Closing Arguments in Second Malheur Refuge Trial

PORTLAND, Ore. (CN) – Closing arguments Tuesday in the trial of the final defendants accused of illegally occupying the Malheur National Wildlife Refuge highlighted the difficulties prosecutors had in proving the same conspiracy charges in the first trial, which ended with the surprise acquittal of the leaders.

The federal jury this week is expected to announce verdicts in the second trial over the 41-day occupation. The jury will determine whether anyone will face felony consequences for the armed occupation that left one man dead, caused $6 million in damages, and deeply disrupted the rural community that surrounds the refuge.

Four men – Jason Patrick, Duane Ehmer, Jake Ryan and Darryl Thorn – are the last of the 26 indicted who have not yet pleaded guilty, been acquitted or had their charges dropped.

After the jury decides the felony conspiracy, gun and property charges, U.S. District Judge Anna J. Brown will rule on the misdemeanor trespassing charges the government added after seven defendants were acquitted in the first trial.

The government’s closing arguments Tuesday appeared crafted to address deficiencies jurors described after the first trial. Two jurors told reporters the government had not proved that the occupiers intended to impede federal workers.

Arguments in the first trial stretched to five weeks, filled with political and religious rhetoric.

Defense attorneys detailed the political beliefs of Ammon Bundy and his followers, including their claim that a sheriff had the power to stop federal marshals from taking ranchers Dwight and Steven Hammond to prison; that the federal government cannot legally own land; and presenting a slideshow on their claim that the occupation would result in local citizens taking legal ownership of the refuge.

Bundy spent three tearful days on the stand, describing his devotion to his family, his country and his politics and claiming that the occupation was a divinely inspired battle against government tyranny.

Amid all that, the actual charges – that the occupiers used force, intimidation or threats in a conspiracy to keep federal employees from working – seemed to fade into the background.

In contrast, arguments in the current trial lasted only two weeks. Bundy testified briefly. He declined to delve into his politics and religion as he did during the first trial and said he barely knew the four remaining defendants.

In closing arguments during the first trial, Assistant U.S. Attorney Ethan Knight told the jury the government was not required to show evidence of the defendants’ force, intimidation or threats against refuge employees.

He said the occupiers were free to believe anything they wanted, so long as they didn’t act on those beliefs in a way that broke the law.

For each of the seven defendants in the first trial, Knight listed a handful of actions that applied to a variety of potential wrongdoing. Some examples were based in legal theory, others were not. He concluded his discussion of each defendant by saying they could not conspire to keep federal employees from working.

“Ammon Bundy picks and chooses which laws apply to him,” Knight said during closing arguments in the first trial. “The rules change when applied to Mr. Bundy. But at the end of the day, you can’t conspire to prevent Fish & Wildlife folks from doing their jobs and that’s exactly what he did as leader.”

In closing arguments Tuesday, Knight seemed to have abandoned that approach. He again laid out the actions of each defendant. But this time he tied each action directly to the charges.

On Tuesday, Knight played a video of LaVoy Finicum, who was shot and killed during the Jan. 26, 2016 traffic stop that also netted the arrests of Finicum’s fellow occupation leaders.

In the video, Finicum assures his audience that the occupiers will not hand the refuge back to the federal government.

“We will not leave these buildings,” Finicum said. “We will not return them to the federal government. When we leave, we will hand them over to the people of Harney County.”

Knight told the jury that Finicum’s message showed that the occupation was intended not as a “brief protest,” but to stop the government “tyranny” the occupiers believed was being perpetrated by the refuge employees.

Knight played a clip of a phone call between an FBI negotiator and Sandra Anderson, who with her husband, Sean, was one of the four final occupiers to leave the refuge. In the clip, the negotiator described the charge Sean Anderson faced if he were to surrender: interfering with a federal employee reporting to work.

“Wait a minute,” Sandra Anderson said. “We all have done that. Why is only he being charged?”

Knight told the jury the clip showed Anderson admitting guilt, and that in a conspiracy case, all conspirators are guilty of the deeds of their co-conspirators.

“Sandra’s response?” Knight said. “We’ve all done that. It’s not, ‘What are you talking about?’ It’s not, ‘We’re here because of the Hammonds.’ It’s not, ‘We don’t know anything about government employees.’ It’s, ‘We’ve all done that.’”

Knight played a video of defendant Jason Patrick calling Bundy supporters to bring their guns and join the occupation in a video with Jon Ritzheimer, Joe O’Shaughnassy and Blaine Cooper. All three have pleaded guilty.

Knight said the defendants obeyed the call, which proves the charges against them.

“The presence of these defendants with their guns in response to a callout proves conspiracy,” Knight told the jury.

Knight showed a photo of defendant Dwayne Ehmer during the occupation.

“This is Mr. Ehmer with a gun in front of a refuge truck in the middle of the night,” Knight told the jury.

Knight described text messages Ehmer had sent discussing the “firepower” occupiers had available should they need to use it against “the feds.” And Ehmer’s name was on a list assigning guard duty at the federal facility, Knight said.

“The defendants advanced an agenda to turn the refuge into another place altogether,” Knight said. “You can infer a conspiracy not from a contract but from the evidence.”

Andrew Kohlmetz, attorney for Jason Patrick, told the jury in his closing argument that the occupation was a legal political protest, not a criminal conspiracy.

“All of this was done very publicly and openly,” Kohlmetz said. “Criminal conspiracies thrive in darkness. Criminal conspirators do not hold community meetings and press conferences. These are simply not the actions of criminal conspirators. They are the actions of political activists.”

The jury will weigh those claims in deliberations beginning Wednesday morning. Meanwhile, the parties will be back in the courtroom, presenting evidence to Judge Brown on the misdemeanor charges.