Outpost of Freedom blog

Camp Lone Star #31
The Case of Kevin KC Massey – I
Challenging the Interpretation vs. the Wording of a Statute

Gary Hunt
Outpost of Freedom
October 17, 2016

It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

James Madison, Federalist #62            

Do we simply accept the government interpretation of a law, without consideration for the grammatical structure(incoherent, or just misrepresented?)? If so, do we simply rely upon the enforcers of the law to tell us what we may, and what we may not, do?

Gary Hunt, October 17, 2016               

We will begin with a brief discussion of the legal/historical context of what result in Kevin “KC” Massey standing trial for “felon in possession of a firearm.  The, we will go into detail, including excerpts from the transcripts, of KC’s trail in Brownsville, Texas.

Kevin Massey organized what became known as Camp Lone Star (CLS), located on the property of Rusty Monsees.  The property abuts the Rio Grande River, about six miles southeast of Brownsville, Texas.  Massey had lived on the Monsees property for months, prior to the incidents that will be described.

The area in which the Camp was located is well known as a crossing point for illegal immigration.  The Camp was established to discourage illegal crossings, primarily to persuade those attempting to cross to return to the south shore of the River.  On occasion, the illegals were detained and turned over to United States Border Patrol (BPS).

Camp Lone Star was the most successful private, permanent, border operation along the entire southern border until the events described below began to unfold.  Though it only covered a few miles of common crossing areas, it was a full-time operation and reduced, significantly, crossings within its area of operation.

On August 29,  2014, there was a shooting incident where three of the CLS Team were patrolling the border, on private property, and with the consent of the owner’s representative.  A Border Patrol agent shot at one of the Team, who never raised his weapon and who then placed it on the ground, without the need for a command from the agent.  When the other Team members and BPS agents came together for the BPS to “investigate” the shooting by their agent, the CLS Team members cooperated, fully, with the investigation.

The only violation of any sort was the agent shooting, in violation of BPS policy.  However, it appears that the agent has not been subject to any hearing or punishment because of his actions.

.

A Cameron County Sheriff’s Deputy was called, as the incident occurred on private property.  During the course of the field investigation, an NCIC query showed that Massey had been convicted of a felony, nearly three decades before.  At the completion of the investigation, no arrests were made.  The CLS Team returned to Camp Lone Star.

On October 20, 2014, almost two months later, KC was arrested by numerous federal agents as he left his motel room in Brownsville.  He was booked and charged with numerous counts of “felon in possession of a firearm”.

All of these events are explained in a series of articles that can be found at “‘KC’ Massey“.

On November 4, 2014, the original Indictment contained four counts against Massey (the remaining count in the Indictment was against John Foerster), all being violations of 18 US Code §§ 922(g)(1) and 924(a)(2):

18 USC 922

(g) It shall be unlawful for any person –

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

And,

18 U.S.C. § 924: US Code – Section 924: Penalties

(a)

(2) Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.

This last Section only sets the penalties.

On April 29, 2015, Massey filed his “First Supplement to Motion to Dismiss Indictment“.  The culmination of research into the wording of 18 US Code § 922(g)(1) led him to conclude that the wording of the statute complies, at least to some degree, with the authority granted to the government by the Constitution.  That authority has to do with the “Commerce Clause”, providing powers with regard to “interstate and foreign commerce”.  Since then, Massey has referred to this as the “Has/Had” argument.

Though much simplified on the “First Supplement to Motion…” we can begin to understand just what Massey was telling the Court.  The pertinent part of the Motion:

18 U.S.C. § 922 (g)(1), with the pertinent phrase being, “to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce“.  The word “has“, as opposed to the word “had” was used in the statute.  “Has” is the third person singular, present indicative, verb meaning active in the action just completed, where “had” is past tense and participle of the verb have, meaning in a previous situation.  So, if one were the direct recipient, then the word “has” would be appropriate.  However, if it were expansive, intended to include any firearm shipped in interstate commerce, then “had” would be the proper verb.  The use of “had” would have meant to include any and all that “had” been so transported any time prior.

In a Motions Hearing, on March 30, 2015, Massey’s attorney, Louis Sorola, argued the Motion to Dismiss the Indictment:

Your Honor, because the motion to dismiss the indictment is first based on the claim that 18 USC 922(g)(1) is unconstitutional and that it goes beyond the authority granted to Congress in the commerce clause.  And it’s spelled out in my motion that the Second Amendment gives all Americans the right to bear arms.  And what 922(g)(1) is doing is it’s infringing upon that right because it’s taking away my client’s right to bear arms.

And what the government is saying, he’s a convicted felon.  He has a conviction in which the sentence was a year or more.  And under the federal statutes, that’s defined as a felony.  And because he has this felony, he can never, ever possess a weapon again.

Well, Texas law — and he’s a Texas resident — allows him to reinstate his civil rights.  After five years after his sentence is served, he can have in his possession a firearm in or on the premises that he lives.

The statute states, the Texas statute states the premises where he lives.  And what 922 is trying to do is infringe upon that right, which is a right granted to the states.  That’s my argument as to the unconstitutionality of the statute.

The second part of that, Your Honor, is the infringement on the commerce clause.  If we look at the Pattern Jury Charge for the Fifth Circuit, the third element that the government has to prove is that my client’s actions, this possession, in or affected commerce.  And it’s our position that he had no affect on commerce and that this — the overreaching of the commerce clause is what’s happening here.  They’re going too far, Your Honor.

The third argument is an equal protection argument under the equal protection clause of the constitution.  Every state defines differently what’s a felony.  What may be a felony in one state may not be a felony in another state, or my term of imprisonment or the sentence I may get may not be more than one year.  So depending on what state I’m in, I may fall into the category that this statute puts me in.

And that’s my equal protection clause argument, Your Honor, that the laws aren’t equal; and therefore, this statute doesn’t treat everybody equally who are from different states.

Now, Mr. Sorola didn’t go far enough on the Equal Protection argument.  To take it to the depth that Massey has developed it is to compare the application, as it would apply to the citizens of the various states.  If one lived in a state that made the firearm and the ammunition, then he could possess both.  If he lived in a state that made only one, or the other, he could only possess the one that was made in that state.  If one lived in a state that made neither, then he would not be able to possess either.  Therefore, where you reside determines if the law, as currently applied, restricts your Second Amendment rights, or not.  Surely, that is not Equal Protection of the law.

Given that understanding, the only way that the Commerce Clause could afford equal protection would be if the statute were understood to be limited to participation in commerce, not to the simple fact that it had once been in commerce.  That would be an adherence to the Commerce Clause of the Constitution.

What led Massey to this conclusion was his understanding of what Justice Brandeis said, in Ashwander v. Tennessee Valley Authority, 297 US 288, 346 (1936), when said, in a concurring decision:

“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:

* * *

4.  The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter…

It is Congress’ use of the word “has“, instead of “had“, which might bring it into the regulatory authority of the government.  Surely, those 535 members of Congress are extremely cautious in the wording of any enactment.  Though, apparently, the Justice Department does not retain the caliber of people that concern themselves with the intention of the law, nor the English language.  Instead, they seek to exert an authority that was never granted to them, regardless of the harm it causes to the people that become the subject of their wrath.

In further support of the “has/had” argument, we can look at the Texas Penal Code, those at least partially recognized in Mr. Sorola’s Motion and argument:

Sec. 46.04.  UNLAWFUL POSSESSION OF FIREARM. 

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

(1)  after conviction and before the fifth anniversary of the person’s 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

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

Meaning that five years after the completion of all portions of the punishment, he regains the right to possess a firearm, subject to the limitation imposed by sub-paragraph (2).

Sec. 46.02.  UNLAWFUL CARRYING WEAPONS. 

(a)  A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her 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; or

(2)  inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.

* * *

(a-2)  For purposes of this section, “premises” includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent.  In this subsection, “recreational vehicle” means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle.  The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.

Sec. 46.15.  NONAPPLICABILITY.

(b)  Section 46.02 [prohibition of possession] does not apply to a person who:

(2)  is traveling;

(3)  is engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or is en route between the premises and the actor’s residence, motor vehicle, or watercraft, if the weapon is a type commonly used in the activity;

So, Sec. 46.04 restores his rights, though limited.  Then, Section 46.02 expands the limitations for practical application.  For instance, absent the expansion of the limitations, you couldn’t buy and then take to the premises, nor could you take a firearm with you if you moved.  It also defines the term “Premises”, so as not to leave it to interpretation.  And, finally, Section 46.15 provides for certain recreational activities.  All, very different from the federal government’s misapplication of the intent of § 922(g)(1).

Now, we also have to consider whether the Texas Legislature and Governor, when they enacted these statutes, felt that they had, under the Tenth Amendment, every right to enact them.  Or, if they were so darned stupid that they didn’t know that there was a federal statute prohibiting a felon from possessing a firearm within Texas jurisdiction.

The Legal Game

Now that we have a basic understanding of just what is what, we need to look behind the legal curtain and see how things have played out in court.

Massey chose a bench trial after the Ninth Circuit Pattern Jury Instructions.  What the judge would use to instruct the jury is as follows:

PATTERN JURY INSTRUCTIONS – 2.47

POSSESSION OF A FIREARM BY A CONVICTED FELON

18 U.S.C. § 922(g)(1)

Title 18, United States Code, Sections 922(g)(1) and 924(a)(2), make it a crime for a convicted felon to knowingly possess a firearm [ammunition].

For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: That the defendant knowingly possessed a firearm [ammunition] as charged;

Second: That before the defendant possessed the firearm [ammunition], the defendant had been convicted in a court of a crime punishable by imprisonment for a term in excess of one year; and

Third: That the firearm [ammunition] possessed traveled in [affected] interstate [foreign] commerce; that is, before the defendant possessed the firearm, it had traveled at some time from one state to another [between any part of the United States and any other country].

Massey realized that the jury would surely find him guilty, as the Instructions leave no room for the jury to judge the law, or even to have any leeway to interpret the law by its grammatical construction.  So, he opted for a bench trial, since he believed that the judge would be able to rule on the wording of the law as well as the construction of the statute.

In a Pre-Trial Conference held on September 30, 2015, we find that Judge Andrew Hanen is somewhat sympathetic to the arguments set forth by Massey, especially the “has/had” argument.

The Bench Trial

September 30, 2015, the Bench Trial of Kevin Massey took the better part of the day.  Within the arguments presented, we can find an appreciation, from Judge Hanen, of the position that Massey has taken.  He had been offered a plea agreement, but refused to take it, since a plea of guilty would be a submission.  His principles were such that he would fight the battle, as it had to be fought, in order to get the matter up to the Fifth Circuit Court of Appeals.

During the Bench Trial, there were a number of instances where the words spoken were quite telling.  Let’s look at some of those occurrences:

Regarding intentions at the border

This will be Guillermo Aguilar, program coordinator at Sabal Palms Sanctuary, questioned by AUSA Hagen:

Q.  Okay. And did Mr. Massey describe to you their plan of operation, so to speak?

A.  Yes, sir.

Q.  What did he tell you they did?

A.  They’d patrol along the levee along the river and be a presence along the border.

Q.  Okay. Did he indicate whether they would be trying to arrest aliens or just discourage them from crossing the river?

A.  Discourage them from crossing. Discourage them from crossing, sir.

Q.  Okay. Did — were you interested in having this group of people come to the Sabal Palms and be a presence on the river?

A.  Yes, sir.

Q.  And did you tell him it would be okay for him to patrol, so to speak, in some way?

A.  We couldn’t — we weren’t authorized to give them permission. We couldn’t officially say yes. Yes.

Q.  Okay. So what did — what did you say to Mr. Massey after he made his presentation to you about —

A.  That we weren’t authorized or we couldn’t officially say yes that they could patrol; but if we saw them on the levee we wouldn’t — you know, we wouldn’t say no.

Q.  You wouldn’t say no. All right. So is it fair to say that Mr. Massey, after his conversation with you, believed it was okay for him to patrol the river near the Sabal Palms?

A.  Yes, sir.

Q.  All right. Now, so it’s fair to say that it was reasonable for him to believe that he had permission to be there?

A.  Yes, sir.

Now, Hagen attempts to determine where Massey “lives”:

Q.  Okay. Now, was Mr. Massey invited to camp or live on the Sabal Palms property?

A. No, sir. No, sir.

Q.  Was it your understanding and belief that he would patrol and then leave the property that day?

A.  Yes, sir.

Q.  There was significant conversation about how to get out of there?

A.  Yes, sir.

Q.  Do you know if he had any camping equipment or provisions for overnight stay?

A.  As far as I could tell, he didn’t.

So, Hagen appears to be concerned as to whether Massey had permission, or if he did, “live” on the Sanctuary.  If there were not a jurisdictional problem, why would he want to prove that Massey didn’t live on the Sanctuary?

Then, we have Danny Cantu, United States Border Patrol, questioned by AUSA Hagen.  This addresses the heart of the problem that resulted in the creation of Camp Lone Star.

Q.  Could you give an estimate as to how many illegal aliens you have arrested?

A.  A rough estimate?

Q.  Yes.

A.  Hundreds.

Q.  All right And is it fair to say that some of these people are criminals?

A.  Yes, sir.

Q.  Some of these people are good folks looking for a job?

A.  Yes. Both.

Q.  All right. Are some of these people coming to work in Texas, and some of these people coming to work in other places?

A.  Yes.

Q.  Other states?

A.  Other states, yes.

Q.  Okay. And is there a protocol that you are required to follow when a border patrol agent discharges their weapon?

A.  Yes, sir. There is notifications that need to be made to an investigative agency to determine, one, the reason for the discharge and, two, if any violations were made and that would be something that the investigative agency will determine.

Note that not only is Hagen trying to create a nexus for commerce — people looking for jobs or going to work.  He also has to make that “commerce” Interstate Commerce, hence the “other states” question.

Mr. Sorola on the Recross-examination of Cantu:

Q.  Okay. At that point was Mr. Massey free to leave?

A.  We had just arrived. At that point I already had called for several agencies to come. The protocol that we normally — that we use is to call for investigative agencies to come out and notify local law enforcement of shots being fired.  Prior to me getting to the point of getting full identifiers and running record checks, things that we normally would conduct, the sheriff’s department arrived.  And at that point I gave him the identifications that I had of Mr. Varner and Mr. Massey and the biographical information for Mr. Foerster and he went ahead and ran the records.

Q.  So at that point you handed over the investigation to the Cameron County Sheriff’s Office?

A.  Yes, sir.

Q.  And you didn’t look further into Mr. Massey?

A.  I did not, no.

So, if any crime occurred on the private property, the jurisdiction is with the Cameron County Sheriff.

Then, in Direct Examination by the Court (Judge Hanen):

Q.  All right. You were just trying to maintain a peaceful atmosphere until the proper authorities showed up?

A.  Yes, sir. I was trying to keep the scene safe, as best as you can call it that, until the other law enforcement agencies arrived.

Then comes Andres Rivas, special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives, also known as ATF, examined by Hagen.

Q.  Did you know where he was living?

A.  Yes. We believed that he was staying at — we knew that he was staying at the Value Inn — I’m sorry, the Value Place in Brownsville, Texas.

Q.  All right. Did you and several other agents set up outside this motel?

A.  Yes, sir.

Q.  And did you have a phone call placed to Mr. Massey to try to get him to come out of his hotel so that you all could arrest him?

A.  Yes.

Q.  And tell the Court about that.

A.  We knew that Mr. Massey had previous — had previous contact with law enforcement before, providing information. So knowing that, we used a ruse. We had an officer contact him so he could walk out with in his mind thinking that he was going to go meet with a law enforcement officer.

Q.  Okay. Did you think it would be safer to arrest him in the parking lot as opposed to knocking on the door of his room?

A.  Yes.

Q.  Okay. When he came out of his motel room was he arrested?

A.  Yes.

Q.  And can you tell the Court where he was? Was he in his vehicle? Walking out of the motel?  In the parking lot?  Where was he when he was arrested?

A.  Well, we were set up around the hotel. So we saw when he walked out of the hotel, the front door of the hotel. As he was approaching his vehicle, that’s when we arrested him in the parking lot of the hotel — motel.

Q.  Can you tell the Court how many agents were involved in the arrest?

A.  Well, directly involved it’s between four and six; but we had several other agents around the hotel backing us up and providing cover for the public and stuff like that.

Well, this is an excellent example of how government practices, using a ruse because of Massey working well with law enforcement, to get him to come out of his room, unaware of what was to come down on him.  Surely, Massey will not work well with law enforcement in the future.  They burned their own bridge with him.

Then, we have Kurt Weist, special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives.  This is Cross-Examination by Mr. Sorola:

Q.  Was Mr. Massey living there at the hotel?

A.  For all intents and purposes, upon searching the room, yes.

Now, we have some interesting information from Eduardo Ramirez, special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives.  Direct Examination by AUSA Hagen:

Re Government Exhibit Number 4:

This particular firearm was manufactured in the country of Croatia.  It was imported into the United States by Springfield Armory.  It was imported through the state of Vermont [later corrected to Illinois].  It was initially transferred from that manufacturer to an additional FFL or what we refer to as federal firearms licensee to the state of Ohio and then eventually to an FFL in the state of Texas.  It was eventually recovered in the state of Texas.

Re Government Exhibit Number 5:

This firearm was actually manufactured by Century Arms International in the state of Vermont.  It traveled to the state of Kentucky before it was between — manufactured and traveled to an additional federal firearms licensee in the state of Kentucky.  And then eventually transferred again from that federal firearms licensee to another federal firearms licensee in the state of Texas before it was eventually recovered in the state of Texas.

Re Government Exhibit Number 6:

This firearm was manufactured in the country of Croatia.  It was imported again by Springfield Amory through the state of Vermont [later corrected to Illinois].  It was transferred from Springfield Amory to an FFL in the state of Texas where it was eventually transferred to a private party and eventually recovered in the state of Texas.

Re Government Exhibit Number 22:

Yes.  It is another additional firearm manufactured in the country of Croatia.  Again, imported into the United States by Springfield Armory through the state of Vermont [later corrected to Illinois].  It was transferred to another federal firearms licensee in the state of South Carolina where that FFL transferred one more time to another FFL in the state of Arkansas before it was retailed to a private individual and subsequently it was recovered in the state of Texas.

So, all of the weapons had been through other states, or imported and then through other states.  However, there is no showing that Massey sent, transported, or received, any weapon — in and affecting commerce.

Cross-Examination of Ramirez by Mr. Sorola:

Q.  Do you know what crime my client has been charged with?

A.  I believe I have one of the crimes; and that will be felon in possession of a firearm, if I am correct.

Q.  Okay. And if you know, do you know what the elements of that crime are, if you know?

A.  Basic knowledge as an ATF special agent. One is to be a felon, a previously convicted felon and be in possession of a firearm.

Q.  Are there state statutes —

CORLEY: Objection. Relevance.

THE COURT: I’m going to have to hear the end of the question before I can rule.

A.  Excuse me. Can you repeat the question one more time?

Q.  Are there state statutes that —

A.  Obviously, yeah, there would be state statutes.

THE COURT: Wait.  Wait.  Let him — you don’t answer, and you don’t object until Mr. Sorola asks a question.

Q.  Are there state statutes that prohibit felons from possessing firearms?

THE COURT: All right.  Now, Mr. Corley.

CORLEY: Objection. Irrelevant.

THE COURT: All right.  I’m going to overrule the objection because it’s a bench trial.  If you know, you can answer that question.

A.  I don’t know. I enforce federal law, sir.

Q.  Okay. If these firearms were manufactured in the state of Texas would I or Mr. Massey have violated federal law?

CORLEY: Objection. Relevance. And it calls into question facts that aren’t in evidence.

THE COURT: Well, do you know the answer to that?

A.  It would — I would have to do research. And the reason why I say that is because a firearm, whether it’s manufactured in the state of Texas, it might have traveled outside of Texas. As I explained on the firearms here where they transferred to — for example, one was transferred from Illinois to Vermont and eventually to Texas.  So it’s a possibility that the firearm, although manufactured in the state of Texas, it could have been traveled to — it could have been transferred to an FFL outside of the state of Texas and then returned back to Texas and, therefore, would have traveled interstate commerce.

* * *

Q.  Okay. Let’s just say hypothetically if this firearm never left the state of Texas, then no federal statute would have been violated?

CORLEY: Objection.

Q.  Do you agree with that?

CORLEY: Relevance.

THE COURT: Wait a minute.  Finish the objection now.

CORLEY: Objection. Relevance.

THE COURT: Overruled.

A.  That is correct. If the firearm has not traveled — has not traveled out of the state of its manufacture and there is no factual proof that the firearm did travel, then there would be no prohibition for that person.

Q.  And what do you understand interstate commerce to be?

A.  That’s the common channels of commerce for — you know, for commerce between entities that conduct monetary or otherwise commercial exchanges across state lines.

So, the element of tracking weapons movement comes into play.  If it was manufactured in Texas, and then travelled outside of Texas, when it came back in, it would come within the Statute.

And, we have that definition that would be consistent with the Constitution when he says, “commerce between entities that conduct monetary or otherwise commercial exchanges across state lines.”  Quite succinct, and having nothing to do with anything Massey did.

Mr. Sorola moved for a Directed Verdict of Acquittal.  Following are portions of that discussion:

HAGEN: As far as interstate commerce, it is the Government’s position that our only burden is that these weapons traveled from one state to another prior to coming into the defendant’s possession.

However, unique arguments have been made by the defendant concerning whether or not his possession of a weapon affected commerce.  This is a unique case in that his possession actually did affect commerce.

THE COURT: What is the evidence of that?

HAGEN: Well, Mr. Cantu testified that he has been a border patrol agent down there for many years. He has seen many aliens that cross the river are coming to work. Some of them are criminals, but others are coming to work in Texas and other states.  And what Mr. Massey was doing with these firearms was preventing those folks from entering the United States, and he would not go on patrol without these guns.  We know that through the testimony of Mr. Aguilar who asked him not to come back.

And there was a discussion in Mr. Massey’s presence about, well, what about an unarmed patrol and Mr. Massey said no way we’re going on patrol without guns.

And I’m not conceding that that is an element of the crime.  All I’m saying, Judge, is there is a lot of evidence in this case of interstate travel and affecting commerce.

SOROLA: Your Honor, Mr. Aguilar never identified Mr. Massey. And in looking at 18 USC 922, in order for my client to have violated the federal statute he needs to possess in or affecting commerce. As my client is charged, he is charged with knowingly possessing and affecting interstate commerce.

Your Honor, the statute is clear that it prohibits commerce; but it doesn’t — it’s not possession in and affecting interstate commerce as my client is charged in the indictment.

HAGEN: I have to object, Judge. The indictment says “said firearms having been shipped in interstate commerce.”

THE COURT: I’m going to overrule the motion for directed verdict.  I understand the argument; and I can’t remember the term you used, Mr. Hagen, whether you said farfetched or a stretch or whatever for that argument.  I don’t agree with that.  I think the argument Mr. Sorola is making comes right out of the statute.  I don’t think it’s farfetched.  If you read the statute, that’s what it says.  Possess in or affecting commerce any firearm or ammunition.  So, I mean, I don’t think their argument is farfetched.

Now, having said that, the Fifth Circuit has ruled against that argument and has basically ruled as the Government is arguing that interstate — transportation of the gun in interstate commerce effectively equates to possessing in or affecting commerce.

Now, since they have ruled that way, I’m bound to overrule your motion — your motion for directed verdict whether I agree with it or not because I’m bound to follow the Fifth Circuit, you know, precedent.  But having said that, I don’t think it’s a farfetched argument at all.  I mean, it’s the first time this was ever raised in front of me.  If you read the statute, that’s how the statute reads.  As you argued it is what I’m saying.  But I’m overruling the motion based on the prevailing precedent in the circuit.  All right.

Note that Hagen did say it was a unique case, but then he said that it did affect commerce.  That is his reference to the illegal commerce of the border crossing, if they were going to work, especially in another state.  Rather interesting that the government seems to consider patently illegal activity as commerce.  Perhaps smuggling is another such form.  He also seems to confuse interstate travel with interstate commerce.  It would be travel, if in your own car.  It would be commerce if you took a bus, train, or airplane.  However, walking across the national border, illegally, can hardly be considered “interstate travel”.

Finally, in Closing Arguments, by Mr. Sorola:

SOROLA: Thank you, Your Honor.

Your Honor, the Court is bound by the letter of the law; and as I have pointed out in my motions, the letter of the law is possessing or affecting commerce.  The Fifth Circuit has come down with rulings; but with all due respect, the Fifth Circuit isn’t Congress, the legislature.

All my client has to go by is the statute before him and the letter of the law.  And he has a constitutional right under the Second Amendment to bear arms; and the statute, the way it is written, doesn’t tell him that those rights are gone.  The statute, the way it is written, isn’t clear.

And what we are asking this Court to do is uphold the letter of the law and find that my client is not guilty of possessing any firearms in or affecting commerce.  And we’re just looking at the statute, Your Honor.

Since it was a Bench Trial, Judge Hanen, over the objection of AUSA Hagen, allowed Kevin Massey to explain his point:

THE DEFENDANT: Yes, sir.  I just wanted to say, Your Honor, that I am a private citizen; and I was in the state of Texas on private property.  Your Honor, I respectfully and humbly request that the Constitution and the law are adhered to by the letter of the law.  Article 1 of the Constitution says that the legislature or legislative branch is the ones that write the law.  The law was written, and as is written that’s the only way that I would know to understand the law.  As the law was written in the US Code, I would — there is no way for me to know that I would be guilty of anything.  And, like I said, I humbly and respectfully request that you would rule on the constitutionality and the letter of the law.

Then came the Judge’s ruling:

THE COURT: All right.  I’m going to find the defendant guilty on all four counts.  Well, there are five counts but one of the counts doesn’t apply to him but Counts 1 through 4.

But I do feel compelled to say two things.  One, my ruling is based on the evidence; and it’s based on the prevailing precedent in the Fifth Circuit.

Two, I think the argument made by Mr. Massey through Mr. Sorola at least on its face has merit.  I mean, when you read the statute — and the whole time we have been listening to evidence, I have had the statute here in front of me — it says to ship or transport in interstate or foreign commerce comma or possess in or affecting commerce comma.  And I understand the argument that the defense is making that he didn’t possess or affect interstate commerce by his possession of these weapons.

Unfortunately for you, Mr. Massey, that’s — I have to follow the Fifth Circuit precedent.  The Fifth Circuit has already ruled on that; and they’ve said, no, shipping or transporting in interstate commerce or foreign commerce is effectively the same as possessing or affecting commerce.  And that’s the ruling I’m making.

Now, it’s not to say that they may not give you some relief.  I mean, if you have looked at my most recent opinion in this case, I cited the Seventh Circuit case which, quite frankly, I never thought I would see an opinion that basically said what they said, which was that it was all right for an illegal alien to possess a gun, which would also be contrary to the language of 18 USC 922.  And so, I’m sure, you know, that — with no pun intended — would give you  ammunition when you talk to the Fifth Circuit about how they interpret the statute.  But I’m bound by the Fifth Circuit precedent; and so, that’s my ruling.

Now, the next step in the process and I understand that there may be I won’t say urgency but I’m sure Mr. Massey would like to get things moving because the way he is going to get some relief is to get it from the Fifth Circuit.

As the Trial was coming to an end, Judge Hanen gave some instruction to AUSA Hagen:

THE COURT: All right.  I would suggest, Mr. Hagen, that those firearms — I don’t know what necessarily happens in the normal course of business to firearms that have been acquired in this manner, but I think the Government ought to keep these and not do anything to them until the Fifth Circuit has had their say on this.

It appears that Judge Hanen has reason to believe that Kevin Massey and his has/had argument may prevail at the Appellate Court.

The Sentencing Hearing

Having been found guilty, since Judge Hanen recognized his obligation, though not his sympathies, the Sentencing Hearing was held o January 4, 2016.  The Pre-Sentence Investigation Report, a recommendation without consideration of “Departures” or “Variances”, which are the subject of the Hearing, concluded:

Total Offense Level: 22
Criminal History Category: I
Guideline Range: 41 to 51 months
Supervised Release Range: 1 to 3 years
Fine Range: $ 7,500 to $ 75,000

Now, if we think about what should be, the Prosecuting Attorney should simply seek a conviction.  Once that is done, his job should be considered to have been completed.  However, when the Prosecutor then continues to seek a more vindictive punishment, perhaps his role has changed to Persecutor.  And, this is what we will see in the following.

Hagen had filed a Motion to seek an upward Departure.  He is requesting that the Sentencing Guideline Range be raised to “51 to 61 months”.  During the discussion of that Motion, the following transpired:

HAGEN: And just so the record is clear, we take exception because he did test positive for marijuana, he failed to comply with submitting random urinalyses as ordered under conditions of his bond.

THE COURT: And I put him in jail for that, and so he’s paid a price for that.

HAGEN: And he went to trial. And it’s the Government’s position, Your Honor, that he does not recognize any law that prohibits him from carrying a weapon around the Rio Grande Valley. Not state, not federal.

THE COURT: Okay. And that may be true, but at least I’m going to give him the opportunity to talk the Fifth Circuit into changing the law or at least changing their interpretation of the law.

Even though Massey smoked some marijuana, in violation of his pre-trial release, Hagen wants to hold him criminally responsible, as well as increasing his sentence for a crime that he has not been convicted of.  Judge Hanen sets the record straight.  Massey lost his freedom and remained behind bars until trial, and it continues, as he will, later, be bail pending Appeal because of this indiscretion.  It seems that Hagen wants blood.

Then, Judge Hanen sets forth the position he had taken in recognizing that Massey did possess firearms, though he did not do so with intent to violate the law (the Texas Statute).  He recognizes, and perhaps sympathizes, Massey’s desire to challenge the federal jurisdiction over people who are not involved in commerce (18 US Code § 922(g)(1)).

After some subsequent discussion, such as Hagen trying to claim that legally purchased “Tannerite” is an explosive, and the Judge points out that he was not criminally charged with having explosives, it is settled that Judge Hanen is holding to the Report.

Then Hagen goes into an oral effort to secure the highest penalty under the Guidelines (51 months).  He introduces something that was not testified to or put into evidence when he says,

“In August, before his arrest, he went through the Sarita Checkpoint with a .45 in his waistband.  I mean, he carried a gun at all times. And he does not and, I submit to the Court, will not recognize federal law that prohibits him from carrying a gun in a misconstrued state law, which allows felons to possess a firearm in the confines of their home after five years from release from prison. But he misconstrues that to think he can carry a gun wherever he wants.”

So, Hagen says that Texas law is misconstrued.  However, if that is the case, then Texas law prevails.  And, if it is misconstrued, then that is a matter under Texas law, not federal statutes.

Next, in an effort to demonize Massey, he begins with the rather condescending statement of how he tried to help.  Then, he takes specific portions of the “over 80 phone calls” in trying to paint a picture that encapsulates a very small and singular portion, still trying to get Judge Hanen to see what a monster he thinks Kevin Massey really is.  However, it must be admitted that even though Massey knew the calls were being recorded and reviewed by Hagen (based upon Hagen telling him, earlier, that they were listening to all of his calls.), he continued to call him “faggot”, among many other expletives.

HAGEN: Okay. So I’ve offered all the exhibits I intend to offer, with the exception of the one jail call, which I’ll play for the Court.

The Government’s position on sentencing. When this case first came to light, when Mr. Massey was first arrested, the Government’s position was that he hadn’t committed a crime in a long time and he was down here disgusted with the porousness of the border, like a lot of people are, and maybe trying to do something that many would view as a noble cause, and we agreed to him being released on bond.

That was a decision that I made that caused me a lot of discomfort as I got to know Mr. Massey while he was released on bond, as we learned what kind of devices were actually in the hotel room. And what I saw was someone that hated the Federal Government and hated the federal employees that were associated with this prosecution and investigation, someone that saw them as maggots and cockroaches, someone who also viewed someone like Timothy McVeigh as a patriot.

One of the defendants, Gary Hunt — there was an article, and it’s been admitted into evidence, an article by Gary Hunt, that describes Timothy McVeigh as a patriot who tried to ignite fire among like-minded people when he blew up the Murrah Federal Building, and that article came from the defendant’s Facebook page. And Mr. Hunt is not someone that just wrote an article that the defendant happened to read. Mr. Hunt is — I believe I’ve listened to over 80 phone calls between the defendant and Mr. Hunt; they’re like-minded people.

And the defendant not only talks about how he dislikes the Federal Government, but he encourages people to take action. And if one looks at his Facebook page — it’s just a small sampling that’s been provided to the Court. But if you look at what the defendant has to say, his constant complaint is there’s too much talk, there’s not enough action.

I’m not sure why he referred to me as a “defendant”, or maybe he was just overly excited, since Judge Hanen had shown no sympathy for Hagen’s arguments.

Hagen having said his piece, Mr. Sorola, in a brief portion of his presentation, hits on the matter of intent.  This is the same subject that Hagen’s condescending statement addressed.

Whether or not the Guidelines provide an adequate sentence to protect the public, Mr. Massey, in his opinion, was there to protect us. He wasn’t there to hurt us. He was there to stop the flood of illegal aliens coming across the border. Now, whether he was misguided or not, he was there to protect the public. He wasn’t there to wreak havoc or harm the public.

The failure of Hagen to make a reasonable argument to sentence Massey to the top end, as per the Guidelines, Judge Hanen opted, instead, to go to the bottom.  He had found Massey guilty of four counts, and sentenced him to the minimum of 41 months for each count, to run concurrently, with credit for time served.

Massey’s Appeal has been filed. No date has been set to hear it.

If Massey does win on Appeal, that will force the felon in possession law back into only participating in commerce,
as was intended by the Constitution.  That decision, then, could end up “changing the law or at least changing their interpretation of the law.”