The 9th Circuit Court of Appeals in San Francisco heard oral arguments Thursday related to the defendants accused of conspiring to occupy the Malheur National Wildlife Refuge — and their unique legal situation of facing complicated criminal trials in two states.
Defense attorneys say it’s unconstitutional for defendants to face two separate federal prosecutions in two different districts simultaneously. Seven of the defendants charged with occupying the Oregon wildlife refuge have also been charged in Nevada, related to a 2014 armed standoff between ranchers and government employees.
But federal prosecutors believe the case is moot.
The ruling from the 9th Circuit matters because it would govern how the district courts in Nevada and Oregon handle future writs.
In April, the seven defendants facing charges in both states were sent to Nevada to be arraigned on charges there. Defense attorneys asked the 9th Circuit to intervene and stop the transfer.
Rich Frederico, a public defender in Portland who is representing Ryan Payne in the Oregon case, argued on behalf of five of the defendants who remain in pretrial custody. He said the case is unlawful and not moot, because although the circumstances that prompted it are over, the defendants still face multiple charges in two states.
“The federal government has brought simultaneous prosecutions of complex cases in two districts that really has literally has almost forced Mr. Payne to have the need to be in two places at the same time,” Fredercio told the court.
Appeals Court Justices Mary Schroeder, Wallace Tashima and John Owens heard the arguments.
Owens noted that during his career as a prosecutor, he worked cases where defendants faced multiple prosecutions.
“So I’m not sure this is as unprecedented as you suggest,” he said.
Frederico agreed that it’s common for multiple prosecutions between states and federal jurisdiction.
“But we couldn’t find any case in any jurisdiction when you had two federal districts where it was occurring at the same time when the government had said they intend to prosecute quote ‘on parallel tracks,’” he told Owens.
Since the transport of the defendants to Nevada has already occurred, Judge Mary Schroeder asked Frederico what he wanted the court to review. Frederico said there’s no guarantee the defendants won’t be transferred again.
“Even though the initial order happened and the 13-day transport did occur, the two cases are still being prosecuted that have trial schedules that overlap,” he said.
Frederico told the judges the complexity of the case makes it difficult for both defendants and attorneys to work with clients in two different districts, especially given that five of the defendants are in custody.
Judge Tashima said neither the complexity of the case, the amount of evidence nor the distance between the two districts matter.
“There are lots of times, especially in complex cases, criminal defendants hire lawyers from across the country,” Tashima said.
But Frederico pushed back, arguing that the amount of evidence and the complexity of the cases do matter.
“For every day and minute that the client is spending with council in Nevada, that detracts from my ability to consult with a client who’s going to trial in September,” he told the justices.
The Oregon trial is set to begin Sept. 7 in Oregon. But as Frederico said, all pretrial motions are due in the Nevada case in October.
“So while Mr. Payne is sitting in Portland in a courtroom for a trial that may last months, he’s at the same time supposed to be consulting with his counsel (in Nevada),” Frederico said.
Related: An Occupation In Eastern Oregon
The government argued that the case irrelevant since the defendants have already been sent to Nevada and returned to Oregon. U.S. District Court Judge Anna Brown, the trial judge in the Oregon case, “limited it to one transfer,” said Charles Gorder, an assistant U.S. attorney in Oregon.
“Twelve days, and they’re back in Oregon, and frankly it’s over,” he said.
Judges Tashima and Schroeder wanted certainty that such transfers won't happen again.
“We have talked to (the U.S. Attorney’s office in Nevada) and we do not expect it to happen again before our trial in September,” Gorder told them. "... This is moot. The transfers happened. It’s over.”
Gorder said it is unlikely but not impossible that the defendants will be summoned to Nevada again.
Prosecutors in Nevada “can wait until after our trial,” Gorder said “We’ve committed that this case, meaning the Oregon case, is going first, and there’s nothing to prevent the District Judge in Nevada from handling the matter after our trial.”
Frederico responded that if the court can provide any relief at all, the issue is not moot.
The Appeals Court could rule in a matter of weeks.