Members of the rifle-toting Idaho 3% "security detail'' arrived in Burns in January 2016 during the occupation of the Malheur National Wildlife Refuge. (Dave Killen | Staff)
A militia group called the Real 3%ers of Idaho wants to intervene in support of an appeal by four Malheur National Wildlife Refuge occupiers challenging their misdemeanor convictions.
The 9th U.S. Circuit Court of Appeals panel will consider the group’s motion to file a friend of court brief in the case.
Refuge occupiers Jake Ryan, Jason Patrick, Duane Ehmer and Daryl William Thorn are appealing their felony and misdemeanor convictions in the armed takeover of the wildlife sanctuary in Harney County in January 2016. All four have served prison time and are out of custody on federal supervised release.
Their appeal encompasses a wide range of issues, including the court’s initial exclusion of potential jurors for hardship reasons to the court’s classification of employees of the U.S. Fish & Wildlife Service as “officers’’ of the government for the charge of conspiring to impede federal officers.
The Idaho militia group, though, is solely seeking to support the men’s challenge of their misdemeanor convictions, saying a jury should have been allowed to decide the lower-level offenses. U.S. District Judge Anna J. Brown instead convicted the men on the misdemeanors.
Montana resident Roger L. Roots, a convicted felon who was allowed to serve as a volunteer paralegal for Ryan Bundy in the Oregon standoff case, filed the friend-of-the-court motion on behalf of the “Real 3% ers of Idaho,’’ and the “Idaho Political Prison Foundation.’’
The Idaho Political Prisoner Foundation provides money, obtained through donations, to inmates in jail or prison resulting from what it calls “non-violent Constitutional protest and activism,’’ according to the motion.
“The right to jury trial is among the most sacred and cherished rights of every American. However the District Court in this case imposed a hybrid jury/judge trial on the Appellants, over their objections, in which a jury tried them for felonies while the judge tried them for misdemeanors,’’ Root wrote.
The Idaho groups “identified this unprecedented procedure as especially egregious,” Root wrote.
Brown ruled in 2017 that Patrick, Ehmer, Ryan and Thorn didn’t have a right to a jury trial on the Class B misdemeanor charges -- trespass, property destruction and tampering with vehicles or equipment -- because they’re considered petty offenses.
The judge also cited the "significant uncertainty in the law'' as to whether she had any discretion to allow a jury trial for such offenses.
Even if she had the authority to grant a jury trial, Brown said she wouldn't.
"The Court notes Congress explicitly intended the trial of petty offenses to be tried to the court, and expressly permitted magistrate judges to conduct such trials in order to facilitate their efficient resolution without the process associated with a jury trial,'' Brown wrote.
The judge found Patrick, Ehmer, Thorn and Ryan guilty of trespassing, concluding that all participants in the occupation knew the refuge was federal property and knew they didn't have any authority over the wildlife sanctuary.
The judge also found Patrick guilty of destroying property and tampering with vehicles and equipment; Ehmer guilty of tampering with vehicles and equipment for using a refuge excavator to dig trenches on the property; Thorn guilty of tampering with a refuge all-terrain vehicle; and Ryan guilty of tampering with vehicles and equipment for using an excavator to dig trenches with Ehmer.
A jury returned verdicts against the four on separate felony charges.
Root said he believes prosecutors added the misdemeanor charges to this second group of occupation defendants to go to trial “to ensure convictions in the wake of the first trial,’’ when the lead defendants, including Ammon Bundy and his brother Ryan Bundy, and five others were acquitted by a jury of all felony charges.
Asked why the Idaho groups have an interest in this case, Root first said it was because some of those convicted are from Idaho, but none of the four appealing are from that state. Ehmer lives in Oregon. Thorn is from Washington. Patrick has lived in Washington, Georgia and Oregon, and Ryan is from Montana.
Root then said the groups “are just trying to help support them in their appeal.’’
Thorn was a member of the Washington 3 Percent militia that frequently did armed guard duty in the refuge watchtower during the occupation.
About a week into the occupation, armed members of the “3 % of Idaho’’ group assembled outside the refuge, saying they were there to help “secure a perimeter’’ around the compound and help prevent “a Waco-style situation.’’
The U.S. government has until Nov. 15 to file its response to the appeal.
-- Maxine Bernstein
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