Case 3:16-cr-00051-BR
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Jason Patrick, Pro Se c/o Andrew M. Kohlmetz, OSB #955418 Kohlmetz Steen & Hanrahan PC 741 SW Lincoln Street Portland, OR 97201 Tel: (503) 224-1104 Fax: (503) 224-9417 Email: andy@kshlawyers.com
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION
UNITED STATES OF AMERICA, Plaintiff, vs. JASON PATRICK, Defendant
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Case No. 3:16-CR-00051-BR-09 DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTIONS FOR WRITS OF HABEAS CORPUS AD TESTIFICANDUM: AMMON BUNDY, RYAN PAYNE
COMES NOW the Defendant, Jason Patrick, in accordance with this court’s order at docket record #1730 and provides this memorandum in support of his writs of habeas corpus ad testificandum for Ammon Bundy and Ryan Payne. As a preliminary matter, and as laid out in the Declaration of Andrew M. Kohlmetz filed in support of the Motion for Ammon Bundy’s Writ, the request for Ammon Bundy’s physical appearance to provide testimony in this trial is a joint request made on behalf of all seven defendants currently set for trial.
DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION FOR WRITS OF HABEAS CORPUS AD TESTIFICANDUM: AMMON BUNDY, RYAN PAYNE Kohlmetz Steen & Hanrahan PC 741 SW Lincoln Street Portland, OR 97201 (503) 224-1104
Case 3:16-cr-00051-BR
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Necessity: Ammon Bundy Ammon Bundy is the central figure in this prosecution. He has personal knowledge of the facts underpinning every single charge in the Superseding Indictment as well as facts that are pertinent to the misdemeanor information herein. His personal knowledge extends to awareness of each of these seven defendants and their alleged activities taken both before and during the protester’s 41 day presence at the Malheur National Wildlife Refuge. There is almost no relevant topic upon which Mr. Bundy cannot testify to in this case. Ninth Circuit caselaw compels the issuance of the writ as to Ammon Bundy. If the accused avers facts which, if true, would be relevant to any issue in the case, the requests for subpoenas must be granted, unless the averments are inherently incredible on their face, or unless the Government shows, either by introducing evidence or from matters already of record, that the averments are untrue or that the request is otherwise frivolous. United States v. Sims, 637 F.2d 625, 627 (9th Cir.1980) (quotation omitted). Mr. Bundy’s testimony is not just relevant to any issue in this case. It is relevant to every issue. For Mr. Patrick, the government, in support of Count One will introduce evidence of statements and actions taken by Mr. Patrick in the months leading up to the January 2, 2016 protest in Burns and subsequent 41 day protest at the Refuge. The actions and statements of others during this period including those of Mr. Bundy will no doubt be introduced as those of co-conspirators. Mr. Bundy can give testimony as to the interactions he himself, and others in his presence had with Mr. Patrick during this period. The same is true for the period of January 2, 2016 until his arrest on January 26, 2016. In short Mr. Bundy has personal knowledge of many of Mr. Patrick’s alleged statements and activities for all periods and occurrences relevant to this DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION FOR WRITS OF HABEAS CORPUS AD TESTIFICANDUM: AMMON BUNDY, RYAN PAYNE Kohlmetz Steen & Hanrahan PC 741 SW Lincoln Street Portland, OR 97201 (503) 224-1104
Case 3:16-cr-00051-BR
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indictment. Mr. Bundy will also testify that his goals and reasons for being at the Refuge were not necessarily those of Mr. Patrick and vice versa. No other witness can offer such comprehensive and relevant testimony. For Defendant Duane Ehmer, in addition to the same type of comprehensive evidence of the sort applicable to Mr. Patrick, Mr. Bundy has personal knowledge regarding the maroon pouch alleged to have been stolen that serves as the basis of Count 7 in the misdemeanor information. Moreover, at the first trial evidence related to the alleged theft of the contents of this pouch was submitted on the issue of the defendants intent to impede. No other identifiable witness can address this issue. For Defendants Sean, Dylan, and Sandy Anderson, in addition to the same type of comprehensive evidence of the sort applicable to Mr. Patrick, Mr. Bundy’s testimony is sought, as the self-professed leader of the protest, to testify as to the Andersons’ extremely limited involvement, and that there was no agreement between them, criminal or otherwise. For Defendant Darryl Thorn, in addition to the same type of comprehensive evidence of the sort applicable to Mr. Patrick, Mr. Bundy’s testimony is sought to confirm that although he is the putative head or protest leader, that Mr. Thorn and others were there for their own and various reasons. That there was no conspiracy or even an organizing principal shared by the protesters and that Mr. Thorn and others were there in part to learn from the teachings of Mr. Bundy and others on various topics such as the Constitution and land law. Also that many people were drawn to the protest in support of the Hammons and did what was needed or asked to help out in the belief that what was occurring was a perfectly lawful protest.
DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION FOR WRITS OF HABEAS CORPUS AD TESTIFICANDUM: AMMON BUNDY, RYAN PAYNE Kohlmetz Steen & Hanrahan PC 741 SW Lincoln Street Portland, OR 97201 (503) 224-1104
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The defendants point finally to the three days of testimony Mr. Bundy gave at his own trial before this court in further support of this request. Formal transcripts of his testimony are being prepared but are not currently available, however the court is completely familiar with his prior testimony. Necessity: Ryan Payne Defendant Jason Patrick believes that Mr. Payne’s testimony will be necessary to his defense to refute government evidence presented against him, to supply evidence favorable to him, and to corroborate other defense evidence in this trial. Mr. Payne and Mr. Patrick are alleged to have had personal interactions in the months leading up to the protests in Burns and at the Refuge. They are also alleged to have had numerous interactions during the protests. Mr. Payne has personal knowledge of Mr. Patrick’s motivations, his intent, and his actions that the defendant believes will be of assistance to him in countering the government’s allegations that he was a member of a criminal conspiracy to impede federal officers. No other witness can testify to many of these personal interactions between Mr. Payne and Mr. Patrick. The same Ninth Circuit caselaw cited above compels the issuance of the writ as to Ryan Payne.
Timeliness During joint defense meetings in December the idea of calling Ammon Bundy was first discussed. No decisions were made as the Government had, until December 12, 2016 given the defendants no indication of whether or. After the government announced its intent to proceed with the original charges and add only a few misdemeanor charges, counsel for Duane Ehmer, DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION FOR WRITS OF HABEAS CORPUS AD TESTIFICANDUM: AMMON BUNDY, RYAN PAYNE Kohlmetz Steen & Hanrahan PC 741 SW Lincoln Street Portland, OR 97201 (503) 224-1104
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Michele Kohler, was tasked by the group with contacting the U.S. Marshal in Oregon regarding the transport and writ of habeas corpus process. According to Ms. Kohler, she was informed by U.S. Marshal staff that in order to get Mr. Bundy to Oregon a writ of habeas corpus needed to be filed more than 30 days before his requested appearance. The defense is aware of no other issues relative to timeliness. To the implication that the defense should have alerted the court to a decision to call Mr,. Bundy as a witness earlier, no such decision was made until recently. As a preliminary matter, after the acquittals of the defendants in the first trial, the government refused to announce its intent with regard to a trial for any of these defendants until December 12, 2016. The decision to call Mr. Bundy as a witness was not one easily made. A trial with Mr. Bundy as a witness looks very different than one without – even to the point that defense strategy is altered significantly. Mr. Patrick disputes vigorously the implication in the court’s Order requesting this memorandum that he could have or did in fact very easily and quickly decide to call Mr. Bundy as a witness and has only now chosen to seek this Writ for some improper motive or purpose. The defense request is timely and was specifically made immediately upon the making of the decision that it was likely that Mr. Bundy would be called. After group discussions arose concerning the possibility of Ammon Bundy testifying for all defendants at this trial, Mr. Patrick raised the issue of calling Ryan Payne as a witness. This presents no additional issues in regard to timeliness.
DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION FOR WRITS OF HABEAS CORPUS AD TESTIFICANDUM: AMMON BUNDY, RYAN PAYNE Kohlmetz Steen & Hanrahan PC 741 SW Lincoln Street Portland, OR 97201 (503) 224-1104
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Difficulty Both Mr. Bundy and Mr. Payne are presently in the custody of the U.S. Marshals. The U.S. Marshal routinely transports prisoners between districts pursuant to writs and as otherwise called for. Because the Motions for the writ was filed well ahead of the 30 days required by the U.S. Marshal for process, the defendants do not believe there is any more difficulty in securing Mr. Bundy’s and Mr. Payne’s presence than for any other in-custody witness. They are both currently being held at the adjoining state of Nevada at the Nevada Southern Detention Center, 2190 E. Mesquite Ave., Pahrump NV, 89060. Nor is it by any means apparent that their transport to and from Oregon for testimony will have any impact on their trial preparation in Nevada. The Court in the Nevada Case has set separate trials in that case for three groups of defendants. The first group is set to begin trial on February 6, 2017. Both Mr. Bundy and Mr. Payne are scheduled for trial in Nevada in the second group, which according to the Nevada Court’s order (Docket record # 1113) is set to begin 30 days after the conclusion of the first trial. It is anticipated that Mr. Bundy’s trial will begin no sooner than a date in April, 2017. Defendants collectively estimate that Mr. Bundy’s testimony in this case, including cross examination will take no more than two court days and anticipate his testimony to be given in the last days of February or first days of March 2017. This should allow time for their transport to and from this district without interfering with their trial dates in Nevada. Mr. Payne’s testimony is likely to be shorter than Mr. Bundy’s. Of course the timing of their transport to and from Nevada is under the control of the U.S. Marshal, however there appears time sufficient to allow for their testimony in this district while preparing for trial in Nevada. My standby counsel has conferenced with Daniel Hill, DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION FOR WRITS OF HABEAS CORPUS AD TESTIFICANDUM: AMMON BUNDY, RYAN PAYNE Kohlmetz Steen & Hanrahan PC 741 SW Lincoln Street Portland, OR 97201 (503) 224-1104
Case 3:16-cr-00051-BR
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attorney for Mr. Bundy in the Nevada case. Mr, Hill has expressed no concerns about his ability to prepare for his trial. Mr. Hill confirms that Mr. Bundy wishes to testify in this proceeding. Mr. Hill did indicate that it is his belief that one of the defendants in the first Nevada trial set to begin on February 6, 2016,may wish to call Mr. Bundy as a witness. Standby counsel for Mr. Patrick has communicated with the attorney of the defendant who may wish to call Ammon Bundy at the first Nevada trial. He is informed that no decision regarding Mr. Bundy’s testimony in that case has been made, nor will be made before January 26, 2017. Nonetheless, that attorney informed standby counsel that if Mr. Bundy testifies here as proposed there should be no potential conflict. Video Testimony Defendants object to the substitution of Mr. Bundy’s personal appearance to give testimony with one by video conference. It is the Defendant’s position that such video testimony is an unnecessary and inadequate substitution for his live testimony. As the Supreme Court has noted. The Sixth Amendment to the United States Constitution guarantees the right of these defendants to procure Mr. Bundy’s presence at this trial to give testimony on their behalf. “Few rights are more fundamental than that of an accused to present witnesses in his own defense.” Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297 (1973). This right to present evidence is as fundamental as the corollary right, also found in the Sixth Amendment, to confront the witnesses against them. Id. The fundamental constitutional guarantees enshrined in the Sixth Amendment are not absolute. The Supreme Court has carved out a number of narrowly crafted exceptions to the absolute requirement of live testimony. See Maryland v. Craig, 497 U.S. 836, 852, 110 S. Ct. 3157, 3167, 111 L. Ed. 2d 666 (1990)(approving use of video testimony of child sex abuse DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION FOR WRITS OF HABEAS CORPUS AD TESTIFICANDUM: AMMON BUNDY, RYAN PAYNE Kohlmetz Steen & Hanrahan PC 741 SW Lincoln Street Portland, OR 97201 (503) 224-1104
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victim). However, any such exception to the requirement of live testimony mustat minimum be justified by a compelling state interest – not simply the convenience of the court. Id., 497 U.S. at 861 et. seq., 110 S.Ct. at 3172et seq. opinion of Scalia, J dissenting. There is currently no compelling interest in not securing Ammon Bundy’s and Ryan Payne’s live testimony that would justify either of them testifying by video. Status of Objections Standby counsel for Mr. Patrick, on behalf of defendants herein, has been in direct contact with Nevada counsel for Mr. Bundy, Daniel Hill. As previously indicated, Mr. Hill has indicated that Ammon Bundy may be called as a witness in the first Nevada trial. Because of possibility that he may be called in the first Nevada trial, Mr. Hill indicates he has only a “conditional objection” to the issuance of this writ. This conditional objection is only that he respectfully asks this Court to order the U.S. Marshal to transport Mr. Bundy to and from Oregon as close in time to his anticipated testimony here in order that he might be available for testimony in the first Nevada trial if he is subpoenaed thereto. My standby counsel has conferred with Brenda Weksler and Ryan Norwood, Nevada counsel for Ryan Payne who is set for trial on February 6, 2016 with the first Bundy defendants. They have no objection to the writ as proposed. However, they too join in Mr.Hill’s request to the Court to direct the U.S. Marshal to transport these defendants as expeditiously as possible. tier of Bundy defendants. Standby counsel has also conferred with Oregon counsel for Ryan Payne, Rich Federico. He has no objection to this Writ. My investigator has also spoken directly to Mr. Payne in the DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION FOR WRITS OF HABEAS CORPUS AD TESTIFICANDUM: AMMON BUNDY, RYAN PAYNE Kohlmetz Steen & Hanrahan PC 741 SW Lincoln Street Portland, OR 97201 (503) 224-1104
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presence of local counsel. Mr. Payne informed him that he did not intend to invoke his 5th Amendment privilege and wished to give testimony in this matter.
RESPECTFULLY SUBMITTED This 18th day of January, 2017.
Jason Patrick ________________________________ Jason Patrick, Pro Se
DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION FOR WRITS OF HABEAS CORPUS AD TESTIFICANDUM: AMMON BUNDY, RYAN PAYNE Kohlmetz Steen & Hanrahan PC 741 SW Lincoln Street Portland, OR 97201 (503) 224-1104