FAIRBANKS — A panel of federal appeals court judges Wednesday discussed what would happen if they threw out one of the two most serious convictions against former Fairbanks militia leader Schaeffer Cox.
In 30 minutes of oral arguments at the Anchorage Federal Building, the three judges were particularly critical of the government’s case for Cox’s conviction on the charge of solicitation to commit murder. In their questions to attorneys, the judges didn’t voice as strong an opinion about Cox’s other main conviction, which is for conspiracy to commit the murder of federal officials.
Cox, 34, was a well-known advocate for gun rights and the anti-government sovereign citizen ideology in Fairbanks when he was arrested March 10, 2011. In 2012, a federal jury in Anchorage convicted him on weapons and murder conspiracy and solicitation charges.
Wednesday’s oral arguments were about an appeal Cox filed early in 2013. Appeals court opinions typically are written several months after the oral arguments.
At the hearing, the judges directed especially close attention to the details of an armed security team Cox created to protect himself when he gave an interview at North Pole television station KJNP in 2010. At the time, Cox said he believed a team of federal assassins from Aurora, Colorado, had been dispatched to kill him and instructed his security team to be prepared to kill the agents if the agents tried to kill him. No such “assassins” existed, although at this time, two FBI informants had spent months following Cox and recording their conversations with him.
“The government cites no case, and there is no law establishing that if a defendant has a paranoid fantasy that federal agents are attempting to assassinate him, then his efforts to defend himself against those phantoms amounts to a plot to murder federal officials,” Cox’s attorney Micheal Filipovic stated in a written brief in advance of oral arguments.
The three judges appeared to accept this argument Wednesday. U.S. Circuit Judge Richard Clifton asked a hypothetical question comparing Cox’s case with a solicitation to kill Mickey Mouse.
Earlier in Wednesday’s arguments, Circuit Court Judge Milan Smith Jr. asked trial prosecutor Steve Skrocki to cite another murder soliciation case similar to the Cox case.
Skrocki said he couldn’t.
“If we had found it, we would have provided it to you, your honor,” he said
Smith responded, “You’re effectively asking us to either make new law or conclude there’s not sufficient evidence on this point, right?”
The third judge, Circuit Judge Susan Graber, asked Skrocki what would happen to Cox’s 26-year prison term if the court disagreed with Skrocki about the murder solicitation conviction. That question doesn’t have an obvious answer, Graber said, because Cox’s sentence for the murder solicitation is running simultaneously with his murder conspiracy sentence.
Although the KJNP interview in Cox’s case involved “fictional” federal agents, other parts of the case against Cox do name specific intended victims, including employees of the Department of Homeland Security and the Transportation Security Administration.
Even if the court reversed Cox’s solicitation conviction, the conviction on conspiracy to commit the murder of federal officials would remain, as would the lesser convictions on weapons-related charges.
Filipovic said he wanted to focus on the conspiracy charge during five minutes of rebuttal at the end of oral arguments.
The questions from the judges about the conspiracy charge didn’t give as clear a window into their thoughts as did the murder solicitation charge.
Smith mentioned the conspiracy issue in his “Mickey Mouse” hypothetical question, saying, “You can have a conspiracy that’s impossible, but can you have a solicitation that’s impossible?”
Earlier in the hearing, Graber challenged one of Filipovic’s central points, that Cox’s jurors should have been instructed that they all had to agree on which specific victims Cox planned to kill. As Filipovic sees it, the government alleged Cox participated in three separate murder conspiracies: the KJNP security detail, a compilation of government employee names and addresses to prepare for a hypothetical “Stalinesque” government purge, and the later discussion of a retaliatory plan to prepare for Cox’s arrest or murder, a plan described as the 2-for-1 or “241” plan.
Graber interrupted Filipovic as he outlined his three-conspiracy theory of the case to ask him how he would argue his case if the court concluded all the allegations amounted to a single conspiracy.
In addition to all the legal issues, Skrocki and Filipovic were divided about several facts laid out in the hundreds of pages of the case’s trial transcript.
“With respect to a number of the factual representations made by the government, I would urge the court to carefully review the transcripts of some of these undercover tapes that the government is referring to,” Filipovic said. “The government is overstating and misstating the evidence in several key respects.”
Contact Outdoors Editor Sam Friedman at 459-7545. Follow him on Twitter: @FDNMoutdoors.