By Gary Hunt ——Bio and Archives--January 12, 2017
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The United States of America, by Billy J. Williams, United States Attorney for the District of Oregon, and through Ethan D. Knight, Geoffrey A. Barrow, Craig J. Gabriel, and Pamala R. Holsinger, Assistant United States Attorneys, hereby submits this supplemental memorandum in support of the Government's Motion to Enforce Protective Order. On January 6, 2017, the government filed a Motion to Enforce Protective Order seeking an order from this Court enjoining third party Gary Hunt from further dissemination of discovery materials subject to this Court's March 4, 2016, Protective Order. The Motion was supported by the Affidavit of FBI Special Agent Ronnie Walker. On January 9, 2017, this Court directed the government to file a supplemental memorandum addressing the following issues:Well, I suppose they could be, at once, be paying attention and not paying attention. The Cease and Desist letter stated, "dissemination and publication of any excerpts of that material". To which I responded in "Freedom of the Press #2 - Cease and Desist", when I wrote, "Holsinger has added a new twist by separating 'dissemination' from 'publication of any excerpts' with an 'and', making them separate and distinct elements. However, the Order only addresses dissemination." So, we are back to dissemination. Readers will recall that I have consistently stated that I was "excerpting, not disseminating". Of course, I first drew that distinction back on October 15, 2016, in "Burns Chronicles No 40 - Allen Varner (Wolf)". So, are there two elements, each different from the other, as in the Letter, or, only one element, as in the Protective Order? Again, we must look at the letter of the law, and not what some government attorney wants it to be, at any given moment. This is what Judge Brown has ordered the US Attorney to address.
I. The Court Has Authority to Enforce Its Own Lawful Orders This Court has authority to enjoin the actions of non-parties under the existing terms of the protective order when those non-parties aid and abet parties to violate the court's order. See, e.g., Reebok Int'l Ltd v. McLaughlin, 49 F.3d 1387, 1390 (9th Cir. 1995) (noting that courts have authority and subject matter jurisdiction to punish contemptuous violations of its order, citing 18 U.S.C. § 401); Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y, 774 F.3d 935, 948 (9th Cir. 2014) (organization that aids and abets a party's violation warrants contempt). This rule makes sense because it seeks to correct both direct and indirect or circuitous violations of this Court's orders. To permit a party to publicly disseminate material subject to this Court's Protective Order simply by transferring it to a non-party would violate the Order no less starkly than if the party posted the material on a public website himself.From the "Background Facts", in Reebok Int'l Ltd v. McLaughlin, we find:
Reebok International Limited brought suit against Byron McLaughlin for violations of the Lanham Act in allegedly counterfeiting Reebok footwear. Mr. McLaughlin controlled various corporations, including the Heatherdale Corporation. As a result of the lawsuit, Reebok obtained a temporary restraining order in the district court which enjoined "the defendants and their officers, servants, employees and agents and any persons in active concert or participation with them" from "transferring, disposing of, or secreting any money, stocks, or other assets of these defendants without prior approval of the court."Well, that does remind me of the constitutional authority granted under the Commerce Clause, and it is understandable that this clause would also extend to all of the federal jurisdictions of the United States. But, heck, we are not talking about a constitutional law under the Commerce Clause; we are talking about a jurisdictional order within in a specific jurisdiction, to wit, District of Oregon. So, let's look at Cetacean Research v. Sea Shepherd Conservation Soc'y. Now, from the "Factual and Procedural Background" of that decision:
The International Convention for the Regulation of Whaling, to which the United States, Japan, and 87 other nations are signatories, authorizes whale hunting when conducted in compliance with a research permit issued by a signatory. See Int'l Conv. for the Regulation of Whaling, art. VIII, § 1, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 74.Well, it is not Mexico, it is Japan. And, it appears that the President and the Senate have the authority to treat (make treaties) with other nations, which is a constitutional grant that is binding on all signatory whalers. However, it does not apply to whiners, only whalers. So, I think they missed the mark, once again. Now to that last point made in the Memorandum paragraph, above, I find it rather intriguing, though perhaps a bit circular in its application. It says, "To permit a party to publicly disseminate material subject to this Court's Protective Order simply by transferring it to a non-party would violate the Order no less starkly than if the party posted the material on a public website himself." What was just stated is on point to what I have said. It is the person subject to the Order that would be guilty of transferring it to a non-party. It says nothing about any guilt associated to the non-party. This leaves us with the classic question, "Where's Waldo?" Surely, they do not think that I am Waldo, or they would have said so.
In addition, Hunt did receive advance notice of this Court's Order and, as explained in Agent Walker's Affidavit in Support of Motion to Enforce Protective Order (ECF No. 1681), Hunt recognized this Court's Order but refused to follow it, incorrectly believing that it did not apply to him. The contemptuous postings, however, make clear that the material Hunt now holds is material subject to this Court's Protective Order and that Hunt has disseminated that information in contravention of this Court's Order. Hunt's stated reason for "outing" the CHSs is so they can serve as defense witnesses at the next trial. The reasons undergirding this Court's Protective Order--i.e., a need to protect the informants from harm--justifies immediate relief in the form of an injunction directing Hunt to remove all contemptuous postings immediately. In addition, the need for immediate relief is supported by Agent Walker's supplemental affidavit filed in support of this supplemental memorandum, which suggests that Hunt's contemptuous activities are ongoing. In a Facebook post regarding the FBI's February 5, 2017, visit to Gary Hunt to serve the cease and desist letter, a person asks "who is Gary Hunt?" On defendant Duane Ehmer's Facebook account a response is posted, "He is working with our lawyers."
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In a Facebook post regarding the FBI's February 5, 2017, visit to Gary Hunt to serve the cease and desist letter, a person asks "who is Gary Hunt?" On defendant Duane Ehmer's Facebook account a response is posted, "He is working with our lawyers."Now, I have known Duane Ehmer since January 27, 2016. That is really an easy date to remember, as the only act of violence in this whole ordeal was the murder of LaVoy Finicum, the day before, at the hands of agents of the government. However, I have spoken with Duane. Why he said what he did is beyond me. Perhaps he wanted to act as if he had inside information. However, where we should be looking is at SA Ronnie Walker, who prepared the Affidavit. So, the real question is, "Is the FBI incapable of contacting Duane Ehmer?" If so, why didn't they get corroboration, elsewhere, as to the veracity of his statements. Have they learned to accept as fact statements on Facebook? If so, the hundred million dollars that they have spent on this persecution is just lining pockets, and not serving justice. For the record, I have never spoken with any of the defense attorneys or investigators in this case. The closest I have come to that is speaking with some of the defendants. However, I have heard that the defense attorneys do like my work, and some even look forward to my next article. I also know that the government players read my work, though I have no doubt that they neither enjoy nor look forward to my next article. And, that is the way that it should be. So, let's move on. We are getting close to the end.
Whether Hunt should be subject to sanctions and/or held in civil or criminal contempt are matters that should be addressed after Hunt has an opportunity to be heard. Autotech Tech. LP v. Integral Research & Dev. Corp., 499 F.3d 737, 746-47 (7th Cir. 2007).Darn, I already said that I am being heard. Let's see what Autotech Tech, LP v. Integral Research & Dev. Corp. says. Now, understand that this case is a bit confusing, though I will try to make it understandable. It starts with a company called Integral Research & Development Corp. (IRDC). It is a company wholly owned by the Belarusian government. The next player is Digital Devices, Inc. (DDI). Now, IRDC and DDI had an "Exclusive Sales Agreement", a contract. Next player, Autotech Technologies LP (ATLP). In 1994, ATLP purchased from DDI the exclusive right to promote and sell IRDC's products for resale or incorporation into products manufactured or sold in the United States; its authority was embodied in an "Exclusive Marketing Agreement." IRDC authorized the transfer of rights from DDI to ATLP through an "Acknowledgment and Modification of Agreement". Well, that is the foundation. There were contracts, the contracts were agreed to. In a subsequent dispute between ATLP and IRDC, IRDC challenged jurisdiction. IRDC lost, but they lost because they had a contractual arrangement with ATLP. Now, this case is cited under the "I. The Court Has Authority to Enforce Its Own Lawful Orders" heading. I don't see where it fits into that subject, but in the above paragraph, the government says, "Whether Hunt should be subject to sanctions and/or held in civil or criminal contempt are matters that should be addressed after Hunt has an opportunity to be heard." So, maybe it has to deal with my right to be heard. So, we can look to the only mention of the word heard, in the entire aforementioned Autotech case.
Before Integral can be barred either by law-of-the-case principles or something analogous to issue preclusion, it must have had a fair opportunity to be heard in the contempt proceeding.I have no contractual arrangement with the Oregon District Court. I have not asked "for a fair opportunity to be heard". However, it seems that to be heard is my prerogative, if I choose to exercise it. Under the current circumstances, I see no reason in the world to step into the jurisdictional world of the Oregon District. If it is possible for a journalist to be held in contempt of court for the mere act of excerpting segments of unclassified material from the discovery of a public trial, then this country is in a lot more trouble, and closer to a true police state, than I have ever imagined. Sometimes, I wonder if these guys even read the cases they cite, or just jump on a case because they think it will sound impressive.
II. The Court Has Jurisdiction to Enforce Its Order Beyond the District of Oregon This Court's authority to effectuate its own orders extends beyond the usual reach of this Court's subpoena power to the entire country. For example, when a party transferred assets to a non-party in violation of a court order, the non-parties who resided outside of the district court's jurisdiction (in Texas) were nevertheless subject to that court's jurisdiction (in Mississippi); indeed, enforcement of the injunction "must occur in the issuing court's jurisdiction because contempt is an affront to the court issuing the order." Waffenschmidt v. McKay, 763 F.2d 711, 716 (5th Cir. 1985); see also Static Control Components, Inc. v. Darkprint Imaging, 201 F.R.D. 431, 433-34 (M.D.N.C. 2001) (rejecting argument that to enforce discovery order, party had to file motion in non-party's judicial district); Platinum Air Charters, LLC v. Aviation Ventures, Inc., No. 2:05-cv-01451-RCJ-LRL, 2007 WL 121674 , *3 (D. Nev. Jan. 10, 2007) (same).Now, we get into "subpoena power" and violation of a court order. However, the order in this one is directed at the party subpoenaed, and, there is aiding and abetting the completion of that crime. Let's look at the first part of the decision in Waffenschmidt v. McKay.
Nonparties who reside outside the territorial jurisdiction of a district court may be subject to that court's jurisdiction if, with actual notice of the court's order, they actively aid and abet a party in violating that order.So, just what is "aid and abet"? Black's Law Dictionary provides the answer:
Help, assist, or facilitate the commission of a crime, promote the accomplishment thereof, help in advancing or bringing it about, or encourage, counsel, or incite as to its commission.Now, I have yet to see anything presented by the US Attorney that might even remotely bear a resemblance to that definition. I was the recipient of some information. I explained why it was not criminal to excerpt, as opposed to disseminate, and, my possession of the material was not criminal, as I was not among those listed who were subject to the Protective Order. As to the next two cited decisions, they are both District Court decisions. They are not stare decisis. That means that they are not precedence. There is no reliance on them by other courts. So, it appears that the government has fallen into a belief that quantity beats quality, and they have just thrown those in so as to increase the quantity, but none of these cases bear any aspect of quality. Now, before we get into the last of the three items, I think it worth mentioning, at least to the subject of giving out information that the Court has determined should not be given out, or vice versa, and, yes, they are on the side of the courtroom that is subject to Court Orders. Let me provide some quotes from an Oregonian article, "Oregon standoff: Defense lawyer argues feds 'wantonly disregarded' terms of Facebook search warrant". This had to do with the government giving out irrelevant Facebook information that they were told to remove from Discovery, prior to dissemination.
"...the federal government "wantonly disregarded'' the terms of the search warrant, and [Per Olson] accused government representatives of "hiding the ball.'' The warrant called for investigators to separate relevant from irrelevant Facebook account information, and then secure the irrelevant material. "It also shows an utter lack of respect for the process for the seizure and securing'' of private Facebook communications,'' Olson argued. He argued that no one in the FBI took their responsibility seriously to safeguard this material. "I'm just confounded how they ought to be allowed to do that,'' Olson said." I hate to use the word lie, your Honor, but somebody did.''The US Attorney has his own house to clean. Finally:
III. The Court Should Expand the Protective Order Finally, in the ordinary case, all parties comply with court orders. This has proven to be an extraordinary case; therefore, if this Court were to revisit the terms of its existing Protective Order, further language specifically addressing the Court's intent to ensure compliance with its orders for both direct and indirect violations--wherever they may occur--would be appropriate.Here, the government suggests that the Court extend its authority beyond its lawful reach, in both jurisdiction and persona. I suppose that since judicial activism by higher courts, to make laws that were never intended by the Legislative Branch, has a new birth in lower courts. Now, the US Attorney is suggesting not only that this Court can legislate, that it can do contrary to the case law submitted by the Prosecutor in the Memorandum. Then, they apparently want to go one step further to enact an Order (law) to prohibit what I have done, not in violation of the existing Order, but will be guilty of if Judge Brown simply waves a wand and changes the wording of the existing Order, making me, ex post facto, in violation of the Order and subject to punishment, therefore.
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Gary Hunt was a Professional Land Surveyor. Having been the County Surveyor for Orange County, Florida from 1974 to 1978, he began private practice in 1978 and continued as such until 1993, when events in Waco, Texas caused him to leave his business in pursuit of restoring the Constitution.
In 1989, he began researching, investigating and studying history, law and events where the government was “pointing its guns in the wrong direction”. He began publishing a patriot newspaper, “Outpost of Freedom”, in February 1993.
Since that time, he has investigated numerous occurrences, including, Waco, the Murder of Michael Hill, Ohio Militia Chaplain, Oklahoma City Bombing, and other events. He has attended the sites to investigate the events, and has reported on his investigations.
He has continued to report on his findings on the Internet, as well as write articles about other current events; about the history of the Revolutionary era; and the founding documents.
His Internet home page is outpost-of-freedom.com