Lawyers present starkly different portraits of refuge occupation in closing arguments

The lawyers’ closing arguments followed five weeks of testimony.

Maxine Bernstein

The Oregonian

PORTLAND — Prosecutor Ethan Knight urged jurors to use their common sense as he framed the federal conspiracy case against Ammon Bundy and six others as strikingly simple: “These defendants took over a wildlife refuge, and it wasn’t theirs.”

It’s not about land use, he said Tuesday. It’s not about their objections to more prison time for Harney County ranchers Dwight Hammond Jr. and Steven Hammond, nor is it about what happened during the 2014 standoff with federal agents in Bunkerville, Nevada.

“They decided to pick and choose the rules and laws that apply, and take over property that didn’t belong to them,” Knight said of the Malheur National Wildlife Refuge.

“This space does not belong to these folks, and they treated it as it did,” Knight said.

Ammon Bundy’s lawyer Marcus Mumford countered that it’s the federal government that doesn’t play by the rules, manufactured fear and misinformation in Harney County during the refuge occupation, and overstepped its bounds by charging Bundy with a criminal conspiracy charge more suited for a “mobster.”

Mumford argued that Bundy’s intent was to stake claim to the wildlife sanctuary because he felt there was a legitimate dispute regarding the ownership of the land. He had hoped to end up in civil court to argue that the federal government lacked jurisdiction to control the property, his lawyer said.

He argued that Bundy didn’t enter into any agreement with anyone until Jan. 2, when he proposed taking over the refuge with others at Ye Old Castle restaurant in Burns. He said the “hard stand” that Bundy referred to while addressing supporters on a snowbank later that day before driving to the refuge amounted to a “peaceful” but “determined” stand. He needed to take action that would draw attention to his cause after local and state officials repeatedly ignored his “Redress of Grievance,” Mumford argued.

“Is it illegitimate to tell the government to respect its limits? Is it illegitimate to tell the government to respect the Constitution?” Mumford questioned, leaning his two arms on a lectern set up in front of the jury as he spoke. “The object and aim of Mr. Bundy was to rectify a wrong. Whatever the effect was of an adverse possession claim – or any other – is not relevant.”

The lawyers’ closing arguments followed five weeks of testimony. All seven defendants are charged with conspiring to impede officers of the U.S. Fish & Wildlife Service and the U.S. Bureau of Land Management from carrying out their duties at the refuge and other places through force, threat or intimidation. Four of the seven – Ammon Bundy, brother Ryan Bundy, David Fry and Jeff Banta – also are charged with possession of a firearm in a federal facility in the course of the conspiracy.

To be found guilty of the latter charge, the four would have to be found guilty of the conspiracy count. Two others face the charge of theft of government property.

Using defendants’ own words captured on videos and audio recordings, as well as their testimony in court, Knight argued that their strategy to stake claim to the wildlife sanctuary through the principle of adverse possession supported the conspiracy charge.

As Knight spoke, Ammon Bundy swiveled in his chair and faced the prosecutor and the jurors.

They’ve told you, Knight said, that they wanted to turn the property over to the people of Harney County, not employees of the Fish & Wildlife Service and Bureau of Land Management.

“Their plan to adversely possess this property is an admission to Count 1,” Knight said.

The conspiracy began, he said, when Ammon Bundy and ally Ryan Payne met Nov. 5 with Harney County Sheriff Dave Ward and promised that there would be “extreme civil unrest” unless Ward prevented the Hammonds from returning to federal prison on an arson conviction for setting fire to federal land, including refuge property.

“They wanted him not to play by the rules,” Knight said. “The seeds were sown in November to do something about it and take what Ammon Bundy described as a ‘hard stand.”’

The coordinated Jan. 2 seizure of the refuge had a substantial destabilizing effect on county residents and the 16 refuge employees who couldn’t report to work during the 41-day occupation, Knight said.

“These are real people with real jobs whose lives were profoundly disrupted by the choices these defendants made,” he told jurors.

He pointed to refuge archeologist Carla Burnside who found her office ransacked, refuge ecologist Jess Wenick who couldn’t locate important documents after returning to his desk months later, refuge fish biologist Linda Beck who couldn’t access the boat launch and check on invasive carp in the refuge waterways, and refuge manager Chad Karges, whose official Fish and Wildlife Service coat was missing after the occupation.

He ridiculed the suggestion by defendants that any of the refuge employees could easily have shown up to work while the Bundys were using their offices or co-defendant David Fry had his laptop plugged into a worker’s computer.

“These folks were not welcomed back,” Knight said.

Yes, the defendants welcomed people to the refuge who supported their causes, and fed and found them places to stay, the prosecutor noted. But putting armed guards at the front gate and in the watchtower from the first day of the takeover and creating military-style squads and doing firearms training were aggressive and frightening tactics, Knight argued.

“People brought their guns to fortify themselves in a place that didn’t belong to them,” he said. “The message was very clear to stay away.”

Knight played a video of eight to 10 men at the refuge boat launch firing assault rifles. “This is not a firing range … this is a wildlife refuge that belongs to other people where no firearms are permitted,” he said. “This is inherently intimidating.”

The prosecutor described the law enforcement response — from Harney County Sheriff Ward’s efforts to be accommodating to Bundy to the FBI’s decision not to make arrests early in the occupation — as calculated decisions “not to escalate the situation and disengage.”

The reason FBI agents didn’t try to grab fingerprints off guns or trace each piece of ammunition, Knight said, was because “this case is not a whodunit.”

“These defendants are on video talking about their presence there,” he said.

Mumford didn’t spend time talking about the activities that occurred at the refuge and instead worked to pick apart the government’s evidence. He described the government’s case as full of deceit and untruths, pointed to what he considered the indiscriminate nature of arrests and lack of federal follow-up to tie people to the firearms recovered from the refuge.

Highlighting the government’s use of informants, Mumford directed jurors to the judge’s instruction that states the acts and statements of an informant “cannot form the basis of an illegal conspiracy or be attributed to any defendant.” He reminded jurors there were nine FBI informants at the refuge, and six remain unidentified.

The last witness called by the defense was a Las Vegas man named Fabio Milaggio, who went by the alias “John Killman” at the refuge and was in charge of the shooting range. He arrived at the refuge Jan. 23, and two days later eight to 10 men were filmed on video firing assault rifles in a target practice from the refuge boat launch. Mumford chuckled at the fake name he surmised the FBI gave Milaggio and maintained the FBI sent Milaggio to the refuge “because they needed footage to scare people.”

“There were more FBI confidential informants at the refuge than there are defendants in this room,” Mumford said.

Referring to co-defendants Neil Wampler, who cooked for occupiers, and David Fry, the computer technology expert, Mumford went on, “They charged the cook but not the confidential informant running the shooting range. …They charged the kid who was good with computers but not the Navy Seals who came in and trashed the place.”

When Bundy was arrested riding in a Jeep during a high-risk felony stop by police Jan. 26, the only occupant of the Jeep who was armed was the driver, Mark McConnell, “their own government informant,” Mumford noted.

He argued that the government presented photos of men with assault rifles without context, pulling up the photo prosecutors had shown to jurors at trial of a Pacific Patriot Network security team member Kevin Rhodes, who stood outside the refuge one day with an assault rifle. He wasn’t called to the refuge by Bundy but by the Pacific Patriot Network that arrived on scene. He showed another photo of a man inside a refuge building, dressed in camouflage with a handgun jutting from his right front pocket, and his hand resting on a large broom.

“In some ways these are the worst conspirators I’ve ever seen – if you’re going to conspire, you don’t do so by sweeping up rat feces,” Mumford said.

Mumford acknowledged that the occupiers controlled the entry and exits to the refuge, but he said it was part of their adverse possession claim. Bundy educated people at the refuge about their individual rights and gave a voice to local ranchers who had been oppressed by the government. He said the refuge employees didn’t enter into Bundy’s mind, and he argued they were able to continue their jobs off site.

“Why is it they impute illegal conduct to demanding the government follow the law?” he asked.

He urged jurors to take their own stand.

“The U.S. Constitution makes you the last stand,” Mumford said leaning on the lecturn and pointing to jurors with both hands. “Stand. Stand alone if you must, but stand. Others will follow. We ask all of you to stand and say, ‘This must stop.’ It cannot be illegal to demand the government follow the law. …You are the heart and lungs of liberty. Only you can make clear that Mr. Bundy is not a conspirator.”

According to the prosecutors, each of the defendants played a role in the occupation. Ammon Bundy was clearly the leader – and somehow lost sight that the refuge’s 187,000 acres didn’t belong to him while at the same time making an effort to safeguard the refuge’s money pouch containing cash and credit cards because it wasn’t his, the prosecutor said.

Ammon Bundy’s older brother, Ryan Bundy, was “virtually everywhere at critical junctures” of the occupation, Knight said, noting that he accompanied co-defendant Kenneth Medenbach when he drilled “Closed Permanently” signs into the door of the Hines office of the Bureau of Land Management. Ryan Bundy operated large refuge machinery when fellow defendants helped cut a portion of the refuge fence Jan. 11, he said. And Ryan Bundy aided and abetted in the removal of FBI cameras from a utility pole on a rural road outside the refuge Jan. 15, he said.

Shawna Cox, Knight maintained, also was a leader. When arrested Jan. 26, she was carrying a thumb drive that contained more than 5,000 documents stolen from the refuge, he said. He played an audio interview that Cox gave in March after her arrest when she said she was at the refuge gathering records on the Hammonds’ case. Knight also pointed to the videotape that jurors had seen of Cox’s arrest Jan. 26, when she yelled to occupation spokesman Robert “LaVoy” Finicum to “gun it” and speed off from state police.

“It’s not about beliefs or values. It’s about deciding which laws and which rules apply and which don’t” to these defendants, Knight said.

He identified Fry as the “media IT person” who helped get the occupation message out to the world and was pictured carrying a gun in a refuge building. He accused Jeff Banta of conspiring with Fry to remain at the refuge for two more weeks after the leaders or organizers were arrested Jan. 26. He pointed out that Kenneth Medenbach also changed refuge signs and put decals on refuge trucks that said “Harney County Resource Center.”

“These defendants decided this was all theirs at a very basic level, their property,” Knight said. “It’s about a collective decision to take what is not theirs and make it theirs.”

Ryan Bundy, who is representing himself, was expected to lead off the other defense closing arguments Wednesday.