L. Neil Smith’s THE LIBERTARIAN ENTERPRISE
Number 923, May 21, 2017
Conspiracy convictions in Bundy standoff? Not a one
by Vin Suprynowicz
Special to L. Neil Smith’s The Libertarian Enterprise
A federal judge in Las Vegas declared a mistrial April 24 in the case of four men accused of taking up arms against federal agents during the Bundy Ranch standoff in 2014, The Associated Press reports.
A jury convicted two defendants—one a long-time FBI informant—on multiple counts but could not reach any unanimous verdict against the other four, despite a thicket of dozens of overlapping charges.
U.S. District Court Judge Gloria Navarro—appointed by Barack Obama in 2009 after being nominated by Sen. Harry Reid, who swore vengeance on the Bundys after the BLM suffered an ignominious defeat at the standoff and slunk away with their tails between their legs—said the four men will be re-tried June 26, the same day Bundy; his eldest sons, Ammon and Ryan Bundy; and two other defendants are scheduled for trial.
Though as a practical matter, prosecutors may first try to find out how far away from a conviction they stood, the first time around.
In all, 17 defendants have been charged in the Bunkerville cattle-rustling standoff (see my http://www.rangemagazine.com/features/fall-14/range-fa14-sr-patterns_of_harassment.pdf), which pitted cattle ranchers, pro-land-rights protesters and militia members against the Bureau of Land Management and well-armed federal soldiers who wore desert uniforms and military Kevlar helmets but ominously) showed no distinguishing insignia. (Federal agents with combat rifles in full combat gear deploy inside one of the several states, and we’re not even supposed to know for which agency they work, let along their names?)
The Las Vegas jury did not convict any defendants on conspiracy charges—“viewed as a huge blow to government prosecutors who built the case to pivot on two counts of conspiracy,” even the pro-BLM Associated Press admits.
Gregory Burleson of Arizona—the government informant, as reported by the Las Vegas Review-Journal on March 22—was convicted on eight charges, including threatening and assaulting a federal officer, obstruction, interstate travel in aid of extortion, and brandishing a weapon. Burleson had told a video crew after the standoff that he had come to the Bundy Ranch to kill federal agents. But the “video crew” turned out to be made up of FBI agents who were lying about their true identities, thus creating an enormous chilling effect on America’s cherished freedom of the press.
(“If you think every reporter you meet could be an agent of law enforcement, it really has an immediate impact on any journalist coming to try and cover that story,” Gregg Leslie, legal defense director of the Reporters Committee for Freedom of the Press, explained to England’s Guardian newspaper.)
Early in the trial, FBI Agent Michael Caputo and FBI Agent Adam Nixon took the stand and revealed—though it’s not clear if they originally intended to do so—that Burleson has been an FBI informant since 2012 and had worked with the FBI on other cases prior to the Bunkerville Protest.
Yet, as one of the “defendants,” Burleson had access to all pre-trial conferences and defense discussions—meaning all defense plans and strategies would presumably have been available to the FBI and the prosecution, as well … surely the kind of matter an appellate court might want to look at.
(The other defendant convicted, Todd Engel of Idaho, was found guilty of obstruction and interstate travel in aid of extortion.)
LAND THAT WASHINGTON DOES NOT OWN
Over a period of decades, the BLM repeatedly ordered Bundy to remove his cattle from his ranch, contending the ranch is federal land.
But the U.S. Constitution allows the federal government to own and wield exclusive legislative authority over the District of Columbia and, within the several states, only those “places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards and other needful buildings.”
And the federal government can show no Act of the Nevada state Legislature (which came into being in 1864) authorizing a federal purchase of the land on which the Bundy family graze their cattle, nor any Bill of Sale for that acreage, nor any record of federal property tax payments to Clark County (which they would owe if they were land-owners), nor any “forts, magazines, arsenals, dockyards and other needful buildings” which they have erected in the area, or which they PLAN to erect and need all that land to erect.
In fact, the only federal plan for the land is to block off with logs and boulders all the dirt roads and declare it “wilderness” and “tortoise habitat”—when in fact government agents have been euthanizing desert tortoises in Las Vegas (claiming as many as 40 percent of those turned in as required by law were “sick” and “had to be put down”!) because they have such a surplus of the creatures that they can no longer afford to operate the huge “shelters” established for this purpose!
See http://articles.latimes.com/1991-08-30/news/mn-1258_1_desert-tortoise , or my https://www.reviewjournal.com/opinion/save-the-habitat-kill-the-turtles/ , or https://www.reviewjournal.com/local/local-nevada/las-vegas-tortoise-gulag-paroles-last-inmates/.
In other words, the land on which Bundy grazes his cattle is NOT federal land; the federal government has NOT purchased it, has never paid taxes to the state or county on it—nor do they propose any use for it which would be anywhere near as productive as the Bundy cattle ranch—facts which the Harry Reid appointee sitting on the bench in this case refused to let the jury hear.
Furthermore, ranchers enter into “grazing permit” arrangement with the federal government on land where said ranchers own the grazing rights (adjudicated by the state government, which has recognized Bundy’s grazing rights for decades) only voluntarily, and had Bundy remained in such an arrangement he would surely have been put out of business long ago, as the BLM has quite purposely put out of business EVERY OTHER ONE of the 50 ranching families who ran cattle on so-called “federal allotments” in Clark County at the end of World War Two, by forcing them to take their cattle off the land in the spring, the only season when cattle can be fattened on wild lands in the arid West.
That’s why the “more than $1 million in unpaid grazing fees” which the federals claim Bundy owes is only an ever-changing estimate. No fixed figure can be assessed pursuant to any “grazing fee and permit” arrangement, since Bundy has not participated in any such arrangement for decades, nor can the federal government mandate such an arrangement, since they do not own the land, they have no power to force him to sign anything, and imposing such a financially crippling “agreement” without his consent would bankrupt the ranch within a year and thus constitute a “taking without just compensation”—illegal under both Nevada and federal law.
So the Bundy family famously issued their social-media battle cry. In the spring of 2014 (the worst possible time for the BLM to arrange to round up his cattle, since mortality of newborn calves was certain), hundreds of supporters from around the nation, including members of several militia groups, converged on the ranch about 70 miles east-northeast of Las Vegas.
After the BLM abandoned the roundup, Cliven’s sons Ammon and Ryan Bundy traveled to Oregon to draw attention to the plight of another ranching family—the Hammonds—facing a similar pattern of federal harassment and assault. The Bundy brothers and their companions were arrested while camping in the seasonally abandoned headquarters building of a federal wildlife refuge. But an Oregon federal jury acquitted Ammon, Ryan and five others there in October after arresting officers shot and killed one of their companions, LaVoy Finicum, in an inept ambush scheme—a death in which no government agents have faced charges.
(See http://www.seattletimes.com/seattle-news/crime/verdict-near-in-malheur-wildlife-refuge-standoff-trial/ , … or … https://www.washingtonpost.com/news/morning-mix/wp/2016/11/04/a-colossal-failure-by-prosecutors-juror-defends-verdict-in-oregon-standoff-trial/?utm_term=.e2c52f2c4016 , … or … http://www.rangemagazine.com/features/summer-16/range-su16-sr-patterns_of_harassment.pdf.)
No arrests were made in the Bundy Ranch case until after the Oregon siege ended, the wire service notes.
The BLM whine that they abandoned their roundup of Bundy’s cattle from his ranch because they were afraid, federal prosecutors told the Las Vegas jury. They said law enforcement officers were surrounded and outgunned in a dusty arroyo beneath Interstate 15 where they had penned the cattle.
Of course, this contradicts statements that a BLM spokesman made that day, that they were preparing to release the cattle within hours—lending credence to what the Bundy family told me, that they believe the BLM was simply lying and stalling for time while waiting for reinforcements from Las Vegas—reinforcements that never arrived.
Furthermore, since no one would agree to sell the BLM feed for their rustled cattle, or to illegally haul their rustled cattle over state lines, it’s clear the federals faced other urgent reasons to act before their rustled cattle started simply dropping left and right.
At trial, defendants said they were moved to join Bundy after seeing internet images of officers throwing an elderly woman to the ground, setting dogs on one of Bundy’s sons, and shocking protesters with a stun guns, the AP reports.
No information was presented in court to explain what led prosecutors to file charges against these six men alone, out of the hundreds of protesters at the Bundy Ranch.
CONSTITUTION NOT ALLOWED IN HER COURTROOM
“Defense lawyers attempted to cast the case as a constitutional issue and said their clients were exercising their First Amendment right to assemble and Second Amendment right to bear arms,” The Associated Press reports. But Judge “Navarro would not allow the defense to argue about constitutional protections to the jury,” according to The AP.
Navarro also prevented the defense from calling a string of witnesses to testify about what happened in the run-up to the standoff, ruling they could only testify about what happened on the final day of the standoff—kind of like putting our B-29 bomber crews on trial for the “unjustified and inhumane” nuclear bombing of Japan in 1945, while forbidding any defense testimony about Pearl Harbor, the Rape of Nanking, or any of the rest of the behavior of the Japanese armed forces from 1937 through July of 1945.
“That left lawyers chipping away at the conspiracy charges, which make up the core of the government’s case,” The AP reports. In other words, they were left with no real defense other than seeking “to establish the six men acted independently from one another and without coordination from the Bundys.”
There’s an easy solution to this kind of railroad job.
If today’s “conservative, constitutionalist” Republican Congress were worth a fraction of what we pay them in salaries, benefits and bribes (pardon me, “campaign contributions”) they would simply enact a law declaring that, since no criminal statute is valid unless it’s Constitutional—and every adult American is fully qualified to read and comprehend the Constitution (else it would be void for incomprehensibility and the government would have to disband)—no judge in America may bar the defense in any case from citing the language of the Constitution and its Bill of Rights as an element of the defense to a jury at trial, along with citations from the Federalist Papers and other documents clarifying what the Founders meant by these provisions, and that if any judge can be shown to have barred a defendant or his or her attorneys from free use and verbatim citation of these vital safeguards of our liberties to impeach the validity of the law on trial (for in any criminal trial, the law is on trial as much as the defendants), such judge shall be removed from his or her bench within 48 hours, and his or her pay and benefits shall be permanently ended.
Whereupon such former judge shall be brought before the first available grand jury, which shall consider whether such former judge shall be stripped of his or her law license, and/or indicted for treason and depriving a citizen of his or her civil rights under color of law.
Why is this important?
The Las Vegas defendants argued they were exercising their constitutional rights of free speech and weapon possession. Prosecutors replied it’s illegal to brandish “assault-style weapons” against armed federal agents.
(Really? Could someone cite me the federal statute against “brandishing”? I know you can be charged with such an offense under STATE statutes, but this matter is not in a state court—federal courts can consider only alleged violations of FEDERAL statutes. Besides, “brandishing” a firearm at someone is a crime because it’s an act designed to instill fear. Didn’t the federals enter into evidence photographs of at least one of the defendants lying prone and positioning his rifle between Jersey barriers on a highway overpass? If he could not at the time be seen by any federal agents far below, then he was not “brandishing.”)
Secondly, “assault-style weapons” is an absurd construction, designed to confuse. Assault weapons are—and have been since 1942 or ’43—short rifles firing a cartridge of intermediate size and power, with a selector switch capable of switching them from semi-automatic to full-automatic fire. Period.
There were plenty of real assault weapons present in the final days of the standoff in Bunkerville. But none were possessed by the cowboys—every single one of them was in the possession of a government agent or sniper, who brought plenty and POINTED THEM AT THE COWBOYS IN PLAIN SIGHT, which the federals define as “brandishing.”
So why are none of those federal agents on trial?
In Federalist No. 46, published Jan. 29, 1788, by the Father of the Constitution, James Madison, under the pseudonym Publius, the president-to-be sought to assure skeptics (led by the great Patrick Henry, who turns out to have been right, very right) that the people need never fear being stared down by armed federal forces sent into their states to intimidate them or endanger their free use of their own lands and property. Why?
Madison promises that, at any point, the maximum force that can be brought to bear by the government to enforce its mandates is but a small fraction (5 percent) of the might of THE MILITIA. He writes:
THE PROMISE: ‘A MILITIA … OF CITIZENS WITH ARMS IN THEIR HANDS’
“Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger.
“The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms,” Madison calculates. (Understand that he was basing his argument on a national population of about 4 million — 1.3 percent of today’s 320 million.)
“This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.
“It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it.”
Americans need never fear federal tyranny because they have “the advantage of being armed, which the Americans possess over the people of almost every other nation,” Mr. Madison added.
Does that sound like the Father of the Constitution thought it should be “illegal to brandish assault-style weapons against armed federal agents” if they came into our states to attempt to take our land and cattle, which they do not own?
What did he intend his readers to envision that “militia amounting to near half a million citizens” doing with those “arms in their hands”? Shoving them up their own butts?
Does it sound like the father of the Constitution believed federal judges should be allowed to forbid defense attorneys from placing copies of said Constitution with its Bill of Rights in the hands of every juror, reading it aloud in the courtroom and explaining how its guarantees of liberty and restrictions on federal power apply to the case and the charges and the statutes at hand?
Or is it more reasonable to assume that retaining the power to act the way the cowboys acted in Bunkerville is precisely the reason we were guaranteed that the central government could never “infringe our right to keep and bear arms”? And that “making the BLM agents afraid” to steal anyone’s cattle—making them slink away in humiliation—is precisely what James Madison was telling us the militia was expected to do, and would be allowed to do?
The only reason the government needs to keep all the facts of a case like this from a jury is because they’re afraid of what the public will do to these arrogant, strutting popinjays when they find out the whole truth.\
Vin Suprynowicz was for 20 years a columnist and editorial writer at the daily Las Vegas Review-Journal. He blogs at www.vinsuprynowicz.com. This article reprinted from https://www.vinsuprynowicz.com/?p=5174
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