By Maxine Bernstein | The Oregonian/OregonLive January 16, 2017
The second wave of defendants set for trial next month in the armed seizure of the Malheur National Wildlife Refuge want occupation leaders Ammon Bundy and Ryan Payne to testify in their defense.
Bundy and Payne are both in custody in Nevada, scheduled to face trial themselves this spring in another federal case.
The seven defendants in the second Oregon standoff trial have proposed that Bundy and Payne be transferred to Oregon to testify sometime in March and then return to Nevada by April for their trial in the 2014 standoff with federal land management agents near Bunkerville, Nevada.
They anticipate Bundy, who testified over three days last fall and was acquitted of all charges in the refuge takeover case, would take the stand on two trial days.
"In my opinion, his testimony cannot be replicated by any other witness or even group of witnesses. Mr. Bundy also has personal knowledge of facts related to the misdemeanor charges presently facing these defendants that were not at issue in the first trial and to which Mr. Bundy's prior testimony did not apply,'' wrote defense lawyer Andrew Kohlmetz, standby lawyer for defendant Jason Patrick. "It is the unanimous judgment of all defense counsel that Ammon Bundy is a critical witness for the defendants in this case.''
Twenty-six people faced federal conspiracy charges stemming from the 41-day occupation of the federal bird sanctuary in southeastern Oregon. Bundy and six co-defendants were found not guilty of conspiracy, weapons and other charges after a five-week trial last fall. Eleven others pleaded guilty to the conspiracy charge. Prosecutors dismissed charges against another.
The rest will go to trial on Feb. 14, on both felony conspiracy and weapons charges and additional misdemeanor charges, including trespass, tampering with equipment and destruction of property.
The defense lawyers for Bundy and Payne in Nevada don't object to their clients testifying in the Oregon case, yet Payne wants to talk to Patrick's defense investigator before deciding if he would. He's set to meet with the investigator on Feb. 16.
"Mr. Patrick recognizes that Mr. Payne has a 5th Amendment privilege not to testify,'' Kohlmetz wrote. If Payne chooses to invoke his right not to testify, Patrick will withdraw the request to call him as a witness.
Prosecutors will argue that no mention of the acquittal of Ammon Bundy and his six co-defendants be allowed during the second trial, saying it would be irrelevant and prejudicial.
Defendants want the court to allow evidence that the seven defendants tried last fall were acquitted on the federal conspiracy charge.
"It's probably fair to say that the initial default rule is Jury 2 doesn't hear about what Jury 1 decided, but there are situations where that does happen,'' said criminal defense lawyer Kevin Sali, who is not involved in this case.
While prosecutors can't prevent Bundy or Payne from taking the stand for the defense, the court could instruct them not to discuss the prior verdicts in their Oregon case.
"Mr. Patrick contends that the failure of the government to prove beyond a reasonable doubt that the first seven defendants tried were members of the conspiracy charged herein, has at least some tendency to make the existence of the conspiracy itself, and these defendants' participation in it, less probable,'' his lawyer Kohlmetz wrote in a motion. "This is particularly true when the government seek to introduce the statements and actions of acquitted defendants as made in furtherance of said conspiracy.''
In a flurry of other pretrial motions, the defendants also urged the court to dismiss the trespass charge against them, saying it's too broad and arbitrarily enforced.
"Hundreds of people traveled to and from the refuge during the protest. Of that group of individuals, only 27 people were arrested, and only 7 of the arrested individuals were charged with trespass...despite the fact that the majority of the people who came to the refuge engaged in similar, if not identical, conduct,'' wrote defense lawyer Matthew McHenry, who represents Sean Anderson.
To prove trespassing, prosecutors said they must show only that the defendants entered the refuge without authorization and "should have reasonably recognized that their conduct would cause an invasion of an interest of another,'' Assistant U.S. Attorney Geoffrey Barrow wrote in a response.
The defense also shouldn't be allowed to argue that the refuge isn't federal property, Barrow said.
"Defendants have asserted that the federal government cannot permanently own property or that the state of Oregon did not consent to the transfer of the land to the federal government. If such beliefs were a cognizable defense to trespass on federal lands, it would render the charge unenforceable,'' Barrow wrote. "Finally, as this Court has noted, there is no genuine dispute that the federal government owns the Malheur National Wildlife Refuge and that it owned and controlled the property at the time of the occupation.''
If the misdemeanor charges stand, the defense teams also argue for the right to a jury trial on those charges. Prosecutors counter that federal law says a judge decides the lesser charges.
Prosecutors would prefer to hold a jury trial on the federal conspiracy and weapons charges, and while the jury is deliberating, present further evidence on the misdemeanor charges solely to the judge.
The next status hearing in the case is set for Friday. Several of the defendants will be formally arraigned on the new misdemeanor charges.
-- Maxine Bernstein
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@maxoregonian
