Federal conspiracy case against Ammon Bundy, six co-defendants heads to jurors

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

Thursday, Oct. 20, 2016 | 2 a.m.

Jurors in the federal conspiracy trial against Ammon Bundy and six co-defendants will begin deliberating Thursday morning after hearing five weeks of testimony, two days of closing arguments and a prosecutor's attempt to undercut the defenses of the accused in a final rebuttal.

Defense lawyers over the past two days argued that the occupiers of the Malheur National Wildlife Refuge never thought about employees of the U.S. Fish & Wildlife Service or the U.S. Bureau of Land Management, let alone made a coordinated plan to prevent them from doing their work during the 41-day takeover.

They characterized the occupation as a peaceful demonstration or a "symbolic act" intended to get the attention of government officials who had repeatedly ignored their "Redress of Grievance" and other concerns about the return to prison of Harney County ranchers Dwight Hammond Jr. and son Steven Hammond and the general plight of local ranchers.

Attorneys for defendants David Fry and Jeff Banta further argued that their clients didn't even know the leaders of the refuge takeover and couldn't have entered into any agreement or alleged conspiracy.

Several defense lawyers also tried to raise doubts in jurors' minds by questioning what roles the six unidentified FBI informants who were at the refuge may have played.

Attorney Robert Salisbury, representing Banta, suggested the government chose who to charge like a "game of darts," pointing out that dozens of other occupiers who played significant roles during the takeover — whether they were among the first to arrive, part of the armed guard or participated in military-style squads — were never arrested.

Lawyer Matthew Schindler, standby counsel for defendant Kenneth Medenbach, said the FBI's hands-off approach during the first several weeks of the occupation — allowing defendants to travel freely to and from the refuge — only "reinforced their belief what they did was legitimate."

But Assistant U.S. Attorney Craig Gabriel responded that what occurred at the federal bird sanctuary outside Burns in Harney County wasn't a simple protest and that the occupiers knew exactly what they were doing.

"This was not a redress. This was retaliation and it was retribution for what refuge workers and BLM workers had done to the Hammonds," Gabriel told jurors. He reminded them that both Hammonds were convicted of setting fire to Bureau of Land Management land and Steven Hammond was sent to federal prison also for setting fire to land within the Malheur refuge.

"The Hammonds were the motive for committing this crime," Gabriel continued. "The refuge was not a coincidence."

Gabriel argued that the case isn't about the FBI, nor is it about informants. It's about the defendants relying on heavily armed guards posted at the refuge's front and back gates and watchtower to keep federal employees out and allow the occupiers to make their "hard stand."

The government doesn't have to prove each defendant separately intimidated or threatened any federal employee but that their actions were "all done behind armed guards with the benefit of that intimidation."

"This was a dangerous and armed standoff," Gabriel said. "You saw the defiance."

He referred to occupation spokesman Robert "LaVoy" Finicum's reaction to the police stop on Jan. 26 and defendant Shawna Cox's direction that Finicum "gun it" to race away from authorities on a rural highway. Finicum said they were on their way to see Grant County Sheriff Glenn Palmer at a community meeting in John Day. Police shot and killed Finicum after he emerged from his truck at a roadblock and reached into his jacket at least three times, where he had a loaded 9mm handgun, police said.

Gabriel argued that it wouldn't have been prudent for FBI agents to have descended on the refuge's front gate and ask those standing guard to leave.

"The FBI was trying to avoid another Bunkerville," he said, referring to the 2014 armed standoff between protesters and federal agents outside rancher Cliven Bundy's ranch near Bunkerville, Nevada. Cliven Bundy is the father of Ammon Bundy and Ryan Bundy, both defendants in the refuge takeover case.

Closing arguments: David Fry

How the Oregon standoff ended — with a Japanese American man from Ohio holed up in a shelter at the edge of the refuge with a gun to his head in the midst of a mental health crisis — was almost as improbable as the charge leveled against that man, David Fry, his lawyer argued.

"To call it a conspiracy is simply a very poor and inaccurate way of describing what went on here," defense lawyer Per C. Olson said as Fry sat slightly behind him to the right.

Fry didn't even know Fish & Wildlife employees ran the refuge, Olson said. Thoughts of waylaying federal workers "didn't even enter the picture" for Fry, Olson said. For the government to suggest that "really stretches reality," he argued.

Fry drove from his home in Blanchester, Ohio, and arrived at the refuge in early January. It was his first protest and he believed the refuge was an abandoned federal property "way out in the middle of nowhere," Olson said.

Once he got there, Fry realized there were offices that likely belonged to people but he was told they were on their New Year's vacation, Olson said. Later, Fry learned that refuge staff members were told not to come to work, but he considered the occupation an "MLK-type sit-in" and wasn't interested in any violence, the lawyer said.

Cox's defense lawyer cautioned jurors not to infer, as the government wants them to, that the occupiers' intent was to keep workers away from the refuge simply because their supervisors at the Fish & Wildlife Service and U.S. Bureau of Land Management told them not to report to work.

Fry's lawyer also urged jurors to carefully consider the wording of the jury instructions about what prosecutors must prove to reach a guilty verdict on the conspiracy charge.

Merely associating or helping an alleged conspirator isn't enough to prove the crime. The government must prove that a defendant became a member of the conspiracy knowing its object and "specifically intending" to further that object — preventing workers through force, intimidation or threat from carrying out their official duties. "Specifically intending" is defined in the instructions as having "purpose or conscious desire" to further the conspiracy's objective.

Olson argued that before police fatally shot Finicum at a roadblock on Jan. 26, Fry wasn't involved in any conspiracy and wasn't even on the federal government's radar. Fry kept to himself and helped people with their computers, but there was no evidence he supported or furthered any effort to block employees from accessing the property, Olson said.

Gabriel later countered that Fry was at the refuge for the longest periods of time, from Jan. 8 through Feb. 11, and had been seen on video rummaging through Native American artifacts in a basement office with Finicum.

On Tuesday, Assistant U.S. Attorney Ethan Knight identified Fry as the "media IT person" who helped get the occupation message out to the world and was pictured carrying a gun in a refuge building. He accused defendant Jeff Banta of conspiring with Fry to remain at the refuge for two more weeks after the leaders or organizers were arrested Jan. 26.

After Finicum's shooting, Fry was filled with paranoia that the FBI was going to come in and attack the remaining occupiers and he, Banta and two others packed up their belongings and took them to a west end encampment, his lawyer said.

By then, the occupation was over, Olson argued. "That's why they separated themselves from the buildings," he said.

Fry, in a sense, was "caught behind enemy lines," and he thought his worst fears had come true, that his friend Finicum had been "murdered" in a barbaric manner, based partly on having seen a clip of singer Victoria Sharp's account of the shooting while he was still at the refuge, Olson said. Sharp had been riding in the back seat of Finicum's truck when the shooting occurred. Finicum had sped off from a police stop and reached into his jacket when he got out of his truck at the roadblock on U.S. 395. Investigators said Finicum had a loaded pistol in a jacket pocket.

At the encampment, Fry dissolved into a man of great distress, despair and isolation, his lawyer said. Suffering from a schizotypal personality disorder, the stress only ratcheted up his suspiciousness and he picked up a firearm in self-defense at that point, Olson said.

"Did Mr. Fry stake claim to the west encampment of the RV park to prevent Fish & Wildlife employees from coming back to the refuge?" Olson asked, incredulously. "It's a question that really answers itself."

Ultimately, an FBI agent persuaded Fry to surrender, the last holdout at the refuge. He emerged after the agent assured Fry he wouldn't fall victim to a sexual assault in custody as he greatly feared, trial testimony showed.

"Mr. Fry wasn't ready to die yet. In that moment, trust prevailed," Olson said. "Mr. Fry has many things he needs to work on."

But what's clear, Olson said, is that Friday didn't join a conspiracy. "He's simply not a man of intimidation and threats," the lawyer said. "That's not who he is. That's not what he did."

When it was Ryan Bundy's turn to address the jurors, he approached the lectern, and removed his black suit jacket, stuffing it on a shelf inside the lectern. He nodded to the jurors as they entered the courtroom and spoke calmly, reading from a prepared script.

He said he and other occupiers regretted "any unintentional inconveniences we may have caused" at the refuge.

Bundy told jurors they may not share his beliefs or background, but they do share his respect for the "legal tradition" and the importance of having a jury of peers decide his fate.

He said the "unjust circumstances" surrounding the return to federal prison in January of the Hammonds coupled with the chronic federal mismanagement of public lands "necessitated that someone stand up and engage in a nonviolent, direct protest."

Until the defendants took over the refuge, no one listened to their concerns, he said.

"We were protesting because we couldn't get them to do their duty," Bundy said. He called it ironic that he's now accused of conspiring to prevent federal workers from carrying out their duties.

Quoting civil rights activist Martin Luther King Jr., Bundy reminded jurors that "injustice anywhere is a threat to justice everywhere." He said the government spun "a tale of offense and horror," but the "fair-minded men and women" who visited the refuge during the occupation realized it was a peaceful, safe place to exchange ideas.

He tried to read and show a slide of a portion of the U.S. Constitution, but the judge stopped him.

Bundy argued that he gave no thought to whose desks he was occupying. "We didn't know whose seat we were sitting in, nor did we care," he said. "That may seem callous. Maybe it was."

If anything, he said, "all of us" regret "any unintentional inconveniences we may have caused."

He disputed that the removal of FBI surveillance cameras from a utility pole was theft. It was done, he said, to end the improper spying on the American people and occupiers publicly offered to return the cameras to the FBI and then placed them in a wicker basket for safekeeping.

Tapping his right fist against his heart, Bundy said he was proud to stand with his fellow defendants "who felt in their heart" that they need to stand for freedom and liberty.

"I ask you to stand with us. Stand for freedom," he told jurors. "I ask you to enter a verdict of not guilty for all of us, not just for me."

A day earlier, prosecutor Knight said Ryan Bundy, occupation leader Ammon Bundy's older brother, was "virtually everywhere at critical junctures" of the occupation. He accompanied co-defendant Kenneth Medenbach when he drilled "Closed Permanently" signs into the door of the Hines office of the Bureau of Land Management.

Ryan Bundy operated large refuge machinery when fellow defendants helped cut a portion of the refuge fence Jan. 11 and he aided and abetted in the removal of FBI cameras from the utility Jan. 15, Knight said.

Shawna Cox's standby lawyer contended that the refuge seizure was a "symbolic act" at a public place in a county profoundly affected by federal control of 75 percent of its land.

Shawna Cox, prosecutors argued, also was a leader. When arrested Jan. 26, she was carrying a two thumb drives that contained more than 5,000 documents stolen from the refuge, Gabriel said. Prosecutors had played an audio interview that Cox gave in March after her arrest when she said she was at the refuge gathering records on the Hammonds' case. In his closing, Assistant U.S. Attorney Ethan Knight also pointed to the videotape that jurors had seen of Cox's arrest Jan. 26, when she yelled to occupation spokesman Robert "LaVoy" Finicum to "gun it" and speed off from state police.

Cox's lawyer, Tiffany Harris, said her client would have been charged with theft of government property if prosecutors had any evidence to support such an allegation, but they don't. She said the government's account of outsiders coming into Harney County to spread problems is an inaccurate portrayal of what happened.

"The problem was already there," Harris said. Ammon Bundy and his supporters just shined light on it.

She said Cox, a 60-year-old woman who comes from three generations of ranchers, was in Burns to support the Hammonds. She argued that "it doesn't seem so crazy" or " reckless" to believe that Cox and others felt they "could do a little more" after marching through Burns and leaving flowers at the Hammond ranch.

Harris pointed out that many other occupiers were never charged, particularly people who lent their support from Harney County, and urged jurors to question why.

While the government labeled Cox as a leader, Harris said she was really a "volunteer" who took notes and acted as an administrative assistant with no intent to stand in the way of federal employees at the refuge. She was never involved in any military training or squad set up at the refuge, she said.

She pointed out the property is public space and argued that the occupiers' use of the refuge buildings was a "symbolic act."

The desk where Cox may have sat doesn't actually belong to the refuge employee, "it belongs to all of us," Harris said.

Harris ended by drumming in the message that Ammon Bundy's lawyer Marcus Mumford had presented to jurors Tuesday. She urged them not to fall for the government's "dangerous game" of inferring that the intent of occupiers was to keep employees off the property simply because of the result, which came from their supervisors' own decisions.

"Hold the government to its burden and insist, make them prove the charge that they have," Harris said.

Banta didn't know any of the other occupiers when he arrived at the refuge, his lawyer said. After Finicum's death, he stayed out of fear of being killed. He questioned why the government never told the truth about "Fabulous Fabio," referring to the government informant that the defense unmasked, Fabio Minaggio, who arrived Jan. 23 at the refuge and oversaw the shooting range, lawyers said.

Medenbach's lawyer Matthew Schindler admitted his client vandalized refuge signs and took a U.S. Fish and Wildlife truck from the refuge into town. But he said his client always was cordial, didn't make any threats and was at the refuge in a civil disobedience stance to protest federal control of public land.

Showing a photo of the "Closed Permanently" sign that Medenbach placed on the roadside Bureau of Land Management sign, Schindler asked, "You scared?"

Wampler's defense lawyer Lisa Maxfield said her client was the assistant cook at the refuge, and pointed out the lead cook was never arrested or charge. She said he brought no guns, and the emails he sent to Sheriff Dave Ward were mailed before the refuge was even occupied.

"Mr. Wampler is being prosecuted because he has a big mouth," Maxfield argued.

Gabriel responded, "He cooked for the guards. He cooked for the leadership. He was in the conspiracy."