Case 3:16-cr-00051-BR
Document 1914
Filed 02/20/17
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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.
JASON PATRICK, DUANE LEO EHMER, DARRYL WILLIAM THORN, and JAKE RYAN,
DECLARATION OF JESSE MERRITHEW IN SUPPORT OF DEFENDANTS’ OBJECTION TO GOVERNMENT’S FIRST AMENDED WITNESS LIST
Defendants.
The undersigned, Jesse Merrithew, CJA appointed counsel for the defendant herein, hereby swears and affirms under penalty of perjury that the following is true and correct: 1. I am an attorney licensed to practice in the State of Oregon and admitted to practice before this Court. 2. I was appointed counsel for defendant, Jake Ryan, in this prosecution, pursuant to the Criminal Justice Act, 18 U.S.C. 3006A by Order of the Honorable Anna J. Brown on March 18, 2016.
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Case 3:16-cr-00051-BR
Document 1914
Filed 02/20/17
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3. I make this Declaration in support of the attached Objection to Government’s First Amended Witness List. 4. The defendant is charged by Superseding Indictment dated March 8, 2016, with one count of Conspiracy to Impede Officers of the United States, one count of Possession of a Firearm within a Federal Facility, and one count of Depredation of Government Property. Defendant is also charged by Misdemeanor Information dated December 19, 2016, with one count of Trespassing and one count of Tampering with Vehicles and Equipment. 5. Of the 26 individuals originally charged, seven were acquitted after a jury trial on October 27, 2016, one (Peter Santilli) was dismissed from the case on the motion of the government, 14 have pled guilty, and four, including Mr. Ryan, are currently in trial, the trial having commenced on February 14, 2017. 6. Prior to the first trial, the government’s witness list did not include John Sepulvado, a reporter formerly employed by Oregon Public Broadcasting. The government sought to introduce a recorded interview with one of the defendants in that trial, Ryan Bundy, that was conducted by Mr. Sepulvado. Defendants objected, arguing that the recorded statements could have been taken out of context, and that it was impossible to determine this without either the raw recording or Mr. Sepulvado’s testimony. On September 20, the Court agreed, finding that, without a foundational witness, the government could not meet its initial burden to show the relevance and admissibility of the exhibit. On September 27, the government reported to the Court that it had been in contact with OPB’s legal counsel, who told the government in no uncertain terms that they would not willingly provide assistance to the government, and would move to quash any subpoena issued. The government nonetheless attempted again to introduce the recording, but the Court rejected the attempt and prevented the government from introducing the exhibit. Page 2 – DECLARATION OF JESSE MERRITHEW IN SUPPORT OF DEFENDANTS’ OBJECTION TO THE GOVERNMENT’S AMENDED WITNESS LIST
LEVI MERRITHEW HORST PC 610 SW Alder Street, Ste 415 Portland, Oregon 97205
Case 3:16-cr-00051-BR
Document 1914
Filed 02/20/17
Page 3 of 4
7. 28 C.F.R. § 50.10 requires Department of Justice employees to obtain the permission of the United States Attorney General prior to issuing a subpoena to any member of the media. The Obama administration was reluctant to issue such subpoenas, issuing only three in 2014, all in cases in of national security. See Exhibit 1. 8. On January 12, 2017, the Court ordered that trial documents, including witness lists, must be filed by January 27, 2017. In entering this Order, the Court considered and rejected the government’s request to have those filings due February 1, 2017, noting that this date would be too late to resolve outstanding issues raised by the filings at the pretrial conference then scheduled for February 7, 2017. See Dkt. No. 1694. 8. On January 27, 2017, the government filed its witness list under seal. The list did not include John Sepulvado, or any other person who might lay an adequate foundation for the contested exhibit. It included 90 witnesses. The same day, the government filed its exhibit list. See Dkt. No. 1786. The list includes 364 exhibits. Among the listed exhibits are exhibits that have no relevance to the current people on trial and exhibits that were rejected in the first trial, including Exhibit No. 6, the OPB recording. 9. On February 8, 2017, at 3:58 PM PST, the United States Senate confirmed Jefferson Sessions as the Attorney General of the United States. See Exhibit 2. At 5:17 PM PST, the government notified the Court and parties by email that it was seeking to add Mr. Sepulvado to its witness list. 10. To the best of counsel’s knowledge and belief, no raw recording exists that would allow the parties to understand the context which Mr. Ryan Bundy made the statements the government now seeks to introduce. Therefore, for questions of both the admissibility of the statements under Fed. R. Evid. 801(d)(2)(E), and the weight the jury ought to give the statement, Page 3 – DECLARATION OF JESSE MERRITHEW IN SUPPORT OF DEFENDANTS’ OBJECTION TO THE GOVERNMENT’S AMENDED WITNESS LIST
LEVI MERRITHEW HORST PC 610 SW Alder Street, Ste 415 Portland, Oregon 97205
Case 3:16-cr-00051-BR
Document 1914
Filed 02/20/17
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the parties must rely on the testimony of the people who were there: John Sepulvado and Ryan Bundy. 11. The defense, through an investigator, contacted Mr. Sepulvado (prior to being informed that he was represented) and asked whether he would consent to an interview. Mr. Sepulvado replied that he would “absolutely not” agree to an interview with the defense. 12. Ryan Bundy is currently in jail awaiting trial in Nevada. Counsel has spoken with Mr. Bundy’s Nevada counsel to attempt to arrange an interview with her client. It is not possible for anyone on the defense team in this case to interview Mr. Bundy without monitoring by the government. The facility that Mr. Bundy is held in only allows for a counsel of record to visit prisoners in unmonitored settings. Similarly, Mr. Bundy is only allowed to have one member of his legal team assigned for unmonitored phone contact. Therefore, the only way for counsel to discuss this matter with Mr. Bundy is to have him transported to this district for testimony.
DATED this 20th day of February, 2017 By: /s Jesse Merrithew Jesse Merrithew, OSB No. 074564 Attorney for Jake Ryan
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LEVI MERRITHEW HORST PC 610 SW Alder Street, Ste 415 Portland, Oregon 97205