Ed :Brown speaks

[Imalawman]

Just more of the same old junk he's been spewing for years with a few new stories about mistreatment that only happened in his whacked-out imagination. He's been off in never-never-land for so long it seems doubtful that he'll ever figure out that he's going to die in prison, penniless.

The broken-record quality of his delusional rants is seriously diminishing his already limited amusement value. He needs some new material.

It seems that he really does believe that he will get out of prison alive. That's some serious denial. But just think, he'd only have a couple more years left if he had just minimally complied in the first trial. Hell, if he had plead, he might even be at home reading CTC in the comfort of his upscale fortress right now.

[Pottapaug1938]

Just more of the same old junk he's been spewing for years with a few new stories about mistreatment that only happened in his whacked-out imagination. He's been off in never-never-land for so long it seems doubtful that he'll ever figure out that he's going to die in prison, penniless.

The broken-record quality of his delusional rants is seriously diminishing his already limited amusement value. He needs some new material.

It seems that he really does believe that he will get out of prison alive. That's some serious denial. But just think, he'd only have a couple more years left if he had just minimally complied in the first trial. Hell, if he had plead, he might even be at home reading CTC in the comfort of his upscale fortress right now.

Yeah, but he'd just be another p*ssant TDer if that's all he did. This way, he is a Martyr For The Cause, and can feed off of his own suffering.

[GlimDropper]

(I wasn't sure which of the Brown related threads this fit best in so I'll just tuck it here.)

By all rights he should be in the geriatric senility ward

Well, let's see - the only person who will talk to him is Ray Kazoo. That's a pretty good start.

It looks like Ed found someone new to talk to. Anyone familiar with the latter stages of the Kent Hovind saga will recall the "good" "doctor's" most dedicated friend and mouthpiece Rudy Davis. Well I guess with Kent out of prison Rudy must need a new incarcerated tax cheat to correspond with.Here is just one of four (now five) new Ed Brown related videos that Rudy has posted in the last ten hours.

I wasn't here for the bulk of Ed and Elaine's saga but know the basic outline and my best guess is that prison is doing nothing to improve Ed's disposition or his education. It would be wrong to say that Ed's letter to Rudy (which he reads in part in the video) was a catalog of all the typical sovcit delusions/conspiracy theories but it has a good 20 pages of them.

Ed is suing the BAR association, all of them, everywhere, all at the same time and he needs some help. His letter to Rudy seems to be an outreach to other sovereign scholars willing to take this fight right to the Khazar/Templar serpents of satan and their lickspittle lackeys in governments everywhere. Now that plan sounds crazy but is it crazy enough for Rudy to stop promoting it?

Not a chance. More will follow.

[notorial dissent]

Ed was ignorant and foul to begin with, and I'm sure prison has mellowed or improved him, and actually from some of his utterings I know it hasn't.

Ed really is a good candidate for Rudy, he's another total loser who was "wronged" abuse and misused by the system. I can't wait til Rudy starts trying to educate him on scripture, according to Rudy.

Of course Ed is suing the BAR, it had to be his next great crusade, and will end every bit as well as his last one, except he (probably)won't get a jail sentence out of it.

[ElfNinosMom]

Does Elaine still spew this kind of verbal vomit too, or is it just Ed?

I always felt kind of sorry for her, because she came from that Tammy Wynette "Stand By Your Man" generation. She was taught to go along with whatever her "man" wanted; and she was always going to believe him when he told her it was going to be okay, because that's how women of her generation were raised. That's not even getting into her being brainwashed with his neverending bullshit...

What happened to Elaine is Ed: Idiot's greatest source of shame.

[The Observer]

Does Elaine still spew this kind of verbal vomit too, or is it just Ed?

This thread covers the last time I recall any comment by Elaine being made on her situation. Sadly, I think Elaine has been all but forgotten in the ash heap that Ed consigned her to. But this is typical for the idiots in the tax protester/sovrun community: they tend to forget the ones who went down in flames. Elaine will probably die in prison, lonely, forgotten and probably wondering if Ed is thinking about her.

[ElfNinosMom]

Does Elaine still spew this kind of verbal vomit too, or is it just Ed?

This thread covers the last time I recall any comment by Elaine being made on her situation. Sadly, I think Elaine has been all but forgotten in the ash heap that Ed consigned her to. But this is typical for the idiots in the tax protester/sovrun community: they tend to forget the ones who went down in flames. Elaine will probably die in prison, lonely, forgotten and probably wondering if Ed is thinking about her.

That is truly sad. Despite all the nonsense, I always viewed Elaine as a victim. She's from the "stand by your man" generation, and I think she was brainwashed by Ed.

[notorial dissent]

A series of bad life choices starting at least with getting involved with Ed, although her children if I'm remembering correctly are just as bad. I have always thought there was more history there than came out during the saga.

[The Observer]

My recollection (admittedly not good since I estimate my short-term memory tops out at 5 hours nowadays) was that her children were not happy with the situation that Ed had gotten their mother into, but she was not too interested in listening to their advice.

[notorial dissent]

I may be recalling from an alternate reality, but I'm remembering that they were just as crazy, just couldn't stand Ed, which just goes to show that some things are universal.

[The Observer]

I may be recalling from an alternate reality, but I'm remembering that they were just as crazy, just couldn't stand Ed, which just goes to show that some things are universal.

So Ed was just a different sort of crazy altogether? The mind shudders at the cosmic implications of that.

[GlimDropper]

Elaine Brown v. US Oral Arguments in 1st Circuit Court of Appeals on October 3rd, 2018. (YouTube Link)

The first 18 or so minutes of that video pertains to Elaine. I'm lost way out into the weeds with the legal issues being discussed.

[notorial dissent]

Sounds about par for the course. I'm not sure where this is going, but the attorney presenting didn't seem to be doing too well, kind of sounded like he didn't know what he was doing.

[.]

So, Elaine is now about 78.

I wonder what she really thinks about Ed. Yeah, first he was just a little nutty for many years with his anti-tax/anti-government tirades, then he got way more nutty with his "we ain't gonna show up" stuff when they were on trial after following his tax fantasies. Then, he doubled down with his armed stand-off.

She had a successful dental practice. Gone. Her building? Gone. Her house? Designed and built poorly with her money, doofus Ed never had two nickels to rub together. Gone. All gone. Decades of her hard work up in smoke.

Marrying this clown absolutely totally wrecked her life. And a few others' along the way. She's broke and will die in prison. Maybe mainly Ed's fault, but she was a willing participant all the way through the stand-off.

How do you reconcile that when you're 78, love notwithstanding?

[wserra]

How do you reconcile that when you're 78, love notwithstanding?

Love hurts, Love scars, Love wounds and harms
Any heart not tough or strong enough
To take a lot of pain, take a lot of pain
Love is like a cloud, holds a lot of rain
Love hurts, Uhh-Uh Love hurts.

- Everly Brothers

[jcolvin2]

Elaine Brown's application to file a second habeas petition denied by the First Circuit:

http://media.ca1.uscourts.gov/pdf.opini ... 3P-01A.pdf

United States Court of Appeals
For the First Circuit
No. 16-1293
ELAINE BROWN,
Petitioner,
v.
UNITED STATES,
Respondent.
APPLICATION FOR LEAVE TO FILE A SECOND
OR SUCCESSIVE MOTION UNDER 28 U.S.C. § 2255
Before
Lynch, Stahl, and Thompson, Circuit Judges.

Bjorn R. Lange for petitioner.

Seth R. Aframe, Assistant U.S. Attorney, with whom Scott W.
Murray, United States Attorney, was on brief, for respondent.
October 12, 2018

LYNCH, Circuit Judge. Elaine Brown seeks permission to file a successive motion under 28 U.S.C. § 2255 to vacate her conviction and sentence for possessing a destructive device "during and in relation to" and "in furtherance of" a "crime of violence," in violation of 18 U.S.C. § 924(c). 18 U.S.C. § 924(c)(1)(A). Brown hopes to argue in the district court that the rule announced in Johnson v. United States, 135 S. Ct. 2551 (2015), and reiterated in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), renders the definition of "crime of violence" under which she was convicted and sentenced void for vagueness under the Fifth Amendment's Due Process Clause. We deny her application.

I.

Elaine Brown and her husband staged a nine-month-long armed standoff with federal law enforcement in 2007. United States marshals sought to apprehend the Browns after their convictions for tax evasion. Heavily armed with firearms, ammunition, and explosives, including pipe bombs, the Browns locked themselves in their New Hampshire house and announced, via Internet radio, that the government lacked authority to arrest them. The Browns threatened to kill law enforcement who approached the house.

When the standoff ended with the Browns' arrest, Elaine Brown was indicted in the District of New Hampshire on six counts, including: (1) conspiracy to prevent federal officers from

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discharging their duties, in violation of 18 U.S.C. § 372; (2) conspiracy to assault, resist, or interfere with federal officers, in violation of 18 U.S.C. § 371 and 18 U.S.C. § 111(a)(1); and (3) possession of a firearm or destructive device during and in relation to and in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c). Section 924(c)(3) defines a "crime of violence" as:

[A]n offense that is a felony and --
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3).

At Brown's trial in 2009, the jury was instructed that the conspiracy counts were "crimes of violence." Here, the parties agree that the predicates were found under § 924(c)(3)(B), which is known as the residual clause.

The jury convicted Brown on all counts, and she was sentenced to 420 months in prison. The § 924(c) charge carried a mandatory minimum sentence of thirty years because it was for possession of a destructive device. See id. § 924(c)(1)(B)(ii).

Brown's direct appeal was unsuccessful, United States v. Brown, 669 F.3d 10, 34 (1st Cir. 2012), cert. denied, 566 U.S. 1017 (2012), as were her earlier § 2255 motions to "vacate, set

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aside or correct [her] sentence," 28 U.S.C. § 2255(a); see Brown
v. United States, No. 13-CV-21-GZS, 2013 WL 2474683 (D.N.H. June
7, 2013); Brown v. United States, No. 14-1410 (1st Cir. Apr. 22,
2014); Brown v. United States, No. 15-1689 (1st Cir. June 25,
2015). Brown first sought to file this successive motion in March
2016, following the Supreme Court's decision in Johnson. She
supplemented her motion this summer after Dimaya.

Before a federal prisoner can file a second or successive § 2255 motion in the sentencing court, the circuit court must give permission. See 28 U.S.C. § 2255(h). As gatekeeper, this court may "authorize the filing of a . . . successive application only if" the application "makes a prima facie showing," id. § 2244(b)(3)(C), that it "relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," id. § 2244(b)(2)(A); see id. § 2255(h) (stating that a "successive motion must be certified as provided in section 2244").1 A prima facie showing is "a sufficient showing of possible merit to warrant a fuller exploration by the district court." Moore v. United States, 871

1 Although § 2244 only states that it applies to § 2254, we have held that § 2244(b)'s requirements also apply to § 2255. See Moore v. United States, 871 F.3d 72, 78 (1st Cir. 2017); see also, e.g., Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997) (holding the same).

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F.3d 72, 78 (1st Cir. 2017) (quoting Rodriguez v. Superintendent,
Bay State Corr. Ctr., 139 F.3d 270, 273 (1st Cir. 1998)).

The question here is whether Brown has made a prima facie
showing that Johnson's rule was new and previously unavailable,
has been made retroactive by the Supreme Court, and applies to her
conviction and sentence under § 924(c)'s residual clause. See id.
at 78-80 (describing our approach to evaluating second or
successive § 2255 motions).

Johnson held that the residual clause of the Armed Career Criminal Act's (ACCA) definition of "violent felony" was unconstitutionally vague. 135 S. Ct. at 2555-57. ACCA imposes on a defendant a more severe penalty for being a felon in possession of a firearm if he has three or more prior convictions for a "violent felony." 18 U.S.C. § 924(e)(1). In Dimaya, the residual clause of the definition of "crime of violence" at 18 U.S.C. § 16(b) had been used to evaluate a prior conviction in an immigration removal proceeding. 138 S. Ct. at 1211. Applying Johnson's reasoning, Dimaya invalidated § 16(b)'s residual clause, the text of which was identical in relevant part to the text of
§ 924(c)'s residual clause, quoted above. Id. at 1216.

It is undisputed that Johnson established a new rule of constitutional law that was previously unavailable to Brown and that has been made retroactive to cases on collateral review. See, e.g., Moore, 871 F.3d at 80 (explaining Johnson's novelty,

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availability, and retroactivity); see also Welch v. United States,
136 S. Ct. 1257, 1264-65 (2016) (making Johnson retroactive).

Disputed is whether Johnson's rule, reaffirmed in Dimaya, extends to Brown's conviction under § 924(c)'s residual clause. Brown argues that this is reasonably likely because § 924(c)'s residual clause is textually identical in relevant part to § 16(b)'s and is materially the same as ACCA's. The government counters that Johnson's rule cannot reach § 924(c)'s residual clause because that provision demands a case-specific rather than a categorical, or ordinary case, approach to "crime of violence" determinations. This is significant because the Court had applied a categorical approach to both § 16(b)'s and ACCA's residual clauses. As the Court explained in Johnson and Dimaya, the intolerable vagueness of those provisions largely derived from the categorical approach. See Johnson, 135 S. Ct. 2557-58; id. at 2561; Dimaya, 138 S. Ct. at 1213-16; see also Welch, 136 S. Ct. at 1262 ("The vagueness of [ACCA's] residual clause rests in large part on its operation under the categorical approach."). Johnson's rule would not extend to a provision that evaluated crimes of violence using a case-specific approach.

Recently, in United States v. Douglas, No. 18-1129, slip op. at 14 (1st Cir. Oct. 12, 2018) we held that § 924(c)(3)(B) requires a case-specific approach. We rejected a Johnson-based

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challenge to that provision. See Douglas, slip op. at 2. After
Douglas, we cannot certify Brown's application.

In that decision, we emphasized that the Supreme Court has never applied the categorical approach in a context like § 924(c)'s residual clause. See id. at 25-26. That approach was devised to address practical and Sixth Amendment concerns related to judicial evaluation at sentencing of prior convictions, especially remote prior convictions. See id. at 15-19. But § 924(c) charges are always contemporaneous with the underlying "crime of violence" charges. When predicate charges are contemporaneous, a conduct-specific evaluation by the jury or through the plea hearing is both practical and consistent with the right to a jury trial. See id. at 25-30. We also concluded that the text of § 924(c)(3)(B), and the congressional intent behind that text, indicate a case-specific approach. Id. at 20-25.

In Douglas, we rejected the arguments that Brown advances and that she would advance in the district court. As a result, Brown cannot make the requisite "showing of possible merit to warrant a fuller exploration in the district court." Moore, 871 F.3d at 78 (quoting Rodriguez, 139 F.3d at 273). It is "clear as a matter of law" that Brown could not get relief in the district court under her "identified constitutional rule." See United States v. Evans-García, 744 F.3d 235, 240-41 (1st Cir. 2014) (denying an application where the identified rule was

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inapplicable); see also In re Hoffner, 870 F.3d 301, 311 (3d Cir.
2017) (explaining that an application "foreclosed by our
precedent" cannot be certified (quoting In re Arnick, 826 F.3d
787, 790 (5th Cir. 2016) (Elrod, J., dissenting))). We must deny
her application.

Brown emphasizes that other circuits have granted petitions like hers. See Acosta v. United States, No. 16-1492 (2d Cir. June 8, 2018); In re Chapman, No. 16-246 (4th Cir. May 3, 2016); Ruiz v. United States, No. 16-1193 (7th Cir. Feb. 19, 2016); Freeman v. United States, No. 15-3687 (2d Cir. Jan. 26, 2016); In re Pinder, 824 F.3d 977 (11th Cir. 2016). But these circuits had precedent requiring a categorical approach to § 924(c)'s residual clause. See, e.g., United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016), cert. denied, 138 S. Ct. 247 (2017); United States v. Ivezaj, 568 F.3d 88, 95 (2d Cir. 2009). So did the circuits that have held § 924(c)(3)(B) to be unconstitutionally vague after Johnson and Dimaya. See United States v. Salas, 889 F.3d 681, 684-86 (10th Cir. 2018); United States v. Eshetu, 898 F.3d 36, 37 (D.C. Cir. 2018) (per curiam); United States v. Davis, 903 F.3d 483, 486 (5th Cir. 2018) (per curiam); Cardena, 842 F.3d at 996. But see United States v. Taylor, 814 F.3d 340, 379 (6th Cir. 2016) (upholding § 924(c)'s residual clause); United States v. Barrett, 903 F.3d 166, 184 (2d Cir. 2018) (same). In contrast, before Douglas adopted the case-specific approach to § 924(c)'s residual

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clause, this circuit had adopted neither a categorical nor a case specific approach. See Douglas, slip op. at 15; see also United States v. Turner, 501 F.3d 59, 67 (1st Cir. 2007). Douglas dooms this application.

We would deny Brown's application even absent Douglas. Brown would have to show sufficiently that the categorical approach, and with it Johnson's rule, applies to § 924(c)(3)(B). This is a hurdle she cannot clear. Circuit precedent does not help her. The Supreme Court has never applied Johnson's rule, or the related categorical approach, in a context like this one, involving pending charges, not prior convictions. See Douglas, slip op. at 25; Barrett, 903 F.3d at 181-82. As explained, that approach was designed to address the practical and constitutional problems attendant to evaluating prior convictions at sentencing.

Recognizing all of this, Brown leans on the text, arguing that the Dimaya plurality required a categorical approach to § 924(c)(3)(B) when it commented that § 16(b)'s language was "est read" to "demand[] a categorical approach." Dimaya, 138 S. Ct. at 1217 (plurality opinion). Brown cannot make a prima facie showing that the categorical approach applies based on this statement. For one, § 924(c)(3)(B) might be read differently because it applies to pending, not prior convictions. In addition, this statement garnered only four votes. Justice Gorsuch, the majority's fifth member, "remain[s] open to different

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arguments . . . about . . . language like this." Id. at 1233
(Gorsuch, J., concurring in part and concurring the judgment).2

In short, neither the Dimaya plurality, nor other Supreme Court precedent, nor circuit case law require a categorical approach for § 924(c)(3)(B). Contrast this with Moore, in which we certified a motion arguing that Johnson's rule applied to a sentencing law that used the same language as ACCA's residual clause. Moore, 871 F.3d at 80. To make a prima facie showing that Johnson applied to his sentence, Moore needed to demonstrate that this sentencing law, as applied to him, fixed sentences. Id. The court looked closely at how the Supreme Court and the First Circuit had applied that sentencing law at the time Moore was sentenced, before the Supreme Court made sentencing guidelines advisory in United States v. Booker, 543 U.S. 220 (2005). Based on this case law, the court determined that Moore had made a prima facie showing that the law could fix sentences and therefore that Johnson applied. Moore, 871 F.3d at 83-84. Brown has not made a comparable showing under relevant case law that the categorical approach, and with it Johnson, applies to § 924(c)(3)(B).

2 Any suggestion by other circuits that Dimaya implicitly held that § 924(c)(3)(B), like § 16(b)'s residual clause, is unconstitutional depended on binding precedent in those circuits holding that the categorical approach applies. See Davis, 903 F.3d at 485-86; id. at 486 ("Because the language of the residual clause here and that in § 16(b) are identical, this court lacks the authority to say that, under the categorical approach, the outcome [here and in Dimaya] would not be the same.").

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Of course, if the Supreme Court decides that Johnson's rule applies, or otherwise holds that § 924(c)(3)(B) is constitutionally problematic, then Brown can at that time seek permission to file a new motion. This application, however, does not meet the requirements for certification of a successive § 2255 motion.

II.
We deny certification of Brown's successive motion under
28 U.S.C. § 2255(h).

[Arthur Rubin]

It does appear; though, that Elaine has a competent lawyer. This court seems to have said this would be grounds for appeal in all the other circuits, including the Federal circuit. Of course, that ruling is not binding on the other circuits.

[jcolvin2]

This court seems to have said this would be grounds for appeal in all the other circuits, including the Federal circuit. Of course, that ruling is not binding on the other circuits.

I don't think the First Circuit referenced any Federal Circuit rulings. The Federal Circuit does not hear appeals of criminal cases, but rather hears appeals of patent matters from all of the district courts across the country, as well as a potpourri of cases brought (primarily against the government) in specialty courts/agencies, e.g. the Court of Federal Claims, the Court of International Trade, the Patent and Trademark Office, the Merit System Protection Board, etc.

[Blackbeard]

So, Elaine is now about 78.

I wonder what she really thinks about Ed. Yeah, first he was just a little nutty for many years with his anti-tax/anti-government tirades, then he got way more nutty with his "we ain't gonna show up" stuff when they were on trial after following his tax fantasies. Then, he doubled down with his armed stand-off.

She had a successful dental practice. Gone. Her building? Gone. Her house? Designed and built poorly with her money, doofus Ed never had two nickels to rub together. Gone. All gone. Decades of her hard work up in smoke.

Marrying this clown absolutely totally wrecked her life. And a few others' along the way. She's broke and will die in prison. Maybe mainly Ed's fault, but she was a willing participant all the way through the stand-off.

How do you reconcile that when you're 78, love notwithstanding?

From what I've seen and heard from her, she swallowed the whole anti-tax mythology and became a true believer. To the rest of us it's obvious that she fell in love with a crackpot and he ruined her life, but from her point of view, it's a grand government conspiracy to "hide the truth" and punish those who speak it.

[tmtoulouse]

Heads up, Jason Gerhard, Daniel Riley, and Ed Brown are all getting a new appeal post US v Davis (or at least the government is not objecting the circuit hasn't ruled).

I mentioned in the Riley thread I think this particular case would still trigger sentencing under 924 c 3 a ("has as an element the use, attempted use, or threatened use of physical force against the person or property of another")...but I don't know. Thoughts?