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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

UNITED STATES OF AMERICA, )

 ) 

 Plaintiff, ) Case No. 3:16-cr-00051-BR-4 

 ) 

 v. ) 

 ) February 1, 2018 

RYAN PAYNE, )

 ) 

 Defendant. ) Portland, Oregon 

________________________________) 

RELEASE HEARING 

TRANSCRIPT OF PROCEEDINGS 

BEFORE THE HONORABLE ANNA J. BROWN 

UNITED STATES DISTRICT COURT SENIOR JUDGE 

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Case 3:16-cr-00051-BR Document 2613 Filed 04/20/18 Page 1 of 29
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APPEARANCES 

FOR THE PLAINTIFF: 

 GEOFFREY A. BARROW 

 U.S. Attorney's Office 

 1000 SW Third Avenue 

 Suite 600 

 Portland, OR 97204 

FOR THE DEFENDANT: 

 LISA HAY 

 Office of the Public Defender 

 101 SW Main Street 

 Suite 1700 

 Portland, OR 97204 

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TRANSCRIPT OF PROCEEDINGS 

(February 1, 2018) 

(In open court:) 

THE COURT: Good morning, everyone. Please be

seated.

Mr. Barrow?

MR. BARROW: Good morning, Your Honor.

Geoffrey Barrow on behalf of the United States. This is

United States v. Ryan Payne. It is Case No. 16-cr-00051. I'll

note for the record that Mr. Payne is present in the custody of

the U.S. Marshals. He's represented by Lisa Hay, the Federal

Defender here in our district. This is the time and place set

for a hearing on defendant's motion for release pending

sentencing. 

The government is prepared to proceed.

THE COURT: Thank you. Ms. Hay, good morning.

MS. HAY: Good morning, Your Honor.

THE COURT: Let me just note I've had the chance to

review both what you filed as a motion, Docket 2445, and the

government's response, 2450. I also have Officer Nischik's

report dated yesterday, and he and I have talked. I just

wanted to note that his recommendation for release is focused

on the suitability of Mr. Seal's home as a release option. 

I clarified with him that he did not engage in a legal

analysis as to whether the record shows clear and convincing

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Case 3:16-cr-00051-BR Document 2613 Filed 04/20/18 Page 3 of 29
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evidence for release, but he does find suitable Mr. Seal's

residence in the event a release decision is -- in the event

that the defendant's motion is granted. So I've got all of

that.

MS. HAY: Thank you, Your Honor.

THE COURT: What would you like to add?

MS. HAY: Your Honor, I wanted to just support

further my motion for release in order to present the clear and

convincing evidence, if I could, for release.

THE COURT: Yes, please.

MS. HAY: I do believe Mr. Seal's residence would be

appropriate, and we could get to that point; but, Your Honor,

the factors the Court should consider, when assessing flight

risk or danger, all favor Mr. Payne. They -- the ordinary

factors, of course, are the nature and circumstances of the

offense and whether it's a crime of violence. In this case,

this one is not a crime of violence. It has a maximum of six

years, and the government is recommending 41 months. Mr. Payne

has already served 24 months.

The weight of the evidence against the person is one of

the factors the Court normally considers. That's difficult in

this case, because, of course, he's pled guilty. On one hand,

all the weight is against him. But the fact that he pled

guilty, I think, should be considered by the Court as an

acceptance of responsibility. So that's a hard one to include.

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The history and characteristics of the person, we've

presented to Pretrial Services before and to the presentence

report writer the summaries from his military friends, from

close family friends, from acquaintances. I've met with his

attorneys from Nevada. Everyone attests to Mr. Payne's honor

and integrity. When he says he will do something, he -- he

will follow his word. He received an honorable discharge from

the military, and he is somebody who values honor and his word.

So I think, Your Honor, when he tells you he will come to

court, he -- he means that.

Your Honor, you're also supposed to consider the physical

and mental condition, the history of drug and alcohol abuse,

and Mr. Payne does not have any history of drug abuse. He

doesn't have any current mental health issues. He's a healthy

person. He can be relied upon to get himself to court. So

those factors also weigh in his favor.

Criminal history. He had none until this offense. That

weighs in his favor. Family ties, employment, financial

resources, I think the residence in the community, all of

those, Your Honor, also favor release. Of course his ties are

in Montana; but they're, nevertheless, strong ties. He has a

fiancée; he has children. His mother, his grandparents,

they're all in Montana. He has a home there that had been

approved by Pretrial in Nevada for him to stay with his fiancée

there. He has very reputable people he can stay with here in

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Oregon too. So the idea of a flight risk, I guess, is not --

it's not supported when somebody has such strong ties. A

flight risk ordinarily occurs when somebody doesn't have the

kind of ties where you can track them down, doesn't have the

kind of ties where you wonder, you know, would they be somebody

who could be found, or would they just disappear?

Another factor, Your Honor, for the Court to consider is

the record concerning appearance at court proceedings, and

that's also a statutory factor. And I think that is where the

42 days where Mr. Payne was on release in Nevada become

relevant. He was released December 1, as you know, of 2017, on

home detention. That was later modified to a curfew that

allowed him to be within Clark County. And despite the

severity of the sentence he faced in Nevada, which was much

harsher than the sentence here -- he was facing a mandatory 67

years of custody if convicted of all the stacked charges.

Despite that severity, he showed up for court as required. He

met with his attorney. He came to his court appearances. And

I think that's a very significant factor. It's a statutory

factor, and it's one where Mr. Payne has shown himself to be

someone who can be relied on to turn himself back in to the

Court. 

And I'll also point out he didn't engage in any violence.

He didn't threaten people. He didn't -- he wasn't charged with

posting inflammatory statements, so -- that's one of the

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factors also. Risk of violence. He was out for 42 days. He

did not do anything violent.

He drove the 850 miles to his home in Montana, with the

Court's permission, and then drove 850 miles back to court,

still facing that potential 67-year sentence if he went to

trial in Nevada and was convicted.

Your Honor, you released Mr. Payne temporarily so that --

well, he was first ordered to turn himself in to the

U.S. Marshals if the Court in Nevada dismissed the charges with

prejudice. And I know the government had a concern that in

that sort of possible celebration of the Bundy defendants and

their supporters, that there could be some kind of mayhem that

Mr. Payne or others might be overwhelmed by the relief and some

kind of misconduct could occur, and so you asked him to turn

himself in to the U.S. Marshals after that court ruling in

Nevada, and he did that. He turned himself in to the

U.S. Marshals as required.

We then discovered that it might be difficult to have

Mr. Payne brought for the phone conference that this Court had

ordered about possible release based in -- on the Oregon case

now, and you may recall that we ended up -- you ended up

ordering the U.S. Marshals to release Mr. Payne to that home

detention. And then the next day he was supposed to go to his

attorney's office, and we did the phone conference by phone

with him at his attorney's office. 

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So, again, Mr. Payne followed through with each of those.

So I think those examples show that when this Court orders him

to do something -- to go to court, to go to home detention, to

go to his attorney's office and be on the call -- each one of

those things he did despite the emotional circumstances that

existed at the time.

Your Honor, during that phone conference with the

U.S. Attorney's Office and Mr. Payne on the phone, the

government argued that he was a danger and should be taken into

custody by the U.S. Marshals and brought via the marshals to

Oregon because of this concern that he might leave and then the

danger would be -- could -- there could be some difficulty if

the marshals had to go retrieve him. 

We had an argument for both sides, Your Honor, and you

agreed with my position that he should be allowed to

voluntarily take a commercial airline from Nevada, come to

Oregon, and turn himself in here.

Originally, we asked to have him drive here, but that

drive turned out to be difficult to arrange. But you did allow

him to get on a commercial airlines, come here, and turn

himself in to Pretrial Services and the marshals, and that was

January 12th, and, again, he did that despite the government's

concern that he might flee or pose a danger.

So I think we do have quite a history here of Mr. Payne

following what this Court has told him to do, showing up in

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court, and not posing danger.

I do want to acknowledge there was a violation of pretrial

conditions when he met with Mr. Bundy and Mr. Ritzheimer at the

Bundy ranch, and, Your Honor, that -- Mr. Payne will apologize

to you for that. I called it a miscommunication and a

misunderstanding because there were some discussions about

whether the co-defendants in Nevada were allowed to meet with

each other without their lawyers present, and I know -- I have

a copy of a -- Ryan Bundy -- not Ryan Payne. Ryan Bundy filed

a notice with the Court that they intended that they should be

able to speak without their lawyers present because they had

been doing that in custody, and my understanding was this was

addressed on -- in the courtroom, but there is no minute order.

So then --

THE COURT: The order that was ordered in Nevada

certainly didn't undermine this Court's order. Mr. Payne was

not to have contact with co-defendants unless it was in

preparing his defense and with counsel present. Going to

Ammon Bundy's house to celebrate and then to Bundy ranch the

next day to celebrate were violations. They're just -- that's

just the fact. And that's the problem here.

If this was a case against Mr. Payne alone and he wasn't

subject to influence by all of the supporters with whom he's

associated, with all the people he's motivated to participate

in these events, both at the Bundy ranch and at Malheur, that

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would be one thing; but it's his interaction with these others

that is a difficult thing to assess because he -- he can't seem

to leave well enough alone.

He was in a position where Chief Judge Navarro was

struggling with resolving legal questions there. He got the

benefit of being released because she was concerned about the

viability of that trial, and he certainly didn't respect the

situation he was in here. So I -- I don't -- I don't think

there's any plausible argument here that this was a

miscommunication. This was Mr. Payne choosing to do what he

wants to do, and that's been part of the problem in assessing

the viability of release for all the defendants here.

This notion that somebody who has a complete disrespect

for the rule of federal law and the function of a federal

court -- I mean, I'm recalling times where he interacted with

me in this case. It's very hard to have confidence the times

he chooses to comply are not just choices he's making for his

own benefit and that he won't choose to do what he wishes to do

when especially motivated by others.

We saw that play out, unfortunately, with Jake Ryan in the

recent past. I'm convinced that interactions with others

influenced him to make decisions that ended up really hurting

him, and the -- the role Mr. Ryan plays in -- I'm sorry,

Mr. Ryan Payne plays in this whole scenario as one of the

people who organized the Malheur occupation, one of the people

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who was, in fact, posting very aggressive language online about

effectively defying a federal court order for the Hammonds to

surrender, and to interfere with that kind of order, it's very

difficult to ignore all of that in the face of some compliance

examples that, you know, happened at a time when coincidently

he anticipates he might be seeking release. So there's a big

problem here to sort all of that out.

MS. HAY: And, Your Honor, I -- I understand that. I

think Mr. Payne would like to address the Court, and I think he

will tell you that he has changed from what he used to say,

especially the government's, you know, 2014 quotes from four

years ago. I think he'll tell you that he has learned a great

deal while in custody and that he respects the authority of the

Court and will follow the Court's orders. I don't think that

he should be held as accountable for some of these things said

a long time ago.

This isn't the time to address this most likely, but I do

have some concerns about those 2014 quotes that they have,

recorded statements of Mr. Payne, that is in the government's

motion. And my concern is this: Is that I -- there are other

voices on those recordings. It's not something Mr. Payne --

THE COURT: Ms. Hay, I presided at the trial at which

the sheriff testified about a very aggressive presentation with

which your client was involved at the sheriff's office over

this Hammond situation, so it's not an isolated statement that

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cut -- could have been by somebody else. Mr. Payne was very

active in organizing this terrible situation at the Malheur

Refuge, including the entire militia focus, the firearms focus.

So I don't have any doubt that those singular statements that

Mr. Barrow cited are not representative of what he was saying

then. That was part of the problem, and that was part of the

basis for his finding of guilt that I made based on his plea of

guilty.

MS. HAY: And, Your Honor, I wasn't intending to say

that Mr. Payne wasn't making the statements. What my point is

is there are other people that are on these calls who are also

saying inflammatory things.

THE COURT: That's my point to you.

MS. HAY: But I --

THE COURT: It seems that when he's engaged with

other people who have this attitude of disrespect and defiance

for federal law, he's at a particular risk to make very bad

decisions. This is not an isolated case where a defendant is

charged with -- now convicted of -- a serious felony crime,

conspiracy to impede an officer of the United States by force,

threat, or intimidation, and has a few examples of compliance

at its -- with release conditions and violation of release

conditions at a time when he should be especially focused on

the need to assure the Court that whatever his beliefs are,

he's going to comply.

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I -- I don't have that confidence here because of the

context.

MS. HAY: So I -- I can't -- I'm not disputing any of

those statements, Your Honor. My point about the phone calls

was I'm concerned that there's government agents who were on

those calls as well, and I've asked Mr. Barrow to help confirm

for me whether there are -- 

THE COURT: You can sort out the phone calls. I'm

relying, for example, specifically on the sheriff's testimony

about your client's behavior in his office and the degree of

intimidation he sought to impose on the sheriff for the purpose

of what? Interfering with a federal court sentence that had

required the Hammonds to surrender after an appeal. It wasn't

merely a district judge's sentencing order. It was a matter

that had been reviewed by a court of appeals, leaving the

district judge no choice but to impose the mandatory minimums;

and, yet, your client confronted the sheriff and insisted the

sheriff was supposed to protect the Hammonds from a lawful

sentence, one that had been reviewed and remanded back to the

Court for action.

That's enough evidence for me that these references to his

statements about doing what it takes to achieve his goal,

whatever that may be, is a very deep-seated belief that he has,

and that's something that's hard to refute from the current

state of the case. And it's very hard to come to an honest

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conclusion that there's clear and convincing evidence that if

he chooses to change his mind, that we won't have more of the

same.

That's my primary concern here.

MS. HAY: And, Your Honor, I -- I read the trial

testimony, so I understand exactly what your concern about the

interaction with Sheriff Ward is. I guess what I can say is I

know Mr. Payne had what I would consider a misguided view of

the government's authority and the way to respond to that. I

know he will tell you that he didn't understand his -- the

context then to be as intimidating as it now turns out the

sheriff felt it was. The sheriff, I do believe, testified he

was trying to be accommodating, conciliatory, and that he later

would meet with them and still try to deescalate, and so I

think --

THE COURT: This meeting was simply one example --

MS. HAY: Right.

THE COURT: -- of really irrefutable evidence of your

client's disrespect for the order of a federal court. He was

part of a group that attested that they would do anything they

could to interfere with an order because they believed the

Hammonds were being treated unfairly.

Just because they believe that doesn't mean they can't --

that they have the right to interfere with a court order.

That's just a fundamental premise. Trust that a person will

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comply is at the heart of this burden he has today. And maybe

he has had a change of heart, but the problem is I still have

to evaluate it in the context of the crime for which he's going

to be sentenced.

MS. HAY: And, Your Honor, maybe this would be the

right time for Mr. Payne to speak to the Court. I know he did

want to address you, and I think he pled guilty to what

happened in --

THE COURT: He also sought to withdraw his plea.

MS. HAY: Your Honor, I know that the timing there

isn't always -- isn't completely clear; but he -- we filed a

motion to withdraw before there was a verdict in that case, and

I think you're aware that the -- the plea in Oregon had been

tied to a potential plea in Nevada, which obviously fell

through. So there's more complications there. 

I think, in any event, we can address that, as well, at

the sentencing. But he did plead guilty to what happened here,

and I think he wants to tell the Court that he understands

things differently than he did back in -- in the earlier days

when he was making statements, and I -- I do believe he would

be reliable to come to court, and that the evidence that we do

have with his compliance with coming into court and his lack of

danger to anybody is still clear and convincing.

The violation that occurred isn't an example of flight

risk or danger, which is the standard the Court should apply

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here. So if we're looking at did he do things wrong, then of

course he could be kept in custody for having done things

wrong. And he's pled guilty, so he could be kept in custody.

That's not the standard. The standard is is he a danger to

anybody and is he a flight risk? And I think on those two we

do have clear and convincing evidence.

Let me ask if Mr. Payne could speak.

THE COURT: If he would like to speak with you first,

that's fine too.

Mr. Payne, good morning.

THE DEFENDANT: Good morning, Your Honor.

Sorry. I respect the Court's time and hope to be brief.

I -- first off, hearing -- hearing Your Honor's concerns, I

agree with your assessment that my interaction with certain

individuals is probably a -- somewhat of an influence on my

decision-making, and, in light of that and my desire to repent

of the deeds for which I have pled guilty, notwithstanding

my -- my previous attempt to withdraw the plea, I do intend

to -- to abide by the Court's, you know, not allowing that to

happen and -- and to move forward with the sentencing and abide

by whatever sentence the Court finds to be appropriate.

And in regards to a release until that sentencing and

until I serve whatever sentence it is that the Court imposes, I

believe that it would be in my -- in my best interest and, of

course, satisfy the Court's concerns that I abide by the

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restriction not to affiliate with these people and even not

specifically in regards to the Court's restriction, I agree

with the Court's concern. I would take it upon myself, I

think, to impose that restriction on myself. So I -- there's a

similar interest I have there.

The reason for that, Your Honor, is that I feel -- I

understand that in the Court's perception and certainly

possibly in the government's perception and maybe even in the

American people's perception, my honor and service to my

country is slightly marred due to my actions; but one thing I

don't want to be marred is my integrity, and I understand the

concern with the previous -- what Ms. Hay has characterized as

a misconception or -- I'm not going to argue that with you. I

accept responsibility for that and -- and am deserving of that

admonishment.

So I do have a desire to spend a little bit of time -- I

do appreciate the Court's allowing me to return home and spend

some time with my children and my fiancée during -- over the

holidays. I -- I am requesting the Court's mercy in allowing

that so that I can spend a little bit more time with them

before this sentencing occurs and with my word given that I

will do my utmost to abide by the Court's orders. I do respect

the Court's orders, and, once again, my apologies for the

previous inequity in that regard.

That's all I have. Thank you, Your Honor.

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THE COURT: Thank you, Mr. Payne.

Mr. Barrow, anything?

MR. BARROW: Your Honor, I'm not one to recount the

arguments that we present in our written briefing. I just

would like to react to what Mr. Payne just said. I certainly

respect and appreciate his words promising compliance, but the

problem is a little more than a month ago he was released with

a similar promise to abide by conditions and he violated those

conditions.

I would also note that his request to be released to spend

time with his fiancée and his children and to prepare for

self-surrender, as articulated in Ms. Hay's briefing, those are

not factors that the Court should consider under the statute.

And, finally, while I have great respect for Pretrial

Services, and Mr. Nischik in particular -- he's done a

tremendous amount of work in this case. I've talked to him

about all the defendants, and I know they have been difficult

to supervise. But the bottom line is that if Mr. Payne is

released in this case and he eventually decides to act on the

words that he said on so many prior occasions, or even if those

that Mr. Payne has inspired over the long period of time act on

the words that he has said and choose to not abide by the

surrender order, or if his friends take him into custody, as he

proposed for the Hammonds, deputy U.S. Marshals will be asked

to go and find Mr. Payne. And given the defendant's past words

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and his actions, that's not something that anyone should ask

them to do.

The bottom line is that Ryan Payne should be detained

pending sentencing, which is currently set for February 27th,

because he is a danger to the community and a risk of flight.

I'm happy to answer any questions the Court may have.

THE COURT: No. Thank you, Mr. Barrow.

Is there anything else, Ms. Hay?

MS. HAY: Your Honor, I guess just that's the

argument the government also made when we were considering how

Mr. Payne should get from Nevada to Oregon, and I think if

there were a moment that somebody would take off and, you know,

be influenced by the wrong people, that was probably the moment

in Nevada when the case had been dismissed, when there were

many Bundy supporters around, when he actually had to get

himself to the airport, get on the plane, knowing he's coming

here to go into custody. Because that was clear. He was

coming straight to custody, and we didn't have a release

hearing set for several weeks, which we had to postpone until

now.

So I know the government's concern, but I have known

Mr. Payne now for two years. I have been in contact with him

on the phone. I've talked to his lawyer who has been working

with him in Nevada. He's not somebody who has been spouting

violent statements during this whole case. I think he has

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actually learned a great deal of how his conduct was perceived

by others and that if he even at that point had a good faith

belief in his political viewpoint, that he's gone in a

different direction from that and he knows he can't follow that

anymore. And I -- I don't think what the government has said

shows a danger and a flight risk. I think our burden is to

show clear and convincing evidence that he is not a danger or a

flight risk, and I feel that all the factors that the Court

should consider, those do weigh in his favor because of his

lack of a criminal record, his connections to the community,

his lack of drug addiction, his appearances in court.

The government is coming up with ideas of how he could be

a danger, but they haven't actually proven true. And I

understand that the statements that he made were inflammatory

and the interaction with the sheriff was intimidating, but in

all of this, there's actually not an allegation that he pointed

a gun at somebody, that he was threatening that he was actually

going to harm somebody.

I know there was one statement that -- supposedly a

statement that -- to do anything up to the point of death. I

think you'll recall that the FBI agent who was called that same

day to testify said he -- he got the report from

Lieutenant Needham, and he didn't include any death threat in

his report.

So I think there are some memories that have been affected

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by time; but, nevertheless, I know Mr. Payne has agreed that

his actions were intimidating, that he understands now that the

way he behaved and the words that he used are what made the

Court question him. And, yet, time has passed since then. And

in his time out on release, he did actually come to court as he

was supposed to. He didn't threaten anyone. He didn't do what

the government's concern was, was that he would hold himself up

somewhere and have to be extracted. He could have done that

during any one of the 42 days he was out on release. He could

have done that when the Court ordered him he had to come to

Oregon to go into custody.

So I think the government is putting forward suppositions

of what could happen, and we've put forward evidence of what

actually did happen. And actions, in the end, speak louder

than words.

So I'm asking the Court to release him because the statute

allows it. We presented evidence that would show that he's not

a clear danger. In fact, there's clear and convincing evidence

that he's not likely to pose a danger or a flight risk. I

think if he is released to Mr. Seal's home, he will be on a

monitor and come as required.

As you know, having somebody released pretrial or

presentence does make a difference on their custody

classification, their time where they may be sentenced or where

they may be sent. If the Court were willing, after sentencing,

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to allow some time before self-surrender, of course it means

the defendant doesn't have to stay in county jail and get moved

to Oklahoma. So there are practical reasons in addition to

request this, but we are intending to go forward with the

sentencing on February 27th. We're not seeking delay of that. 

So our request is that until that time he be released

because the statute would allow it.

Thank you, Your Honor.

THE COURT: Thank you, Ms. Hay. Give me a few

minutes here, please.

(Pause-in-proceedings.) 

THE COURT: Let me begin by addressing the point

Ms. Hay has made a few times that the Court's decision in

allowing Mr. Payne to travel out of custody from Nevada to

Portland, knowing he would have to surrender to custody here,

somehow binds the Court in making a consistent decision today.

The fact of the matter is my decision to authorize that mode of

travel was governed by a primary concern that I needed to get

Mr. Payne back here and the logistical obstacles to get that

accomplished within a reasonable period of time were mounting,

including Mr. Payne's objections to being taken into custody

and potentially waiting a matter of weeks for when the marshals

might be able to coordinate a trip from Las Vegas to Portland

or the cost to the U.S. Marshals Service of doing some kind of

direct transport of him. The priority to me was to get him

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here because the pendency of that Nevada case has impeded the

resolution of this case against Mr. Payne in Oregon. And I

don't in any way think that that decision -- case management

decision in the exercise of discretion, to move him here so

that we can finally get his case completed, really bears on

today's decision.

The statutory burden Mr. Payne faces is to establish

release as warranted by clear and convincing evidence. Clear

and convincing evidence is evidence that shows the proposition

is highly probably, not just possible or even more probably

true than not.

This is a complicated question in Mr. Payne's case

because -- because of all that is documented in his behavior,

both at the Bunkerville event and here in Oregon, involving the

Malheur occupation, and his very active role here, which was

inextricably intertwined with a fundamental disrespect of

orders of this Court. Another judge of the court, but still a

judge of the United States District Court.

I respect his statements today, and I believe his

assertions of integrity. The difficulty is that for Mr. Payne

complying with his integrity means making decisions consistent

with what he thinks is right, which might coincide with a

Court's order or might not. He is a man who gave service to

his country. He has in his history and characteristics -- that

factor will weigh significantly in the Court's exercise of

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discretion as to what a reasonable sentence will be for him,

but he has used that history, as well, in the

militia-organizing activities in which he's engaged in,

activities that put a lot of people at risk over time. In many

ways, I think, in hindsight it's -- it's extraordinarily

fortunate that there wasn't more that came out of the refuge

than the death of Mr. Finicum, that people weren't

affirmatively injured or hurt beyond what had -- was documented

in the context of that traffic stop, at which Mr. Payne, by the

way, did walk out of the vehicle and surrender, as opposed to

the behavior of others.

So we come to the fundamental burden that he has for

purposes of release, and that is to show it is highly probable

that he will comply with court orders and, thus, not be a

danger to the community and, thus, not be a flight risk. And

the difficulty I have with that is that he's even recently

demonstrated his -- and acknowledged here today his tendency to

be influenced by others who are part of this belief system

around which he has invested so much time and energy, to the

detriment of respect for the law. So there isn't any way I can

look at this record and conclude that he's established the

standard necessary for release. So I'm denying defendant's

motion for failure to meet the required burden. He's to stay

in custody for sentencing.

At sentencing, Ms. Hay, I would like input about whether a

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brief release after sentencing, in the course of a day -- I've

done this in some other cases where I was convinced it might

actually make a difference -- but a release and then a

surrender back the same day might serve to give the defendant

credit for a self-surrender that would otherwise be denied him

in the classification.

I would like both sides to address whether that is a

meaningful consideration. If it isn't, then fine; but I have

had cases where that happened to make a difference. I don't

know whether the nature of this offense, even though it's not a

crime of violence, as that term of art is used, the nature of

the offense, however, involves an element of force, threat, or

intimidation as the objective of the conspiracy, and I don't

know how the Bureau of Prisons will classify Mr. Payne for

purposes of a designation to a facility, which question should

not assume that I've made up my mind about what sentence I'm

going to impose and that Mr. Payne will receive a sentence that

requires more than time served. I know that's an argument that

is coming, and I'm certainly open for that argument. 

So just a reminder, Mr. Payne, when you pled guilty, I

told you the -- the decision for your sentence depends upon my

determining what sentence is reasonable. In lay terms, that's

defined as enough but not too much and never more than the

maximum, which here is six years, to accomplish a number of

goals. One is to punish you for criminal behavior; the other

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is to promote respect for the law in you and in others

similarly situated to the point that you're discouraged from

repeating this behavior in the future and that others who see

what happened to you for having committed the crime don't do it

in the first place and a sentence that protects the community

and a sentence that looks forward to your return to the

community, taking into account your personal history and

characteristics. And that definitely includes the good in your

background, your military service, your honor -- honorable

discharge, and other positive factors in balance with all of

the other stuff that led to this situation.

I'm required to calculate a guideline range. You'll

recall in your plea agreement there were agreements made

between you and the government about how the guidelines

applied. That is between you and the government. I still have

to make my own calculation. And that guideline range is only a

starting point.

It presently, as I understand it -- I haven't made any

findings, but I'm remembering that the current guideline range

presently is more than the time you've already been in custody.

But that is only a starting point. I have discretion to

sentence you within the range, above the range, or below the

range. But I have to be satisfied that the sentence is, in

fact, reasonable and avoids what is called unwarranted or

unjustified differences with other defendants similarly

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Case 3:16-cr-00051-BR Document 2613 Filed 04/20/18 Page 26 of 29
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situated. 

So there's a lot to talk about around the sentencing

issue. And Ms. Hay knows well how to get the information she

wants me to have, as does the government, into the sentencing

materials that I'll be receiving. 

So the fact that I've decided you need to stay in custody

today doesn't at all affect what the sentence is. That's a

different legal inquiry, and it will be decided along the lines

I've indicated.

So a presentence report was prepared. There's a process

to object to the contents to the writer of the report. If

there are issues that still remain about the content of the

report when we gather for sentencing, then I have to make legal

rulings about that. Then I'll hear from the government as to

what its recommendation is and you and Ms. Hay as to yours; but

I won't make a final decision until you have had a chance to

speak directly, if you wish, at sentencing.

There are some guideline issues that maybe are disputed

here. And one of the issues is whether the -- from my

perspective, is whether the fact that you moved to withdraw

your guilty plea affects the credit you otherwise would have

gotten under the plea agreement for acceptance of

responsibility.

The government may urge not to change, but I still have to

take that into account. And then there's this guideline issue

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Case 3:16-cr-00051-BR Document 2613 Filed 04/20/18 Page 27 of 29
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around an upward adjustment based on the nature of the conduct

that is unique to this kind of charge. 

So there's a lot to work through, and I think -- I hope

you know you have a very capable lawyer who understands the

full parameters of things. You need to work with Ms. Hay to be

sure she understands what is important to get in front of me,

and we'll work through it and get to a sentence on

February 27th.

Mr. Barrow, anything else for today?

MR. BARROW: No, Your Honor. Thank you.

THE COURT: Ms. Hay?

MS. HAY: No. Thank you.

THE COURT: All right. We're in recess. Thank you.

(Hearing concluded.) 

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Case 3:16-cr-00051-BR Document 2613 Filed 04/20/18 Page 28 of 29
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C E R T I F I C A T E 

United States of America v. Ryan Payne 

3:16-cr-00051-BR-4 

RELEASE HEARING 

February 1, 2018 

I certify, by signing below, that the foregoing is a 

true and correct transcript of the record, taken by 

stenographic means, of the proceedings in the above-entitled 

cause. A transcript without an original signature, conformed 

signature, or digitally signed signature is not certified. 

/s/Jill L. Jessup, CSR, RMR, RDR, CRR, CRC 

_____________________________________________ 

Official Court Reporter Signature Date: 4/20/18 

Oregon CSR No. 98-0346 CSR Expiration Date: 9/30/20 

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Case 3:16-cr-00051-BR Document 2613 Filed 04/20/18 Page 29 of 29