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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 27, 2018 

RYAN PAYNE, )

 ) 

 Defendant. ) Portland, Oregon 

________________________________) 

SENTENCING 

TRANSCRIPT OF PROCEEDINGS 

BEFORE THE HONORABLE ANNA J. BROWN 

UNITED STATES DISTRICT COURT SENIOR JUDGE 

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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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INDEX 

WITNESSES: PAGE: 

DR. SUZANNE BEST 

Direct Examination by Ms. Hay 6

Cross-Examination by Mr. Barrow 20

Redirect Examination by Ms. Hay 25

ROBERT WEBB 

Direct Examination by Ms. Hay 29

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TRANSCRIPT OF PROCEEDINGS 

(February 27, 2018) 

(In open court:) 

THE COURT: Good morning, everyone. Please be

seated.

Mr. Barrow?

MR. BARROW: Good afternoon, Your Honor.

Geoffrey Barrow and Ethan Knight on behalf of the United

States. This is United States v. Ryan Payne. It is

Case No. 16-cr-00051-04. Mr. Payne is present. He's in the

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

and this is the time and place set for sentencing. The

government is prepared to proceed.

THE COURT: Does the government have any evidentiary

presentations to make this morning?

MR. BARROW: No, Your Honor.

THE COURT: All right. Ms. Hay, good morning.

MS. HAY: Good morning, Your Honor.

THE COURT: Do you have evidentiary presentations?

MS. HAY: I do, Your Honor. I wanted to call two

witnesses. One is Dr. Suzanne Best, and then the second will

just be a witness by phone, one of the gentlemen who wrote a

letter in support of Mr. Payne, Robert Webb, and I've given the

clerk that phone number.

THE COURT: Okay. Well, let's get the new evidence

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in first, and then we'll proceed with the sentencing.

I wanted to give notice, Ms. Hay, that I'm considering a

reduction in the acceptance of responsibility credit from the

three levels referenced in the government's memo and the plea

agreement to two because of the defendant's motion to withdraw

his guilty plea and his pretrial violations.

I'm also going to want the government to respond to each

of the guidelines arguments Ms. Hay has laid out and whether in

the context of a plea agreement those arguments are something

the Court should be considering since there was an agreement as

to guidelines. So I want the precise position that the parties

have on those issues. 

And then, finally, with respect to recommended conditions

of supervision, there's a no-contact recommendation with

respect to co-defendants, but I want you to know that I'm

considering expanding that to the Operation Mutual Defense

group identified in the government's exhibit and will want to

know if there are any other individuals that should be

considered for no-contact requirements during supervised

release.

So with that said, Ms. Hay, go ahead and call your first

witness, Dr. Best, and then we'll take the witness by phone.

MS. HAY: Thank you, Your Honor. Dr. Suzanne Best.

DEPUTY COURTROOM CLERK: And please approach the

witness stand.

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MS. HAY: Your Honor, may I have one moment to check

with my investigator?

THE COURT: Of course. 

Please come all the way up. Watch your step. Face the

deputy and raise your right hand to be sworn.

DR. SUZANNE BEST, 

called as a witness in behalf of the Defendant, being first 

duly sworn, is examined and testified as follows: 

DEPUTY COURTROOM CLERK: Please be seated. And if

you would state your full name, spelling both first and last

for the record.

THE WITNESS: Suzanne Best. S-u-z-a-n-n-e. B-e-s-t.

THE COURT: Thank you. 

Counsel?

DIRECT EXAMINATION 

BY MS. HAY: 

Q. Good morning, Dr. Best.

A. Good morning.

Q. Would you just state for the record, please, your degree

and what your license is in.

A. I have a doctorate, a Ph.D. in clinical psychology, and

I'm licensed in the state of Washington and the state of

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Oregon.

Q. And what is your current practice?

A. Currently, I'm in private practice, and approximately

30 percent of my practice is spent in treatment, and that is

almost entirely focused on veterans, active military, as well

as law enforcement professionals. And then approximately

70 percent of my practice is focused on forensic work, both

civil and criminal, and then I do a bit of teaching and writing

and research.

Q. And you're a clinical psychologist?

A. Yes, I am.

Q. Okay. And then did we ask you to meet with my client,

Mr. Payne, at the beginning of this case?

A. Yes.

Q. And that would have been shortly after his arrest in March

of 2016?

A. Correct.

Q. And where -- where did you interview him?

A. While he was in custody.

Q. And could you just go through for us, please, what you

reviewed, before or after the interview, of information?

A. Yes. I reviewed records pertaining to the case. I would

have to look at my report to know exactly what I reviewed. But

I did that, and then -- so there were some witness interviews

that I reviewed, as well as the indictments, and then VA

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medical records that I had received for review.

Q. And by "VA" you mean "Veterans Affairs"?

A. That's correct, yes.

Q. And then you wrote reports that the courts and the

government now have a copy of?

A. Well, I conducted an evaluation of Mr. Payne, so that

included an extensive history collection, and then I did some

more semi-structured formal testing to assess his symptoms and

possible diagnoses.

Q. And then did you have an opportunity to meet him again

more recently?

A. Yes. On February 13th.

Q. February 13th of this year?

A. Yes. That's correct.

Q. And that was, again, in custody?

A. Yes.

Q. So let me just jump straight to the discussion of having

met Mr. Payne recently. Was there any difference that you

detected between having evaluated him two years ago and then

the Ryan Payne you met recently?

A. Yes. I would say a significant difference.

Q. And could you give us sort of the overall general -- the

area of difference?

A. Well, it was apparent that over the course of the previous

two years he had spent a great deal of time in introspection,

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which is sort of his style and character to be very

introspective, and so he really made use of that time

considering all the different aspects of his actions and his

beliefs and his goals.

Q. So did he -- did he talk to you about a mental shift of

how he -- how he wants to direct his efforts going forward now?

A. Yes, he did. And that covered a few different areas. I'm

sorry.

Q. So could you just describe some of those, the differences,

that you saw in his direction?

A. Yes. So to begin with, he was very clear that --

especially after all this time away from his children and his

family, that it was very important to him to now be as close to

home as possible and to really focus his efforts and his

primary focus upon his children and his family members, and

that was in contrast to prior, when he was traveling about the

country in his activities.

So there was that piece.

Then there was also the piece in regards to his actions,

particularly in regards to this case and Malheur, in that he

really expressed a great deal of understanding about his sense

of -- his level of responsibility in those activities, as well

as the impact that his actions had, and he expressed some

significant remorse for that as well. 

And then the third piece had more to do with his goals for

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the future and where he wants to direct his activities in the

future.

Q. So maybe I'll turn to that in a moment, then.

A. Sure.

Q. Now, one of the things you discussed with him, of course,

would have been his military service and the effect his

military service had on him.

A. Yes.

Q. We have given the Court evidence that he served two tours

of combat duty in Iraq, that he joined the military at the age

of 17.

Can you discuss with us just what you saw, meeting with

Mr. Payne, about the effect of the military on him? This would

be from his initial interview and going forward.

A. Okay. Well, especially in the initial interview,

Mr. Payne was reticent to discuss the specifics of the

experiences he had there. Though, it was clear that, you know,

he entered the military at a very young age, at age 17, and he

was very idealistic about what his experience would be there.

He was then deployed to Iraq, and he discussed his

experiences in Iraq more broadly, in regards to the impact that

he and his fellow soldiers had in the country, in general, upon

Iraqi citizens, the part that he played in terms of essentially

being engaged in killing Iraqi combatants, and also the life

threat that was very significant that he himself experienced.

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And then he discussed some very specific incidents in that

regard as well.

Q. So having, sort of, reviewed with him his military

experiences and then seeing some of the records, you discuss in

your report the ideas of betrayal, trauma, and moral injury.

A. Yes.

Q. Can you elaborate a little on what those mean in the

context of Mr. Payne's experience?

A. Yes. So the idea of moral injury really has to do with

experiencing an actual shift or something that occurs that

causes you to bring into question your sense of self and your

sense of your own moral values and beliefs and also your sense

of the institutions and, for instance, the government and

things that you depend upon and what your values and beliefs

are in regards to them and your relationship with them.

And so in Ryan's case, he suffered significant moral

injury that he discussed even further in our visit on

February 13th, which is, for one, his sense of himself and that

he really went into this experience thinking that they were

going to be in this country to protect and defend the Iraqi

citizens and also to promote some positive, and, in the end, he

came out of it feeling as though he was a trained killer who

was sent in to do just that.

So that really was a difficult thing for him. And when he

returned home, his family discussed -- he reported to me, and I

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also saw in their interviews and letters how Ryan really

refused to talk about his experiences and talked about it as

though, "You would not feel good about who I am, and I don't

really want to talk about that part of me." 

So that was a very difficult for him -- thing for him, and

there is now a lot of evidence and research regarding moral

injuries; particularly, in veterans who actually kill in

combat. And the interesting thing is we think of that --

that's what soldiers go over there to do; but actually only a

small percent of soldiers actually committed that act while

they're in combat, and so the impact of that can be very

injurious to someone in terms of their sense of themselves,

which is true for Ryan.

Q. Is it now understood that it would be helpful to veterans

who've experienced these kinds of incidents to get counseling

and to decommission any assistance as they leave the military?

A. Absolutely. Yes.

Q. Is that something that's available through the Veterans

services even today?

A. Yes, it is. Yes. Again, based on this research. Uh-huh.

Q. You also diagnosed Mr. Payne with having PTSD as a result

of all these experiences, and, I guess, before I ask you what

that could result in, can you help us understand if there are

even aspects of Mr. Payne's childhood that could have caused

him to be at risk for PTSD even before he entered the military?

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A. Yes. So, unfortunately, Ryan has a history that, you

know, he -- he really suffered a great deal of emotional abuse

by his stepfather. He witnessed the emotional abuse

perpetrated upon his mother, as well as physical abuse, and

that, we know, tends to cause people to be at much greater risk

for developing PTSD down the road if they're exposed to future

trauma. So that was the case for Ryan. 

I think it's also important to note that the other thing I

discussed in my report was this issue of betrayal trauma. And

that is something that Ryan experienced as a child. Betrayal

trauma, being that when the either institutions or people on

whom you depend, if they harm or betray you in some way, that

can constitute a trauma because you're dependent upon them for

support, if not survival. And this was the case for Ryan as he

was growing up with his stepfather, and his stepfather not only

was tearing him down and abusive, but he was also tearing down

the mother who brought him into the world. And then that set

him up for when he went into the military. 

He really, I think, in my opinion, was hoping to find in

the military and in his government the father figure that he

didn't have and that sense of structure and dependability. 

And then he was involved in an incident in Iraq during his

second tour when he had that very significant sense of betrayal

in that he and a few other troops were left out in the middle

of the desert for over 24 hours under constant fire, and his

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superiors knew they were out there and refused to come and get

them immediately. And so that, for him, was the sense of, "We

were simply left out there to die and betrayed."

So I'm saying all of that because all of this leads into

the PTSD. The moral injury, the sense of guilt that he

experienced, and also the betrayal, and then also the life

threat, all of which led to that development of PTSD.

Q. So looking at the facts of Mr. Payne's life after his

honorable discharge from the military, could you see the

effects in his life of this betrayal trauma, moral injury, and

PTSD when you were reviewing the interview memos and having

interviewed him?

A. Yes.

Q. What, generally, did you see about the period of his life

after he was discharged from the military?

A. Well, initially, he struggled a great deal and -- in his

first marriage, and he really spoke about -- has spoken about

feeling an extreme sense of guilt during that time, which,

essentially, he tried to drown out with alcohol, initially, and

also just with incessant activity that wasn't necessarily

accomplishing much; but he was just constantly needing to be

active to avoid thinking about these things. That resulted in

basically the dissolving of his first marriage. 

And following that, there was a great deal of still a lot

of anger, which is commonly seen in people who suffer these

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moral injuries and betrayal trauma, and also at the same time a

great deal of searching. Searching in terms of religion,

searching in terms of trying to find groups where he felt a

sense of belonging, and also just searching for some sort of

sense of rule and order, which is common for people who have

these conditions.

Q. And you're aware that Mr. Payne, after that period of

initial few years after discharging from the military, began to

follow the militia movement and, sort of, group of people who

were thinking they were supporting the Constitution in a

certain way. Does his participation in that movement make

sense in the context of what he had experienced and what -- in

his searching?

A. It does. It does. I mean, keeping in mind that he was at

a relatively young age, initially, as well, and just -- just

that sense of what is -- what does this all mean? Who am I?

Needing to find an identity was, I think, part of it. That's

also a struggle. "If I'm no longer a service member, what am

I?"

And then it was also a sense of needing something really

concrete. With all this questioning and struggling going on,

"What can I latch onto that is a concrete foundation?" And,

really, I -- it's -- in my opinion, it was really the

Constitution and, in addition to that, I would say the Bible

and religion. That had a very concrete meaning, a concrete set

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of rules that was very clear, and he approached it, as did this

movement, in a very unquestioning way.

Q. Did Mr. Payne have any reflections on his involvement with

these groups when he talked to you more recently?

A. Yes.

Q. What was his reaction to his participation in these groups

when you spoke this time?

A. Well, if you don't mind, I would say that Mr. -- Mr. Payne

tends to be more eloquent than I am; so if I could just read

some of what he said to me from my notes, would that --

Q. Sure.

A. Okay. So one thing he talked about, and he -- he has

begun, I've noticed, when we recently met, to be better able to

talk about the details of his traumatic experiences in Iraq,

and so he actually relayed to me the details of one experience

in which he and some member of his units had killed a couple of

Iraqi insurgents. And he went into a family home, about three

months later, of Iraqi citizens and saw that they were grieving

the loss of these two brothers, and then they recognized that

these were actually two brothers who they were responsible for

killing, and that caused him a great deal of guilt as he

witnessed the grief in this family. And that is an unusual

experience. That sort of thing doesn't happen frequently.

And so what he talked to me about, after relaying that

experience, is he talked about how they had, you know,

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quote/unquote, destroyed lives and families and even entire

cities. 

So then he went further to say that he now recognized --

he said, "My most recent service at Malheur was part of my

repentance for that. Protecting people and liberty rather than

taking it away." And I think that this is how he was now

becoming to understand why he was driven to do what he did.

Q. Go ahead.

A. But he went on to say, though, that he really felt as

though that -- one thing he said was, "My defense prompted the

government's response. I realize now that it's better for me

not to be involved in these activities because I'm bringing in

negativity, when what I want to be is a positive influence."

He said, "The whole experience has changed my attitude of

service away from active defense of life, liberty, and

property, and toward humanitarian effort."

MR. BARROW: Your Honor, if I could just interrupt at

this point? Could we get a copy of these notes? I asked for

all Jencks materials and didn't get anything, so I have no idea

how she's testifying from notes.

THE COURT: Yes. When the witness is finished,

you'll have a chance to review everything she has in her

possession, and then we'll go.

Go ahead.

MS. HAY: I'll ask a few more questions, then.

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BY MS. HAY: (Continuing) 

Q. Dr. Best, in your work, you have a chance to evaluate

people who are malingering or who are faking a change of heart

in some ways. Should we be concerned when Ryan Payne tells you

these things about focusing on family and humanitarianism that

he's just saying what we want to hear? What was your

evaluation of that?

A. Well, that's certainly not my clinical impression. If

anything, I would say that Mr. Payne tends to be overdisclosing

rather than underdisclosing, except in terms of his specific

traumatic experiences.

And he also -- I mean, you can actually see as he's

speaking that he is kind of struggling with cogitating on all

these things, and you can see that he's wanting very much to

understand himself as he's expressing these opinions. 

So they certainly don't -- as though they have -- although

they come out as these very eloquent statements as though he

sat around practicing them, it's actually just simply the way

he speaks, as I saw consistently, and then this is the way he

just works through things.

Q. And he appeared sincere to you when he was speaking about

this sort of change in his outlook?

A. To be quite sincere and not to be malingering or trying to

fake good, as we call it, in any way.

Q. Okay. Well, so having diagnosed Mr. Payne with PTSD, do

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you have any concerns he would be a danger to the community if

he were released now?

A. No, I do not.

Q. What is the reason for that lack of concern?

A. Well, a number of reasons. One being that he has a very

supportive family to whom he wants to return and stay. He has

expressed now a very keen interest in an amenability to

treatment, which he hadn't in the past, and that treatment

actually happens to be available there in Anaconda, Montana,

where he can receive treatment both for the PTSD as well as the

moral injury, which I think would be very important, and he has

expressed a desire to do that.

He has a very strong work ethic and a strong

employability, and that's also, you know, good in terms of

preventing future activities or actions that might be

problematic.

And then he, you know, again, is expressing a lot of

prosocial values and a desire to get involved in prosocial

activities. He's talked about wanting to start a,

quote/unquote, ranch, basically, where people can come,

including troubled teens, as well as veterans, and where they

can provide support and assistance. And so a lot of, you know,

very strong prosocial values and goals.

MS. HAY: Thank you. I have no further questions.

THE COURT: All right. Counsel, you may approach the

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witness to receive her notes.

Doctor, would you give counsel your notes, and then he'll

bring it back when he's finished.

MR. BARROW: They're fairly short, Your Honor, if I

could just take a minute?

THE COURT: Yes.

MR. BARROW: Thank you, Your Honor.

CROSS-EXAMINATION 

BY MR. BARROW: 

Q. Dr. Best, you interviewed the defendant in, I believe,

March of 2016?

A. Uh-huh, yes.

Q. And you spent about three and a half hours with him; is

that right?

A. I believe so. I would need to check my notes. Uh-huh,

yes.

Q. And based on that interview, you opined that he had PTSD

and alcohol use disorder; is that right?

A. In full remission.

Q. At that time, you didn't -- is that the same as a clinical

diagnosis?

A. It's a -- I'm not sure what you mean when you say

"clinical diagnosis."

Q. I just noted -- sorry. I noted in your report you didn't

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call it a diagnosis or a clinical diagnosis. You called it, I

believe, a conclusion or an opinion. I'm just wondering if

it's the same thing.

A. That's interesting. Let me look. I'm trying to get to

that page. I apologize.

It's a DSM-5 diagnosis, which is meaning that -- so I

classified it as a DSM-5 diagnosis, meaning meeting full

criteria from the diagnostic manual.

Q. And that's both with PTSD and the alcohol use disorder?

A. Yes. Uh-huh.

Q. The original report did not diagnose the defendant with

betrayal trauma or moral injury; is that right?

A. So those are not DSM-5 diagnostic disorders or conditions.

Q. But alcohol use and PTSD are?

A. Correct.

Q. Is it your opinion that the defendant's PTSD caused him to

lead the armed occupation of the Malheur National Wildlife

Refuge?

A. That his PTSD caused him to lead it?

Q. Yes, ma'am.

A. I'm sorry. I didn't understand.

I believe that his PTSD played a part in terms of

propelling his need -- well, propelling his anger toward the

government and propelling his need to assuage his guilt by

feeling as though he was protecting and defending. And then --

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you know, then these other issues, in terms of the moral injury

and the betrayal trauma, factored in as well.

Q. Do you recall that in your March 2016 interview with the

defendant he told you that his grandfather was the one that

sparked his views of the government?

A. His grandfather had initially sparked those views,

according to him.

Q. And that occurred before his service in the military?

A. 2008 was when he actually -- as I recall, that I had put

in my report here, that it was not really until 2008 that he --

sorry. It was not until 2008, after his grandfather passed

away, that Ryan began to seriously consider religion and these

other thoughts. 

I think that his grandfather -- as he presented it to me,

anyway, his grandfather sort of laid the foundation of these

beliefs, but primarily religious beliefs, and that he inspired

him to consider these things; but then it was not until 2008

that he sort of took up this mantle more seriously. 

Sorry. That was page -- I didn't bring my glasses up

here, unfortunately -- page 5.

Q. On page 3 you talk about him sparking his beliefs about

government control?

A. Sparking, meaning the foundation of them.

Q. And my only point is that would have been before his

military service?

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A. Yes.

Q. Okay. In February of 2018, you interviewed him again.

How long was that interview?

A. Oh, I did not write down the exact amount of time. We

were unfortunately having a no-contact visit because there

weren't any contact rooms available. So it was a bit more of a

brief discussion by phone.

Q. Can you estimate how long?

A. 20 minutes?

Q. I saw your notes from that 20-minute interview. Did you

prepare a report?

A. No, I did not.

Q. Why not?

A. Because I was not asked to prepare a report.

Q. Now, you testified that Mr. Payne is no longer a danger to

the community despite his diagnosis and your evaluation. You

are, of course, aware that there are tests that clinical -- or

forensic psychologists do to determine whether a defendant is a

risk of danger or recidivism in the future; is that right?

A. Yes. I did not conduct a formal risk assessment.

Q. Why not?

A. Because I was not asked to.

Q. Now, between the original interview in March of 2016 and

the February of '18 visit, did you treat Defendant Payne for

any condition?

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A. No, I did not.

Q. And, to your knowledge, did he take any medication for any

condition?

A. Medication? I do not believe so. That is not my

recollection.

Q. I'm just asking if you were aware of that.

A. That is not my recollection.

Q. Okay. Now, you talked about the impact of his military

service and particularly as it related to moral injury; right?

A. Yes.

Q. Did you ever review his military records?

A. I did not review his full records, no.

Q. Wouldn't reviewing military records be important in

assessing military service as it relates to moral injury?

A. What I did is I reviewed a report by Dr. Brown and --

Q. But that's not my question. 

A. Would it be helpful to review the full military records?

Q. Yes.

A. Yes, it would.

Q. Now, you talked about your experience as a psychologist in

detecting malingering. Isn't that experience related to

detecting whether someone is malingering related to a

psychiatric condition or a mental health condition?

A. Primarily, but it can also refer to whether someone might

be overreporting or underreporting or whether or not they're

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simply a reliable reporter.

Q. But you don't have any special training in telling

whether -- if someone is actually sincere or telling the truth.

There's no expertise you have in that?

A. Not specific training, no.

MR. BARROW: I have no further questions, Your Honor.

THE COURT: Ms. Hay, any redirect?

MS. HAY: Just briefly to make sure the record is

clear.

REDIRECT EXAMINATION 

BY MS. HAY: 

Q. Dr. Best, before testifying today, were you able to review

a 30-plus-page report from Dr. William Brown?

A. Yes, I was.

Q. And that was a report that concluded that Mr. Payne

suffered from moral injury?

A. Yes, it did.

Q. It reviewed his military service in detail?

A. Yes, it did.

Q. Including listing some of his military awards and

commendations?

A. Yes, it did.

MS. HAY: Thank you. No further questions.

THE COURT: Doctor, with respect to your diagnosis

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that Mr. Payne had an alcohol use disorder, I think you said it

was in remission.

THE WITNESS: In full sustained remission, yes.

THE COURT: Would you recommend that he be evaluated

or monitored for potential recurrence of that issue under the

Court's supervision in the future?

THE WITNESS: Well, his remission has been sustained

since approximately 2010, 2011; so it's been quite a lengthy

time and it has not -- as far as I've seen in his history and

reports and reports of his family, it's not become an issue

since then. So I don't consider that necessary.

THE COURT: Okay. With respect to the treatment you

indicate might be helpful for him in Montana, would you be more

specific? What kind of treatment are you talking about?

THE WITNESS: Yes. So the VA facility offers

outpatient treatment that would include both group and

individual therapy. I think a middle -- a medication consult

would also be helpful. They may or may not prescribe or

recommend medications, but a specific -- specifically, in

regards to sleep disturbance, I think that would be helpful as

well. So the VA facility would be able to provide group and

individual as well as medication consultation and management.

THE COURT: Is the medication concern you have

limited to a sleep disturbance, or does it have more to do with

the PTSD and other issues?

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THE WITNESS: Both. Both. But the sleep disturbance

is related to the PTSD, so there are specific medications that

they would prescribe that are more effective for those that

have PTSD-related symptoms.

THE COURT: Okay. Thank you, Doctor. You may step

down.

Let's get the next witness on the telephone, please.

DEPUTY COURTROOM CLERK: Good morning, Mr. Webb. My

name is Jake. I'm Judge Brown's courtroom deputy. Can you

hear me okay?

MR. WEBB: Yeah.

THE COURT: Mr. Webb, this is Judge Brown. We are

calling you from a court proceeding in United States v.

Ryan Payne. Mr. Payne and his lawyer have arranged for you to

testify in connection with this proceeding, and I understand

the government's agreed that you can do this by telephone. So

since you're not here in person, I want to just review a couple

of points. In a moment, the clerk will be asking you to raise

your right hand to take the oath of a witness to testify

truthfully.

Do you have any issue with that?

MR. WEBB: No, ma'am. Not at all.

THE COURT: All right. And then because we're

speaking by telephone, it's important that you wait before you

start to answer, until you're sure the questioner has stopped

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the question, so that we don't have two people speaking at

once. All right?

MR. WEBB: Okay.

THE COURT: Okay. So before you take the oath, let

me ask you to please state your full name and spell it all.

MR. WEBB: My full name and what?

THE COURT: And spell it all.

MR. WEBB: Okay. My full name is Robert Charles

Webb. R-o-b-e-r-t. C-h-a-r-l-e-s. W-e-b-b.

THE COURT: Thank you. If at any point, just as you

did a moment ago, you're not clear what is being asked of you,

please, please let the questioner know you don't understand the

question so that it can be made clearer. All right?

MR. WEBB: Okay.

THE COURT: Okay. So now please raise your right

hand. You'll next hear the clerk's voice.

ROBERT CHARLES WEBB, 

called as a witness in behalf of the Defendant, being first 

duly sworn, is examined and testified telephonically as 

follows: 

THE WITNESS: Yes, I do.

DEPUTY COURTROOM CLERK: Thank you. 

THE COURT: Mr. Webb, you'll next hear from Lisa Hay.

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Webb - D

She's Mr. Payne's lawyer, and she'll ask you questions. If the

government's lawyer wishes to ask you questions, you'll hear

from him. We'll give you cues along the way as to who is

talking. All right?

THE WITNESS: Okay.

THE COURT: Okay. Ms. Hay, you may proceed.

DIRECT EXAMINATION 

BY MS. HAY: 

Q. Thank you, Mr. Webb. This is Lisa Hay. Can you hear me

through this microphone?

A. I can.

Q. Great.

Mr. Webb, can you tell us where we are calling you? What

state are you in today?

A. I'm in California.

Q. You -- what do you do for a living there?

A. I am an electrician with the water district.

Q. How long have you been an electrician?

A. I've been an electrician for about 12 years now.

Q. And can you tell us how you know Ryan Payne, who's sitting

next to me in the courtroom?

A. Ryan and I met when we were in the service. We were

stationed at the same duty station; although, we were in

different units. We met through some mutual friends and became

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Webb - D

very close.

Q. And did you have a chance to meet his family over the

years?

A. Yeah. I met his ex-wife, his uncle, his aunt, some of his

cousins. I've met a few of his family for sure. His uncle

actually employed me for a few months when I first started in

the trade.

Q. Okay. So it's fair to say you've kept in touch with

Mr. Payne after you both finished your military service?

A. Yes.

Q. And what -- what characteristics do you value in Mr. Payne

as your friend?

A. Ryan is one of the most loyal and honest people I've ever

met, for starters, and that means a lot to me. Also, no matter

where I've been in my life, good or bad, he's always been by my

side and been there to -- you know, to lend an ear, talk to me,

or advice when I needed it, or to push me in a direction I

needed to go to do the right thing and to be a good person and

have my life become better and improved.

Q. Was --

A. So --

Q. Can you tell us about how he's been influential in your

life?

A. Well, besides just being a good friend, he has seen me

through a few difficult times in my life. When I got divorced,

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he stood by me and was a really good person to talk to and to

lift me up when I was pretty down. 

And even before that, you know, when I first met my

ex-wife, she had two kids from her previous marriage, and I was

working basically a nowhere job, and he had been -- he had

mentioned multiple times to me about joining the IBEW. And

when the time came, I was like, "Man, I need to do something,"

he was like, "Well, why don't you do this?" 

And he actually went out of his way, even though I missed

the application date, to get me in a few days afterwards to

fill out an application and start my career path. So he's been

very influential in my life.

Q. Were there some times when you were concerned about Ryan

or about Mr. Payne after the military?

A. Post-military, there was a time when him and I talked

multiple times about it, where he would spend a lot of time

busy, always had multiple projects going on. You know,

whether, you know, a sand car company, and a band, and work,

and, you know, he had -- his hands were really full, and I used

to tell him he needed to slow down and enjoy what he had and,

you know, not push himself so hard, because, you know, you --

he just seemed like he was pushing, pushing, pushing and not

taking really the time to enjoy his life. 

But after that, when he -- you know, he -- he did slow

down, he met his ex-girlfriend, Summer, and he seemed to slow

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down and started to take in what was going on around him.

Q. During the time you've known him, has he ever expressed

intent to commit violent acts to you?

A. No. Never. As long as I've known Ryan, he's always

protected people. He's the kind of person that would give the

shirt off his back for a stranger. You know, it's one of the

reasons -- we didn't join the service solely to become violent

people or learn how to shoot guns or blow stuff up or anything

like that. We did it because it was our civic duty and

something we felt we should do for our country. It was to

protect our country and serve our country, and we did it

because it was the right thing to do.

Q. So obviously you're aware that Mr. Payne has pled guilty.

He's committed this offense that we're in court about. Did you

have a chance to talk to Mr. Payne more recently, after he's --

he's been -- after he was arrested on this offense?

A. Yeah. We -- we spoke briefly, shortly after he was

released in Nevada and right before he went to Oregon, and we

talked, and, you know, we just kind of caught up a little bit.

And at the end of it, I asked him what his plans were for the

future, and he said he wanted to focus on his family. He

wanted to settle down and live a quiet life and get back to,

you know, being an electrician and rock climbing. He lost two

years of his life with his children, and he -- he was really

adamant about the fact that he wants to be back around them and

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doesn't want to lose any more time.

Q. Are you planning to attend future events with Mr. Payne

and his fiancée whenever that can occur?

A. Yeah. As a matter of fact, he had mentioned that as soon

as all this is done, one way or another, that they were going

to get married. And he told me he couldn't think of a better

person to stand at his side, and I told him absolutely. He

stood for me twice. I would absolutely do it for him. And I

would be honored to do it for him. I want to see him happy,

and I want to see him living his life.

MS. HAY: Thank you, Mr. Webb. I don't have any

further questions.

THE COURT: All right. Counsel?

MR. BARROW: No questions, Your Honor.

THE COURT: All right. Thank you, Mr. Webb. That's

all we need to keep you on the line for this morning. Thank

you for making yourself available.

THE WITNESS: All right. Thank you very much.

THE COURT: All right. Please disconnect the line.

THE WITNESS: Bye.

THE COURT: All right. Let's turn now to guideline

calculations; but, preliminarily, I appreciate clarification of

the parties' positions with respect to disputes about

guidelines that are part of the plea agreement.

Ms. Hay?

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MS. HAY: Your Honor, we are not disputing any of the

guidelines that make up the plea agreement. My statement in my

sentencing memorandum was about how those -- the effect that

they have on the overall sentence, and we've agreed that the

guidelines calculations can -- are -- that we have agreed to

them, so we're not disputing them.

But we are allowed to ask for a variance from the

guidelines, and I think that the way that the --

THE COURT: There was a lot more in your memorandum

than argument about variances. You were, it seems to me,

challenging various guidelines that Mr. Payne has agreed to,

the extent of them, and all of that, so I'm -- I'm really quite

confused.

MS. HAY: Certainly. Your Honor, I did say on page 2

that because we're bound by the agreement, we're not disputing

them.

THE COURT: Yes. But you went on to argue the

departure under Note 4. You went on to argue issues of early

disposition. You went on to argue applications of the

guidelines. So I -- it seems to me that statement is

inconsistent with the merit of much of your sentencing memo.

So I'm concerned that there's a little bit of inconsistency.

MS. HAY: Your Honor, I think that it's a fair

argument to make that even if the guidelines are accurately

calculated to include all of those, when you look at the

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sentence as a whole, that is -- that one arrives at by adding

up all those departures, there is an overemphasis on leadership

role because of the combination of all of those together. 

That doesn't mean that individually we're challenging any

of them. We have agreed to each. But my point was simply that

the combination of those together, when you -- when you

increase for leadership and when you hold someone responsible

for the firearm threats by others and when you do an increase

of 10 levels because Mr. Payne was a leader, compared to other

co-defendants who got fewer levels, each of those on their own

is a valid increase, and we agreed to them.

But I think the Court can consider whether the overall

effect is to overemphasize punishment for leadership. And that

was my point on all of those, and I hope that I've made that

point there.

My further arguments are all based on reasons for a

downward variance, and those do include, for example, avoiding

unwarranted disparity among co-defendants. I think that's a

valid reason for variance that's not a challenge to the

guidelines themselves. 

So we don't dispute the guidelines. We agreed to them.

But we do think there are reasons to have a variance from

those.

On the one question about the early disposition --

THE COURT: Well, hold on a minute. I want to hear

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from the government with respect to the larger question here

about the extent to which any of these arguments are really

things I should consider in light of the plea agreement.

MR. BARROW: Your Honor, the government's view is

that the Court should not consider the arguments that Ms. Hay

raises in her memorandum about the guideline adjustments

individually or collectively. Frankly, we think it's improper

for her to make those arguments. If the government were to

stand before you and seek an enhancement that it had waived

through the plea agreement, Ms. Hay would be the first to

allege prosecutorial misconduct and a breach of the plea

agreement.

We think that the defendant, at an earlier time, agreed to

each of these enhancements, agreed that they had met the

appropriate evidentiary standard, and that the Court should

adopt the joint recommendation for the guideline calculation.

It's not just Ms. Hay's arguments in the sentencing

memorandum about the guideline adjustments. It's Mr. Payne's

arguments in his letter to the Court urging you not to apply

some of those enhancements. So it is proper to move to 3553

factors, but the Court should adopt the joint recommendation

for the guideline calculation as it has.

THE COURT: I disagree with the guidelines as

recommended to be applied by the parties in your plea

agreement. For example, the acceptance of responsibility

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agreement is for three levels off, and I'm questioning whether

that is a proper application, for the two reasons I've cited.

MR. BARROW: There's no doubt that the Court has the

ability to do what it wants to do with the guidelines. What

I'm suggesting --

THE COURT: I don't have the authority to do what I

want to do. I only have the authority and, in fact, I have the

threshold duty to calculate the guidelines correctly. The

parties have a plea agreement, though. I don't want to lull

Ms. Hay into responding to questions from me that might be

deemed as a breach of the plea agreement, nor do I want that

from you, but I have concerns about the guidelines, to which

you've agreed, as to their correct application. 

So I'm concerned about asking for advocacy from each of

you because of the risk of an argument that there was some kind

of breach of a plea agreement. We have enough legal problems

in the case with respect to potential appeal, and I -- I don't

want to be the agent of creating yet another one.

So let's do this: Why don't you take a moment, you and

Ms. Hay, and discuss whether you have an agreement about

whether I should or shouldn't ask you your positions about

questions I have on your agreed guideline application in a way

that would preserve the benefit of the agreement for both sides

and not put it into jeopardy.

MR. BARROW: Fair enough.

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THE COURT: Everyone can just sit at ease while

counsel confer.

(Counsel conferring.) 

MR. BARROW: Thank you, Your Honor. I think the

parties -- and I'll let Ms. Hay weigh in here in just a

minute -- but I think the parties agree that it would be

improper for me to advocate for a position that isn't laid

out -- on the guidelines that isn't laid out in the plea

agreement. 

So if, by way of example, it would be improper for me to

advocate that the Court only give him two levels for acceptance

of responsibility. Although, in theory, we could, through the

terms of the plea agreement, do that; but we will not.

In other words, I could argue that subsequent events, as

contemplated by the plea agreement, would be in operation

through that paragraph. We're not going to do that today.

I can explain to the Court what our position of the plea

agreement is, but I can't advocate --

THE COURT: I know what your position is. The plea

agreement speaks for itself.

So what you're saying is you don't intend to argue or to

make any presentation to the Court about the guideline

applications.

MR. BARROW: No, Your Honor. I think we're bound by

the plea agreement, and I think Ms. Hay is as well.

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THE COURT: And her arguments, under the title of a

3553(a) variance, that do, in fact, argue about the correct

application of the guidelines.

MR. BARROW: I think those should be ignored. I

think that that would be improper for the Court to consider. I

think that Ms. Hay can freely argue for an appropriate sentence

under 3553, including comparing his sentence to that of his

co-defendants, but I don't think that he can argue that a

guideline application is the problem. I think the guideline

application --

THE COURT: Well, for example, the Note 4 enhancement

departure -- Mr. Ritzheimer got a nine-level enhancement, by

the Court's determination, as I recall. That may have been the

Court's application. I don't remember what the parties' plea

agreement was.

MR. BARROW: It was both, Your Honor. I checked my

notes.

THE COURT: Ms. Hay has argued that that is something

the Court should take into account in making the decision about

the extent to which such an enhancement should be applied. Is

that a proper argument I should take into account, or is it one

you contend I should ignore?

MR. BARROW: Ignore, Your Honor. She has agreed that

10 levels is appropriate in this case and that's been

established by the appropriate --

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THE COURT: Even though that may be an argument that

comes under the unwarranted disparity heading that you just

said was appropriate.

MR. BARROW: I have no objection to her arguing that

the government's recommended sentence of 41 months would

produce a disproportionate result, but I do object to her

arguing that Application Note 4 is inappropriate at 10 levels.

THE COURT: All right. Ms. Hay?

MS. HAY: Your Honor, I can certainly abide by that.

I thought I had been careful in trying that. Apparently, I did

not. I recall that Ms. Wood's and Mr. Ritzheimer's arguments

similarly argued that the government's choice of how many

levels under Application Note 4 to give each defendant was

based not on any sort of empirical evidence but more their view

of leadership, and she made a similar argument. But I am not

intending to say that the Court should not impose the 10

levels. I'm simply saying that gets you to a sentence of 41

months, and I think a variance from that is -- is valid for a

number of reasons. 

And we could -- we could go through those, Your Honor, but

I won't argue against those guidelines themselves, as we agreed

not to.

THE COURT: Mr. Barrow, do you object to my -- do you

object to Ms. Hay making an argument in response to my concern

that the acceptance of responsibility adjustment should not be

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applied for three levels, but two?

MR. BARROW: I do not object to her advocating for

three levels, as she's totally entitled to do that.

THE COURT: No. Well, but that requires her to

answer my question about why I may not be inclined to apply a

three-level downward adjustment. You don't object?

MR. BARROW: No, Your Honor.

THE COURT: Well, let's start there, then, Ms. Hay.

The three levels that are included in the plea agreement

were agreed to at a time when Mr. Payne accepted responsibility

about six weeks before trial, entered into a plea agreement,

pled guilty, and off he went. And then after the acquittals in

the first trial, he moved to withdraw his plea, putting the

government to the task of litigating that issue which squarely

raises acceptance of responsibility by arguing he wasn't guilty

and he should be allowed to withdraw his plea.

That motion, I ruled against.

Then, after he was released from custody in Nevada, we

have the documented two instances of pretrial release

violations. These are typically actions that are congruent

with the conclusion that a person did not accept full

responsibility, at least with respect to the one level, even if

the government makes the motion.

So those are two concerns I have here with respect to

accepting the presentence writer's recommendation or the

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agreement of the parties of three levels.

What would you like to say?

MS. HAY: Yes, Your Honor. I would like to respond.

On the final motion to withdraw his guilty plea, Mr. Payne was

unique among the co-defendants who filed the motion, in that he

filed that motion before the verdict. His was not a buyer's

remorse.

THE COURT: Well, it was buyer's remorse, I have so

found, but it wasn't after the verdict. It was while the case

was developing and he was observing it.

MS. HAY: Yes, Your Honor. I think the motion does

set out the reasons as being primarily because the plea here in

Oregon had been tied to an expected resolution in Nevada. Of

course, it was said on the record it wasn't a promise and it

was not necessarily going to happen, but what occurred was that

the entire plea in Nevada fell apart, and I would say not --

not because of his fault, and so this -- this motion explains

that the intervening circumstances in the District of Nevada

provide a fair and just reason for the Court to withdraw --

allow him to withdraw his plea.

Of course there's other statements in here about the

possible Brady violation, things that weren't presented before

his guilty plea, et cetera; but that was the primary reason,

Your Honor, was that the plea had been based on an

understanding that there would be a link to a Nevada plea that

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didn't occur.

So I think, unlike some of the defendants who simply

wished they hadn't pled guilty after the acquittal, Mr. Payne

had a much different reason for moving to withdraw.

THE COURT: That whole articulation was something, of

course, the Court did not accept. I spoke with him at length

about this case being separate from the Nevada case, and he was

either going to surrender his rights and plead guilty, or he

was entitled to go to trial with everyone else in that first

round. 

So, to me, the arguments made in the motion and in -- in

all of that were -- were absolutely inconsistent with accepting

responsibility under the plea, under his plea agreement. So

I -- I'm --

MS. HAY: So, Your Honor, I guess I would think

there's also the question of why he would be treated

differently from the other co-defendants. Mr. O'Shaughnessy

also moved to withdraw his plea. He was given a full credit

for acceptance even though they filed that. Mr. Ritzheimer

filed a motion to withdraw. He was given full acceptance.

So I think Mr. Payne did file a motion. It was earlier

than the others. I don't read this as him saying he doesn't

want to say he's guilty and accept responsibility and that way

to say, "I did this offense." It was he didn't think that the

bargain he reached with the government and the -- frankly, the

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agreement to some of the --

THE COURT: To me, it's just another example of

Mr. Ritzheimer [sic] saying one thing on one day and something

else on another day. He changes positions and has through the

course of this case repeatedly, and that -- the argument that

this whole litigation about withdrawing his plea did not

undermine acceptance of responsibility as -- except --

especially in light of the release violations, is -- is

something that I don't think I can ignore.

MS. HAY: Your Honor, the release violations are a

separate issue from the motion to withdraw. I feel that his

motion to withdraw was not saying he's not willing to say he's

guilty, but I made that point. The -- that is, he could still

plead guilty, but not under the agreement that we had reached.

The fact that the other co-defendants were not asked to

give up their credit, I think, also weighs in favor of saying

he should get the three points that the government has offered

him.

Pretrial release violation. I'm not aware whether other

co-defendants had pretrial release violations. I think they

did as well, including Mr. Ritzheimer, who was with Mr. Payne

during the release violation you're referring to. And, again,

he didn't lose his acceptance of responsibility despite his

pretrial release violation and his --

THE COURT: Mr. Ritzheimer's release violation was

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post-sentencing while he was awaiting surrender.

MS. HAY: Thank you, Your Honor.

So I'm not aware of others who had release violations.

So it is true that it is possible to withhold part of an

acceptance of someone who's violated pretrial release, and

Mr. Payne acknowledges that violation. We would ask the Court,

nevertheless, to grant the three levels for acceptance, as

recommended by the government, because, in our view, there

wouldn't be -- it's not as egregious a violation as some, and I

don't think Mr. Payne was intending to undermine -- undermine

the plea agreement when he did those. It was thoughtless and

wrong, but not an intentional -- intentional attempt to violate

the agreement. 

So, Your Honor, we would ask the Court to stay with the --

with the agreement on those counts.

THE COURT: The guidelines involve numerous specific

references versus the basic offense level of 10, with the

recommendation of an additional three levels because the

underlying charge involved possession of a dangerous weapon and

its threatened use.

The next guideline issue involves an upward enhancement

because the -- it's recommended that the Court find the

defendant was an organizer.

Then the next set of issues involve acceptance, whether to

give it, and, if so, to what extent.

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Then the next issue is the Note 4 enhancement.

So before I hear any arguments about Section 3553(a) and

the proper exercise of discretion and avoiding unwarranted

disparity, I believe I need to make those formal rulings on the

application of the guidelines and then hear argument as to what

is or isn't a reasonable sentence within the parameters of the

parties' plea agreement. 

So with that, Mr. Barrow, do you have anything to add to

what has been written or presented with respect to the

guideline calculation that gets to a final offense level and

criminal history calculation so that there is a starting

advisory guideline range?

Do you have anything else you want to add?

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

THE COURT: Ms. Hay, anything else on the guideline

calculation that leads to the advisory guideline range, as

opposed to Section 3553(a) arguments?

MS. HAY: I just wanted to clarify one point,

Your Honor. The government was also recommending a two-level

early disposition.

THE COURT: That's true, too, yes.

MS. HAY: I had made a point that Mr. Ritzheimer

received a three-level variance even though he pled guilty

later. The government explained that was an effort to

counterbalance an earlier miscalculation, so they changed it. 

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So I understand that. I do think, nevertheless, the

people who pled guilty before Mr. Payne, at a week and two

weeks' rate before him, did receive a three-level early

disposition. Again, I think it just goes to the -- the amount

of discretion in these guidelines. And we would ask the Court

to follow at least the government's recommendation of two

levels for early disposition.

THE COURT: Well, the early disposition variance is

recommended in a lot of plea agreements based, in my

experience, on the value to the government for early

disposition, and I'll note Mr. Payne was the second-named

defendant here. He clearly was a significant part of the

government's trial preparation for the first trial. And six

weeks before that trial, when you measure that six weeks as to

the day we start jury selection, is one thing; but we were in

the middle of daily pretrial conferences about three weeks

after his plea. 

So this adjustment for early disposition, when it comes in

the context of a plea agreement, takes into account the

parties' negotiation of the value of the agreement in the

context of early disposition.

All right. That said, I'm going to make the rulings,

then, on the guidelines that apply, and then I would like to

hear the government's argument about what is a reasonable

sentence, also taking into account Mr. Payne's arguments about

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Case 3:16-cr-00051-BR Document 2614 Filed 04/20/18 Page 47 of 90
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avoiding unwarranted disparity. 

And then, Ms. Hay, I would like to hear from you, and then

if Mr. Payne has anything else to add, of course he will have

that chance.

So we begin in the presentence report at paragraph 42.

I'm adopting the recommendation of a 13-level base offense

level, which is also consistent with the parties' plea

agreement. There was argument in the defendant's memorandum

about the three-level enhancement to the underlying base

offense level of 10 and an argument about the defendant not

personally having threatened anybody with a firearm -- a fact

that I think could be contested from the video evidence and the

testimony of Sheriff Ward with respect to the urgency with

which Mr. Payne argued his position when they met in person;

but, nevertheless, Mr. Payne pled guilty to a conspiracy

charge, and he's liable for, in terms of relevant conduct, the

conduct of all conspirators. So the application of an offense

level of 13 for a starting point here, in this case, is

undoubtedly correct.

The next guideline issue is at paragraph 45, and it's a

role adjustment. It's recommended that the defendant be given

a four-level enhancement as an organizer or leader. The

parties agreed to that as well. That is, in my judgment, fully

supported by the record. So I'm adopting paragraph 45 and the

plus four there, which leads, as noted in paragraph 47, to an

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Case 3:16-cr-00051-BR Document 2614 Filed 04/20/18 Page 48 of 90
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adjusted offense level of 17. 

I will defer to the parties' plea agreement on full

acceptance of responsibility and award all three levels,

noting, however, the Court's concern that relying on what

Mr. Payne has to say at any particular point in time is a very

difficult situation since he's taken numerous articulated

positions on matters that are of significance here. So after

three levels off for acceptance, he's at a level 14.

At the end of the presentence offense level analysis, in

paragraph 93, which is on page 21, and paragraph 92, is the

discussion of the Note 4 upward departure. The parties agreed

to a 10-level upward departure. I'm going to apply 9 and not

10 here, in paragraph 93, to avoid unwarranted disparity in the

big picture among all the convicted defendants.

I note Mr. Ritzheimer, among others, was given 9 up. 

That takes us to level 23.

And at level 23, Criminal History Category I, the range is

46 to 57 months. The parties, by agreement, argue a two-level

downward variance for early disposition. I'm going to accept

the parties' joint recommendation here, which takes us to 21,

Criminal History Category I, and there the range is 37 to 46

months. It's within that range that the Court starts its

assessment of what is a reasonable sentence. 

And, Mr. Payne, for your purposes, we covered this at the

time you pled guilty; but as a reminder, I need to take into

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account what sentence is sufficient to punish you for your

admitted criminal conduct, to promote respect for the law by

you and others similarly situated, to persuade you not to

repeat this conduct in the future, to persuade others who

consider what happened to you from not doing it in the first

place, and a sentence that's sufficient to protect the

community. Community safety is something that has to be taken

into account. And then all of those considerations have to be

measured against what is enough but not too much, taking into

account your personal history and characteristics.

So with that in mind, then, Mr. Barrow, the government's

sentencing recommendation, given the guideline assessments that

I've determined apply here.

MR. BARROW: Thank you, Your Honor. The government

is going to continue to recommend a sentence of 41 months of

incarceration, followed by three years of supervised release,

and a $100 fee assessment. That is within the guideline range

of 37 to 46 months that the Court has now found.

THE COURT: Roughly, a mid-range sentence?

MR. BARROW: Yes, Your Honor.

THE COURT: All right. Do you have anything else you

want to add?

MR. BARROW: I do, Your Honor. In support of that

sentence, I guess I would like to start with the defendant's

apology, which is affixed to the defendant's sentencing

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memorandum, and he candidly admits that that apology has to be

assessed in light of the context of his integrity, and that

context, as the Court has alluded to, includes a number of

factors. First, that the Court has already alluded to, that

the defendant pled guilty and moved to withdraw his plea. In

the Court's opinion, denying that motion to withdraw his plea,

the Court noted that it was buyer's remorse, and the government

agrees.

It also includes the fact that the defendant had agreed to

various sentencing enhancements that in his own apology to the

Court he urges this Court not to apply. 

It also includes the fact that he agreed to abide by

release conditions in December of last year and then quite

quickly violated those release conditions. He initially

chalked that violation up to a misunderstanding about those

release conditions.

The Court should also be aware that perhaps the only other

defendant the government recalls giving an apology for the

events at Malheur is Jon Ritzheimer. It's shortly after

Mr. Ritzheimer was sentenced and apologized here in this

courtroom that he posted a letter to social media in which he

claimed that the victim impact statements were embellished;

that the victims were actually in fear because of the FBI, not

the occupiers; and that he, in fact, was not apologizing to the

government.

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Obviously, we're not here for Mr. Ritzheimer. We're here

for Mr. Payne. And even if the Court were to accept

Mr. Payne's apology at face value, we must, of course, consider

the 3553 factors. The government's laid out those factors in

its sentencing memorandum; but I would like to note, again, the

seriousness of the offense in this case, the dislocation that

defendant's conduct caused the citizens of Harney County.

There are, in fact, refuge employees that had deep roots in

Harney County that relocated following the occupation because

they do not feel comfortable living in that area. 

The occupation, of course, as we've argued repeatedly,

also was based on a profound disrespect for the law. The

defendant didn't respect the Ninth Circuit's opinion reversing

the original sentence in the Hammonds' case; he didn't respect

the district court's resentencing of the Hammonds, consistent

with that appellate opinion; he didn't respect Sheriff Ward for

following the law; he didn't respect the government's ability

to own land in Harney County; and he didn't respect the federal

agency's role in Harney County and, perhaps most importantly,

the employees in Harney County who were there doing their jobs.

The Court must consider also adequate deterrence to deter

both, generally, conduct of this nature in the future and,

specifically, for the defendant.

In the government's view, not only the defendant, but the

Patriot community at large, has to understand that an offense

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of this nature, an armed conflict with the federal government,

taking over a federal facility, is a serious offense that

warrants a serious sentence.

I would like to turn now to the characteristics of the

defendant himself.

Payne used his status as an Army veteran and his training

as an Army veteran to kind of lend a veneer of legitimacy to

the occupation. He, in fact, used his training and his

experience to plan the operation, as we've outlined in

Exhibit A to the government's sentencing memorandum, and he

used his status as a combat veteran to recruit others to join

the occupation.

Once they arrived in Harney County, he used his knowledge

and military tactics to train them and to organize them in

patrols and firearms training.

I know the Court is concerned with disparity between

similarly situated defendants. Mr. Payne is the most culpable

defendant that the Court will sentence in this case. Without

Mr. Payne, I don't believe that the group would have had the

wherewithal to take over the Malheur National Wildlife Refuge

in the style that they did. I don't believe that the occupiers

of the refuge would have had the knowledge and the ability to

fortify the refuge with an armed gunman in a tower, armed

guards at the gate, and patrols.

Mr. Payne has repeatedly said that he didn't want

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Case 3:16-cr-00051-BR Document 2614 Filed 04/20/18 Page 53 of 90
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violence; but the problem with that argument is that

operations, like an armed takeover, necessarily contemplate

violence. That was true for Bunkerville with the armed

response in Bunkerville, and it was true for the OMD proposals

that we've outlined again in Government's Exhibit A. Those

proposals included breaking federal prisoners from marshal's

custody. That is an operation that contemplates violence. 

It was true for the OMD proposal to lead an armed takeover

of a courthouse. That operation contemplates violence. It was

actually expressly stated in the OMD response matrix that there

were operations that they would undertake that would involve

violence.

Now, there was also a conscious effort to disguise that

violence by combining the militia groups with the protesters.

And it was Mr. Payne who articulated that in Government

Exhibit A. He talked about the cohesion between protesters and

the militiamen and how that cohesion, by mixing the two

together, could create opportunities to do something like an

armed takeover of a prison or a federal facility.

That's, of course, exactly what happened in Malheur.

The government believes that the sentence of 41 months in

prison is both reasonable and appropriate. Again, it

recognizes the defendant's role as the architect of the

occupation and one of its leaders, and it provides a deterrence

for others who may follow in Mr. Payne's footsteps to promote

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armed conflict with the federal government.

Thank you, Your Honor.

THE COURT: What is your response to Ms. Hay's

mitigation arguments with respect to, among other things, the

diagnosis of PTSD, the other mental health evaluations that

were provided, the weight the Court should give to the fact of

Mr. Payne's prior military service?

MR. BARROW: Your Honor, as we argued in our

sentencing memorandum, Mr. Payne served his country with honor,

and we take nothing away from that. It's clear that Mr. Payne

had a difficult background that started well before he ever

entered the military. It's clear, from the sentencing

materials submitted by Ms. Hay, that he had a difficult

childhood. But we do have a problem with the idea that his

PTSD somehow caused him to come to the refuge. It appears

clear from the defendant's materials that his antigovernment

views predate his involvement with the military, and they are

over such a sustained period that we don't believe that the

diagnosis reflects his criminal acts; in other words, it didn't

cause the criminal acts.

This occupation was not borne of some spontaneity. It

wasn't -- it wasn't an impulsive act in any way. It was

planned, not just for months by Mr. Payne specifically at that

location, but similar conflicts were planned by Mr. Payne for

years, and we simply don't think that the diagnosis offered by

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Ms. Best should mitigate the sentence that we've -- we've

recommended.

We've already come quite a ways from what could be

recommended in this case, and we think that's adequate.

THE COURT: All right. Thank you, Mr. Barrow.

MR. BARROW: Thank you, Your Honor.

THE COURT: Ms. Hay.

MS. HAY: Thank you, Your Honor. I think I'll start

just responding to a few of the government's arguments before I

forget what they just said, if that's all right.

THE COURT: Sure.

MS. HAY: I want to make clear that we're not arguing

that Mr. Payne's PTSD or military experience caused him to

commit this criminal act. He took responsibility. He pled

guilty. He's not arguing a mental defense, but I do think it

is important to recognize what Dr. Brown wrote in his report,

what Dr. Best had discussed, that Mr. Payne's experiences did

influence his desire for some kind of morally correct, concrete

way of defining his -- his responsibilities in his universe,

and that's why he was attracted to this theory based on the

Constitution as a -- and also on the Bible -- you know, his two

guiding principles right now. And I think those help him in a

sense of when he's feeling uncertain and he's trying to

identify who he is. Those have been a guiding principle for

him. 

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And I think it's important because this occurred when he

was such a young man, and I guess I want to make sure we

counter what the government said, that his antigovernment

attitude predated the military. I don't think the record shows

that at all. He joined the military as a 17-year-old teenager.

And what his mother said and his aunt said in those letters is

he wanted to serve the country. He wanted to join the FBI or

the CIA. He was excited about government service. He had no

antigovernment attitudes when he was 17. He was, in fact, the

opposite.

The government is pointing to a statement that his

grandfather sparked his idea about government control. I think

that occurred much later for him. So he was not

antigovernment. He wanted to serve the government, and he

still feels very proud of his military service. So there is

something that occurred in that military service where he was

abandoned, essentially, by the people that he considered

superiors, people who would be supporting him, and that had an

effect on him, and that's not unusual for soldiers. 

Mr. Payne served in the military and received a number of

honors, and, Your Honor, the government feels that he was

arguing against a guidelines calculation in his sentencing

letter. I don't think he was arguing against. He mentioned

should the -- should Your Honor impose the terrorism

enhancement, and I -- I think he's reflecting. 

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What I've been trying to tell him is this isn't

necessarily about terrorism. It's a piece of the guidelines

that happens to be under the terrorism statute, but it doesn't

mean that he's a terrorist. But he has heard about the

terrorism enhancement. He's heard others talk about that. 

When he was in Iraq, he received two -- numerous

commendations, but two -- one was the Global War on Terrorism

Service Medal and the other was the Global War on Terrorism

Expeditionary Medal. So I think we can understand how having a

terrorism enhancement applied is something that very much

chagrins him and has bothered him.

So I didn't read his letter, Your Honor, as saying that he

was arguing against the guideline enhancements. I think he was

thinking whether you have to call it a terrorism enhancement.

And I explained that it's not -- it doesn't mean that the

government is calling him a terrorist. It's an application

that shows that this was a serious offense that was designed to

affect the conduct of the government. He agrees with that.

On the recordings that the government provided a

transcript of, I don't want to spend too much time on those,

Your Honor, because I think there's certain points that we can

make briefly. One is that all of those recordings are First

Amendment protected advocacy. None of those are actually him

inciting a lawless act. The First Amendment protects

advocating lawlessness.

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THE COURT: Detaining refugees without lawful

authority is certainly an unlawful act.

MS. HAY: But, Your Honor, that's exactly the point.

The First Amendment actually allows you to say those things.

He wasn't posting those online. He wasn't advocating those in

articles.

THE COURT: No. They were posted on the internet in

a drop box where anybody could drop in.

MS. HAY: Your Honor --

THE COURT: I don't think this is an argument that is

worth your spending any time on. Certainly, he has a First

Amendment right, but the point is that the Court is to take

into account his personal history and characteristics in its

entirety.

MS. HAY: Right.

THE COURT: You can't isolate honorable military

service and disregard, then, what he did with that there.

MS. HAY: Your Honor, I don't mean to disregard. I

think the government would agree with me that the drop box was

a private drop box, was a -- the government received it by a

search warrant. There was a group of five people speaking.

THE COURT: The point is the personal history and

characteristics of the defendant are the entire package, not --

not just the ones that one wants to emphasize as his advocate;

and, unfortunately, there is a lot to detract from his

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honorable military service.

He was 17 when he started. He's 34, almost 35. That was

a lifetime ago. When he left, he made a number of choices that

have led to today, but most of which won't be captured in

today's sentencing, for reasons that are far beyond our

control.

MS. HAY: Your Honor, he's not denying that he was

involved in those groups. Of course, we're not denying all of

those. I agree that that is a factor the Court could consider.

I do think there's a -- there's a desire on the part of

the government to, sort of, make Mr. Payne the figurehead for

all of this. And I want to point out that in the sentencing,

for example, of Mr. Jason Patrick, the government was able to

point to videos where he's advocating to tell people to come

there. "Bring your guns. Come." Videos of Mr. Ritzheimer

doing the same thing. I didn't read in the presentence report

and I'm not aware of any such images of Mr. Payne where he's

actively in videos saying, "Come here. Bring your guns." 

The government's OMD recordings, I do want to emphasize

those are private recordings between five people that were put

in a separate drop box that the government got by a search

warrant. So it's not the same as advocacy out loud to do these

things.

When I've listened to many hours of these recordings, most

of them are -- I would characterize as discussions, not plans.

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Not to justify what they discussed, but it's a discussion about

the moral ability to act against the government, the moral

ability to stand up against oppression, and it is protected.

Some of it is distasteful. We don't believe in it. But I

don't think that that's a crime that Mr. Payne should be being

punished for.

THE COURT: I don't intend to punish him for it,

Ms. Hay. What I'm saying is, however, you can't simply point

to honorable military service and say that equals a reason to

vary from the guidelines, when the entire package includes this

very alarming history of quite a willingness to put oneself

ahead of the law and the Constitution. Those references to

detaining refugees in Montana are simply incredulous. The idea

of breaking someone out of the marshal's custody or raiding a

courtroom, if they weren't so frightening, they would be

ridiculous.

If the notion wasn't that these are fanciful and no one

could ever act on them, then one has to look at what someone

does with firearms who has very non-peaceful attitudes. I

don't know how, in considering his personal history and

characteristics, I can ignore the OMD statements.

MS. HAY: Your Honor, I wasn't asking you to ignore

them. I was trying to place them in the context of

understanding the difference between those as conversations

among people who were thinking about these things, but not

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acting on them, not planning, versus the call to arms that

other defendants have made in the case.

So when the government stands here and says that Mr. Payne

used his status to recruit others to join them, I don't think

it's fair to put that all on him.

I think it is fair to say that Mr. Payne used his military

status to gain legitimacy with these organizations, and he used

his military knowledge when he was at the refuge. As I said in

my sentencing memo -- excuse me -- what he has explained is

that he understood that you can't have all of these young men

loitering about this place and not doing something, and he

created these rounds and rotations of work and guard duty and

rest in order to make sure everybody was structured.

Part of that did involve having a shooting range, where

they would go shoot their firearms, and the government

informant helped set that up; but that was to avoid having

people just do their own target practice.

He's a very disciplined, very organized person, and he was

able to get people to follow him in that; but I -- I think

there's something that is missed when we just say, "Well,

that's the wrong thing to have done." Obviously, it was wrong

to go to the refuge, to take it over the way they did, and

that's why he's pled guilty. But when he was there, I think

what he was trying to do, if we were trying to understand his

intent and punish him for what he was culpable of, his intent

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at that point was to keep these young men organized so that

they could be disciplined, so that they would not respond

poorly.

I am -- I gave you the quotes from the proceeding that I

reviewed early on when he's at the refuge, and there's the

camera there. A recording is set up, and he's telling them,

"We don't want violence. Sheriff Ward is a good man. I've

spoken with him. Don't hold all this against him. If they

have misguided ideas, we need to be careful."

So, Your Honor, I'm not avoiding his statements with the

militia, but I do think we have to be careful from just taking

that and painting all of his intentions the opposite way as

well. Because I think his intentions there were to be

nonviolent and were there to try to control so that people

would not do the wrong thing.

The government, in their memo, didn't mention that

Mr. Payne wasn't simply arrested at the end of this, that he

was the person who got out of the car. I think that's an

important point that his acceptance of responsibility started

on that day, on that highway, when the police pulled over the

car that was being driven by LaVoy Finicum and Mr. Payne put

his hands out the window. When he was ordered to get out of

the car, he got out of the car. He backed up to where the law

enforcement officers told him to. He was wearing his sidearm

at the time. He didn't do anything threatening. He followed

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the rules. He spoke softly. He explained there were people in

the car, young women in the car, and he started to follow their

commands that day. 

And, Your Honor, despite the moment of -- I don't know

what we can call it when he violated his pretrial conditions,

the last --

THE COURT: "Hubris" is what I call it.

MS. HAY: Hubris.

THE COURT: He made some choices along the way. 

MS. HAY: Yes.

THE COURT: Some of them he's being held accountable

for today, and others are to his credit.

MS. HAY: So I think, Your Honor, that moment,

though, started -- his acceptance of responsibility didn't just

stop with being arrested and coming here to the courthouse. As

you know, he's been in custody for two years. He hasn't had

the chance, as some of the others have, to demonstrate

post-offense rehabilitation out of custody and there really are

not programs, and the like, that he can do while he's in jail.

I've pointed out to pretrial and to the probation office that

the county jail where he spent time has been remarkably

difficult.

County jails, they just don't have the same resources as

if you're sentenced to federal prison, and so you are

constantly being disrupted by people coming in and out. After

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you meet with your lawyers, they strip search you after every

time. So it's an added difficulty to have been kept in the

county jail, and I think the Court can consider that.

What I did want to point out, Your Honor, is even though

he hasn't had the opportunity out of custody to engage in

post-offense rehabilitation, he has been doing that on his own.

He has been studying the Bible himself. He has been trying to

think through his -- his thinking to understand how he got to

where he is, to figure out how to focus his efforts in the

future, and he will tell you that he's made some choices about

his future.

I think he had the opportunity, when he got arrested, to

start having some role models of people who could understand

him, but who could give him a different perspective.

You'll recall, Your Honor, that my co-counsel in this case

was Rich Federico, someone who had a military background. He

and Mr. Payne were able to talk about honor and about service

to the country, about the oath to defend the Constitution and

what that means outside the military.

He did meet with Dr. Suzanne Best when he was first

arrested, and her questions to him helped him start on a path

of self-analysis and discovery and think through what he is

doing and why. 

Your Honor, Mr. Payne also developed a relationship with

his attorney in Nevada. Mr. Ryan Norwood. He flew here today.

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He is in the front row here. He came today just as a support

for Mr. Payne and told me that Mr. Payne was a different person

from when he first met him in Nevada to when he left. This has

been a progression over the course of two years where he's been

able to show some rehabilitation and some change.

Your Honor, Mr. Payne is also supported by other family

members who are here in the Court. I wanted to acknowledge his

mother is here, the fourth one over, Elisheva Liebschutz and

his fiancée Areil Rincon is here, and they're both here to

support him. They wrote letters to the Court, which I won't

read; but, obviously, he's somebody who has got a great deal of

support and good characteristics.

Your Honor, my short response on the guidelines is the

guideline sentence is 15 to 21 months, when you count

leadership and the firearm, before the upward departure. And

we agreed to that upward departure because this is a

significant sentence. The upward departure of ten levels --

nine, if Your Honor imposes that -- is warranted because this

was an offense that was calculated to affect government

employees, and it did have that effect. There's no denying

that Mr. Payne recognizes the effect that it had. So that's

the reason there's an upward departure, but there are grounds

for downward departures in cases that are related to the

individual themselves. 

And what I hope the Court will consider is who the person

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is who's here in front of the Court today and what are the

factors that brought him here.

The Court should impose a sentence that promotes respect

for the law, engages in deterrence, protects the public, and

supports the rehabilitation of the defendant. I think we can

agree that rehabilitation of the defendant in this case would

be better served out of custody if he's able to be in a

supportive family, if he can go to the VA sessions that are

available for him in Montana and not continue isolation for him

from those supports.

Protection of the public? I understand his statements to

OMD on those recordings are frightening; but, again, I listened

to them as more a musing rather than plans. And he will tell

you that he's not intending to join those groups anymore. He's

not intending to be a part of that. If the Court were to make

an added condition that he not participate with those

individuals from that recording, I don't think he has any

objection to that as another -- another condition.

Dr. Best said that she didn't see reasons why he was a

risk factor for the public from what she could look at, and

that's because he's not defiant. He's remorseful. Unlike some

defendants here who went to trial and then came to court and

were sentenced, he pled and accepted responsibility. He is the

type of defendant who ordinarily in a court like this would be

thinking about asking for probation because of his -- this is

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his first criminal history, first criminal offense. He has a

long work history. He has family connections. He has no drug

abuse. But because of the nature of the offense, of course,

we're not doing that. He's accepting that this is an offense

that requires some kind of punishment. 

So when we get to deterrence and protection of the public,

the question is is two years enough for that? Your Honor, my

answer to that is yes. 24 months is a significant sentence.

The probation office was not far from me at 27 months, but I

think the 24-month sentence should be evaluated in context.

The 21 months, as I said before, already takes into account

leadership, and so the enhancement is what causes it to --

causes us to get all the way higher to where the Court is now.

No other co-defendant has received a sentence as high as

24 months, except those who already had a criminal record, and

so they're higher in the guidelines. The highest sentence was

21 months for Mr. Patrick. Jason Patrick. Ritzheimer received

a sentence of a year and a day. He also received some

custodial time in a halfway house.

Your Honor, the -- I've pointed out that Mr. Payne started

accepting responsibility earlier than any other defendant in

this case by his stepping out of the car and putting his hands

up. He was the first arrested that way, the first to begin to

diffuse the situation and to stop what he was doing.

If part of the goal of sentencing is to send a message, I

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guess I would ask what is the message that's sent when the

person who started accepting responsibility the earliest, who

did not destroy artifacts, who did not go to trial, who pled

guilty, who renounces the theory that motivated him -- and

he'll tell the Court that he's not -- he's not motivated the

way he was before -- why should he be punished so much more

severely than the others who have different circumstances? 

So I think the Court can consider disparity among

co-defendants, especially when considering the 24-month

recommendation. Two years of a person's life is a very serious

sentence. It alerts protesters or would-be protesters that

there are consequences, that two years is a long time.

A downward variance would send a message, however, and it

would send a message that there is mercy and compassion in the

justice system, that we don't seek to punish people merely to

punish, but also to understand the unique human frailties that

make up the person before the Court.

Mr. Payne was 17 when he joined the Army. He was in there

for over four years. The impressions that were made on him had

an effect that I think help us understand why he was so

attracted to an organization that fought government oppression;

that felt that protecting people, above all else, was

important; and how he could get caught up in that mindset and

believing he was doing right. 

I think what differentiates Mr. Payne from some other

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defendants that the Court has seen, not just in this case, but

generally, is that he believed he was doing the right thing

even though we all fully understand what he did was not right.

He was motivated by an ideal that is not the right ideal.

He will tell the Court that he accepts this Court's authority

that he's no longer going to be making the kind of argument

against the Court's authority and the government he made

before, and I found him to be honest and sincere in that.

I think there's a time when people can be misplaced on

their path because of what's occurred, and then a moment of

awareness can happen. For example, an arrest under difficult

circumstances; the death of a good friend, LaVoy Finicum; and

the ability to think through what the consequences of one's

actions are.

Mr. Payne is at that moment where he has been able to

think through the consequences. So, Your Honor, for all of

those reasons, I would ask the Court to impose a sentence of 24

months in this case. It's a significant sentence, a sentence

higher than any co-defendant, a sentence that would send a

message that one must respect the authority of the Court and

the law and not -- not take actions that disrupt the government

functions the way Mr. Payne did.

I know Mr. Payne wants to address the Court, so I'll stop

there. Of course there's much more in the family -- in the

family letters and those things, but I understand the Court

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recognizes that part of his characteristics.

THE COURT: Does Mr. Payne want his supervision, his

ultimate supervision, to be transferred to the District of

Montana?

MS. HAY: Yes, Your Honor.

THE COURT: Okay. Mr. Barrow, is there anything you

want to say in response before Mr. Payne addresses the Court?

MR. BARROW: Only that what the defense is asking for

is effectively a time-served sentence, and we simply think

that's not enough, and it doesn't meet the 3553 factors. But

with that, I'll -- I'll submit.

THE COURT: All right. Mr. Payne, good morning.

THE DEFENDANT: Good morning, Your Honor.

THE COURT: I have a couple of matters I have to

address with you first. And that is I need to be sure you've

seen the latest version of the presentence report. It's dated

or was filed February 22nd. Have you seen that and reviewed it

with Ms. Hay?

THE DEFENDANT: I don't believe I've seen the latest.

THE COURT: Okay. Why don't you take a seat and be

sure you've gone through it. We can't continue without that

happening.

I think one of the primary most recent changes is the

notation of how the matter was resolved as to Mr. Payne in

Nevada.

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MS. HAY: Your Honor, we discussed it at length. We

hadn't looked at the actual copy.

THE COURT: Okay. Well, if you -- if you want to go

through this, I'm really not allowed to continue until you've

seen the presentence report and let me know if there are any

issues in it, so --

THE DEFENDANT: If that's necessary --

THE COURT: Do you have it there?

THE DEFENDANT: I do have it here.

THE COURT: Take a minute and go through it and make

sure there's nothing there that is of concern to you.

(Pause-in-proceedings.) 

THE COURT: All right. Are you satisfied you've had

enough time to review the presentence report?

THE DEFENDANT: I feel comfortable with it,

Your Honor, yes.

THE COURT: Did you get to see all the material

Ms. Hay sent me, including Dr. Brown's report, Dr. Best's

report, the letters that came from your personal group of

supporters?

THE DEFENDANT: I did.

THE COURT: Is there anything you want to add?

THE DEFENDANT: I would, Your Honor. First off, a

couple of apologies to the Court. I generally like to speak

off of the cuff and so I hope that reading from prepared notes

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doesn't decrease from the genuineness.

THE COURT: Not at all. Not at all.

THE DEFENDANT: The second one is I forgot my reading

glasses, so if I struggle, my apologies on that.

THE COURT: If you need to hold the pages closer, you

can do that.

THE DEFENDANT: It's actually the opposite for me.

Thank you.

As briefly as possible, I would like to vocalize the

apology from the letter that Your Honor has already received.

My apology first to those whose lives were disrupted by my

words and actions, including those whose duties were impeded.

And I personally understand the effect of feeling as if you're

not able to perform your duty. I understand the -- the -- even

the emotional stress that may have caused as an aside from just

the professional responsibility.

I hope that the two years since have served for the repair

of whatever harm had been done and that whatever healing was

needed has had its time to mend.

I would also like to apologize generally to the American

people. In my youth, ignorance, and arrogance, I have

tarnished the reputation earned by my former service. The last

two years of incarceration have served to reform my intended

direction. My efforts on political activism and protest are

over. 

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And I'm a little bit lost as to the arguing against this,

so I just wanted to clarify it; but I -- I understand that

this -- this terrorism enhancement, and such, I'm not -- I'm

not arguing against it. I wanted to clarify that in my letter,

Your Honor, I was -- I was understanding what it meant. I just

wanted to display that I -- I understood what it was, that this

was a crime of impeding federal officers, or a conspiracy to

impede, and that attached to that was this terrorism

enhancement that was designed to affect the government -- or,

excuse me, that my activity was designed to affect the

government. So I wasn't trying to change your -- that part of

the plea.

And so as a convicted felon and possibly a terrorist, I

may no longer defend even my family. I certainly have no

intent on trying to organize, speaking with others about

organizing. And just to vary from my notes here, again, I

don't disagree with what Your Honor said at the beginning of

this hearing about conditions that I not speak to certain

individuals, and -- and I'm amenable to any of those things and

understand them, understand the need for them.

My militia ties and former sentiments are severed. I

want -- excuse me.

I can tell you also, Your Honor, that I accept the

authority of this Court. I also am going to follow all of the

requirements of my supervision when one day I'm released from

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custody. I want nothing more than to return to my fiancée, our

family, and our children, continue our lives and continue to

serve my community in any way that I can. I shall work to meet

the restitution requirements with all expediency and shall do

my utmost to comply with all of the requirements of supervised

release.

I'm aware of the severity of my words and actions and can

only hope that my future conduct might serve to exemplify the

sincerity of my sentence today.

It is my desire from here on out to live a life worthy of

a servant of the Lord Almighty. Blessed be He. The safety of

my family is and always has been in His hands and as is the

rest of the country. 

Thank you for the opportunity to speak, Your Honor. 

THE COURT: Go ahead and take a seat, please.

Mr. Barrow, any presentation on behalf of the victims for

this proceeding?

MR. BARROW: No, Your Honor. I know the Court is

familiar with the materials, and we don't have anything more to

add.

THE COURT: Give me just a moment, please.

Before I impose sentence, I need to address, once again,

the misuse of the "terrorism" label -- even just now in

Mr. Payne's allocution. In the Sentencing Guideline 3A1.4,

captioned "Terrorism," there is a requirement to increase an

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offense level by 12 levels if the offense is a felony that

involved or was intended to promote a federal crime of

terrorism. This is not that crime.

There is an application note to that guideline. Note 4.

And I'm going to read all of it so the context is not

misunderstood. Because, repeatedly, through the course of this

case, this terrorism label has been misused and improperly

applied to the conspiracy charge that was the driving offense

in these cases.

Application Note 4 is titled "Upward Departure Provision."

It reads, "By the terms of the directive to the Commission in

section 730 of the Antiterrorism and Effective Death Penalty

Act of 1996, the adjustment provided by this guideline applies

only to federal crimes of terrorism."

Again, the crime for which I'm sentencing you, Mr. Payne,

is not a federal crime of terrorism.

The note goes on to say, "However, there may be cases in

which (A) the offense was calculated to influence or affect the

conduct of government by intimidation or coercion, or to

retaliate against government conduct but the offense involved,

or was intended to promote, an offense other than the offenses

specifically enumerated in 18 U.S.C. Code § 2332b(g)(5)(B),"

which is the terrorism law. 

So, again, what the note is talking about is there may be

cases outside of the federal felony crime of terrorism where an

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Case 3:16-cr-00051-BR Document 2614 Filed 04/20/18 Page 76 of 90
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enhancement is nevertheless warranted by way of a departure.

So A, I read, or it might be if, B, the offense involved

or was intended to promote one of the offenses specifically

enumerated in Section 2332b(g)(5)(B), but the terrorist's

motive was to intimidate or coerce a civilian population rather

than to influence or affect the conduct of the government by

intimidation or coercion or to retaliate against government

conduct.

"In such cases" -- so the cases, again, outside of the

federal felony of the federal crime of terrorism. "In such

cases" -- which I think this is, and the parties acknowledged

it was by their plea agreement, quote -- "an upward departure

would be warranted except that the sentence resulting from such

a departure may not exceed the top of the guideline range that

would have resulted if the adjustment under this guideline had

been applied."

So all that says is is that if you've got the conduct that

is calculated to influence or affect the conduct of government

by intimidation or coercion, you can't depart more than 12

levels. That's basically the rule of this guideline. And you

all agree there would be a 10-level upward departure. I've

applied a 9-level.

I don't know if that makes any sense to you, Mr. Payne;

but you're not being sentenced for terrorism. I'm not

enhancing a penalty for terrorism. I'm focusing on the crime

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Case 3:16-cr-00051-BR Document 2614 Filed 04/20/18 Page 77 of 90
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you admitted by plea -- conspiracy to impede an officer of the

United States by force, threat, or intimidation.

So that is our focus here.

What is a reasonable sentence? A lot has been said about

Mr. Payne having changed over the last two years. A lot has

happened over the last two years with respect to events

involving the Bunkerville standoff, the prosecution of that,

Mr. Payne's role in that. And I suppose it needs to be noted

he was not acquitted of criminal conduct there, but the case

was dismissed by order of the Court for serious discovery

violations. And, as I understand it from public reporting,

there's now a motion pending -- still pending in that case over

the finality of that decision. 

So I don't know, Mr. Payne, if that case is over or not

over for you. I don't know if the United States will appeal

Chief Judge Navarro's final decision, whatever it is.

I do know that when you pled guilty here it was

anticipated that I should not sentence you until the Nevada

case was resolved, and I think it's probably a fair

observation, in hindsight, that back in August of 2016, July of

2016, you would have been thrilled if you thought the exposure

was 37 to 46 months, because I know that you were facing very

serious charges in Nevada, and the question was how much was --

how much was going to be added to your exposure for your crime

in Oregon based on conduct there?

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Case 3:16-cr-00051-BR Document 2614 Filed 04/20/18 Page 78 of 90
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Well, it turns out, at least at this very minute, nothing.

Nothing.

You were held in custody in Oregon, then, from late

January until shortly after your plea in 2016, and then you

were transferred to Nevada, because you were detained in

Nevada. It had nothing to do with the Malheur case. Your

detention from them, until when you were released last

December, was because you were awaiting trial in Nevada, and

you were not entitled to release there based on all of the

factors that had been considered. That had to do with the

seriousness of the charges alleged there. Then you got

released there, and I was asked to release you here so that you

could, in fact, spend time with your family over the holidays,

you could prepare with your counsel there, with the

co-defendants, for whatever was going to come.

I'm told -- and Ms. Hay has done an extraordinary job

pulling together an argument in support of what is there --

that is mitigation material that I should consider in deciding

whether to impose a sentence below the guidelines. I'm told

you've changed, you've disavowed your association with

aggressive and violent confrontations, and then I see you in

photos at the Bunkerville standoff, the very -- I use the word

"hubris" when I responded to Ms. Hay. It was as if you were

celebrating, of course, the win, but -- but in a way that, once

again, thumbed your nose, I'll say it politely, to the rule of

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Case 3:16-cr-00051-BR Document 2614 Filed 04/20/18 Page 79 of 90
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law and to the Constitution. It was as if none of the orders

of release conditions mattered to you. You know, the grin on

your face, that -- at the Bundy ranch, the big smiles with --

when you were photographed with Ammon Bundy and Mr. Ritzheimer,

those convey something different than a disavowal of those

associations. So it's really hard for me to sort out in

Ms. Hay's arguments all of the passion around imposing a low

sentence because you've changed. You have articulated

eloquently an apology and an acceptance of responsibility when

it's in your interest to do so.

You've served your country in the most extreme of

circumstances in terms of combat in Iraq, and you come back and

take up arms against the United States. You're said to have

changed your professions of allegiance to these ideas that were

recorded in the Operation Mutual Defense telephone meetings,

and I have Dr. Best's assessment that you're not a threat to

the community, and I totally hope that is true. I hope that

for you. I hope that for your family, for the people who care

about you. I hope I'll be able to return to Montana and

dissociate completely with the idea that you can take up arms

to promote an idea with force, threat, or intimidation. Of

course, as a convicted felon, you won't be able to lawfully

possess a firearm. You've acknowledged that in your

allocution. I think that is what you meant when you were

talking about not being able to protect your family.

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Case 3:16-cr-00051-BR Document 2614 Filed 04/20/18 Page 80 of 90
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It's complicated; you're complicated. And I'm here faced

with this very significant responsibility to hold you

accountable for serious criminal conduct in Oregon and to take

into account not just the negative things I've happened to

highlight here about your conduct before and after the Malheur

events, but you're -- but all of you. Your personal history

and characteristics. It has been a very helpful presentation

that Ms. Hay made with respect to the help from the

professionals here, and it's clear you're -- you're beloved by

people back home, people who know you in that context and not

as a leader of an armed occupation.

So I hope you've changed, and I hope that the profession

of this progress over two years is genuine; but I think a

reasonable person would have a basis to be not so sure,

especially in light of the very recent behavior in Nevada after

your release.

The relative sentence here and the -- this argument that

you are the most culpable of the defendants convicted in the

Malheur case is certainly a reference point. I'm sure if

Mr. Barrow were permitted to argue, he would go on to talk

about the relative responsibility of people who were found not

guilty in the jury trial. That is our system. That was the

day in court they had, and the jury in that case concluded for

each of those defendants the charge was not proved beyond a

reasonable doubt as to each and every element, so they're

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Case 3:16-cr-00051-BR Document 2614 Filed 04/20/18 Page 81 of 90
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acquitted. And on the one hand, I'm asked, by the prosecutor,

to note you're the most culpable, when they're acquitted in a

jury trial; and, on the other hand, I'm asked by your lawyer to

look at the last -- the highest sentence previously imposed,

but for people who were clearly not as involved as you in the

leadership and the intimate planning that went into this really

unheard of event.

So we have the guidelines as a starting point. I have

authority to sentence you above the guidelines, up to the

maximum of six years, and I think there are probably some who

might argue that that would be warranted here, given the

seriousness of what you helped to produce. A conspirator,

after all, is legally responsible for everything that's done in

the course and scope of the conspiracy. 

So, as Ms. Hay makes the point, well, you weren't recorded

as saying some of the vile things that were recorded and were

posted over and over again, you are liable for everything that

was said and done and reasonably foreseeable acts of the

conspiracy.

The government's arguing this 41 number that they agreed

to. They -- because they can't argue for anything higher, that

happens to be about the mid range here.

I have sentenced -- please correct me if I'm wrong,

Ms. Hay or Ms. Barrow -- Mr. Barrow, I think I sentenced

everyone to a low-end sentence. I think that's right.

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Case 3:16-cr-00051-BR Document 2614 Filed 04/20/18 Page 82 of 90
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MR. BARROW: That's my recollection as well,

Your Honor.

THE COURT: And so I don't see any reason to treat

you differently in that regard.

I've made adjustments, Mr. Payne, in this nine-level

enhancement that was an upward departure. I enhanced one level

less than you even agreed to. I questioned whether I should

give you three levels off for acceptance, and I think the

arguments are there that I didn't need to; but in respect for

your agreement, I gave you the benefit of that. If I hadn't,

the low-end sentence would be not 37 months, but that one level

there would have taken us to 41 months, and that's after two

levels off for early resolution, which I think, too, could have

been questioned because of your litigating this motion to

withdraw and all of that. For whatever benefit the government

agreed to give you this discount, it was washed away with the

need to have to litigate that all over again.

So you could have been up to a 51-month low-end sentence

and right up to the maximum penalty, even with those things in

mind. So one could argue all around this. 

In my judgment -- Mr. Payne, would you stand, please? -- I

think a low-end sentence in the guideline range, as I've

calculated it, is sufficient to punish your crime and not

greater than necessary to accomplish all the other purposes.

So that is the sentence I'm imposing. 37 months. There's a

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Case 3:16-cr-00051-BR Document 2614 Filed 04/20/18 Page 83 of 90
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$100 statutory assessment that you have to pay. Please get it

paid before you get moved into the federal system, because

they'll take money off your books every month until it's paid,

and it will interfere with just the funds you have on account

for your personal needs.

The $10,000 restitution obligation to which you previously

agreed is already of record.

Is there a recommendation, Ms. Hay, for designation?

MS. HAY: Your Honor, could I email the clerk with

that? I'm not certain if there's someplace in Montana that he

would be eligible, but he would like to be as close as possible

to family.

THE COURT: Well, let me address this eligibility

issue too. When Mr. Payne, to his credit, surrendered, as I

directed him to Pretrial Services at the Portland Airport, and

we had a hearing after about release, I posited the notion of

having him released from custody at sentencing and then

surrender back, in order that we could have a technical

self-surrender. I think that's probably not advisable here.

It's a -- it's pretty much a sham. 

But I am going to add to the judgment this Court's

recommendation that Mr. Payne be given credit as if he had

voluntarily surrendered because of his compliance and the trust

the Court put in him to allow him to travel without supervision

from Nevada to Portland and surrender without incident to the

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Case 3:16-cr-00051-BR Document 2614 Filed 04/20/18 Page 84 of 90
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pretrial release officer.

So I want that language in the judgment order because I

think that is an equivalency. Not exactly the same, but it's

as close as walking out one door and coming back to surrender

in another one today, which, I think, as I said, would be a

sham.

I'll recommend that the defendant be offered all

programming for which he qualifies while in the Bureau of

Prisons' custody, that he be designated to the lowest security

facility for which he qualifies.

He is subject to supervised release upon his completion of

his prison sentence. As such, because all his original

contacts are in Montana, I am directing that his supervised

release be managed out of the District of Montana and that it

be formally transferred there as soon as he's released from BOP

custody.

The period of supervision is three years. During that

time, Mr. Payne, you have to follow all the standard conditions

of supervision. These include conditions similar to what you

were expected to do while you were on pretrial release in

Nevada. There are additional recommended conditions. They've

been set out in the presentence report. I'm about to adopt

them all, Ms. Hay, unless there's an issue with any of them.

MS. HAY: No, we don't object to any of those.

THE COURT: In addition to the no contact with

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Case 3:16-cr-00051-BR Document 2614 Filed 04/20/18 Page 85 of 90
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co-defendants, I want to be clear that that is co-defendants

who were named in the Nevada case or the Oregon case, and I

want counsel to confer and to get us an agreed list of the

names from the OMD material so that he has a no-contact

requirement there.

MR. BARROW: I can do that now, Your Honor, or do you

want me to give it to Pretrial or --

THE COURT: I want you to speak to Ms. Hay to be sure

you are in agreement. I don't want there to be any need to

litigate things after everyone leaves today.

No contact, Mr. Payne, means that. You can't reach out to

them. If they reach out to you, you have to ignore it. If

once you're out of custody you go to a place and they're there,

you have to leave. "No contact" means direct or indirect. You

can't ask other people to do it on your behalf, and if you do,

it's a violation of your conditions of release.

"Supervised release" means just that. Your sentence

literally continues through supervision. You're released on

supervision. And if you violate the conditions of release, you

can go back to prison. Don't possess a gun; don't possess

ammunition. It's a violation of law for you to do that once

the conviction is final. It's a fundamental condition of

supervision that you obey all laws, and so those are just two.

Do you understand?

THE DEFENDANT: I understand.

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Case 3:16-cr-00051-BR Document 2614 Filed 04/20/18 Page 86 of 90
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THE COURT: Okay. What else do we need to address? 

Mr. Barrow?

MR. BARROW: Your Honor, the government hereby moves

to dismiss Count 2.

THE COURT: Thank you.

With respect to your rights on appeal, Mr. Payne, I'm not

going to try to articulate whether you do or you don't have a

right to appeal. You made a motion to withdraw your guilty

plea. I don't know if that's covered by the waiver of appeal

provision of your plea agreement or not. I'm simply not going

to offer any opinion on that.

What I will say is this: Every person who hasn't given up

his right to appeal has 14 days from the entry of judgment to

file a notice of appeal. Ms. Hay can help you with that. If

she does -- if you and she decide to file a notice of appeal

and if the government believes it's in violation of your plea

agreement, they will raise that, and the Court of Appeals will

decide whether it is or isn't something you can go forward on.

But it's my job to be sure you know there's a 14-day window,

and if you wait too long, you can lose any right to appeal what

you still have. 

Do you understand?

THE DEFENDANT: I understand.

THE COURT: Ms. Hay, anything else?

MS. HAY: Would the Court consider recommending that

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Case 3:16-cr-00051-BR Document 2614 Filed 04/20/18 Page 87 of 90
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Mr. Payne participate in the RDAP program, if he desires, given

what Dr. Best recommended?

THE COURT: Yes. One final point on conditions of

supervision. In light of Dr. Best's testimony about his need

for and the likelihood that he would benefit from treatment in

the VA program once he's out of custody, I want to add as a

condition of supervision that he have an updated mental health

evaluation upon release and that he comply with any treatment

directives in that evaluation as a condition, which include, as

Dr. Best mentioned, if medication was warranted and a

professional prescribed medication to deal with sleep issues or

anything else that have to do with your ability to comply

successfully with your supervision, you have to take the

medication. 

PTSD is a complicated diagnosis. I'm not a professional.

I know that sometimes it includes using medications to

facilitate a person's recovery and management. But that's

clearly an issue that is -- you're going to be working with as

you go forward, and I want to be sure that as part of your

supervision that's taken into account.

So if the evaluator has determined you need to follow a

mental health treatment program, you need to go forward with

that as a condition of release.

I do recommend that all treatment be focused first on the

services available through the Veterans Affairs, since

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Case 3:16-cr-00051-BR Document 2614 Filed 04/20/18 Page 88 of 90
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Mr. Payne is a veteran and already these issues have been

focused on his service. So they're the first line of support,

I would imagine.

All right. Anything else?

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

THE COURT: Ms. Hay, anything else?

MS. HAY: No. Thank you, Your Honor.

THE COURT: All right. Thank you for your work on

Mr. Payne's behalf.

Mr. Payne, good luck to you, sir.

Okay. We're in recess.

(Hearing concluded.) 

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Case 3:16-cr-00051-BR Document 2614 Filed 04/20/18 Page 89 of 90
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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 

SENTENCING 

February 27, 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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