By Maxine Bernstein | The Oregonian/OregonLive Updated March 07, 2017 at 7:02 PM
Prosecutors urged jurors to use common sense and consider the “overwhelming circumstantial evidence” to find four defendants who occupied the Malheur National Wildlife Refuge last winter guilty of conspiring to prevent federal workers from doing their jobs through intimidation, threat or force.
“At its core, this case is about four defendants who went too far,” Assistant U.S. Attorney Ethan Knight said Tuesday.
He reminded the jury that no formal agreement is necessary to prove the conspiracy charge.
Instead, he invited them to draw inferences from the statements, actions, social media posts and messages of the defendants and alleged co-conspirators Ammon Bundy and Ryan Bundy: From Ammon Bundy’s pledge to take a hard stand at the refuge, the posting of armed guards at the gates and watchtower, placement of trucks to block the entrances, creation of security squads, changing of refuge signs, target shooting and firearms training, as well as the Bundys’ vow to remain at the refuge for years and pledge not to allow federal employees back.
“This property had been taken and transformed and no longer belonged to the people who had their jobs there,” the prosecutor argued.
Defense lawyers countered in closing arguments that the government’s case, itself, was based on a “wild conspiracy theory.” Prosecutors, they argued, presented “no shred of evidence” that any of the defendants consciously intended to block U.S. Fish and Wildlife Service or U.S. Bureau of Land Management staff from carrying out their work or intimidate them.
The defendants were open and transparent about their motives, the lawyers said. Through Facebook posts, press conferences and interviews with the media, they made known they were protesting the plight of two Harney County ranchers, who they believed were unjustly re-sentenced to five year terms in prison for setting fire to public land. Some used the protest to share their interpretation of the U.S. Constitution and decry the federal management of public lands in the West.
“There was no secret,” said defense lawyer Jesse Merrithew, who represents defendant Jake Ryan. “This was a protest about the Hammonds and federal land management, and that’s all it was.”
Knight characterized defendant Jason Patrick as one of the organizers and leaders, noting he attended a Dec. 29, 2015 meeting at a home in Burns where Ammon Bundy shared his idea of taking over the refuge. Patrick also was among the convoy of armed men who conducted an initial sweep of the refuge buildings on Jan. 2, 2016, he said.
Defense lawyer Andrew Kohlmetz, Patrick’s standby attorney, highlighted the voicemail messages Patrick left for Harney County Sheriff Dave Ward and for Ammon Bundy in November 2015. He told Bundy he wanted to talk to him about the rally planned in Burns. In his message for the sheriff, Patrick urged Ward to step in and prevent the Hammonds’ return to federal custody.
“These are actions and words of a political activist not a criminal conspirator,” Kohlmetz said.
The defendants didn’t even know of the refuge workers, and suspected they were away on winter holiday, their lawyers said.
In fact, “they just weren’t there because they had been directed by their boss to stay home,” said defense lawyer Marc Friedman, who represents defendant Darryl Thorn. The federal employees continued to be paid without interruption and had no contact with the refuge occupiers, he said. Bundy and his supporters showed up at the refuge on the day after New Year’s Day, a holiday weekend, defense lawyer Michele Kohler pointed out. Kohler represents defendant Duane Ehmer.
“They gave no thought to how the protesters’ presence would impact the workers and believed the staff were gone for the season,” Friedman said.
The government didn’t dispute that defendants descended on the refuge because of varied beliefs, including their support for the Hammonds or to share their interpretations of the U.S. Constitution.
“But this case is not about the Hammonds,” Knight countered. “It’s what these defendants did with that motivation.”
Knight asked jurors to recall the rebuttal testimony offered earlier Tuesday by refuge manager Chad Karges and fish biologist Linda Beck, who feared returning to work at the refuge because of the armed presence of strangers. Karges said he posted guns by each door of his home; Beck said she purchased a gun because she was scared and felt violated.
“The refuge employees in this case count,” Knight told jurors. “They are real people with real jobs.”
Defense lawyers asked jurors not to convict defendants based on the fears of refuge employees, which they argued were based on over-hyped media and law enforcement reports that unfairly characterized the occupiers as violent extremists.
“Was there a collateral inconvenience? Yeah, perhaps,” Merrithew granted. But he added that’s a far cry from proving a conspiracy to impede federal workers through force or threat ever existed.
Defense lawyers also raised concerns about the FBI’s handling of the occupation and its use of nine informants who were sent on to the refuge during the course of the takeover. One of the informants on Jan. 4, 2016 was in charge of a security team at the refuge, Merrithew said. Another, Fabio Minoggio, trained occupiers on how to remove motorists from cars at gunpoint, and oversaw firearms training at the boat launch area.
They argued that the firearms were never pointed at anyone in a threatening fashion. Friedman called the many guns at the refuge “a statement, an expression of the independence of the people.”
Yet Knight said jurors might evaluate the occupiers’ possession of firearms in context. The more than 20,000 rounds or spent shell casings, 22 long guns and about a dozen handguns recovered from the refuge “is not an incidental amount”, he noted.
Defendant Darryl Thorn, depicted in his own Facebook posts posing with rifles in the refuge guard tower, did so “to show a toughness, a ballsiness, a brassness. That does not mark him a conspirator,” his lawyer argued. In one photo, Thorn is “necking” with his girlfriend in the guard tower. Friedman quipped that his client was “less than the diligent security guard at that point.”
His lawyer characterized Thorn as a “grunt,” a “pawn” or a follower, not a leader and someone who “clearly knew nothing” about any potential agreement between occupiers.
Prosecutors countered with a video of an angry, armed Thorn vowing to stay at the refuge on the chaotic night of Jan. 26, 2016, because he “came to fight.”
Finally, Knight argued that defendants Ehmer and Ryan caused significant damage through their use of an excavator to dig large trenches on the refuge property early on Jan. 27, 2016, and should be found guilty of depredation of government property.
Their lawyers said the two dug the trenches because they suspected the FBI was going to arrest or raid the refuge after the arrests and police shooting death of occupation spokesman Robert “LaVoy” Finicum.
“He feared for his life,” Kohler said of Ehmer.
Knight countered that fearing for one’s life doesn’t make the destruction of government property lawful.
The lawyers’ closing arguments came on the 10th day of trial. All four defendants are charged with conspiring to impede officers of the U.S. Fish & Wildlife Service and the U.S. Bureau of Land Management from carrying out their duties at the refuge through force, threat or intimidation. Three of the four, excluding Ehmer, also are charged with possession of a firearm in a federal facility in the course of the conspiracy. Ehmer and Ryan are charged with depredation of government property.
A 12-member jury will begin deliberations Wednesday morning.
A bench trial continues Wednesday on misdemeanor charges, including trespass and tampering with vehicles or equipment.
— Maxine Bernstein