Page 1 – JOINT STATUS REPORT – JANUARY 4, 2017

Jesse Merrithew, OSB No. 074564

Email: jesse@lmhlegal.com

Levi Merrithew Horst PC

610 SW Alder Street, Suite 415

Portland, Oregon 97205

Telephone: (971) 229-1241

Facsimile: (971) 544-7092

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Plaintiff,

vs.

JASON PATRICK, DUANE LEO EHMER, 

DYLAN ANDERSON, SEAN ANDERSON, 

SANDRA LYNN ANDERSON, DARRYL 

WILLIAM THORN, and JAKE RYAN, 

Defendants.

 Case No.: 3:16-CR-00051-BR-26

JOINT STATUS REPORT

JANUARY 4, 2017 

 

On December 14, 2016, following a status conference, the Court issued an order that, in 

part, required the parties to “file a single, joint status report no later than 10:00 a.m., January 4, 

2017, that sets out (1) a concise summary of the primary evidentiary and legal rulings already 

made in the case that may apply to the February 14, 2017, trial and the extent to which any party 

wishes to be heard further on such rulings; (2) a summary list of the pretrial motions that each 

party intends to file specifying the legal issues to be raised therein and a proposed schedule to 

litigate such motions; (3) a concise statement regarding jury instructions that identifies any 

changes that any party proposes to the final jury instructions that were used in the trial that

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began September 7, 2016; and (4) any additional, jointly-proposed elements-instructions as to 

charges that are different from those that were at issue in the trial that began September 7, 2016.” 

Dkt. No. 1624. This report is responsive to that order. In addition, the Court requested in an 

email that the parties identify any other issues that ought to be taken up at the status conference 

on January 6, 2017. 

I. Primary Evidentiary and Legal Rulings Already Made

The parties have reviewed the docket and assembled a table of legal and evidentiary 

rulings already made. The table excludes certain motions and orders that were applicable only to 

individual defendants in the first trial. That table appears below, along with an indication of 

whether any party believes any of those issues require further evidence or briefing. There is a 

number in the left hand column that does not correspond to anything, it is simply there for ease 

of reference. Defendants have determined that, for many of these issues, they have already been 

adequately litigated and nothing further needs to be done. However, defendants do want to 

ensure that adverse rulings are adequately preserved for appeal. For most of these issues, the 

above-named defendants were neither present at argument nor named in the captions of the 

pleadings or orders. Therefore, defendants request that the next order issued by this Court 

specifically reflect that all of the arguments made by the first trial defendants were made on 

behalf of the second trial defendants, that no further objections, pleadings, or arguments are 

necessary to adequately preserve those issues for appeal, and that the Court specifically orders 

the defendants not to make contemporaneous objections and interrupt the flow of the trial based 

on the issues already decided.

///

///

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Ref. 

#

Substance of 

Motion

Docket 

Number(s) 

of 

Motion(s)

How Court 

Resolved Motion

Docket 

Number(s) 

of 

Order(s)

Does any party 

wish to be heard 

further and why?

Motions to Compel

1 Grand jury 

proceedings: 

Defendants made 

numerous 

motions related 

to the grand jury 

proceedings, 

including

motions to 

compel the 

production of 

grand jury 

transcripts or 

specific excerpts 

therefrom.

986, 1211 The Court denied 

the motions, 

finding that a) 

there was no 

evidence to the 

record to 

overcome the 

presumption of 

grand jury 

secrecy, and b) 

there was no 

evidence in the 

record to 

contradict the 

government’s 

representation that 

it had complied 

with its 

obligations under 

the Jencks Act.

1039, 1378 No. Defendants 

only request that 

the government 

turn over grand 

jury transcripts in 

the event they call 

a witness to testify 

in the second trial 

who did testify to 

the grand jury.

2 Confidential 

Human Sources: 

Defendants filed 

two motions

during trial 

regarding the 

identities of 

confidential 

human sources.

1207, 1423 The Court denied 

the first motion 

both as untimely 

and that there had 

not been a

threshold showing 

of relevance. 

Defendants filed a 

second motion on 

the 20th day of 

trial. The Court

reviewed 

unredacted copies 

of the previously 

disclosed CHS 

reports in camera.

The Court found 

that there was not 

any information in 

the un-redacted 

versions of the 

1378, 

1453, 1459

Not at this time. 

Defendants may 

request that the 

Court revisit this 

issue depending 

on how the 

evidence unfolds 

at trial.

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reports that was 

"relevant and 

helpful" to any 

defense. The 

parties 

subsequently 

entered a 

stipulation 

regarding the 

number of CHS’s 

on the MNWR. 

The Court 

thereafter denied 

the motion as 

moot and sealed 

the materials.

Evidentiary Rulings

3 Motion to 

suppress 

Facebook 

evidence –

Defendants raised 

a number of 

challenges to the

issuance and 

execution of the 

warrants used to 

seize evidence 

from their 

Facebook 

accounts.

712, 741, 

1040

The Court denied 

the motions, 

finding that the a) 

the magistrate 

judge had 

jurisdiction to 

issue the warrant, 

b) the warrant was 

supported by 

probable cause, c) 

the warrant was 

not overbroad, 

and d) the 

government’s 

execution of the 

warrant did not 

violate the Fourth 

Amendment.

915, 1239 Yes. The 

defendants may 

seek further 

clarification on the 

government’s 

mishandling of 

Facebook 

materials. 

Defendant Thorn 

will take this issue 

up in the context 

of his Motion to 

Suppress.

4 Admissibility of 

co-conspirator 

statements 

generally. 

Defendants 

objected to the 

admissibility of 

many of the 

statements the 

government 

intended to offer 

1000 The Court denied 

the motions, 

finding that all of 

the challenged 

statements, with 

the exception of 

statements made 

by defendants 

after their arrest, 

fell within the co1171 (p. 5) Yes. Defendants 

believe that this 

issue must be reassessed in light of 

the acquittals of 

seven alleged 

conspirators prior 

to their statements 

being introduced 

as conspirators.

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as outside the 

scope of the coconspirator 

exception to the 

hearsay rule, 

including those 

statements made 

prior to January 

2, 2016, those 

statements not 

made in 

furtherance of the 

conspiracy, and 

statements made 

after the 

conspiracy 

ended.

conspirator 

exception.

5 Admissibility of 

co-conspirator 

statements based 

on the doctrine of 

strictissimi juris.

1145 The Court denied 

the motion, 

finding that the 

jury instructions 

and evidentiary 

rulings adequately 

addressed the 

same concerns 

underpinning the 

doctrine.

1171 (p. 

21)

No.

6 Adverse 

Possession: The 

government 

moved to exclude 

evidence 

supporting a 

defense of 

adverse 

possession. 

Defendant 

Ammon Bundy 

moved to dismiss 

the indictment 

based on lack of 

subject matter 

jurisdiction citing 

adverse 

possession.

959, 1068, 

1155

The Court denied 

the motion to 

dismiss, and 

granted in part 

and denied in part 

the government’s 

motion to exclude 

evidence. The 

Court ruled that 

“Adverse 

possession is not a 

legal defense to 

any of the charges 

in the Superseding 

Indictment (#282). 

As specifically 

relevant to a 

Defendant’s stateof-mind at the 

1171 (p. 2) Yes. Defendants 

will assert that 

they are entitled to 

raise as an 

affirmative 

defense the 

disputed 

ownership of the 

MNWR 

headquarters to 

defend against the 

Trespass charge.

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time of the events 

of the MNWR, 

each defendant 

may, nonetheless, 

testify and 

introduce 

evidence that each 

specifically 

intended to assert 

... a claim of 

adverse 

possession... .” 

7 Unattributed 

guns and damage 

to property: 

Defendants 

moved to exclude 

all evidence that 

the government 

could not 

attribute to a 

specific codefendant, 

specifically 

firearms and 

firearm 

ammunition 

where the 

government 

could not prove 

who left the 

evidence at the 

MNWR and 

damage to 

various property 

at the MNWR 

that the 

government 

could not 

attribute to any 

specific person.

995 The Court allowed 

the government to 

introduce this 

evidence, finding 

that there was a 

sufficient nexus 

between the 

evidence and the

alleged 

conspiracy. The 

government 

stipulated that it 

would not 

introduce any 

evidence of the 

dollar amount of 

damage done.

1171 

(p. 4)

Yes, defendants wish 

to re-raise this issue in 

light of the acquittal of 

seven of the alleged 

co-conspirators, and 

the government’s midtrial stipulation that 

nine of the individuals 

on the refuge were not 

co-conspirators but 

were in fact 

government 

informants. 

8 Motion to 

exclude the 

subjective 

reactions of 

MNWR 

999, 1237 The Court granted the 

motion, excluding 

evidence of 

community members’ 

subjective reactions as 

1171 

(p. 3)

The government 

will seek to revisit 

this issue with 

additional case 

law to support the 

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employees and 

members of the 

public to the 

protest. 

irrelevant, and 

excluding evidence of 

employees’ subjective 

reactions as irrelevant 

unless one of the 

defendants opened the 

door to such evidence. 

The Court limited the 

admissible evidence to 

“evidence about the 

closure of the MNWR 

and the reasons for that 

closure.”

relevance of this 

evidence to 

defendants’ intent.

9 Evidence 

regarding the 

death of LaVoy 

Finicum: 

Defendants 

moved to admit 

evidence that the 

FBI had lied and 

covered-up its 

role in the 

shooting death of 

LaVoy Finicum.

1000 The Court denied the 

motion, except that 

“limited evidence 

regarding the fact of 

Finicum’s death and its 

effect on the state of 

mind of the 

Defendants who 

remained at the 

MNWR thereafter is 

... relevant and 

admissible.”

1171 

(p. 7)

No.

Requests for Judicial Notice and Stipulations

10 Ownership of 

MNWR – the 

government 

requested that the 

Court take 

judicial notice 

that the MNWR 

was property 

owned by the 

United States 

government. The 

Defendants 

opposed this 

request and asked 

that the 

government be 

required to prove 

its ownership of 

the land.

1229, 1230, 

1245, 1248, 

1252, 1295, 

1318

The Court took

“Judicial Notice 

as follows: Lands 

Comprising the 

MNWR are 

owned by the US 

Govt. MNWR 

Headquarters are 

located on land 

that was 

purchased by the 

US government 

from the Eastern 

Oregon Land and 

Livestock 

Company (1935). 

The Court, 

however, cannot 

take judicial 

notice of the total 

1327 Yes. 

Reconsideration is 

appropriate in 

light of the 

Trespass charges.

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acreage of the 

MNWR because 

the documents 

submitted by the 

Govt in Support 

of its Motion do 

not establish that 

particular fact.”

11 The Hammonds: 

The government 

twice moved for 

the Court to take 

judicial notice 

regarding the 

circumstances of 

the Hammonds’ 

arrest, 

prosecution, and 

sentencing.

1222, 1343 The Court took 

judicial notice of 

the facts of the 

Hammonds’ 

convictions and 

sentencing. The 

Court’s notice

included language 

about the penalty 

provision and the 

5-year mandatory 

minimum 

sentence.

1253, 1367 No.

12 Bunkerville: 

Defendants 

moved to limit 

the scope of 

evidence related 

to the 2014 

Bunkerville 

confrontation 

between the 

federal 

government and 

Cliven Bundy.

1000 The parties 

eventually entered 

into a stipulation 

giving the jury 

some basic 

background for 

understanding 

what the conflict 

was about.

None. The parties do not 

object to using the 

same stipulation. 

They will work 

together to 

determine when

and if reading that 

stipulation will be 

appropriate.

13 “Federal 

officers”: The 

government 

asked the Court 

to take judicial 

notice of the 

‘fact’ that the 

employees of the 

MNWR are 

“federal officers” 

for purposes of 

18 U.S.C. § 372.

958 The Court denied 

the request for 

judicial notice and 

dealt with the 

issue in jury 

instructions.

1711 (p 19) No.

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Expert Witnesses

14 R. McGreggor 

Cawley, Ph.D.

1024 The Court 

excluded Dr. 

Cawley’s 

testimony.

1711 (p 14) No.

15 Angus P. 

McIntosh, II, 

Ph.D.

1025 The Court 

excluded Dr. 

McIntosh’s 

testimony.

1711 (p 15) No.

16 Charles 

Stephenson

1037 The Court allowed 

Mr. Stephenson to 

testify regarding 

how different 

actions with a 

firearm can be 

intended as 

threatening or 

nonthreatening 

from the 

perspective of the 

person handling 

the firearm.

1711 (p 16) No.

17 Stan Vaughn 1102 The Court 

excluded Mr. 

Vaughn’s 

testimony.

1711 (p 17) No.

18 James O’Hagan 1103 The Court 

excluded Mr. 

O’Hagan’s 

testimony.

1711 (p 17) No.

II. Summary List of Pretrial Motions and Proposed Litigation Schedules

Defendants intend to file two categories of motions: those that relate to the existing 

indictment (#282) and those that relate to the new misdemeanor charges. Defendants propose to 

file all motions related to the existing indictment (listed below in section A) by January 6, 2017, 

and argument either on January 20 at the currently scheduled status conference or at the to-bescheduled pretrial conference. Defendants propose to file all motions related to the new 

misdemeanors and Indictment in 16-CR-493-BR (listed below in section B) by January 13, 2017 

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and argument at the to-be-scheduled pretrial conference. The government’s position regarding 

motions for the existing indictment is that because of the number of motions, its responses 

should be due January 27, 2017 and that a hearing should be set at the Court’s 

convenience. Likewise, the government’s position regarding motions relating to the 

misdemeanors and new indictment its responses should be due February 3, 2017 and that a 

hearing should be set at the Court’s convenience.

A. Motions Related to the Indictment

i. Motions to Suppress

1. Jake Ryan’s Motion to Suppress Statements. Jake Ryan will move to suppress his 

statements to law enforcement on February 12, 2016 as involuntary.

2. Dylan Anderson’s Motion to Suppress Statements. Dylan Anderson will move to 

suppress his statements to law enforcement at the time of his arrest.

3. Jason Patrick’s Motion to Suppress Seized Evidence. Jason Patrick may move to suppress 

evidence seized from the electronic devices seized from him during his arrest.

4. Darryl Thorn’s Motion to Suppress. Darry Thorn will move to suppress statements to law 

enforcement at the time of his arrest, all statements, including any Facebook materials 

outside the scope of the warrant, and any other published statements after the alleged end 

of the conspiracy on 2/12/16.

ii. Motions to Exclude Evidence

5. Motion to Exclude Testimony of Carla Burnside. Defendants will move to prevent Ms. 

Burnside from testifying regarding certain matters that she was allowed to testify about in 

the first trial without objection. In particular her testimony regarding the treatment of 

artifacts and the preservation of certain archeological sites was irrelevant, amounted to 

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expert testimony without appropriate qualifications, and relied on multiple levels of 

hearsay.

6. Motion to Exclude Evidence of “Archeological Damage”. Defendant Jake Ryan will 

move to exclude evidence regarding the government’s choice to perform an archeological 

exploration of the dirt moved to dig the trench alleged in Count Six of the indictment, and 

any evidence that the digging of that trench caused damage to an archeological site. This 

evidence is not relevant to the charges and creates a due process-as-applied problem 

because the fact that this area was of some archeological significance is beyond the 

common knowledge.

7. Motion to Exclude Evidence of Circumstances of Arrest. Jake Ryan will move to exclude 

from evidence any testimony regarding the circumstances of his arrest in Clark County, 

Washington as irrelevant and more prejudicial than probative.

iii. Motions to Allow Evidence

8. Motion to Allow Evidence of Acquittals. Defendant will move to allow the introduction 

of evidence that Ammon Bundy, Ryan Bundy, Shawna Cox, David Fry, Neil Wampler, 

Jeff Banta, and Kenneth Medenbach were all acquitted by a jury of Count One.

B. Motions Related to the Misdemeanors and Indictment 16-cr-493-BR

9. Duane Ehmer’s Motion to Suppress. Duane Ehmer will move to suppress his statements 

to law enforcement and evidence seized from him. The evidence seized from him is 

relevant to the misdemeanors only.

10. Motion to Dismiss Trespass Charge as Overbroad. Defendants will move to dismiss this 

charge because it is overbroad in violation of Due Process.

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11. Motion to Dismiss All Misdemeanors For Violations of Administrative Procedures Act. 

Defendants may move to dismiss the misdemeanor information because the 

administrative regulations it relies on were adopted in violation of the APA.

12. Motion to Dismiss for Speedy Trial. Defendants may move to dismiss the misdemeanor 

information and the indictment in 16-CR-493-BR for violation of the Speedy Trial Act.

It is the government’s position that based on the information provided regarding the abovedescribed motions, the government’s objects to all of defendants’ proposed motions.

III. Proposed Modifications to Existing Jury Instructions

Defendants hereby adopt and incorporate the objections made by co-defendants to the 

preliminary (#1242) and final (#1509) jury instructions given by the Court. In particular, 

defendants object to the instruction given by the Court defining “officer of the United States.” 

However, defendants do not believe that any further briefing or argument on that subject will 

benefit the Court. Defendants request one minor modification of the final jury instructions, 

adding a “Mere Presence” instruction (Ninth Circuit Pattern Instruction No. 6.10) at the end of 

the third full paragraph on page 15. The government objects to the inclusion of this instruction. 

Additionally, defendants may request some modification of the co-conspirator instruction 

depending on how the Court rules on the motions listed above in order to deal with any 

statements from acquitted co-conspirators that are admitted. After it is given the opportunity to 

review the substance of defendants’ motion number “8” (Motion to Allow Evidence of 

Acquittals), the government will submit a separate instruction instructing the jury to disregard 

any evidence or statements regarding the acquittals in the first trial. Additionally, based on 

defendants’ assertion in Section I that they may rely upon the “affirmative defense” of adverse 

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possession, the government reiterates its request for the previously requested jury instruction 

regarding adverse possession.

IV. New Instructions

Several new crimes are at issue in this trial that were not in the first trial. The parties’ 

respective positions as to the appropriate instructions for those crimes are set out below.

A. Depredation of Government Property: 18 U.S.C. § 1361

i. Defendant’s Proposed Instruction

Defendants Jake Ryan and Duane Ehmer are accused in count six of the indictment with 

Depredation of Government Property in violation of Title 18, United States Code, Section 1361. 

To this charge the defendants have entered a plea of not guilty. A plea of not guilty is a denial of 

each and every element of the accusation. You, the jury, are required to return a verdict of not 

guilty unless you find that the government has proved all of the following beyond a reasonable 

doubt:

(1) That the defendants willfully injured and committed a depredation against the 

Malheur National Wildlife Refuge. (2) That the defendants did not act in self-defense.

The defendants respond that they are not guilty of this crime for two reasons: first, that 

they believed the land they moved was not the lawful property of the United States government 

and that they therefore did not act in willful violation of the statute, and second, they were acting 

in self-defense.1

 1 Defendants’ proposed instructions incorporate defendants’ theory of the case. Defendants are 

entitled to have these instructions given so long as it is supported by the law and has some 

foundation in the evidence. United States v. Sarno, 73 F.3d 1470, 1485 (9th Cir. 1995) (recognizing 

this principle as “settled law”).

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As used in the statute, “willfully” means that the defendants acted with the intent to 

commit the crime and knowledge that their actions were illegal. If the defendants believed that 

the land they were moving was not the lawful property of the United States government, they did 

not act willfully. It is the government’s burden to prove the willfulness of defendants’ conduct 

beyond a reasonable doubt.2

As used in this statute, “injured” means that the property was damaged in some way.

As used in this statute, “depredation” means robbing, plundering, or laying to waste.3

If you conclude that the government has not proved any element of this accusation 

beyond a reasonable doubt, you must return a verdict of not guilty. No further deliberation is 

necessary.

If you conclude that the government has proved that the defendants willfully injured and 

committed a depredation against the Malheur National Wildlife Refuge, you must next consider 

whether the depredation was done in self-defense.4 A person is entitled to act in self-defense 

when that person reasonably believes that their actions are necessary for the defense of oneself 

or another against the immediate use of unlawful force. However, a person is only entitled to 

 2 Defendants’ proposed instruction on willfulness is taken directly from United States v. Moylan, 

417 F.2d 1002, 1004-1005 (4th Cir. 1969). The Moylan court’s analysis of the issue was specifically 

approved by the Ninth Circuit in United States v. Simpson, 460 F.2d 515, 518 (9th Cir. 1972); see 

also United States v. Salazar, 455 F.3d 1022, 1024 (9th Cir. 2006) (again citing this definition with 

approval).

3 Defendants’ proposed definitions of “injury” and “depredation” are taken directly from United 

States v. Jenkins, 554 F.2d 783, 785-786 (6th Cir. 1977). To the best of counsel’s knowledge, there 

are no Ninth Circuit cases defining these terms.

4 Defendants’ self-defense instructions are taken from Ninth Circuit pattern instruction 6.8. A 

defendant is entitled to a self-defense instruction when “there is any foundation in the evidence, 

even though the evidence may be weak, insufficient, inconsistent or of doubtful credibility.” 

United States v. Sanchez- Lima, 161 F.3d 545, 549 (9th Cir.1998).

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take actions that appear reasonably necessary under the circumstances. The government must 

prove beyond a reasonable doubt that the defendants did not act in reasonable self-defense.

Therefore, in this case, if you conclude that the government has proved that the 

defendants willfully injured and committed a depredation against the Malheur National Wildlife 

Refuge, you must then consider whether the government has proved beyond a reasonable doubt 

that Jake Ryan and Duane Ehmer did not act in reasonable self-defense in committing that 

depredation. If you conclude that the government has not proved beyond a reasonable doubt that 

the defendants did not act in reasonable self-defense, you must return a verdict of not guilty. No 

further deliberation is necessary. If you conclude that the government has proved beyond a 

reasonable doubt that the defendants were not acting in self-defense, then you should find the 

defendants guilty of count six and move on to the question regarding damages.

The verdict form asks “Did the government prove damages in excess of $1000?” 

Damages are the dollar amount of loss to the government caused by the defendants for this 

particular crime. The government must prove the extent of damages beyond a reasonable doubt. 

Damages are only attributable to the defendants if they were reasonably foreseeable by the 

defendants at the time of their actions.5 You should consider only this particular offense—using 

 5 Defendants’ proposed instructions on damages, that the damages must be “reasonably 

foreseeable” in order to elevate the crime from a misdemeanor to a felony, is an extrapolation of 

the logic of the Ninth Circuit in United States v. Diaz, 499 F.2d 113 (9th Cir. 1974). The instruction 

is designed to avoid a vagueness-as-applied problem. In Diaz, the court held that the criminal 

provisions of the Antiquities Act were unconstitutionally vague in violation of the Due Process 

Clause. “One must be able to know, with reasonable certainty, when he has happened on an area 

forbidden to his pick and shovel and what objects he must leave as he found them.” 499 F.2d at 

114. The court reasoned that, because it takes specialized knowledge to know whether a person is 

violating the statute or not, the statute is unconstitutionally vague. Similarly here, whether or not 

this particular place had archeological value is not a subject of common knowledge. Therefore, 

allowing the government to elevate the crime to a felony based on factors beyond common 

knowledge creates a due process vagueness problem.

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an excavator to dig a trench—in calculating the extent of damages. If you find that the 

government proved reasonably foreseeable damages in excess of $1000, you should answer the 

question “yes”. If you find that the government did not prove reasonably foreseeable damages in 

excess of $1000, you should answer the question “no”. 

ii. Government’s Position

1. The government objects to the inclusion of any language regarding self-defense as 

improper.

2. The government objects to the inclusion of the all of the first and second paragraphs 

(except for the first sentence in paragraph two) on page 13 as a comments on the 

evidence.

3. The government objects to the sentence beginning “If you conclude...” it is unnecessary 

and addressed by the uniform instructions. 

4. The government objects to the inclusion of the “reasonably foreseeable” language.

B. Misdemeanor Count One: Trespassing

i. Defendants’ Proposed Instruction

Defendants Jason Patrick, Duane Leo Ehmer, Dylan Andreson, Sean Anderson, Sandra 

Lynn Anderson, Darryl William Thorn, and Jake Ryan are charged in Count One of the 

Information with Trespass in violation of 50 CFR §§ 26.21.

In order for the Defendants to be found guilty of Count One, the Government must prove 

the following elements beyond a reasonable doubt:

That on or between January 2, 2016 and February 11, 2016, in the District of Oregon, 

the defendants

1. Knowingly entered, occupied, and/or used the Malheur National Wildlife Refuge, and

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2. The defendants knew that they were not authorized to do so.

A person acts “knowingly” if the person is aware of the act and does not act through 

ignorance, mistake or accident. You may consider evidence of a Defendant’s words, acts or 

omissions, along with all other evidence, in deciding whether a particular Defendant acted 

knowingly.

ii. Government’s Position

The government does not object to this instruction.

C. Misdemeanor Counts Two Through Five: Tampering With Vehicles and 

Equipment

i. Defendants’ Proposed Instructions

Defendant Jason Patrick is charged in Count Two of the Information with Tampering 

with Government Vehicles or Equipment in violation of 50 C.F.R. § 27.65.

In order for defendant Jason Patrick to be found guilty of Count Two, the Government 

must prove the following elements beyond a reasonable doubt:

That on or about January 27, 2016, in the District of Oregon, and while on the Malheur 

National Wildlife Refuge, Jason Patrick 

1. Knowingly entered and started a motor vehicle: To wit a Dodge Durango,

2. Knowing that the vehicle was property of the United States Government,

3. Knowing he was not authorized to do so, and

4. Jason Patrick did not act in self-defense.

A person acts “knowingly” if the person is aware of the act and does not act through 

ignorance, mistake or accident. You may consider evidence of a Defendant’s words, acts or 

omissions, along with all other evidence, in deciding whether a particular Defendant acted 

knowingly.

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A person is entitled to act in self-defense when that person reasonably believes that their 

actions are necessary for the defense of oneself or another against the immediate use of unlawful 

force. However, a person is only entitled to take actions that appear reasonably necessary under 

the circumstances. The government must prove beyond a reasonable doubt that Jason Patrick 

did not act in reasonable self defense.

Defendants Jake Ryan and Duane Leo Ehmer are charged in Count Three of the 

Information with Tampering with Government Vehicles or Equipment in violation of 50 C.F.R. 

§ 27.65.

In order for defendants Jake Ryan and Duane Leo Ehmer to be found guilty of Count 

Three, the Government must prove the following elements beyond a reasonable doubt:

That on or about January 27, 2016, in the District of Oregon, and while on the Malheur 

National Wildlife Refuge, Jake Ryan and Duane Leo Ehmer, 

1. Knowingly entered and started equipment : To wit, an excavator,

2. Knowing that the equipment was property of the United States Government, 

3. Knowing they were not authorized to do so, and,

4. The defendants did not act in self-defense.

A person acts “knowingly” if the person is aware of the act and does not act through 

ignorance, mistake or accident. You may consider evidence of a Defendant’s words, acts or 

omissions, along with all other evidence, in deciding whether a particular Defendant acted 

knowingly.

A person is entitled to act in self-defense when that person reasonably believes that their 

actions are necessary for the defense of oneself or another against the immediate use of unlawful 

force. However, a person is only entitled to take actions that appear reasonably necessary under 

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the circumstances. The government must prove beyond a reasonable doubt that the defendants 

did not act in reasonable self defense.

Defendant Darryl William Thorn is charged in Count Four of the Information with 

Tampering with Government Vehicles or Equipment in violation of 50 C.F.R. § 27.65.

In order for defendant Darryl William Thorn to be found guilty of Count Four, the 

Government must prove the following elements beyond a reasonable doubt:

That on or between January 2, 2016 and January 27, 2016, in the District of Oregon, 

and while on the Malheur National Wildlife Refuge, Darryl William Thorn,

1. Knowingly entered and started a motor vehicle: To wit a front end loader,

2. Knowing that the vehicle was property of the United States Government,

3. Knowing he was not authorized to do so, and,

4. Darryl Thorn did not act in self defense.

A person acts “knowingly” if the person is aware of the act and does not act through 

ignorance, mistake or accident. You may consider evidence of a Defendant’s words, acts or 

omissions, along with all other evidence, in deciding whether a particular Defendant acted 

knowingly.

A person is entitled to act in self-defense when that person reasonably believes that their 

actions are necessary for the defense of oneself or another against the immediate use of unlawful 

force. However, a person is only entitled to take actions that appear reasonably necessary under 

the circumstances. The government must prove beyond a reasonable doubt that Darryl Thorn did 

not act in reasonable self defense.

Defendant Darryl William Thorn is charged in Count Five of the Information with 

Tampering with Government Vehicles or Equipment in violation of 50 C.F.R. § 27.65.

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In order for defendant Darryl William Thorn to be found guilty of Count Five, the 

Government must prove the following elements beyond a reasonable doubt:

That on or between January 2, 2016 and January 27, 2016, in the District of Oregon, 

and while on the Malheur National Wildlife Refuge, Darryl William Thorn,

1. Knowingly entered and started a motor vehicle: To wit an all terrain vehicle,

2. Knowing that the vehicle was property of the United States Government,

3. Knowing he was not authorized to do so, and,

4. Darryl Thorn did not act in self defense.

A person acts “knowingly” if the person is aware of the act and does not act through 

ignorance, mistake or accident. You may consider evidence of a Defendant’s words, acts or 

omissions, along with all other evidence, in deciding whether a particular Defendant acted 

knowingly.

A person is entitled to act in self-defense when that person reasonably believes that their 

actions are necessary for the defense of oneself or another against the immediate use of unlawful 

force. However, a person is only entitled to take actions that appear reasonably necessary under 

the circumstances. The government must prove beyond a reasonable doubt that Darryl Thorn did 

not act in reasonable self defense.

To the Crime of Tampering With a Government Vehicle Defendants contend that they

acted out of necessity. Necessity legally excuses the crime charged.

The defendant must prove necessity by a preponderance of the evidence. A 

preponderance of the evidence means that you must be persuaded that the things the defendant 

seeks to prove are more probably true than not true. This is a lesser burden of proof than the 

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government’s burden to prove beyond a reasonable doubt each element of Tampering with A 

Government Vehicle.

A defendant acts out of necessity only if at the time of the crime charged:

1. the defendant was faced with a choice of evils and chose the lesser evil;

2. the defendant acted to prevent imminent harm;

3. the defendant reasonably anticipated his conduct would prevent such harm; and

4. there were no other legal alternatives to violating the law.

If you find that each of these things has been proved by a preponderance of the evidence, 

you must find the defendant not guilty.

Defendants also contend that their conduct was justified. Justification legally excuses the 

crime charged.

The defendant must prove justification by a preponderance of the evidence. A 

preponderance of the evidence means that you must be persuaded that the things the defendant 

seeks to prove are more probably true than not true. This is a lesser burden of proof than the 

government’s burden to prove beyond a reasonable doubt each element of Tampering with a 

Government Vehicle.

A defendant’s conduct was justified only if at the time of the crime charged:

1. the defendant was under an unlawful and present threat of death or serious bodily 

injury;

2. the defendant did not recklessly place himself in a situation where he would be forced 

to engage in criminal conduct;

3. the defendant had no reasonable legal alternative; and

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4. there was a direct causal relationship between the conduct and avoiding the 

threatened harm.

If you find that each of these things has been proved by a preponderance of the evidence, 

you must find the defendant not guilty.

ii. Government’s Position

1. The government objects to any reference/inclusion of self-defense.

2. The government objects to any reference/inclusion of necessity.

3. The government objects to any reference/inclusion of justification.

D. Misdemeanor Counts Six and Seven: Destruction and Removal of Property

i. Defendants’ Proposed Instruction

Defendant Jason Patrick is charged in Count Six of the Information with Destruction and 

Removal of Public Property in violation of 50 CFR §27.61.

In order for defendant Jason Patrick to be found guilty of Count Six, the Government 

must prove the following elements beyond a reasonable doubt:

That on or about January 11, 2016, in the District of Oregon, and while on the Malheur 

National Wildlife Refuge, Jason Patrick 

1. Knowingly destroyed, injured, defaced, disturbed and removed public property: By 

cutting a barbed wire fence,

2. Knowing that the fence was public property; and 

3. Knowing he was not authorized to do so.

A person acts “knowingly” if the person is aware of the act and does not act through 

ignorance, mistake or accident. You may consider evidence of a Defendant’s words, acts or 

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omissions, along with all other evidence, in deciding whether a particular Defendant acted 

knowingly.

Defendant Duane Ehmer is charged in Count 7 of the Information with Removal of 

Property in violation of 50 CFR § 27.61.

In order for Defendant Duane Ehmer to be found guilty of Count Seven, the government 

must prove each of the following elements beyond a reasonable doubt:

That on or about January 27, 2016, in the District of Oregon, and while on the Malheur 

National Wildlife Refuge, Duane Leo Ehmer

1. Knowingly removed a maroon pouch from the Malheur National Wildlife Refuge;

2. Knowing that the maroon pouch contained items which belonged to the Friends of the 

Malheur National Wildlife Refuge and the United States Government; and

3. Knowing that he was unauthorized to do so.

A person acts “knowingly” if the person is aware of the act and does not act through 

ignorance, mistake or accident. You may consider evidence of a Defendant’s words, acts or 

omissions, along with all other evidence, in deciding whether a particular Defendant acted 

knowingly.

ii. Government’s Position

The government does not object to these instructions.

V. Additional Matters That Need To Be Addressed

A. Juror Questionnaire

The Court indicated in an email to the parties that it intended to use the questionnaire 

from the first trial with the addition of only two questions to address prejudice related to the 

verdict in that trial. Defendants objected to the use of that questionnaire, and submitted to the 

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Court a questionnaire specifically developed for use in this trial. The defendants’ objections and 

rationale for the use of the new questionnaire were explained in a prior joint status report filing. 

See Dkt. No. 1619. Defendants continue to object to the use of the first questionnaire, and 

request that the Court use the questionnaire developed for this trial for all of the reasons stated in 

that filing. Defendants understand and respect that the Court is not open to further argument on 

this issue and only ask that the two questionnaires be admitted into the record to preserve the 

issue for appeal.

B. Jury Management Order

The Court indicated in an email to the parties that it intended to craft a jury management 

order in the near future that would be the same in substance as the jury management order issued 

for the first trial. Not all defendants agree that juror anonymity or partial sequestration are 

necessary or appropriate for this trial. Those defendants who have objections will be prepared to 

argue them at the status hearing on January 6.

C. Trial Management

Defendants request a firm date be set for the beginning of their case-in-chief. In the first 

trial, the government estimated its case would take four weeks. In fact, the government’s case 

took 5 days. Partially as a result of this, the defendants’ case presentation in trial one was 

disorganized, with significant down time while the jury was waiting, which the Court repeatedly 

expressed dissatisfaction with on the record. The defendants in the second trial wish to avoid a 

repeat of this situation. The defense witnesses almost universally need to travel significant 

distances to testify, and at least one defense witness is in custody in another district. A firm start 

date would allow the defense to make the necessary arrangements to insure that their 

presentation is organized and efficient, saving money and time.

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DATED this 4th day of January, 2017

By: /s Jesse Merrithew /s Craig Gabriel_______

Jesse Merrithew, OSB No. 074564 Craig Gabriel, OSB No. 012571

Attorney for Jake Ryan Assistant United States Attorney

On behalf of all listed defendants On behalf of plaintiff

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