DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CHANGE OF VENUE 1

Jason Patrick, Pro Se

c/o Andrew M. Kohlmetz, OSB #955418

Kohlmetz Steen & Hanrahan PC

741 SW Lincoln Street

Portland, OR 97201

Tel: (503) 224-1104

Fax: (503) 224-9417

Email: andy@kshlawyers.com

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs.

JASON PATRICK,

Defendant

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Case No. 3:16-CR-00051-BR-09

DEFENDANT’S MEMORANDUM OF LAW 

IN SUPPORT OF MOTION FOR CHANGE 

OF VENUE: PRESUMPTIVE PREJUDICE 

The defense was given leave to file this Change of Venue Motion in “Round Two” 

because my indigent funding request for a change of venue analysis was still pending at the 

time “Round One” motions were being filed. Since that time, my defense has been denied 

funding for a comprehensive compilation and analysis of the pretrial publicity in this case that 

my standby counsel viewed as necessary to the bringing of a proper Change of Venue Motion. 

(See Documents # 524-526, 574, 576). I understand that this court has allowed leave to refile a 

request for funding for a change of venue analysis at the close of voir dire. With this in mind, I 

seek now a change of venue preliminarily on the ground that due to the nature, content and 

amount of pretrial publicity herein, prejudice within the district-wide jury pool must be 

presumed and therefore a change of venue is required. I ask further to be allowed to raise 

“actual prejudice as a ground for similar relief once jury selection is underway and juror 

exposure to pretrial publicity can be assessed individually. Lastly I request leave of the court 

to supplement this Motion and Memorandum with additional examples of pretrial publicity as

my investigator is able to prepare them.

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DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CHANGE OF VENUE 2

The Sixth Amendment guarantees a defendant a right to a jury trial before a fair and 

impartial jury. Due Process requires that a trial court order a change of venue when the court 

is “unable to seat an impartial jury because of prejudicial pretrial publicity or an inflamed 

community atmosphere.” Harris v. Pulley, 885 F.2d 1354, 1361 (9th Cir.1988) (citing Rideau 

v.

Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963)). A defense motion for 

change of venue based on Sixth Amendment concerns is governed specifically by Federal 

Rule of Criminal Procedure 21(a) which provides:

Upon the defendant’s motion, the court must transfer the proceeding 

against that defendant to another district if the court is satisfied that so 

great a prejudice against the defendant exists in the transferring district 

that the defendant cannot obtain a fair and impartial trial there.

The existence of two types of prejudice may be offered in support of a motion for 

change of venue: presumed or actual.” United States v. Sherwood, 98 F.3d 402, 410 (9th 

Cir.1996).

Presumed prejudice exists when “the community where the trial was held was saturated with 

prejudicial and inflammatory media publicity about the crime.” Harris, 885 F.2d at 1361. 

Actual prejudice exists when members of the jury pool are actually partial or hostile to the 

defendants and that partiality or hostility cannot be set aside.” Id. at 1363. This Court has 

repeatedly expressed the belief that prejudice cannot be presumed in this case. (see for 

example, Transcript of May 4, 2016 case status hearing, Order on Defendant’s Amended 

Motion for Indigent Defense Funds, Document 576) I believe this judgment premature if not 

erroneous.

The court must consider four factors in determining whether prejudice in the jury 

pool must be presumed as a result of pretrial publicity, the first three of which are relevant 

at this juncture: (1) the size and characteristics of the community in which the crime 

occurred; (2)

whether the news stories contained confessions or other blatantly prejudicial information that 

viewers could not reasonably be expected to ignore; and (3) the delay between news stories 

and trial; Skilling v. United States, 541 U.S. 358, 381-83, 130 S.Ct. 2896, 177 L.Ed.2d. 619 

(2010), see also Williams v. Franke, No. 6:01-CV-00812-AA, 2013 WL 3819868, at *2 (D. 

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DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CHANGE OF VENUE 3

Or. July 22, 2013) aff'd, 590 F. App'x 691 (9th Cir. 2015). The court must review the 

proffered media reports for “volume, content, and timing to determine whether prejudice 

exists. Harris v. Pulley, 885 F.2d 1354, 1360 (9th Cir. 1988). Furthermore, the finding of 

whether or not presumed prejudice exists is made without reference to any examination of the 

potential jurors themselves. See Rideau, 373 U.S. at 727. Prejudice will be presumed if there 

is a finding made that “the community where the trial was held was saturated with prejudicial 

and inflammatory media publicity about the crime.” Harris, 885 F.2d at 1361.

The first “Skilling factor” is the size and characteristics of the community. Because the 

jury pool will be drawn from all divisions within the District of Oregon, the potential jury 

pool from the entire District is the relevant community for a change of venue analysis.

Skilling, 541 U.S. at 382. As of 2015, there were 4,028,977 persons living in Oregon.1 Voter 

registration is the primary criteria for federal jury service eligibility in this District. As of 

May, 2016, there were 2,309,829 registered voters in Oregon.2 Thus, the relevant community 

size is roughly 2.31 million persons. However, this number is certainly reduced in fact by how 

many of those potentially eligible jurors appear on the Clerk’s current list. Regardless, based 

on the partial media compilations I have amassed to date, it is clear that the entire community 

has been exposed to pretrial publicity concerning this case.

The second of the four “Skilling Factors” that the court must examine in analyzing 

whether extensive pretrial publicity has resulted in presumed prejudice is “whether the news 

stories contained confessions or other blatantly prejudicial information that viewers could not 

reasonably be expected to ignore” Skilling, 541 U.S. at 382. This is the critical factor in this 

unique case. There was extensive media coverage of the events leading up to the January 2, 

2016, entry onto the Malheur National Wildlife Refuge (“MNWR’). There has been extensive 

local media coverage since, including media updates after every hearing in this case.3 What 

makes this case remarkable and unique in many respects is the coverage of the occupation as 

 

1 http://www.census.gov/quickfacts/table/PST045215/41

2 http://sos.oregon.gov/elections/Documents/registration/May16.pdf

3 See for example, http://www.oregonlive.com/oregon-standoff/2016/06/judge_dismisses_one_of_the_gun.html

(reporting on dismissal of count 3, 1156 comments as viewed June 13, 2016)

http://www.oregonlive.com/oregon-standoff/2016/05/defense_lawyers_signal_push_fo.html (reporting on the 

May 4, 2016 status conference. Over 730 comments. as viewed 5/9/2016. http://koin.com/2016/05/06/malheurrefuge-standoff-the-ranchers-story/ ( 5/6/16 opinion piece as viewed 5/9/2016)

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DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CHANGE OF VENUE 4

it occurred. For almost the entire period of 41 days in which some of these defendants are 

accused of occupying the Refuge and committing various criminal acts in that regard, there 

was a constant stream of media coverage in real time and on both traditional and social or 

electronic media platforms amounting to nothing short of a live broadcasted commission of 

the alleged acts and confessions thereto. 

The volume of ongoing media coverage pertaining to this case has been extreme. For 

example, on June 8, 2016, a simple search of the term “Bundy Standoff” on the 

Oregonlive.com website produces “about 52,100” results, a broader Google search of the 

same term produces “about 408,000” results generally and “about 26,100” results under the 

Google “news” heading. An Oregonlive.com website search of the term “Oregon standoff” 

produces “about 114,000 results.Oregonlive.com is the electronic front for Portland’s major 

newspaper, The Oregonian. According to the Oregon Media Group’s website the Oregonian 

and its electronic counterpart Oregonlive.com reach a broad swath of the state’s populace.

More than 1.1 million readers choose The Oregonian for 

in-depth local news every month. OregonLive draws 4.6 

million monthly visitors, supported by national networks 

and partners that reach millions more.4

Anecdotal review of hundreds of media articles and on-line posts related to the 

MNWR protest leads me to conclude that the media coverage of this event is unprecedented 

in both scope and nature. The sheer number of articles produced locally is in the thousands. 

On-line commenting to many of these stories by the general public appears to be widespread. 

The overall tenor of the comments appears to be overwhelmingly hostile and negative in 

nature. Popular hashtags such as #talibundy, #yallqueda, #yokelharam and others appear 

across many articles and social media platforms. A common theme appears to be the popular 

equation of the MNWR protesters with domestic terrorists. Expressions of the predetermined 

guilt of these defendants are replete in such comments.

Because this Court denied my earlier request for funding to complete a 

comprehensive media survey and analysis, I am unable to offer here a complete accounting 

of all media coverage of the events as they unfolded at the Refuge. Nor can I quantify, by 

attitudinal survey data, the full reach and impact of that media coverage. However, standby 

 

4 http://www.oregonianmediagroup.com/business-solutions/why-oregonian-media-group/ as viewed 03/28/16

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DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CHANGE OF VENUE 5

counsel has provided me with reports of work currently being performed by my defense 

investigator. These reports indicate that during the first week of the so-called occupation, 

between January 2nd and January 8th 2016, 86 separate written articles concerning the 

“occupation” were posted on Oregonlive.com.5 These articles were the subject of an extreme 

amount of publicly posted commentary. This type of commentary, relatively new to 

electronic media is illustrative of the impact these stories have had on the community. Even a 

casual perusal of the comments from the stories listed in Exhibit A and elsewhere available 

online reveal a tone of marked hostility and prejudgment as to these defendants.

A high volume of coverage also appeared in Portland metro area television outlets. 

During the month of January, 2016, I have identified 566 television news stories which were 

broadcast in the Portland TV market concerning the facts at the heart of this case.6 Radio 

coverage was also extreme. From the month of January 2016 I have identified 1,422 radio 

broadcasts concerning the Refuge “occupation.”7 These reports included almost daily 

broadcasts from the Refuge itself and included photographs, videos, and personal interviews 

of some of the defendants concerning what was occurring and why. Some defendants held 

news conferences, while others broadcast audio and video on social media websites which 

were then picked up and retransmitted by mainstream media outlets. Many of the defendants 

were named, interviewed and even profiled. The coverage of the events unfolding on the 

Refuge and the people involved with those events was unrelenting and pervasive. Without 

funding for my previously requested media analysis I cannot at this time offer more than the 

attached .pdf summaries of the pretrial publicity. However, review of these summaries 

suffices to show both the volume and content are problematic.

Unlike the case in Skilling, or in other cases where the media coverage begins after 

the alleged criminal acts have been committed, the media coverage here is of the most 

extreme and prejudicial nature that one can imagine: Far more similar to the cases from 

 

5 Exhibit A: PDF report of Oregonlive.com articles and public commentary under hashtag “Oregon standoff” 

prepared by Defense Investigator Mark R. Robertson.

6 Exhibit B: PDF summary report of Portland area television coverage of the events occurring at the MNWR during 

the month of January, 2016. Prepared by Michael James of Yournews, Inc., a local mass media amalgamator. 7 Exhibit C: PDF summary report of Portland area radio coverage of the events occurring at the MNWR during the 

month of January, 2016. Prepared by Michael James of Yournews, Inc., a local mass media amalgamator.

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DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CHANGE OF VENUE 6

which the Skilling court drew great pains to differentiate.

although news stories about Skilling were not kind, they 

contained no confession or other blatantly prejudicial 

information of the type

readers or viewers could not reasonably be expected to shut from 

sight. Rideau's dramatically staged admission of guilt, for instance, 

was likely imprinted indelibly in the mind of anyone who watched it. 

Cf. Parker v. Randolph, 442 U.S. 62, 72, 99 S.Ct. 2132, 60 L.Ed.2d 

713 (1979)

(plurality opinion) (“[T]he defendant's own confession [is] probably 

the most probative and damaging evidence that can be admitted against 

him.” (internal quotation marks omitted)). Pretrial publicity about 

Skilling was less memorable and prejudicial. No evidence of the 

smoking-gun variety invited prejudgment of his culpability. See United 

States v. Chagra,

669 F.2d 241, 251–252, n. 11 (C.A.5 1982) (“A jury may have 

difficulty in disbelieving or forgetting a defendant's opinion of his 

own guilt but have no difficulty in rejecting the opinions of others 

because they may not be well-founded.”).

Skilling, 561 U.S. at 382-83. For 41 days Oregonians awoke to daily live factual and 

editorial updates of what was occurring at the Refuge. These were direct reports often 

accompanied by statements of the defendants herein. This type of coverage is unusually and 

extremely prejudicial to the defendant’s presumption of innocence. Thousands, of 

Oregonians watched the commission of these offenses at some point on television and social 

media outlets. Thousands of Oregonians listened at some point to daily updates on radio and 

television outlets such as OPB. Thousands of Oregonians read the daily updates in the 

Oregonian newspaper’s print and electronic editions. Many posted comments to such 

articles. Thousands of Oregonians were further exposed to other print, audio, video and 

social media. 

Media stories and broadcasts from the Refuge in particular were constant “evidence 

of the smoking gun-variety” which invites prejudgment of the guilt of these defendants. 

Dozens of persons, codefendants and otherwise, appeared in traditional and social media 

audio and video broadcasts describing and documenting in detail the alleged commission of 

these offenses. These were not simply stories about the event, they were part of the event 

itself and moreover contained the personal statements, involvement, and even past histories 

of many of these defendants. That bell cannot be unrung. The facts underpinning Rideau are 

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DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CHANGE OF VENUE 7

instructive. Wilbert Rideau was arrested a few hours after robbing a bank, abducting three 

employees and killing one.

The next morning a moving picture film with a sound track was made of 

an ‘interview’ in the jail between Rideau and the Sheriff of Calcasieu 

Parish. This ‘interview’ lasted approximately 20 minutes. It consisted 

of interrogation by the sheriff and admissions by Rideau that he had 

perpetrated the bank robbery, kidnapping, and murder. Later the same day 

the filmed ‘interview’ was broadcast over a television station in Lake 

Charles, and some 24,000 people in the community saw and heard it on 

television. The sound film was again shown on television the next day to 

an estimated audience of 53,000 people. The following day the film was 

again broadcast by the same television station, and this time approximately 

20,000 people saw and heard the ‘interview’ on their television sets. 

Calcasieu Parish has a population of approximately 150,000 people.

Rideau, 373 U.S. at 374. Somewhere between 1/3 and 2/3 of the people in the Parish of 

Calcasieu from where the jury was drawn had been exposed to at least one of these 

broadcasts. Though three of the twelve jurors who convicted Rideau had seen at least one of 

the broadcasts, the Court did not proceed to an analysis of the lower court’s voir dire process. 

According to the Court, the public spectacle of Rideau’s unorthodox pretrial confession 

compelled a change of venue:

it was a denial of due process of law to refuse the request for a change 

of venue, after the people of Calcasieu Parish had been exposed repeatedly 

and in depth to the spectacle of Rideau personally confessing in detail to the 

crimes with which he was later to be charged. For anyone who has ever 

watched television the conclusion cannot be avoided that this spectacle, to 

the tens of thousands of people who saw and heard it, in a very real sense 

was Rideau's trial—at which he pleaded guilty to murder. Any subsequent 

court proceedings in a community so pervasively exposed to such a spectacle 

could be but a hollow formality.

Rideau, 373 U.S. at 726. This case is similar to Rideau in its uniqueness. Yet, in one very real 

sense it is worse. In addition to hearing and seeing what amounts to virtual confessions of 

some of these defendants given in interviews and news conferences during the so-called 

occupation, thousands if not millions of Oregonians were exposed to broadcasts of actual 

commission of the alleged criminal acts themselves. Would the result in Rideau had been any 

different had, in addition to his taped confession, the prospective jurors been exposed to a 

broadcast of the bank robbery, kidnapping and murder itself? It is the content and nature of 

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DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CHANGE OF VENUE 8

the media coverage in this case, in conjunction with the volume of coverage, that compels a 

finding of presumed prejudice.

Moreover, the media coverage of this case continues. Although perhaps without the 

frequency and flamboyancy it had during the events at issue, there are almost daily media 

reporting concerning this case to this day. There has been almost non-stop media coverage 

of this case beginning in the late Fall of 2015, continuing through the developing protests in 

Burns, Oregon in late December, through the actual “occupation” of the MNWR in January 

of 2016, and continuing to this day in regard to developments in the criminal investigation 

and court cases as they occur. In essence, and unlike traditional after-the fact-media 

coverage of typical criminal acts, the coverage in this case was ongoing as the occupation 

and alleged criminal acts were being committed. In a very real sense the commission of the 

criminal acts alleged in the Superseding Indictment were widely broadcast throughout 

Oregon and beyond in real time as they were occurring. Oregonians are served up an almost 

daily reminder of this case in a variety of print and electronic media. There is now even an 

entire detailed Wikipedia page devoted to the events which are at the heart of this case 

entitled “Occupation of the Malheur National Wildlife Refuge” which can be viewed online 

at https://en.wikipedia.org/wiki/Occupation_of_the_Malheur_National_Wildlife_Refuge. 

Oregonians are treated to daily media reminders of what transpired at the Refuge. There 

continues a very real danger that this extra-evidentiary coverage continues to taint the public 

perception of this case and these defendants.

These daily reminders of the “so-called” occupation lead to analysis of the third 

relevant “Skilling factor;” The delay between the media coverage and the trial. The 

“occupation did not end until February 11, 2016 when codefendant David Fry, in rather 

flamboyant and publicly broadcast fashion, livestreamed the process of his “surrender” to the 

FBI. 8 Trial is now set to begin on September 7, 2016, Not fully seven months after the media 

broadcasts of the continuing “occupation” and its participants ceased and well before the 

continuing media coverage has died down. Given the extensive amount of pretrial publicity 

and its unique and prejudicial content, not enough time has passed to ensure that the biasing 

 

8 See http://www.npr.org/sections/thetwo-way/2016/02/11/466394039/listen-final-occupier-refusing-to-leaveoregon-wildlife-refuge (as viewed June 13, 2016).

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DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CHANGE OF VENUE 9 

effects of this media coverage have abated. Without both the media analysis and community 

attitude survey for which I had requested funding, I am incapable of quantifying this claim. 

The Court should therefore err on the side of caution and find that prejudice must be 

presumed in the District.

The court cannot simply state it is of the opinion that “this is not a case where prejudice can 

be presumed.” It must consider the pretrial publicity before rendering its decision. As noted in 

Rideau, reliance on the voir dire process is not the legally appropriate avenue by which to 

analyze presumptive prejudice. 

For these reasons, and those raised in my request for indigent funds for a change of 

venue analysis and exhibits thereto this court should grant the instant motion. In the 

alternative I renew my request for funding of a change of venue analysis, and request a 

continuance of the pending September 7, 2016 trial date to accommodate a properly 

evidenced and litigated Motion for Change of Venue. 

RESPECTFULLY SUBMITTED THIS 15th day of June, 2016 

 _________________________ 

 Jason Patrick, Pro Se 

Jason Patrick

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