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Burns Chronicles 58 – Twice Put in Jeopardy

Misdemeanor charges were brought to insure a conviction, should the jury have returned a not guilty verdict, as in the first trial.

Burns Chronicles 58
Twice Put in Jeopardy

by Gary Hunt

Of course, we must start with the Fifth Amendment to the Constitution, as it is the “supreme Law of the Land.  The pertinent part reads:

“No person… shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”

Now, that phrase, “twice put in jeopardy” is also referred to as “Double Jeopardy”, though whichever way we choose to phrase it, the meaning is quite simple.  If you are charged with a crime, absent a mistrial or some other legitimate cause, you can only stand trial one time.

It used to be that a crime was simply stated.  If you murdered someone, then you were charged with murder.  If you murdered more than one person, then additional counts of murder were added to the charge.  You would not be charged with, say, unlawful discharge of a firearm within the limits of the city, destruction of private property if the bullet damaged something, assault, illegal possession of a weapon, or any other crimes that you may have committed while also committing murder.  You simply stood trial for murder.

If you were acquitted, that was it.  If they found additional evidence that proved that you had really committed the murder, that was too bad.  They had their chance, and they blew it.

This protection, afforded by the Bill of Rights was a prohibition against the government trying and then retrying, you until they could get a conviction.  It also precluded your being tried by one court, found not guilty, and then tried by another court in different jurisdiction, for the same crime.

So, let’s look at what has recently occurred in Portland, Oregon.  The first trial, in September and October 2016, comprised of charges arising from the occupation of the Malheur National Wildlife Refuge (MNWR), near Burns, Oregon.  In that trial, which included the charge of “conspiracy”, Ammon Bundy, Ryan Bundy, Shawna Cox, David Fry, Neil Wampler, Kenneth Medenbach, and Jeffrey Banta (Group 1), were acquitted by a jury.

Jeff Banta, Neil Wampler, David Fry and Shawna Cox

The next trial, held in February and March 2017, included the remaining defendants, Jason Patrick, Duane Ehmer, Darryl Thorn, and Jake Ryan.  This second (Group 2) trial went to the jury with the same charges as the first trial.  However, it appears that United States Attorney Billy J. Williams, concerned that after spending an estimated $100 million dollars thus far, and no conviction to show for it, opted to insure a conviction justifying the extravagant expenditure of public money.  He did so by bringing additional misdemeanor charges, not by a Grand Jury, but rather by what is known as an “information”.

The two trials were conjoined for certain portions of the respective trials (some of the testimony that also applied to the misdemeanor charges was heard by the jury).  When the felony charges went to the jury, the Court continued with a bench trial (judge only, no jury) and additional testimony with regard to the misdemeanor charges.

As a side note, the felony trial portion ended with a guilty verdict of at least one guilty charge against each defendant.

Now, we move on to the misdemeanor bench trail of the defendants.  The Judge, Anna J. Brown, who presided over the Group 1 and Group 2 jury trials was also the judge who presided over the bench trial.  This somewhat irregular practice was discussed in “Burns Chronicles No 54 – To Jury, or, Not To Jury” and decided outside of the Rules of Court.  After a few days of deliberation, she found all four defendants guilty of at least one charge.  On March 21, 2017, she filed “Legal Standards, Findings of Fact, and Verdicts on Class B Misdemeanor Charges“.  We are going to take some excerpts from that document to understand just what happened when these additional charges were brought and tried.

  1. Many individuals both within and outside of the Burns area learned of the re-sentencing decisions and strongly objected to the Hammonds’ being required to return to prison.

Well, that is what started his whole situation.  Dwight and Steven Hammond were tried, found guilty, sentenced, served their time, and then tried, again, in the appellate court, sentenced to an additional 4 years in prison, which they are currently serving.

  1. Beginning in November 2015 individuals from outside the Burns area, including Ammon Bundy who lived in Emmett, Idaho, traveled to Burns to organize a protest in support of the Hammonds. At least some of them also sought to prevent the Hammonds from being required to return to prison.

Heck, Ammon Bundy was acquitted in the Group 1 trial.  However, the inclusion of his name in this document is a stunning insight into the thought process of Judge Brown’s desire to obtain a conviction, setting aside the jury verdict, at least in her own mind, the rules of jurisprudence and the Constitution notwithstanding.

  1. As part of their ongoing protest of the re-sentencing of the Hammonds, Ammon Bundy and others, including Defendant Jason Patrick, organized and recruited people during December  2015 to participate in a protest march to take place on January  2, 2016, in Burns, Oregon, in support of the Hammonds.

The acquittal in the Group 1 trial is ignored, as this statement is made in the misdemeanor “Findings of Fact”.  So, the jury’s finding of not guilty of conspiracy is now asserted as fact in order to justify a misdemeanor conviction.

  1. In anticipation of the January 2, 2016, march, Ammon Bundy held a private meeting on December 29, 2015, at a home in Burns, Oregon.  Ryan Payne, Jon Ritzheimer, Blaine Cooper, Defendant Jason Patrick, and others were present at that meeting.  Ammon Bundy requested all attendees to leave their cellular telephones outside of this meeting so that the substance of the meeting would not be recorded.
  2. At the December 29, 2015, meeting, Ammon Bundy proposed an armed takeover of the Malheur National Wildlife Refuge (MNWR) (located approximately 30 miles south of Burns) to take place  after the protest march on January 2, 2016.  Some, but not all, of the meeting attendees agreed with Ammon Bundy’s plan.

Here, again, we enter the realm of conspiracy, which was also found by the first jury to have not been committed.  However, she manages to present this, too, as fact.

  1. Consistent with the plan developed at the December 29, 2015, meeting, Ryan Payne, Jon Ritzheimer, Defendant Jason Patrick, Blaine Cooper, Brand Thornton, Walter “Butch” Eaton, and others left Burns as the January 2, 2016, protest march was concluding. They drove in multiple vehicles to the MNWR headquarters compound.
  2. When they arrived at the MNWR headquarters compound, these individuals conducted a military-style sweep of most of the MNWR headquarters buildings to ensure that there were not any MNWR employees present. Most of the individuals who conducted the sweep, including Defendant Jason Patrick, were armed with long guns, including AR-15-type semiautomatic rifles.
  3. After sweeping the buildings, these individuals set up armed blockades at each entrance to the MNWR headquarters compound and placed armed individuals in a fire watchtower near the main entrance to the MNWR headquarters to keep lookout on the surrounding area. Those who staffed the blockades were usually also equipped with radios. By taking over the MNWR in this fashion, the armed occupiers secured the MNWR headquarters compound and controlled who could enter and remain on the premises.
  4. Due to holiday and weekend staffing there were not any employees present at the MNWR when the individuals conducted the sweep, but the MNWR was otherwise open to the public on January 2, 2016. There were, nevertheless, numerous signs around the MNWR headquarters compound that gave notice of the hours during which the MNWR was open to the public, the specified conduct that was permitted and prohibited on the MNWR, and the identified areas that were always closed to the public. Multiple signs clearly stated the MNWR was only open to the public from sunrise to sunset.

Again, the determination of the actual facts, by the first jury trial, are given, contrarily, as “Findings of Fact” in the third (misdemeanor) trial.  How can those statements be facts, in light of the jury’s findings in the first trial?  Judge Brown has presented them as facts, conjecture (accusation in the indictment), that, clearly, the jury did not find convincing.  For the record, there was only one sign, that up on Sodhouse Lane, not “multiple signs”.

  1. At the conclusion of the protest march in Burns, Ammon Bundy announced to the remaining protesters that he and others had decided to continue the protest by taking a “hard stand” and taking over the MNWR, and he invited protesters to join them at the MNWR.
  2. Ammon Bundy and others from the protest proceeded to the MNWR to join those who had earlier swept and secured the MNWR headquarters compound. This conduct began the armed occupation of the MNWR headquarters compound that would last until February 12, 2016.
  3. Between January 2 and January 26, 2016, various occupiers organized armed “security” teams that maintained the armed blockades at the entrances to the MNWR headquarters compound and the armed lookouts in the fire watchtower near the main entrance to the MNWR headquarters compound.
  4. Notwithstanding these armed security measures, the occupiers permitted various individuals to proceed past the blockades at the entrances, to visit the MNWR headquarters area, or to stay and to join the occupation. Most of those individuals who were permitted to enter the MNWR were supporters of the occupiers, but from time to time media representatives and counter-protesters were also permitted to enter the MNWR headquarters compound. Nevertheless, no federal officials, including federal law-enforcement officers, BLM employees, or MNWR employees, entered the MNWR headquarters compound during the occupation.  If any MNWR employee or unsympathetic federal official had sought entry at the entrance to the MNWR headquarters compound during the occupation, it is highly improbable that the occupiers would have permitted them to enter the premises.

Judge Brown’s conjecture that employees would have been denied access, had they sought to go into the MNWR is purely conjecture.  There is absolutely nothing presented, of a factual nature, supportive of this “Finding of Fact”.

  1. During the armed occupation of the MNWR headquarters compound, the occupiers used vehicles and equipment owned by the United States Fish and Wildlife Service (USFWS) that were  ordinarily kept at the MNWR and used by MNWR employees in the  performance of their duties.  The occupiers used the vehicles and equipment both for transportation and to block the entrances to the MNWR headquarters compound.  These vehicles and equipment included construction and maintenance equipment, USFWS-owned trucks, and other vehicles such as all-terrain vehicles.
  2. Throughout the armed occupation Ammon Bundy and others publicly and repeatedly expressed their objections not only to the handling of the Hammonds’ case (“the plight of the Hammonds”) but also their objections to federal land-ownership and land management policies (“federal overreach”). In particular, Ammon and Ryan Bundy publicly and repeatedly stated the MNWR was the type of federal facility that facilitated the federal land ownership and land-management policies to which they strenuously objected and that they wished to overturn.
  3. As part of their objections to “federal overreach” in land-management policies, Ammon Bundy and other occupiers advocated asserting a claim of “adverse possession” on the MNWR to try to redistribute ownership of its land to local landowners.

That is contrary to the established facts.  In Court, it was made clear that the occupiers would transfer the land to Harney County, the state of region, or even a local Committee of Safety that had recently been formed.  It was never intended to go into private ownership.  That would be theft, not adverse possession, as was their stated objective.

  1. As noted, there were numerous signs throughout the MNWR headquarters compound that gave notice of the hours the MNWR was open to the public and of certain marked areas that were always closed to the public. See, e.g., Ex. 61, 91, 126, 165, 440. Although no federal-government official ever served the individuals occupying the MNWR with a notice of trespass or an official demand to leave the MNWR, on several occasions various individuals, including Sheriff Ward, unequivocally communicated to the occupiers via Ammon Bundy and the media that they were not welcome to remain at the MNWR and that they should leave.  In light of the extrajudicial nature of the occupation, service of a formal notice of trespass on those occupying the MNWR would have been a meaningless action and would have created an unreasonable risk of unnecessarily enflaming a volatile situation involving numerous armed individuals.

This is rather interesting.  Both state statutes and the underlying common law require that the trespassing party must be noticed that they are trespassing.  That notice was never served to the occupiers; at best, they were asked to leave.  That request, as opposed to a Demand, is an absolute necessity, and totally within the right and responsibility of the owner of the property.  Risk is not an excuse to avoid the legal responsibility of the property owner, especially when the owner would have had proper recourse through Sheriff Ward, though that would require the Demand, not the request.

  1. Each person who participated in the occupation of the MNWR, including Defendants Patrick, Ehmer, Thorn, and Ryan, knew the MNWR was the property of the United States government and knew they were not authorized to occupy and to exercise control over the property as they did. This fact was not only obvious to any reasonable observer, it was fundamental to the purposes of those who took over and continued to control the MNWR. Indeed, knowing that their actions were not authorized was inherent in the occupiers’ efforts to attempt to assert “adverse possession” over the MNWR and to protest what they described as federal government overreach.

So, we see all of the elements of the crimes alleged in the Group 2 felony jury trial.  This, in an analogical sense, is the crime of murder, as first discussed.  However, so as to have no doubt, we find Judge Brown concluding her “Findings” with, “in the armed occupation of the MNWR“.

  1. Defendants Patrick, Ehmer, Thorn, and Ryan, therefore, each actively participated in the armed occupation of the MNWR.

So, now we know what the crime is, “the armed occupation of the MNWR“.  We even have some of the elements of the crime.  Let’s compare the felony convictions to the misdemeanor convictions of each of these four defendants.

Jason Patrick
Felony: Convicted of conspiracy to impede.

Misdemeanor: Convicted of trespass, tampering with vehicles and equipment and destruction of government property

Jason’s occupation of the MNWR resulted in the Trespass conviction.  As was determined by the jury in the Group 1 trial, the impeding was an effect, not an intent, of the occupation (trespass).  The tampering of vehicles was as simple as driving them around the MNWR, which is their purpose.  In addition, the serious crime of destruction of government property was the act of cutting some barbed-wire fence to facilitate access.  This is a practice quite common in ranching and is almost as easily repaired as it is to cut.

Duane Ehmer
Felony: Convicted of depredation of government property.  [Note: Depredation is defined as “an act of attacking or plundering”.  What they did consisted of digging a short trench in the ground.]

Misdemeanor: Convicted of trespass and tampering with vehicles and equipment.

Duane depredated government property as well as tampered with government property.  However, I have trouble even distinguishing between the two.

Darryl Thorn:
Felony: Convicted of conspiracy to impede and possession of firearms in a federal facility.

Misdemeanor: Convicted of trespass and tampering with vehicles and equipment.

Darryl, as like Jason, was found guilty of impeding, which was an effect, though not an intent, of the occupation (trespass).  He is also convicted of tampering with vehicles, though in his case, unlike Duane, he was not found guilty of depredation.

Jake Ryan
Felony: Convicted of depredation of government property.
Misdemeanor: Convicted of trespass and tampering with vehicles and equipment.

Jake, then is found guilty of depredating government property as well as tampering with government property, just like Duane.  However, as with Duane, I have trouble finding the distinction.

We should also ask, since all were found guilty of trespass, though only two were found guilty of conspiracy to impede, what the distinction is between the two charges, where the trespass resulted in the impeding, but only if the impeding was a result of the trespass?  Boy, that is a difficult one to even begin to grasp.

However, it is clear to see, back to the analogy of murder, that they are also charged with something similar to “unlawful discharge of a firearm within the limits of the city”, but perhaps even littering for leaving the spent brass on the ground.

As I previously asserted, the misdemeanor charges were brought to insure a conviction, should the jury have returned a not guilty verdict, as in the Group 1 trial.  Since the jury verdict came on March 12, and the misdemeanor verdict was delivered on March 21, Judge Brown could have easily dismissed the misdemeanor charges, or at least nolle prossqui (not prosecute) the misdemeanors.

Judge Brown, then, presented as facts that which the Group 1 jury found not to be facts sufficient, if even true, to result in guilty verdicts.

Most often, we would put the prohibition of double jeopardy in the context of one trial followed by a subsequent trial.  However, in this instance, both trials began together.  When the felony portion went to jury, the misdemeanor trial continued in the presence of the Judge.  This was simply a maneuver intended to avoid the appearance of that which  is strictly prohibited.

By not taking the easy way out, her actions have clearly “twice put in jeopardy” the defendants, thereby violating the Fifth Amendment to the Constitution.


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