By Maxine Bernstein | The Oregonian/OregonLive Updated March 11, 2017 at 7:39 AM
A federal jury Friday delivered a split verdict in the second Oregon standoff trial, finding two defendants guilty of conspiracy in the takeover of the Malheur National Wildlife Refuge but acquitting two others of the same charge.
The jury found Jason Patrick, described by prosecutors as one of the organizers of the armed occupation, and Darryl Thorn, who worked on security details, guilty of conspiring to prevent federal workers from doing their jobs at the refuge through intimidation, threat or force. The other two men on trial, Duane Ehmer and Jake Ryan, were found not guilty.
The jury, though, found both Ehmer and Ryan guilty of willfully damaging the refuge, or depredation of government property, by using a refuge excavator to dig two deep trenches early on the morning of Jan. 27, 2016.
The jury also found Thorn guilty of possessing a firearm in a federal facility, but acquitted Patrick and Ryan of the same charge.
The seven women and five men deliberated for 2 1/2 days before returning their verdicts in U.S. District Court in Portland.
Their decision follows the October acquittals of Ammon Bundy and six co-defendants on the same conspiracy and weapons charges following a five-week trial in the 41-day refuge occupation last winter. Bundy, his older brother Ryan Bundy were considered among the leaders of the occupation.
Patrick, who said it’s turkey hunting season where he lives in Georgia, made turkey calls in the courtroom before the judge or jury entered, prompting a deputy U.S. marshal to tell him to cut it out. “So, who’s getting Tased?” blurted out Matthew Schindler, a defense lawyer from the first trial who sat in the back of the courtroom to hear the verdict, referencing the bizarre ending to last fall’s trial when Ammon Bundy’s lawyer was taken into custody and stunned with a Taser.
U.S. District Judge Anna J. Brown ordered defendants, their lawyers and spectators not to react when the verdicts came in – “not audibly, not in behavior, no reaction,” or they’d be removed from the courtroom.
The prosecution sharpened its case this time, zeroing in on how the actions of the men on trial revealed their intent to intimidate federal workers and explaining that jurors didn’t need to see a formal written or verbal agreement to find a conspiracy.
But the irony that the government snared some of the more minor players vs. the occupation instigators wasn’t lost on legal observers.
“Just about everybody would agree if you look at this from the perspective of overall justice, it’s kind of hard to square an acquittal in the first case and convictions in this second case,” said Kevin Sali, a Portland-area criminal defense lawyer not tied to the case.
“There is baked into our justice system a lot of imperfection and unpredictability. It’s an unfortunate but accepted fact that it doesn’t always produce results that are correct or just or fair.”
Trials are “inherently unpredictable,” Sali said.
In front of the federal courthouse, Ehmer said he was disappointed that “now I’m a felon,” but was looking forward to returning to Irrigon in eastern Oregon in the interim before sentencing.
“I’m headed home to go ride my pony for a couple months and then I’m going to take my mom fishing. That’s about it,” he said. Ehmer was a common sight at the refuge, riding his horse “Hellboy” and hoisting the American flag there.
Billy J. Williams, U.S. attorney for Oregon, and Loren Cannon, special agent in charge of the FBI in Oregon, both praised the verdicts.
The defendants’ “efforts to sow discord here in Oregon among residents, business owners, community leaders, and law enforcement personnel have failed,” Williams said in a statement. “Our communities and state are stronger because of our joint effort to bring these individuals to justice and we as Oregonians can now begin to move past these unfortunate events.”
Cannon said: “The U.S. Constitution gives all of us freedoms, but it also comes with the responsibility to respect the laws of this nation. We don’t live in a perfect world, but we do live in a great country. I encourage those who want to make it even better to act in peaceful and lawful ways to inspire lasting, positive change.”
Keiran Suckling, executive director of the Center for Biological Diversity, said in a statement that the verdicts “bring a measure of justice to the dangerous thugs who used violence, threats and guns to seize public lands that belong to the birthright of all Americans.”
The outcome followed a 10-day trial before U.S. District Judge Anna J. Brown.
Prosecutors described the case as a simple one: The defendants took over someone else’s workplace and made it their own. Their posting of armed guards at the refuge gates and watchtower, the creation of security squads and the visible presence of guns on the property intimidated U.S. Fish & Wildlife Service or U.S. Bureau of Land Management employees from doing their jobs.
“It’s a place of work. It is not a campsite. It’s not a rental property,” Assistant U.S. Attorney Ethan Knight told jurors in his closing argument.
Defense lawyers countered that prosecutors failed to present any evidence that revealed an intent by the four defendants on trial to stop federal employees from coming to work. Instead, the four men went to the refuge, they said, to protest the unjust prosecution and resentencing of Harney County ranchers Dwight Hammond Jr. and Steven Hammond. The father-and-son ranchers returned to federal prison on Jan. 4, 2016, to serve out five-year mandatory minimum sentences for setting fire to public land.
The defense team also argued that refuge manager Chad Karges ordered his employees not to go to work, but they remained paid throughout the course of the occupation.
In this second trial, prosecutors took pains to get out in front of questions that the defense in the first trial successfully raised about their use of FBI informants, the FBI’s “wait-and-see” engagement approach with the occupiers and the free comings-and-goings of Bundy and his followers during most of the seizure.
For the first time, the government called fellow occupier Blaine Cooper, who last summer pleaded guilty to conspiracy in the case, to testify against his co-defendants. Cooper said Ammon Bundy first presented his idea to take over the refuge in the dining room of a Burns home on Dec. 29, 2015, and said one of the defendants in this case, Jason Patrick, was among those present.
The government also played for jurors part of a Jan. 9, 2016, Oregon Public Broadcasting interview with Ryan Bundy as he explained why he and supporters 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.”
And prosecutors highlighted a Jan. 21, 2016 statement by Ammon Bundy to an FBI agent, in which he referred specifically to keeping out federal agencies: During that call, Bundy said he and supporters could not leave the refuge. If they did, Bundy continued, “Those people who are doing this will go right back into the refuge, the BLM, U.S. Fish & Wildlife Service and put the chains right back onto the people.”
Unlike the first trial, prosecutors also recalled two refuge employees to the stand during a brief rebuttal, questioning them about the fears they had just before and during the takeover. The judge earlier indicated that the government could have done that during the first trial, but didn’t.
Ammon Bundy, awaiting federal prosecution in Nevada in the 2014 standoff near his father’s ranch there, was transferred to Portland to testify for the defendants in this trial. Unlike the three days on the witness stand last fall, Bundy spent several hours testifying on one day in this trial.
While he acknowledged sharing his idea of taking over the refuge with others at the Dec. 29, 2015, meeting, he said the group didn’t agree on a plan or work out any details.
Another defense witness, Pacific Patriots Network founding member B.J. Soper of Springfield, echoed Bundy’s testimony that those at the meeting came up with no concrete plan.
Patrick, 43, of Bonaire, Georgia; Ehmer, 46, of Irrigon, Oregon; Thorn, 32, of Marysville, Washington; and Ryan, 28, of Plains, Montana also face misdemeanor charges, including trespassing. U.S. District Judge Anna J. Brown is expected to issue her verdicts in writing later.
In all, 26 people involved in the occupation were indicted on the felony conspiracy charge. A federal jury on Oct. 27 acquitted Ammon Bundy, Ryan Bundy, Shawna Cox and four others. Eleven others have pleaded guilty to the charge, though several asked to withdraw their pleas. The government dropped charges against another defendant, independent broadcaster Pete Santilli.
Thorn, who was offered a deal by the government seeking his plea to a misdemeanor trespass charge and a sentence of probation with all other charges dismissed, backed out of the deal just before the trial began.
As he awaited a verdict in this case, he said he felt he needed to stand in the courtroom with his co-defendants, citing the words of occupation spokesman Robert “LaVoy” Finicum, who before his death had said “it matters how you stand.”
State police fatally shot Finicum after he sped away from a police stop on Jan. 26, 2016, and then emerged from his truck after crashing into a snowbank. Police said they shot him after he reached at least twice into his jacket, where he had a loaded 9mm handgun.
Thorn said he has faith in God, and will learn either way the verdict falls.
Before the verdict, Ehmer called his family to give them updates. “Just waiting … to find out if I’m going to prison,” he said, during a phone call from the courthouse late Wednesday afternoon. “I don’t believe they proved their case at all,” he said.
When he got off the phone, Ehmer told The Oregonian/OregonLive, “I’m worried. You can’t help but worry.”
With the potential of facing a felony conviction and prison time, Ehmer said, “I spent 10 years in the army. I think that’s enough time for anybody.”
Prosecutors later Friday said they made some strategic changes in the second trial in presenting evidence, including drawing testimony from refuge employees about their fears during the occupation.
“In our system, juries can reach different conclusions,” said Assistant U.S. Attorney Ethan Knight. ” That’s why we were focused on the defendants, the facts and the law.”
Asked why they decided not to drop the conspiracy charges against the last four defendants after the acquittals of the Bundys, Williams said, “The evidence didn’t change in terms of who was arrested following the occupation. And so we believe in the wrongfulness of that conduct, and that the matter needed to be brought before the jury and that includes the remaining four defendants.”
Williams said people can peacefully protest land management issues.
“We cannot have people taking over government offices and facilities at the end of a gun and expect no consequence,” he said. “The rule of law matters. Taking up arms because you do not like how things are done can never be accepted as a lawful way to protest.”
Sentencing isn’t expected until at least mid-May.
Knight said the government will consider the severity of the conduct and the impact it had on the community, federal employees and the Burns Paiute Tribe.
Jake Ryan’s defense lawyer Jesse Merrithew said he believes there must have been “some disagreements” among jurors because of the time they deliberated.
“I think it is likely a compromise verdict,” Merrithew said. “I think Jason Patrick hit it right on the head. If they had the option of convicting them of tampering with a government vehicle or trespass, they wouldn’t have been convicted of conspiracy.”
Merrithew said he was disappointed the jury convicted Ryan and Ehmer of depredation of government property, a felony that could bring up to six years in prison.
They built the trenches because they thought the FBI planned to raid the refuge, Merrithew said. “They were simply terrified, trying to do what they had to do to survive,” he said.
With Patrick and Thorn’s convictions on conspiracy charges in the wake of last fall’s acquittals of the occupation leaders, Merrithew said, “I don’t think that comports with anybody’s sense of justice.”
— Maxine Bernstein