Outpost of Freedom blog

The Bundy Affair – #16
The Legal Shotgun

Gary Hunt
Outpost of Freedom
September 28, 2016

In a related article, “Burns Chronicles N^o 30 – Officer? What Officer?“, I addressed a common element to the Indictments from Oregon and Nevada.  You may also want to refer back to that article to see how the federal government has, over the years, expanded its authority (jurisdiction) well beyond what the Constitution granted to that government.  The article covered the extent of the Oregon Indictment, but only the common charge of violation of 18 US Code § 372.  The Nevada Indictment goes a bit further.  It charges the accused with violation of 18 US Code § 371 and endeavors to provide some substance to the charge, which was not done in Oregon.

We will start with the charge of violation of 18 US Code § 371, which reads, in the Indictment:

COUNT ONE

Conspiracy to Commit an Offense Against the United States

(Title 18, United States Code, Section 371)

Paragraphs 1 through 153 are incorporated herein in full…

So, what does US Code § 371 say?

18 U.S.C. § 371 – Conspiracy to commit offense or to defraud United States

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

It is interesting that this really overlaps 18 US Code § 372, the statute addressed in the previous article in that it says, “to commit any offense against the United States”.  Now, § 372 is an offense against the United States, so why is there a charge that is already incorporated in another charge?

My guess is that it is what I refer to as a “legal shotgun”.  In the Branch Davidian trial, Sarah Bain explained there were so many charges against the Davidians that the jury felt they had to find the Davidians guilty of something.  So they took the charge with the lowest punishment, and found them guilty of that Count.  So, if you throw enough peanut butter at a wall, some of it will stick.  Not a very good concept of justice, but the government knows how human nature works.  You could call it a “chicanery conviction”.

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So, here are some more shotgun pellets:

• 18 U.S.C. § 111(a)(1) and (b) – (Assault on a Federal Officer
• 18 U.S.C. § 115(a)(1)(B) – Threatening a Federal Law Enforcement Officer
• 18 U.S.C. § 924(c) – Use and Carry of a Firearm in Relation to a Crime of Violence
• 18 U.S.C. § 2 – Aiding and Abetting
• 18 U/S.C. § 1952 – Interstate Travel in Aid of Extortion

We will begin with:

18 U.S.C. § 111: Assaulting, resisting, or impeding certain officers or employees

(a) In General. – Whoever –

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties;

(b) Enhanced Penalty. – Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both.

Now, for the legal maze.  The reference in (a)(1) of § 111 refers us to:

18 U.S.C. § 1114: Protection of officers and employees of the United States

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 –

When these two statutes are coupled, it creates a rather impressive monster, in the eyes of the jury.  The referenced statute, § 1114, begins with “Whoever kills or attempts to kill” and then includes any employee of any agency of the government.  It goes on to say that if the person “is engaged in or on account of the performance of official duties…”

Then, we refer back to § 111 and find that what falls into this characterization of kill or attempt to kill, some lesser acts.  Those lesser acts, “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person”, should be of serious concern to all Americans.

There is a saying from the past, “The King can do no wrong!”  And, § 1114 makes clear that if you find someone in government doing something wrong, and you attempt to stop them, you are guilty of a crime.  Then, by reference (guilt by association), you are associated with killers.

Now, let’s jump back to § 371.  When we do this, we can pull in anyone who you have even discussed your objection to some government person’s action, because, “If two or more persons conspire either to commit any offense against the United States”, then you are an accomplice.  So, those who might believe that the King has done wrong, well, you have just become a criminal.  It does not even contemplate whether the “government employee” was doing something wrong, or you were fully within the right.

Next pellet in the legal shotgun:

18 U.S.C. § 115: Influencing, impeding, or retaliating against a Federal official by threatening or injuring a family member

(a)(1) Whoever –

(B) threatens to assault, kidnap, or murder, a United States official, a United States judge, a Federal law enforcement officer, or an official whose killing would be a crime under such section,  with intent to impede, intimidate, or interfere with such official, judge, or law enforcement officer while engaged in the performance of official duties, or with intent to retaliate against such official, judge, or law enforcement officer on account of the performance of official duties, shall be punished as provided in subsection (b).

So, here we see the use of “official duties”, without regard to the lawfulness of those duties.  If it is not private duties, you are snared in the trap.

So, let’s continue and see what other pellets exist in the legal shotgun.  This is an “enhancement statute”, intended to make a crime more criminal if you commit the crime.  However, understand that you must first commit the crime that is to be enhanced by the statute.  However, it is another “Count” in the jurors’ minds.  Here is the statute, with pertinent parts, only:

18 U.S.C. § 924: Penalties

(c) (1) (A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime –

(3) For purposes of this subsection the term “crime of violence” means an offense that is a felony and –

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

(4) For purposes of this subsection, the term “brandish” means, with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person.

Now, let’s see if we have this right.  We do have a Second Amendment that allows us to “keep and bear Arms”.  Then, of course, Nevada is an “open carry” state, so the right to carry weapons is protected under the State laws, as well.

It would seem the first necessity in evaluating this from a criminal standpoint would be to determine if the carrying or possession of the weapons was a factor in the crime, if there truly was a crime, or if it was simply an exercise of rights.

You will note that the statute defines brandish in such a way that it excludes any other form of possession.  However, if we look at the English definition of brandish, we find that it does separate the display of the firearm from mere possession, associating the word with how it was displayed.

From Webster’s Seventh New Collegiate Dictionary (1970):

brandish.  v.t. 1.  to shake or wave (as a weapon) menacingly.  2. to exhibit in an ostentatious or aggressive manner.

So, the government, by a form of verbicide, has made a common English word, by redefining it to an all-inclusive word, with the sole exception of the qualifier, “in order to intimidate that person.”  Darn, that qualifier is almost lost at the end of the statute.

Now, probably the prime example that we can expect the government to take would be the case of Eric Parker.  Eric Parker is the object of a well known photograph of a man on the Highway Overpass with his rifle sticking through the wall of the overpass.  They will suggest that he was “brandishing” his rifle, and they will prove it with pictures.  However, those “officers and employees” down in the Wash could not have even seen that he was holding a rifle, so how the heck could he have been “intimidating” them?  So, what Parker did could, in no way, be considered brandishing.  Instead, he was there to protect those in the Wash, should the government “officers and employees” escalate beyond the violence and intimidation that they had demonstrated, long before the Unrustling at the Wash. Surely, we retain the right to protect ourselves and others from enemies, both foreign and domestic.  And, equally surely, absent actually brandishing the weapon in close proximity, where the “officers and employees” could readily see, and readily understand that the weapon was there to intimidate them, such as described by Webster’s, then there can be no merit to the application of this enhancement statute.

Now, here is a rather interesting pellet in the legal shotgun, as it presumes something that did not happen.

18 U.S.C. § 1951: Interference with commerce by threats or violence

(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

(b) As used in this section –

(1) The term “robbery” means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

(2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

(3) The term “commerce” means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.

First, let’s deal with “commits or threatens physical violence“.  The only insinuation of violence was addressed when we looked at 18 US Code § 924(c).  So, that leaves us with “robbery” or “extortion”, both of which are defined in the statute.  And, since nothing was stolen, that leaves us with “extortion”.  However, extortion requires the “use of actual or threatened force, violence, or fear“.  And, so far, we have seen no demonstration of either.

Finally, we must look at the definition of commerce, as used therein.  Now we have to look at both pieces of this puzzle to get a proper perspective of what it says, so, we will start with “all commerce between any point in a State… and any point outside thereof.”  Well, that would suggest that if the cattle were to be taken to another state, it just might apply.  However, when we take the next part, “all commerce between points within the same State through any place outside such State”, we see that if there are intermediate points (within the same State), they are dependent upon going “through any place outside of the State.”

So, it appears that until the “commerce” is at a point wherein it will exit the State, it is not yet in interstate commerce, and won’t be until it reaches that point.

Now, as explained in “The Bundy Affair #10 – Again?“, the cattle could not leave the state before at least one more “point” was necessary before the “commerce” could leave the State, as defined in the statute.  The Brand and Health Inspections had not been performed, and it would have been illegal for the cattle to leave the State, absent a stop at another “point” to inspect and obtain such certifications.

Now, we come to the final “pellet” in this legal shotgun.  It is found in 18 US Code § 2:

18 U.S.C. § 2: Principals

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

So, let’s look closely at the two sub-sections, (a) and (b).  In (a), we have “Whoever commits… or aids, abets, counsels, commands, induces or procures [the] commission” of “an offense against the United States… is punishable as a principal.”

Now, let’s look at (b), “Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”

I’ll be darned if they don’t say the same thing.  Perhaps there is some undecipherable distinction between the two, but for the life of me, I really can’t figure it out.  What I can figure out is that if you, in any way, maybe even loaning somebody some money, aid and abet, or by loaning, participate in both inducement and procurement, or perhaps, even give some words of encouragement, you may be found to have willfully caused, the act — then you are as guilty as the “guy that pulled the trigger”.

What we are seeing in a Nevada Courtroom is a far more heinous “political crime”,  God forbid that Free Americans have any right to question the actions of the government.