Outpost of Freedom blog

Burns Chronicles N^o 25
Juror Shopping & Secrecy

Gary Hunt
Outpost of Freedom
August 22, 2016

The government may have given the Grand Jury sufficient information to properly find “probable cause”.  It is also possible that they may have simply convinced the Grand Jury to find “probable cause” based upon explaining to them that they had given them enough information for them to indict the 26 people charged in the final (third) Grand Jury Superseding Indictment.  We will be looking at the Indictment, Case Law, the Grand Jury selection process, and the information provided to the Grand Jury.

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Now, this case is being heard in the Oregon Federal District Court.  That Court is within the jurisdiction of the Ninth Circuit Court.  So, what better source to determine if the Indictment meets the standards set by that Ninth Circuit Court?

Case Law & the Indictment

To do so, let’s look at an Appellate Decision, held by the Ninth Circuit, in Cecil v United States 608 F.2d 1294 (1972).  The case had to do with some people charged with conspiracy, to wit:

“That beginning on or before July, 1975, and continuing thereafter until on or after October, 1975, in the District of Arizona and elsewhere, LEONARD SILAS JOHNSON, FELIX DAN CECIL, DONALD LEE SCHAFFER, IVA LEE THUNDERCLOUD, LYNN RICHARD JOHNSON, RANDY DARRELL THOMAS, WARREN ARTHUR HAGGARD, KENNY ROBERT JAMES, SILAS BLAINE JOHNSON, TONY JOHNSON, and LIONEL JOHNSON, named herein as defendants, did knowingly and intentionally conspire and agree together and with each other and with various other persons both known and unknown to the Grand Jury to commit offenses in violation of Title 21, United States Code, Section 841(a)(1).

It was the object of said conspiracy that one or more of the co-conspirators would possess with intent to distribute and would distribute quantities of marihuana, a Schedule I controlled substance, in violation of Title 21, United States Code, Section 841(a)(1).”

Now, the Burns Indictment reads similarly:

“On or about November 5, 2015, and continuing through February 12, 2016, in the District of Oregon, defendants AMMON BUNDY, JON RITZHEIMER, JOSEPH O’SHAUGHNESSY, RYAN PAYNE, RYAN BUNDY, BRIAN CAVALIER, SHAWNA COX, PETER SANTILLI, JASON PATRICK, DUANE LEO EHMER, DYLAN ANDERSON, SEAN ANDERSON, DAVID LEE FRY, JEFF WAYNE BANTA, SANDRA LYNN ANDERSON, KENNETH MEDENBACH, BLAINE COOPER, WESLEY KJAR, COREY LEQUIEU, NEIL WAMPLER, JASON CHARLES BLOMGREN, DARRYL WILLIAM THORN, GEOFFREY STANEK, TRAVIS COX, ERIC LEE FLORES, and JAKE RYAN did knowingly and willfully conspire and agree together and with each other and with persons known and unknown to the Grand Jury to prevent by force, intimidation, and threats, officers and employees of the United States Fish and Wildlife Service and the Bureau of Land Management, agencies within the United States Department of the Interior, from discharging the duties of their office at the Malheur National Wildlife Refuge and other locations in Harney County, Oregon, in violation of Title 18, United States Code, Section 372.“

Now, back to the Cecil v. United States Appellate Decision, and the requirement for specificity.  What follows are direct quotes from the Decision, and the reasoning for dismissing the Indictment (reversing the lower court’s ruling).

The appellants all raised timely challenges to the indictment proffering motions to dismiss based upon the indictment’s insufficient factual precision.  The trial judge recognized the validity of these claims, commenting that, “this sort of indictment goes far beyond the leeway afforded by the Ninth Circuit.”  However, initially indicating that the requested bill of particulars would remedy the indictment’s defects and later deciding that the Government’s “open file” discovery did remedy these problems, the court denied appellants’ motion to dismiss.

Now, in Burns, we have seen the “open file” discovery, however, the files are not really open, especially to the public.  However, the judge did not dismiss the Indictment. Don’t be discouraged.  Returning to Cecil:

We begin our analysis stating the established rule that a bill of particulars cannot save an invalid indictment.  The very purpose of the requirement that a man be indicted by a grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.  If a bill of particulars were allowed to save an insufficient indictment, the role of the grand jury as intervenor would be circumvented.  Rather than the assurance that a body of fellow citizens had assessed the facts and determined that an individual should face prosecution, the prosecutor would be in a position to second guess what actually happened within the grand jury and fill in the gaps with what he assumed transpired.  The protection of a significant check on the power of the courts and prosecutors would thus be lost.

In Burns, motions had been submitted for a Bill of Particulars (a bill of particulars is a detailed, formal, written statement of charges or claims by a plaintiff or the prosecutor given upon the defendant’s formal request to the court for more detailed information), but those motions were denied.  However, if they had been granted, they would still not make up for the lack of specificity in the Indictment.

This inquiry must focus upon whether the indictment provides “the substantial safeguards” to criminal defendants that indictments are designed to guarantee.  Pursuant to this purpose, an indictment must furnish the defendant with a sufficient description of the charges against him to enable him to prepare his defense, to ensure that the defendant is prosecuted on the basis of facts presented to the grand jury, to enable him to plead jeopardy against a later prosecution, and to inform the court of the facts alleged so that it can determine the sufficiency of the charge.  To perform these functions, the indictment must set forth the elements of the offense charged and contain a statement of the facts and circumstances that will inform the accused of the specific offense with which he is charged.

The Prosecutors admitted that as of April 20, 2016, “the government has produced eleven volumes of discovery that comprise approximately 25,000 pages of documents, 58,570 files, and over 360 gigabytes of data.  The government continues to produce discovery in multiple formats including .pdf, text files, tiffs, etc.”  However, rest assured that within those voluminous records, there just might be some substantial proof that crimes were, or may have been, committed.  It seems, however, that the Court and the Prosecution have left it up to the Defendants, not the Grand Jury, to determine if there really was a crime committed. Returning to Cecil:

The present indictment is a rather barren document.  Aside from tracking the language of the pertinent statutes in setting out the elements of the offenses with which defendants were charged, the indictment makes only two specific allegations concerning the conspiracies.  It states that the conspiracies occurred in Arizona, Mexico, and elsewhere and offers the names of some of the alleged co-conspirators.  The indictment fails to state any other facts or circumstances pertaining to the conspiracy or any overt acts done in furtherance thereof.  More importantly, the indictment fails to place the conspiracies within any time frame.  The language “beginning on or before July, 1975, and continuing thereafter until on or after October, 1975,” is open-ended in both directions.

The Indictment in Burns is equally a barren document.  It is equally void of definitive dates, using the generality of a range, as in Cecil.

For example, when, how, and who, should be applied to the broad statement from the Burns Indictment,

to prevent by force, intimidation, and threats, officers and employees of the United States Fish and Wildlife Service and the Bureau of Land Management, agencies within the United States Department of the Interior, from discharging the duties of their office at the Malheur National Wildlife Refuge and other locations in Harney County, Oregon, in violation of Title 18, United States Code, Section 372.“

When, and upon whom, did they use force?  When, and upon whom, did they use intimidation?  When, and upon whom, did they use threats?

If I kill someone, they have to, at least, say who I killed.  If I rob a bank, they would have to say which bank I robbed, and what I robbed the bank of.  There is nothing in the Indictment that provides any particular situation upon which the defendants can build a defense.  It is nothing more than a thought crime, and the thoughts are solely within the minds of the Prosecutors.  And, they have implanted that thought into the minds of the Grand Jurors, without sufficient substance to meet the requirements of the Ninth Circuit Court.

So, here is what the Ninth Circuit said:

In view of these deficiencies, we find that the indictment fails to allege sufficient facts to facilitate the proper preparation of a defense and to ensure that the defendants were prosecuted on facts presented to the Grand Jury.  This indictment clearly lacked a statement of the facts and circumstances that would inform the accused of the specific offenses with which they were charged.

To allow a prosecutor or court to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection that the grand jury was designed to secure, because a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury that indicted him…  The glaring lack of factual particularity of this indictment thus runs afoul of two key functions of indictments.

Similarly, the fact that an indictment may have tracked the language of the statute will not render it valid if it fails to allege an essential element of the offense or the minimum facts required to fulfill the purposes of indictments.

The requirement that an indictment contain a few basic factual allegations accords defendants adequate notice of the charges against them and assures them that their prosecution will proceed on the basis of facts presented to the grand jury.  Such a requirement is neither burdensome nor unfair to the prosecuting authorities.

The Grand Jury Jurors

Now, a number of efforts have been made, by filing motions, for some of the Defendants to review both the Grand Jury Selection Process (Jury Wheel), and the transcript of the Grand Jury deliberation.  The transcripts would the evidence and testimony submitted to the Grand Jury, to determine if the deficiencies, as outlined in Cecil, exist.  Those motions have been denied.

It is a rather long and interesting chain of events that led to the pursuit of the Grand Jury information, and is worthy of note.  Strangely enough, it begins in a prison in Texas where Kevin “KC” Massey is currently incarcerated.  I had been keeping Kevin up to date on the Burns story, via telephone and mailing copies of my articles.  Kevin, having plenty of spare time, ran across a book of motions by the renowned F. Lee Bailey.  In so doing, he ran into challenges to the Grand Jury.  He gave me the citations, which I passed on to Roger Roots.  Roger, then in touch with Ryan Bundy, prepared a motion (481) that was filed, pro se.  And, that is how this wonderful ball began rolling, hopefully, right over the Grand Jury, the Indictment, the Prosecutor, and the judge.

Then on May 11, 2016, Teresa D. Glover, Jury Administrator for the U.S. District Court for the District of Oregon filed a Declaration (doc 538), which doesn’t satisfy the legal requirements as set forth in Ryan Bundy’s motion (481).  So, let’s look at that “Declaration” (that also includes the “Juror Management Plan” – JMP) and see if the intent was to provide an impartial jury, as required by the Sixth Amendment.  [Note: “538-nn” is reference to the PDF page number in the 28-page Declaration document.]

Now, we need to look at the Jury Management Plan (JMP) to see what is required, and maybe a bit of confusion.

Section 1.04 Policy  (538-8)
It is the policy of the Court that all litigants in this Court, entitled to trial by jury, shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the Court convenes…

Now, how do we provide “a fair cross section” unless the jury is selected from, primarily, from the division, not from the district?  Especially when you consider how diverse the two divisions are.

Then, we have:

Section 1.11  (b) Systematic Randomized Process:  (538-12)
… Such random selections of names from the source lists for inclusion in the master wheels by data computer personnel must ensure that each county within the jury division is substantially proportionally represented in the master jury wheel…

Well, the way it reads, and this is where confusion might come into play, then the whole of the state, any Grand Jury, is at the mercy of those in Portland, as the population requires that each county is proportionally represented.  So, we have to question the whole concept of impartial jury, since there is, without a doubt, much partiality in Portland, and there is no chance that the other divisions would ever hold even a token chance of having any impact on any Grand or Petit Jury decision.  Especially considering that they would have to travel all the way from their remote region to the big city of Portland.

Now, if we desire to determine what the United States Codes says about where trials shall be held, we find a rather circular reference. First we find the statute, with reference to “district and division”, which refers us to the Rule that says “district”. Now, it would seem that divisions would be superfluous, if the intent was the district. So, it is probably safe, and more in line with what was just discussed, to presume that the statute is a higher level of law than a rule, therefore, division prevails.

18 U.S.C. § 3232 : US Code – Section 3232: District of offense – (Rule)
SEE FEDERAL RULES OF CRIMINAL PROCEDURE
Proceedings to be in district and division in which offense committed, Rule 18.

Federal Rules of Criminal Procedure, Rule 18:. Place of Prosecution and Trial
Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed. The court must set the place of trial within the district with due regard for the convenience of the defendant, any victim, and the witnesses, and the prompt administration of justice.

The Statue says “proceedings”, while the Rule says “must prosecute”. If prosecution includes the Grand Jury, which is, in essence, the beginning of the prosecution of the case, is it the District, as stated in the Rule, or is it the “district and division,” as stated in the statute?

Let’s look at the various Grand Juries that have met to deal with the charges in this case.  The first Grand Jury was convened, though the date is not given (538-3), and had this case presented to them on February 3, 2016.  The makeup of the jury as described in Jury Administrator for the U.S. District Court for the District of Oregon filed a Declaration :

15. On February 3, 2016, the United States presented its case for the indictment… (538-3)
16. Twenty-one grand jurors from Grand Jury 15-01 were in attendance on February 3, 2016. Members of Grand Jury 15-01 in attendance from the Portland Juror Management Division included six jurors from Clackamas County; nine jurors from Multnomah County; four jurors from Washington County; and one juror from Yamhill County. Members of Grand Jury 15-01 in attendance from the Pendleton Juror Management Division included one juror from Umatilla County. 

 

 

 

 

 

The second Grand Jury:

18. On February 10, 2016, the United States presented its case for the indictment… (538-4)
19. Twenty grand jurors from Grand Jury 15-02 were in attendance on February l 0, 2016. Members of Grand Jury 15-02 in attendance from the Portland Juror Management Division included two jurors from Clackamas County; seven jurors from Multnomah County; six jurors from Washington County; one juror from Columbia County; one juror from Polk County; and one juror from Jefferson County. Members of Grand Jury 15-02 in attendance from the Pendleton Juror Management Division included two jurors from Umatilla County.

 

 

 

 

 

The Third Grand Jury:

20. On March 8, 2016, the United States presented its case for the superseding indictment… (538-5)
21. Twenty-three grand jurors from Grand Jury 15-01 were in attendance on March 8, 2016. Members of Grand Jury 15-01 in attendance from the Portland Juror Management Division included six jurors from Clackamas County; nine jurors from Multnomah County; four jurors from Washington County; one juror from Yamhill County, one juror from Polk County, and one juror from Clatsop County. Members of Grand Jury 15-01 in attendance from the Pendleton Juror Management Division included one juror from Umatilla County.

Now, it appears that all but one of the jurors were from what might be described as the Greater Portland Area.  The counties where most of the jurors came from are on the west side of the Cascades Mountains.  These are primarily city folks, who thinks that only police and actors can have guns, living in Portland or the numerous bedroom communities.

Grand Jury Transcripts

One of the other motions sent by Massey had to do with Grand Jury deliberations, the transcripts, the testimony, and the evidence that was submitted to the Grand Jury.  Now, Grand Juries have always been guarded, since their purpose is only to determine probable cause, the possibility that a crime has been committed.  And, since they don’t convict, they are not included in the realm of a public trial.

However, what if the public has cause to believe that false evidence was presented to the Grand Jury, simply to get an Indictment — to serve the government and harass the accused?  What if the government had exculpatory evidence, evidence that would raise a question as to whether the alleged crime was actually committed, or not?

At some point, the determination of whether the ends of justice were being served by the Grand Jury, or if the Grand Jury was being used for political, unjust, or nefarious purposes, might warrant scrutiny.  Absent such a remedy, we leave to the government the ability to target individuals for political purposes, and even if a conviction was not obtained in trial, the damage to the accused is immeasurable.  It is destructive of family, work, and the mental state of those who are held in confinement, under false pretexts, and can even be destructive of one’s right to participate in his own defense against the charges.

When the information provided to the Grand Jury raises such question as to both evidentiary and motivation, justice would require that there be scrutiny in the process that resulted in the Grand Jury Indictment.

So, let’s look at what we do know.  This is not speculative, it is factual, and it raises just such concern as to the possibility of impropriety in the presentation to the three Grand Juries, stacked with partial jurors, as described above.

First, let’s look at an outright lie that was presented to the Grand Jury.  Now, it does not suggest that everything that was presented to the Grand Jury was also a lie, though absent knowing just what was presented to them (the transcripts, etc.), at least the suggestion of impropriety, and the justification for an open review of those elements, is surely in order.

This goes to the sworn statement in the “Redacted Criminal Complaint“.  The Complaint, and resulting Search Warrants, were issued after the arrests were made and LaVoy Finicum was shot dead on the side of Highway 395.  The Complaint was, undoubtedly, presented to the Grand Jury, as it was the initiating instrument for all that subsequently transpired.

Now, what is going to be presented was first discussed in “Jon Ritzheimer and the Grand Jury“, though at the time, one piece supportive of the veracity of that article had not yet been submitted.  However, a brief background of the event in question will be discussed, here, and the evidence in support can be found in the above linked article.

Jon Ritzheimer was in Phoenix, Arizona, on the morning in question.  The government, in the Complaint, stated:

14. On December 18, 2015, a citizen (hereafter Citizen) of Harney County was shopping at the Safeway grocery store in Burns, Oregon. Citizen was wearing a BLM shirt. Citizen was confronted by two men, one whom she identified as RITZHEIMER. Citizen reported to law enforcement that she heard yelling, and when she turned around, the second individual shouted “you’re BLM, you’re BLM” at her. That person further stated to Citizen that they know what car she drives and would follow her home. He also stated he was going to burn Citizen’s house down. RITZHEIMER and the second individual left the area in a black pick-up truck with black canopy and no visible license plate. Since the incident, Citizen has observed a similar vehicle outside her residence. Citizen was unable to identify the driver of the vehicle when she later saw it. The following week, a second vehicle, described as a white truck with a pink license plate and a big rebel flag sticker on the back window, aggressively tailgated Citizen, flashing lights and driving erratically. Citizen believed the second incident was related to the first. Citizen also saw the black pick-up truck outside of her place of employment early in the morning hours of Christmas Day.

Jon had some work done on his truck and then went to Idaho, not Oregon.  From there he went to Washington, then, on December 20, 2016, arrived in Hines (adjacent to Burns), Oregon.

The FBI, the very same people that found pieces of a radio bomb and then managed to determine who the people were that built the bomb, could not figure out, with all of their taxpayer funded resources, where Jon Ritzheimer was on December 20.  So they lied and presented hearsay evidence, the identification of a “citizen”, in an attempt to secure the Indictment.

Now, what was not in the original article, though came out in a subsequent “GOVERNMENT’S RESPONSE IN OPPOSITION TO DEFENDANT RITZHEIMER’S SUPPLEMENTAL MOTION AND MEMORANDUM FOR PRETRIAL RELEASE“, is in a footnote on page 10. It states:

Defendant presents his itinerary as an alibi for allegations that he confronted a citizen in Burns, Oregon, on December 18, 2015. At this point, it is not clear if the citizen falsely identified defendant or if the date of the incident was not accurately reported.

Now, the FBI has accessed Facebook pages, Dropbox accounts, phone records, and other records easily acquired by them, including surveillance footage.  Could they not access the Safeway security camera footage to ascertain whether it really was Ritzheimer, or not?  Now, going a bit further, isn’t their statement in the footnote, “it is not clear if the citizen falsely identified defendant or if the date of the incident was not accurately reported“, an admission that what was presented to the Grand Jury, couching this in ambiguous terms, a very questionable statement as to a fact?  So, let’s call it what it is, considering the resources and reputation of the FBI, it is a damned lie propagated to encourage the Grand Jury to Indict the Defendants.  So, this leaves us the question as to whether there were more, or perhaps, many more, lies presented to the Grand Jury to secure an Indictment.

What is our government doing?  Only access to those Grand Jury records can answer that question — and, we, the people, have every right to know just what our government is doing both for us, and to us.

Now let’s enter the realm of exculpatory evidence.  This is evidence that would raise the question as to whether there was probable cause”, or whether information suggests the contrary.

In an Oregonian article, published January 11, updated February 22, we find a very detailed account of the events preceding the occupation of the Malheur National Wildlife Refuge.  One of those accounts, found on page 5 of the article, states:

On Dec. 30 — three days before the Jan. 2 rally — federal employees were nearing the end of their work day at the wildlife refuge when management told them to go home early.

And for their safety, their boss said, they weren’t to return to the refuge until instructed.

“That was based on the culmination of our intel,” said Fish & Wildlife spokesman Holm, “and the start of the holiday weekend.”

Holm wouldn’t elaborate on details of the “intel.”

Now, wait just a minute.  The Indictment says, in Count 1, that the Defendants,

did knowingly and willfully conspire and agree together and with each other and with persons known and unknown to the Grand Jury to prevent by force, intimidation, and threats, officers and employees of the United States Fish and Wildlife Service and the Bureau of Land Management, agencies within the United States Department of the Interior, from discharging the duties of their office at the Malheur National Wildlife Refuge and other locations in Harney County, Oregon, in violation of Title 18, United States Code, Section 372.

Can you rob a bank, if it is not there?  Can you murder someone, if you can’t find them?  It appears, by the information in the Oregon Live article that “management” told them to go home, and not to return until told to.

Now, is this exculpatory?  Would it raise doubt as to whether it was the Defendants that kept the government “employees… from discharging the duties“?  Shouldn’t the Grand Jury be apprised, by the government, of facts such as this?

Now, I hate to be a spoilsport, but I think that there is one more element regarding what the government told the Grand Jury, and what the facts are.  Now, some will say that it is insignificant, but if laws are to have meaning, they must be written.  When they are written, it is the very words in which they are written that is the law.  How could it be otherwise?  If laws are a rule of action, or a prohibition of action, then they should be clearly understood.

So, let’s look at the exact wording of the Statute cited in Count 1, above.

18 U.S.C. § 372 : US Code – Section 372: Conspiracy to impede or injure officer

If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both.

Now, the Statute has a couple of elements, not just one.  The first is by the use of force, intimidation, or threat, keeping “any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof“.  This would be an act of preventing them for taking their office, or performing their duties.  But, it requires “the use of force, intimidation, or threat“.  So, did the Grand Jury consider whether these elements were met — to the letter of the law?  It would seem that if they did, they would know which person was denied the abilities mentioned, who did it, and how they did it.  Those elements have not been met.

The second element reads, “or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties.”  Now, according to the Oregonian article, the “management”, who probably had authority to give employees time off, with pay, at our expense, are the only ones that could possibly be guilty of this element.

So, what would happen if the wording were from the law, rather than something that was probably presented to the Grand Jury as if it were the law?  Would the jurors have a different perspective on what really happened and whether there was probable cause to indict the Defendants?

The only way that we can know just how the government operates — something that we have every right to know — is to be able to judge their actions, especially in a situation such as the one the 26 defendants have found themselves.  That can only be accomplished if we, the public, have the legal remedy to review those actions.  And, I speak not only for the due process rights of the Defendants, I also speak for every American who understands that we are self-governed, and not subjects, subject to the whim of those who imagine themselves as having absolute power.