Camp Lone Star – Act Two: The Contradictions
Scene 2: To Detain, or Not to Detain? That is the Question.

Gary Hunt
Outpost of Freedom
April 12, 2015

Another question brought up in Sorola’s motion to suppress evidence was also addressed. At issue is whether he was detained, at which point he would have to be read his Miranda rights, which they did not do, or simply stopped for investigative purposes. The latter would be what is referred to as a Terry Stop. It is worth noting that a Terry Stop is defined as:

A brief detention of a person on reasonable suspicion of involvement in criminal activity but short of probable cause for arrest. To have reasonable suspicion that would justify a stop, police must be able to point to “specific and articulable facts” that would indicate to a reasonable person that a crime has been, is being, or is about to be committed.

As you read the testimony, decide what you believe the answer is. Remember that only two people were witness to any criminal activity — the shooting incident.

Mr. Hagen said, in his initial argument:

[T]he Border Patrol agent [then] fired several shots at Mr. Foerster, thankfully missing.

So that launched a — an investigation since a federal agent had discharged his firearm. That’s what brought the FBI and the Sheriff’s Department and Border Patrol Internal Affairs and all these people out to the area.

But as far as suppressing evidence, I think the government is on solid ground here because before the shots were even fired, there are multiple Border Patrol agents that observed Mr. Massey carrying a firearm, and that’s what he’s charged with is possession of a firearm. Even before he was ever detained or questioned, he was seen carrying a firearm on August 29th of 2014.

And the only relevant information or information I’d say that is critical to our prosecution is his identity, who he is, and I don’t believe that can be suppressed, although I think — I think law enforcement behaved accordingly in all respects in connection with this investigation. Even if it was a bad stop or a bad search or — you can’t suppress identity.

Yes, he is correct. If you were a criminal walking down the streets, absent a warrant, could they just stop and arrest you because you are doing something that many others are doing? We are a nation of laws, not of men. Those laws require that certain procedures be followed, even to the point of protecting a criminal — whether he is a criminal, or not. So, since there are no “Wanted Posters” for K. C. Massey, identification becomes a crucial point.

As Hagen said, “there are multiple Border Patrol agents that observed Mr. Massey carrying a firearm”. So, why didn’t they arrest him, then? Could it possibly be that the law, not men, are the rule?

Hagen continues:

I believe Mr. Massey said to Danny Cantu: Look, nobody got hurt. We’d like to — you know, we’re going to be on our way.

Danny Cantu said: Look, a federal agent discharged his weapon. There’s going to be an investigation. Y’all need to stay around.

Earlier, Cantu had said that he thought that the shots had come from the Mexican side of the border. He received radio communication that a federal agent had done the shooting. Why would someone that was very far from the actual shooting be a witness in an investigation?

Let’s keep in mind some recent events of which we are all aware. We have law enforcement people saying that if you don’t want us to shoot you, you had better cooperate. That might be sound advice if one wasn’t subject to persecution because he cooperated, however, if you believe that under state law you have every right to have a firearm on private property, with the permission of the owner, what are you going to do the next time a law enforcement, any law enforcing, officer wants to detain, stop, hold, or even ID you? It is somewhat difficult to reconcile yourself to the idea passive obedience when one realizes that even if they are not violating the law, the feds might use every trick in their toolbox, if they want to persecute or prosecute you.

So, then Hagen says:

Now, Mr. Massey was detained or was in the area for several hours. I think everyone left around 7:00. I think the evidence will show that shots were fired around 3:45.

Note that Hagen has framed the whole event into over 3 hours. This will be addressed more in Act Two, Scene 3.

Now, we move to the first witness, Agent Cantu, in examination by Hagen.

Q All right. Now, did you give any instruction to Mr. Massey after you first encountered him?

A After we encountered them, I asked him and Mr. Varner if they can hang tight. They were missing one of their — their friends that was with them, and I wasn’t sure where exactly he was. Again, I was still in the back of my head, the shots had rang out. They had called for a supervisor. I was trying to make my way down to where the agents needed me, ensuring safety, that everybody was okay. So I asked them to stay by their Kawasaki as I continued down this dirt road.

Q Okay. So you get to the area where the shooting took place. What do you see?

A As I approach, I see Mr. — Mr. Foerster holding a weapon in his hand. It was just hanging down to his side, but he was holding the weapon as an —

***

So as I came down, I saw Mr. Foerster there holding that weapon. I saw the agent, Marco Gonzalez, approaches me as I’m getting close, and he’s telling me that, you know, he shot at Mr. Foerster; that Mr. Foerster turned in his direction with the weapon and he opened fire. And I was trying to get — Foerster started talking, and so I was trying to get everybody to —

Now, according to Cantu’s testimony, he already had their identification, so essentially, they cannot leave. They have to consider that if they do leave, at best, they no longer have any identification, and, at worst, they might be charged for resisting arrest, or some other bogus charge. After all, who would leave their ID with an LEO, if they were free to leave?

Later, he testifies that he, and Massey, knew what had happened before they got to the ATV. That would, of course, make anything Massey knew nothing more than hearsay.

As we got to the ATV, Mr. Foerster started telling Mr. Massey what had occurred…

Cantu continues, in response to Hagen asking him what happened next:

A As soon as we… Mr. Massey tells me: You know, as far as we’re concerned, nobody was injured. We want to go on our way.

Q Okay. And is there a protocol that you need to follow when an officer discharges a weapon?

A Yes. We need to make notifications. We need to investigate why the firearm was discharged.

Q Okay. Now, at this point in time, did you know whether or not Border Patrol Agent Gonzalez had been threatened or whether or not perhaps Border Patrol Agent Gonzalez had irresponsibly fired upon Foerster? Did you know?

A From what I had gathered, he had fired in — from what Mr. Gonzalez told me. Again, this was preliminary. I was trying to — I had to speak with everyone to figure out kind of what was actually happening, so I wasn’t sure at that point.

***

Q Okay. Did you explain to Mr. Massey — and may I ask you this? When Massey said, “We want to leave,” who was he talking about when he — when he mentioned or by the word “we”?

A Well, Mr. Foerster, Varner and himself were inside the Kawasaki, so that to me told me they all wanted to depart.

Cantu knew that Massey and Varner knew no more than he did. The question involved three people, as Cantu puts it. If the majority should be excluded, reason dictates that he should have said that only Foerster had to remain.

Q Okay. So did you explain to them that an investigation was going to be conducted?

A I did.

Q And how did you explain that to them?

A I told them that they weren’t allowed to leave and that we were going to move to a staging area just further up, which is the — this area right here. My initial thought — and the reason I chose this area was to give us distance from the river that was close by. We moved here to stage the vehicles and kind of get a grip of what actually transpired.

Now, they were not allowed to leave. That means that they are not free to go. However, as explained above, they were being good, State law-abiding, cooperative citizens.

Later in testimony:

Q Okay. Now, did you ask Mr. Massey to provide you with an ID?

A I did, sir.

Q At what point in time did you make that request?

A Our initial encounter, as I approached him with Mr. Varner.

Q Okay. And did — did he provide you with an identification?

A He did.

So, it was when Varner and Cantu met up with Massey that the physical (identification papers, please) ability to leave was removed. This singular act sets the stage for the whole drama of whether it was detention or a Terry Stop.

So, let’s keep the stage set. Cantu has the IDs. Rather than return them he, well:

Q And when Sergeant Valerio showed up, did you provide the IDs from Mr. Massey and Mr. Varner to him?

A Yes, sir. I had not been able — had time to conduct any further investigations on those. When I say that, I mean run records. I mean, normally typically run records when we encounter people. I had not had the time. I was attempting to secure everything that — when Mr. Valerio showed up, I handed him the identifications and kind of gave him the rundown of what had occurred, and he took over at that point.

So, if he gave Valerio the “run down”, the Cameron County Sheriff’s Deputy would know that there were only two witnesses to the shooting.

This is cross-examination by Mr. Sorola, and a repeat of part of Scene 1, and brings in the question posed by the Judge:

Q Okay. Later on do you find out who is shot — who is firing a weapon, a firearm?

A Upon approaching [where] Foerster and Mr. Gonzalez [were], yes.

Q And Agent Gonzalez is the only one that discharged a weapon; is that correct?

A At that point, that’s what I was told, yes.

Q And you were told that by Agent Gonzalez, right?

A Correct. And Mr. Foerster attested to that.

THE COURT: And you said at that time. I mean, nothing subsequent to that time has changed that, have they?

THE WITNESS: No, sir, no. It’s just that —

THE COURT: So as far as you know sitting here today, the only weapon that was shot was — the only weapon discharged was discharged by Agent Gonzalez.

THE WITNESS: Correct.

In confirming (that’s what good attorneys do) that Massey and Varner were detained, Mr. Sorola asks:

Q And this is about 3:45 in the afternoon, correct?

A Correct.

Q Now, you testified earlier that you told Mr. Massey he could not leave the area, right?

A Correct.

Q So he wasn’t free to leave.

A No.

Q He had to stay there.

A Yes.

Q What would you have done had he tried to leave?

A I could have detained — placed him in handcuffs, put him in a unit to secure him to prevent him from leaving the area. But he was being cooperative, and none of that was necessary.

Next, we look at whether there was any reason, at all, to believe that Massey and Varner were complicit, or even aware, of the shooting event — other than having heard the shots.

Q And when the shooting occurred, you didn’t take Mr. Varner’s weapon from him, did you?

A No, sir.

Q You didn’t disarm him?

A No.

Q You didn’t frisk him?

A No.

Q When you encountered Mr. Massey, did you check him for firearms?

A Just the one he was carrying, the longarm, the AK47 weapon.

Q But you didn’t take it from him?

A I did not.

***

THE COURT: Okay. But you had no — you obviously didn’t have any reason to think Mr. Massey was the one that had done the shooting because —

THE WITNESS: No, I —

THE COURT: — you went on. You left him there and went on.

THE WITNESS: Correct.

Here is a rather interesting side note, perhaps a contradiction that has to do with “Officer Safety”. At this time, there are just a few agents in the area. The recipient of the shots fired is still armed, as are Massey and Varner. After additional officers arrive, approaching “between 15 and twenty”, it is determined that the weapons must be “secured”, first to the open ATV, then, later, to the back of the BPS “unit” (why don’t they just call it what it is, instead of government double-speak?)

Q Okay. So Mr. Varner and Mr. Massey just tell you out of the clear blue: We also have firearms on us?

A Yes.

Q And you didn’t see these firearms prior to them telling you?

A I did not.

Q But then are you saying that Mr. Varner then handed you the — the firearm that he had?

A Yes, sir.

Q And what did Mr. Massey do?

A Same thing. They both removed the — their pistols and put them in the back of my unit. The pistols were downloaded and placed there with the remainder — with the other rifles.

Back to the subject of this Act, whether they were detained or stopped. Mr. Sorola still questioning:

Q How long was it that Mr. Massey was not free to leave this area?

A In its entirety, sir, or the investigative agency showed up?

Q In its entirety. From 3:45 when shots are fired, when is Mr. Massey free to go?

A He departed — I’m — I can’t tell you exactly who told him it was — after the investigative agency showed up, they began to interview him. And which agency ultimately told him they were done with their interviews, I couldn’t tell you.

Next Witness, Cameron County Sheriff’s Deputy Daniel Valerio. This will be the handoff of the ID cards, though there arises a question (good memories?) of whether there were two, as Cantu said, or three, as Valerio will testify:

Q Okay. Did you observe or did you meet with an individual by the name of Danny Cantu?

A Yes, I did.

Q And did he provide you with any ID cards?

A Yes, he did, with three ID cards from the persons that were there.

Q Okay. Did he provide you with three ID cards or two ID cards?

A As far as I can remember, it was three ID cards.

Q And soon after arriving, did you request criminal histories and a warrant search on the IDs that had been provided to you?

A Yes, that’s correct.

***

Q All right. Now, did you have reason to believe that Mr. Massey had been carrying a weapon or weapons on that date prior to your arrival?

A Yes, I did.

Q Why did you think that?

A I was informed by the — by David Cantu that this — the suspects, the persons that were there, they were carrying these weapons that he had shown me.

Q All right. Did you — when you first arrived, did you think Mr. Massey had committed a crime? And I’m talking about before you ran the criminal history or anything like that. When you first arrived, did you think he had done anything that — where he should be detained or arrested?

A No. I only had the information on the shooting, but we didn’t know at that point in time what actually had happened.

Q Okay. So if Mr. Massey would have asked you when you arrived at 4:18, told you, “I’m getting out of here,” would you have let him go?

A At that point, yes.

Q Okay. Now, after you learned that he had been in possession of a weapon and he had a felony conviction, did your position change on whether or not you would let him go if he would have asked?

A Yes, it changed based on the information I had and his record and him being in possession. It had changed, that he would have been asked to stay.

Now, wouldn’t the Cameron County Sheriff’s Deputy know that after 5 years, Massey could have a firearm? It is suggested, in other testimony, that he knew. In response to Sorola’s questioning:

Q If I have a felony conviction on my record, is it against the law for me to have a firearm?

A It depends if it’s within five years, sir, or not. That’s something that we would have to further — be further looked into.

So, can there be any doubt, even with the hedging, that Valerio knows what Texas law says.

A Prior to his arrival there.

Q Okay. Now, Mr. Massey had a weapon and a felony prior, but is that why you were out there in the Sabal Palms area, to investigation Mr. Massey?

A No. We were out there for the shooting itself.

Q Okay. And what kind of investigation was conducted by the Sheriff’s Department in connection with the shooting?

A The investigation was at the — who — how it happened, who was the one carrying the weapons also, and who was the one that did the shooting, which was Border Patrol involvement.

Then, we have this:

Q All right. Now, did you speak with — towards the end of the shooting investigation, did you speak with your supervisor to determine whether or not you should return the weapons to Mr. Massey, Foerster and Varner or maintain custody of them?

A That’s correct. I spoke to Lieutenant Diaz. And based on the field investigation, he advised that we were going to collect the weapons. We were going to take custody of them for further investigation.

Q Okay. And was that because of the felony convictions?

A Correct. That’s correct.

Then, Mr. Sorola asks:

Q Sergeant, did you ever get a warrant to take possession of the firearms?

A No, I did not.

Q When you arrived at 4:18, was there any emergency? Was the shooting over?

A That’s correct, yes.

Q Well, when you arrived, the firearms were actually in the possession of Border Patrol, right?

A That’s correct.

Q And when you arrived at 4:18, as far as you’re concerned, Mr. Massey was free to leave?

A That’s correct.

Q Do you know if he was under orders from any other law enforcement not to leave?

A No, I did not. I had no knowledge of that.

Q You don’t know?

A I don’t.

Q But at this time, you have his identification card.

A That’s correct.

Q And you have Mr. Varner’s identification card.

A Uh-huh. Yes.

Q Did you give them back to them?

A After I — after I did the inquiry, yes.

So, there was no justification for the Deputy to retain, or take custody of the firearms — even Foerster’s, as it was clear there was no criminal act on their part. And, they were free to go, if they left their ID with the Deputy.

Next on the stand, David Daniel Cordova, FBI Special Agent, being questioned by Hagen, and who testified that he arrived on the scene at about 6:00 PM, fully two hours after BPS had determined that Gonzales was the only shooter.

Q Okay. Why did you interview Mr. Massey?

A Mr. Massey? At the time it was my understanding that he was a witness to a shooting. A Border Patrol agent had discharged a firearm, and so I needed to obtain the details of what happened.

Q Okay. At that time — did you state earlier that you were investigating a possible assault on a federal agent?

A That’s correct.

Q And were you also investigating a possible assault by a federal agent?

A That is correct.

I suppose that there is a reason that he wanted to investigate the possibility that there was an assault on a federal officer. But, based upon what we know, is it at all possible that the known information wasn’t provided Cordova? If not, why wasn’t he informed what had already been provided by the participants in the shooting event.

Regarding the investigation as to whether there was an assault by a federal agent, we have heard nothing as to the results of that investigation, if it was every completed. Since Gonzales has not been charged with anything,, we must assume that the focus was on Massey, not on the shooter, Gonzales.

Just trying to understand how the investigators and government look at this, I suppose that we could compare it to you being two blocks away from a bank robbery, though you heard shots fired. The government then holds you as a witness, detaining you until they have fully satisfied themselves that, based up the eye witnesses to the account, and extensive, intrusive interviews, they determine that you are now, finally, free to go — subject to subsequent arrest because they have to check with their bosses to see how to charge you with a crime that you didn’t commit –under state law.

Another side note, in answer to another question, Cordova says, about Massey, “I ended up interviewing him along with an HSI agent.” HSI is Homeland Security Investigations, part of US Immigration and Customs Enforcement.

Later on:

Q Do you know if any of the other FBI agents, your supervisor or anybody took any?

A One of our TFOs I believe took some photos.

THE COURT: What’s a TFO?

THE WITNESS: Task force officer.

So, why is a Task Force Officer present during the investigation? The only task force that I can find reference to that might want to be involved is the Domestic Terror Task Force (DTTF).

However, back to whether, or not, Massey was detained, we have the Hagen discussion with the judge:

HAGEN: No. I mean, my understanding, the motion to suppress is that the stop was illegal and that the arrest warrant was based on that, which, you know, my argument would be if Your Honor doesn’t like the stop, there’s certainly a good faith exception that would apply to the arrest and the search warrant wherein ATF agents were not present on the 29th relied on.

THE COURT: What are you referring to as “the stop“?

HAGEN: The August 29th encounter.

So, Hagen has to set the distinction that it was a stop, not a detention. You have read the testimony, and it appears quite clear that Hagen is grasping at straws. However, there is more coming in the next “Scene”.

 

Government was intended to govern the government,

not to govern the people.

 

 

Camp Lone Star – Act Two: The Contradictions
Scene 1: Pointing Weapons, or Not Pointing Weapons?

 Gary Hunt
Outpost of Freedom
April 11, 2015

In previous articles, we have discussed the Criminal Complaint, Arrest Warrant, and Search Warrant. In each of those documents, we have a set paragraph, to wit:

On August 29, 2014, United States Border Patrol Agents from the Fort Brown Border Patrol Station, while in performance of their official duties, encountered an armed individual, identified as John Frederick FOERSTER, in the brush. During this encounter, FOERSTER turned and pointed a firearm at a USBP Agent, who intern [sic] fired several shots at FOERSTER. FOERSTER is a member of “Rusty’s Rangers,” an armed citizen militia group patrolling the border of the United States and Mexico.

In each document bears the signature of “Anthony M. Rotunno, Special Agent ATF”. Below that, it states that it was “Sworn to before me and signed in my presence”, that being signed by “United States Magistrate Judge Ronald G. Morgan”. So, we have Rotunno swearing before Morgan that everything he has said is true. So, let’s see what the story is, now.

Hagen, the Prosecuting Attorney, in giving his response to Sorola’s motion, says:

[T]he way this all came about is there was one agent that was in heavy brush, and he was in hot pursuit of aliens. When he came through a clearing, he encountered John Foerster… Mr. Foerster had a weapon. It was an AK47 type pistol. And when the Border Patrol — and this is probably disputed. I don’t think that Mr. Foerster ever aimed or was planning on shooting the Border Patrol agent. But when the Border Patrol agent came through the brush, Foerster turned in his direction, and he was perceived as a threat by the Border Patrol agent who fired several shots at Mr. Foerster, thankfully missing.

The first witness was Danny Cantu, U. S. Border Patrol. Hagen is questioning him.

Q Okay. Now, at this point in time, did you know whether or not Border Patrol Agent [Marco] Gonzalez had been threatened or whether or not perhaps Border Patrol Agent Gonzalez had irresponsibly fired upon Foerster? Did you know?

A From what I had gathered, he had fired in — from what Mr. Gonzalez told me. Again, this was preliminary. I was trying to — I had to speak with everyone to figure out kind of what was actually happening, so I wasn’t sure at that point.

Well, Gonzales, the only witness to the shooting besides Foerster, made no claim that begins to suggest that the weapon was pointed at Gonzales.

In Hagen’s initial statements, he said, “I believe [Massey] made one res gestae statement in connection with the arrest when he was told that they were going to do a search warrant, and that statement was, ‘There’s another gun in the hotel room, but it’s not mine.'” So, he ‘believes’, based upon something that he didn’t articulate, he makes a claim without foundation, setting the stage for the entire government performance. Perhaps it was Divine Inspiration.

Now, res gestae is a legal term which provides an exception to the prohibition of hearsay, and is met when somebody makes a spontaneous statement, closely connected to an event, before the mind has an opportunity to conjure a falsehood. Hagen perhaps, attempted to lay a foundation that Massey “volunteered” the information about a firearm in the motel room. Perhaps the same applies to the initial interview with Gonzales and the failure to report any instance where Foerster “turned and pointed a firearm at a USBP Agent.”

It also begs the question, why did Cantu state that he had to “speak with everyone”, when the sole shooter had already said that he was the sole shooter?

In cross-examination, Mr. Sorola is questioning Cantu:

Q To your knowledge, at any time were any of those weapons [that were taken from the Camp Lone Star volunteers] fired at this shooting?

A The Winchester (Varner’s] was not, as he was speaking with me when the shots were fired.

Q So at the time of this shooting, do you know who’s discharging what weapons?

A No.

Q Okay. Later on do you find out… who is firing a weapon, a firearm?

A Upon approaching… Foerster and Mr. Gonzalez area, yes.

Q And Agent Gonzalez is the only one that discharged a weapon; is that correct?

A At that point, that’s what I was told, yes.

Q And you were told that by Agent Gonzalez, right?

A Correct. And Mr. Foerster attested to that.

THE COURT: And you said at that time. I mean, nothing subsequent to that time has changed… ?

THE WITNESS: No, sir, no. It’s just that —

THE COURT: So as far as you know sitting here today, the only weapon that was shot was — the only weapon discharged was discharged by Agent Gonzalez.

THE WITNESS: Correct.

So, Cantu knew, the moment that he was able to speak with Gonzales, that no other weapon was fired, except Gonzales’. And, he makes no mention of any pointing or aiming by Foerster.

From that point on, there is no further discussion of pointing because the shooter, Marco Gonzales, after making initial statement, lawyered up, and Foerster has also refused to talk.

Q Okay. Was he [Agent Marco Gonzales, the shooter] going to visit with anybody? Was he going to talk about what happened?

A No. They — we were informed that he was not going to provide a statement out there.

Q All right. And who gave you that information?

A Let me see. Mr. Gerardo Reyes “Rey” Gonzalez.

Q Okay.

A He was the one who informed me that Agent Gonzalez was not going to provide a statement. He was the union leader.

So, though the agents are employees of the Border Patrol, and I’m sure that they are required, as a part of their duties, to file reports on any incidents, especially an officer involved shooting, and the union can “void” that obligation. It kinda makes you wonder who runs BPS — the government, or the union.

Now, since Gonzales has hidden behind the law and his union, it would appear that he has something to hide. Though we have not heard Foerster’s side of the story, he has not been charged with any criminal activity related to the shooting event, only that he was charged, like Massey, with felony possession of a firearm, and has plead guilty to that charge.

Massey is also charged with felony in possession of a firearm and has, rightfully, plead not guilty. He was not apprehended in the commission of a crime, nor did he have any knowledge of any crime, except what he heard during the course of the investigation. He was not even a witness to the crime of the discharge of a firearm by an agent of the government.

So, let’s try to be objective as we look at this “scene”. We have an affidavit, sworn to by Rotunno, in front of a judge. His claims of the weapon being pointed at the Agent flies in the face of what Gonzales and Foerster told the other investigators. Even the prosecuting attorney, Mr. Hagen, says that he doubts that a firearm was pointed at the agent. That was a bald-faced lie on the part of Rotunno, and he was never even at the scene of the shooting. That smells, very strongly, of Perjury.

However, if you lie to a government agent during the course of an investigation, you are subject to 18 US Code § 1001, and subject to 5 years in prison.

Then, we have the only one that committed a possible criminal act who only made some statements to others, before the union got him to lawyer-up.

However, who is the government going after? K. C. Massey, neither Gonzales for shooting at Foerster nor Rotunno for lying in a sworn statement.

It appears that we have returned to that era in history where “The King can do no wrong”. And, the King includes his, not our, public servants.

Government should not be theoretically defensible,

it should be the object of general acceptance.

Camp Lone Star – Act One: The Government Charade

Gary Hunt
Outpost of Freedom
March 31, 2015

Yesterday, when Massey arrived at the courthouse, there were about twenty agents in battle gear and a number of DHS Suburbans parked in front of the courthouse. After going in to the courthouse, he had to visit the Pre-Trial Services. There, he was approached by two agents who wanted to see his sunglasses. They inspected them, thoroughly, and then returned them to Massey. I suppose this is the future — what we can expect because of Google-Glasses. However, finding that they were not dangerous, they were returned to their owner.

At 1:30, he arrived at the hearing. Massey’s attorney, Louis Sorola, read his motion to Suppress Evidence and the Motion to Dismiss. The US Attorney, Hagen, then presented oral arguments against the two motions. Apparently, as we will see later, Hagen failed to address all of the pertinent parts of the motions.

Then, BPS agent Cantu testified. Now, Cantu was there shortly after the shooting took place. There were only two witnesses to the shooting, John (Jesus) Foerster and BPS agent Gonzales. Foerster has pled guilty to the charge of felony possession, though he has yet to be sentenced. Perhaps he is in acting school, being prompted on what his testimony will be if Massey ever goes to trial.

Gonzales has been conspicuously absent, throughout this whole ordeal. However, he is the only one on the government side that was witness to the shooting. However, this cannot be a bar to introducing testimony as to what happened that afternoon, so Cantu testified as if he were present and observed the shooting. I think that is most often referred to as hearsay evidence, and if someone not on the government side presented it, would probably not be allowed. However, Cantu asserts that the weapon was pointed at the agent before he fired at Foerster. Foerster placed, or dropped, his weapon to the ground. Cantu testified than when he arrived, Foerster was holding his weapon and Cantu then took the weapon from him.

So, let’s see, according to the government line, Foerster pointed the weapon toward Gonzales, Gonzales fired, from about thirty feet away, five shoots, all of them missing Forester. Foerster places the gun on the ground, and because of the sound of the shooting, people begin to gather. Cantu arrives and Foerster is holding his weapon — wait, you mean Gonzales, after a shooting incident, let Foerster pick up his loaded weapon? This is almost unbelievable — that Foerster was allowed to carry the weapon until Cantu arrived to join him and Gonzales. Gee, in movies, and even on Cop Block, they always kick the weapon away from the bad guy, even when he is dead.

Okay, on to the next fantasy. As was reported previously (Camp Lone Star – More like Wonderland), they have claimed that Massey was not detained, since if he was detained, they would have to read him his Miranda Rights. So, Cantu takes Massey’s driver’s license, which will not be returned until the end of the investigation by even more government agents, hours later. Cantu also stated that if Massey tried to leave, he would have “cuffed” him and put him in the back of his vehicle. But, remember, now Massey was not detained (he just wasn’t allowed to leave).

Next witness is Sheriff’s Deputy Valerio. He testified that Massey’s driver’s license was handed to him when he arrived. He said that Massey was “free to go”, though he never gave Massey his driver’s license. Massey doesn’t recall anybody, at any time, telling him that he was free to go until the ordeal was over.

Final witness, FBI Special Agent Cordoba. He admits that there was a criminal investigation going on. However, the criminal, if there was one, would only be the person that shot at another person. It is difficult to believe that the criminal is the person that was shot at, and the investigation was directed at Massey and Foerster instead of Gonzales.

Cantu was reading from a notepad, which was not provided through discovery, nor was Massey’s attorney even aware of its existence. Surely agent Gonzales had to prepare a written report, so, that, too, will be made available. And, finally, we may get to see the weapons audit and chain of evidence on the only gun fired that day.

All three witnesses testified that Massey was on private property, which would make possession of a weapon legal under Texas law. So, here we have that conflict that was addressed in Camp Lone Star – Massey & The Clash of Laws.

At the close of the hearing, Hanen gave the government the opportunity to file an additional response, since they failed to address some portions of the motions. I suppose that it will also give them some time to ‘imagineer” (that’s a Disney term for those who make up stories) some effort to cover up what has been uncovered, though I doubt that they are able to undo the damage they have already done to their case. The government has until April 10 to file their amendment/response. The Sorola has until the 17th to respond to the government’s feeble effort to try to make their story believable.

An observation: Judge Hanen is being extremely lenient with the government in allowing them to try to get their story straight. However, with the discrepancies so far, it is nearly inconceivable that they can extricate their falsehoods and come up with a cohesive story supported by the evidence — some yet to be seen by the Accused and his attorney. Perhaps the Judge will find that even the lower levels of government are as prone to lying as those in the high chairs of the Administration.

Shortly after I posted Camp Lone Star – More like Wonderland, K. C. Massey provided me with his analysis of the Response by the government to his motions for suppressing evidence and dismissal. I have made minor edits for clarification. Otherwise, these are Massey’s own evaluation of the Response.

In all fairness, if anybody from the government side wants to rebut, or refute, either Massey’s or my post, I will be happy to accommodate them.

Massey says:

* * * * * * * * * * * * *

BP agent, Marcos Gonzales, was pursuing a group of illegal aliens when he encountered an armed Foerster in heavy brush. BP agent Gonzales perceived Foerster as an armed and immediate threat when Forester pointed the weapon he was carrying at Gonzales who was emerging from the brush. Gonzales fired four or five shots which did not strike Foerster. Foerster was armed with 7.62X39mm pistol which contained a vertical fore grip and was slung around his neck. The shots were fired at approximately 3:45 P.M.

This is UNTRUE. We had been to only 3 crossing sites when we encountered the dismounted BP approximating the time to be no later than 3:00p approx 15 minutes into the assistance of the BP the shots rang out. Making the shooting closer to 3:15. The firearms audit investigation did not determine whether it was 4 or 5 shots. The original reports as issued by Border Patrol information officer Zamora to the press August 29th NEVER stated Foerster “Pointed” his weapon at the Agent, only he turned with it in his hands. How do you “Sling” a pistol around your neck? What is the point of mentioning what Foerster did or possessed have to do with me who was not at the scene? I also posted my account of the incident at https://www.facebook.com/kevin.kc.massey/posts/839070526105377 on Aug 30, 2014. That is my recount of the story, written just after it happened.

Senior Border Patrol agent Danny Cantu was nearby, heard the shots and secured the scene for investigation by Federal and/or State law enforcement. Cantu was not certain if the shooting was on State or Federal land and contacted the Federal Bureau of Investigations and the Cameron County Sheriff’s Office. Cantu requested Foerster to accompany him away from the river bank to an open area, “staging area”, approximately 100 yard away.

The staging area was over 200 yards away, and we were asked to move there due to illegals still in the area moving toward our position. He commanded myself and Varner to go to the staging area. Foerster rode on the mule to the interview site with us! We were told since it was private property the Sheriff had to be notified to investigate. Cantu KNEW we were on private property, they called the Game Warden to determine if we had trespassed on federal land prior to the shooting is what the Game Warden stated to me, which he was able to confirm we had not. They said the federal Agents had to investigate since it was a shooting by a federal agent. The picture, below, has the approximate locations of the shooting and interview area, on the right side.

Foerster was angry and wanted to fight BP agent Gonzales. Defendant, Massey, wanted to leave the area.

Foerster was angry because he was just shot AT by a BP Agent after we had been asked to assist the dismounted BP agent and the shooting was unprovoked. I NEVER asked to leave the area, that was the decision of Cantu!!! He said since there were still illegals in the area we needed to move locations. We stated we did not want to “press charges” for the shooting by BP, but BP said they had to conduct an investigation since a federal agent had discharged his firearm.

Cantu told Massey all members of his group must remain until shooting was investigated. Cantu requested that all members of Rusty’s Rangers disarm while the investigation was conducted.

This is another LIE Cantu NEVER requested we “disarm” We voluntarily decided to leave weapons on the mule after we moved to the staging area.

Massey turned over a handgun and rifle which was secured in a Border Patrol vehicle during the investigation. Foerster relinquished the pistol he was carrying and the third member of Rusty’s Rangers relinquished a pistol and a rifle. The weapons were all secured in a Border Patrol vehicle.

Cantu TOOK Foerster’s gun after Gonzalez shot at him which Foerster had laid on the ground. My and Varner’s weapons were left on the mule. It was articulated to us “For officer safety” and due to “Illegals in the area” BP wanted to remove our weapons from the mule along with my GoPro Camera and other personal equipment and “secure” them in the BP vehicle for our “safety”.

During the investigation criminal histories were requested that indicated that Massey and Forester had felony convictions. The pistol carried by Forester was believed to be a prohibited weapon due to the addition of the fore grip. CCSO officials decided to keep possession of the weapons pending further investigation.

The sheriff’s office DID NOT articulate any cause or reason for taking and keeping our arms, even after protest by myself and Varner. We were never given a receipt for the Arms or other equipment they took from the mule. The sheriff took possession of the Arms only 15 minutes or so before we were released from detention.

Massey and Forester were allowed to leave the scene and all officials departed by 7:00 PM.

Again another LIE, we were released from detention at approx 8:15 pm. We were detain nearly 5 hours and were not free to go.

Massey was not provided Miranda warnings during the investigation. Massey was never handcuffed and cooperated in surrendering his weapons and providing statements.

Only after BP and FBI, and HSI and CC Sheriff insisted we make statements even after we stated we (Varner and myself) were NOT witnesses to the shooting and had NO pertinent information. We gave statements under protest. We did not “surrender” the Arms, they insisted for officer safety that they be secured in the BP vehicle.

It was reasonable for BPA Cantu to disarm Massey and tell him he could not leave the area where the shooting occurred. Police are allowed to stop and briefly detain persons for…

“Briefly” is defined as 5 hours?

investigative purposes if the police have a reasonable suspicion supported by articulable facts that criminal activity may be afoot.

We were never informed. “We”, Foerster, Varner or myself, were not under any investigation for ANY crimes. The only criminal activity was the unprovoked shooting at a civilian, that were there at the request and in assistance of the BP.

Texas Penal Code Section 46.02 Unlawfully Carrying Weapons (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his 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  

The property was under our control by permission of the conservator for patrol and illegal immigrant deterrence and for cleaning, marking and clearing of illegal crossings. We had permission for 24 hour access to the property in which we routinely camped out on the border.

The CCSO was informed by Border Patrol agents about the shooting and the seizure of weapons. CCSO deputies made the decision to maintain custody of the weapons after it was revealed that Massey had provided Forester a weapon and that Massey and Forester both had criminal histories that included felony convictions.

We were told the weapons were being held for investigation pertaining to the BP shooting, not for any criminal causes relating to us. They confiscated Varner’s weapons and did not return his although he was NOT a felon. The above statement says the weapons were seized, yet earlier statement says they were voluntarily surrendered. Which is it? They had the Arms in the BP vehicle PRIOR to knowing any prior history of Foerster or me.

Statements obtained from Massey were not the product of custodial interrogation. Massey was never handcuffed, placed in a police vehicle or moved away from the staging area.

I was held under protest due to investigation of BP Gonzales illegal discharge of his firearm at Foerster for approx 5 hours. I was in custodial arrest/detention, I was not free to go despite several requests to leave due to my NON involvement and lack of knowledge in the shooting incident and me NOT witnessing anything since I was in a covered position on the river bank at the time of the shooting. Varner and I were over 75 yards away from the shooting through a lot of heavy brush.

Massey was interviewed by an FBI agent for approximately 35-40 minutes. Massy was not arrested and was allowed to leave the area as soon as questioning concluded.

I was questioned by Border Patrol, FBI and Homeland Security and the Sheriff’s office. Questioning lasted approx 30 minutes by each agency. We were not free to go until over an hour after the last “Interview” after approx 5 hours of forced detention.

The questioning took place on the side of a dirt road. Massey was cooperative during questioning and agreed to answer most of the questions asked of him. Massey did not want to provide his social security number and the FBI agent agreed he did not have to provide the number.

Massy and the FBI agent were cordial to one another with Massy indicating he appreciated the need to ask questions because he knew law enforcement officers.

What is the point of the above statement? Notice the misspellings? Why the reference to my social number? If they read the investigation report enough to see I didn’t give up my social security number, what couldn’t they determine the other facts of the case like the firearms audit of the BP agent to determine how many shots were fired?

Massey was not the focal point of the investigation;

Previously they said I was the focal point of an investigation of felon in possession of a firearm in violation of Texas law. Why were the federal agents detaining me for a possible state law violation?

agents were primarily concerned with circumstances surrounding the shooting between Forester and BPA Gonzales. Custody for Miranda purposes requires a greater restraint on freedom than seizure under the fourth amendment. United States v. Cavazos, 668 F.3d 190,193 (5th Cir. 2012). “A suspect is … ‘in custody’ for Miranda purposes when placed under formal arrest or when a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest. United States v. Begivanga, 845 F.2d 593, 596 (5th Cir. 1988).

Again notice the inconsistency of their statement “agents were primarily concerned with Foerster” Yet they took the arms from myself and Varner who were not involved in the shooting in any way, as defined by Blacks Law 8th – Physical Custody; Custody of a person whose freedom is directly controlled or limited. Detention; The act or fact of holding a person in custody; Confinement or compulsory delay. Investigative detention; the holding of a suspect without a formal arrest during the investigation of the suspects participation in a crime. Detention of this kind is constitutional only if probable cause exists. Arrest; 2.The taking or keeping of a person in custody by legal authority. The term “formal arrest” is not defined.

In the instant case Massey was told, By BPA Cantu, to remain in the staging area while the shooting was investigated. Massey was allowed to leave after he was questioned. Massey was never in custody.

I was held against my will and under protest for approx 5 hours. I was not “allowed to leave after questioning” for almost an hour after the last of 4 interviews. I was in custody under arrest although not under restraints. I asked if we were free to go several times, prior to and after each interview. I was held in a “custodial arrest” and I was not free to leave. I was in custody (physical custody) as defined by Blacks Law.

 

Camp Lone Star – More like Wonderland

Gary Hunt
Outpost of Freedom
March 21, 2015

 

In Camp Lone Star – “Fruit of the Poisonous Tree” and Camp Lone Star – “a Fundamental Right”, I discussed the motions filed by K. C. Massey’s attorney, Louis Sorola, the former being a motion to suppress evidence and the latter a motion to dismiss the charges. The government, surprisingly, managed to respond to those motions within the statutory time (20 days), when they filed the

GOVERNMENT’S RESPONSE TO MOTION TO SUPPRESS AND
MOTION TO DISMISS INDICTMNT [sic]

That is not an error on my part. The word “Indictment” is spelled, on the title of the document, as “Indictmnt”. Pretty good start for someone who receives over $100,000 per year plus amazing benefits from your hard earned money. You would think that they have spell-check on their computers, and that they would, to avoid error, have someone proofread what they write. But, heck, I guess that any form of diligence, whether as to grammar or truth, is not within their scope of responsibility.

Back on October 20, 2014, agents of the FBI and the BATF went to a home in Quinlan, Texas, to search for weapons (See Camp Lone Star – The Arrest of K. C. Massey). Any authority to search this house would be based upon the assumption that it was where Massey lived — his residence. Based upon the “Conditions of Release” (See Camp Lone Star – Cruel and Unusual Punishments – Before Conviction), they also presumed that Massey lived in the Quinlan house as that is where his “Home Detention” requires him to be. The Response does point out that Massey “left his home and traveled to Cameron County, Texas during the summer of 2014“, confirming that Quinlan was his home, but that he had moved for an extended period of time, over the summer.

Subsequently, they had a search warrant issued to search the premises at the Value Inn motel in Brownsville, and at the time of the search, arrested Massey. So, it appears that they then presumed that he lived at the Value Inn. The question, however, is where did Massey live, during that summer. Well, he lived on the “Rusty” Monsees property, at Camp Lone Star, with the consent of the owner. The purpose was to protect the property and to assist Border Patrol in discouraging entry into the United States, or, if they did enter Monsees’ land, to turn them over to BPS. The room at Value Inn was arranged to provide a place to clean up, due to the limited facilities at Camp Lone Star, and allow others, as well as Massey, to get a good night’s sleep on a soft bed, from time to time. So, his primary residence was actually Camp Lone Star. This can be equated with a businessman who has a home in New Jersey and works in New York. He may have a room in New York that he uses five days a week, and then stays at his home on the weekends. Are they not both his residence? Or, is there a law that prohibits only the wealthy (the Clintons come to mind) to have more than one residence?

Let’s add another factor before we proceed. A Mr. Aguilar, curator of the Sabal Palms wildlife sanctuary, granted permission to include the sanctuary in the area to be protected from illegal entry by illegal immigrants (See Massey’s account of incident). This would put that sanctuary, along with the Monsees property, under Massey’s “control”, at least with regard to deterring entry on the property of trespassers.

Now, you may be wondering why I brought that up. Well, I brought that up because I am wondering why the government, in their Response, chose to bring up a law that was not within their jurisdiction. On pages 4-5 of the Response, they cite Texas Penal Code Sections 46.02 and 46.04. It seems that they want to use Texas law to justify their action under federal law, but Massey is not charged with violating Texas law.

Texas Penal Code Section 46.02 Unlawfully Carrying Weapons
(a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his 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

Texas Penal Code Section 46.04 Unlawful Possession of Firearm
(a) A person who has been convicted of a felony commits an offense if he possess a firearm:
(1) After conviction and before the fifth anniversary of the persons 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
(2) After the period described by Subdivision (1), at any location other than the premises at which the person lives.

The justification is based upon the fact that a Cameron County Sheriff’s Deputy was on the scene shortly after the shooting incident, however, the Sheriff didn’t charge Massey with a violation of Texas law, so that whole subject is moot.

The shooting incident warrants our attention. The only shooting done that day was by BPS officer Gonzales who shot at John Foerster. From the Response, “Senior Border Patrol agent [sic] Danny Cantu was nearby, heard the shots, and secured the scene for investigation“… “Cantu told Massey all members of his group must remain until shooting is investigated” (page 2). So, if you have an armed officer telling you that you “must remain”, the question arises, were you detained? Or, were you free to go?

I asked Massey whether he was free to go and he explained that within the first few minutes of the “investigation”, he asked, since he and the third member of the party, could leave, they were told “no”. He explained that he asked, a number of times, that he asked in one form or another whether they could leave, and were consistently told that they could not leave.

At page 3 of the Response, “It was reasonable for BPA Cantu to disarm Massey and tell him he could not leave the area where the shooting occurred.” Well, this might be “reasonable” if Massey were a witness to the shooting, however, he did nothing more than hear the shots fired. So, he couldn’t be “detained” as a witness, as he witnessed nothing. The only two people that witnessed anything were Foerster and Gonzales. If you heard shots from a bank robbery, two blocks away, would they; could they detain you as a witness or participant?

On page 4 of the Response, “Police are allowed to stop and briefly detain persons for investigative purposes if the police have a reasonable suspicion supported by articulable facts that criminal activity may be afoot” (pages 3-4). Where does the reasonable suspicion come in when Foerster never fired a shot and Massey and the third party did nothing more than hear the gunshots? What “criminal activity [might] be afoot”? Perhaps the BPS officer, Gonzales, fired his gun outside of the BPS policy for use of firearms, but is there any other possible “crime afoot” that would justify such action? So, it would appear that their argument would only apply to Gonzales, not anyone else — Sort of government doublethink or some other screwy effort at justification of something that is unjustifiable.

Also on page 4, we find, “If an officer develops—–and is able to articulate—–reasonable grounds to believe that a suspect is armed and presently dangerous to the officer, third parties, or himself, the officer may take swift measures to discover the true facts and neutralize the threat of harm if it materialized.” So, did Gonzales or Cantu have any reason to make any person other than Gonzales a “suspect”? Was there anything in the cooperation of the three that lead them to believe that any of the three were “presently dangerous to the officer, third parties, or himself”? And, if those conditions were met, to “take swift measures to discover the true facts and neutralize the threat of harm if it materialized”, would be what was required. However, by the times provided, and the absence of any apparent threat, we find that they were detained from 3:45 to 7:00. However, that final item not being, in the least, justified, how can anyone perceive 3 hours and 15 minutes in which you are not allowed to leave, anything other than being detained, without Miranda warning?

We cannot stop here, however. The guns were taken from the Massey side, I suppose as “evidence” of some sort, however, the pistol that did the shooting was not taken, as evidence, nor even inventoried or audited. It seems that five shots were heard but that only four shell casing were found. Hence, the Response, as previous documents provide, the uncertain “four or five shots”. What kind of incompetence on the part of government is this? They don’t know how many bullets were loaded in the pistol, or they never did any investigation of the shooting weapon. However, they saw fit to seize weapons that were not involved in the incident.

From page 3 of the Response, we find some very cheap rationalization with, “Massy [sic] was not provided Miranda warnings during the investigation“, and “Massey was never handcuffed…” Golly, gee, he was detained, but since he wasn’t handcuffed, he doesn’t qualify for a Miranda warning, only they use what he said, and what he may have possessed, against him. This, because he “cooperated in surrendering his weapons and providing statements.” Darn, isn’t that the whole idea behind the Miranda warning? They didn’t Mariandize him, they didn’t let him leave, they were armed, and they asked him questions and then took the firearms. Actually, the government said, “surrendered”. Surrendering is capitulating — giving into force or threat of force. However, the government argues that the “evidence” that lead to a subsequent Indictment was obtained, was given freely — perhaps Massey wanted to be charged with a crime. We will just discount the facts and draw some conclusions about around that “Fruit of the Poisonous Tree”.

Has the federal government run amuck? Do they lie to rationalize achieving their objective — by whatever means necessary? Is their sole objective to prove that the government can do no wrong? I leave the conclusion to the reader.

Camp Lone Star – “a Fundamental Right”

Gary Hunt
Outpost of Freedom
February 21, 2015

 

It is normal, in any criminal proceeding, for the Defense Attorney to file a Motion to Dismiss. Most often, these are simple appeals about nothing of significance, though they do add chargeable hours.

In K. C. Massey’s case, however, we find a “Motion to Dismiss Indictment“, with merit. Perhaps not in a legal sense, but in a truly lawful sense – The difference that is anything can be enacted (legal), though unless it is firmly based upon the powers and authorities granted in the Constitution, it may be unlawful.

Constitutionality

Massey’s attorney, Louis S. Sorola, begins by explaining the Texas law (Texas Penal Code, §46.04) which allows Massey to possess a firearm, for his own protection. This and other aspects that will be addressed here are dealt with in detail at Liberty or Laws? “Felon in Possession of a Firearm” is Not Legal or Lawful.

He supports this by reference to, “the right of the people to keep and bear Arms, shall not be infringed”, in reference to the 2008 Supreme Court ruling in “District of Columbia v. Heller” (554 US 570), where the Court held that the Second Amendment gives individuals the right to keep firearms at their homes for their self-protection. This decision is consistent with the Texas law that allows such possession five years after completion of a sentence as a result of a felony. However, the federal statute that Massey is charged with presumes a lifetime prohibition, if incorrectly interpreted (see Commerce Clause, below).

He further argues that the term “people”, as used in the Second Amendment is also used in the 1st, 4th, and 9th Amendments, and in none of those is there an exception that would allow rights to be taken away. The only notable legal exception is in the Supreme Court decision found in “Sampson v. California” (547 US 843), which allows a different criteria if one is a prisoner or a parolee. It does not extend beyond that period of time when the person is in custody, or is under conditions of parole, in which he can be searched outside of constitutional constraints.

Commerce Clause

The question as to what extent the Commerce Clause (Article I, §8, cl. 3, Constitution) grants authority to the federal government is raised. Heller addressed the Second Amendment, but did not address the Commerce Clause, however another decision, “United Sates v. Lopez” (514 US 549) addressed the Commerce Clause, but did not address the Second Amendment. In Lopez, the extent of the Commerce Clause did not grant blanket jurisdiction, which resulted in the overturning of the federal Gun-Free School Zone law. If the ruling in Lopez was applied to Massey’s case, it would necessarily require a “substantial effect on Interstate Commerce.

As Sorola argues, “[t]he interstate commerce began and ended with the Federal Firearm License dealers involved. After the importation into Texas the guns are under Texas jurisdiction. Thus the laws of Texas apply, not the federal government.”

Equal Protection Clause

What is meant by Equal Protection was best defined by the Supreme Court in their ruling in “Yick Wo v. Hopkins” (118 US 356 – 1886):

[E]qual protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights;… that no impediment should be interposed to the pursuits of any one, except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition; and that, in the administration of criminal justice, no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses.

Now, it must be understood that the Equal Protection requirement is federal, not to be confused with state laws. Otherwise, all state laws would be equal, but, they are not — they are enacted in accordance with the State’s constitution. (See Which Constitution Am I Protected By?) Where it does apply is in the application of federal laws, as described in Yick Wo.

If different states have different laws as to what a felony is and how much time is served, is it equal protection if one state might consider it third degree and have a light sentence while another state might hold a higher penalty and mandatory 1 year (federal criteria) in prison? The federal government has not even attempted to establish a uniform criteria for the applicability of 18 USC §922(g)(1) – the charge against Massey). This lends support to the Commerce Clause limitation, above, where the law would only apply to Interstate Commerce, not to the right of the people, in general.

In a Circuit Court decision, the court decided that, in enacting the statute, “Congress superimposed a patchwork of state law over a broad piece of federal legislation in a manner bound to produce anomalous results.” (McGrath v. United States, 60 F.3d 1005)

Perhaps what is most important about this Motion to Dismiss is the fact that it is, without a doubt, a challenge to federal jurisdiction, a preservation of State’s Rights, and the rights of the People.

Camp Lone Star – “Fruit of the Poisonous Tree”

Gary Hunt
Outpost of Freedom
February 19, 2015

 

We are all familiar, at least to some degree, with the concept of chain of evidence, Miranda rights, and the 4th and 5th Amendments to the Constitution.

Evidence has to be acquired by legal means. A warrant is required, except under certain circumstances, to seize evidence. So, what happens if there is an incident, whether accidental, or, perhaps, even set up, to create a situation where, by stealthy means, “evidence” is secured without a warrant, or a crime (certain circumstances) in which the evidence can be rightfully secured?

On August 29, 2014, a Border Patrol Agent, claiming that a weapon had been pointed at him, fired five shots, from about 30 feet distant from John Foerster. Surprisingly, he missed hitting Foerster, indicating both poor marksmanship, and suggesting that the agent committed a crime, in violation of BPS policy.

Foerster, Massey, and the third member of their group, Varner, had their five firearms taken from their 4-wheel “mule”, without a warrant – a violation of the 4th Amendment. Then, without being read their Miranda rights, questioned by BPS, a local Sheriff’s deputy, and an FBI agent.

From the Affidavit for a Search Warrant, item 5.

1. During a post-shooting investigation, two of these armed individuals were identified as Kevin Lyndel MASSEY (aka KC Massey) and John Frederick FOERSTER, and both admitted to interviewing officers of the Cameron County Sheriffs Office (CCSO) and Special Agents of the Federal Bureau of Investigations (FBI) to possessing some of the firearms seized.

From the Affidavit for a Criminal Complaint (arrest warrant):

5. FBI Special Agent Caryn Chasteen and Cameron County Sheriffs Office Investigator Padilla interviewed FOERSTER. During the interview FOERSTER admitted to possessing the ZASTAVA, Model: PAP M92PV, 7.62 x 39mm pistol, SN: MP2PV005143; adding that he did not own this firearm but borrowed it from Kevin MASSEY.
6. During the interview of MASSEY, by FBI Special Agent David Cordoba and HSI Special Agent Jeremy Bergeaux, MASSEY admitted to both the ownership of the ZASTAVA, Model: PAP M92PV, 7.62 x 39mm pistol, SN: MP2PV005143, and to lending this firearm to FOERSTER.

Now, in reviewing those documents, we find no claim that there was a search warrant to allow them to seize the firearms, or that Miranda rights were read to them before taking testimony.

Because of the illegal seizure of the weapons, and the illegally obtained statements by Massey, Foerster, and Varner, the subsequent Search Warrant and Criminal Complaint (arrest warrant) were secured. If the rights of Americans are as intended by the Founders, then the invalidity of the actions of August 29 leave no lawful justification (excuse) to obtain the subsequent warrants.

If we are a nation of laws, and the “supreme Law of the Land” is the Constitution, then by what right does the federal government pretend that they can walk over the Bill of Rights, imposing hardship and expense on K. C. Massey?

Massey’s attorney, Louis S. Sorola, has the same question, so he has filed a Motion to Suppress Illegally Seized Evidence and Illegally Obtained Statements. As he points out in the Motion,

The August 29, 2014 search and seizure was illegal and the evidence and statements should be suppressed along with any subsequent statements and evidence seized on October 20, 2014 as they are fruit of the poisonous tree.

The Honorable Andrew S. Hanen, United States District Court, Southern District of Texas, Brownsville Division will hear this Motion. Judge Hanen recently ruled against the Obama Amnesty Plan, indicating a respect for both the Constitution and the fact that only Congress may legislate.

The Declaration of Independence Has Been Outlawed

Gary Hunt
Outpost of Freedom
January 9, 2015

 

“[W]hen long trains of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide for new guards for their future security.”

Declaration of Independence, July 4, 1776

With those words, the War for Independence from British Rule began, in earnest. That Declaration of Independence is the premier founding document, for, absent the fortitude of those who supported it, with their lives, fortunes, sacred honor, and their willingness to die in the battle to contest the overreaching authority of British Rule, in violation of the British Constitution, the United States Constitution would never have been conceived. Instead, for the first time in the history of man, the people were the source of the authority that created the government.

Murder and theft, crime against people and property, are broken down into degrees of severity. That is the means by which certain crimes are graded, and punished, based upon the people assembled in a jury — so that the will of the people is supreme, and the government simply carries out the administrative function of the process of Justice.

What happens when the government enacts laws that make it a more serious crime to kill because of an emotion? They call them “hate crimes”, though they seem to be applied in only one direction. The result is that only a certain class of people can have harsher penalties applied, because the government says so, than if the killing was for money, jealousy, rage, or even random. Simply, the idea is to outlaw certain forms of thought (See Freedom of Speech and Thought Crimes). It is a form of social engineering, or more accurately, reconditioning to comply with the dictates of government’s control of not only our speech, but also our thoughts and actions.

Every state constitution, as well as the United States Constitution, recognizes that the creation of their respective governments, grants of authority, and limitations of power, are sourced from the people, themselves (“We the People”). It was presumed by the Founders that the authority of the people was such that they could, as so stated in the above quote from the Declaration of Independence, abolish a government that violated the limitations, and usurped authority, at the discretion of the people, not the discretion of the government. In fact, if you read closely, they even imposed the responsibility as a “duty”, to assure the perpetuation of the Great Experiment that they had initiated.

The FBI recently (August 20, 2013) published as an FBI Press Release, a description of the United States Code definition of Terrorism (Definition of Terrorism in US Code).

Definitions of Terrorism in the U.S. Code

18 U.S.C. § 2331 defines “international terrorism” and “domestic terrorism” for purposes of Chapter 113B of the Code, entitled “Terrorism”:

“International terrorism” means activities with the following three characteristics:

• Involve violent acts or acts dangerous to human life that violate federal or state law;
• Appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
• Occur primarily outside the territorial jurisdiction of the U.S., or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.*

“Domestic terrorism” means activities with the following three characteristics:

• Involve acts dangerous to human life that violate federal or state law;
• Appear intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
• Occur primarily within the territorial jurisdiction of the U.S.

18 U.S.C. § 2332b defines the term “federal crime of terrorism” as an offense that:

• Is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and
• Is a violation of one of several listed statutes, including § 930(c) (relating to killing or attempted killing during an attack on a federal facility with a dangerous weapon); and § 1114 (relating to killing or attempted killing of officers and employees of the U.S.).

* FISA defines “international terrorism” in a nearly identical way, replacing “primarily” outside the U.S. with “totally” outside the U.S. 50 U.S.C. § 1801(c).

* * *

So, just to get you thinking about the ramifications and the authority presumed by the government, but not granted by the Constitution, let’s look from the other side. If police use force to “influence or affect the conduct of [people] by intimidation or coercion, or to retaliate against [people’s] conduct”, then they, too, should be guilty of terrorism, especially when they are armed as an army, and protected against most means of assault by use of armor far more invincible than knights of old.

However, like hate crime laws, terrorism is a one-way street. The government cannot be guilty of terrorism, whether around the world, or within the States of the Union, any more than a White person can be the victim of a hate crime.

Despotism (as understood by the Founders – Webster’s 1828 Dictionary)

Absolute power; authority unlimited and uncontrolled by men, constitution or laws, and depending alone on the will of the prince; as the despotism of a Turkish sultan.

If we simply replace “prince” with “president”, and then evaluate whether we have reached that definitive point in our history, then we understand that there is a mandate from our source documents (the Declaration of Independence) that has, in effect, been outlawed by a despotic government.

To shoot a cop, or, not to shoot a cop

 

Gary Hunt
Outpost of Freedom
January 5, 2015

 

Recent events have resulted in increased random shootings of police officers, around the country. Though the practice might not be deemed contemptible in one set of circumstances, it might be considered unjustified in the current situation.

Perhaps if we can separate what is acceptable and what is not, we can get a better grasp on what the variation in circumstances might warrant, as opposed to what is not warranted.

The shooting of police officers is a necessary consequence, when done with the proper circumstances, of forcing the government to submit to the will of the people, rather than the people submitting to the will of the government.

In light of both Waco and the Oklahoma City bombing, circumstances were different than those of today. Police force was exerted on the branch Davidians in Waco, resulting in the death of nearly a hundred men, women, and children — at the hands of law enforcement.

The Oklahoma City Bombing, conducted by Timothy McVeigh, was in retaliation for what he had experienced in Iraq and what he observed in Waco. Though we may not agree with his method, surely, his actions were directed at the source of the problem — an overreaching government.

Examples of the circumstances, in the nineties, are explained in two interviews I did at the time, Popping Cops and Breaking the Bonds of Slavery, the latter being more demonstrative of the justification of such actions.

However, the current circumstances, including both the events that lead up to the current furor and the significant change in the nature of law enforcement, have created a bit of a quandary. For example, if a cop is shot, the assumption, in both Mainstream Media (MSM) and the alternative media, will be that it is an act of retaliation for the deaths of Michael Brown and Eric Garner. This based upon the outrageous calling for killing any, and all, cops. Not that it would be outrageous under the proper circumstances, though that is lost in the current media hype, and there is little possibility of extracting an act against government from the story, if that were the motivation. Surely, the cops, if they caught the shooter alive, would sequester him so tightly that any story he had would never see the light of day. In addition, the presumption of retaliation would become the Prima Facie Story.

The perspective then would perhaps be “the right thing to do, for the wrong reason. It would place the patriot community in a position of supporting the “don’t shoot me, I’m black” crowd, without regard to the fact that black cops have shot both unarmed black and white people, and that most crimes, and killings, of blacks are by blacks.

During the sixties, the anti-war movement was intertwined with the black rights movement, placing the strictly “end the war in Vietnam” crowd with the mantle of black rights support or Women’s Liberation, though untrue to significant numbers of the anti-war crowd. They were stigmatized, by the press, into what they were not.

The same consequence is likely to occur, today, by tying the “restoration of constitutional government” group inextricably, to the “don’t shoot me, I’m black” crowd, which will co-join the two in the press, and might likely become a damper on, or destroyer of, the patriot movement.

However, there may be a solution — one that would provide a distinction, and also bring to light the fact that cops don’t discriminate because of color, when they kill unarmed people. They also kill unarmed whites, as well as other races, with the same impunity that they do when they kill blacks.

This past March (2014), Albuquerque Police Officer Keith Sandy shot and killed James Boyd, for illegal camping. Boyd was white, as was Sandy. However, there is complete video footage of the event, and leaves, without a doubt, the guilt on both Sandy, the other officers on the scene, and the entire police department that justified what can be called nothing but “murder”.

There are many that believe that Darren Wilson, who shot Brown, may well have been justified, as there had already been aggressive physical contact while Wilson was still in his patrol car.

When NYPD officer Daniel Pantaleo used a chokehold, or other restraint method, resulting, directly or indirectly, in the death of Eric Garner, the justification for Pantaleo’s action and the cause of death are not so clear.

Of these three events, the clearest, in terms of justification of the officer’s actions is Wilson/Brown event. Next, we have the murky events surrounding the Pantaleo/Garner incident, though this seems to be the motivation for the current outrage. Finally, we have the Sandy/Boyd event, where clearly there was no justification for the action resulting in Boyd’s death.

However, the motivation for the “kill the cops” effort stems from the event that seems to have the most justification (Garner), and is supported by the questionable, though newsworthy story (thanks MSM, Mayor de Blasio, and the Executive Branch). This is founded upon the Brown event (thanks MSM and the Executive Branch), and used to support the resulting attitude. While Boyd’s death, the least justifiable, is lost to MSM and the Executive Branch, and seems to only have recognition in the patriot community.

What would bring this into an acceptable realm for the patriot community? Surely, supporting the “kill all cops” attitude can only bring discredit upon us. It might also lead to a race war, as the black verses white issue is predominant.

What if we supported the police position? Well, would we then be supporting those who, by their nature, are not fulfilling their sworn duty to enforce the law, and would also be giving implied support for their killing James Boyd. This, too, might lead to a race war, as the cops are perceived as white — against the blacks.

Is there a position that we can, and should, support? There are two things that can be done to promote both by social/political action and by force that can have a positive effect for the patriot community.

First, we can hold the position that cops are not above the law, and only the people can determine what those limits will be. This can be accomplished by requiring that any time a person is shot, or otherwise physically abused, by a police officer, or any law enforcement officer, unless there is an active gunfight involved, that the matter go to a jury trial, so that the people, of the nation supposed to be governed with the consent of the people, determine whether the act was criminal, or not. That jury determination (not a grand jury where it is at the will of the US Attorney, State Attorney, or County Attorney) will set the standard for what is acceptable, and what is not acceptable, in the eyes of the local community — the local We the People.

Second, that any officer shot be one that is easily identifiable as having abused his authority (as in Sandy/Boyd), and warrants, without jury trial, as the evidence is so clear that guilt can only be ignored by obfuscation. The Internet provides many resources for the gathering of evidence sufficient to make such a determination (See Bad Cops and Targeting). This will have a two-fold effect on law enforcement. It will put those on notice who have not yet crossed the line, that there will possibly be consequences if they do cross that line. This might also lead them to want to distance themselves from those who have crossed the line. And, it will serve the effect suggested in Breaking the Bonds of Slavery.

Breaking the Bonds of Slavery

Gary Hunt
Outpost of Freedom
September 13, 1998

NOTE: This interview was conducted over 16 years ago, and times have changed. It must be read in conjunction with “To shoot a cop, or, not to shoot a cop”, which will put a perspective of on this article, based upon circumstances today.

* * * * *

 I had a conversation with a friend the other day. It turned into a hypothetical scenario, and I decided that it might make a good interview. John agreed. So, what you are about to read is a scenario developed around what COULD have happened in Germany in the mid to late thirties, when some of the German people first began to suspect that Hitler’s Reich was a little bit different than what it was set out to be. Only portions of the interview are included.

OPF: John, how are you, today?

JOHN: Fine Gary, and ready to go.

OPF: Okay, John, why don’t you lay out the basis for the scenario, first.

JOHN: Okay, it is 1938 and some of the people have begun to realize that the government has continued to expand its power, increase its revenue from the people, and imprison those who defy the rules established in this progression of what amounts to a submission to slavery. Now, when I speak of people, I intend that to mean only those who have begun to understand the existence of the problem. The rest of the people I will refer to as “the rest of the people”. The scene, however, is not very much different than the conditions that currently exist in America, except that America has not chosen a scapegoat race to direct negative emotions at. America has selected a portion of the people to direct their negative emotions. But, that is not the story line, so, back to Germany.

* * *

OPF: So, suppose the people of Germany wanted to protect their country from what was, apparently, a step in the wrong direction?

JOHN: Well, I think it was more than apparent. Work forces of citizens, paid from the common treasury, were put to work with shovels, building the Autobahn, and other public works projects. Having been denied the right to build an Army after World War I, the government realized that they could build an army with shovels, and then replace the shovels with rifles. Close quarter drills, maneuvers, bivouac, the workforce practiced every type of military function. Nobody did anything about it. Most realized that the workforce was training to be an army. Once trained, and given the guns, the government had a police force sufficient to control all of the people. Of course, the local officials were brought in as a part of the military force, and took their orders from the central government, enforcing whatever laws the government passed. It was at this time that the people should have acted. The prosperity for the few who were willing to submit to the government, and enforce their laws, at the expense of the rest of the people, placed them in a position of power. This power was abused, in many cases, but the rest of the people took it, without question — or, at least, not aloud. This, though, would have been the time to strike. Many people still had their rifles and some may have had explosives. Heavy equipment had not been developed for smaller jobs, and so it was not uncommon for farmers and others to have explosives. Had they used these explosives on the government force, random hits by small groups, they would have had an effect.

OPF: You mean that they should have killed the soldiers and the police?

JOHN: Had they killed soldiers and police, in random acts, they would have created more than what was then just a reward scenario for the soldiers and the police. They were acting with impunity, and were fed and paid better than the average worker.

OPF: That would have been dangerous. Wouldn’t they most likely get caught and executed?

JOHN: Many were killed, anyway. Most, eventually, as soldiers in war. Others that resisted were captured and imprisoned, many to die in prison. I suppose that the difference is whether you want to die fighting, or just die. I believe that some of the Germans that I met years ago really regretted what they allowed to have happened. I think that they would have, had they thought that it would get as bad as it did, done something about it.

OPF: Well, what would be the desired result, had they done these random acts of killing?

JOHN: Probably. Most importantly, is that they would have created fear within the government. Kind of like when the Oklahoma City bomb went off. I remember that you had written an article (Escalation & Fear: Fear & Escalation) about how the government had reacted to the bombing. They were scared. From what I have read, very few of those who were in the building have been willing to go back to work for the government. Then, others, like Bob Ricks, from Waco, retired shortly afterwards.

OPF: You mean, the idea of killing people would have been to get them to quit their jobs?

JOHN: That would be fair to say. You know that burglar alarms are as effective as burglar alarm stickers. The burglars see the sticker, and they decide that there may be too much risk and move on to the next house. Likewise, if they think that there is an angry dog inside, they go elsewhere.

OPF: So, killing them is just to scare them?

JOHN: Not exactly. It has a number of other effects, as well. As soon as it started, there would be very few, if any, individual soldiers or policeman doing anything. They would change their uniform before going home, and whenever something had to be done, they would travel in large enough groups to affect their safety. This would reduce the number of active units that could be imposing on the people, or breaking in doorways. It would also have the effect of reducing, or culling the herd. Each dead or injured soldier or policeman would have reduced the force by one. His death would also have a greater impact on his friends, and cause them some concern for what they were doing. I’m pretty sure that they knew what was happening, and this might have just moved them enough to refuse to go along with it. But, this never happened.

OPF: What about the political leaders?

JOHN: Well, there is no doubt that they could have been targets, as well. Had, say, Goering been killed, then much of what he did might never have happened. Just think about the world today. Didn’t we try to kill Gaddafi and Hussein? Didn’t we kill Diem and then plant our man as leader of South Vietnam? Taking the political leaders out is, definitely, a political tool.

* * *

OPF: What about the Deutsches Bank and other institutions that supported the government?

JOHN: Well, there is a lot of support of any government by many institutions in a country. Some may already be influential and others may be seeking influence. They do so on the premise that if they favor the government, they will be favored by the government. The government realizes that it needs all of the support, both financial and industrial, to achieve its purpose. So, each is scratching the other’s back. If something was done to create a risk greater than the benefit, then I think that they would think differently. After all, they, like the government, need employees to do anything. Can you imagine how effective a government would be if nobody worked for it?

* * *

OPF: Now, you have suggested that small groups of people could do this and get away with it. Do you really believe that they could get away with it?

JOHN: There is always a risk. If they were to operate properly — say, a group of two to five people, like they call cells nowadays, planned everything, scoped the job, wore rubber gloves, kept their “work clothes” somewhere else, set up alibis, and really did their homework, I would think that only chance or bad luck would keep them from safely doing their job. The more groups there were, the more thinly they would spread their opposition. And, they would have been wise to have established escape plans, and means to communicate with their families, once the had to flee.

OPF: Given the Gestapo tactics, wouldn’t there be risk of being infiltrated?

JOHN: Yes, there is always that risk. There is also the risk of having someone that is not an infiltrator get caught at something else and turn against his friends to reduce, or remove his punishment for another crime. Remember, you wrote about Don Bunds in Waco, and then there was Michael Fortier. That guy Marshall in West Virginia, and many other cases where informants or infiltrators caused the destruction of even innocent activity — like the Viper Militia. To protect themselves from something like this, they should watch for a change in the nature or actions of one of their members. You’ve seen the old black and white movies where someone gives himself away by having to make a call, or sneaks out, or some other activity. Every caution would have to have been taken to keep Gestapo informants from infiltrating, and if suspicion existed, plans would have to have been changed, or, maybe, the member taken out. No trial, but the possibility of error rather than the risk of losing the cell. If cells had to communicate, only one member of any given cell would be known to any of the other cells. Only one man could go down that way. This guy would have to be chosen by the others as the most stoic. The Gestapo could be pretty cruel when they wanted to be. Eventually, as successes were achieved, I think that it would have become more open, just like in France. Major operations were conducted after the cells were tried and hardened. Their communication became more wide based, even to the point of the BBC broadcasting instructions to various groups via the radio. By then, the cells were hardened and the chance if infiltration was almost non-existent. Had that happened in Germany, there would not be nearly as many American graves across the European countryside.

* * *

OPF: When should the people have begun acting in this way?

JOHN: It probably never would have been too early — once Hitler gained power. I would think, though, that, depending on where you lived and what you had experienced, that the time to begin would vary based upon your experience. I would like to think that as soon as you knew where things were going, like so many do today in this country, that you would form your cell and act. As each cell began acting, it would motivate others to do so. Soon the risk would have become so great that the Reich may never have even begun its attempt to conquer the world. But, starting could never have been considered too late. If cells began when the Germans were being pushed out of France, it still would have been effective.

* * *

OPF: Well, John, thanks for your time. I suppose, if people do act when they know something is wrong, like the Founding Fathers did, that they can achieve what they want. Perhaps World War II could have been avoided. It is something to think about.

JOHN: Your welcome, Gary. I think you are right. Many will probably, like those Germans I told you about, regret that they did not act sooner. I only wish I was younger and, well, if I had been a German…