Suspected Escape Attempt Keeps Bundys in Jail

Sometimes it happens accidentally, as when a neighbor occupies several feet of the property next door for so long that they gain legal right to the land.

But Jones said Bundy's theory didn't check out.

Any first-year law student knows that you can't take land from the government through adverse possession, Jones said.

And although Bundy cited numerous adverse possession cases in his brief, Jones noted that none referred to a case where a citizen used adverse possession to take land owned by the government.

"That's because there aren't any," Jones told Bundy.

Also on Monday, during a hearing where he granted Bundy co-defendant Shawna Cox's request to represent herself, Jones brought up the jailing of two ranchers that inflamed Harney County and sparked a public protest in Burns, Oregon, that ended with the Bundys and their supporters seizing the Malheur National Wildlife Refuge.

Harney County ranchers Dwight and Steven Hammond were convicted in 2012 of starting two fires — one in 2001 that the government said was meant to cover up illegal poaching, and another in 2006 during a burn ban that spread to adjacent public land and could have harmed firefighters there.

Federal prosecutors charged the father and son under the federal Antiterrorism and Effective Death Penalty Act — a law that carries mandatory five-year minimum sentences. But U.S. District Judge Michael Hogan deemed that punishment to be too harsh.

In 2012, Dwight Hammond served three months in prison and his son served one year.

The government appealed the sentences and a three-judge panel for the Ninth Circuit found that the mandatory minimum applied.

"A minimum sentence mandated by statute is not a suggestion that courts have discretion to disregard," wrote U.S. District Judge Stephen Murphy, who sat on the panel by designation from the Eastern District of Michigan.

In December, U.S. Chief District Judge Ann Aiken ordered the men to finish out the five-year minimum sentence.

The Hammonds turned themselves in on Jan. 4, sparking the protest that the Bundy brothers used to justify the occupation.

On Monday, Judge Jones disputed the notion that the Hammonds were behind bars because of the federal court or Judge Hogan.

"You got into this situation because of the Hammonds, correct?" Jones asked.

Cox nodded.

"The Hammonds went to jail because of an act of Congress," Jones said. "It had nothing to do with courts or judges. Judge Hogan, who had been a judge for 20 years, looked at the facts and released the Hammonds on probation. But because Congress had passed mandatory minimums, which most judges do not like, the Ninth Circuit found that he had no jurisdiction to ignore Congress.

"So the courts were here. But if the court had its choice, the Hammonds would have been given what we think would be a more appropriate sentence."

Jones reluctantly approved Cox's request to represent herself, with the agreement that Cox would rely on her court-appointed lawyer Tiffany Harris to act as standby counsel.

But Jones questioned the wisdom of Cox's decision to represent herself.

"It's like a doctor trying to take out his own appendix," Jones told Cox. "It's stupid. But it's your right."

He said he had "grave concerns" about whether Cox was competent to represent herself.

Cox has already filed several unusual pro se motions. In February, she filed a "criminal counter suite" (sic), accusing Oregon's governor, police, and federal judges of conspiring to execute fellow occupier LaVoy Finicum, of trying to "communize" the nation and of consolidating power in the hands of the Oregon State Bar.

"You have an inappropriate understanding of the rule of law," Jones told Cox on Monday. "You have no idea of the rules of evidence. I'm trying to think of kind adjectives. But it virtually escapes me. You have filed pleadings claiming to be part of a common-law court, and on the basis of the uniform commercial code. These are screwball positions to take. They have no basis in law. Somebody started these ideas and it's garbage. That's what it is."

And on Tuesday, Bundy co-defendant Ryan Payne pleaded guilty to conspiracy to impede federal workers. Payne is a member of the Bundy inner circle who was also part of the 2014 standoff at patriarch Cliven Bundy's Bunkerville, Nevada, ranch.

U.S. Attorney Craig Gabriel said at the hearing that he would recommend three years and five months for Payne's role in the Oregon occupation, to be served concurrently with whatever sentence he might get for his role at Bunkerville. Payne is facing multiple consecutive 25-year sentences for the Nevada charges, but has a pending plea deal there under which he would serve 12 years.

Payne is the eighth defendant to plead guilty to charges stemming from the Oregon occupation. A ninth defendant, Travis Cox, is expected to plead guilty on Wednesday.

Jury selection for the Bundy defendants' trial in Oregon is set to begin Sept. 7.

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