Feds Learn Hard Lessons in Bundy Case

     
     PORTLAND, Ore. (CN) — The U.S. Attorney’s office gave the press 11 minutes to get to the federal courthouse to hear the stunning jury verdict finding Ammon Bundy and his six co-defendants not guilty of conspiring to keep federal employees from working. Even so, courtroom 9a was packed, with press and supporters who didn’t fit crowded in the hall outside hoping for a chance to get in.
     Inside, giddy conversation buzzed as observers waited for the jury to enter the room. The climax of a 10-month, real-life spaghetti western that cost the government just under $12 million to prosecute, caused roughly $6 million in damage to the refuge, left dozens in jail and one man dead. Observers speculated: would all seven defendants be found guilty, or just the leaders? Oregon’s U.S. Attorney Billy Williams chatted it up with press, even inviting reporters to a press conference planned for the next morning.
     The jury entered. Greg Bretzing, FBI special agent in charge of Oregon and the man who coordinated the law enforcement response to the occupation, walked in and sat next to Williams. The two men exchanged a smile and a nod.
     Then U.S. District Judge Anna J. Brown read the verdicts: Not guilty on all counts.
     The hearing continued, but Williams and Bretzing fled the courtroom. They had just lost the biggest case of their careers, because of a political decision to prosecute a charge they couldn’t prove.
     Williams never showed up to his own press conference. Whatever he’d planned to say apparently didn’t include the possibility of reacting to a not guilty verdict.
     Lisa Ludwig, standby counsel for Ryan Bundy, said prosecutors must be reeling from the loss but weren’t likely to make any major overhaul to the way the U.S. Attorney’s Office prosecutes cases.
     “Billy just did what U.S. Attorneys do,” Ludwig said. “He didn’t step up and try to impose reason and wisdom. He’d lose his job if he tried to do that. [The D.C. office] may be trying to be a little bit less institutionally racist, but only by incrementally microbaby steps. Because criminals are a weak constituency and so are the people who care about what happens to them.”
     A Case of the Wrong Charge
     Ammon Bundy isn’t free yet. His next stop is Nevada, to face charges related to the 2014 standoff between the Bureau of Land Management and Bundy supporters who stopped the government from seizing his father Cliven Bundy’s cattle. But his acquittal in Oregon may embolden him and his followers. One of his attorneys, J. Morgan Philpot, said the verdict was a vindication of the Bundys’ political beliefs.
     Other lawyers said the verdict was a result of the prosecution choosing the wrong charge.
     Conspiracy to keep federal employees from working is a Civil War-era statute that was initially enacted to prevent the Confederacy from interfering with federal officers. It’s rarely used in modern circumstances: The government used it in one case where two people kidnapped a judge to avoid prosecution.
     Federal conspiracy cases are usually used to convict defendants in drug, investment fraud and prostitution cases. Those involve the exchange of actual material items like money and heroin; it’s tough to argue against the claim that everyone involved in a drug ring worked toward the same goal.
     But this case centered on ideas. Bundy claimed he launched the occupation on political principals. And given they charge they chose, prosecutors’ main task was to prove that the intent of those involved was to keep refuge employees from working. All Bundy had to do was hide behind his obliviousness, that he never considered the occupation’s effect on the biologists and archeologists who work at the refuge.
     “The conspiracy charge was absolutely the problem,” said Matt Schindler, attorney for defendant Ken Medenbach. “They just couldn’t prove it. It didn’t fit the evidence they had. They didn’t have a box to fit this one in, and they couldn’t adapt. That’s not their strong suit.”
     Attorneys agree a misdemeanor charge for criminal trespass would have fit the evidence much better than the conspiracy charge. But the government couldn’t answer a 41-day armed occupation of a federal facility with a misdemeanor.
     “So they were stuck,” Schindler said. “And they charged them with a crime they didn’t commit.”
     Mike Arnold was Ammon Bundy’s attorney until he resigned in May and Marcus Mumford took over. Arnold said he told prosecutors after Ammon’s arraignment that his client would plead guilty to criminal trespass.
     “They rejected my offer on day two. That could have gotten us all out of this quickly and inexpensively,” Arnold said. “They laughed. But OK, go put on your dog-and-pony show and get your ass handed to you by three pro se litigants.”
     Tom Coan, the attorney who successfully got co-defendant Pete Santilli’s charges dropped, agreed that criminal trespass would have been a more appropriate charge.
     “The charge never exactly fit the conduct,” Coan said. “It was a trespass case. That would have given jury an easier route to convict. But it’s only a misdemeanor, which doesn’t keep firearms out of these guys’ hands.”
     Style Differences — Mumford vs. Knight
     Then there was the stark difference in style between the crisp case presented by the government and the colorful picture painted by the defense.
     Lawyers for the defendants paraded supporters in front of the jury who had visited the refuge during the occupation. Dozens of witnesses told the jury they were hospitably received at the refuge and never felt threatened there.
     Bundy testified for three days, saying God told him to launch the occupation to ensure that the future is safe for rural families. He gleefully detailed the mechanics of adverse possession, a legal process he believes can be used to seize federal property.
     Mumford painted Bundy as an honorable patriot, fighting a David-and-Goliath battle against government overreach. He told the jury Bundy is in jail because of that same “dark” force.
     In lengthy closing arguments — a civics lesson of sorts — Mumford offered a colorful slideshow, presidential quotes and details on the rules of criminal procedure.
     A series of slides detailed the steps Bundy says he took to address his political complaints before he organized his armed occupation.
     One slide read: “Being ignored: The worst feeling ever.”
     The government stuck to arguments that supported its contention that the defendants made an illegal agreement to keep refuge employees from working. A charge that didn’t fit the spirit of the crime and that, in the end, the government couldn’t prove.
     If Mumford was a Broadway star, Assistant U.S. Attorney Ethan Knight was the tight-lipped cop from a 1940s gangster movie.
     Knight told the jury Bundy and his followers’ ultraconservative beliefs about the rightful role of the federal government under the Constitution are irrelevant. Instead, what matters is whether the occupiers broke the law by conspiring to keep refuge employees from doing their jobs.
     “This is not about federal land-use policy,” Knight said in his brief closing arguments. “The government doesn’t dispute that they hold these beliefs. But at the end of the day, you can’t conspire to take somebody else’s workspace and say, ‘You’re no longer welcome to work here, go home.'”
     Bundy spent 10 hours over three days testifying in his defense. Knight countered his emotional saga with a mere 15 minutes of curt cross-examination.
     It was a style that seemed designed for an audience of lawyers, not a jury with zero experience in the legal world and drawn from a statewide pool.
     Or maybe it was the style of someone who believed he had already won the case.
     “They completely overvalued the strength of the case because a bunch of yes men that all agree with each other came up with a strategy and they were wrong,” Arnold said.
     Government Hamstrung
     Harney County residents lived in a climate of fear and intimidation for 41 days. Occupiers harassed residents they thought worked for the government in the local grocery store, showed up at their workplaces and repeatedly drove past their houses — including the home of one man who lives at the end of a deserted gravel road.
     The county shut down its school for a week during the occupation. They held impassioned community meetings to discuss how to get Bundy and his gang out. They dispatched their sheriff to personally tell Bundy to leave.
     But the government couldn’t tell that human side of the story. Guilt in a criminal conspiracy requires only that the conspirators agreed to do something illegal. It’s the conspirators’ intention that counts. Their state of mind. The effects of their actions are irrelevant, as is the question of whether the goal of the conspiracy — the actual illegal thing they agreed to do — ever even happened.
     So defense attorney Matthew Schindler successfully argued that the government couldn’t introduce evidence about the impacts of the occupation on government employees or other residents of Harney County
     “That became important to limiting their narrative,” Schindler said. “A narrative has to be told through people. And the people they wanted to use were the refuge employees.”
     A Lack of Co-Conspirator Testimony
     In most conspiracy cases, the government has an eyewitness or a co-conspirator who has already pleaded guilty testify that they know the conspiracy existed because they were part of it.
     Here, the government mostly called FBI agents to introduce exhibits like guns and pictures of the defendants at the refuge.
     Their only eyewitness, a retired Burns electrician who hitched a ride to the refuge with Ammon’s brother Ryan Bundy and watched the gang execute their military-style operation to seize the refuge, took the stand with his pocket Constitution in his shirt.
     Indeed, Butch Eaton spoke emotionally about his admiration for the defendants. He called them “a loving, hugging brotherhood” and said they changed his worldview.
     “In some people’s eyes, I was a puss. I left. Their convictions were stronger than mine,” Eaton said. “They shouldn’t be here.”
     And just like that, the only government witness who didn’t work for the government became one of the defense’s best witnesses. After that debacle, prosecutors abandoned plans to call Jason Blomgren, a co-defendant who had already pleaded guilty.
     “It’s possible they didn’t want another Butch Eaton moment,” said Lisa Maxfield, attorney for defendant Neil Wampler.
     Looking Forward
     In the Nevada case, the Bundy brothers, their father Cliven and a handful of other defendants that were also charged in the refuge occupation face more serious charges that could add up to mandatory minimums of 12 years in prison.
     But they’re also facing the same conspiracy charge they beat in Oregon.
     Bunkerville, though, was a very different kind of standoff than Malheur. At Malheur, the FBI told refuge employees to stay away until the occupation was over and kept its distance from the refuge. There was never a moment of confrontation between militants and federal employees.
     At Bunkerville, the Bundys organized a group of hundreds specifically to stop BLM employees from carrying out a judge’s orders to impound Cliven’s cattle over the $1 million in grazing fees Cliven refused to pay.
     And there’s a third trial at stake. In the Oregon case, the government originally indicted 26 defendants. Eleven pleaded guilty, one was cleared of the charges and seven were just acquitted. In February, a judge at U.S.D.C. Oregon is scheduled to begin proceedings in the trial against the remaining seven defendants on the same charges the parties argued in the first trial.
     In that case, defense attorneys agree the government is likely to either drop the charges entirely or offer the very thing that Arnold suggested back in January: misdemeanor trespass charges.
     “But I would bet they would just drop the charges,” Arnold said. “The first round was humiliating enough.”
     Coan agreed.
     “It just doesn’t make sense to go after these people when a jury has concluded that the so-called leaders are not guilty of conspiracy,” he said.
     Regardless of the prosecution’s decision on the case in February, it’s clear that the government has dropped the ball in punishing leaders of an armed standoff that kept a rural community locked in fear for 41 days by failing to secure a verdict that would help prevent similar dangerous events in the future.
     “It can’t be okay to take over a federal refuge with a gun,” Schindler said. “It just can’t.”