Freedom of the Press #6
Tilting at Windmills – Redux
by Gary Hunt
I have noticed over the years, that some believe in quality, as I do, and others believe in quantity. They think that throwing out a massive missive will drown the opposition in, well, paper. It appears this is the new approach by the United States Attorney, and minions, from Portland, Oregon. They have, with their most recent filing (Supplemental Memorandum in Support of Government’s Motion For an Order to Show Cause), on February 7, exceeded all my expectations, in terms of quantity. They have cited 30 court decisions. I have reviewed five of the cited cases, though I will comment on more of them. Since their research is of such poor quality, It would be my pleasure to review cases for them in the future. However, if I work for the government, my prices will not be discounted. Considering how poorly their current hired help performs, it just might be worthwhile for them to get it right, for a change.
Now, let’s get on with the boring stuff. However, there will be some really good stuff towards the end.
They begin the Memorandum with a statement of what it will address:
1. The District of Oregon is the proper venue for this Court to enforce its own Protective Order against a third party;
2. Third-party Gary Hunt should be held in Civil Contempt of this Court’s Orders after he has had an opportunity to appear and Show Cause why he should not be held in contempt;
3. There is a factual basis to conclude by clear and convincing evidence that third party Gary Hunt is aiding and abetting a defendant (or defendants) in this case in violating the Court’s original Protective Order (ECF No. 342), the new Order (ECF No. 1691), and the Supplement to the original Protective Order (ECF No. 1692); and
4. There are no prior restraint issues or “press” privilege issues.
So, we will begin with Part I. Under the heading in the Memorandum:
I. The District of Oregon Is the Only Proper Venue for This Court to Enforce Its Own Orders
A. Proper Venue Under the Law
The first case cited is:
Myers v. United States, 264 U.S. 95, 101 (1924). The Supreme Court in Myers held that venue is only proper where the court rendered the decree sought to be enforced.
Well, I did look that one up and here is what I found:
An information charged that plaintiffs in error willfully disobeyed the injunction lawfully issued in equity cause, St. Louis, San Francisco Railway Company, Complainant, v. International Association of Machinists, et al., Defendants, pending in the Western Division of the Western District of Missouri, by attempting, within the Southwestern Division of the same District, to prevent certain railroad employees from continuing at work. The order ran against men on strike, and the cause is treated as one within the purview of the Clayton Act.
Well, that supports my position. The case was in “Western Division of the Western District of Missouri”, however, the other jurisdiction mentioned was in the “Southwestern Division of the same District.”
Now, that “Clayton Act” does come under the Commerce Clause of the Constitution, since it deals with the Sherman Antitrust Act.
Clayton Antitrust Act is an amendment passed by U.S. Congress in 1914 that provides further clarification and substance to the Sherman Antitrust Act of 1890 on topics such as price discrimination, price fixing, and unfair business practices.
Well, I sought relevance, but did not find. So, let’s move on.
Next citation is United States v. Twentieth Century Fox Film Corp., 882 F.2d 656, 666 (2d Cir. 1989)
This was also brought under the Sherman Anti-Trust Act. Here we have a “consent decree”; however, it dealt with whether Twentieth Century Fox had a right to a jury trial over the contempt proceedings against one of Twentieth Century’s employees, for violating said “consent decree”.
Oops! There’s that pesky Sherman Antitrust Act, again.
Then, we have Steers v. United States, 297 F. 116, 118 (8th Cir. 1924). I haven’t been able to locate anything but citations referring to Steers. But, it appears that it had to do with Divisions within a District, not between Districts, just like Myers. So, they strike out.
Moving right along, we find Eli Lilly & Co v James B. Gottstein 617 F3d 186 (2d Cir 2010)
Gottstein was a party to the action. He was enjoined from disseminating the documents. If the Prosecution is looking for Mr. “X”, or perhaps “Waldo”; is it possible that what I have came from his own ranks? From that decision:
Understandably alarmed, Eli Lilly applied for and received a series of orders culminating in an injunction, which barred Gottstein from disseminating the documents and required their return. In re Zyprexa Injunction, 474 F.Supp.2d 385 (E.D.N.Y.2007). Gottstein now appeals that injunction, claiming that the district court erred in finding that his issuing subpoenas was part of a sham proceeding, that he aided and abetted the violation of the protective order, that the documents at issue were confidential, that the court could bind him under the protective order and that the court possessed personal jurisdiction to issue the injunction against him. We affirm the judgment of the district court in all respects.
Gottstein was subject to the Protective Order, and he violated that Order. Are they trying to imply that I am subject to the Ammon Bundy, et al, Protective Order?
Finally, we come to In re Special Proceedings 291 F Supp 2d 44 (DRI. 2003). This is interesting in that they are not looking at me. Here, they are, once again, looking for “Waldo”.
On August 8, 2000, while Corrente was awaiting trial and the grand jury investigation of other, later named defendants was continuing, the district court entered a protective order prohibiting counsel in the Corrente case from disclosing the contents of audio and video surveillance tapes that had been made by law enforcement officials and furnished to defense counsel during discovery. The aim was to safeguard the on-going grand jury investigation of Cianci and to avoid pretrial publicity that could prejudice the defendants’ right to a fair trial.
Well, this had to do with Corrente and a fellow named Taricani. “The aim was to safeguard the on-going grand jury investigation.” Taricani obtained discovery footage of a corrupt civil servant receiving a cash payment and then aired that footage. This is a far cry from exposing informants, the precedence, which, incidentally, was established by the Prosecution when they intentionally exposed one informant. Another informant came forward on her own, and the third was subpoenaed by the defense after their exercise of the same sort of diligence that is my standard practice.
There is no grand jury investigation in progress in the current case. At this point, the future condition of the defendants, as well as the knowledge of the means by which the police state government operates, is at stake. My acts will taint No investigation. And, unlike Corrente and Taricani, who were in the same district, I am not.
The next subject area in the Memorandum is:
B. Proper Venue Based upon the Facts
The government makes this allegation:
The District of Oregon is the proper venue to enforce this Court’s Orders because third-party Gary Hunt is aiding and abetting a defendant or defendants and their counsel in the violation of the original Protective Order.
Now, I am going to paraphrase a juror in a recent trial in Portland. The juror stated that the verdict was based on the fact that although there might have been an effect, there was no intent. The government is alleging that they know something, which must be true, since they say that it is. The information that I have put out in the articles may have the effect of aiding the defense, both defendants and counsel, though that was not the intent. I have sent nothing to the defense attorneys, unless they chose to join my mail list.
A thorough investigation of me by the prosecution would clearly demonstrate that there have been two objectives in my reporting for over two decades. First, to expose “the misdeeds of government“, and second, to cover stories where “the government is pointing their guns in the wrong direction“. The Prosecutor’s mere words cannot define my motives, and especially so when my motives have been made quite clear, both in the written words and the historical accuracy of my reporting. The public does have a right to know what their government does — behind their backs.
They go on to state:
Defendants or their counsel are the originating point of access and whoever provided the material did so in violation of the original Protective Order. Hunt has admitted the protected material is subject to this Court’s Protective Order.
Now, their assumption that “the originating point of access…” is just that, their assumption. Their assumption does not make it truth, it simply shows that they think that they know what they really don’t know.
They correctly state that the “protected material is subject to [the] Court’s Protective Order”, omitting that I have also “admitted” that I was not subject to the Court’s Protective Order. Of course, the Court later expanded the Protective Order to include thousands of people, but the government has offered nothing to suggest that the Court can, after the fact, revise a Protective Order when that Order was issued subject to the legal limitations of the imposition of that Order, which, by the way, is quite clear in the above cited cases. You can’t change horses in midstream. The Constitution prohibits ex post facto laws, even to the Congress. Can the Court then assume that it can do what the Congress cannot? However, I might add that it was the Prosecution who first suggested that the Court should change that horse.
The Prosecution continues,
As described in the Government’s Supplemental Memorandum in Support of Motion to Enforce Protective Order and Special Agent Ronnie Walker’s supporting Affidavit, defendant Ehmer’s Facebook post provides insight—when asked “Who is Gary Hunt?” the answer was “He is working with our lawyers.”
It is amazing that the government presents an unsubstantiated Facebook post as factual statement, and especially when they and Duane Ehmer were in the same courtroom. For whatever reason, it didn’t suit them to ascertain the truth, when it could have been so easily accomplished. Instead, they rely on the hearsay of Facebook.
Let’s be clear about what I have stated (In Freedom of the Press #3 – “Contemptuous Postings”):
“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, the Prosecutor, who chose not to get affirmation as to the veracity of Duane Ehmer’s Facebook post, when the opportunity was right in front of him this past Monday and Tuesday (the latter being the date of this filing) during hearings, failed to do so. Further, having knowledge that I had made that statement, “for the record”, they chose, instead, to manufacture their own truth. It is apparent that justice has no role in this little ploy, the purpose of which is to win, at any cost, with any deceit, and that appears to be their mantra.
Then, they state:
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 Intern. 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);
I have discussed Reebok in both Freedom of the Press #3 – “Contemptuous Postings” and Freedom of the Press #4 – The Order. Nothing has changed. The authority came from the Commerce Clause of the Constitution, and is not on point with regard to the current matter. At this point, we can assume that whoever drafted this Memorandum did not do any homework, or the government believes that neither the Court, nor I, are paying Attention.
The same is true of Inst. of Cetacean Research v. Sea Shepard Conservation Soc’y, discussed in #4, except that case was a direct aiding and abetting, which in this case is only a claim of the Prosecutor. They have offered nothing to show that aiding and abetting is a part of this current matter. It is extremely difficult to prove that something that is not true, is true, despite their feeble, yet desperate efforts to do so.
This Section, Part I, concludes with:
Venue for the Motion to Show Cause is properly in the District of Oregon and not in Eastern District of California. In addition, venue is proper in the District of Oregon because government has made a prima facie showing that Hunt is aiding and abetting one or more of defendants in violating this Court’s original Protective Order (ECF No. 342). The Orders has failed to comply with were issued by this Court and the District of Oregon is the proper venue to enforce those Orders.
The cases cited above, by the Persecutor, demonstrate that the Order cannot cross-District jurisdiction, unless other elements exist. In an effort to create that element, they claim that they have “made a prima facie showing that Hunt is aiding and abetting“. Apparently, the prima facie case is what one person said on Facebook, without regard to my clear and concise statement to the contrary. Now, if they can’t figure this out, then they have no idea what prima facie means.
Let’s move on to:
II. Third-Party Gary Hunt Should Be Held in Civil Contempt
I will begin by admitting, as I did early on, that it was time consuming and that I am not being compensated for correcting their errors, with regard to citations.
This Part deals with contempt of court. The Prosecutor seems to base his arguments on whether it is civil or criminal contempt. However, contempt of court only applies to those who are parties to the action. I have addressed this from the outset. The Protective Order was directed to the defense attorneys, investigators, and the defendants. It did, however, fail to address the Prosecution, their staffs, the investigators for the government, or even the Court’s staff. It surely didn’t address me, though the aforementioned Supplement to the Order, if it is even legal to incorporate others at this late date, would even include those in the FBI (SA Ronnie Walker), the Prosecutions staff, and even the Court’s staff, for passing on my articles. Now, they are being coy, in that SA Walker does not use the words that were of the forbidden nature, addressing only the Bates number (example – MNWR _0059424), though surely, the articles were passed around FBI headquarters. The same would be true of both the Prosecutor’s staff and the Court’s staff. They are all included by the Supplement, though they were not addressed in the original Protective Order. How can that have retroactive merit? This doesn’t even touch on the jurisdictional limitations of the Court.
They do cite United States v. Chandler, 380 F.2d 993, 1000 (2d Cir. 1967. Well, let’s just look at what the Prosecutor says that Chandler says:
Contempt of court is an act of disobedience or disrespect towards the judicial branch of the government, or an interference with its orderly processes, and includes refusals by witnesses, without just cause, to obey a direct order of the court.
I have not been disobedient to the Court; as there is no nexus between the Court and me that warrants obedience. If I have been disrespectful, it has only been done to the extent necessary to assert both my rights as press and my reader’s rights to know the workings of their government. However, disrespect, when warranted, cannot be illegal. I have not interfered with the Court’s orderly process. I am not a witness, nor do I have any obligation to said Court. So, if that is all the Prosecution can make of Chandler, then they need a better drawing board to return to.
In citing United States v. Conces, 507 F.3d 1028, 1042 (6th Cir. 2007), they state:
Civil contempt must be proved by clear and convincing evidence.
What evidence have they presented? They had the opportunity to get verification of a few words posted on Facebook. I think that I understand why they didn’t question Ehmer, under oath, when the opportunity availed itself. That would have removed the only shred, and meager at that, of “evidence” of what they attempt to present as truth.
They go on to state:
After third-party Gary Hunt has had an opportunity to be heard, the United States will be asking the Court to hold Gary Hunt in civil contempt and incarcerate him until he complies with this Court’s January 11, 2017, Orders directing him to remove the protected material from his website and not further disseminate the protected material. Civil contempt sanctions can be imposed in court proceedings upon notice…
There is an old saying about opportunity knocking, though I see no opportunity in voluntarily subjecting myself to the jurisdiction of the Portland District. Additionally, it is quite apparent that I am being heard by an audience, which has increased substantially due to the actions of the Prosecutor.
I do love how these guys think. If I were incarcerated, how could I remove anything from my website? Would they give me special privilege; allow me to take a laptop computer to jail, and then provide a hot spot so that I could connect? However, this does demonstrate an almost comical level of incompetence. This has become abundantly demonstrated, these past few weeks.
III. The Government Has Established by Clear and Convincing Evidence That Gary Hunt Is Violating This Court’s Lawful and Direct Orders
And, I make the best hamburgers in California.
They then go on to provide a history of their one-sided paper chase with the Court, giving the history from the Letter to Cease and Desist, mentioning my continued publication of forbidden material, and their additional efforts to quash the Freedom of the Press.
Then, in Part:
IV. There Is No Prior Restraint Issue or Qualified Press Privilege
A. There Is No Prior Restraint Issue Presented Here
They begin with:
This Court has the authority to issue protective orders protecting criminal discovery and, specifically, confidential source information. The substantial government interest in protecting confidential sources is long established. See Roviaro v. United States, 353 U.S. 53 (1957). This substantial government interest is unrelated to any suppression of expression and outweighs Hunt’s First Amendment rights. No one has challenged the legitimacy of the Court’s Protective Order, and to permit a party to end run the order by passing the information to a blogger threatens to undermine criminal discovery and the interests identified in Roviaro – i.e., if we cannot protect the confidentiality of our law enforcement informants, we cannot expect their cooperation in future investigations.
Well, I’m glad they brought up Roviaro. I brought it up, as well, in two previous articles (#1 and #3), though I didn’t really get to the meat of it. Come to think of it, the Memorandum didn’t get to the meat of it, either. So, let’s see if we can find the beef. I’ll just provide a few of the quotes from that decision:
First, however, let me address two of the points made (above) by the Prosecution. They say, “The substantial government interest in protecting confidential sources is long established.” That is correct. It is referred to as the informant’s privilege. Then they say, “[I]f we cannot protect the confidentiality of our law enforcement informants, we cannot expect their cooperation in future investigations.” So, we can see that by quoting those two portions, the Prosecutor’s primary intention is to secure a continuing ability to monitor the activity, maybe even encourage illegal activity, of the targeted group of people. In escalating a police state, it is necessary to have the means of keeping track of the activities of dissidents, or in this case, the people that still believe that the Constitution is the “supreme Law of the Land.”
However, they ignore the final decision in Roviaro. The lower court ruled that the government did not have to identify the informant. Here is some of the reasoning behind the final decision, which reversed the lower court.
We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.
In that balancing, it must show that the identification of the informant must rest on “the individual’s right to prepare his defense.” So, let’s look at the Group 1 trial. First, they no longer wanted McConnell, so they exposed him. Then, Terri Linnell came forward and testified. I spoke with an alternate juror and was told that Linnell’s testimony had very little to do with what her verdict would have been, though she did catch that the Prosecution tried to get Linnell to lie.
Next came Fabio Minoggio. His testimony was critical to the verdict. If he had not been tracked down and made to testify, the verdict may have gone the other way. However, his role in training the occupiers, demonstrated by a video that the Prosecution showed four times, was of someone working for the government who staged the violence.
Proof then, exists, that under the particular circumstances, and especially with the number of informants at the Refuge, that absent the names of the informants, to give the defense the opportunity to determine if their testimony might affect the “individual’s right to prepare his defense“, is absolutely necessary
However, most importantly, is that the people have the right to know what their government is doing. Not only by numbers of informants, which was approaching a majority of able-bodied people on some days, but also what the nature of their activity was. That can only out be found by knowing who the informants are, so that the attorneys can question them as to their role (effect) –by knowing what they have reported. This leaves the public with an understanding of not just that there are informants, but what affect their role might have played in what resulted in a mountain of charges against the defendants (intent).
The circumstances of this case demonstrate that John Doe’s possible testimony was highly relevant and might have been helpful to the defense. So far as petitioner knew, he and John Doe were alone and unobserved during the crucial occurrence for which he was indicted. Unless petitioner waived his constitutional right not to take the stand in his own defense, John Doe was his one material witness. Petitioner’s opportunity to cross-examine Police Officer Bryson and Federal Narcotics Agent Durham was hardly a substitute for an opportunity to examine the man who had been nearest to him and took part in the transaction.
Repeating myself, Minoggio’s testimony has proven that absent such information, those who have been paying attention (observing as an informant) may be the best witnesses for the defense. And, again, the public does need to know whether the informants are there to serve the government, or o serve justice.
Now, let’s cover those other two points made in the Memorandum. First:
No one has challenged the legitimacy of the Court’s Protective Order
I have not challenged the legitimacy of the Order, though I have challenged the applicability (jurisdiction and authority) of the Order. Why do they keep avoiding that point?
permit a party to end run the order by passing the information to a blogger
Now, this really gets me. I am, and have been so, for over two decades, a journalist. I suppose that there is nothing that I can do about how they choose to describe me, but that coin does have two sides. The US Shyster, and minions, can continue to refer to me as they please. I am free to do the same. Henceforth, USA (United States Attorney) and AUSA (assistant to same) will be referred to as USS and AUSS.
Let me add that my writings, since 1993, are still posted on my webpage. They have more facts in them than most Mainstream Media (MSM) stories. Nearly all of them have the five W’s of journalism (Who, What, Why, Where, When), more than most MSM, and especially television news.
However, since we are talking about Portland, Oregon, let me reference a case for the benefit of the USS and the AUSSes. I will not go into the detail, though I will, in the future, if I am not able to respectfully refer to them as attorneys. The case is Obsidian Finance Group LLC v Crystal Cox – Ninth Circuit.
Now, we get into a rather interesting subject (I thought they would never bring it up) known as prior restraint. They open the topic with:
This discovery material was not in the public domain in any form. This Court should be able to enforce its Protective Order and prohibit wide dissemination of discovery which includes confidential FBI reports. See Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (an order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny)
First, the “confidential FBI reports” (that sounds really good) were not. The top of every page has this notation, “UNCLASSIFIED// FOUO”. So, they are “unclassified”, though they are For Official Use Only. Why must the shysters try to make what is into what isn’t? Is that just another form of obfuscation?
Now getting to another point, it was after the Group 1 trial that I began exposing informants. The government set the stage for exposing them, not I. Are we not able to contravene a limitation if the government willfully does so? Are the attorneys (defense, not government) exempt when they expose an informant? The only difference is that to identify and expose the informants (the same as the attorneys did with Minoggio); I needed to deduce from the CHS reports just who might be able to identify an informant based upon the information contained within the reports. Once identified, I could just name names, but that would subject me to ridicule and denial, since it would seem so much like we see throughout various communities. I think that would best be described as gossip. Absent the substantiating proof, the text from the documents, what I wrote would have no merit, and it would destroy the reputation for truthfulness that I have been building for 24 years. In the same paragraph mentioned above, the government states, “We are not asking this Court to restrain Hunt’s ability generally to write about the case – or even the informants.” Why can’t they get there story straight?
Then, they cite
In United States v. Noriega, 917 F.2d 1543 (1990), the issue was the balance between a defendant’s Sixth Amendment Right to a fair trial and the First Amendment interests asserted by CNN.
Interesting. All of a sudden, they are concerned with “the balance between a defendant’s Sixth Amendment Right to a fair trial and the First Amendment interests asserted by CNN.”
Aren’t they saying that the defendant’s Sixth Amendment Right outweighs the right of the Press? If that is so, if any defendant comes forward and asks me to remove the forbidden material, I will do so, without hesitation. At least the shysters and I agree on that one — that the right of the defendants comes before any other rights of informants, the shysters, or the Court, itself. And, to assure those rights, it cannot be left to the Court or the shysters. Our Liberty is best kept secure in the hands, and minds, of the people.
Now, to the final Part:
Accordingly, the United States asks that this Court order third-party Gary Hunt to appear in the United States District Court for the District of Oregon and show cause as to why this Court should not hold him in contempt.
Now, let me state that it is the United States Shyster that should show cause why such an Order is issued. I think that it is quite apparent that they (AUSS) have not demonstrated any justification for such an Order to be granted. On the contrary, it appears that this Memorandum does more to hurt, than to help, their request.