Jurors hear FBI crisis negotiator’s calls to refuge holdouts

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

Thursday, Sept. 22, 2016 | 2 a.m.

FBI negotiator Marc Maxwell testified Wednesday that he tried to listen to the concerns of the last four holdouts at the Malheur National Wildlife Refuge in late January and early February, establish a rapport and show some empathy with the hope of coaxing them toward a peaceful outcome.

Jurors heard recordings of four calls that the FBI agent had with defendant Jeff Banta, between Jan. 27 and Feb. 4., as Banta, co-defendants David Fry, Sean Anderson and his wife Sandra Anderson huddled in the refuge's west end encampment, which occupiers dubbed "Camp Finicum."

Banta and Fry are among seven people on trial now in federal court, charged with conspiring to impede federal employees of the refuge through intimidation, threats or force during the 41-day takeover of the refuge in Harney County. The Andersons are set for trial in February.

During the calls played in court, Banta did most of the talking with the FBI agent, but every so often, the others spoke up as well.

Maxwell, who has worked eight years for the FBI, remained patient and calm throughout the calls played, listening mostly as Banta told him what they wanted. He called Banta "Jeff" throughout their conversations.

On the first call played, said to have occurred on either Jan. 27 or 28th, Banta tells the agent that they're holding a non-violent protest, but are armed because of their Second Amendment rights.

"What we really want is we want the Hammonds to be released," Banta tells Maxwell, speaking of the Harney County ranchers who returned to federal prison on Jan. 4 to complete a minimum mandatory sentence of five years for arson on federal land.

Maxwell just listens, saying, "Ok, Ok..."

Banta said that he had heard that Ammon Bundy, by then arrested and in custody, had issued a call asking them to stand down.

"We would like Ammon Bundy to come out here, and tell us to stand down," Banta said.

Maxwell said something about texting him the statement.

"Marc, you're our lifeline," Banta tells him. He offered to meet the agent at a roadblock to the refuge if he promised to be on his best behavior.

"I hear your demands," the agent responds. He told Banta that there are agents a little further down the road to meet and speak with him, and encouraged him to "just head on down the road towards Highway 205."

Others can be heard cutting in, questioning how the FBI could be trusted, and asking what they've done "that you're going to murder us."

"It sounds like you're afraid of being murdered," Maxwell says.

"I'm offering you a peaceful resolution and a chance to leave the refuge and go home," Maxwell tells Banta, seated under a makeshift tent. "If you go to the checkpoint, they'll check your IDs and if you don't have any warrants, you've be free to go."

Someone in the group is heard saying their gun isn't registered, and there's "40 rifles to choose from." Another says they know the FBI agents out there are "the elite," and that they know what they're up against. Someone wonders out loud about a parking ticket, and Sandra Anderson objects to any checkpoints.

"I can assure you you're not going to get arrested for a parking ticket," Maxwell says.

Fry interjects at one point, asking if Finicum's shooting was justified.

" I can't answer that," Maxwell says, adding that when the investigation is over, everything will be transparent.

"We don't trust you guys," Fry retorts. "You shot LaVoy Finicum with his hands in the air."

Finicum, police said, was reaching at least twice into his jacket when he was fatally shot by state police after a high-risk stop on U.S. 395 on Jan. 26. A loaded 9mm handgun with a round in the chamber was found in his inner jacket pocket.

But Maxwell didn't attempt to challenge Fry. "I understand you're concerned," he said. "As I said, we want a peaceful resolution."

At some point, Banta asks for a third-party negotiator, "someone I can trust."

"What I need is exactly what I will be able to leave here with," Banta continues, referring to any charges he might face. "Need it in writing."

Banta tells the agent he has to run, but Maxwell keeps him on the line.

"Jeff," Maxwell says, and informs him that he's trying to get the Rev. Franklin Graham to assist in talks, as Banta had requested. The agent says it's "something we can work together on."

Banta tells Maxwell he'll continue to pray for him. Maxwell says he'll call him back the next day around noon.

During a Feb. 3 call played, Maxwell shares with Banta that the FBI had heard some ranchers had been inconvenienced, concerned about some irrigation issues that he knows little about, but that they're worried their land could flood and they'd lose their cattle for a year.

"Something has to be done here soon," Maxwell tells him.

Banta said any ranchers can come onto the refuge property, that they won't hurt them.

Maxwell thanks him for letting him know but says they're concerned about the presence of firearms.

"We are not going to shoot anyone until it comes to that point," Banta says.

Maxwell asks him what that means.

"If you guys come to take us out," Banta responds, adding that's the only time they'll fire.

"Let me reiterate Jeff -- nobody wants anyone to get hurt. That is not our goal," the agent says. "Nobody has any plans to come up there and start shooting."

The next day, Banta is heard thanking Maxwell on the phone for what he's done.

But the call, the FBI agent told jurors, soon took "a dark turn," and was the last meaningful conversation he had with Banta.

Banta talked about taking someone "down."

"I'm not following...I'm concerned Jeff," Maxwell said. "I've enjoyed talking to you."

"I get concerned when you bring something up about Satan," the agent continued.

Banta mentioned something about the agent talking "psychobabble," and he didn't need that.

Maxwell tells Banta that the Rev. Graham is planning to call him back the following morning.

Banta dismisses Graham, saying he doesn't need to talk to him now.

"Are you thinking about killing yourself? Are you thinking about dying?" Maxwell asked.

"It's not suicide. It's not dying. It's dealing with evil," Banta responded. "No, I'm talking about taking this to his doorstep....It's just not that I'm crazy. Just that it's real."

That's where the segment of the call played in court ended.

Maxwell said the FBI reached out to the Rev. Graham, who did end up coming to the refuge on Feb. 11, in a show of good faith.

Banta, after court, told The Oregonian/OregonLive that he believes Satan is in charge of this world, and that he was not suicidal. He said he believes the Clinton Foundation made a deal to sell land for uranium and when he was talking about taking someone down, it was the Clinton Foundation that he'd been referring to during the call with the agent.

Maxwell told jurors he was the main daytime negotiator, and the FBI had an evening negotiator, all part of a team of crisis negotiators. They brought in other people by the end of the 41-day occupation to assist after six weeks of work.

Prosecutors on Thursday plan to call other FBI agents to testify, and introduce a negotiator's conversation with Ammon Bundy, among other evidence.

The negotiator's calls were played in court after prosecutors presented to jurors 11 of defendant Fry's live-streamed videos from his YouTube Channel Defendyourbase.net. The videos captured Fry with a shotgun slung around his shoulder and riding on a refuge ATV through the encampment and talking about "fortifying" their base in case law enforcement raided them. Another video caught the sound of four gunshots fired at an FBI plane flying above, believed to have been done by Sean Anderson, according to court testimony.

On a Jan. 27 video, Banta is heard in the background, saying, "We all know what we signed up for."