Memorandum Page 1
NELSON TRAVERSO
Law Office of Nelson Traverso
312 Fifth Avenue
Fairbanks, Alaska 99701
Phone: 907-457-3307
Fax: 907-457-3308
Email: [email protected]
Attorney for Francis Schaeffer Cox
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
FRANCIS SCHAEFFER COX,
COLEMAN L. BARNEY and
LONNIE G. VERNON,
Defendant(s).
Case No. 3:11-CR-00022-RJB
MEMORANDUM IN SUPPORT
OF MOTION TO DISMISS
SINCE THE GOVERNMENT
HAS ENGAGED IN MULTIPLE
SUBSTANTIVE DUE PROCESS
VIOLATIONS TO CHILL
AND/OR SILENCE THE
FREE EXERCISE OF SPEECH
OF FRANCIS SCHAEFFER COX
I. BACKGROUND
The Federal Bureau of Investigation (hereafter abbreviated FBI) opened
a ―preliminary investigation‖ of Francis Schaeffer Cox on February 16, 2010.
(Exh.1). The FBI received reports that Francis Schaeffer Cox had advocated
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the violent overthrow of the government in speeches made in Montana. Id.
The speech that drew concern was made in November 2009. Id. A
―preliminary investigation‖ was initiated on February 16, 2010 with an
expiration date of August 14, 2010. Id. The FBI agent who opened the
investigation remembered a year earlier—February 2009—that Francis
Schaeffer Cox came into the FBI office and advocated the overthrow of the
government by violent means. Id. According to the agent, Cox stated that the
militia group had airplanes, grenade launchers, bombs, claymores, and
machine guns. Id. The agent described those claims as ―likely fictitious.‖ Id.
The document relating the information about Cox was channeled to a counter
terrorism unit dated February 16, 2010. On February 22, 2010 the FBI heard
a radio program of William French of Helena, Montana who was sympathetic
of the man whose airplane crashed into the IRS building in Austin, Texas;
French also expressed admiration for a video of Francis Schaeffer Cox.
(Exh.2) French agreed with Cox‘s statement that one must not only ―be
willing to die for liberty‖ but must also be willing to ―kill for liberty‖ if law
enforcement came into your home. Id. The FBI transcribed a speech that was
made by Schaeffer Cox on November 24, 2009 in which Schaeffer states his
views on government in an excerpt (transcription attached hereto as Exh.3):
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Liberty always wins because tyranny self-destructs. Even a
casual history will show you that governments grow until
they pop. And then there‘s another shot at liberty. The
seams are busting on this balloon. It‘s going ―errrrr‖ right
now and they just keep blowing more air in it. There is
going to be another shot at Liberty. Now here is my
greatest fear, my greatest fear. And I‘ll talk a little bit
about me and thousands of other people. We are really on
the ball in Alaska. And I‘ve come to address this very
thing. All right. My greatest fear is that as our government
fails and as it comes crashing down, the concept of law
will be swept away with it. Now we don‘t have the rule of
law now. We have the rule of force, because they don‘t
care what the law says—they‘re the iron fists—do it or
else. That‘s how they operate. So we have some semblance
of order just because of the Pax Americana the rule of
force, but I‘m afraid that if we don‘t have the moral
integrity as individuals and as a society to hold it together
when they bear the natural consequences of their
irresponsible, immoral, lawless actions, that we will just
crumble into chaos. And it‘ll be just lawlessness. And
there will be no respect for people. There will be no
respect for property. And it will be just tyranny of the mob.
And let me tell you, tyranny of the mob is just as bad as
tyranny of the elite. And we must not let either one of
those prevail.
…
I would say to you right now that our government is a
wounded bear. And I for one don‘t think the best use of my
time and money and fervor is to try to make a wounded
bear die faster. I‘m going to put my energy into cultivating
and rebuilding what‘s going to be next. Because they‘re
going to go away. And people are going to need a skeleton
to come on to. We have just wonderful, wonderful
founding documents. We‘ve got the Declaration of
Independence, we‘ve got the Constitution, and we‘ve got a
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shot coming at us faster than we realize to go back to that.
And that‘s where I‘m putting my energy.
…
Real quick, let me finish, the three things we did: first one
was the Liberty Bell, the common law court, and then we
formed a militia. And that‘s a really good thing. You
know, of course they get a bad name from the liberal
media, but anything they‘re bashing I look into because it‘s
probably good. And we formed that with groups of 5 who
are accountable to 1 team leader and then 4 groups of those
5 which are accountable to a unit sergeant; 2 units are
accountable to a commander and on up like that. This
command structure. We‘ve got 3500 man force, militia
force, in Fairbanks. It is not a rag-tag deal. I mean, we‘re
set: we‘ve got a medical unit that‘s got surgeons and
doctors and medical trucks and mobile surgery units and
stuff like that. We‘ve got engineers that make GPS
jammers, cell phone jammers, bombs, and all sorts of nifty
stuff. We‘ve got guys with we‘ve got airplanes with laser
acquisition stuff and we‘ve got rocket launchers and
grenade launchers and claymores and machine guns and
cavalry and we‘ve got boats. It‘s all set. And the reason is
to protect ourselves. People join this and participate in this
and accept it as part of the community because it‘s a way
for you to fulfill your moral obligation to protect your
family, and pledge to help your neighbor to protect his
family. And you know what, we are indulging in an
illusion if we think anybody is going to do that for us.
We created a judicial, an executive and a militia, and that‘s
all you need to preserve the rights of free men. And I
would encourage you to consider doing the same down
here because if everything falls apart and our government
as we know it, the tyranny, kibashes, do we really want to
re-establish it? Or do we want to go back to something a
lot more basic, with a lot more freedom, because we are
going to have that opportunity. So I don‘t get all wrapped
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around the axle when they pass the bailouts. Let‘s have
one every Friday, you know, get it done. So that‘s where
we‘re at. Dark times. We need bright people. Remember
this phrase-write this down—because when you‘re about
to go under you need to remember this; this is true. ―When
things fall apart people come together.‖
On March 31, 2010 a document sent to the Anchorage, Alaska FBI
office from Salt Lake City office with reference to Helena, Montana had four
names followed by the words ―militia extremism.‖ (Exh.4) Schaeffer Cox‘s
name is listed. The FBI document refers to a Liberty Bell group forming in
Sanders County, Montana. The document states that ―unavoidable references
to persons and groups engaged in the exercise of First and Second
Amendment Rights; however, the justification for this communication, and
that of the captioned investigations, is based upon threats of violence and
violation of federal criminal law.‖ Id. The agent describes that there is
concern for the rising support for Schaeffer Cox in Montana. (Exh.4,p.2) This
is expressed in the FBI memorandum that ―Cox‘s Liberty Bell‖ is also being
followed by Ron Robinson in Plains, Montana. Id. Liberty Bell is an
automatic phone system that is invoked when a person encounters law
enforcement and wants others to monitor what the police are doing by
showing up and witnessing events taking place. (Exh.3,p.4) The recipient of
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the call is to go to the location, directed not to aggravate the situation, and
record everything. Id. This is a means, according to Schaeffer Cox, of looking
out for each other. Id. Another FBI memorandum dated March 30, 2010,
reports that a person visiting a gun store in Evergreen, Montana was
approached by a customer who was handing out DVD copies of a speech of
Francis Schaeffer called ―The Solution.‖ (Exh.5) The Solution speech relates
the state of affairs for the country as a whole and that a common law court,
Liberty Bell Network, and an armed militia need to be formed in
communities. Id. After viewing the speech the party was particularly
concerned about the calls for armed militias, the monitoring of law
enforcement, and that the formation of a Liberty Bell group in the area would
cause gun owners to commit acts of violence. Id. Dissatisfaction was
expressed with the gun show because conversation revolved around Schaeffer
Cox videos. Id. The Solution speech, made in Hamilton, Montana December
1, 2009 (attached in its entirety hereto as Exh.6) is submitted in excerpts as
follows:
You know, here, we‘re going to hell on a freight train, you know.
…
The way that I feel when I look around at this current debacle that we
have and it‘s been building for years and years, is I feel like there‘s just
this huge power out there that‘s just, just incomprehensible, even to
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think about, ah, influencing it, let alone stopping it, and all I want is just
to be free and to respect other people and have respect me and to be
protected by the law and do what I want, you know? And have freedom.
…
And I don‘t understand all the ins and outs of this giant monster that‘s
coming our way and bulldozing our freedom. But I feel in my gut a
resentment and I think that you identify with this. …We shouldn‘t have
to, you know, combat this giant monster with all the specialized
knowledge and all this money and you know win and get our rights.
You know you hear about this, these guys that fought the IRS or fought
the ATF or anything like this and they‘re like yeah, I beat ‗em. It took
me thirty years and $17,000 dollars. You‘re like, that sounds like a
prison sentence…Who‘s the real winner here. You know? They got ya.
They just got ya the other way. You know? They got ya. They just got
ya the other way. You know? You might‘ve won but you were dead
right. That just makes me sick. It makes a lot of people sick. And we
know that our nation, you know, we feel that it‘s getting wobbly and
it‘s worrying us. We see this looming power.
…
Let‘s first talk about the money situation. This is how, this is the main
tool or tyranny and this all comes down to legal theory, which I‘m
really excited to talk about because that‘s how we got so far off base in
this country
…
The Federal Reserve, which is not federal or reserve, it‘s just a, like a
cooperative of private banks that are named after their best customer.
Ok? They are allowed to print up money out of thin air, just print up
trillions of dollars out of thin air and loan that to the government, to the
federal government with interest. That‘s a pretty good gig for them.
You know, they print up dollars from the thin air, loan it to them at
interest, We pay the interest.
…
Now what this does is this is like a wrestling move where you change
from being a republic to being an empire. In a republic the people are
at the top of the food chain and the commands roll downhill from the
people on down to the government, you know, and God gave every
human being the right to life, liberty, and property and a corresponding
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obligation to defend those rights as an individual and through the
establishing of governments to do the same so it‘s only reasonable that
as a government gets further and further removed from these people
their power subsequently diminishes.
…
It creates investment because it is investment that has sprouted up
around an artificial influx of government dollars rather than a natural
demand in the market and so people build their life and their business
around this influx of government freshly stolen loot and that stolen loot
is fickle and it goes from place to place. But when they inject it into the
economy, it creates a bubble. A stock bubble. A housing bubble. A tech
bubble. All these bubbles that we‘ve had you can trace their funding to
injected dollars. Now, why is this good for politicians? Because they
can inject it where their friends are. They can inject it to where they
need votes. They can inject it where they need donors for their
campaign. This is why the politicians like the system. So you get a
bubble and then they get caught between a rock and a hard place and
you get foreign holders of dollars getting mad because they‘re making
their dollars that they are holding worth less and so they pull the dollar
hose out of there and the bubble starts to go down. That‘s a recession.
…
Because our government does not operate under the rule of law. They
operate under the rule of force. It‘s not the rule of law. It‘s the threat of
force. That‘s what it is. You know how the Oxford English Dictionary
defines terrorism? Government through intimidation. That is profound.
Now how many of you submit because you‘re intimidated? And how
many of you submit because you really think the law requires you to do
that and that‘s, that if there was a discrepancy you could bring it to them
and they would abide by the law? No we, I would submit because I‘m
scared. I‘m not usually a scared guy. You know? But that‘s what it is.
We don‘t operate under the rule of law. We operated under the rule of
force in this country and that is pathetic and sad. And let me tell you
what my most profound fear is. My most my deepest fear is that our
government is not going to hear us until we speak to them in their
language, which is force. Now that doesn‘t necessarily mean violence.
Don‘t get me wrong. I‘m not against violence. I am not against violence.
Ok? I am not against spilling blood for freedom. I‘m not against, I will
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kill for liberty. You know everybody asks would you die for liberty.
That‘s not really the question to ask. The right question to ask is if
would you kill for liberty. Because if you would kill for liberty it
assumes you would be willing to die for liberty. Alright? Now about
speaking to them in their language. Force doesn‘t necessarily have to be
violence. It can be just pushing them into submission to the law through
nonviolent means. It can be hassling them into a rock and a hard spot
they just gotta do something.
…
Let it be known that we the people of Alaska or Montana stand in
recognition of the true principle that whenever a government abandons
the purpose which we created it and even becomes hostile towards that
which it was once a defender of it is no longer a fit steward of the
political power that is inherit of the people that is lent this government
with strict conditions these conditions are clearly defined in the United
States Constitution and understood by common man. Furthermore, to the
extent that our government violates these conditions they nullify their
own authority, at which point it is our right and duty not as subjects but
as sovereign Americans to entrust this power to new stewards who will
not depart from the laws we have given them. This being the case, let it
be known that should our government seek to further tax, restrict,
register firearms or otherwise impose on the rights that shall not be
infringed, thus impairing our ability to exercise the God-given right to
self-defense, which precedes all human legislation and is superior to it,
that the duty of us good and faithful people will not be to obey them but
to alter or abolish them and institute new governments, laying its
foundation on such principles, and organizing in such form as to us shall
seem most likely to affect our safety and happiness.
…
And the next thing we did is ah we created a militia.
…
Um, one thing that we went over at Continental Congress is that the
states are in violation of the second amendment because of our absence
of citizen‘s militias and that‘s nobody‘s responsibility but our own.
That‘s our fault and so we created a militia and there are thirty-five
hundred armed, well trained men under my command in Fairbanks right
now and they are, they are rip-roaring ready to go. They‘re able to
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speak to the government in their language, which we hope won‘t have
to happen but you know what a milita is? The militia is anybody with a
gun and a conscience. It‘s somebody who‘s got that sense of duty to
their fellow country. It‘s beautiful and it‘s right and it‘s good and we
ought not to hide from it. All the founding fathers said that that was the
only place that was safe for military force because every man who‘s in
a militia is restrained by his own conscience you know.
…
You really don‘t need any more than that and I‘m afraid that anything
beyond that might just be a means for a few to dominate the many
which is what we‘re all sick of. That‘s why we‘re here in this
warehouse talking about how to stop that. Now let me give you a
couple words of caution about this, creating this system because other
folks have done it before. It cannot be created in order to attack or
antagonize the existing government. Let them crap in their own nest
and bring themselves down under their own power. We‘re not here to
do that to them.
…
Now here‘s the mission that I‘ll leave you with. We don‘t need to gun
down the beast. Liberty always wins because tyranny self-destructs.
What we need to do and here‘s the mission. Is that we need to guard the
seeds of liberty. We need to guard the precious gems of freedom that
are recognized in our founding documents. We need to take those seeds
of liberty and carry those through the flame and through the fire to the
other side and plant those in a fertile soil when the smoke clears so that
there can be hope for a brighter day after the devastating consequences
of the horrible rebellion that our government has given to us. Let‘s be
characterized by what we love and work towards that and let what we
hate run its own natural course. That‘s my appeal and I know that you
will seize the day.
On April 5, 2010 a memorandum referred to militia extremism was sent
to the Anchorage FBI office from Squad 6/Fairbanks RA, Anchorage. (Exh.7)
The memorandum refers to an additional case agent being used and to update
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the pending investigation pursuant to the direction of Assistant Special Agent
in Charge. Id. The memo refers to a request for advice from an Assistant
United States Attorney in Anchorage several weeks earlier (March 9, 2010).
Id. The memo reflects that on March 25, 2010 the AUSA advised the agent
that Francis Schaeffer Cox ―has not crossed the line‖ between ―protected
speech‖ and ―actionable threat‖ and that on April 5, 2010 that opinion was
reaffirmed. Id. The Anchorage based AUSA consulted with a Fairbanks
AUSA, who also agreed that legal action was inappropriate. Id.
The government noted that the support for Cox ―may have significantly
eroded‖ over the last few months because of a domestic violence incident;
also noted was his arrest that occurred during his work associated with the
Liberty Bell Network. Id. The 7,000 membership of the Liberty Bell was
discredited since only Cox and one other person responded to calls. Id. The
government investigated the scope of membership of the Second Amendment
Task Force concluding that they were exercising their First Amendment
rights. Id. The agent stated that most of what Cox claimed regarding the
organization was ―fictional‖ and that law enforcement did not participate
and/or attend the second amendment task force meeting on March 5, 2009 as
claimed by Cox. Id. Also discredited were claims that the militia had 3500
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members. Id. Investigation also had not shown any threats to Cox; but, that he
does wear a bullet proof vest in public. Id. Investigation also showed that the
claims regarding the possession of stolen automatic weapons were also
―fictional.‖ Id.
On May 22, 2010, a little more than a month after the assessment of the
AUSA that Francis Schaeffer Cox had not crossed the line between protected
speech and any actionable conduct, another speech was made at the Liberty
Convention at the University of Montana in Missoula, Montana which the
government calls ―Trouble In Fairbanks.‖ (Exh.8) The speech contains the
same themes as previous speeches such as the Solution: not to attack
government instead let it self-destruct just as you would not kill a wounded
bear; that a common law court, Liberty Bell Network, and militia should be
formed in their community to protect them against unlawful acts of the
various branches of government once its collapse has occurred. Id.
In July 2010 the government initiated an investigation with Schaeffer
Cox by securing the services of an informant known as ―Confidential
Informant 1‖ [hereafter abbreviated CI-1] CI-1 is a felon with extensive
criminal record involving theft and deceptive business practices working for
law enforcement. (See, Federal Search Warrant in case). CI-1 presents a
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warm, disarming chuckle, and ingratiating tone on the audio recordings. He is
directed to contact Paul Stramer, a man involved in liberty bell/militia activity
in Montana with CI-1 has shared militia activity. (15300-1D1) An FBI
agent, Richard Sutherland, states that the call is being made by his informant.
CI-1 apparently knows Stramer from the past and inquires whether Schaeffer
Cox is ―legit‖ and about whether he has seen the video of The Solution
Speech. Id.
―CI-1‖ began, at the FBI‘s direction and control, joined the Alaska
Peacemaker Militia in August 2010 by first calling Schaeffer and telling him
that he is friend of Paul Stramer in Montana and that he wants to join the
militia. (15300-1D3) J.R. CI-1 is invited to a barbecue at the Barney residence
on August 11, 2010 where new members were introduced to members of the
Alaska Peacemakers Militia. (15300-1D4) Schaeffer Cox explains that the
wheels of the country are falling off the ―wagon of tyranny‖ and that ―the
empire‖ is near collapse and will do so on its own. Cox states that the ―empire
is dying a natural death‖ and ―that we don‘t have to gun down the beast‖
because tyranny self-destructs and liberty always wins. Id. Cox added that
when the collapse ensues there will be tyranny and chaos and that the purpose
of the militia is to defend and protect their families and homes. Id. Cox
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explained that the militia is not a military or an underground militia. Id. The
militia is an open organization whose members can leave at any time; and,
that the purpose is not to aggress anyone but to defend all with an
understanding that one‘s duty is to God. Id. He further added that God gave
every human being the right to life, liberty, and property and a corresponding
duty to protect those rights. Id. The induction of new members into the militia
required that each swore that:
Before God and men, for the sake of my conscience and the
safety of my family:
I will defend and observe the principles of individual liberty
embodied in our founding documents by example, persuasion,
and force of arms and assist my neighbors as they do the same,
never abandoning another who is fighting to live free! I will
Demand liberty, Destroy tyranny, Discern justice, Defend all,
aggress none, and follow orders to that end.
(Manual of the Alaska Peacemakers Militia p. 1 attached hereto) The
informant took the oath and recorded the conversations, speech, and activity
of the barbecue. Id.
During the induction of the new militia members and explanation of the
goals of the militia, Schaeffer Cox highlighted what happened to his wife,
Marty, and son, Seth, when a writ of assistance was issued for his son. Id. He
explained that six government agents from Colorado were using that to
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provoke a confrontation with him. Id. Schaeffer Cox explained that a colonel
on Ft. Wainwright offered them political asylum and that the militia stood
ready to defend any attack on his family. Id. The erosion of support alluded to
by the FBI report stemmed from a domestic incident involving his wife on
February 25, 2010 and which later prompted an investigation by the Office of
Children Services [hereafter referred as OCS] in the spring of 2010. (Aff. of
FSC). A military official contacted Schaeffer Cox to inform him that federal
officials had contacted the Provost Office to secure a video recording of Cox
seeking assistance from the post; a military official heard the federal official
state that he was aware that OCS would be going to Schaeffer‘s house and
hopefully would give law enforcement a reason ―to take him out.‖ (Gibson
Interview). The militia members were made aware of this.
In early August 2010 Schaeffer was asked to meet with CI-2, a gun
dealer visiting from Anchorage with militia ties there; and, who is also an
informant with the FBI whose complete role has yet to be disclosed.
(Affidavit of Francis Schaeffer Cox herein abbreviated Aff. of FSC) The
meeting took place at the hotel at Pike‘s Landing in Fairbanks, the night
before a fundraiser for Interior Conservative Coalition.
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(Aff. of FSC) CI-2 was apparently in Fairbanks to help raise funds for
the Interior Conservative Coalition through gun sales at Far North Tactical,
the site of a popular antique store once known as Blondie‘s. Id. At the meeting
was Aaron Bennett, a gun dealer from Fairbanks and a protégé of CI-2.
(Aff. of FSC) CI-2 was extremely adamant about ―what the plan was‖ and
that he had his men here ready to go to back up Schaeffer over his problems
with OCS over Seth. Id. CI-2 wanted to know when to mobilize his men for
attack and became angry with Schaeffer when he rejected any attack on the
government. Id. Schaeffer explained that he had no plan and that this was not
consistent with the Alaska Peacemakers Militia (herein abbreviated APM)
―defend all, aggress none‖ philosophy. Id. CI-2 pried and pushed for
information because he claimed to have trained and paid for his men to come
to Fairbanks. Id. CI-2 exploded when Schaeffer said he not have a plan. Id.
Schaeffer was accompanied by Les Zerbe and Jeremy Baker. Id. Schaeffer,
Les, and Jeremy left and decided not to attend the fundraiser at Bennett‘s store
the next day. Id. However, he was called numerous times and decided to make
a quick appearance. Id. Prior to getting there CI-2 and Bennett had apparently
primed others at the fundraiser into believing that Schaeffer had a ―plan‖
which, in turn, led followers of the militia to believe that he had abandoned
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fundamental principles of APM. Id. Schaeffer was baffled by what was being
attributed to him and explained that he had no plan to overthrow the
government and that he had no idea where CI-2 and Bennett had come up with
this. Id. CI-2 had fanned the flames of a government overthrow to
approximately 15 people present at Far North Tactical (Blondie‘s) and stated
that he had spent over $100,000 to have his ―assets‖ and ―equipment‖ flown to
Fairbanks to begin warfare. Id.
Several days after this Schaeffer Cox contacted the AUSA office in
Fairbanks and explained to them that there were two men who were affiliated
with militias apart from the Alaska Peacemaker‘s Militia who were
advocating violence against the federal government. Id. The AUSA asked if
he had any influence on those individuals so that he could remind them that
they have a duty to obey and work within the system. Id. Schaeffer Cox
explained he did not disclose the names of the two in fear of retribution. Id.
The confidential informant known as CI-1 who attended the barbecue at
the Barney residence in August 2010 begins, at the direction of the FBI,
contacted Schaeffer Cox on November 19, 2010 to attend a meeting.
(15300-1D6) Some Assembly Post members were there for a meeting later;
Schaeffer explains some of history of the militia and analogizes to the chaos
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in Austria surrounding Hitler‘s movement. Id. Schaeffer explains that the
breakdown there is happening here too. Id. He explains that ―we have no
obligation to save the government from its own train wreck‖ but ―we do have
an obligation to let it crumble.‖ Id. An Assembly Post meeting takes place and
CI-1 is introduced to various members and the group‘s philosophy. (15300-
1D6) Schaeffer explains that he is a member of the Assembly Post. Id. He
states that the Assembly Post [AP] is different from The Restore America
organization in that AP works from the bottom up while Restore America
works from the top down. Id. Restore America is foreign financed while the
Assembly Post is not. Id. The Assembly Post will put into place the ―de jure
republic rule of law‖ and ―the sovereignty of men will blossom.‖ Id. Schaeffer
Cox went on to explain that ―We don‘t need to attack that system in any way;
Cox added, however, that ―We need to defend ourselves.‖ Id. Cox also stated
that a citizen is not a sovereign who submits to God; instead, a United States
citizen is a hundred percent federal, non-sovereign stateless person and the
Assembly Post has been formed to change this. Id. Schaeffer explains to CI-1
again, as he has done multiple times, that we have to defend, not attack the
wounded bear. Id. CI-1 asks after Schaeffer explained the philosophy of the
militia ―what if they arrest you on some bogus charge?‖ Schaeffer explains
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that the plan is have huge numbers show up to the court hearing on the gun
case and that three-by-five note cards can be put together to share with the
press so that a media blitz will take place. Id. Schaeffer explained that they
need a huge rally and to place flyers around town. Schaeffer explains that they
will need a security force in place because the federal agents from Colorado
are up here and Marty (his wife), Dave Bartells (the common law court
judge), and himself are at risk. Id.
Schaeffer Cox, during this meeting, criticizes the Alaska Court System
as a for profit enterprise that will not allow him to represent himself. Id. He
discusses his misdemeanor criminal charge of Misconduct Involving Weapons
In The Fifth Degree from March 2010 that arose during his Liberty Bell work
as an observer of the police as they were conducting an investigation.
(Complaint) This was also the basis for the Common Law Trial conducted at
Denny‘s Restaurant on January 16, 2011. (1D9-15300) The day prior to the
trial—January 15—Schaeffer met with other Assembly Post members and
discussed the goals and structure of the organization. (15300-1D8) Schaeffer
explains that ―you are an employee—it is not our job to go in and fix the
system—it is a corporate statutory system—just step out and let it crumble.‖
Id. During the recording an unidentified speaker says that the only way that is
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going to happen is ―if you go up against them‖ and he responds only if they
trespass us. Id.
At the common law trial on January 16, 2011, Schaeffer defended
himself against the gun charge by explaining that he was there as part of the
Liberty Bell Network; he was called for monitoring assistance by a woman
whose house was being searched. Id. Schaeffer had a gun in his pocket; and,
was taking notes when grabbed from behind by a police officer. Id. Cox,
according to the officer, did not tell him that he had gun in his pocket. Id.
Schaeffer disputes this. Id. Testimony was heard from various witnesses at the
common law trial. Id.
On February 4, 2011 the informant, CI-1 gave Lonnie Vernon a ride to
see Schaeffer Cox at his home. (15300-D10) Lonnie was aware that Schaeffer
and his wife had a baby that evening. Id. During the ride over Lonnie explains
the international political scene is changing with uprisings in the Middle East
and change of power in Iceland. Id. Lonnie tells CI-1 that the guy at the Drop
Zone (CI-2), the other informant based out of Anchorage) is having this
meeting so he can sell some of his ―shit.‖ Id. He is referring to a meeting in
Anchorage of militias from across the state. Id. When they reach the Cox
residence they meet a fatigued Schaeffer since he had just spent the day
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helping Marty deliver her baby at home. Id. Vernon asks Schaeffer if he is
going to Anchorage and he replies no. Id. Schaeffer tells CI-1 and Vernon to
pay attention to Norman Olsen and Ray Southwell because they are men of
integrity and are level-headed. Id. Schaeffer tells them to avoid conflict with
CI-2 especially if he has been drinking. Id. Schaeffer states if anybody is
pushing for violence don‘t fight. Id. Schaeffer explains that CI-2 came up to
Fairbanks during the summer ―to provoke us.‖ Id. Schaeffer explains that
they were using his troubles with the state over Seth as a means to provoke us
and urging a war on a Thursday after the fundraiser is held. Id. They told
people at the fundraiser at Blondie‘s (Far North Tactical) that a ―war‖ was to
start on Cox‗s orders. Id. Schaeffer explains the visit he had with CI-2 at
Pike‘s Landing during the summer and the next day visit with CI-2 and
Bennett at Blondies/Far North Tactical that they both were intoxicated and
confrontational at Les Zerbe and myself because Cox did not have an attack
planned; and, that they—CI-1 and Vernon—need to avoid them as much as
possible while in Anchorage. Id.
CI-1 asks Schaeffer that if we do what he said—beat them at their
system and do it the common law way—can we now ―take them on‖ as the
final step? Id. Schaeffer explains that he does not know what the future has in
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store but our plan is to aggress none, defend all and that the militia has to be
ready. Id. Schaeffer emphasized that the appropriate response to the court
case is not war but, instead, papering them and if need be use the Assembly
Post to help on jurisdiction issues. Id. Schaeffer explains that the feds will
probably be at the meeting of the militias and that Alaska Peacemakers Militia
should ―bluff‖ about how many members are in APM by using the
membership numbers from the Second Amendment Task Force meetings—
3,500—as the banner number of the militia. Id.
Schaeffer tells Vernon and CI-1 to get as many pineapple grenades
because you can have them threaded and put fuses in them; the two-second
fuses, he explains are fine with him. Id. Schaeffer also explains that regular
grenades have eight-second fuses. Id. Schaeffer elaborates that two-second
fuses are smoke grenades. Id. Schaeffer adds that they get the pineapple
grenades because they have a hole in the bottom like the paperweight kind and
we can get fuses from Aaron Bennett (Far North Tactical) Id.
At the Anchorage conference/meeting of the militias on February 5th
Aaron Bennett expressed his antagonism for Schaeffer‘s representation of the
membership number of APM and that he has ―butted heads‖ with Schaeffer.
(15463-1D8) Aaron also states that he provided an HK 93 to Schaeffer.
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(15463-1D6, Tr.3990) Aaron Bennett, after lots of bantering and a break from
the conference, is asked by CI-2 if he has any fuses for sell. Id. at Tr. 3990.
Aaron tells them—multiple persons—that the ATF has outlawed all fuses and
that he has ―personal used fuses.‖ Id. at Tr.3993 Aaron tells them that
anything with a fuse is banned. Aaron states that he is ―fuse king.‖ Id. Both
Bennett and CI-2 engage in a lot of sexual banter before CI-2 gets Bennett to
leave. Id. Vernon begins to talk about his thirty years of dispute with IRS;
and, CI-2 warns Lonnie to watch what he says about firearms when the
meeting is in session because the Feds will be there. Id. at Tr. 4018-4021.
CI-2 explains they will ―crawl up your ass.‖ CI-1 questions whether they
would and CI-2 emphasizes that Homeland Security can do what they want.
Id. at Tr.4023. CI-2 instructs Vernon to simply tell him what he needs—―a 5
and 10 twist‖ or ―1/2 inch with a 3/4 twist.‖ Id. at Tr.4027 Vernon asks if he
has the ―homemade ones‖ and CI-2 responds that ―you call me and tell me
what your thread count is.‖ Id. Tr.4028. CI-2 offers to sell him a suppressor
and grenades. (Tr.4028-4029) CI-2 tells Vernon not to ask him about
suppressors and he says he wants one ―for a reason.‖ Id. at Tr.4029 CI-2
reiterates that all Vernon needs to do is tell him what the thread twist is and
he‘ll make it happen. Id. at Tr.4031. CI-1 goes to CI-2‘s shop (the Drop Zone)
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and asks ―where is the pineapple grenades—we want a case of them?‖ Id. at
Tr.4096 CI-1 further asks for fuses if he doesn‘t have the pineapple grenades.
Id. at Tr.4097.
On February 12, 2011 a meeting of the militia command staff (APM)
was held at the bus residence of Ken Thesing. (15463-1D18 ) Present at the
meeting were Francis Schaeffer Cox, Coleman Barney, CI-1, and Ken
Thesing. Id. The meeting begins with Schaeffer discussing the upcoming court
hearing for the carrying a concealed firearm case; he states that is not going to
his court hearing because that would mean accepting jurisdiction, the very
issue he is contesting. Id. Schaeffer states that if a bench warrant is issued he
will just start filing more paperwork. Id. CI-1 states he could be in jail for
eight months because delay after delay; CI-1 adds that they should keep
Schaeffer in his home, set up guard, and run a diversion if the police come for
him. Id. Schaeffer responds that he could run, hide out, or a 1-4-1 operation
like the Israeli defense strategy. Id. Thesing inquires whether it should be
1-to-1; Schaeffer says 2-for-1; and, CI-1 says 5-for-1. Id. Schaeffer states the
command staff should discuss the viability of 2-for-1. Id. A 2-for-1 plan
would be ―horrifying.‖ Id. Schaeffer than tells everyone that the troopers did
not execute a writ of assistance for Seth because of his bluff that they had
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3500 members in the militia ready to respond. Id. Schaeffer that raises his
concern that the militia does not have enough members to guard everyone‘s
home. Id. Ken Thesing believes that they need to prevent 2-for-1 by having
sufficient force; they shouldn‘t proceed but meanwhile they should keep
Schaeffer out of jail. Id. He believes Schaeffer should go to Israel. Id. Barney
states that only the ―three of us‖ would be implementing the plan and that
would quickly end; all the pioneering will be portrayed in the media as a
wacko effort and so would be futile. Id. Barney states that they should
concentrate on building their numbers. CI-1 interjects that he supports 2-for-1
and that ―we‖ need to figure out the logistics, what they are going to do, who
we are going to take, and where we are going to take them. Id. Schaeffer states
that the militia is not strong enough to execute 2-for-1 and that they need to
―bluff it, pray, and train.‖ Id. Schaeffer adds that they need to hit them with
paperwork and just lie low. ―I‘m not going to do a Rambo, I‘m going to do a
Gandhi.‖ Id.
On February 14, 2011 Schaeffer and the informant, CI-1, goes to the
home of Lonnie and Karen Vernon in Salcha; Schaeffer Cox and his family
are hiding out at the house. (15463-D17) CI-1 discusses that a bench warrant
has issued for Schaeffer‘s nonappearance at court. Id. Despite the meeting two
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days earlier of the militia command staff and its rejection of any 2-for-1
response to government intrusion, CI-1 again asks: ―Should we come up with
a game plan of what happens if they get you and they capture you and they,
for some reason they all of a sudden won‘t release you?‖ Id. Schaeffer‘s
response is ―just raise hell…t.v. and newspapers and Gandhi-type passive
aggressive shenanigans out the wazoo. Just be creative and aggressive.‖ Id.
Discussion then centers on how and where Schaeffer and his family should
leave the state. Id. CI-1 suggests a cabin in the Slana area. Id. Schaeffer tells
CI-1 that he needs to give a list of things to do to Jo Nichols, Schaeffer‘s
friend overseeing his home. Id. Schaeffer conveys that he wants to have some
bills paid by credit card and to place other ones on the desk. Id. Wants the
animals fed, follow–up with man fixing his truck, and explains that he‗ll place
some money into his account to make this feasible. Id.
On February 19, 2011 at a meeting among militia members regarding
the impact of Schaeffer‘s case now that a bench warrant has been issued,
Schaeffer complains of the Alaska Court System, as ―unscrupulous‖ and
―predatory‖ cops, the ―conniving aggression of tyrants,‖ and the ―decadent
complacency of people.‖ (15300-D11) Schaeffer expresses his concern for
the burden he‘s creating for the other militia members and states that he does
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not want to stop fighting for liberty and law but that everyone in the room
would share his fate. Id. He believes the best thing to do is to leave and
disappear. Id. CI-1 offers to give Schaeffer and his family a ride to a port
and/or airfield. Id. Schaeffer makes it clear that he doesn‘t want anyone else
being affected. Id. He feels he has to walk away from everything he owns
including the house. Id.
CI-1 asks what is he supposed to do if agents beat the door down and
take Schaeffer tonight. Id. CI-1 reinitiates discussion regarding 2-for-1 asking
if they come for Schaeffer and hold him in the cage is that the time to
implement 2-for-1. Id. Schaeffer does not answer him. Id. CI-1 persists and
states that he will not be able to communicate if he is in jail. Id. Schaeffer tells
him ―no‘‘ and that he is to contact Les Zerbe if something happens to him. Id.
CI-1 offers the help of a friend that he has with Alaska West; his friend
drives a trailer truck and that Schaeffer could load his stuff into an empty van
and have his wife and kids in the heated portion. Id. The informant adds that
the trucker would do this for $500. Id. The trucker, he explains, drives to
Alaska from the lower 48 and returns with an empty van; Schaeffer tells
Marty that he could run up to the house and load as many valuables as they
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can and be gone in a couple of days. Id. Schaeffer gives the nickname of Hans
Solo to the trucker. Id.
On February 26th, CI-1 told Schaeffer Cox that ―Hans Solo‖ would be
coming to Alaska in mid-week. (15300-D11) CI-1 explained that Schaeffer
and his family could hide in the top bunker of the truck because the border
guards do not check these if the truck driver has all his paperwork. Id. CI-1
further states that the driver knows about Schaeffer. Id.
CI-1 conveys that Lonnie said that ―they‖ might be interested in
silencers. Id. CI-1 said he was getting them from CI-2 who he states is a Class
3 dealer. Id. CI-2 only needs to know the ―twist‖ and caliber of the weapon
they want to put the silencer on. Id. Schaeffer says that he would ―like a
matched set of the suppressor with the ideal pistol for it.‖ Id. Further
discussion between the two results in Schaeffer trading his HK-93 (at a gun
shop) for the matched set from CI-2. Id. CI-1 agrees. Id.
On March 1, CI-1 tells Schaeffer that Hans Solo has broken down in
Whitehorse. (15300-D15) On March 4th, CI-1 again contacts Schaeffer and
tells him that Hans Solo had to go to Pump Station 2 (pipeline facility in
northern Alaska) Id. According to CI-1, Hans Solo will not be heading south
until Monday or Tuesday. (March 7th and 8th respectively.)
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On March 10th, CI-1 arranges to meet Lonnie and Karen Vernon at the
corner of Illinois and College. CI-1 expresses concern that the Vernons enter
CI-1‘s vehicle. (15300-D17) CI-1 gives Lonnie Vernon a gun case. Id. Lonnie
removes a handgun that is identified by CI-1 as a .22. Id. CI-1 offers the
handgun for $600 and two grenades for $150. Id. Vernon asks if the grenades
are ―smokers‖ and CI-1 replies they are the real deal and Karen states these
will do the job. Id. Shortly thereafter Karen and Lonnie are arrested by FBI
agents. Id.
CI-1 attempted an exchange of firearms and grenades with Francis
Schaeffer Cox and Coleman Barney. (15300-D17) Before embarking on this
he asks the supervising FBI agent if he should feign that he needs ―to take a
piss and stand by my front fender…so I‘m not right in the middle there in case
they start shooting.‖ Id. CI-1 relates to Cox and Barney that he did not receive
what he ordered from CI-2. Id. Schaeffer asks CI-1 if CI-2 can get them 9 mm
silencers. Id. CI-1 replies that they are 10-12 months out because they‘re
silencers. Id. CI-1 says he either has to pay CI-2 today or return the guns to
him. Id. Schaeffer, thinking they were there to meet the trailer truck driver,
Hans Solo, asks where the trailer is. Id. and (Aff. of FSC) CI-1 pointed at the
truck in the yard; CI-1 is asked by Schaeffer if the man standing nearby is the
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driver and CI-1 replies he is. Id. As CI-1 leaves the vehicle to get the guns,
Schaeffer tells Barney to not get his fingerprints on the guns because they are
going back to CI-2. Id. When CI-1 returns he hands a box of guns to Barney
and says ―check these sexy things out.‖ Id. Barney operates the slide of the
.22. Id. Cox was also given a box that has a handgun and silencer. Id.
Schaeffer looks around in the ammo box. Id. CI-1 then hands a grenade to
Schaeffer. Shortly afterwards a man is seen walking up to CI-1‘s vehicle who
ask what they are doing there because this was his property. Id. CI-1 points in
the direction where his truck is and says it‘s a flatbed; he asks why there is a
whole line of people with bullet proof vests looking over at them. Id. The
arrest is then done. Id. As the vehicle is being searched an agent, in an
astonished manner, states that there is a live grenade. Id.
II. ARGUMENT
THE GOVERNMENT HAS ENGAGED IN MULTIPLE
SUBSTANTIVE DUE PROCESS VIOLATIONS TO CHILL
AND/OR SILENCE THE FREE EXERCISE OF SPEECH BY
FRANCIS SCHAEFFER COX:
There Was No Legitimate Law Enforcement Purpose
In Electronically Recording, Investigating, And
Attempting Illegal Transactions With Francis
Schaeffer Cox In Response To Speech Critical Of
Government
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This case is not is not about drug trafficking; this case is not about
firearms trafficking. This case is about the trafficking of ideas that gave rise
to overreaching by the government for speech critical of the same. The
remedy for such is not under the Fourteenth Amendment of The United States
Constitution but under the Fifth Amendment. A showing that the government
engaged in ―conduct that shocks the conscience or interferes with rights
implicit in the concept of ordered liberty‖ must be made to assert a substantive
due process claim under the 5th Amendment. U.S. v. Batie, 433 F.3d 1287,
1293 (10th Cir.). The conduct of the government in this case violated this
standard by the following actions:
1. The reason for FBI and other law enforcement electronic
surveillance, investigation, and attempted illegal
transactions was strictly based on protected speech under
the First Amendment.
2. The government engaged in a protracted effort for
approximately 12 months to surveil Francis Schaeffer Cox
even though he had not been engaged in illegal
arms/destructive device conduct until the attempted
manufacture of evidence by the government on March 10,
2011.
3. Despite the government‘s assessment that there was no
crossing of the line between protected speech and
―actionable conduct‖ an investigation was nevertheless
begun.
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4. The government/FBI used CI-2 in the summer of 2010,
during a fundraiser at Far North Tactical (formerly called
Blondie‘s) and at a meeting at Pike‘s Landing the day
before, to provoke violent action. CI-2 stated he had
mobilized his men to go to war on Schaeffer‘s behalf
because Schaeffer was engaged in a dispute with the
Office of Child Services regarding his son. Schaeffer said
that the Alaska Peacemakers Militia would not attack the
government. CI-2 used Aaron Bennett, owner of Far North
Tactical to provoke Francis Schaeffer Cox, Schaeffer said,
―No‖ to violent action against the government when
confronted by Aaron Bennett at the fundraiser at Far North
Tactical.
5. Francis Schaeffer Cox went to the U.S. attorney‘s office
shortly after both events and disclosed that there were two
men trying to provoke violent conduct by the Alaska
Peacemakers Militia and that he was afraid that they might
do something stupid—engage in violent action.
6. In the early summer of 2010 Schaeffer Cox and his family
went to Ft. Wainwright seeking aid from the post
commander complaining that his life was endangered.
Federal agents, the same day, went to the Provost
Marshall‘s Office to ask for recordings of the encounter of
the Cox family and military officials. A military official
heard the agent say that he was aware OCS would be going
to Schaeffer‘s house and this would provoke Schaeffer
Cox into a confrontation with law enforcement and that
would give them a reason to take him out.
7. Francis Schaeffer Cox told CI-1, the government
informant, numerous times that the Alaska Peacemakers
Militia cannot attack the government. Despite a major
meeting on February 12, 2011 in which Schaeffer Cox
emphasized to the command staff of the militia that an
attack would be futile and that they should in effect be like
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Gandhi and not Rambo in their actions, the government
persisted with trying to get Schaeffer provoked.
8. Schaeffer repeatedly explained to CI-1 after being asked
by him what would happen if he got captured and whether
that would trigger ―2-for-1‖ that there was to be no
violence. Schaeffer emphasized that they were to go to the
media about their cause.
9. Schaeffer made it clear that while he did not want to
abandon the militia that it was best he leave the state
awhile. Schaeffer wanted to leave with his family. The
government kept saying through the informant that a ride
from a truck driver would be available. Delay upon delay
occurred with this. The government in fact did not want
him to leave and attempted to ensnare Schaeffer Cox into a
purchase of firearms and destructive devices.
10. Instead of arresting him as a fugitive, the government
continued to provoke Schaeffer Cox into violent action
through CI-1. CI-1 was specifically instructed to get the
grenades and firearms into the hands of Schaeffer Cox and
Barney Coleman on March 10, 2011. One agent believed
that one or more grenades were not inert.
11. CI-1 misled Schaeffer Cox into thinking that on March 10,
2011, they were going to the trailer truck to meet the driver
and to make arrangements to pick his possessions and
transport him and his family to the Lower 48.
12. The government engaged in retaliatory action against Cox
because his speeches were extremely critical of
government and not because he was engaged in ongoing
criminal conduct.
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The government, under United States v. Aguilar, 883 F.2d 662, 705 (9th
Cir. 1989) is allowed to use undercover informants to investigate an
organization engaged in protected first amendment activities with two
limitations:
1. the government investigation must be conducted in good faith;
not for the purpose of abridging first amendment freedoms; and,
2. the first amendment requires that the undercover informers
adhere scrupulously to the scope of the defendant‘s invitation
to participate in the organization.
When First Amendment rights are threatened by executive branch
investigations, the court in United States v. Mayer, 503 F.3d 740, 751-752
(9th
Cir. 2007) made clear that the investigation must ―serve a legitimate law
enforcement interest.‖ The Mayer court relied specifically on the events
discussed in Handschu v. Special Servs, 349 F.Supp.766 (S.D.N.Y. 1972).
There law enforcement had improperly infiltrated antiwar groups and the
court found that ―the alleged conduct of the undercover officers groups
creating internal dissent within the groups by suggesting criminal conduct and
providing funds and equipment to further that purpose—would not have been
justified by any law enforcement need.‖ Mayer at 752 relying on Handschu,
349 F.Supp. at 770. The court in Mayer ruled that an undercover operation
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into an organization (North American Man/Boy Love Association) whose
purpose was to oppose ―restrictions which deny men and boys the full
enjoyment of their bodies,‖ and where the agent was asked as part of his
membership to send holiday cards to sex offenders, make contact with a
member of the organization‘s steering committee who was a registered sex
offender, attend the conference while wearing a recording device, and suggest
the formation of a travel group to different destinations to meet boys clearly
met a legitimate law enforcement purpose. The court noted that at the
conference the agent engaged members of the organization in discussion of
past and future criminal conduct and how to avoid detection. The court held
that the legitimate law enforcement objectives outweighed any harm to
First Amendment interests and accordingly, the infiltration was not unlawful.
Mayer at 753.
The government in this case did not have any report of unregistered
firearms or destructive devices unlawfully used or possessed by Francis
Schaeffer Cox. Its attention to Schaeffer Cox were speeches that were
inscribed in concrete in the offices of the FBI: he had advocated that
government would collapse through its own self-destruction and that chaos
and tyranny would ensue; and, that the citizenry must form militias to protect
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their families from unjustified government intrusion that would cause harm to
them. That theme resonated in his speeches and repeated numerous times; he
also expressed the functions of the economy and its impending collapse. He
repeatedly warned that you don‘t try to kill a wounded bear.
Internal memoranda of the FBI clearly indicate that some persons were
concerned with his speeches and that they construed that he advocated the
overthrow of the government with violent means and concern for a growing
national audience. His speeches clearly upon review—The Solution and
Trouble In Fairbanks—did not support that and was noted by the AUSA that
he had not crossed the line between protected speech and actionable conduct.
This was observed in April of 2010, yet investigations were ongoing from
February 16, 2010 through to August 2010. (See, Exh.1). The government‘s
document trail is contradictory, plain and simple, and shows a clear intent to
abridge the first amendment rights of Francis Schaeffer Cox.
The First Amendment provides:
Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or
abridging the freedoms of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievance. U.S. Const.
First Amendment.
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As Justice Brennan so cogently stated in Texas v. Johnson, 491 U.S.
397,414-415 (1989) the purpose of the First Amendment:
If there is a bedrock principle underlying the First Amendment,
it is that the government may not prohibit the expression of an
idea simply because society finds the idea itself offensive or
disagreeable.
And, more than 60 years ago Justice Douglas made clear:
A function of free speech under our system of government is to
invite dispute. It may indeed best serve its high purpose when it
induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger. Speech is
often provocative and challenging. It may strike at prejudices and
preconceptions and have profound unsettling effects as it presses
for acceptance of an idea. That is why freedom of speech, though
not absolute, is nevertheless protected against censorship or
punishment, unless shown likely to produce a clear and present
danger of a serious substantive evil that rises far above public
inconvenience, annoyance, or unrest. There is no room under our
Constitution for a more restrictive view.
Terminiello v. City of Chicago, 337 U.S.1, 4-5 (1949) (internal citations
omitted).
The rise in litigation regarding the scope and meaning of the first
amendment began with the ―clear and present danger‖ test enunciated by
Justice Holmes in Schenck v. United States, 249 U.S. 47, 52 (1919) where a
defendant distributed pamphlets that urged resistance to the draft, encouraged
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insubordination in the military, and renounced the war effort (World War I).
Justice Holmes upheld the conviction stating:
We admit that in many places and in ordinary
times the defendants, in saying all that was said in
the circular, would have been within their
constitutional rights. But the character of every
aspect depends on the circumstances in which it is
done. The most stringent protection of free speech
would not protect a man in falsely shouting fire in
a theater, and causing panic…
The question in every case is whether the words
used are used in such circumstances and are of such
a nature as to create a clear and present danger that
they will bring about the substantive evils that
Congress has a right to prevent. It is a question of
proximity and degree. When a nation is at war
many things that might be said in time and peace
are such a hindrance to its effort that there utterance
will not be endured so long as men fight and no
Court could regard them as protected by any
constitutional right (emphasis added).‖
Not long after the false cry of fire in the theatre reference in his clear and
present danger analysis Justice Holmes made an equally famous contribution
to the modern approach to ―incitement‖ in his dissent in Abrams v. United
States, 250 U.S. 616 (1919). Justice Holmes argued while the government‘s
power to punish speech is greater in wartime, ―it is only the present danger of
immediate evil or an intent to bring it about that warrants Congress in setting a
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limit to the expression of opinion where private rights are not concerned.‖
Abrams, at 627-628. Abrams was a Russian immigrant who had escaped
czarist Russia and who later distributed thousands of leaflets and calling for a
general strike to protest U.S. policy toward the Bolsheviks who seized power
in their motherland in 1917. Holmes‘s dissent not only called for suppressing
speech that created the danger of ―immediate evil‖ but for an understanding
that the ―ultimate good desired is better reached by free trade in ideas—that
the best test of truth is the power of the thought to get accepted in the
competition of the market and that truth is the only ground upon which their
wishes can be safely carried out.‖ Id. at 630. As one commentator pointed
out, ―Justice Holmes established the famous ‗marketplace of ideas‘ rationale
of the First Amendment, a theory that would later become central to the
Supreme Court‘s jurisprudence.‖ Elisa Kantor, ―New Threats, Old Problems:
Adhering To Brandenburg‘s Imminence Requirement In Terrorism
Prosecutions,‖ 76 Geo.Wash.L.Rev 752, 758 (2007-2008).
While in Whitney v. California, 274 U.S. 357 (1927) Justice Brandeis
upheld a statute because ―advocating violent means to effect political and
economic change involves such danger to the security of the state that the
state may outlaw it‖ he laid further groundwork for the modern adaption of
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free speech law in the seminal case of Brandenburg v. Ohio, 395 U.S. 444
(1969). In a concurring opinion affirming the conviction Justice Brandeis
argued that ―the necessity which is essential to a valid restriction does not
exist unless speech would produce, or is intended to produce, a clear and
imminent danger of some substantive evil. Whitney at 373. In eloquent terms
expressed the significance of the ―marketplace of ideas‖ stating:
Those who won our independence believed …that freedom to
think as you will and to speak as you think are means
indispensable to the discovery and spread of political truth; that
without free speech and assembly discussion would be futile;
that with them, discussion affords ordinarily adequate
protection against the dissemination of noxious doctrine; that
the greatest menace to freedom is an inert people; that public
discussion is a political duty; and that this should be a
fundamental principle of American government. They
recognized the risks to which all human institutions are subject.
But they knew that order cannot be secured merely through fear
of punishment for its infraction; that it is hazardous to
discourage thought, hope, and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity to
discuss freely supposed grievances and proposed remedies; and
that the fitting remedy for evil counsel is good ones. Id. at 375.
Id. at 375.
A statute in Ohio that had the same effect as the California statute in
Whitney was held unconstitutional in Brandenburg v. Ohio, supra. In
Brandenburg a Ku Klux Klan leader who had stated during a rally that ―the
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nigger should be returned to Africa‖ and that ―if our President, our Congress,
our Supreme Court, continues to suppress white, Caucasian race, it‘s possible
that there might have to be some revengeance taken‖ was convicted under a
statute that made it unlawful to advocate ―the duty, necessity, or propriety of
crime, sabotage, violence, or unlawful methods of terrorism as a means of
accomplishing industrial or political reform.‖ Id. at 447. The court in a per
curiam opinion said:
...later decisions have fashioned the principle that
the constitutional guarantees of free speech and
free press do not permit a state to forbid or
proscribe advocacy of the use of force or of law
violation except where the advocacy is directed to
inciting or producing imminent lawless action and
is likely to incite or produce such action. Id.
With the Brandenburg decision, the Supreme Court, fifty years later, adopted
the reasoning of Holmes in his dissent in Schneck and Brandeis in his
concurring opinion in Whitney.
The government in this case did not pass a statute to suppress the free
speech of Francis Schaeffer Cox; here, instead, they engaged in a number of
acts whose result was to accomplish the same and did so without a legitimate
law enforcement purpose. Justifying their extensive electronic surveillance,
usage of an informant to ―infiltrate‖ Schaeffer Cox, constant manipulation of
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him to physically attack the government, actively ignore Schaeffer Cox‘s
expressed rejection of warfare, actively try to manipulate him to stay
longer—not depart—so as to engage him in some form of criminal activity,
persist with surveillance even where two Assistant U.S. Attorneys were aware
Francis Schaeffer Cox had not crossed any line into wrongful actionable
conduct, encouragement of a confrontation with law enforcement over a
dispute with state authorities over his son, and after an emphatic rejection on
February 12, 2011 by the Alaska Peacemakers Militia command staff‘s
rejection of an attack urged by one of the informants renewed efforts for him
to commit violence; and, attempt to have him handle destructive devices and
firearms to manufacture a crime. This does not just shock the conscience; the
government has clearly demonstrated it has none.
Schaeffer Cox was the subject of an investigation of a FBI domestic
terrorism unit because his speeches against the government were vituperative.
His speeches did not encourage the overthrow of the government; even so,
this would be protected under the current First Amendment jurisprudence
under Brandenburg. The concern for domestic security because of his
speeches did not even cross the line of protected speech and actionable
conduct as to two Assistant United States Attorneys. Why was such an
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investigation/surveillance/infiltration begun and sustained beyond the initial
monitoring? This was an excessive abuse of the executive authority of the
government.
Judge Skelly Wright explained the potential for abuse and concomitant
fears that arise with the excesses attributed in the name of national security:
Over the past several years there has been increasing
anxiety and increasing litigation concerning actions with
the Executive Branch of our Government has undertaken
under the rubric of ‗national security.‘ Undoubtedly the
President, our Chief Executive and Commander–in–Chief
of our Armed Forces, is imbued by the Constitution with
vast and indispensable powers for dealing with the vital
problems generated by our relations with foreign powers,
including the duty to protect this country from foreign
aggression or subversion. The very existence of such
tremendous power, however, renders it susceptible to
abuse and endangers those fundamental personal liberties
which the government was instituted to secure for its
citizens and whose exercise elevates the nation to a stature
worthy of defense. Thus, although the attempt to claim
Executive prerogatives or infringe liberty in the name of
security and order may be motivated by the highest ideals,
the judiciary must remain vigilantly prepared to fulfill its
own responsibility to channel Executive action within
constitutional bounds. The present case embodies this
problem in a particularly acute form, since we are faced
with the delicate and difficult task of reconciling the
President‘s asserted power to obtain foreign intelligence
information through use of electronic surveillance with
the citizen‘s cherished right to maintain his privacy and
associations inviolate against unreasonable intrusion.
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Zweibon v. Mitchell, 516 F.2d 594, 604-605 (D.C. Cir. 1975).
Schaeffer Cox lived that anxiety so meaningfully stated by Judge
Wright. Schaeffer Cox planned to leave the state; his plan was to lie low and
not make speeches or engage in any functions of the Alaska Peacemaker‘s
Militia because his fear of a confrontation with the Federal Government as
well as state government. The government‘s surveillance of Schaeffer Cox
was a collaborative effort of Federal and State Government.
Justice Brandeis‘s warning in Whitney that fear breeds repression has been
heard loud and clear in this case. The government did not have a legitimate
law enforcement purpose in the infiltration, recording, and manipulation of
Francis Schaeffer Cox and silenced his ability to share his ideas for change
envisioned by the Alaska Peacemakers Militia. Geoffrey Stone, a legal
historian, in his book, Perilous Times, describes the purpose and peril the First
Amendment faces:
A related, but slightly different, theory regards the
constitutional protection of free speech as indispensable to the
maintenance of a political and intellectual environment in
which individuals can develop the capacity to deal with sharp
differences of opinion, perspective, and understanding. By
allowing for ambiguity and conflict in the public sphere, the
First Amendment promotes the emergence of character traits
that are essential to a well-functioning democracy, including
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tolerance, skepticism, personal responsibility, curiosity, distrust
of authority, and independence of mind.
The First Amendment may also help check the danger of public
officials will attempt to manipulate public discourse in order to
preserve their authority. This is one of the greatest threats to
democracy. Ordinarily, constitutional law presumes that
governmental official will fulfill their responsibilities in good
faith and that their actions are constitutionally permissible.
Without such a presumption, government would come to a
standstill.
Stone, Geoffrey, Perilous Times: From the Sedition Act of 1798 to
the War on Terrorism, p.7-8, 1st Edition 2005.
The greatest threat to our democracy is the notion that we are not
diverse politically, economically, religiously, and culturally. Excluding
Francis Schaeffer Cox from active participation in the Alaska Peacemaker
Militia through electronic surveillance, FBI driven manipulation, and
continuous disregard for his admonitions against aggression, removes him
from the table of discourse with those of countervailing ideas. The First
Amendment applies in times good and bad regardless whether controversy
boils and war is afoot. Francis Schaeffer Cox has been muzzled by the
government‘s bad faith and failure to follow its own protocol regarding
protected speech and actionable conduct. There was no legitimate law
enforcement purpose in conducting the investigation that was done in this
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case. If we are afraid of divergent thought and beliefs then we should resign
ourselves to a stagnant, homogenized, and undemocratic United States.
Thomas Emerson, in his classic legal work on the freedom of expression,
Toward A General Theory Of The First Amendment, p.81 (1966) said this
eloquently:
…it may safely be assumed that the framers of the First
Amendment, in adopting the solution embodied in that
provision, were making a deliberate choice on the basis
of prolonged consideration and direct doctrine that
expression must be given full protection and only what
may reasonably be called action be subject to restriction.
III. CONCLUSION
The government recognized it had no basis to conduct electronic
surveillance, infiltrate, and manipulate activity of Francis Schaeffer Cox and
the Alaska Peacemaker‘s Militia. The government lacked good faith since
there was no legitimate law enforcement purpose in the extensive surveillance
and high risk manipulation it engaged in this case. The conduct of the
government shocks the conscience and/or interferes with substantive due
process under the Fifth Amendment and as a consequence, chilled the First
Amendment right to the free exercise of speech of Francis Schaeffer Cox.
The indictment should be dismissed.
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LAW OFFICE OF NELSON TRAVERSO
11/14/2011 s/ Nelson Traverso
Date Attorney for Francis Schaeffer Cox
CERTIFICATE OF SERVICE
I certify that on November 14, 2011, a copy of
the foregoing is being served electronically on:
AUSAs J. Bottini & S. Skrocki
M.J. Haden
T. Dooley
11/ 14/2011 s/P. K. Fenton ___ .
Date Law Office of Nelson Traverso
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