Outpost of Freedom blog

Camp Lone Star
Massey Appeal Denied

Gary Hunt
Outpost of Freedom
March 27, 2017

My last article in this series was congratulations to Massey on being moved to the minimum-security camp.  After nearly two years of being treated as a threat, often being thrown in solitary confinement, just a few months after leaving the control of the US Marshal Service, he entered the Federal Bureau of Prisons (BOP) authority.

Massey was more than willing to serve peaceably, if they didn’t mess with him.  He was just biding his time, awaiting the Appellate Court’s decision on his appeal, which was heard (oral arguments) on February 9, 2017.

Though the Decision was made on February 22, his attorney did not advise Massey of the decision until March 24.  Shortly after speaking with his attorney, he called to give me the bad news.  Massey and I agree it has become abundantly clear the judicial process has become one without consideration of written law, but rather, a tool in the persecution of those deemed unfavorable to the policies of government.

The Decision is so ambiguously written it appears the arguments Massey had set forth were never heard by the Court.  Until we receive copies of the transcript, we have nothing upon which to evaluate what transpired in the Halls of “Just US”.  We can, however, review the Decision that suggests the court seem to speak a different language than the rest of us.  We, the People, are bound by the words, as written, in the Constitution and those laws in pursuance thereof.  The Court, however, appears more inclined to the aforementioned policies.

From that Decision, we find the following:

Massey was charged with four counts of possession of a firearm by a convicted felon under 18 U.S.C. § 922(g). He moved to dismiss on the grounds that he was complying with Texas’s felon-in-possession statute and that Section 922(g) is unconstitutional as applied to him. He also maintained that, to satisfy the jurisdictional element of Section 922(g), the government was required to prove more than just that the firearms had traveled in interstate commerce.

Here, the Court has set forth two elements of Massey’s arguments.  The First had to do with the authority of the State.  Article IV, § 4 of the Constitution states:

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

That means, even before the Ninth and Tenth Amendments, that the States could enact their own laws, so long as the were not in conflict with those law “which shall be made in Pursuance [to the Constitution]” (Article VI, cl. 2).

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Then, they detail Massey’s three principle arguments:

Massey contends, on three grounds, that there was insufficient evidence to convict him of violating Section 922(g). He claims that the indictment was constructively amended because the government did not prove that his possession of the firearms affected interstate commerce. He asserts that under Texas law, he was permitted to have the firearms because he possessed them on “premises at which the person lives.” TEX. PENAL CODE § 46.04(a)(2). Finally, he believes it was error for the district court to make no determination on whether his rights had been restored.

The second and third deal with, as stated, Texas Penal Code § 46.04(a)(2), which reads:

(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;  or

(f)  For the purposes of this section, an offense under the laws of this state, another state, or the United States…

So, Texas removes the “felon” status, with regard to possession of a firearm, after five years from the completion of his sentence.

It also recognizes the laws of other states and federal, with regard to a felony conviction.  However, the Appellate Court argues that the federal does not have to recognize state law, unless it is a directed expungement (clearing the record).

The statute contains no requirement that the possession be illegal under state law. Texas law is relevant only to evaluating the applicability of Massey’s prior conviction.

Well, that is one heck of a one-way street.  If it is legal under state law, federal law prevails.

They go on to say that Massey is,

referring to the exception to Section 922(g) for “[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored… unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” 18 U.S.C. § 921(a)(20).

Now, here, they say “receive”.  Massey did not “receive” any firearm out of commerce, even though the firearm had been in commerce, at some point.  However, the state seems to think that the state may expunge by statute, though the federal government seems to think that the expungement has to be specific.  Again, they ignore what the state, with its Republican Form of Government, can enact.

Now, let’s move to Massey’s first, and most important, argument.  The Court simply states:

He moved to dismiss on the grounds that he was complying with Texas’s felon-in-possession statute and that Section 922(g) is unconstitutional as applied to him.

They do not address the fact that the argument relies wholly on the wording that Congress used to enact the statute.

The government was not required to prove the legality, under Texas law, of Massey’s possession of the firearms, because that is irrelevant to his conviction under Section 922(g). To convict under Section 922(g)(1), the government must prove three elements: “(1) that the defendant previously had been convicted of a felony; (2) that he possessed a firearm; and (3) that [it] traveled in or affected interstate commerce.” United States v. Guidry, 406 F.3d 315, 318 (5th Cir. 2005); 18 U.S.C. § 922(g)(1).1

US v. Guidry takes the same course that previous decisions have taken. It does not address the verbiage, has versus had.  It simply states that the weapon need only have traveled in interstate or international commerce.

The Court continues:

Massey’s indictment was not constructively amended, because the language of his indictment mirrored that of the statute of conviction. “[A]n indictment which follows the language of the statute under which it is brought is sufficient to give a defendant notice of the crime of which he is charged.” United States v. Thomas, 348 F.3d 78, 82 (5th Cir. 2003)

So, we look at US v. Thomas.  It also says:

“An indictment is sufficient if it contains the elements of the charged offense, fairly informs the defendant of the charges against him, and ensures that there is no risk of future prosecutions for the same offense.”

So, now we can look at Massey’s Indictment.  It says that Massey,

“did knowingly possess in and affecting interstate commerce a firearm, that is one [firearm identified], said firearm having been shipped in interstate commerce.”

Compare that with what § 922 (g)

(g) It shall be unlawful for any person…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.

Though the wording of the Indictment, at first glance, does follow the language of the statute, however, it does not follow closely.  However, the Court used a broad brush rather than addressing the specific language of the statute.  Then, they cover their misrepresentation by asserting that Texas Penal Code § 46.04 is meaningless, since federal law prevails.  They didn’t, however, rule that Texas § 46.04 should be struck down, though that should, of necessity, be done so as to not lead others to believe that they could possess a firearm under that statute.  Well, that is true if the Court ruled correctly.

As we also find in Thomas, the Indictment may contain some of the elements, but does it really inform him of the wording of the charges against him?  Or, has the government substituted the phrasing so that they Grand Jury will not question what they have been told to believe?

Our form of government separates the branches thereof.  The Legislative Branch enacts laws.  The Executive Branch is to enforce the laws.  Te Judicial Branch is to determine if the requirements of the Constitution are met, especially when the wording (Legislative) is amended by the Indictment (Executive), is not consistent with the law, as written.

The Legislative Branch used specific words in the Statute.  Those are the words of the law, though the Executive refuses to present those words, as written, to the Grand Jury.  The Judicial Branch then fails to apply a standard that the Supreme Court uses in such a situation — the specific wording, as enacted, to determine whether the Statute is constitutional, and, whether it is being properly applied.

It appears, however, that the words that are enacted to provide guidance in what is legal and what is not legal are not fixed, and the government, through any means, has not endeavored to recognize, let alone correct that problem.

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 incoherent that they cannot be understood…  Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

                                                                        Federalist #62, James Madison

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To write to and/or Support Kevin “KC” Massey:

Kevin Massey 76555379
FCI Seagoville
P.O. Box 9000
Seagoville, Texas 75159

There is a code for all to send money, along with specific instructions here:
https://www.bop.gov/inmates/communications.jsp#money.