Outpost of Freedom blog

Burns Chronicles N^o 35
From the Law Giver: “the law as I give it to you!”

Gary Hunt
Outpost of Freedom
October 25, 2016

Having obtained a copy of the Jury Instructions, as given to the jury in the U. S. v. Ammon Bundy, et al, by Judge Anna Brown.  I had sought them, as I was curious as to whether the instructions, at least, conform to the laws.  In Camp Lone Star #31 – The Case of Kevin KC Massey – Challenging the Interpretation vs. the Wording of a Statute, an example of what is referred to as “Pattern Jury Instructions”, and how the wording of the instructions is contrary to the wording of the Statute.  So, let’s delve into Anna Brown’s mental state and cognitive abilities in advising the jury on the “letter of the law”.  (A PDF format of the Jury Instructions.  References will be to {page} number.)

What is the Law?

Regarding the obligation of the jury, with regard to their deliberations, on {4}, she says:

“Upon your return to the jury room, it is your duty to weigh and to evaluate all of the evidence calmly and dispassionately and, in that process, to decide what the facts are.  To the facts as you find them, you must apply the law as I give it to you, whether you agree with the law or not, which is just as you promised to do in the Oath that you took at the beginning of the case.”

John Peter Zenger was tried in a New York court, in 1735.  He had violated the written law on sedition by an article he had printed.  Though in violation of the working of the law, the jury acquitted him, and in so doing, vacated the law.

Later, when the Constitution was written, the jury’s action in that trial provided an understanding that the People were the final arbiters of the laws enacted by Congress, as the colonists did with regard to Crown written laws.

Now, I do not intend to discuss FIJA (Fully Informed Jury Association), though I would suggest that you would find them a source for what was intended to be the role of a jury in our justice system.  I am going to provide an historical context as to what “jury” meant in the age of the Founders, and what one State did to assure that the original intent would be adhered to.

Maryland ratified their Constitution on November 11, 1776.  From that Documents Declaration of Rights, we find:

III. That the inhabitants of Maryland are entitled to the common law of England, and the trial by Jury, according that law, and to the benefit of such of the English statutes, as existed at the time of their first emigration, and which, by experience, have been found applicable to their local and other circumstances

XVII. That every freeman, for any injury done him in his person or property, ought to have remedy, by the course of the law of the land, and ought to have justice and right freely without sale, fully without any denial, and speedily without delay, according to the law of the land.

XIX. That, in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the indictment or charge in due time (if required) to prepare for his defence; to be allowed counsel; to be confronted with the witnesses against him; to have process for his witnesses; to examine the witnesses, for and against him, on oath; and to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.

Now, those are the only references to juries, and I will suggest that it was understood by everyone, in all of the colonies, that the jury could judge both facts and law.  To support this, we also find that the People are the ultimate authority under that Constitution.

I. That all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole.

II. That the people of this State ought to have the sole and exclusive right of regulating the internal government and police thereof.

But, I wouldn’t want you to take my word for it, so let’s look at their 1867 Constitution.  This was ratified after the chaos and turmoil created by the Civil War.  Apparently, concerns over the acceptance of the past understanding of both the jury process and the authority of the People, we find these changes in the new Constitution, ratified on September 18, 1867.  Again, from the Declaration of Rights:

Article 1.  That all Government of right originates from the People, is founded in compact only, and instituted solely for the good of the whole; and they have, at all times, the inalienable right to alter, reform or abolish their Form of Government in such manner as they may deem expedient.

So, they have the right (not the Legislature) to alter or reform.  However, it does not say how that would be accomplished.

So, since the power resides with the People, they have provided, and reinstituted, a means by which those laws enacted by the legislature can be judged by the people.

Art. 23. In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.

For a final affirmation of what was intended, and readily understood, back in 1852, we have an “Essay on Trial by Jury“, by Lysander Spooner.  We find Spooner’s explanation of the right to judge the laws in Chapter I, Section I (page 4 of the PDF.):

“FOR more than six hundred years that is, since Magna Carta, in 1215 there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.”

He goes into a greater explanation, though I believe that this is sufficient for our purposes.  Unfortunately, today, the Rules being used by the Court allow the Judge to deny that which is in the Constitution, by the intent of the Founders, and clearly what was understood to be the right of the jury, without question.

However, as we see by the instructions, the Rules and the words of Judge Anna Brown obviously circumvent the intent of the Constitution.  And, isn’t that what this trial is about?

Later, on {4}, she says:

“Because you must base your verdicts only on the evidence and on the Court’s instructions, it remains essential that you not be exposed to any information about the case or to the issues it involves beyond what has been received here in open court in your presence and the presence of the parties.”

She reaffirms that her “instructions” must be obeyed, and, by the way, don’t think very hard.  I’ll do that for you”.

Government’s Use of Informants

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On {12-13)}, we have the Judge vindicate some characters that are far more unscrupulous than any of the Defendants — by a long shot.

“You have heard evidence that one or more informants may have been involved in the government’s investigation in this case.  In order to investigate criminal activities, law enforcement officials may engage in stealth and deception, such as using informants who may assume the roles of members in an alleged conspiracy.”

I find it interesting that the “informants may have been involved“.  Heck, it has been admitted (stipulated) that they were involved.  Why couch that instruction in language that defies the testimony and evidence?  It seems likely that she does not want the jury even to think of the ramifications of a police state, where paid individuals infiltrate and spy on Americans, and then have the audacity to claim it is gospel.  The question as to whether their efforts are rewarded on performance, and the more dirt they get the more compensation they receive.  Nor does it preclude the possibility, since they have already given up their integrity in favor of the police state, and be willing to lie to increase that payment.

It is also worthy to note that the Court, in a sidebar, acknowledged that there were 15 informants, though by stipulation, the Defendants could only acknowledge nine of them.  After all, it would look far worse if informants numbering over twice their number, instead of a paltry 2-person advantage, outnumbered the seven people on trial.

The Written Word

Given that the law is composed of written words, it should be those words and what they intended that controls the Jury.  It is those words that, of themselves, should be the objective of the determination of the Jury as to the validity of the law.

So, let’s look at some of the Counts that the jury is charged with determination as to whether each of the parties is guilty, or not.  If someone is named in a Count, then that person, and any others named therein is a separate deliberation.  In some instances, we will have to look to the past to understand the intent, and we will also have to look at a legal definition that applies to us, though the government redefines that same word when it works to their benefit.

The General Charges:

On {13-14}:

THE CHARGES AGAINST THE DEFENDANTS

The government has charged the Defendants, Ammon Bundy, Ryan Bundy, Shawna Cox, David Lee Fry, Jeff Wayne Banta, Kenneth Medenbach, and Neil Wampler, with committing various crimes in violation of three different criminal statutes as follows:

In Count One the government charges each of these Defendants with “Conspiracy to Impede Officers of the United States” in violation of 18 United States Code § 372.

In Count Two the government charges Defendants Ammon Bundy, Ryan Bundy, David Lee Fry, and Jeff Wayne Banta with Possession of Firearms and Dangerous Weapons in Federal Facilities in violation of 18 United States Code § 930(b). You may recall at the beginning of this trial I told you Count Two was also pending as to Defendant Shawna Cox. Count Two as to Shawna Cox is now no longer before you. Do not speculate about why that charge is no longer part of this trial.

In Count Four the government charges Defendant Kenneth Medenbach with Theft of Government Property in violation of 18 United States Code § 641.

In Count Five the government charges Defendant Ryan Bundy with Theft of Government Property in violation of 18 United States Code § 641.

Please note that Count Three is not pending in this trial.

Now, you will note that Count One has seven Defendants, Count Two has four Defendants, Count Four has one Defendant, and Count Five has one Defendant.  Therefore, the Jury is, in a sense, deliberating on 13 different cases — Each Defendant, singularly, to each Count that he is charged with.

Note, also, the wording of the violation within each Count.  There will be even more detail, below, but, then, this is where it gets really interesting.

However, a final comment, before we proceed:

On {16}, we find a simple statement:

An informant may not be considered a co-conspirator. Thus, the acts and statements of an informant cannot form the basis of an illegal conspiracy or be attributed to any Defendant.

So, these are not even law enforcement officers, yet they have immunity from being charged with criminal activity that you or I could be charged with.  Now, that is police state reasoning.

Count One

From {17-19}:

As noted, each of the Defendants are charged in Count One with Conspiracy to Impede Officers of the United States in violation of 18 United States Code § 372. In order for any Defendant to be found guilty of Count One, the government must prove as to that Defendant each of the following elements beyond a reasonable doubt:

First, beginning on or about November 5, 2015, and continuing through on or about February 12, 2016, there was an agreement between two or more persons, and an object of that agreement was to prevent an officer or officers of the United States Fish and Wildlife Service and/or Bureau of Land Management from discharging the duties of his or her office by force, intimidation, or threat; and

Second, the particular Defendant became a member of the conspiracy knowing of that objective and specifically intending to help accomplish it.

Now, we have all heard the legal expression, “on or about”, but here we have three months and one week in which the alleged crime occurred.  I understand that her instructions sort of, kind of, explain it, but if someone is charged with a crime, shouldn’t the day, with reasonable tolerance, be necessary to establish that a crime had been committed?  Or, is it sufficient to just sort of throw the whole darned calendar in and say that it happened on one of those days?

Now, is arrival at the Refuge proof of involvement in the conspiracy?  If so, would that date, or at least the day that the accused became hardcore is indispensable to the charge?  How can the jury determine if someone did something, when the jury really doesn’t know exactly when they did it?  Or, is our justice system based on the guess/opinion of law enforcement officers?

However, this gets even better.  There is an article that covers this aspect more extensively at “Officer?  What Officer?“.  However, we will address the short version, here.  To do so we must first look at the wording of the Statute:

18 U.S.C. § 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, we are a nation of laws, and those laws are written so that we can, as the People, read and understand just what the law is.  Not what some judge wants it to be, since then we would be a nation of men, not of laws.

You will note that the law says “officers”, it does not say employees.  However, on {19}, she provides a redefinition of officers:

The term “officer of the United States Fish and Wildlife Service and/or Bureau of Land Management” means any person who is employed either full-time or part-time by the United States Fish and Wildlife Service or Bureau of Land Management.

So, she has redefined “officer” to include secretaries, custodians, and even part-time employees, as officials of government.  However, if you decide to read “Officer?  What Officer?“, you will see that “officer” is a much higher level of employee than what the Judge has decided (rule of man) to force upon the jury, in their deliberations {21-22}.

ELEMENTS OF COUNT TWO: POSSESSION OF FIREARMS AND DANGEROUS WEAPONS IN FEDERAL FACILITIES

As noted, Defendants Ammon Bundy, Ryan Bundy, David Lee Fry, and Jeff Wayne Banta are charged in Count Two with Possession of Firearms and Dangerous Weapons in Federal Facilities in violation of 18 United States Code § 930(b). In order for any of these Defendants to be found guilty of Count Two, the government must prove as to that Defendant each of the following elements beyond a reasonable doubt:

First, beginning on or about January 2, 2016, and continuing through February 12, 2016, the particular Defendant possessed or caused to be present a firearm or other dangerous weapon;

Second, in a federal facility;

Third, the particular Defendant acted knowingly; and

Fourth, the particular Defendant — or someone the Defendant intentionally aided and abetted — acted with the intent that the firearm or other dangerous weapon be used in the commission of a crime (in this case the Count One charge of Conspiring to Impede Officers of the United States) at least in part within that federal facility.

A defendant may not be found guilty of Count Two unless he or she is found guilty of Count One. If your verdict on Count One is “not guilty” as to a particular Defendant, then your verdict on Count Two must also be “not guilty” as to that Defendant.

The term “federal facility” means a building or part of a building owned or leased by the federal government, where federal employees are regularly present for the purpose of performing their official duties.

She then further defines this Count Two in more detail {23-24}:

First, Possession of Firearms and Dangerous Weapons in Federal Facilities, as defined in these Instructions, was committed by someone;

Second, the Defendant aided, counseled, commanded, induced or procured that person with respect to at least one element of Possession of Firearms and Dangerous Weapons in Federal Facilities;

Third, the Defendant acted with the intent to facilitate Possession of Firearms and Dangerous Weapons in Federal Facilities, as defined in these instructions; and

Fourth, the Defendant acted before the crime was completed.

Note that the second set seems to suggest “aiding, counseled, commanded, induced or procured“, however, we find no such wording in the Statute (below).  We have to wonder just how Judge Anna Brown makes this stuff up.

So, let’s look at what the Statute says, though with irrelevant paragraphs omitted, and qualifying paragraphs included:

18 U.S. Code § 930: Possession of firearms and dangerous weapons in Federal facilities

(a) Except as provided in subsection (d), whoever knowingly possesses or causes to be present a firearm or other dangerous weapon in a Federal facility (other than a Federal court facility), or attempts to do so, shall be fined under this title or imprisoned not more than 1 year, or both.

(b) Whoever, with intent that a firearm or other dangerous weapon be used in the commission of a crime, knowingly possesses or causes to be present such firearm or dangerous weapon in a Federal facility, or attempts to do so, shall be fined under this title or imprisoned not more than 5 years, or both.

(d) Subsection (a) shall not apply to—

(1) the lawful performance of official duties by an officer, agent, or employee of the United States, a State, or a political subdivision thereof, who is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of any violation of law;

(2) the possession of a firearm or other dangerous weapon by a Federal official or a member of the Armed Forces if such possession is authorized by law; or

(3) the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes.

(g) As used in this section:

(1) The term “Federal facility” means a building or part thereof owned or leased by the Federal Government, where Federal employees are regularly present for the purpose of performing their official duties.

(h) Notice of the provisions of subsections (a) and (b) shall be posted conspicuously at each public entrance to each Federal facility, and notice of subsection (e) shall be posted conspicuously at each public entrance to each Federal court facility, and no person shall be convicted of an offense under subsection (a) or (e) with respect to a Federal facility if such notice is not so posted at such facility, unless such person had actual notice of subsection (a) or (e), as the case may be.

By omission, the Judge has left the jury with a total misunderstanding of the law.  Some information can be found in “Firearms Not Allowed“, which will explain that the Malheur National Wildlife Refuge, in their brochure, stated that firearms come under State law.

Now, the Indictment addresses only paragraph (b), and the instructions, in both First and Second, say:

“possessed or caused to be present a firearm or other dangerous weapon… in a federal facility”

The Third and Fourth give us:

“Defendant acted knowingly… acted with the intent that the firearm or other dangerous weapon be used in the commission of a crime (in this case the Count One charge of Conspiring to Impede Officers of the United States).”

I believe it was rather gracious and surprising, that the qualifier of having to be found guilty of Count One was included.  However, she leaves the jury with an impression that it is illegal to possess a firearm in a federal facility.

For example, (a) makes it illegal, without the crime aspect, subject to the exceptions in (d)(3), which makes that “other lawful purposes” demonstrates that possession in such a facility is an accepted practice.  Then (h) provides that the property must be posted.

If the jury had such information, would they be less likely to find someone guilty?  After all, the Second Amendment, as was attested to in Court, provides that the Defendants had every right to possess those firearms, providing a completely different standard to the jury, upon which to weigh any aspect of firearm possession.

At least, given the entire Statute, the jury could determine, supposing that someone was found guilty of Count One, whether their possession of a firearm at the Refuge would have been within the acceptable provisions of the Statute, or was specifically with criminal intent.  As the Judge gave it, if they were Guilty of Count One, they would also be guilty of Count Two.

Count Five

This Count charges Ryan Bundy with theft of a camera, or cameras.  However, the evidence shows that the cameras were retained and made available for the FBI to pick them up at a press conference, or at any other time, at the Refuge.

So, perhaps we should start with “theft” in common legal usage — which would apply to you, or to me.  This is from Black’s Law Dictionary, Fifth Edition:

Theft.  A popular name for larceny.  The taking of property without the owner’s consent.  People v. Sims, 29 III.App.3d 815, 331 N.E.2d 178, 179.  The fraudulent taking of personal property belonging to another, from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.

It is also said that theft is a wider term than larceny and that it includes swindling and embezzlement and that generally, one who obtains possession of property by lawful means and thereafter appropriates the property to the taker’s own use is guilty of a “theft”.  Kidwell v. Paul Revere Fire Ins. Co., 294 Ky. 833, 172 S.W.2d 639, 640; People v. Pillsbury, 59 Cal.App.2d 107, 138 P.2d 320, 322.

Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of his property: (a) Obtaining or exerting unauthorized control over property; or (b) Obtaining by deception control over property; or (c) Obtaining by threat control over property; or (d) Obtaining control over stolen property knowing the property to have been stolen by another.

See also Auto theft; Embezzlement; Extortion; Intimidation; Larceny; Robbery; Theft by false pretext.

There was never any intent to convert the property to the use of Ryan Bundy, or any other person at the Refuge.  The offer to return the property was made within hours of the removal of the cameras.

Now, as far as consent, well, there was no name on the cameras, so there was only an assumption that they were owned by, or under contract to the FBI.  However, let’s look at what you might do if someone were spying on you.  Suppose you found an audio “bug” in your house.  You don’t know who it belongs to, but you assume that it is either a private contractor (private eye) or the government.  Now, if you took it down, is it stolen?  Suppose you put a sign on your front door, “Bug Found, will return to the owner upon proof of ownership.  Please enquire within.”  Have you stolen it?

Now, if you sold it, or managed to connect it to your Smartphone, for your own use, then, well, you have stolen it.

However, let’s, once again, look at the Statute that Ryan Bundy is charged with:

18 U.S.C. § 641: Public money, property or records

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or

Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted –

Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.

The word “value” means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.

Well, I can find nothing in that Statute that is applicable to the circumstances of the charges made against Ryan Bundy.

So, now, let’s look at how the Judge decided to instruct the jury, with regard to his Count {25-26}.

First, the Defendant knowingly stole or converted to his own use or the use of another cameras and related equipment, with the intention of depriving the owner of the use or benefit of this property;

Second, the cameras and related equipment belonged to the United States; and

Third, the value of the cameras and related equipment was more than $1,000.00.

A person acts “knowingly” if the person is aware of the act and does not act through ignorance, mistake, or accident.  You may consider evidence of a Defendant’s words, acts, or omissions, along with all of the other evidence, in deciding whether a particular Defendant acted knowingly.

A person acts “with the intention of depriving” the owner of the property if the person has a purpose or conscious desire to deprive the owner of the use or benefit of the property.

Now, note that in the First, it begins with the “stole or converted to his own use or the use of another”, while the Statute says, “Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another.”

So, both the instructions, which were somewhat ambiguous, and the Statute are contrary to the word “theft”, as it would apply if something were stolen from you or me.  However, we can look to the definition of “with the intention of depriving“, which was never the purpose of the actions by Ryan and others.  Their sole purpose was to protect themselves from intrusive spying being conducted on them, and nobody has come forward with a warrant to allow that spying by the federal government.

For a final thought on the legality of the government spying, the camera was mounted on a public road.  To install those cameras, it would require both a “right-of-way utilization permit” and permission from the owner of the poles that they were mounted on, to be legal.  The government has shown no proof of either, nor have they shown proof that the cameras were owned by the government.  They simply want not to have to answer those questions to the jury, so the issues are obfuscated in the Jury Instructions.

How did we convert (not for our own use or the use of another) the Rule of Law into a system that has become a Rule of Man?  Or, in this instance, woman, who converts the written word into something that it was never intended to be the law that was enacted by the Legislative Branch of Government — the Congress?

Deliberations

In the final portion of the 30 pages Jury Instructions, we find what is probably the most problematic portion of the document.

We have all taken multiple-choice quizzes.  So, what happens when you find that your answer lies somewhere between two choices, or not at all?  Now, when the courts decided to give a simple yes or no worksheet for determination of guilt, what happens if your answer is somewhere between the two?  So, here is that Instruction {29-30}:

A separate verdict form has been prepared for you to complete as to each Defendant.  After you have reached a unanimous agreement as to the verdict for each Defendant, your Presiding Juror should complete the verdict forms as you have agreed, sign and date them, and then advise the Courtroom Deputy that you are ready to return to the courtroom.

In the forms I have seen, before, it would have a statement such as, “If you find that Mr. X did hold a weapon, you must find him guilty”.  Have we become so dumbed down that we cannot, as a jury, rely on the law and the facts, and then judge both?

Let’s look at it this way.  We are supposed to obey the laws.  The laws are written in English.  Those few remaining Americans who speak English should be able to understand the laws, as they are written.  So, if they are the laws that we are supposed to read, understand, and then obey, why does the Jury have to have someone interpret them into terms that the Defendants are bound by at trial?  Bottom line is that the Jury is not judging the by the law, rather, by what the government wants the law to be.

Challenging that same government for subversion of the Constitution and denial of the enumerated rights of speech, assembly, and redress of grievances has resulted in the government, through chicanery at trial, proving the point that was being addressed when those Americans entered the Refuge back on January 2, 2016.