In previous articles, we have discussed the Criminal Complaint, Arrest Warrant, and Search Warrant. In each of those documents, we have a set paragraph, to wit:
On August 29, 2014, United States Border Patrol Agents from the Fort Brown Border Patrol Station, while in performance of their official duties, encountered an armed individual, identified as John Frederick FOERSTER, in the brush. During this encounter, FOERSTER turned and pointed a firearm at a USBP Agent, who intern [sic] fired several shots at FOERSTER. FOERSTER is a member of “Rusty’s Rangers,” an armed citizen militia group patrolling the border of the United States and Mexico.
In each document bears the signature of “Anthony M. Rotunno, Special Agent ATF”. Below that, it states that it was “Sworn to before me and signed in my presence”, that being signed by “United States Magistrate Judge Ronald G. Morgan”. So, we have Rotunno swearing before Morgan that everything he has said is true. So, let’s see what the story is, now.
Hagen, the Prosecuting Attorney, in giving his response to Sorola’s motion, says:[T]he way this all came about is there was one agent that was in heavy brush, and he was in hot pursuit of aliens. When he came through a clearing, he encountered John Foerster… Mr. Foerster had a weapon. It was an AK47 type pistol. And when the Border Patrol — and this is probably disputed. I don’t think that Mr. Foerster ever aimed or was planning on shooting the Border Patrol agent. But when the Border Patrol agent came through the brush, Foerster turned in his direction, and he was perceived as a threat by the Border Patrol agent who fired several shots at Mr. Foerster, thankfully missing.
The first witness was Danny Cantu, U. S. Border Patrol. Hagen is questioning him.
Q Okay. Now, at this point in time, did you know whether or not Border Patrol Agent [Marco] Gonzalez had been threatened or whether or not perhaps Border Patrol Agent Gonzalez had irresponsibly fired upon Foerster? Did you know?
A From what I had gathered, he had fired in — from what Mr. Gonzalez told me. Again, this was preliminary. I was trying to — I had to speak with everyone to figure out kind of what was actually happening, so I wasn’t sure at that point.
Well, Gonzales, the only witness to the shooting besides Foerster, made no claim that begins to suggest that the weapon was pointed at Gonzales.
In Hagen’s initial statements, he said, “I believe [Massey] made one res gestae statement in connection with the arrest when he was told that they were going to do a search warrant, and that statement was, ‘There’s another gun in the hotel room, but it’s not mine.’” So, he ‘believes’, based upon something that he didn’t articulate, he makes a claim without foundation, setting the stage for the entire government performance. Perhaps it was Divine Inspiration.
Now, res gestae is a legal term which provides an exception to the prohibition of hearsay, and is met when somebody makes a spontaneous statement, closely connected to an event, before the mind has an opportunity to conjure a falsehood. Hagen perhaps, attempted to lay a foundation that Massey “volunteered” the information about a firearm in the motel room. Perhaps the same applies to the initial interview with Gonzales and the failure to report any instance where Foerster “turned and pointed a firearm at a USBP Agent.”
It also begs the question, why did Cantu state that he had to “speak with everyone”, when the sole shooter had already said that he was the sole shooter?
In cross-examination, Mr. Sorola is questioning Cantu:
Q To your knowledge, at any time were any of those weapons [that were taken from the Camp Lone Star volunteers] fired at this shooting?
A The Winchester (Varner’s] was not, as he was speaking with me when the shots were fired.
Q So at the time of this shooting, do you know who’s discharging what weapons?
Q Okay. Later on do you find out… who is firing a weapon, a firearm?
A Upon approaching… Foerster and Mr. Gonzalez area, yes.
Q And Agent Gonzalez is the only one that discharged a weapon; is that correct?
A At that point, that’s what I was told, yes.
Q And you were told that by Agent Gonzalez, right?
A Correct. And Mr. Foerster attested to that.
THE COURT: And you said at that time. I mean, nothing subsequent to that time has changed… ?
THE WITNESS: No, sir, no. It’s just that –
THE COURT: So as far as you know sitting here today, the only weapon that was shot was — the only weapon discharged was discharged by Agent Gonzalez.
THE WITNESS: Correct.
So, Cantu knew, the moment that he was able to speak with Gonzales, that no other weapon was fired, except Gonzales’. And, he makes no mention of any pointing or aiming by Foerster.
From that point on, there is no further discussion of pointing because the shooter, Marco Gonzales, after making initial statement, lawyered up, and Foerster has also refused to talk.
Q Okay. Was he [Agent Marco Gonzales, the shooter] going to visit with anybody? Was he going to talk about what happened?
A No. They — we were informed that he was not going to provide a statement out there.
Q All right. And who gave you that information?
A Let me see. Mr. Gerardo Reyes “Rey” Gonzalez.
A He was the one who informed me that Agent Gonzalez was not going to provide a statement. He was the union leader.
So, though the agents are employees of the Border Patrol, and I’m sure that they are required, as a part of their duties, to file reports on any incidents, especially an officer involved shooting, and the union can “void” that obligation. It kinda makes you wonder who runs BPS — the government, or the union.
Now, since Gonzales has hidden behind the law and his union, it would appear that he has something to hide. Though we have not heard Foerster’s side of the story, he has not been charged with any criminal activity related to the shooting event, only that he was charged, like Massey, with felony possession of a firearm, and has plead guilty to that charge.
Massey is also charged with felony in possession of a firearm and has, rightfully, plead not guilty. He was not apprehended in the commission of a crime, nor did he have any knowledge of any crime, except what he heard during the course of the investigation. He was not even a witness to the crime of the discharge of a firearm by an agent of the government.
So, let’s try to be objective as we look at this “scene”. We have an affidavit, sworn to by Rotunno, in front of a judge. His claims of the weapon being pointed at the Agent flies in the face of what Gonzales and Foerster told the other investigators. Even the prosecuting attorney, Mr. Hagen, says that he doubts that a firearm was pointed at the agent. That was a bald-faced lie on the part of Rotunno, and he was never even at the scene of the shooting. That smells, very strongly, of Perjury.
However, if you lie to a government agent during the course of an investigation, you are subject to 18 US Code § 1001, and subject to 5 years in prison.
Then, we have the only one that committed a possible criminal act who only made some statements to others, before the union got him to lawyer-up.
However, who is the government going after? K. C. Massey, neither Gonzales for shooting at Foerster nor Rotunno for lying in a sworn statement.
It appears that we have returned to that era in history where “The King can do no wrong”. And, the King includes his, not our, public servants.
Government should not be theoretically defensible,
it should be the object of general acceptance.