identified as ROBERT DEATHERAGE and ERIK FOSTER) were good because he has buyers already. FRAZIER asked how much (cocaine) will be there and the UCE said it would most likely be 10 kilos, maybe more. FRAZIER said that was good and they already agreed on a price, so he told the UCE to call him Wednesday morning. FRAZIER said he would meet up with the UCE to have him show him where the drugs are and that his guys will be following them around. He said his guys were ready to go at the drop of a hat. The UCE said he just wanted to make sure it was done nice and professional so they could keep doing it a couple more times in the future. FRAZIER said his guys are good to go. The UCE asked if they’ve done this before and FRAZIER responded that they have. FRAZIER said they’ve done a lot of different things and they have all acquired a body count on different continents. FRAZIER said this will be a walk in the park as long as everything was cool on the UCE’s end and no “heat” was drawn in. FRAZIER said that if “heat” was there, there would be a firefight and that would be the last time they do business together. The UCE said no one will be there.

July 22, 2015, the really big day comes around. Frazier had bought bolt cutters to break the warehouse lock. Everything was a go. He met with the source that morning, in Phoenix,

to discuss final details of the drug rip. FBI surveillance observed FRAZIER, DEATHERAGE and FOSTER follow the UCE in a black Toyota Camry driven by FOSTER to a warehouse located on 39th Avenue in Phoenix, Arizona. The Toyota Camry did not have a license plate on the vehicle. Surveillance then observed the Camry drive around the vicinity of the warehouse for approximately 15 minutes in an apparent reconnaissance of the site. Eventually, the Camry containing all three defendants drove up to the warehouse gate and stopped. Surveillance observed FRAZIER and FOSTER exit the Camry and FRAZIER cut the lock on the gate. FRAZIER and FOSTER then proceeded on foot into the gated area of the warehouse. This gated area of the warehouse was under recorded video observation in addition to being observed by FBI surveillance. While under recorded video observation, FRAZIER gained access to a Hyundai Tucson while FOSTER acted as security. The Hyundai Tucson contained one package of actual cocaine weighing approximately one kilogram and nine packages of cocaine stimulant that also weighed approximately one kilogram each. These packages were wrapped in red plastic wrap and secured with packaging tape. While under recorded observation, FRAZIER grabbed six of the packages, including the one containing actual cocaine. Surveillance then observed FRAZIER and FOSTER proceed on foot back to the Camry where DEATHERAGE was waiting in the driver’s seat. The Camry containing the three defendants, drove away from the warehouse at a high rate of speed. As they were departing, FBI SWAT attempted to stop the Camry by pursuing it in several vehicles all of which were flashing their emergency lights and sounding their police sirens. The Camry didn’t yield and continued to flee from FBI SWAT at a high rate of speed. In the interest of public safety, the chase was called off, but surveillance of the Camry was maintained via an FBI aircraft. Surveillance observed one of the subjects throw a bag out of the window of the Camry in the vicinity of 43rd Avenue and Grand Avenue in Phoenix. This bag was eventually recovered by an FBI surveillance team and contained the six packages that had been removed from the Hyundai Tucson by FRAZIER, including the package containing the actual cocaine. Surveillance continued to follow the Camry and observed it pull into a garage of a residence located at on East Anderson Avenue in Phoenix, Arizona. FBI SWAT then surrounded the residence and called out all of the occupants, including FRAZIER, DEATHERAGE, and FOSTER who were placed under arrest. The fourth occupant was Frazier’s girlfriend, who was renting the property. Signed written consent to search the property was acquired from the Frazier’s girlfriend and during a subsequent search of the residence, and numerous rifles, assault rifles, and handguns were seized as evidence.

What good story doesn’t have a chase scene? However, it appears that Frazier, et al, failed to scope out the area, for surely they would have found the FBI SWAT vehicles, and the all of the other law enforcement personnel.

In the final scene of what now begins to look like a comedy, we have Frazier waiving Miranda (damned dumb), and telling all — on his buddies. Heck, don’t make them work to get a conviction, just hand it over to them.

Oh, yes, that final scene:

FRAZIER was interviewed after his arrest at the FBI building in Phoenix and the interview was recorded on video and audio. After waiving his Miranda rights, FRAZIER admitted to conducting the drug rip at the warehouse with DEATHERAGE and FOSTER and stated they intended to sell the stolen cocaine to the UCE later that day for a total and splitting the money evenly between the three of them. FRAZIER admitted that during the rip, he was carrying a pistol and had his assault rifle stored in the getaway vehicle. FRAZIER also stated that during the rip DEATHERAGE and FOSTER also had assault rifles and pistols in their possession and that these firearms were among those seized from the East Anderson residence. FRAZIER also admitted that near an intersection with Grand Avenue, while fleeing from the FBI SWAT units, they threw a bag out of the passenger side of the Camry and that this bag contained the stolen drugs.

When we look at the players and their very subjective purpose, for personal gain, we have to wonder whether they can be truly called patriots. A patriot is looking to serve his country, not himself. When the proceeds of their activities go into personal pleasures, rather than improving their mission capabilities, they have removed themselves from the cause and demonstrated that they are simply using the claim of patriotism for their own purposes.

There are lessons to be learned with this story, but most importantly, don’t trust anyone until you have done a thorough job of vetting them, including following someone claiming to be a “source” to see where he goes from the meeting, and then to where he goes to spend the night. That extra effort may save you twenty years of your life.

 

Jon Ritzheimer – When did Freedom of Speech Become Hate Speech?

Jon Ritzheimer
When did Freedom of Speech Become Hate Speech?

Ritzheimer family

Gary Hunt
Outpost of Freedom
June 3, 2015

Jon was born in San Diego County, California in 1983. He was raised in Lakeside and graduated from El Capitan High School. He worked briefly after high school in construction, though having no direction, decided to join the Marines in 2002.

Most of his military service was stateside, though he served a tour in Iraq in 2004-2005. He was a Motor Vehicle Operator (MOS 3531), stationed in Ramadi. He did convoy security and was subjected to gunfire and IED attacks. He returned to Iraq in 2008, this time operating an MRAP, which he lived in “outside the wire”, eating, drinking, sleeping, and living in the MRAP for five months. No showers and the toilet was a “wag bag”.

His time in service included adverse reports due to his criticism of Obama, and having tattoos that were outside of the policy limits. This caused him to not reenlist. He continued in the Marine Reserves until 2014. During his service he received the standard combat awards and a certificate of commendation for one of the actions in which he was involved. It might be worth noting that he was never fired upon by any Christians, throughout either tour.

Jon married in 2007, then, after leaving the Marines, began using his GI benefits to get an education. First, he worked for a Harley-Davidson dealer, then left to set up his own motorcycle repair business, which he ran until the threats that were being put out caused him to look to the safety of his family, which now included daughters 2 and 4 years old.

Jon is much like many thousands of Americans who pursued life, served their country, educated themselves, and began working to support a family, eventually having his own business.

Seeing, as many do, that Muslims are attempting to establish Shariah Courts, impose Shariah law requiring women to be covered, ankle to the top of their heads, Ritzheimer became concerned over the potential effect of Islam in this country. It wasn’t quite enough for any more than concern, but he did remember what he had seen in Iraq. How can freedom of speech be denied, not by government, rather, by the threat of the use of force?

The recent “Draw Mohamed” event in Texas, and the attempt by two Muslims from the Phoenix Muslim Center, to assassinate those who had gathered for the event, hit a nerve. Our right to freedom of speech is unquestionably one of the most important rights that we Americans have. To assert that right, and to show that Americans will not allow intimidation to force us to relinquish even the smallest bit of that right, led him to conceive of the Freedom of Speech Rally. The first Rally, on May 17, getting little attention, and had only a few participants. However, being a Marine (there is no such thing as an ex-Marine); he was determined to get the job done by organizing the second Rally, held this past Friday, May 29.

This Rally brought hundreds to the Mosque, both pro Free Speech and those who mistook the purpose of the Rally, on the other side of the road, to defend Islam.

This second Rally managed to get attention, not only in Phoenix, but nationally. Unfortunately, as the press often does, they “rewrote” the purpose of the rally in an effort to demonize Ritzheimer and try to turn a Freedom of Speech Rally into a “Hate Rally”. Ritzheimer began to fear for his safety, and the safety of his family. He began to question whether this event, at a mosque, would lead a situation similar to that which was attempted in Texas, and was successfully carried out in France. So much for Freedom of Speech and the Press. However, the theme was that we would not be intimidated into not speaking what we want, in our own country.

Ritzheimer admits that the shirt he wore at the Rally, amply stating “F**k Islam” was not in good taste, and he regrets it. He told me that he has a hard time believing that, since there are so many Muslims out there, they can all be bad (prone to accept radicalism). However, his reading of the Koran raises questions, though some Muslims may sincerely believe that we can live in harmony. He also apologizes to all Muslims of the latter sort.

As the attention to the Rally went national, and the press chose to redefine its purpose, Ritzheimer began to fear for his safety, the safety of his family and those attending the event. Questioning whether going to the mosque might subject them to the consequences that were attempted in Texas, and successful in France. Subsequently, he began to encourage the lawful carrying of firearms to the event, as a means of self-defense against any attempt by the Muslims to use force to suppress freedom of speech.

As the event drew near, friends, and even people unknown to Ritzheimer, informed him of the reaction from what appears to be the Muslim community, quite possibly from as far away as ISIS in Iraq is.

Note that the military advised prior service members to use caution, giving credibility on the part of the government, to the implied threat because of messages similar to these:

Twits

(Note: SAW (Sallah Allah Alayhi Wa Aaleh) = Peace be upon him and his household.)

As apprehensive as he was at the start of the Rally, he was relieved to see that the police department had done the unexpected. They “Police Line” taped both curb lines to keep the two sides apart, and then stationed their officers along the centerline of Orangewood Avenue, facing the officers in alternating directions, so that neither side was singled out by the neutral police department, who was there only to assure the safety of all concerned.

Though Jon realizes, now, that the Free Speech Rally could easily be misconstrued, regardless of what he intended, he still believes in, and stands for, the right of Americans to speak freely what they feel. Regardless of whether an inverted crucifix in a jar of urine expresses Freedom of Speech, or a carton drawing of Mohammed, Freedom of Speech is essential to the continuation of our great nation. Jon will continue to support that freedom, just as he supported it when he went, willingly, to Iraq to assure the Iraqis had a chance to establish that right.

Jon Ritzheimer is praised for supporting freedom of speech in the Muslim country of Iraq, and then condemned for supporting free speech in the country that sent him to Iraq. Those who have condemned Jon Ritzheimer, by so doing, have condemned the very fabric of our country.

 

Camp Lone Star – Act Two: The Contradictions Scene 3: To Be, or Not to Be – Forthright

Camp Lone Star – Act Two: The Contradictions
Scene 3: To Be, or Not to Be – Forthright

contradiction red blue real

Gary Hunt
Outpost of Freedom
April 14, 2015

In Act One: The Government Charade, Judge Hanen graciously gave Prosecuting Attorney Hagen, the opportunity to respond to the Motions to Suppress and Dismiss, in greater detail, since he had failed to address some of the points presented in Mr. Sorola’s motions. The deadline for the response was April 10. So, we anxiously awaited that filing to see if Hagen could dig out of the hole he had created for himself, with his prosecution (persecution?) of K. C. Massey.

Well, I received a copy of Government’s Supplementary Response To Motion Suppress And Motion To Dismiss Indictment, on Friday, April 10. Now, it is typical of the “case law” method, which, well, let’s use the description of Teddy Roosevelt’s thoughts on this method, from the book “Bully Pulpit”, by Doris Kearns Goodwin. Case law method was developed at Harvard in 1872. Though the pleasure he took in his studies is amply expressed in his journal, he was troubled that ‘some of the teaching of the law books and of the classroom seemed to me to be against justice.’ He noted critically that ‘we are concerned with [the] question of what law is, not what it ought to be.'” So, like Teddy, we are stuck with what law is, not what it ought to be.”

Hagen’s Response addresses a number of higher court opinions, both Supreme and appellate, though we will only be looking at those opinions of the Supreme Court. So, let’s look at just how Mr. Hagen attempts to extricate himself from that hole. At this time, we will only address the Response to the Motion to Suppress.

First, he addresses the Motion to Suppress Evidence. In so doing, he lists the following:

(i) Defendant was observed carrying a rifle and that observation was made prior to any alleged search or stop;
(ii) Defendant was asked for his identification by law enforcement in the course of investigating a shooting involving a federal agent;
(iii) Defendant was detained after the shooting occurred as potential witnesses;
(iv) Defendant’s firearms were seized to protect both law enforcement and civilian witnesses; and,
(v) Defendant’s possession of two firearms was in violation of both state and federal law.

Regarding (i), this was discussed in the previous article. If the act was criminal, why did the government not arrest Massey when the observation was made? The answers rests on identification of Massey and determination of his status, none of which would have occurred had the “stop” or “detention” not occurred. Should we “cooperate” with law enforcement if going about our daily lives might result in subjecting ourselves to directed persecution? In this case, the shooter, in violation of both law and policy, and, the subject of the “investigation”, goes free, while the non-witness is subsequently arrested. One has to wonder if this whole thing was a set up to “get Massey”.

Regarding (ii) & (iii), that, too, was addressed in the previous post. Someone who, like the “investigator”, Cantu, had no more information than Cantu had, until Cantu received a radio message and passed that same information on to Massey, does not really qualify as a witness to anything. This leaves the question of “stop” or “detention” open, and that will be discussed shortly.

Regarding (iv), Foerster, Massey, and Varner, all retained their weapons, posing no threat, as testified to by Cantu. Subsequently, the decision was made, by persons unknown, that the weapons should be “secured”. “Seized”, as described in the Response, has no relationship to the testimony.

Regarding (v), here comes a problem, with Hagen’s comprehension skills. He quotes Texas Penal Code, as follows:

Texas Penal Code § 46.04 Unlawful Possession of Firearm

(a) A person who has been convicted of a felony commits an offense if he possess a firearm:

(1) After conviction and before the fifth anniversary of the persons release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or

(2) After the period described by Subdivision (1), at any location other than the premises at which the person lives.

So, it says, in the singular, that he is in violation “if he possess a firearm”, before the fifth anniversary. Are we to assume that if he possesses more than one firearm, he is exempt from violation? It says nothing about any limitation after the fifth anniversary. Except, perhaps, in some secret version of Texas law that Hagen has hidden in his drawers.

Now, if Hagen is suggesting that Massey was not at “the premises at which the person lives”, the government also already stated that Massey had been at Camp Lone Star for four months. So, can there be any doubt as to where he lived at the time of this incident? The purpose of this provision is, without doubt, to provide the means for protecting the “premise”. Does that preclude someone from going on to his neighbor’s property, with that neighbor’s permission, to provide for that protection?

However, we can put that all aside, as Massey is not charged with violation of state law, Hagen has charged him with violation of federal law. The Sheriff’s Office has not chosen to file charges against Massey in their jurisdiction, so that makes Hagen’s argument somewhere on the other side of moot.

So, let’s look at the Supreme Court decisions that Hagen has cited to defend his position. First is Hiibel v. Sixth Judicial District Court Nevada 542 US 177. He argues that A police officer is free to ask a person for identification without implicating the Fourth Amendment.

So, let’s see what Hiibel says:

At 177, setting the background of the case, it says, Petitioner Hiibel was arrested and convicted in a Nevada court for refusing to identify himself to a police officer during an investigative stop involving a reported assault. Nevada’s “stop and identify” statute requires a person detained by an officer under suspicious circumstances to identify himself.”

At 184, we find Here there is no question that the initial stop was based on reasonable suspicion, satisfying the Fourth Amendment requirements noted in Brown.

Then finally, at 185, the pages cited by Hagen, we find, “Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment. [I]nterrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.” the Court has recognized that a law enforcement officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further.

So, just what were the “suspicious circumstances”, or “reasonable suspicion”, that existed on August 29, 2014, on the Sabal Palms property? Perhaps Hagen should be instructing BPS, FBI, and others, as to what is required to “investigate” and require that one identify himself, absent the criteria established by the Supreme Court. I suppose that we could also ask Mr. Hagen what the difference is between and “interview”, as described in testimony, and, “interrogation”, as cited in this case.

Then, he cites INS v. Delgado 466 US 210. He does not, however, provide any quotation from that case, so I suppose that quantity rather than quality might be his motivation, here. So, to put a context on the current situation, I will provide the quotations. This case refers to whether INS could profile by asking questions of employees being suspected of being illegal aliens. So, here is what the cited page, 216, tells us:

In contrast, a much different situation prevailed in Brown v. Texas, 443 U.S. 47 (1979), when two policemen physically detained the defendant to determine his identity, after the defendant refused the officers’ request to identify himself. The Court held that absent some reasonable suspicion of misconduct, the detention of the defendant to determine his identity violated the defendant’s Fourth Amendment right to be free from an unreasonable seizure.

Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment.

So, the Court has given us a situation, and then concludes, “Unless… a reasonable person would have believed he was not free to leave if he had not responded”, then the questioning was not a detention. However, Hagen as argued that this was a “stop” (Terry Stop), not a detention, and there is no doubt that when Massey “cooperated” in providing his identification, he had already been told that there was an investigation and that he could not leave.

Next, he cites United States v. Sharpe 470 US 675. At least he provides a context, and page (685), though, again, no quotation. So, we will begin at 684:

In that case, law enforcement agents stopped the defendant after his arrival in an airport and seized his luggage for 90 minutes to take it to a narcotics detection dog for a “sniff test.” We decided that an investigative seizure of personal property could be justified under the Terry doctrine, but that “[t]he length of the detention of respondent’s luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause.”

And, at the cited page 685:

While it is clear that “the brevity of the invasion of the individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion,” we have emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes.

So, in the first instance, a stop of 90 minutes was unreasonable, absent “probable cause”. And, in the second, there was an “invasion of the individual’s Fourth Amendment interests”, rests upon “reasonable suspicion”. They speak of “seizure”. That is what the Prosecution has claimed, and maintained by continue to retain, all of the firearms, except Varner’s. But, they were not “seized”, according to testimony. They were “secured” for Officer Safety.

Okay, just one more. This is United States v. Leon 468 US 897. Though no quotations are given, he points out that Rotunno, the agent who swore to the accuracy of the information used to secure the various Warrants and Criminal Complaint, was present neither at the shooting incident investigation on August 29, nor at the arrest on October 20, 2014. Quite simply, Rotunno “fabricated” (that is a polite form of lying) an important element of what happened on August 29, which implied that Foerster, and Foerster, alone, might have committed a criminal act by “pointing: his firearm at Gonzales. Massey and Varner were innocent parties to the entire episode. So, Hagen’s assertion might apply to Foerster, but the great leap to envelope Massey in his web is without any lawful or legal merit.

That doesn’t however, remove us from consideration of what the court said in U. S, v Leon.

In this case, a warrant was issued based upon observations during a drug trafficking investigation, by law enforcement officers. There was nothing illegal about the observations, nor were there misrepresentations, or outright lies, in the affidavit that resulted in the warrant.

The court held that Application of the exclusionary rule should continue where a Fourth Amendment violation has been substantial and deliberate, but the balancing approach that has evolved in determining whether the rule should be applied in a variety of contexts – including criminal trials – suggests that the rule should be modified to permit the introduction of evidence obtained by officers reasonably relying on a warrant issued by a detached and neutral magistrate.”

Further, that “the courts must also insist that the magistrate purport to perform his neutral and detached function and not serve merely as a rubber stamp for the police… However the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.”

And, that “A police officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable. Suppression remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth, or if the issuing magistrate wholly abandoned his detached and neutral judicial role.”

So, though even Foerster may find relief by this decision, Massey was nothing more than a bystander in the events of August 29, and nothing conjured by Hagen can change that relationship. There was never the requisite probable cause, suspicion, or any other factor, that would ensnare Massey in this web. It is only Hagen’s desire to please those “up the river” that forces him to persist in the persecution of K. C. Massey.

Now, I realize that what was just stated might be considered by some to be overstepping the bounds of propriety. However, we must not detach ourselves from the reality that we are constantly presented with the excuse that, “there are only a few bad cops”. We have learned, over time that “few” is a gross misrepresentation of reality.

Let us simply refresh our minds with a recent event wherein an innocent man spent thirty years on Death Row. He was released when his innocence was final acknowledged. His innocence was known by the Prosecutor, from the very beginning. That Prosecutor, Marty Stroud, has repented. Marty Stroud is demonstrative of the subject of the book, “Three Felonies a Day”, by Harvey A. Silverglate, in which the objective is to obtain a conviction, regardless of guilt, and to distort the wording of the law to achieve that end.

Camp Lone Star – Act Two: The Contradictions Scene 2: To Detain, or Not to Detain? That is the Question.

Camp Lone Star – Act Two: The Contradictions
Scene 2: To Detain, or Not to Detain? That is the Question.

contradiction hands vertical

Gary Hunt
Outpost of Freedom
April 12, 2015

Another question brought up in Sorola’s motion to suppress evidence was also addressed. At issue is whether he was detained, at which point he would have to be read his Miranda rights, which they did not do, or simply stopped for investigative purposes. The latter would be what is referred to as a Terry Stop. It is worth noting that a Terry Stop is defined as:

A brief detention of a person on reasonable suspicion of involvement in criminal activity but short of probable cause for arrest. To have reasonable suspicion that would justify a stop, police must be able to point to “specific and articulable facts” that would indicate to a reasonable person that a crime has been, is being, or is about to be committed.

As you read the testimony, decide what you believe the answer is. Remember that only two people were witness to any criminal activity — the shooting incident.

Mr. Hagen said, in his initial argument:

[T]he Border Patrol agent [then] fired several shots at Mr. Foerster, thankfully missing.

So that launched a — an investigation since a federal agent had discharged his firearm. That’s what brought the FBI and the Sheriff’s Department and Border Patrol Internal Affairs and all these people out to the area.

But as far as suppressing evidence, I think the government is on solid ground here because before the shots were even fired, there are multiple Border Patrol agents that observed Mr. Massey carrying a firearm, and that’s what he’s charged with is possession of a firearm. Even before he was ever detained or questioned, he was seen carrying a firearm on August 29th of 2014.

And the only relevant information or information I’d say that is critical to our prosecution is his identity, who he is, and I don’t believe that can be suppressed, although I think — I think law enforcement behaved accordingly in all respects in connection with this investigation. Even if it was a bad stop or a bad search or — you can’t suppress identity.

Yes, he is correct. If you were a criminal walking down the streets, absent a warrant, could they just stop and arrest you because you are doing something that many others are doing? We are a nation of laws, not of men. Those laws require that certain procedures be followed, even to the point of protecting a criminal — whether he is a criminal, or not. So, since there are no “Wanted Posters” for K. C. Massey, identification becomes a crucial point.

As Hagen said, “there are multiple Border Patrol agents that observed Mr. Massey carrying a firearm”. So, why didn’t they arrest him, then? Could it possibly be that the law, not men, are the rule?

Hagen continues:

I believe Mr. Massey said to Danny Cantu: Look, nobody got hurt. We’d like to — you know, we’re going to be on our way.

Danny Cantu said: Look, a federal agent discharged his weapon. There’s going to be an investigation. Y’all need to stay around.

Earlier, Cantu had said that he thought that the shots had come from the Mexican side of the border. He received radio communication that a federal agent had done the shooting. Why would someone that was very far from the actual shooting be a witness in an investigation?

Let’s keep in mind some recent events of which we are all aware. We have law enforcement people saying that if you don’t want us to shoot you, you had better cooperate. That might be sound advice if one wasn’t subject to persecution because he cooperated, however, if you believe that under state law you have every right to have a firearm on private property, with the permission of the owner, what are you going to do the next time a law enforcement, any law enforcing, officer wants to detain, stop, hold, or even ID you? It is somewhat difficult to reconcile yourself to the idea passive obedience when one realizes that even if they are not violating the law, the feds might use every trick in their toolbox, if they want to persecute or prosecute you.

So, then Hagen says:

Now, Mr. Massey was detained or was in the area for several hours. I think everyone left around 7:00. I think the evidence will show that shots were fired around 3:45.

Note that Hagen has framed the whole event into over 3 hours. This will be addressed more in Act Two, Scene 3.

Now, we move to the first witness, Agent Cantu, in examination by Hagen.

Q All right. Now, did you give any instruction to Mr. Massey after you first encountered him?

A After we encountered them, I asked him and Mr. Varner if they can hang tight. They were missing one of their — their friends that was with them, and I wasn’t sure where exactly he was. Again, I was still in the back of my head, the shots had rang out. They had called for a supervisor. I was trying to make my way down to where the agents needed me, ensuring safety, that everybody was okay. So I asked them to stay by their Kawasaki as I continued down this dirt road.

Q Okay. So you get to the area where the shooting took place. What do you see?

A As I approach, I see Mr. — Mr. Foerster holding a weapon in his hand. It was just hanging down to his side, but he was holding the weapon as an —

***

So as I came down, I saw Mr. Foerster there holding that weapon. I saw the agent, Marco Gonzalez, approaches me as I’m getting close, and he’s telling me that, you know, he shot at Mr. Foerster; that Mr. Foerster turned in his direction with the weapon and he opened fire. And I was trying to get — Foerster started talking, and so I was trying to get everybody to —

Now, according to Cantu’s testimony, he already had their identification, so essentially, they cannot leave. They have to consider that if they do leave, at best, they no longer have any identification, and, at worst, they might be charged for resisting arrest, or some other bogus charge. After all, who would leave their ID with an LEO, if they were free to leave?

Later, he testifies that he, and Massey, knew what had happened before they got to the ATV. That would, of course, make anything Massey knew nothing more than hearsay.

As we got to the ATV, Mr. Foerster started telling Mr. Massey what had occurred…

Cantu continues, in response to Hagen asking him what happened next:

A As soon as we… Mr. Massey tells me: You know, as far as we’re concerned, nobody was injured. We want to go on our way.

Q Okay. And is there a protocol that you need to follow when an officer discharges a weapon?

A Yes. We need to make notifications. We need to investigate why the firearm was discharged.

Q Okay. Now, at this point in time, did you know whether or not Border Patrol Agent Gonzalez had been threatened or whether or not perhaps Border Patrol Agent Gonzalez had irresponsibly fired upon Foerster? Did you know?

A From what I had gathered, he had fired in — from what Mr. Gonzalez told me. Again, this was preliminary. I was trying to — I had to speak with everyone to figure out kind of what was actually happening, so I wasn’t sure at that point.

***

Q Okay. Did you explain to Mr. Massey — and may I ask you this? When Massey said, “We want to leave,” who was he talking about when he — when he mentioned or by the word “we”?

A Well, Mr. Foerster, Varner and himself were inside the Kawasaki, so that to me told me they all wanted to depart.

Cantu knew that Massey and Varner knew no more than he did. The question involved three people, as Cantu puts it. If the majority should be excluded, reason dictates that he should have said that only Foerster had to remain.

Q Okay. So did you explain to them that an investigation was going to be conducted?

A I did.

Q And how did you explain that to them?

A I told them that they weren’t allowed to leave and that we were going to move to a staging area just further up, which is the — this area right here. My initial thought — and the reason I chose this area was to give us distance from the river that was close by. We moved here to stage the vehicles and kind of get a grip of what actually transpired.

Now, they were not allowed to leave. That means that they are not free to go. However, as explained above, they were being good, State law-abiding, cooperative citizens.

Later in testimony:

Q Okay. Now, did you ask Mr. Massey to provide you with an ID?

A I did, sir.

Q At what point in time did you make that request?

A Our initial encounter, as I approached him with Mr. Varner.

Q Okay. And did — did he provide you with an identification?

A He did.

So, it was when Varner and Cantu met up with Massey that the physical (identification papers, please) ability to leave was removed. This singular act sets the stage for the whole drama of whether it was detention or a Terry Stop.

So, let’s keep the stage set. Cantu has the IDs. Rather than return them he, well:

Q And when Sergeant Valerio showed up, did you provide the IDs from Mr. Massey and Mr. Varner to him?

A Yes, sir. I had not been able — had time to conduct any further investigations on those. When I say that, I mean run records. I mean, normally typically run records when we encounter people. I had not had the time. I was attempting to secure everything that — when Mr. Valerio showed up, I handed him the identifications and kind of gave him the rundown of what had occurred, and he took over at that point.

So, if he gave Valerio the “run down”, the Cameron County Sheriff’s Deputy would know that there were only two witnesses to the shooting.

This is cross-examination by Mr. Sorola, and a repeat of part of Scene 1, and brings in the question posed by the Judge:

Q Okay. Later on do you find out who is shot — who is firing a weapon, a firearm?

A Upon approaching [where] Foerster and Mr. Gonzalez [were], yes.

Q And Agent Gonzalez is the only one that discharged a weapon; is that correct?

A At that point, that’s what I was told, yes.

Q And you were told that by Agent Gonzalez, right?

A Correct. And Mr. Foerster attested to that.

THE COURT: And you said at that time. I mean, nothing subsequent to that time has changed that, have they?

THE WITNESS: No, sir, no. It’s just that —

THE COURT: So as far as you know sitting here today, the only weapon that was shot was — the only weapon discharged was discharged by Agent Gonzalez.

THE WITNESS: Correct.

In confirming (that’s what good attorneys do) that Massey and Varner were detained, Mr. Sorola asks:

Q And this is about 3:45 in the afternoon, correct?

A Correct.

Q Now, you testified earlier that you told Mr. Massey he could not leave the area, right?

A Correct.

Q So he wasn’t free to leave.

A No.

Q He had to stay there.

A Yes.

Q What would you have done had he tried to leave?

A I could have detained — placed him in handcuffs, put him in a unit to secure him to prevent him from leaving the area. But he was being cooperative, and none of that was necessary.

Next, we look at whether there was any reason, at all, to believe that Massey and Varner were complicit, or even aware, of the shooting event — other than having heard the shots.

Q And when the shooting occurred, you didn’t take Mr. Varner’s weapon from him, did you?

A No, sir.

Q You didn’t disarm him?

A No.

Q You didn’t frisk him?

A No.

Q When you encountered Mr. Massey, did you check him for firearms?

A Just the one he was carrying, the longarm, the AK47 weapon.

Q But you didn’t take it from him?

A I did not.

***

THE COURT: Okay. But you had no — you obviously didn’t have any reason to think Mr. Massey was the one that had done the shooting because —

THE WITNESS: No, I —

THE COURT: — you went on. You left him there and went on.

THE WITNESS: Correct.

Here is a rather interesting side note, perhaps a contradiction that has to do with “Officer Safety”. At this time, there are just a few agents in the area. The recipient of the shots fired is still armed, as are Massey and Varner. After additional officers arrive, approaching “between 15 and twenty”, it is determined that the weapons must be “secured”, first to the open ATV, then, later, to the back of the BPS “unit” (why don’t they just call it what it is, instead of government double-speak?)

Q Okay. So Mr. Varner and Mr. Massey just tell you out of the clear blue: We also have firearms on us?

A Yes.

Q And you didn’t see these firearms prior to them telling you?

A I did not.

Q But then are you saying that Mr. Varner then handed you the — the firearm that he had?

A Yes, sir.

Q And what did Mr. Massey do?

A Same thing. They both removed the — their pistols and put them in the back of my unit. The pistols were downloaded and placed there with the remainder — with the other rifles.

Back to the subject of this Act, whether they were detained or stopped. Mr. Sorola still questioning:

Q How long was it that Mr. Massey was not free to leave this area?

A In its entirety, sir, or the investigative agency showed up?

Q In its entirety. From 3:45 when shots are fired, when is Mr. Massey free to go?

A He departed — I’m — I can’t tell you exactly who told him it was — after the investigative agency showed up, they began to interview him. And which agency ultimately told him they were done with their interviews, I couldn’t tell you.

Next Witness, Cameron County Sheriff’s Deputy Daniel Valerio. This will be the handoff of the ID cards, though there arises a question (good memories?) of whether there were two, as Cantu said, or three, as Valerio will testify:

Q Okay. Did you observe or did you meet with an individual by the name of Danny Cantu?

A Yes, I did.

Q And did he provide you with any ID cards?

A Yes, he did, with three ID cards from the persons that were there.

Q Okay. Did he provide you with three ID cards or two ID cards?

A As far as I can remember, it was three ID cards.

Q And soon after arriving, did you request criminal histories and a warrant search on the IDs that had been provided to you?

A Yes, that’s correct.

***

Q All right. Now, did you have reason to believe that Mr. Massey had been carrying a weapon or weapons on that date prior to your arrival?

A Yes, I did.

Q Why did you think that?

A I was informed by the — by David Cantu that this — the suspects, the persons that were there, they were carrying these weapons that he had shown me.

Q All right. Did you — when you first arrived, did you think Mr. Massey had committed a crime? And I’m talking about before you ran the criminal history or anything like that. When you first arrived, did you think he had done anything that — where he should be detained or arrested?

A No. I only had the information on the shooting, but we didn’t know at that point in time what actually had happened.

Q Okay. So if Mr. Massey would have asked you when you arrived at 4:18, told you, “I’m getting out of here,” would you have let him go?

A At that point, yes.

Q Okay. Now, after you learned that he had been in possession of a weapon and he had a felony conviction, did your position change on whether or not you would let him go if he would have asked?

A Yes, it changed based on the information I had and his record and him being in possession. It had changed, that he would have been asked to stay.

Now, wouldn’t the Cameron County Sheriff’s Deputy know that after 5 years, Massey could have a firearm? It is suggested, in other testimony, that he knew. In response to Sorola’s questioning:

Q If I have a felony conviction on my record, is it against the law for me to have a firearm?

A It depends if it’s within five years, sir, or not. That’s something that we would have to further — be further looked into.

So, can there be any doubt, even with the hedging, that Valerio knows what Texas law says.

A Prior to his arrival there.

Q Okay. Now, Mr. Massey had a weapon and a felony prior, but is that why you were out there in the Sabal Palms area, to investigation Mr. Massey?

A No. We were out there for the shooting itself.

Q Okay. And what kind of investigation was conducted by the Sheriff’s Department in connection with the shooting?

A The investigation was at the — who — how it happened, who was the one carrying the weapons also, and who was the one that did the shooting, which was Border Patrol involvement.

Then, we have this:

Q All right. Now, did you speak with — towards the end of the shooting investigation, did you speak with your supervisor to determine whether or not you should return the weapons to Mr. Massey, Foerster and Varner or maintain custody of them?

A That’s correct. I spoke to Lieutenant Diaz. And based on the field investigation, he advised that we were going to collect the weapons. We were going to take custody of them for further investigation.

Q Okay. And was that because of the felony convictions?

A Correct. That’s correct.

Then, Mr. Sorola asks:

Q Sergeant, did you ever get a warrant to take possession of the firearms?

A No, I did not.

Q When you arrived at 4:18, was there any emergency? Was the shooting over?

A That’s correct, yes.

Q Well, when you arrived, the firearms were actually in the possession of Border Patrol, right?

A That’s correct.

Q And when you arrived at 4:18, as far as you’re concerned, Mr. Massey was free to leave?

A That’s correct.

Q Do you know if he was under orders from any other law enforcement not to leave?

A No, I did not. I had no knowledge of that.

Q You don’t know?

A I don’t.

Q But at this time, you have his identification card.

A That’s correct.

Q And you have Mr. Varner’s identification card.

A Uh-huh. Yes.

Q Did you give them back to them?

A After I — after I did the inquiry, yes.

So, there was no justification for the Deputy to retain, or take custody of the firearms — even Foerster’s, as it was clear there was no criminal act on their part. And, they were free to go, if they left their ID with the Deputy.

Next on the stand, David Daniel Cordova, FBI Special Agent, being questioned by Hagen, and who testified that he arrived on the scene at about 6:00 PM, fully two hours after BPS had determined that Gonzales was the only shooter.

Q Okay. Why did you interview Mr. Massey?

A Mr. Massey? At the time it was my understanding that he was a witness to a shooting. A Border Patrol agent had discharged a firearm, and so I needed to obtain the details of what happened.

Q Okay. At that time — did you state earlier that you were investigating a possible assault on a federal agent?

A That’s correct.

Q And were you also investigating a possible assault by a federal agent?

A That is correct.

I suppose that there is a reason that he wanted to investigate the possibility that there was an assault on a federal officer. But, based upon what we know, is it at all possible that the known information wasn’t provided Cordova? If not, why wasn’t he informed what had already been provided by the participants in the shooting event.

Regarding the investigation as to whether there was an assault by a federal agent, we have heard nothing as to the results of that investigation, if it was every completed. Since Gonzales has not been charged with anything,, we must assume that the focus was on Massey, not on the shooter, Gonzales.

Just trying to understand how the investigators and government look at this, I suppose that we could compare it to you being two blocks away from a bank robbery, though you heard shots fired. The government then holds you as a witness, detaining you until they have fully satisfied themselves that, based up the eye witnesses to the account, and extensive, intrusive interviews, they determine that you are now, finally, free to go — subject to subsequent arrest because they have to check with their bosses to see how to charge you with a crime that you didn’t commit –under state law.

Another side note, in answer to another question, Cordova says, about Massey, “I ended up interviewing him along with an HSI agent.” HSI is Homeland Security Investigations, part of US Immigration and Customs Enforcement.

Later on:

Q Do you know if any of the other FBI agents, your supervisor or anybody took any?

A One of our TFOs I believe took some photos.

THE COURT: What’s a TFO?

THE WITNESS: Task force officer.

So, why is a Task Force Officer present during the investigation? The only task force that I can find reference to that might want to be involved is the Domestic Terror Task Force (DTTF).

However, back to whether, or not, Massey was detained, we have the Hagen discussion with the judge:

HAGEN: No. I mean, my understanding, the motion to suppress is that the stop was illegal and that the arrest warrant was based on that, which, you know, my argument would be if Your Honor doesn’t like the stop, there’s certainly a good faith exception that would apply to the arrest and the search warrant wherein ATF agents were not present on the 29th relied on.

THE COURT: What are you referring to as “the stop“?

HAGEN: The August 29th encounter.

So, Hagen has to set the distinction that it was a stop, not a detention. You have read the testimony, and it appears quite clear that Hagen is grasping at straws. However, there is more coming in the next “Scene”.

 

Government was intended to govern the government,

not to govern the people.

 

 

Camp Lone Star – Act Two: The Contradictions; Scene 1: Pointing Weapons, or Not Pointing Weapons?

Camp Lone Star – Act Two: The Contradictions
Scene 1: Pointing Weapons, or Not Pointing Weapons?

backward pistol

 Gary Hunt
Outpost of Freedom
April 11, 2015

In previous articles, we have discussed the Criminal Complaint, Arrest Warrant, and Search Warrant. In each of those documents, we have a set paragraph, to wit:

On August 29, 2014, United States Border Patrol Agents from the Fort Brown Border Patrol Station, while in performance of their official duties, encountered an armed individual, identified as John Frederick FOERSTER, in the brush. During this encounter, FOERSTER turned and pointed a firearm at a USBP Agent, who intern [sic] fired several shots at FOERSTER. FOERSTER is a member of “Rusty’s Rangers,” an armed citizen militia group patrolling the border of the United States and Mexico.

In each document bears the signature of “Anthony M. Rotunno, Special Agent ATF”. Below that, it states that it was “Sworn to before me and signed in my presence”, that being signed by “United States Magistrate Judge Ronald G. Morgan”. So, we have Rotunno swearing before Morgan that everything he has said is true. So, let’s see what the story is, now.

Hagen, the Prosecuting Attorney, in giving his response to Sorola’s motion, says:

[T]he way this all came about is there was one agent that was in heavy brush, and he was in hot pursuit of aliens. When he came through a clearing, he encountered John Foerster… Mr. Foerster had a weapon. It was an AK47 type pistol. And when the Border Patrol — and this is probably disputed. I don’t think that Mr. Foerster ever aimed or was planning on shooting the Border Patrol agent. But when the Border Patrol agent came through the brush, Foerster turned in his direction, and he was perceived as a threat by the Border Patrol agent who fired several shots at Mr. Foerster, thankfully missing.

The first witness was Danny Cantu, U. S. Border Patrol. Hagen is questioning him.

Q Okay. Now, at this point in time, did you know whether or not Border Patrol Agent [Marco] Gonzalez had been threatened or whether or not perhaps Border Patrol Agent Gonzalez had irresponsibly fired upon Foerster? Did you know?

A From what I had gathered, he had fired in — from what Mr. Gonzalez told me. Again, this was preliminary. I was trying to — I had to speak with everyone to figure out kind of what was actually happening, so I wasn’t sure at that point.

Well, Gonzales, the only witness to the shooting besides Foerster, made no claim that begins to suggest that the weapon was pointed at Gonzales.

In Hagen’s initial statements, he said, “I believe [Massey] made one res gestae statement in connection with the arrest when he was told that they were going to do a search warrant, and that statement was, ‘There’s another gun in the hotel room, but it’s not mine.'” So, he ‘believes’, based upon something that he didn’t articulate, he makes a claim without foundation, setting the stage for the entire government performance. Perhaps it was Divine Inspiration.

Now, res gestae is a legal term which provides an exception to the prohibition of hearsay, and is met when somebody makes a spontaneous statement, closely connected to an event, before the mind has an opportunity to conjure a falsehood. Hagen perhaps, attempted to lay a foundation that Massey “volunteered” the information about a firearm in the motel room. Perhaps the same applies to the initial interview with Gonzales and the failure to report any instance where Foerster “turned and pointed a firearm at a USBP Agent.”

It also begs the question, why did Cantu state that he had to “speak with everyone”, when the sole shooter had already said that he was the sole shooter?

In cross-examination, Mr. Sorola is questioning Cantu:

Q To your knowledge, at any time were any of those weapons [that were taken from the Camp Lone Star volunteers] fired at this shooting?

A The Winchester (Varner’s] was not, as he was speaking with me when the shots were fired.

Q So at the time of this shooting, do you know who’s discharging what weapons?

A No.

Q Okay. Later on do you find out… who is firing a weapon, a firearm?

A Upon approaching… Foerster and Mr. Gonzalez area, yes.

Q And Agent Gonzalez is the only one that discharged a weapon; is that correct?

A At that point, that’s what I was told, yes.

Q And you were told that by Agent Gonzalez, right?

A Correct. And Mr. Foerster attested to that.

THE COURT: And you said at that time. I mean, nothing subsequent to that time has changed… ?

THE WITNESS: No, sir, no. It’s just that —

THE COURT: So as far as you know sitting here today, the only weapon that was shot was — the only weapon discharged was discharged by Agent Gonzalez.

THE WITNESS: Correct.

So, Cantu knew, the moment that he was able to speak with Gonzales, that no other weapon was fired, except Gonzales’. And, he makes no mention of any pointing or aiming by Foerster.

From that point on, there is no further discussion of pointing because the shooter, Marco Gonzales, after making initial statement, lawyered up, and Foerster has also refused to talk.

Q Okay. Was he [Agent Marco Gonzales, the shooter] going to visit with anybody? Was he going to talk about what happened?

A No. They — we were informed that he was not going to provide a statement out there.

Q All right. And who gave you that information?

A Let me see. Mr. Gerardo Reyes “Rey” Gonzalez.

Q Okay.

A He was the one who informed me that Agent Gonzalez was not going to provide a statement. He was the union leader.

So, though the agents are employees of the Border Patrol, and I’m sure that they are required, as a part of their duties, to file reports on any incidents, especially an officer involved shooting, and the union can “void” that obligation. It kinda makes you wonder who runs BPS — the government, or the union.

Now, since Gonzales has hidden behind the law and his union, it would appear that he has something to hide. Though we have not heard Foerster’s side of the story, he has not been charged with any criminal activity related to the shooting event, only that he was charged, like Massey, with felony possession of a firearm, and has plead guilty to that charge.

Massey is also charged with felony in possession of a firearm and has, rightfully, plead not guilty. He was not apprehended in the commission of a crime, nor did he have any knowledge of any crime, except what he heard during the course of the investigation. He was not even a witness to the crime of the discharge of a firearm by an agent of the government.

So, let’s try to be objective as we look at this “scene”. We have an affidavit, sworn to by Rotunno, in front of a judge. His claims of the weapon being pointed at the Agent flies in the face of what Gonzales and Foerster told the other investigators. Even the prosecuting attorney, Mr. Hagen, says that he doubts that a firearm was pointed at the agent. That was a bald-faced lie on the part of Rotunno, and he was never even at the scene of the shooting. That smells, very strongly, of Perjury.

However, if you lie to a government agent during the course of an investigation, you are subject to 18 US Code § 1001, and subject to 5 years in prison.

Then, we have the only one that committed a possible criminal act who only made some statements to others, before the union got him to lawyer-up.

However, who is the government going after? K. C. Massey, neither Gonzales for shooting at Foerster nor Rotunno for lying in a sworn statement.

It appears that we have returned to that era in history where “The King can do no wrong”. And, the King includes his, not our, public servants.

Government should not be theoretically defensible,

it should be the object of general acceptance.

Camp Lone Star – Massey says

Shortly after I posted Camp Lone Star – More like Wonderland, K. C. Massey provided me with his analysis of the Response by the government to his motions for suppressing evidence and dismissal. I have made minor edits for clarification. Otherwise, these are Massey’s own evaluation of the Response.

In all fairness, if anybody from the government side wants to rebut, or refute, either Massey’s or my post, I will be happy to accommodate them.

Massey says:

* * * * * * * * * * * * *

BP agent, Marcos Gonzales, was pursuing a group of illegal aliens when he encountered an armed Foerster in heavy brush. BP agent Gonzales perceived Foerster as an armed and immediate threat when Forester pointed the weapon he was carrying at Gonzales who was emerging from the brush. Gonzales fired four or five shots which did not strike Foerster. Foerster was armed with 7.62X39mm pistol which contained a vertical fore grip and was slung around his neck. The shots were fired at approximately 3:45 P.M.

This is UNTRUE. We had been to only 3 crossing sites when we encountered the dismounted BP approximating the time to be no later than 3:00p approx 15 minutes into the assistance of the BP the shots rang out. Making the shooting closer to 3:15. The firearms audit investigation did not determine whether it was 4 or 5 shots. The original reports as issued by Border Patrol information officer Zamora to the press August 29th NEVER stated Foerster “Pointed” his weapon at the Agent, only he turned with it in his hands. How do you “Sling” a pistol around your neck? What is the point of mentioning what Foerster did or possessed have to do with me who was not at the scene? I also posted my account of the incident at https://www.facebook.com/kevin.kc.massey/posts/839070526105377 on Aug 30, 2014. That is my recount of the story, written just after it happened.

Senior Border Patrol agent Danny Cantu was nearby, heard the shots and secured the scene for investigation by Federal and/or State law enforcement. Cantu was not certain if the shooting was on State or Federal land and contacted the Federal Bureau of Investigations and the Cameron County Sheriff’s Office. Cantu requested Foerster to accompany him away from the river bank to an open area, “staging area”, approximately 100 yard away.

The staging area was over 200 yards away, and we were asked to move there due to illegals still in the area moving toward our position. He commanded myself and Varner to go to the staging area. Foerster rode on the mule to the interview site with us! We were told since it was private property the Sheriff had to be notified to investigate. Cantu KNEW we were on private property, they called the Game Warden to determine if we had trespassed on federal land prior to the shooting is what the Game Warden stated to me, which he was able to confirm we had not. They said the federal Agents had to investigate since it was a shooting by a federal agent. The picture, below, has the approximate locations of the shooting and interview area, on the right side.

ahooting site aerial

Foerster was angry and wanted to fight BP agent Gonzales. Defendant, Massey, wanted to leave the area.

Foerster was angry because he was just shot AT by a BP Agent after we had been asked to assist the dismounted BP agent and the shooting was unprovoked. I NEVER asked to leave the area, that was the decision of Cantu!!! He said since there were still illegals in the area we needed to move locations. We stated we did not want to “press charges” for the shooting by BP, but BP said they had to conduct an investigation since a federal agent had discharged his firearm.

Cantu told Massey all members of his group must remain until shooting was investigated. Cantu requested that all members of Rusty’s Rangers disarm while the investigation was conducted.

This is another LIE Cantu NEVER requested we “disarm” We voluntarily decided to leave weapons on the mule after we moved to the staging area.

Massey turned over a handgun and rifle which was secured in a Border Patrol vehicle during the investigation. Foerster relinquished the pistol he was carrying and the third member of Rusty’s Rangers relinquished a pistol and a rifle. The weapons were all secured in a Border Patrol vehicle.

Cantu TOOK Foerster’s gun after Gonzalez shot at him which Foerster had laid on the ground. My and Varner’s weapons were left on the mule. It was articulated to us “For officer safety” and due to “Illegals in the area” BP wanted to remove our weapons from the mule along with my GoPro Camera and other personal equipment and “secure” them in the BP vehicle for our “safety”.

During the investigation criminal histories were requested that indicated that Massey and Forester had felony convictions. The pistol carried by Forester was believed to be a prohibited weapon due to the addition of the fore grip. CCSO officials decided to keep possession of the weapons pending further investigation.

The sheriff’s office DID NOT articulate any cause or reason for taking and keeping our arms, even after protest by myself and Varner. We were never given a receipt for the Arms or other equipment they took from the mule. The sheriff took possession of the Arms only 15 minutes or so before we were released from detention.

Massey and Forester were allowed to leave the scene and all officials departed by 7:00 PM.

Again another LIE, we were released from detention at approx 8:15 pm. We were detain nearly 5 hours and were not free to go.

Massey was not provided Miranda warnings during the investigation. Massey was never handcuffed and cooperated in surrendering his weapons and providing statements.

Only after BP and FBI, and HSI and CC Sheriff insisted we make statements even after we stated we (Varner and myself) were NOT witnesses to the shooting and had NO pertinent information. We gave statements under protest. We did not “surrender” the Arms, they insisted for officer safety that they be secured in the BP vehicle.

It was reasonable for BPA Cantu to disarm Massey and tell him he could not leave the area where the shooting occurred. Police are allowed to stop and briefly detain persons for

“Briefly” is defined as 5 hours?

investigative purposes if the police have a reasonable suspicion supported by articulable facts that criminal activity may be afoot.

We were never informed. “We”, Foerster, Varner or myself, were not under any investigation for ANY crimes. The only criminal activity was the unprovoked shooting at a civilian, that were there at the request and in assistance of the BP.

Texas Penal Code Section 46.02 Unlawfully Carrying Weapons (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club if the person is not: (1) On the person’s own premises or premises under the person’s control  

The property was under our control by permission of the conservator for patrol and illegal immigrant deterrence and for cleaning, marking and clearing of illegal crossings. We had permission for 24 hour access to the property in which we routinely camped out on the border.

The CCSO was informed by Border Patrol agents about the shooting and the seizure of weapons. CCSO deputies made the decision to maintain custody of the weapons after it was revealed that Massey had provided Forester a weapon and that Massey and Forester both had criminal histories that included felony convictions.

We were told the weapons were being held for investigation pertaining to the BP shooting, not for any criminal causes relating to us. They confiscated Varner’s weapons and did not return his although he was NOT a felon. The above statement says the weapons were seized, yet earlier statement says they were voluntarily surrendered. Which is it? They had the Arms in the BP vehicle PRIOR to knowing any prior history of Foerster or me.

Statements obtained from Massey were not the product of custodial interrogation. Massey was never handcuffed, placed in a police vehicle or moved away from the staging area.

I was held under protest due to investigation of BP Gonzales illegal discharge of his firearm at Foerster for approx 5 hours. I was in custodial arrest/detention, I was not free to go despite several requests to leave due to my NON involvement and lack of knowledge in the shooting incident and me NOT witnessing anything since I was in a covered position on the river bank at the time of the shooting. Varner and I were over 75 yards away from the shooting through a lot of heavy brush.

Massey was interviewed by an FBI agent for approximately 35-40 minutes. Massy was not arrested and was allowed to leave the area as soon as questioning concluded.

I was questioned by Border Patrol, FBI and Homeland Security and the Sheriff’s office. Questioning lasted approx 30 minutes by each agency. We were not free to go until over an hour after the last “Interview” after approx 5 hours of forced detention.

The questioning took place on the side of a dirt road. Massey was cooperative during questioning and agreed to answer most of the questions asked of him. Massey did not want to provide his social security number and the FBI agent agreed he did not have to provide the number.

Massy and the FBI agent were cordial to one another with Massy indicating he appreciated the need to ask questions because he knew law enforcement officers.

What is the point of the above statement? Notice the misspellings? Why the reference to my social number? If they read the investigation report enough to see I didn’t give up my social security number, what couldn’t they determine the other facts of the case like the firearms audit of the BP agent to determine how many shots were fired?

Massey was not the focal point of the investigation;

Previously they said I was the focal point of an investigation of felon in possession of a firearm in violation of Texas law. Why were the federal agents detaining me for a possible state law violation?

agents were primarily concerned with circumstances surrounding the shooting between Forester and BPA Gonzales. Custody for Miranda purposes requires a greater restraint on freedom than seizure under the fourth amendment. United States v. Cavazos, 668 F.3d 190,193 (5th Cir. 2012). “A suspect is … ‘in custody’ for Miranda purposes when placed under formal arrest or when a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest. United States v. Begivanga, 845 F.2d 593, 596 (5th Cir. 1988).

Again notice the inconsistency of their statement “agents were primarily concerned with Foerster” Yet they took the arms from myself and Varner who were not involved in the shooting in any way, as defined by Blacks Law 8th – Physical Custody; Custody of a person whose freedom is directly controlled or limited. Detention; The act or fact of holding a person in custody; Confinement or compulsory delay. Investigative detention; the holding of a suspect without a formal arrest during the investigation of the suspects participation in a crime. Detention of this kind is constitutional only if probable cause exists. Arrest; 2.The taking or keeping of a person in custody by legal authority. The term “formal arrest” is not defined.

In the instant case Massey was told, By BPA Cantu, to remain in the staging area while the shooting was investigated. Massey was allowed to leave after he was questioned. Massey was never in custody.

I was held against my will and under protest for approx 5 hours. I was not “allowed to leave after questioning” for almost an hour after the last of 4 interviews. I was in custody under arrest although not under restraints. I asked if we were free to go several times, prior to and after each interview. I was held in a “custodial arrest” and I was not free to leave. I was in custody (physical custody) as defined by Blacks Law.