Oregon Live – by Maxine Bernstein
A federal judge has dismissed the charge of using and carrying firearms in the course of a crime of violence against Ammon Bundy and seven co-defendants, finding the underlying conspiracy charge doesn’t meet the legal definition of a “crime of violence.”
The ruling dismissing Count 3 in the federal indictment is the first major win for the defense in the pending case stemming from the 41-day armed takeover of the Malheur National Wildlife Refuge.
U.S. District Judge Anna J. Brown issued a 16-page written ruling Friday afternoon, finding that the umbrella charge of conspiring to impede federal officers from doing their work at the refuge through “intimidation, threats or force” doesn’t necessarily mean that the conspiracy must involve the “threatened use of physical force” against a person or property.
She noted that the word “intimidation,” for example, could apply to threats of nonviolent harm to property.
Further, a “threat” under the conspiracy allegation could involve the blackmailing of a federal officer to prevent the federal officer from doing his or her federal duties — a threat that doesn’t necessarily require “threatened use of physical force,” the judge wrote.
So, if the underlying conspiracy charge isn’t restricted to a “crime of violence” but encompasses a “broader swath” of conduct, then the count that charged eight refuge occupiers with using or carrying firearms in the course of “a crime of violence” should be thrown out, the judge ruled.
Defense lawyer Per C. Olson had argued in legal briefs and oral arguments for dismissal of Count 3 on behalf of his client, David Fry, and the others charged.
Olson told the court that the government wrongly applied a definition of “intimidation” from a federal bank robbery charge to the conspiracy charge. He argued that prosecutors can’t “lift a definition” from another statute and “shoehorn it” into this charge without any case law to base it on.
Assistant U.S. Attorney Ethan Knight had conceded in a hearing that Count 3 presented “a close call” for the court.
But Knight argued that the conspiracy very much represented a violent crime and should be left up to a jury to decide, perhaps with a special jury instruction, asking whether jurors believe there was a threat of violence or physical force involved in the conspiracy alleged.
Brown said she was bound by 9th U.S. Circuit Court of Appeals rulings. A crime of violence is defined as any offense that is a felony and “by its nature involves a substantial risk that physical force against the person or property of another may be used.”
In addition to Ammon Bundy and Fry, the other defendants charged with Count 3 were Bundy’s older brother, Ryan Bundy, Jon Ritzheimer, Ryan Payne, Brian Cavalier, Jason Patrick and Sean Anderson.
Co-defendant Corey Lequieu has already accepted a negotiated deal, pleading guilty to the conspiracy charge last month with the understanding that the other charges, including Count 3, would be dismissed against him at his August sentencing.
Count 3 would have carried a mandatory minimum sentence of five years in prison, and a maximum sentence of life. If a defendant had been convicted for using and carrying a firearm in the course of a violent crime, the sentence would have to run consecutive to sentences imposed on any other counts.
The remaining counts have less severe penalties, Olson pointed out. The federal conspiracy charge carries a maximum sentence of six years with no minimum and possessing a firearm in a federal facility carries a five-year maximum sentence with no minimum.
“So, with regard to those defendants who were charged in Count 3, this ruling greatly reduces their overall exposure to prison in the event of convictions,” Olson said Friday.
A trial is set for Sept. 7. The next status hearing in the case is Wednesday.
— Maxine Bernstein
http://www.oregonlive.com/oregon-standoff/2016/06/judge_dismisses_one_of_the_gun.html
“… finding the underlying conspiracy charge doesn’t meet the legal definition of a “crime of violence.”
Apparently Finicum’s murder doesn’t either.
These people all had firearms. This is what happens to those who don’t use them at time of need.