February 06, 2017 at 7:14 PM
Note: Graphic language included in story.
Duane Ehmer, one of four remaining defendants set for trial this month in the takeover of the Malheur National Wildlife Refuge, got into a testy exchange with a federal prosecutor when he took the witness stand Monday during a pretrial hearing.
At one point, Ehmer blurted out: "That's bullshit!'' in response to a prosecutor's remark and question. U.S. District Judge Anna J. Brown interrupted to remind Ehmer that he was in a courtroom and to "please refrain from using coarse language.''
Ehmer's court-appointed lawyer, Michele Kohler, urged the court to throw out evidence that FBI agents collected when they arrested Ehmer on Jan. 27 at a roadblock several miles from the refuge.
Ehmer and his lawyer argue that the FBI coerced Ehmer into gaining his consent to search his red Chevrolet Tahoe and horse trailer.
They found a black powder pistol in the saddlebag on Ehmer's horse Hellboy, a rifle hidden in hay in the trailer and a maroon pouch containing checks, cash and ID cards belonging to the Friends of the Malheur National Wildlife Refuge under a passenger seat of the SUV.
FBI agents testified that Ehmer voluntarily signed a consent form allowing the search.
But Ehmer described how he thought he'd be shot as he drove out of the refuge and to the roadblock. He saw three armored vehicles and men in tactical gear aiming their firearms at him and thought they were from the military, he said.
"I believed I'd be shot on sight,'' testified Ehmer, wearing his signature American flag button-down shirt.
After state police fatally shot occupation spokesman Robert "LaVoy" Finicum" when he sped away from a traffic stop on Jan. 26, 2016, "everything had kind of broken down'' among those remaining at the refuge, Ehmer said. They started turning guns on each other, he said.
"Chaos ensued,'' he said. "It was a madhouse.''
The remaining occupiers thought the FBI was going to raid the refuge. "We said our goodbyes,'' Ehmer testified.
"Why?'' his lawyer asked.
"We were all gonna be killed,'' Ehmer replied, his voice shaking.
Ehmer said he didn't sleep at all that night. He had been sleeping in his truck and later in a barn with his horse during the refuge occupation.
When he drove out to the checkpoint on the east side of the refuge on the day after Finicum died, Ehmer said he felt as if he was a "prisoner of war.''
Contrary to FBI agents' testimony that they ordered him to stop, get out of his SUV, remove his coat and lift his shirt so they could check his waistband for any firearms, Ehmer said he was ordered to strip completely.
"You were asked to drop your underwear?'' Kohler questioned.
"Absolutely,'' Ehmer said.
FBI agent Todd Scott said Ehmer was calm and compliant and agreed to go back into the refuge to try to persuade others to leave as well. They gave him an hour to do so.
The agent said he told Ehmer that those who had no felony warrants would be allowed to leave the refuge and return home. At that point, Scott said he was unaware that a federal arrest warrant had been issued for Ehmer, saying the communication between his FBI SWAT unit and the command center was poor, with information delayed in reaching him.
"I was trying to get my friends out of the refuge alive,'' Ehmer testified.
Ehmer drove back to the refuge and returned to the checkpoint about 45 minutes later, with two others in separate vehicles following him.
This time, the FBI took Ehmer into custody, having learned about the federal warrant for him. Agents said they also asked Ehmer if they could search his trailer and SUV, and he signed a consent form while sitting beside an agent in the back of one of the FBI's armored vehicles.
Scott said he apologized to Ehmer when he was arrested. " I felt bad about what happened there ... because he had been compliant," the agent said. "I felt like he had had been honest with me.''
Ehmer thought the FBI had lied to him because he said he thought he "would be free to go as promised.'' He also said he had signed the consent form only after the agent told him the FBI would do the search even if he didn't. FBI agents said they made no such comment.
During cross-examination, Assistant U.S. Attorney Craig Gabriel pointed out that Ehmer knew he wouldn't be shot the second time he drove up to the checkpoint because he had convinced two other people to come out with him.
"I still don't trust the FBI,'' Ehmer responded.
"That wasn't my question, sir,'' Gabriel said.
"You had two guns in your trailer,'' Gabriel continued. "You're a felon.''
"They were sponged off my records,'' Ehmer said. "No, I'm not a felon.''
"You had actually performed guard duty at the refuge. ... You had a gun up in the tower?'' Gabriel said.
"A black powder pistol, yes,'' Ehmer answered.
Wasn't it true, Gabriel asked Ehmer, that he had told the FBI at the checkpoint that he brought a black power pistol and rifle to the refuge but that the guns remained at the refuge.
"That was a lie?'' Gabriel asked.
"Yes,'' Ehmer said.
And wasn't it true that Ehmer didn't object to the FBI searching his trailer and car, Gabriel asked.
"I didn't verbally object to anything when they're pointing rifles at me,'' Ehmer said.
How, Gabriel asked, could Ehmer have thought the men with rifles were from the military when all the FBI agents wore "FBI" in "big white letters on a black patch?''
That's when Ehmer blurted out the expletive, and the judge admonished him.
The judge said she'd take further argument on Ehmer's motion Tuesday morning.
As Ehmer stepped off the witness stand, he turned to the judge and told her, "I'm sorry about the cussing.''
The prosecutor conceded that an FBI agent's opening of the saddle bag, where the pistol was found, during a second sweep of the horse trailer went beyond the agent's authority.
Later Ehmer, when asked if he would consider any plea deal in light of three co-defendants pleading guilty Monday to a misdemeanor trespass charge, Ehmer told The Oregonian/OregonLive, "I will not. I got to take it all the way.''
He's one of four remaining defendants set for trial on Feb. 14.
In other action Monday, the judge said she wasn't sure she had authority to order Gary Hunt to appear in court to explain why he shouldn't be held in contempt. Hunt has posted information from confidential FBI reports on a blog about informants who were part of the occupation investigation.
"The record is insufficient for me to act,'' Brown told Assistant U.S. Attorney Pamala Holsinger.
She directed Holsinger to either ask a federal judge in California to order Hunt to appear in a district court there, or file a supplemental motion explaining how Brown would have jurisdiction, and whether prosecutors are seeking Hunt be found in criminal or civil contempt of a court order.
-- Maxine Bernstein