Anchorage Daily News
 

Judge rejects militia members' claim their rights were violated


By RICHARD MAUER

(01/25/12 12:58:22)

The federal case against three Fairbanks militiamen remained intact Tuesday after two days of defense challenges failed to convince a judge that evidence was tainted and charges were inappropriate.

In one of his final rulings before leaving for his home court in Tacoma, Wash., U.S. District Judge Robert Bryan said federal agents didn't violate the rights of one of the militiamen when they asked him where his trailer, filled with weapons, was located, and the militiaman told them.

Bryan saved for another day a ruling on whether a search warrant which relied in part on evidence obtained by an undercover informant with questionable character was properly drawn up.

Bryan is hearing the case under a special ruling by the chief judge of the 9th U.S. Circuit Court of Appeals, which supervises the U.S. District Courts in Alaska. One of the defendants, Lonnie Vernon, 56, of Salcha, is charged in a separate case with his wife, Karen Vernon, 65, with plotting to murder the chief federal judge in Alaska, Robert Beistline, over his rulings in a tax case.

The leader and two other members of the Alaska Peace Makers Militia are charged in a 16-count indictment with conspiring to murder law enforcement agents and with federal weapons violations involving machine guns, silencers and grenades. If convicted, the three men -- Schaeffer Cox, 27, Coleman Barney, 37, and Lonnie Vernon, face life in prison.

Though Cox was the charismatic leader of the militia, the focus of Tuesday's session was Barney, a North Pole resident alleged to be a command officer of Cox's militia.

All three were arrested in combined state and federal raids on the morning of March 10. When the authorities swooped down on Barney's place, they expected to find a large, white trailer filled with weapons.

It wasn't there.

Barney's attorney, Tim Dooley of Fairbanks, suggested in court Tuesday that the FBI was embarrassed by losing the trailer and was desperate to find it.

In testimony, FBI agent Patrick Westerhaus said the authorities were indeed desperate, but it was because they feared the trailer's contents. Cox and others were talking about getting C4 plastic explosives and were believed to have stashed automatic weapons, grenades and silencers, perhaps in the trailer. Their undercover operative, a former septic-tank salesman named Gerald Olson, had recorded the militiamen talking about their "2-4-1" plan -- killing two law enforcement officers if one of their own were taken.

Westerhaus said that with the arrests of Cox, Barney and Vernon, the FBI was concerned that other members of the militia still at large would initiate a kind of doomsday plot and begin an armed attack. They wanted the trailer to prevent any armaments inside from being used in such an assault.

The three arrested men were interrogated separately by combined two-member teams of FBI agents and state troopers or Fairbanks detectives.

Barney was grilled by Westerhaus, from the Anchorage field office's joint terrorism task force, and Fairbanks-based Trooper Detective Joshua Moore.

By the accounts of both agent and trooper, the conversation was cordial, but Barney wasn't talking. He said he might cooperate, but wanted his family attorney present. No one could find that lawyer, though, and Westerhaus and Moore were reduced to chatting and describing the case the government had amassed against him.

At one point, according to a transcript read in court, Moore brought up Barney's wife, Rachel, who was pregnant at the time with their fifth child.

"I'm not in the business of putting people who are eight months pregnant -- I don't want to put your wife in jail. But like Pat (Westerhaus) said before, a lot of this stuff is out of our hands."

Dooley said Moore was trying to coerce Barney, a "family man," into talking despite his assertion of his constitutional right to an attorney. Moore said that wasn't the case -- he just wanted to alert Barney to the possible dangers to his family that were ahead.

Outside the interrogation room in the Fairbanks Police Department, the search for the trailer was growing more intense. The FBI sent up a plane to look from the air, and trooper and police were put on the lookout. Barney's big Dodge pickup, with a hitch large enough to haul the trailer, was found at the Fred Meyer on Airport Way, but the trailer itself wasn't there.

Westerhaus and Moore gave up trying to get Barney to talk and called up a U.S. marshal to take him to the local jail, about a five minute ride. Deputy Marshal Randy Coyne was driving the SUV with Barney in the back when he got a call from another FBI agent who asked him to once again question Barney about the trailer.

Coyne said he was told to only ask about the trailer and its contents. He did. Barney told him the trailer was at the Fairbanks Ice Park, a popular family attraction, and that it wasn't filled with dangerous items.

The FBI found the trailer, put it under guard and eventually searched it and found grenades and a machine gun.

Dooley wanted the evidence thrown out as an illegal search.

Normally that might be the case, Bryan said. But he ruled that Coyne's questions invoked the "public safety" exception to Barney's normal constitutional rights. The agents had plenty reason to believe the public was at risk with the trailer at large, so they were well within their authority to attempt to find it, Bryan said.

Dooley also sought to throw out a search warrant that was in part based on evidence provided by Olson, the now revealed confidential informant. He said Olson was unreliable because he was convicted of cheating one of his septic tank customers and successfully sued by others, and also charged with stealing equipment. He said the federal magistrate judge who signed the search warrant wasn't adequately briefed about Olson's character

But two FBI agents testified that the magistrate was told of Olson's criminal record but issued the warrant anyway. FBI Agent Richard Sutherland said the agency tested Olson's truthfulness on many occasions, including with another undercover operative, former Drop Zone owner Bill Fulton of Anchorage, and Olson passed each test.


Reach Richard Mauer at rmauer@adn.com or 257-4345.

 


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