Judge dismisses key gun charge against armed occupiers in Oregon standoff

by WorldTribune Staff, June 12, 2016

The defense of Ammon Bundy and seven co-defendants in the Malheur National Wildlife Refuge standoff won a key victory on June 10 when a U.S. District Judge dismissed a key gun charge in the case.

Judge Anna J. Brown dismissed Count 3 of the federal indictment, declaring that the underlying conspiracy charge doesn’t meet the legal definition of a “crime of violence.”

Ammon Bundy talks to the media at the Malheur National Wildlife Refuge near Burns, Oregon, on Jan. 8, 2016. /Reuters/Jim Urquhart
Ammon Bundy talks to the media at the Malheur National Wildlife Refuge on Jan. 8, 2016. /Reuters/Jim Urquhart

Related: U.S. sidelined judge who ruled for key rancher against Feds, rejected same-sex marriage, April 20, 2016

In addition to Ammon Bundy, the other defendants charged with Count 3 were Bundy’s older brother, Ryan Bundy, David Fry, Jon Ritzheimer, Ryan Payne, Brian Cavalier, Jason Patrick and Sean Anderson.

Co-defendant Corey Lequieu has already accepted a negotiated deal, pleading guilty to the conspiracy charge last month with the understanding that the other charges, including Count 3, would be dismissed against him at his August sentencing.

Related: Lack of outrage noted as Western rancher shot down by Feds, Feb. 4, 2016

According to a report by OregonLive.com, Count 3 would have carried a mandatory minimum sentence of five years in prison, and a maximum sentence of life. If a defendant had been convicted for using and carrying a firearm in the course of a violent crime, the sentence would have to run consecutive to sentences imposed on any other counts.

Brown’s ruling found that the “umbrella charge of conspiring to impede federal officers from doing their work at the refuge through ‘intimidation, threats or force’ doesn’t necessarily mean that the conspiracy must involve the ‘threatened use of physical force’ against a person or property.”

The judge noted that the word “intimidation” could apply to “threats of nonviolent harm to property.”

Related: Family of eyewitness to shooting of Nevada rancher LaVoy Finicum evicted from home, May 5, 2016

Further, a “threat” under the conspiracy allegation could involve the blackmailing of a federal officer to prevent the federal officer from doing his or her federal duties – a threat that doesn’t necessarily require “threatened use of physical force,” the judge wrote.

So, if the underlying conspiracy charge isn’t restricted to a “crime of violence” but encompasses a “broader swath” of conduct, then the count that charged eight refuge occupiers with using or carrying firearms in the course of “a crime of violence” should be thrown out, the judge ruled.

Defense lawyer Per C. Olson had argued that the government wrongly applied a definition of “intimidation” from a federal bank robbery charge to the conspiracy charge. He argued that prosecutors can’t “lift a definition” from another statute and “shoehorn it” into this charge without any case law to base it on, OregonLive.com reported.

“With regard to those defendants who were charged in Count 3, this ruling greatly reduces their overall exposure to prison in the event of convictions,” Olson said.

A trial is set for Sept. 7.

Assistant U.S. Attorney Ethan Knight had argued that “the conspiracy very much represented a violent crime and should be left up to a jury to decide, perhaps with a special jury instruction, asking whether jurors believe there was a threat of violence or physical force involved in the conspiracy alleged,” the report said.