Burns Chronicles No 50
Informants – What to do About Them #2
by Gary Hunt
December 25, 2016
Merry Christmas, Mark McConnell
The matter of informants, and the government’s efforts to protect the names of those who have snuck into our midst is a denial of justice and to some degree, the Sixth Amendment right “to be confronted with the witnesses against him.”
Now, we can look at what the government wants us to believe. We can also look at what common sense dictates that the Framers of the Constitution meant. Just because a person doesn’t take the stand in court, when that person has provided information to the government, upon which the government builds its case, he has witnessed against the accused. The defendants, then, had every right to confront that “witness”, as he is privy to what he saw, what he heard, and what he said to the government. He is as much a part of the case against the defendant as the person who takes the stand, takes an oath, and testifies. Quite often, he is the justification for a search or arrest warrant to be issued, or a criminal indictment to be brought, before the court.
However, when that ‘witness’ is hidden from the defendant, the defendant is denied information that may aid him in a proper and fair defense. In some cases, their testimony might provide exculpatory evidence, testimony that might prove his innocence, that would undermine the contrived case made by the government.
With the recent trial of Ammon Bundy, et al, we can begin to put together a picture of the injustice and the dishonesty of the government’s pretext for hiding such “witnesses.”
We will begin with a partial trial transcript of the trial on October 17, 2016:
I would like to start first with Ms. Harris’s motion with respect to the identity of a witness. [Some of] the defendants have subpoenaed, it’s Docket No. 1443, And it is really a subset of the larger issue raised both by Ryan Bundy in previous filings and by Ammon Bundy in his motion to compel 1423. Before, I received Ms. Harris’ filing, which I only received this morning about 7:00 a.m. it showed up in my system, I had emailed to the parties my preliminary conclusions having reviewed, in camera, the unredacted reports related to the so-called CHSs confidential human sources, 15 different individuals, 112 reports, and I conveyed in that email to the parties that I have compared the redacted to the nonredacted reports and according to the applicable standard, did not find any basis to disclose the identity of those 15 confidential human sources. I observed to the parties that as I compared the redactions from the unredacted material, I really didn’t find any substantive significance. The redactions primarily looked to me as necessary to protect the identity of the informant, and so with respect to that general review, I conveyed to the parties my intention was to deny the motion generally.
Then came in Ms. Harris’s motion on behalf of Ms. Cox with respect to a very particular one of those 15 confidential human sources, identified in her motion as number two, as to whom I have the redacted and unredacted materials. That was one person’s records I went through.
The motion indicates that the defendants have found the actual CH#2 who was known to the — who went by an alias, according to this motion, of John Killman. K-I-L-L-M-A-N. And so the motion goes on to argue why it’s relevant, first of all, for the defendants to call this person whose alias is John Killman and to introduce evidence from his personal knowledge of observations he made at the refuge.
And I presume defendants already know his true name in that they — Ms. Harris tells me in this filing that he’s been subpoenaed in his, is physically present, and needs to testify first thing because of other issues in his life.
We can see that the identification of the informants is a primary concern of Judge Anna Brown. Next to speak is one of the Government attorneys.
BARROW: Good morning, Your Honor, the government’s position is that the filing of ECF 1443 doesn’t change the analysis. If this whole issue of disclosure of informants had been filed in a timely manner, say in August, of this year, the government would have asserted the informant’s privilege and would have said we weren’t obligated to disclose the identity of any informants and would have, through that mechanism, tried to keep the defense from putting informants on the stand.
What has happened now is that the defense believes that its identified an informant and believes that somehow that triggers some obligation for the government to confirm his status and his identity and we simply don’t think that that is the way the law works. We’re [intending] to preclude the defense from calling anyone. We don’t believe we have that ability, but requiring the government to somehow confirm defendants’ suspicions would similarly be a way around the Roviaro [decision] in the informant’s privilege.
Mr. Barrow mentions the Roviaro decision with regard to “informant’s privilege”. So, it behooves us to know just where this privilege comes from and why.
The Roviaro decision, Roviaro v. United States 353 U.S. 53 (1957), dealt with an informant, “John Doe”, who had purchased narcotics from Albert Roviaro. Roviaro then moved for a bill of particulars requesting, among other things, the name, address and occupation of “John Doe”. The Government objected on the ground that John Doe was an informer and that his identity was privileged. The motion was denied.
Now, drug dealers are notorious for violence, even murder, to protect themselves. So, it is understandable that in those circumstances, the identification of the informant was protected, for his personal safety.
However, Mr. Barrow gave away his hand, in the first paragraph of what he said, above, when he stated, on the record, that it “would have, through that mechanism, tried to keep the defense from putting informants on the stand.” Quite simply, he did not want the informants to testify. In fact, no informants, though paid, or at least compensated for expenses, by the government, were called, even though we know that there were 15 of them.
Here are a couple of quotes from the Roviaro decision:
The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.
Well, if a passing observer reports something amiss to the government, I can see that there might be a question of whether providing information about the informant would serve any useful information to the defense. But, this is not the type of informant we are addressing. This would be more along the lines of someone who was interviewed, though the form for that type of interview is the FBI form 302, where a report of a casual interview develops information. It is far different than the form 1023, which is titled “CHS Reporting Document”, and is based upon a contractual agreement, including expenses and compensation, legally making the informant a temporary agent of the government, however not required to identify themselves as such.
Then, we have the Court telling us:
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.
Now, since two informants testified for the defense, how can it possibly be the determination of the prosecuting attorney as to whether the informant would serve as “the individual’s right to prepare his defense“, as was proven with regard to “the possible significance of the informer’s testimony.”
On to the meat of the whole argument:
Once an informant is known the drug traffickers are quick to retaliate. Dead men tell no tales. The old penalty of tongue removal, once visited upon the informer Larunda, has been found obsolete.
Of course where enforcement of a nondisclosure policy deprives an accused of a fair trial it must either be relaxed or the prosecution must be foregone. The Government is fully aware of this dilemma and solves it every day by foregoing prosecutions in many cases where evidence essential to the defense would require disclosure. But this is not such a case.
Here, then, is the distinction between selling drugs and waving the Constitution. The simple fact that the Second Amendment right was also exercised does not allow that right, the presence of firearms, to denigrate any other portion of the constitutionally protected rights.
If the government cannot afford the right to a fair trial, which they did not do in the first Portland trial, then the subsequent prosecution of the remaining defendants “must be foregone.”
There remain eight unidentified informants. If they are not disclosed, then the government would be in violation of the very Supreme Court decision (Roviaro) that they used to argue their right to not identify the informers.
As far as the government and informants, it seems that Congress has trouble even finding out to what extent informants are used by the various investigative agencies of the government. In recent “House Oversight & Government Reform Committee hearing“(video 6:22), Rep. Stephen Lynch (D. Mass.) points out that the Drug Enforcement Administration (DEA) has 18,000 informants “out there”, spending $237 million last year. The FBI is not included in that figure, though Lynch suggests that the FBI budget is comparable to that of the DEA.
Now, perhaps, there is justification for the DEA to both use and protect their informants, since they are dealing with people that have a high propensity for violence. At about 5:10, Thomas Blanton, George Washington University, makes the point that serious threat, or current investigation, are the only roles for the protection of informants.
So, let’s look at the situation involving the events in Burns, Oregon, this past January and February. There is no threat, as Barrow suggests, and the investigation is over. So, that investigation is not current, but under the guise of risk to informants, the Judge upheld the government position.
During the trial in Portland, on September 21, 2016, government prosecutor Gabriel intentionally elicited testimony from Oregon State Police Officer Beckert that exposed Mark McConnell as an informant for the FBI during the occupation of the Malheur National Wildlife Refuge. So, was there a concern for the safety of a government informant? The intentional exposure defies any consideration of concern for McConnell’s safety. So, apparently, Roviaro had no justification in being applied in McConnell’s case, why would it be of concern with regard to any other informant?
During the course of the trial, two more informants came out of the cold. First was Terri Linnell, who contacted defense attorneys so that she could testify on behalf of the defendants. Then came Fabio Minoggio (aka John Killman), who was found by the diligence of the defendants and their attorney investigators.
Since that time, not one of the informants has been subjected to any harm, though one has been subject to considerable verbal abuse on the Internet.
Since the end of the trial, three additional informants have been exposed. They have not been subjected to death threats, or in any way subjected to any physical harm.
On the contrary, we have one of the informants who has threatened one of the defendants. Deb Jordan has provided a thorough and documented explanation of this threat in her article, “Informant Mark McConnell Receives Surprise Christmas Gift From Activist Jon Ritzheimer“. However, briefly, this past October 11, Jon and some friends were at a restaurant. McConnell found out that Jon Ritzheimer was there, so he went to the restaurant with his girlfriend and threatened Jon, attempting to get him into a fight.
Suffice it to say that those who wave the Constitution are no threat, at all. However, government informants do pose a threat, and should be exposed for what they are — spies upon the American people who are doing no more than exercising their rights — Something that should never be tolerated in this once great country of ours.
List of informants exposed, to date, and associated articles: