Prosecutors conceded in their legal brief that the vehicles and equipment had no government markings, but argued strong circumstantial evidence showed the defendants knew they belonged to the refuge. But even so, Barrow argued, the government didn’t need to show the defendants knew the vehicles belonged to the Fish & Wildlife Service because ownership isn’t an element of the tampering charge.
Maxine Bernstein
A federal judge on Tuesday found four men guilty of trespassing and other misdemeanor charges for their roles in the occupation of the Malheur National Wildlife Refuge last winter.
U.S. District Judge Anna J. Brown issued her rulings in court against Jason Patrick, Duane Ehmer, Darryl Thorn and Jake Ryan — the final four defendants in the Malheur case to go on trial.
Shortly afterward, Patrick was taken into custody by deputy U.S. marshals after the judge ordered that he be placed on electronic monitoring as he awaited sentencing.
Patrick, described by prosecutors as an organizer of last winter’s occupation, chose to go to jail instead. He stood, removed his blue blazer, took off his belt, emptied his pockets, placed his pack of cigarettes on the defense table and was handcuffed. He turned to his mother in the courtroom gallery and said, “I love you,” before he was led out.
A jury returned verdicts against the four on separate felony charges on March 10, finding each guilty of at least one felony.
The judge decided the misdemeanor charges based on testimony presented during the trial, additional evidence presented in court while the jury was deliberating and arguments made in court briefs from prosecutors and defense attorneys.
In a 40-page written ruling, Brown found it “highly improbable” that the occupiers would have allowed refuge employees or an “unsympathetic federal official” to go onto the property during the takeover. She also said no formal notice of trespass or official demand to leave was needed to find the defendants guilty of trespass.
Brown concluded that all participants in the occupation knew the refuge was federal government property and knew they didn’t have any authority over the wildlife sanctuary.
“This fact was not only obvious to any reasonable observer, it was fundamental to the purposes of those who took over and continued to control the MNWR,” Brown wrote. “Indeed, knowing that their actions were not authorized was inherent in the occupiers’ efforts to attempt to assert ‘adverse possession’ over the MNWR and to protest what they described as federal government overreach.”
Occupation leader Ammon Bundy had testified repeatedly that he intended to stake claim to the property through the principle of adverse possession and turn it over to the people of Harney County.
Document: Judge’s written ruling
Besides convicting each of the four of trespass, the judge also found:
— Patrick, 44, of Bonaire, Georgia, guilty of tampering with vehicles and equipment, and destruction of property.
Aerial surveillance captured Patrick driving a government Dodge Durango on the refuge property on Jan. 27, 2016. He also was filmed cutting a barbed-wire fence on the perimeter of the refuge on Jan. 11, 2016.
— Ehmer, 46, of Irrigon, Oregon, guilty of tampering with vehicles and equipment for using a refuge excavator to dig trenches on the property on Jan. 27, 2016.
The judge found him not guilty of removing government and private property.
FBI agents had found a maroon pouch stuffed beneath the passenger seat of his car that contained refuge gas cards, an employee’s ID card and cash and receipts belonging to the nonprofit Friends of the Malheur National Wildlife Refuge.
His defense lawyer argued that Ehmer had taken the pouch for safekeeping, believing it contained cash donations for the occupiers.
Prosecutors, the judge found, failed to prove that Ehmer knew the pouch belonged to the refuge or the federal government.
“In light of the lack of evidence that Ehmer opened the pouch; the label on the front of the pouch that read “New Money”; and the lack of markings associating the pouch with the United States government, the MNWR, or the Friends, the government has failed to prove beyond a reasonable doubt that Ehmer knew or should have known that the pouch or any of its contents belonged to the United States and/or to the Friends,” Brown wrote.
Ehmer, after the hearing, said he was pleased about the not guilty verdict.
“The world knows I’m not a thief now,” he said.
— Thorn, 32, of Marysville, Washington, guilty of one count of tampering with a vehicle — a refuge all-terrain vehicle, but not guilty on another count of tampering with a vehicle, what was described in the criminal information sheet as a front-loader.
His lawyer argued that it was a backhoe, and noted that refuge manager Chad Karges had identified the vehicle as a backhoe.
The judge, as a result, found “the government failed to prove beyond a reasonable doubt that the machine that Thorn operated was the alleged front-end loader.”
— Ryan, 28, of Plains, Montana, guilty of tampering with vehicles and equipment for using an excavator to dig trenches with Ehmer on Jan. 27, 2016.
Oregon standoff defendants: Outcomes, sentencing dates
Of 26 indicted, 11 pleaded guilty to felony charges and three others pleaded guilty to a misdemeanor trespass charge. Seven were acquitted of all charges after a trial last fall. Four others were convicted of felony charges and misdemeanor charges after jury and bench trials that ended this month. Charges were dismissed against one defendant, Peter Santilli.
The defense had argued that the federal regulation involving trespass at a national wildlife refuge was vague. They also said defendants never received formal notice they were trespassing and the government couldn’t prove that the four ever saw trespassing signs on the property.
Defense lawyers pointed to testimony and photos that showed the Durango, ATV, excavator and front-loader didn’t have U.S. Fish & Wildlife decals on them and the Durgano also had no license plate.
Prosecutors countered that the defense team’s arguments in the face of “overwhelming” evidence defied common sense.
“At the Malheur National Wildlife Refuge, notices were posted at the entryway regarding permissible uses, at the front gate noting when the refuge was open and near the offices and workplaces defendants occupied designating those areas closed to the public. …Defendants’ claims that they did not see these signs is simply not credible,” Assistant U.S. Attorney Geoffrey Barrow wrote in a court filing.
Prosecutors conceded in their legal brief that the vehicles and equipment had no government markings, but argued strong circumstantial evidence showed the defendants knew they belonged to the refuge. But even so, Barrow argued, the government didn’t need to show the defendants knew the vehicles belonged to the Fish & Wildlife Service because ownership isn’t an element of the tampering charge.
Defense lawyers said, though, that both sides agreed before the trial that prosecutors had to prove that the defendants knew the equipment belonged to the government as an element of the offense.
Attorney Michele Kohler, who represents Ehmer, said the government can’t change the burden of proof now. “The defendants’ entire defense rested on the lack of evidence to prove beyond reasonable doubt that as to each defendant they ‘knowingly’ committed the offenses alleged,” she wrote.
The judge found that reasonable people in the defendants’ circumstances would know that they lacked authority to enter the vehicles that they found on the refuge.
Prosecutors filed the misdemeanor charges against the defendants in late December after last fall’s across-the-board acquittals of occupation leaders Ammon Bundy, his older brother, Ryan Bundy, and five co-defendants on felony charges.
The four defendants had wanted a jury to decide the misdemeanor counts, but Brown ruled they didn’t have the right to a jury trial for such petty offenses.
Each misdemeanor conviction could bring up to six months in prison.
Patrick and Ehmer were present in court Tuesday. Ryan and Thorn waived their appearances, but Thorn listened to the proceeding by phone.
Sentencings are tentatively set for May 10. Further hearings will be set on government forfeiture and restitution claims.
Andrew Kohlmetz, Patrick’s lawyer, said he expected the misdemeanor convictions.
“Nobody harbored any illusions about what was going to happen,” Kohlmetz said. “We always expected they would be found guilty.”
But he called the misdemeanor counts “throw-away charges in case the others didn’t stick.”
Tung Yin, a Lewis and Clark Law School professor, said that the guideline range for defendants’ sentencing will be calculated based on the most serious convictions, such as the federal conspiracy to impede or possession of firearms in a federal facility.
“Practically speaking, the misdemeanors don’t likely add much in terms of the sentencing guideline range,” Yin said.
Patrick chooses custody over electronic monitoring
Pretrial services officer Nick Nischik had recommended Patrick be placed on home detention and electronic monitoring. Nischik argued that Patrick had been difficult to contact because he had no stable residence, has remained unemployed for close to a year despite a pretrial condition that he find work and hasn’t resolved a pending charge in Georgia.
In light of the jury’s verdicts on his felony charges, Barrow told the court he didn’t think Nischik’s request was unreasonable.
But Kohlmetz said monitoring was unnecessary.
“We object to the request of GPS monitoring,” Kohlmetz said, noting that Patrick has made all court appearances and committed no new offenses. He said Patrick was staying mostly with his mother and sister in Washington state, had found “spot work” with B.J. Soper and was spending the past year preparing for his case.
Patrick was indicted in 2015 on a charge of making terroristic threats, a felony, in Houston County, Georgia, and hasn’t been required to appear in court as he intends to fight the allegation at a trial, his lawyer said.
“It sounds worse than it is,” Kohlmetz said.
He was overheard “threatening to kill everyone inside the Warner Robins Municipal Court complex,” south of Macon, physically resisting arrest and refusing to follow a police officer’s commands to leave the courthouse lobby, according to the indictment filed in Houston County Superior Court.
Brown noted there were many times that Patrick “simply refused to do what was directed,” citing late arrivals to his trial.
“For Mr. Patrick, there’s every incentive to continue his defiant behavior,” the judge said. “He can’t simply come and go from place to place given his current status.”
Brown said she was approving the electronic monitoring for Patrick but asked that his lawyer provide the pretrial services officer with more specific information about where Patrick would be staying.
Moments later, Kohlmetz stood and told the court, “Mr. Patrick would prefer to be taken into custody.”
Before court, Patrick told The Oregonian/OregonLive that he would cut off an electronic monitoring anklet or bracelet if the judge had ordered it. His time in custody will count toward any prison term he is given once sentenced, his lawyer said.
“Jason strongly believes people in authority need to be questioned,” Kohlmetz said. “Some people in authority don’t like to be questioned.”
Patrick’s mother, Vickie Patrick, said later she wasn’t surprised by her son’s decision.
“He always prepares me ahead of time,” she said. “It’s still harrowing yes, but I’m not surprised, at least.”
