Thursday, January 29, 2009

David McKay Trial Report: Days 1 and 2

Infoshop News Jan 29, 2009

The Twin Cities Felony Working Group, who have been doing legal support for those facing felonies stemming from the RNC, is attending David McKay's trial and posting detailed notes of what happens every day for all to read. We have been concerned and saddened by many of the developments in this case, and we believe that it is important for the world to know what is going on here. Like many of the cases surrounding the RNC, the details and outcome of the Texas Two case affect us all, particularly when there are multiple government informants involved.

These are the reports from the first two days of the trial; there will be more to come. Bradley Crowder took a plea agreement; he is not testifying at McKay's trial. David McKay's trial began on Monday, January 26. It is at the federal courthouse in downtown Minneapolis (300 S. 4th Street), and is expected to last about a week.

United States vs. David Guy McKay - Day 1 (1/26/09)

[Before the trial started, David McKay's father stopped a group of activists and asked us not to be in the courtroom. He said that his legal strategy was one of disassociation, that he wanted to distance himself from people like us and that our presence would threaten that. Some chose to leave at this point; others chose to stay for various reasons, including to take these notes and get them out. We are encouraging people to make their own decisions in this matter, but to dress up and be polite if they do choose to come.]

The judge, Michael J. Davis, began by reading the indictment.

The government is being represented by Jeffrey Paulsen, Asst. US. Attorney for Minnesota, and is being assisted by special agent Christopher Langert of the FBI.

The indictment states the charges (three felonies carrying a maximum sentence of 10 years each): that David McKay and Bradley Crowder, aiding and abetting each other and aiding and abetting others both known and unknown to the grand jury, committed illegal possession of a firearm, illegal manufacture of a destructive device, and possession of a firearm that did not have a serial number and was unregistered with the National Firearms Registry.

The prosecution put forward its prospective witness list; 37 people in total, including five FBI agents from MN and TX, three St. Paul police offers, one BATF agent, one from the Secret Service, one Wal-Mart security manager, and:

Freia Fenelon
Kirsten Baker - Coon Rapids, MN
Brandon Michael Darby
Andrew Darst [FBI informant, aka Panda]

The defense also put forward its witness list, all from TX, including:

David McKay
Emily Coleman
Larra Elliot

[Two others were also on this list; the defense later canceled their appearance.]

The jury selection began and ended. The judge asked the potential jurors if they had read about a case regarding Molotov cocktails and the RNC in the news; many had. Some were excused because they did not feel that they could be impartial because of this. The jurors were also asked questions relating to their feelings about government informants, protestors, and if they had worked or been downtown during the RNC. Once the jury was selected, the court went into recess and then began the opening statements from the court and the defense.

[Opening Statements]

Asst. US Atty. Jeff Paulsen for the prosecution:

St. Paul hosted the RNC - a part of our democratic process, where a party comes to nominate their candidate. The inauguration was the culmination of a peaceful transition of power. Thousands of people came to the RNC, including delegates, the media, and thousands of peaceful protesters. However, a few came with a different agenda - denying free speech to others. On August 31st, David McKay chose of his own volition to make 8 Molotov cocktails. By his own admission, he planned to use them to destroy property, including vehicles used by law enforcement. He had not been apprehended, and he could have caused grave injury to many innocent people and destruction. The charge is possession of an unregistered destructive device. A Molotov cocktail is a homemade bomb, made of empty wine bottles, gasoline and motor oil, and a fuse - sometimes a rag, or a sophisticated system of a tampon attached with a rubber band. The plan was to soak the tampons a little bit later, and light the fuse. Only imagine what happen when the bottle breaks! It is illegal to manufacture any such device without permission and a record made. This is not how McKay made his Molotov cocktails.

Two people were indicted, but Crowder is not on trial. Although he will not be judged here, we will hear about his case.

This is not about politics, people's political beliefs or their right to protest. This is about one person's decision to posses firebombs and his intent to use them. The background: David and Bradley are from Texas. In the spring of 2008, the RNC Welcoming Committee - an organization created to disrupt and shut down the RNC - went around to various cities to recruit people to help them with their plan, including coming to Texas. Brad and David became part of a group called the Austin Affinity Group, with intentions to disrupt the RNC and participate in the WC's goals.

In the summer, they came up with an idea to use shields as a tactic. They built shields similar to police shields. The prosecution described the shields - they were made of stolen orange traffic cones, with strings, eyeholes, and screws protruding out, designed to cause injury. They made 35 shields, and intended to bring them to St. Paul and use them to keep cops at bay while people were "locking down" at the RNC.

They rode up to MN in a rental van with a trailer full of shields. Brandon Darby rode with them, and was ordered to report on any illegal conduct that might be planned. On 8/31, the police found and searched the u-haul van, taking the shields. When McKay learned he wouldn't have access to his carefully made shields, he got angry. So angry, that he went to Wal-Mart w/ Crowder to get parts for Molotov cocktails. He bought a gas can, motor oil, and rubber bands, and talked 2 female members of the Austin affinity group into buying tampons.

They were staying at Freia Fenelon's residence in St. Paul. Brandon Darby stayed in Minneapolis, and came to check up on them and find out what they were planning. He then reported this to the FBI. Bradley and David talked Freia into going to the gas station. She will testify that they bought gas and were going to make Molotov cocktails with the gas and that she couldn't talk them out of it.

That night, they made 8 Molotovs and hid the assembled cocktails in the basement of the building where they were staying.

On 9/1, Crowder and McKay didn't have shields anymore, but they did what they could to disrupt the convention, along with other members of the Austin affinity group. They were wearing all black, bandanas, elbow pads, and hiding their faces. This was not a peaceful protest - there were no signs protesting the war. They pushed dumpsters and threw trash into the street, broke bottles, and blocked traffic. They went over a highway overpass, and Bradley Crowder threw a road sign onto the freeway. "This was not a protest; it was something else." They were both arrested. David got out because he had ID on him. Bradley didn't, so he stayed in jail. David was still angry about his shields and wanted to get revenge, so he came up with a new plan. After the 1st, he wanted to do more. He confided in Brandon Darby that he made 8 Molotovs and planned to use them the next night on police vehicles near the jail where Bradley was, at a security checkpoint a few blocks away. All trucks had to go through this checkpoint to be inspected before they could enter a secure area; it was a highly trafficked area, especially late at night. Darby reported to law enforcement, who convinced him to wear a wire, which he hadn't wanted to do before. He had been involved in previous cases, and he was valuable as an informant. He was originally going to only be the "eyes and ears," and he didn't want to testify or out himself as an informant.

On the night of Sept. 2nd, Brandon Darby had a meeting with David McKay at 11pm outside of Hard Times Cafe in Minneapolis. He was wearing a wire, and FBI agents were listening in. Part of the conversation was quoted:

Darby: "You know, even if they're duds you can get charged."
McKay: "I know."

McKay said that the goal was property damage. Darby asked him what time he was going to do his action and where; McKay said at 2am at the vehicle checkpoint down the street from the apartment they were staying at on Dayton. He explained that that would be a good time to do it, because the bars closed at 4am during the RNC. McKay tried to recruit Darby to replace Crowder in the plan, saying, "Crowder will be angry that he couldn't get to play this role." The vehicle checkpoint was a school parking lot that had been temporarily taken over by the secret service, military and police. Darby said McKay's plan was to throw the Molotovs at vehicles there. More of the conversation was quoted:

Darby: "What if there is a cop sleeping in a car?"
McKay: "He'll wake up."
Darby: "What if he doesn't?" McKay didn't answer.
Darby: "You mean you could leave the scene of the crime with a cop burning?"
McKay said "it's worth it if a cop gets burnt or maimed."

McKay and Darby went their separate ways after the meeting, but Darby tried to keep in contact with McKay via text messages so McKay wouldn't carry out the plan. McKay sent a message to Darby just before 2 am in code - "we can't go to mom's tonight, there are too many ants around the candy bars" - that the action was off.

A SWAT team raided the Dayton apartment at 4:35 am and found the Molotovs in the basement, arresting David and a couple of other women staying there. They found a tampon box, gas can, other equipment, gas masks, and slingshots "used to shoot rocks at cops."

McKay had a plane ticket back to Texas at 9am the morning of 9/3. Instead that day, 2 special agents went to jail, where they interviewed McKay and he gave a full confession, including his and Bradley Crowder's intent to use Molotov cocktails to destroy a jumbotron [used by a Democratic Party group to display video near the St. Paul Cathedral]. The charge is illegal manufacture and possession of firearms (Molotov cocktails) - but the evidence presented will include other evidence about McKay's activities regarding the convention.

Brandon Darby is 32 years old. When he was younger, he was an activist. He has done work on behalf of the homeless, and in the aftermath of Katrina, in tense and violent situations. He was active in anti-war protests, and protests for other causes. Darby was able to be a part of the Austin Affinity Group (AAG) because of his credibility; he was known in the past for his sometimes revolutionary rhetoric. He was a pre-existing informant who was tasked to get information relating to the group's plans for the RNC. He was paid for other cases and for this one - $6000 (approximately) and expenses paid [just for this case]. He is not being paid or benefiting from his testimony here; in fact, he chose not to accept money for security funds. He "believes in peaceful protest" - and in fact pushed the limits of it. He does not believe in violence and doesn't want anyone to get hurt. "That was part of his motivation to do this."

Paulsen mentions his witnesses - Darby, Freia Fenelon [who lived at 248 Dayton], a bomb squad officer, and other officers involved in the search of the apartment.

In a backpack of McKay's were found a contact lens solution bottle containing flammable liquid and a lighter stick, which were to be used to ignite the Molotovs, which weren't yet soaked in gas while sitting in the basement.

Finally, Paulsen says, in his confession to Agent Langert, McKay never implicated Darby with claims of entrapment or said that Darby encouraged his actions.

[Defense attorney gives his opening statement.]

"This is a case about a government informant who took it upon himself to make things happen." Darby took advantage of a mentor-type of relationship with McKay, who was the product of a unique family - mother was a model, father a cook. They divorced; he was the subject of custody dispute. He felt his family loved him. When he was a senior in high school and involved in sports, his mom was an alcoholic, and he felt he needed to leave. He moved to Midland, TX to live with his father and met Brad Crowder there. Before long, he decided to move back to Austin.

McKay considers himself self-educated. His Mom's sister got him a job with her graphic design company - first as a gofer, then an artist. He had a girlfriend, and felt fortunate. But he realized not everyone is so fortunate, and many people didn't feel a responsibility toward them. He felt a need for social change, and decided to see the RNC Welcoming Committee (RNC-WC) speak in Austin about what they were planning.

Thousands of people came to the RNC. Some had good intentions, others were "complete violent wackos... who had nothing but bad intentions." McKay met Darby, who is 10 years older than him, in February at the RNC-WC event. They and others started a new group in Austin - at the suggestion of the RNC-WC.

Brandon Darby was a "larger than life character" in Austin. He did work in New Orleans following Hurricane Katrina after receiving a phone call from a former Black Panther. He brought guns there, declaring that he would bring relief there "by all means necessary." He was a revolutionary - an enemy of the government. He said that what the government did in New Orleans after Katrina was criminal. He went to Venezuela to get funding for his organization, after Hugo Chavez called Bush "the devil". He was not motivated by doing what was ethical.

At one point Brad and David said to Darby that they would "do anything you asked us." They looked up to him.

Lots of militant rhetoric from Darby to Brad and David was quoted. For example: "direct action is intense, and any group I will go with will be successful" and "you look like tofu eaters - you'd better start start eating meat" so you'll be able to fight. He also taught them martial arts.

Darby was already an FBI informant at this point.

During a van ride to the RNC, Darby challenged David and Brad to step up. There were conversations where Darby asked about violence, and David and Brad said the RNC wasn't an appropriate place for it. Darby manipulated them into certain types of actions by using guilt, saying they owed it to marginalized people. David hadn't been to many protests before.

The shields they brought with them, DeGree said, were for the purpose of protection and were "almost paper thin." When the shields were seized by police, Darby went crazy and was in their face. He said they shouldn't take that lying down. "Brandon Darby talked about Molotov cocktails; David McKay never did." David did listen to Darby and bought supplies for Molotovs.

David should be found not guilty because the government went too far and he was entrapped. David had to be pre-disposed to making a destructive device to be found not guilty. [Prosecution objects that this is not precisely legally true; the objection is sustained.]

The Molotovs were not used on September 1 - at the protest David went to that day, there were "a bunch of people running around acting like idiots" with no plan and no goal. David didn't participate the second day of the protests, but rather took pictures. Later, he took the Molotov cocktails that had been constructed and put them in the basement, because he knew he was being watched and couldn't throw them away, even though he had no intention of using them. This whole time, Darby was telling him he needed to step up his game.

Darby kept pressuring him, and with a group they went to Hard Times Cafe, even though McKay didn't want Darby to come with. They smoked marijuana in the vehicle on the way from the apartment they had been staying at in St. Paul to Minneapolis. At Hard Times, Darby said he wanted to be alone with David, and took him out back. The conversation was not recorded [only transmitted to FBI agents and other officers in a car nearby via the wire Darby was wearing]. There, David told Darby what Darby wanted to hear, so that he could go to a concert at a nearby theatre and then go home to bed.

The state will make it out like they are heroes, but nothing could be further from the truth. They will say that they acted in the nick of time, before David high-tailed it out of town after firebombing the police checkpoint. "The government's conduct in this case is appalling. Brandon Darby's conduct in this case is appalling." McKay had every opportunity to use the Molotov cocktails, but he didn't.

McKay should be found not guilty because he was entrapped by Darby. "The government is more to be faulted for making those Molotov cocktails than anybody else."

[Court adjourns for the day - End of Day 1]


Tuesday 1/27- Day Two of David McKay trial

[Tim Sellers, FBI agent from Austin, Texas with the Joint Terrorism Task Force was the first government witness. Sellers started under questioning from Asst. US Attorney Jeff Paulsen.]

The FBI began to pay attention to this case when the RNC Welcoming Committee came to Austin as a stop on their tour, which the FBI saw as an attempt to "draft others into violence." They sent a source there to find out about plans for direct action and violent protest. Brandon Darby became known to the Austin FBI office on Nov. 26, 2007; he was already an informant who was working on at least one other case. The FBI had previously been concerned about him because of his previous activities in New Orleans and a trip he made to Venezuela in 2006, but agreed to work with him. He had been self-employed in the concrete business, but was paid for his work on this case, as well as other cases that Sellers stated "it was best not to talk about right now." Darby was paid $6500 plus reimbursement for expenses for the RNC case. He received death threats and was offered an additional $5300 for a security system for his house; he declined.

Brandon Darby was tasked by the FBI to go to a meeting at Monkeywrench Bookstore to identify individuals going to the RNC; if a group was formed, he was told to get inside, but not to be a leader or to become too involved. The Austin Affinity Group (AAG) was formed at a meeting at a cafe on March 6th, which Brad Crowder and another person invited Darby to. 5 members of the group were from Austin, 3 from Houston. Darby was tasked by the FBI to become involved. The group planned to make shields for protective and defensive purposes at the RNC; they made 35 of them. Darby took and gave one of the shields to the FBI.

Brandon Darby then went to the pReNC 5.3 meeting in the Twin Cities; Sellers said that he was "vetted" by members of the Welcoming Committee in the vouching process to get in and was therefore made a WC member himself. Darby was told to go to the RNC; he was given level 3 security clearance for "otherwise illegal activity," which allowed him to legally trespass and conspire to commit property damage. There were limits - he was allowed to be around individuals, but was not allowed to encourage them.

The AAG left Texas in a van on 8/27 and arrived in the Twin Cities late on 8/28. Attached to the van was a U-Haul trailer that contained the shields, gas masks, and batons. The shields were of concern to law enforcement because they could be used against them. The shields were seized by the police. David McKay was "upset" because of the time, effort and planning used to make the shields. Brandon Darby informed the FBI that a few hours after the shields were taken on 8/31, McKay and others went to Wal-Mart. The FBI didn't know what was bought there, but they went to the store the next day and obtained this information from the security manager via video surveillance records and receipts. (The security manager who gave the FBI this information is on the prosecution's prospective witness list.)

Paulsen plays video of the surveillance tapes from Wal-Mart, which show several people from Texas - all of whom Sellers pointed out and named - exiting the van from the parking lot and various views of them walking into and through the store. They showed video of McKay walking in the store while holding a gas can and overhead views of several people at the checkout counter; Paulsen asked Sellers to point out the individuals by name and the items bought, which included tampons, bolt cutters, and "lighter sticks." Paulsen then showed several different receipts for what all of the individuals concerned bought; McKay's was for motor oil, earplugs, a gas can, rubber bands, a mouth guard, a pad set and a helmet. Video was then shown of them exiting the store, carrying bags of their purchases, and getting back into the van.

McKay and Crowder were staying at Freia Fenelon's apartment on Dayton Ave. near downtown St. Paul. Brandon Darby stayed elsewhere, in Minneapolis. The FBI had concerns about the items that were purchased at Wal-Mart, so they "got busy" and spoke to Darby to "get him back in the group" for information on their plans.

Video was played of the AAG's activities on 9/1 at the RNC - this was a youtube video "posted by a person sympathetic to the group" that portrayed the black bloc running to block delegate buses and throwing a dumpster into the street. Sellers identified McKay and Crowder as members of the bloc. Darby was there, but not throwing stuff, damaging property or encouraging others to do so. Darby did take a video that day.

McKay and Crowder got arrested that day; McKay got released later that day because he had ID, but Crowder didn't, so he was "held for the duration." The FBI was still concerned about the Wal-Mart purchases, so they asked Darby to find and meet McKay to find out the plans for the stuff. Darby did so, and reported back to the FBI that McKay had made 8 Molotov cocktails with help from Crowder on the night of 8/31. They were made and stored in the basement of the Dayton apartment, and Darby had been nowhere near there. The FBI had concerns about the info Darby provided them about McKay's plans; McKay "intended to target a law enforcement facility nearby" by throwing Molotovs.

On the evening of 9/1, there was a meeting between Darby and McKay. Darby wasn't wearing a wire. The FBI wanted more evidence and spoke to Darby about the importance of "overhearing" conversations via a recording device or transmitter. Darby agreed to wear such a device.

Darby had another meeting with McKay on 9/2 at the Hard Times Cafe in Minneapolis. Prior to this meeting, the FBI met with Darby and gave him a wire, which transmits via radio. Once a wire is on the person wearing it can't control it or turn it off and on - it just runs until the battery dies. Agents Sellers, Langert and three other officers were in a car nearby listening to the video, not recording but taking notes.

McKay planned to leave the TC next morning on a plane to Austin at 9am.

In the discussion outside Hard Times, McKay said he made 8 Molotovs and was intending to use them against police vehicles at a checkpoint near 248 Dayton. McKay specifically told Darby about the construction of the Molotovs, and he said that it would take a minute for the cops to realize they were being firebombed. He chose 2am because it was quiet, and was worried that "Brad would be made someone took his role." McKay was 99.9% confident in the devices themselves, but concerned about getting to and from the location. Darby asked McKay if he could leave the scene with a cop burning or dying; McKay said yes, and that it was "worth it if a cop gets burned or maimed." Darby: "What if a cop is sleeping in a car?" McKay: "He'll wake up." Darby: "What if he doesn't?" McKay didn't answer. Darby asked if anyone else knows; McKay replied yes, that another activist knew and was upset about it. McKay says the decision was made for him to go ahead because the cops took their defensive things, and that symbolism was the reason for the action - it's not about the cops, it's about the way we live our lives. it's not about ego. he was willing to make the sacrifice.

Darby asked McKay if he was sure he wanted to go ahead, and McKay replied that he was. Darby was not encouraging him. Law enforcement wanted Darby to stay close to McKay; surveillance around McKay and 248 Dayton became constant. Darby did not accompany him back to St. Paul.

[Government introduces series of text messages into evidence - the next day they said they had "forgotten" some and added them into the record - these have been added here]

1:31am Darby: "what up, butter cup?"
1:43 McKay: "too many ants around the candy bars, not going to mom's tonight. serious concern. too hot. will update in 1 hr"
1:49 Darby: "chill, it's fine, normal feeling to have when you haven't seen family in a while"
2:13 Darby: "why do you keep half calling me. you are a mo fo."
2:26 McKay: "Yeah I'm just not feeling the vibe on the street."
2:26 Darby: "I guess I'll just have to whip you with a wet noodle when I see ya, you butthead. text me when you can"
(later) Darby: are you ok
Darby: "you be trippin. all jimmy hendrix style and shit"
Darby: "it's your call. I support you making whatever choice you are comfortable with. Be proud of yourself for your work and take a chill"...
Darby: "it's ok, don't get crazy, just communicate" ... " police and demos can be traumatic." asks to move on and talk about other things. "i'll start: how bout them yankees?"
McKay: "word. talk to you in the am for more details."
Darby: ... "hope to see you before your flight"...
Darby: it's all good, sometimes it's best to fight another day. you'll wake up and feel bad - it's ok, i'll support you.
Darby: "you asleep yet?"
Darby: i can't sleep, let's go eat at an all night diner or something.
[this is a partial transcript - paraphrasing if not in quotes. in total Darby sent at least 15 text messages in this stretch; McKay only sent 3.]

[Defense Cross-Examines Sellers]

Sellers was with the FBI for only 2 years and was tasked to help infiltrate groups " of interest." It was his idea that Darby could be useful. Darby had approached other law enforcement officers about informing and was given Sellers' contact. Sellers did a background check on Darby and found lots of info on the internet as well, which led to concerns regarding his previous activism. Sellers is asked about the ties to former Black Panther Party members and if this gave him concern regarding terrorism: "No." He's asked about Darby's extensive interviews and statements the media - he is aware of some and not aware of others. Sellers underwent 19 weeks of training before becoming an FBI agent, some of which involved the use of sources. He did not get training on informing, however. Neither did Darby.

Sellers wrote reports about Darby's meetings, but only included what the others at the meetings said - not what Darby said. Darby's emails to Sellers were kept in a file, but not included in the reports. One email, written after the first affinity group meeting, included statements made by Darby like "I'm going to shut this fucker down" and "any group I go with will be successful." Darby said/wrote that "process is developed by working together, not by sitting down like lawyers to work it out first." He said he "wasn't there to fuck around - direct action is intense, and we can all expect to have violence used against us" and that they will "put us in jail with people who will ass-rape us." He told Crowder and McKay they looked like a bunch of "tofu-eaters" and needed to "start eating meat and bulk up" so they could fight. Darby taught techniques to use in a fight, such as head-butting an opponent by surprise.

At the end of the first meeting on March 6, Darby proposed and the group agreed to meet every week, at least for the first month, although the others wanted to meet less often. Darby then sent a 6-7 page email to Sellers. Sellers talked to Darby about it and the emails got considerably shorter after that.

Sellers said that some Texas activists were of interest to the FBI before this investigation started. Also, he confirmed that no conversations were recorded and only the one behind Hard Times was transmitted. Sellers was the only one in the car of agents and officers taking notes to that conversation. There is no transcript. The texts between Darby and McKay were forwarded immediately to Sellers.

The FBI gave Darby several payments: $1500 on 12/18/07, $1000 on 12/28, and $2000 on 1/8/08, all related to a different case; $1500 on 4/4 and $1000 on 5/8, both of which may have been related to both cases; and $750 on 5/14 after Darby attended the pReNC 5.3. Darby was also reimbursed for various expenses, including the trip to the Twin Cities, but Sellers doesn't know the amount. Also, Darby was paid $5000 for this case in October of 2008, making a total of 11,750 plus expenses. [Darby testified later that he made $12,500 plus expenses for his involvement in multiple cases.]

Darby was recently in the media about this case and Sellers became aware of this "after the fact". The FBI "encouraged against" Darby doing interviews, but Darby did it anyway.

[government questions Sellers on redirect]

Sellers says the press sought out Darby, and that the press figured out he was an informant because of his public letter [posted on]. Sellers talks about Darby needing to not be looked like as a leader, but also to be playing along. Darby did not report any "stronger language" after the 3-6 affinity group meeting. Darby wrote in an email, "Brad stated he would take orders from me," so he told him he would not be his boss. Darby told Crowder that he needed to be careful, or the government could charge him regarding the shields. Crowder wasn't concerned because charges like that usually don't stick. Darby agreed, but told him again to be careful.

On June 8, Darby wrote in an email to Sellers, "It is is my hope that the FBI places enough eyes and ears for me to get away and move along with my life." He wrote that the activities of the AAG "profoundly offend me."

Sellers says his notes of the conversation outside Hard Times are accurate and that he consulted with the other agents/officers in the car to verify their accuracy.

[defense cross-examines]

The defense asks about the guns Darby took to NOLA - an AK47 and a couple handguns. Sellers checked to see if they were legally registered. The defense quotes Darby talking about willingness of activists to carry guns; Sellers says he doesn't recall the quote.

Darby wrote in an email that he told Crowder that he "needed to call me daily and email me update" about their plans after Darby was instructed to "stay close" to the AAG and ask for daily email updates.

[Sellers steps down and the prosecution calls the next witness - Freia Fenelon.]

Fenelon is 20 years old, graduated from high school in the Twin Cities and works in the service industry in St. Paul. She lived at 248 Dayton Ave in St. Paul during the RNC, in a fourplex in which she had the attic apartment. Brad Crowder and David McKay stayed with her after getting in touch through a mutual friend from Texas. Her friend Kristin Baker also stayed in the apartment a lot. Fenelon looked very uncomfortable on the stand - as if she didn't want to be giving the testimony. The Texas folks arrived late on Friday August 29, in a white van, with "a bunch of people [she] did not know". One of them was David McKay.

On August 31, Crowder and McKay asked Fenelon to go to a gas station, telling her the van they came up had run out of gas. Fenelon agreed; she did not know they went to Wal-Mart, except for seeing Wal-Mart bags in the apartment later. They went to the Snelling and Minnehaha Super America, and Fenelon paid for $20 of gas in her car. Crowder or McKay said they also had to get gas, so she parked and stayed in the driver's seat as the boys got out. Fenelon saw the gas can prior to leaving, and assumes they filled it up even though she didn't see the pumps from the car. She then drove the others back to her apartment close to midnight.

Fenelon doesn't know what they did with the gas. At the apartment, they went up to the roof and started smoking - "cigarettes" - and she asked what was going on, needing to know what was happening in her apartment. They told her they were planning to build Molotovs to use at the RNC, to throw them to scare people and make a general statement. Fenelon said that she understood where they were coming from and her passion for the movement, but that there was no reason to hurt people and using violence was the wrong way to make change. McKay and Crowder responded that they just wanted to do something and let people know that they were against the RNC; Fenelon says they seemed desperate and hopeless.

Fenelon wasn't there when the Molotovs were made, but she went down to the basement with McKay to hide them. After the raid, she didn't talk to the cops or FBI Agent Langert because she was scared and didn't want to get herself or anyone else into trouble. Instead, she "covered from them for a while."

[Cross-examination by defense]

McKay and Crowder didn't say they intended to throw the Molotovs at cop cars or cops, but rather just to scare people. Fenelon saw Brandon Darby at the apartment when he came over and talked to McKay. McKay stayed there on Monday (9-1) and Tuesday (9-2) and went to bed late. Darby never stayed at the house, saying he was allergic to cats and therefore didn't want to be there. Crowder and McKay never said that they were being encouraged by anyone, she said.

[Fenelon steps down and looks like she feels terrible.]

[Prosecution calls Brandon Darby to the stand. He takes upwards of 5 minutes to come into the courtroom.]

Darby is 32 years old, born in Pasadena, TX, where he got a GED. He's also taken college and certificate courses (including an EMT course), and currently is working in legal aid for a civil attorney in Austin TX, "learning how to be a legal assistant", saying he wants to go into law. [An Austin Chronicle article said he wants to go into law enforcement.] Before that, he had his own business doing concrete staining.

His first involvement in activism was around medical marijuana and addiction issues, and he worked with a needle exchange van in an "act of civil disobedience." He became "very concerned with political prisoners in the US" and worked with refugees and the homeless. He "reached out to people in bad spots." After Katrina, he went to NOLA with scott crow to look for a friend, James "King" Wilkerson," a former BPP member who had been in prison for 25 years. Darby bought a boat and snuck into NOLA illegally, "in a very intense way." The mission failed because of the violence from police and military. Darby was not satisfied with the government response and was "VERY critical."

Darby and crow went back to Austin and got a call from Malik Rahim, saying the black NOLA community was living in fear because of armed white militias roaming the city. Darby and crow bought guns - an AK47 and two pistols, one for Darby and one for Crow, at Cabela's. They never fired at anybody, and were careful not to have them in certain situations around Rahim because of Rahim's prior felonies.

Later, Darby went to Venezuela to get help for people in the 9th Ward, but failed. Darby says he was not working for the government then (in 2005), but that in late 2007 he began working with FBI Agent Tim Sellers on a case unrelated to this one. Sellers later asked him to go to a meeting at Monkeywrench Bookstore in Austin where the RNC Welcoming Committee was presenting on February 26, 2008. Darby said he "didn't fit in" and "felt uncomfortable" there, and that he bought a book beforehand as a pretense for being at the store and was then invited to the meeting. The two men there from MN were not talking about "coming to protest," but talked about stopping the RNC. Darby didn't agree with that, referring to the RNC-WC as "one group of people who thought they were right who were out to use a variety of tactics to stop others who they thought were wrong, and violate their constitutional rights." [He said this sentence in a very fake-sounding, singsong way, failing to keep a straight face by the end.]

The meeting talked about zones - "blue, yellow, and red" - in which red was for property destruction and "fighting cops", yellow for locking down, and "blue" for staying safe. Darby didn't know McKay then, and "had maybe seen" Crowder before. Others present were a mix of people he had seen before and those he hadn't. Darby reported all this to Agent Sellers, who gave directions on what to do next. Darby got a phone call from Crowder about a followup meeting. Darby didn't call Crowder himself and didn't know McKay; Crowder proposed a meeting along the lines of what the RNC-WC proposed to form "infinity groups."

The meeting happened a week later between Darby, Crowder, and another Austin activist. This was the first time Darby remembered McKay - due to his body structure, Darby thought McKay might have been an informant himself. At the meeting, they had a go-round of what they wanted to do at the RNC. Crowder said he wanted to do "red zone actions" and was willing to get arrested. McKay "had a video idea" to make shields; the other activist stated that this event wasn't something to risk possibly going to prison over - "it wasn't NOLA." Darby said they would face intense police and prison violence. He needed to provide intelligence on one had and fit in on the other - he "had trouble balancing those roles" but wanted to prevent bad things from happening. He made comments about actions to the effect that he wanted to shut down the RNC and be successful in order to "keep access with the group." He claims the group expressed what they wanted to do prior to his involvement.

Darby reported all this to the FBI, which asked him to stay involved and go to the pReNC 5.3 in May in the Twin Cities, which Darby did. McKay didn't come, but Crowder did. The meeting put on by the RNC-WC was very detailed and when Darby got back to Austin he reported back about it to Agent Sellers immediately.

Darby soon learned of a plan in which Crowder and McKay wanted to make shields; Darby says he had no part in making them. Darby mostly spoke with Crowder, and less with McKay prior to the RNC, but that McKay's plan was to use the shields as part of a red action to allow people who were participating in yellow actions time to lock down.

[Prosecutor brings out one of the shields as evidence]

Darby says McKay used a slingshot to put a crack in the shield in question to test the plexiglass window. Darby says he only saw the shields once in Austin, when someone from MN came to McKay's house and they (not Darby) and others practiced blocking cops with them. Agent Sellers asked Darby if he could obtain a shield, and Darby gave the story that he would test one to see if it was heat resistant to obtain a shield from the group. He was given one with shorter screws; later the shields were made with longer screws - McKay felt that cops would get cut if they pushed through, but another activist was only worried about the activists themselves getting cut.

The FBI asked Darby to go to the RNC with the Austin Affinity Group. Darby was accepted in the group and asked for clearance from the FBI for otherwise illegal activity, including legally trespassing, but not resisting arrest. Darby was worried about being caught up in a mass arrest situation because then he "would have been of no use" to the FBI. This clearance was given. Darby was told by Sellers not to take a leadership role, and claims he didn't.

Before the RNC, Darby rode to the TC in a van with the u-haul trailer, containing shields and personal belongings including slingshots.

[Government introduces pictures of the van ride from McKay's camera; Darby identifies the people in the photos].

In the TC, Darby stayed in Minneapolis, but Crowder and McKay with Freia Fenelon at her apartment on Dayton Ave in St. Paul. He never stayed there because of his allergy to cats; he "believes" she had them. The first time Darby knew about the Molotov cocktails was after the trip to Wal-Mart by Crowder and McKay when Darby got a text message from another activist saying that she "needed to talk." Others in the group were mad after the Wal-Mart trip, knowing that Crowder and McKay wanted to make Molotovs. Darby reported this to the FBI, which replied he needed "eyes and ears" confirmation that it was true.

On September 1, Darby participated in a "black bloc episode" as part of the RNC-WC strategy; Darby only took video, however.

[Gov't introduces video taken by Darby, over the defense's objection of irrelevance.]

Darby identifies McKay several times in the video, which includes people throwing objects onto the freeway and dumpsters being pushed into the street. Darby doesn't know "what they were trying to prove."

[recess; court resumes. Prosecution resumes examining Darby.]

On the evening of Sept. 1st 2008, Darby had a meeting with McKay on the roof of the Dayton avenue apartment. Darby recites the basics of the conversation he had, that McKay had confirmed that he'd made "shrimp cocktails", equal parts tomato juice, gasoline, and motor oil. McKay had pointed in the direction of the targeted parking lot. Brad and David had airline tickets so they could get out of MN quickly. McKay said Brad would be mad but he needed someone to take his place.

Darby reported the conversation to the FBI and agreed to wear a transmitting device by the next day. He'd met up with David and others at the Dayton Ave. residence. He'd made an excuse to leave and put the wire on. He drove with several other individuals, including two he didn't know the names of. Darby said one of the individuals had been skeptical of him, asking who that person with the bandanna was and saying she was on probation. The attention she gave Darby made him uncomfortable. They drove to a café he couldn't remember the name of.

Darby met outside with McKay. Special agents Langert and Sellers were listening.

Darby says he warned McKay of the consequences of using the Molotovs during this conversation, saying (to paraphrase in brief) "you have to willing to go to prison for a long time if you get caught. I am a revolutionary but I don't think there is any shame in backing out now and I wouldn't tell anyone that you backed out." Darby says McKay claimed he still wanted to use them. Darby says he asked McKay, "What if an officer gets hurt?" to which McKay responded "It's worth it if an officer gets hurt." A few other things were discussed.

Darby says he did not encourage David, says that he did everything short of telling him that he was working with the FBI to discourage him from using the Molotovs. After they left the FBI's plan was for Darby was for Darby to stay with McKay to make sure that nothing happened while the cops got a warrant and could collect evidence. They went to a theater, where Darby departed from McKay against the FBI's request. Darby said he was nervous. They were to communicate by text message.

According to Darby, McKay said he wanted to use the Molotovs at 2am, not 4am as previously planned,but he was not sure why this changed. Darby said he went back to the house where his tent was. He received a text message from McKay in code- "too many ants around the candy bars, it's too hot, I'll call later." Darby said it was code for too many cops around where the Molotovs were allegedly to be used.

Darby said he was in constant communication with the FBI throughout the whole trip, including the drive up.

After Darby told the FBI about the Molotovs, they told him to stay with McKay. He says they asked him to make sure he couldn't slip out and use them. In relation to the text messages that Darby sent, he says he feels they were jovial and kind - pretty hands off, and supportive of whatever decision McKay would choose to make. He says he hoped that McKay would "flush them down" and that he wouldn't go to prison.

[Cross examination by defense]

The defense asks Darby about his history of protesting. Darby says his first protest was probably at a DEA office. Other things he's been involved with include the Iraq war, in multiple ways of protesting. Multiple occasions he has protested in New Orleans. He feels helping people in New Orleans was an act of protest. Darby says he's also been involved in anti-KKK activities. The defense questions him about an anti-war protest in Austin where Darby was arrested, and questions Darby about a letter to the paper Darby had written after his arrest. The defense quotes from the article and Darby agrees that quotes read were things he'd written— e.g., "Obedience has not ever brought change. Murderous government, we are all guilty". The defense questions Darby about a protest at Halliburton where he was also arrested.

The defense turns to New Orleans and questions Darby about Robert "King" Wilkerson whom he knew, and Malik Rahim who he met after Katrina. scott crow is mentioned as being someone who Malik Rahim initially contacted. Darby says he made two attempts to rescue King and was successful the second time. Darby bought an AK-47 and another gun several days before going to New Orleans specifically to bring to New Orleans. The defense reads quotes from a book, Post-Katrina Portraits, about the aftermath of Katrina in which Brandon Darby is quoted about bringing guns and night vision equipment to NOLA, and his militancy; Darby says he was misquoted in the book. The defense questions Darby about his feelings on carrying guns. Darby says in a situation that was exactly the same as post-Katrina NOLA he would feel it was appropriate to carry arms but he couldn't imagine the same situation occurring again. The defense asks Darby if he feels it would ever be appropriate to take up arms against his government, to which Darby says no. Darby agreed he planned to shoot his way to people who were drowning.

There are more questions about Darby's intent to use the guns and where they were kept in New Orleans. Did he bring them into King's house? Darby says they were kept in a car outside King's house.

The defense asks Darby about Common Ground and about their goals--were they trying to restore neighborhoods and provide food, homes, and medical care? Darby agreed that was in part the work he did. The defense asks Darby about how many interviews he gave. Darby says he was interviewed frequently because he was the spokesperson for the organization. Darby agreed he'd said that what the government did in Katrina was criminal. The defense asks Darby more questions about positions he has taken before. "Did you not claim that black men were injected with syphilis?" He did. The defense brings up Darby's past positions on the atomic bomb and the government dumping toxic waste on reservations. The defense brings up statements Darby has made about the government's handling of Katrina. Darby's answers to most questions are along the lines of, "at one point I said that, at one point I believed that." Did Darby ever associate with people who claimed that what happened in New Orleans was genocide? Yes, he says, adding that Common Ground was a large organization with many viewpoints. The defense asks Darby how many speeches he has given? Many, Darby replies.

The defense brings up Darby's trip to Venezuela; Darby can't remember exactly when but probably 2006. The defense asks Darby about his meeting with Hugo Chavez, to which Darby replies he never met with Hugo Chavez [just his government]. Why had he gone to Venezuela? His intent was to find resources for people in New Orleans. The defense continues a line of questioning about Venezuela and the relationship between the governments of Venezuela and the U.S. The defense brings up something Darby had said, about something very bad happening there. Darby agreed he had said that he should've gone into therapy after going to Venezuela.

The defense brings up an interview Darby gave to a newspaper after being outed as an informant. The defense quotes a passage in which Darby says he is part of the "radical, radical left", to which Darby replies the statement is out of context; he said that but in relation to the past. Darby agrees that at one point he identified as a revolutionary, but no longer "in the same way." Darby agrees he had said that he was a revolutionary to McKay, that it was part of his cover.

The defense questions Darby, asking him if he ever had talked about taking up arms against the government.

The defense questions Darby in regards to his position on firebombing. Darby says he had never talked about firebombing but had talked about arson, that he had had conversations on the subject of arson but had never done so himself. The discussions that Darby had had about arson were in relationship to the death penalty, gentrification, and people around him had talked about it in relation to the environment and animal rights. Darby agrees that at one point he espoused the philosophy of using arson against gentrifying developments to bring up their insurance rates and make it unprofitable.

Darby says he began to disagree with the people he was working with as much as the Republican party. He felt an obligation to work with the FBI.

On the 26th of February, there was a meeting at Monkeywrench books. Darby says McKay, Crowder, and another activist were there. He began talking to the people he knew and that Crowder and McKay joined it. Soon they planned another meeting. Darby says he did not participate in planning the next meeting, but did attend. He emailed his report to the FBI on the third of March. It was seven pages. The defense reads quotes from the email: "I can help strategize with law enforcement to best prepare for the coming storm" ... "I hope I am tasked by the bureau full time on these issues."

Darby says he had read through these documents prior to trial as they were things he himself had written.

The four including Darby met at a café in Austin for their next meeting. He said Brad and David had asked Darby some questions about his time in New Orleans, to which Darby had said he didn't want to talk about it. Darby acknowledges that he knew that McKay was much younger than himself.

At this meeting Darby said he didn't want to be a part of a group that would sit around and talk and work through issues from adolescence. Darby agrees he'd said in the meeting that he wanted to "shut that fucker down" in relation to the RNC, and that any group he'd be a part of would most likely be successful. Darby also said, "Direct action is intense", and that the police would likely put them in jail cell where people would try to "ass-rape" them.

Darby testified that he said those things to deter McKay and Crowder from taking those risky sorts of actions, and also to be accepted by them, as they had been talking about doing "red" actions.

Darby says he'd used analogies and personal stories to explain how he felt. Darby says his stories were mostly not about being an activist but more about how he related to other activists. He told a story about the 9th Ward post-Katrina where he had instructed people to fill a van with water bottles, to which someone had responded by saying they felt uncomfortable with everyone taking orders from a white man. Darby says he'd responded by saying he was uncomfortable with white people sitting around on boxes of water while black people needed it.

Darby says most of the things he'd said were in a jovial manner. He says he wasn't serious about the things he'd said because he was undercover but much of it wasn't a joke.

Darby says he showed McKay and Crowder some jiu-jitsu moves, ways of "getting away from people who grab you". The defense describes the moves, and Darby agrees that was what they were.

They agreed to meet every week. There was sentiment in the group that Darby's experience and credibility would be helpful in getting their newly formed group to be trusted in Houston. Darby says he played off having security concerns and explained it was because he had done work with—in the words of the defense—"Palestinian freedom fighters", and he felt he was being watched because of that.

[The jury is excused for the day. The defense makes a motion to not allow the prosecution to show a video made by the St. Paul bomb squad simulating Molotov cocktails being thrown against a wall, which is denied. The video is not shown the next day, anyway.]

More day-by-day reports to come!

This report is written in a narrative fashion for ease of readability; we are taking verbatim notes throughout the trial and doing our best to reconstruct what was said. All stories and statements are written as the witnesses or others said them and do not necessarily reflect the truth or the opinions of the Felony Working Group or anyone else who helped with this project.

We have *very* comprehensive and detailed notes that were too long [or potentially incriminating] to post here; if you are wanting more details on anything in particular or have questions, feel free to write us at

Stay strong, and we'll see you in court!


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