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NELSON TRAVERSO Law Office of Nelson Traverso 312 Fifth Avenue Fairbanks, Alaska 99701 Phone: 907-457-3307 Fax: 907-457-3308 Email: traverso.law@gmail.com Attorney for Francis Schaeffer Cox

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ALASKA 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

UNITED STATES OF AMERICA, Plaintiff, vs.

FRANCIS SCHAEFFER COX, COLEMAN L. BARNEY and LONNIE G. VERNON, Defendant(s). I. BACKGROUND

The Federal Bureau of Investigation (hereafter abbreviated FBI) opened a preliminary investigation of Francis Schaeffer Cox on February 16, 2010. (Exh.1). The FBI received reports that Francis Schaeffer Cox had advocated
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the violent overthrow of the government in speeches made in Montana. Id. The speech that drew concern was made in November 2009. Id. A preliminary investigation was initiated on February 16, 2010 with an expiration date of August 14, 2010. Id. The FBI agent who opened the investigation remembered a year earlierFebruary 2009that 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 Coxs 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 theres another shot at liberty. The seams are busting on this balloon. Its 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 Ill talk a little bit about me and thousands of other people. We are really on the ball in Alaska. And Ive 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 dont have the rule of law now. We have the rule of force, because they dont care what the law saystheyre the iron fistsdo it or else. Thats how they operate. So we have some semblance of order just because of the Pax Americana the rule of force, but Im afraid that if we dont 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 itll 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 dont think the best use of my time and money and fervor is to try to make a wounded bear die faster. Im going to put my energy into cultivating and rebuilding whats going to be next. Because theyre going to go away. And people are going to need a skeleton to come on to. We have just wonderful, wonderful founding documents. Weve got the Declaration of Independence, weve got the Constitution, and weve got a
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shot coming at us faster than we realize to go back to that. And thats where Im 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 thats a really good thing. You know, of course they get a bad name from the liberal media, but anything theyre bashing I look into because its 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. Weve got 3500 man force, militia force, in Fairbanks. It is not a rag-tag deal. I mean, were set: weve got a medical unit thats got surgeons and doctors and medical trucks and mobile surgery units and stuff like that. Weve got engineers that make GPS jammers, cell phone jammers, bombs, and all sorts of nifty stuff. Weve got guys with weve got airplanes with laser acquisition stuff and weve got rocket launchers and grenade launchers and claymores and machine guns and cavalry and weve got boats. Its 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 its 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 thats 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 dont get all wrapped
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around the axle when they pass the bailouts. Lets have one every Friday, you know, get it done. So thats where were at. Dark times. We need bright people. Remember this phrase-write this downbecause when youre 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 Coxs 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 Coxs Liberty Bell is also being followed by Ron Robinson in Plains, Montana. Id. Liberty Bell is an automatic phone system that is invoked when a person encounters law enforcement and wants others to monitor what the police are doing by showing up and witnessing events taking place. (Exh.3,p.4) The recipient of
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the call is to go to the location, directed not to aggravate the situation, and record everything. Id. This is a means, according to Schaeffer Cox, of looking out for each other. Id. Another FBI memorandum dated March 30, 2010, reports that a person visiting a gun store in Evergreen, Montana was approached by a customer who was handing out DVD copies of a speech of Francis Schaeffer called The Solution. (Exh.5) The Solution speech relates the state of affairs for the country as a whole and that a common law court, Liberty Bell Network, and an armed militia need to be formed in communities. Id. After viewing the speech the party was particularly concerned about the calls for armed militias, the monitoring of law enforcement, and that the formation of a Liberty Bell group in the area would cause gun owners to commit acts of violence. Id. Dissatisfaction was expressed with the gun show because conversation revolved around Schaeffer Cox videos. Id. The Solution speech, made in Hamilton, Montana December 1, 2009 (attached in its entirety hereto as Exh.6) is submitted in excerpts as follows: You know, here, were 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 its been building for years and years, is I feel like theres just this huge power out there thats 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 dont understand all the ins and outs of this giant monster thats coming our way and bulldozing our freedom. But I feel in my gut a resentment and I think that you identify with this. We shouldnt 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 theyre like yeah, I beat em. It took me thirty years and $17,000 dollars. Youre like, that sounds like a prison sentenceWhos 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 mightve 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 its getting wobbly and its worrying us. We see this looming power. Lets 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 Im really excited to talk about because thats how we got so far off base in this country The Federal Reserve, which is not federal or reserve, its 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. Thats 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 its 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 weve 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 theyre 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. Thats a recession. Because our government does not operate under the rule of law. They operate under the rule of force. Its not the rule of law. Its the threat of force. Thats 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 youre intimidated? And how many of you submit because you really think the law requires you to do that and thats, 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 Im scared. Im not usually a scared guy. You know? But thats what it is. We dont 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 doesnt necessarily mean violence. Dont get me wrong. Im not against violence. I am not against violence. Ok? I am not against spilling blood for freedom. Im not against, I will
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kill for liberty. You know everybody asks would you die for liberty. Thats 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 doesnt 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 citizens militias and thats nobodys responsibility but our own. Thats 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. Theyre able to
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speak to the government in their language, which we hope wont have to happen but you know what a milita is? The militia is anybody with a gun and a conscience. Its somebody whos got that sense of duty to their fellow country. Its beautiful and its right and its 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 whos in a militia is restrained by his own conscience you know. You really dont need any more than that and Im afraid that anything beyond that might just be a means for a few to dominate the many which is what were all sick of. Thats why were 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. Were not here to do that to them. Now heres the mission that Ill leave you with. We dont need to gun down the beast. Liberty always wins because tyranny self-destructs. What we need to do and heres 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. Lets be characterized by what we love and work towards that and let what we hate run its own natural course. Thats my appeal and I know that you will seize the day. On April 5, 2010 a memorandum referred to militia extremism was sent to the Anchorage FBI office from Squad 6/Fairbanks RA, Anchorage. (Exh.7) The memorandum refers to an additional case agent being used and to update
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the pending investigation pursuant to the direction of Assistant Special Agent in Charge. Id. The memo refers to a request for advice from an Assistant United States Attorney in Anchorage several weeks earlier (March 9, 2010). Id. The memo reflects that on March 25, 2010 the AUSA advised the agent that Francis Schaeffer Cox has not crossed the line between protected speech and actionable threat and that on April 5, 2010 that opinion was reaffirmed. Id. The Anchorage based AUSA consulted with a Fairbanks AUSA, who also agreed that legal action was inappropriate. Id. The government noted that the support for Cox may have significantly eroded over the last few months because of a domestic violence incident; also noted was his arrest that occurred during his work associated with the Liberty Bell Network. Id. The 7,000 membership of the Liberty Bell was discredited since only Cox and one other person responded to calls. Id. The government investigated the scope of membership of the Second Amendment Task Force concluding that they were exercising their First Amendment rights. Id. The agent stated that most of what Cox claimed regarding the organization was fictional and that law enforcement did not participate and/or attend the second amendment task force meeting on March 5, 2009 as claimed by Cox. Id. Also discredited were claims that the militia had 3500
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members. Id. Investigation also had not shown any threats to Cox; but, that he does wear a bullet proof vest in public. Id. Investigation also showed that the claims regarding the possession of stolen automatic weapons were also fictional. Id. On May 22, 2010, a little more than a month after the assessment of the AUSA that Francis Schaeffer Cox had not crossed the line between protected speech and any actionable conduct, another speech was made at the Liberty Convention at the University of Montana in Missoula, Montana which the government calls Trouble In Fairbanks. (Exh.8) The speech contains the same themes as previous speeches such as the Solution: not to attack government instead let it self-destruct just as you would not kill a wounded bear; that a common law court, Liberty Bell Network, and militia should be formed in their community to protect them against unlawful acts of the various branches of government once its collapse has occurred. Id. In July 2010 the government initiated an investigation with Schaeffer Cox by securing the services of an informant known as Confidential Informant 1 [hereafter abbreviated CI-1] CI-1 is a felon with extensive criminal record involving theft and deceptive business practices working for law enforcement. (See, Federal Search Warrant in case). CI-1 presents a
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warm, disarming chuckle, and ingratiating tone on the audio recordings. He is directed to contact Paul Stramer, a man involved in liberty bell/militia activity in Montana with CI-1 has shared militia activity. (15300-1D1) An FBI agent, Richard Sutherland, states that the call is being made by his informant. CI-1 apparently knows Stramer from the past and inquires whether Schaeffer Cox is legit and about whether he has seen the video of The Solution Speech. Id. CI-1 began, at the FBIs 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 dont 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 ones 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 Schaeffers 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 Pikes 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 Blondies. Id. At the meeting was Aaron Bennett, a gun dealer from Fairbanks and a protg 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 Bennetts 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 (Blondies) 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 Peacemakers Militia who were advocating violence against the federal government. Id. The AUSA asked if he had any influence on those individuals so that he could remind them that they have a duty to obey and work within the system. Id. Schaeffer Cox explained he did not disclose the names of the two in fear of retribution. Id. The confidential informant known as CI-1 who attended the barbecue at the Barney residence in August 2010 begins, at the direction of the FBI, contacted Schaeffer Cox on November 19, 2010 to attend a meeting. (15300-1D6) Some Assembly Post members were there for a meeting later; Schaeffer explains some of history of the militia and analogizes to the chaos
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in Austria surrounding Hitlers 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 groups philosophy. (153001D6) 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 dont need to attack that system in any way; Cox added, however, that We need to defend ourselves. Id. Cox also stated that a citizen is not a sovereign who submits to God; instead, a United States citizen is a hundred percent federal, non-sovereign stateless person and the Assembly Post has been formed to change this. Id. Schaeffer explains to CI-1 again, as he has done multiple times, that we have to defend, not attack the wounded bear. Id. CI-1 asks after Schaeffer explained the philosophy of the militia what if they arrest you on some bogus charge? Schaeffer explains
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that the plan is have huge numbers show up to the court hearing on the gun case and that three-by-five note cards can be put together to share with the press so that a media blitz will take place. Id. Schaeffer explained that they need a huge rally and to place flyers around town. Schaeffer explains that they will need a security force in place because the federal agents from Colorado are up here and Marty (his wife), Dave Bartells (the common law court judge), and himself are at risk. Id. Schaeffer Cox, during this meeting, criticizes the Alaska Court System as a for profit enterprise that will not allow him to represent himself. Id. He discusses his misdemeanor criminal charge of Misconduct Involving Weapons In The Fifth Degree from March 2010 that arose during his Liberty Bell work as an observer of the police as they were conducting an investigation. (Complaint) This was also the basis for the Common Law Trial conducted at Dennys Restaurant on January 16, 2011. (1D9-15300) The day prior to the trialJanuary 15Schaeffer met with other Assembly Post members and discussed the goals and structure of the organization. (15300-1D8) Schaeffer explains that you are an employeeit is not our job to go in and fix the systemit is a corporate statutory systemjust step out and let it crumble. Id. During the recording an unidentified speaker says that the only way that is
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going to happen is if you go up against them and he responds only if they trespass us. Id. At the common law trial on January 16, 2011, Schaeffer defended himself against the gun charge by explaining that he was there as part of the Liberty Bell Network; he was called for monitoring assistance by a woman whose house was being searched. Id. Schaeffer had a gun in his pocket; and, was taking notes when grabbed from behind by a police officer. Id. Cox, according to the officer, did not tell him that he had gun in his pocket. Id. Schaeffer disputes this. Id. Testimony was heard from various witnesses at the common law trial. Id. On February 4, 2011 the informant, CI-1 gave Lonnie Vernon a ride to see Schaeffer Cox at his home. (15300-D10) Lonnie was aware that Schaeffer and his wife had a baby that evening. Id. During the ride over Lonnie explains the international political scene is changing with uprisings in the Middle East and change of power in Iceland. Id. Lonnie tells CI-1 that the guy at the Drop Zone (CI-2), the other informant based out of Anchorage) is having this meeting so he can sell some of his shit. Id. He is referring to a meeting in Anchorage of militias from across the state. Id. When they reach the Cox residence they meet a fatigued Schaeffer since he had just spent the day
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helping Marty deliver her baby at home. Id. Vernon asks Schaeffer if he is going to Anchorage and he replies no. Id. Schaeffer tells CI-1 and Vernon to pay attention to Norman Olsen and Ray Southwell because they are men of integrity and are level-headed. Id. Schaeffer tells them to avoid conflict with CI-2 especially if he has been drinking. Id. Schaeffer states if anybody is pushing for violence dont 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 Blondies (Far North Tactical) that a war was to start on Coxs orders. Id. Schaeffer explains the visit he had with CI-2 at Pikes 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 theyCI-1 and Vernonneed to avoid them as much as possible while in Anchorage. Id. CI-1 asks Schaeffer that if we do what he saidbeat them at their system and do it the common law waycan we now take them on as the final step? Id. Schaeffer explains that he does not know what the future has in
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store but our plan is to aggress none, defend all and that the militia has to be ready. Id. Schaeffer emphasized that the appropriate response to the court case is not war but, instead, papering them and if need be use the Assembly Post to help on jurisdiction issues. Id. Schaeffer explains that the feds will probably be at the meeting of the militias and that Alaska Peacemakers Militia should bluff about how many members are in APM by using the membership numbers from the Second Amendment Task Force meetings 3,500as 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 Schaeffers representation of the membership number of APM and that he has butted heads with Schaeffer. (15463-1D8) Aaron also states that he provided an HK 93 to Schaeffer.
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(15463-1D6, Tr.3990) Aaron Bennett, after lots of bantering and a break from the conference, is asked by CI-2 if he has any fuses for sell. Id. at Tr. 3990. Aaron tells themmultiple personsthat 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 needsa 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 hell make it happen. Id. at Tr.4031. CI-1 goes to CI-2s shop (the Drop Zone)
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and asks where is the pineapple grenadeswe want a case of them? Id. at Tr.4096 CI-1 further asks for fuses if he doesnt have the pineapple grenades. Id. at Tr.4097. On February 12, 2011 a meeting of the militia command staff (APM) was held at the bus residence of Ken Thesing. (15463-1D18 ) Present at the meeting were Francis Schaeffer Cox, Coleman Barney, CI-1, and Ken Thesing. Id. The meeting begins with Schaeffer discussing the upcoming court hearing for the carrying a concealed firearm case; he states that is not going to his court hearing because that would mean accepting jurisdiction, the very issue he is contesting. Id. Schaeffer states that if a bench warrant is issued he will just start filing more paperwork. Id. CI-1 states he could be in jail for eight months because delay after delay; CI-1 adds that they should keep Schaeffer in his home, set up guard, and run a diversion if the police come for him. Id. Schaeffer responds that he could run, hide out, or a 1-4-1 operation like the Israeli defense strategy. Id. Thesing inquires whether it should be 1-to-1; Schaeffer says 2-for-1; and, CI-1 says 5-for-1. Id. Schaeffer states the command staff should discuss the viability of 2-for-1. Id. A 2-for-1 plan would be horrifying. Id. Schaeffer than tells everyone that the troopers did not execute a writ of assistance for Seth because of his bluff that they had
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3500 members in the militia ready to respond. Id. Schaeffer that raises his concern that the militia does not have enough members to guard everyones home. Id. Ken Thesing believes that they need to prevent 2-for-1 by having sufficient force; they shouldnt 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. Im not going to do a Rambo, Im 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 Schaeffers nonappearance at court. Id. Despite the meeting two
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days earlier of the militia command staff and its rejection of any 2-for-1 response to government intrusion, CI-1 again asks: Should we come up with a game plan of what happens if they get you and they capture you and they, for some reason they all of a sudden wont release you? Id. Schaeffers response is just raise hellt.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, Schaeffers 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, followup with man fixing his truck, and explains that hell 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 Schaeffers 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 hes creating for the other militia members and states that he does
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not want to stop fighting for liberty and law but that everyone in the room would share his fate. Id. He believes the best thing to do is to leave and disappear. Id. CI-1 offers to give Schaeffer and his family a ride to a port and/or airfield. Id. Schaeffer makes it clear that he doesnt want anyone else being affected. Id. He feels he has to walk away from everything he owns including the house. Id. CI-1 asks what is he supposed to do if agents beat the door down and take Schaeffer tonight. Id. CI-1 reinitiates discussion regarding 2-for-1 asking if they come for Schaeffer and hold him in the cage is that the time to implement 2-for-1. Id. Schaeffer does not answer him. Id. CI-1 persists and states that he will not be able to communicate if he is in jail. Id. Schaeffer tells him no and that he is to contact Les Zerbe if something happens to him. Id. CI-1 offers the help of a friend that he has with Alaska West; his friend drives a trailer truck and that Schaeffer could load his stuff into an empty van and have his wife and kids in the heated portion. Id. The informant adds that the trucker would do this for $500. Id. The trucker, he explains, drives to Alaska from the lower 48 and returns with an empty van; Schaeffer tells Marty that he could run up to the house and load as many valuables as they

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can and be gone in a couple of days. Id. Schaeffer gives the nickname of Hans Solo to the trucker. Id. On February 26th, CI-1 told Schaeffer Cox that Hans Solo would be coming to Alaska in mid-week. (15300-D11) CI-1 explained that Schaeffer and his family could hide in the top bunker of the truck because the border guards do not check these if the truck driver has all his paperwork. Id. CI-1 further states that the driver knows about Schaeffer. Id. CI-1 conveys that Lonnie said that they might be interested in silencers. Id. CI-1 said he was getting them from CI-2 who he states is a Class 3 dealer. Id. CI-2 only needs to know the twist and caliber of the weapon they want to put the silencer on. Id. Schaeffer says that he would like a matched set of the suppressor with the ideal pistol for it. Id. Further discussion between the two results in Schaeffer trading his HK-93 (at a gun shop) for the matched set from CI-2. Id. CI-1 agrees. Id. On March 1, CI-1 tells Schaeffer that Hans Solo has broken down in Whitehorse. (15300-D15) On March 4th, CI-1 again contacts Schaeffer and tells him that Hans Solo had to go to Pump Station 2 (pipeline facility in northern Alaska) Id. According to CI-1, Hans Solo will not be heading south until Monday or Tuesday. (March 7th and 8th respectively.)
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On March 10th, CI-1 arranges to meet Lonnie and Karen Vernon at the corner of Illinois and College. CI-1 expresses concern that the Vernons enter CI-1s 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 fenderso Im 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 theyre silencers. Id. CI-1 says he either has to pay CI-2 today or return the guns to him. Id. Schaeffer, thinking they were there to meet the trailer truck driver, Hans Solo, asks where the trailer is. Id. and (Aff. of FSC) CI-1 pointed at the truck in the yard; CI-1 is asked by Schaeffer if the man standing nearby is the
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driver and CI-1 replies he is. Id. As CI-1 leaves the vehicle to get the guns, Schaeffer tells Barney to not get his fingerprints on the guns because they are going back to CI-2. Id. When CI-1 returns he hands a box of guns to Barney and says check these sexy things out. Id. Barney operates the slide of the .22. Id. Cox was also given a box that has a handgun and silencer. Id. Schaeffer looks around in the ammo box. Id. CI-1 then hands a grenade to Schaeffer. Shortly afterwards a man is seen walking up to CI-1s 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 its a flatbed; he asks why there is a whole line of people with bullet proof vests looking over at them. Id. The arrest is then done. Id. As the vehicle is being searched an agent, in an astonished manner, states that there is a live grenade. Id. II. ARGUMENT THE GOVERNMENT HAS ENGAGED IN MULTIPLE SUBSTANTIVE DUE PROCESS VIOLATIONS TO CHILL AND/OR SILENCE THE FREE EXERCISE OF SPEECH BY FRANCIS SCHAEFFER COX: There Was No Legitimate Law Enforcement Purpose In Electronically Recording, Investigating, And Attempting Illegal Transactions With Francis Schaeffer Cox In Response To Speech Critical Of Government
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This case is not is not about drug trafficking; this case is not about firearms trafficking. This case is about the trafficking of ideas that gave rise to overreaching by the government for speech critical of the same. The remedy for such is not under the Fourteenth Amendment of The United States Constitution but under the Fifth Amendment. A showing that the government engaged in conduct that shocks the conscience or interferes with rights implicit in the concept of ordered liberty must be made to assert a substantive due process claim under the 5th Amendment. U.S. v. Batie, 433 F.3d 1287, 1293 (10th Cir.). The conduct of the government in this case violated this standard by the following actions: 1. The reason for FBI and other law enforcement electronic surveillance, investigation, and attempted illegal transactions was strictly based on protected speech under the First Amendment. 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. Despite the governments assessment that there was no crossing of the line between protected speech and actionable conduct an investigation was nevertheless begun.
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2.

3.

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4.

The government/FBI used CI-2 in the summer of 2010, during a fundraiser at Far North Tactical (formerly called Blondies) and at a meeting at Pikes Landing the day before, to provoke violent action. CI-2 stated he had mobilized his men to go to war on Schaeffers 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. Francis Schaeffer Cox went to the U.S. attorneys 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 stupidengage in violent action. 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 Marshalls 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 Schaeffers house and this would provoke Schaeffer Cox into a confrontation with law enforcement and that would give them a reason to take him out. Francis Schaeffer Cox told CI-1, the government informant, numerous times that the Alaska Peacemakers Militia cannot attack the government. Despite a major meeting on February 12, 2011 in which Schaeffer Cox emphasized to the command staff of the militia that an attack would be futile and that they should in effect be like
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5.

6.

7.

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Gandhi and not Rambo in their actions, the government persisted with trying to get Schaeffer provoked. 8. Schaeffer repeatedly explained to CI-1 after being asked by him what would happen if he got captured and whether that would trigger 2-for-1 that there was to be no violence. Schaeffer emphasized that they were to go to the media about their cause. 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. 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. 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. 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.

9.

10.

11.

12.

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The government, under United States v. Aguilar, 883 F.2d 662, 705 (9th Cir. 1989) is allowed to use undercover informants to investigate an organization engaged in protected first amendment activities with two limitations: 1. the government investigation must be conducted in good faith; not for the purpose of abridging first amendment freedoms; and, 2. the first amendment requires that the undercover informers adhere scrupulously to the scope of the defendants 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 purposewould not have been justified by any law enforcement need. Mayer at 752 relying on Handschu, 349 F.Supp. at 770. The court in Mayer ruled that an undercover operation
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into an organization (North American Man/Boy Love Association) whose purpose was to oppose restrictions which deny men and boys the full enjoyment of their bodies, and where the agent was asked as part of his membership to send holiday cards to sex offenders, make contact with a member of the organizations steering committee who was a registered sex offender, attend the conference while wearing a recording device, and suggest the formation of a travel group to different destinations to meet boys clearly met a legitimate law enforcement purpose. The court noted that at the conference the agent engaged members of the organization in discussion of past and future criminal conduct and how to avoid detection. The court held that the legitimate law enforcement objectives outweighed any harm to First Amendment interests and accordingly, the infiltration was not unlawful. Mayer at 753. The government in this case did not have any report of unregistered firearms or destructive devices unlawfully used or possessed by Francis Schaeffer Cox. Its attention to Schaeffer Cox were speeches that were inscribed in concrete in the offices of the FBI: he had advocated that government would collapse through its own self-destruction and that chaos and tyranny would ensue; and, that the citizenry must form militias to protect
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their families from unjustified government intrusion that would cause harm to them. That theme resonated in his speeches and repeated numerous times; he also expressed the functions of the economy and its impending collapse. He repeatedly warned that you dont 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 reviewThe Solution and Trouble In Fairbanksdid 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 governments document trail is contradictory, plain and simple, and shows a clear intent to abridge the first amendment rights of Francis Schaeffer Cox. The First Amendment provides: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedoms of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance. U.S. Const. First Amendment.
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As Justice Brennan so cogently stated in Texas v. Johnson, 491 U.S. 397,414-415 (1989) the purpose of the First Amendment: If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. And, more than 60 years ago Justice Douglas made clear: A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. There is no room under our Constitution for a more restrictive view. Terminiello v. City of Chicago, 337 U.S.1, 4-5 (1949) (internal citations omitted). The rise in litigation regarding the scope and meaning of the first amendment began with the clear and present danger test enunciated by Justice Holmes in Schenck v. United States, 249 U.S. 47, 52 (1919) where a defendant distributed pamphlets that urged resistance to the draft, encouraged

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insubordination in the military, and renounced the war effort (World War I). Justice Holmes upheld the conviction stating: We admit that in many places and in ordinary times the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every aspect depends on the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing panic The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time and peace are such a hindrance to its effort that there utterance will not be endured so long as men fight and no Court could regard them as protected by any constitutional right (emphasis added). Not long after the false cry of fire in the theatre reference in his clear and present danger analysis Justice Holmes made an equally famous contribution to the modern approach to incitement in his dissent in Abrams v. United States, 250 U.S. 616 (1919). Justice Holmes argued while the governments power to punish speech is greater in wartime, it is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a
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limit to the expression of opinion where private rights are not concerned. Abrams, at 627-628. Abrams was a Russian immigrant who had escaped czarist Russia and who later distributed thousands of leaflets and calling for a general strike to protest U.S. policy toward the Bolsheviks who seized power in their motherland in 1917. Holmess 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 ideasthat 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 Courts jurisprudence. Elisa Kantor, New Threats, Old Problems: Adhering To Brandenburgs Imminence Requirement In Terrorism Prosecutions, 76 Geo.Wash.L.Rev 752, 758 (2007-2008). While in Whitney v. California, 274 U.S. 357 (1927) Justice Brandeis upheld a statute because advocating violent means to effect political and economic change involves such danger to the security of the state that the state may outlaw it he laid further groundwork for the modern adaption of
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free speech law in the seminal case of Brandenburg v. Ohio, 395 U.S. 444 (1969). In a concurring opinion affirming the conviction Justice Brandeis argued that the necessity which is essential to a valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil. Whitney at 373. In eloquent terms expressed the significance of the marketplace of ideas stating: Those who won our independence believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope, and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsel is good ones. Id. at 375. Id. at 375. A statute in Ohio that had the same effect as the California statute in Whitney was held unconstitutional in Brandenburg v. Ohio, supra. In Brandenburg a Ku Klux Klan leader who had stated during a rally that the
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nigger should be returned to Africa and that if our President, our Congress, our Supreme Court, continues to suppress white, Caucasian race, its possible that there might have to be some revengeance taken was convicted under a statute that made it unlawful to advocate the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform. Id. at 447. The court in a per curiam opinion said: ...later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where the advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Id. With the Brandenburg decision, the Supreme Court, fifty years later, adopted the reasoning of Holmes in his dissent in Schneck and Brandeis in his concurring opinion in Whitney. The government in this case did not pass a statute to suppress the free speech of Francis Schaeffer Cox; here, instead, they engaged in a number of acts whose result was to accomplish the same and did so without a legitimate law enforcement purpose. Justifying their extensive electronic surveillance, usage of an informant to infiltrate Schaeffer Cox, constant manipulation of
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him to physically attack the government, actively ignore Schaeffer Coxs expressed rejection of warfare, actively try to manipulate him to stay longernot departso 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 staffs rejection of an attack urged by one of the informants renewed efforts for him to commit violence; and, attempt to have him handle destructive devices and firearms to manufacture a crime. This does not just shock the conscience; the government has clearly demonstrated it has none. Schaeffer Cox was the subject of an investigation of a FBI domestic terrorism unit because his speeches against the government were vituperative. His speeches did not encourage the overthrow of the government; even so, this would be protected under the current First Amendment jurisprudence under Brandenburg. The concern for domestic security because of his speeches did not even cross the line of protected speech and actionable conduct as to two Assistant United States Attorneys. Why was such an
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investigation/surveillance/infiltration begun and sustained beyond the initial monitoring? This was an excessive abuse of the executive authority of the government. Judge Skelly Wright explained the potential for abuse and concomitant fears that arise with the excesses attributed in the name of national security: Over the past several years there has been increasing anxiety and increasing litigation concerning actions with the Executive Branch of our Government has undertaken under the rubric of national security. Undoubtedly the President, our Chief Executive and CommanderinChief 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 Presidents asserted power to obtain foreign intelligence information through use of electronic surveillance with the citizens cherished right to maintain his privacy and associations inviolate against unreasonable intrusion.
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Zweibon v. Mitchell, 516 F.2d 594, 604-605 (D.C. Cir. 1975). Schaeffer Cox lived that anxiety so meaningfully stated by Judge Wright. Schaeffer Cox planned to leave the state; his plan was to lie low and not make speeches or engage in any functions of the Alaska Peacemakers Militia because his fear of a confrontation with the Federal Government as well as state government. The governments surveillance of Schaeffer Cox was a collaborative effort of Federal and State Government. Justice Brandeiss warning in Whitney that fear breeds repression has been heard loud and clear in this case. The government did not have a legitimate law enforcement purpose in the infiltration, recording, and manipulation of Francis Schaeffer Cox and silenced his ability to share his ideas for change envisioned by the Alaska Peacemakers Militia. Geoffrey Stone, a legal historian, in his book, Perilous Times, describes the purpose and peril the First Amendment faces: A related, but slightly different, theory regards the constitutional protection of free speech as indispensable to the maintenance of a political and intellectual environment in which individuals can develop the capacity to deal with sharp differences of opinion, perspective, and understanding. By allowing for ambiguity and conflict in the public sphere, the First Amendment promotes the emergence of character traits that are essential to a well-functioning democracy, including
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tolerance, skepticism, personal responsibility, curiosity, distrust of authority, and independence of mind. The First Amendment may also help check the danger of public officials will attempt to manipulate public discourse in order to preserve their authority. This is one of the greatest threats to democracy. Ordinarily, constitutional law presumes that governmental official will fulfill their responsibilities in good faith and that their actions are constitutionally permissible. Without such a presumption, government would come to a standstill. Stone, Geoffrey, Perilous Times: From the Sedition Act of 1798 to the War on Terrorism, p.7-8, 1st Edition 2005. The greatest threat to our democracy is the notion that we are not diverse politically, economically, religiously, and culturally. Excluding Francis Schaeffer Cox from active participation in the Alaska Peacemaker Militia through electronic surveillance, FBI driven manipulation, and continuous disregard for his admonitions against aggression, removes him from the table of discourse with those of countervailing ideas. The First Amendment applies in times good and bad regardless whether controversy boils and war is afoot. Francis Schaeffer Cox has been muzzled by the governments bad faith and failure to follow its own protocol regarding protected speech and actionable conduct. There was no legitimate law enforcement purpose in conducting the investigation that was done in this
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case. If we are afraid of divergent thought and beliefs then we should resign ourselves to a stagnant, homogenized, and undemocratic United States. Thomas Emerson, in his classic legal work on the freedom of expression, Toward A General Theory Of The First Amendment, p.81 (1966) said this eloquently: it may safely be assumed that the framers of the First Amendment, in adopting the solution embodied in that provision, were making a deliberate choice on the basis of prolonged consideration and direct doctrine that expression must be given full protection and only what may reasonably be called action be subject to restriction.

III.

CONCLUSION

The government recognized it had no basis to conduct electronic surveillance, infiltrate, and manipulate activity of Francis Schaeffer Cox and the Alaska Peacemakers Militia. The government lacked good faith since there was no legitimate law enforcement purpose in the extensive surveillance and high risk manipulation it engaged in this case. The conduct of the government shocks the conscience and/or interferes with substantive due process under the Fifth Amendment and as a consequence, chilled the First Amendment right to the free exercise of speech of Francis Schaeffer Cox. The indictment should be dismissed.
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LAW OFFICE OF NELSON TRAVERSO

11/14/2011 Date

s/ Nelson Traverso Attorney for Francis Schaeffer Cox

CERTIFICATE OF SERVICE I certify that on November 14, 2011, a copy of the foregoing is being served electronically on: AUSAs J. Bottini & S. Skrocki M.J. Haden T. Dooley 11/ 14/2011 s/P. K. Fenton ___ . Date Law Office of Nelson Traverso

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