By Maxine Bernstein | The Oregonian/OregonLive February 08, 2017 at 5:01 AM
U.S. District Judge Anna J. Brown is standing by her past ruling that employees at the Malheur National Wildlife Refuge can't testify about any fear they may have felt during last winter's occupation by armed protesters.
Assistant U.S. Attorney Geoffrey Barrow had urged the judge to reconsider and allow limited testimony in the second occupation trial from U.S. Fish & Wildlife Service employees who worked at the refuge. He said he expected one or more employees would testify that they had seen media coverage of the armed takeover and as a result, "feared coming to work.''
Barrow argued that the fears represented circumstantial evidence of the defendants' alleged intent to prevent federal employees from returning to the refuge.
"What is the purpose?'' Brown asked Tuesday. "The charge is not assault or causing emotional distress to the Fish & Wildlife Service employees. ...The fact that there is fear doesn't prove an intent to impede.''
Jury selection begins next week for four defendants who have pleaded not guilty to felony charges of conspiring to impede federal employees from working at the refuge through intimidation, threat or force, possessing firearms in a federal facility and depredation of government property. They've also pleaded not guilty to misdemeanor charges, including trespassing and tampering with vehicles and equipment.
Legal observers found that the restricted testimony of refuge employees during last fall's trial of occupation leader Ammon Bundy and six others may have hurt the prosecution's case. Bundy and his co-defendants were acquitted of conspiracy charges.
At the first trial, refuge employees testified about how their supervisors told them not to return to work in January once Bundy and dozens of armed supporters seized the refuge in a protest over federal authority. They described the disheveled state of their files and offices upon their return to work after the occupation ended, but couldn't talk about their emotional state.
Yet when Bundy and several other defendants took the stand, they talked at length about their states of mind and why they went to the refuge.
Brown on Tuesday afternoon reread her earlier ruling and noted that it gave prosecutors the ability to introduce potential fears of refuge employees if any of the defense lawyers made "subjective impressions'' of the employees an issue during trial.
Brown indicated that she had expected prosecutors to do so during their rebuttal in the first trial and was surprised that didn't happen after defendants repeatedly claimed that federal employees were welcome and at any time could have worked beside Ammon Bundy in the refuge headquarters.
Barrow said he had not understood that the judge's ruling had left that avenue of questioning open to prosecutors during rebuttal.
If the defense presents evidence in this trial that refuge employees Carla Burnside or Linda Beck could have sat down next to Bundy's "AR-15'' and gone to work, "then the door is open'' for prosecutors to recall refuge employees and have them explain why they didn't just walk past the guarded entry gates and knock on their office doors to resume their duties during the course of the 41-day occupation, the judge said.
"We don't intend to open the door in that way,'' defense lawyer Jesse Merrithew told the court. Merrithew represents defendant Jake Ryan.
"I don't for a minute doubt there was fear and negative emotions by these employees, but the charge is not 'did defendants intend to raise distress,' but intend to impede,'' Brown said.
The judge also ruled that she's inclined to allow prosecutors to use statements or actions of the first trial's seven defendants, who were acquitted of felony charges, in their effort to prove the alleged conspiracy charge this time.
Merrithew urged Brown not to allow the statements of Ammon Bundy, older brother Ryan Bundy or any of the other defendants who went to trial last fall as co-conspirators because of the acquittals.
"It should cause the court to consider whether those individuals could be part of this conspiracy or not,'' he said.
But the judge found that the government proved by a preponderance of evidence that the first seven defendants had engaged in a conspiracy.
Brown, though, directed prosecutors to identify more clearly how they intend to link the numerous guns seized from the refuge, as well as damage to a refuge safe, file cabinet and general disarray at the refuge, to the remaining defendants.
There has to be something "other than there's a mess and the defendants are responsible,'' Brown said.
Other matters pending:
-- Federal prosecutors have asked the court to summon Gary Hunt to federal court in Oregon to explain why he shouldn't be held in contempt of court for failing to take down blog posts that identify FBI informants involved in the refuge occupation case. The judge had asked the prosecutors to explain what jurisdiction she has to summon Hunt, who lives in California and is not a party to this case, to federal court in Oregon.
Prosecutors want the court to hold Hunt in civil contempt of a court order to remove the material he posted on FBI informants, arguing that he doesn't hold a First Amendment privilege to publish the material. Even if he did, prosecutors argue that the government's interests would outweigh any privilege.
--The judge has granted prosecutors more time to file additional information to challenge defendant Duane Ehmer's motion to suppress evidence found in what his lawyer contends was an unlawful search of Ehmer's car and horse trailer upon his arrest on Jan. 27, 2016. In arguments Tuesday, Ehmer's lawyer Michele Kohler argued that Ehmer's arrest that day wasn't by federal arrest warrant, as FBI agents had testified, since the warrant wasn't signed until a day later.
"It's way curious to me that all of them testified about an arrest warrant when there isn't one - so this is a problem,'' the judge said.
Assistant U.S. Attorney Craig Gabriel countered that Ehmer had voluntarily signed a form that gave agents his consent to search his vehicle and trailer. Gabriel added that the arrest likely rested upon a probable cause statement, but he needed to research that further.
The ruling could impact the FBI's discovery a day later, on Jan. 28, 2016, of a maroon pouch found under a passenger seat in Ehmer's car, which held cash and checks belonging to the Friends of the Malheur National Wildlife Refuge, a refuge employee's ID card and gas cards. Ehmer is charged with removal of government property, a misdemeanor, in connection with the pouch.
-- Maxine Bernstein
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503-221-8212
@maxoregonian
