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Rosalind M. Lee (OSB 055566) ROSALIND MANSON LEE, LLC 474 Willamette St., Ste. 302 Eugene, OR 97401 Tel: (541) 485-5110 Fax: (541) 485-5111 Email: ros@mansonlee.com Of Attorneys for Defendant JON RITZHEIMER

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION UNITED STATES OF AMERICA, Plaintiff v.

JON RITZHEIMER, Defendant _____________________________

) ) ) ) ) ) ) ) ) ) ) )

Case No. 3:16-cr-00051-BR-2 MOTION TO WITHDRAW GUILTY PLEA FRCrP. 11(d)(2)(B) ORAL ARGUMENT AND EXPEDITED HEARING REQUESTED

COMES NOW defendant Jon Ritzheimer, by and through counsel ROSALIND MANSON LEE, LLC, and Rosalind M. Lee, asking this Court for an order pursuant Federal Rule of Criminal Procedure 11(d)(2)(B) allowing Mr. Ritzheimer to withdraw his guilty plea and proceed to trial by jury. As discussed below, Mr. Ritzheimer has fair and just reasons to with draw his plea.

The defense respectfully requests that, should the Government dispute any factual assertions made in this motion, that the court hold an evidentiary hearing to resolve the factual disputes. Further, the defense respectfully requests that the Court set an expedited briefing United States v. Ritzheimer, No. 3:16-cr-00051-BR-2 Motion to Withdraw Guilty Plea Page 1 of 14

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schedule and hearing on this motion, given the current trial date for remaining defendants of February 14, 2017.

Certificate of Conferral Over approximately the past two months the defense and the Government conferred extensively regarding the relief sought by this motion, and closely-related issues. On December 21, 2016, the Government informed the defense that they oppose this motion.

I.

Statement of the Case

On January 27, 2016, Jon Ritzheimer was accused by criminal complaint of conspiracy to impede officers of the United States from discharging their official duties through the use of force, intimidation, or threats, in violation of 18 U.S.C. §372. Mr. Ritzheimer was indicted on February 3, 2016, for the same offense. The Government filed a superseding indictment on March 9, 2016, which added other offenses and additional defendants. On August 15, 2016, Mr. Ritzheimer entered a negotiated guilty plea to count one of the superseding indictment, the conspiracy count. At the request of the parties, sentencing was set out to May 8, 2017.

II.

Law and Argument

Courts shall grant motions to withdraw guilty pleas before sentencing when the defendant has shown “fair and just” reasons to withdraw the plea. FRCrP 11(d)(2)(B). The standard “fair and just reason” is applied liberally. U.S. v. Garcia, 401 F.3d 1008, 1011 (9th Cir. 2005) citing United States v. Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir. 2004)(observing that “the ‘fair and just reason’ standard is simply more generous than the standard for determining whether a plea is invalid.”) Motions to withdraw pleas that are made before sentence is imposed should be “freely allowed.” United States v. Signori, 844 F.2d 635, 637 (9th Cir. 1998)(citations omitted).

Fair and just reasons to withdraw one’s plea include inadequate plea colloquies, newly discovered evidence, intervening circumstances, or any other reason that did not exist at the time

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of the plea. Id. citing United States v. Turner, 898 F.2d 705, 713 (9th Cir. 1987). An invalid plea is a sufficient, but not necessary, fair and just reason to withdraw one’s plea. Id. at 884.

A.

Mr. Ritzheimer is Actually Innocent of the Conspiracy Charge to Which He Pled Guilty, Based on the Law of the Case.

A defendant’s claim of innocence is weighed in favor of granting a motion to withdraw a plea. Garcia, supra, at 1012. A claim of innocence must be supported by a plausible basis for acquittal. See Ortega-Ascanio, supra, at 887 (holding that because the defendant, who claimed actual innocence based on a post-plea change in the law, had “plausible grounds” to prevail on a motion to dismiss the indictment, he had fair and just grounds to withdraw his plea.)

Mr. Ritzheimer pled guilty to Count 1 of the Superseding Indictment based on the legal theory that he conspired to use force to take over the refuge—that is, force against property— rather than force, threats or intimidation against federal employees, which is the legal theory the Government pursued at trial.

This theory of guilt limited to conspiring to use force against property was discussed between defense counsel Terri Wood and AUSA Craig Gabriel during plea negotiations. On August 5, 2016, Ms. Wood sent an email to AUSA Gabriel outlining the legal basis for Mr. Ritzheimer’s plea. See Declaration of Counsel in Support of Defendant’s Motion to Withdraw Guilty Plea (“Declaration of Counsel”) Exhibit A. On August 8, 2016, AUSA Gabriel replied by email that the Government accepted the defense theory of liability. See id. at Exhibit B. During his change of plea colloquy on August 15, 2016, the Court asked, “What did you do, Mr. Ritzheimer, that you think makes you guilty?” [1586] at 33. Mr. Ritzheimer responded: On January 2, I learned of a plan to take the protest to the next level, and I agreed to go to the Malheur National Wildlife Refuge with an advance party. And I went there and I forcibly occupied the refuge. I did park my truck up at the top of the refuge, and I camped out there for a few days. And then—before then going down and actually camping in the refuge.

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And I—I can see how my conduct and my actions there would be intimidating. But I did forcibly go and occupy the refuge, and so I plead guilty to it.

Id. Mr. Ritzheimer, a decorated Marine Corps veteran, expected to be charged and likely convicted of trespass for his participation in the occupation, which he described as taking the public protest “to the next level” during his colloquy with the Court. He therefore agreed to take responsibility for his conduct, even though that meant pleading guilty to a felony conspiracy charge, when informed by counsel that the Government concurred that conviction could be predicated solely on his agreement to use force against property, i.e., to forcibly enter and occupy the Refuge, and thereby impede federal employees from occupying the same workplace to carry out their duties. To enter and remain on premises without consent of the owner is the gravamen of trespass.

In contrast to the legal basis for Mr. Ritzheimer’s plea, at the Group 1 trial the Government abandoned that theory and proceeded on a theory of conspiracy based on force, threats or intimidation against persons. Specifically, the Government argued that the object of the conspiracy was to impede government employees from performing their duties by force, threats or intimidation directed at them.

The defense has reviewed portions of the draft trial transcripts.1 During discussions of preliminary jury instructions for the first trial, defendants filed a proposed instruction defining “force” to mean “physical coercion or compulsion with the threat of violence,” [1234]. After vetting the issue with the parties, the Court agreed with the Government that, unlike “threat” and “intimidation,” no special jury instruction was needed to define “force.” The rationale was that “force” as used in the statute has its common, ordinary meaning. Defendants did not object, but reserved the right to renew the request for inclusion in the final jury instructions. During

1

See Declaration of Counsel at 2.

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discussions for final jury instructions, the Court again reached the conclusion that no special instruction was necessary, on the same rationale, and rejected the defendants’ arguments.

In ruling on defense motions for judgment of acquittal, the Court’s comments reflect that the ordinary meaning of force in the context of the conspiracy charge meant force directed against people. The Court denied those motions in part because reasonable jurors could interpret the uncontradicted evidence of the armed occupation as circumstantial evidence of an agreement to impede by threat, intimidation, or even by force or the threat of force against employees.

In its closing arguments, the Government explained it did not have to prove the defendants actually threatened, intimidated or used force against any member of the United States Fish and Wildlife or BLM, only the agreement to do so. The Government focused its arguments on the agreement to use threats or intimidation, and made no assertion that there was proof of defendants agreeing to impede by force. Repeatedly, the Government relied on the armed occupation of the Refuge as evidence of an agreement to intimidate federal employees to stay away from their workplace. The Government did not argue that defendants amassing weapons and ammunition, and patrolling the grounds with firearms, was evidence of an agreement to use force against any employee to impede the performance of their duties. See Declaration of Counsel in Support of Defendant’s Motion to Withdraw Plea. Had the Government not abandoned the “force” theory of liability upon which Mr. Ritzheimer pled guilty, prosecutors likely would have pursued it at the Group 1 trial, because it is easier to prove given the uncontradicted evidence of defendants occupying the Refuge, and does not require proof of a subjective intent to threaten or intimidate.

Further, the Government has filed an Information accusing the Group 2 defendants with trespass, among other misdemeanor charges. This latest act repudiates the sole legal basis upon which Mr. Ritzheimer pled guilty: If the Government continues to agree that Mr. Ritzheimer's defense counsel was correct, and not erroneous, in advising that he could be convicted based on United States v. Ritzheimer, No. 3:16-cr-00051-BR-2 Motion to Withdraw Guilty Plea Page 5 of 14

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his agreement to use force against property, i.e., to trespass, and thereby necessarily impede federal officers, there is little reason to bring trespass charges against Group 2 defendants. The jury is not informed as to penalties; it will not know that trespass is a misdemeanor and the conspiracy is a felony.

Based upon the Government’s theory requiring force against persons, and related Court rulings throughout the Group 1 trial, and as underscored by the filing of trespass charges for the trial of Group 2, Mr. Ritzheimer is actually innocent of the crime to which he pled guilty because his guilt was predicated on force against property only. At the very least, the Government’s contrary theory at trial, and Court rulings regarding the meaning of “force” in the conspiracy count, establish a plausible basis that he would be acquitted based on the facts he admitted in pleading guilty. See Ortega-Ascanio, supra, at 887. Furthermore, the same post-plea developments establish that Defense counsel was erroneous when advising Mr. Ritzheimer on the legal basis for his plea. Had defense counsel advised Mr. Ritzheimer that he could only be convicted of conspiracy if he agreed to use force against persons, or to threaten or intimidate them, then it is plausible that he would not have pled guilty. See United States v. Davis, 428 F.3d 802,808 (9th Cir 2005)(holding that a defendant may demonstrate a fair and just reason to withdraw a guilty plea when counsel’s mischaracterization of the law “plausibly could have motivated his decision to plead guilty.”) Indeed, at no time has Mr. Ritzheimer said that he agreed to impede federal officers by means of (1) threats; (2) intimidation; or (3) force against them.

B.

Newly Discovered Evidence of The Actual Identities of Government Informants Who Were Present at the Refuge, Participated in Alleged Unlawful Conduct, and Were Paid by the FBI, Bolsters Mr. Ritzheimer’s Defense, Partial Defense or Mitigating Circumstances.

Newly discovered evidence is a fair and just reason to withdraw one’s plea where the evidence is relevant, in the defendant’s favor and “could have at least plausibly motivated a United States v. Ritzheimer, No. 3:16-cr-00051-BR-2 Motion to Withdraw Guilty Plea Page 6 of 14

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reasonable person in [the defendant’s position] not to have plead guilty had he known about the evidence prior to pleading.” Garcia, supra, at 1011-12. This permissive standard starkly contrasts with more stringent standards rejected by the Ninth Circuit.

For example, a defendant who seeks to withdraw his plea based on newly discovered evidence need not show that the newly discovered evidence exonerates him, or “that there is a reasonable probability he would not have been convicted had the case gone to trial.” Garcia, supra, at 1011. Further, the movant need not prove that “he would not have pleaded guilty had he been aware of the newly discovered evidence.” Id. at 1011-12. To be a fair and just reason to withdraw one’s plea, newly discovered evidence could merely “bolster a defendant’s defense, partial defense or other mitigating circumstance.” Id. at 1013.

The Government steadfastly refused to provide the actual identities of the FBI’s confidential informants, both prior to and during the first trial, with the exception of informant Mark McConnell who was named during the testimony of a Government witness on September 21, 2016. McConnell was the armed driver of Ammon Bundy’s car on the day of his arrest and the homicide of LaVoy Finicum. As this Court knows, the Government redacted information from the Confidential Human Source (“CHS”) reports provided in discovery—i.e., concealed more than their names—to further hide their identities from defendants. Mr. Ritzheimer did receive the redacted CHS reports as part of the voluminous torrent of discovery, detailed elsewhere, in advance of his guilty plea. What is newly discovered by defendants since his plea is the actual identities of some of the informants, plus information bearing on their credibility.

Without that information, the redacted CHS reports lack context and much evidentiary value: Mr. Ritzheimer was unable to match the redacted reports to any individuals he knew to have been at the Refuge, compare their reports to what he knew of first-hand, and evaluate whether those individuals would be material to his defense at trial. Thus, Mr. Ritzheimer did not learn until after his guilty plea that McConnell was in fact an informant, and that he was a reporting United States v. Ritzheimer, No. 3:16-cr-00051-BR-2 Motion to Withdraw Guilty Plea Page 7 of 14

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CHS. CHS reports from McConnell include his exculpatory observation that “Ritzheimer is not participating much in any leadership decisions.” MNWR_0059613.

After Mr. Ritzheimer entered his guilty plea in August, and sometime after the first trial had commenced, counsel for Group 1 defendants, through dogged investigation and luck, were able to determine the true identity one informant—Fabio Minoggio, who while at the Refuge went by the name “John Killman”—and subpoenaed him to testify at the end of the defense case.

Only then did Mr. Ritzheimer learn the actual identity of this individual who had brought guns and ammunition to the Refuge and conducted firearms training, and that he was a paid informant for the FBI. Discovery included a single FBI intelligence report from “anonymous” stating that “John Killman provided hand-to-hand training to occupiers of the refuge,” suggesting that Killman was an unindicted co-defendant, not an informant; Killman was not further identified in the discovery. MNWR_0038042. Co-defendants who proffered to the Government spoke of “John (LNU)” who taught them how to stop a vehicle by blowing out its tires and extracting the driver for interrogation, and who was a squad leader. MNWR_0063226. One co-defendant proffered that “John” was in charge of militia training at the Refuge, not Ritzheimer. Another proffered that “John” taught “small team tactics including shooting and ambush training.”

MNWR_0066451. While his co-defendants have the right to not testify, Mr. Ritzheimer could now subpoena Mr. Minoggio to testify regarding the informant’s leadership role and instruction of aggressive military tactics, in contrast to Mr. Ritzheimer’s intent to ensure a peaceful, nonviolent occupation to continue the protest.

Also after Mr. Ritzheimer’s plea, another paid informant, Terri Linnell, self-disclosed her identity and FBI informant status to counsel in Group 1 after hearing the Government’s portrayal of defendants as aggressively occupying the Refuge, armed and ready to use violent force. She also testified for the defense at trial, and maintained the occupiers were peaceful and that people were free to come and go from the Refuge. Based on a post-trial interview of Ms. Linnell, it is United States v. Ritzheimer, No. 3:16-cr-00051-BR-2 Motion to Withdraw Guilty Plea Page 8 of 14

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expected she would testify that Mr. Ritzheimer was one of six defendants who had been targeted by the FBI as someone she should gather as much information about as possible, but she only knew him to be involved in peaceful protest at the Refuge. Her testimony would corroborate his assertion that he never used or agreed to use force, threats or intimidation against federal employees of the BLM or Fish and Wildlife Services.

After Mr. Ritzheimer’s plea, defendants have identified at least two other individuals believed to be FBI informants who were among the nine informants at the Refuge, and linked them to specific CHS reports. Those reports show one now-identified informant professes to be a creator and leader of a militia unit comprised of persons at the Refuge, and could provide exculpatory testimony concerning Mr. Ritzheimer guarding the front gate at the Refuge while still allowing everyone to come and go as they please, other than potential troublemakers from outside militia groups. Another informant also led a security squad at the Refuge and spread rumors about how federal agents were going to invade the Refuge and kill everyone, based on defense investigation, not the CHS reports. Those individuals are not named in this pleading, but the defense is prepared to do so in a subsequent filing if necessary to respond to the Government or upon the Court’s request.

In sum, at the time Mr. Ritzheimer pled guilty, he did not know that the FBI had paid informants inside the Refuge who were actively engaged in leadership roles, running the security squads, teaching military tactics and firearm proficiency, acting as a body guard/armed driver for Ammon Bundy, and spreading false news about an impending FBI massacre—raising fears to a level that foreseeably could have led protestors to violence. He did not know the true identities of informants who could provide exculpatory testimony regarding his conduct as outlined above; and be far less subject to impeachment by the Government than “defendant friendly” witnesses who could provide similar testimony. Finally, he did not know any of the informants were on the FBI’s payroll, nor other impeaching facts that have been gleaned through defense United States v. Ritzheimer, No. 3:16-cr-00051-BR-2 Motion to Withdraw Guilty Plea Page 9 of 14

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investigation once their true identities were deciphered, given the likelihood that these newlydiscovered witnesses would provide inculpatory as well as exculpatory testimony at a trial.

This newly discovered evidence would bolster Mr. Ritzheimer’s defense that he was engaged in peaceful protest, armed only to protect the peace, and did not conspire to impede federal employees from working at the Refuge by force, threats or intimidation. This evidence would assist the jury in hearing the whole truth, which it rightly deserves, and cast the Government’s arguments in a new light. For example, during rebuttal argument in closing at the first trial, prosecutors argued that Mr. Ritzheimer as “live streamed” at the entrance to the Refuge with his AK-15, clad in tactical gear, and appearing “highly agitated,” was evidence proving defendants’ intent to intimidate or worse. But the whole truth is that video captured Mr. Ritzheimer’s survival response to the first false rumor of an impending FBI attack on January 5, 2016, spread by FBI informants.

Collectively, this evidence would plausibly motivate a reasonable person in Mr. Ritzheimer’s position not to have pled guilty had he known about it in advance. First, this new evidence is exculpatory. A reasonable person plausibly would be motivated to not plead guilty in light of new exculpatory evidence. The Government portrayed Mr. Ritzheimer at the first trial as a leader and organizer of the conspiracy to impede government workers by force, intimidation or threats. However, the new evidence from Ms. Linnell supports the defense theory that Mr. Ritzheimer did not intend to use force, threats or intimidation against others, and the new evidence from Mr. McConnell undercuts the Government’s claims of his high-level leadership role.

Further, newly discovered evidence that lessens Mr. Ritzheimer’s role in the offense is a mitigating circumstance that can be a fair and just reason to withdraw his plea. See Garcia, supra. As noted above, CHS McConnell reported to the FBI that Mr. Ritzheimer was not playing much of a leadership role at the Refuge. A smaller role in the offense is a mitigating United States v. Ritzheimer, No. 3:16-cr-00051-BR-2 Motion to Withdraw Guilty Plea Page 10 of 14

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factor that undercuts the government’s theory of the case regarding Mr. Ritzheimer’s criminal liability, and the leadership role enhancement in his plea agreement.

Post-plea revelations of the actual identities and extent of the paid informants on the refuge dramatically change the landscape of the Government’s case against Mr. Ritzheimer.

This new evidence bolsters defense assertions during pretrial motions that the protest was peaceful, and that the FBI purposefully deployed excessive law enforcement presence and show of military force to demonize the protesters. The newly discovered evidence proves the FBI informants played key roles in the FBI’s efforts to portray defendants as violent and dangerous, by acting as armed leaders, training protestors in military tactics, operating a shooting range, running security patrols and serving as an armed body guard. The evidence described above, none of which was available to Mr. Ritzheimer before his plea, is, standing alone, a fair and just reason for allowing withdrawal of his plea.

Finally, during Mr. Ritzheimer’s change of plea colloquy, the Court informed Mr. Ritzheimer that he would be able to challenge his conviction based on newly-discovered evidence. [1586] at 26. The plea agreement drafted by the Government also allows Mr. Ritzheimer to challenge his conviction as provided in FRCrP 33, which is a motion for a new trial. [1035] at 3. One ground for a motion for a new trial is newly discovered evidence. See FRCrP 33(B)(1).

C.

In Light of Mr. Ritzheimer’s Actual Innocence and Newly Discovered Evidence, the Acquittal of the Group One Defendants is a Fair and Just Reason to Allow Mr. Ritzheimer to Withdraw his Plea.

Acquittal of codefendants due to insufficient evidence is a fair and just reason to withdraw a plea, even if it is the sole reason for the motion. United States. v. Schwartz, 785 F.2d 673, 678 (9th Cir. 1986). Viewed in the light of the newly discovered evidence, the acquittal of the Group 1 defendants is a fair and just reason to withdraw his plea, because the nature of the

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evidence has changed substantially in Mr. Ritzheimer’s favor as the trial proceeded. Further, the acquittal of the Group 1 defendants is a fair and just reason for Mr. Ritzheimer to withdraw his plea, because, as noted above, Mr. Ritzheimer pled guilty to Count 1 based on a legal theory the Government abandoned between securing his plea and commencing the trial of the Group One defendants, and is now contrary to the existing law of the case. Simply put, Mr. Ritzheimer’s desire to withdraw his plea is not merely a change of heart based on the outcome of the first trial, but rather the only reasonable response given these substantial changes in the law of the case, the available evidence since entry of his plea, and acquittal of all defendants—including some whom the Government views as more culpable than him—at the first trial.

The defense has reviewed the Court’s Order Denying Defendant’ Ryan Payne’s Motion to Withdraw Guilty Plea [1642]. Unlike the Court’s finding as to Mr. Payne that there is no “new question as to Payne’s factual innocence after the trial of his Co-defendants,” there is a new question as to Mr. Ritzheimer’s innocence after the acquittal of the Group 1 defendants.

[1642] at 25.

D.

Delay in Filing this Motion is Excusable, Because the Defense Was Engaged in Good-Faith Negotiations with the Government About this Motion Until December 21, 2016.

The Court may consider any delay in filing a motion to withdraw a plea, although not all cases in the Ninth Circuit consider that factor.

The Government’s theory and related Court rulings regarding the “force” required to prove the conspiracy count were not complete until after the verdict in the first trial; only then did the legal basis for Mr. Ritzheimer’s assertion of actual innocence fully ripen. The newly discovered evidence of some informants’ true identities and the materiality of their testimony and potential testimony was unknown to Mr. Ritzheimer until late in the first trial; the identities of additional informants unknown to him until after the verdict; and joint defense investigative

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efforts to learn the identities of informants, link them to specific CHS reports, and develop impeachment or corroborative evidence for their prospective testimony continues as this motion is filed. There can be no delay in filing a motion to withdraw one’s plea until the grounds asserted for withdrawal have materialized and are known to the defendant.

Delay in filing a motion to withdraw may be excusable when the delay is the result of practical matters unrelated “to the legitimacy or the sincerity of the defendant’s reasons for wishing to withdraw his plea.” Garcia, supra, at 1013. Before filing this motion, the defense conferred extensively about the merits of this motion. The delay in filing this motion was due to these good-faith negotiations between the parties.

Defense counsel first sought to confer with the Government on this matter on November 3, 2016. The Government was unable to confer telephonically until November 17, 2016. On that date the Government explained it was still considering its position on this matter, but agreed that it would not claim any delay by Mr. Ritzheimer in filing a motion to withdraw his plea, as of November, through such time as the Government determined its position, caused the motion to be untimely or otherwise prejudiced the Government. The parties continued email communications as to when the next conferral on this matter could occur, and settled on December 16, 2016. On that date the parties spoke telephonically, and defense counsel agreed to delay filing this motion for approximately one week, due to ongoing negotiations for a resolution that would negate the need to file it. On December 21, 2016, the Government advised that it opposed this motion.

E.

Prejudice to the Government

When considering a motion to withdraw a plea, courts may consider whether the effect of granting the motion would prejudice to the Government. See, e.g., United States v. Vasquez Velasco, 471 F.2d 294 (9th Cir. 1973)(holding that the death of a government witness is sufficient prejudice to the government to deny a motion to withdraw a plea.) There is no United States v. Ritzheimer, No. 3:16-cr-00051-BR-2 Motion to Withdraw Guilty Plea Page 13 of 14

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prejudice to the Government in this case should the Court allow Mr. Ritzheimer to withdraw his plea and go to trial. Mr. Ritzheimer could go to trial with the Group 2 defendants. He is out of custody; he has no other pending cases; and travels easily between his home in Arizona and the District of Oregon. The Government is currently preparing for that trial, and has tried the case once before. The defense is aware of no loss of witnesses or other evidence since the end of the Group 1 trial. There would be little or no prejudice to the Government if the Court were to grant this motion.

III.

Conclusion

For the above-stated reasons, and all others as may be presented by supplemental filings authorized by the Court, and at hearing on this motion, defendant Jon Ritzheimer respectfully requests that the Court grant this motion, allow him to withdraw his plea, and proceed to a trial by jury.

DATED:

December 30, 2016

Respectfully Submitted, ROSALIND MANSON LEE, LLC /s/ Rosalind M. Lee Rosalind M. Lee Of Attorneys for Defendant Ritzheimer

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