FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, v. FRANCIS ...bloximages.newyork1.vip.townnews.com/newsminer.com/content/tncms/... · IN THE UNITED STATES COURT OF APPEALS FOR THE

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FRANCIS SCHAEFFER COX, Defendant-Appellant.

) ) ) ) ) ) ) ) ) )

CA 13-30000 (D.Ct. # 11-22-RJB)

APPELLANT FRANCIS SCHAEFFER COX'S OPENING BRIEF

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

HONORABLE ROBERT J. BRYAN

Sr. United States District Judge MYRA SUN (WA Bar # 14118) Attorney at Law P. O. Box 65786 Los Angeles, California 90065 Telephone (323) 474-6366 Facsimile (323) 488-6757 Attorney for Defendant-Appellant

Case: 13-30000, 06/15/2015, ID: 9575794, DktEntry: 66, Page 1 of 67

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................... i TABLE OF AUTHORITIES ................................................................................... iii I. QUESTIONS PRESENTED .............................................................................. 2

II. STATEMENT OF THE CASE .......................................................................... 3

A. Jurisdiction, Timeliness, and Bail Status ...................................................... 3

B. Nature of the Case, Course of Proceedings, and Disposition Below ............ 3

III. STATEMENT OF FACTS ................................................................................ 4

A. Trial Indictment ............................................................................................. 4

B. Evidence At Trial .......................................................................................... 5

1. Overt Act A - Information Gathering On Government Employees ........... 5

2. Overt Acts B-E/Count 16 Solicitation To Murder - KJNP ........................ 7

3. Overt Acts F-G/Other Acts - "Sovereign Citizen"/"Common Law ........... Court" .......................................................................................................10 4. Overt Acts H-I - December Court Appearance/Entrapment ....................12

5. Overt Acts N-O - February 2011 "2-4-1" Meetings/ Entrapment ............14

7. Overt Acts U/P - Olson And Anderson's Information .............................20

B. Evidence Of Cox' Political Activity At Trial ..............................................21

1. SATF ........................................................................................................22

2. Cox Speeches About The APM ...............................................................22

IV. SUMMARY OF ARGUMENT ......................................................................25

V. ARGUMENT ...................................................................................................27

A. THE DISTRICT COURT ERRED IN ITS MURDER CONSPIRACY INSTRUCTIONS. ................................................................................................27

1. Standard of Review ..................................................................................29

2. The Court Erred In Failing To Instruct The Jury That The Government Had To Prove Cox Conspired With The Mental State For First Degree Murder. .....................................................................................................29

a. The Errors Were Plain. ........................................................................29 i


b. The Errors Affected Cox' Substantial Rights. .....................................32

c. The Errors Affected The Fairness, Integrity, And

Public Reputation of Judicial Proceedings. .........................................35

3. The Court Abused Its Discretion By Not Telling The Jury That Government Had The Burden Of Proving Cox' Agreement Was Not For Self-Defense. ............................................................................................36

B. COX' COUNSEL WAS INEFFECTIVE IN FAILING TO SEEK AN ENTRAPMENT INSTRUCTION, AND COX WAS PREJUDICED. ...............37

1. Counsel's Performance In Failing To Request An Entrapment Instruction Fell Below Prevailing Professional Standards.......................39

2. Counsel's Ineffective Performance Prejudiced Cox As To Murder Conspiracy. ...............................................................................................42

C. THE COURT COMMITTED PLAIN ERROR IN DENYING COX' MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT 16 .....................43

2. No Rational Trier Of Fact Could Find That The Evidence Strongly Corroborated Cox' Intent to Solicit His Co-Defendants To Commit First-Degree Murder. .......................................................................................44

D. THE COURT ERRED IN ADMITTING EVIDENCE OF COX' POLITICAL SPEECH AND ACTIVITY UNDER FEDERAL RULES OF EVIDENCE 403 AND 404(b). ............................................................................47

1. Standard of Review ..................................................................................48

2. The Trial Court Abused Its Discretion In Failing To Review The Evidence And Requiring The Government To Articulate The Basis For Admission Before Trial. ...................................................................................48

3. The Evidence Was Prejudicially Inflammatory. ......................................50

4. The Error Was Not Harmless In Light Of The Other Evidence Presented. .................................................................................................51

5. The Error Was Additionally Not Harmless Where The Jury Received No Guidance About The Purpose of The Evidence's Admission. .........................56

VI. CONCLUSION ..............................................................................................57

CERTIFICATE OF RELATED CASES .................................................................58

CERTIFICATE OF COMPLIANCE .......................................................................59

ii


TABLE OF AUTHORITIES Cases Haupt v. United States,

330 U.S. 631 (1947) .............................................................................................50 Planned Parenthood of the Columbia/Willamette v. American Coalition of Life

Activists, 290 F.3d 1058 (9th Cir. 2002) .............................................................................55

Span v. United States,

75 F.3d 1383 (9th Cir. 1996) ...............................................................................53 Staples v. United States,

511 U.S. 600 (1994) .............................................................................................54 Strickland v. Washington,

466 U.S. at 687 (1984) ................................................................................... 39,42 United States v. Alferahin,

433 F.3d F.3d 1148 (9th Cir. 2006) ............................................................. passim United States v. Alghazouli,

517 F.3d 1179 (9th Cir. 2008) .................................................................. 29,30,32 United States v. Alvarez-Valenzuela,

231 F.3d 1198 (9th Cir. 2000) .............................................................................44 United States v. Bailey,

696 F.3d 794 (9th Cir. 2012) ...............................................................................53 United States v. Begay,

673 F.3d 1038 (9th Cir. 2011) ............................................................................33 United States v. Bradley,

5 F.3d 1317 (9th Cir. 1993) .................................................................................53

iii


United States v. Brown, 880 F.2d 1012 (9th Cir. 1989) .............................................................................53

United States v. Burt,

143 F.3d 1215 (9th Cir. 1998) .............................................................................29 United States v. Chhun,

744 F.3d 1110 (9th Cir. 2014) ....................................................................... 30,32 United State v. Cortes,

757 F.3d 850 (9th Cir. 2014) ...............................................................................40 United States v. Croft,

124 F.3d 1109 (9th Cir. 1997) ....................................................................... 30,31 United States v. Curtin,

489 F.3d 935 (9th Cir. 2007) ................................................................... 48,49,50 United States v. Ellis,

147 F.3d 1131 (9th Cir. 1998) .................................................................. 49,51,54 United States v. Fuchs,

218 F.3d 957 (9th Cir. 2000) ...............................................................................32 United States v. Gergen,

172 F.3d 719 (9th Cir. 1999) ...............................................................................54 United States v. Giese,

597 F.2d 1170 (9th Cir. 1979) .............................................................................53 United States v. Gurolla,

333 F.3d 944 (9th Cir. 2003) ......................................................................... 40,41 United States v. Hale,

448 F.3d 971 (7th Cir. 2006) ...............................................................................46 United States v. Kilbride,

584 F.3d 1240 (9th Cir. 2009) ........................................................................ xxxii

iv


United States v. Kim, 65 F.3d 123 (9th Cir. 1995) ...................................................................... 29,30,31

United States v. McElmurry,

776 F.3d 1061 (9th Cir. 2015) ....................................................................... 49,51 United States v. Melchor-Lopez,

627 F.2d 886 (9th Cir. 1980) ...............................................................................30 United States v. Murillo,

255 F.3d 1169 (9th Cir. 2001) .............................................................................53 United States v. Olano,

507 U.S. 725 (1993) ....................................................................................... 29,35 United States v. Peppers,

697 F.3d 1217 (9th Cir. 2012), ............................................................................29 United States v. Pierre,

254 F.3d 872 (9th Cir. 2001) ...............................................................................37 United States v. Pineda-Doval,

614 F.3d 1019 (9th Cir. 2010) .............................................................................33 United States v. Sanchez-Lima,

161 F.3d 545 (9th Cir. 1998) ...............................................................................36 United States v. Schmidt,

947 F.2d 362 (9th Cir. 1991) ...............................................................................30 United States v. Stewart,

420 F.3d 1007 (9th Cir. 2005) .................................................................. 44,45,46 United States v. Turner,

720 F.3d 411 (7th Cir. 2013) ...............................................................................55 United States v. Waters,

627 F.3d 345 (9th Cir. 2010) .................................................................... 50,51,53

v


United States v. White, 698 F.3d 1005 (7th Cir. 2012) .............................................................................46

Virginia v. Black,

538 U.S. 343 (2003) .............................................................................................55 Wisconsin v. Mitchell,

508 U.S. 476 (1993) .............................................................................................49 Statutes 18 U.S.C. §371 ........................................................................................................... 3 18 U.S.C. §922 ........................................................................................................... 3 18 U.S.C. §924 ................................................................................................ 3,25,34 18 U.S.C. §1111 ......................................................................................................... 3 18 U.S.C. §1114 ......................................................................................................... 3 18 U.S.C. §1117 ..................................................................................................3,27 28 U.S.C. §1291 ......................................................................................................... 3 Rules Fed. R. Evid. 401 ............................................................................................... 26,53 Fed. R. Evid. 403 ............................................................................................. passim Fed. R. Evid. 404 ............................................................................................. passim

vi


Other Authorities Ninth Circuit Model Criminal Jury Instruction 4.3..................................................56 Ninth Circuit Model Criminal Jury Instruction 6.8..................................................28 Ninth Circuit Model Criminal Jury Instruction 8.10...............................................27 Ninth Circuit Model Criminal Jury Instruction 8.20................................................27

vii


IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FRANCIS SCHAEFFER COX, Defendant-Appellant.

) ) ) ) ) ) ) ) ) )

CA 13-30000 (D.Ct. # 11-22-RJB)

APPELLANT FRANCIS SCHAEFFER COX'S OPENING BRIEF

I. QUESTIONS PRESENTED A. Did the district court err by failing to instruct the jury that the

government had to establish Cox conspired to first-degree murder with malice and

premeditation, and had to establish an absence of self-defense, beyond a reasonable

doubt?

B. Was counsel ineffective in arguing that government informants used

threats and trickery to incite Cox to engage in murder-conspiracy or solicitation

without requesting an entrapment instruction?

C. Was the evidence insufficient to convict Cox of solicitation to murder?

D. Did the district court err in admitting evidence of Cox' political activity

and speech under Federal Rules of Evidence 404(b) and 403, without first reviewing

it, without requiring the government to establish the purpose of admitting it before

trial, and without properly instructing the jury on it?

2


II. STATEMENT OF THE CASE

A. Jurisdiction, Timeliness, and Bail Status Francis Schaeffer Cox appeals his conviction after jury trial on charges of

conspiracy to unlawfully possess destructive devices and firearms; six weapons

registration, manufacture, and possession offenses; conspiracy to commit

first-degree murder of officers and employees of the United States; and solicitation

of their first-degree murder. He was sentenced on January 8, 2013 and filed a

notice of appeal on January 9, 2013. ER 1-8. The district court had jurisdiction

under 18 U.S.C. §3231. Jurisdiction lies under 28 U.S.C. §1291. Cox is now

serving a 310-month sentence. His projected release date is October 3, 2033.

B. Nature of the Case, Course of Proceedings, and Disposition Below The trial indictment charged Cox with Count 1, conspiracy to possess

unregistered destructive devices and firearms, 18 U.S.C. §371; Count 2, possession

of unregistered destructive devices (grenades) , 26 U.S.C. §5861(d); Counts 3-4,

possession of unregistered firearms, 26 U.S.C. §5861(d) (silencer and machine gun);

Count 5, unlawful possession of machine gun, 18 U.S.C. §922(o); Count 6,

manufacturing a silencer, 26 U.S.C. §§5861(f), 5871; Counts 7 and 15, carrying a

firearm during and in relation to a crime of violence, 18 U.S.C. §924(c); Count 10,

possession of unregistered destructive device (37 mm. launcher with hornets' nest

round); Count 12, conspiracy to murder officers and employees of the United States,

18 U.S.C. §§1111, 1114, and 1117; and Count 16, solicitation to their murder, 18

U.S.C. §1114. ER 9-32.

Trial was held from May 7, 2012 to June 18, 2012. The jury acquitted Cox of

Counts 7 and 15 and convicted him on the others. 25:9-12. 1 On January 8, 2013,

1Trial transcripts are cited by Volume Number:Page, pretrial hearings by Date:Page. 3


the district court imposed concurrent sentences of 60 months on Count 1, the

firearms conspiracy; 120 months on Counts 2-7, the weapons charges; 310 months

on Count 12, the federal-officer murder conspiracy; and 240 months on Count 16,

the federal-officer murder solicitation. ER 2-4. Cox timely appealed. ER 1.

III. STATEMENT OF FACTS

A. Trial Indictment The trial indictment alleged that Cox and his co-defendants, Coleman Barney

and Lonnie Vernon, possessed and sought to acquire illegal-to-possess weapons as

participants in the Alaska Peacemaker Militia ("APM"). It described their

collective belief that the weapons were for a time when they would either be

compelled to take up arms against the government, or, if the government collapsed,

form a new one. ER 13, 34-36. The government's response to a bill of particulars

motion identified the targeted victims for Counts 12 and 16 as:

• Unspecified federal agents whom Cox believed were looking to kill him;

• Unspecified federal agents who might have drawn weapons on Cox, his wife,

or a "Judge David Bartels" on November 23, 2010, the date of the KJNP

television appearance;

• Based on discovery, "Curtis female DHS, border control," and "Tom Stedler

DHS," and "Trina Bowkamp."

• Based on discovery, Deputy U.S. Marshal James "Jimmy" Johnson.

ER 280-82.

4


B. Evidence At Trial

1. Overt Act A - Information Gathering On Government Employees This act charged that starting in fall 2009, Cox and a co-conspirator developed

a "list" of names, intending to "rely on the list and corresponding information

gathered in order to kill those individuals in the event of a 'government collapse,'

Cox' arrest by law enforcement, and/or a planned takeover of government by them

[the co-conspirators]." ER 14.

Michael Anderson testified under immunity. He met Cox in mid-2008, when

both were delegates to that year's Republican convention. 6:55. Anderson also

worked for Cox in his landscaping business while briefly unemployed. 6:56.

They became friends, and began talking politics beginning in early 2009. Their

discussions centered around "a general concern of economic collapse,…ensuing

martial law as a possibility." This involved "a Stalinesque type martial law" --

"[m]ass arrests, purges of various groups" by "[w]hoever would be enforcing martial

law." In that event, "we would want to be able to protect ourselves rather than just

lay down and let it happen," meaning "[i]f they came to take us or they were taking

our families, taking people out of cars at checkpoints, then we would have to attack

them before they could come for our families." In those circumstances, they would

"kill them before they could come for us." 6:57-59.

On cross-examination, Anderson said neither he nor Cox believed in

overthrowing the government or in using violence to do so. They believed that the

government would collapse from its own corruption, bringing chaos, and society

would then rebuild. 6:158-59. Cox talked of violence only in the context of

protecting oneself from deadly force. 6:160.

Starting in February or March 2010, with Cox' knowledge, Anderson started

"collecting information on who any potential [martial law] enforcer could be, who

5


could potentially carry out those orders, collecting home address information." 6

59-60. He gathered address information from "plat numbers from the state

Department of Natural Resources" or Google. The information "wasn't organized

in a list -- list manner," it "was unusable as that," but was kept on his computer.

6:63. The information was for "a defensive-violent purpose in the future if it ever

came to be." 6:150. He had about 15 to 20 names -- police officers, state troopers,

and one Office of Children's Services ("OCS") worker. 6:194.2

In a spring 2010 meeting, Cox told Anderson that "the feds had sent a hit team

after him and he wanted to know who they might be and where[.]" ER 600.

Anderson had handwritten notes about this talk in two notebooks. ER 615, 617.

One had the notations "I need names of federal marshals" and "SWAT?" were about

identifying the "hit team." This page had three Alaska State Troopers' ("AST")

names, including Lt. Ron Wall's, and a "poor sketch" of the Fairbanks federal

building. Anderson drew it. He suggested Cox could watch, or have a camera get,

entering/exiting car license plates from the parking lot, to compare with vehicles

following him. Finally, the page had these names, given by Cox: "Curtis female

DHS, border control," with the words "3 of them" to the left of that entry; "Tom

Stedler DHS," and "Trina Bowcamp TSA trainer." Anderson never looked any of

these names up. ER 604-9, 616.

In a second notebook, which had a Holocaust denier pamphlet called "The Six

Million Swindle" in it, Anderson wrote "Federal Hit list - Jimmy Johnson: Federal

Marshal; Anc." ER 617-25. Cox did not name Johnson or ask Anderson to find

out about him. Anderson "through my own anger at the time" saw Johnson's name

2OCS wanted to interview Cox' two-year old son following Cox' reckless- endangerment conviction. 7:188-90. The assessment took place sometime in June 2010 at the Coxes' church. 7:192.

6


in the newspaper, and wrote the name in, but never looked up any information about

him. There was no evidence that Cox knew about Johnson. 6:120-21.

Transportation and Safety Administration ("TSA") employee Trina

Beauchamp, U.S. Customs and Border Patrol Agent Nanette Curtis, TSA's

Fairbanks airport security director, Tom Studler, and AST Lt. Wall either knew Cox

personally or knew who he was. Cox' family knew Beauchamp; he had been at her

home for church gatherings. 12:97. He told Anderson she was "a nice lady" but if

one day she "follow[ed] orders" then "she may have to go." 6:116. Cox saw

Curtis at the local Walmart and spoke with her, one-sided, him talking, her listening.

8:67-69. In January 2010, at the airport, Cox also talked with TSA agents Dawn

Baptist and Jason Hollingsworth. A little later that day, Hollingsworth later saw

him talking to Studler, 12:107-10, who did not testify.

Cox asked Anderson for Lt. Wall's address because Cox wanted to go see him.

6:170. Wall had been a neighbor of Cox' parents; Wall's ex-wife was remarried to a

friend of Cox'. 8:131. On June 9, Cox and his wife went to see Wall about the

OCS matter involving Cox' son. Cox was unarmed but wearing body armor.

8:113-15. Cox told Wall about his 3,500-member militia; if he were arrested or his

family separated, they could harm troopers and their families. Wall, hearing an

"implied veil [sic] threat," said Cox would be responsible for any such violence.

8:120-21. He urged Cox to cooperate with OCS and told Cox, who said he wasn't

going to go to court, that he should. The meeting ended politely; Cox hugged Wall

in the hallway. 8:124-6.

2. Overt Acts B-E/Count 16 Solicitation To Murder - KJNP Overt Acts B through E alleged that in November 2010, Cox and his

co-defendants developed a security plan, including firearms, for Cox' appearance on

Fairbanks' KJNP-TV, based on his belief that a "wholly fictitious…hit team" of

7


federal agents was trying to assassinate him. ER 15-16.

FBI informant J.R. Olson3 gained entree to Cox through a mutual contact in

Montana. 9:94-97. FBI case agent Richard Sutherland supervised Olson's

recording of over 100 hours of conversations with Cox, Barney, and Vernon,

13:197, beginning on August 11, 2010, until their arrest on March 10, 2011.

On November 19, 2010, Olson recorded a meeting about Cox' appearance on

November 23 at KJNP-TV in Fairbanks and about Cox' court appearances in

December 2010. 9:144-45. Cox worried that the court would dismiss the charge

rather than let him turn the hearing into a media event. He said they should pack the

courtroom with supporters and have "a whole bunch of press one-liners" ready for

the media. After the appearance, they could "lock arms, form up and just…and just

walk…out of the courthouse…". ER 343-45, 350. This information was echoed

in Barney's notes about the meeting. "Big turnout on 23rd" and "press one-liners"

were checked off. Written in on the right were the words "Press," "walk out," and

"show time rally." ER 506-15.

At KJNP Cox planned to talk about the government stalking him with hired

assassins. He felt he and his family would need "tight security:"

MR. COX: The security team needs to…come to terms with the fact that if somebody shows up at the TV station,…to try to kill Judge Bartel or Marti, you might have to kill him. MR. OLSON: Yeah, be ready to -- MR. COX: Now, we want to avoid that at all costs. We'd rather send them

3 An admitted heavy drug user, 9:73, twice convicted of dishonesty-related felonies in the Alaska courts, 9:59-69, Olson had also engaged in "drug wholesaling" with the Hell's Angels. 11:60, 157. In late 2009, he was charged in state court with theft and evidence tampering equipment. 9:65-70. He became an AST informant in around February 2010. 9:72. When he was sentenced, the federal government supported a significant reduction in his sentence. 11:56-57.

8


packing with their tail between their legs than kill them…

ER 348-49. He then talked of having a "hornets nest" round that, if used, could

"fold people up into a pretzel for like 20 minutes.…[H]opefully we could, like, you

know, get them to go away if -- if they can." ER 349-50.

Gary Brockman, a militia member from about the fall of 2009 until December

2010, 7:219, 247, was at a briefing before the KJNP appearance. He was to be

armed, to check the identification of people going in, and if they did not show

identification, to try to keep them in their cars. They were also to try to keep federal

agents in their cars if they appeared. 7:228-29. He denied being told to kill

anyone, or to use deadly force. To keep a federal agent from getting out of his car,

he would have pushed on the door to keep it closed. 7:251.

Barney had a white erase-board at the briefing. 19:123-24. The board, a

photograph of it, and related handwritten notes were admitted into evidence. The

thirteen smudged, numbered items included #5, reading, "LOOK OUT FOR PLAIN

CLOTHES AGENT DRAWING WEAPON;" #6, "DO NOT SHOOT

U[smudge]ESS LIFE IS IN DANGER;" #7, "DRAWING DOWN ON

SCHAEFFER, MARTY, JUDGE BARTELL -- SHOOT FOR DEFENSE;" #12,

"TROOPER COME TO ARREST -- ALLOW PEACEFUL ARREST;" #13,

"PLAINCLOTHES GET [smudge] ETHA [smudge] FIRST OPTION - HORNET

NEST OCS GAS." ER 496-503. Barney's handwritten notes, headed "Prep,"

listed, as the first five items, "Rifle, Pistol, Armor, OC or CS grenades, phone or

radio." The next twelve, headed "Exicution" [sic], included the words, "Don't shoot

unless life is in danger (Agents)," "Local Kill not OK" and "Agent only if life

danger." ER 515.

At KJNP's parking lot on the night of Cox' appearance, station director

Yvonne Carriker saw two men, one with a rifle, putting up lights on poles. Carriker

9


had known Cox for several years from his being on their shows. 8:13. When she

asked what the men were doing, they said, "security." She was amused, and also

told them where they could plug their lights in. 8:18-19. When Cox arrived, she

asked if he was armed; he said Yes; she told him to take his firearm outside, though

she did not know if he did so. 8:21-22. Brockman, who was in the parking lot,

armed, stopped a woman who was very upset when he asked her to show

identification; she did, and went on her way. 7:243. Keith Fansler, a nearby

neighbor, saw a man in the area with a gun, went to talk to him -- about 50 yards

from his house -- and was also told that the men were there for protection for Cox.

After talking to the man, he didn't call the police. 8:59.

When Ms. Carriker left the studio after the show, the lights and men were

gone. 8:23.

The jury convicted Cox of Count 16. At sentencing, Cox' counsel noted that

a juror had written a letter indicating that the jury felt the KJNP episode supported

only one conviction, Barney's, on a weapons charge. SER 1.

3. Overt Acts F-G/Other Acts - "Sovereign Citizen"/"Common Law Court" Overt acts F and G were in the indictment, which the court did not normally

give the jury. ER 16-17; 11/28/11:18. They were not in the jury instructions. ER

49-51, 63-71. The jury still heard how Olson helped hand out a flyer for a

December 1, 2010 event organized by the "Sovereign Citizen" movement. It read,

"Court Fraud! Thousands of Judgments Void," claimed that the state courts had

been taken over by a for-profit entity, declared that the courts and the Alaska state

bar association were under "criminal investigation," and listed Cox' cell phone

number as an information contact. 9:138-40. The flyer invited people to learn

about overturning judgments and getting damages from the court. ER 586. About

10


40-50 people, including Cox, were at the roughly two-hour meeting. 9:142-43.

The jury also was read a sheet, seized from a co-defendant's house, describing how

to assert one's "sovereign status" in "3 Steps." ER 545-46, 556-57.

Cox got a "common law court" order, fearing that he was being hunted.

Phillip Clark, who had supported Cox' 2008 run for a state legislative seat, which

Cox lost narrowly, 7:14-16, recalled talking to Cox in June 2010, seeming scared.

Steven Cooper, an Assistant United States Attorney who knew Cox, said they last

had contact in mid-2010, when Cox appeared jittery, looking over his shoulder.

19:15. Some time that summer Steven Gibson, a young military police officer at a

local Army post, Ft. Wainwright, told Cox that a federal marshal, while getting

footage of a Cox visit there, had said that Cox was crazy, and if he didn't give up his

son to OCS the police would assist OCS and kill Cox. 15:251-54. Cox told Clark

a judge told him that six Bureau of Alcohol, Tobacco, Firearms and Explosives

agents had been sent to kill him, and Cox was going to Ft. Wainwright, a local Army

post, "for sanctuary." 7:81. When Cox and his wife went to Ft. Wainwright,

17:21-22, someone with them had a "protective order" dated June 11, 2010 directing

the "provost marshal's office" to protect them "by all appropriate means" from

"arrest, detention, or other injury whatsoever, especially the actions of the Alaska

courts…". 17:224-26.

In January 2011, a "common law court" trial" convened at a local Denny's

restaurant. Olson attended both a meeting held earlier and the "trial." The "court"

issued "subpoenas" to the state and court employees involved in prosecuting Cox;

they did not come. Cox' wife called in by phone and spoke. Cox was "acquitted"

on the state reckless-endangerment charge to which he had previously pleaded

guilty. He was also "acquitted" in the pending case. 9:158, 162-66. The

"charges" against the judiciary included a wide variety of acts, such as "perjury of

oath," "enticement into slavery," "kidnapping a minister of a foreign jurisdiction,"

11


"securities fraud," and "Acts of War under a declaration of peace." ER 593-97.

4. Overt Acts H-I - December Court Appearance/Entrapment The allegations in Overt Acts H and I dealt with a security plan and what Cox

told a judge and a court security officer at December 2010 court hearing. Olson and

others went to one of these hearings. They trained to provide "security" by

practicing locking arms around a person standing in as Cox, and walking up and

down stairs. 9:134-6. They also filed sovereign-citizen papers. 9:145-7.

Samples read to the jury, supposedly "served" on Alaska state judges, purported,

among other things, to direct them to stay a certain distance from Cox. ER 542-43.

According to a transcript, Cox and the security officer had this exchange:

SCHAEFFER COX: the only reason I was here today was because I was afraid of dude [sic] with a badge and a gun. SERGEANT SCHOENBERG: Oh, please! SCHAEFFER COX: Now, we've got you -- we've got you, ah… SERGEANT SCHOENBERG: You gotta be kidding me? SCHAEFFER COX: We've got you guys outmanned and outgunned, and we could probably have you guys all dead in one night, and… SERGEANT SCHOENBERG: Like I said,… SCHAEFFER COX: …how is that gonna… SERGEANT SCHOENBERG: Schaeffer, I'm not your problem.

ER 714-5.

A hearing transcript shows that Cox said to a judge:

[Q]uite frankly there is a lot of people out there that would -- and I'm just gonna go ahead and talk about this on the record, because I know I might as well (indiscernible) and forthright. There's a lot of people out there that

12


would just as soon come and kill you in your home at night, than come and argue with you in your court by day. And that is just as bad and wrong as, ah, pretended governments or governments that are acting outside of the law, or -- or, in contradiction of the universal principles of (indiscernible) with the universe -- they would do us harm.

ER 493-5.

Cox testified that when he said this, he was thinking of a person named Bill

Fulton. 17:84. Fulton, a government informant, had talked with Cox about six

months before this in a Fairbanks bar, Pike's Landing. The day after their talk,

Fulton's friend, Aaron Bennett, held a meeting to confront Cox about what Fulton

said was Cox' supposed plan to arrest judges. 16:112, 118. Cox, Zerbe, Bennett,

Michael Anderson, and Bill Rensel, another Cox supporter, came. Anderson saw

Fulton as "extremely gruff, a fat drunkard, rude, extremely violent," and belligerent

toward Cox. 6:81. Fulton wanted Cox to talk about the "plan" they had

purportedly discussed to go after judges, but realized Cox was not doing that.

15:150-2. Zerbe testified that when he himself insisted there was no plan, Fulton

"came at me with a knife. He assaulted me." 15: 88. Cox was uncertain or

confused, and did not endorse the idea of arresting judges. 6:83-6 (Anderson),

15:86-9 (Zerbe); 15:219-20 (Rensel), 16:123-5 (Bennett).

Cross-examining Cox, the government played clips Fulton made, without FBI

authorization, of his talk with Cox the day before the group meeting.4 In one,

Fulton asked Cox whether the common law "grand jury" has issued warrants; Cox

simply repeated the question. Fulton asked if they have "charged people;" Cox said

4The government had the clips because it said that Fulton recorded -- also without authorization -- a meeting with his FBI handler in which he played parts of the Pike's Landing meeting recording, which were picked up by that tape. The handler did not keep the Pike's Landing tape itself. It kept only Fulton's tape of his conversation with his handler, with whatever was audible of the Pike's Landing tape. 17:233, 239-40.

13


no, then that they are "working as fast as they" can. In another, Cox described the

"protective order" issued by the grand jury and shown at Ft. Wainwright. In 934-3,

the "moral" basis for these actions was referenced, and Cox asked Fulton, "what

would you think?" about executing warrants if they were issued. ER 721-37.

5. Overt Acts N-O - February 2011 "2-4-1" Meetings/ Entrapment

These acts dealt with an Olson-recorded meeting on February 12, to discuss

Cox' February 14 misdemeanor court appearance, alleging that they "developed" a

"2-4-1" plan if Cox was arrested for failing to appear: if any one of them was killed,

the others should kill two opponents, specifically law enforcement, judges, or

district attorneys.

Earlier that month, Olson and co-defendant Lonnie Vernon went to a militias'

convention for Cox. 9:178-9. Fulton was also there, 9:197, though Olson did not

know Fulton was an informant. 9:213. Olson remarked that "we need to make it

clear that he [Cox] needs to have a plan" if he was not going to appear in court.

Vernon said Cox was saying he was "just not going to go," but, Vernon wondered,

"then what?" Olson implied that Cox would be "gone" once arrested, meaning

killed. ER 360. On February 6, after returning, Olson met with Cox. The

meeting was unrecorded because Olson's recorder malfunctioned, 10:13, but Cox

testified that Olson talked about the Israeli policy of "one for one," or "141" -- that

for any one Israeli killed, one enemy member would be killed. Cox perceived him

to be supporting Bill Fulton's violent tendencies, and was deeply alarmed. 17:76.

On February 12, Olson recorded the meeting about Cox' February 14

appearance, which included Barney, Olson, and a third man, Ken Thesing.

10:20-1. Cox showed a power of attorney "in case I get killed or something," to

which Thesing said, "50 or so bodies [would] hit the dirt" if that happened, to which

Cox said, "Good." ER 377. In the next excerpt, Cox asked them their views on a

14


"141" policy, or, Cox said, even a "241" policy -- two government officers killed for

every one of them killed -- to make the price of harming one of them so high that the

government would leave them alone. He then immediately described the concept

as "horrifying" and the "most scariest thing for me to talk about." ER 379.

At this meeting Olson suggested going beyond "241" to "541" ER 379. (He

acknowledged that in suggesting "541" he was "get[ting] into it a little too much,"

and that his handler, Agent Sutherland, later told him to take a less aggressive

approach. 10:26.) He said that Cox should "blaze the trail," that "they want you

dead because now you're a martyr," and he evoked incidents at Waco, Texas and

Ruby Ridge, Idaho. ER 385. Envisioning the police arresting Cox on the way to

the store, he brought up a topic to which he would return:

OLSON: …They…they grab you; who do we go after then? Do we just go randomly grab two troopers? Go randomly grab a judge…how do we determine who we go for on -- on the two for one? COX: Now keep in mind we are all just speculating now.

ER 394. Asked by Olson what to do if they seized judges, Cox said "we're not set

up for that," and later that "I don't think we're there yet." He said that although

dying was "not too scary for me," the idea of "Killing? I don't want to do that to

somebody." He was "definitely willing" to do it, yet to kill would be "untying a

knot that can't be retied." ER 397. It would be "morally" acceptable to "arrest"

judges; the one in his state case could even be justifiably killed -- but not by a person

who was "long suffering and peaceful," that he wanted to "avoid that as long as we

can." ER 392.

Thesing suggested Cox "find a really good disguise or go." Cox responded

positively to this idea, saying, "that's great." ER 402-3. Barney said that they

could not succeed with killing people if they were arrested because they did not have

the capability for it. In the second-to-last excerpt, Cox envisioned, if he was

15


arrested, "hit[ting] them with paperwork every way I can," while his supporters

would "raise hell" by picketing, engaging in peaceful protests, cranking up sirens,

putting up fliers, and delivering cards to judges' houses. They were not strong

enough to do anything else, he said, though they would work toward being able to do

more. Thus, as to "Order 241," Cox said they would "bluff it, pray, and train," and

until "it can become real," they would take the position of "a total Gandhi." ER

410-13, and not a "Rambo. 11:82.

At another point, closer to the end of the meeting, Olson said that Aaron

Bennett and Bill Fulton and their "people" were ready to go, and mentioned

grenades. Cox remarked that he wanted eight-, not two-second fuses, so as to better

send "shrapnel flying," but almost immediately after said that "grenades scare me."5

ER 418-19.

Cox did not appear in court. 10:54-55. In a meeting held that day he said, if

he was arrested, his supporters should call the media and perform "passive-

aggressive shenanigans out the wazoo." When Olson asked him, "At what point

does it get bloody?" Cox replied, "I don't know." When Vernon suggested it

would when the police kicked the door in, Cox replied, "I prefer to be in control of"

the situation. They would have to "[have] our crap together enough to…make a

good effort at round two." ER 422-24. The next day, February 15, at yet another

meeting at the Vernon house, he said that if he was arrested, "then I'll just go with

them. No sense in you guys dying at this point." When Vernon disagreed, Cox

replied, "we'll deal with it when it gets here." ER 428-29.

On February 19, Olson recorded another meeting in which he asked several

5About two weeks later, discussing the purchase of grenades with Olson, Cox said, "Ooh, ouch" to the proposed price. If the price were lower, Cox said he would "stock up," but then said, "How often are you going to throw grenades anyway?" GE 29-04, 18:101.

16


times, and in different ways, about killing government officials under the 2-4-1"

strategy. The first such exchange, after Olson pictured Cox arrested and "in a

cage," was:

OLSON: …You know, tit for tat kind of thing.

COX: Yeah.

OLSON: Well…that's what I'm wanting to know.

COX: Lawful.

OLSON: It's -- it's awful, yeah, but what's --

COX: No, no, lawful.

ER 450-1; emphasis added. Cox then talked about "declared war" and the

"Reconstruction Act" and about something Olson should read. Later, Olson

approached the issue again:

OLSON: I think we need to have that stuff planned out. COX: Yeah. OLSON: You know, what's to kick into place if such and such happens, you know. Because if they get you…in a cage, you're not going to be able to communicate nothing to us. COX: I just hate to see you guys just because I die and I'm in prison, I hate to see you guys -- OLSON: Well, …what good is it for us, Schaeffer? COX: Yeah. OLSON: …You know, I don't want my children …involved in this tyranny.…I'd rather die a free man than -- than being in bondage with them. COX: Pass it on to your children.

ER452-53. Olson also asked what to do if the authorities "swoop[ed] in" and

17


arrested Cox or Vernon, "and we know our number's next.…Then…what initiates

the -- the 241?" Cox said instead:

COX: When avoiding capture, allowing them to -- okay, I'll tell -- I'll show you. Here's why time's on our side. Okay, okay, because by -- by avoiding capture, they run out of money. They lose more credibility. People begin to hurt. All of those things, everything as this advances is tipping the scale in our favor. OLSON: Mm-hmm. COX: All right, so, 241, in my estimation, is only valid when the option of a -- of somehow allowing that scale to continue slowly tipping in our favor is totally out of the question and not doable.

ER 465. Cox reflected that "I could go out and sock it to them," meaning the

authorities, but "[i]t would be a detriment to the war," so he instead envisioned

"get[ting] smuggled through Canada with nothing but a gym bag and a rifle, and we

lose everything and let the scales keep tipping…that's what I think has the brightest

future for my…family." ER 466. Later he added, "[C]osting the enemy is not my

objective." ER 467.

Finally, Olson posited another scenario:

OLSON: …I know this sounds crazy but…they take Marty [Cox' wife] for aiding and abetting, and they send your kids off to OCS, then -- then is it an order to initiate 241? You know, what -- what -- what if they come and -- and -- COX: Yeah. OLSON: -- for aiding them and your kids are gone, too. BARNEY: Yeah. OLSON: I mean, this is -- it's not going to happen, but -- but I'm just -- COX: (Inaudible) That's an order.

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OLSON: I'm just -- COX: That's an order. When the kids -- when they come for the kids -- BARNEY: When they start taking your family.

ER 483-84. Later, Olson elaborated on his own response to this scenario, which

was that, "I'm going to touch their wives and kids. I'll go in for them. I'll go -- I'll

go, you know, I don't know how you guys feel about that, but." Cox' response was,

"I'm not going to target women and children," he was "not opposed" to killing them,

yet he was "certainly not gonna shoot them if I can," and indeed "would go out of my

way to not hurt women and children." ER 485-86.

After conferring with Agent Sutherland about Cox' decision to leave the state,

Olson offered the help of a "trucker friend" to drive Cox, his family, and their

belongings out of Alaska. 10:102-3. Cox was arrested on March 10, 2011, while

meeting with Olson and his "trucker friend" about the trip. 2:66, 70.

6. Overt Acts Q/W - Possession of Hand Grenades/Machine Gun

These acts charged that Cox and a co-defendant removed eight grenades and

other weapons from a "weapons cache." On February 4, Cox, Olson, and Barney

went to a Cox rental property to move items in preparation for Cox' departure.

10:110-2. Olson recorded his comments to himself on opening an ammunition can

and seeing eight pineapple-shaped grenades in rows, "with the pins and…all ready

to go." He left the can in Barney's truck and did not see it again. 10:117-19. No

such grenades were found in multiple post-arrest searches. 14:112.

From a search of a Barney trailer, Cox did claim 17 round-shaped training

grenades with used fuses attached. 4:124, 13:21, 17:147-48. These were not

unlawful to have, being used for military grenade training, and were vented with a

hole in the bottom to prevent injury. 4:126-28. In another box were one pineapple

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and one round grenade, with no explosive but with unused smoke-grenade fuses

attached. 4:138-41. Also found, in disputed proximity to these were powder and

JB Weld, a household epoxy with many uses, that could fill the holes in the bottoms

of the round grenades to force an explosion, and powder. 4:141-2. These items

could have made four functioning grenades. 4:149-50. Another way to fill the

hole would involve creating threads for a bolt and inserting it. 4:178-79. Cox

talked of this method on one of Olson's recordings. 9:189. However, no bolts or

"tap sets" that would fit the grenades to fill the holes were found. 4:156-57. The

government used a different supply of JB Weld and powder, 12:230, 236, and an

electric match (none was found at the scene) to test the grenades. 12:226. In

closing, the government pointed both to practice grenades and other items, or to

what Olson said he saw, as proof Cox' possessed grenades. ER 200-1, 217-18,

234-35.

In a post-arrest search of Cox' home, the FBI found government's exhibit

("GE") 408. 2:211, 3:56-57. Its expert said it was a STEN machine gun, made by

the British during World War II, and he was able to fire it in full automatic mode, but

did not videotape the test; the jury saw a video of a different STEN being fired.

13:46-48. Cox testified that he made the weapon, "styled after a…World War II

Sten gun." He began making it when he was about 16 years old, using parts bought

at gun shows and hand-milled parts. He could not get it to fire. 17:9.

7. Overt Acts U/P - Olson And Anderson's Information

These acts charged Cox with giving home addresses of law enforcement

officers to Olson, and telling him to get additional similar information from a third

person.

After the February 12 meeting, having been told by Agent Sutherland to get

Cox' information on possible targets, 10:41, Olson called Cox, who sent him to

20


Anderson for the names on the computer. Anderson rebuffed Olson, then destroyed

the drives with the names. 6:153-54. Anderson wanted to deal only with Cox,

10-67, but Cox then referred Olson to the Vernons; when Vernon's wife called,

Anderson "got mad at her." 6:143. On March 7, Anderson told Cox and Barney

he had destroyed the drives.6

B. Evidence Of Cox' Political Activity At Trial

The court denied a Cox motion in limine to exclude evidence, ER 323-24, that

the government referred to in its opening statement:

Schaeffer Cox was the commander and leader of a militia which he formed and named the Alaska Peacemakers Militia.…The defendants were also involved with a number of other project [sic] groups in the Fairbanks area. You're going to learn about these groups during the course of this trial. They're groups related to the Sovereign Citizens Movement. And you're going to learn that sovereign citizens in general are individuals who of varying degree challenge the authority of the federal government. Some of the groups that these defendants were involved with are the Alaska Assembly Post, the Alaska Peacemakers Militia ["APM"], the Second Amendment Task Force ["SATF"], and the Liberty Bell Network ["LBN"]. And you'll learn more about those groups during the course of this trial.

ER 284-85. On direct examination, Anderson described each of these groups

briefly. The SATF was "an occasional gathering of people who wanted to talk

about gun rights." The LBN was "a responder program. If someone thought their

rights were being violated by the police,…they could call the Liberty Bell and

people would show up…and document what had occurred." 6:67. The APM, he

said, was "a group assigning itself to police the community." Asked, "That's how

you understood it?" he answered, "If there was a social breakdown, I understood it

6 Sentencing counsel later presented an email from the case agent that cited Cox' plan to leave Alaska and doubted the importance of the "list" at that point. SER 9.

21


that way." 6:68.

1. SATF

In November 2009, Cox spoke at the Veterans of Foreign Wars Hall in Plains,

Montana, to the Sanders County Patriots (the "Plains" speech). A reporter who

covered the event said Cox discussed "the government, women's roles, God, the

value of the dollar, militia" -- "a lot of things." 4:220. According to a speech

transcript, Cox said as to gun control that he wished the government would simply

come to try take people's guns, and they could "jack one in the chamber and see how

that shook out;" he assured an audience member that he was "packin." ER 697-89.

He talked of a police officer telling him that he was "on our list," to which he

answered, "[Y]ou're on our list." But, Cox said, "if everybody is on the list, nobody

is on the list," and that this was why he and his supporters gathered petition

signatures and published the petitions, so the like-minded would "know they were

not alone[.]" ER 700-1.

Philip Clark saw the SATF as having wide support in Fairbanks; customers at

his job signed its petitions. 7:88. One petition said that when a government is "no

longer a fit steward," then " the people may "entrust [its] power to new stewards[.]"

It said that if the government sought to "further tax, restrict or register firearms,"

people had the right to "alter or abolish them and institute new government[.]" ER

720. One of SATF's principles suggested members should not convict defendants

charged in firearms cases. ER 585.

2. Cox Speeches About The APM

Cox said in the Plains speech that the APM had 3,500 members and "bombs,

and all kinds of nifty stuff," like "airplanes… rocket launchers, and grenade

launchers, and claymores, and machine guns…And -- and the reason for this is for us

to protect ourselves." ER 702-3. The APM had no such membership or arsenal.

22


J.R. Olson said that 8 to 12 recruits were at his first event, a commissioning

barbecue, plus 6 to 8 members. 9:107. Philip Clark, who permitted a few APM

trainings on his family's property, counted six people, including him, at the first

training, and more at the second. 7:35-37. Many of the members were in very

poor physical shape; a former military training officer was invited to train them a

couple of times; members brought their own firearms to training sessions, with some

not working in the cold. 7:35-38. Grenades, rocket launchers, claymores, and

machine guns were not used at the trainings.

The FBI knew Cox had no weaponry described in the Plains speech, but the

investigation started because he "was advocating overthrow or armed resistance to

the government in certain circumstances." 13:157. The jury saw an APM uniform

shirt and copies of the group's "No-Fluff Manual" with the words "Defend All,

Aggress None" on the cover, ER 558-70, describing automatic weapons handling,

proper targeting methods, shooting stances, fighting techniques, and patrol

formations and maneuvers. Another document headed "Acts of War" included

"firearm restrictions" to "Declaration of Martial Law" to "Involuntary involvement

in anything." ER 593.

Other evidence on the APM included:

GE 807, a newspaper article, much of it read to the jury. ER 647-51.

"'Power comes from the barrel of a gun,' said Schaeffer Cox of Fairbanks, a leader of

the Second Amendment Task Force in Alaska and co-founder of the Fairbanks-

based Alaska Peacemakers Militia. 'The federal government is all power and no

authority.'" The article went on:

"There are several types of force, Cox said - monetary force and social force, as well as "violent, deadly force. "'My greatest fear is that they're not going to hear us until we speak to them in their language, which is force.…We would be doing a wrong, bad

23


thing if we skipped over all those other forms of force and we jumped right to bloody force, but right now, America is headed to bloody force.…I am not opposed to violent, bloody force. I know that is hard to say to a big group of people. It sounds kind of bad but that is something that we've got to reckon with…'".

GE 921 and 923 were video clips admitted on Agent Sutherland's redirect

after, on cross-examination, he had agreed that Cox often said, "Liberty always

wins, tyranny self-destructs" or the like in his speeches. ER 707-9. In GE 921,

Cox again said he had a 3,500-member militia "ready to speak to the government in

the language of force," though "we hope [it] won't have to happen," and that a militia

was "anyone with a gun and a conscience." In GE 923-01, Cox said "it" was

"hitting the fan" in Fairbanks; though he did not want to see it, they were "right on

the edge of having blood in our streets." He said "revolutions are not instigated,

they are provoked by the government[.]" In GE 923-02, referring to the OCS

matter, he said, "OCS can suck it," that he was putting the (actually non-existent)

militia "on high alert," and, as he had said elsewhere, that they could have "everyone

dead in one night."

GE 917 and 918 were admitted during Cox' cross-examination. They were

video clips of Cox' appearance, mentioned by Anderson in his direct examination, at

a political gathering called the Continental Congress. In GE 917, Cox told the

interviewer that people concerned about corrupt government would not be

responsible if "we say the government is breaking the law, and somebody goes off

and starts shooting judges." Similarly, in GE 918, talking to the same interviewer,

Cox declared that "we have a duty to disobey." If "complacent" and

"intimidate[d]…into silence while they break the laws of the universe," the "blood

that our government spills is…on our hands;" he, for one, would not "blacken my

conscience with a silence about my government's lawless conduct." He would

"shed blood" to fight it. He called on everyone to do the same.

24


GE 920, another clip, ER 704-6, was used in the cross examination of Cox

witness Steven Gibson, the Ft. Wainwright soldier who told Cox what he had heard

from a marshal about helping kill Cox through the OCS. This clip also referenced

Cox' "most profound fear" about having to use the language of "force" with the

government; he added, "Don't get me wrong. I'm not against violence. I am not

against violence. Ok? I am not against spilling blood for freedom. I'm not

against, I will kill for liberty…". The government asked Gibson, twice, about

whether he agreed with Cox' views or held similar views. 16:25-26, 16:33-34.

The record does not reflect that the district court reviewed these exhibits or

elicited the government's reason for admitting them before trial.7 The jury

convicted Cox of all counts on which he was charged, except 7 and 15, the alleged

violations of 18 U.S.C. §924(c).

IV. SUMMARY OF ARGUMENT On the murder conspiracy, instructional errors denied Cox due process and

effective assistance of counsel. The district court incorrectly told the jury that the

government did not have to establish that Cox conspired with malice and

premeditation, the mental state required for the underlying offense. The district

court also incorrectly failed to tell the jury that the government had to prove an

absence of self-defense beyond a reasonable doubt. This was plain, non-harmless

error, affected Cox' substantial rights, and adversely affected the trial's integrity.

Further, Cox' counsel referenced the informants' attempts to pressure Cox

toward violence in his opening, presented evidence of their pressure, and in closing

rendered ineffective assistance of counsel by failing to seek an entrapment

7Other exhibits of this kind included: GE 193, 199, 209, 224, 285, 300, 322, 420, 427, 443, 446, 469, 472, 473, 531, 532-537, 753, 764, 766, 796, 803, 805, and 926.

25


instruction.

On the murder solicitation, the evidence was insufficient. It did not show

that Cox actually intended anyone to commit that crime.

Finally, notwithstanding Cox' pretrial motion to exclude, the court erred in not

reviewing before trial, not getting from the government its basis for admitting, and

then admitting, evidence about Cox' militia and political activity, under Fed. R.

Evid. 401, 403 and 404(b). Again, this error was not harmless, and it affected the

fairness of Cox' trial on all counts.

26


V. ARGUMENT

A. THE DISTRICT COURT ERRED IN ITS MURDER CONSPIRACY INSTRUCTIONS. On Count 12, the court gave a modified version of Ninth Circuit Model

Criminal Jury Instruction 8.20, describing the offense as "conspiring to murder

officers and employees of the United States in violation of Section 1117 of Title 18

of the United States Code." §1117 itself was not in the instructions. The

conspiracy's elements were (1) entering into an agreement to "murder officers and

employees of the United States," with no reference to either victims or the degree of

murder, and (2) joining in the conspiracy "knowing of at least one of its objects and

intending to help accomplish it," and (3) the commission of an overt act by a

member "for the purpose of carrying out the conspiracy." ER 63-64. The overt

acts in the third superseding indictment, except Overt Acts F and G, followed. ER

63-71.

For the underlying-offense instruction the court adopted Ninth Circuit Model

Criminal Jury Instruction 8.10, for murder, with added language italicized below:

In order for you to properly consider the charge of conspiracy to murder officers and employees of the United States, you must understand the elements of the crime of murder of officers and employees of the United States. The government is not required to prove these elements in this case, but the government is required to prove that the defendants entered into an agreement to commit that crime. The crime of murder of officers and employees of the United States has four elements: First, the defendant unlawfully killed one or more officers and employees of the united States; Second, the defendant did so with malice aforethought;

27


Third, the killing or killings were premeditated; and Fourth, the victim or victims were killed while engaged in his/her official duties, or on account of the performance of his her official duties… Use of force is justified when a person reasonably believes that it is necessary for the defense of oneself or another against the immediate use of unlawful force. However, a person must use no more force than appears reasonably necessary under the circumstances. Force likely to cause death or great bodily harm is justified in self-defense only if a person reasonably believes that such force is necessary to prevent death or great bodily harm. A killing in self-defense is not unlawful. To kill with malice aforethought means to kill either deliberately and intentionally or recklessly with extreme disregard for human life. Premeditation means with planning or deliberation. The amount of time needed for premeditation of a killing depends on the person and the circumstances. It must be long enough, after forming the intent to kill, for the killer to have been fully conscious of the intent and to have considered the killing.

ER 71-3.

As to the self-defense part of this instruction, Cox sought language from

Ninth Circuit Model Criminal Jury Instruction 6.8 that "the government must prove

beyond a reasonable doubt that the defendant did not act in reasonable self-defense."

ER 152. He argued that the defendants' plan to only act in self-defense, made

amply clear by evidence like the writings on the white erase-board, meant "there was

no unlawful objective of killing federal officials." ER 87-89. The court did not

add this language.8

8 Cox also sought an instruction that the jury had to find Cox reasonably believed the government's collapse would occur, with government agents shooting civilians.

28


1. Standard of Review

Murder-Conspiracy Mental State. Cox did not object to the

murder-conspiracy elements instruction's failure to tell the jury that it had to find he

conspired with the mental state for murder, or the underlying offense instruction that

said the government did not have to prove that mental state. Review is for plain

error. This Court will reverse if (1) there is error, (2) it is plain, (3) it affects

substantial rights, and (4) the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings. United States v. Kilbride, 584 F.3d 1240, 1247

(9th Cir. 2009). An error is plain if it is "clear and obvious." Id.; see also United

States v. Burt, 143 F.3d 1215, 1218 (9th Cir. 1998); United States v. Olano, 507 U.S.

725, 734 (1993).

Murder-Conspiracy Self-Defense. Cox objected to the court's self-defense

instruction. This Court normally reviews de novo whether a jury instruction

misstates an element of a crime; if an instruction has been given, the language and

formulation are reviewed for an abuse of discretion. United States v. Peppers, 697

F.3d 1217, 1220 (9th Cir. 2012), cert. denied, 133 S. Ct. 1477, 185 L. Ed. 2d 378

(2013).

2. The Court Erred In Failing To Instruct The Jury That The Government Had To Prove Cox Conspired With The Mental State For First Degree Murder.

a. The Errors Were Plain.

Where jury instructions fail to describe an element of a conspiracy offense,

the error is plain. United States v. Alghazouli, 517 F.3d 1179, 1189 (9th Cir. 2008).

The first-degree-murder-conspiracy elements and underlying-offense instructions

here were plainly erroneous. When the charged offense is a conspiracy, it is

well-established that the intent necessary to commit the underlying substantive

The court did not give this "contingencies" instruction. ER 94-8. 29


offense is an essential element of the crime. United States v. Kim, 65 F.3d 123, 126

(9th Cir. 1995), quoting United States v. Schmidt, 947 F.2d 362, 367 (9th Cir. 1991)

and United States v. Melchor-Lopez, 627 F.2d 886, 890 (9th Cir. 1980). Here, the

jury had to find that Cox conspired with malice aforethought and premeditation, the

mental states for first-degree murder. See United States v. Croft, 124 F.3d 1109,

1121-1122 (9th Cir. 1997) (elements instruction for conspiracy to murder federal

officials affirmed where underlying crime was second-degree murder, requiring

only malice aforethought and not premeditation). The instructions here clearly and

obviously failed to include this requirement.

The underlying-offense instruction was also plainly erroneous. Since first

degree murder was the underlying crime allegedly being planned, the jury had to be

instructed about its elements. See United States v. Chhun, 744 F.3d 1110, 1117 (9th

Cir. 2014); Alghazouli, 517 F.3d at 1189. But the instruction the court gave only

aggravated the harm of the earlier omission about the mental state for murder. The

court told the jury that "you must understand the elements of the crime of murder,"

but "[t]he government is not required to prove these elements." The court then read

the elements of murder that the government was "not required to prove," including

malice aforethought and premeditation. This wording affirmatively removed the

requirement of proof of those elements.

The error here can be seen in a comparison with Croft. There, the defendant

was charged with conspiring to commit second-degree murder of the local United

States Attorney. The elements instruction there told the jury that it had to find "an

agreement to kill then United States Attorney Charles Turner with malice

aforethought." Croft, 124 F.3d at 1122, emphasis added. There was no

comparable language here. The Croft jury also was told that it had to find that Croft

"specifically intended to help accomplish the murder" of the named victim by

joining the conspiracy. The instruction here, by comparison, said only that the jury

30


had to find Mr. Cox joined the conspiracy intending to accomplish one of its objects.

In light of the indictment's language about a "planned takeover of the government

by" the co-conspirators, Agent Sutherland's saying the investigation was prompted

by the talk of "violent overthrow," and the government's argument that Cox' acts

were all in aid of a "sovereign republic of Schaeffer Cox," this was especially

misleading. Finally, the instructions in Croft did not contain the misleading

language in the underlying-offense instruction here, which told the jury that the

government "[was] not required to prove" malice aforethought and premeditation.

The underlying offense instruction compounded the fundamental flaw in these

instructions: it suggested that Cox did not have to conspire with those mental states

for conviction.

The language requiring proof that Cox "intend[ed] to help accomplish" the

conspiracy's goals did not cure the error. This phrase referred to the mens rea

necessary for joining the conspiracy -- not the mental state needed for the underlying

offense of first-degree murder. This Court held as much in Kim. There, the

defendants were charged with structuring a bank transaction, which requires proof

of awareness that the transaction is illegal. Kim, 65 F.3d at 126. The instructions

there, as here, told the jury that the defendants had "to know of, and intend to further

the 'unlawful purpose'" of the conspiracy. However, this Court held that "[t]he use

of 'willfully' in the conspiracy instruction refers to the joining in the agreement, not

the mens rea of the substantive offense." Id. This distinction mattered because

instructing that a defendant had to know a conspiracy's object -- to structure a bank

transaction -- was not the same as instructing that the defendant had to know it

violated the law, as required for the underlying structuring offense.

The same reasoning applies here. Telling the jury it had to find Cox joined

the conspiracy knowing of "at least one of " its objects, and that he "intended to help

accomplish it," did not tell the jury that, to convict Cox of conspiracy to commit

31


first-degree murder, he had to have conspired with malice aforethought and

premeditation. It instead affirmatively told the jury that they need not find these

elements. Under the long-standing law of this circuit, these two errors in the

instructions on the conspiracy to commit first-degree murder were clear, obvious,

plain.

b. The Errors Affected Cox' Substantial Rights.

A defendant's substantial rights are affected if he was prejudiced -- if there

was a reasonable probability that, but for the claimed error, the result of the

proceeding would have been different. Alghazouli, 517 F.3d at 1190. The

omission of a required element affects substantial rights when it affects the

proceedings' outcome. Id. at 1157-1158; United States v. Fuchs, 218 F.3d 957 (9th

Cir. 2000); In analyzing whether a defendant's substantial rights were affected by an

instruction that omitted an offense element, this court has typically found an effect

on substantial rights where the other evidence is not "overwhelming." Chhun, 744

F.3d at 1123; Fuchs, 218 F.3d at 963.

The murder-conspiracy evidence here, stripped of Cox' vivid speeches and the

multitude of documents about his political leanings, was:

• Michael Anderson's testimony about his computer "list," which, though

destroyed, survived in part in his notes about Border Patrol Agent Curtis, TSA

airport chief Studler, and Deputy Marshal Johnson, and evidence of Cox'

verbal encounters with Curtis, Studler, and other TSA agents;

• Cox' KJNP security detail, including GE 2, the recording of the meeting, and

the written notes about it, the white dry erase-board with instructions for

participants, and testimony from APM and other eyewitnesses, including

KJNP staff;

• If admissible, see V.D, infra, Cox' political advocacy, including the vivid

32


pronouncements in his speeches.

• His weapons acquisition and possession.

Anderson's destroyed "list" and surviving notes were not overwhelming proof

of Cox' involvement, with malice and premeditation, in a murder conspiracy. The

"list" was of state, not federal, officers, and Cox used Lt. Wall's address information

to go, unarmed, to talk to him. It is unclear that he needed Ms. Beauchamp's

address to have contact with her, since he had been to her home. He told Curtis that

her agency was "ok." Anderson never told Cox about Deputy Johnson. And Cox,

by first referring Olson directly to Anderson, a stranger, and then the Vernons,

hardly prioritized getting the information to Olson. Again, though the jury did not

hear it, there is even evidence that the case agent wondered about its importance.

More importantly, Anderson testified that the names of anticipated

"enforcers" were gathered if a "Stalinesque" state of martial law somehow came to

be, to fight back if government agents were taking people out of cars at checkpoints,

or trying to take away family members. The mental state for first-degree murder

requires more. One must conspire with a deliberate intent to kill, or with a callous

disregard for human life, or a "depraved heart." United States v. Pineda-Doval, 614

F.3d 1019, 1038 (9th Cir. 2010). Premeditation requires not just knowledge that of

the conspiracy's goal, but also the mental state of deliberation, the consciousness of

having formed the intent to kill. United States v. Begay, 673 F.3d 1038, 1043 (9th

Cir. 2011) (en banc). A properly instructed jury, told Cox had to conspire with a

conscious, present intent to kill -- not if and when an unstable government fell, or

during a "Stalinesque" state of martial law -- might well have decided that the "list"

did not prove he conspired with malice or premeditation.

The undercover recordings were full of Cox' fears for himself and his

ambivalence about what to do and said almost nothing about federal officers. A

properly-instructed jury could also have declined to treat them as evidence of his 33


conspiring with malice or premeditation. The conversation about the KJNP

episode, for example, reflects his overwhelming concern for his own safety and the

need for self-defense from the hit team. When the topic was violence generally,

Cox' words during the February meetings show that for every suggestion about

killing, there was usually at least one comment, and often many more, reflecting his

reticence and doubt -- he called the idea "scary" and "horrifying." He talked of

nonviolent "force," such as locking arms and walking out; which Olson

acknowledged that they actually practiced circling him and walking with him. Cox

accused Olson of having originated the "2-4-1" idea, but after talking to concluded,

as to "Order 241," that they should not try to implement it -- they should, instead,

"bluff, pray, train," and "do a Gandhi." Never once, when Olson asked over and

over what they should do when he was arrested, did Cox endorse the idea of killing

anyone; he instead justified his leaving to avoiding capture as a viable way to

undermine the government. Finally, notwithstanding the government's argument

that Cox did not mean to give up the idea of a "sovereign republic of Schaeffer Cox"

by leaving, the evidence was that he wanted to leave -- not stay and fight.

Cox' public speeches were also not overwhelming proof of his mental state.

Because they were made in public and on the Internet, they were not

communications to his co-conspirators about a plan. He never mentioned real

federal officers, only imaginary "assassins," while pointing out that "force" did not

always mean violence, while his militia was for protection.

The final critical evidence against Cox was his collection of weaponry and his

obvious interest in weapons. Yet this evidence did not overwhelmingly

demonstrate an intent to use any of these weapons in an offensive manner. Cox

never connected his weaponry acquisitions to a plan to kill federal officers.

Revealingly, the jury acquitted all Cox of the 924(c) counts of possessing firearms in

connection with the murder conspiracy. The verdict shows that it did not regard

34


Cox' possession of either the firearm he had at KJNP, or the one he had when

arrested, as connected with a conspiracy to murder anyone with them. In these

circumstances, the failure to tell the jury it had to find Cox had the mental state for

the underlying crime looms large.

All the evidence, taken together, supports that the instructional error here

affected Cox' substantial rights.

c. The Errors Affected The Fairness, Integrity, And Public Reputation of Judicial Proceedings. In deciding whether a plain error seriously affects the fairness, integrity, or

public reputation of judicial proceedings, United States v. Olano, 507 U.S. at 735,

the question is whether "the greater threat to the integrity and fairness of judicial

proceedings would arise from the reversal of a conviction on flawed jury

instructions rather than from affirming an imperfect verdict." United States v.

Alferahin, 433 F.3d 1148, 1159 (9th Cir. 2006).

This is such a case. Given the instructional error, the government did not

assume the burden of establishing that Cox conspired with malice and

premeditation, as reflected by its never actually uttering the words "malice" or

"premeditation" to describe Cox' actions in its summation. It focused only on Cox'

generalized goal of government overthrow. It asked why Cox needed the weapons

he amassed, why he needed a militia, why he would have a separate court system,

and answered it by pointing to his desire to head a "sovereign republic of Schaeffer

Cox." But Cox' train of thought about government overthrow did not feature a

conscious, present intent to take the life of any federal officer. Proof that he had

such an intent was, despite the noisiness of the evidence, not overwhelming.

Cox' counsel, similarly, focused on government overthrow, not the proper

mental state for the charged conspiracy, in his defense. He did not seek to correct

35


the instructions about proof of malice and premeditation; he asked only for a

narrower instruction that Cox could not be convicted where he was only going to act

when a "condition precedent" -- government collapse -- occurred. He never

contended that the government had failed to meet its burden to show that Cox

conspired with these mental states.

It is a basic tenet of due process that Cox' conviction could only rest on a jury

finding that he was guilty beyond a reasonable doubt of every element of the crime

charged. United States v. Alferahin, 433 F.3d 1148, 1157 (9th Cir. 2006). Here,

the trial turned into a discussion about the specter of Stalinesque martial law and

violent government overthrow, instead of the required elements of the crime of

murder conspiracy. When the government did not argue, and the defense did not

defend, on the issue of whether proof beyond a reasonable doubt existed as to critical

elements of the offense, the effect on the integrity of the judicial process could not

have been more serious. Affirming Cox' conviction would be a miscarriage of

justice. His murder conspiracy conviction must be reversed.

3. The Court Abused Its Discretion By Not Telling The Jury That The Government Had The Burden Of Proving Cox' Agreement Was Not One For Self-Defense. The underlying offense instruction given was flawed in a second respect: it

did not tell the jury that the government had to prove beyond a reasonable doubt that

Cox did not enter into a perfectly lawful agreement to defend himself. A defendant

is entitled to a self-defense theory instruction as long as there is any foundation in

the evidence, whether weak, insufficient, inconsistent, or of doubtful credibility.

United States v. Sanchez-Lima, 161 F.3d 545, 549 (9th Cir. 1998). Though this

cases involves conspiracy, not a substantive assault, the principle applies here.

Certainly, if Cox agreed with others to defend himself from attempts to kill him, he

did not conspire to murder anyone. 36


Here, there was more than enough evidence to warrant the instruction Cox

sought. He visited Lt. Wall unarmed, but wearing body armor, in spring 2010;

Philip Clark and Stephen Cooper testified to Cox' fearful demeanor in the summer of

2010, when Cox sought protection from the U.S. military, whether they could

legally give it or not; he took Steven Gibson's information to heart. Beyond his

fears of law enforcement, from militia circles, he saw Bill Fulton threaten Zerbe with

a knife. And in November 2010, Cox' KJNP preparation showed that he and his

supporters only were concerned with self-defense. He told participants that they

should shoot only in defense of self or others, such as himself, his wife, or the

"judge;" he talked of non-lethal force as the first resort; their notes and the

erase-board corroborated this. Yet, with all this, the district court did not tell the

jury that the government had to disprove beyond a reasonable doubt that Cox

entered into a lawful agreement with others for self-defense.

The adequacy of a self-defense instruction is viewed in context, not in

isolation. United States v. Pierre, 254 F.3d 872, 876 (9th Cir. 2001). Based on

this analysis, the court abused its discretion. First, the self-defense theory here was

arguably part of the list of elements that the district court told the jury that the

government did not have to prove. In this context, the court's failure to tell the jury

that the government had to prove Cox did not enter into an agreement for his

self-defense was yet another failure to instruct on what the government bore the

burden of proving. Consequently, the instruction here did not "clearly indicate" the

government's burden of proof with regard to self-defense. The court abused its

discretion Cox' murder conspiracy conviction must also be reversed on this ground.

B. COX' COUNSEL WAS INEFFECTIVE IN FAILING TO SEEK AN ENTRAPMENT INSTRUCTION, AND COX WAS PREJUDICED. Counsel did not submit an entrapment instruction either before or after trial.

37


Yet in his opening statement, he said that Bill Fulton "was tasked by the government

to encourage Schaeffer to start an armed insurrection and use…Schaeffer's battle

with OCS as a means to justify" it. ER 312. He described the Fulton-Cox Pike's

Landing meeting and the meeting the next day, at which Fulton "reached for Zerbe

and had to be stopped[.]" ER 313. Counsel said that after Cox skipped his court

appearance, Olson pressed him for an attack plan, but Cox "rejected this over and

over again," and he emphasized Cox' desire to leave the state instead. ER 315.

When the court asked for comment about "entrapment" during the

instructions conference, counsel argued for entrapment by estoppel as to Cox'

firearms possession, but not for entrapment. When the district court asked, "Any

more" on the issue, Barney's counsel noted that it was Olson who brought silencers,

"finagled" the defendants into placing an order with Olson's fictional dealer, then

brought them to their arrest. Vernon's counsel agreed with this, and added that "as a

general proposition…it's clear that Mr. Olson did escalate topics and discussions

throughout this investigation." ER 80-2.

The court did not give an entrapment instruction. Yet in closing, Cox'

counsel still returned to his opening theme. He contended that the government's

informants had tried but failed to goad Cox into violence against the government,

that despite "this incredible review of his communications, there's not a single

directive to mobilize, issue weapons, and attack." ER 239. He described Cox'

"deer caught in the headlights" response to Fulton's assault on Zerbe at Bennett's

meeting and concluded that "[t]he government failed in this phase one of their

investigation." ER 235, 240-1. He accused Olson of bringing up "2-4-1" with Mr.

Cox, and contended that the February meetings showed that both Cox and Barney

rejected it as a plan. "The only ones who did not," he said, were the FBI, with

Olson continuing to "instigate, re-instigate, and re-instigate" a confrontation of this

kind, with the target being "hard-working men, not criminals on your doorstep." ER

38


244-5. It was only because of Cox' political activism that he was "a target of the

government, and not the other way around." ER 255. Yet without an instruction

counsel could not and did not articulate that the evidence constituted entrapment, or

say the government had failed to meet the burden of showing Cox was not

entrapped.

1. Counsel's Performance In Failing To Request An Entrapment Instruction Fell Below Prevailing Professional Standards. Counsel's failure to seek an entrapment instruction was ineffective: it fell

below an objective standard of reasonableness, and there was a reasonable

probability that, but for this error, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 688 (1984); Alferahin, 433 F.3d

at 1160-1.

In Alferahin and United States v. Span, 75 F.3d 1383 (9th Cir. 1996), this

Court found counsels' performance fell below prevailing standards when they failed

to ask for pertinent instructions, or did not object to incorrect ones, even where they

knew of, or put on, evidence that supported certain defenses. In Alferahin, counsel

believed that the instructions were accurate, even though they did not require the

government to prove the materiality of the defendant's false statement. Yet she

introduced evidence on immateriality and vigorously argued it to the jury.

Alferahin, 433 F.3d at 11616-2. In Span, an assault-on-federal-officers

prosecution, defense witnesses supported an excessive-force claim, but counsel did

not seek an instruction on it, incorrectly believing it to be covered by the

self-defense instruction the court gave. Span, 75 F.3d at 1386. This Court held in

both cases that counsel's performance fell below prevailing professional standards:

they misunderstood the law, and did not object to incorrect instructions. These

actions were not strategic, particularly since each respective defense "had a strong

39


likelihood of success," and each counsel showed "every intention of presenting" it.

Span, 75 F.3d at 1389-90; see also Alferahin, 433 F.3d at 1161-2.

Particularly where counsel presents a defense without trying to seek a

pertinent instruction, this case is similar. Cox' counsel told the jury at the beginning

and the end of the case that the informants had improperly pressured Cox; counsel in

Span similarly was aware that his witnesses provided an excessive-force claim.

Like counsel in Alferahin on the immateriality of a false statement, counsel here

presented evidence of the intimidation and pressure from the informants,9 and the

government's evidence contained enough on Cox' lack of predisposition, for an

instruction. As long as Cox produced sufficient evidence of entrapment, he was

entitled to the instruction, even if the supporting evidence was weak, insufficient as

a matter of law, inconsistent, or of doubtful credibility. United State v. Cortes, 757

F.3d 850, 857 (9th Cir. 2014) (citations omitted).

For entrapment, Cox had to show (1) a government agent induced him to enter

into the conspiracy and (2) he was not predisposed to do so.

Inducement can be any government conduct creating a substantial risk that an

otherwise law-abiding citizen would commit an offense, including persuasion,

fraudulent representations, threats, coercive tactics, harassment, promises of reward,

or pleas based on need, sympathy or friendship. United States v. Gurolla, 333 F.3d

9There is, in fact, an indication that counsel did not introduce other evidence supporting entrapment, much of which was presented at sentencing. In two February 2011 recordings not played, Fulton reaffirmed pulling the knife on Zerbe in Cox' presence, and told Olson and Cox' co-defendant Vernon to "remind Schaeffer what happened last time when I almost killed Les." In March 2011, Cox refused to meet with Fulton, whom Olson said had weapons Cox wanted, telling Olson he did not want Fulton to know Cox was in Fairbanks. Cox also said Bennett was pushing him in the same way as Fulton was. SER 10-14. Finally, g government counsel told the case agent in an email that Olson was "pushing Cox a bit too hard," and disapproved of Olson's suggesting "5-4-1" over "2-4-1;" "not a good idea, the FBI has to fix this"). SER 4-5.

40


944, 954 (9th Cir. 2003). There was ample evidence of that here. Fulton assaulted

Cox' associate Zerbe in Cox' presence. Olson's "trucker ruse" was false, and he also

engaged in false flattery in trying to persuade Cox to be a fearless "martyr" during

the "2-4-1" discussion. It was also undisputed that Olson made himself useful to

Cox while the latter prepared to leave Alaska, including helping clear out the shed

on Cox' property.

The second issue, lack of predisposition is evaluated based on five factors:

(1) the character or reputation of the defendant; (2) whether the government made

the initial suggestion of criminal activity; (3) whether the defendant engaged in the

activity for profit, apparently not an issue here; (4) whether the defendant showed

any reluctance, which is the most important of these; and (5) the nature of the

government's inducement. Gurolla, 333 F.3d at 955. If entrapment was before the

jury, the government had to affirmatively establish beyond a reasonable doubt that

Cox was predisposed to murder conspiracy. Id.

With respect to the first factor, Cox' character and reputation, he had no

history of violence, and certainly not against government agents; his misdemeanor

conviction for reckless endangerment involved a family member. As argued below

in V.D, the myriad political-beliefs evidence the government admitted did not

change this. Cox talked of a revolution; as the government's witness, Anderson,

said, violence was only an option during this revolution if the government collapsed

and "Stalinesque" chaos resulted. Cox' private agonizing in Olson's recordings

actually reflected that despite his reputation as a firebrand, he shied from the idea of

igniting that chaos.

There was also evidence that the government suggested the criminal plan first.

The Pike's Landing and Bennett meetings showed that Fulton was pressuring Cox as

of June 2010. A full seven months passed before the unrecorded conversation in

which Cox claimed that Olson brought up the "2-4-1" idea.

41


By then, there was already strong evidence of the third and most important

factor, Cox' reluctance to commit a crime. According to Clark and Cooper, he was

genuinely afraid of something. He wore body armor when he visited Wall.

During the November KJNP incident, both the recording and notes showed that he

was concerned only with self-defense. By February, when Olson asked time and

time again what they were to do if Cox was arrested, Cox never answered that they

were to kill federal officers, instead repeatedly invoking "pray, bluff, and train" and

talking of doing "a Gandhi" and not "a Rambo." His ideas for "force" included

courthouse pickets and filings "up the wazoo." Finally, and most persuasively, Cox

wanted to leave Alaska. He hardly prioritized Olson's request that they obtain

Michael Anderson's information, first directing Olson to call Anderson on his own,

then suggesting he have Vernons go to Anderson.

All of this was sufficient to warrant an entrapment instruction. This prong of

Strickland was satisfied.

2. Counsel's Ineffective Performance Prejudiced Cox As To Murder Conspiracy. For reversal, counsel's errors had to deprive Cox of a fair trial, a trial the result

of which is reliable. Span, 75 F.3d at 1390, quoting Strickland, 466 U.S. at 687.

Counsel made many of the points supporting the instruction in his presentations to

the jury. Yet he inexplicably did not seek an instruction to support a defense "with

a likelihood of success, and a defense that he specifically" wanted to pursue, as

reflected in both his opening statement and his closing argument. Alferahin, 433

F.3d at 1161-2. As Cox has previously argued in V.A.2.b, and below in V.D.4, the

evidence that he entered into the Count 12 murder conspiracy was not

overwhelming.

In Alferahin, the defendant was deemed to have been prejudiced because "one

42


of [counsel's] tactics throughout the trial was to persuade the jury" on the issue of

immateriality of the false statement. 433 F.3d at 1162. That is surely true here.

As in Alferahin, the proper "instruction would have helped defense counsel's

strategy of emphasizing the" the influence of the government's informants. The

failure "prevented the jury from considering the very theory of the case on which the

attorney was relying." Counsel's failure to seek an entrapment instruction here was

similarly prejudicial, and warrants reversal of Count 12.

C. THE COURT COMMITTED PLAIN ERROR IN DENYING COX' MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT 16 Cox' counsel moved for a judgment of acquittal on the murder solicitation

count, saying:

I believe that neither the conspiracy to commit murder, neither the conspiracy -- the…solicitation to commit a crime of violence…,I believe the government has not met its burden there.…[A]t least at this point, I don't believe the government, as to conspiracy to commit murder, solicitation to commit a crime of violence,…has been met. [sic]

ER 277-8. The district court denied the motion. ER 273-4. Counsel did not

renew the motion after the defense case. 21:78-9.

In closing, the government pointed to the KJNP episode in arguing its proof of

Count 16, which charged Cox with solicitation to murder. In this, the government

did not rely on Anderson's list, and did not argue its response in the bill of

particulars, which suggested that Cox had solicited the murder of Deputy Johnson.

Having recounted various events in chronological order, it reached the KJNP

episode:

…[W]hat are we going to do next? We're going to go on KJNP, we're going to tell our story. So in terms of the charges, which we'll get in in some detail later on -- this is where the solicitation piece comes into play. Cox is telling his people

43


-- we've got it on recording from Olson -- that anybody who's on this detail has to be prepared to kill. Right?

ER 161. Similarly, during rebuttal, the government reiterated:

Let's talk about solicitation and KJNP.…[T]he witnesses who were involved in this, Brockman, Barney, (indiscernible), you can't have a plan for self-defense when you're planning to kill somebody. You know, they walked out of those houses knowing that they were going to kill a federal agent. [Y]ou can look at the whiteboard and you can look at the exhibits…like Karen Vernon's, you know, "Agent draws down, shoot him." …[Y]ou know what Cox's mindset is. Solicitation's established beyond any doubt. He's recruiting these people to kill a federal agent. Right?

ER 269-70.

1. Standard of Review Cox' motion was not waived by non-renewal after the defense case, but

review is, again, for "manifest miscarriage of justice, or for plain error." The

sufficiency of evidence to sustain a conviction is evaluated in the light most

favorable to the prosecution, with the inquiry focused on whether any rational

factfinder could find all of the elements of the crime beyond a reasonable doubt.

United States v. Stewart, 420 F.3d 1007, 1015 (9th Cir. 2005). This Court does

not reverse unless there is "clear evidence of insufficiency," and if "any rational trier

of fact could have found the evidence sufficient," it "must affirm." United States v.

Alvarez-Valenzuela, 231 F.3d 1198, 1200-1 (9th Cir. 2000).

2. No Rational Trier Of Fact Could Find That The Evidence Strongly Corroborated Cox' Intent to Solicit His Co-Defendants To Commit First-Degree Murder. To show beyond a reasonable doubt that Cox solicited another to commit

first-degree murder, the government had to present facts "strongly confirming" that

44


Cox "actually intended the solicited person to commit that crime." He had to be

"serious" in wanting the crime carried out. Stewart, 420 F.3d at 1020. Evidence of

solicitation to murder may involve proof of "discussions or planning between the

defendant and the person solicited regarding the crime…, offers of payment, or the

providing of information regarding the description or location of the proposed

victim." Id. at 1021.

No reasonable factfinder could have found that the discussions here met this

standard. The government pointed to the KJNP episode, but those discussions were

not a plot to pay for killing, get back at a former love, destroy a professional rival, or

-- as in Stewart -- to avenge a judge's sentencing decision. It was based on Cox'

belief that he needed protection against people who meant to kill him. And the

"discussions or planning" here explicitly reflected a plan to shoot only in

self-defense or in the defense of others.

In the recording, Cox said that if "somebody" appeared to "try to kill" his wife

or the third person, "Judge Bartel," his supporters "might" have to kill them.

However, in the next breath, he said this should be avoided "at all costs," he

preferred the attackers be repelled by having a hornets nest round fired at them,

which would "fold" them "like a pretzel." None of this "strongly corroborated" that

he was conveying to his listeners that he wanted them to use deadly force. No one

at the briefing understood that they were being asked to simply shoot at anyone in

the absence of someone first shooting at them or someone else, such as an attempt on

Cox', his wife's, or "Judge Bartel"'s life. Nor did the handwritten notes of the plans

and the contents of the white erase-board call for anyone to simply kill in the

absence of self-defense, someone "drawing down" on them. Cox gave no

description or location of possible federal targets then, as he did not elsewhere. He

never mentioned -- and the government did not argue -- that anyone about whom

Michael Anderson had gathered information was a KJNP target. The "wholly

45


fictitious" "hit team" did not exist. Even then, Cox' premise was that they would be

there to try to assassinate Cox, which would itself be unlawful.

Cox' reference to using a launcher and anti-personnel ammunition to disable a

possible attacker was nothing like the proof in Stewart, in which the defendant

explicitly spoke of "a hit," made a motion indicating that he wanted his sentencing

judge's throat slashed, and gave her physical description and chambers location to an

informant. Compare Stewart, 420 F.3d at 1011-2. A similar comparison can be

made with United States v. Hale, 448 F.3d 971 (7th Cir. 2006). That defendant was

charged, among other crimes, with soliciting the murder of a district judge who

handled his trademark case. He asked the informant to find the judge's address,

which he meant to post on the Internet. Id. at 983. Revenge precluded any

possibility that he was acting in self-defense.

Cox' focus on self-defense also distinguishes his case from United States v.

White, 698 F.3d 1005 (7th Cir. 2012). There, the government challenged a grant of

a judgment of acquittal to a defendant prosecuted for soliciting a crime of violence

against a juror who convicted the defendant in Hale. In reversing the acquittal, the

Seventh Circuit pointed to the context: White operated a website with posts

applauding the killing of family members of the judge who handled the Hale trial.

Someone called the Hale juror from a number traceable to White's wife, confirmed

the juror's identity, and 30 minutes later White posted personal information about

the juror, including attributes that would stir hostility in the website's followers. Id.

at 1009-10. These identifiers were all context "strongly corroborating White's

targeting of a living person." Id. at 1015-6.

Here, that kind of context was utterly different, or, more precisely, absent.

Not only did the defendants here continually reference self-defense, their very

premise was that self-defense would be needed because assassins were "hunting"

Cox. The evidence here was insufficient to support Cox' conviction on Count 16,

46


and it must be reversed.

D. THE COURT ERRED IN ADMITTING EVIDENCE OF COX' POLITICAL SPEECH AND ACTIVITY UNDER FEDERAL RULES OF EVIDENCE 403 AND 404(b). Before addition of the murder-conspiracy and solicitation-to-murder counts in

the third superseding indictment, Cox moved to exclude evidence of "a plan to

'overthrow the government, a 'common law court' and all other activity associated

with Alaska Assembly Post and Alaska Peacemakers Militia." ER 327-28. He

asked to exclude evidence "pertaining to the philosophy, activity, and allegation of a

plot to kill law enforcement agents in the future in the collapse of government or at

the overthrow of government[.]" ER 331. Cox contended that it was irrelevant to

the contested issue of possession. He argued that "[T]he exclusion of evidence that

is not relevant is covered under Rule 403 of the Federal Rules of Evidence…" and

that "[t]he risk is plain and simple: the defendants will be potentially tried on

character evidence that runs afoul with Rule 404(a) and (b) of the Federal Rules of

Evidence. ER 335. The firearms charges, he said, did not raise the issue of

"whether someone has crossed the line between First Amendment speech/activity or

plans to at some unspecified time in the future to engage in conduct that is

considered assaultive. ER 333.

After the third superseding indictment added the murder-conspiracy and

solicitation counts, the government said at a status conference that it would respond

according to a new motions briefing schedule. The court agreed, saying that "I

don't know how I can rule on this without having a pretty good idea of what the

government is going to offer, because there's a whole lot of stuff here they may not

offer." ER 325-26. However, two weeks later, the court issued an order denying

the motion "without prejudice in light of the filing of the Third Superseding

Indictment." ER 323-24. The government never filed an opposition, and the 47


matter was not heard again.

There is no evidence that, before trial started, the district court reviewed any

of the proposed documentary exhibits, or any audio or video recordings of Cox'

political speech, for their admissibility under Federal Rules of Evidence 403 or

404(b).

Cox asked multiple times for instructions that only expression advocating

imminent violence was proscribed. He first requested this before the playing of

audio recordings of the conversations with informant Olson. ER 318-19. He

again commented, before the introduction of GE 920, that that the court should give

such an instruction. ER 321-22. Finally, Cox repeated the request during the final

instructions conference, seeking an instruction that "[a]dvocacy of force is not

proscribed unless it is directed to inciting or producing imminent lawless action and

is likely to incite or produce such action," and objecting when it was declined. ER

101-2, 113-17.

1. Standard of Review This Court reviews for abuse of discretion a district court's ruling on the

admission of evidence under Rule 404(b), including its admission of evidence as

being more probative than unfairly prejudicial. United States v. Curtin, 489 F.3d

935, 943 (9th Cir. 2007) (en banc).

2. The Trial Court Abused Its Discretion In Failing To Review The Evidence And Requiring The Government To Articulate The Basis For Admission Before Trial. At the pretrial motion hearing, the district court said it did not know how I can

rule on this without having a pretty good idea of what the government is going to

offer." It issued its written ruling denying Cox' motion not long after, without

calling on the government to describe the evidence and defend its position, and well

48


before trial started. Nor did it require the government to establish its rationale for

admitting the evidence. The "right way to rule on such evidence…is first for the

government to identify the specific purpose for which admission" is justified.

United States v. McElmurry, 776 F.3d 1061, 1068 (9th Cir. 2015) (emphasis in

original). The court must next determine if the stated purpose is to prove "an

element of the crime" or "a fact…at issue," and it must then consider whether the

evidence is excludable under Rule 403. Id.

The trial court here did not do any of this. This Court has reversed and

ordered new trials based on this very failing in Curtin and most recently in

McElmurry. In Curtin, the evidence involved stories about adults having sex with

minors. Id. at 938-39. The trial court there admitted five stories, not all of which it

had read before admitting them. Id. at 956-57. In reversing, this Court held that "a

court does not properly exercise its balancing discretion under Rule 403 when it fails

to place on the scales and personally examine and evaluate all that it must

weigh…One cannot evaluate in a Rule 403 context what one has not seen or read."

Id. at 958; emphasis in original. A prime example here of the prejudice that can

result from this simple failure is the Holocaust-denial pamphlet stapled into a critical

exhibit -- Anderson's notebook with his notes about Deputy Marshal Johnson. The

harm to Cox from a juror's seeing such an artifact, with the risk that such an extreme

belief would be attributed to Cox, is obvious and severe.

Curtin teaches that while First Amendment-protected content can be

admissible in a criminal trial, like other evidence presented under Rule 403 or 404(b)

it may only come in "'to establish the elements of a crime, or to prove motive or

intent…subject to evidentiary rules dealing with relevancy, reliability, and the like.'"

Curtin, 489 F.3d at 954 (quoting Wisconsin v. Mitchell, 508 U.S. 476, 448 (1993));

see also United States v. Ellis, 147 F.3d 1131, 1135 (9th Cir. 1998). When such

evidence is rooted in political expression, it "is to be scrutinized with care to be

49


certain the statements are not expressions of mere lawful and permissible difference

of opinion with our own government." Mitchell, 508 U.S. 489, quoting Haupt v.

United States, 330 U.S. 631 (1947). To make this judgment, a district court must

review the material so it knows what is proffered, and why. Here, the court did not

review the material, or determine why it was admissible.

United States v. Waters, 627 F.3d 345 (9th Cir. 2010), is a controlling,

straightforward application of Curtin to content similar to that here. There, an

environmentalist- defendant was accused of arson, and the evidence consisted of a

folder of articles that "advocated violence in no uncertain terms," endorsed "a

revolutionary project that can destroy this society and its institutions," and suggested

targets for destruction as "Wall Street, the stock market, Statue of Liberty, U.S.

Capitol…". Id. at 356. The district court did not first review it before admitting it,

and the admission of the folder based on this procedural error was an abuse of

discretion calling for reversal. Id.

3. The Evidence Was Prejudicially Inflammatory. The Waters court opined that even if the trial court had read the evidence, the

material was "highly prejudicial" and likely inadmissible because it could have led

the jurors to convict because the thinking in it "represented a threat" to jurors' values.

Waters, 627 F.3d at 356.

This Court should make the same finding as to the evidence here. The

documentary and audio-visual exhibits were much like the articles in Waters, only

multiplied many times in quantity and variety. Beyond the Holocaust-denier

pamphlet, there were a news article quoting Cox about revolution and audio-video

clips of him bragging about his militia, being defiant about the courts and the OCS

investigation relating to his son, and expressing strong gun-rights views. The

written exhibits echoed this: SATF's advocacy of gun rights and even jury

50


nullification in firearms cases; a flyer about "sovereign-citizen" rights; a flyer

alleging that the state courts were a fraud; Cox' own filings with the state courts,

defying their jurisdiction and seeking "damages;" "Acts of War" cards listing

"mandatory anything" as an "act of war;" not one but three copies of the APM

manual; and other APM materials and a uniform shirt. These items expressed

political views with the same "scare" effect as the articles about destroying

important landmarks in Waters. Like the image of landmark buildings being blown

up, the evidence here suggested a decided "threat to jurors' values." Waters, 627

F.3d at 358.

The evidence was, in short, of the same extreme character as that in Waters.

Cox' political activity w were likely received as extreme, apocalyptic, a touch

delusional, without making any disputed fact "more…probable." "Unfair

prejudice" results if the evidence engenders an "'undue tendency to suggest decision

on an improper basis, commonly, though not necessarily, an emotional one," or if it

is "designed to elicit a response from the jurors that is not justified by the evidence."

Ellis, 147 F.3d at 1135. Evidence of Cox' political beliefs "played to the jury's

emotions, encouraging it to convict because it believed" Mr. Cox "held loathsome

views that threatened the jurors' way of life." Waters, 627 F.3d at 358. This gave

the evidence, as in Ellis, "an undue tendency to suggest decision on an improper

basis." This evidence generated no light of relevance, only the fierce heat of

prejudice, and should have been excluded.

4. The Error Was Not Harmless In Light Of The Other Evidence Presented. The next step in the analysis here is whether the government can meet the

burden of establishing that the admission of the evidence was harmless error.

McElmurry, 776 F.3d at 1070. It cannot. Never having had to previously explain

51


its reasons for admitting the myriad political-beliefs evidence, the government in

closing argued that the evidence went to his motive -- to establish "the sovereign

republic of Schaeffer Cox." ER 155. Of Cox' public speeches, and his claim about

assassins hunting him, the government argued,

"you're going to hear what his motive is, Mr. Cox' motive. And his motive is, are we strong enough to do this yet? What -- are we going to be strong enough to make a stand," whether it's with violence or not, but have enough members and enough bodies that they do what? Ask yourself the "what," that they do what?

ER 159 (emphasis added). After detailing Cox' acquisition of firearms, handcuffs,

ammunition, and his desire to have grenades, the government said:

[W]hy is it necessary? Why is there even this kind of effort, energy being expended…? And the only reason, we submit, is because he's developing this sovereign republic of Schaeffer Cox. Right? Not by itself illegal, but the point of the matter is, there's your motivation for all the weaponry that you're going to see here and all the acts that you're going to see here. Because this is just justifying his power base.

ER 168 (emphasis added).

The government relied on the common-law court evidence in a similar

manner, even though in the end the trial court did not even list Cox'

sovereign-citizen activities, Overt Acts F and G, in the instructions. The

"common-law court," the government said, showed that Cox believed, 'Because I'm

sovereign, we don't play…by your rules.' It was "Part ego, part political, part his

plan down the road for this republic that he's got and he's building." ER 174-75.

Again, the government asked: why would he need a separate court system?

Because "at some point they're going to be strong enough. They will be. And

that's the objective here. This is the accumulation of the weapons and the things

we've got…that's the motive behind it." ER 175; emphasis added.

The evidence was not admissible as motive. Under Rule 404(b), such

52


evidence must prove a material point. United States v. Bailey, 696 F.3d 794, 799

(9th Cir. 2012); United States v. Murillo, 255 F.3d 1169, 1175 (9th Cir. 2001).

Other-acts evidence presented in support of motive must show a motive to commit

the specific crime charged, not just propensity for criminal activity (or, here, an

unpopular brand of activism). United States v. Bradley, 5 F.3d 1317, 1321 (9th Cir.

1993), citing United States v. Brown, 880 F.2d 1012, 1015 (9th Cir. 1989). The

evidence here is no different; in fact, there is no general rule that the government

may use a person's political views against him. United States v. Giese, 597 F.2d

1170, 1185 (9th Cir. 1979); Waters, 627 F.3d at 354-55 (expressing "discomfort

with such inferences"). Such views can be relevant under Rule 401 if they make a

contested fact "more probable" than it would be without the evidence, but the

government did not use Cox' activism evidence this way.

To begin with, the mountain of evidence introduced here simply did not have

that focus.10 Advocacy of individual gun rights, weekend militia training

conducted without illegal weapons, anger at an OCS investigation, a misguided

belief that the Alaska courts lack legitimacy -- none of these, individually or in

combination, proved any element of the charged offenses. The government's

premise -- broadly equating guilt with Cox' broad goal of seeing the government

replaced by an alternative "sovereign republic" -- was a fallacious, improper use of

propensity evidence: because he thinks this way, he must have knowingly

possessed operable weapons, and conspired to and solicited federal officers'

murders. But Cox was entitled to be tried for what he did, not who he is. Bradley,

10An example of how far afield the evidence strayed can be seen in one of the most incendiary clips, GE 917, admitted early in Cox' cross-examination without any suggestion that it impeached him. At the "Continental Congress" meeting, he used the phrase "shooting judges," but not in support of such acts. Instead, he insisted that individuals who did such things were individually responsible, that Continental Congress attendees were not, and he did not endorse that conduct.

53


5 F.3d at 1320 (citation omitted).

As to the weapons possession counts generally, this case is governed by Ellis.

There, the defendant was charged with possession of explosives, but The Anarchist

Cookbook, a "'revolutionary text'" that contained "inflammatory material about

drugs, revolutionary politics, sabotage" was admitted to prove intent. This Court

observed that as to firearms possession counts only, intent -- why one would have

weapons -- was not at issue, only knowledge and possession. Id. at 1134-6. That

is also true here. For example, as to the grenade count, either Olson was right in

seeing fully operational grenades in Cox' shed on February 4, or Cox knowingly

possessed four working fuses, grenade bodies, powder, and a common household

epoxy that he knew he could convert to four grenades. As to the machine gun

counts, the issue was whether he knowingly possessed an operable machine gun, one

that had to be registered, or not. See United States v. Gergen, 172 F.3d 719, 722

(9th Cir. 1999), citing Staples v. United States, 511 U.S. 600, 619 (1994). The

evidence of his political activities did nothing to shed light on any of these issues; it

was a prejudicial distraction from them. The error in admitting the evidence was

thus not harmless as to the weapons counts.

With respect to the solicitation, as argued in Section V.C, the evidence about

Cox' KJNP appearance showed no intent to have others start or engage in a gunfight

in which law enforcement officers could be killed. The recorded and written proof

of his preparations, even the weapons, emphasized self-defense; the government

could only point to Cox' "mindset." The prejudice from the admission of Cox'

political-beliefs evidence here is manifest.

In a similar vein, the issue in the murder conspiracy was whether Cox and his

co-defendants agreed to commit the first-degree murder of federal officials -- agreed

to act in other than self-defense -- based on Olson's recordings. In these private

conversations with his purported co-conspirators, Cox expressed ambivalence about

54


violence, even while fearing an attack against him. He talked of "locking arms"

with his companions and leaving the courtroom and using "force" that included

multiple court filings. In deciding how to address the pending misdemeanor case,

he jumped at Thesing's idea of leaving the state, rather than endorse Olson's

suggestions about planning for a confrontation with the government. He deflected

Olson's provocation about martyring himself, or -- on his arrest -- having others

initiate a battle with the government. The government asked, once they had

gathered up enough weaponry, "[T]hey do what?" afterward. The recordings as a

whole by no means answered this question.

Where the proof of Cox' private statements as proof of the conspiracy was so

diluted, the admission of his public speeches and documents about his political

beliefs was a prejudicially harmful addition to the mix. The proper test of whether

that proof was properly admitted for motive is whether it carried a "true threat" -- "a

serious expression of an intent to commit an act of unlawful violence to a particular

individual or group of individuals," made "with the intent of placing the victim in

fear of bodily harm or death." Virginia v. Black, 538 U.S. 343, 360 (2003). This

proof did not. As a whole, the evidence showed Cox' propensity to wish and work

for the downfall of what he saw as an oppressive government; he sometimes thought

of it as imminent, and expressed that he thought it could be bloody. These

assertions do not come close to meeting the "true threat" test. Compare United

States v. Turner, 720 F.3d 411 (7th Cir. 2013) (defendant charged with threatening

to assault or kill three judges who upheld a challenge to a gun-control ordinance; his

blogs opined that "[t]hese judges deserve to be killed," and showed their photos,

courthouse, and chambers addresses) and Planned Parenthood of the

Columbia/Willamette v. American Coalition of Life Activists, 290 F.3d 1058, 1065

(9th Cir. 2002), (organizers disseminated to the media "Deadly Dozen" posters with

photographs and address information for physicians who performed abortions

55


following the dissemination of similar information and the killings of other

physicians). The error in admission of the evidence here was not harmless.

5. The Error Was Additionally Not Harmless Where The Jury Received No Guidance About The Purpose of The Evidence's Admission. Cox' rejected requests for instructions about distasteful First Amendment-

protected speech aggravated the prejudice from admission of the evidence. Those

requests represented the only effort to rein in the jury's consideration of the

evidence. The court did not give Ninth Circuit Model Criminal Jury Instruction

4.3, which would have instructed the jury on the use of other crimes or wrongs. It

lists the possible uses of the evidence, such as intent, motive, opportunity,

preparation, or the like, but as noted above none of this was parsed out before the

evidence came in.

Instead, the jury was told that while "the defendants are not on trial for any

conduct or offense not charged in the indictment," and that "[a]ll people" could

engage in "provocative, challenging, or offensive" expression, "even if the speech

advocates the use of force," they could consider the "expressions of such beliefs only

insofar as such expressions are evidence relating to one or more of the crimes

charged" -- that is, for any purpose they wished. ER 47, 43. These instructions,

notwithstanding the use of the word "only," were really no instruction at all. The

admission of this large body of such evidence without giving the jury even the most

minimal guidance on evaluating it is the final measure of its harmfulness, and is the

final reason Cox' convictions should be reversed.

56


VI. CONCLUSION For all of the above reasons, this Court should reverse Cox' convictions and

remand for a new trial.

DATED: June 12, 2015 MYRA SUN Attorney for Appellant

57


CERTIFICATE OF RELATED CASES Counsel for appellant certifies that she is unaware of any pending case

presenting an issue related to those raised in this brief.

Dated: June 12, 2015 MYRA SUN Attorney for Appellant

58


CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. Proc. 32(a)(7)(C) and Circuit Rule 32-1, I certify that

this brief is proportionally spaced, has a typeface of 14 points or more, and

contains 16,460 words. This brief is accompanied by a motion under Circuit Rule

32-2 for acceptance of an over-sized brief.

Dated: June 12, 2015 MYRA SUN

59


CERTIFICATE OF SERVICE

I hereby certify that on June 12, 2015 I electronically filed the foregoing

Motion for Oversize Brief and Appellant's Opening Brief by using the appellate

CM/ECF system.

I certify that all participants in the case are registered CM/ECF users and that

service will be accomplished by the appellate CM/ECF system.

Dated: June 12 2015 /S/ Myra Sun MYRA SUN Attorney for Francis Cox

2


FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, v. FRANCIS ...bloximages.newyork1.vip.townnews.com/newsminer.com/content/tncms/... · IN THE UNITED STATES COURT OF APPEALS FOR THE

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