Thorntongovtmotion

Case 3:16-cr-00051-BR

Document 1963

Filed 03/01/17

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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 MOTION IN LIMINE TO EXCLUDE EVIDENCE OF BRAND THORNTON’S PRIOR TESTIMONY

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, pursuant to the Court’s oral order of March 1, 2017, moves in limine for a court order excluding evidence of Brand Thornton’s prior testimony.

Case 3:16-cr-00051-BR

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Filed 03/01/17

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The government believes that Mr. Thornton’s prior testimony should not be introduced into evidence. The evidence is cumulative in that he described events that have already been introduced by multiple witnesses. should be excluded.

The evidence from Mr. Thornton is also so unreliable that it

In the event the evidence is introduced, the government will seek to

impeach that evidence under Fed. R. Evid. 806 with evidence that Mr. Thornton lied under oath at the prior trial.

First, the evidence is cumulative. Defendant Patrick seeks to introduce Mr. Thornton’s account of the clearing of the Refuge. witnesses’ testimony.

This event has been the subject of three separate

Butch Eaton testified to the clearing of the Refuge, Andy Dunbar’s

testimony addressed the clearing of the Refuge, and Blaine Cooper testified about the clearing of the Refuge.

Further evidence of the clearing of the Refuge is cumulative.

If the account is

introduced because it differs from how Mr. Cooper described clearing the Refuge, that difference is not material because the evidence that has been introduced suggests that Mr. Cooper and Mr. Thornton were not in the same location. Mr. Cooper described the clearing of the bunkhouse.

According to Mr. Cooper, Mr. Thornton was not present during that event.

Mr. Thornton’s prior testimony did not describe clearing the bunkhouse.

He described clearing

Ms. Beck’s office.

Second, Mr. Thornton lied under oath at the prior proceeding. Mr. Thornton testified twice at the prior trial, on October 3, 2016, and again on October 17, 2016.

Prior to his second

appearance on October 17, 2016, the Court asked Mr. Thornton, while he was under oath, if he had observed trial proceedings after his initial testimony.

He indicated that he had observed

five or six days of trial. The Court asked Mr. Thornton if he had posted anything online Government’s Motion In Limine to Exclude Evidence of Brand Thornton’s Prior Testimony

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Case 3:16-cr-00051-BR

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regarding his observations during those five or six days.

Filed 03/01/17

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Thornton responded that he had not

posted any online comments regarding the trial, and he was permitted to testify.

On October 18, 2016, the Court notified the parties that a member of the public had notified the Court that Mr. Thornton had posted to Facebook after his initial testimony, contrary to his representations to the Court. The message included a link to Mr. Thornton’s Facebook account.

The government’s preliminary review of Mr. Thornton’s account reveals that on October 7, 2016, Mr. Thornton posted the following to his account: Today in court was interesting and exciting, it seems the government made a huge mistake in introducing and insisting that facebook posts, pages, comments etc. were to be evidence in the trial. There were videos with Ammon, and Ryan teaching at the refuge the constitution including adverse posession [sic]. These were played in court for all to see. Afterwards the Prosecution complained to the judge. Judge Anna J Brown told the prosecution “ you opened the door”. To the layman at least, there has been a change in momentum towards the defense. The prosecution attempted to a make a point that through adverse possesion [sic] the occupiers were attempting to take the personal possesions [sic] of the refuge employees, the judge said the prosecution had laid a “foundation” for further exploration in the direction for “adverse possession” !

On October 11, 2016, the defense called Terri Linnell to testify on their behalf that she was an informant.

On October 11, 2016, more than a week after he testified, Mr. Thornton posted the

following: Terri Linnell, has now testified, and yes she was an FBI informant at the Malheur Refuge occupation. Terri’s statement in my strong estimation delt [sic] a serious blow to the governments [sic] case. Kudo’s [sic] to Terri, she deserves all of our respect. I am surprised the government even allowed her to take the stand!! /// /// Government’s Motion In Limine to Exclude Evidence of Brand Thornton’s Prior Testimony

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These posts reveal that Mr. Thornton lied to the Court immediately before he testified.

The Court should exclude evidence of Mr. Thornton’s prior testimony as unreliable. In S.E.C. v. Jasper, 678 F.3d 1116, 1129 (9th Cir. 2012), the court noted: Where hearsay statements would have been admissible under Fed. R. Evid.

804(b)(1), the rule at issue here, our court noted that exclusion would still be proper if the “trial court simply considered it unfair to present a version of an unavailable witness’ testimony without an opportunity to cross-examine directly.” United States v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984). Under this rule especially, admission of evidence “is a matter for the trial judge’s discretion, to be exercised on the basis of his evaluation of the realities of cross-examination and the motive and interest with which [one party] carried out the prior examination.” Id. It would be fundamentally unfair to permit evidence from Mr. Thornton to be introduced in this trial without cross-examination.

Finally, if the Court were to permit the defense to read Mr. Thornton’s transcript, the government will seek to introduce evidence to impeach Mr. Thornton, including the fact that he previously lied to this Court.

For the foregoing reasons, the government requests that evidence of Mr. Thornton’s prior testimony be excluded.

Dated this 1st 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 Motion In Limine to Exclude Evidence of Brand Thornton’s Prior Testimony

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