[00:00:00] Speaker 03:
And we'll turn to the next case on our docket, which is US versus Cox.

[00:00:51] Speaker 02:
Can I begin, Your Honor?

[00:00:55] Speaker 02:
Yes.

[00:00:55] Speaker 02:
Good afternoon, Your Honor, and may it please the Court.

[00:00:58] Speaker 02:
My name is Anne Wagner, and I'm here on behalf of Francis Schaefer Cox.

[00:01:02] Speaker 02:
I'd like to reserve three minutes for rebuttal if possible.

[00:01:06] Speaker 02:
I'd like to focus today on the due process new trial argument, but I'm hoping to touch on the ineffective assistance claims as well.

[00:01:14] Speaker 02:
For both of these sets of claims, a brief review of the facts may be helpful.

[00:01:20] Speaker 02:
The government prosecuted Mr. Cox based on three separate theories or agreements.

[00:01:26] Speaker 02:
First, the self-defense plan against fictitious federal assassins at the KJNP television station.

[00:01:34] Speaker 02:
Second, a database of state officials that Cox and Anderson created in order to identify and oppose any government officials who were carrying out Stalin-esque mass arrests and purges.

[00:01:49] Speaker 02:
and third, the so-called 241 discussions that the government never argued were part of an agreement.

[00:01:57] Speaker 02:
Today we're really talking about two of these theories.

[00:02:01] Speaker 02:
The 241 theory is out because the government never argued it and the district court below recognized that the third theory didn't affect the murder conspiracy conviction.

[00:02:11] Speaker 02:
So out of the two theories we've got

[00:02:13] Speaker 02:
KJNP assassins and we've got the database.

[00:02:16] Speaker 02:
The KJNP assassins theory is also out because of the first appeal and I'm happy to talk about the impact of the first appeal if anyone has questions.

[00:02:28] Speaker 02:
Only one theory is left, which is the database.

[00:02:31] Speaker 03:
Pardon me.

[00:02:31] Speaker 03:
I don't have a question, but I should have advised at the start.

[00:02:36] Speaker 03:
This case is set for 15 minutes per side.

[00:02:42] Speaker 03:
And unfortunately, I can't see the clock.

[00:02:46] Speaker 02:
It was set for 15.

[00:02:47] Speaker 03:
What?

[00:02:48] Speaker 02:
There are 13 minutes remaining.

[00:02:50] Speaker 03:
Okay, could you just alert us, or one of my colleagues?

[00:02:55] Speaker 02:
Yes.

[00:02:55] Speaker 03:
Alert when we get down.

[00:02:57] Speaker 01:
I will, when we get to time.

[00:03:00] Speaker 03:
Okay, please proceed.

[00:03:01] Speaker 02:
Thank you.

[00:03:03] Speaker 02:
So the database theory is left.

[00:03:05] Speaker 02:
Unfortunately, no one emphasized that theory at trial, and it is incredibly unlikely that the jury unanimously agreed to convict Mr. Cox based on that theory alone.

[00:03:17] Speaker 02:
The Yates case, or really both Yates cases, including the one I just submitted in a 28J letter on Monday, provide a solution here.

[00:03:25] Speaker 02:
Mr. Cox must be retried on the conspiracy count to ensure that the jury convicts him on the only valid theory.

[00:03:32] Speaker 01:
Let's just talk for a moment about the evidence supporting the database theory.

[00:03:38] Speaker 01:
So first we have evidence that your client worked with a co-conspirator to identify the state and federal officials.

[00:03:46] Speaker 01:
that he wanted to kill if the government should declare martial law.

[00:03:49] Speaker 01:
He gave the co-conspirator the names of those officials to add to the database.

[00:03:54] Speaker 01:
Told his co-conspirator that one of the officials was nice but one day she might have to go and amassed various guns, grenades, et cetera.

[00:04:03] Speaker 01:
So why isn't that ‑‑ why is that not enough?

[00:04:06] Speaker 02:
The agreement was not to kill in case of martial law.

[00:04:10] Speaker 02:
The agreement was to create a list of people that may or may not participate in unconstitutional mass arrests and purges of various groups, as in Stalin's Russia.

[00:04:21] Speaker 02:
So they had a list.

[00:04:23] Speaker 02:
They didn't intend to necessarily kill anyone on that list unless they were participating in these unconstitutional acts, which were incredibly unlikely to happen in the United States.

[00:04:33] Speaker 02:
So the nice person that Mr. Cox asked Mr. Anderson to put on the list, first of all, Mr. Anderson testified that he didn't believe Cox had agreed to murder that person.

[00:04:45] Speaker 02:
She was his friend.

[00:04:47] Speaker 02:
She had been to his house, or he had been to her house, pardon me, and they were very friendly.

[00:04:53] Speaker 02:
And so he didn't, he wasn't planning on killing her unless for some reason she was participating in these mass arrests and purges that were not happening.

[00:05:02] Speaker 02:
So I absolutely disagree with the government's characterization that anyone agreed to kill the people in the database.

[00:05:09] Speaker 02:
And moreover, the federal employees weren't in the database.

[00:05:12] Speaker 02:
The federal employees, so that includes the friend, were three names that Cox asked Anderson to add to the database.

[00:05:18] Speaker 02:
But he did not add them.

[00:05:19] Speaker 02:
He did no research on them.

[00:05:21] Speaker 02:
And there's evidence that they didn't agree to murder them, because Anderson testified at trial that he didn't think Cox had agreed to murder them.

[00:05:29] Speaker 02:
So absolutely, the database theory was disputable and would be vigorously disputed in any retrial.

[00:05:38] Speaker 04:
On one of them, he said something to the effect, yes, she's nice, but one day she may have to go.

[00:05:45] Speaker 02:
This is the same person.

[00:05:47] Speaker 02:
This is his friend.

[00:05:48] Speaker 02:
This is his actual friend that he had been to her house for dinner multiple times.

[00:05:52] Speaker 02:
Yes, real person.

[00:05:54] Speaker 02:
assassinate or whatever one might be called.

[00:05:58] Speaker 02:
Mr. Cox was talking loosely and there's a lot of loose talk in all of these documents, but the agreement between the two people was that this list was not to be used unless any of these people were carrying out mass arrests and purges.

[00:06:13] Speaker 02:
So one day she might have to go is if she's ordered by the government to create to, you know,

[00:06:19] Speaker 02:
be a member of Stalin's mass arrest brigade and start rounding people up.

[00:06:24] Speaker 02:
So he didn't want to murder her.

[00:06:26] Speaker 02:
I mean, he didn't think he was going to have to murder her.

[00:06:29] Speaker 02:
The resentencing, Anderson testified that they thought this might happen in 20 years, if ever.

[00:06:34] Speaker 02:
I mean, maybe never.

[00:06:36] Speaker 02:
So he was speaking loosely there.

[00:06:39] Speaker 02:
Different inferences could be drawn from that, but absolutely would be vigorously disputed in any retrial.

[00:06:45] Speaker 02:
But the question here is whether Mr. Cox, whether the error was harmless beyond a reasonable doubt.

[00:06:53] Speaker 02:
And it was absolutely not harmless beyond a reasonable doubt.

[00:06:57] Speaker 02:
Because the closing arguments all focused on the one victim set that were actually federal

[00:07:03] Speaker 02:
in character which were these fake FBI agents that didn't exist.

[00:07:09] Speaker 02:
And so everybody was arguing about supposedly federal employees that do not count under FIULA as federal victims for the purpose of this statute.

[00:07:21] Speaker 02:
So absolutely the entire closing arguments would look completely different if they were talking about the database and a new trial is necessary to ensure that the jurors were looking at that theory.

[00:07:36] Speaker 02:
This court should also reverse the district court's denial of ineffective assistance claims or at least remand for an evidentiary hearing.

[00:07:43] Speaker 02:
It is patently ineffective assistance to ignore a central element of an offense, an element that was pivotal to the reversal on plain error of another one of the convictions on direct appeal.

[00:07:57] Speaker 02:
It mattered whether Cox and Anderson put federal officials or just state officials in the database.

[00:08:04] Speaker 02:
It mattered whether the admittedly fictitious federal assassin team qualified as federal employees for the purpose of that element.

[00:08:14] Speaker 04:
And it turns out they didn't.

[00:08:15] Speaker 04:
So let's assume that it does matter.

[00:08:16] Speaker 04:
You've got these different categories, some fake, some real.

[00:08:22] Speaker 04:
Does your ineffective assistance argument fall if the database

[00:08:27] Speaker 04:
harmless errors accepted on the first round that we were talking about?

[00:08:32] Speaker 02:
The Strickland prejudice analysis is a reasonable probability of a different result.

[00:08:40] Speaker 02:
So harmless beyond a reasonable doubt, reasonable probability, they're similar.

[00:08:44] Speaker 02:
But absolutely, the evidence in both of these claims would look completely different if everybody had actually been thinking about the database.

[00:08:55] Speaker 02:
If you read the closing arguments, nobody was.

[00:08:58] Speaker 04:
I hear your argument, but I just want to kind of get back to the heart of my question.

[00:09:02] Speaker 04:
Maybe I wasn't precise enough, because your argument

[00:09:06] Speaker 04:
And our first round of questioning is, well, the database really wasn't on the table, so to speak.

[00:09:11] Speaker 04:
It wasn't the big argument.

[00:09:13] Speaker 04:
My question is how that is actually linked to the ineffective assistance of counsel.

[00:09:19] Speaker 04:
So if we were not to accept your argument,

[00:09:23] Speaker 04:
that database under Yates would rise to the appropriate standard, does that also doom your ineffective assistance counsel argument?

[00:09:35] Speaker 02:
I don't think it does, because ineffective assistance claims really do take into account how the evidence would look completely different in a retrial, because we do have a cumulative IAC claim here as well, and so we're asking

[00:09:52] Speaker 02:
You know, the Croft instruction that would have instructed the jurors that they had to conspire with premeditation and malice aforethought for that, those federal employees that were supposedly being added to the database but never were.

[00:10:04] Speaker 02:
The jury was never asked to consider that, and that might well have made a difference as well.

[00:10:13] Speaker 02:
The unanimity question.

[00:10:14] Speaker 02:
If some of these jurors were only convinced by the federal employees that were fictitious,

[00:10:20] Speaker 02:
and some of them were only convinced by the federal names that were never added to the database, then that's not real unanimity, because some of those don't fulfill the element.

[00:10:31] Speaker 02:
Okay?

[00:10:32] Speaker 02:
So in a cumulative IAC claim, we're thinking about all of those things, and absolutely, there's a reasonable probability of a different result if some of the jurors were thinking that the federal employees counted only because they were in the KJMP theory.

[00:10:48] Speaker 02:
So reasonable probability of a different result includes a hung jury.

[00:10:53] Speaker 02:
So we're really talking about one juror being persuaded by this evidence.

[00:10:58] Speaker 02:
I'm persuaded.

[00:10:59] Speaker 02:
I'm a reasonable person.

[00:11:01] Speaker 02:
I would not have voted for Ticken Victim.

[00:11:02] Speaker 02:
And I think that you could find a reasonable juror who would reach that different understanding of what the database was for.

[00:11:09] Speaker 02:
And that's absolutely a reasonable probability of a different result.

[00:11:15] Speaker 02:
If I could address the government's arguments about the prior appeal just for a moment.

[00:11:26] Speaker 02:
There are two cases that are cited in that unpublished opinion.

[00:11:31] Speaker 02:
One is Fiola and the other is United States versus Stewart.

[00:11:36] Speaker 02:
Now, the only possible reading of Fiola is that it is a conspiracy case.

[00:11:42] Speaker 02:
and it is about the federal official element.

[00:11:46] Speaker 02:
The portion cited by the court is about how to identify whether the federal official element is met in an uncompleted conspiracy as here.

[00:11:56] Speaker 02:
Nobody was killed, right?

[00:11:58] Speaker 02:
So the Fioli case really has to be seen as taking out the KJNP theory for both the conspiracy conviction and the solicitation.

[00:12:08] Speaker 02:
The panel was actually stretching to make this fit solicitation, but it was absolutely on point for the conspiracy.

[00:12:17] Speaker 02:
And then second, the Stewart case was cited in the briefs as being purely about self-defense.

[00:12:24] Speaker 02:
All of the briefing in the opening brief, if you look at that in the ERs, was about citing Stewart for the purpose of the self-defense argument.

[00:12:32] Speaker 02:
Self-defense applies to conspiracy as much as it does to the solicitation count.

[00:12:39] Speaker 02:
So it's necessary that, you know, you look only at the database to determine harmlessness in the trial theory under Yates.

[00:12:52] Speaker 02:
I have about three minutes left, so I'll reserve the rest of my time.

[00:12:54] Speaker 01:
Yeah, just a little over three minutes for rebuttal.

[00:12:56] Speaker 01:
Thank you.

[00:13:03] Speaker 03:
I'll hear from the government next.

[00:13:06] Speaker 00:
Thank you, Your Honor.

[00:13:07] Speaker 00:
May it please the Court, Stephen Corso here for the United States.

[00:13:11] Speaker 00:
Today we're in front of the Court to ask the Court to affirm Mr. Cox's guilty verdict in the murder conspiracy for a third time.

[00:13:19] Speaker 00:
This is the third trip to the Ninth Circuit for Mr. Cox.

[00:13:23] Speaker 00:
In his trial, the government presented one murder conspiracy that alleged one object

[00:13:31] Speaker 00:
That object was to kill federal officers engaged in their official duties or on account of those official duties.

[00:13:38] Speaker 00:
That was a valid theory.

[00:13:40] Speaker 00:
The theory embraced federal offenses, that being federal conspiracy offense and the offense of killing a federal officer.

[00:13:49] Speaker 00:
The jurisdiction, therefore, was absolutely properly before federal court.

[00:13:54] Speaker 00:
In that indictment and in its trial presentation, the government proved numerous overt acts

[00:14:00] Speaker 00:
The indictment alleged 25 overt acts and the judge read 22 of those 25 overt acts to the jury when it charged the jury at the end of the trial.

[00:14:12] Speaker 00:
Those overt acts, including the Hit List database, importantly, Mr. Cox and his co-conspirators sought that database prior to his arrest while espousing notions of setting booby traps for federal officers who might

[00:14:30] Speaker 00:
approach the residence he was staying in to arrest him.

[00:14:33] Speaker 00:
He had intentionally skipped court provoking a warrant for his arrest and seemed to yearn for or itch for or encourage an armed and violent confrontation with law enforcement, which would absolutely include federal law enforcement.

[00:14:52] Speaker 00:
In this period of talking about setting booby traps and killing butt loads of officers

[00:14:59] Speaker 00:
Mr. Cox and his co-conspirators repeatedly sought the database.

[00:15:04] Speaker 00:
Mr. Cox had met with Mr. Anderson about a year prior and instructed Mr. Anderson to add several names to the database that included the names of three federal officers.

[00:15:17] Speaker 00:
In this meeting, they talked about identifying other federal officers to add to the database.

[00:15:23] Speaker 00:
They sketched the courthouse or federal building in Fairbanks

[00:15:28] Speaker 00:
And on a separate piece of paper later recovered from Mr. Anderson, he had a notebook with the indentation, federal hit list, and on that hit list was the name of Jimmy Johnson, a U.S.

[00:15:41] Speaker 00:
Marshal.

[00:15:42] Speaker 00:
So Mr. Anderson had followed Mr. Cox's directions, had sought information on federal marshals, and wrote down the name of a federal marshal on a piece of paper that was recovered when Mr. Anderson was arrested.

[00:15:55] Speaker 00:
The database hit list goes far beyond any discussion between Mr. Cox and Mr. Anderson.

[00:16:01] Speaker 00:
It became an overall part of the conspiracy and a real danger and real threat to federal officers because of the intent behind it.

[00:16:12] Speaker 04:
Well, your opposing counsel suggests that that may be true in theory, but the reality of the trial was the database was not the focus.

[00:16:23] Speaker 00:
We disagree with that, Your Honor.

[00:16:26] Speaker 04:
What do you think is your best evidence?

[00:16:30] Speaker 04:
You know, we have to go back to the first direct appeal, I guess, and you first have to say, well, do you read the panel support of the conviction on the conspiracy to be on the database or on the KJNP theory?

[00:16:50] Speaker 00:
No, we don't read the decision to be based on the database at all.

[00:16:53] Speaker 00:
It was, we read it to be a broad-based decision.

[00:16:57] Speaker 04:
But if it was the KJNP, how would you have federal jurisdiction?

[00:17:02] Speaker 04:
Isn't there a parallelism between that and the solicitation?

[00:17:07] Speaker 00:
We think they're separate.

[00:17:08] Speaker 00:
We think the murder conspiracy and the solicitation are separate offenses.

[00:17:12] Speaker 00:
They have separate elements and the panel in the first appeal treated them separately.

[00:17:17] Speaker 00:
They held that KJNP evidence was insufficient to support the solicitation

[00:17:24] Speaker 00:
count, but they absolutely did not make the same holding in the murder conspiracy count.

[00:17:29] Speaker 04:
They didn't actually make a holding.

[00:17:34] Speaker 00:
Well, they held that the murder conspiracy was sufficiently proved.

[00:17:41] Speaker 00:
They did not hold that the KJNP evidence was not to be before the jury.

[00:17:47] Speaker 00:
They did not decide the KJNP was invalid in the murder conspiracy.

[00:17:53] Speaker 00:
So the holding in the solicitation was very limited to the KJNP evidence in the solicitation context.

[00:18:01] Speaker 00:
It did not cross over into the murder conspiracy context.

[00:18:07] Speaker 00:
The closing argument did not focus merely on the KJNP evidence.

[00:18:12] Speaker 00:
It was a long argument.

[00:18:13] Speaker 00:
This was a long trial.

[00:18:14] Speaker 00:
It was a six-week trial.

[00:18:16] Speaker 00:
There were hundreds of exhibits, dozens of witnesses called.

[00:18:19] Speaker 00:
and the government argued all of the overt acts in support of the conviction at trial, did not by any stretch or any means focus on KJNP exclusively or encouraged the jury to focus only on KJNP or encouraged the jury to ignore other evidence and only focus on KJNP.

[00:18:39] Speaker 00:
The argument was broad-based and very much included the database hit list evidence and for good reason.

[00:18:46] Speaker 00:
Those names

[00:18:47] Speaker 00:
on the hit list to be included in the database were named federal officers that Mr. Cox had confronted in public, had harangued and harassed, intimidated.

[00:19:02] Speaker 00:
And once he did that, he went to Mr. Anderson and asked that they be added to his hit list.

[00:19:07] Speaker 00:
And when he provoked a warrant for his arrest, he sought that hit list with those four federal names.

[00:19:14] Speaker 00:
So unambiguously,

[00:19:17] Speaker 00:
That is probably the best evidence that the government could cite to to support both the conviction for the murder conspiracy and the solicitation count.

[00:19:25] Speaker 00:
And this notion that the government only relied on KJNP is a false notion.

[00:19:31] Speaker 00:
It's a premise of the defense's argument here, but it's just not accurate and it's just not fair.

[00:19:37] Speaker 00:
And so I encourage the court to review all the evidence, review the closing arguments, and you'll see very clearly that KJNP was only a minor

[00:19:46] Speaker 00:
piece of evidence, but also an important piece of evidence because the KJNP evidence as an overt act demonstrated what this conspiracy to kill federal officers was all about.

[00:20:00] Speaker 00:
It reflected that there were actors in the conspiracy, the associations amongst those actors, and a willingness of the actors to organize themselves, plan an operation, and then deploy out in public to carry out an operation

[00:20:17] Speaker 00:
In this instance, it was an operation to secure Mr. Cox when he appeared for an interview at a TV station.

[00:20:25] Speaker 00:
But it demonstrated their willingness to go out in public under certain conditions, go out in an organized and planned fashion, and go out heavily armed with military-style weaponry.

[00:20:40] Speaker 00:
And it just does not matter that the hit list did not exist.

[00:20:43] Speaker 00:
Their willingness to do things like this

[00:20:46] Speaker 00:
demonstrated and proved their intention to murder federal officers.

[00:20:54] Speaker 00:
In addition to that, they talked about the two-for-one plan, the notion of killing two law enforcement officers for every one that the government killed or arrest two law enforcement officers for every one that the government arrested.

[00:21:08] Speaker 00:
Intertwined with these threats to state officers were numerous threats, intertwined with these threats to federal officers

[00:21:15] Speaker 00:
There were numerous threats to state officers, such as surrounding a state trooper, telling the trooper that they had them outgunned and outmanned, talking about kicking in state court judges' doors, putting a bullet in the head of the state court judge that presided over Mr. Cox's state trial, dangling state court employees like wind chimes, and telling a judge that he appeared in front of, that people in the community appeared

[00:21:44] Speaker 00:
preferred to enter her home at night and kill her at home while she slept rather than appear in her courtroom.

[00:21:52] Speaker 04:
That somewhat goes to the ineffective assistance of counsel argument that you have fake people, you have state people, and you have federal people, and the counsel really didn't differentiate between and among those.

[00:22:06] Speaker 04:
Why wasn't that error?

[00:22:07] Speaker 04:
And if it was error, what would be the prejudice?

[00:22:11] Speaker 00:
We don't think it was air.

[00:22:13] Speaker 00:
We think it was just a classic decision on defense counsel that defense lawyers make every day in courtrooms across the country, which is how to defend their clients.

[00:22:23] Speaker 00:
It takes a lot of different factors into play.

[00:22:27] Speaker 00:
And here, Mr. Cox's defense was not that he only targeted state officials and left federal officials alone.

[00:22:34] Speaker 00:
Far from it.

[00:22:36] Speaker 00:
He had as much animosity toward federal officials as he did to state officials.

[00:22:41] Speaker 00:
His defense, therefore, was not, well, we only intended to harass and murder state officials.

[00:22:46] Speaker 00:
We were going to distinguish or leave all the federal officials alone.

[00:22:49] Speaker 00:
It was not his defense at all.

[00:22:50] Speaker 00:
And, of course, that would be an absurd defense and not one that had any credibility in front of the jury, not one worth wasting credibility in front of the jury and judge on the part of defense counsel.

[00:23:03] Speaker 00:
Instead, Mr. Cox's defense was one of lack of intent.

[00:23:08] Speaker 00:
misunderstanding, the claim that all these violent words and violent actions and violent rhetoric were just misconstrued, that nobody was harmed.

[00:23:18] Speaker 00:
Under the FIOLA test, of course, the test is whether the agreement to kill a federal officer, even if that agreement is not fulfilled, is dangerous in and of itself, aside from any actions that they later conducted.

[00:23:35] Speaker 00:
So that's

[00:23:36] Speaker 00:
Those are many reasons why the decision of counsel to not dwell on the threats to state officers was not air.

[00:23:47] Speaker 00:
Not ineffective, not deficient.

[00:23:50] Speaker 00:
They presented a lot of other parts to their defense.

[00:23:54] Speaker 00:
There was no confusion on that topic.

[00:23:56] Speaker 00:
I think it was very clear who the state officials were and who the federal officials were.

[00:24:01] Speaker 00:
I'll go back again.

[00:24:01] Speaker 00:
They wrote down the names of four different federal officers.

[00:24:05] Speaker 00:
in their handwriting.

[00:24:07] Speaker 00:
It's very clear who the federal officers were.

[00:24:11] Speaker 00:
It's also very clear that the anticipated hit team was not real.

[00:24:17] Speaker 00:
There was never a chance it was going to materialize and appear and go after Mr. Cox.

[00:24:22] Speaker 00:
The government never contended that it was real, and so there was just no dispute in the trial that the federal hit team that they anticipated would never materialize.

[00:24:33] Speaker 00:
It was also undisputed at trial that the four federal names on the hit list in the hit list database, those were not contested either.

[00:24:42] Speaker 00:
So the facts were just very clear.

[00:24:44] Speaker 00:
So there's really no chance here of the jury becoming confused on these questions.

[00:24:52] Speaker 00:
As far as the prejudice angle, we think the evidence was overwhelming, even if you take out the KJNP

[00:24:57] Speaker 00:
evidence, just that the database hit list in and of itself is powerful, unambiguous evidence of their intent to murder a federal officer.

[00:25:06] Speaker 00:
The two-for-one philosophy of killing two officers or arresting two officers for every one that was killed or arrested is powerful evidence.

[00:25:16] Speaker 00:
The fact that they amassed this armory of military-type weaponry, including hand grenades, explosives, and so forth, these assault rifles,

[00:25:27] Speaker 00:
anti-personnel weapons and ammunition and so forth, powerful evidence.

[00:25:33] Speaker 00:
And if you include the KJNP evidence, their willingness to organize, plan, collect themselves, associate with one another, all to go out under certain conditions, well-armed, and protect Mr. Cox, even if that was a little bit off base, still was such a threat and so alarming that it required intervention.

[00:25:57] Speaker 00:
One of the constructs of conspiracy law is to intervene when an agreement or an intent forms sufficient enough that it's a threat.

[00:26:10] Speaker 00:
In this case, why wait for Mr. Cox and his militiamen to kill a federal officer when it was obvious that they were conspiring to do so and law enforcement was able to intervene ahead of time and prosecutors were able to prosecute ahead of time and not wait

[00:26:27] Speaker 00:
for a federal officer to be killed by Mr. Cox or his men.

[00:26:33] Speaker 00:
Those are my comments before the court.

[00:26:35] Speaker 00:
Unless there are any questions, I'll yield the rest of my time to the bench.

[00:26:38] Speaker 03:
Thank you.

[00:26:39] Speaker 03:
Thank you, Judge.

[00:26:59] Speaker 02:
Thank you, Your Honor.

[00:27:01] Speaker 02:
First, FIOLA is cited in both the conspiracy decision from the prior appeal and the solicitation conviction.

[00:27:09] Speaker 02:
So it's very evident the panel was using the FIOLA test against two different theories.

[00:27:15] Speaker 02:
They were testing it against KJNP for solicitation, and they were testing it against some other theory for conspiracy.

[00:27:21] Speaker 02:
And if you look at the briefing, when they say defendants and his co-conspirators agreed to attack government officials

[00:27:28] Speaker 02:
in the event certain conditions they subjectively thought were likely to occur.

[00:27:32] Speaker 02:
That briefing about contingent conspiracy, likelihood to occur, was about the database theory.

[00:27:38] Speaker 02:
So absolutely they were upholding it based on the database theory and nothing else.

[00:27:44] Speaker 02:
Number two, did the co-conspirators seek the database during these end events?

[00:27:50] Speaker 02:
Absolutely not.

[00:27:51] Speaker 02:
The informant wanted the database.

[00:27:53] Speaker 02:
The informant wanted the database because his handler told him to go get it.

[00:27:57] Speaker 02:
So he was asking everybody, oh, can I get the database?

[00:28:01] Speaker 02:
Let me go get the database.

[00:28:02] Speaker 02:
And when they went to Anderson to try to get it, Anderson wouldn't give it to them.

[00:28:07] Speaker 02:
So that's evidence that there was no agreement to use the database.

[00:28:11] Speaker 02:
Number three, the hit list.

[00:28:12] Speaker 02:
This was not referring to the database.

[00:28:15] Speaker 02:
The hit list about the federal marshal was Cox and Anderson discussing a separate scenario where Cox was trying to figure out who these fictitious FBI agents or federal marshals were who were after him.

[00:28:29] Speaker 02:
So when Marshall wrote down hit list, it was because they thought there was a hit team

[00:28:34] Speaker 02:
out to get Cox, and they were trying to figure out who it was.

[00:28:38] Speaker 02:
And the idea was, oh, go to the marshal's office in Fairbanks or Anchorage, I can't remember which, and try to find out who those federal marshals might be.

[00:28:49] Speaker 02:
And so we looked up this guy, Jimmy Johnson.

[00:28:51] Speaker 02:
But that was not part of the agreement.

[00:28:53] Speaker 02:
It was not part of the database.

[00:28:56] Speaker 02:
It was a completely different theory and a completely different use.

[00:29:00] Speaker 02:
It was actually a self-defense idea.

[00:29:02] Speaker 02:
because it was about the assassins.

[00:29:05] Speaker 02:
Number four, read the closing arguments.

[00:29:07] Speaker 02:
Each of these counsel were saying this is a conspiracy to kill the FBI agents at KJNP.

[00:29:14] Speaker 02:
All of the defense counsel said that.

[00:29:16] Speaker 02:
The government said that.

[00:29:18] Speaker 02:
It's blowing my mind that the government is coming up here and telling you that they were mostly talking about the database or there wasn't any idea that

[00:29:26] Speaker 02:
This was about KJNP.

[00:29:28] Speaker 02:
The closing arguments are entirely clear that everyone was thinking about KJNP because those people were supposedly federal.

[00:29:36] Speaker 02:
The people in the database were state employees.

[00:29:40] Speaker 02:
And the federal people, which don't include Jimmy Johnson, so there's only three of them, were never added to the database.

[00:29:47] Speaker 02:
And Anderson specifically said that he did not think Cox had agreed to murder them.

[00:29:54] Speaker 02:
A new trial is necessary either on the due process Gates argument or on ineffective assistance of counsel.

[00:30:00] Speaker 03:
Thank you very much.