United States Court of Appeals
The Fourth Circuit
_________________________________________________________________________________________________________________
CCA Fourth No. 08-6477
WDNC No. 1:08MC5 
DCSC Docket No. 8:07 CR 536-WMC
________
The United States of America 
Plaintiff-- Appellee
V.
Robert Clarkson, Donna Clarkson and
515 Concord Ave, Anderson, SC
Defendants -- Appellants
__________
Brief of Defendants – Appellants
Attached to the Informal Brief
_________
Appeal from the United States District Court
for the Western District of North Carolina

____________________________________________________________________________________________________________________

Due to the unusual circumstances of this case and due to the important Constitutional, personal and political issues of this case, Appellants requests oral argument. This may be a case of first impression. This Appeals Court’s understanding of the issues and facts would be assisted by oral argument. Appellant, a former practicing attorney, has argued pro se many cases including before this Court and the 11th CCA.

Appellant does hereby certify that neither party is a publicly held corporation nor a parent, subsidiary or affiliate of a publicly held corporation. No publicly held corporation or business has any interest in the outcome of this appeal. Appellee is a government body.

At no time did the FBI have a legitimate investigation against Robert Clarkson. The FBI did not have one single bit of evidence connecting Clarkson to the investigation.

1. The Privacy Act prohibits the FBI investigations in tax cases
2. None of the material was evidence in any FBI investigation
3. Contempt of Court was necessary

The Plantiff-Appellee is the US government and this case deals with a FBI search warrant and nothing else.

I Statement of the Case

1. This case began on May 2, 2008 with a search warrant issued by US Magistrate Judge William M. Catoe, USDC-SC and executed the next day. On June 18, 2007, Clarkson filed his Motion for Return of Property under Rule 41g. (Appendix page 4; docket # 8) The Affidavit was sealed.

2. On July 9, AUSA Jill Rose of Asheville, NC filed the government’s Response in Opposition (App. 10; doc # 14). The next day Magistrate Judge Catoe ordered the FBI to return to Defendant the property not relevant to the ongoing investigation by August 31. (App. 16; docket # 16) Clarkson picked up most up his material in September.

3. On October 11, 2007 Clarkson filed his 2nd Motion for Return of Property for the items not returned. (App. 18; doc# 19 or NC doc #4) AUSA Rose filed the government’s Response on October 23 (App. 29; doc # 22 or 23).

Clarkson filed his Reply to the government’s Response on October 31, 2007. (App. 31; Docket #27) On January 15, 2008 Magistrate Catoe transferred the case to Asheville (docket # 28).

North Carolina Portion

4. In Asheville, NC the case was assigned to Honorable Lacy H. Thornburg USDC-WNC who issued his first order on January 29, 2008 ordering the government to “produce evidence pertaining to the continuance need for Defendant’s property in an investigation or prosecution.” (App 36; doc #6)

5. On February 2, 2008 Clarkson filed his Return to Judge’s Order (App. 40; Doc #7). On February 11, the government filed its Response to Motion for Return of Seized Property (App 43; Doc #8).

6. On February 19, Clarkson filed his Reply to the Government’s Response (App 59; docket # 13). On February 27, 2008 Judge Thornburg in his second order denied Clarkson’s Second Motion for Return of Property. (App 51; Doc #10)

7. On March 5, Clarkson filed his Motion for New Trial (App 54; Doc #11). On March 11, 2008 Clarkson filed his Addendum to Motion for New Trial (App 64; Doc #14). On March 11, Judge Thornburg handed down his third order which denied Defendant Motion for Reconsideration (App 57; NC Doc #12).

8. On May the 5th, Clarkson filed his Third Motion for Return of Property (App 66; doc #20) with new facts. Donna filed her Motion for Return of Property under Rule 41g on May the 19th (App 71; doc #24).

9. On May 23, Clarkson filed his Petition for Contempt of Court on Agent Andy and his supervisor. (App. 77; Doc #25) Attached to this was his Summary of Events in Support of this petition (App 89; doc #25-2).

10. On June 6 in his final order, Judge Thornburg denied Clarkson’s third motion, Donna’s motion for return and Clarkson’s Motion of Contempt of Court. (App 84; doc #26) In this order Judge Thornburg merged Donna and Robert’s cases together.

11. Clarkson had filed his Notice of Appeal on March 27th (doc #15). However after learning that the FBI had ended their tax investigation on

Defendant, he moved the appeals for continuance in order for Judge Thornburg to rule on the new evidence.

II Statement of the Facts

1. On May 3, 2007 a team of FBI agents lead by Agent Andy aka SAIC Andrew R. Romagnuola invaded the home of Robert and Donna Clarkson and the basement office of the Patriot Network, a tax reform political group. The agents from the Asheville, NC FBI office seized personnel property of the Clarkson, cash, checks, coin collections, numerous books and documents, the inventory of the Patriot Network bookstore, etc.

2. Robert Clarkson, no stranger to this court, has for thirty five years been in continuous conflict with numerous federal agencies and occasional state agencies. Clarkson founded and manages the Patriot Network, a political action group advocating abolishing the IRS and the Federal Reserve.

Since leaving the Army in 1971, Defendant- Appellant has been constantly suing government agencies. As a second year law student at USC, Clarkson sued the dean of the law school and the President of the University over the misuse of the mandatory student fees. The students were spending public money for alcohol, charity and political donations. Later Clarkson refuse to

pay SC Bar Association dues for the same reason. The Bar did not want to fight and allowed him to practice law for years without paying dues.

3. Clarkson and his associates were active politically and cause much trouble to the bureaucracies. He has never advocated violence, been involved with violence or participated with violence. To the best of his knowledge, Clarkson has not been involved in any activity under the area of operations of the FBI.

4. Clarkson and the members of his political clubs are classified as conservative-libertarian as Ronald Reagan, Senator Jessie Helms, Senator Jim DeMint, Governor Mark Sanford. Generally speaking nobody in the Patriot Network clubs would support Senator Hillary Clinton.

5. The Patriot Network support candidates, provides a forum, volunteers and a fund raising base for active political candidates as Congressman Ron Paul. Other than supporting the US Constitution, Thomas Jefferson and the principles of the Declaration of Independence, the Patriot Network is not radical or extreme in any way. However, the members advocate “The Return to Constitutional Government” which means strict obedience to the Constitutional by the people in power.

6. In Asheville, NC and in other areas across this great county a large number of different and diverse patriot political groups are active. Clarkson manages the PN affiliate the Asheville Patriots, the best organized of the many groups.

7. Another unnamed patriot group has activities in that area dealing with bill of exchanges and other banking instruments. Clarkson had no involved at all, in any way at any time or in any manner with the third Patriot group. Clarkson says he did not know the other group existed nor much of their activities.

However, considerable overlap between the participants in the two groups existed. Agent Andy may have initially believed that some connection existed. However, after dozens of interviews and almost as many search warrants, the FBI realized that Clarkson has no connection to the banking instruments and had no participation in the other unorganization.

8. The third unnamed Patriot group was actively fighting the Federal Reserve and the international bankers by drawing up their own banking instruments and cashing them for larger amounts. Even his worst enemy would know that Robert Clarkson would never become involved in something like this.

9. The FBI had an immense amount of information in the hands about Clarkson pertaining to his 40 years in his intense political activism, including:

A. The IRS-DOJ could have a warehouse crammed with documents, records, transcripts, books, videos, etc about the notorious Dr. Clarkson.

B. The Patriot Network website is huge and has on it Clarkson’s decades of work. See www.patriotnetwork.info. The website has everything the Clarkson does, as you would expect from an organization reaching out to the people. The PN has neither a hidden agenda nor any secrets. Its all there right out in the open.

C. The FBI had three undercover agents attending Clarkson meetings in Asheville for about two years. One even worked in the PN office. After expending an immense amount of manpower, the UCA’s discovered no involvement with the redemption club and nothing about the Patriot Network that was not on its website.

D. Agent Andy and his crew interviewed dozens of Patriots in Asheville area and executed about a dozen search warrants. They found no connection whatsoever for Clarkson with the third Patriot Group and its banking instrument project. Again, no activities except as listed on his web pages.

E. The G-men seized a truck load of books, records, videos, files, personnel items of Clarkson and his wife and had exclusive possession for months. If they seized this material, surely they examined it. However all the information in that truck load of material was already posted on the PN website and not a single item was related to the BOE’s.

F. On May 8, 2007, Clarkson stopped by the FBI office in Asheville and answered all their questions for four hours. Actually Agent Andy had very few questions for Clarkson because all of his activities were already posted on the website and he knew it. He agreed upfront that Clarkson had no connection to the BOE’s. Clarkson has repeatedly stated through out this case that he did not know about the BOE’s or the large number of people involved. Agent Andy may or may not believe this.

The interview is explained more in the Motion for Return of Property, appendix pg 6.

G. Clarkson also submitted to another interview with the FBI on April 8, 2008, when he picked up the second group of returned items. Clarkson explains this interview in his Third Motion for Return of Property, appendix page 67.

10. After spending an immense amount of resources investigating the Patriot Network, the Agents found nothing not already on their website except a few financial records. They found nothing whatsoever in anyway connecting Clarkson to the activities of the third Patriot group which are now called “acceptance4value”. No justification existed in any way for the raid on the Clarkson’s’ home, the seizure and retention of their property plus the disruption of a political organization.

After years of litigation in this case, the government has not produced one single document or statement linking Clarkson in anyway to the bank fraud investigation.

11. At the said first interview, Agent Andy informed defendant that he was not under investigation for the bank instruments but for taxes. Defendant, an earlier litigant under the Privacy Act, 5 USC 552a and self-proclaimed expert on the FOIA-Privacy Act [see Clarkson vs IRS, 678 F.2d 1368 (1982)], informed the agents that the Privacy Act prohibited the FBI from investigating tax charges, that this was the exclusive bailiwick of the IRS. The agents all looked shocked.

12. Agent Andy also listed a number of tax violations that was identical to the DOJ promoter civil lawsuit against defendant under IRC 6700 in

Greenville SC. Clarkson told them that the case was almost wrapped up and the DOJ had dropped approximately 90% of the charges. Further that a federal Judge in Greenville, SC was handling those matters. Agent Andy insinuated that the federal judiciary in Greenville were incompetent.

In that case of US v Clarkson UDC-SC docket #8:05-cv-2734-HMH, Clarkson agreed to stop doing those things that he had never done or had not done in awhile. Defendant did not appeal from the final order.

13. At the second interview, Agent Andy informed Clarkson that he was no longer under FBI investigation, but his case had been turned over to the IRS. See Third Motion for Return of Property, appendix page 67.

14. The Feds seized a large amount of property from the Clarksons, none of which was connected to the any investigation and most of which could not possibly be related to a criminal investigation. For example the agents took Donna Clarkson’s personnel property, the PN blank stationary, coin collections and the Patriot Bookstore entire inventory when a few samples would have been sufficient.

The Agents seized $3,000 cash, checks including Defendant’s VA check, the computer’s and many other items including those listed in the Motion for the

Return of Property, appendix page 4; Second Motion for Return, appendix page 22; and throughout the Clarksons’ pleadings in this case.

15. The agents also took Clarkson’s law school diploma. Clarkson served in Vietnam as an infantry platoon leader and suffered a severe brain injury. The doctors informed him when he left the hospital that he would not be able to do anything. The seized diploma represented to Clarkson the fact that he could accomplish things and had a chance at a normal life. The FBI returned the frame from the diploma but not the certificate. This upset Clarkson and he had to seek medical attention twice.

16. Magistrate Judge Catoe ordered the return to Defendant of his property not relevant to the ongoing investigation by August 31. (App.16; doc # 16) The FBI allowed Clarkson to pick up most up his material in September.

17. Judge Thornburg issued his first order on January 29, 2008 ordering the government to “produce evidence pertaining to the continuing need for Defendant’s property in an investigation or prosecution.” (App 36; NC doc # 6)

Agent Andy failed to fully comply with this order. At no time did the agents ever produce a single statement or document connecting Defendants to any investigation

18. In late June 2008, the Grand Jury issued indictments for the BOE’s against four people out of dozens who were involved. Presumably those charged were the principles. Robert and Donna were not named by the Grand Jury.

19. No reason exist whatsoever for the FBI to continue holding the Clarksons’ personal property.

20. If no FBI investigation against Clarkson ever existed after the initial inquiries, then why did the world’s most prestigious law enforcement agency expend so much money and energy against a fringe political group lead by a former lawyer known for endless litigation against federal agencies.

At no time did Agent Andy have any information whatsoever that Clarkson had any involvement in any way with the acceptance4value program nor any information that Clarkson even knew about it.

The Return of COINTELPRO

21. The FBI now has a political disruption campaign against small political groups called “DISMANTELMENT”. The top level agents of our esteemed federal investigation bureau meet and decide which political groups should be harassed out of existence to keep the American people from hearing certain political ideas. Forms and instructions on this from the FBI are on the PN website and listed in the Motion for Return at appendix page 8.

In the 1960’s and early 1970’s, the federales lead by the FBI engaged in a major undercover war against officially unpopular political groups. This quickly grew out of hand and the FBI even disrupted an extremist political group in California called the College Republicans. The agents even tailed and kept records on a right-wing extremist former governor of California named Ronald Reagan. The IRS harassed and disrupted the US Senator from New Mexico Joseph Montanya.

More information about this illegal political campaign is found on the PN website. Click on COINTELPRO on the upper left. (Password for this case is 4143.) The US Senate investigated and declared this program constituted “wholesale violations by the federal law enforcement agencies of the Constitutional and Civil Rights of the American people”.

22. The political fallout was over shadowed by a child of COINTELPRO called Watergate. The Congress passed a number of laws officially prohibiting anything like this again. Incidentally, several federal Judges heard about this massive lawbreaking by almost all of the federal law enforcement agencies but remained silent. Therefore the federal judiciary was tainted.

23. In a free society, we can not allow law enforcement to become involved in the political process, absent real criminal investigations. Sooner or later the agents will go too far and another government scandal will be exposed. This tarnishes the very valuable reputation of our law enforcement. A good public image is essential for effective and efficient enforcement of the law of a free people.

24. Beyond any shadow of a doubt, no lawful police activity was involved in the seizure of Clarkson’s property and its continual possession.

25. Further to harass and create problems for Clarkson and his political organizations, Agent Andy notified the local police that Clarkson was a domestic terrorist operating a domestic terrorist organization. This is utterly ridiculous and simply mean spirited.

A. Material removed which had no possible use to an investigation but were needed by the political association to operate. These items were belatedly given back:

i. Pleadings filed in federal court, case files, the inventory of the Patriot Network bookstore, 1000 pages of blank stationary, etc. A sample may have been useful but taking the entire inventory was simply to burden a penniless political action group.

ii. Checks, money orders, VA check, cash and items for sale were removed from the PN for purpose of political harassment, not law enforcement.

B. Materials not returned which had no use whatsoever to an investigation at any time nor have any current use as all investigations on Donna & Robert are over. These include:

i. They returned the computer towers but not the hard drives and operating systems. In seconds, the federals could have copied the computer files- unless their real purpose was to harass a First Amendment club.

ii. They returned the frame to the law school diploma but not the diploma. Vandalism is not a lawful purpose of the police.

iii. Donna’s personal and legal papers, her silver necklace, family pictures, blank DVD’s and many items included in her Motion for Return of Property, appendix page 71. She was not involved in her husband’s patriotic activities and none of her property could possibly be related to any crime.

27. Defendants Motions before the trial court now found in the appendix explain the items in more detail and the lack of evidentiary value.

All of these items should be ordered to be returned forthwith, or the FBI prove how they relate to an ended, illegal operation.

V. ARGUMENTS

(1) maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President; (emphasis added)

The statue should be given its plain meaning. This may be a case of first impression. Westlaw list some cases under this section of the PA but to Appellant none pertain.

Congress was aghast over the widespread abuses of COINTELPRO and passed the Privacy Act with this provision to stop illegal political activities by federal law enforcement.

Clarkson’s position is that Congress wrote this to require the agencies to stay in their area, ie, FBI not to investigate tax cases. Agent Andy agreed as they turned the tax investigation of Appellant over to the IRS. Other laws mandate that that the federal agencies stay in their own area.

The facts are not disputed: the FBI raided the PN office; the FBI never had an investigation on Clarkson on the banking fraud case; and the FBI claimed to have a tax criminal case on Defendant. All the records collected and maintained were for a purpose not related or relevant to a FBI area of operations. Any tax investigation against Clarkson would be the exclusive

territory of the IRS. Therefore, the remaining records and material should be returned to Clarkson.

The elected representatives of the people as they enacted the Privacy Act also passed the “Sense of the Congress” on this law. This provides in part:

“(b) The purpose of this Act is to provide certain safeguards for an individual against an invasion of personal privacy by requiring Federal agencies, except as otherwise provided by law, to….

“(4) collect, maintain, use, or disseminate any record of identifiable personal information in a manner that assures that such action is for a necessary and lawful purpose, that the information is current and accurate for its intended use, and that adequate safeguards are provided to prevent misuse of such information; [emphases added]

(5) maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination;

(6) prior to disseminating any record about an individual to any person other than an agency, unless the dissemination is made pursuant to subsection (b)(2) of this section, make reasonable efforts to assure that such records are accurate, complete, timely, and relevant for agency purposes;

(7) maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity;

These provisions were also violated, in the plain meaning of the statute. The FBI maintained in their office many records describing Clarkson political activities and beliefs. These came from extensive investigation of Clarkson in the documents seized and the raid. Maintaining these records is

The 11th Circuit stated Clarkson’s position in this case very well in Clarkson vs IRS, 678 F.2d 1368 (1982):

Clarkson urges this Court to adopt the rationale espoused by the Circuit Court of Appeals for the District of Columbia in Albright v. United States, 631 F.2d 915 (D.C.Cir.1980). The factual situation in Albright is in many respects similar to the instant case. In Albright an agency of the federal government video taped a meeting between social security analysts and their personnel director regarding the recent demotions of the analysts. The videotape was not, and was never intended to be, made a part of the agency’s ‘system of records.” Focusing on the plain meaning of the statutory language, the Albright court held that 5 U.S.C. § 552a(e)(7) prohibits an agency from even collecting records which describe how an individual exercises his First Amendment rights. The Albright court found this interpretation of the Act to be consistent with both the legislative history of the Act, 7 which reflects Congress’ “special concern for the protection of First Amendment rights,” id. at 919, and the guidelines promulgateol by the Office of Management and Budget (0MB).8 Id. at 919-20 n.5.

(7. This Senate Report makes special note of ‘the preferred status which the Committee intends managers of information technology to accord to information touching areas protected by the First Amendment to the Constitution” S.Rep. No. 1183, 93d Cong., 2d Sess., reprinted in [19741 U.S.Code Cong. & Admin.News 6916, 6971)

(8. See 40 Fed, Reg. 28949 (1975). The OMB’s authority to promulgate guidelines to the Privacy Act is contained in § 6 of the Act, Pub.L. No. 93-579, 88 Stat. 1896 (1974).

Thus, the IRS would have us interpret subsection (e)(7), for’ example, as requiring that an agency shall “maintain no record [which is incorporated into a system of records] describing how any individual exercises rights guaranteed by the First Amendment.. . Since most of the arguments presented by the IRS are directed toward subsection (e)(7), we find it appropriate to discuss this provision separately.

The IRS raises numerous arguments in support of its assertion that the Albright interpretation of subsection (e)(7) is erroneous. Many of these arguments were discussed in detail by the court in Albright and we see no reason to repeat them here. In this case, however, the IRS presents two additional arguments which merit individual consideration by this Court.

[6, 7] The IRS first asserts that if this Court adopts the rationale (If the Albright decision, every piece of paper collected by a government agency will subject it to

a claim for a subsection (e)(7) violation. We believe the IRS has seriously overstated its case for several reasons. In order for the prohibition of subsection (e)(7) to apply, the documents involved must constitute ‘‘records’’ which implicate an individuals First Amendment rights. As we have previously noted, at least some of the documents involved in this case clearly fall within the definition of records provided by the Act. 5 U.S.C. § .552a(a)(4)(1976). And, it can not be disputed that memoranda reflecting the contents of Clarkson’s political speech would be subject to First Amendment protections. Even where records implicating an individuals First Amendment rights are involved, however, the prohibition against collection of such records is not absolute. Thus, Congress has provided that an agency may collect such records if expressly authorized by statute or by the individual about whom the record is maintained or {if the collection is) pertinent to and within the scope of an authorized law enforcement activity

5 USC. § 552a(e)(7) (1976). Indeed, while the first two exceptions are not applicable in this case, the IRS asserted during oral argument that the surveillance of tax protest meetings is an authorized law enforcement activity. The Privacy Act does not specifically define the term “authorized law enforcement activity.” Some guidance is provided, however, by the legislative history and the 0MB Guidelines. The objective of the law enforcement exception to subsection (c)(7) was “to make certain that political and religious activities are not used as a cover for illegal or subversive activities.” 120 Cong. Rec. H10,892 (daily ed. Nov. 20, 1974). By enacting this exception, however, Congress did not intend to dilute the guarantees of the First Amendment by authorizing the maintenance of files on “persons who are merely exercising their constitutional rights.” 0MB Guidelines, 40 Fed. Reg. 28965 (1975) (quoting 120 Cong.Rec. H10892) (daily ed. Nov. 20, 1974) and H10,952 (daily ed. Nov. 21, 1974)). In determining the scope of the FBI’s authorized law enforcement activities, one court has held:

Merely because [an agency] may act within its authority by monitoring the public or private speeches of a person in the course of a legitimate security investigation does not give it the right to maintain records relating to the contents of these speeches where the investigation does not focus on a past or anticipated specific criminal act. Jabara v. Kelly, 476 F.Supp. 561, 581 (ED. Mich. 1979) (emphasis in original).’10

Support for this proposition can be found in the Senate Report which states that the restraint imposed upon an agency by subsection (e)(7) is aimed at “preventing collection of protected information not immediately needed, about law-abiding Americans, on the off-chance that Government or the particular agency might possibly have to deal with them in the future.” S.Rep.No. 1183, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Admin.News 6916, 6971.

Although the scope of authorized activities must necessarily vary depending upon the particular agency involved, we find the balance struck by the court in Jabara to be appropriate in this case. Thus, we hold that to the extent that the IRS has engaged in the practice of collecting protected information, unconnected to any investigation of past, present or anticipated violations of the statutes which it is authorized to enforce, subsection (e)(7) of the Act has been violated. Since the record in this case does not reveal either the purpose of the surveillance activities or the extent to which records of political speeches are maintained by the IRS, we must remand this issue to the district court for further proceedings Consistent with this opinion.

12. Guidebook to the Freedom of Information and Privacy Acts 21-22 (R. Bouchard & J.Franklin ed. 1980). Thus, we find it both necessary and appropriate to construe the plain meaning of the language of subsections (d)(2) and (d)(3) to authorize the amendment or expungement of all records which are maintained in violation of subsection (e)(7). Moreover, we believe that this construction is consistent with Congress purpose in enacting provisions to safeguard First Amendment rights. Just as Congress must have been aware of the special treatment accorded First Amendment rights by the judiciary, it must also be credited with an awareness of the typical remedies afforded to vindicate violations of those rights. Prior to the enactment of the Privacy Act, courts have often recognized actions arising under the Constitution for expungement of agency records collected and maintained in violation of the First Amendment. 13 See, e.g., Paton v. La Prade, 524 F.2d 862 (3d Cir. 1975) (FBI surveillance and interception of lawful correspondence with the Socialist Workers Party); Chastin v. Kelly’. 510 F.2d 1232 (D.C.Cir.1973) (retention of documents relating to proposed dismissal of FBI agent after charges had been withdrawn). Thus, we hold that, at least with respect to violations of subsection (e)( 7), a plaintiff may be entitled to have the offending records amended or expunged even if the records are not maintained within the agency’s system of records. B. Subsections (e)(1)

I agree that the Privacy Act claims in this case should be remanded to the district court for further’ consideration; 1 write separately to emphasize my understanding of the court’s decision.’ In addressing the breadth of the exception in subsection (e)(7) of the Privacy Act 2 for records “pertinent to and within the scope of an authorized law enforcement activity,” the court holds “that to the extent that the IRS has engaged in the practice of collecting protected information, unconnected to any investigation of past, present or anticipated violations of the statutes which it is authorized to enforce, subsection (e)(7) of the Act has been violated Ante, p. 1375.

I agree; subsection (e)(7)’s prohibition against collecting records that describe how an individual exercises his first amendment rights should not be

circumvented by fishing expeditions disguised as “law enforcement activity.” I wish to emphasize, however, that the District court must have broad discretion in determining whether an agency’s record collection is part of a law enforcement activity; in actually reviewing the records and the circumstances surrounding their collection, the district court is in the best position to determine the applicability of the (e)(7) law enforcement exception. Thus, while the nation of the applicability of the exception is a in question of law and fact, its factual character predominates and our review of a district court’s finding on this issue should so recognize.

The inquiry into the law enforcement exception's relevance in a given case must, of course, depend on the facts and circumstances.

Agent Andy even told many people including the local cops that Clarkson was a “domestic terrorist”. That was pretty rotten and dangerous if Clarkson is stopped for a traffic ticket and reaches for his long, black wallet. We all know that once a government agency starts law breaking, they do not stop. They will expand and grow until the judiciary sez “No!!”

Issue 2. None of the material seized was Relevant and Necessary to a FBI investigation.

At no time did the FBI have a legitimate investigation against Clarkson for a FBI purpose. Dismantlement is not a legal purpose nor is interference, harassment or burdening a political club. Agent Andy seized cash, all of the inventory and the internal operating papers of the Patriot Network and would not return copies. The only purpose of this was to drive up the operating cost of a political group.

If Agent Andy disagrees with the purposes and goals of the PN, he could run for office. Ex-FBI do good in the polls in the Carolinas.

Some federal agencies consider politics limited to political parties and candidates. However, in a free society, politics includes demonstrations, political action groups, litigation and a whole gamete of practices.

Magistrate Judge Catoe handed down his order ordering the return by August 31, 2007 of property not relevant to the ongoing investigation. (App. 16; SC docket # 16) On January 29, Judge Thornburg ordered the return unless the gov produced proof of continuing need of the victims’ possessions.

The law is well settled. The FBI cannot seize unneeded material and if so, must return it when no longer necessary. They failed to do that and Judge Thornburg errored in not following up his first order. He is an excellent jurist and respects the FBI, as we all do. In a small city in a federal enclave, any judge no matter how independent feels comfortable only going so far. That is why our founding father created appeals courts.

In United States v. Wilson, 540 F.2d 1100, 1104 (D.C.Cir.1976) the appeals court held: Ordinarily, property seized for purposes of a trial that is neither

contraband nor subject to a forfeiture statute is to be returned to the defendant at the end of the trial.

In Martinson, 809 F.2d at 1369, the circuit court held: ,“when the property in question is no longer needed for evidentiary purposes, ... the burden of proof changes. The person from whom the property is seized is presumed to have a right to its return, and the government has the burden of demonstrating that it has a legitimate reason to retain the property.”

Agent Andy and his supervisor James Russell had two court orders to return to the Clarksons their property not needed for an investigation.

Never did any of the taken property have any relevance to any lawful FBI case. If it did, when they turned their case over to the IRS, then the material definitely was not necessary. If not then, when the indictment came down in July 2008 on the culprits but not on Donna and Robert, no purpose exited to keep their possessions from them.

On January 29, 2008 Judge Thornburg issued his first order (App 36; NC doc #6) directing the government:

A. “to produce evidence pertaining to its continuing need for Clarkson’s property in an investigation or prosecution”.

Based on said affidavit, on February 27 the Judge denied (App 51; NC Doc #10) Clarkson’s second Rule 41g motion which had been filed in SC on Oct 11, 2007.

In her response to Judge Thornburg dated February 11, AUSA Rose stated in her Response to Motion for Return (App 43; doc #8) that the investigation was for mail fraud under 18 USC 1341, 1343, 371. Nobody at anytime has alleged that Clarkson has any involvement such activity. Clarkson claims he did not know of this third group which is under an active investigation for bank or mail fraud, or its activities.

On April 8, Clarkson met for the second time with Agent Andy in Asheville and picked up some of his coins and cash. Clarkson was informed that his case was turned over to the IRS for investigation and the FBI no longer had an active investigation on him.

Pursuant to Judge Thornburg’s order, Ms Rose filed with the court statements and affidavits including the original affidavit for the search

warrant of May 3, 2007. The original affidavit and the new one dated on or about February 11, were filed under seal.

Under oath, the government agents stated to the District Court that they had a legitimate need for the property withheld. Now, how could a lawful legitimate need exist if the investigation and possible prosecution has ended?

On February 11 when the government filed pleadings in court, the investigation was over. Therefore these filings were false. A finding of contempt of court is proper and needed in a case like this to protect the integrity of the entire court system.

A. No lawful criminal investigation against Clarkson by the FBI exists now nor has ever existed.

B. Many items cannot possibly be evidence such as computer hard drives, Microsoft operating system, law school diploma, cash, generic silver rounds, wife’s personal property and paperwork, etc.

Judge Catoe ordered one time the return of unneeded items and Judge Thornburg ordered this twice. If no legal investigation existed from the beginning, then the government agents are in violation of all three orders.

Violation of three court orders is a valid subject for a contempt of court charge. From the beginning the special agents have been very clear that they

had no information linking Clarkson to the activities of the third patriot group.

The initial affidavit submitted to Judge Catoe in May 2007, was false in toto. The agents knew it was false when they signed it. Clarkson saw the other affidavits in this case and they were all identical. Filing a false affidavit even for a federal agent is a valid subject for contempt of court.

On February 13, in connection with said response of Ms Rose, the agents resubmitted to Judge Thornburg their affidavit of May 2007, with other statements/ affidavits. All of these were false and are a fit subject for a contempt finding.

Clarkson’s Petition for Contempt of Court dated May the 23rd (App 77; doc #25) should have been granted. Judge Thornburg errored when he denied this petition in his final order dated June the 6th (App 84; doc #26).

IV. CONCLUSION

The Clarkson family requests the return of the rest of their possessions. As to financial records of the PN, copies are fine and Defendant offered to pay the copying cost. A contempt citation is a good method to keep the FBI et al out of the political process of a free people.

Appellants request fees, cost of this action and damages for the loss of their possessions.

Certification of Service: I do hereby certify that on this date I have mailed properly a copy of this brief to opposing counsel: