United States v. Ehmer

• Docket Number: 17-30242,17-30246,18-30025,18-30042,19-30077
• Decision Date: 07 December 2023
• Citation: 87 F.4th 1073
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Duane Leo EHMER, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Darryl William Thorn, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jake Ryan, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jason Patrick, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jason Patrick; Duane Leo Ehmer; Darryl William Thorn; Jake Ryan, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

87 F.4th 1073

UNITED STATES of America, Plaintiff-Appellee, v. Duane Leo EHMER, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Darryl William Thorn, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Jake Ryan, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Jason Patrick, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Jason Patrick; Duane Leo Ehmer;

Darryl William Thorn; Jake Ryan, Defendants-Appellants.

No. 17-30242

No. 17-30246

No. 18-30025

No. 18-30042

No. 19-30077

United States Court of Appeals, Ninth Circuit

Argued and Submitted June 1, 2020

Submission Vacated June 4, 2020

Resubmitted September 13, 2023 Portland, Oregon

Filed December 7, 2023

Appeal from the United States District Court for the District of Oregon, Anna J. Brown, District Judge, Presiding, D.C.Nos. 3:16-cr-00051-BR-10, 3:16-cr-00051-BR-22, 3:16-cr-00051-BR-22, 3:16-cr-00051-BR-26, 3:16-cr-00051-BR-9, 3:16-cr-00051-BR-9, 3:16-cr-00051-BR-10, 3:16-cr-00051-BR-22, 3:16-cr-00051-BR-26

Jesse Merrithew(argued), Levi Merrithew Horst PC, Portland, Oregon, for Defendant-AppellantJake Ryan.

Jay A. Nelson(argued), Law Office of Jay A. Nelson, McMinnville, Oregon, for Defendant-AppellantDarryl W. Thorn.

Robert M. Stone(argued), Robert M. Stone PC, Medford, Oregon; Tonia L. Moro, Tonia L. Moro Attorney at Law PC, Talent, Oregon; for Defendant-AppellantDuane L. Ehmer.

Andrew M. Kohlmetz(argued), Law Office of A.M. Kohlmetz, Portland, Oregon, for Defendant-AppellantJason Patrick

Geoffrey A. Barrow(argued), Ethan D. Knight, Suzanne Miles, Amy E. Potter, and Craig Gabriel, Assistant United States Attorneys; Kelly A. Zusman, Appellate Chief; Billy J. Williams, United States Attorney, District of Oregon; United States Department of Justice, United States Attorney's Office, Portland, Oregon; for Plaintiff-Appellee USA.

Roger I. Roots, Roger Roots Attorney at Law, Livingston, Montana, for Amicus Curiae Idaho Political Prisoner Foundation and The Real 3%ers of Idaho.

Before: Marsha S. Berzon, Daniel P. Collins, and Lawrence VanDyke, Circuit Judges.

Opinion by Judge Collins;

Partial Concurrence by Judge Berzon

OPINION

COLLINS, Circuit Judge:

Defendants-AppellantsDuane Ehmer, Darryl Thorn, Jake Ryan, and Jason Patrick(collectively, "Appellants") appeal their convictions for various offenses arising from their participation in the January 2016 occupation of the Malheur National Wildlife Refuge ("Malheur NWR") in eastern Oregon.That occupation was undertaken in protest against what Appellants and others saw as significant abuses of power by the federal Government.Patrick and Thorn also appeal the sentences imposed on them by the district court.In addition, Appellants challenge the district court's denial of access to certain materials that were filed ex parte and under seal.Although we agree with Appellants that several of the rulings they challenge were erroneous, we ultimately conclude that none of them warrants reversal of their convictions or sentences.As to Appellants' requests for access to sealed materials, we grant relief as to one document, remand for reconsideration as to certain others, and deny relief as to the remainder.

I

We begin by describing the factual context leading up to the occupation before describing the occupation itself and the prosecutions that arose from it.

A

In April 2014, the federal Bureau of Land Management ("BLM") sought to carry out federal court orders authorizing the BLM to impound cattle that Nevada rancher Cliven Bundy was allowing to graze on federal land without a permit.Shortly after the BLM began its impoundment efforts near Bunkerville, Nevada, hundreds of protestors, "including many openly carrying firearms, converged on the impoundment site demanding that the BLM personnel leave the site immediately and release the impounded cattle."¹Concerned about the safety of its personnel, the BLM suspended its efforts and released the cattle.Cliven Bundy and his sons Ammon and Ryan, together with a fourth person, were criminally indicted for their part in the confrontation, but the charges were dismissed with prejudice after the district court concluded that the Government had committed multiple egregious violations of its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963), to provide the defense with evidence in its possession "that is potentially exculpatory."United States v. Bundy, 406 F. Supp. 3d 932, 940(D. Nev.2018).After the Government appealed, we affirmed that decision.SeeUnited States v. Bundy, 968 F.3d 1019(9th Cir.2020).

Ammon Bundy thereafter became a prominent activist and speaker on subjects such as land rights, and by 2015 his email list reached about 28,000 people.In particular, he promoted the view that the federal Government's sole source of power to control lands within a State is the Constitution's Enclave Clause, which authorizes Congress"[t]o exercise exclusive Legislation in all Cases whatsoever, . . . over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings."SeeU.S. CONST. art. I, § 8, cl. 17(emphasis added).The Supreme Court, however, has expressly rejected the view that, "in the absence of such consent" from a State under the Enclave Clause, "Congress lacks the power to act contrary to state law" in its management of federal lands.Kleppe v. New Mexico, 426 U.S. 529, 541, 96 S.Ct. 2285, 49 L.Ed.2d 34(1976).Instead, the Court has held that, even when the Enclave Clause has not been invoked and a State "retains jurisdiction over federal lands within its territory,"id. at 543, 96 S.Ct. 2285, the Constitution's Property Clause—which grants Congress"Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,"seeU.S. CONST. art. IV, § 3, cl. 2—gives Congress authority"to enact legislation respecting those lands" that "necessarily overrides conflicting state laws under the Supremacy Clause."Kleppe, 426 U.S. at 543, 96 S.Ct. 2285.

In late 2015, Ammon Bundy learned about the prosecution of Dwight and Steven Hammond, two ranchers living in Harney County, Oregon.The Hammonds had been convicted of violating 18 U.S.C. § 844(f)(1), which prohibits maliciously damaging or destroying federal property by fire, based on their unauthorized conduct of rangeland burns.SeeUnited States v. Hammond, 742 F.3d 880, 881(9th Cir.2014).One of the two counts on which Steven Hammond was convicted involved land within the Malheur NWR.Dwight and Steven Hammond were sentenced to within-Guidelines sentences of, respectively, three months and 12 months plus one day.Id. at 882.However, the Government appealed the sentences, asserting that the district court was obligated to impose the statutory minimum sentence of five years and that, contrary to what the district court had concluded, this mandatory minimum sentence did not violate the Eighth Amendment.We agreed and remanded the case for resentencing.Id. at 884-85.

Ammon Bundy viewed the Hammonds' case as "being prosecuted for burning grass," and he thought that the Government overreach involved in "what was happening to them was very similar" to "what happened to [his] family."He sought to rally support for the Hammonds, including meeting them in person; publicizing their case by email, on the internet, in print, and on radio; and meeting with the Harney County Sheriff to "stand for the Hammonds."In mid-December 2015, he drafted a "Redress of Grievance" that he sent to the Governor and other elected representatives, asking them to create a panel to "investigate these issues with the Hammonds."

After receiving "zero" response from elected representatives about the Hammonds' situation—"not even an e-mail back from them" or "even an answer of no"—Ammon Bundy decided to take a "harder stand."He concluded that "we should go into the [Malheur] refuge and occupy the refuge, and that would wake them up."At a December 29, 2015 meeting at a house in Burns, Oregon, which Defendant Patrick also attended, Bundy laid out to a group of supporters his idea of occupying the Malheur NWR.According to Blaine Cooper, a participant at the meeting who later testified for the Government at trial, the plan was to take over the refuge "while armed with weapons," and in the event that the occupiers "encountered employees as we went in there, we were told to ask them to leave politely."Ammon Bundy denied at trial that any such discussion concerning employees had occurred at this meeting.

A rally had already been scheduled in Burns for Saturday, January 2, 2016, which was two days before the Hammonds were set to report to prison on their new longer sentences.After one supporter expressed concern to Ammon Bundy on December 31 that the upcoming rally was being portrayed by some as a "Bundy Ranch style call to action,"he responded in a private Facebook message that "It is much more than a protest."

B

About an hour before the January 2 protest in Burns began, Ammon Bundy met with about 30 people at a restaurant in town and explained his intention, after the rally, to continue the protest at the nearby Malheur refuge.The protest in Burns was peaceful.

As the protest was concluding, a convoy of three vehicles headed towards the Malheur NWR.Upon arriving, Cooper and the other occupants of the vehicles, together with others already at the refuge, began going through the buildings to make sure no one was there.Most of those who went through the buildings were armed, including Defendant Patrick, who had an AR-15.Given that it was a Saturday and the day after New Year's Day, no federal employees were present, although the refuge was open to the public.A neighboring rancher observed a group of about 12 armed men who appeared to be "securing a perimeter" at the...