Re: 150 Militia Take Over Makhuer National Wildlife Preserve Headquarters
Ryan Payne petioned the court to withdraw his guilty plea.
http://www.oregonlive.com/oregon-sta...dant_ryan.html
http://image.oregonlive.com/home/oli...atars/4406.pngBy Maxine Bernstein | The Oregonian/OregonLive
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on October 13, 2016 at 5:00 AM, updated October 13, 2016 at 8:11 AM
Oregon standoff defendant Ryan Payne wants to withdraw guilty plea
Ryan Payne, one of the 26 people indicted on a federal conspiracy charge stemming from the seizure of the Malheur National Wildlife Refuge, wants to withdraw his guilty plea in the case, according to his lawyer.
Payne, who also faces a federal indictment in Nevada stemming from the 2014 standoff with federal officers near the Bundy Ranch in Bunkerville, had entered a guilty plea in the Oregon case in July, based on a global offer that was pending in the Nevada case.
But his assistant federal public defender said an agreement in the Nevada case hasn't been reached. As a result, Payne, 33, wishes to withdraw his guilty plea in the Oregon case and seek a jury trial, according to new court filings.
"As of the date of this filing, no agreement has been reached and there is no plea offer still available to Mr. Payne in Nevada,'' wrote attorney Rich Federico in a motion to withdraw the guilty plea. He filed the motion in U.S. District Court in Portland late Tuesday.
Prosecutors said Payne made ultimatums to Harney County Sheriff Dave Ward in November, seeking to prevent Harney County ranchers Dwight Hammond Jr. and son Steven Hammond from returning to federal prison on arson convictions, and led tactical training during the occupation of the Malheur refuge. In Nevada, he's accused of organizing "armed protection'' in the 2014 standoff over the impounding of rancher Cliven Bundy's cattle.
According to court records, the government is opposed to Payne withdrawing his guilty plea in the Malheur case.
He pleaded guilty to the federal charge of conspiracy in Oregon, and a second count, possession of firearms in a federal facility, was dismissed, under the negotiated plea. The Oregon sentence was to run concurrently with his Nevada sentence.
Under an offer then pending in the Nevada case, Payne would have pleaded guilty to three charges, including the use and carrying of a firearm in a crime of violence -- a count that brings a mandatory minimum sentence of seven years. Prosecutors there were going to recommend a 12-year sentence, but Payne could argue for seven years, according to prosecutors and his lawyers.
On the date Payne signed the Oregon plea agreement, he wasn't fully aware of the specifics of the Nevada plea offer -- still "only in a draft format,'' Federico wrote in his motion.
"Notably, the entire 'statement of facts' section of the Nevada plea offer had been left blank. When Mr. Payne arrived in Nevada, he was only then provided a 'statement of facts' that Nevada prosecutors demanded he agree to in order to secure the deal,'' Federico wrote. "On the date he entered a guilty plea in Oregon, had Mr. Payne known all the terms of the deal in Nevada, he would not have signed the deal in Oregon. ''
Federico also argued that Payne was given only a day to accept the Oregon plea deal and took it largely to reduce his risk of potential prison time in the Nevada case.
"Mr. Payne felt the pressure of 'massive' sentencing exposure in the Nevada case in particular,'' if he didn't take the plea in July, his attorney said.
"However, fairness and justice dictate that once relieved of the time pressures and having more time to reflect upon the Nevada case, Mr. Payne is in a much better position today to make an informed decision regarding his legal options in both districts,'' Federico said.
The breakdown of negotiations in Nevada, coupled with evidence in the ongoing trial of seven co-defendants that bolsters Payne's argument that the occupiers' intent was non-violent, should allow the withdrawal of Payne's guilty plea in Oregon, his attorney argues.
Federico referenced a video that prosecutors played showing Payne explaining to a group of men gathered in the refuge bunkhouse why they took over the refuge and that their intentions were peaceful. Payne also was unaware at his plea hearing that Mark McConnell and others were informants for the federal government, which was disclosed during trial.
"Had Mr. Payne and his counsel been aware of this basis for impeachment of the government's potential witnesses, they could have evaluated the strength of the government's case differently,'' Federico wrote.
Federico also pointed to his client's responses to U.S. District Judge Anna J. Brown during his plea hearing, noting how "equivocal'' Payne was, indicating he had "serious misgivings and reservations.''
Asked if he had impeded federal employees using intimidation, threats or force, for example, Payne told the court, "I have come to understand that folks who were -- who work for the government, that that Constitution ordained, perceived my actions as threatening or intimidating."
The deal, he noted, was offered before jurors reached a verdict in his co-defendants' trial, providing no "preview'' on how they would weigh evidence in the case.
The federal trial in the Nevada case is scheduled for February. Payne's sentencing in the Oregon case had been set over until February.
-- Maxine Bernstein
mbernstein@oregonian.com
503-221-8212
@maxoregonian
Re: 150 Militia Take Over Makhuer National Wildlife Preserve Headquarters
Bill Goode's assessment of Teri Linnell's actions and letter.
This is what struck me when I read her letter. This is why I believe she will go again if she is called.
Quote:
Per Terri's letter, she was in touch with her FBI contact until 21 September 2016. That's less than a month ago. She stayed in contact with the FBI for 8 months after LaVoy was assassinated!!!!
https://www.facebook.com/groups/1717...2219265657615/
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Bill Goode
11 hrs
Despite Gary Hunt having published Terri Linnell's letter, this article I have written is not a reflection on Gary. This article is about Terri Linnell.
I know Gary Hunt and I know him to be a very dedicated and knowledgeable patriot. His articles at http://outpost-of-freedom.com/blog/ are voluminous, well researched and well written. His research into the Hammond family difficulties is extensive. He has done more writing with deeper research on the whole Hammond - Bundy - Finicum affair than any other journalist.
Despite this single article, he is not to be compared to Terri Linnell. I would in no way disparage Gary Hunt as a patriot or journalist. Here he has simply reported with Terri Linnel's letter and expressed his opinion on it, like any other journalist.
Terri Linnell published a letter, via journalist Gary Hunt, that explains her activities between the FBI and the Malheur Refuge occupation. Most of this letter is pretty innocuous and irrelevant, as far as Terri confessing and clearing her name in the patriot movement. Nevertheless, I have several points I would make regarding Terri's letter.
1) Terri starts off her letter blaming Jaime Spears for rumors that she, Terri Linnell, was an informant. I know nothing of what Jaime Spears has said in relation to Terri's activities. I base my opinion of Terri Linnell on what Terri has said herself. It has nothing whatsoever to do with Jaime Spears. Later in Terri's letter she mentions Jaime again for gossiping, which Terri herself is doing against Jaime. It does Terri no credit to discuss her ill opinions of Jaime.
That Terri later took "advantage" of those rumors shows exceedingly poor judgement on her part. That an individual would sacrifice her integrity to work for the government, as an informant against a patriotic group, for her own financial "advantage" shows a person absolutely not to be trusted by any patriotic group.
2) The "judge" that Terri mentions was Bruce Doucette, a self appointed "Judge", who is a member of this FB group. Being a self appointed "Judge", he also appoints "marshals". That procedure is explained to some degree on websites, that he partakes in with others. They consider it constitutional and purport to support the Constitution. Weblinks provided on request to me via PM.
Doucette and another fellow, then associated with Doucette, were providing what was considered "constitutional legal advice" to Ammon and leadership at the Refuge, as well as what was presumed to be legal counsel to the Hammond family.
I doubt Terri had any involvement with Doucette or any legal discussions within the Refuge. I only mention it here to explain what Terri was talking about regarding the "judge".
3) Per Terri's letter, she was in touch with her FBI contact until 21 September 2016. That's less than a month ago. She stayed in contact with the FBI for 8 months after LaVoy was assassinated!!!!
WHY ON EARTH WOULD TERRI LINNELL CONTINUE CONTACT WITH PEOPLE THAT SHE KNEW MURDERED SOMEONE SHE PRESUMABLY ADMIRED? FOR 8 MONTHS???
As an aside here, to be clear, I'm sure Terri, herself, had nothing, knowingly, to do with LaVoy's assassination. The FBI was planning LaVoy's assassination some weeks before Terri's arrival at the Refuge. (ref - Butch Eaton's FBI interview on 3 January) The major informant for LaVoy's assassination is clearly Mark McConnell.
However Terri did provide information to the FBI, which, unknown to Terri, the FBI may well have used to plan the actual assassination. Thus, Terri may well be an unknowing participant to some degree in the planning of LaVoy's assassination. It's unknown to what degree, until Terri reveals exactly what information she revealed to the FBI about people and activities at the Refuge. This letter falls far short of such revelation.
Terri admits "I really don’t know what I did to deserve any pay (after having received her $3000 from the FBI). Lavoy was dead, and the FBI did as they pleased, not listening to anything I said. But I guess the goal was achieved, all the people they kept asking about were arrested." Until Terri reveals what information she gave to the FBI, her level of participation in the arrests and LaVoy's assassination, regardless of her lack of knowledge, remains in question.
4) ) Terri's letter is more damning of her than she probably realizes. Regarding the investigation of Grant County Sheriff Palmer, she admits: "Was it something I said? Probably. By telling the FBI evidence that all did not seem as it appears, and to look deeper, they instead used that to destroy good people. Political? Absolutely." (2nd to last paragraph of Terri's letter) By her own admission, Terri Linnell gave information to the FBI that they "used to destroy good people."
5) None of this is to say that there is no route for forgiveness for Terri Linnell. Forgiveness is possible for her, but it will be a very "tough road to hoe" for her, and it will get tougher the longer she takes to pursue it.
I thank Terri Linnell for the testimony she gave on behalf of the defense on 11 October 2016, but that is barely the beginning of her achieving forgiveness, if indeed that is what she is seeking.
The very next step would be to turn over EVERY DOLLAR, she received from the FBI, to the defense of the patriots - all $3000 plus her expense money. Every nickel and dime, with interest. The longer she takes in this step, the less credible is her intention to come clean. If she takes too long, the defendants' trials may be over. The money would be of less value, especially if they are convicted, while having that money before conviction might save them from conviction.
Secondly, she must reveal everything she told the FBI. Having this information will reveal the effect she had on ending the occupation, the arrests of the occupiers and the assassination of LaVoy. Until the effect she had on the ending of the occupation is known, we cannot know what other steps must be taken for Terri to be forgiven.
Terri Linnell's letter shows she knows not what she did. There is no responsibility in that letter for her actions. She has no concept of the wrong she has done. I notice that she has removed her Facebook page under her real name. That's probably just as well for her, as she doesn't seem to realize the wrong she has done and may well not understand many comments she would receive there.
I'm surprised her "MommaBear" page is still up and running, claiming "I'm a well educated Patriot mother, fighting for our country." In light of Terri's informant activities, that statement is insulting an infuriating to real patriots, especially those who have been arrested by the very agency that Terri Linnell worked for - the FBI. Well Terri you are not to be trusted. You have proven that you have exceedingly poor judgement in relationship with government and the value of the patriots in the country you purport to fight for.
Terri Linnell's letter may be viewed at Gary Hunt's website Outpost of Freedom.
https://fbexternal-a.akamaihd.net/sa...&sw=158&sh=158
Burns Chronicles No 32 – Terri Linnell (Mama Bear)
Burns Chronicles No 32 Terri Linnell (Mama Bear) Gary Hunt Outpost of Freedom October 12, 2016 {October 6, 2015} On Friday, September 30, 2016, I…
OUTPOST-OF-FREEDOM.COM
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Re: 150 Militia Take Over Makhuer National Wildlife Preserve Headquarters
Terri Linnell could never really be trusted again and should always be shunned by militia and patriot groups from this time forward. I have no doubt though that there will be many others willing to inform on patriotic americans who resist this corrupt government we have.
Re: 150 Militia Take Over Makhuer National Wildlife Preserve Headquarters
Michele Fiore condems Sheriff Dave Ward's actions on floor of Nevada Assembly
https://www.facebook.com/Debrjordan/...22510257874892
https://fbcdn-profile-a.akamaihd.net...a33faba05e18fa
Deb Jordan
1 hr ·
MICHELE FIORE - KEEPING HER WOR
Michele Fiore on the Nevada Assembly Floor said this today in open session:
Good Morning,
I stand in support of and know that Blue Lives Matter; when we have Law Enforcement and County Sheriffs that support their citizens and Law Makers we need to support them too.
But there have been Sheriff's that hand their elected positions over to the Federal Government and some of the outcomes have been fatal.
Sheriff David Ward of Harney County Oregon did just that.
Under his watch a man "Lavoy Finicum" was murdered.
The Bureau Of Land Management (BLM) has become quite aggressive across our Nation; from continual harassment of our Indigenous Native Americans to our Rancher's, who are just trying to protect their livelihoods.
It's up to us to ensure our communities have the resources needed to protect it's citizens from Domestic Terrorist Agencies such as the BLM.
Most of my fellow friends in this Chamber were not at Bunkerville in April of 2014, but Sheriff Lombardo and Sheriff Douglas Gillespi were there.
Our Clark County Sheriffs stopped the Nevada Massacre the BLM had planned.
As the body camera footage from the BLM gets unsealed and released to the press and the public, the words I just spoke will be verified.
Thank you
Carol Bundy Lisa Bundy Briana Bundy Ashley Jones Bj Soper Kati Batie Linsay Tyler January Kolar Teresa Brookshire Karen Mucklechuck Mike ArnoldChastity Bendele Peter Thomas Santilli Mike Serour Stacy Benner Jaime Spears Aldazabal Rich Garboski Erin Davis Maureen Peltier Michele FioreAngie Huntington Bundy Arden Bundy Jeanette Finicum Susan DeLemusTim Brown Tim Poor Bob Powell Tami Sandell Erin Maupin Glen Sandell
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Re: 150 Militia Take Over Makhuer National Wildlife Preserve Headquarters
Hammonds break silence about being threatened bymthe feds
https://fbcdn-profile-a.akamaihd.net...0d8f3bbfc3e219
Jake R Morphonios
55 mins
HAMMOND FAMILY BREAKS THEIR SILENCE! FEDS ORDERED THEM TO BE SILENT ON REFUGE TAKEOVER OR FACE RETRIBUTION!
Today in court, attorneys for Ammon Bundy presented a signed affidavit from the Rusty Hammond that his family has, in fact, remained silent because of threats by the federal government.
https://fbexternal-a.akamaihd.net/sa...fs=1&upscale=1
BOMBSHELL: Hammonds Break Silence - Threatened by Feds
Today in court, attorneys for Ammon Bundy presented a signed affidavit from the Rusty Hammond that his family has, in fact, remained silent because of threat...
YOUTUBE.COM
http://youtu.be/zq7btcggnXs
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Re: 150 Militia Take Over Makhuer National Wildlife Preserve Headquarters
Re: 150 Militia Take Over Makhuer National Wildlife Preserve Headquarters
Re: 150 Militia Take Over Makhuer National Wildlife Preserve Headquarters
Shawna Cox takes the witness stand, plays her video from inside LaVoy's truck
http://www.oregonlive.com/oregon-sta...2box_targeted_
http://image.oregonlive.com/home/oli...atars/4406.pngBy Maxine Bernstein | The Oregonian/OregonLive
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on October 13, 2016 at 1:12 PM, updated October 13, 2016 at 6:25 PM
Oregon standoff defendant Shawna Cox takes stand, plays her video of arrest
Updated 5:45 p.m.
Oregon standoff defendant Shawna Cox testified Thursday that she didn't emerge immediately from Robert "LaVoy" Finicum's truck when police stopped them Jan. 26 on U.S. 395 because she was afraid of getting shot.
Cox, the fourth of seven defendants to take the stand in the federal conspiracy trial, became emotional as her standby lawyer Tiffany Harris played the video that Cox took of the felony traffic stop as she sat in the back seat.
Harris showed the footage after the judge cautioned that it could be "quite prejudicial'' to both Cox and co-defendant Ryan Bundy with the risk of "underscoring to the jury that the defendants pick and choose which laws they want to follow.'' The video captured Cox telling Finicum to "gun it, gun it'' as he sped away from officers at the initial stop.
That day, authorities tried to stop Finicum's truck and a Jeep with Ammon Bundy as they headed away from their occupation of the Malheur National Wildlife Refuge near Burns to a community meeting in John Day.
Ammon Bundy surrendered immediately along with his bodyguard, Brian Cavalier. Ryan Payne, who was in the front passenger seat of Finicum's truck, got out before Finicum drove off.
Finicum ended up crashing into a snowbank at a roadblock up the highway and was fatally shot by state police after he got out. Police said Fincium reached three times for the inside of his jacket, where he had a loaded 9mm handgun.
Just before they were initially stopped, Cox said she noticed a line of unmarked cars to the right as they were driving north on the highway and then noticed flashing lights. She said she heard Payne remark, "It's a setup'' and Finicum say, "It's an ambush.''
Once Finicum stopped the truck, she said, Payne rolled down his window and thrust both of his hands out, his palms showing. Suddenly, she testified, she saw a red laser and heard a shot.
"He jumped back in. That freaked us out. It was very frightening,'' Cox said. "It made no sense to me.'''
Payne eventually stepped out of the truck and yelled there were women inside. Officers at the scene said the women should come out, Cox testified.
Asked by her standby lawyer why she didn't leave then, Cox said she asked Victoria Sharp, who was sitting next to her in the back seat, what she wanted to do.
"She said, 'I'm not getting out. They just shot at us.' I'm not going out either,'' Cox testified. "I have a lot of children and my maternal instinct is to protect them. I wasn't about to leave her in that vehicle.''
Cox said she was perplexed why no officers approached Finicum's driver's window and asked for his license or explained the reason for the stop.
Harris asked, "Have you ever before in your life contemplated driving away from an officer?''
"Never,'' Cox responded.
Of Finicum's truck, Cox said, "That was our secure spot. We were afraid to get out. ... We felt like we were pinned down. We felt like we were going to all be killed. In fact, we were sure we were all in a death trap.''
Co-defendant Kenneth Medenbach stood to ask Cox a question but was quickly shut down by U.S. District Judge Anna J. Brown. He began: "Are you aware the jury has power to weigh ...''
"Stop!'' the judge demanded. "I'm not going to let a defendant ask any questions about jury nullification.''
"And the corruption continues,'' Medenbach added. The judge asked if he had any other questions to ask, and he didn't.
During a brief cross-examination, Assistant U.S. Attorney Craig Gabriel stopped the video that Cox took and showed a screenshot of Ryan Bundy, who was in the back left side passenger seat of Finicum's truck, holding a revolver in his right hand as he hunkered down.
Gabriel asked Cox if her video was a fair and accurate representation of what took place. She said yes.
And, in fact, Ryan Bundy had a revolver, Gabriel pointed out.
"I have no idea,'' Cox said. "I never saw a gun.''
Gabriel also noted that Payne, who was in the front seat of Finicum's truck before Finicum drove off from the initial, got out of the truck after a less-lethal round shot struck the vehicle.
"I heard a metal on metal ping. I have no idea,'' Cox said, regarding the round.
"Once they announced it was the Oregon State Police, you knew it was the Oregon State Police, right Ms. Cox?'' Gabriel asked.
Cox had testified during direct examination that she didn't know if they were really the police.
"You didn't accept their invitation to get out of the car, right?'' Gabriel asked.
"Yes,'' Cox responded.
Earlier Thursday, former Arizona Sheriff Richard Mack, who serves as president of the Constitutional Sheriffs and Peace Officers Association, testified that Ammon Bundy asked him to call Harney County Sheriff Dave Ward about three to four weeks before the refuge takeover.
Mack did, urging Ward to "put the federal government on notice he was in charge of the Hammonds.'' The Hammonds are father-and-son ranchers who were set to return to federal prison to serve out a mandatory minimum sentence for arson to federal lands.
"I asked him if he thought the Hammonds should go to prison and he said no,'' Mack testified. The judge told jurors to disregard his answer, sustaining a hearsay objection.
Mack said he participated in a Jan. 2 march and rally for the Hammonds in Burns but never went to the wildlife refuge. In fact, he testified under questioning by Ammon Bundy's lawyer Marcus Mumford, that he thought the refuge occupation was a bad idea.
"I felt it was a misguided protest,'' Mack said. "I told him somebody was going to get hurt, and he needed to get out of there. I kept telling him this was not going to have a happy ending, and I was very fearful for his safety and the other occupants. I knew he was a good man and I just prayed for him and his family.''
Mack also testified that he was surprised Sheriff Ward didn't arrest Ammon Bundy when the two met on a rural road outside the refuge on Jan. 7. "I thought it was derelict of duty,'' Mack said, but the judge struck that answer as well.
Questioned about who serves as the top law enforcement officer, Mack said, "It's the sheriff. Always has been.''
During cross-examination, Assistant U.S. Attorney Ethan Knight asked if Ammon Bundy ever mentioned adverse possession to Mack as one of his reasons for occupying the refuge. "He may have, but I don't remember what that is,'' Mack said.
A former FBI agent, Charles Stephenson, also testified for the defense, saying that most of the weapons he saw pictured in photos from the refuge occupation appeared to be in an "at rest, secure'' and non-threatening position. But he acknowledged that drawing a conclusion about someone's intent based on a "frozen'' moment in time without knowing the "totality of the circumstances,'' is impossible.
"Would it matter if a person were to carry a firearm in a place where they had no lawful right to be?'' asked Assistant U.S. Attorney Geoffrey Barrow.
"Yes,'' Stephenson replied.
During a break, the judge admonished Ammon Bundy's other lawyer, J. Morgan Philpot, when he argued to call a witness, citing her gender, and noting that most of the 12 jurors are female.
"Do not go there,'' Brown declared. "You are not going to draw an inference about the gender of a juror. ... It's highly inappropriate to focus on gender, race or sexual orientation. That's just flat out wrong.''
Later, Philpot said outside of court that it was the judge who had prohibited them from calling many of their female witnesses, on one basis or another.
Other defense testimony Thursday included:
--Fields resident Rebecca Kingen, who visited the refuge on Jan. 7, and brought her son, now 12 years old, to interview Ryan Bundy. Asked why she brought her son to interview Bundy for his school newspaper, Kingen testified tearfully, "It could be a way to show they are just like we are.''
Kingen said she didn't feel any danger at the refuge, and brought her daughter, now 8 years old, as well with her on the January visit.
Ryan Bundy presented a copy of the article that Kingen's son Monte wrote for his school paper, called "The Desert Rat,'' under the headline, "The Bundy Family Makes a Stand at Malheur National Wildlife Refuge.''
--Russel "Rusty" Hammond, the son of Harney County ranchers Dwight Hammond Jr. and brother to Steven Hammond, testified briefly that he had met Ammon Bundy for the first time on Dec. 15. He said Bundy told him he was in Burns "to bring attention to what was happening to my father and brother, and what was happening to our country with federal overreach.''
He also confirmed that his family has been threatened because of their contact with Ammon Bundy. He did not identify by whom.
--Diane Marie Holthaus, of Idaho, visited the refuge twice, including a week stay from Jan. 10 through 17. She said she mostly spent her time cooking and cleaning. She testified that Neil Wampler told her he was at the refuge to protest "the injustices against the Hammonds,'' and never talked about wanting to prevent federal employees from doing their work at the refuge.
-- Maxine Bernstein
mbernstein@oregonian.com
503-221-8212
@maxoregonian
Re: 150 Militia Take Over Makhuer National Wildlife Preserve Headquarters
Re: 150 Militia Take Over Makhuer National Wildlife Preserve Headquarters
Ryan Payne's plea withdrawal
http://outpost-of-freedom.com/blog/?p=1717
Burns Chronicles No 33 – Ryan Payne’s Plea Withdrawal
October 13, 2016, 7:23 pm
Burns Chronicles No 33
Ryan Payne’s Plea Withdrawal
Gary Hunt
Outpost of Freedom
October 13, 2016
Back on July 13, Ryan Payne signed a plea agreement. As will be explained, below, he has now requested the Court to Withdraw Guilty Plea and Proceed to Trial by Jury and go to trial on the charges.Though it won’t be mentioned in the Motion, in addition to what follows, Ryan was threatened with a Terrorism Enhancement, if he went to trial and was convicted. That would be a 30 years sentence, but, as I said, the Court cannot recognize that, as it was part of negotiations.
So, let’s look at the picture that the Motion to Withdraw Guilty Plea gives us, at least in pertinent part. I will leave the citations in, for those who wish to review previous decisions on the subject: After entering a plea of guilty to Count 1, Mr. Payne stated the following as a factual basis for his plea, in the words of Ryan Payne:
“Ah, your Honor, the very first adult decision that I ever made was when I was 17, to join the military of the United States. And in so doing, I took an oath to uphold and defend the Constitution. I traveled to Harney County, here in Oregon, under the pretense that this was my intent. That I was coming to uphold and defend the Constitution.”
"In pursuing that effort, I understand I — I have come to understand that folks who were — who work for the Government, that that Constitution ordained, perceived my actions as threatening or intimidating. And, thereby, I – I understand myself to have been guilty of the charge that I’m charged with.
The Court inquired whether Mr. Payne agreed that his actions actually impeded government officials. Mr. Payne responded, “[a]s it has been presented to me, it is my understanding that I did, your Honor.”
So, Ryan went to the Malheur Refuge with the intention (not a criminal intent, rather, a patriotic intent) to defend the Constitution. And, that is what this whole trial is about..
Then, he points out, not that he threatened or intimidate, rather, that those folks at the Refuge “perceived” his actions as threatening. So, he “understands”, rather than believes, that he is guilty. That is based on the information provided to him, as well as any other influences as to what the consequence might be if he proceeded to jury trial (see the second paragraph for one of those influences).
Now, getting to some conditions that justify his withdrawal of the plea, we find that there had been a lot of information withheld from him — upon which he was to make that decision. Here are two elements of information that was not made available, which we now find had exculpatory (possibly proving innocence) evidence that has since come to light.
Subsequent to the change of plea hearing, the prosecution produced seven additional volumes of discovery to all defendants. The later discovery productions included materials that became exhibits in the trial of co-defendants currently ongoing before the Court.
Additionally, subsequent to the change of plea, the government acknowledged the use of confidential informants, such as Mr. Mark McConnell, that had not been disclosed to Mr. Payne on the date he entered a plea.
Now the legal basis justifying his right to withdraw:APPLICABLE LAW AND BASIS FOR WITHDRAWAL Federal Rule of Criminal Procedure 11(d)(2)(B) governs withdrawal of guilty pleas. The Rule “directs a district court to permit a defendant to withdraw a guilty plea before sentencing if the defendant comes forward with any fair and just reason for doing so.” United States v. Ortega- Ascanio, 376 F.3d 879, 887 (9th Cir. 2004). Although a defendant may not withdraw a guilty plea “simply on a lark,” the fair and justice standard “is generous and must be liberally applied.” United States v. Ensminger, 567 F.3d 587, 590–91 (9th Cir. 2009).
The timing of the motion to withdraw a guilty plea is critically important. Before sentencing, a defendant “need not prove that his plea is invalid” in order to meet the standard for withdrawal of the plea. Oretega-Ascanio, 376 F.3d at 884. Instead, a more liberal standard applies, permitting withdrawal of the plea on grounds including “inadequate Rule 11 plea colloquies [formal discussions], newly discovered evidence, intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea.” Id. at 883 (citing United States v. Turner, 898 F.2d 705, 713 (9th Cir. 1990)). If a defendant demonstrates one of these grounds, withdrawal of the plea should be “freely allowed.” United States v. Showalter, 569 F.3d 1150, 1154 (9th Cir. 2009).
Then, in itemizing the elements that are mentioned, his attorney, Rich Federico, provides the following:
A. Intervening Circumstances in the District of Nevada Provide a Fair and Just Reason for the Court to Permit Mr. Payne to Withdraw his Guilty PleaAs stated during the change of plea hearing, the foundation of the Oregon plea agreement was that an agreement would also be reached in Nevada. Mr. Payne was given a very short period of time in Oregon from the date the plea offer was received on July 12th, before that offer expired at 5:00 PM on July 13th. On the date Mr. Payne signed the Oregon plea agreement, the Nevada offer was only in a draft format. Notably, the entire “statement of facts” section of the Nevada plea offer had been left blank. When Mr. Payne arrived in Nevada, he was only then provided a “statement of facts” that Nevada prosecutors demanded he agree to in order to secure the deal. Subsequent negotiations have not been able to break through the differences between the parties in Nevada.
On the date he entered a guilty plea in Oregon, had Mr. Payne known all the terms of the deal in Nevada, he would not have signed the deal in Oregon.
Additionally, Mr. Payne’s case is unique in that he is being prosecuted simultaneously in two federal districts, in complex trials. This Court previously acknowledged that having Mr. Payne and his co-defendants be charged in both districts was “a most unusual situation the defendants are facing here.” The “unusual situation” of simultaneous prosecutions should be considered by the Court when weighing whether intervening circumstances in another case, in another district, are compelling to meet the “fair and just” standard. Because the parties and Mr. Payne were clear at the change of plea hearing that the “foundation” of the Oregon plea deal was reaching a similar deal in Nevada, the change in circumstances upon Mr. Payne’s arrival to the District of Nevada weigh in favor of granting withdrawal of his plea.
Ryan had been deceived by Nevada, and given an incomplete document, relying, instead, on verbal promises — which prove to be worthless. He had been led to believe what the Nevada plea would entail, but found that it was not as represented. He also had to consider the “most unusual situation” where he would have to prepare defenses in both states, while still detained, under guard, with limited access to attorneys, and nearly no access to those outside who may have been able to help him prepare his defense.
B. Newly Discovered Evidence Was Provided After Mr. Payne’s Guilty Plea
Although many of the facts of what occurred at the Malheur Refuge are not in dispute, the legal significance attributed to those facts is highly disputed. Proof of a conspiracy requires intent. Thus, any and all statements of intent, motive, and purpose are extremely relevant to an ultimate determination of guilt.
Subsequent to the change of plea hearing, the government produced seven additional volumes of discovery to all co-defendants. Some of this new information was particularly germane to Mr. Payne. For example, it included a video that depicts Mr. Payne talking to many others at the Refuge on January 7, 2016. In the video, Mr. Payne is shown discussing the goals of the protest, discussions he and others previously had with Harney County Sheriff Dave Ward, and Mr. Payne’s clear statements to alleged co-conspirators that they do not want violence. The existence of corroborating evidence of Mr. Payne’s non-violent intentions is a factor for the Court to consider when evaluating the effect of new evidence.
More significantly, prior to Mr. Payne’s change of plea hearing, the government had not disclosed the extent of its use, nor the names of confidential informants employed by the government to infiltrate meetings at the Refuge and elsewhere. It has now been revealed that some of the inculpatory [proving guilt] conduct and statements attributed to Mr. Payne apparently were made to confidential informants, a fact previously unknown to Mr. Payne. Had Mr. Payne and his counsel been aware of this basis for impeachment of the government’s potential witnesses, they could have evaluated the strength of the government’s case differently.
Newly discovered information need not be exculpatory in order to warrant withdrawal of a guilty plea. United States v. Garcia, 401 F.3d 1008, 1011 (9th Cir. 2005) (noting that defendant need not “show that the new evidence exonerates him or that there is a reasonable probability he would not have been convicted had the case gone to trial”). Instead, the question is whether the new evidence “could have at least plausibly motivated a reasonable person in [the defendant’s] position not to have pled guilty had he known about the evidence prior to pleading.” Garcia, 401 F.3d at 1111–12. Again, in weighing whether newly discovered evidence provides a basis to permit Mr. Payne to withdraw his guilty plea, the Court must apply the standard liberally towards the relief he seeks.
If we understand that hearsay evidence is inadmissible, then we find that the government has provided, in Discovery, hard evidence of things that might have been said. And, no evidence that might exist that would dispute the inculpatory evidence, so that there was a means of countering what had been provided. Where having that which had not been provided might, at least, afford a fair hearing, might be the reason for pleading out of frustration, rather than fighting the battle in court.
C. The Rule 11 Plea Colloquy Demonstrated that Mr. Payne Did Not Fully Agree to the Factual Basis for his Plea to Count 1
It is clear from his responses at the change of plea hearing that Mr. Payne had serious misgivings and reservations regarding the factual basis for his plea. His responses were equivocal, at best, regarding the factual basis and whether he believed he was really guilty of the crime. For example, Mr. Payne stated that “I have come to understand that folks who were — who work for the Government, that that Constitution ordained, perceived my actions as threatening or intimidating.”
This followed a statement in which Mr. Payne said that his true intent in traveling to Harney County, Oregon was to “uphold and defend the Constitution.” He also stated that “as it has been presented to me,” it was his understanding that his conduct actually impeded federal officials through threat or intimidation. The only response regarding the factual basis that was unequivocal was a simple affirmative response (“I did, your Honor”) to the question pointed specifically towards whether he entered into an agreement to intentionally engage in conduct. The Court need not find that Mr. Payne’s plea was invalid to allow him to withdraw it. Oretega-Ascanio, 376 F.3d at 843. When the Court liberally applies the “fair and just” standard, it should consider, as a matter of fairness, that Mr. Payne was extremely equivocal in his responses regarding the factual basis for his plea. His equivocations, coupled with the pressure of the situation and the statement of his true intent to engage in lawful conduct, may also persuade the Court that Mr. Payne’s guilty plea should be withdrawn.
So, when you do not have the means, or evidence, to prove the truth, and the government, through discovery, has only provided that which offers no substantiation of the truth, you have little choice but to capitulate. But, wait, the government was withholding that exculpatory evidence until after the plea agreement was signed.
So, it appears that those three conditions necessary for the Judge to grant his Withdrawal, are clearly supported in the Motion.
Finally, what Ryan is seeking is, “a trial by jury at a date and time to be determined.”
This is a rather interesting turn-around and creates an even more interesting dilemma for Judge Anna Brown. It would be difficult to join Ryan with the remaining Oregon defendants, since their trial will be going on at the same time as the Nevada (Bundy) trial, in February. This would require either rescheduling the next Oregon trial to avoid that conflict, or try Ryan separately, at some other time.
However, what led to this are the mountains of Discovery information, and then the Prosecutors feeding out only inculpatory evidence, leaving the defense attorneys to paint a rather dismal picture, concerning being able to obtain a not guilty verdict. And, as pointed out, above, the threats of a 30-year sentence cannot even be considered, as they, unlike the plea agreement and transcript, are not a part of the Record.
This is just one more instance of chicanery by the government’s Department of Justice that leads to many thousands of plea agreements, and no fair hearing in court. It also provides us even more insight into the technique of spying, not on foreign enemies or foreign governments, but on the people of this country; Those who tend to believe that the government continues to eliminate, piece by piece, those fundamental rights the Founders fought for, and then embodied in the Constitution, almost 230 years ago.
Note: There is an article, written by Ryan Payne, posted today, at “Bundy Affair“. It includes some discussion of the events related to the Burns event.
