Burns Chronicles No 30 – Officer? What Officer?

Burns Chronicles No 30
Officer?   What Officer?

bank-robber

Gary Hunt
Outpost of Freedom
September 26, 2016

In the Indictments, both in Oregon and Nevada, there is one Count that raises some serious questions.  The exact wording, to the extent of understanding the charges being made, is as follows:

For Oregon:

COUNT 1

(Conspiracy to Impede Officers of the United States)

(18 u.s.c. § 372)

On or about November 5, 2015, and continuing through February 12, 2016, in the District of Oregon, defendants…

It then goes on to list the Defendants and makes some rather general accusations, WITHOUT naming “Officers” or, how they were impeded.

Next, we look to the Nevada Indictment:

COUNT TWO

Conspiracy to Impede or Injure a Federal Officer

(Title 18, United States Code, Section 372)

Then, they go into a narrative, missing, of course, any named “Officers”, or any specific acts that constitute impeding.

The statute cited reads:

18 U.S.C. § 372 : US Code – Section 372: Conspiracy to impede or injure officer

If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both.

Now, our concern, as much as with the Indictments lacking specificity, is the Statute, itself.  So, let’s first trace the history of the Statute, and then we will look into just who an “Officer” might be.

.

On July 31, 1861, just four months after the start of the Civil War, Congress enacted the first statute (12 Stat 284) that addressed what eventually resolved down to 18 USC § 372:

An Act to define and punish certain Conspiracies

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That if two or more persons within any State or Territory of the United States shall conspire together to overthrow, or to put down, or to destroy by force, the Government of the United States, or to levy war against the United States, or to oppose by force the authority of the Government of the United States; or by force to prevent, hinder, or delay the execution of any law of the United States; or by force to seize, take, or possess any property of the United States against the will or contrary to the authority of the United States; or by force, or intimidation, or threat to prevent any person from accepting or holding any office, or trust, or place of confidence, under the United States; each and every person so offending shall be guilty of a high crime, and upon conviction thereof in any district or circuit court of the United States, having jurisdiction thereof, or district or supreme court of any Territory of the United States having jurisdiction thereof, shall be punished by a fine not less than five hundred dollars and not more than five thousand dollars; or by imprisonment, with or without hard labor, as the court shall determine, for a period not less than six months not greater than six years, or by both such fine and imprisonment.

APPROVED, July 31, 1861.

By 1909, in 35 Stat 1092, the particulars of § 372 had been separated from other elements.  This is the first codification of the Statutes, and this section would fall under “Crimes – Chapter One. – Offenses Against the Existence of the Government”, at:

SEC. 21 . If two or more persons in any State, Territory, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof ; or to induce by like means any officer of the United States to leave any State, Territory, District, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined not more than five thousand dollars, or imprisoned not more than six years, or both.

There is no significant change when the method of codification was changed, by 62 Stat 701, with the exception of adding, “to injure him in his person or property on account of his lawful discharge of the duties of his office“.

In 1948, with the adoption of 62 Stat 701, we see the adoption of the current form of statute identification, of “Title 18 – Crimes and Criminal Procedures”

§ 372. CONSPIRACY TO IMPEDE OR INJURE OFFICER

If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined not more than $5,000 or imprisoned not more than six years, or both.

This is nearly identical to the existing statute, 18 US Code § 372, shown first above.

So, now let’s look at just which members of government were the subjects of the protection afforded by the statute.  In the Indictments and the statutes, reference is made only to “Officers”.  So, is any employee of government an “Officer”?  Or, is that title reserved only to a certain character of those who work for the government?

First, we need to know what the Constitution says about “officers”, though we need not consider Officers in Congress, the Judicial Branch, or the Military, as surely, none of those was present at the Malheur National Wildlife Refuge.  Any other reference to “officers”, we find the Article II – The Executive Branch.  In Section 2, clause 2, we find:

He [President] shall have Power, by and with the Advice and Consent of the Senate, to … appoint … Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Then, in Section 3:

He shall … Commission all the Officers of the United States.

So, though the Courts of Law and Heads of Departments may commission officers, if Congress so decrees, the President still has to “commission such officers”.

And, in Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

So, unlike employees, officers can only be removed by the impeachment process, as administered by the Congress.

But, from a practical standpoint, other officers became necessary.  During Prohibition, officers were designated to execute search warrants.  A challenge was made over their constitutional, as explained above.  This is what the Supreme Court said in Steele v U S 267 US 505 (1925), in broadening the previous limitation on what Officers were.  Here are a few excerpts from that decision:

The argument is that the prohibition agent is appointed by the Commissioner of Internal Revenue, and therefore is only an employee and not a civil officer of the government in the constitutional sense, because such an officer under article 2, section 2, of the Constitution can only be appointed either by the President and the Senate, the President alone, the courts of law, or the heads of departments.

This was the challenge that Steele had set before the Court, and which the Court had to decide.  There had yet to be a case where the expansion of the constitutional limitation was put to the test.

It is quite true that the words ‘officer of the United States,’ when employed in the statutes of the United States, is to be taken usually to have the limited constitutional meaning.

So, the Court decides to take on the task.  Even though there was no commission from the President, the enactment, by the Congress, of certain laws, had to grant such status to fulfill the duties assigned:

‘The Commissioner, his assistants, agents, and inspectors, and all other officers of the United States, whose duty it is to enforce criminal laws, shall have all the power … in the enforcement of this act or any provisions thereof which is conferred by law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquors under the law of the United States.’

So, the exception made is where a duty requires enforcement or service, to create that official (officer) capacity.  Since that time, those positions that are within this expanded scope of the definition appear to have a prefix to their title that establishes that status.

To understand this, let’s look back at how the government dealt with multiple deaths in the Oklahoma City Bombing (April 19, 1993).  What we are concerned with is how the deaths were treated — were they all considered to have been “killed” by the acts of McVeigh, or were some simply “deaths”, collateral damage”, as a result the truck bomb.  From the McVeigh Indictment:

COUNTS FOUR THROUGH ELEVEN
(First Degree Murder)

The Grand Jury further charges:

On or about April 19, 1995, at Oklahoma City, Oklahoma, in the Western District of Oklahoma,

TIMOTHY JAMES McVEIGH

and

TERRY LYNN NICHOLS,

the defendants herein, did unlawfully, willfully, deliberately, maliciously, and with premeditation and malice aforethought, kill, and aid, abet and cause the killing of, the following persons while they were engaged in and on account of the performance of official duties as law enforcement officers:

Name/Position:

COUNT: FOUR Name/Position: Mickey Bryant Maroney
Special Agent United States Secret Service

COUNT: FIVE Name/Position: Donald R. Leonard
Special Agent United States Secret Service

COUNT: SIX Alan Gerald Whicher
Assistant Special Agent in Charge United States Secret Service

 COUNT: SEVEN Cynthia Lynn Campbell-Brown
Special Agent United States Secret Service

COUNT: EIGHT Kenneth Glenn McCullough
Special Agent   United States Drug Enforcement Administration

COUNT: NINE Paul Douglas Ice
Special Agent United States Customs Service

COUNT: TEN Claude Arthur Medearis
Special Agent United States Customs Service

COUNT: ELEVEN Paul G. Broxterman
Special Agent Department of Housing and Urban Development Office of Inspector General

 All in violation of Title 18, United States Code, Sections 1114, 1111 and 2(a)&(b); and Title 28, Code of Federal Regulations, Section 64.2(h).

When we look at 18 US Code §§ 1114 & 1111, we find that 1114 says,

Whoever kills or attempts to kill any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance, shall be punished – [then lists punishments]

Then, in § 1111, we find the establishment of jurisdiction:

(b) Within the special maritime and territorial jurisdiction of the United States,

So, if the crime had been committed in the “maritime or territorial jurisdiction”, it would be murder.  However, as we saw in § 1114, if the victim is an “officer or employee”, the person can be punished.  Now, this appears to apply to any employee, as well as an officer.  However, if we look at the history of the Statute, we can find what happened in 1989.  This would be as the statute existed at the time of the OKC Bombing, at 10 Stat 4831:

image-104-stat-4831-1989

So, in 1989, and still in 1993, when the bombing occurred, the statute had territorial limitations.  It was not until 1996, with 110 Stat 1302, that the government extended its reach (isn’t that what both MNWR in Burns and Bundy Ranch in Nevada are all about?) to go beyond the Constitution and assume authority that is in conflict with the Tenth Amendment to the Constitution.

However, understanding the limitation imposed by the Statute § 1114, as it existed in 1993, we find that there are only eight (8) people that McVeigh and Nichols are charged with murdering (killing).  However, the Indictment lists another 160 people that died as a result of the “truck bomb explosion”.  The eight listed are all “special agents”.  So, we can safely assume that they were “Officers” and are covered by the umbrella that is applicable in 18 US Code § 372, as well as other statutes, where the government can legally punish someone for damaging (murdering) what is presumed to be government property (Officers).

So, what of those other 160 people?  Well, they are covered in COUNT ONE:

38.  As intended by McVEIGH and NICHOLS, the truck bomb explosion resulted in death and personal injury and the destruction of the Alfred P. Murrah Federal Building, located within the Western District of Oklahoma. The following persons were present at the Alfred P. Murrah Federal Building on April 19, 1995, and were killed as a result of the explosion:

 Charles E. Hurlburt            73

[First and last names shown, the other 158 omitted for brevity, but can be seen on the linked “McVeigh Indictment“.]

Gabreon Bruce                4 months

All in violation of Title 18, United States Code, Section 2332a.

So, all of those in the class of “employees” that fit the criteria of “Officers” are also identified as “Special Agents”.  And, those other 158 people are, well, to use a government term, “collateral damage” as a consequence of the explosion of a truck bomb.  Punishable only because a truck bomb was used.

However, 18 US Code § 372 has not been changed, as 18 US Code § 1114, to extend beyond the constitutional limits imposed by the Constitution, and expanded by the Supreme Court in the Steele decision.

So, this brings us to the ultimate question of whether there were any “Officers” that were kept from doing their duty, by the actions of those who occupied the MNWR headquarters.  Well, we know that a number of “Special Agents” have been employed, since the occupation, to ramble through Facebook, the Refuge and elsewhere.  So, rather than impeded, they are gainfully employed in doing their duty.  However, the prosecutors in the case have yet to being forward the name and capacity of just one “Officer” that would satisfy the statute, and with the requisite credentials to qualify under Steele, to be deemed an “Officer”.

If someone had been charged with robbing a bank, would not the bank have to be included in the Indictment?

“We charge Jon Doe with robbing a bank, in violation of such and such a statute”.  “What bank did they rob?” you ask.  “Well, we don’t know what bank they robbed,” they answer.

As demonstrated by the McVeigh Indictment, those who are injured, or impeded, must be named.  Moreover, they must be officers, not just employees.  For the prosecutors to fail to provide the requisite information is comparable to the analogy of the bank robber.  The insufficiency of the Indictment cries out for Count One to be quashed, as it is a chare without merit, and the evidence presented, to date, has done nothing to answer the crucial question of which “Officers” have been so affected by the actions of the accused?

4 Comments

  1. Harold says:

    They said they will be presented at the trial

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