By Maxine Bernstein | The Oregonian/OregonLive March 21, 2017 at 4:49 PM
A federal judge on Tuesday found four men guilty of trespassing and other misdemeanor charges for their roles in the occupation of the Malheur National Wildlife Refuge last winter.
U.S. District Judge Anna J. Brown issued her rulings in court against Jason Patrick, Duane Ehmer, Darryl Thorn and Jake Ryan — the final four defendants in the Malheur case to go on trial.
Shortly afterwards, Patrick was taken into custody by deputy U.S. marshals, after the judge ordered he be placed on electronic monitoring and given a curfew as he awaited sentencing.
Patrick chose to be taken to jail instead. He stood, removed his blue blazer, took off his belt, emptied his pockets and was handcuffed. He turned to his mother in the courtroom gallery and said, “I love you,” before he was led out of the courtroom.
A jury returned verdicts against the four on separate felony charges on March 10, finding each guilty of at least one felony.
The judge decided the misdemeanor charges based on testimony presented during the trial, additional evidence presented to her in court while the jury was deliberating and arguments made in court briefs from prosecutors and defense attorneys.
Besides convicting each of trespass, the judge also found:
— Patrick, 44, of Bonaire, Georgia, guilty of tampering with vehicles and equipment, and destruction of property. Aerial surveillance captured Patrick driving a government Dodge Durango on the refuge property. He also was filmed cutting a barbed-wire fence on the perimeter of the refuge on Jan. 11, 2016.
— Ehmer, 46, of Irrigon, Oregon, guilty of tampering with vehicles and equipment for using a refuge excavator to dig trenches on the property on Jan. 27, 2016.
He was found not guilty of removal of government and private property.
FBI agents had found a maroon pouch stuffed beneath the passenger seat of his car that contained refuge gas cards, an employee’s ID card and cash and receipts belonging to the nonprofit Friends of the Malheur National Wildlife Refuge.
His defense lawyer argued that Ehmer had taken the pouch for safekeeping, believing it contained cash donations for the occupiers.
— Thorn, 32, of Marysville, Washington, guilty of one count of tampering with a vehicle — a refuge all-terrain vehicle, but not guilty on another count of tampering with a vehicle, what was described in the criminal information sheet as a front-loader. His lawyer argued it was a backhoe.
— Ryan, 28, of Plains, Montana, guilty of tampering with vehicles and equipment for using an excavator to dig trenches with Ehmer.
The defense had argued that the federal regulation involving trespass at a national wildlife refuge was vague. They also said defendants never received formal notice they were trespassing and the government couldn’t prove that the four ever saw trespassing signs on the property.
Defense lawyers pointed to testimony and photos that showed the Durango, ATV, excavator and front-loader didn’t have U.S. Fish & Wildlife decals on them and the Durgano also had no license plate.
Prosecutors countered that the defense team’s arguments in the face of “overwhelming” evidence defied common sense.
“At the Malheur National Wildlife Refuge, notices were posted at the entryway regarding permissible uses, at the front gate noting when the refuge was open and near the offices and workplaces defendants occupied designating those areas closed to the public. …Defendants’ claims that they did not see these signs is simply not credible,” Assistant U.S. Attorney Geoffrey Barrow wrote in a court filing.
Prosecutors conceded in their legal brief that the vehicles and equipment had no government markings, but argued strong circumstantial evidence showed the defendants knew they belonged to the refuge. But even so, Barrow argued, the government didn’t need to show the defendants knew the vehicles belonged to the Fish & Wildlife Service because ownership isn’t an element of the tampering charge.
Defense lawyers said, though, that both sides agreed before the trial that prosecutors had to prove that the defendants knew the equipment belonged to the government as an element of the offense.
Attorney Michele Kohler, who represents Ehmer, said the government can’t change the burden of proof now. “The defendants’ entire defense rested on the lack of evidence to prove beyond reasonable doubt that as to each defendant they ‘knowingly’ committed the offenses alleged,” she wrote.
Prosecutors filed the misdemeanor charges against the defendants in late December after last fall’s across-the-board acquittals of occupation leaders Ammon Bundy, his older brother, Ryan Bundy, and five co-defendants on felony charges.
The four defendants had wanted a jury to decide the misdemeanor counts, but Brown ruled they didn’t have the right to a jury trial for such petty offenses.
Each misdemeanor conviction could bring up to six months in prison.
Patrick and Ehmer were present in court Tuesday. Ryan and Thorn waived their appearances, but Thorn listened to the proceeding by phone.
Sentencings are tentatively set for mid-May.
— Maxine Bernstein