More shananigans in the Minutemen ranks – Head of MCDC Carmen Mercer in deep doo doo!

Minutemen & Supporters:

What you are about to read is a draft of an indictment written by Jim Campbell against MCDC Fence Project and its associates. The author submits this writing as truthful to the best of his knowledge and research. This should help clarify timelines, events and players in the MCDC Fence Project. Mr. Campbell is the $100K donor to the MCDC Fence Project in May 2006. In the summer of 2007, Mr. Campbell filed a civil suit against the people listed below, only to later have it withdrawn due to high costs of attorney fees to move forward.

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MCDC Draft Indictment including the “Backbone” Elements

August 27, 2009

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The following draft indictment is based solely on fraudulent inducement/deprivation of honest services. All of the necessary elements are included. Many of these elements were included in my Arizona state court civil complaint which I drafted and filed pro se back in May, 2007. If I were able to file a criminal complaint, this is how I would do it. I don’t believe that I have left out anything nor would anyone responsible for the drafting of an indictment have to struggle to get through the myriads of documents which I have submitted thus far. I have done this person’s work for them! It’s just a matter of putting things in good order.

-Jim Campbell, $100K donor to MCDC Fence Project May 2006.

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At all times relevant hereto:

1. The Minuteman Civil Defense Corps ("MCDC") was established in 2005, by Defendant CHRIS SIMCOX. Defendant SIMCOX became its self-appointed leader and has remained in that capacity up to the present, and had a fiduciary duty to provide honest services to not only the members of the MCDC, but to the General Public (from whom donations to the MCDC Border Fence Project were solicited), as well. The MCDC became a project of Declaration Alliance in or about, April, 2005.

2. Declaration Alliance took over the control of the MCDC (i.e.: The MCDC became a “project” of Declaration Alliance.) and provided, among other things, oversight, public relations, the public solicitation and the receipt of donations, and the accounting thereof, etc. for the MCDC.

3. Defendant CARMEN MERCER was the Vice President of the MCDC and the President of a non-profit entity identified as the Minuteman Foundation, Inc. This entity was created by both Defendants MERCER and LEWIS in December, 2005. At all times relevant hereto, Defendant MERCER acted as President and Defendant LEWIS acted as Treasurer of said entity. In addition, Defendant MERCER took on the responsibility of helping to coordinate day-to-day fence- building efforts as well.

4. Defendant MARY PARKER LEWIS was President of Declaration Alliance, Secretary of Declaration Foundation and Treasurer of the Minuteman Foundation, Inc. It is assumed that during the course of this fraud scheme Defendant LEWIS worked primarily out of her residence in Seal Beach, California and had responsibility for the oversight of the MCDC, Diener Consultants, and the border fence project.

5. Defendant PHILLIP SHELDON was President of Diener Consultants and worked out of Lancaster, Pennsylvania. (Diener Consultants contracted with Declaration Alliance to do public relations work for the MCDC. SHELDON had an ownership interest in entities identified as Response Enterprises as well as Response Unlimited.)

6. Defendant PETER KUNZ, as an independent contractor, worked under the supervision of Defendant PHILLIP SHELDON out of Lancaster, Pennsylvania, and has (at all times relevant to) been the “MCDC Fence Project Manager”.

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Between in or about December 30, 2005, and continuing to at least June, 2008, at Scottsdale, Arizona, Lancaster, Pennsylvania, and Reston, Virginia in the District of Arizona, and elsewhere,

CHRIS SIMCOX,

CARMEN MERCER,

MARY PARKER LEWIS,

PHILLIP SHELDON,

and

PETER KUNZ,

the defendants herein, together and with persons known and unknown to the Grand Jury (collectively the "co-schemers"), knowingly devised, intended to devise, and participated in a scheme to defraud the General Public of money and property and of the intangible right to the honest services of the General Public, and to obtain money and property from the General Public by means of materially false and fraudulent pretenses, representations, promises and material omissions, which scheme is further described below.

It was part of the scheme that:

1.—--On April 19, 2006, via electronic mail transmission from Minuteman Headquarters, defendant SIMCOX publicly announced that the MCDC would begin construction of a border fence. There then began the solicitation of donations from the General Public. SIMCOX further stated that all fence-funds would be caged in a designated “571” account. Thereafter, as donations began to come in, the MCDC Media Director made frequent public announcements of the amounts brought in. This continued up until on, or about, May 27, 2006, when a donor identified as Mr. Jim Campbell formalized his previously-announced $100,000. donation at a ground breaking ceremony. Thereafter, despite numerous requests for a fence accounting there have never been any announcements, explanations, or accounting of donations received or their disposition, nor has there ever been any disclosure of the amounts serving to offset these donations.

It has been determined that fence donations have been dispersed to at least two different organizations: Declaration Foundation and the Minuteman Foundation, Inc. It was disclosed to the General Public that certain fence donations in this “571” account would be directed to Declaration Foundation. As to the Minuteman Foundation, Inc., the existence of that organization has remained a secret, thereby ruling out any public inquiry as to fence funds directed to that organization. All of the defendants identified herein have known about the existence of this entity, but have remained silent as to its existence.

Upon discovery of the existence of the Minuteman Foundation, Inc. and the financial documents required to be submitted to the IRS by it and Declaration Foundation as well, it has been determined that only a small portion of the donation amounts revealed in these financial documents went towards direct, fence-related construction expenses. This, despite the promotion of this fraudulent scheme through frequent public announcements which conveyed the false impression to the General Public of only gross donation figures while failing to mention the fact that these gross figures would be offset by excessive expenses directly benefiting the fraudulent scheme promoters. In large measure, these excessive expenses, plus the public controversy surrounding the lack of transparency of fence financials, led directly to the ultimate failure and abandonment of this border fence project.

2.—--On April 24, 2006, Defendant KUNZ (with or without the knowledge and/or cooperation of the other named defendants) caused to be established a domain and an active, public website entitled "Minuteman Border Fence Scheme". (This website included as its homepage the same colorful homepage of, as well as an active “donation” link to the donation page of, the “designated” MCDC Border Fence Project website.) By KUNZ’s decision to effectively characterize the just-announced border fence project as a “scheme”, the defendant effectively trivialized and brought into question the legitimacy of this border fence project. This creation represented a conscious, pre-meditated, contemplation of actual or foreseeable harm to, and a contempt for, his intended victims: members of the General Public from which donations were to be solicited. Defendant Kunz’s decision to create a domain so entitled clearly and undeniably demonstrates a malice aforethought, a thought and intention to commit a crime well in advance of the crime, which goes to show criminal intent to expose his contemplated victims to reasonably foreseeable economic harm.

3.—--In three separate, public pronouncements between 04/19/06, and 4/28/06, Defendant SIMCOX caused to be stated via electronic mail transmission (in effect) that “six” or a “half-dozen” landowners along the Arizona-Mexico border had said that they will allow fencing to be placed on their borderlands or that six private landowners had partnered with the Minutemen. Every donor thereafter would then have reason to place detrimental reliance on these various statements in their decisions to donate to the border fence project. (Until such date as it finally became apparent that Defendant SIMCOX had merely been lying to everyone in a effort to gain financial support for the fraudulent scheme.)

4.—--On or about May 19, 2006, having seen the media announcements of a half-dozen landowners “partnering” with the MCDC and realizing the huge impetus that such a large group of “partnering” landowners would have towards the successful start to the border fence project, a donor previously identified herein as Jim Campbell stepped forward and offered to contribute financially to help this border fence project succeed. Mr. Campbell was directed to Defendant KUNZ, who was identified as the Fence Project Manager. Defendant KUNZ represented to Mr. Campbell during the first of a total of two interstate telephone calls, that the border frontage owned by a Mr. Jack and a Mr. John Ladd would be the site upon which the model of the “Israeli-style” fence would be constructed. The Ladd’s owned and/or leased a total of 10 miles of border frontage upon which it was also represented to Mr. Campbell by Defendant KUNZ that the Ladd’s had granted the MCDC permission to build ten miles of an “Israeli-style” fence. Mr. Campbell responded by donating $100,000. with the express condition that his donation would be used exclusively to purchase the then-available structural steel from which to fabricate the heavy fence posts that would be then be placed along this 10-miles of border frontage. Mr. Campbell documented these conditions via an electronic mail transmission on May 21, 2006, directed to Defendants KUNZ, SIMCOX, and SHELDON. Both Defendants SIMCOX and SHELDON had a duty to instruct Defendant KUNZ to immediately notify Mr. Campbell that his $100,000. donation would not be dedicated to the purchase of structural steel tubing from which steel posts would be fabricated and used along this ten miles of the Ladd’s border frontage, but -in part -- would instead be used in the construction of ten miles “cattle fencing”.

5.—--On May 22, 2006, Mr. Campbell received an interstate telephone call from Defendant LEWIS requesting that Mr. Campbell wire-transfer his announced $100,000. donation. (Which Mr. Campbell did.) In that first and subsequent interstate telephone conversations and electronic mail transmissions, Defendant LEWIS acknowledged that this steel "would be a linch-pin element" of the upcoming fence project on Ladds' property and talked frequently and knowledgeably with Mr. Campbell about subjects such as the ultimate design, fabrication, as well as the integration and the coordination of the steel posts into the construction activities that would already be going on on the Ladd’s property. At no time during these conversations did Defendant LEWIS disclose to Mr. Campbell that her attorney was then negotiating with the Office of the Pennsylvania Attorney General a Settlement Agreement relating to allegations (criminal) made by that Office of LEWIS’ having “Made material False statements in applications and documents required to be filed under the Act”, which Defendant LEWIS had signed and were then submitted to that Office. These were the falsified returns of the same Declaration Foundation in whose care Defendant LEWIS had already successfully induced Mr. Campbell to direct his $100,000. donation to.

6.—--On or about June 24, 2006, via electronic mail transmission from Minuteman Headquarters, Defendant SIMCOX announced that: "We have a monumental challenge ahead to raise $55 million . . ". (The $55 million figure was the "build-out" figure for 70 miles of contiguous border frontage and represents their “envisioned”, total, potential magnitude of the their fraudulent scheme.)

7.—--Defendant SIMCOX -- acting as a fiduciary -- utilized his position of trust to obtain a benefit for himself and co-conspirators at the expense of the General Public -- whose trust he thereby breached. These breaches of duty were accompanied by misrepresentations and non disclosures that Defendant SIMCOX intended and contemplated would deprive the General Public (to whom the duty was owed) of some legally significant benefit:

Specifically, the realization that (beginning with the “model fence”, of whatever length donations would permit) there would at least be sufficient cooperating landowners (6-9) with border frontage, to “potentially” allow this model to extend for considerable distances along their respective border frontages. . . . a “potential” continuation of what was falsely “represented” to this General Public as a viable, and credible length of “Israeli-style” fencing. Instead, precious financial resources were diverted to the construction of 10 miles of “cattle fencing” and away from what has only been the partial completion of only a nine-tenths of a mile section of an “Israeli-style” fence. This nine-tenths of a mile section represents the TOTAL border frontage belonging to just the ONE participating rancher out of a range of between 7 and 9 ranchers which Defendant SIMCOX had represented as having “partnered”.

Defendant Simcox, as well as his co-conspirators, were aware even prior to the April 19, 2006, fence announcement date that the Ladd’s (the landowners upon whose land the MCDC was to have its groundbreaking) had rejected outright the MCDC’s offer to build an “Israeli-style fence, yet Defendants SIMCOX, LEWIS, and KUNZ persisted in promoting their fraudulent fence scheme to Mr. Campbell and the General Public, alike.

8.——Defendants SIMCOX’s, LEWIS’, and KUNZ’s initial misrepresentations, false representations and omissions were "material" and demonstrated that these defendants never intended to be bound by any fiduciary duty to their victims; and these defendants had thus created an identifiable economic risk for their donors. ("the prosecution must prove only that the defendant intended to breach his fiduciary duty, and reasonably should have foreseen that the breach would create an identifiable economic risk.")

9.—--These misrepresentations, half-truths, omissions were 'material'. (At issue for an 'honest services' fraud conviction must be 'material' such that the misinformation or omission naturally tended to lead or was capable of leading a reasonable victim to change its conduct.")

10.——Defendants SIMCOX, KUNZ, and MERCER made deceitful statements of half-truths and/or concealed material facts and devised a scheme for obtaining money or property by such statements or concealment.

11.——The evidence shows that the Defendants SIMCOX, KUNZ, and MERCER concealed or failed to disclose material facts while also making partial or ambiguous statements that warranted additional disclosure to avoid having been misleading.

12.——Defendants SIMCOX’, KUNZ’s, and MERCER’s failure to disclose can be regarded as intending to defraud or obtain money or property by deceit.

13.——Defendants SIMCOX, KUNZ, LEWIS, and MERCER performed deceptive acts or contrivances such as the creation of, and subsequent failure to disclose the existence of: Minuteman Fence Fund, Minuteman Foundation, Inc., and Minuteman Border Fence Scheme. -- which acts or contrivances were intended to hide information, mislead, avoid suspicion, or avert further inquiry into a material matter.

14.——Defendants SIMCOX, KUNZ, and MERCER made omissions and/or concealed material information which constituted fraud cognizable under the mail fraud statute, without proof of a duty to disclose the information pursuant to a specific statute or regulation.

15.——Defendant SIMCOX, as a fiduciary, utilized his trusted position to obtain a benefit for himself and the other co-conspirators, but at the expense of the General Public whose trust he breached. The breach was accompanied by material non-disclosures and misrepresentations to the party owed the duty: the General Public.

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The elements necessary to establish the offense of honest services fraud are:

A scheme or artifice to defraud:

1. For the purposes of depriving another of the intangible

Right of honest services.

2. Where it is reasonably foreseeable that the scheme could

cause some economic or pecuniary harm to the victim that is more than de minimis and

3. use of the mails or wires in furtherance of the scheme.

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CASE LAW APPLICABLE TO THIS CASE:—“reasonably foreseeable harm" test: A representation "is material if it has a natural tendency to influence or is capable of influencing the decision of a reasonable person in deciding whether to engage or not to engage in a particular transaction on particular terms. If a particular misrepresentation would have a "natural tendency to influence" a reasonable person's decision, then it is, ipso facto, "reasonably foreseeable" that the misrepresentation will "harm" that person by causing him to engage in conduct in which he would not engage if he were aware of the relevant facts." Under the court's decision, defendants' failure to disclose in breach of a fiduciary duty amounts to honest services fraud only when it results in personal gain.("A valid indictment need only allege, and a finder of fact need only believe, that: Defendants used the interstate mails or wire communications system in furtherance of a scheme to misuse his/their fiduciary relationship(s) for gain at the expense of the party to whom the fiduciary duty was owed."). Moreover, a failure to disclose rises to the level of a breach of a fiduciary duty only when it involves the concealment of material information. Finally, to establish honest services fraud, the government must also prove that the defendant acted with fraudulent intent. —fraud is a broad concept that ‘is measured in a particular case by determining whether the scheme demonstrated a departure from fundamental honesty, moral uprightness, or fair play and candid dealings in the general life of the community.” The crux of these requirements is that the wire fraud statute makes criminal only breaches of duty that are accompanied by a misrepresentation or non disclosure that is intended or is contemplated to deprive the person to whom the duty is owed of some legally significant benefit.”

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She even has that crazy Minuteman look. Ya know, that stance like she's ready to shoot someone.

They're all dropping like flies! Let's see how many other members of the minuteklan suddenly try to backpeddle from their associations!!!

I'm guessing… 3 more in the next month… Anyone else???