By February 22, 2017 at 10:17 AMon February 22, 2017 at 5:00 AM, updated
updated February 22, 2017 at 7:42 PM
A lawyer for former Oregon Public Broadcasting reporter John Sepulvado has filed a motion to quash the government's subpoena that calls on Sepulvado to testify and authenticate his January 2016 recorded interview of Ryan Bundy during the takeover of the Malheur National Wildlife Refuge.
Attorney Duane A. Bosworth, representing Oregon Public Broadcasting and Sepulvado, argues that the compelled testimony will "chill future sources, even nonconfidential ones'' for Sepulvado and all other OPB reporters.
Anticipating that the government or defense lawyers would ask Sepulvado about what led to his interview of Bundy, address whether his recording "fully, accurately and objectively'' captured what Bundy said and what may have been dropped in the editing process, Bosworth said that the questioning would be detrimental to Sepulvado and his future news-gathering efforts.
"Without diminishing the problems posed by the compelled 'authentication,' it is the resulting, exhaustive cross-examination that will inevitably, within defendants' rights, be extraordinarily invasive and create exceptional damage to Mr. Sepulvado and to reporters now and in the future at OPB,'' Bosworth wrote.
The government first alerted OPB's lawyer of a potential subpoena for Sepulvado last fall. But nothing was issued until this month. Assistant U.S. Attorney Ryan Bounds contacted Sepulvado by phone on Feb. 6, alerting him to the government's plan to subpoena him to testify about the Jan. 9, 2016, interview with Bundy.
Ryan Bundy explained why the occupiers took over the refuge: "From this facility right here is where the charges came from to destroy the Hammonds, to throw the Hammonds in prison. It has taken more than a hundred ranchers out to make this place. It is destroying the lives and liberties and properties, property rights anyway, for those around. It's being facilitated from this office. So by being here, it puts a stop to that.''
Bundy was referring to father-and-son Harney County ranchers, Dwight Hammond Jr. and Steven Hammond, who had to return to prison on Jan. 4, 2016, for setting fire to public land and serve out five-year prison terms.
The prosecutor told Sepulvado that if he's willing to testify, the government wouldn't have to seek the U.S. attorney general's approval to subpoena a member of the media. Bounds indicated he might not be able to be procure a subpoena in time for the second Oregon standoff trial. A jury was selected last week, and lawyers gave their opening statements Tuesday.
On Feb. 7, Sepulvado and OPB's general counsel told the government he wouldn't agree to testify. Bounds then asked the public radio broadcasting agency if it or Sepulvado had a raw copy of Sepulvado's interview of Bundy, according to Bosworth's motion.
Rebecca Morris, OPB's general counsel, told the government it would be unusual for its newsroom to retain the full, unedited recorded interview after a story has been edited and published.
Last Thursday, the subpoena was served on Sepulvado, seeking his testimony on the first day of trial or later this week. Sepulvado left OPB last summer, and is now working for KQED Public Radio in California.
Bosworth cited Oregon's media shield law, which protects "any unpublished information obtained or prepared by the [journalist] in the course of gathering, receiving or processing information for any medium of communication to the public."
"While Oregon's media shield law does not of course bind this Court at all in its determination of federal common law, respectfully it should be considered,'' Bosworth's motion said.
He said the government's delay in seeking the subpoena suggests "that the information sought from Mr. Sepulvado is not critically important,'' and the government has failed to show "a compelling need to acquire that information,'' as is required under 9th U.S. Circuit Court of Appeals case law.
Defense lawyers for the four defendants on trial in the armed takeover of the refuge last winter had urged the court not to allow Sepulvado to testify, contending the government identified him as a witness too late, about six days before trial.
With such short notice, defense lawyer Jesse Merrithew argued, it's "too late for us to do an effective job of impeaching this witness.'' Merrithew said it's been difficult to interview Ryan Bundy, who is in custody in Nevada awaiting trial there in connection with a 2014 armed standoff with federal land agents over his father's grazing rights.
Merrithew, who represents defendant Jake Ryan, also questioned the timing of the subpoena, suggesting prosecutors waited to seek approval from the newly confirmed U.S. Attorney General Jeff Sessions and avoided making that request to former U.S. Attorney General Loretta Lynch.
Assistant U.S. Attorney Geoffrey Barrow said prosecutors listed the audio interview of Bundy as an exhibit for trial and that the timing of the subpoena wasn't motivated by political appointments but was due to logistics.
U.S. District Judge Anna J. Brown on Tuesday dismissed the defense concerns, noting that they had been aware the government had been interested in using Sepulvado's interview of Ryan Bundy for the first trial of refuge occupation leaders, though backed away from presenting it. She also found no evidence of any questionable political motivations by prosecutors.
The judge said she expects to deal with OPB's motion to quash the subpoena before the end of the week.
In other developments, defense lawyers have asked the court to review a presentence report on Blaine Cooper, a fellow occupier of the refuge who pleaded guilty to conspiracy and is expected to testify for the government at the trial. Defense lawyer Andrew Kohlmetz, standby attorney for defendant Jason Patrick, asked to be informed of any evidence regarding a history of mental illness, Cooper's criminal history or any aliases he may have had.
Cooper, of Arizona, was transferred from Nevada to Oregon on Friday afternoon, jail records show. He's now in custody on a U.S. marshals hold at Multnomah County's Inverness Jail, awaiting to be called by prosecutors to testify in the second Oregon standoff trial.
Cooper, of Humboldt, Arizona, in August also pleaded guilty to conspiracy and assault on a federal officer in connection with the Nevada standoff. He's set to be sentenced in Nevada in mid-March. Prosecutors are expected to recommend a six-year sentence, but he can argue for less time.
-- Maxine Bernstein