Case 3:16-cr-00051-BR
Document 2021
Filed 03/13/17
Page 1 of 3
Jesse Merrithew, OSB No. 074564 Email: jesse@lmhlegal.com Levi Merrithew Horst PC 610 SW Alder Street, Suite 415 Portland, Oregon 97205 Telephone: (971) 229-1241 Facsimile: (971) 544-7092
UNITED STATES DISTRICT COURT DISTRICT OF OREGON
UNITED STATES OF AMERICA,
Case No.: 3:16-CR-00051-BR-26
Plaintiff, vs.
DEFENDANT’S RESPONSE TO GOVERNMENT’S SUPPLEMENTAL MEMORANDUM
JAKE RYAN, Defendants.
I. Elements the Government Must Prove for Counts Two Through Five The government, for the first time, after the close of evidence, argues that it is not required to prove either the fact that property was the property of the United States or that defendants knew it was. This argument is not timely and should not be entertained by the Court. As the government concedes, both the fact of federal ownership and the defendants’ knowledge of that ownership were included as agreed elements the government must prove when the parties submitted their Joint Status Report on that subject on January 4, 2017. The government fails to mention that, prior to the start of the trial, the Court again asked the parties for their
Page 1 – DEFENDANT’S MEMORANDUM
RESPONSE
TO
GOVERNMENT’S
SUPPLEMENTAL
Case 3:16-cr-00051-BR
Document 2021
Filed 03/13/17
Page 2 of 3
positions on what elements the government must prove for the misdemeanor charges. In a joint email message to the Court, the parties agreed that the elements were as stated in the January 4 Joint Status Report. Based upon that mutual understanding the parties presented their cases and their legal arguments. Now, having failed to prove those elements, the government would like a do-over. The Court should not allow it. The government argues for the statute to be interpreted in a way as to create a strict liability crime. Doing so creates serious due process problems that the defendants would have litigated pre-trial. However, the inclusion of the knowledge and knowledge of unlawfulness elements mitigated defendants’ concerns. With respect to the excavator, not only did the government fail to prove that there were any markings on that vehicle indicating that it was owned by the government, the government also did not introduce any evidence the vehicle was in fact owned by the government. As a result, it failed to introduce sufficient evidence from which any reasonable fact finder could find Mr. Ryan guilty beyond a reasonable doubt. II. Trespass In the government’s view, failing to follow any posted sign anywhere on a national wildlife refuge is a violation of the trespass regulation and therefore a crime. There is no indication in the record that the posting of any signs is subject to any public process whatsoever. Therefore, in the government’s view, it is permissible for the refuge manager to create criminal laws by fiat—the signs themselves have the force of law. The government has spent too much time with Ken Medenbach. The government relies on two theories of trespass: that the defendants violated the entrance sign by being present anywhere on the refuge after dark, and that the defendants’ presence in Page 2 – DEFENDANT’S RESPONSE TO GOVERNMENT’S SUPPLEMENTAL MEMORANDUM
LEVI MERRITHEW HORST PC 610 SW Alder Street, Ste 415 Portland, Oregon 97205
Case 3:16-cr-00051-BR
Document 2021
Filed 03/13/17
Page 3 of 3
certain buildings was not authorized. Nowhere in the regulations do the regulations purport to give anyone the specific authority to set general opening and closing times for the entire refuge. There is a regulation that limits public access to the headquarters’ office to normal business hours, but that regulation does not extend to any other buildings or property. There is no evidence that Jake Ryan ever set foot inside the headquarters’ office, much less that he did so outside of normal business hours. The fact that he did not obey a sign that there is no evidence he ever saw, when that sign’s placement does not reflect a specific regulatory prohibition, cannot subject him to criminal penalties. DATED this 13th day of March, 2017 By: /s Jesse Merrithew Jesse Merrithew, OSB No. 074564 Attorney for Jake Ryan
Page 3 – DEFENDANT’S RESPONSE TO GOVERNMENT’S SUPPLEMENTAL MEMORANDUM
LEVI MERRITHEW HORST PC 610 SW Alder Street, Ste 415 Portland, Oregon 97205