By Maxine Bernstein | The Oregonian/OregonLive on January 20, 2017 at 11:45 AM
U.S. District Judge Anna J. Brown said Friday she'll work to ensure Ammon Bundy and Ryan Payne can be transferred from Nevada to Oregon to testify for the defense at next month's trial of seven defendants charged in the takeover of the Malheur National Wildlife Refuge.
"I'm convinced it would be error for the court not to facilitate them as witnesses,'' the judge said.
But Brown wants both Bundy and Payne, who are facing federal prosecution in Nevada this spring, to personally consent to their brief transfers from custody in Nevada to Oregon. She also wants their assurances that they will not argue that the move will hurt their ability to prepare for their upcoming trial in Nevada this spring.
The second trial stemming from the 41-day occupation of the federal bird sanctuary in eastern Oregon is set for Feb. 14. Seven defendants face federal conspiracy and weapons charges, as well as recently filed misdemeanor charges.
Assistant U.S. Attorney Ethan Knight said the government intends to present its case over one week. Defense lawyers are suggesting Bundy and Payne take the stand in late February, possibly Feb. 27 and 28.
Brown made it clear that she wants their time on the witness stand limited to what's necessary.
"I do not anticipate any reason for Ammon Bundy to testify for three days,'' Brown said, referring to his lengthy testimony in his own defense last fall. "He is not on trial.''
Bundy, the leader of the refuge seizure, was one of seven defendants acquitted of federal conspiracy and weapons charges following a five-week trial in Portland last fall. Payne pleaded guilty to the federal conspiracy charge in the refuge case, and unsuccessfully attempted to withdraw the plea. Both are now accused of federal charges stemming from the 2014 armed standoff with federal land agents outside the Bundy Ranch in Bunkerville, Nevada.
"Ammon Bundy is the central figure in this prosecution,'' wrote Andrew Kohlmetz, standby lawyer for defendant Jason Patrick, in a court filing this week. "There is almost no relevant topic upon which Mr. Bundy cannot testify to in this case...Mr. Bundy will also testify that his goals and reasons for being at the refuge were not necessarily those of Mr. Patrick and vice versa.''
Payne's testimony would be offered to refute government allegations that Patrick and other defendants were part of a criminal conspiracy to prevent federal officers from doing their job at the federal bird sanctuary in eastern Oregon, Kohlmetz wrote.
The judge also ruled Friday that the second round of defendants are not entitled to a jury trial on the misdemeanors they face, yet she said she's open to further argument.
A misdemeanor charge of trespass was filed against all seven defendants awaiting trial. Other charges of tampering with vehicles or equipment, and destruction and removal of property were brought against some of the seven.
"Petty offenses are designed to be prosecuted and resolved quickly,'' the judge said. They're typically tried before a U.S. magistrate or district court judge.
She asked both sides to submit their arguments on whether she has the authority to allow a jury trial on the misdemeanor charges, and if so, should the court exercise the authority.
Prosecutors have urged the judge to listen to evidence on the misdemeanor charges as a jury is deliberating on the federal conspiracy, weapons and depredation of government property charges.
Defense lawyers want the misdemeanor allegations to go before the same jury.
Given the high profile nature of the case, the fact that a jury already will be empaneled to hear the felony charges, and the fact that the evidence for all charges will overlap, there's no practical reason to deny the defendants a jury review on the misdemeanor charges, argued defense lawyer Jesse Merrithew in another court filing. Merrithew represents defendant Jake Ryan.
Five of the seven defendants attended Friday's status hearing in court, and were formally arraigned on the new misdemeanor charges. After Knight read each misdemeanor charge out loud, the judge asked each defendant if they understood the allegations.
"I understand I have no rights,'' Patrick told the judge, and declined to enter a plea when asked.
The judge entered a not guilty plea on his behalf.
Patrick is charged with trespass, tampering with vehicles and equipment in the alleged use of a government Dodge Durango on the refuge, and destruction of property in the alleged cutting of barbed-wire fence on the refuge.
Except for defendant Duane Ehmer, who politely answered each of the judge's questions with a "Yes, ma'am,'' and entered a not guilty plea, the other defendants followed Patrick's lead.
Ehmer is accused of trespass, tampering with a government excavator and removal of government property, a maroon pouch from the refuge that contained checks, credit cards and cash belonging to the Friends of the Malheur National Wildlife Refuge.
Defendant Sandra Anderson, accused of trespass, echoed Patrick, telling the judge, "I understand that I have no rights.''
Defendant Darryl Thorn, facing trespass, and two counts of tampering with a vehicle in the alleged use of a government front-end loader and ATV on the refuge, said he didn't really understand why he has no right to a jury trial on the misdemeanor charges.
"I Darryl Thorn will enter a plea under duress in the state of Oregon due to prejudicial prosecution,'' he said. "I understand this whole thing is rigged.''
Defendant Jake Ryan, charged with trespass and tampering with a refuge excavator, followed, saying, "I understand I have no rights,'' and called the proceeding a "tyrannical playground.''
"Sir, are you chewing gum?'' the judge interrupted. "Please take the gum out. We're in court.''
Two other defendants, Sean Anderson and Dylan Anderson, waived their right to be present in court Friday.
The maximum penalty for the Class B misdemeanor charges is six months in prison and a $500 fine. If convicted of the misdemeanor charges, prosecutors are seeking forfeiture of any firearms or ammunition the defendants used in commission of the crimes.
Some of the lawyers Friday were surprised that the status hearing didn't last longer than about an hour, noting there are still a host of pretrial motions that haven't been addressed.
The judge made it clear at the hearing's start that she wanted to make sure everyone who wanted to would be able to get out of downtown Portland before public transit is disrupted from anticipated Inauguration Day marches and demonstrations.
-- Maxine Bernstein
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@maxoregonian
