Oregon standoff defendant files motion to dismiss indictment

By Maxine Bernstein, The Oregonian, Portland, Ore. (TNS)

Wednesday, Dec. 7, 2016 | 2 a.m.

Jason Patrick, one of seven Oregon standoff defendants awaiting trial in February, is urging the court to dismiss the pending indictment, arguing that federal officials' publicly expressed disappointment after the acquittal of his co-defendants will taint his right to a fair trial.

Patrick, who has chosen to represent himself, on Tuesday filed a motion to dismiss the indictment that charges him with federal conspiracy to prevent employees from the U.S. Fish and Wildlife Service and federal Bureau of Land Management from carrying out their work through intimidation, threat or force.

The indictment stems from the 41-day occupation of the Malheur National Wildlife Refuge between Jan. 2 and Feb. 11. Occupation leaders Ammon Bundy, his brother Ryan Bundy and five others were found not guilty of federal conspiracy and weapons charges in connection with the refuge takeover after a five-week trial that ended in late October.

Patrick cited statements that Oregon's U.S. Attorney Billy Williams, FBI Special Agent Greg Bretzing and U.S. Secretary of the Interior Sally Jewell made in the wake of the Bundy acquittals on Oct. 27. Williams, in a prepared statement, said prosecutors had hoped for a different outcome but respected the verdict. Bretzing, also in a prepared statement, said he was "extremely disappointed," but respected the role of the jury. Jewell posted in a Twitter message that she was "deeply disappointed."

"Knowing full well that a second group of these defendants would soon be facing their own trial, the prosecution and its agents cavalierly made public statements disparaging the prior verdict. Their 'disappointment' is nothing less than a thinly veiled accusation that the first jury came, either through conscious desire or unfortunate mistake, to the incorrect conclusion," Patrick's motion said. "These public expressions of disagreement with the verdict serve no legitimate prosecutorial purpose and can only serve to infect any future jury pool with the belief that the first jury erred in its determination that the government had utterly failed to prove its case beyond a reasonable doubt."

Patrick's filing comes as Patrick and six other co-defendants await a signal from federal prosecutors on whether they intend to go forward with a trial in February, and on what charges.

Prosecutors have until Monday to report back to U.S. District Judge Anna J. Brown on how they plan to proceed.

Because of the highly-publicized acquittals of the co-defendants in October and federal officials' reactions, Patrick calls for his indictment to be thrown out.

"The official statements of disappointment were made and extensively reported and commented upon in both social and traditional media. Dismissal of the indictment as either a remedy for the Sixth Amendment violation or as an exercise of the court's supervisory powers is now appropriate," his motion said.

Patrick also urged the court to throw out the indictment because federal prosecutors already litigated the federal conspiracy charge in the first trial and lost.

"Those acquitted included the self-professed leaders of the protest Ammon and Ryan Bundy," Patrick's motion said. "A second trial would be nothing more than the government seeking a second, vindictive bite at the apple in the hopes that a second jury might come, for whatever reason, to a different conclusion that jury number one. Hardly the respect for the verdict that the AUSA (assistant U.S. attorney) espoused only weeks ago."

Patrick's motion questioned why the federal government would proceed to prosecute people who played a more minor role in the occupation, when the federal conspiracy charge didn't stick against its leaders.

"What is the point to be served in prosecuting demonstrably less culpable defendants on the very same evidence that resulted in the acquittals of not only their alleged leaders, but of other defendants similarly situated?" it asked.

Before filing his motion, Patrick and his standby lawyer Andrew Kohlmetz conferred with the assistant U.S. attorneys in the case. They object to the motion, Patrick noted.

The indictment initially charged 26 people with federal conspiracy stemming from the seizure of the refuge. Eleven people pleaded guilty, although two are seeking to withdraw their pleas. Seven went to trial this fall and were found not guilty. Seven more are set for trial in February. The government dismissed the charge against another, Pete Santilli.