Outpost of Freedom blog

Wolf Trap – Act I – Habeas Corpus
Scene 2 – Who is in Charge Now?

Gary Hunt
Outpost of Freedom
May 23, 2015

Setting the Stage: Ten years after the Ashwander Decision, an Act of Congress established a far more authoritative agency structure, creating a Fourth Branch of Government. Though intended to affect less than 1% of the population, or so they said, it now affects nearly every one of us.

bu·reauc·ra·cy. noun

A system of government in which most of the important decisions are made by state officials rather than by elected representatives.

 

Administrative Agencies Rule Our Lives

The “Administrative Procedures Act of 1946” was submitted by Representative Pat McCarran, Democrat, Nevada, who gave us some insight into its purpose, when, in the Congressional Record, he said:

“We have set up a fourth order in the tripartite plan of government which was initiated by the founding fathers of our democracy. They set up the executive, the legislative, and the judicial branches; but since that time we have set up fourth dimension, if I may so term it, which is now popularly known as administrative in nature. So we have the legislative, the executive, the judicial, and the administrative.”

What? A fourth branch of government? My Constitution only has three. Wouldn’t an Amendment be required to create a fourth branch?

He then goes on to say:

“[This bill], the purpose of which is to improve the administration of justice by prescribing fair administrative procedure, is a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the Federal government. It is designed to provide guarantees of due process in administrative procedure.

So, he says that there are hundreds of thousands of people “whose affairs are controlled or regulated in one way or another by agencies of the Federal government.” The population of the United States, in 1946, was 150 million people. So, the “hundreds of thousands”, he didn’t say anything about a million, would constitute well less than one percent of the population.

There is an old saying that if you give an inch, they will take a mile. This appears to be an understatement when you consider that the less than 1% has expanded, in these past 69 years, to incorporate probably 99.9% of the people in this country.

This is, most certainly, NOT the limited government that was given to us by the Founding Fathers. Though we find that their foresight provided a means by which we could challenge that expansion (let’s be honest, usurpation) of authority in the limitations imposed upon that government. However, before we do, we need to look at what those men of integrity also told us of the consequences of such usurpations.

The Founders on Constitutional Limitations

Alexander Hamilton, in Federalist No 78, made clear the judiciary, especially the Supreme Court (which is the only court proposed at the date of his writing) was “the citadel of the public justice and the public security“, and, that “No legislative act, therefore, contrary to the Constitution, can be valid“.

Further, Justice Marshall, in Marbury v. Madison (5 U.S. 137), says that “an act of the legislature repugnant to the constitution is void“.

Prior to the ratification of the federal Constitution, the North Carolina Supreme Court, in 1787, first nullified an enacted statutes that was contrary to the North Carolina Constitution, in Bayard v Singleton (1 N.C. 42). They said that “if they could [enact legislation contrary to the constitution], they would at the same instant of time destroy their own existence as a legislature and dissolve the government thereby established“.

 

The next Scene will explain what the Founders did to protect us from such encroachments by the government that we created.

Wolf Trap – Act I – Habeas Corpus
Scene 1 – Limited Federal Jurisdiction

Gary Hunt
Outpost of Freedom
May 22, 2015

Setting the Scene: This Act is a series of scenes that will lead up to the events, the paper chase, that are going on in Montana, in an effort to persuade the Court to recognize that rights of William wolf and the limitations of federal authority, as conceived by the Founders. It will provide an understanding of what was, why it was, and what happened to deceive us into believing that it no longer existed. It will conclude with the ongoing effort to restore the proper relationship between the federal government and us.

* * *

From my early school years, I heard explanations pertaining to Habeas Corpus, the “Sacred Writ”. It could be used to remove you from unlawful detention; it could be written on a scrap of paper to be served; it could be served, on your behalf, by anyone who wanted to assist you in being removed from unlawful detention, and, perhaps even more. It was championed as fundamental to our liberty. However, little more was said of it, and it remained only as a mental symbol of something that, though not well explained, was one of the most important inclusions in the Constitution. So important that it was not included in the Bill of Rights, rather, it was part of that first venture into the creation of the new government that we have, today, the Constitution.

Understanding that circumstances might warrant the suspension of that “Sacred Writ”, the power to do so was left solely to the Legislative Branch of the government, and only “in Cases of Rebellion or Invasion the public Safety may require it.”

Interestingly, this fits nicely within that portion of the Fourth Amendment that states that you have a right “to be informed of the nature and cause of the accusation” against you. But, what do “nature” and “cause” mean? So, we will visit the language of the Founders; from Webster’s 1828 Dictionary, we find that “nature” is a noun, and that the appropriate definition is, ” The essence, essential qualities or attributes of a thing, which constitute it; what it is”. So, nature is the element (essence) from which the charges are brought. The “cause” is, quite simply, that which brings it about — the act.

So, the “cause” is the act that brings about the charges, and the nature is the source from which the law acquires its authority. And, in any act, for which a “cause” is brought by the federal government, it must also have a source of authority, that being only, and limited to, the Constitution. The Constitution provides for both authority of enactment of laws and limitations upon the jurisdiction within which it can apply those laws and impose penalties, if convicted of the act.

After all, we know that the Constitution was written to set limits upon the government that was created by that document. They granted to that government so created, both powers and authorities, and they imposed limitations upon it.

Most cases that go to the United States Supreme Court are based upon certiorari; that is to see if there were irregularities, or errors, at trial in the inferior court. These writs deal solely with whether the applicable laws, or standards of justice (due process), were properly applied. The decisions in such cases often have the appearance of creating not only detailed instruction as to interpretation of a law, rule, or regulation, but also often they go beyond that written law, serving to extend the authority of such law beyond that was intended by the Congress, when it was enacted. This, however, is based upon the presumption that it if a law is enacted by, or under the authority (rules and regulations), of Congress, it must be constitutional in its enactment.

What is does not do, at least in recent years, is question whether the law, even if constitutionally enacted, is imposed where the constitutional limitations preclude its applicability, i.e. jurisdiction.

Before we proceed further, perhaps understanding what a “writ” is, and what it is not, is necessary for perspective. It is not a court case, nor a lawsuit, nor a criminal prosecution against a person. Quite simply, it is “a form of written command in the name of a court or other legal authority to act, or abstain from acting, in some way.”

Limited federal Jurisdiction

Under Article I, § 8, clause 17, Congress has “exclusive legislative jurisdiction”. Under Article IV, § 3, clause 2, Congress may “make all needed Rules and Regulations”, with the caveat, “respecting the Territory or other Property belonging to the United States.” So, under these authorities, many ‘laws” are enacted that apply only to the extent that jurisdiction also applies. A good example of this is a law enacted in 1825 that gave the government the authority to punish “certain crimes against the United States”. We’ll let the act speak for itself:

“That if any person or persons, within any fort, dock-yard, navy-yard, arsenal, armory, or magazine, the site whereof is ceded to, and under the jurisdiction of the United States, or on a site of any lighthouse, or other needful building belonging to the United States, the sight whereof is ceded to them [United States], and under their jurisdiction, as aforesaid, shall, willfully…”

Take note that this does not apply to government property outside of that limited jurisdiction. The property must be to be on lands that are ceded and jurisdiction also ceded, within the authority granted by the Constitution.

For those interested, there are a number of Supreme Court decisions that support the requirement for a Constitutional nexus for an enactment of Congress to be valid and applicable, outside of that limited jurisdiction. These can be found in the article, “Habeas Corpus – The Guardian of Liberty“.

Now, what we have been taught and have been inclined to believe for our entire lives, is eviscerated, if we heed a decision of the Supreme Court, In Re Lane (135 U.S. 443), ruled on in 1890, in which a man was charged with rape, under federal law. The rape took place in the Oklahoma (Indian) Territory (unorganized), though the case was tried in Kansas (statehood in 1861). Lane was convicted and imprisoned in Kansas. Kansas punishment being less harsh, Lane attempted to challenge federal jurisdiction, opting to be punished under Kansas law.

The law under which he was charged and convicted of, had the jurisdictional, “in the District of Columbia or other place, except the territories, over which the United States has exclusive jurisdiction,” in its wording. Now, that wording, “other place, except the territories, over which the United States has exclusive jurisdiction” can appear to be misleading. However, the Court clarified that rather confusing statement by explaining that “except territories”, was not in the context of Article IV, § 3, clause 2 (needful rules and regulations), but rather, as those organized territories, seeking statehood — those which had been granted, by Congress, the authority to propose a constitution and to create Legislative, Executive and Judicial Branches, and were authorized to enact laws, administer them, and the judicial branch to provide a forum for justice. These same grants of authority were endowed upon the states, within the limits of the state constitution, by adoption of the state constitution and the granting of statehood. The extent of federal jurisdiction, the laws, rules, and regulations, was limited solely to the unorganized territories.

Supreme Court (and Inferior Courts) Don’t Want to Rule on Constitutionality

In 1936, the Supreme Court ruled on a case known as Ashwander v. Tennessee Valley Authority (297 U.S. 288). The details of the case are not something that we need concern ourselves with, though we must heed the words of Justice Brandeis, as he explained the seven rules that the Court had adopted in applying their judicial authority. The applicable rules are:

1.  The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary, proceeding, declining because to decide such questions ‘is legitimate only in the last resort…

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

5.  The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.

6.  The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.

7.  ‘When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.

As we can see, Rules 1, 4 and 7, are means by which the Court can avoid ruling on the constitutionality of a matter before them.

Rule 5 provides for a condition upon which one must have been injured to even challenge a statute, even as to constitutionality and jurisdiction. And, Rule 6 provides a bar against challenge, if a person “has availed himself of its benefits”.

So, we can see how extremely difficult it is to question constitutionality, jurisdiction, or to even find that you are in a position to challenge the lawfulness, of any act of Congress. But, we also have to understand the “nature” of those “statutes” referred to in the Rules.

In the Ashwander decision, it was pointed out that the Rules had been adopted over the past few decades, so this was really nothing new. Administrative agencies, though few at the time (Tennessee Valley Authority was one such agency), were relatively new. However, in an effort to expand constitutional authority beyond the limits imposed by the Constitution, and based upon the adoption of those Rules, Congress took another step, in 1946, to expand their authority beyond those limits. That will be the subject of Scene 2.

Camp Lone Star – Nor Shall Private Property be Taken…

Gary Hunt
Outpost of Freedom
May 22, 2015

Massey received at “Notice of Seizure and Administrative Forfeiture Proceeding” from the Bureau of Alcohol, Tobacco, Firearms, and Explosives, dated November 19, 2014. In it, the government had listed weapons and ammunition, which, according to their assessment, total $1134.90. This included three .45 caliber and two 7.62 mm weapons, and over 2500 rounds of ammunition — do the math — the weapons, alone, would exceed the BATF total.

It contained both forms and inventories, listing the above items. And, there were explicit instructions on what to do to contest the forfeiture of the property. No compensation offered, just try as you might, ‘we are going to keep this stuff’.

It also cited various statutes, however, when Massey read the statutes, he did not see any applicability. If he goes to trial, the property would be evidence, and, if he doesn’t go to trial, the property should be returned. After all, it is theft to keep property if there was no crime committed with the property. But, after scrutinizing the documents, he realized that this was “civil forfeiture”, the taking of property just because they want to take it.

Now, Massey, not sure if they were trying to trick him into some sort of confession — professing to own weapons that he might not own, and realizing that there might be other traps in the forms that they wanted him to fill out, declined to complete the forms, and simply question their right to take property, under the circumstances.

So, within the time constraints in the document, he chose to respond, via correspondence, rather than government forms. After citing the many statutes that were referred to in the BATF letter, he writes, “I have read those cited sections, and I am at a loss as to what authority is being used to deny the owners said property. I see nothing that begins to suggest such authority within the context of those codes.”

He asks them to be more specific in their cited statute, and he reminded them that, according to the CAFRA Act of 2002, the Burden of Proof lies upon the Government, to wit:

18 USC 983 (c) Burden of Proof. – In a suit or action brought under any civil forfeiture statute for the civil forfeiture of any property –

(1) the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture;

Don’t you suppose that the government should have some idea of their authority, instead of trying to trick somebody into doing something that the person has no obligation to do?

So, just like in a ping pong game, another mailing from the BATF, in which they state:

As stated in your Notice of Forfeiture Proceedings letter, dated November 19, 2014, the Claim must identify the specific property being claimed; state the claimant’s interest in such property; and be made under oath, subject to penalty of perjury.

Are my eyes deceiving me? The government already listed the property, now they want Massey to list the property. They also want him to “claim an interest in [the] property“. But, they started the game. First, they took the property from Massey. Then, they told him what property they wanted him to forfeit. Now, they act as if they don’t know what property they are talking about, and they question his interest in the property.

Let’s get real. When they took the property from Massey, whether it was his, or belonged to someone else, he had taken responsibility for the property, unless, of course, it was stolen. So, he would also have the obligation to return the property to its rightful owner, one the government finishes with the circle-jerk. It makes me begin to wonder (well, I have wondered since back in 1993, Waco, Texas) whether the BATF (back then, we referred to them as Bat F#$ks) only hired retards, since they can’t seem to do anything right, and are more prone to screw it up worse than it was, one they set their minds (perhaps overly gracious) to work on it.

Anyway, that last BATF notice was dated December 18, 2014, and it also had attached lists of the mysterious property that they wanted Massey to identify.

So, on December 29, Massey responded. Now, though his response is linked, here, it is simply too wonderful to not insert portions of the response, here in this article. In response to BATF alleging that he had submitted a claim:

I am in receipt of your letter of December 18. It misrepresents that I submitted a claim for the return of property. What I sent you was an explanation as to the circumstances surrounding the property that you are endeavoring to seize.

So, now that they may have gotten that right, let’s move on to why Massey cannot respond to deal with the property and ownership, as the BATF would like him to:

First, the Court has barred me from any communication with members of Rusty’s Rangers. The property that you are seizing is owned by members of what the government refers to as “Rusty’s Rangers”. You have not noticed them regarding their property, though you have put upon me a requirement that I violate a court order, or make me responsible for the loss of property owned by members of “Rusty’s Rangers”. If I don’t violate the court order, then you will deny the rightful owners their property.

Then, he returns to the very laws that BATF is attempting to enforce or misinterpret,

I also brought to your attention that you have not stated why the property was seized and subject to forfeiture. You throw a number of codes out, though each of them is so broad in its construction, that I have yet to find any presumed authority for the forfeiture.

Notwithstanding that what you are attempting to do is clearly in violation of the Fifth Amendment to the Constitution, I find that you also fail to meet your statutory obligation under 18 U.S.C. § 983

(c) Burden of Proof. – In a suit or action brought under any civil forfeiture statute for the civil forfeiture of any property –

(1) the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture;

So, how can the government demonstrate a burden of proof, when there is no charge associated with which the burden can be demonstrated? A specific criminal, or other act, under the laws of the United States would have to be submitted as a cause of action, and then the burden of proof, by a preponderance of evidence. I see no evidence with which you might, in the most ludicrous manner, attach a “burden of proof”. It is that which I am seeking, and, it would appear that this would have to be provided prior to any requirement for me to file a claim for the property of others.

Well, that was sent to the BATF via Fed Ex, so they have had over 5 months in which to see if they can do more than sling words, without meaning or context. And, since no Order has been filed on the case, or provided to Massy, we must presume that the whole matter of forfeiture is on hold, and that Massey will be able to return all of the property to the rightful owners, once the case is dismissed (see next article).

In the meantime, maybe those BATF officials have returned to school to learn something other than intimidation is behind the laws of this country.

 

Wolf Trap – Wolf Speaks from Jail

Gary Hunt
Outpost of Freedom
May 14, 2015

I received the following from William Wolf, through a circuitous route, since the government has decided that he should not be allowed to communicate with me. In fact, his communicating with me has so disturbed them that they will be moving him from the Yellowstone County Detention Facility, in Billings (where the Courthouse is) to the Crossroads Correctional Center (pictured above), in Shelby, Montana, about 300 miles, and a five hour drive to the Courthouse. Also, over 200 miles from his friends in Bozeman. Rather odd, since he will have to make the 600 mile round trip for very court appearance, but, heck, it is not their money, it is ours. It is, however, the first story that I have covered where the driving time to court, at least prior to conviction, has always kept down to very reasonable –which this is not.

We had identified Ed Grey (CHS in the Criminal Complaint) as the informant for the government. The Criminal Complaint even states that he “has provided reliable information to the FBI in the past and has not been known to provide false or misleading information and some of the information has been able to be corroborated by independent investigative means.”

We can add another player, Jeff Howard, who may have known that Ed Grey was bad, or was just duped by Grey into an introduction with Wolf.

For whatever reason, wolf has yet to provide a name for the UCE (FBI Undercover Employee), though he has referred to him as “Dirty” in the following presentation of Wolf’s side of the story.

Remember, there are always at least two sides to every story. The government will always get theirs out, first, making it the Prima Facie Story, which results in premature condemnation, as explained in Thought Crimes. So, clear your head, if you have read the Criminal Complaint, and try to be objective in learning the other side of that story.

You will note that this was an FBI operation directed at enforcing firearms violations. Normally, that would be the purview of the BATF, not the FBI. Therefore, there is good reason to believe that this factor is proof of what Wolf is claiming that it was entrapment because of his political views.

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

Summer 2014. Met Ed Grey on a jobsite. Jeff Howard said he was a friend, so possibly Jeff is involved, also. Ed said he listens to my shows and radio broadcasts. We met a few times over lunch, and talked about world issues. Always in public, never in private.

Late September. The Bozeman, Montana, City Commission met concerning an outcry over the Bearcat Armored Vehicle. I spoke openly against it. Ed contacted me and wanted to talk, since he missed the meeting. We met at Old Chicago pizza joint and had lunch. We talked about that vehicle and how it was illegally obtained. He told me he had a friend who was a patriot that wanted to build a bunker up here. So I said I would ask around. I contacted a friend, Kate R. of a local realtor company. See she said she knew of a place. I relayed the info to Ed Grey.

October. Ed Grey’s friend (UCE) “Dirty” was introduced at the Yellowstone Truck Stop, out in the open. We discussed what he wanted in property. We discussed the Bearcat and world issues. He said he was a private security contractor and had worldwide contacts. He said he could get things that could deal with the Bearcat like RPG’s. I never inquired about those. He told me he was selling his business and moving to Montana.

November. Ed Grey came to my home to help with a well pump. We talked on a variety of issues, and then he wanted to see the property. We talked about Dirty wanting to move to Montana again, and that he could get all kinds of military hardware. I told him I was interested in a military grade shotgun, either the Atchisson AA-12 or SAIGA 12 gauge military version. He told me that Dirty did, in fact, have a Class III dealer license for his company’s weapons and repairs. I had asked because of wanting it legally purchased and converted. Both Saiga and Atchisson full auto shotguns, the military version had an identical civilian version, except for manufacturing standards, but compatible and interchangeable parts.

December. Ed told me Dirty is passing through and wanted to meet. We met at the Corner Cafe in Four Corners, Montana (formerly known as the Cinnamon Bear). We sat out in the open. We talked about the property, world issues, and the Committee of Safety meeting. Ed mentioned about the shotgun after Dirty talked about how he wanted property he could have a gun range on for his automatic weapons. I told him I wanted the Saiga 12 fully automatic for its super durability over its civilian counterpart and how one could easily be converted to the other. He confirmed that his Class III licensee could convert it and had access to military surplus. I was very clear on wanting his Class III dealer to purchase and convert it and wanted that then to be a private sale (that is legal).

January 2015. Met with Ed and Dirty at the Flying J Truck Stop and we went to view the property. We talked of many things, including the shotgun and how he had seen the Yahoo video and how impressive it was. I agreed it would be great to own one and that it was an impressively designed firearm. He said his guy could get me six at $600 each. Again, I confirmed it was the Saiga 12 fully automatic version and his Class III could buy and convert it. He said yes.

We met with the realtor and viewed the property. We talked about modifying the property. We also talked about the Committee of Safety meeting Dirty wanted to attend.

Held the Committee of Safety meeting. Dirty and Ed attended and stayed after the meeting. He told me he could get me the exact model I wanted. I again asked about his Class III, converting it and he said yes.

February. Ed Grey texted me asking what length barrel. I said shortest possible (I believe I did and need the text messages from AT&T to prove it). He then asked the strange question of if I wanted it to be Mil Spec. So I said yes, knowing that Mil Spec meant higher quality metals.

March. Met with Ed Grey in his truck, as we had conflicting schedules. He showed a video of a Saiga 12 full automatic in action. He fired two clips. He then said, “yours will look just like this except converted and it will cost $125 more for the internal parts.” I asked Ed Grey if the $125 was for the fully auto converted. He said yes.

March 25. Met with Dirty at Yellowstone Truck Stop and ate. I did not see his vehicle. He talked about the Saiga 12 fully automatic he had bought for himself. He even said he had purchased five of them. He said how it emptied the clip and 1.9 seconds. I said I wanted a pistol grip on the front of mind. He said his Class III dealer had done that, as a favor for finding him the property. I asked again if mine had been converted and he said yes. His vehicle was parked in the back because the lot was full. I moved mine into the back. He showed me a Saiga 12 shotgun that I never touched. Again, I asked if it was converted. He said yes. I made the purchase and was arrested by a multitude of armed agents. Dirty was cuffed and taken away.

Points Of Fact

The Saiga 12 automatic shotgun line has two identical versions. The Saiga 12 fully automatic is made for the Russian military and is a superior manufactured firearm meeting military design/durability specs. It comes with a 14-inch barrel only.

The Saiga 12 semi automatic shotgun is identical to its fully automatic sibling, except it is semi automatic and inferior in construction. It is licensed here, in America, and sold off the shelf. The parts are fully interchangeable, with no modification needed. That is why I wanted a shotgun designed to withstand military rigors that could be legally converted.

Multiple times, I was told I was getting a Saiga 12 fully automatic shotgun from his factory (military surplus) and his Class III dealer could convert it. Dirty even charged me for the internal parts.

There is no way to make a fully automatic weapon more fully automatic with any factory conversion kit; ergo the only conversion is to semi automatic. Also, the barrel statement shows entrapment as the fully military version comes standard with it.

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

Camp Lone Star — The Setup
Get Massey

Gary Hunt
Outpost of Freedom
April 18, 2015

 

There were always bits and pieces that pointed toward a rather unpleasant picture; however, they amounted to nothing more than circumstantial evidence. Circumstantial evidence has always been an insufficient foundation for my articles.

Now, we are going to look at some of that circumstantial evidence. It will include statements from players, though that information has not yet been made public, nor is the government even aware that this information has come to light. One of these two sources was present the night before the arrest (October 19, 2014). The other was present at the shooting incident (August 29, 2014).

We will begin with the team of Massey, Varner, and Foerster, and the relevant events leading up to, and after the shooting incident.

In the early afternoon of August 29, Massey decided to run a patrol, and asked if anyone wanted to go. Both Varner and Foerster agreed to go. Whether Foerster made any phone calls, once he knew that Massey was participating in the patrol, is not known. It is possible that another person in the camp provided that information to an unknown investigator awaiting the opportunity and circumstance under which Massey could be charged with “Felon in Possession”. We will refer to that other person as “S”.

To establish a timeline for the subsequent events, we look at when Massey spoke with Mr. Aguilar, the Curator of the Sabal Palms Preserve, the private property where the shooting occurred. Varner had looked at his phone at about 3:00 PM, just a couple of minutes before Massey finished his conversation with Mr. Aguilar — to provide protection on the Sabal Palms property.

Approximately 20 minutes later, after visiting a couple of other locations, they arrived near the scene of the subsequent shooting. A BP agent appeared to be interested in something, so Massey asked him if they could help. The agent responded, “Yes, we could use some help.” At this point, they parked the Mule (an ATV) and spread out. Varner says that Massey was about sixty feet away and Foerster, another 120 feet away. Shortly after they began, Varner saw an unidentified BP agent jogging along with Foerster, perhaps ten feet from him. This event is estimated to be 5 to 7 minutes before the shooting. Minutes later, because of the vegetation, visibility between Varner, Massey, and Foerster was obscured. So, we have a BP agent with Foerster before the shooting.

About 2 to 4 minutes before the shooting, BP agent Cantu moves to within a few feet behind Varner, though he says nothing. As shots are heard, Varner said, “Shots fired”, and repeated this at least three times. Cantu doesn’t react to these calls, or the shots — at least at this time.

The first words out of Cantu’s mouth were, “Where is Massey?” That raises the question, since Massey was not visible from where Varner and Cantu were; how did Cantu knew that Massey was on the patrol?

Varner responds by yelling to Massey, “Cantu is looking for you!”

Cantu then walked in the direction of the shots, without meeting Massey. Within a few minutes, he returns with the BP agent who fired the shots, and Foerster. Now, this gets interesting; Varner is absolutely sure that the agent’s nametag read “Hernandez”, while the government’s testimony, to date, says it was “Gonzales”. Foerster and the agent were both still in possession of their firearms.

Cantu and the agent walked toward the “assembly area”, where the investigation was to be conducted. Cantu told Massey to follow them with the Mule. Massey said something to the effect that nobody was hurt and they would like to leave. Cantu told him that they would have to go to the assembly area for the investigation. They were all still in possession of their weapons, which were left in the Mule when they arrived at the assembly area.

An agent from BPS removed the weapons from the Mule and placed them in the back of a BP vehicle. One could suppose that “Officer Safety” advised them that there was a risk in leaving the weapons with the innocent Camp Lone Star members.

About this time, the shooter, Hernandez/Gonzales, walked up to Cantu and traded firearms with him. The evidence in the shooting was not bagged, but rather simply changed holsters. This happened before any outside investigators arrived on the scene. Ponder, if you will, whether the subsequent investigation, conducted by the Sheriff’s Deputy and the FBI, included the weapon used in the shooting; if ballistics tests were conducted, and which weapon was tested, if they even bothered to ask for it. But, let’s not confuse ourselves with such details. However Varner, once again, confirms that the shooter’s nametag read “Hernandez”.

Varner, upon asking Cantu what had happened, was told that the shooting occurred when the agent was about 30 feet from Foerster, which was confirmed in subsequent testimony. Varner remains incredulous; “How could anyone miss with five shots from 30 feet?” Varner also states that he never heard the shooter utter a word, to anyone, throughout the entire ordeal.

When Varner’s weapons were returned to him by the Sheriff’s Deputy, the Deputy asked what had happened. Varner told him about the BP requesting help, though that, conveniently, does not show up in the testimony.

When the trio returned to Camp Lone Star, “S” was, uncharacteristically, standing, waiting, for them. He had never done so, before.

Next, we fast-forward to the evening of October 19, 2014. Archie Seals, James Lewis, and Massey were in the long-term motel room that was used for an occasional good night’s rest, a good hot shower, and for meetings, as the need arose.

This particular night a conference call was scheduled with a number of militia people from around the country. The topic of the call was a plan for a massive gathering in Washington, D.C., though the objective, strategy, and tactics were, at the least, undeveloped. They did decide to name it “Operation American Freedom”.

The call had been going on for quite a while, when Foerster buzzed the room and Lewis went down to let him in, brought him up by the elevator, and into the room. This is significant in that Foerster had been removed from Camp Lone Star due to his erratic behavior, at least three weeks prior, and had not been heard from, since. He did not say anything; he simply went over to the bed and sat down. He remained there for the rest of his stay.

After the conference call ended, Lewis and Seal returned to Camp Lone Star. Foerster remained, absent any meaningful conversation or reason. Then he left, probably after he was certain that Massey was going to spend the night in the motel room.

The next morning, Massey left and found 15 to 20 agents waiting in the parking lot to arrest him. Well, someone must have told them that he had spent the night in the room. The presence of 15 to 20 agents indicates that they knew that Massey had spent the night in the room.

When I began this story, I explained that there was a lot of circumstantial evidence. Well, some is explained, above, while other such evidence can be surmised by the events. Taken together, it only raises a suspicion, at best.

Now, when we look at the sworn testimony by either document, or from the transcript, we have established a critical timeline of events.

The government claims that the shooting occurred at about 3:45 PM. The government’s sworn testimony states that that the first records check was run by Deputy Sheriff Valerio, after he arrived at 4:18 PM.

Massey’s attorney, Mr. Louis Sorola, though he has yet to receive copies, made notes while reviewing some records. The two important records, and the absence of one, show that Massey was run through the NCIC system at 15:12:53 (That’s 3:12 PM), fully one half hour before the shooting, and over an hour before the sworn statement as to the first records check to determine if Massey (not even a witness to the shooting) had a felony record. The NCIC records check was not run by the Sheriff, and there is no record in the Persecutor’s file that shows that the Sheriff ran them (as testified), or not. The check was run by FBI SA Schneider. But, the FBI didn’t arrive on the scene until after the Sheriff, and, purportedly, only to conduct interviews.

There is no record that Varner was ever run that day. Though, if they didn’t know better, they would have run everyone who had weapons, including Varner.

Finally, Foerster, who is a convicted felon, was not run through the system until after 8:00 PM, though I do not have the exact time. So, since Foerster was the alleged target of the shooting, why was he not run until much later? For appearance sake? If Massey was the target, they may have wanted to appear diligent in all respects, and, at least, run Foerster, one of only two witnesses to the “crime”.

A final thought with regard to what appears to be a major screw up; the government first attempted to make it appear that Massey had no right, under Texas law, to be on the Sabal Palms property with a weapon. Obviously, they were unaware that he had just come from reaching an agreement with Mr. Aguilar that did allow that land to be included in the “premises”, according to Texas law. Via sworn testimony, they attempted to convert “public” land to be construed as any land the public can go on, and apply that construction to a private nature preserve, Sabal Palms.

I’m certain there are many more facts that have been withheld from the defense, and I am equally certain that as those facts are eventually produced, the likelihood of Prosecutor Hagen receiving an Award from Department of Justice for successful prosecution is about as remote as his chances of going to Heaven.

Wolf Trap – The Setup

Gary Hunt
Outpost of Freedom
April 14, 2015

 

On March 26, 2015, a Montana radio host, William Wolf, was arrested by the FBI (not the BATF) in violation of 18 US Code §922 (o)

(o)           (1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.

(2) This subsection does not apply with respect to—

(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or
(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

The “machine gun” in question may have been legal, until modified by the FBI, as explained in the Criminal Complaint. So, let’s look at some of the information gleaned from the Complaint (underlining, mine):

During [a] meeting [September 30, 2014], Wolf expressed interest in CHS [Ed Gray] introducing Wolf to a former colleague who could possibly provide technical or monetary assistance in building the gun [this would be a flame throwing gun that had previously been mentioned].

Yes, the informant was Ed Gray. I got this information directly from Wolf, before communications were cut off — but that is another story.

On October 10, 2014, a CHS [Confidential Human Source – Ed Gray] introduced Wolf to the colleague, who in actuality was a FBI undercover employee (“UCE”).

Gray brought his agent (handler) in to meet Wolf.

At one point during [a] meeting [December 18, 2014], the UCE stated to Wolf that he would ask his contacts about acquiring a flamethrower for Wolf. Wolf immediately replied, “Try to get me a Russian automatic shotgun too.”

[In a footnote] The possession of the type of flamethrower described by Wolf to the UCE is not regulated under the laws of the United States and thus would not violate federal law to possess such a device.

According to Wolf, the offer was made and then he made the request.

The FBI acquired a firearm with the specifications desired by Wolf—i.e., a Saiga-12 fully-automatic shotgun with a shortened military grade barrel. FBI Headquarters modified a semi-automatic Saiga-12 gauge shotgun to a fully- automatic with a shortened barrel.

So, the FBI manufactured an Automatic shotgun from a Semi-automatic shotgun.

The CHS stated that in addition to the $600.00 previously arranged for by the UCE [Ed Gray], an additional $125.00 was necessary due to the conversion of the shotgun to fully automatic. Wolf agreed to the pay the extra $125.00 for the conversion.

So, now the cost, since they couldn’t come up with what the said they could, goes from $600 to $725. not really significant, except with regard to detail.

The UCE informed Wolf that his “supplier” was a Class III dealer and had converted the firearm from semi-automatic to full- automatic, to which Wolf acknowledged.

On March 26, Wolf took possession of the shotgun and,

Wolf then paid the UCE $720.00 for the firearm and took possession of it from the UCE. Wolf placed the encased firearm into his vehicle. Wolf was then taken into custody by the FBI without incident.

There is that picky detail. The bill was for $725, according to the previous agreement. The UCE only got $720. I suppose that they were so excited that they were wetting their pants because the managed to entrap Wolf, or, they just aren’t concerned with details in their reports.

The Complaint then ends with the:

CONCLUSION

Based on the information contained in this Affidavit, there is probable cause to believe that William Krisstofer Wolf knowingly possessed a machine gun, in violation 18 U.S.C. § 922(o).

First, let’s look at what they did and question the legality, and then at why they did it, and question the legality.

What They Did

As I understand it, if I wanted to purchase a machine gun and went to a gun store operated by a Class III licensee, he would hand me some paperwork for a background check and some paperwork for the Class III license. I would complete the forms and return them to him. He would then submit the forms to BATF and if the background came back clean, then the Class III license would probably also be issued.

However, if I went to the same gun store and said that I wanted to purchase a machine gun, and they said that will be $725 dollars, and if he didn’t require me to complete any paperwork, background check or Class III license application, I must assume that I am in compliance, as it is his legal responsibility to take the aforementioned steps to comply with his license. If I accepted that offer, he then took my money and handed me the machine gun, I would have satisfied every obligation placed upon me by a federal licensee.

The UCE was presented as, and did not deny, that he was a Class III licensee. So, who is the criminal party?

But, let’s assume that there is exception to 18 US Code §922 (o) (posted above). Well, there are two exceptions. The second exempts anybody who had acquired the machine gun prior to effective date of the rule.

The interesting one, however, and reading it with full regard to the punctuation (we are still a nation of laws, not of man, I presume), we can see that it says, as the first exemption (ellipsis … connotes words omitted for clarification):

(A) a transfer… by… the authority of the United States or any agency thereof…

So, if it was transferred by an agency of the United States, it is exempt, as per §922 (o) (2) (B). However, if as was represented by Ed Gray, that UCE was a Class III licensee, then it is not exempt, however, the guilty party (criminal) is not the one that relied upon the licensee, rather it is the licensee who violated the conditions of his license and the federal rules. This doesn’t even venture into who modified a semi-automatic rifle into an automatic, and whether he was properly (legally) authorized to do so.

That aside, though very significant, we can still rely upon the Complaint to determine what the focus of their efforts was — the motive for the set up and entrapment. After all, we all know that every crime has a motive. It is the government’s motive we are pursuing, for if there was a subsequent crime resulting from the government’s crime, which one is more important for us to concern ourselves with?

Why They Did It

Wolf made clear in his various meetings and radio shows what he thought of the government, which most of us already see as a bit out of hand. So, in one radio show, beginning back in November 2013, he presented his purpose,

to educate the public on how to counter action at the local, state and federal levels that were viewed as overstepping on constitutional rights… Over the next twelve months, Wolf repeatedly espoused his contempt for local judges, law enforcement, the county attorney, city and county commissioners, and the agents and agencies of the federal government.

Perhaps a bit overbroad in its inclusiveness, but not beyond the sympathies of many. He also called for:

Wolf called for a “restoration of the constitutional government.”

and

Wolf stated on multiple occasions that he considered agents of the government (local, state, or federal) to be the true enemy to the American people.

In a July 2014 radio show,

Wolf asked his program listeners “Are you willing to attempt a restoration of our constitutional government? Because that is what we are going to do.

And, in a December 18, 2014

Wolf described his plan to conduct a meeting in late January 2015 for the purpose of educating the public about “committees of safety.” Wolf viewed these committees of safety as the last peaceful method to address his grievances with the government.

So, though he referred to the historical Committees of Safety, and is seeking a peaceful solution, they seem to be offended by the function of Committees of Safety being the means of peaceful redress of grievances and the right of self-defense, and the defense of others.

Obviously, they don’t like the way the Wolf talks about dealing with the problem, and they can’t charge him with sedition, nor can the charge him with unlawful speech, so they have committed criminal acts against him in order to entrap him into committing acts which may appear criminal, though, as explained above, are not.

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.