Case 3:16-cr-00051-BR
Document 2023
Filed 03/13/17
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MICHELE L. KOHLER MICHELE L. KOHLER, P.C. 205 SE Spokane Street, Suite 300 Portland, Oregon 97202 [503] 219-9300 [503] 345-9622 michele.kohler@comcast.net OSB #94359 Attorney for Defendant Duane Leo Ehmer
UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION
UNITED STATES OF AMERICA, Plaintiff,
v.
No. 3:16-CR-00051-10-BR SUPPLEMENTAL REPLY MEMORANDUM OF LAW REGARDING MISDEMEANOR TRIAL
DUANE LEO EHMER, Defendant.
Defendant, Duane Leo Ehmer, through his attorney, Michele L. Kohler, submits this supplemental reply memorandum regarding misdemeanor trial held on March 8, 2017. The Court directed the government to file a supplemental memorandum of law following the trial to address two issues: 1) the legal standard of proof beyond reasonable doubt if the court were to find that Mr. Thorn was operating a vehicle different than pled in the Information, and 2) the scope of behavior prescribed and Page 1 - SUPPLEMENTAL REPLY MEMORANDUM OF LAW REGARDING MISDEMEANOR TRIAL
M ichele L. Kohler, P.C Attorney at Law . 205 SE Spokane Street, Ste. 300 Portland O R 97202 (503) 219-9300
Case 3:16-cr-00051-BR
Document 2023
Filed 03/13/17
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proscribed by Title 50, Code of Federal Regulations, part 26, Subpart C, as raised by the defense. A brief procedural background recitation is necessary in light of the arguments advanced by the government in their Supplemental Memorandum Regarding Misdemeanor Trial. BACKGROUND The government filed an Information charging the seven remaining defendants with various misdemeanor offenses, which were identified as Class B misdemeanors on the face of the pleading, on December 19, 2016, more than nine months after the filing of a Superseding Indictment against twenty-six (26) defendants. Count 1, Trespassing, was pled as a violation of 50 C.F.R. §§ 26.21(a) and 28.31; 16 U.S.C. § 460k-3. The Court ordered the defendants to “file any motions that specifically relate to the charges in the Misdemeanor Information . . . no later than January 13, 2017. Dkt. No. 1663. A status conference was held in the matter on January 6, 2017. The Court ordered the parties to file a Joint Status Report by January 13, 2017 which set forth “their positions regarding the right to a jury trial on the Class B misdemeanors charges contained in the Misdemeanor Information (#1628), as well as their recommendations as to the appropriate trial procedure to follow in the event that the Court concludes the Defendants do not have a right to a trial by jury on those charges.” Dkt. No. 1687. Defendants filed a motion to dismiss Count 1, Trespass as unconstitutionally vague and the Memorandum of Law in support thereof on January 13, 2017. Dkt. No
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M ichele L. Kohler, P.C Attorney at Law . 205 SE Spokane Street, Ste. 300 Portland O R 97202 (503) 219-9300
Case 3:16-cr-00051-BR
Document 2023
Filed 03/13/17
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1705 and 1706 respectively. The defendants specifically raised in the motion to dismiss for failure to provide notice and vagueness issue of the Trespass Regulation that proscribed all entry on a wildlife refuge, 50 C.F.R. § 26.21(a), unless prescribed in Subpart C. The defendants in a separate filing on the same date asserted that the “knowing” mens rea pled in the Information for each of the misdemeanors elevated the offenses from a Class B misdemeanor to a Class A misdemeanor pursuant to 16 U.S.C. § 668dd(f)(1). Dkt. No. 1717. The Court directed the parties to file a Joint Status Report on January 18, 2017, (#1738), setting forth their legal authority for their respective positions. The Court heard argument on January 20, 2017. The Court thereafter took the matter under advisement and issued an Order (#1774) denying both Motion to Dismiss Count 1 and under a separate Order finding the misdemeanors to be Class B misdemeanors and denying the defendants a jury trial on the Information. Dkt. No 1775. The Court specifically noted in Footnote 1, the parties’ joint submission of proposed jury instructions for Trespass which set forth the “knowingly” mens rea as pled in the Information. The Court stated that it “will entertain additional argument in due course as to the particular mens rea element that the government must prove as to this charge.” Dkt No. 1774, fn 1. The Court addressed the parties during Pretrial Conference on February 8, 2017, that the misdemeanor trial would be to the bench when the jury began its deliberation and that the parties should be prepared with their witnesses to address the elements of the
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M ichele L. Kohler, P.C Attorney at Law . 205 SE Spokane Street, Ste. 300 Portland O R 97202 (503) 219-9300
Case 3:16-cr-00051-BR
Document 2023
Filed 03/13/17
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offense that were not presented during the trial on the felony offenses. The misdemeanor trial began on March 8, 2017. The government submitted to the Court a chart which the government had crafted which summarized for each count as pled in the Information, the offense, the defendants charged, the elements with the “knowingly” mens rea as applicable, and finally the evidence the government relied upon from the felony trial as well as it’s intended exhibits to be proffered in the misdemeanor trial. The government thereafter called one witness and offered three evidentiary exhibits. There were two issues raised in the misdemeanor trial by the defendants for which the Court directed the government to file a supplemental memorandum of law: 1) the legal standard of proof beyond reasonable doubt if the court were to find th Mr. Thorn was operating a vehicle different than pled in the Information; and 2) the scope of behavior prescribed and proscribed by Title 50, Code of Federal Regulations, part 26, Subpart C, as raised by the defense. The government filed the Memorandum of Law on March 10, 2017. The government used the Court ordered Memorandum of Law to argue that the “knowingly” mens rea is not applicable to any misdemeanor offense before this Court before addressing the issues that the Court requested. The government’s argument is contrary to the government-drafted Information in which each of the seven offenses were pled with the “knowingly” mens rea, the jointly submitted jury instructions of the parties to the Court which contained the “knowingly” mens rea, as well as a chart crafted by the
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M ichele L. Kohler, P.C Attorney at Law . 205 SE Spokane Street, Ste. 300 Portland O R 97202 (503) 219-9300
Case 3:16-cr-00051-BR
Document 2023
Filed 03/13/17
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government and submitted to the Court on March 8, 2017, as as “Opening Statement” of sorts which laid out each count of the Information, the defendants charged, the elements for each offense, specifically identifying the “knowingly” mens rea and the evidence through exhibit or testimony that the government relied upon to prove the elements of each offense. Exhibit A, hereto attached. ARGUMENT I.
Statute Analysis Government charged trespass under part 26 of Title 50 of the Code of Federal
Regulations. 50 C.F.R. § 26.21 General trespass provision, states: (a) No person shall trespass, including but not limited to entering, occupying, using, or being upon, any national wildlife refuge, except as specifically authorized in this subchapter C or in other applicable Federal regulations. Subchapter C does not provide for any specific authorization for the Malheur National Wildlife Refuge for any public use at any time. There is not even a generalized authority for people to enter to spot wildlife. Therefore, the defendant could not be put on notice of what is permissible and what behaviors are not permitted. The government has failed to submit evidence to the Court 1) that Mr. Ehmer entered in a location at the Malheur National Wildlife Refuge that was prohibited by the public; 2) that Mr. Ehmer knew that his presence at the Malheur National Wildlife Refuge during the daylight hours was proscribed; 3) that Mr. Ehmer was on the Malheur National Wildlife Refuge in a location prohibited by regulations after sunset.
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M ichele L. Kohler, P.C Attorney at Law . 205 SE Spokane Street, Ste. 300 Portland O R 97202 (503) 219-9300
Case 3:16-cr-00051-BR
Document 2023
Filed 03/13/17
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There are two items of evidence received by the Court of Mr. Ehmer’s presence at the Refuge after sunset. Exhibit 1273 - video by Mr. Bethell evening of January 26, 2016, and Exhibit 34, images from Facebook. Each of the exhibits reference his presence at a gate to the Malheur National Wildlife Refuge. However, the government did not establish that Mr. Ehmer was on the Refuge or merely at the gate to the refuge, or more specifically, which side of the gate. Mr. Bethell testified that his camper was parked at the front gate. It is not a violation of the offense to simply be at the gate and not enter the premises after sunset. The record before the Court is insufficient to establish beyond a reasonable doubt that Mr. Ehmer knowingly trespassed at the Malheur National Wildlife Refuge. II.
Information A.
Federal Rule of Criminal Procedure 7(c)(1)
The Rule requires that the Information be in plain and concise language with a “statement of the essential facts constituting the offense charged.” B.
Amending the Information - FRCrP 7(e)
In Muncy v. United States, 289 F. 780, 781 (4th Cir. 1923), the court held “we need only observe that it is too well settled to require citation of authority that an information unlike an indictment, may be amended by leave of court, even after motion to quash, demurrer or plea.” Emphasis added. The Court may permit an information to be amended at any time before the verdict or finding, unless a substantial right of the defendant is prejudiced. No amendment of the information will be permitted if the
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M ichele L. Kohler, P.C Attorney at Law . 205 SE Spokane Street, Ste. 300 Portland O R 97202 (503) 219-9300
Case 3:16-cr-00051-BR
Document 2023
Filed 03/13/17
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substantial rights of the defendant are thereby prejudiced. United States v. Averall, 296 F.Supp 1004, 1015 (E.D.N.Y. 1969). C.
Prejudice to defendants
A defendant is prejudiced when a charging document is amended in a manner which alters the essential nature of the charge, rather than correcting a technical defect. Carney v. United States, 163 F.2d 784 (9th Cir.), cert. denied, 332 U.S. 824, 68 S.Ct. 165, 92 L.Ed. 400 (1947). The government’s argument in memorandum of law is an indirect effort to strike the mens rea from the Information without filing a Motion to Amend. The government has thrice submitted that the “knowingly” mens rea applies to all misdemeanor offenses: 1) as pled in the Information; 2) in the submitted jury instruction to the court, after conferral with the defendants, and 3) the summarized chart of offenses submitted at the misdemeanor bench trial. The government now acknowledges that their evidence falls short of the necessary proof of the offenses they have charged the defendants with and seeks in an indirect manner to have the Court hold them to a lesser standard by arguing that the mens rea pled does not apply to the essential elements of the offense. Removal of the mens rea element after the close of the evidence, particularly where the government failed to present sufficient evidence, despite the repeated prompts of the Court, would violate Mr. Ehmer’s Due Process under the Sixth Amendment requirement that an accused be informed of the nature and cause of the accusation.
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M ichele L. Kohler, P.C Attorney at Law . 205 SE Spokane Street, Ste. 300 Portland O R 97202 (503) 219-9300
Case 3:16-cr-00051-BR
Document 2023
Filed 03/13/17
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The defendants entire defense rested on the lack of evidence to prove beyond reasonable doubt that as to each defendant they “knowingly� committed the offenses alleged. Removal of the mens rea is not a variance which does not affect the substantial rights or an error, defect. It is the essential aspect of each element of the offense. CONCLUSION For the above stated reasons the Court should find the government has failed to submit sufficient evidence from which the Court could find beyond a reasonable doubt that Mr. Ehmer knowingly entered the Malheur National Wildlife Refuge at a time or place that he was not authorized to do so. The government has also failed to submit sufficient evidence from which the Court could find beyond a reasonable doubt that he entered, started or used an excavator knowing that it was property of the government and that he knew he was not authorized to do so. Finally, the government has failed to submit sufficient evidence beyond a reasonable doubt that Mr. Ehmer knew he removed public property, knowing he did not have a right to do so. Mr. Ehmer respectfully requests the Court to enter verdicts of Not Guilty on all three offenses alleged in the Information. DATED this13 th day of March, 2017. Respectfully submitted, /s/ Michele L. Kohler MICHELE L. KOHLER, OSB No. 94359 Attorney for Duane Leo Ehmer.
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M ichele L. Kohler, P.C Attorney at Law . 205 SE Spokane Street, Ste. 300 Portland O R 97202 (503) 219-9300