An Occupation In Eastern Oregon

Judge Details Malheur Occupation Evidence Allowed At Trial

By Ryan Haas (OPB)
Portland, Oregon Sept. 2, 2016 1:07 a.m.

U.S. District Court Judge Anna Brown says jurors in the refuge occupation trial will hear from federal employees and see a video of a defendant chasing a "squirrel or mini groundhog."


In an extensive ruling issued Thursday, Brown laid out what disputed evidence and testimony would be allowed in the trial of Ammon Bundy and others accused of taking over the Malheur National Wildlife Refuge.

Related: Faces Of The Malheur Refuge Occupation Trial

The trial of Bundy and seven others will begin Sept. 7. Those defendants are all charged with a conspiracy to impede federal workers from doing their jobs.

Among her new rulings, Brown said employees of the refuge would be allowed to testify, as long as their testimony is "limited to evidence about the closure of the MNWR and the reasons for that closure."

"The Court, however, excludes from the government's case-in-chief evidence of the subjective impressions of MNWR employees" not related to the refuge closure, Brown wrote.

Brown's ruling bars people from the community who are not refuge employees from testifying at all about their "fears and impressions" as a result of the 41-day occupation.

The court document also extensively discusses which pieces of evidence may be presented to the jury by the prosecution and the defense.

READ: Browns Full Order On Pretrial Issues 

For example, Brown has decided to allow David Fry — the final occupier to surrender — to present video evidence in support of his argument that he was peaceful at the refuge until Arizona rancher LaVoy Finicum was killed by Oregon State Police Jan. 26.

Fry's evidence includes a video from Jan. 24, in which online viewers observe Fry pursuing a small mammal on the refuge while he tries to determine if it is a squirrel or a groundhog.

Brown said she'd also allow videos from Fry's YouTube channel titled "My Humble Abode," "Reading from the Quran," and "Quick Update."

Brown issued several other orders in the 26-page document.

Adverse Possession

Occupation leader Ammon Bundy has repeatedly stated that one of his intents with the occupation was to turn over the refuge land to local control using a concept known as "adverse possession."

Adverse possession is a common law doctrine that allows land to transfer from one owner to another if a person possesses it for an adequate amount of time.

"Adverse possession is not a legal defense to any of the charges of the Superseding Indictment," Brown ordered Thursday.


She will, however, allow defendants to present evidence related to adverse possession if it specifically addresses their state of mind during the occupation.

Co-Conspirator Statements

Brown made it clear that under the alleged conspiracy, each defendant will be responsible for the statements made by all other defendants both before and during the occupation.

That could be problematic for the defendants because Harney County officials have testified they were threatened by the occupiers in November and December before the occupation began.

Related: Federal Agency Condemns Militants Removing Refuge Fences

"The Court concludes the statements made by Ammon Bundy, Ryan Payne, and other individuals to Sheriff (David) Ward before January 2, 2016 are admissible," the judge said in her written order.

Brown also specifically cited private video recordings made by defendants Jason Patrick and Jason Blomgren; a Jan. 14 press conference by Ammon Bundy; video of Ammon Bundy cutting a rancher's fence; and clips from a Vice News documentary as statements that will apply to all defendants.

However, the judge said statements made after the occupiers were arrested will only apply to the person who made them, "because such statements are not made in furtherance of the alleged conspiracy."

Bunkerville And Finicum Investigation

Brown has decided to limit statements about the 2014 standoff at Cliven Bundy's ranch in Bunkerville, Nevada, during the Oregon trial.

Related: Bundy Family, Supporters Face 16 Federal Felonies For 2014 Standoff

Federal prosecutors will be able to mention that incident — for which several of the defendants face criminal charges in Nevada — but those mentions must be limited to the basic facts of that case.

Similarly, Brown wrote that she will be excluding evidence related to the federal investigation into LaVoy Finicum's death.

During a traffic stop Jan. 26, FBI agents fired their weapons at Finicum and did not initially disclose the shots to investigators.

Defendants in the Malheur case have asked for evidence from that investigation to be admissible, but Brown said she would only allow evidence that further explained the effect Finicum's death had on the occupiers' mindsets.

Santilli As Journalist

Since his arrest, Ohio-based talk show host Pete Santilli has consistently stated that he traveled to Oregon to document the Bundy-led occupation as a journalist.

Brown complicated that argument Thursday.

Related: Case Against Santilli So Far Largely Based On Words

The judge ruled that she would allow video evidence showing Santilli telling a counter-protester that the person had "better not bring a butter knife to a gunfight" because it shows his intention.

Brown also said Santilli will "open the door" to other similar statements being allowed if he tries to tell the court he was at the refuge "merely as a reporter."

Brown said if Santilli made that argument, she would allow the government to present evidence that would show any "rational juror" he was acting as a "co-conspirator and not as a member of the media."