Misdemeanormemogovt

Case 3:16-cr-00051-BR

Document 2003

Filed 03/10/17

Page 1 of 8

BILLY J. WILLIAMS, OSB #901366 United States Attorney District of Oregon ETHAN D. KNIGHT, OSB #992984 GEOFFREY A. BARROW CRAIG J. GABRIEL, OSB #012571 Assistant United States Attorneys ethan.knight@usdoj.gov geoffrey.barrow@usdoj.gov craig.gabriel@usdoj.gov 1000 SW Third Ave., Suite 600 Portland, OR 97204-2902 Telephone: (503) 727-1000 Attorneys for United States of America

UNITED STATES DISTRICT COURT DISTRICT OF OREGON UNITED STATES OF AMERICA

3:16-CR-00051-BR

v.

JASON PATRICK, DUANE LEO EHMER, DARRYL WILLIAM THORN, and JAKE RYAN,

GOVERNMENT’S SUPPLEMENTAL MEMORANDUM REGARDING MISDEMEANOR TRIAL

Defendants.

The United States of America, by Billy J. Williams, United States Attorney for the District of Oregon, and through Ethan D. Knight, Geoffrey A. Barrow, and Craig J. Gabriel, Assistant United States Attorneys, hereby submits this supplemental memorandum regarding the misdemeanor trial held March 8, 2017.

During the trial, the Court heard evidence and argument

Case 3:16-cr-00051-BR

Document 2003

Filed 03/10/17

Page 2 of 8

related to the seven misdemeanor counts contained in the Information filed December 19, 2016.

The Court ordered the government to submit briefing in response to several issues raised by defendants’ arguments.

1.

Evidence That Defendants Knew That Property Belonged to the Government The Court asked counsel if there were markings on the equipment used by defendants as

charged in Counts 2 through 5 that would support a finding that defendants knew that the equipment belonged to the government.

The government concedes that the evidence in the

record does not include images of government signs on the equipment defendants are charged with using in Counts 2 through 5. As previously noted, there is strong circumstantial evidence that defendants knew the equipment belonged to the government. However, the government does not bear the burden of proving that defendants knew the equipment was government property because ownership of the property is not an essential element of the charged offense.

In a January 4, 2017, Joint Status Report, the defense set forth proposed jury instructions for the misdemeanor counts.

The proposed instructions for Counts 2 through 5 (Tampering

with Vehicles and Equipment) included a requirement that defendants knew that the property belonged to the United States.

Similarly, the proposed instructions for Counts 6 and 7

(Destruction and Removal of Property) included a requirement that defendants knew that the property belonged to the United States (or the Friends of Malheur). government did not object to the knowledge element. filed its Trial Memorandum (ECF No. 1784).

At that time, the

On January 27, 2017, the government

At that time, the government identified the

essential elements for the misdemeanor charges.

For Counts 2 through 5, the government noted

the elements were: Government’s Supplemental Memorandum Regarding Misdemeanor Trial

Page 2

Case 3:16-cr-00051-BR

Document 2003

Filed 03/10/17

Page 3 of 8

First, said defendants entered or started a motor vehicle or equipment; Second, that they did so unlawfully and without authorization; and Third, the motor vehicles and equipment were on any national wildlife refuge.

(Gov’t’s Trial Mem. 15).

For Counts 6 and 7, the government identified the elements as:

First, that defendants destroyed, injured, defaced, disturbed or removed public or private property; Second, that they did so unlawfully and without authorization; and Third, that said removal was from on a national wildlife refuge.

Id.

The government mistakenly incorporated defendants’ proposed jury instructions in the chart

the government provided to the Court on March 8, 2017. Defendants’ proposed jury instructions are not a proper statement of the law.

The government is not aware of any reported cases under 50 C.F.R. § 27.65.

18 U.S.C. § 641 (Theft of Government Property) is analogous.

However,

Ninth Circuit Model Jury

Instruction 8.39 provides three elements for Theft of Government Property: First, the defendant knowingly [[embezzled] [stole] [converted to defendant’s use] [converted to the use of another]] [money] [property of value] with the intention of depriving the owner of the use or benefit of the [money] [property]; Second, the [money] [property] belonged to the United States; and Third, the value of the [money] [property] was more than $1,000.

In Baker v. United States, 429 F.2d 1278 (9th Cir. 1970), the court specifically held that knowledge that stolen property belonged to the United States is not an element of the offense, “[t]he sole reason for including the requirement that the property belongs to the government is to state the foundation for federal jurisdiction.”

The same is true for 50 C.F.R. § 27.65. The

property in question must be government property for there to be federal jurisdiction. The Government’s Supplemental Memorandum Regarding Misdemeanor Trial

Page 3

Case 3:16-cr-00051-BR

Document 2003

Filed 03/10/17

Page 4 of 8

government’s position is further supported by the only published case under 50 C.F.R. § 50.61 (Removal of Property), the offense charged in Counts 6 and 7. In Tait v. United States, 763 F. Supp. 2d 786, 793 (E.D. Va. 2011), the court analyzed the sufficiency of the evidence and found that the “plain language of the regulation requires that the Government prove that the property in question was either public property or private property at the time it was removed.”

The court

found that the government failed to prove that property from an abandoned ship was public or private property.

It did not consider defendant’s knowledge regarding ownership of the

property. Id. In order to prove the violations of 50 C.F.R. § 27.65 in Counts 2 through 5, the government is required to prove that defendants knowingly tampered with, entered, and/or started any motor vehicle, equipment, or machinery on any national wildlife refuge without proper authorization.

The government is not required to prove that defendants knew that the

motor vehicle, equipment, or machinery was government property. Similarly, to meet its burden for Counts 6 and 7, the government is not required to prove that defendants Patrick and Ehmer knew that the fence or pouch were government property. See Tait, 763 F. Supp. 2d at 793.

The government has established beyond any reasonable doubt that the equipment

defendants used and the property they destroyed and removed from the Refuge was public or private property. That is all that is required by the regulations.

2.

The Regulations Define Permissible Entry and Use on Wildlife Refuges Counsel for defendants Patrick and Ryan contend that the regulations governing the

Malheur National Wildlife Refuge do not define what conduct is permitted and what conduct is prohibited. This Court has already addressed defendants’ claim.

On January 19, 2017,

Government’s Supplemental Memorandum Regarding Misdemeanor Trial

Page 4

Case 3:16-cr-00051-BR

Document 2003

Filed 03/10/17

Page 5 of 8

defendant Sean Anderson moved to dismiss Count 1 for vagueness on behalf of all defendants.

(ECF No. 1705).

Defendants claimed that the regulations were insufficient to put defendants on

notice as to what conduct was prohibited.

The Court’s January 27, 2017, Order rejected these

claims: Contrary to Sean Anderson’s suggestion that the exception provision of § 26.21(a) would require an individual to be on notice of “an indefinite number of possible statutes and regulations,” the regulations regarding rights of entry onto national wildlife refuges are contained in 50 C.F.R. Part 26 together with the trespassing regulation. Moreover, the concept of trespassing is commonly understood, and the definition of trespass in § 26.2l(a) does not stray from that common, ordinary understanding. For this reason the Court rejects Sean Anderson’s assertion that the “open-ended” definition of trespassing renders § 26.2l(a) vague to persons of ordinary intelligence and that it provides law enforcement with unfettered discretion to arbitrarily enforce § 26.21(a).

(ECF No. 1774).

As provided in 50 C.F.R. § 25.11(a), the regulations in subchapter C “govern general administration of units of the National Wildlife Refuge System, public notice of changes in U.S. Fish and Wildlife Service policy regarding Refuge System units, issuance of permits required on Refuge System units and other administrative aspects involving the management of various units of the National Wildlife Refuge System.”

Title 50 C.F.R. part 26 is entitled “Public Entry and

Use” and it “govern[s] the circumstances under which the public can enter and use a national wildlife refuge.”

50 C.F.R. § 26.11.

The “General trespass provision” prohibits “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.”

50 C.F.R. § 26.21(a). Under subchapter C, authorized uses include entry to the

headquarters office “during regularly scheduled business hours” (§ 26.23), entry for use of /// Government’s Supplemental Memorandum Regarding Misdemeanor Trial

Page 5

Case 3:16-cr-00051-BR

Document 2003

Filed 03/10/17

Page 6 of 8

emergency shelter (§ 26.26), entry on public roads and routes designated for public use (§ 26.27), and public recreation (§§ 26.31, 26.32).

Title 50 C.F.R. § 25.31 states:

Whenever a particular public access, use or recreational activity of any type whatsoever, not otherwise expressly permitted under this subchapter, is permitted on a national wildlife refuge or where public access, use, or recreational or other activities previously permitted are curtailed, the public may be notified by any of the following methods, all of which supplement this subchapter C: (a) Official signs posted conspicuously at appropriate intervals and locations; (b) Special regulations issued under the provisions of § 26.33 of this subchapter C. (c) Maps available in the office of the refuge manager, regional director, or area director, or (d) Other appropriate methods which will give the public actual or constructive notice of the permitted or curtailed public access, use, or recreational activity.

At the Malheur National Wildlife Refuge, notices were posted at the entryway regarding permissible uses (Gov’t Ex. 126), at the front gate noting when the Refuge was open (Gov’t Ex. 61), and near the offices and workplaces defendants occupied designating those areas closed to the public (Gov’t Ex. 44).

Subchapter C identifies permissible and impermissible uses and

incorporates the notices placed at the Refuge.

Defendants’ claims that they did not see these

signs is simply not credible.

3.

The Government Met Its Burden of Proving Defendant Thorn Guilty of Count 4 Defendant Thorn contends that the government failed to prove his guilt relating to

conduct arising out of Count 4 of the Information—Tampering with Vehicles and Equipment.

Defendant Thorn claims that the government alleged that that he “did knowingly, unlawfully, and without authorization, enter and start a motor vehicle, that is, a front-end loader that was /// Government’s Supplemental Memorandum Regarding Misdemeanor Trial

Page 6

Case 3:16-cr-00051-BR

Document 2003

Filed 03/10/17

Page 7 of 8

property of the United States Government,” while it only proved that he unlawfully used a backhoe, rather than a front loader.

Thorn’s arguments are not supported by the facts in evidence or the law regarding the adequacy of notice provided by the charging document. support a conviction for Count 4.

Preliminarily, the facts in evidence

A front-end loader is “a usually wheeled vehicle with a

hydraulically operated scoop in front for excavating and loading loose material —called also front loader.”

Merriam-Webster, https://www.merriam-webster.com/dictionary/front–end

loader (last visited Mar. 9, 2017).

While defendant correctly notes that Mr. Karges described

the item in Government’s Exhibit 407 as a backhoe, from the exhibit the Court could find that the equipment could be fairly characterized as both—it has a backhoe function and, clearly, has a front loading apparatus attached to it.

Agent Walker described it as such in his testimony about

Exhibit 407.

Even if there is an arguable discrepancy between the description of the vehicle as alleged in Count 4 and the facts presented to the Court, it should not undermine a finding of guilt by the Court.

The threshold question for the Court is whether defendant received fair notice of the

charged conduct and whether the Information is clear enough to protect against double jeopardy.

The notice in defendant Thorn’s case was sufficient.

The Ninth Circuit has held that similar

charging formulations are proper. For example, an indictment charging a defendant with cocaine trafficking was sufficient and not defeated by trial evidence that defendant trafficked in cocaine base. United States v. Jingles, 702 F.3d 494, 500 (9th Cir. 2012).

Similarly, an

indictment charging defendant with robbing a “savings and loan,” was sufficient even though at trial the government proved that defendant robbed a federally insured institution. United States Government’s Supplemental Memorandum Regarding Misdemeanor Trial

Page 7

Case 3:16-cr-00051-BR

Document 2003

Filed 03/10/17

Page 8 of 8

v. Coleman, 656 F.2d 509, 510 (9th Cir. 1981). Moreover, in Coleman, the court noted that a defendant’s post-trial attack on the indictment was “tardy,” and as a consequence, the court would “liberally construe” the indictment in favor of validity. Defendant Thorn’s arguments regarding Count 4 should be rejected.

Dated this 10th day of March 2017.

Respectfully submitted, BILLY J. WILLIAMS United States Attorney

s/ Geoffrey A. Barrow ETHAN D. KNIGHT, OSB #992984 GEOFFREY A. BARROW CRAIG J. GABRIEL, OSB #012571 Assistant United States Attorneys

Government’s Supplemental Memorandum Regarding Misdemeanor Trial

Page 8