Schaeffer Cox Denied Motion

Memorandum

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

Case 3:11-cr-00022-RJB Document 126 Filed 11/15/11 Page 1 of 47

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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


Memorandum

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


Memorandum

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


Memorandum

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


Memorandum

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


Memorandum

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


Memorandum

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


Memorandum

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


Memorandum

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


Memorandum

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


Memorandum

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


Memorandum

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.


Memorandum

(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)


Memorandum

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


Memorandum

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


Memorandum

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


Memorandum

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


Memorandum

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.)


Memorandum

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


Memorandum

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


Memorandum

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.


Memorandum

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


Memorandum

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.


Memorandum

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


Memorandum

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


Memorandum

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.


Memorandum

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


Memorandum

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


Memorandum

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


Memorandum

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


Memorandum

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


Memorandum

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


Memorandum

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.


Memorandum

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


Memorandum

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


Memorandum

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.


Memorandum

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


Schaeffer Cox Denied Motion

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