U.S. District Judge Anna J. Brown said Friday she’ll work to ensure the transfer of Ammon Bundy and Ryan Payne from Nevada to testify at next month’s trial of seven defendants charged in the takeover of the Malheur National Wildlife Refuge.
“I’m convinced it would be error for the court not to facilitate them as witnesses,” the judge said.
But Brown wants both Bundy and Payne, who face federal prosecution in Nevada this spring, to personally consent to their brief transfer. She also wants their assurances that they won’t argue that the move will hurt their ability to prepare for their upcoming trial in Nevada.
The second trial of refuge occupiers is set for Feb. 14 in Portland. Seven people face federal conspiracy and weapons charges, as well as recently filed misdemeanor charges, in the 41-day takeover of the federal bird sanctuary in eastern Oregon.
Assistant U.S. Attorney Ethan Knight said the government intends to present its case over one week. Defense lawyers are suggesting Bundy and Payne take the stand in late February, possibly Feb. 27 and 28.
The judge made it clear that she wants their time on the witness stand limited to what’s necessary.
“I do not anticipate any reason for Ammon Bundy to testify for three days,” Brown said, referring to his lengthy testimony in his own defense last fall. “He is not on trial.”
Bundy, the leader of the refuge seizure, was acquitted of federal conspiracy and weapons charges after a five-week trial in Portland last fall. Six others also were acquitted of conspiracy, including Bundy’s older brother, Ryan Bundy.
Payne pleaded guilty to the conspiracy charge and unsuccessfully tried to withdraw the plea.
Both Ammon Bundy and Payne now face federal charges in the 2014 armed standoff with federal land agents outside the Bundy Ranch in Bunkerville, Nevada.
Ammon Bundy is a central figure in the Oregon case, said Andrew Kohlmetz, standby lawyer for defendant Jason Patrick.
“There is almost no relevant topic upon which Mr. Bundy cannot testify to in this case,” Kohlmetz wrote in a court filing this week. “… Mr. Bundy will also testify that his goals and reasons for being at the refuge were not necessarily those of Mr. Patrick and vice versa.”
Payne’s testimony would be offered to refute government allegations that Patrick and other defendants were part of a criminal conspiracy to prevent federal officers from doing their job at the refuge, Kohlmetz wrote.
The judge also ruled that the second round of defendants aren’t entitled to a jury trial on the misdemeanors but said she’s open to further argument.
A misdemeanor charge of trespass was filed against all seven defendants awaiting trial. Other charges of tampering with vehicles or equipment, and destruction and removal of property were brought against some of the seven.
“Petty offenses are designed to be prosecuted and resolved quickly,” the judge said. They’re typically tried before a U.S. magistrate or district judge only.
She asked both sides to submit arguments on whether she has the authority to allow a jury trial on the misdemeanors, and if so, should she exercise the authority.
Prosecutors have urged the judge to hear evidence on the misdemeanor charges as a jury deliberates on the conspiracy, weapons and depredation of government property charges, all felonies.
Defense lawyers want the misdemeanor allegations to go before the same jury.
There’s no practical reason to deny the defendants a jury review on the misdemeanor charges given the high-profile nature of the case, that a jury already will be empaneled for the felonies and the evidence overlaps, defense lawyer Jesse Merrithew argued in another court filing. Merrithew represents defendant Jake Ryan.
Five of the seven defendants attended Friday’s status hearing and were formally arraigned on misdemeanors. After Knight read each charge out loud, the judge asked each defendant if they understood the allegations.
“I understand I have no rights,” Patrick told the judge, and declined to enter a plea when asked.
The judge entered a not guilty plea on his behalf.
Patrick is charged with trespass, tampering with vehicles and equipment in the alleged use of a government Dodge Durango on the refuge and destruction of property in the alleged cutting of a barbed-wire fence along the refuge property.
Except for defendant Duane Ehmer, who politely answered each of the judge’s questions with a “Yes, ma’am” and entered a not guilty plea, the other defendants followed Patrick’s lead.
Ehmer is accused of trespass, tampering with a government excavator and removal of government property, a maroon pouch from the refuge that contained checks, credit cards and cash belonging to the Friends of the Malheur National Wildlife Refuge.
Defendant Sandra Anderson, accused of trespass, echoed Patrick, telling the judge, “I understand that I have no rights.”
Defendant Darryl Thorn, facing trespass and two counts of tampering with a vehicle in the alleged use of a government front-end loader and ATV on the refuge, said he didn’t understand why he has no right to a jury trial on the misdemeanors.
“I Darryl Thorn will enter a plea under duress in the state of Oregon due to prejudicial prosecution,” he said. “I understand this whole thing is rigged.”
Defendant Jake Ryan, charged with trespass and tampering with a refuge excavator, said, “I understand I have no rights” and called the proceeding a “tyrannical playground.”
“Sir, are you chewing gum?” the judge interrupted. “Please take the gum out. We’re in court.”
Two other defendants, Sean Anderson and Dylan Anderson, waived their right to be present in court.
The maximum penalty for the Class B misdemeanor charges is six months in prison and a $500 fine.
Some of the lawyers were surprised that the hour-long status hearing didn’t last longer, noting a host of pretrial motions remain unresolved.
The judge said she wanted to make sure everyone would be able to get out of downtown before public transit is disrupted from anticipated Inauguration Day marches and demonstrations.