Militia Major Sentenced to Five Years
Another day in court that brings us closer to the end of the Fairbanks militia trial.
Today saw the sentencing of militia Major Coleman Barney, and also a status conference with Lonnie and Karen Vernon that left more questions than answers.
For those wanting to cut to the chase, Coleman Barney was sentenced to five years in prison, half the time of the ten year sentence the prosecution was seeking, but hardly the house arrest, or time served sought by the defense. How they arrived at the sentence was fascinating, though, and all the details are below.
LONNIE AND KAREN VERNON STATUS CONFERENCE
The Vernons were up first. Both were wearing yellow jumpsuits.
“Thank you judge, I really appreciate it,” said Lonnie Vernon. I didn’t know exactly what he was thanking him for, but I wondered if Vernon had some miraculous change of attitude toward the court since we saw him last. When he and his wife entered into a plea agreement, his appearance was peppered with negative verbal outbursts about the government, the corrections system, and his counsel. I was soon to be disabused of the notion he’d warmed up to the system.
MJ Haden, Lonnie Vernon’s attorney, seemed weary and frustrated as she spoke.
“Your Honor, I sat here while Mr. Vernon talked to his wife just now. The last couple times we’ve met, we’ve not been able to communicate. He refuses to answer the simplest of questions. I think at this point we need to proceed out of the presence of the government.”
After being questioned by Judge Robert Bryan, she indicated that she intended to make a motion, and that it involved attorney/client privilege. She asked that the courtroom be sealed. The judge agreed, and out we went into the lobby to wait.
After a few minutes, we were called back. The judge indicated that nothing had happened involving pleas, but that “there may be a motion concerning withdrawal, and I’ve asked that I receive that in writing.”
And that was that. Later in the day, there were mumblings around the courthouse that Vernon has been insulting and abusive to his counsel. The characterization “two-faced clowns” was bandied about.
Stay tuned for more on a potential motion to be filed, but that’s all we know for now.
COLEMAN BARNEY SENTENCING
Next up was the matter of sentencing for Coleman Barney. Barney was the only one of the three defendants who was not convicted of conspiracy to murder federal officials. The jury was unable to reach a verdict, and the government chose not to retry the case. He was found guilty on two weapons charges.
Barney was in court today, in the same yellow jumpsuit as his co-defendant. It felt strange seeing him out of a suit and tie, although the jumpsuit garb has been his usual attire during the past 18 months he’s spent in the Anchorage jail since his arrest. Also present in the courtroom was his attorney, Tim Dooley, federal prosecutors Steve Skrocki and Yvonne Lamoreux, and FBI Special Agent Sutherland.
The judge began. “In preparation for this proceeding, I have read everything in the file and in particular the pre-sentencing report, sentencing memorandum, and a number of letters attached to it and filed along with it. I assure you, Mr. Dooley, I read all those letters carefully, and the government’s sentencing memorandum.” The letters came from friends, family and fellow church members of Mr. Barney, attesting to his character and asking for leniency. The judge also indicated that just today, he’d received another letter from a juror, but did not indicate what the letter said.
The first order of the day was to review the facts presented in the pre-sentencing report and determine if either side had objections. The report had covered all three defendants (Cox, Barney, and Vernon) to avoid duplication of effort, and there were objections from counsel, changes, and footnotes which pertained exclusively to Barney so the judge wanted to find out if any further corrections needed to be made.
The government had no issues, but Tim Dooley did.
“He’s not convicted of many of the things in the report…The only authority in sentencing the court has is over the crimes for which he was convicted. Anything else would be going beyond the scope of authority. Both the government’s and the probation officer’s report are filled with matters that are not relevant to what is now a gun case as it relates to Coleman Barney, and little to do with the gun charges for which he is now convicted.”
Yvonne Lamoureux argued that Barney was convicted of a conspiracy to acquire destructive devices, and that the relevance went to understanding his role in that. “He can be held responsible for the actions of others which were reasonably foreseeable for him. He understood their motivation and intent… It is appropriate to include those facts in the report.”
“You’re both right to some extent,” Judge Bryan concluded after hearing both arguments. “Determining what is relevant conduct is an often difficult and slippery slope. It’s hard to say what is relevant. I’m not a fan of guidelines that go too far with relevant conduct. What is clear to me is the reasons Mr. Barney was involved in counts 1 and 9 are appropriate relevant conduct. On the other hand, he is not responsible for things that others did that were not part of these offenses and was not in furtherance of these particular offenses. We know what the other defendants were convicted of, and he was not convicted of those things. That’s my view. I’m mindful of the argument.”
Step two was a review of the Federal Sentencing Guidelines. The guidelines act as just that – guidelines for determining a range of what an appropriate sentence would be for a particular crime. There are factors that can add points, and make sentencing guidelines stiffer, and other factors that make the guidelines more lenient. When it was all hashed out, we’d have a range the judge would use, but he’d be free to go outside the guidelines if he chose.
Firearms and Felonies
The fact that there were more than 3 firearms involved, added points. The inclusion of a “destructive device” added more. The possession of a firearm during a felony adds more, and was the subject of much debate between counsel for the defense and the government. At issue was which incident was considered to be the felony offense. Did it have to do with a felony for which he was convicted or not? The prosecution stated that according to the law, he did not have to be convicted of the felony at all, but simply had to possess any firearms or ammunition with the knowledge or intent that it would be used in a felony. Lamoureux went on to state that Barney possessed firearms with reason to believe that they were going to facilitate other felonies. She also stated that the addition of those points to the sentencing guideline would apply to any firearms, not just the ones involved in the charges for which he was convicted.
Tim Dooley said the prosecution was making a lot of assumptions about what Barney knew and what he didn’t know, but ultimately the judge was not convinced and added four points to the sentencing guideline.
The next question had to do with Barney’s leadership role, which would also add enhancement in guidelines. There was a little back and forth about whether Barney did or didn’t have a “leadership role” in the organization or in the commission of a crime.
Judge Bryan listened to both sides, and put an end to it by saying, “I have a different view of this. I listened to this trial all the way along, calling Coleman Barney a major in this militia.
There was no militia. It was a group of disorganized individuals who were trying to make one.
“His activity in that group did not result in an actual leadership position… I don’t believe Coleman Barney was a leader in a conspiracy. He was a follower… I don’t think this applies at all.”
Obstruction of Justice
Next to be addressed was an obstruction of justice argument. “This is the one that most irritated and upset Mr. Barney,” his attorney noted. “He cannot legitimately be accused of being a perjurer… [his opinion] doesn’t make him a perjurer. The fact the jury did not go for his testimony does not mean he’s a perjurer. He knows in his heart whether he’s committed perjury and is facing the gates of Hell, but I don’t think the government can legitimately claim he committed perjury.”
Yvonne Lamoureux pointed out that in the sentencing memo, there were a number of places where Barney had made contradictory statements in testimony, bail hearings, and in a motion to suppress, citing recorded conversations with Schaeffer Cox talking about the acquisition, and cost of grenades and fuses. “There is ample evidence he was not being truthful,” she concluded.
“This is another slippery slope in the guidelines,” Judge Bryan began. “The government here asks the court to look at everything Coleman Barney did or said that might be challenged by other evidence in the case. There’s a big difference between purposefully lying, and having a convenient memory. People want to remember things the way they wish they happened. That, in and of itself, does not indicate an obstruction of justice enhancement.
“The prosecution pointed out that many things were not adopted by the jury or by me in the motion setting. I’m not willing to go the next step to say he willfully committed perjury or obstruction of justice. Some of the things he told us may have proved to be false, but I am not willing to say that it was willfully said. The obstruction enhancement should not apply.”
After the haggling over the sentencing guidelines had concluded, it was determined that the guideline range would be between 97 and 121 months
(8 years 1 month to 10 years, one month).
Statement from the Prosecution
Yvonne Lamoureux began by stating that the court was bound to take into consideration the history and characteristics of the defendant, and also the nature of the offense, and that sentencing should reflect the seriousness of the offense, promote respect of the law, and impose just punishment.
“There is no dispute that he is a family man, a hard worker and successful businessman,” she said. “He has a loving and supportive family, which makes it all the more difficult to understand how he got to this point.” She brought up those who had written letters on behalf of Barney. “They don’t know the Coleman Barney who said things like, ‘8 grenades doesn’t sound like a lot unless you’re one of the judges and DAs we’re looking at.’ They don’t know the Coleman Barney who talks about putting bullseyes on cop cars… They don’t know the Coleman Barney who participated in conversations about killing law enforcement personnel. He subordinated everything in his loyalty to Schaeffer Cox. He jeapordized his own family.
“He was his right hand man, his confidante. It’s at Coleman Barney’s house that many of the conversations about ‘2-4-1′ occur, and many dangerous weapons were stored.”
She went on to indicate that Barney had not shown remorse, but merely tried to justify the actions he took. Those actions, she said, “transcend naiveté.” The notes showed they were planning on using grenades to stop law enforcement when Cox appeared for an interview at KJNP in North Pole. Barney headed the security detail, and texted Schaeffer Cox the message “No bees,” indicating he was on the look out for law enforcement, she said, and he believed they were going to come for Cox. “It created a dangerous situation,” she said.
She continued to enumerate the points that reflected the serious nature of the crimes that the prosecution believed should influence the sentencing, and show how intertwined Barney had become with militia leader Schaeffer Cox – he recruited people to serve as jurors at Cox’s common law trial, attended command staff meetings, wrote “Mission 2-4-1″ in his notes, took part in discussions about capturing and killing public officials, told Cox he could hide out in his rental cabin, attended and reported back from Cox’s trial where he had refused to show up, filed paperwork against the judge presiding in Cox’s case, welcomed Cox into his home where further discussions were held about “rolling judges’ heads”, helped Cox move firearms from his shed back to his property, ordered a pistol and silencer he knew to be unregistered, and planned for when the militia would be strong enough to act. She also talked about the fact he wore body armor, and brought $5000 cash to the illegal weapons deal where he was arrested, and that he’d asked to buy another silencer on the way to the meeting, knowing it to be illegal.
“He knew that they were conspiring to possess silencers and destructive devices under the specter of murdering public officials and law enforcement. Coleman Barney put himself in this situation, and his family in this situation. There’s no question this impacts families,” she said. She noted his lack of criminal history, lengthy employment history, and supportive family. “But it’s too serious of an offense to warrant less than a 10 year sentence.”
Statement from the Defense
Tim Dooley spoke slowly. “One of the very first lines is that the sentence should be no more than is necessary. It should promote respect of the law. It doesn’t say anything about promoting fear of the law. A 10 year sentence for conspiracy to possess, will promote not respect, but derision for the law.”
He cited the text message that Barney sent to Cox saying, “No Bees.” The prosecution didn’t say it interpreted the message, he said, but stated as fact that it referred to law enforcement. Dooley attested that Barney’s reference to “bees” was talking about a hornet’s nest round (an explosive round considered to be a ‘destructive device’ filled with rubber pellets), but that Barney couldn’t remember what it was called.
“This is a man who, for whatever reasons, has been caught in this spider web,” he said, and went on to state that the sentencing guidelines regarding possession of the destructive device, (the hornets nest round) “radically overstates the conduct.” All other destructive devices for which the guidelines are made, are things like sticks of TNT, pipe bombs, and mortars. “Rubber pellets are not the same as those,” he said. The hornets nest canister was far safer than a perfectly legal shotgun or rifle, or launcher on which it would be mounted, he explained. “This is the first case we can find anywhere about rubber pellets and a launcher, and we’ve done quite a bit of work on it.”
He said he doubted that most people would know that it was illegal to own a hornets nest in conjunction with the 37mm launcher. “There’s no label on the thing,” he said, “And this is important because it’s an automatic 18 points (on the sentencing guidelines), because this is a ‘destructive device.’ It radically overstates the danger to others, as if it were a pipe bomb or TNT. We heard Aaron Bennett (the owner of Far North Tactical in Fairbanks) say he sells the things to Fish & Game guys. The launcher is freely available, and the hornets nest is freely available. The only purpose would be putting it into a launcher. I think you could poll the public and nobody would think this was an illegal weapon.”
Much was made of this point in the trial – that both items were legal on their own, but together both became illegal, and were considered a “destructive device,” and possession of both together was a felony, punishable by years of jail time.
Dooley also noted that in Alaska there is no state law about “conspiracy to possess a silencer or destructive device.” He stated that a 9 or 10 year sentence for this would not promote “respect for the law.”
Then he made a personal plea, citing that Barney has 5 children ages 1-10, the youngest of whom was born while he was in prison. He had been denied bail because the judge said he appeared to be naïve, and might follow orders from Schaeffer Cox. “He’s not naïve any more,” Dooley said. “He’s had 18 months in the local prison and met some people he didn’t even know existed. Some people are born into society and detract from society. Coleman Barney has spent his life mostly adding to society. If he remains in prison more, I don’t know what will happen to him. But society will be deprived of a man who works, and employed 12 people…”
Answering Lamoureux’s assertion, he added, “Most of those people [who wrote letters of support] followed this trial in the press, and some were here throughout the trial. They heard these things, and they know what was going on. They know a Coleman Barney who has contributed to society. He hasn’t stolen money, he has not violated a trust.” He talked about the raid on Barney’s home and that it had not turned up anything else – “no porn, child porn, no drugs, nothing else illegal. With the excpetion of his conviction for these two offenses, he has no other history… I think justice would mean a release from prison very soon, perhaps a house arrest in Fairbanks. But anything beyond that would be a corruption of justice.”
Statement from the Defendant
The judge then gave Coleman Barney the opportunity to speak to the court. His voice sounded full of stress, and he paused frequently to catch his breath.
“I’d just like to start off by telling family how much I love them, and my friends how much I appreciate them. I want to apologize to the court and the community. I made some poor choices and decisions. I love my family with all my heart, and my family and church is everything to me. And I do feel remorse, and I would do anything to get back to my family and see my kids grow up, and take care of my wife. I’d ask you to please keep that into consideration. And I beg you to let me get back to my wife and my kids.”
Then the judge asked a question he said he’d been curious about. “How do you feel about all this business you got into with Mr. Cox?”
“Your Honor, I ….. I love my country and my community and stuff, and during the time, there was just a lot of hype and people getting involved in the Tea Party and all that, and I got involved in that hype … and there was good things that the Second Amendment Task Force was doing, putting stuff in front of congressemen and stuff. When the idea of the militia came forth, and there was a bunch of wonderful Christian men, and in the event of economic collapse, what could we do as Christian men to protect our families.
“As things went on, I got caught in the middle of that speech, but I would bring up the fact tha people wouldn’t see us as martyrs. I was ashamed, and told my wife that people are talking about some crazy things. I said things I didn’t mean . I kept thinking he’s leaving and all this stuff was going to stop. To me, a lot of this was just talk. I said I didn’t want to lose me soul. I am embarrassed of a lot of things I said during those times. I can’t make excuses for it. I can tell you that If I’m abe to go home to my family that there won’t ever be any problems with me. I’m not a violent man. I love people. I love my family, I love my family. I got caught up in a lot of the hype, and I just want to apologize to everyone for everything this has put them through, especially my wife and kids.”
“I know you’re anxious to hear what I’m going to say, but I need a couple minutes,” Judge Bryan said. “Don’t go away.” And he left the courtroom.
The courtroom is now fairly full of people. Several are praying. Several have children with them. The mood is very tense, and very silent.
Coleman Barney takes a tissue and wipes his eyes and nose. He rubs his forehead. He cries quietly into his hands. Occasionally he looks up, and he appears pale and clammy. His brow is furrowed, and he looks quickly at his family. At one time, he pulls himself together and gives a wink to someone in the front row, probably his wife. It appears there are between 15 and 20 supporters watching.
He quickly reverts back to covering his face with his hands. The prosecutors are not looking at him, but whispering quietly amongst themselves.
Tim Dooley looks tense, pours himself a glass of water, and then gets up and pours one for Coleman Barney who is sobbing quietly.
The minutes tick by. Coleman Barney becomes frozen in place, sitting absolutely still for several minutes with his index finger across his brow ridge, his left hand gripping his right.
There is occasional low whispering, but otherwise the court is absolutely silent.
After what seems like an eternity, the clerk comes back, followed by Judge Bryan.
“The sentencing process starts when the indictment is filed and assigned to a judge. You can’t start this process without all the time thinking of the bottom line. This has been a long process for me, and for Mr. Barney.”
He started off talking about the letters he’d received. “Very few of those letters acknowledged that Mr. Barney had committed any crimes, or did anything wrong. I would suggest that in the first 20 pages of the government’s sentencing memorandum, what he did as part of the crimes of conviction is laid out very well, including what he said at different times, and what he didn’t say at different times. It’s clear that his friends and family and church members that knew him found it hard to believe he got involved in all of this, but he did.
“It is chilling to hear and then read again some of the conversations that he was involved in.” He turned to address Barney. “One would expect with your background you would have said, ‘This is not right, this is not what my church teaches, I don’t believe this and I’m not going to support it.’ I believe if you had acted on what I believe are your basic moral principles, you wouldn’t have gotten into this trouble.
“It’s fair to consider the crimes of conviction as relevant conduct, and they go far beyond the simple conviction of weapons.
“I would say that there was no militia in this case, and I’m frankly a little tired of hearing about it. A militia is a body of citizens organized for military service. There is certainly a place for militias in this country, and perhaps for independent militias that are not regulated by the government. The second amendment starts, ‘A well regulated militia, being necessary to the security of a free State …’, and maybe citizen militias are important for the security of the United States. This was not a well regulated militia, and many withdrew and went their own way and left the small group of people who were talking big about many things including crimes, but were not well organized, or trained, or anything of the kind.
“We have not heard from Mr. Barney in this trial about freedom of speech. I’ve tried to make it clear that in this country we not only permit anti-government speech, we welcome it. That is why we have campaigns and elections, so people can elect leaders. The political process is slow and many people are impacted by the government and what the government does, and they feel left out, and it’s appropriate to complain. The government is designed to protect those voices. It is also set up so that we respect laws to provide safety and security to all those in a free society… It’s about violation of criminal laws and it’s not about freedom of speech.
“There are policy statements that tell us a little bit about how the sentencing guidelines should apply, and there are some policy statements that refer to bases for increasing sentences above the guidelines, and they include weapons or dangerous instrumentalities being used in commission of an offense. They also include disruptions of government function, and if they endanger national security. Those are bases for going above the guidelines.
“There are also bases for going below the guidelines, and some apply here. The court should consider mitigating circumstances and in this case, the primary mitigating circumstance is that these offenses arguably were abberent behavior, not something he would ordinarily be involved with and do. He does not appear to commit crimes for a living like some of the people we see. This does not diretly apply here, because the offenses went on for a long time. There was a change in his demeanor that his friends would see and detect, and this conspiracy to secure unregistered weapons went on for a long time, and at some point it isn’t a one shot deal, and it becomes more a way of life. This whole departure from his ordinary way of life is certainly not what one would have expected of him.
“In count 9, as Mr. Dooley has well argued, although this was technically a destructive device, as destructive devices go it’s not a bad destructive device. It qualified as one, but it’s not the same as if it were a pipe bomb, or something more dangerous than a hornets nest round. As was pointed out we technically call these ‘crimes of violence,’ but there was no actual violence in this scenario.
“We know of his family responsibilities, and one of the sad things about crimes is that there are many victims. There are many potential victims here. The ones that got hit the hardest are families, and in particular mr Barney’s family and that is a sad part of what happens when one decides to commit crimes. It is inevitable, and we cannot cure that particular problem. It’s one of those deals where our actions affect other people.
“There’s an interesting thing about counts 1 and 9. Number one is the conspiracy to possess unregistered silencers and destructive devices, and is the most serious of the two. Yet it has a maximum sentence of 5 years. Yet count 9 carries a maximum of 10 years. I would have thought those should have been reversed, but that’s what we’re dealing with here. Congress makes those decisions, not the court on a case-by-case basis. The actions that led to the conviction of count 1 were more serious than possession of the destructive device reflected in count 9.
“In determining what is sufficient but not greater than necessary, we determined the nature and circumstance of the offense, and character of the defendant. Certainly Mr. Barney’s exemplary history and charateristics before these offenses are very much before the court. We balance that, of course, with the nature and circumstance of the offense and as I indicated that’s very well set out in the government’s brief. This could have been far more serious than it ended up being. Mr. Barney was participating with a group trying to get weapons for purposes that were certainly not within what a polite society would expect. The dangers have been fully explained and discussed here, and there was real danger in this whole thing, and so the offenses are serious enough. The sentence should reflect the seriousness of the offense, promote respect for the law, and give just punishment.
“The offenses are too serious to simply overlook. And there are other things the court must consider, and that’s to promote deterrence to Mr. Barney, and others who may be aware of what goes on in court. I frankly think going through this process has sufficiently deterred him from further crimes… The public does not need to be protected from him.
“We don’t have any other individual with similar background and similar offenses to judge this by, and that leads me to rely on my own background. I’ve sentenced over 4,000 felons in my life. I’ts not the happiest thing we do as judges. I think the circumstances and nature of the offense is too great to just say, ‘Go and sin no more.’ On the other hand, I think a sufficient sentence but not greater than necessary requires further prison time. So what is fair considering all those things?
“It’s my judgement that on Count 1 he should serve a maximum of five years, and on Count 9 five years to run concurrently for a total of five years, and credit for time served against that time from the time of your original arrest. Following the conclusion Mr. Barney is subjected to supervised release for a period of 3 years, standard conditions.”
No fine was imposed,the judge saying that any funds should go to support his family, not to fill government coffers.
“Do you understand your sentence?” asked Judge Bryan.
“Yes I do,” said Barney, looking better than he had before.
“You have a right to appeal the sentence, and also to appeal your conviction. You must file a notice within 14 days. If you don’t file a notice of appeal in that time you will lose the right to appeal.
“It’s been a long road, Mr. Barney, and a long road yet for you I understand, and a long road for your family. That’s the way I see it and I can tell you I think you got into some real bad stuff here and the sentence reflects it, but I think also you are a man who can do your time and go back to the life you led before and continue to be the kind of man you were before this. You’ll have to do it without any guns, though.”
And with that, court was adjourned. The familiar zip of the handcuffs was heard, and Coleman Barney, with a backward glance at his family, was led out of the courtroom.
Schaeffer Cox, and Lonnie and Karen Vernon are scheduled for sentencing in November.